Constitutional Law I: Prakash Outline No. 2
Constitutional Outline
Role of the Supreme Court in Constitutional Order
I)
Creating a Constitution that is Binding
a)
Why do
people adopt a Constitutions?
i)
Rules
of how society functions
ii)
Allocation of power
iii)
Defines
the relationship between government and people
iv)
Limits
governmental power
b)
What is
unique about a constitution compared to statutes?
i)
The
constitution has a bill of rights that set out the rights of the people.
ii)
Harder
to change than a statute
iii)
They
are meant to last a long time
iv)
Set out
powers of government and states
v)
Constitution is meant to constrain us
vi)
Constitution Limits power
(1)
Congress cant pass ex-post facto law
c)
Who can
amend the Constitution?
i)
Art. 5
(1)
2/3 of
both houses of the constitution or 2/3 of states needed for constitutional
convention to propose.
(2)
¾ of
all the states legislatures for ratification.
(a)
Very
difficult to change.
ii)
English
Constitution
(1)
Changed
by ordinary legislation.
(2)
It is a
series of customs that can be changed by statute.
d)
Why
should we be bound by this constitution?
i)
It
binds us because we feel a loyalty to it, even people who don’t like it go along
with it.
ii)
Its not
clear why, but it has something to do with reason above.
e)
What
does the Constitution mean?
i)
Look at
Text
ii)
Look to
Originalism
(1)
Framer’s intent
(2)
Ratifier’s Intent
(3)
Public/Semantic Meaning at the time
iii)
Historical Practice
iv)
Precedent – Look at what courts have said in the past.
v)
Moral
-We should look at it by moral standards today.
vi)
Prudential – What works best for us today.
vii)
Structural Argument
(1)
In
Marbury v. Madison,
(2)
Look at
how words are used in other parts of the constitution to get the meaning of the
words.
f)
Problems with the Articles of Confederation
i)
Did not
have the power to tax.
ii)
Every
state needed to agree to have an amendment.
II)
The Basic Framework
a)
Marbury
v.
i)
Facts
(1)
William
Marbury wants to get his commission, nominated by president, affirmed by senate,
signed by president, Seal fixed by Secretary of State,
John Marshall.
(2)
Madison, the new Sec. of State refused to give the commission.
ii)
Issue
(1)
Does
Marbury have a right to the commission?
(2)
If so,
and if that right has been violated, does Marbury have a legal remedy?
(3)
Is the
legal remedy a writ of mandamus issuing from the Supreme Court?
iii)
Black
Letter:
(1)
Where
the Constitution of the
iv)
Court
(1)
Issue
1: Does Marbury have a right to the commission?
(a)
Yes,
because the president signed the commission and the secretary of state
sealed it.
(b)
The
constitution does not say when an appointment is complete
(i)
Article
2, Section 2, Clause 2:
discusses appointments.
(c)
(d)
Arguments against this view:
(i)
Nowhere
in the constitution does it say that the commission is complete when the
president signs it. There is no support besides
(2)
Issue
2. If so, and if that right has been violated, does Marbury have a legal remedy?
(a)
Marbury
has a right to remedy because he had a legal right (entitled to the commission)
that was violated.
(i)
(b)
There
are legal duties of officers that the courts can review to see if they have met
the legal duties.
(i)
Delivering a commission is a legal duty, not a political duty.
1.
2.
Legal
duty: concerns the rights of an individual
(3)
Issue
3: Is the legal remedy a writ of mandamus issuing from the Supreme Court?
(a)
Court
cannot issue this writ of mandamus b/c the constitution lists specific
categories for original jurisdiction and the court does not have jurisdiction
over this case.
(i)
Judiciary Act of 1789 allows the court to issue writs of mandamus in original
actions.
(b)
BUT,
the constitution gives the Supreme Court limited original jurisdiction
(Article 3, Section 2: “ambassadors, public ministers and consuls and where the
state is a party”).
(i)
In all
other cases the S.C. has appellate jurisdiction.
(c)
So why
isn’t
(i)
Ambassadors and consuls are foreign officials, so people assume that public
ministers are also foreign.
(ii)
So the
constitution does not give jurisdiction in this case.
(4)
(a)
Construction of section 13 of the judiciary act.
(b)
There
is nothing wrong with SC issuing a writ of mandamus where they otherwise have
original jurisdiction. The statute does not confer original jurisdiction, as
(5)
Arguments in Favor of Judicial Review
(a)
Oath
(i)
Article
6, Section 3
– Judges must take oath to support the Constitution, so they must prefer it over
contrary statutes.
1.
Counterargument – We all take the same oath, doesn’t follow you alone interpret.
(b)
Supremacy Clause
(i)
Article
6, Section 2
– “this constitution, and the laws of the
(ii)
(iii)
“Pursuance thereof” could be read to
say: A law is not made in pursuance to the constitution if it is repugnant. OR
(iv)
Could
be read to mean that laws made under this constitution are the laws of the land,
and not the laws made before this Constitution under the Articles of
Confederation.
(v)
Supremacy Clause says that
1.
constitution is supreme
2.
laws
made under the constitution are supreme
3.
all
treaties made before and after the const are still binding.
(c)
Written
Constitution
(i)
Permanency
(ii)
The
fact that it is a text makes it enforceable
(iii)
isn’t
supposed to change overtime, except through its own provisions for change –
Article 5 –
amendment process
1.
2.
There
are nations with written constitutions without judicial review – so it doesn’t
follow obviously.
(d)
Jurisdiction over All Cases
(i)
Article
3, Section 2
- grants jurisdiction in all cases “arising under”
(ii)
1.
Argument is weak: This still doesn’t explain why the court has the specific
authority to say why statutes are unconstitutional. This language doesn’t
necessarily mean that the court has authority to decide whether or not a statute
is unconstitutional.
(e)
Congress Needs to be Checked
(similar to written const argument)
(i)
Still
not obvious even if Congress needs someone to check them that it should be the
Supreme Court
(f)
Judicial Role of the Courts to Interpret
(i)
(ii)
Everyone agrees Courts interpret and enforce statutes
1.
Prakash
says that it is not obvious that the constitution is law for the Courts to apply
as opposed to something for only Congress to apply.
(g)
Treason
Clause
(i)
Article
3, Section 3
1.
Cannot
convict on treason unless they confess or 2 people testify.
(ii)
1.
If
partial enforcement of constitution, then full enforcement is required.
(iii)
Still
not obvious
(6)
Does
the Jud. Act of 1789 really conflict with the constitution?
(a)
Article
3, Section 2, Clause 2:
jurisdiction granting clause
(i)
Original jurisdiction in cases with 1) foreign officials 2) states
(ii)
“w/
such exceptions and under such regulations as Congress shall make”
(b)
So why
can’t Congress alter some of the jurisdictions and grant the S.C. original
jurisdiction in this case?
(i)
(ii)
We can
read the language to express a default rule – a rule to be applied if no other
rule is established by Congress. When Congress changes the jurisdictions,
then that’s fine and we should follow it.
(iii)
The
text doesn’t explicitly say.
1.
(c)
Does
the S.C. continue to believe that it must have original jurisdiction in cases
enumerated by the constitution?
(i)
No.
Congress has passed statutes that have given the lower courts original
jurisdiction in cases
(ii)
S.C. no
longer reads the grant of jurisdiction to be written in stone and unchangeable.
S.C. doesn’t want to hear cases involving the states. No one thinks of lower
courts being biased towards one state or another.
b)
Judicial Exclusivity in Constitutional Interpretation?
i)
Cooper
v. Aaron
(1)
Facts
(a)
(2)
Issues
(a)
Will
Brown decision apply to
(3)
П
(a)
Argued
that state has not allowed desegregation to take place, passing laws and calling
out troops to prevent it.
(4)
∆
(a)
Argued
that desegregation will lead to a breakdown of law and order, and action has
been taken to preserve it.
(5)
Court
(a)
Constitution is Supreme Law of land.
Art. VI.
(b)
We say
what the law is and what the constitution means for everybody.
(i)
Syllogism has been respected since Marbury and everyone else has to
listen to us.
(ii)
State
legislatures take an oath and they must listen to us.
You have to act as if the const says X if we say it means X.
Thus they must enforce our decisions whether or not they are actual
parties.
(c)
Why can
Supreme Court decide meaning of Constitution for
(i)
They
just say this is and has been our role since Marbury; it has gone
unchallenged for 150 years, so we win.
(ii)
Obviously peculiar because Marbury isn’t explicit in claiming that it is
superior. It is sort of like saying
you should listen to me because I told you too already or because you have been,
you should continue to listen to me.
1.
Assuming the Supreme Court actually said in Marbury that we are number
one, it still doesn’t make it right.
a.
George
Bush in
i.
Judgment; have to have some right to some process, which implies it doesn’t have
to be Art. III court and okay to do military commissions.
2.
You
would expect the Court to make a self-serving claim to its authority.
You would think the whole issue is whether you were right the first time.
c)
Authority of SC over decisions of State Courts
i)
Martin
v. Hunter’s Lessee
(1)
Facts
(a)
US and
(b)
VA
Confiscates land owned by Martin, a British subject.
(c)
Hunter
purchased land from VA in 1789.
(d)
Martin
brought suit for his land.
(e)
VA
trial court ruled for Martin (person claiming from
(f)
VA
court of appeals reversed construing treaty strangely
(g)
(h)
VA CoA
refuses to enter judgment in favor of Martin claiming SC does not have appellate
jurisdiction.
(2)
Issue
(a)
Does
the SC have appellate jurisdiction over constitutional decisions by state
courts?
(3)
VA CoA
(a)
Section
25 of the Judiciary Act was unconstitutional. Federal appellate review was
inconsistent with constitution because Constitution did not create an umpire to
police disputes between federal and state.
(b)
One
sovereign cannot review the decisions of another sovereign.
(4)
Held
(a)
They
ruled they have appellate jurisdiction over cases in state courts
(5)
Court
(a)
Subject
Matter Jurisdiction
(i)
SC says
(ii)
Article
6:
(b)
Sovereignty
(i)
One
sovereign subject to review by another sovereign is odd; but that is not
(c)
Possibility of abuse by Supreme Court
(i)
Story
says this is pretty candid: last resort must rest somewhere, wherever that be it
is subject to abuse. The fact that
it might be abused, doesn’t mean we don’t have it.
(We can equally argue that you would abuse this discretion).
(d)
Pragmatic Reasons
(i)
State
Court Bias:
We might suppose State Courts would follow constitution (oath, supremacy clause,
learning integrity & wisdom) nonetheless Constitution fears bias of State Court
judges so it doesn’t make sense for them to have exclusive right.
(Diversity jurisdiction specifically arises out of fear of home court
judges - some wariness of bias).
(ii)
Uniformity:
Also a need for uniformity; if VA is right then every law brought to attention
of court could be interpreted differently in different states. Maybe in same
case another Supreme Court would come to a different decision and there would be
no way to impose uniformity. That
is a recipe for chaos, potential multitude of understandings of what federal law
provides.
(iii)
(Not in
our Notes) Counter-Arguments:
1.
VA can
say uniformity is fine, but if you want it, don’t give state courts jurisdiction
in these cases; make federal jurisdiction exclusive.
a.
This is
insulting to have us do it and then tell us we’re wrong; just take it away from
us and require it to be filed in federal courts and then you won’t be reviewing
us. You can’t have it both ways.
2.
We take
oath too and that is a reason for judicial review, see Marbury, so don’t
think you are the final arbiter.
a.
If you
go down Marbury, many of
d)
Supreme
Court Review of State Courts and State Laws
i)
Possible Bias:
State Courts do not have Article III salary protections so they are more likely
to side with the states.
ii)
Review
of State Law:
Should the SC be also able to review state laws? Consider Unprotected Salaries,
and Limited Sovereignty.
III)Power
of Political Control over the SC
a)
External and Internal Checks
i)
In
General
(1)
Why
have checks on the judiciary?
(a)
It
promotes judicial restraint.
ii)
External
(1)
Amendments
– you don’t like the SC decision you can have an constitutional amendment. SC
has been overturned 4 times.
(a)
The
reason why it’s so low because it is very difficult to amend the constitution.
The power to check judiciary by amendment is there in theory, in practice it
isn’t.
(b)
The
court is always doing what it wants, but stops at ridiculous things because it
knows it’ll get overturned.
(2)
Appointment
(a)
How
many SC justices must there be? It’s up to statute, and Congress decides that.
(i)
How
effective is this process at checking the SC? Appointments alone are not enough
to change the view of the court. To change the number of judges has not worked
in the recent passed, but this is pretty much not considered done anymore.
(ii)
Limitation:
Senate can reject appointments. Art. 2.2.2
(3)
Impeachment
(a)
You
could impeach a justice for things mentioned in Article 2. High Crimes and
misdemeanors. We don’t know what this actually means. Only checks justices on
extreme behavior. You cant use this as a check on the justices because unpopular
decision is not a high crime or misdemeanor so this would not check them.
(4)
Public
Opinion
(a)
This is
possibly a check on the SC because they may be unwilling to issue opinions that
fly in the face of public opinion.
(i)
The 1st
problem is that some people would say that public opinion should not be regarded
in decision making.
(ii)
The 2nd
problem is other people would say that it would take a lot of public opinion
against you for it to even matter.
(iii)
Justice
Scalia says he does not care about Public Opinion.
(iv)
Court
may be concerned with upholding a good public image.
(5)
Good
Behavior Clause
(a)
Some
say that misbehavior is separate from high crimes and misdemeanors mentioned in
Article II. If that’s the case, then they can be removed.
(6)
Jurisdiction Stripping
(a)
Congress can strip the lower federal courts of its jurisdiction. And to the SC
they can say we have the power to make exception to the powers of the SC and
take certain subjects away from you.
(i)
This is
controversial.
(ii)
Some
say if the SC’s jurisdiction can be taken away then there would not have
uniformity, and all it would do is make some lower court the SC in that realm.
(iii)
Another
thought says that certain essential function cant be taken away.
(iv)
Another
thought says that Congress can make exceptions, but it cant use that power to
say that it cant hear cases involving blacks and Hispanics. They can do it as
long as the act s not contrary to the constitution.
(b)
Ex
Parte McCardle
(i)
Facts
1.
McCardle is convicted for condemning reconstruction and the Federal Court denied
writ under 1867 rule. Before the
appeal, Congress passed a statute denying him a writ of habeas corpus under a
rule pretty much stripping the Supreme Court of jurisdiction to hear these
cases.
2.
The
Supreme Court under J. Chase accepted the jurisdiction of the Appealer’s Act
saying that you can create exceptions to our appellate jurisdiction
(ii)
Issue
1.
May
Congress repeal appellate jurisdiction in cases where they had previously given
jurisdiction?
(iii)
Court
1.
Yes
under Article 3 section 2, the court can give and take away jurisdiction.
2.
The
court says that they do not have jurisdiction because Congress took it away from
them. They repealed Act of 1868, which took power from Act of 1867.
3.
Court
could also be implying that they don’t have a problem if you take away a statute
that gives us jurisdiction, as long as there is another statute which gives us
jurisdiction. The Judicial Act of 1789 meant that they could still hear the case
through normal channels of Certetori.
4.
So
maybe the court is saying that you can take away duplicative grants to
jurisdiction.
(c)
Ex
parte Yerger:
(i)
Just
because Congress repealed a branch of jurisdiction, it didn’t mean a prisoner
couldn’t use another method of getting to the court, so Supreme Court had
jurisdiction to hear the case.
I)
Case or Controversy
i)
Internal Checks
(1)
In
General
(a)
Courts
say that we have to follow these doctrines because they
(i)
are in
the constitution, “Cases and Controversies”
(ii)
promotes judicial restraint,
(iii)
We want
courts to resolve concrete disputes and not hypos.
(iv)
Promotes individual autonomy by only allowing individuals actually harmed.
(v)
Some
say these are not actually in the constitution but are used to avoid hard cases.
(2)
Advisory Opinions
(a)
Opinion
on the constitutionality of legislative or executive action that did not grow
out of a case or controversy.
(i)
The
courts will not issue these until a case comes up regarding it.
(ii)
This is
because if we say something is tentatively right, then you may feel we have to
decide your way when the case comes to court even if the other side is right.
(iii)
Article
II section 2 clause 1 says that the president can get advisory opinions from the
cabinet.
(b)
The
plus of advisory opinions is that we can have the answer and it will save
litigation time. Problem is that this will make the SC legal advisors to the
president. Truthfully, the SC justices often give private opinions to the
President.
(c)
If the
President is not going to enforce the decision of the SC, then that would make
the opinion an advisory opinion which would be unconstitutional. So this either
means that the President has to listen to it, or if the President says he will
not follow the decision of the SC, then the SC couldn’t issue it.
(d)
State
courts give them all the time. They do not view the constitution as barring them
from doing so.
(3)
Standing
(a)
Three
Constitutional Requirements
(i)
П must
allege a personal injury (in fact)
(ii)
Fairly
traceable to ∆ unlawful conduct (causal)
(iii)
Likely
to be redressed by the request for relief.
(b)
Prudential Requirements
(i)
3rd
parties cant act on your behalf
(ii)
You
must be within the zone of interest contemplated by the statute.
1.
The
statute had your protection in mind.
(iii)
Can’t
bring generalized grievances.
1.
Must be
a grievence particular to you.
(c)
Reasons
for Standing
(i)
Want to
have a concrete case, no bystanders.
(ii)
We want
to have 2 parties, with party was is best able to bring the case, we want true
adversaries.
(iii)
We want
to limit litigation, certainly by bystanders.
(iv)
Promote
the notion of Judicial Restraint
(d)
Allen
v. Wright
(i)
Facts
1.
Parents
of black students brought suit against IRS for granting tax exempt status to
segregated schools.
2.
IRS
statute did not permit schools to be charities.
Bob Jones. You would
like to be a charity if you are school, helps subsidize the school.
IRS according to parents of children, the IRS wasn’t complying with
decision by allowing schools to continue status as charitys.
(ii)
П
1.
Injuries alleged:
a.
Harmed
by the mere fact that government financial aid to discriminatory private
schools.
b.
Federal
tax exemptions to racially discriminatory private schools in their communities
impaired their ability to have their public schools desegregated.
(iii)
Held
for Standing
1.
Injury:
Court divides into two sub-claims
a.
amounted to federal support segregation
i.
Not
enough to say there is a violation of the law, there must be something more.
ii.
Also,
no standing based on stigmatizing injury. Not because it can’t be a standing in
fact. It is because causal chains
are too weak, didn’t apply and get denied access.
Stigmatic injury accords only when denied equal treatment.
They weren’t denied, simply stigmatized and aren’t claiming they were
discriminated against.
b.
Diminished ability to receive integrated education:
i.
Court
says that this is concrete interest and harm in some circumstances.
Brown v. Bd. of Educ.
It is an injury in fact.
c.
Question: is there substance to the distinction?
Decide for yourself.
2.
Fairly
Traceable (Causality)
a.
Not
fairly traceable because it is too speculative; only if there were enough
schools in the community to make a difference in public school integration.
i.
if you
are in a city where there are no private schools; can you possibly show fairly
traceable, no way to show suffered an injury.
(Traceable to third parties; they are the ones sending kids to segregated
to schools).
ii.
Same if
private schools that don’t discriminate on basis of race.
iii.
Whether
schools will change practices or whether parents will respond in same way.
3.
Problem
will be Redressed
a.
It is
not clear that interest will be furthered at all if executive stops granting tax
exempt status.
b.
Redress
should be sought from Congress not the courts.
(iv)
Dissent
1.
Brennan:
a.
Argues
that there isa direct causal relationship. The SC uses causation as a poor
disguise for merits and this adding to criticism.
2.
Stevens:
a.
Economic Argument - If you deny tax exempt status, it makes these private
schools more expensive; makes segregation cheaper, and for parents to send
children there, and thus less likely to be desegregated schools.
Simple economic argument.
b.
“The
purpose of the standing inquiry is the measure the purpose of the stake in the
outcome, not whether court has the authority to provide it with the outcome it
seeks.”
(e)
Lujan
v. Defenders of Wildlife
(i)
Facts:
1.
Endangered Species Act - Regulation interpreting this to only apply in US and on
high seas and not to
a.
The
species are not bringing suit
b.
Standing is more difficult to establish in this type of case
(ii)
П
Alleged injuries in fact:
1.
Animal
Nexus Argument :
a.
We
can’t see animals because of failure to extend regulation to overseas.
i.
Scalia
says no real imminent injury because no concrete plans of people going to
2.
Ecosystem Nexus Argument;
a.
We’re
harmed because ecosystem is harmed.
i.
there
is no such thing; too generalized “pure speculation and fantasy”
3.
Vocational Nexus Argument
a.
Animal
Trainers and those who’s work related to this ecosystem or these animals are
harmed because the environment they work with is diminished.
4.
Procedural Injury Argument
a.
The П
says that Congress has given us the right to sue in the ESA when it said that
anyone can sue.
b.
The
court says that the congress can’t create an injury in fact when there isn’t
one. You may have a cause of action, but you do not have an injury in fact.
i.
Prof –
if they had said anyone who brings suit for a procedural violation will get
$500, this might have given them enough interest to give them standing.
c.
It is
entirely permissible for congress to give a right and bring a cause of action,
but you still have to have a personal injury.
(Congress can’t give you a personal injury).
You need both cause of action and
personal injury.
i.
e.g.
where you have personal injury and no cause of action; if in D.C. no civil
battery law; someone punches you, but you don’t have a cause of action.
ii.
e.g.
where you have a cause of action but no injury in fact.
Lujan; congress says you can sue but you need an injury in fact.
Congress is limited in ability to confer standing upon you.
(iii)
Redressability: Plurality
1.
If
agency won’t give money to AID, it does not follow that other governments will
stop with these projects. (Actions
would be traceable then to foreign government, and people can’t sue these
people).
2.
A 10%
reduction for AID isn’t going to make a difference
a.
Stevens
Response:
Who knows; not at all clear what will happen.
(iv)
Concurrence
1.
Kennedy
a.
There
is no standing here but Congress can define an injury in fact.
2.
Stevens
a.
There
is injury whenever a species or habitat is harmed and someone wishes to see or
study that.
b.
Not
Redressable arguments are not persuasive, Possible that other governments would
also pull out.
c.
Respondents have standing, but government is right that it does not apply to
foreign countries.
(v)
Dissent:
1.
Blackmun:
a.
Court
is harping on empty formalities, there is standing here.
b.
Would
have been an injury if they alleged they had bought tickets they would have had
standing; this is silly to deny standing on this.
c.
Animal
nexus is sufficient; animal trainer depends on supply of animals so trainer is
potentially harmed when animal he or she trains is harmed somewhere in the
world.
d.
This is
a “slash and burn expedition through the law of environmental standing.”
e.
This
opinion harms Congress;
i.
Congress wanted judicial review of executive action and the court is saying
tough because they didn’t suffer an injury in fact.
Congress wants judicial check and they are saying we won’t get involved
even if you want us to get involved; doesn’t follow congress’s statute.
ii.
Scalia’s response; that is right; there is a constitutional requirement of
injury that is fairly traceable so it doesn’t matter if Congress wants us to get
involved. Has to be a case or
controversy. Thus, Congress can’t just confer standing.
(f)
History
of Standing
(i)
Originally
1.
Showing
a cause of action or a legal injury would get you standing.
(ii)
Data
Processing Case
1970
1.
They
interpreted the administrative procedure act as applying the injury in fact test
and it was meant to be relatively lenient and broadening standing. It could
include economic, environmental and other aesthetic harms.
(iii)
Sierra
Club Case
1.
Standing denied on injury in fact grounds saying did not meet Data Processing
requirements; party seeking review must himself have suffered injury. They took
the broadening in Data Processing and said although there are more categories of
harm, there still has ot be actual harm.
(g)
Threatened Injury
(i)
SCRAP
and Duke Power case
1.
Standing can be shown by a sufficient threat of future injury.
(ii)
City of
1.
Threat
must be real and immediate rather than merely speculative and hypothetical.
2.
Could
not get an injunction on No Chokeholds, because he could not show he was likely
to get one again. Unless if he could show that:
a.
All
police officers Chokehold all citizens
b.
The
city authorized police officers ot act in such a manner.
(h)
Harm
Widely Defused
(i)
Schlesinger v. Reservist to Stop the War: (Incompatibility Clause)
1.
Some
provision of Constitution can’t be enforced by anybody.
a.
Members
of Congress can’t be members of executive as well.
Reserve officers were officers of
b.
Court
said only interest is shared by all citizens and is abstract, not personalized
injury. Means that no one could sue
for incompatibility clause.
c.
No one
is particularly injured; everyone is generally hurt.
i.
Unless;
crazy hypos.
ii.
General
point: with respect to standing it is possible that no one could challenge an
alleged violation of constitution and true even if everybody agrees it is a
violation of the Constitution.
iii.
This
upsets people; but standing inquiry makes it possible that no one will be able
to go to court.
(i)
Is
There Another Way to Confer Injury:
(i)
Vermont
Agency of Natural Resources v. United States:(Bounty Hunter)
1.
Suggests Congress can provide an injury in fact; if
a.
П in
Lujan; if statute said P’s should get $500 for every failure then there
would be an injury in fact; money is always a clear injury.
b.
in
c.
this is
perfectly fine because you are acting as atype of government agent; government
always has standing and they are just assigning third parties a right in order
for them to vigorously prosecute a case.
i.
You
could imagine where people didn’t have injury in fact, Congress could give a
bounty for bringing suits, and then they would have an injury in fact which
would be the
(j)
Congressional Power and Citizen Suits
(i)
Elk
Grove Unified
1.
Facts
a.
Father
of elementary school student sued on the “under god” provision of the pledge of
allegiance. This was religious indoctrination in violation of the 1st
amendment.
2.
Court
a.
Newdow
lacks standing because he is not the custodial parent. His wife makes the final
decision on things if the two do not agree.
b.
Having
been deprived the right to sue as next friend in California, Newdow lacks
prudential standing to bring this suit in federal court.
c.
Court
used prudential concerns in order to avoid deciding this case.
(4)
Political Questions
(a)
Six
Political Questions
(i)
Textually demonstrable commitment to a coordinate branch.
(ii)
Lack of
discoverable and manageable standards to decide the case.
(iii)
Impossibility to decide this without making policy judgment.
(iv)
Impossibility of deciding without disrespecting another branch.
(v)
Unusual
need for unquestioning adherence to a political decision already made; or
(vi)
Potential for embarrassment due to conflicting pronouncement from various
branches.
(b)
Doctrine supposedly precludes you from getting to merits:
(i)
But
some of these branches of political questions actually are decisions on the
merits.
1.
To say
something is demonstrably committed in effect says you lose; you can read it and
says we looked at constitution and you don’t have a case, it is committed to the
other branch.
a.
Although categories appear to suggest court won’t decide merits, it suggests
that court is deciding the merits.
(ii)
Some
dislike the doctrine because of reticence of court to decide difficult questions
on grounds that it is politically charges.
Argue that these considerations don’t matter; the key is that once you
have judicial review, you will have some disrespectful. (Some think doctrine is
used too often)
(iii)
Some
say it would be better if court decided more cases than not; i.e. Bush v. Gore,
is a political question for Congress - Supreme Court shouldn’t be involved in
standards for the
(c)
Baker
v. Carr: (Redistricting)
(i)
Facts
1.
the
2.
Claim
of violation of Equal Protection Clause in the XIV Amendment
(ii)
П
1.
Did not
use Guaranty Clause for their argument because they knew they would lose, so
they used Equal Protection claim.
(iii)
Held:
1.
The
court distinguishes Luther v. Borden which says guaranty clause is a
political question, and the court decides that this is an equal protection case
which they have decided on many times.
2.
The
court does not say this is a guaranty clause case those are political questions
and thus non-judiciable.
a.
In Luther
v. Borden, Court was faced with contesting legislatures and court didn’t
want to or feel it appropriate to determine who was authenticate government, so
this is a question for Congress. It
is textually committed to Congress.
3.
Court
decided to hear the case because of Equal Protection Clause; which guaranteed
equal protection;
4.
Equal
Protection is supposed to be interpreted by the Court and Guaranty Clause is by
the Congress. Nothing in
Constitution that says Court has a general role in enforcing XIV amendment.
It is a general background that Courts enforce decisions.
a.
Thus
limits Luther v. Borden to the guarantee clause
5.
The 6
Political Question
a.
No
constitutional commitment ot another branch.
b.
No risk
of embarrassment abroad
c.
There
are well developed judicial standards for Equal Protection
d.
There
is no policy question raised.
e.
No
question already decided
f.
There
is no question that is to be decided by another branch of government.
(iv)
Dissent:
1.
Frankfurter
a.
This is
the guranty clause case (Art. 4.4) disguised as a 14th amendment case.
There are no standards here to apply, and that means it is a political
question.
(5)
The
Basis for Finding a Political Question
(a)
“A textually demonstratable commitment.”
(i)
Nixon
v.
1.
Facts:
a.
Former
judge seeking judicial review for problem with trial by Senate.
Said his hearing wasn’t a “try” as specified under Art. I §3, cl. 6.
Said it was just a report by committee and senate has to try me.
Claims it violates impeachment procedures.
2.
Held
a.
Controversy was nonjusticiable.
3.
Rationale
a.
Senate
has the sole power to try impeachments, not the judiciary.
Textual commitment to another branch.
b.
“Try”
lacks judicially manageable standards for review and there is nothing about try
that suggests precision.
c.
Suggest
judicial review of impeachment manners would be odd because it is a manner to
discipline judges. Inconsistent with checks and balances.
4.
Concurring:
a.
White,
Blackmun:
i.
They
would have dismissed the case not as a political question, but because it the
case lacked merit. i.e. He was tried in the senate.
b.
Souter:
i.
Agrees
but also thinks the court may intervene under certain circumstances. For
example, if someone was convicted on a coin toss.
(ii)
Powell
v. McCormack:
(Shady
HoR not allowed to take office)
1.
Facts
a.
Powell
met all the requirements to be on the House of Reps but had done some shadiness.
House passed resolution prohibiting him from taking his office because of said
shadiness.
b.
Art.
1.5.1 Allows the house to decide qualifications for its own members
2.
Court
a.
The
court says that you are adding qualifications not in the constitution and that
Powell cannot be excluded because he has met the requirements in the
constitution and the people elected them
b.
The
court could have decided a different way by saying that we are not going to
judge the additional qualifications that you may deem necessary.
(b)
Political Question Doctrine and Foreign Affairs
(i)
Goldwater v. Carter:
(Tiawan
Treaty)
1.
Facts
a.
1954
treaty in
b.
Members
of Congress said you can’t do that without our Congressional Approval.
2.
Lower
Courts
a.
District Court found they had standing and in favor of Legislators.
b.
CoA
agreed they had standing but on the merits said President was entitled to
terminate treaty without congressional approval.
3.
SC
a.
Non-judiciable because President has the authority to conduct foreign affairs so
this is a political question.
4.
Concurring Opinion
a.
Powell
i.
The
issue was not ripe for review. Prudential concerns that Congress hasn’t taken
official action so there is no conflict between Congress and President.
ii.
It is
judiciable because it is a constitutional question of the division of power
between congress and the president.
b.
i.
Concurred without Explanation.
5.
Dissent
Opinion
a.
Brennan
i.
CoA
should have been affirmed on the merits because the issue is one of
decision-making authority which falls within the competence of the courts.
b.
Blackman and White
i.
The
case should have been set for plenary consideration after full briefing and oral
argument.
(ii)
1.
Facts
a.
Conservation groups tried to get president to certify Japanese violations of
whaling quotas.
b.
Statutory requirement to have secretary certify to President of any violations
of fishing quotas.
c.
Secretary does not certify it.
2.
Court
a.
This is
a legal question of statutory interpretation and not a political question.
b.
Held
that secretary’s decision to not certify did not violate the statute.
(c)
Judiciable Standards. (Political Gerrymandering Cases)
(i)
Baker
v. Carr 1962
1.
Judically manageable standard did not exist to decide this case.
(ii)
Wesberry v. Sanders
(Congressional Districts)
1.
There
is a requirement of one person one vote.
(iii)
Reynolds v. Sims
(State
Legislative Districts)
1.
Same
holding as above
(iv)
1.
Court
a.
Claims
of partisan gerrymandering are judiciable
b.
There
are judicially discernable standards now that we have the one person one vote
rule.
2.
Dissent
a.
O’Conner, Burger, Reinquist
i.
This is
non-justicable.
(v)
Vieth
v. Jubelier:
(Penn Congressional Redistricting)
1.
Facts
a.
Gerrymandering in the Penn redistricting for House of Reps. process.
b.
Gerrymandering - Legislature redraws the lines to make sure they can win a
re-election. You make certain districts 100% democratic this way some districts
would always vote democratic, but then the others would have much less and Reps
would always win there.
c.
The
size will always be the same, but drawn in a way that helps their party.
2.
Court
a.
Court
says that the only requirement is that the districts be contiguous and Congress
has the right to deal with this problem.
b.
The
constitution doesn’t even require there to be districts.
c.
Citing
Baker v. Carr says there is no justicable standard that we can apply.
3.
Standards
a.
Powell
(in Bandemer Case)– Fairness, Totality of the Circumstances.
i.
Scalia
is not a judicially manageable standard
b.
Stevens
(Dissent)– Racial gerrymandering
i.
Scalia
says those are judiciable, this doesn’t mean that political gerrymandering is
judiciable.
c.
Souter
(Dissent)– 5 part test, fresh start
i.
Scalia
says you need to know what you are testing for.
d.
Breyer
(Dissent)– Unjustified use of political factors to entrech minority in
power
i.
Scalia
says unjustified is not defined and will become hard to administer and know.
e.
Kennedy
(Concurrence) – Says that this is unconstitutional, and lower court should look
at the test offered up and then decide if it is judiciable after you hear the
test. Also says that since 5 of us think there is a judicially manageable
standard, there should be one.
i.
Scalia
seems to suggest that lower courts should find it not judiciable.
(vi)
Bush v.
Gore
1.
Facts
a.
Florida
Supreme Court ordered a manual recount of undervotes.
2.
Court
a.
b.
The
right to vote is protected by Equal Protection.
c.
A
recount will violate Equal Protection because there was an absence of specific
standards to ensure equal application, so state SC is ratifying unequal
treatment.
3.
Dissent
a.
Stevens
i.
The
federal questions presented here are not substantial and do not require us to
second guess the judgment of the state supreme court. State judges are competent
and we do not have a reason to second guess them .
b.
Souter
i.
Equal
protection clause does not forbid different types of voting methods within a
jurisdiction
ii.
It is
entirely possible that
c.
Ginsburg
i.
States
should be able to organize itself as it sees fit.
ii.
The
recount by the Florida Court is not any less fair than the certification process
preceding that recount.
d.
Breyer
i.
There
are no legal concerns or practical concerns related to legal questions that
require us to hear this case.
ii.
Political Question and is non-judicable because it selects the new president.
iii.
Congress is the better institution to deal with this.
iv.
Would
permit
(d)
Prudential Concerns
(i)
Can a
case be non-justicable under the political question doctrine where there are
judicially cognizable standards?
1.
There
is a risk that in some cases the court’s decision may affect such political
areas such as the cessession on a war, relations with a foreign government and
substantial expenditures of federal funding.
(e)
Constitutional Amendments
(i)
In
General
1.
Constitutional amendments are considered to be political questions.
(ii)
Coleman
v. Miller:
Child Labor Amendment)
1.
Facts
a.
A child
labor amendment to the constitution was proposed.
b.
c.
Lt.
Governor placed the deciding vote.
2.
Court
a.
Court
divided on the political question issue
b.
Non-justicable on the reasonable time requirement. Reasonable time includes
consideration of relevant conditions such as political, social, and economic
which is far outside the range of the court.
(f)
Misc
Cases
(i)
In many
cases the Court has reached the merits of the constitutional controversy even
though there are implications for foreign affairs, the high stakes, or the fact
of inter-branch disagreement.
(g)
Republican Form of Government
(i)
In
general, the guaranty clause is non-judiciable.
(ii)
Luther
v. Borden: (
1.
where
two groups claimed to be the actual government of
(iii)
Pacific
Telephone Co. v.
1.
Facts
a.
An
citizens intuitive provision allowed a submission to go to popular vote which
would then be enacted into law if passed.
b.
They
voted to pass a tax telephone and telegraph companies.
c.
They
sued saying that this initiative procedure violated the republican form of
government.
2.
Court
a.
Deciding this case would lead to an “inconceivable expansion of the judicial
power.”
(6)
Questions of Timing – Ripeness and Mootness
(a)
In
General
(i)
Not
obvious that these are constitutionally required.
(b)
Ripeness:
(i)
Too
premature, speculative. (not ready to be heard, not enough facts to decide case)
1.
Example: Challenging a statute before a prosecution is initiated.
(ii)
Idea,
you don’t want to decide a case until you have enough before you to decide it
right.
(iii)
Factors:
1.
Look at
potential harm to П.
2.
Look at
potential hardship they will suffer
if no review; and
3.
Look at
adequacy of the record for resolving the dispute
(iv)
You may
want to wait and see if statute is applied in a bad.
(c)
Mootness
(i)
Prevents courts from hearing a case when events subsequent to the filing of the
lawsuit deprieve П of a stake in the action.
(ii)
Remedy
has already been granted, has already been sought, or is impossible to receive.
(iii)
Standing must remain through the case
1.
i.e. if
case settled before judgment, don’t decide the case.
2.
Admission to school; person already graduated, there was no controversy, why
bother deciding the case.
(iv)
Roe v.
Wade
1.
Person
already had the kid, so case would be over, not ripe for the next time around
and moot because already had the kid.
2.
However, special exception to Mootness Doctrine:
a.
Capable
of repetition yet evading review;
b.
Appellate review will be effectively denied, so need an exception.
b)
The Jurisdiction of the Supreme Court
i)
Jurisdiction, Certiorari, and US Supreme Court
(1)
Jurisdiction in General
(a)
For
constitutional purposes the jurisdiction of the SC is set out in Art. 3.
(b)
Mandatory Jurisdiction
(i)
Generally it is said that the SC’s appellate jurisdiction is mandatory.
(ii)
2
classes of cases which are mandatory appellate jurisdiction are judicial
regulation of the political process.
(2)
The
Cert Process
(a)
Certiorari Jurisdiction
(i)
Cert is
discretionary
(ii)
4
justices need to agree for plenary consideration
(iii)
They
hear 80 cases per session
(iv)
People
file writs of cert. to show either there is a circuit split or it is an
important case of federal law.
The Distribution of National Powers
II)
Executive Power
a)
Introduction: Separation of Power
i)
The
Federalist No. 47 (
(1)
There
should be a separation of powers to prevent tyranny, but you do not need
absolutely separate and distinct
ii)
The
Federalist No. 48 (
(1)
There
should be a limit on power. The boundaries of power should be limited and
checked by other branchesof government.
iii)
Note:
The Theory of Separation and Checks and Balances
(1)
Separation of powers in not rigid
(2)
Purpose
of separation and checks is:
(a)
Efficiency, division of labor
(b)
Prevention of Tyranny; diffusion of power, and decreases possibility than any
one branch will use governmental power against the citizenry.
(c)
Accountability; cuz then you know who to blame
(d)
Balance; No one entity becomes too powerful.
b)
Presidential Seizures
i)
Youngstown & Tube Co. v. Sawyer
(Steel Mills Siezure)
(1)
Facts
(a)
Nationwide steel strike which leads Pres to seize plants; informs congress of
actions, and says he doesn’t want a crisis in the war effort.
(2)
Issue
(a)
Does
the President have the constitutional power to sieze possession of steel mills?
(3)
∆
(a)
President has the executive power Art 2.1.1
(b)
Presidential executive order is authorized by his role as the Commander in
Chief. (Art 2.2.1)
(c)
Take
Care Clause (Art 2.3)
(4)
Court
(a)
No, he
does not, this situation is too removed from the theatre of war.
(b)
Legislative Authority
(i)
He does
not have that power in the constitution, and Congress has not given him that
power since authority has to come from a legislative act.
(ii)
There
are two statutes that authorize the President to sieze personal and real
property, but the president does not claim his power derives from them.
(iii)
Taft-Hartly Act: There was a rejection of an amendment to this act which would
have allowed government seizes in an emergency.
(c)
Traditional Executive Power
(i)
Presidential Power:
1.
Presidential power derives from a legislative act or the constitution.
2.
Legislative Act
a.
There
is no legislative act here to execute and Congress specifically refused to give
this authority when it did not accept the amendment to Taft-Hardly Act.
3.
Commander-in Chief Clause
a.
This
isn’t executive power situation because this situation is too removed from the
theatre of war.
(ii)
Take
Care Clause
1.
There
is no law here, so he is not executing a law.
2.
He
cannot cite to a statute or the constitution so he is legislating. He issued an
executive order that reads like a statute, preamble, and also because it looks
like a statute, justification,
(5)
Concurrence
(a)
Frankfurter
(i)
President has traditionally never had this authority. Congress has already
legislated in this area and expressly withheld this power from the President
when rejecting the amendment ot the Taft-Hardly Act.
(ii)
A
systemic, unbroken, executive practice may be treated as a gloss on executive
power vested in the president
(b)
(i)
There
are three categories that express how much power the President has to
act.
1.
Legislative Authority:
a.
Where
Congress delegates authority to President expressly or implicitly; President
power is at its apex.
b.
President is only wrong if neither branch can act on it.
2.
Lacks
Legislative Authority.
a.
Where
Congress is silent, it is possible that Pres and Congress have concurrent
authority.
b.
Maybe
President acts on his own interpretation; in this “twilight zone” we don’t know
what is the best answer.
3.
Measures Contrary to Express or Implied Legislative Will
a.
Where
Congress prohibits Pres’s act, Pres only has much power as the constitution
permits.
b.
He can
only rely on his own Constitutional powers, minus congressional powers on this
matter.
c.
Presidential power at is lowest.
(ii)
Our
Case
1.
This
case is a Category 3 case because congress has expressly or impliedly refused to
give legislative authority.
2.
Presidential Power
a.
President has allocation of generic executive powers, and not all conceivable
executive powers. So some things may not fit here that maybe considered an
executive power.
b.
Emergency powers were not given by the forefathers who knew of the possible need
and we should not grant them now.
3.
Commander in Chief Clause
a.
Congress expressly is suppose to “raise and support the Armies” and “provide and
maintain a Navy” so they are suppose to supply the armed forces.
b.
He is
Commander in Chief of the army and navy, not of the country and its industries,
no monopoly of war powers.
4.
Take
Care Clause
a.
Compares to 5th amendment. He says that the taking care clause gives
the President the authority “to reach as far as there is law” but the 5th
amendment protects a private right, so the government could go as far as there
is law, and this is stopped by the 5th amendment.
(c)
(i)
He
agrees on the fact that Emergency Powers does not give this power to the
President. This would be expanding Article II to fit the political convenience
of the present emergency.
(6)
Dissent
(a)
Vinson
(i)
Congress has basically approved of this war, they want war to continue, and you
need steel to fight a war; thus if necessary congress allows president to seize
the steel.
(ii)
Majority fails to allow president to allow war to succeed; why fund war if they
don’t war to succeed, thus they must want President to have whatever powers are
necessary for the war, and if that includes seizing steel plants, so be it.
(iii)
Also
suggests there are precedents for this, so no big deal for this to happen again.
(7)
Discussion
(a)
Sikrishna says there is a tension throughout American history in interpreting
executive powers as broad or specific, this is an example of that.
(b)
Truman
was close to Labor, and may have taken the factories in order to help his labor
friends who were crucial to his re-election by getting them all raises.
ii)
Dames &
Moore v. Regan
(1)
Facts
(a)
Carter
declared a national emergency in the wake of the Iranian embassy hostage crisis
and he blocked the transfer of any property of the Iranian government. President
makes Executive Agreement to get
hostages back. Will decide
outstanding claims in a tribunal between US and
(i)
Executive Agreement - Something that is less significant than a treaty and
tradition suggests a president can do it unilaterally and bind the government.
There is no constitutional permitting this, but traditionally has been
done where they didn’t think it was necessary for Senate
(2)
Issue
(a)
Does
the president have the power to suspend the claims of its citizens which are
pending against foreign governments?
(3)
Court
(a)
President is authorized to suspend pending claims.
(b)
Congress implicitly gave him the power through the IEEPA. This was passed when
Carter was President.
(c)
This is
a Jackson Category 1. Congress gave express power to the President to nullify
attachments and order the transfer of Iranian assets. The ending of claims in
American courts are not expressly granted by IEEPA. This does not mean that
Congress has impliedly rejected authority to the president (Cat. 3), Congress
can’t enumerate everything they want to give the President in the area of
Foreign Affairs and they have given so much related authority, it is implied thy
gave him authority here.
(d)
The
Court says to apply this holding narrowly and not a open plenary power to settle
claims
(4)
Discussion
(a)
Political Question doctrine: This looks like a political question where there is
potential for embarrassment for the President, and this case creates new law.
iii)
Notes:
(1)
Dames
and Moore inverted the holding of
c)
Executive Authority (Domestic Affairs)
i)
(1)
Facts
(a)
Special
prosecutor subpoenaed the President for tapes, he gave some and not others.
President Nixon says he does not have to give over those cases because of
Executive Privilege.
(2)
∆
(a)
Court
lacks jurisdiction to issue the subpoena.
(i)
The
President has executive authority and no other branch of government can come in
on this. I have the exclusive authority to determine the scope of the privilege.
(ii)
This is
an intra-branch dispute. The Special Prosecutor is appointed by the Attorney
General and this is a disagreement between the SP and his boss.
(3)
Issue
(a)
Is
presidential privilege absolute, or at least enough to beat the subpoena
(4)
Court
(a)
Marbury
gave us the authority to say what the law is. “It is emphatically the
(b)
President says he has a complete presidential privilege and separation of powers
prevents judicial review.
(i)
President should have Executive Privilege even though it is not in the
constitution it is there implicitly because he needs this privilege to carry out
his duties but he does not have absolute Executive Privilege
(ii)
Court
says yes there is and there should be great deference to Presidential Privilege.
The court does have jurisdiction here. The SP was given the authority to contest
the invocation of executive privilege. The Executive Branch should respect the
power of the SP, and all three branches of government should enforce this.
Absent a claim to protect diplomatic, military and sensitive national security
secrets we cannot accept that the protection of the District Court is not
enough.
(c)
President claims he at least has the privilege to beat the subpoena
(i)
Here
the SP was given the power to override the Presidential Privilege. The truth in
a criminal case can override policy and it can overcome Executive Privilege.
(d)
Criminal Justice Argument
(i)
The 6th
amendment guarantees ∆ right to confront witnesses against him, and 5th
amendment gives right ot due process of law. If we allow Executive Privilege,
due process of law would be violated and impair the function of the courts. The
needs here are specific, whereas the Presidents interest is broad.
ii)
Note:
Executive Privilege and Presidential Immunity
(1)
In
General
(a)
The
President is not immune from the judicial process.
(b)
Immunity from injunctive relief
(i)
1.
The
court concludes that courts did not have power to issue an injunction against
the President
(c)
Damages
for misconduct while in office
(i)
Nixon
v. Fitzgerald
1.
President is immune from cases of action arises from out of his official duties.
(d)
Damages
for claims unrelated to service in office
(i)
1.
Private
cases will not be allowed to be delayed until out of office. President likely
not immune from cases of action for private acts.
(e)
Why do
we distinguish here?
(i)
Court
feels that private conduct
(ii)
Jones
arose out of misconduct before President in office,
(2)
The
scope of the privilege
(a)
Cheney
(i)
Doesn’t
need to be invoked, but look to see if permitting discovery will impair the
branch in the performance of their duties. This is a civil case.
iii)
Note:
The Politics of Impeachment
(1)
The
Nixon
(2)
High
Crime and Misdemeanor
(a)
(b)
Nixon’s
alleged misconduct even if not criminal
(c)
Must be
a political crime
iv)
Note:
The Law of Impeachment
III)The
Legislative Power
a)
Legislative Authority
i)
In
General
(1)
Formalists have separate spheres of powers, Functionalists have some overlap.
(2)
Formalists say that court has good reason to follow this way modern legislative
action although historical
ii)
Note:
The Nondelegation Doctrine and “Quasi-Constitutional” Statues
(1)
Introduction
(a)
Currently there are very few constitutional restraints of Congress’s power to
delegate.
(b)
Previously Congress was required to lay down a legislative act that gave a
intelligible principle to which the person or body to take action is directed to
conform.
(c)
Congress gives authority to administrative agencies under vague standards which
gives them vast discretionary power amounting to lawmaking.
(2)
(a)
(b)
(i)
Court
invalidates provision of code that give President too much discretion. The
statute did not supply standards that would tell the President when to exercise
that power.
(c)
LA
Schechtler Poultry Corp
(i)
There
were max and min wage provisions, and the types of chickens to be sold.
(ii)
Schechler was prosecuted.
(iii)
Court
said that this statute was an impermissible delegation of legislative authority.
Congress is not permitted to delegate. There is a need for regulatory authority.
(3)
The
purported demise of the non delegation doctrine
(a)
Today
this doctrine is no longer is use, and there have only been two successful cases
against it.
(b)
Congress no longer need “intelligible principles” and can give broad authority.
(c)
Modern
Approach – Meat Cutters Case –
standards is “broad fairness and avoidance of gross inequity” Ok because it was
temporary, President could not decriminate between industries, and implicit
requirement that President limit himself.
(4)
Nondelegation Redux?
(a)
Schechter
has never been overruled
(i)
Some
have argued for this doctrine to be revived.
(ii)
Schoeonbrod – (For) Legislators enhance their power by delegating: they retain
the ability to influence events by pressuring agencies, while they shed
responsibility for the exercise of power by avoiding public votes on hard
choices.
(iii)
Posner
– (Against) This doctrine is no where in the constitution no matter how you look
at it. A statutory grant of authority to the executive isn’t a transfer of
legislative power but an exercise of legislative power.
(b)
The
fear of a broad delegation may provide a reason to construe administrative
authority narrowly.
(c)
(i)
Invalidation of the line item veto act.
(ii)
Court
says this is a violation of Art.1.7. How a bill becomes a law. They are not
considering separation of powers clause.
iii)
Ins v.
Chadha
(1)
Facts
(a)
INS
ordered guy deported. Judge allowed
person to stay; AG agreed, sent it to Congress, and members of House Judiciary
General moved to pass a one house resolution to legislatively veto the IJ’s
decision. House passed legislative
veto pursuant to a statute that allows IJ to decide, then AG to decide, and then
Congress can overturn these decisions; Chadha challenged the resolution.
(2)
Held:
(a)
Legislative Veto is unconstitutional
(b)
Unconstitutional resolution to overturn the decision allowing Chadha to say in
US.
(c)
It is
okay for congress to delegate authority, but if Congress wants to change legal
rights, it has to go through process of bicameralism, but can allow others to do
so without going through the process.
(3)
Rational
(a)
House
failed to meet requirements of bicameralism; approved by both Houses, and
presented to President).
(i)
Not
everything has to go through this process. Art I, sec 7, cl 2; only things that
may be necessary.
(b)
The
rationale is that art 1.7.2 doesn’t require everything to go through
bicameralism, but any exercise of legislative power has to go through
bicameralism.
(c)
House
can’t act legislatively and unilaterally
(i)
There
are only limited instances where House or Senate can act alone; House
impeachments; Senate try impeachments; pres appointments, enact treaties, but
here House is trying to change Chadha’s legal rights.
(d)
Art 1.7
commands that Congress doesn’t have right to delegate to part of itself the
power to change the status quo.
(Only can act unilaterally when provided for in Constitution).
(i)
this
argument is somewhat supported by Art 1.7.3, which tries to prevent Congress
from calling a bill something else.
(4)
Counterarguments
for why Congress should maintain this power:
(a)
Pretty
much if Congress can delegate, why can’t they maintain power to make sure the
branches they delegate to are using it correctly.
Thus Congress can delegate authority to agencies and so forth, but they
can’t retain power over them.
(b)
court
doesn’t tackle the question about how Regulations can change people’s legal
rights all the time and stuff isn’t required to go through process of
bicameralism.
(5)
Effect
(a)
This
case is an example of the tension between how to analyize separation of power.
One side, formalist (Burger) you follow what the constitution says on how a bill
becomes a law on the other hand, finctional take (White) legistative veto is
necessary way of carrying out delegation.
(b)
Writing
is on wall for any legislative veto provisions; continue to be struck down;
overturns more statutes than ever before in courts entire history combined.
(c)
Creates
big severability problem; what happens to the rest of the statute if veto is
unconstitutional. Maybe congress
wouldn’t have delegated without the veto.
This ruling could thus upset many legislative compromises
(d)
If
wouldn’t have granted authority without provision, then whole statute is
invalid.
(e)
Congress may provide for instructions if some part of a statute is deemed
unconstitutional.
(6)
Concurring
(a)
Powell
(Congress can’t exercise judicial power)
(i)
pretty
much says that Congress couldn’t do this because it was a judicial power to
determine if a single person could be deported.
(Note that it can’t pass bill of attainder art I sec 9 to single out
person for special treatment - maybe this singling out idea informs Powell’s
opinion).
(ii)
but
what about passing special bills granting citizenship; have power to set uniform
rules of naturalization, but can pass specific grants of citizenship if somebody
wants to pass a bill. This has gone
on for a long time - probably okay constitutionally.
(7)
Dissenting,
(a)
White,
J. (Necessity argument for
constitutionality - pretty much a defensive measure)
(i)
Over
200 statutes have this legislative veto provision; should be justified in making
sure there delegation is not being abused.
Pretty much this is a useful innovation - need flexibility to accommodate
US laws. Also in keeping with Necessary and Proper clause.
Congress also dominates legislation with respect to immigration.
(ii)
Congress would be left with two choices:
(iii)
Also
preserves checks and balances; mirrors what goes on in Art. I, section 7 where
all three branches has check on each other, but here president proposes things,
and if both don’t agree, the change of laws don’t take place.
So what if all three branches don’t agree, doesn’t pass.
(b)
Counter
argument: Chadha cares about the set up a lot; if Congress has to pass a law
when it disagrees with AG, then good for him, but if just needs to pass a
resolution or all three need to agree, then he has to go.
(8)
Discussion
(a)
Severability Clause: There are two options here where there is a clause that is
unconstitutional. In this case the Immigration Act had a Legislative Veto
clause. You could either cut out the clause and keep the act, or through out the
entire act because Congress wanted the act to have that restraint and they may
not want the act otherwise.
iv)
Note:
Legislative Veto
(1)
In
context, Congress has constitutional ways of doing a legislative veto, so they
don’t really need the legislative veto and the courts decision keeps everything
formalist.
v)
Note:
Where do Administrative Agencies Fit in the Separation of Powers Scheme
(1)
Introduction
(a)
Considering there is no more nondelegation doctrine, and legislative vetoes are
unconstitutional so are they sufficient checks of administrative agencies.
(2)
Myers
and Presidential Supremacy
(a)
Myers
v.
(i)
In
General
1.
Any
congressional limits on the removal power are unconstitutional.
(ii)
Court
1.
Congress passes a law saying that the President can remove postmasters with the
advice and consent of the senate.
2.
a.
The act
of removal is executive in nature
b.
Under
the take care clause, it is the President who must take care that the laws be
faithfully executed.
c.
Art. 2
gives executive power to the President not subordinates.
3.
The
only place the constitution gives senate the removal is during impeachment
(b)
Dissent
(i)
Congress created the office of the Postmaster and has power to destroy it, so
why shouldn’t they be able to also control the tenor of the Postmaster?
(3)
Humphrey’s Executor
(a)
Humphrey’s Executor v.
(i)
In
General
1.
The
court unanimously upheld the ability of congress to limit the removal of a
commission of the federal trade commission.
2.
From a
functional perspective this distinction between cabinet members and admin
officers makes sense because they admin agencies were suppose to be insulated
from regulatory control.
3.
From
the Formalist approach this is problematic because they are people in the
Executive not controlled by the President.
(ii)
Court
1.
Myer’s
holding applied only to purely executive officers. Officers in quazi-legislative
roles like those in administrative agencies
(b)
Wiener
v.
(i)
Both
Humphrey’s Executor and Wiener recognize a congressional power to create
independent agencies, free from presidential removal power.
(4)
Buckley
v. Valeo
(a)
In
General
(b)
The
Case
(i)
Facts
1.
Federal
Campaign Act created a federal elections commission. They set up a system of
appointment for the 8 officers.
(ii)
Court
1.
Held
that vesting a commission whose members were appointed in this manner with some
of these functions violated the appointments clause of Art 2.2.2.
2.
An
Officer of the
3.
The
Commission here is not “merely in aid of the legislative function of Congress”
like other administrative agencies, but they have significant enforcement and
discretionary power to make their appointment by the President alone necessary.
vi)
Bowsher
v, Synar
(1)
Facts
(a)
Congress assigns to Comptroller General of US function under Balanced Budget and
Emergency Deficit Control Act (Gramm–Rudman-Hollings Act) that give the
Comptroller general ability to investigate reports and make approvals of budget
means to ensure budget stayed within spending caps that the President would have
to perform. CG was removable by
Congress for impeachment on grounds of “inefficiency”, “neglect of duty”, or
“malfeasance”, and joint resolution.
CG was appointed by Pres from list of three candidates given by House
(2)
Issue
(a)
Whether
an officer of Congress, removable by Congress can be given the power to execute
a statute.
(3)
Court
(a)
The act
is unconstitutional.
(b)
Congressional role in the removal process made the comptroller an agent of
congress.
(c)
The
functions assigned are executive powers and congress cant give their officer
executory powers.
(4)
Concurrence
(a)
Stevens
(i)
This is
not a case of his role or his removal power. It is the fact that he is creating
policy that binds the nation, and if you are changing legal rights, then that
can only be done
(ii)
(5)
Dissent
(a)
White
(i)
Congress cannot reserve executive role for itself or its agents but Comptroller
is not an agent even though he has executive functions or is removal by
congress.
(ii)
Court
overlooks or difference with Chadha, in this case the process of removal
of the Comptroller does meet the requirements of bicameralism and presentment.
(iii)
The
fact that Congress is attempting to control an officer does not in of itself
make it unconstitutional, they control administration through legislation.
(6)
Discussion
(a)
Takes
Chadha a step further; not only can you not delegate to yourselves power
to change legal rights, you can’t delegate that power to your own agents either
- has to be to an independent person.
Can’t give power to yourself, part of yourself, or your agents either
vii)
Morrison v. Olson
(1)
Facts
(a)
Ethics
of Government Act allows for appointment of independent counsel to investigate
and prosecute high level government officials.
Act requires AG to conduct preliminary investigation and appoint counsel
if no reasonable grounds that investigation is necessary.
(b)
Olsen
lied to an exec committee (illegal); Congress subpoenaed info, he didn’t comply;
an AG appointed special prosecutor.
Court would then appoint somebody, set limitations on investigation, and IC
could do by himself whatever the DOJ could do until removed, resigned, or
special division (judges) determines job is done.
(2)
Issue
(a)
Whether
the independent counsel is constitutional;
(3)
Court
(a)
Is he
an inferior officer?
(i)
The
line between an inferior officer and a principle officer is not clear, but it is
clear here that this is an inferior officer for the following reasons.
1.
Removable by AG
2.
Had
only limited duties
3.
Office
limited in jurisdiction and tenure
(b)
Violation of Separation of power?
(i)
Act
Restricting AG to remove only for Good Cause
1.
Congress here is not trying to reserve removal powers for itself like in
Bowsher or
Myers. The removal provisions are
more like Humphrey’s Executor and
Wiener
(ii)
Act
reduces the power of President to control prosecution powers.
1.
(4)
Dissent
(a)
Scalia
(i)
He is
independent and is not subordinate to anybody. This means that he is not an
inferior officer.
(ii)
President has all the executive power, prosecuting people is under the power of
the President.
1.
IC has
an unlimited budget, and they are considered successful if they find something
wrong. If they do not they are not considered successful, there is a systemic
problem with the IC looking for problems to justify expenditure.
(5)
Discussion
(a)
We
can’t trust the department of justice to investigate their boss so we need a
independent council.
(b)
Is it
constitutional to create an independent council arm that is not responsive to
the president
(c)
3
claims
(i)
1.
Morrison is not an inferior officer, she is a non-inferior officer.
1.
Why
does this matter? The constitution says that the President is suppose to
nominate non-inferior officers and so she is improperly appointed. inferior
officers do not have to be appointed by president
2.
Inferior officers
a.
She had
limited duties
b.
Office
limited in jurisdiction or time
(ii)
2. Does
it violate separation of powers?
1.
Court
says there is nothing that says congress can’t give power to judges to appoint.
2.
This
was done because the President CAN’T appoint someone to investigate himself or
his close friends.
(iii)
Does
this violate the President’s power to remove officers?
1.
The
court says that the Congress doesn’t interfere with the duties of the President
so
viii)
Note:
Congressional Control over Administrative Officals
(1)
Chadha
and
Bowsher
(a)
Court
says that in Chadha they were exercising legislative authority and needs to go
by presentment and bicameralism.
(b)
Courts
says here that Congress was NOT legislating, but was controlling an officer with
executive powers which is also unconstitutional.
(2)
Morrison
and Bowsher
(a)
Statutory Scheme Designed to Assert Congressional Control Prohibited
(i)
Myers,
Chadha, Bowsher
(b)
Statutory Schemes Designed to protect admin officials from Executive Control
Allowed
(i)
Humphrey’s Executor,
Morrison
(ii)
Congress can make some executive officers independent, but it may not itself
control them.
(3)
Mistretta
and the Twilight Area
(a)
Mistretta v. US
(i)
The US
Sentencing Commission was created and placed in the Judicial Branch. This was
created to equal out sentencing.
(ii)
The
court rejects separation of powers arguments and says that the commission was
given “intelligible principles” and so they had detailed guidance.
(4)
Justice
Scalia’s Position
(a)
(i)
Scalia
proposed these views before
IV)
The Intersection of Legislative and Executive Powers
a)
In
General
i)
Clauses
Related to Foreign Affairs
(1)
Art I
(a)
8.3, 5,
10, 11, 12, 13, 14, 15, 16, 18; 9.2
(2)
Art. II
(a)
1.1,
2.1, 2.2, 3
(3)
Congress can do the following things with respect to foreign affairs
(a)
regulate international commerce
(b)
declare
war
(c)
grants
letters of marque or reprisal
(4)
President can do the following things with respect to foreign affairs
(a)
Receive
ambassadors
(b)
Can
decide which countries to recognize
(c)
Can
make treaties w/ advice and consent of the senate
(d)
Grant
executive orders – used to implement authority he already has
(5)
Some
say, Constitution does not expressly give many foreign affairs duties to any
branch.
(6)
Others
say that Article 2 grants the President all the executive power and the
executive power in 1789 included foreign relations authorities.
(a)
Exceptions given to Congress are exceptions to the General Grant, so the
President has all the rest of the powers.
(b)
In
practice, the President is authorized to have the authority; the cases try to
see if he took it or if he had it?
b)
Foreign
Affairs - Executive Authority
i)
(1)
Facts
(a)
Company
indicted for conspiracy to sell weapons to Boliva against a Joint Resolution
authorizing the President to Prohibiting the sale of arms if he found that ban
would bring peace to the region. Lower court held that it was an
unconstitutional delegation of legislative power.
(2)
Issue
(a)
Is this
a unlawful delegation of legislative authority to the President?
(3)
Court
(a)
The
broad statement that Federal Government has only enumerated powers is true when
it comes to internal affairs.
(b)
The
foreign affairs powers, however, came from
(c)
(4)
Discussion
(a)
Ramsey
and Prakash Article
(i)
The
president has residual foreign affairs power from Art1.1.
(ii)
Residual foreign affairs power cannot be checked.
(b)
Disagreements with “All Foreign Affairs power to President”
(i)
States
could have some of that FA power
(ii)
President shouldn’t have all that power, Congress should have some or more.
(c)
Critized for two reasons.
(i)
Inconsistent with written constitution - if Courts view was correct, there would
be no reason to enumerate powers in Foreign Affairs.
(ii)
Historical Reasoning – The framers intended like the presidency have limited
powers, and not the expansive authority in Curtiss-Wright.
ii)
Note:
The President and Foreign Affairs
(1)
Text,
History, and Presidential Powers
(a)
The
text does not make the President the sole organ of the Federal Government in FA.
(b)
Historical practice is uncertain, many Presidents have asserted a leadership
role in FA, but members of Congress have sometimes tried to reject this
assertion.
(c)
Why
should History control when the text clearly is different?
(2)
Functionalism and the autonomy of constitutional interpretation
(a)
Court
makes a functional argument that the President alone would know the conditions
of foreign nations, and has confidential sources of information, we need to give
this to the President to avoid embarrassment and achieve our aims.
iii)
Note:
The Allocation of Warmaking Authority
(1)
In
General
(a)
Congress is given the power to declare war, but the President is made the
Commander in Chief and plays the principle role as the representative of the
(2)
The
Original Meaning
(a)
Make
War was changed to Declare War. This was because they wanted to give the
President the power to repel a surprise attack quickly, but they didn’t want the
power to declare war to happen as quickly so gave it to the senate.
(3)
The
Meaning of War and Sudden Attack
(4)
The
Four Case Studies
(a)
The
First
(i)
The
House and Senate passed resolutions that supported defensive operations but
didn't declare war.
(ii)
President doubles troops to build a offensive capability
(iii)
Members
of Congress file suit saying he needs to come to Congress to get a declaration
of war before he proceeds. Thrown out for ripeness, but the premise is supported
by Court
(iv)
President then comes to congress to get resolution
(v)
Later
the House Joint Resolution 77 gave the President the ability to use “all
necessary means” to achieve the goals of the UN resolution
(vi)
President then invades
(b)
The War
in Kosovo
(i)
US got
involved in Kosovo.
(ii)
There
was no formal congressional declaration of war
(iii)
After
air strikes begin,
(iv)
He said
he attacked consistent with his constitutional authority.
(v)
House
rejected a resolution calling for declaration of war.
(vi)
House
files suit against
(vii)
(viii)
Court
rejected suit for lack of standing.
(c)
The
Second
(i)
On Oct
16, 2002 Congress gives President Authorization to use armed forces as he
determines to be necessary and appropriate.
(ii)
Is the
congress delegating legislative authority? Are they giving a declaration of war,
or giving the President that ability?
(d)
The War
against Terrorism
(i)
On Sept
18, 2001 Congress authorized
iv)
Hamdi
v. Rumsfeld
(1)
Facts
(a)
Hamdi
was seized in
(2)
∆
(a)
Government says he is an enemy combatant and this status entitles them to hold
him indefinitely without charges or proceedings. Habeas corpus was brought by
father.
(b)
Undersecretary Mobbs in his declaration says that that because al Qaeda and
Taliban are hostile forces against the
(3)
Issue
(a)
The
legality of the detention of a
(4)
Court
(a)
Held
that although Congress authorized the detention of combatants in the narrow
circumstances alleged here, due process demands that a citizen held in the
United States as an enemy combatant be given meaningful opportunity to contest
the factual basis for that detention before a neutral decision maker.
(b)
The
Mobbs declaration was not enough to hold.
(c)
Government is right that Congress has authorized Hamdi’s detention because it
happened by an act of congress, the Authorization of Use of Military Force
(AUMF)
(d)
Government can’t hold him indefinitely for purposes of interrogation, but can as
long as there are military operations going on to prevent him to return to the
battlefield.
(e)
We do
not have to decide this as a matter of law only, because it is not determined
just because someone resides in
(f)
Since
facts are to be brought in, the proper judicial process for enemy combatants is
not a full criminal trial like DC thinks nor is it what government thinks that
if is only if it is legally mandated detention then ok, it is that “a citizen
detainee seeking to challenge his classification as an enemy combatant must
receive notice of factual basis for his classification, and a fair opportunity
to rebut the governments factual assertions before a neutral decisionmaker.
(i)
This
will not apply to those people captured on the battlefield, only to those who
are held continuously.
(g)
Reject
government’s separation of powers principles.
(5)
Concurrence
(a)
Souter
and Ginsburg
(Dissenting in Part)
(i)
Do not
agree that the government has shown that that the AMUF authorizes his detention
so he should be released.
(ii)
It is
questionable that the Executive is acting in accordance with the laws of was it
claims as authority since they are claiming they are entitled to Geneva Protects
but have held him not in accordance with it.
(6)
Dissent
(a)
Scalia
(i)
If you
are a citizen of the
(ii)
Try
them for Treason, or congress can suspend Habeas Corpus.
(iii)
If
civil rights are to be curtailed during war, it must be done openly and
democratically as the constitution requires rather than by the court.
(b)
Thomas
(i)
Defer
to executive branch.
(7)
Discussion
(a)
Authorization to hold him is a part of going to war. You hold people when you go
to war.
(b)
Can you
hold him indefinitely?
(i)
No,
there has to be some due process.
(c)
Can
they review his detention?
(i)
He is
not entitled to a full blown judicial proceeding, but he does need due process.
v)
Note:
Unanswered Questions
(1)
Padilla
(a)
He
filed a habeas corpus petition, and they said he filed the petition in the wrong
venue and so did not reach the case on the merits.
(b)
In
Dissent Stevens said he is entitled to a hearing on the justification for
his detention.
(2)
(a)
Rasul
v. Bush
(i)
Held
that the federal court had habeas corpus jurisdiction to review the legality and
condition of the confinements of the detainees.
(3)
Military Tribunals
(a)
(4)
Torture
(a)
President Bush claimed he could not be restricted in his methods of
interrogation in a couple of memos. He then disavowed it when it came became
public.
(5)
The
relevance of Constitutional Law
(a)
Thomas
argument in Hamdi is that if Congress were to suspend the writ of habeas corpus
the President would still be under Constitutional obligations to release.
(b)
c)
Foreign
Affairs – Legislative Authority
i)
War
Powers Resolution
ii)
Note:
The War Powers Resolution
(1)
Constitutionality Issue
(a)
One
View: The War Powers Resolution is an unconstitutional infringement on the
powers of the President.
(b)
Another
View: This brings the constitutional balance that has been upset over the years,
and it allows congress to ensure that there is no undeclared war. If there is a
constructional defect, it is that the President can attack in far to many
situations without a declaration of war.
(c)
Either
way the SC is likely not to decide on this case and call it a political
question.
iii)
Note:
Congressional Control over Agreements with Foreign States
(1)
Treaties
(a)
A
treaty is held as the same regard as a statute. With regard to domestic law, a
later act of Congress can repeal a treaty, but this may violate international
law.
(b)
A
treaty made between the
(2)
Executive Agreements
(a)
Presidents have created executive agreements through the indirect assumption of
Art 1.10. This gives them the power to have agreements with other countries
without the senate or the house.
(b)
In
American Insurance v. Garamendi the court said that the “historical gloss”
talked about by frankfurter in
CONGRESSIONAL ENFORCEMENT OF 13-15A
Gives individual COA as opposed to asserting as defense
Complex remedy
-
VRA upheld
-
Congress can prescribe remedy for proven violations of 15A
Preventative or prophylactic remedies
City of
-
City’s proposed changes found to have discriminatory effect by AG under VRA
-
Ct rejected city’s argmt that Congress could not prohibit changes
-
Congress can prohibit actions it determines to be discriminatory
-
Broad reading - Ct went further – Congress has authority under enforcement
clause to interpret meaning of 15A
TWO APPROACHES
1. Nationalistic perspective
– Congress may independently interpret Const. even overturn SC
Katzenbach v. Morgan
-
VRA Sec4(e) – any person who completed 6th grade in
-
Precedent was Lassiter v. Northhampton Election Board, which upheld
const. of English literacy requirement for voting
-
Ct upheld 4(e) as proper exercise of Sec5 of 14A
o
This was remedy for discrimination
§
Congress could conclude it would empower Puerto Ricans and help eliminate
discrimination
o
Congress could find literacy test denied equal protection
§
Ct broadly interpreted Congress’ Sec5 pwrs
à
Congress can indep interpret Constitution
§
Sec5 similar grant of power to Congress as Necessary & Proper Clause
-
Harland DISSENT – concern about Congress diluting/negating Const. right
-
Brennan’s response to dissent – Congress can only enforce const. guarantees,
cannot restrict/abrogate/dilute
2. Federalist Perspective
– Congress may not use its Sec 5 powers to expand scope of rights or create new
rights
City of
-
BKGRD
o
Emplymt Div of OR v. Smith
§
OR law prohibited consumption of peyote
§
Native American challenged law as infringing on free exercise of religion
§
HELD – neutral laws of general applicability not unconstitutional
§
RATL – OR law neutral b/c not trying to interfere w/ religion and applied to
everyone
o
Congerss responded to Smith w/ FRFA
§
Required courts considering free exercise challenges to uphold const. only if
govt action necessary to achieve compelling purpose
-
FACTS – local authorities denied church bldg permit
o
Church sued under RFRA
o
City challenged unconstitutionality of RFRA
-
HELD [Kennedy] – Act unconstitutional
o
Impermissible b/c expanded scope of rights
o
Limitation not proportional or congruent as preventative or remedial measure
o
Under Sec5 Congress enforce, but cannot determine when is const violation
o
Ct says what the law is (Marbury)
§
Sounds like Cooper
o
**Congress is limited to preventative remedy violation of rights already
recognized by SC
-
DISSENT – revisit Smith opinion
-
CRITICISM
o
Debate involves:
§
Meaning of Const. text
§
Intent of 14A
§
Basic policy questions concerning separation of pwrs, federalism, individual
rights
o
o
11th Amendment – State Sovereignty
Chisolm v.
-
States passed 11A in response
Hans v.
Seminole Tribe v.
Subsequent cases – Court applied Boerne test and held invalid exercise of
Sec5 power
-
-
Kimel v.
-
In deciding whether a state can be sued under a federal statute, court must
decide whether the law is a valid exercise of Congress’ Sec5 powers
-
Board of Trustees v. Garrett
o
FACTS – nurse took leave for cancer treatment
o
ISSUES
§
Can state discriminate?
§
Is
o
HELD – private party cannot sue state govt for violating fed law
o
RATL – court applied Boerne test of congruence and proportionality
§
Rational basis review – must show state is making irratl decision
§
It is ratl for state to conserve scarce resources by hiring people able to use
existing facilities
§
Does not meet C&P test –
-
Nevada Department of HR v. Hibbs
o
HELD – upheld abrogation of state sover immune under FMLA
o
Applied heightened scrutiny test
§
Easier than congruence and proportionality test
THE COMMERCE POWER
Article 1, Section 8
Important questions to ask in this power
1.
What is commerce?
2.
What does “among the several states mean”?
3.
Does the 10A limit Congress?
Doctrine of implied powers – although fed govt may act only where it is
affirmatively authorized to do so by the Constitution, the authorization does
not have to be explicit
-
Federal government (esp Congress) may validly exercise power that is ancillary
to one of the powers explicitly listed in the Constitution, so long as this
ancillary power does not conflict with specific Constitutional prohibitions
-
implied powers is explicitly stated in Necessary and Proper Clause (art1, sec8)
McCulloch v.
-
FACTS – Second Bank of the
o
MD Act – anti-bank statute that imposed tax on all banks operating in MD and
were not chartered by the state
-
HELD – Bank charter was constitutional but tax was constitutionally invalid
-
RATL
o
Constitutionality of Bank came directly from the ppl, not from states qua states
§
States delegated powers to natl govt
o
Constitutional grant of pwr need not be explicit
§
Power to raise revenue
§
Necessary and proper clause
·
As long as means is rationally related to constitutionally-specified object,
means is also constitutional
§
Analogies to other implicit powers for constitutional grants of power
§
Separation of powers – courts shouldn’t review congressional act
o
Modern use - Courts will not strike down congressional action if means is not
prohibited by Constitution and rationally related to objectives that are w/n
constitutionally-enumerated powers
Gibbons v.
-
FACTS – NY legis gave exclusive steamboat rights to Fulton/Livingston, who
licensed to
o
Congress gave rights to Gibbons
-
HELD – fed law authorized Gibbons to operate ferry
o
NY monopoly was impermissible restriction of interstate
o
Commerce includes navigation
10A LIMITS ON COMMERCE POWER
Hammer v. Dagenhart
(Federal Child Labor Act)
-
HELD – act unconstitutional b/c controlled production
o
Court saying you’re trying to regulate sthg not in your power
o
It’s not a commerce statute, it’s moral legislation
-
Holmes DISSENT – it’s regulation of commerce
o
Motives objectives don’t matter
Wickard v. Filburn
(wheat farmer grows too much wheat)
-
FACTS - Farmer claimed extra wheat was for home consumption
o
Agri Adjustmt Act – set quota for wheat production
-
HELD – upheld federal law b/c cumulative effect of wheat on natl mkt
-
RATL – prodxn is commerce b/c substantial effect on IC
o
Did away w/ formal categories (direct, indirect effect)
EC Knight
– sugar refinery monopoly
-
FACTS - Sherman Act said no monopolies
-
HELD - Court said mfg not commerce
o
Sherman Act does not apply to this monopoly
§
This is limitation on commerce power
§
-
FACTS – TX train hauls overpriced, discriminated agst routes going out of state
-
HELD – court said intrastate favoritism was discrim agst IC
o
Close and substantial relation to IC
o
Direct effect
Chapman
-
FACTS – fed law prohibits transporting lottery tix interstate
-
HELD – upheld law
-
RATL – Congress can prohibit items from being in IC
o
State can protect its citizens by prohibiting lottery
Schecter Poultry
(sick chickens case)
-
FACTS – wage and work hour stds law
o
Schecter violated statute and challenged const.
-
HELD – unconstitutional b/c not sufficiently “direct” relationship to IC
Carter v. Carter Coal
(butinous collective bargaining agrmt)
-
HELD – overturned statute b/c indirect effect
National Labor RB v. Jones
(Natl Labor Rel Act allowed unions)
-
HELD – unconstitutional b/c steel business was part of stream of commerce and
labor relations w/n had direct effect on IC
US v. Darby
– prohibited shipment b/n interstate commerce of goods
Heat of Atlanta Motel v US
(hotel says no black ppl)
-
FACTS – hotel says CRA Title 2 is unconst
-
HELD – constitutional b/c affects IC not to allow black ppl to travel b/n states
and stay freely at hotels
Katzenbach v. Blung
(restaurant says no black ppl)
-
FACTS – similar to Heart of Atlanta
-
HELD - constitutional
-
HELD – statute constitutional
-
RULE/TEST – Congress can regulate commerce under:
o
Channels of interstate commerce
o
Instrumentalities of interstate commerce
o
Activities having a substantial relation to IC
-
If say substantial effect here, then Congress’ power would be limitless
-
HELD – suggests Commerce pwr only valid when economic activity
-
RATL
o
Congresl findings not enough to establish effect of conduct being regulated on
IC
o
Distinction b/n local and natl activities
-
Breyer and Souter DISSENT
o
critical of majority’s rejection of
Congress’ factual findings
o
Also critical of majority’s view that where an activity is basically
non-commercial its aggregate affects on commerce cannot suffice
CONGRESS’ POWERS
TAXING
-
Enumerated – Article 1, Section 8, Clause 1
-
Article 1, Section 2 – direct taxes must be apportioned among states
SPENDING
US v.
-
HELD – broad spending power for general welfare
-
Adopts Hamiltonian view (general welfare)
o
Compare Madisonian view that says only enumerated powers
Steward Machine
-
HELD – upheld const of fed unemployment compens sys created by SS Act
-
RULE – aff’d Congress’ expansive authority (tax and spend)
-
Incentive not coercion
-
HELD – statute constitutional
-
RULE – Four-part test of spending (very easy)
o
General welfare
o
Unambiguous act
o
Related to federal interest
o
Does not violate other constitutional provisions
IMPLIED LIMITS ON CONGRESS’ POWERS
Two views on 10A
-
Independent limit on legislative power
o
Reserves zone of activity to states
-
Reminder that Congress may legislate only if there is authority in Constitution
Why state power is important?
-
Lessens chance of federal tyranny
-
Enhances democratic rule by providing govt that is closer to ppl
-
Allows to be laboratories for new ideas
-
10A is not a limit on Congress’ treaty powers (diff b/n statute or treaty)
-
Treaty power is expressly delegated to Congress/President in Constitution
-
Art VI: treaties are supreme law of the land
-
NO limit
Gibbons v.
-
So long as Congress is acting w/n scope of its Commerce Clause power, law will
not be unconstitutional as violating 10A
10th Amendment history
-
19thc – reminder, not limit (Gibbons)
-
1900-37 – Protect state sovereignty (Hammer)
-
1937-1990s – reminder (US v. Darby et al)
o
Only one case violated 10A (Natl League)
-
1990s and beyond – resurrection of 10A as limit on Congress power (NY, Printz)
MODERN REVIVAL OF 10A
National League of Cities v. Usery
-
FACTS – Fed Labor Stds Act requires min wage to be paid to state and local
employees
-
HELD – application of act was unconstitutional
-
RATL - Congress violates 10A when it infers w/ traditional state and local govt
functions
-
This is a LIMIT
-
Note – overruled by Garcia (state does not need protection)
-
HELD – unconstitutional for Congress to
compel state legislature to adopt lawsor state agencies to adopt regs
-
Congress can bribe states
-
Congress can set min stds to state, local actions
-
RATL
o
10A
o
Undermines govt accountability
o
Rejected argmt that compelling govt interest can permit 10A violation
Printz
-
FACTS - Brady Handgun Violence Prevention Act – gun purchase req. bkgrd check
-
HELD – expands NY to state execs
-
FACTS fed law prohibits states from disclosing personal info
-
HELD – constitutional under CC b/c many states sold info for $
-
Distinction b/n prohibition on conduct and affirmative duty (NY,
Printz)
LIMITS ON STATE POWER
-
State possesses all power not delegated to fed govt or limited by Constitution
Preemption
-
Congress passed law using its lawful constitutional powers
-
Congress has not acted but state/local laws would place undue burden on IC
o
Dormant commerce clause – article 1, section 8
-
TYPES – ask what did Congress intend?
o
Express – Gibbons
o
Implied – congressional intent to preempt
§
Conflict – can’t satisfy both state & fed law
§
Field – infer Congress meant to preempt state/local
-
Under CC, Congress always has authority to preempt state/local
o
Congress may also consent state action that would otherwise violate CC
DORMANT COMMERCE CLAUSE
-
DCC is judicial intervention
-
TEST – state reg which affects IC must satisfy each of the following three
requirements in order to avoid violating DCC
1.
regulation must pursue a legitimate state end;
2.
regulation must be rationally related to that legit state end; AND
3.
regulatory burden imposed by state on IC must be outweighed by state’s interest
in enforcing its reg
-
Intentional discrimination disfavored
o
Promoting own state’s economic interests is not legit state end
-
Market participant exception – if state acts as mkt participant, it may favor
local over out-of-state interests
-
State taxation - may be found to unduly burden or discriminate agst IC and
violate DCC
-
Justification
o
Historical – framers intended to prevent state/local from interfering w/ IC
o
Econ – economy is better off
o
Pol – state/citizens don’t have representation in other states
-
Arguments against DCC
o
Framers could have included it but did not
o
Congress has authority to invalidate state laws unduly burdening IC not
judiciary
-
Two major problems
o
What is the source of court’s authority?
o
What are criteria for determining when state/local law improperly interferes w/
IC?
Gibbons
–
Cooley v. Bd of Wardens
– distinction b/n natl and local subject matter
-
Natl SM – invalidated under DCC
-
Local SM – event state laws are allowed
-
HELD – upheld PA law req ships to use local pilot or pay $
-
Local b/c diff among ports and fed law expressly allowed states to regulate
piloting
DiSanto v. PA
– distinction b/n direct and indirect effects
-
State law req state-issued license to sell tix for foreign travel
-
State argued purpose to prevent fraud
-
HELD – unconstitutional b/c direct effect on IC
è
These cases used rigid categories
o
Courts now use balancing approach
§
Weigh benefits of law agst burdens that it imposes on IC
-
HELD – law struck down b/c facially discrim
-
No public safety
C & A Carbone v. Clarkstown
(city ordinance req using particular waste station)
-
Facially neutral law but discrim effect on out-of staters
-
HELD – unconstitutional b/c city’s purpose to pay for station was inadeq purpose
o
There are other ways to pay for station such as taxes
-
O’Connor – not discriminatory but burden is too high
-
Souter – city hasn’t done anything wrong
-
Facially neutral but discriminatory effect
o
State imposed taxes on everyone but then returned $ to in-state dealers w/
subsidy from special fund
-
HELD – unconstitutional statute
o
Pure subsidy from general revenue imposes no burden on IC and would be
constitutional
§
Everyone could oppose, including in-state
o
Subsidy from special fund could not be effectively opposed by out-of-state (no
political clout)
CONTRACT CLAUSE
Article, section 10 – no state shall..pass any…law impairing the obligation of
Ks
-
Only applied to state/local interference
o
NOT federal govt (where COA under due process)
-
Applies only to interference w/ existing Ks
o
Does not limit regulation of future Ks
-
Public Ks – if state is trying to escape from its own financial obligations,
court will closely scrutinize this attempt
o
State’s attempt to “weasel” will be struck down unless the modification is
reasonable and necessary to support an important public purpose
-
Private Ks – but when state is re-writing Ks made by private parties, state
merely has to be acting reasonably (much easier to satisfy standard)
o
If state’s action is a generally applicable rule that has only the incidental
effect of impairing Ks, the K Clause does not apply at all
History
-
Framers intended to prevent states from protecting debtors
-
Then depression happened
-
Debtor relief laws went unchallenged
-
IMP – used to be one of most imp part of Const and lots of laws were struck
down, but Blaisdell got court out of business of striking down laws
Blaisdell
–
-
HELD – MN debtor relief law upheld b/c emergency measure of limited duration to
protect the vital interests of the community
-
Limits scope of K clause
-
Govt can interfere w/ existing Ks if it has a valid police purpose
-
Court is deferential to govt when private Ks are involved
-
3-part TEST – govt interference in private Ks
o
Substantial impairment of K relationship?
o
If so, does it serve a significant and legitimate public purpose?
o
Is it reasonably related to achieving goal?
-
Court is not deferential to govt when case involves state as a party to K
-
Heightened scrutiny TEST – impairment both reasonable & necessary to serve
admittedly important purposes claimed by state
Allied Structural Steel
(MN pension benefits)
-
Only case since 1934 where SC has declared unconst a state law interfered w/
private Ks
-
In the future, it is possible to resurrect K clause, using Allied as precedent
EMINENT DOMAIN
-
Govt authority to take private property when necessary for govt activities
-
5A requires 1) public use and 2) just compensation
-
Eminent domain pwr is implied, and 5A is limitation on pwr
ISSUES
1)
Is there a taking?
a.
Possessory taking – occupy property, take title
b.
Regulatory taking – leaves no reasonable econ viable use of property
2)
Is it property?
3)
Is the taking for public use?
a.
No, then govt must give back
b.
However, broad definition of public use so that almost any taking will meet the
requirement
i.
Must meet rational basis test
4)
Is just compensation paid?
a.
Measured in terms of loss to owner
b.
Gain to taker is irrelevant
PHYSICAL TAKING
-
HELD – public use defined as public benefit
-
Original meaning was use by public
-
Property redistributed to private property
Kelo
-
Economic development is public benefit
REGULATORY TAKINGS
TEST – for land use reg to avoid being a taking, it must satisfy two
requirements
1.
It must substantially advance legitimate state interests and
1.
Legit interests – broad
2.
Tight means-end fit (Nollan)
2.
It must not deny an owner economically viable use of his land
1.
Deprivation of all use (Lucas)
2.
The more drastic the reduction in value, the more likely a taking
Distinction b/n taking and regulation
-
Extent of intrusion
-
Nature of intrusion
-
Balancing
-
Legitimacy of state’s interest
Zoning regs generally do not req just compensation b/c burdens everyone and
benefits everyone
-
HELD – govt regulation was taking
-
While property may be regulated to a certain extent, if reg goes too far it will
be recognized as taking
-
Brandeis DISSENT – it’s a noxious use if you mine under the street, so govt
should be able to prohibit mining
Miller v. Schoene
(VA red cedar trees v. apple orchard)
-
FACTS – state ordered destruction of cedar trees to prevent spread of cedar rust
o
State acted to protect apple orchards
-
HELD – upheld state action, so no compensation
o
Govt was forced to choose b/n two properties
o
State govt doesn’t exceed const pwrs to decide to destroy one property to save
another, which it finds to be greater value to public
Penn Central Transportation Co. v. NYC
(historical landmark)
-
HELD – govt reg was NOT taking
-
P argued 1) airspace rights infringed and 2) diminished value
-
HELD – 1) can still build, 2) reasonable rate of return
-
TEST – regulatory taking
o
Economic importance of regulation on claimant
o
Extent to which regulation has interfered w/ distinct investment backed
expectations
o
Character of governmental action
-
Rehnquist DISSENT – owners prohibited from doing stuff and required to maintain
it
o
If NYC wants landmark, then let them pay for it
Keystone Bituminous Coal Assn v. DeBenedictis
(50% coal req’d kept in land)
-
Law had effect of preventing some mining
-
HELD – no taking b/c law served legit state interests & allowed econ viable
development of property
-
Similar facts to PA Coal but result is diff
Nollan v. CA Coastal Commission
(easement across beachfront property)
-
Permit for rebuilding conditioned on granting public easement
-
HELD [Scalia] – three options
o
Requirement of easement would be taking/physical occupation
o
If deny permit, condition must substantially advance legitimate state interest
and leave econ viable uses
o
If grant w/ condition, then condition must substantially advance legit state
interest
-
Brennan DISSENT –
o
Condition is related to legit concern
o
Limit case as saying can’t condition rebuilding
Lucas v.
-
Prohibition rendered property valueless
-
HELD – regulation is taking if deprives owner of ALL econ beneficial use and
requires just compensation
-
Footnote 7 – if 90% taking, it’s uncertain if requires just compensation
-
Blackmun DISSENT – apply ad hoc test all the time
o
Don’t worry – could be nuisance today but may change
-
Stevens DISSENT – this is arbitrary
Palazzolo v.
-
RULE – subsequent owner can challenge reg takings
-
HELD – remanded for Penn Central analysis
o
owner not deprived of all econ use of property b/c value of upland portions is
substantial
FREEDOM OF EXPRESSION
More 1A protection
à
you can say more stuff
History
1A was rxn against suppression of speech and of the press that existed in Eng.
Society
·
Prior restraint-licensing regime - until 1694,
·
Framers’ intent – 1A was meant to prohibit licensing of publication (like in
Eng) and to forbid punishment for seditious libel (criticize govt)
o
Seditious libel – the more true sthg was, the more dangerous it was considered
·
Before Bill of Rights adopted
o
Federalist argmt – Congress has no pwr to regulate FOS, so it doesn’t need to be
protected
·
Fight b/n Federalist and democratic Republicans
o
1798 – Congress adopted the Alien and Sedition Acts of 1798
§
Crime to criticize govt
§
Truth would be a good defense
o
Pres Adams (Federalists) used law against their rivals, the Republicans
o
In 1800, after his election Pres Jefferson pardoned those convicted under law
o
Alien and Sedition Act was repealed
o
SC never ruled on its constitutionality
·
Ever since then, 1A is broader than prior restraint
Why is Speech Protected? Justifications
·
Self-governance – people have to be able to speak about their govt
·
Controversial b/c saying it’s about political speech and that’s what we’re going
to protect
·
Marketplace of ideas/search for truth – good ideas will thrive, but bad ideas
die
·
Autonomy – people get satisfaction from saying what they think, expressing
individuality
·
Tolerance – purpose is to develop and demonstrate social capacity to control
feelings evoked by a host of social encounters
Content-Based Restrictions: Dangerous Ideas and Information
Definition - A content-based restriction
on speech is one in which the applicability of the law is triggered by the
substance or content of the message being conveyed.
Analysis:
-
Begin w/ presumption that content-based restriction on speech is suspect
o
Strength of presumption may diminish if less protected category of speech
-
Three different types of tests
o
Application of specialized/doctrinal
test created specially for that type of speech
§
Clear and present danger test – assess restrictions on speech that advocates
unlawful
o
Determination that speech is constitutionally
unprotected or
proscribable speech
o
Ad hoc balancing test
– Can restriction be defended on the ground that it is narrowly tailored to
achieve a compelling governmental interest?
Content-based restrictions are considered a most serious infringement of First
Amendment liberties, since the government is using the force of law to distort
public discourse by suppressing, through either prior restraint or subsequent
punishment, those messages perceived by the government to be somehow
objectionable.
Speech That “Causes” Unlawful Conduct
Clear and present danger (CPD) test is the original First Amendment (1A)
doctrine
-
Applies to advocacy of unlawful conduct, social protest, commentary on public
issues
-
Strict scrutiny – permits restrictions only when necessary to advance
substantial, overriding governmental interest and only when danger presented by
speech is such that govt has no other option but to punish speaker
-
Notes about modern test
o
Values freedom of expression over even very weighty govt interests
§
Need specific facts proving imminent danger to such an interest
§
Restriction only to prevent extremely serious evil and only if evil is imminent
§
Law must be narrowly drawn in least restrictive/intrusive manner
o
CPD test and any 1A protection is intensely fact driven—context is everything
§
What is said in any case must be filtered through facts of that case
Basic value questions of incitement
-
How should society balance its need for social order against its desire to
protect FOS?
-
When, if at all, may speech that advocates criminal activity or overthrow of
govt be stopped to promote order and security?
Clear and Present Danger Test
Schenck v.
-
FACTS – Ds distributed leaflets encouraging potential conscripts to resist the
draft
o
Act punished certain acts of hindrance against US during WWI
o
TC convicted
o
SC affirmed, not really considering their 1A defense valid
-
RULE – Can restrict “when words used in such circumstances and of such a nature
as to create a clear and present danger that they will bring about substantive
evils that Congress has a right to prevent”
o
“Character of every act depends upon circumstances in which it is done”
§
No 1A protection for falsely shouting fire in theatre and causing panic
o
Ct did not apply any clear and present danger stds to the facts before it
o
Ct simply assumed the circumstances warranted conviction and punishment
§
Apparently it was enough that leaflets may have had a bad tendency
Hand’s analysis of express incitement
-
Contrast Shaffer and
Schenk analyses
-
Hand focused on content of speech rather than intent of spkr or consequences of
speech
-
Dispositive factor – whether spkr employed express words of incitement
-
Criticisms
o
Underprotective of express incitement
o
Overprotective of “clever” inciter – spkr specifically intends to incite but is
clever enough to avoid use of such language
o
Overprotective of dangerous speaker
Risk Formula Approach
Dennis v.
-
FACTS – TC D convicted under Smith Act to create org that advocated unlawful
overthrow of
o
Act
-
HELD – (HAND test) - Gravity of evil to be discounted by improbability of its
occurrence to determine whether justifies invasion of free speech as nec to
avoid danger
o
Plurality opinion (has been treated as authoritative by SC)
o
Under modified CPD, the more substantial the potential evil is, the less likely
its realization must be for govt to restrict speech promoting that evil
(balancing test)
o
Vinson’s formula was more deferential to govt interests
-
RATL – If harm is so big, can restrict speech w/o balancing imminence &
probability
o
Violent overthrow of govtl and social institutions is a substantial evil
o
Any lack of immediacy was far outweighed by combo of subst. evil and perception
that illegal action would occur whenever time for action was deemed propitious
-
BKGRD – emerging Cold War and perceived threat posed by worldwide commy mvmt
-
Frankfurter CONCUR – deference to legislature
o
Congress has primary responsibility to adjust interests
§
We don’t have role in this
o
Congress already determined danger created by overthrow advocacy is justified
-
o
CPD is too protective of speech
o
“Verbal trap” of CPD would req.
appraisal of “imponderables”
o
CPD is useful to measure const. of prosecutions of discrete acts of protest
-
Black DISSENT – Ds not charged w/ saying/writing anything designed to overthrow
govt
-
Douglass DISSENT – need immediate injury to society that is likely
o
Communism is not CPD; US people don’t like commies
The Advocacy of Doctrine and Advocacy of Action Distinction
-
Kingsley Intl Pics Corp v. Regents of
o
Movies are w/n scope of 1A protection
o
RULE – 1A guarantees freedom to advocate ideas
-
Yates v.
o
RULE – govt may punish advocacy of unlawful action but many not punish advocacy
of doctrines, even if those doctrines, if carried out, would be illegal
o
Did not overrule Dennis, but distinguished it
o
Distinction – ppl must be urged to do
smthg, not just believe in smthg
-
Court still willing to uphold convictions under Smith Act
-
Scales v.
o
RULE – must have proof that individual actively affiliated w/ group, knowing of
its illegal objectives and w/ specific intent of furthering those goals
o
HELD – suff. evidence to make case for jury on issue of illegal party advocacy
Bond v. Floyd
–
-
Bond’s statmts were advocacy of ideas protected by 1A
-
FACTS – KKK leader convicted of violating state law that made it unlawful to
advocate “the duty, necessity or propriety of crime, sabotage, violence, or
unlawful methods of terrorism as a means of accomplishing industrial or
political reform”
o
TV news report was aired broad broadcasting speeches made by petitioner.
o
Conviction was upheld on appeal by the Supreme Court of Ohio
o
D made two speeches
§
“if Pres, Congress, SC, continues to suppress the white, Caucasian race, it’s
possible that there might have to be some revengence taken
§
He made racist comments about blacks and Jews
-
RULE/Test - Conviction for incitement is const. only if:
o
Imminent harm
o
Likelihood of producing illegal action
o
Intent to cause imminent illegality
-
HELD - SC reversed conviction b/c based on unconst. statute
o
Statute unconstitutionally intruded on FOS
o
Advocacy of unlawful conduct couldn’t be punished “except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to
incite or produce such action”
o
This is THE test on incitement.
o
This seems to be SC’s most speech protective formulation of incitement test
§
Tough test to apply b/c harm must basically happen
·
Otherwise can argue that not likely to occur b/c it didn’t happen
·
COUNTER – this is a weak argmt
o
Compare w/ earlier incitement tests
§
Earlier tests did not have intent reqmt
§
Earlier tests did not so clearly state reqmt for likelihood of imminent harm
o
Did not overrule Dennis; said it was following Dennis
§
But it was actually substantial expansion in protection of speech
§
Dennis
ct expressly denied reqmt for proof of imm. danger of likely harm
Hess v.
-
FACTS – Individual convicted of disorderly conduct
o
Said, “we’ll take the fucking street later,” after police cleared demonstration
from street
o
HELD – Speech was protected by 1A
o
RATL
§
At best, statement taken as advice to be moderate
§
At worst, was advocacy of illegal action at some indef. future time
§
Did not meet
NAACP v. Claiborne Hardware Co.
-
HELD – overturned judgment agst NAACP for boycott of allegedly racist
white-owned business
-
NAACP official’s speech: If we catch any of you going in any of them racist
stores, we’re gonna break your damn neck
-
HELD – speech was protected by 1A under
-
Mere advocacy of use of force/violence does not remove speech from 1A protection
Court redefined test for incitement in much more speech protective terms
-
Individual can only be convicted for incitement if it is proved threat there was
likelihood of imminent illegal conduct and if speech was directed at causing
imminent illegal conduct
-
Diff b/n
o
Prior cases were at times when there were strong pressures to suppress speech
EE p. 316 ???
Public and overt speech – apply Brandeis’ Whitney concurrence
Covert speech (part of organized, clandestine conspiracy) – apply Dennis
majority balancing test
Speech That “Threatens”
Bridges v.
-
FACTS – involved dispute b/n two unions
o
One union was unhappy w/ court’s judgment
o
Threat – telegram threatening strike to tie up
o
D found guilty of contempt of court for publishing copy of telegram he sent to
Sec of Labor criticizing judge’s decision and threatening a labor strike
-
HELD – publisher can be held in contempt for out-of-court statement only if CPD
to legal system
-
RULE – Under CPD, “min compulsion” of 1A req. “substantive evil must be
extremely serious & degree of imminence extremely high before utterances can be
punished”
-
RATL -
-
Frankfurter DISSENT – was intended to intimidate judge & shouldn’t be protected
o
Freedom of expression cannot nullify constitutional guarantee of impartial
trials
Watts v.
-
FACTS – During public rally, D said he wanted to get his hands on LBJ if they
ever made him carry a rifle
-
RULE – It was political hyperbole and not a threat.
-
RATL – D’s only offense was crude offensive method of stating pol. opposn to
Pres
Planned Parenthood v. American Coalition of Life Activists
(wanted posters of abortion docs)
-
FACTS – D established anti-abortion website (Nuremberg Files) w/ wanted posters
of abortion doctor names and addresses
o
-
RULE – While advocating violence is protected, threatening violence is not
-
DISSENT – Diff b/n true threat and protected expression is that true threat
warns of violence or other harm that spkr controls
o
Statement is not true threat just b/c instills fear in listener
o
To be threat, must send msg that spkrs or partners will engage in phys violence
o
Statements communicated directly to target are more likely to be threats than
those communicated as part of public protest
Speech That Provokes a Hostile Audience Reaction
Definition - Fighting words are defined as those words “which by their very
utterance inflict injury or tend to incite an immediate breach of the peace.”
Chaplinsky
-
Presumed to play little or no part in exposition of ideas
-
Fall outside protection of 1A umbrella
-
Application of fighting words doctrine depends largely on context in which
presumably harmful or provocative words are used
o
No words automatically fall into this category
o
Words not normally considered fighting words may warrant label if particularly
volatile circumstances and in a manner likely to cause a violent rxn
-
FW doctrine may be thought of as merely a specific application of CPD test
-
Test – use of offensive or provocative language will be punishable accdg to FW
only if words delivered in manner & under circumstances likely to cause immed &
serious harm
o
Typical harm – violent rxn stemming from face-to-face confrontation
-
Critics of FW – argue should fall under 1A umbrella, but is nonetheless
punishable where CPD reqmts met
Terminiello v.
-
FACTS – T convicted of disorderly conduct based on his speech
o
Full capacity auditorium (1800 ppl) w/ 1000 ppl outside
o
T condemned various pol & racial groups and goaded his opponents
§
“slimy scum,” “snakes,” and “bedbugs”
o
There were several disturbances
-
HELD – Overturned conviction b/c not shown that speech posed CPD of lawlessness
o
Jury instruction was not sufficiently protective of speech
-
RULE – Speech may not be restricted b/c ideas expressed offend audience and
cause inconvenience, annoyance or unrest
o
FOS not absolute, but nevertheless protected ag censorship/punishmt unless CPD
Cantwell v.
-
FACTS - Jehovah’s Witness prosecute for playing phonograph on street corner that
attacked Catholic religion
-
HELD – overturned conviction for disturbing peace b/c absence of proof of CPD
-
RULE - Govt may punish or prevent speech which incites hostile audience and
poses CPD of riot or disorder or poses such a threat to public safety, peace or
order
-
RATL - State may not unduly suppress free communication of views, religious or
otherwise, under guise of conserving desirable conditions
o
D’s activity aroused animosity but was not the personal abuse unprotected by 1A
o
D was attempting to persuade others of his apparently unpopular views
o
D avoided actual confrontation, therefore he did not breach the peace
Feiner v.
-
FACTS – individual convicted for speech he gave that criticized pres and local
pol officials for their inadequate record on civil rights
o
One man said he would stop D if police officer didn’t
o
Police asked spkr to leave
o
Spkr refused to leave, and police arrested him for disturbing the peace
-
RULE – Speech which engenders hostile rxn by audience may be punished
-
HELD – upheld conviction under CPD
o
Quoting Cantwell - govt may prevent or punish speech that poses CPD
-
Black DISSENT – appropriate police response should have been to control crowd
o
Only if controlling crowd was impossible and threat to breach of peace imminent
could police arrest spkr
o
Police has duty to protect public spkr, in preserving order
o
Here police did not even pretend to try to protect petitioner
“A far cry from
Feiner”
-
Later cases appeared to follow approach in Black’s
Feiner dissent
o
Did not overrule earlier cases using CPD
-
Edwards v.
o
FACTS – civil rights protestors staged march on
§
Significant hostile crowd gathered, but no violence or threats of violence
§
Spkrs arrested after they ignored police threat to disperse
o
HELD – overturned conviction
o
RATL – Distinguished Feiner b/c no threat of violence [on part of
petitioners] or on part of any member of crowd watching them
§
Police protection at scene was at all times sufficient to meet any foreseeable
possibility of disorder
-
Cox v.
o
FACTS – Individual convicted for giving speech objecting to racial segregation
of lunch counters and urging sit-in
§
Some audience found speech inflammatory
§
Speaker arrested a day after demonstration
o
HELD – overturned conviction
o
RATL – emphasized ability of police to control crowd
-
Gregory v. City of
o
FACTS – group of civil rights demonstrators were arrested when angry group
threatened marchers
§
Protestors were marching to mayor’s house
§
Opposing group reacted angrily, threatening demonstrators & threw rocks
o
HELD – overturned convictions for disturbing of the peace
o
RATL – law did not limit convictions to instances where there was threat of
imminent violence, police made all reasonable efforts to protect demonstrators
and police requested demonstration be stopped
-
Perhaps ct applied CPD test and concluded not sufficient evidence under
circumstances to justify conclusion of imminent threat to BOP
Chaplinsky v.
-
FACTS – Jehovah’s Witness was distributing JW lit on street corner on Sat PM and
gave speech denouncing other religions as “racket”
o
Epithets “God damned racketeer” and “damned Fascist” delivered in face-to-face
confrontation w/ police ofcr held to be fighting words
-
HELD – upheld Chaplinsky’s conviction for this speech
-
RULE – “fighting words” are category of speech unprotected by 1A
o
Suggests two situations where speech constitutes fighting words
§
Where it is likely to cause violent response agst spkr
§
Where it is insult likely to inflict immediate emotional harm
-
RATL – FOS is not absolute at all times and under all circumstances
o
Prevention and punishment of certain well-defined and narrowly limited classes
of speech has never been thought to raise any constitutional problem
§
Classes of speech that may be prohibited:
·
Lewd and obscene language
·
Profanity
·
Libel
·
Insulting or fighting words
o
Utterances are not essential to exposition of ideas; their social value is
slight and clearly outweighed by social interest in order and morality
Speech That Discloses Confidential Information
New York Times Co. v. United States; United States v. Washington Post Co.
(Pentagon papers)
-
FACTS – US sought to enjoin publication by NYT of a classified study (Pent.
papers)
-
HELD – court order stopping publication violated 1A (10 diff opinions)
o
Per curiam opinion – Govt failed to meet burden of rebutting heavy presumption
agst prior restraints
-
Black CONCUR – strongly condemned any prior restraint
o
Injunctions should have been vacated and cases dismissed
o
B/c would be impossible to find that Pres has inherent pwr to halt publication
of news by resorting to courts
-
o
Serious stuff but secrecy in govt is anti-democratic
-
Brennan CONCUR –
o
1A tolerates absolutely no prior judicial restraints of press based on
speculation that bad consequences may result
o
Only possible govt pwr to restrict publication by press of sensitive material
arises from govt’s inherent pwr to wage war successfully
o
Here Congress has not declared war, so govt cannot exercise this pwr
-
Stewart CONCUR – pres had pwr to seek injuction to protect natl security
o
Concluded that pres failed to justify need for prior restraint in this case
§
“I cannot say that disclosure of any of [documents involved] will surely result
in direct, immediate, and irreparable dg to our Nation or its ppl
-
White CONCUR – govt failed to meet burden of high std needed for prior restraint
o
Congress can allow prior restraint
o
Here no statutory authority for courts to impose such an injuction
-
o
Two scenarios
§
Govt has pwr under statutory grant to use tradtl crim law to protect US
§
If Congress has not made the activity a crime, Congress has specifically refused
to grant authority govt requests
o
Court does not have authority to grant requested relief
-
CJ Burger DISSENT – court did not have sufficient time to gather and analyze
facts
-
Harlan DISSENT – Jud review of exec branch in foreign affairs is narrowly
restricted
o
Ct should inquire if subject of dispute lies w/n pres’ foreign rel pwr
o
Ct may req. head of dept determined disclosure of subject matter would
irreparably impair natl security
-
Blackmun DISSENT – Case is too imp to be handled in rush, should be remanded
-
HELD – fed district ct enjoined mag from publishing how to build h-bomb
-
Distinguish Pentagon Papers case
o
Provision in Atomic Energy Act appeared to authorize injuction
o
Govt claimed preventing nuclear proliferation was justification sufficient to
warrant prior restraint
-
Note case was dismissed on appeal b/c others published same info in other places
Haig v. Agee
(passport revocation of former CIA agent)
-
FACTS – Former CIA agent threatened to identify CIA officers and agents and to
take measures to drive them out of countries where they were operating
-
HELD – upheld authority of Sec of State to revoke passport of former CIA agent
o
Rejected Agee’s claim that passport revocation was 1A violation
o
Declared purpose of Agee’s disclosures was to obstruct intelligence ops and
recruiting of personnel
-
RATL – emphasized ability of govt to regulate intl travel to further its foreign
policy obj
Content-Based Restrictions: “Low” Value Speech
False Statements of Fact
New York Times v. Sullivan
() [Brennan]
-
FACTS – full-page ad in NYT soliciting support for civil rights mvmt
o
Ad also described certain anti-civil rights actions said to have taken place in
o
In response, P-Sheriff of
o
§
Only defense to PF case of libel per se was proving publication was true
o
Ad did contain factual errors about events said to have occurred in
§
Ad said MLK arrested 7 times, but was really only four
§
Ad said 9 students were expelled for demonstration, but suspension was for a
different protest at lunch counters
§
Ad mistakenly said dining hall had been padlocked
o
TC – jury awarded P $500K in dgs
o
SC reversed
-
RULE – 1A limits ability of govt to impose tort liability
-
HELD – 1A prohibits public official from recovering dgs for defamatory falsehood
relating to his official conduct unless he proves statement was made with
“actual malice”
o
“Actual malice” means w/ knowledge that it was false or w/ reckless disregard of
whether it was false or not
o
Actual malice element must be established w/ “convincing clarity” (tough std)
o
SC rejected entrenched jud assmp that CL defamation was categorically exempt
from limits of 1A
o
Concise test requires:
§
P must be public official or running for public office
§
P must prove his or her case w/ clear and convincing evidence
§
P must prove falsity of statement
§
P must prove actual malice
·
D knew it was false or acted w/ reckless disregard of the truth
·
TOUGH standards
-
RATL - SC proclaimed profound natl commitment to principle that debate on public
issues should be uninhibited, robust and wide-open
o
Criticism of govt and govt officials was at core of protected speech
o
To achieve this public debate, participants must be free to risk publication of
factual error in their exploration for truth or consensus and in their quest for
democratic accountability
§
To conclude otherwise would have dangerous chilling effect on public discourse
§
Risk of transient error was far outweighed by risk of enforced silence
o
It may include vehement, caustic, and sometimes unpleasantly sharp attacks on
govt and public officials
o
Note expanding const. law of free speech
-
Critics maintain Ct went too far in protecting false statements and in not
providing adequate protection for political speech
Hustler Magazine v. Falwell
(parody of well-known televangelist and mom)
-
FACTS – Falwell sued for international infliction of emotional distress b/c he
knew he wouldn’t meet libel standards
-
HELD – recovery for tort of intentional infliction of emotional distress had to
NYT stds
-
RULE – public officials and public figures who are targets of parody cannot
recover for IIED unless there is proof of actual malice
-
RATL - Any other result would have meant defamation Ps could circumvent rigorous
NYT standard simply by suing for IED
o
Reflects strong 1A protection for speech about public officials and public
figures, even when it is caustic and offensive
Obscenity
Definition – Obscenity test from Miller v. California
1)
Whether avg person, applying contemporary community stds would find the work,
taken as a whole, appeals to the prurient interest;
a.
Stds of avg person residing w/n local (not natl) community
2)
Whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and
a.
Appeal to prurient interest connotes promotion of lasciviousness or lustful
desire
3)
Whether the work, taken as a whole, lacks serious literary, artistic, political,
or scientific value
a.
Measured by natl reasonable person std for which expert testimony is permissible
Note legal distinction is drawn b/n obscenity and pornography
-
Obscenity is completely unprotected by 1A
-
But pornography, i.e. sexually explicit speech that is not legally “obscene,” is
entitled to const. protection
-
HELD – distribution of child porn, i.e. sexually explicit motion pictures or
photos that are not legally obscene, but that depict actual children engaged in
sex acts, could be subject to criminal prosecution
-
RATL – no 1A protection for child porn b/c modest if not de minimus value of the
speech and substantial harm and abuse suffered by the actual kids photographed
o
State’s interest to protect kids is compelling
o
Child porn is intrinsically related to sexual abuse
§
Permanent record increases effect
§
Need to control distribution
o
Ads and sale of child porn is an economic incentive for conducting illegal
activity
o
Value of child porn is exceedingly modest if not de minimus
o
Decision is not incompatible w/ precedent on 1A
-
Distinguishes Miller’s obscenity test, child porn is really different
o
gets rid of Miller’s first two prongs
o
only must lack serious literary, scientific or artistic value
-
O’Connor CONCUR – Const. may permit ban on kid porn w/o assessing lit, pol, art
value
-
Brennan, Marshall CONCUR – say opposite of O’Connor
o
Application to serious literary, scientific, artistic or political material
would violate 1A
Ashcroft v. The Free Speech Coalition
( )
-
FACTS – Child Porn Prevention Act prohibits child porn and kid-like images
-
HELD – statute is unconst. b/c it is overbroad
o
Statute covers more than actual kids, includes computer-generated kids
o
Computer images are not child porn or obscene and do not fall outside 1A
-
RATL – Distinguishes Ferber, which was concerned about protecting actual
children
The Lewd, the Profane, and the Indecent
Use of indecent or vulgar language is protected, as long as no trigger of
limiting 1A principle
-
If material, taken as a whole, is obscene under Miller test
à
no protection
-
If indecent language is likely to cause public disturbance, then maybe FW
-
If merely offensive or deemed socially inappropriate, then full 1A protection
Cohen v.
-
FACTS – D convicted of disturbing the peace for wearing jacket w/ “Fuck the
Draft”
o
D was in county courthouse corridor w/ women and kids around
o
Some observers may have been offended, but no evidence of any potential fight
o
SC reversed
-
HELD – state is not empowered “to cleanse public debate to the point where it is
grammatically palatable to the most squeamish among us”
o
“fuck” may not be excised from the lexicon on the theory that it is “inherently
likely to cause violent reaction”
o
Not obscene
o
Not fighting words b/c not directed at anyone
o
It’s protected speech b/c we don’t want to get in business of saying you can
express idea but can’t use particular words
-
Blackmun, Black DISSENT – It’s conduct and not speech
o
Seems like fighting words, so should be proscribed as such
Ashcroft v. American Civil Liberties
-
FACTS – Child Online Protection Act makes it a crime to knowingly post, for
commercial purposes of WWW content that is harmful to minors
o
§
Fed crime to transmit obscene or indecent material over Internet in manner
likely to be accessible to a minor
-
HELD – COPA unconstitutional
-
RATL – Ct says you should use filtering software instead, so that it doesn’t
impose restrictions on adults’ access to websites
o
Can req. ppl to use credit card, verify age or other reasonable method
-
Breyer DISSENT – “Act, properly interpreted, imposes burden on protected speech
that is no more than modest”
o
Filtering software isn’t good b/c it will filter out protected content
o
No way to require people to use filtering software
o
Not least restrictive; not a means at all
???
Pornography, i.e., communicative material that is sexually explicit but not
legally obscene, is speech w/n meaning and protections of 1A
-
FACTS - Statute made cross burning w/ intent to intimidate a felony
o
Govt argued cross burning has a negative meaning
-
HELD – upheld statute banning cross burning w/ intent to intimidate, but struck
down statute’s prima-facie-evidence provision
-
not all cross burning is bad
-
RULE – cross burning is not prima facie evidence of intent to intimidate
-
RATL – there are situations where ppl burn cross and are not trying to
intimidate
-
Thomas DISSENT – Flag burning is conduct, not expression, so should not be
protected
o
Conduct is meant to intimidate
Content-Neutral Restrictions: Limitations on the Means of Communication and the
Problem of Content-Neutrality
Time, Place and Manner (TPM) Test – Govt regulates speech indirectly by imposing
limitations that do not pertain to content of speech, but affect circumstances
under which expressive activity may occur
-
TPM restrictions are constitutional if they are:
o
Justified w/o reference to content of the regulated speech
o
Narrowly tailored to serve significant governmental interest AND
o
Leave open ample alternative channels for communication of the info
-
Look out for (potential problems)
o
Content
§
Inclusion of content-based trigger, i.e., 100ft ban on distrib of campaign lit
§
Granting of excessive discretion to administrators
o
Fact-driven considerations of means/ends analysis (mid-level scrutiny)
§
Nature of speech activity being regulated;
§
Perceived significance of governmental interest;
§
Scope of restriction;
§
Availability of effective, but less restrictive alternatives; AND
§
Court’s judgment as to actual effectiveness of restriction in advancing
proffered interest
General Principles
Schneider v. State
-
Ordinance banned distributing leaflets in street
-
Govtl interest is to prevent littering
-
HELD - invalid – nothing w/ leaflets
-
RATL - not least restrictive – could punish ppl who litter
Martin v. City of
-
Ordinance prohibited person from ringing door bell to distribute leaflets
-
RULE – prohibiting door-to-door solicitation is unconst
o
Can only punish if resident previously said no solicitation
Kovacs v. Cooper
-
Ordinance prohibited using sound truck/amplification device
-
HELD – ok to have limitations on volume b/c ppl want calm/tranq in house
-
Black DISSENT – should be able to use any instrument to transmit ideas
o
Doesn’t like blanket prohibition
o
Maybe can be TPM restriction
Metromedia v.
-
Ordinance banning billboards
-
HELD – struck down b/c important form of communication
-
RATL – no proof that ads are bad and interfere w/ valid govt interest in traffic
safety
o
Failed to show interest in aesthetic is sufficiently substantial in commercial
and industrial areas
City of
-
Ordinance prohibiting homeowners from displaying signs on their property
-
Purpose – minimize visual clutter
-
Sign at issue – say no to Persian Gulf War, Call Congress now
-
HELD – unconst b/c easiest way for ppl to express themselves
Generally, content-neutral restrictions are subject to less scrutiny but can be
unconstitutional
NAACP v.
-
-
HELD – does not apply to NAACP
-
RATL – disclosure of affiliation can constitute restraint on freedom of assn
o
Privacy may be indispensible to preservation of FOA esp where group espouses
dissident beliefs
Bartnicki v. Vopper
[Stevens]
-
FACTS – B working w/ PA Ed Assn and helped local teachers union negotiate K w/
school boards
o
Cell phone was taped illegally, passed on to radio station and broadcast convo
-
HELD – no liability for press’ publication in invasion of privacy when info
obtained from private source
-
RATL – allowing liability would violate 1A
o
Press protected b/c not involved in interception
o
Tape concerned matter of public importance
-
Breyer, O’Connor CONCUR – narrow holding
o
Radio broadcasters acted lawfully
o
Info involved matter of unusual public concern, namely threat of potential plays
harm to others
-
Rehnquist DISSENT – chilling effect on speech
Speech on Public Property: The Public Forum
Distinction b/n private and public property
-
Private property - Speech is protected to fullest extent called for by approp 1A
test
-
Public property – level of 1A protection depends on how particular property is
classified
o
Classifications: public forum, designated public forum, or nonpublic forum
o
Public fora and designated for a - fullest 1A protection
o
Nonpublic forum – substantially diluted 1A protections
Definition – traditional public forum is public facility that has, by long
tradition, been dedicated to “the free xchg of ideas” (Cornelius v. NAACP
Legal Defense & Educ. Fund)
-
Includes streets, sidewalks and parks (Hague v. CIO)
The Public Forum: States and Parks
Commonwealth v.
-
FACTS – Ordinance prohibited “any public address” on publicly owned property
“except in accord w/ permit from mayor”
-
HELD – Upheld ordinance
o
Holmes (MASC) – govt can control use of its property
o
SC aff’d MASC – govt can restrict use of its property (broad pwr)
o
Ct refused to recognize any 1A right to use govt property for speech purposes
Hague v. CIO
[Owen Roberts]
-
FACTS – mayor attempted to prevent union (CIO) to organize in his city
o
Ordinance prohibited all public mtgs in streets and other public places w/o
permit from the city
-
HELD (plurality) – there was a right to use govt property for speech purposes
o
“Such use of the streets and public places has, from ancient times, been a part
of the privileges, immunities, rights and liberties of citizens.”
Schneider v. State
-
HELD – city ordinance prohibiting distrivution of leaflets on public property
unconst
-
Imp b/ established that a city must allow speech on its property even if doing
so will impose costs on the city
-
Significant b/c Court expressly rejected city’s contention that it could
restrict distribution of leaflets b/c other places were available for speech
iv. Note; Regulating the Public Forum
-
Near courthouse: can't regulate the sidewalk surrounding Supreme Court. US
v. Grace.
o
solid walls?
-
Near school: can regulate near school (if loud, noisy, disturbing) Graynard v.
o
why more protection than govt building?
-
Picketing near the home:
o
Typically it is a public street and you should be able to picket
o
Court also wants to accord homeowners some privacy
-
get a little more protection than govt buildings
o
Frsiby v. Shultz; court upheld the ordinance that prevented picketing, you can
continue protesting here, just not the guys house (suggests general picket in
neighborhood would be ok)
-
Noise in a park:
o
park across from the whitehouse (small park); don't want people sleeping in this
park. Ward v. Rock
-
constitutional restriction (maintain parks, weird case, already allowed to have
tents, just can't sleep)
-
Abortion Demonstrations:
o
Madson v. Women's Health Center, Inc.
o
Schenck v. Pro-Choice Network of W.NY
(1997) - upholding fixed buffer zones as appropriate means of ensuring entry;
invalidtating "floating buffer zones"; upheld "cease and desist" provision that
limits the exception for sidwalk "counselors".
o
Hill v.
Symbolic Conduct
-
Ct “assumed” that burning draft card on steps of courthouse as protest ag draft
was speech w/n meaning of 1A
-
Ct suggested that not all expressive activity will be treated as speech
-
RULE - Special test for symbolic speech – govt reg is suff. justified if:
o
It is w/n const. pwr of govt
o
It furthers imp or substantial govtl interest
o
If govtl interest is unrelated to suppression of free expression
o
If incidental restriction on alleged 1A freedoms is no greater than is essential
to furtherance of that interest
-
HELD – applying test, 1A did not prevent govt punishing D for burning his draft
card
o
Reg designed to advance imp govt interests in preserving integrity of draft
§
Reg not designed to punish draft protestors for msg they conveyed
o
Test for symbolic speech – looks like std TPM test
§
Both apply mid-level scrutiny if govtl reg is not directed at content
§
Neither test is used if reg is content-based
o
Punishment premised on the manner in which he conveyed msg, not on msg
o
Symbolic speech is not a lesser protected form of speech
iv. Note:
Draft Card Burning and the 1st Amendment
-
Stromberg v.
o
invalidated a statute prohibiting any person to display red flag in any public
place. (Was construed to prohibit peaceful opposition to govt).
-
Tinker
v.
o
weraing of an arm band for purpose of expression is akin to "pure speech"
o
could probably have prohibited all arm bands, but couldn't single out expressive
meanings.
-
Schacht v. US
(okay to wear military uniform)
o
reversed conviction of one who participated in skit demonstarting oppposition to
Vietman (using military uniform). Standing alone statute is invalid, but
in light of other statute permitting theatrical produciton is okay.
-
Wisconsin v. Mitchell
(racially motivated assault is not expressive conduct)
-
substantial incidental burdens raise constitutional issues
Other Means of Expression: Association
Freedom of association – protects freedom of individuals to gather in small
groups or to unite in large orgs in order to engage in activities protected by
1A
-
Activities such as speech, assembly, petition for redress of grievances,
exercise of relig
-
Not explicitly mentioned; Implicit in textual freedoms protected by 1A
o
Exercise of freedoms presumes availability of opportunities for dialogue and
united action, w/o which expressly provided rights would be meaningless
-
Right of assn assures individuals freedom to choose w/ whom and for what causes
they will gather to exercise their 1A freedoms
-
Potential infringements on right of expressive assn may include such govt action
as :
o
Making membership in a particular organization a crime
o
Imposing special hardships on those who join a disfavored group
o
Forcing disclosure of otherwise secret membership lists
o
Interfering w/ internal ops of an organization
o
Creating barriers to an org’s participation in political process
-
FOA is not absolute; it is deemed fundamental
-
Ad hoc balancing test - infringement on FOA may only “be justified by regs
adopted to serve compelling state interests, unrelated to suppression of ideas,
that cannot be achieved through means significantly less restrictive of assnl
freedoms” (Roberts)
o
Latter phrase sometimes substituted w/ least restrictive means & narrowly
tailored
-
Standard of review is strict scrutiny
Roberts v.
-
FACTS – Jaycees challenged MN Human Rights Act
o
Act prohibited priv discrim based on characteristics such as race and sex
o
Jaycees is natl org of young men b/n ages 18 and 35
o
Jaycees claimed FOA protected their right to exclude women and to be a place
where men associated w/ each other
-
RULE/Test - Infringements on FOA may be justified by regs adopted to serve
compelling state interests, unrelated to suppression of ideas, that cannot be
achieved through means significantly less restrictive of associational freedoms
o
FOA is fundamental right, but not absolute
o
Compelling interest in stopping discrim justifies interfering w/ such assn
freedom
o
Ct indicated FOA would protect right to discriminate only if:
§
It is intimate association OR
§
Where discrimination is integral to express activity
-
HELD – MN law did not violate 1A right to assn
o
Concluded state’s goal of prohibiting discrimination was unrelated to
suppression of any msg and plainly serves compelling state interests of the
highest order
o
No evidence req inclusion of women would undermine its expressive activities
o
Jaycees obviously was too large to be considered “intimate assn”
Boy Scouts of
-
FACTS – Boy Scouts revoked Dale’s scout master
o
Dale was homosexual scout master
o
NJ law prohibited discrim on sexual orientation
-
ISSUE – whether Boy Scouts’ desire to exclude gays fit w/n either of Jaycees
exceptions HELD – NJ law infringed on Boy Scouts FOA
o
Not intimate association
o
BS argmt – had expressive msg that was antigay and forcing them to include
homosexuals undermined this communicative goal
-
RULE – During litigation, a group can define its own expressive message
o
Failure to clearly state such communicative goal in advance is not determinative
o
FOA protects an assn’s right to discriminate
-
May be read as defending freedom of association
-
Critics argue Court has opened the door to discrimination
-
Stevens DISSENT -
THREE STANDARDS OF REVIEW
When court reviews the constitutionality of government action, it is likely to
be choosing from among one of these three standards of review:
1)
Mere rationality
– easiest to satisfy
a)
legitimate state objective – very broad
b)
rational relation – minimally rational relation b/n means chosen by govt and
state objective
i)
easy to satisfy (
ii)
only if govt has acted in completely arbitrary and irrational way will this
rational link b/n means and end not be found
-
Burden of persuasion – individual who is attacking govt action will generally
bear burden of persuading court that action is unconstitutional
-
Outcome - govt action will almost always be upheld
-
Used in DCC (but second test is state’s interest must outweigh any
burden/discrim on/agst IC), K Clause
2)
Middle-level review
a)
Important objective – halfway b/n legit and compelling
b)
Substantially related means – halfway b/n rationally related and necessary
-
Burden of persuasion – uncertain, but usu placed on govt
-
Outcome – 50-50 chance govt action will be struck down
-
Used in
o
K Clause
o
Freedom of expression/Content-neutral
3)
Strict scrutiny
a)
Compelling objective – objective pursued by govt must be compelling
b)
Necessary means – means chosen by govt must be necessary to achieve that
compelling end
i)
No less restrictive alternatives – reqmt that means be “necessary” means that
there must not be any less restrictive means that would accomplish govt’s
objective just as well
-
Burden of persuasion – govt body whose act is being attacked has burden of
persuading court that its action is constitutional
-
Outcome – govt action will almost always be struck down
-
Used in
o
Freedom of expression
§
Content-based – court usually applies SS and will strike down
·
Only allowed if necessary to achieve compelling purpose (rarely found to be
satisfied in 1A)
§
Right of free association
FREEDOM OF EXPRESSION
Content-based action
-
Unprotected: 1) obscenity, 2) fraudulent misrepresentation, 3) defamation, 4)
advocacy of imminent lawless behavior and 5) fighting words
-
Protected – speech not falling into the unprotected categories
o
Strong presumption – content-based restrictions are unconstitutional
o
Strict scrutiny – 1) serves compelling govtl objective, 2) is necessary, i.e.,
drawn as narrowly as possible to achieve that objective
Content-neutral regs (easier test to satisfy, usu. Upheld)
-
3-part test
o
Significant govtl interest
o
Narrowly tailored to serve that govtl interest
o
State must leave open alternative channels for communicating the info
Advocacy of illegal conduct
-
Advocacy must be intended to incite or produce imminent lawless action AND
-
Advocacy must in fact be likely to incite or produce that imminent lawless
action
Time, place and manner regs
-
Three-part test
o
Content-neutral
o
Narrowly tailored to serve significant govtl interest
o
Must leave open alternative channels for communicating info
-
Fighting words may be banned or punished
o
Words likely to make person to whom they are addressed commit an act of
violence, probably agst speaker
o
Limits – FW is tightly limited
§
Police must control angry crowd instead of arresting speaker, if they have
physical ability to do so
-
Offensive language – protected
Public forum speech is harder to regulate
-
Content-based – strict scrutiny
-
Neutral TMP – if content-neutral, then public forum or not makes difference
o
Non-public forum
– reg must be rationally related to some legit govtl objective, as long as
equally effective alternative channels are available
o
Public forum
– reg must be narrowly drawn to achieve significant govtl interest (roughly
intermediate-level review)
§
Still necessary (but not sufficient) that govt leaves alternative channels
available
-
What are public forums – streets, sidewalks, parks, probably places public
government meeting occurs
Access to private property – generally no 1A
Defamation – limit on recovery of dgs
when P is public official or public figure
-
Requires actual malice
Obscenity – unprotected
-
Prurient interest
-
Patently offensive
-
Lacks value
Symbolic expression (O’Brien)
-
Conduct combining speech and non-speech elements could be regulated if :
o
Regulation was w/n constitutional power of govt
o
It furthered an important or substantial govtl interest
o
That interest was unrelated to suppression of free expression AND
o
Incidental restriction on 1A freedoms was no greater than is essential to the
furtherance of govtl interest
Freedom of association – mere membership may not be made illegal
-
Group is actively engaged in unlawful activity or incites others to imminent
lawless actions
-
Individual knows of group’s illegal activity and specifically intends to further
group’s illegal goals