Memorandum

1. SC AUTHORITY & JUDICIAL POWER

1. Marbury Principal: it is the SC, not Congress, which has the authority and duty to declare a congressional statute unconstitutional if the Court thinks it violates the Constitution
2. SC review of state court decisions: SC can review state court decisions – only to the extent that the decisions were decided based on federal law
3. Federal judicial power: ARTICLE III, SECTION 2 – JUSTICIABILTY

1. Standing – Lujan test

1. Injury in fact (concrete/imminent)
2. Causation (link between D conduct and injury)
3. Redressability (Courts has ability to provide relief)

1. Moot – Laidlaw

1. Capable of repetition and evading review

1. Ripe – no case available

1. Too soon to tell, hasn’t developed yet

1. Political Question – Baker v. Carr

1. Is it in the text of the C that this issue belongs to another branch
2. Is there an action that the ct. can take to “redress” the issue
3. Impossible of resolution w/out offending separation of powers
4. Potential for embarrassment – would any branch reject SC for decision?

1. CONGRESS’ LIMIT ON SC – JUDICIAL POWER

1. Congress’ power to decide: Congress has general power to decide what types of cases the SC may hear, as long as it doesn’t expand SC jurisdiction beyond the federal judicial power

1. Ex Parte McCardle: Newspaper writer was arrested under Reconstruction Act (enacted during abolishment of slavery) but Congress appealed the act right before trial so SC couldn’t take case – no standing w/out act.
2. RULE: Congress can limit by repealing act – thereby limiting SC power to review

1. LIMITS ON STATE POWER

1. Dormant Commerce Clause (Judicial Limit)

1. Generally: Mere existence of fed. Commerce power restricts states from discrimination against, or unduly burdening, interstate commerce.  The restriction = DCC

• ISSUE SPOTTER → State Isolationism – preference for your state, state citizens, state business over other states -- NO CONGRESSIONAL ACT IN PLAY

1. THREE PART TEST: State regulation which affects interstate commerce must satisfy each of the following three requirements in order to avoid violating DCC:

1. Regulation has legitimate state end

1. State argue interest in protecting health, safety, welfare

1. Regulation  is rationally related to interest asserted
2. Regulatory burden on interstate commerce outweighed by the state’s interest in enforcing regulation

1. Summary:

1. Rationality Test – because regulation must be rationally related to fulfilling a legitimate state end
2. Balancing Test – (separate) benefits to the state from the regulation must outweigh the burdens on interstate commerce

1. Facially discriminatory:(Intentional discrimination) promoting own resident’s economic/environmental interests is not a legitimate state interest

1. Philly v NJ – regulation limiting amount of trash coming into NJ borders.  Law states not allowed from out-of-staters – Struck for being facially discriminatory

1. Burden in disguise: Health, Safety, Welfare objectives cannot be used as a cover/illusion of burden on interstate commerce – must be “true”

1. Kassel v. Freightways – Iowa passed tractor truck law prohibiting them passing through state.  However, they allowed citizens of Iowa ONLY to obtain permit to drive trucks in state – not citizen, can’t get permit.  State had good argument but illusory when making exceptions for own state citizens

1. Proof of health concern: State has burden, can’t just assert that there is one

1. Granholm – NY & Michigan passed laws prohibiting alcohol from being imported from other states (keep minors safe/goal)

1. Scarce natural resources: Laws that prevent these from moving out of state will usually be struck UNLESS can show no other less-discriminatory alternatives available.

1. EXCEPTION → MARKET PARTICIPANT EXCEPTION

• Step one: Is state acting as a “business”? Market participant & not regulator?

• Yes, than DCC does not apply & state can favor own citizens
• If state sponsors a program that brings a business into the market – than okay.

1. White v. MA Construction Council – Mayor allowed to sponsor program that is trying to better the area by providing jobs.
2. Why? → state’s as business can sell/buy from who they want/ business relations are allowed to be w/ who they want

• Step two: State can lose the market participant if actions regulate the other state (including officials)

• Banning something/someone = acting as regulator again

1. Wunnicke – sale & process of timber (must be processed in state).  Could sell timber to citizens first as participant however the minute they interfered w/ people out of state/country by requiring the timber to be processed in state – interfered w/ interstate commerce.
2. Bounty Hunter - upheld – primary interest was to keep junk cars out of state (business not regulation)
3. United Haulers – Requiring trash requirement (county) is regulation however not per se unconstitutional when everyone is treated the same – no burden imposed on out-of-staters than will be upheld (permit required by everyone) & traditional state function

1. CONGRESSIONAL ACTION: PREEMPTION

1. STATE PRIVILEGES & IMMUNITIES

1. ARTICLE IV – State P&I Clause

1. Even if pass DCC, still subject to P&I clause

• ISSUE SPOTTER: P&I deals more w/ people and DCC is dealing more w/ “goods” and channels of commerce

1. Standard: 

1. Prevents states from discriminating against non-residents. Only dealing w/ rights that are fundamental

1. What rights are fundamental? (commerce)

1. Fundamental to individual
2. Fundamental to interstate harmony

• Right to be employed – Hicklin
• Right to practice profession – VA
• Right to engage in business

1. What rights aren’t fundamental?

• Hunting license – Baldwin
• Admission to university

1. United Building – 40% employees’ contractors must be from Camden.  Goal is to allow jobs to prosper in a city that is poor.
2. In order to show impact of fundamental right – need evidence of # of applicants, # of people who been denied out of state, # of people employed from out of state.

EXAM ANALYSIS FOR INTER-STATE P&I CLAUSE:

1. Is the State imposing unreasonable burden on a citizen of another state?
2. IF YES, then is individual barred from engaging in a fundamental right?

1. Protected: employment, practice profession, engage in business, medical services
2. Not Protected: Obtaining hunting license, Admission to university

1. IF YES, is it also fundamental to promotion of interstate harmony?

1. Look to commerce clause – does law have a substantial effect on intrastate commerce? - Burden travel? Economic?

1. IF YES, than does State have SUBSTANTIAL REASON for the burden?

1. IF NO – NOT VALID
2. IF YES – VALID

1. FEDERAL/STATE RELATIONS – CONGRESS POWER TO ENFORCE RECONSTRUCTION AMENDMENTS

• 14th Amendment = Due Process, EPC, Fed. Privileges & Immunities

1. State Action – 14th Amendment

1. Congress & Court (enforcers) can only enforce 14th amendment when discrimination is by state action, not by private individuals or private businesses – The Civil Rights Cases
2. Judicial decision is state action.  SC cannot enforce any racially discriminatory law/covenant when it goes through the state – Shelly v. Kramer

1. Rule: When issue must pass through state machinery then it becomes state action

1. State inaction does not constitute state action for purposes of discrimination

1. Deshaney: boy who was beaten to death (child services didn’t help) court held that the father did it & therefore can’t hold state liable

1. Federal P&I

1. National rights only – protects against rights of national citizenship

1. Protected: right to travel from state to state, right to vote in national elections
2. Right to Change State of Residence: clause = most relevant where a state treats newly arrived residents less favorably than those who have resided in-state for a longer time: violates right to travel

1. Saenz v. Roe – CA gave new resident lower welfare payments than ones who have been residents longer, this is a violation of the “right to travel”
2. State cannot be selective as to who they want to be citizens of their state.

STRICT SCRUTINY: to state law that interferes w/ rights of national citizenship – limiting one’s ability to move for fear of losing fundamental right

1. Due Process

1. Procedural Right:

• Requirement that the state act with adequate or fair procedures when it deprives someone of “life, liberty, property”

1. Requirements:

1. Notice, pre-term hearing, ability to appeal/respond (need all 3)

1. Property & Liberty – Loudermill: hired, lied on app about being convicted on felony. Work sent letter firing him & gave no way to appeal. Felons were per se fired, so not a violation

1. What process is due? (Adequate?)

1. Matthew’s Balancing Test

1. Degree of potential deprivation – what private interest will be effected?
2. Fairness/Dignity – Chance of erroneous mistake
3. State interest – in efficiency, too much work that they can’t get anything else done?

1. Mathews v. Eldridge – receiving disability benefits – got notice they were being terminated. Arguing not adequate procedure.
2. Hamdi – Does test change because of war circumstances? Arguing that government violated by not giving him access to fair trial/attorney. Gov argues that they have right to hold people during “war time” no authorization needed by Congress. Due process was denied – violation of due process. (deprived interest by official; continuous deprivation of liberty – no attorney, no trial; state’s interest is already being met).

1. Substantive Due Process: 

• Does legislature unduly interfere with a fundamental right? Usually seen as life, liberty, property.  However most fall under liberty.

1. Economic:

1. “Lochner Era” - Contracts

• Dealing w/ strong preference for right to K when compared to the State’s ability to police power
• STATE NEEDS STRONG CAUSAL LINK if interfering with that right
• State statutes can’t eliminate/interfere business (K)
• Can’t limit liberty interest of parents upbringing of their children

1. Pierce v. Society of Sisters – OR has statute that makes sure children 8-16 are going to school that way everyone educated.  Catholic school v. parent.
2. Lochner v. NY – statute interferes with K right between employee/employer – concerning the # of hours of labor in bakery.

1. West Coast Economic rights - shift in view

• Ct. acknowledging unequal bargain of K – no “real” freedom given to woman/children.
• Legislature which does not interfere w/ fund rights will not be closely scrutinized by courts
• If any rational basis that leg. might have for concluding that the leg. would further permissible objectives, it will be sustained – different from Lochner
• Law can’t be arbitrary/ irrational
• BUT law will be presumed C & the burden of proof = on the person challenging rights

USSC: found that these WERE interests that were violated

• Property: 10 year renewable K, termination sale on home, freedom from grossly excessive punitive damage, term of welfare
• Liberty: civil commitment (mental institution), termination of parental rights, termination/revocation of parole

1. ZONES OF PRIVACY: PERSONAL RIGHTS PROTECTED

1. Right to privacy in marriage – Griswold (procedural)

1. KEY – that criminal sanction attached

1. Right to receive contraception/give it – not always about marriage but about one’s right to seek birth control if they want it.
2. Right to marry

1. Right to education

1. Right to work/K
2. Right to educate your children/ what you study

1. Right to abortion – Roe, Casey, Carhart

1. Roe – woman right out of law school – state law prohibits all abortions except where necessary to save the mom (notice issue). Substantive – privacy of family; Personal Right – personal choice of abortion – effects “family zone” of privacy – statute struck – too broad in distinguishing terms & vague to provide notice

• TEST: balancing test – weighing woman’s interest vs. states.  

• 1st trimester – (woman interest is greater) state cannot regulate left up to doctor/mother
• 2nd trimester – maternal health – state must come up w/ nexus then balance
• 3rd trimester – state promotes its interest by prohibiting abortion unless for the saving of mother life (state>mother)  - doctor/mother must argue now.

• Protection of maternal health where necessary
• STRICT SCRUTINY – heightened burden for state to show strong nexus of protecting state interest over mother’s rights.

1. Casey (circumstance) – woman wants to get abortion must comply with statute in order to do so.  STATES CAN’T PROHIBIT – TRYING TO REGULATE

• TEST: Undue burden – ALL statutes = constitutional unless they are proven that create an undue burden. Burden shifts to person challenging.
• Casey challenging 4 prongs

• medical emergency (no undue burden)
• Must notify 24 hours prior (acknowledge burden but not undue) could argue $ to stay at hotel, etc.
• Info requirement by doctor (no burden)
• Spousal Notification – undue burden in cases of domestic abuse, consent, rape, etc. only part struck
• Minors (not undue burden – can get judicial bypass)

1. Carhart – partial birth. Ct. finds no undue burden – no health exception is necessary even when mother’s life is at threat.  Goal of statute was so important it overruled mother’s life.

• Undue Burden:

• Whether gvn’t restriction = intrusive on liberty interest and
• Whether unreasonable, excessive or unnecessary (narrow means of test)

1. Right to Family – Moore & Troxel

1. Moore - zoning ordinance to reduce overcrowding focused on the meaning of family: statute was overly broad for its legitimate government interest – other ways to get to the means.
2. Troxel – grandparents rights to visitation – right of parents to have the say to who gets to see their children

1. Right to Sexual Orientation – Lawrence v. TX

1. Lawrence – state trying to protect homosexual activities by criminalizing – TX statute violates Due Process – Consensual sexual activity fits w/in the zone of privacy when in the privacy of one’s own home – NOT TO MINORS (can’t consent)

1. Right to Die – Cruzan, Glucksberg

1. Cruzan – woman in coma – put on tubes for breathing/nutrition. Family wanted to take tubes out/death. Right to refuse medical treatment – but no evidence of what she would have wanted – NOT violated when the ST refused to kill someone that is incompetent
2. Glucksberg – No interest to assist in suicide

PROCEDURAL ANALYSIS FOR EXAM

Use if question about what process is due (deprived right w/out adequate process)

1. Has the government taken an individual’s life, liberty or property?

1. Liberty: interest is violated when you are imprisoned. (No physical freedom of movement), right to drive, right to practice one’s profession, the right to raise one’s family.
2.  Property: personal and real property – no monetary fine or forfeit a person’s car w/out complying w/ process – could also be benefits if already receiving them – government job that you already had

1. YES, were they deprived of that right w/out adequate process?

1. Do Matthews v. Eldridge – 1) private interest affected by official actor? 2) risk of erroneous deprivation of the interest through the procedures used & the probable value of additional or dif. Safeguards? 3) the government interest including fiscal & administration burdens.

1. EQUAL PROTECTION

“No state shall make or enforce any law which shall .. deny to any person within its jurisdiction the equal protection of the laws”

1. Usage: to put a general restraint on government use of classifications, not just class based on race but also sex, alienage, illegitimacy, wealth, etc. – must be brought against government action only – “state action”

1. Tiers of Scrutiny:

1. Strict – laws dealing w/ race, national origin (classification) or fundamental rights (law usually fails)

1. Class = race/ Right = voting
2. TEST: (1) Classification upheld only if it is necessary to promote compelling government interest

1. Middle – evolving: gender groups usually impacted by laws; possibly sexual orientation; children of undocumented persons that are at schooling age

1. TEST: (1) legislature means are substantially related to an important government objective (must be important – not necessary compelling) and (2) means and end must be substantially related

1. Rational Basis – all other classifications (law usually passes)

1. TEST: (1) government must be pursuing a legitimate governmental objective; and (2) there must be a rational relation between the classification and that objective
2. Railroad Express Agency – advertising on side of truck. NY alleging it’s a distraction therefore safety reason.

STRICT SCRUTINY: