Professor Harpaz
Constitutional Law
Spring, 2013
Constitutional
Law
Review Spring, 2013
NOTE: Arrangement of Constitutional
Law Review: This review, unlike the individual sections of the
review I
have already provided, is divided into two main categories of
constitutional challenges: (1) challenges to the exercise of
federal
power, and (2) challenges to the exercise of state power. This is
because the first, and most obvious, aspect of any exam question
is
whether the law being challenged is a state (or local) law or a
federal
law. That distinction is important because different
constitutional
challenges are available if a federal law is being challenged as
compared to if a state (or local law) is being challenged. While
due
process and equal protection challenges can be made to both state
and
federal laws, others areas covered in the course are available
only in
relation to a federal law or only in relation to a state (or
local)
law. Because the possible challenges differ so much, dividing the
review into challenges to the exercise of federal power and
challenges
to the exercise of state power and, therefore, thinking about what
issues can be discussed in terms of those two categories makes
sense.
Judicial Review
Marbury v. Madison
established
that the Supreme Court has the
power to review the constitutionality of federal laws. This
principle of judicial review later was extended to give the federal
courts the power to review the constitutionality of state laws as
well
as federal laws. While Marbury
established the Supreme Court's
power of judicial review, it is a principle that serves as a
backdrop
for this course and not one we explored in much detail. Therefore,
it
will not be tested on the exam.
Challenges to the Exercise of
Federal
Power: Challenges to the Scope of Federal
Power
The Scope of Congressional Power
under
Article I, Section 8. In
this area, the general question asked is whether Congress has
exceeded
the boundaries of the affirmative grants of power contained in
Article
I, Section 8 of the Constitution (Marbury,
McCulloch, Gibbons, Wickard,
Heart of Atlanta Motel,
etc). As early as McCulloch v.
Maryland, it was established that congressional power would
be
liberally
construed. As a general principle, under Article I, Section 8's
grants of specific enumerated powers, together with the Necessary
and
Proper Clause, Congress can choose among all means that are adapted
to
an enumerated end and is not restricted to absolutely necessary
means. The significance of the Necessary and Proper Clause as a
source of power has diminished as the Supreme Court has adopted
broad
interpretations of some of the enumerated powers such as the
commerce
power. However, members of the Court who view the scope of the
Commerce Clause more narrowly, such as only extending to the
regulation
of interstate commerce itself, may use the Necessary and Proper
Clause
to permit Congress to regulate local (intrastate) commerce when that
local commerce has a substantial economic effect on interstate
commerce. That was the approach taken by Justice Scalia in his
concurring opinion in Gonzales v.
Raich.
However, in National Federation
of
Independent Business v. Sebelius, a
majority of the Court rejected an argument based on the Necessary
and
Proper Clause and concluded that the individual mandate provision of
the Affordable Care Act exceeded the scope of the Commerce Clause
together with the Necessary and Proper Clause. According to Chief
Justice Roberts, the existence of activity is an essential predicate
to
the exercise of the commerce power. Therefore, Congress cannot use
the
Necessary and Proper Clause to expand its power where that predicate
does not exist in order to allow Congress to regulate inactivity.
Despite this holding, the Necessary and Proper Clause may still be
available to augment Congress's power to regulate in areas where
Congress has enumerated power.
Enumerated Powers. On the
subject of the enumerated powers under Article I, Section 8, we
studied the Commerce Power (extensively) and the Taxing and Spending
Powers
(briefly).
I. Congressional Power to
Regulate Interstate Commerce
Congress has the power to regulate interstate commerce. The
source of congressional power to regulate interstate commerce is the
Commerce Clause in Article I, Section 8. This power is viewed as
consisting of 3 categories of regulatory authority: (1) the power to
regulate the channels of interstate commerce, (2) the power to
regulate
the instrumentalities of interstate commerce, and (3) the power to
regulate local activities that have a substantial economic effect on
interstate commerce. While most of the current members of the
Supreme Court recognize the commerce power itself as including all
three categories, Justices Scalia and Thomas do not. The third
Commere Clause category is seen by Justice
Scalia as justified by the combination of the Commerce Clause and
the
Necessary
and Proper Clause (a grant of power to Congress to employ all means
that are plainly adapted to an enumerated end) and not based on the
Commerce Clause alone. Justice Thomas is the only member of the
Court who views category 3 legislation as beyond the power of
Congress.
A. Category One - Regulation of the Use of the Channels of
Interstate Commerce:
1. What is a channel of interstate commerce? These include
navigable waterways, airspace, highways, railroad tracks, telephone
lines and the internet - these are the conduits through which
interstate commerce travels.
2. What does the power to regulate include? Congress’s
regulatory power is complete. It can regulate the use of the
channels of interstate commerce in any fashion (including
prohibiting
transportation entirely) and for any purpose. The purpose need
not be to protect or stimulate or inhibit the economy, but could be
related to morality, health or safety. Congress can use its
plenary power to regulate the channels of interstate commerce even
if
it is doing so to accomplish traditional police power objectives.
3. What are some examples of this use of the commerce
power? The Lottery Case
where Congress banned the shipment of
lottery tickets in interstate commerce, Hammar v. Dagenhart (The Child
Labor Case) (reversed in Darby),
and
Darby
(§ 15(a)(1) - the ban
on shipping goods not produced in compliance with the FLSA).
B. Category Two - Regulation of the Instrumentalities of
Interstate Commerce:
1. What is an instrumentality of interstate commerce? These
are means used to transport goods and persons in interstate commerce
including railroad cars, buses, trucks, airplanes, and boats (as in
Gibbons v. Ogden). The
line between a channel and an
instrumentality is somewhat unclear, but it has no practical
consequence since the Court’s analysis is the same for activities
falling within either of the first two categories.
2. What does the power to regulate include? In Lopez, the
Court stated that Congress has the power to “regulate and protect
the
instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities.” Therefore, the power includes the power to
regulate the instrumentalities or means of interstate transportation
and persons or things in interstate commerce as well as to protect
those instrumentalities, persons, or things in interstate commerce
against threats to them even if the source of the threat is from
intrastate activities. This allows Congress to regulate
activities at places such as airports, train stations, and cargo
storage areas to protect interstate commerce. Category two can be
thought of as incidental to category one since it is designed to
protect activities that occur in the channels of interstate commerce
from threats even if those threats originate from intrastate
activities.
3. What are some examples of this use of the commerce
power? One example is the Shreveport
Rate
Case,
where the Court
upheld a federal regulation of interstate rail rates that was aimed
at
eliminating the adverse impact on interstate commerce of intrastate
rail rates which
discriminated against interstate commerce by charging less for
longer
intrastate railroad journeys than were charged for shorter
interstate
railroad
trips. Another is a federal
law that makes it a crime to damage
or destroy an airplane employed in interstate or foreign commerce
even
though the destruction occurs while the plane is stored in an
airplane
hangar. A third example is a federal law that makes it a crime to
damage property that is in the possession of an air carrier, motor
carrier, or
rail carrier and is awaiting transportation in interstate or foreign
commerce.
C. Category Three - Regulation of Local Activities that have a
Substantial Economic Effect on Interstate Commerce.
Since United States v. Lopez,
this category has been further subdivided
into the regulation of local economic (or commercial) activities on
the
one hand and the regulation of local non-economic (or
non-commercial)
activities on the other. While this is the first of the four
Lopez factors, it is the
most
important factor because it is used as a
threshold inquiry to decide if the congressional action is going to
be
reviewed using a highly deferential standard (likely to result in
upholding the law) or a less deferential standard (less likely to
result in upholding the law).
1. Regulation of Local Commercial/Economic Activities
a. When Congress regulates an intrastate economic or
commercial
activity (as in Wickard v.
Filburn,
Heart of Atlanta, and Perez), the
test the Court uses is whether Congress could have rationally
concluded
that the regulated activity has a substantial economic effect on
interstate commerce. It is not always clear whether the activity
that
Congress is regulating is a commercial or a noncommercial activity.
In
such situations, the government will argue that the activity is
commercial in order to get the benefit of a more deferential
standard
of review and the challenger will argue that the activity is
noncommercial in order to get the benefit of a less deferential
standard of review (see 2.a below).
b. This test shows great deference to the judgment of
Congress, a
judgment often, but not necessarily, reflected in congressional
findings, hearings and committee reports.
c. The substantial economic effects required under this test
can
be found in the aggregate
so the question is not whether an individual instance of the
regulated
activity affects commerce (the wheat grown by farmer Filburn or the
guests who want to stay at the Heart of Atlanta Motel), but whether
the
regulated activity in its entirety (adding together the impact of
each
individual instance of the regulated activity) has a substantial
economic effect on interstate commerce (all the wheat that farmers
grow
for
home consumption or all the travelers who are unable to stay at
hotels
and motels because such places discriminate based on race).
d. When Congress regulates an interstate economic activity or
enterprise under a comprehensive regulatory scheme (such as the sale
of
wheat in interstate commerce), it may also
regulate the aspects of that activity that are not interstate in
character
(as in Wickard v. Filburn
and
Gonzales v. Raich). The
intrastate
or local aspect of the activity (even if it is an agricultural
product
grown for
home or personal consumption) may be regulated in order to make the
entire regulatory scheme effective. This is true where the
characteristics of the product are the same (fungible) (like the
wheat
in Wickard), and
where the failure to regulate
the
quantity intended for local use would, in the view of Congress,
leave a
significant
gap in the regulatory scheme.
e. Similar to d. above, when Congress regulates an economic activity
under a comprehensive regulatory scheme (such as the sale of
marijuana
in Raich), it may also
regulate noneconomic aspects of that activity
(as in Gonzales v. Raich).
The noneconomic aspect of the activity (even
if it is the possession of marijuana used for medicinal purposes)
may
be regulated in order to make the entire regulatory scheme
effective.
This is true where the characteristics of the product are the same
(fungible) (like the marijuana in Raich),
and
where the failure to
regulate the quantity intended for noneconomic use would, in the
view
of Congress, leave a significant gap in the regulatory scheme. The
degree of deference that will be given to a congressional decision
to include the local noneconomic activity in a comprehensive
regulatory
scheme is not yet completely clear, although
some degree of deference exists as can be seen in Gonzalez v. Raich.
f. In a similar fashion to d. and e. above, Congress may
regulate
a
class of activities if the class as a whole affects interstate
commerce
even if not all members of the class affect interstate commerce. The
“class of activities” rationale was relied on in Perez to regulate
extortionate credit transactions and was a source of disagreement
between the majority and dissent in Gonzales
v. Raich. In Raich,
the majority concluded that the class of activities being regulated
was
the cultivation, possession, and distribution of marijuana, a class
of
activities that had a substantial economic effect on interstate
commerce. Congress could regulate the cultivation and possession
of marijuana for medicinal purposes since it was part of the
regulated
class. The dissent, by contrast, concluded that the cultivation
and possession of marijuana for medicinal purposes was a separate
class
of activities and that this more limited class did not have a
substantial economic effect on interstate commerce and, therefore,
could not be regulated by Congress.
g. The fact that Congress may have been motivated in whole or
in
part by a moral objective is not relevant so long as the regulated
activity also has a substantial economic effect on interstate
commerce
(as in the case of the Civil Rights Act of 1964 when Congress
outlawed
racial discrimination in places of public accommodation both because
of
the immorality of discrimination and also because the discrimination
had a negative economic effect on interstate commerce by
discouraging
travel by
African-Americans).
h. In National Federation
of
Independent Business (NFIB) v. Sebelius,
the category three power to regulate local economic activities was
found by a majority of the Court not to extend to the regulation of
inactivity (regulating the behavior of people who have chosen not to
buy health insurance by requiring that they either buy health
insurance
or make a payment to the IRS in lieu of buying health insurance)
even
if that inactivity has a substantial economic effect on interstate
commerce. Under this view, while the commerce power allows Congress
to
regulate the
behavior of people who are participating in commerce (growing wheat
in Wickard v. Filburn,
operating a
restaurant in Katzenbach v.
McClung,
growing marijuana in Gonzalez v.
Raich, and lending money in Perez
v. United States), it does not allow Congress to force
people
into commerce who have chosen not to engage in commerce. The
distinction between activity and inactivity will not always be clear
so
that it may be possible for the federal government to argue it is
regulating activity and, therefore, within the scope of the commerce
power while the challenger argues that that the government is
regulating inactivity and, therefore, beyond the scope of the
commerce
power. Because the Commerce Clause analysis was not necessary to the
result reached by Chief Justice Roberts in NFIB v. Sebelius (since he upheld
the individual mandate as a legiitimate exercise of the taxing
power),
there is a division of opinion in the lower courts as to whether the
distinction between activity and inactivity is part of the holding
of
the case and, therefore, binding on the lower courts.
2. Regulation of Local Non-Commercial/Non-economic Activities
a. The distinction between economic and commercial activities
as
contrasted with non-economic and noncommercial activities (factor
one)
became critically important after the Court’s decision in Lopez. The distinction is
evaluated
on a case by case basis and the dividing
line may be somewhat murky. If the regulated activity involves
the production of a good for sale or the sale of a good or service,
it
will easily be classified as commercial activity. If it does not
involve a commercial transaction,
the Court may be inclined to characterize it as non-economic. The
Court characterized possession of a gun in a school zone as
non-economic in Lopez and
violence against women as non-economic in
Morrison. By contrast,
growing wheat for home consumption was
considered to be an economic activity in Wickard and racial discrimination
against travelers by hotels and motels was considered to be an
economic
activity in Heart of Atlanta
Motel.
The question of whether the
activity regulated is economic/commercial or not may depend on the
scope of the
congressional regulatory scheme. If the scheme generally
regulates a commercial activity (see 1.e. above), the Court may be
willing to
characterize all of the applications of the statute as the
regulation
of commercial activity including those that reach activity, which
viewed in isolation, might be considered noncommercial (such as the
medicinal marijuana grown for personal consumption in Raich which was
regulated as part of a comprehensive regulation of the illegal drug
market). Some activities may be difficult to classify as either
economic or non-economic. For example, if a regulated activity does
not
involve an economic exchange (such as a sale of goods), but the
motivation for the activity is economic, it is not clear how the
activity will be classified. In such cases, the challenger will
argue that the regulated activity is non-economic and the federal
government will argue that the regulated activity is economic. In
addition, both parties will need to argue in the alternative, if
possible on the available facts. The challenger will argue that the
law
exceeds the scope of the commerce power even if the regulated
activity
is classified as economic. The government will argue that the law is
a
legitimate exercise of the commerce power even if the regulated
activity is classified as non-economic.
b. When Congress regulates an intrastate noncommercial,
non-economic
activity (as in Lopez and
Morrison), the court is
less
deferential to
Congress.
c. When Congress regulates a non-economic, noncommercial local
activity, the Court will be likely to uphold the regulation if the
statute contains a jurisdictional element (factor two) that requires
a
connection to interstate commerce be shown in each individual case
where the statute is applied (such an element was missing in both Lopez
and Morrison).
However,
there is still uncertainty over what
kinds of jurisdictional element will be viewed as sufficient to tie
the regulated activity to interstate commerce. After Lopez,
Congress amended the statute struck down in that case to add the
requirement that the firearm have “moved in or that otherwise
affects
interstate commerce.” The Supreme Court has not reviewed this
amended
version of the statute so it is unclear whether this jurisdictional
element will be viewed as sufficient to cure the constitutional
defect
identified in
Lopez. Therefore, a
challenger
may be able to argue that a statute that contains a jurisdictional
element violates the Commerce Clause because it does not impose a
sufficient limit on the exercise of Congressional power by requiring
a
meaningful link or nexus between the regulated activity and
interstate
commerce. The lower courts have generally upheld statutes that
contain
jurisdictional elements when challenged on Commerce Clause grounds.
d. The presence or absence of congressional findings (factor
three) is not
determinative (they were present in Morrison,
but absent in Lopez), but
such findings may help to demonstrate that the local activity being
regulated has a substantial economic effect on interstate commerce.
e. When Congress regulates a local, non-economic activity, the
substantial economic effect on interstate commerce needs to be
based on more than a showing of an attenuated connection between the
regulated activity and interstate commerce (factor four). The
effect needs to be more direct and not based on a long series of
links
in a chain that eventually connects the regulated activity to
interstate commerce. An attenuated connection is likely to be
available in most cases, including when Congress regulates violent
crime
(and can show a connection between local crime and an increase in
costs
and/or a reduction in economic productivity (Morrison)) and education
(and can show that poor educational quality leads to a less
qualified
workforce and less economic productivity (Lopez)). Acceptance of such an
argument would effectively do away with any limit on congressional
power. Therefore, the Court
views such "limitless" arguments based on an attenuated connection
as
insufficient, as it did in both Lopez
and Morrison,
because
they do not
impose any real limits on Congress's power to regulate local
non-economic activities and, therefore, do not preserve an
appropriate
balance between state and federal power.
f. Without a limit on the nature of the connection that must
exist between the regulated activity and interstate commerce,
Congress
would have the equivalent of a federal police power and its power
would
be virtually unlimited and include areas (education or family
relationships, for example) that have traditionally been the
province
of the states and not the federal government. However, the
distinction between activities that have traditionally been the
province of the states as contrasted to those that have
traditionally
been the province of the federal government is far from clear
cut. Therefore, this federalism concern is not one of the specific
factors in the
Lopez analysis, but only a
consideration which may influence the
Court’s analysis of the four factors it relies on.
g. In the case of non-economic, violent crime, the Court will
not
allow Congress to regulate “based solely on that conduct’s aggregate
effect on interstate commerce.” Therefore, the federal government
must show a connection to interstate commerce in each individual
instance of the regulated activity (as it must if the statute
contains
a jurisdictional element). It is not yet clear whether a similar
restriction on the use of aggregation will be applied to all
congressional
regulation of non-economic activities even when violent crime is
not being regulated and even when the statute does not regulate
criminal behavior at all. However, there are suggestions in the
cases
that Congress will not be able to rely on aggregation in all cases
where it regulates a non-economic activity (except if that activity
is
regulated as part of a comprehensive regulatory scheme that includes
both economic and non-economic activity as in 1.e. above).
II. Taxing Power
The federal government has the power to raise money by
taxation
and spend that money to advance the general welfare. The power to
tax
and spend is not a regulatory power. Therefore, the Court wants to
make
sure that the government is not engaging in regulation through the
guise of taxation. The difficulty with drawing a line between
taxation
and regulation is that taxing measures always have indirect
regulatory
effects by encouraging or discouraging certain activities. In
addition,
to implement a tax it is necessary to enact certain incidental
regulatory measures to assist in identifying persons who are subject
to
the tax and to collect the tax. Therefore, the Court has had
difficulty
over the years in distinguishing between a tax and a regulation.
In considering the constitutionality of taxing measures, the Supreme
Court distinguishes between taxes (which are within the taxing
power)
and penalties (which are considered to be regulations rather than
taxes). If a tax is found to be a penalty, it can only be upheld if
the
penalty could be justified as a valid regulatory measure. As a
regulatory measure, it would be valid if it falls within the scope
of
some other congressional power such as the Commerce Clause. If it
falls
within the scope of one of Congress's regulatory powers, it is
irrelevant whether it is a tax or a penalty. In distinguishing
between
a tax and a penalty, the Court will look at whether the so-called
tax
contains regulatory features and whether those regulatory features
have
some rational relationship to the collection of the tax. If the
regulatory features are related to collecting the tax, the Court
will
not consider the tax to be a penalty. In addition, the Court will
not
strike down a tax simply because it was motivated by a desire to
regulate a particular area or because it raises only a small amount
of
revenue. These standards defer to Congress's judgment in creating a
tax
and make it very difficult to successfully challenge a tax just
because
it has regulatory features. In National
Federation
of Independent Business v. Sebelius, the Court
concluded that the penalty for failing to buy health insurance was a
tax even though Congress had labeled it a penalty in the statute.
This
was because it had the essential characteristics of a tax including
the
fact that the amount due was not excessive because it would be much
less than the cost of health insurance, the money would be collected
by
the IRS by the same methods used to collect a tax, and the payments
would raise a significant amount of revenue.
III. Spending Power
Congress has broad power to spend funds to advance the general
welfare. The spending power, however, cannot be used to regulate
in an area where Congress has no regulatory power, only to spend in
such areas. The scope of the spending power often arises as a
constitutional issue when
Congress attaches conditions to money that it offers to state and
local governments. As long as the entity that is offered the
money has the right to turn down the funds and therefore
reject the condition, such conditions are legitimate exercises of
the
spending power and are not considered unconstitutional regulations
if
they satisfy a 4 part test from the Court's decision in South Dakota v. Dole:
(1) the exercise of the spending power must
be in pursuit of the general welfare (courts generally defer to
Congress in defining general welfare);
(2) the condition needs to be
unambiguously stated so that the states can make a knowing choice;
(3)
there needs to exist some relationship between the condition imposed
and the purpose of the federal spending;
and
(4) the condition may not induce the states to violate some other
provision of the Constitution and, therefore, be independently
barred. (Consider this
issue by asking
whether a state could enact the condition on its own, in the absence
of
the incentive of a federal spending program, without violating the
Constitution.)
In addition to these four parts of the Dole test, the Court also requires
that the financial inducement offered by Congress cannot be so
coercive
as to go beyond pressure and amount to a compulsion. The Court
struck
down the Medicaid expansion provisions of the Affordable Care Act in
National Federation of Independent
Business v. Sebelius because it concluded that the states
were
coerced into agreeing to the expansion, coercion which the Court
described as “a gun to the head.” This was based on the fact that
the
states would lose 100 % of their federal Medicaid funding if they
refused to agree to the Medicaid expansion. Since the federal
contribution to the Medicaid program amounted to more than 10 % of
the
total budget of most states, the states could not afford to give up
the
federal money. In addition, to counter the argument that the states
had
agreed to accept subsequent modifications of Medicaid when they
first
joined the program, the Court concluded that the Medicaid expansion
covered so many additional categories of recipients who were not
eligible under prior versions of the program that the expansion
amounted to the equivalent of a new program rather than a
modification
of the existing program.
Challenges to the Exercise of Federal Power: Limits on Federal
Power
When examining the constitutional limits on federal power, the issue
is
whether the federal government has acted unconstitutionally by
violating one of the limitations the Constitution places on its
exercise of its power.
I. State Autonomy Limits on Federal Power
A. State autonomy (sometimes referred to as state
sovereignty)
limits
on
federal power are inherent in the structure of the Constitution as
well
as confirmed by the text of the Tenth Amendment.
B. State autonomy limits on federal power prevent the federal
government from interfering with decisions made by a state as to how
to structure its basic governmental operations such as where to
locate
its capitol, how many members to elect to the state legislature, the
length of the governor's term in office, and similar aspects of its
governmental structure.
C. In recent years, the Supreme Court's state
autonomy
focus has
shifted to protecting the states from being forced to adopt or
administer federal regulatory programs. For example, in Printz v.
United States, the Court struck down a provision of the
Brady
Act which commandeered, without the state’s permission, the services
of
state law enforcement officers to assist in the administration of a
federal regulatory scheme. While the federal government is free
to regulate areas falling with the scope of its Article I, Section 8
powers, including to apply those federal laws to the state’s own
activities, or to provide incentives to encourage the states to
cooperate, it can't force the states to participate in the
administration of those laws. Federal programs that require the
states to enact legislation, such as in New York v. United States, or
require the states to administer and enforce federal
regulatory programs, as in Printz,
can be successfully challenged under the state autonomy principle
confirmed by the Tenth Amendment.
D. In Reno v. Condon,
the Court upheld provisions
of the Driver’s Privacy Protection Act which prevented state motor
vehicle departments from making available personal information about
drivers without their consent. In upholding the provisions, the
Court distinguished between federal laws that regulate the state’s
own
activities (as in Reno v. Condon
in which the state was regulated as
the owner of a database) and federal laws that require the states to
regulate the behavior of their own citizens (as in Printz
and New York v. United
States). The Court focused on the fact that the federal
law in Reno v. Condon did
not require the states to legislate or to enforce a federal
regulatory
scheme.
E. Beyond the limited examples of federal laws that force the states
to
either enact legislation or administer a federal regulatory program,
the Tenth Amendment has not been a significant source of limits on
the
power of Congress. When asserted in an effort to prevent the
federal government from regulating in areas that have traditionally
been regulated by the states, the Court has rejected this argument
and
described the Tenth Amendment as a tautology, only stating that
whatever power has not been granted to the federal government
remains
with the states rather than defining the scope of the non-granted
power.
F. Further, after
abandoning the National
League of Cities
approach in Garcia v. San Antonio
Metropolital Transit Authority,
Tenth Amendment state autonomy arguments have also been
rejected when states have argued that the states' own activities
cannot
be regulated along with their private conterparts. Therefore,
Congress is free to regulate the state as an employer, an energy
user,
a trash disposer, etc. along with private entities that engage in
these
same activities. The Tenth Amendment does not require, as
interpreted in Garcia,
that
the state be exempt from such federal regulations.
As long as federal regulatory power exists, such as the grant of
power
in the Commerce Clause, Congress is free to regulate private
activity
as well as its state governmental conterpart.
G. Even though the Supreme Court has rejected the argument that the
Tenth Amendment places specific limits on the areas where the
federal
government
can regulate and requires the federal government to refrain from
regulating in areas that have traditionally been regulated by the
states, it is easy to see the influence of this argument in the
Court's
decisions in Lopez, Morrison, and National Federation of Independent
Business v. Sebelius.
II. Separation of Powers -
this
subject will not be tested on the
exam.
III. Due Process Protected by
the Fifth Amendment Due Process Clause
The Due Process Clause of the Fifth Amendment is used
to challenge federal laws that infringe life, liberty, or property
without due
process of law. These challenges are divided into several different
categories. One category focuses on economic rights, laws that
infringe
economic liberty and property
rights. Since such
economic
liberty and property rights are nonfundamental, such a challenge is
reviewed using the minimum scrutiny review standard (also called
rational basis review and minimum rationality review), a very
deferential standard of review that presumes that the law being
challenged is constitutional. The test is whether the federal
law is a rational means to a legitimate end. A second category of
rights
focuses on
personal liberty rights. Such personal rights are further subdivided
into non-fundamental liberty rights and fundamental liberty rights.
When the personal liberty right at issue is nonfundamental, minimum
scrutiny review applies. When the
right at issue is fundamental, a more rigorous standard of review is
applied, typically, but not always, strict scrutiny review. Since
the
nature of the right interfered with determines the standard of
review
applied, the challenger is always trying to characterize the right
as
fundamental and the government is always trying to characterize the
right as non-fundamental. In some
cases, the challenger may be able
to argue
that the right infringed is a fundamental personal liberty right
subject to strict scrutiny review while the government
argues that the right infringed is an economic right or a
non-fundamental personal liberty right. In such cases, the
parties should be prepared to argue in the alternative, if at all
possible. The challenger should argue that the law is
unconstitutional
even if it is classified as nonfundamental and the government should
argue
that the law is constitutional even if it is classified as
fundamental.
(There is a more extensive discussion of due process later on when
discussing the Fourteenth Amendment Due Process Clause).
IV. Equal Protection
Protected
by the Fifth Amendment Due Process Clause
Even though the Fifth Amendment does not contain an express
provision
guaranteeing equal protection of the law, the Supreme Court has
interpreted the
Fifth Amendment Due Process Clause as protecting equal protection as
well as due process. When a federal law is challenged as a
violation of equal protection, it is challenged relying on the equal
protection component of the Fifth Amendment Due Process Clause. When
courts review laws that interfere with the right to equal
protection guaranteed by the equal protection component of the Fifth
Amendment Due Process Clause, they first must examine the nature of
the
classification scheme and identify the trait that is the basis for
the
classification. If the class that is being discriminated against
is a suspect class, such as race, then courts will apply strict
scrutiny review. If the class is a quasi-suspect class, such as
gender, courts will apply intermediate scrutiny review. If the
class is nonsuspect, courts will apply minimum rationality review.
(There is a more extensive discussion of equal protection later on
when
discussing
the Fourteenth Amendment’s Equal Protection Clause.)
Challenges to the Exercise of State
(or Local) Power
I. Preemption
In a preemption challenge, the challenger is claiming that a state
law
is unconstitutional because it has been preempted by a valid federal
law. Under this analysis, the state law violates the Supremacy
Clause of Article VI because the federal government has enacted a
law
that prohibits the state from acting in a particular way and the
state
law being challenged is one in which the state is acting in the
prohibited manner. To successfully assert a claim of preemption,
the challenger must show:
A. that the federal government has enacted a valid federal law
(the law is a constitutional exercise of congressional regulatory
power
such as the power granted by the Commerce Clause) and that the
federal law either:
B. expressly preempts the state law because it contains
explicit
preemptive language (see D below); or
C. impliedly preempts the state law because Congress intended
to
preempt the state law and the congressional intent
can be implied based on conflict preemption (see E below) or field
preemption (see F below).
D. To demonstrate express preemption (see B above), you must
show
that there is language in the federal statute that expressly states
that the federal law preempts certain
types of state legislation. Even if the statute contains express
preemptive language, there may still be an issue as to the scope of
the
preemptive effect under that statutory language because it is hard
to
draft preemption language that removes all ambiguities as to the
scope
of the intended preemption. In addition to expressly stating an
intent to preempt, Congress can also expressly state that it does
not
intend to preempt certain types of state legislation (express
nonpreemption). Just as in the case of express preemption, there
can be an issue as to the intended scope of the nonpreemptive
language.
E. To demonstrate (implied) conflict preemption (see C above),
the challenger
must show
either:
(1) that the state law is in conflict with the federal law
because it is physically impossible to comply with both at the same
time; or
(2) that the state law is in conflict with the federal law
because it
interferes with the objectives of the federal law or is an obstacle
to
the accomplishment of the federal purpose. To decide whether
this type of implied preemption exists, you need to review the
statutory
language in the federal law and its legislative history to determine
what the purpose of
the federal law is, and then ask whether the operation of the state
law
interferes with accomplishing the objectives of the federal law.
F. To demonstrate (implied) field preemption (see C above),
the
challenger must
show
that
the federal government has fully occupied the field it has chosen to
regulate. In
field preemption cases, there does not need to be any conflict
between the state and federal law. The state law may even further
the same purpose as the federal law. Nevertheless, there may be
preemption if the federal regulatory scheme is sufficiently
comprehensive to make reasonable the inference that Congress left no
room for supplemental state regulation. When the Court is
uncertain as to whether Congress intended to preempt the field, it
will
look at the nature of the regulated area. If the area regulated
by Congress is an area in which the federal interest is dominant,
the
Court will be more inclined to presume that Congress intended to
occupy
the field (as in the areas of immigration or foreign affairs). If
the area regulated by Congress is an area that has traditionally
been
regulated by the states (as in the area of tort liability), the
Court
will be less likely to presume that Congress
intended to occupy the field. In cases in which a field
preemption
argument is made, there may also be an argument over how broad or
narrow the preempted field is and whether the state law falls within
the scope of the field preemption.
G. The state can defend its state law against a preemption
challenge in a variety of ways. It can argue that (1) the federal
law
is beyond the power of Congress, (2) the federal law does not
expressly
preempt state law, (3) the federal law expressly authorizes the
states
to
continue to regulate in the area, and (4) the federal law does not
impliedly prempt the state law because it is possible to comply with
both
state and federal law at the same time, the state law does not
interfere with the achievement of the federal purpose, and the
federal
law does not fully occupy the field the state is regulating.
H. On the exam, preemption issues are usually obvious because
an
exam question raising a preemption issue must describe both a state
law
that is being challenged and a federal law or regulation that
regulates
an identical or at least a similar area to that of the state law. In
addition, typically the challenger will make a variety of preemption
arguments (e.g., there is express preemption, but even if there
isn't
there is conflict preemption because the state law undermines the
accomplishment of the federal purpose, but even if it doesn't there
is
field preemption because the federal government has fully occupied
the
field) and the state will need to respond to each of the preemption
arguments the challenger makes.
II. Dormant Commerce Clause
In challenging a law because it violates the dormant Commerce
Clause,
the challenger argues that while the federal government has been
silent
in the area (meaning that the state law or municipal ordinance is
not
preempted by federal law), the state law (or municipal ordinance)
places an
unreasonable burden on out-of-state or interstate commerce and
therefore violates the
dormant Commerce Clause. These cases are analyzed in two different
ways
depending on the type of burden placed on interstate commerce. Laws
that discriminate against out-of-state commerce on their face or in
their effect are subject to
very rigorous review whereas laws that burden interstate commerce in
a
nondiscriminatory way are subject to a balancing test often referred
to
as the Pike balancing test
from the case of Pike v. Bruce
Church, Inc. The very rigorous or strict test
requires that the government prove that the law serves
a
legitimate
local purpose and
that the purpose cannot be
adequately served by reasonable nondiscriminatory alternative means
(often described by the Court as a standard of virtual per se
invalidity because of how difficult it is to satisfy). Under the
less
strict balancing test, the Court
weighs
the
burdens on interstate commerce as against the local benefits. Each
state or local law that burdens out-of-state commerce in a
significant way is reviewed under one of the two tests unless the
state
is acting as a market participant rather than a market regulator. In
choosing between the two tests, the challenger is always trying to
argue, if at all possible, that the strict test applies, but must be
prepared to argue, in the alternative, that the law is
unconstitutional
even if the balancing test applies. By contrast, the government is
always trying to argue that the balancing test applies, but must be
prepared to argue, in the alternative, that the law is
constitutional
even if the strict test applies.
A. Discrimination Against Interstate Commerce. Two forms
of
discrimination justify the application of the strict test: (1) if
the
state
or local law discriminates against out-of-state commerce on its face
(such as
by expressly favoring local businesses as in Dean Milk and C & A Carbone, Inc. v. Clarkstown
or hoarding resources for local residents as in Hughes v. Oklahoma and Philadelphia v. New Jersey),
or
(2) if the state or local law, while not discriminatory on its face,
nevertheless has a discriminatory effect on out-of-state commerce as
demonstrated by extrinsic evidence (as in Hunt
v.
Washington State Apple Advertising Commission and Bacchus Imports, LTD. v. Dias).
If
either of these two types of discrimination exists, the
presumption
of validity normally afforded to such laws disappears, and the
burden of proof shifts to the state or locality to demonstrate that
it
has a
legitimate objective and
that it cannot accomplish that objective by alternative means. Under
this test, an
economic protectionist purpose
(to benefit local business at the expense of out-of-state business)
is
not a legitimate objective. In addition, under this strict test,
means that discriminate
against interstate commerce may only be used if there are no other
means available to achieve the government's purpose. (Dean Milk v. Madison -
alternative
means existed; Maine v. Taylor -
alternatives
means did not exist). While laws that discriminate against
interstate commerce on their face are usually easy to identify, laws
that discriminate against interstate commerce in their effect are
harder to identify. In such cases, the challenger will argue that
the discriminatory effect is sufficient to justify applying the
strict
test and the government will argue that the discriminatory effect is
insufficient to justify applying the strict test so that the less
strict balancing test should apply. Both parties must also be
prepared
to argue in the alternative, if at all possible. The challenger will
also argue that the law is unconsitutional under the balancing test
and
the government will also argue that the law is constitutional under
the
strict test.
In a recent case, United Haulers
Ass’n v. Oneida-Herkimer Solid Waste
Management Authority,
the Court clarified the meaning of laws
that
discriminate against interstate commerce. It said that a law
that favored a government entity performing a traditional government
activty, waste processing, and discriminated against all in-state
private waste processors as well as all out-of-state waste
processors,
did not qualify as a law that
discriminates against out-of-state commerce under the dormant
Commerce
Clause. Because the only discrimination
was in favor of a government entity, the Court applied the Pike
balancing test applicable to laws that burden interstate commerce,
but
do not discriminate against such commerce rather than the strict
test.
B. Balancing Test. Even if the state or local
law does
not discriminate against out-of-state commerce, it can be challenged
under the dormant Commerce Clause if it imposes a significant burden
on
interstate commerce. In evaluating the
constitutionality of such a law, the Court will apply a balancing
test:
“Where the statute regulates even-handedly to effectuate a
legitimate
local public interest, and its effects on interstate commerce are
only
incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local
benefits.” This test is called the Pike balancing test because it
derives from the case of Pike v.
Bruce Church, Inc. Under this balancing test, a presumption
of
validity attaches to the
state statute (or municipal ordinance). It will be upheld even
though it burdens interstate commerce so long as the burden it
imposes
is not excessive in relation to its value as a health, safety,
environmental protection or consumer protection measure. To win, the
challenger
must show the law burdens interstate commerce in a significant way
and
the benefits of the law are not sufficient to outweigh the burdens.
For
examples of this balancing approach see Bibb
v. Navajo Freight
Lines, Inc. and Kassel
v.
Consolidated Freightways Corp. In both of these cases, the
Court concluded that the law had no safety benefits at all and so
the
balancing test was easy to apply since all the weight on the scale
was
on the burden side, sharply tipping the scale in the challenger's
favor. It is less clear how a case would be resolved if there was
some
burden, but also some benefit from the law.
C. Economic Protectionism. As Justice Souter stated in Department of Revenue of Kentucky v.
Davis,
"The modern law of what has come to be called the dormant Commerce
Clause is driven by concern about 'economic protectionism - that is,
regulatory measures designed to benefit in-state economic interests
by
burdening out-of-state competitors.' " If a state or local law is
designed
to achieve some economic benefit for the state or locality in the
form
of
hoarding
resources or avoiding economic burdens, the purpose of the law will
be
viewed as economic protectionism and this purpose is illegitimate
under
the dormant Commerce Clause. Typically, a law that is aimed at
achieving the goal of economic
protectionism will discriminate against out-of-state commerce on its
face
or in its effect. If the law discriminates against out-of-state
commerce, a state or local purpose designed to achieve economic
protectionism will not satisfy the strict test employed to evaluate
such
discriminatory laws
because the law will lack a legitimate objective. In the rare
case that the law is nondiscriminatory, a state or local purpose
that
is
designed to hoard resources or avoid economic burdens rather than
sharing them with other states will not be sufficiently weighty
under
the balancing test used in such cases and will not outweigh a
substantial burden imposed on interstate commerce. Cases in which
laws
are struck
down under the dormant Commerce Clause because they were found to be
motivated by nothing more than economic protectionism include Bacchus
Imports, LTD. v. Dias (state law was discriminatory in its
effect and lacked a legitimate local purpose) and South-Central
Timber v. Wunnicke (state law was discriminatory on its
face
and lacked a legitimate local purpose). Frequently, it will not
be clear if the purpose of the law is the illegitimate one of
economic
protectionism or some other legitimate purpose such as health,
safety,
or consumer protection. In such cases,
the challenger will argue, based on the available evidence, that the
law is designed to accomplish the illegitimate objective of economic
protectionism and the government will argue, based on the available
evidence, that the law is designed to accomplish a legitimate
objective. Since neither party can be certain a court will agree
with its argument, both parties must be prepared to try and argue in
the alternative with the challenger trying to argue, if possible,
that
the law is unconstitutional even if it has a legitimate purpose and
the
government trying to argue, if possible, that the law is
constitutional
even if it has an illegitimate purpose (only possible if the
government
can rely on the market participant exception described in D. below).
D. Market Participant Exception. There is also one
additional
argument seen in dormant Commerce Clause cases. It is not an
additional
test, but is, instead, a defense that may be available to a state or
locality in
a limited number of cases when the challenger argues that the state
or
local law
violates the dormant Commerce Clause. Relying on the market
participant exception, the government may defend itself by arguing
that
it is
permitted to engage in protectionist behavior or discriminate
against
out-of-state commerce because it is acting as a market participant
by
directly engaging in commercial activities rather than by regulating
the
activities of private participants in the market. This exception
permits a state or locality to discriminate against out-of-state
commerce
when it
acts as a market participant, but not when it acts as a market
regulator
(South-Central Timber v. Wunnicke).
The
market participant defense is not
limitless and it may not be available if the state is controlling
access to a natural resource, if the state is controlling a market
in
which it is not a direct participant (downstream activity), or if
the
state is interfering with international commerce. All three of
these factors were present in Wunnicke
and the Court, therefore, rejected the
state's effort to defend its action based on the market participant
exception to the dormant Commerce Clause and found instead that the
law
was invalid as a protectionist measure. When the state participates
in
a market where it monopolizes the market rather than participating
along with private businesses, it is unlikely that a court will
consider the state to be a market participant within the meaning of
the
market participant exception. This is because the premise of the
market
participant exception is that the state is only one among a number
of
market participants.
E. I want to add a word or two about the relationship between
a
preemption argument and a dormant Commerce Clause argument. In
cases where there is no federal law on the subject, obviously there
is
no preemption argument, but there could be a dormant Commerce Clause
argument. Where there is a federal statute on point, there may be
a preemption argument and there could also, in the alternative, be a
dormant Commerce Clause claim if interstate commerce is
discriminated
against or unduly burdened by the state law being challenged. In
making this claim, the challenger is assuming that the preemption
challenge could fail, and is presenting the court with an
alternative
ground of decision in its favor.
III. Privileges and
Immunities
Clause of Article IV, Section 2.
To show that a state law (or a municipal ordinance) violates the
Privileges and Immunities Clause of Article IV, Section 2, the
challenger first must satisfy three preliminary hurdles:
A. The state law or municipal ordinance must treat differently
citizens (residents) and noncitizens (nonresidents) of the
state and discriminate against noncitizens (nonresidents); and
B. The state law or municipal ordinance must be challenged by
a
flesh and blood
nonresident of the state rather than a corporation or other
artificial
entity; and
C. The discrimination must adversely affect a privilege or
immunity of state citizenship. The question is whether the
activity the nonresident is seeking to engage in is one that is a
basic
right or essential activity and is, therefore, "fundamental to the
promotion of interstate harmony." Access to private employment
opportunities have been found to be fundamental or essential
activities
protected by Article IV, Section 2 as has the right of a nonresident
to purchase property within the state. However, both the right to
obtain
government employment and the right to gain access to recreational
activities on the same terms as residents have
been found not to be activities protected by the Clause.
D. If a court concludes that the challenger has satisfied the
three preliminary hurdles (A, B, and C above), the burden shifts to
the
government to
satisfy a two part test:
1. Does the state or locality have a substantial reason for
treating nonresidents
differently? (are nonresidents a peculiar source of the evil); and
2. Does the degree of discrimination against nonresidents bear
a
substantial relation to the state or local government's
objective? This inquiry includes a
consideration of the availability of less restrictive means (Supreme
Court of New Hampshire v. Piper) as a method of evaluating
the
relationship between the ends and the means. However, this standard
is
a version of intermediate scrutiny rather than strict scrutiny.
Therefore, the government is not required to adopt the least
discriminatory alternative means to accomplish its objective under
this
test.
E. In this analysis, unlike under the dormant Commerce Clause,
there is no
exception when the state is acting as a market participant (United
Building & Construction Trades Council v. Mayor and Council of
Camden).
Because of the differences between the dormant Commerce Clause and
the
Privileges and Immunities Clause of Article IV, it is possible for a
law to be constitutional under the dormant Commerce Clause
(immunized
by the market participant exception, for example), but
unconstitutional
under the Privileges and Immunities Clause (no market participant
exception). The opposite result can also occur. A law can be
successfully challenged under the dormant Commerce Clause (the law
discriminates against out-of-state commerce and there are
nondiscriminatory alternatives available), but unsuccessfully
challenged under the Privileges and Immunities Clause (the
challenger
is a corporation or the degree of discrimination bears a substantial
relation to the objective even though there are nondiscriminatory
alternatives available). Because these two constitutional arguments
are
not identical in scope, they should be considered as alternative
arguments in cases where both claims can be asserted.
IV. Fourteenth Amendment Due Process Clause
A. Introduction
The Due Process Clauses of the Fifth and Fourteenth Amendments are
used
to challenge laws that infringe life, liberty, or property without
due
process of law. These challenges are divided into several different
categories. One category focuses on economic rights, laws that
infringe
economic liberty and property
rights. Since such
economic
liberty and property rights are nonfundamental, such a challenge is
reviewed using the deferential minimum scrutiny review standard,
also
called rational basis
review, and minimum rationality review. A second category of rights
focuses on
personal liberty rights. Such personal rights are further subdivided
into non-fundamental liberty rights and fundamental liberty rights.
When the
right at issue is fundamental, a more rigorous standard of review is
applied, typically, but not always, strict scrutiny review. Since
the
nature of the right interfered with determines the standard of
review
applied, the challenger is always trying to characterize the right
as
fundamental and the government is always trying to characterize the
right as non-fundamental. In some
cases, the challenger may be able
to argue
that the right infringed is a fundamental personal liberty right
subject to strict scrutiny review while the government
argues that the right infringed is an economic right or a
non-fundamental personal liberty right. In such cases, the
parties should be prepared to argue in the alternative, if at all
possible. The challenger should argue that the law is
unconstitutional
even if it is classified as non-fundamental and the government
should
argue
that the law is constitutional even if it is classified as
fundamental.
B. Economic Liberty and Property Rights
One category of due process rights include economic rights, economic
liberty and property
rights,
including the right to employment and liberty of contract, protected
by
the Fifth and Fourteenth Amendment Due Process Clauses. Since such
economic
liberty and property rights are classified as nonfundamental, such a
due process challenge is
reviewed using the minimum scrutiny standard. To satisfy this test,
the
challenged
law must employ a means that is rationally related to a legitimate
state end. State ends may also be referred to as state interests,
objectives or justifications. This test is highly deferential to the
government and reflects a strong presumption in favor of the
constitutionality of the law. When this test is applied, the burden
is
on the challenger to show that the law either: (1) lacks a
legitimate
state interest or (2) lacks a rational relationship between the
means
and the ends. In applying this test, a court will not second guess
legislative fact finding. Moreover, a court will presume the
legislature had a rational basis for the law even if no facts in the
record support such a conclusion. This deferential review allows a
court to analyze the law based on hypothetical state interests which
might justify the law even if there is no evidence that the
government
actually relied on such hypothetical interests.
C. Personal Liberty Rights
The Due Process Clauses are also used to challenge laws that
interfere
with personal liberty rights. Such
personal rights may receive only minimum protection because they are
nonfundamental or be viewed as fundamental and receive the benefits
of
more rigorous or heightened review. Rigorous review includes several
standards
of review that impose a greater level of justification on the state
than under the minimum scrutiny test. Standards of rigorous
or heightened review include strict scrutiny review, the undue
burden
test, and
intermediate scrutiny review.
1. Fundamental vs.
Nonfundamental Rights. Among the nonfundamental
personal
liberty rights are rights such as the right to
drink and take drugs. Among the fundamental rights are: (1)
rights specifically enumerated in the Bill of Rights like freedom of
speech (rights enumerated in the Bill of Rights will not be on the
exam) and the right to bear arms
(which will
not be on the exam); and (2) nonenumerated fundamental
privacy rights such as the right to choose whether or not to bear a
child (Griswold v. Connecticut,
Roe v. Wade, and Planned Parenthood v. Casey),
the
right of an extended family to live together (Moore v. City of East Cleveland),
the
right to marry (Loving v.
Virginia and Zablocki
v. Redhail), and the right to decide how to raise one’s
children
(Troxel v. Granville).
2. Minimum Scrutiny Test.
The
test used to review the constitutionality of laws which interfere
with nonfundamental personal liberty rights is the minimum scrutiny
test (also called rational basis or minimum rationality review), the
same test used to examine the constitutionality of laws that
interfere
with economic liberty and property rights. Under that test, the
means must be rationally related to a legitimate
state end. In some cases, the nature of the right may be subject
to argument and the challenger may be able to argue that the
right infringed is a fundamental personal liberty right subject to
strict scrutiny review (see E. below) while the government argues
that
the right infringed is a nonfundamental personal liberty right that
should be
analyzed using minimum scrutiny review. In such cases, the
parties should be prepared to argue in the alternative, if at all
possible. The challenger should argue that the law is
unconstitutional
even if the right is classified as non-fundamental and the
government
should
argue
that the law is constitutional even if the right is classified as
fundamental.
3. Strict Scrutiny Test.
The
traditional test used to review intrusions on fundamental privacy
rights is strict scrutiny review as seen in Griswold. Under this
test, the government must show that it is employing a narrowly
tailored
means to accomplish a compelling end. A means is not narrowly
tailored under this test if there are less restrictive alternative
means
available. In its early strict scrutiny cases, the Supreme Court
described the test as requiring “necessary means.” While the
Court now typically refers to narrowly tailored means instead of
necessary
means, both formulations of the test are acceptable since
the substance of the test has not changed. Under both formulations,
the means must be the least restrictive means available. In
applying the strict scrutiny test in Roe,
the Court characterized the state’s interest in promoting the
potential
life of the fetus as compelling only after the fetus becomes
viable. By contrast, the state’s interest in maternal health
became compelling only after the first trimester. This trimester
approach was rejected in Casey
and these governmental interests are now viewed as compelling
throughout the
pregnancy.
The strict scrutiny test presumes that the law being challenged is
unconstitutional and places the burden on the government to overcome
that presumption by proving that it is seeking to accomplish a
compelling governmental objective by narrowly tailored means. A
central aspect of this analysis is the government’s demonstration
that
there are no alternative means available that would be equally
effective in achieving the government’s objective while at the same
time infringing less on the fundamental right. The challenger
will seek to prevent the government from convincing the court that
it
can make this necessary showing
by suggesting less restrictive, but equally effective alternative
means
the government could
employ to achieve its compelling objective.
4. Undue Burden Test.
Since
Casey, the right to
choose whether to terminate a pregnancy is reviewed using the undue
burden test. Using this test, even though the right is fundamental,
it
is unconstitutionally
infringed only when the state imposes an undue burden on the
exercise
of the right to terminate a pregnancy. One way to look at the use of
the undue burden test is that the Court has substituted the undue
burden test for the strict scrutiny test in evaluating abortion
regulations. Another way of looking at
the undue burden test is that its use means that not all abortion
regulations need to be subjected to strict scrutiny
review. Under this view, the undue burden test performs a sorting
function. It divides regulations of the fundamental right to
terminate
a pregnancy into two categories: (1) regulations that are relatively
minor intrusions on the right, those that do not impose an undue
burden
on the exercise of the right, which are subjected to minimum
rationality review to
evaluate their constitutionality; and (2) regulations that impose
substantial obstacles on the exercise of the right, those that do
impose undue burdens on the right, which are
subjected to strict scrutiny review to evaluate their
constitutionality. When using the undue burden test to perform a
sorting function, it operates, in effect, as a
threshold inquiry to determine the appropriate level of scrutiny.
Whatever role the undue burden test performs, either as a substitute
for strict scrutiny or to perform a sorting function, it needs to be
applied in evaluating the constitutionality of an abortion
regulation.
In
applying the undue burden test in Casey,
the Court found the spousal
notification provision to be an undue burden because it placed a
substantial obstacle in the path of a woman who wanted to terminate
her
pregnancy (withstanding a threat to her physical safety) and
therefore
struck down
the requirement. By contrast, the Court found that the 24 hour
waiting period requirement was not an undue burden (because it only
imposed economic burdens) and therefore upheld
that provision of the law. In applying the undue burden test, any
complete deprivation of the right (like a state law
forbidding abortion) obviously amounts to an undue burden on the
exercise of the fundamental right. A more complex issue arises only
when the
state imposes obstacles in the path of exercising the right, but
those
obstacles fall short of a complete deprivation. In such cases, it
will be necessary for courts to determine if the obstacles rise to
the
level of an undue burden or not. In Casey,
the Court stated: “An undue
burden is a shorthand for the conclusion that a state regulation has
the purpose or effect of placing a substantial obstacle in the path
of
a woman seeking an abortion of a nonviable fetus.” In
applying this test, the Court will uphold laws that are designed to
promote the state’s interest in potential life by attempting to
persuade women to choose childbirth over abortion so long as the
laws
do not create an undue burden on the exercise of the right. However,
a
law that has the purpose of hindering the woman's decision to
terminate
her pregnancy (as opposed to informing or persuading the woman)
imposes
an undue burden.
The undue burden test is applied by focusing on the group that is
the
most adversely impacted by the law rather than those who the law
regulates, but does not adversely impact. For example, in Casey, the Court focused on
poor
women and women who would have difficulty explaining their absence
from
home in deciding whether the 24 hour waiting period imposed an undue
burden, ultimately concluding that it did not. Moreover, the
spousal notification requirement in Casey was found to be an undue
burden by examining its impact on women who were victims of spousal
abuse rather than women who voluntarily told their spouses about
their
pregnancy. This same approach was applied in the two challenges
to partial birth abortion bans the Court has considered, but with
conflicting results. In Stenberg
v. Carhart, the Nebraska ban was struck down because it
would be an undue burden on women whose life and health would be put
at
risk by the unavailability of the partial birth abortion procedure.
By
contrast, in Gonzales v. Carhart,
the federal
ban on partial birth abortion was upheld by finding that it was
insufficiently clear in the context of a facial attack on the
statute
that the law would impose an undue burden on the health of any
particular group of women, but the Court preserved the possibility
of
future as-applied challenges by women with particular health
conditions who
might be able to show that the unavailability of the procedure was
an
undue burden as to them because it created a substantial risk to
their
health.
One question that arises is whether the undue burden test should be
applied to other fundamental rights or whether it is exclusively
used
in cases involving abortion. In many cases involving interferences
with
an aspect of the fundamental right of privacy, the issue need not be
resolved. This is because the law imposes a complete ban on the
exercise of the right (prohibiting the use of contraceptives,
prohibiting the members of a family from living together,
prohibiting
sodomy, etc.) and, therefore, there is no dispute about whether
it imposes an undue burden. However, in some cases involving less
than
total restrictions on the exercise of a fundamental right, the Court
has suggested the test might be appropriate. This is particularly
true
in some cases involving the right to marry. In some right to marry
cases, the Court has suggested a distinction between minor
intrusions
on the right to marry, such as waiting periods and
blood tests, which do not impose undue burdens on the exercise of
the
right to marry, and more major intrusions. In the case of lesser
intrusions, laws not creating an undue burden, the means must only
be
reasonable. By contrast, in the case of more
major intrusions on the exercise of the right to marry, such as not
allowing someone to marry as in Loving
and Zablocki, the law
must
satisfy rigorous review because the
state law imposes a substantial obstacle on the exercise of the
right
to marry.
It is impossible to know how widely the Court will employ the undue
burden test as compared to the traditional strict scrutiny test in
future fundamental right cases. Thus far it seems to have been
motivated to use the undue burden test in Casey by the difficult balance
between the rights of the fetus and the rights of the woman and
motivated in the marriage cases by the desire to avoid invalidating
myriad state regulations of the marriage relationship that impose
minor
barriers on the exercise of the right. In analogous situations,
the Court might decide to use the undue burden test as well to
screen
out lesser intrusions on the exercise of a fundamental right while
preserving the
strict scrutiny test for substantial intrusions.
On the exam, in analyzing potential fundamental rights that are
regulated by something less than a total prohibition, the undue
burden
test should be considered as an additional analytic approach, one
that
could receive additional credit, but not as a substitutute for
strict
scrutiny review. Since strict scrutiny is the traditional approach
for
analyzing infringements on a fundamental right under the Due Process
Clause (other than in the area of abortion regulations), it should
be
the primary method of analysis. The undue burden test is a secondary
mode of analysis that could be presented as an alternative.
Interestingly, in cases where strict scrutiny is the presumptive
standard, it is the government who has something to gain by arguing
that the undue burden test should be applied and not the challenger.
This is because if the government can convince a court that the law
imposes something less than an undue burden, the government will not
have to satisfy the strict scrutiny test. The challenger needs to
respond to this argument by arguing that strict scrutiny is the
appropriate due process standard and that, even if the court applies
the undue burden test, the law imposes an undue burden.
5. Distinguishing Between
Fundamental
and Nonfundamental Rights. In deciding whether a
right is
or is not a fundamental privacy right under the Due Process Clause,
the
Court uses several different
approaches:
(1) Reasoning by Analogy.
Here
the Court compares the right at issue to rights already declared
to be fundamental privacy rights (the right to choose whether or not
to
bear a
child,
the
right of an extended family to live together,
the right to marry, and the right to decide how
to
raise one’s
children) as well as those
declared
to be
nonfundamental liberty rights (the right of an adulterous father to
visitation rights with his biological child, the right of a group of
unrelated persons to live together, and the right of grandparents to
visitation rights with their grandchild over the objections of the
child's custodial parent) and decides which analogy is more
convincing. The Court used this approach in Bowers v. Hardwick to find the
right at issue to be nonfundamental.
(2) History and Tradition.
The
Court also looks to history and tradition to see if a right is
deeply rooted in the fabric of American society. We first saw
this approach in Griswold.
In
considering tradition, issues arise as to how broadly or narrowly
tradition is to be interpreted. This argument was at the core of
the disagreement between Justices Scalia and Brennan in the Michael H. case. Recently, in
Lawrence
v. Texas, a majority of the Court downplayed the
importance of history and tradition in overturning Bowers v. Hardwick. It is
difficult
to make extensive arguments based on history and
tradition in the exam context because you are usually not provided
with
specific historical materials to support such arguments. You can,
however, make use of general arguments about history and tradition
based on general knowledge.
(3) Intimate and Personal
Choices that are Central to Personal Identity.
As a third approach to deciding whether a right is a fundamental
privacy right, the Court also looks at whether the activity at issue
is
central to personal identity. This approach was used in Casey, for example. In that
case, the Joint Opinion stated: “These matters, involving the most
intimate and personal choices a person may make in a lifetime,
choices
central to personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment.” This approach was also
used in Lawrence v. Texas.
E. Application of the
Appropriate Test.
It is essential not only to identify the appropriate test, but also
to
apply the facts provided to that test. If the right is
nonfundamental, then review using minimum scrutiny to
make sure the state has chosen a rational means to a legitimate
end. In this review, the court is not bound by evidence of the
actual legislative purpose, but may consider hypothetical purposes
that
might support the law.
If the right is fundamental, then review under strict scrutiny to
make
sure that the state has chosen a narrowly tailored means to achieve
a
compelling state interest. In this review, make sure to consider
if there are any less restrictive alternative means available to the
government to achieve its compelling ends. In strict scrutiny
analysis, the ends have to be the actual objectives of the law.
As an alternative, if the case seems like one where the undue burden
test might apply because the intrusion on the fundamental right is
minor, not
cutting off the ability to exercise the fundamental right entirely,
you
should also
consider applying the undue burden test.
If there is any doubt about the character of the right at stake, and
whether it is fundamental or not (because the challenger is arguing
that the right is fundamental and the government is arguing that it
is
nonfundamental), be sure and present alternative
arguments on the application of the standard of review, if such
arguments are at all feasible. This means the challenger will argue
the
law is unconstitutional under the strict scrutiny test (applying the
facts to the test), but will also argue, in the alternative, that
the
law is unconstitutional under the minimum scrutiny test (applying
the
facts to the test). It also means the
government will argue the law is constitutional under the minimum
scrutiny test (applying the facts to the test), but will also argue,
in
the alternative, that the law is constitutional under the strict
scrutiny test (applying the facts to the test). In other words, the
challenger will argue that the law fails both tests while the
government argues that the law satisfies both tests.
V.
Equal Protection Clause of
the Fourteenth Amendment
Three standards of review are used in Equal Protection analysis:
A. Minimum Scrutiny Test (or
Rational
Basis or Minimal
Rationality Review).
This standard of review is used to examine laws that discriminate
against nonsuspect classes including economic classifications as
well
as classifications based on age, wealth, and mental disability. The
standard of review requires that
the use of the classification be rationally related to a legitimate
government justification. Equal protection analysis is
comparative, focusing on whether there is a rational reason for the
difference in treatment between those the law applies to and those
it
doesn’t apply to in light of the purpose of the law. In
applying
this
low level of scrutiny, a court can hypothesize about the reason for
the
use of the classification rather than limit its consideration to
actual
reasons for the use of the classification scheme. Moreover, a
classification can satisfy the test even if it as very inexact. It
can
include in the discriminated against class many people who do not
deserve to be included (overinclusive) while failing to include in
the
class many people who do deserve to be included (underinclusive).
Under
the
minimum scrutiny standard, to win the challenger must show either:
1. There is no legitimate purpose for the law. This was part of
the
Court's reasoning in U.S.
Department
of Agriculture
v. Moreno, for example, where the Court found that one
purpose
of the law was the desire to harm a politically unpopular group. The
Court concluded that such a purpose was illegitimate under the Equal
Protection Clause (see also Romer
v.
Evans for a similar conclusion); or
2. The classification scheme does not rely on a difference that is
at all designed to achieve the state’s purpose so that the
classification is not
rationally
related to the state’s objective. In Moreno,
for example, the law relied
on the difference between households of related persons and
households
with at least one unrelated person, but that difference was not
rationally related
to the government’s objectives of encouraging the purchase of
agricultural products or encouraging good nutrition. In the Court's
view, the use of the classification actually undermined those
purposes.
B. Intermediate Scrutiny Test.
Intermediate
scrutiny is used to review laws that utilize
classifications based on gender (this standard is used whether the
law
discriminates in favor of men or in favor of women) and other
quasi-suspect (also referred
to as semi-suspect) classifications. The intermediate scrutiny
standard
of review requires that the use of the classification be
substantially related to an important governmental justification.
Under
this form of rigorous scrutiny, the burden of proof is on the
government to show both an important objective and that the use of
the
classification is substantially related to that objective (Craig v. Boren). In
describing the burden on the government to justify classifications
based on gender, the Court in United
States
v. Virginia used the phrase "exceedingly persuasive
justification" to describe the required showing that the government
must make. In
this analysis, the challenger can present less discriminatory
alternatives to the Court and argue that the use of the
classification
is not substantially related to an important objective because the
government does not have
to use the challenged classification to achieve its objective since,
for example, gender neutral means are available. The government
can defend by showing that the less discriminatory alternatives
would
be less effective or that the use of the classification is
substantially related to its important objective even though there
is
not a perfect fit between the classification and the important
objective. The
challenger can also
make the following types of arguments to show that the government
cannot satisfy the intermediate scrutiny standard: (1) the state’s
objective is not important because it would
reinforce archaic stereotypes or overbroad generalizations about the
proper roles of men and women, (2) the important purpose asserted by
the government is not the actual purpose for the enactment of the
law,
or (3) the government seeks to achieve an
objective (such as administrative convenience) that is not
sufficiently
weighty and the government can defend by arguing that its actual
objective is
important because, for example, its objective is to help and not
harm
women. In the gender discrimination
cases, the Court is more sympathetic to different treatment rooted
in
biological differences rather than socially constructed differences,
although sometimes it is hard to distinguish between these two
sources
of difference. Intermediate scrutiny, unlike strict scrutiny, does
not
require that the use of the classification must be necessary to the
accomplishment of the governmental objective, however, the use of
the
classification has to create a fairly close fit between the class
being
regulated and the governmental objective sought to be achieved.
Unlike
under rationality review, under intermediate scrutiny the
classification cannot be substantially overinclusive or
substantially
underinclusive, but has to be drawn more exactly in relation to the
governmental purpose.
C. Strict Scrutiny Test.
Under
strict scrutiny review, used to review laws that utilize
classifications based on race or ethnicity and other suspect
classifications, the standard of review is whether the use of the
classification is narrowly tailored to achieve a compelling
government
objective. In these cases, the government sometimes lacks a
compelling objective and may even lack a legitimate one (as in Loving v. Virginia where the
objective was to maintain white supremacy). In addition, even
if
the government has a compelling interest, it cannot use
a suspect classification if there are any other means available to
the
government to achieve its compelling objective. Therefore, when
the government employs a racial classification, it must prove that
no
race neutral means would achieve its objective and that no less
discriminatory race-conscious equally effective solution is
available
either. To show that no race neutral means are available (or less
discriminatory race-conscious means), the government must show that
it
seriously considered available alternatives, but need not show that
it
actually tried the available alternatives.
D. Identifying the Nature of the
Classification. Under equal protection analysis, the
most
critical factor is the nature of the classification because it
controls
the choice of the standard of review. You should start by
identifying the classification - what groups are treated differently
under the law - with one group winning and the other group losing in
that it is receiving worse or disadvantageous treatment. You then
need to identify the basis for the difference in treatment - what
trait
distinguishes the winners from the losers? That is the trait that
serves as the basis for the classification scheme.
Once you identify the basis for the classification, you must figure
out
whether the group discriminated against is a suspect class, a
quasi-suspect class or a nonsuspect class. You then need to apply
the appropriate level of scrutiny to evaluate the constitutionality
of
the law. If the classification singles out a trait, like race, which
the Supreme Court has already found to be suspect, you should apply
strict scrutiny without any need to argue that the classification
should be subject to strict scrutiny because racial classifications
have characteristics that merit suspect class treatment. Since the
Court has already established that race is a suspect class, there is
no
need to make such an argument. In the same way, you need not
establish
that gender is a quasi-suspect class or age is a nonsuspect class.
However, if the classification at issue does not obviously, based
on precedent read during the semester,
belong in one of the three groups, but appears at first glance to
have
some similarities to classifications such as race or gender that
have
been considered suspect
or quasi-suspect, you should evaluate the characteristics of the
classification to determine its
constitutional status. This requires that you evaluate the status
of
the class
for equal protection purposes using the characteristics that the
Court has used to determine if a classification is suspect,
quasi-suspect or nonsuspect. While the Court has not created a
specific
list of the characteristics of a suspect or quasi-suspect class, and
lower courts vary in how they analyze such cases, such a list can be
extrapolated from the characteristics that have been employed
by the Court in deciding whether gender classifications and other
equal
protection classifications will be be
treated
as suspect, quasi-suspect, or nonsuspect. A list of 5 questions to
ask,
questions that focus on 5 characteristics of a suspect class, can be
derived from past cases:
(1) has the group singled out suffered from a history of
discrimination;
(2) does the trait generally bear no relationship to a person's
ability
to contribute to society;
(3) is the trait often singled out to reinforce prejudice against
the
group or label the group as inferior;
(4) is the group politically powerless by its numbers in the
population, by under-representation in government, or by its
inability
to influence the legislative agenda; and
(5) is the trait shared by the group a distinct trait and one over
which its members have no
control, an immutable or unalterable characteristic, or a trait that
is
central to personal identity.
In answering these 5 questions, the inquiry is based on the general
characteristics of the class and the treatment of the class
throughout
American history. This inquiry does not involve the specifics of the
law being challenged. In analyzing whether the classification is
suspect, quasi-suspect, or nonsuspect, it is irrelevant whether the
law
being challenged labels the members of the class as inferior, or
whether the trait bears no relationship to the ability to engage in
the
regulated activity. Answering the 5 questions focuses on whether the
law has generally singled out the trait as a way of labeling the
group
as inferior and whether the trait, as a general matter, is unrelated
to
a person's ability to contribute to society. The specific aspects of
the law being challenged as it applies to the class that it
discriminates against are only relevant once the standard of review
has
been identified and that standard is being applied to the challenged
law. This is why once a class has been categorized as suspect,
quasi-suspect, or nonsuspect and a standard of review has been
identified as applicable to discrimination against that class, that
standard applies in all cases in which the class is the victim of
discrimination.
Groups that share most of, but not all, of these characteristics may
be
quasi-suspect (like gender) and discrimination against them may
merit
intermediate scrutiny review. Realistically, quasi-suspect status
is the most a challenger can hope to achieve out of this analysis
since
the Court has shown itself to be unwilling to add to the category of
fully suspect classes. In cases where the challenger argues that a
class is quasi-suspect, but cannot know that the argument will
succeed,
the challenger will attempt to argue that the law is
unconstitutional
under both intermediate scrutiny and minimum scrutiny. Similarly, in
cases where the government argues that a class is nonsuspect, but
cannot know that the argument will succeed, the government will
attempt
to argue that the law is consitutional under both minimum scrutiny
and
intermediate scrutiny.
E. Purposeful Discrimination.
The
Equal Protection Clause is only violated by purposeful
discrimination. This is usually obvious because (1) the
discrimination is apparent on the face of the statute (Loving) or (2) the
discrimination is admitted by the government official whose action
is
being challenged (Palmore v.
Sidoti).
However, in cases where the challenger asserts that
the invidious discrimination is covert, the challenger must
introduce
evidence to show a discriminatory purpose. Such evidence can take
the
form
of, for example, statistical proof that the law is being applied in
a
racially discriminatory way even though it is neutral on its face (Yick Wo); statistical evidence
that
a facially
neutral law has a disproportionate impact on members of a particular
race or gender (Washington v.
Davis);
evidence of
irregularities in substance or procedure; or statements by some of
the
decisionmakers. The government can introduce evidence to overcome
the prima facie case established by the challenger by showing an
absence
of a discriminatory purpose (Washington
v.
Davis) or by showing that the government would have made
the
same decision in the absence of a discriminatory purpose.
On the exam, most equal protection questions will involve overt
discrimination (the classification is apparent on the face of the
statute) where there is no need to introduce evidence of purposeful
discrimination. If there is an issue about covert
discrimination,
you will be given some facts about the administration of the
statute,
arguably showing disproportionate impact, or facts about the
legislative history of the statute, arguably suggesting some purpose
other than the admitted purpose for the law such as a statement by
the
law's proponent that suggests racial or gender bias.
F. Benign Discrimination or
Affirmative Action. While invidious discrimination is
the
first concern of the Equal Protection Clause, benign discrimination
is
also actionable. In cases of benign gender or racial
discrimination or
affirmative
action, the Court applies the same standard of review (strict
scrutiny
for race and intermediate scrutiny for gender) it would use to
evaluate
cases of invidious discrimination.
1. In applying the intermediate scrutiny test to gender
discrimination
the government contends is benign, the Court will make sure that the
actual purpose and effect of the law is to help and not hurt women,
that the law does not reinforce archaic stereotypes (Mississippi University for Women v.
Hogan),
and that the important purpose cannot be achieved by means
that do not employ a gender classification such as individualized
review rather than class-based generalizations.
2. In applying the strict scrutiny test to racial discrimination the
government contends is benign, the following general statements can
be
made:
(1) The Court finds few ends to be compelling. Among the few
recognized
compelling objectives are remedying past invidious discrimination
by the specific government entity engaging in the affirmative action
and a
college or university seeking to achieve diversity in its student
body (Grutter);
(2) An admitted discriminator (e.g., a state school that previously
refused to admit minority students or a government employer who in
the
past has refused to hire minority employees) will have considerably
more latitude to remedy its own past discrimination than a
government
entity that has no such history of discrimination;
(3) Racial quotas are rarely if ever an acceptable means; and
(4) While other less drastic race-conscious remedies may be
necessary
(such as race as a plus on the scales), before upholding such a
measure, the court will require the government to consider available
race neutral means and find that race neutral means will not be as
effective in achieving the government’s compelling purpose.
(5) Even if the government demonstrates that it is necessary that it
use race-conscious means to achieve its compelling purpose, it will
be
required to use the most narrowly tailored (least discriminatory)
race-conscious means available to achieve its purpose. In Grutter, the Court
accepted Michigan’s argument that no race neutral means would
achieve
the university’s educational objective. While the Court upheld
the use of race in the University of Michigan’s Law School
application
process, it found unconstitutional the undergraduate admissions
process
in Gratz. The
Court concluded that the holistic approach used by the Law School,
where race was one factor among many weighed in assessing student
diversity and diversity was one factor among many factors used to
decide whether to admit a particular applicant, was constitutionally
acceptable as the most narrowly tailored (least discriminatory) race
conscious means available because the admissions process only
considered race as one factor among many and
did not assign a specific number of points to that factor. By
contrast, it struck down the undergraduate admissions system where
being a member of a historically under-represented race was worth 20
points without regard to the individual circumstances of particular
applicants. The undergraduate point system was viewed as closer
to the
quota system struck down in Bakke.