In any preemption case it is necessary to first determine 

Whether Congress had the power to enact the federal statute

(determine before considering whether or not the federal law preempts the state law in question)

BECAUSE a federal law may preempt a state law only if the federal law is a valid enactment.

Economic Substantive Due Process

The concept that businesses have a constitutional right to be free from government regulation.

H.P. Hood & Sons, Inc. v. Du Mond

Dormant Commerce Clause

NY Law restricting the exportation of milk as protectionist and the state did not have a legitimate purpose for enacting it 

ECONOMIC UNIT “NATION” – the states are not separable economic units – the state may not use its admitted powers to protect the health and safety of its people as a basis for suppressing competition.

Lochner v. People of the State of New York

Dissent

Holmes:

"[The] Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views..."

U.S. v. [President] Nixon

"Absent a claim of need to protect military, diplomatic, or sensitive national security secrets,

we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."

US v. Carolene Products

footnote 4

Strict Scrutiny Test Set Up

Ø  If the law affects a fundamental right, then the law is presumed unconstitutional

 §  “fundamental” usually just means a constitutional right

Ø  Burden of proof on the state to show that there is a compelling reason for the law

§  Compelling reason = "compelling government interest"

Ø  Law that has been adopted is likely to achieve those goal of the compelling governmental interest

Ø  Least restrictive means to achieve goal

Appointment Clause

THE RATIONAL BASIS TEST

(for laws not affecting a fundamental right)

The law in question is presumed constitutional and the burden of proof is on the challenger to prove that the law is unconstitutional.

1. Ends – there is a legitimate governmental purpose. [is the goal of Congress or the State legitimate?]

2. Means – appropriate? As in, does the law have any tendency to support the legitimate end?

NOTE – this is the minimal constitutional level that every law must pass.

"Fundamental Rights"

according to J. Cardozo

“implicit in the concept of ordered liberty”

"Fundamental Rights"

according to J. Cardozo

“the very essence of a scheme of ordered liberty”

"Fundamental Rights"

according to J. Cardozo

“a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”

"Fundamental Rights"

according to J. Cardozo

“a fair and enlightened system of justice would be impossible without them”

Executive Function =

Taking of any act by, or on behalf of the United States

Buckley v. Valeo

 Bibb v. Navaho Freightlines, Inc.

(what this case did NOT decide)

Dormant Commerce Clause: Safety Requirements

The court left the door open for innovation, saying that sometimes new safety devices that are inconsistent with the requirements of other states may be so compelling that they should be permitted

9th Amendment

Applied to Substantive Due Process

Acknowledges that there are unenumerated rights but is not often cited as a source of rights, because it is acknowledged that espressio unium does not apply to the Bill of Rights.

"the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"

Appointment Clause

Art. II, §2, cl. 2, of Constitution

Can Congress Impeach for any reason?

The Constitution does not contemplate an active role for Congress in the supervision of officers charged with the execution of the laws it enacts.

Can only impeach for conviction of treason, bribery, or other high crimes and misdemeanors.

Congress' Impeachment Power

Limited to the reasons in Art. II, §4 which includes "conviction of treatson, bribery, or other high crimes and misdemeanors".

Cannot impeach for other reasons such as“(i) permanent disability; (ii) inefficiency; (iii) neglect of duty; (iv) malfeasance; or (v) a felony or conduct involving moral turpitude.”

Bowsher v. Synar

Constitutional Source of FEDERALISM

Article I, Sec. 10 – imposes limitations upon the sovereignty of the states, providing that: states may not enter into treaties or agreements with foreign nations, coin money, or impose duties on imports or exports.

10th Amend – Expressly reserves to the states and to the people the powers that the Constitution does not delegate to the federal gov’t.

IN GENERAL – the Constitution gives the Federal gov't power to address matters that concern the whole of the nation, leaving the states to address matters that are of local concern.

FEDERALISM is

The vertical division of power between

FEDERAL, STATE, & LOCAL governments. 

Field Preemption

There a federal scheme of regulation that is so extensive/pervasive as to make reasonable the inference (demonstrate) that Congress left no room for the states to supplement it (an intent to occupy the field)?

J. Harlan on "Liberty"

--rational continuum

--freedom from all substantial arbitrary imposition and purposeless restraints

--certain interest require particularly careful scrutiny of the state needs asserted to justify their abridgment. 

Moore v. City of East Cleveland

J. Harlan on "Liberty"

“Appropriate limits on substantive due process come not form drawing arbitrary lines but rather from careful respect for the teaching of history (and) solid recognition of the basic values that underlie our society"

Moore v. City of East Cleveland

POLICY of both Federalism and Separation of Powers

Prevent the concentration of too much governmental power in the hands of a small group of people

POLICY rationale for Federalism

When certain gov’t functions are performed by the states, and others by the national gov’t, it is less likely that an individual can seize dictatorial powers.

Rational Basis Test

• If there is a rational basis for the law then it is presumed constitutional

• The burden of proof is on the one who is challenging the law as unconstitutional
• From Carolene Products

SEPARATION OF POWERS is

The horizontal division of power between

branches of the FEDERAL government.

Second Step in Preemption Case

Did Congress intend to preempt the State law?

2 Forms of Preemption: Express & Implied

2 Categories of Implied Preemption: Field & Conflict Preemption

U.S. v. Carolene Products

Economic & Substantive Due Process

Court upheld a federal law restricting interstate shipment of certain milk, ending the era of economic substantive due process in the Court.

This case setup the rational basis test for determining the constitutionality of legislation, which was a question of law, not of fact. Because it is a question of law, courts can conduct judicial inquiry (not bound by the laws of evidence – the judges can go outside the record).

U.S. v. Comstock

Scope of Congress' Power / Implicates Justiciability

--2010 case about a Congressional statute giving prisons the power to retain federal prisoners beyond their sentence if they are especially mentally ill or sexually dangerous to society.

--Prisoner challenged it, saying that Congress exceeded its power in passing this statute.

--The prisoner lost and Justice Breyer cited McCulloch in the opinion. He quoted Marshall’s discussion of the Necessary and Proper clause.

U.S. v. Comstock

In determining whether the Necessary and Proper clause gives Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

Dormant Commerce Clause

Market Participant Doctrine

Allows the States to favor their own citizens when the States are engaged in an economic transaction

Only applies when the State is acting as a market participant, and not when it acts as a market regulator.

Dormant Commerce Clause

Two situations where the States are free to act in a protectionist manner

Procedural Due Process

-- Property Interest can be created by a statute or common law; once created cannot be taken away w/o fair hearing

 Congress' Power: Commerce Clause

Cumulative/Aggregate Effects Test

--Congress may regulate an entire class of activity IF

--Congress has a rational basis for believing

--the class as a whole

--would have a substantial economic effect,

(even if a single activity, taken alone, would not have any interstate impact)

ie, If 10,000 people were to engage in the same kind of activity as the individual who is resisting regulation would it have a substantial effect on interstate commerce?

 H.P. Hood & Sons, Inc. v. Du Mond

Dormant Commerce Clause

NY Law restricting the exportation of milk as protectionist and the state did not have a legitimate purpose for enacting it 

CARDOZO: The constitution was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.

 Hamdi v. Rumsfeld

Separation of Powers: 

 Pres' Pwr to suspend right of habeas corpus

Pres. authorized to use “all necessary and appropriate force” against “nations, organizations, or persons” associated w/ 9-11 terrorist attacks

Even if Congress can authorize military detention of US citizen captured on a foreign battlefield, due process requires that an alleged “enemy combatant” be given opportunity to contest “enemy combatant” classification via writ of habeas corpus.

Court distinguished this case from Ex parte Milligan b/c Milligan "caught" @ home & in this case D "caught" on battlefield

 Martin v. Hunter’s Lessee

Judicial Review - Hierarchy of American Laws

(VA state ct. decision re: treaty vs state law - VA refused to follow SC direction)

--The Supreme Court has the power to review decisions of state courts on matters of constitutional law

--Art. IV requires state courts to make decisions in conformity with the U.S. Constitution.

--The “cases arising under the Constitution” are reviewable by the Supreme Court under Article III

Substantive Due Process: Marriage & Family

(law requiring parents to send their children to public school, in effect prohibiting private and parochial schools)

"Liberty" =  parents and guardians right to direct the upbringing and education of children under their control

Substantive Due Process: Marriage & Family

--The state has more authority over children than it does over adults.

--Especially true when it comes to employment law and public law.

--State has a duty to see that its young people mature into diligent citizens.

--State thus can enact constitutional legislation regulating the activities of children on the street and in employment roles (even if handing out religious pamphlets)

Dormant Commerce Clause: Market Participant Exception

The State operated a cement plant selling cement at low cost. The State adopted a policy that it would sell cement from the plant only to residents of the State.

Protectionist law, HOWEVER, State had the same freedom to choose its customers as private companies would.

 Separation of Powers:

Tripartite Approach

(Disputes b/w Pres. & Congress)

-- Congressional Approval: Express or implied authority from Congress

*Pres. at height of power

-- Silence: Absence of grant or denial of authority

*Pres. must rely on own independent powers / if concurrent power w/Congress then evaluate "imperatives of events" and "contemporary imponderables"

-- Disapproval: Incompatible with express or implied will of Congress

*only based on Pres' own powers minus Congress' power

 U.S. Curtiss-Wright Export Co.

Separation of Powers:

 Scope of Presidential Power (3 Types)

1. Express or “enumerated” pwrs, under Art. I § 8 (Pres@height of pwr)

2. Implied powers under “Necessary and Proper” clause, Art I § 8, cl. 18

3. Inherent powers, powers inherent in the concept of the national government. The principal inherent power is the foreign affairs power.

1. Judicial Enforcement

2. Joint Enterprise with the Government

3. Government encouragement or coersion

4. Public Function

5. Pervasive Entwinement

Allen v. Wright

Judicial Review: Standing

(parents challenge IRS’s lack of enforcement

- schools' discriminatory practices)

Standing was not granted to parents due to problems with plaintiffs’ claims meeting the “fairly traceable” causation requirement.

Habeas Corpus

"The privilege of the Writ of Habeas Corpus shall not be suspended"

Baker v. Carr

Judicial Review - Political Question / Justiciablity

(Factors)

1.  Textual commitment in the Constitution to President or Congress

2.  No judicially discoverable or manageable standards to apply

3.  Impossibility of deciding without an initial policy determination

4.  Decision would convey lack of respect for other branches

5. Political decision already made

MMultiple pronouncements - would be embarassing if diff. decisions by various depts.

Baker v. Carr

(Holding)

Judicial Review - Political Question / Justiciablity

Gerrymandering is a political question IF brought on grounds of unequal representation so doesn't constitute a “republican form of government,” as US is required to “guarantee” to the States under Art IV, § 4 of the Constitution

(b/c no justiciable standards to "rep. form of gov't")

NOT political question IF brought under grounds of equal protection guaranteed by 14th Amdt

Bibb v. Navaho Freightlines, Inc.

Dormant Commerce Clause

State law mandating curved mudflaps on semis traveling within the state, even though straight is the norm (and even mandatory in another state) is an example of local safety measures that are nondiscriminatory but which place an unconstitutional burden on interstate commerce.

-- Burden:  would have to drive around the state or change mudflaps at the boarders

-- Benefits: evidence did show that safety was NOT improved by this requirement, so the claim of safety benefit was illusory

State Action

Nursing home gets 100% of their income from Medicare/Medicaid.  Due process claim because a Alzheimer’s patient was moved w/o a hearing prior to the move.

Decision to move resident in nursing home and approval by Medicare did not rise to the level of state action because the key decisions were made by the nursing home (private parties). The State did not influence these decisions but rather only acted in conformity with them.

Board of Regents v. Roth

Procedural Due Process

--Rights under gov’t employment contracts may constitute “property” within the meaning of Due Process Clause.

-- Property Interest can be created by a statute or common law; once created cannot be taken away w/o fair hearing

--The Constitution does not vest title to property in any individual

-- When gov’t enacts or contracts, the person gains property rights against the gov

Procedural Due Process

--The Constitution does not vest title to property in any individual

-- When gov’t enacts or contracts, the person gains property rights against the gov

Boumediene v. Bush

(2008)

Separation of Powers:

Pres' Pwr to suspend habeas corpus for military detentions

Issue:Challenge to Millitary Commissions Act §7 which removed the right of habeas corpus

--Detainees entitled to habeas corpus (Art. I., § 9, cl. 2) b/c CSRTs (military tribunals set up after Hamdan under Military Commissions Act) provide inadequate judicial hearings (CSRTs poor alternative).

--Habeas corpus suspension is valid as long as the procedural hearings are fair and adequate.

--Detainees not barred from seeking habeas or invoking the Suspension Clause merely because they had been designated as enemy combatants or held at Guantanamo. Reversed and in favor of Detainees.

Boumedieve v. Bush

(What the court did NOT determine)

Separation of Powers: Pres' Pwr to Suspend habeas corpus

Made no judgment whether military tribunals satified due process

HOWEVER found there is considerable risk of error even if every party acts with diligence and in good faith which is why rt of habeas corpus must be allowed.

Even if tribunal provided for appeal of "enemy combatant" status, circuit court couldn't examine evidence beyond the limited fact gathering w/in the tribunal

Substantive Due Process: Sexual Orientation

Issue: fundamental right to engage in sodomy?

Holding: No

-- issue can be rephrased to understand as a right to privacy, right to engage in consensual sexual conduct, right to be free of criminal punishment for status versus conduct, etc.  Court does not do that in this case tho.

Bowsher v. Synar

Separation of Powers: Removal Power

Comptroller General removable for cause by joint resolution of Congress for i) permanent disability ii) inefficiency iii) neglect iv) malfeasance v) felony or conduct involving moral turpitude. Found to be unconstitutional

--Art II. § 2 – President appoints, Senate confirms. Constitution explicitly provides for the removal if the House impeaches and the Senate convicts.

-- Art. II §4 – Impeachment by the House and a trial by the Senate can rest only on “Treason, Bribery, or other high Crimes &Misdemeanors”

--THEREFORE Congress cannot reserve for itself the power of removal of an officer charged with the execution of laws except by the impeachment reasons listed in the Constitution

Buckley v. Valeo

 Separation of Powers: Appointment Power

(Act gave Congress pwr to appoint 4/6 federal election commissioners & Pres. pwr to appoint the other 2)

--Election Commisioners are "Officers of the US" b/c they perform administrative functions/enforcement of laws, not just recordkeeping and reporting functions

--Art. II, §2, cl. 2, of Constitution (Appointment Clause): “The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...all other Officers of the United States"

--THEREFORE Congress cannot retain pwr of appointment

State Action

State run public parking facilty in a joint venture with a restaurant.

Parking Facility did not stop restaurant's racial discrimination and the resulting in conferring the power to the restaurant to continue discrimination.  Inaction constituted a state action because they were in a joint venture.

Procedural Due Process

J. Kennedy (majority) - "On these extreme facts [judge who failed to recuse although clearly bought off by one of the parties] the probability of actual bias rises to an unconstitutional level.”

Chief Justice Roberts (dissent) - Unlike the established grounds for disqualification, a "probability of bias" cannot be defined in any limited way. The Court's new "rule" provides no guidance to judges and litigants about when recusal will be constitutionally required.

Federalism: Congress' Pwr to Enforce 14th Amdt

Federal Statute (RFRA) which invalidates all federal and state laws that substantially interfere with religious activities, unless the laws are necessary to accomplish a compelling governmental interest (strict scrutiny of gov't action).

Procedural Due Process

The Ohio statute plainly created property interest in a job.

--Were “classified civil service employees,”

--Entitled to retain their positions “during good behavior and efficient service,”

--Could not be dismissed “except ··· for ··· misfeasance, malfeasance, or nonfeasance in office.”

Clinton v. New York

 Separation of Powers:

Conferral of Authority Over Domestic Matters to Pres.

 (line item veto)

--When Pres. used line item veto, he, in both legal and practical effect, amended 2 Acts of Congress, by repealing a portion of each. There is no provision in the Constitution that authorizes the Pres. to enact, amend, or repeal statutes

--Art. I, §7 gives Pres. the power to return a bill before it becomes law

--The line item veto cancellation occurs after the bill becomes a law

--Congress cannot alter the procedures set out in Art. I §7 without amending the Constitution.

Substantive Due Process: Death

Rehnquist:Phrases the issue as does a person have a fundamental "right to die" (akafundamental right to refuse lifesaving medical treatment)?

Holding: no right to die.

Reasoning: Says the state has a substantial state interest in protecting life, therefore procedural process requiring “clear and convincing evidence” of patient's DNR, court can refuse to order removal of lifesaving medical treatment.

O'Connor: Phrases issue more like the right to determine the conditions of one's death.

Dames & Moore v. Regan

Separation of Powers: 

Pres. Pwr to Respond to Foreign Emergencies

Huhn compares to Youngstown

Either this case or Youngstown must be wrong! 

They cannot be reconciled. 

Both cases involved "emergencies" of war. 

But it seems far more necessary for Truman to have acted to seize the steel mill versus Carter's decision to save the diplomatic hostages in Iran.

Dames & Moore v. Regan

Separation of Powers: 

Pres. Pwr to Respond to Foreign Emergencies

(Pres. suspends claims against Iran in US Courts)

Pres. acted w/implied approval of Congress so constitutional power at max (Jackson's concur. in Youngstown / spectrum vs 3 categories)

Congress' acquiescence in past Pres. action supports such authority

Past practice does not by itself create power, but “long continued practice known to and acquiesced in Congress" raises a presumption that the action has been taken with Congressional consent

Substantive Due Process: Guns

Scalia (majority) – 2 purposes of the second amendment (militia and the right to bear arms)

There is a tradition of handguns in the home (not a majority tradition but a consistent one). Right of self-defense is a constitutional right (but, according to Huhn, probably under the 9^th amendment and not the 2^nd amendment)

Stevens (dissent) – 1 purpose (creation of the militia)

NOTE: Militia  was mentioned 5 times in the Constitution (reveals that it is was very much on the framers’ minds)

1. "fundamental rights" and "liberties" which are objectively rooted in the nation's history and tradition AND
2. implicit in the concept of ordered liberty (neither liberty nor justice would exist if these rights were not protected)

(careful description of liberty interest must be determined)

Substantive Due Process: Procreation

If the right to privacy means anything, its is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.  

Ex Parte Milligan

Separation of Powers:

Pres.' Pwr to Try Prisoners in Military Courts

"Martial law, established on such a basis, destroys every guarantee of the Constitution"

EXCEPTION: If there is a war that renders the courts inoperable, then military action can be taken to administer criminal justice IF necessary to preserve the safety of the army and society.

Limitation: only until courts are reinstated

Examples of Procedural Rights

1. Adequate notice;
2. Sufficient opportunity for discovery;
3. Right to attend the hearing;
4. Right to present evidence/testimony orally
5. Right to assistance of counsel;
6. Right to present evidence;
7. Right to compel the production of evidence;
8. Right to cross-examine adverse witnesses;
9. Right to a neutral decision maker or a jury;
10. A record of the proceedings, possibly with findings of fact and conclusions of law or an adequate explanation of the basis of the decision; 
11. Right to an appeal, perhaps to courts.

11th Amendment

-- States are immune from liability in damages in federal suits brought by private Ps in civil ct, or federal admin proceedings of quasi-adjudicative nature – Congress cannot abrogate this immunity

 -- However, Fed gov’t MAY sue a state in federal court for damages or civil penalties for violating a federal act

-- State officials are not personally immune under the 11A, although they enjoy Harlow v. Fitzgerald qualified immunity

-- 11A does not preclude Congress from subordinating a state entity to other creditors in a bankruptcy proceeding

-- States enjoy similar immunity in state court under 10A

(The end of) Economic Substantive Due Process

• Court upholds a Kansas law that prohibited any person from engaging in the business of “debt adjusting”
• This case stands for the proposition that the court cannot question the economic policy of the legislature
• "Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours."

State Action

City Marshall evicted tenants and arranged for storage of their household items in a privately owned facility. The facility threatened to seize and sell the tenants’ goods if they did not pay.

NOT state action because state law permitted but did not compel the facility to sell the items and such an action was not a traditional function exclusively reserved to the state.

Gade v. National Solid Wastes Management Association

Federalism: Preemption Doctrine

 The states have a compelling interest in the practice of professions in their boundaries, as part of the power to protect the public health, safety and other valid interest, they have board power to establish standards for licensing practitioners and regulating the practice of professions.

HOWEVER - any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.

Gibbons v. Ogden

Congress' Power: Commerce Clause

(steamboat b/w NY & NJ - Fed. Gov't issued license to one party but NY issue monopoly to another)

--Congress can legislate re commerce which concerns more States than just one (broad sweeping view of congressional power)

--Ability to affect matters w/in a state,if activity had commercial connection with another state.

--State issued monopoly conflicted with a valid federal statute therefore violated the Supremacy Clause

Procedural Due Process

Steps in Analysis:

1. (WHETHER) Does the Due Process Clause apply to the termination of welfare benefits? 
2. (WHEN) Does the Due Process Clause require a pre-termination hearing? 
3. (WHAT) What procedural safeguards does Due Process require at the pre-termination hearing?

Goldwater v. Carter

Judicial Review: Political Questions / Justiciability

Senator challenges President Carter’s termination of a treaty with Taiwan before seeking Congressional approval of the measure. Court says this is a political question because there were no judicially manageable standards for deciding it and because it involved a matter of foreign relations, which the President has much discretion in handling.

Substantive Due Process: Procreation

Congress enacted the Partial Birth Abortion Act of 2003, which identified the prohibited partial birth abortions more clearly than the Nebraska statute, which the Court struck down in Steinberg. This federal law still did not contain a provision about protecting the mother’s health, but the Court still upheld it

“whether the Act creates significant health risks for women has been a contested factual question. The evidence presented in the trial courts and before Congress demonstrates both sides have medical support for their position.”

Gonzales v. Raich

 Congress' Power: Commerce Clause

(Controlled Substances Act -  marijuana grown for personal, medical use)

HOLDING: Congress has the power to regulate the interstate, noncommercial cultivation and possession of marijuana for personal medical reasons.  

--SC based decision on Wickard: rationally believed that IF permitted cultivation of home-grown weed for medicinal use, the high demand would draw that home-grown CA weed into the interstate market, frustrating Congress’ purpose of banning interstate commerce in weed.

Procedural Due Process: School Discipline

before being suspended for 10 days or more, a student is entitled to: --oral/written notice of the charges

--explanation of the evidence the authorities have

-- opportunity to present his side of the story.

The Supreme Court ruled that mandatory attendance laws create a “property” or “liberty” interest in being allowed to attend the public schools.  As a result, public school students may not be suspended or expelled until they have been granted “some form of hearing.”

Substantive Due Process: Procreation

(Court strikes state law criminalizing use of contraceptives b/c violated fundamental right of privacy / could not pass strict scrutiny)

THE PENUMBRA OF PRIVACY – some guarantees found in the Bill of Rights create zones of privacy.

Without the peripheral rights, the specific rights are less secure.

Hamdan v. Rumsfeld

(2004)

 Separation of Powers:

Pres' Pwr re: Military Tribunals w/o Procedural Due Process

--If the Executive undertakes to try a detainee using a military commission, it is obliged to comply with the law that prevails in that jurisdiction (Geneva Convention and UCMJ), at least absent express expansion of Executive power by Congress

--“Regularly constituted court” = ordinary military courts

--SUPERSEDED by §7 of Military Commissions Act of 2006 (MCA) closed the loophole that had been left open by the Detainee Treatment Act and eliminated the right of habeas corpus in future pending cases

Hamdi v. Rumsfeld

Separation of Powers:

Pres' Pwr to suspend right of habeas corpus

Huhn's Analysis

Amdt V "No person..." suggests that it doesn't matter if a US citizen, should be guaranteed (no imprisonment w/o due process)

Art. I, Sec 9, cl. 2 (limitations on state power) impliedly establishes right of habeas corpus, b/c says rts&privileges can't be taken away, however no where else in const. is rt issued but similar to due process 

"The privilege of the writ of habeas corpus" suggests it's natural right

Hammer v. Dagenhart

Congress' Power: Commerce Clause

(The Child Labor Case)

--Majority: Congress may not regulate production of goods, only travel. Regulation of the way in which products are made (via child labor) is not a regulation of travel of goods but their production.

--Dissent: Congress has the power to regulate this commerce in unqualified terms. Regulation is the same as prohibition. When a state seeks to send their products across state line, they are no longer within their rights of regulation

MAJORITY OVERRULED by NLRB v. Jones & Laughlin Steel Corp

Heart of Atlanta Motel, Inc. v. United States

  Congress' Power: Commerce Clause

(Congress may prohibit racial discrimination by motels serving travelers, however “local” their operations may appear.)

TEST:

1.  Whether the activity sought to be regulated is commerce;

2.  Which concerns more States than one; and

3.  Has a real and substantial relation to the national interest.

HOLDING: Discrimination by hotels/motels impedes interstate travel by impairing black traveler’s pleasure and convenience and in discouraging travel of a substantial part of the black community.

Humphrey’s Executor v. U.S.

Separation of Powers: Removal Power

Act says that Pres. can remove officers from the Federal Trade Commission for “inefficiency, neglect of duty, or malfeasance in office.” Roosevelt removed one of the FTC guys to replace him with his own man.

Officers who are not subject to the exclusive and illimitable power of the chief executive [aka inferior officer who undertakes both legislative and judicial type of activities] cannot be removed by the president at will

Hunt v. Washington Apple Advertising Commission

Dormant Commerce Clause

NC enacted statute requiring all product to use only USDA grades on their label. This deprived another state of use of its superior grading scale.

The court found this was discriminatory state law with the legitimate purpose of consumer protection (protect from deception, fraud, and confusion)

HOWEVER, the benefits were illusory (in that consumers were not actually better informed) AND there were other, readily available adequate nondiscriminatory means to achieve the goal

THEREFORE law was found unconstitutional.  

INS v. Chadha

Separation of Powers: Oversight of Administrative Agencies

(attempt by Congress to retain control over deportation order by “one-house legislative veto” found to be unconstitutional)

--This legislative veto violated the Presentment Clause, which requires legislation be presented to the President for approval or veto.

--One House veto also violates Bicameralism requiring that both houses enact a measure in order for it to become a law.

--The veto provision violated the Separation of Powers doctrine and is therefore unconstitutional

Procedural Due Process: School Discipline

Students have a “liberty interest” in not being paddled HOWEVER tey only due process they should be afforded is the opportunity to sue school officials for battery after the fact.

State Action

Electric company shutting off customer's power was not state action for the purposes of enforcing procedural due process rights.

J. Rehnquist - State-granted monopoly status does not confer enough governmental power on the actor to make it a state action.

Reasoning: Electric supply is not a power traditionally associated with sovereignty. The furnishing of utility services is neither a state nor a municipal duty.

Judge Nixon v. U.S.

Judicial Review: Political Questions / Justiciability

Review of impeachment is a political question and thus nonjusticiable because of the textual commitment in the Constitution

(“Congress shall have the sole power to try all impeachments”)

Kassel v. Consolidated Freightways Corp.

Dormant Commerce Clause

Where a state’s safety interest has been found to be illusory, and its regulations impair significantly the federal interest in efficient and sage interstate transportation, the state law cannot be harmonized with the Commerce Clause.

-- STATUTE started as safety, but shifted to protectionist because it included exceptions for in state folk (Iowa border towns).

--PROTECTIONIST is illegitimate purpose – burdens out weight the benefits, so per se unconstitutional.

Katzenbach v. McClung

  Congress' Power: Commerce Clause

(Restaurant allowed white people to eat there but African American’s had to get take-out)

Rationale for application of Title II to priv. business under CC

--Although there is no direct evidence of effect on commerce there is a close connection to interstate commerce.

--Discourages travel and obstructs interstate commerce.

--Discrimination also deters professional and skilled people from moving into areas where such practices occurred and thereby caused industry to be reluctant to establish there.

Substantive Due Process: Sexual Orientation

The right to liberty under the Due Process Clause gives the petitioners the full right to engage in their conduct (sodomy) without intervention of the government. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

-       A moral basis for criminalizing certain conduct is not enough to make such a law legitimate, especially when the law deals with personal and intimate choices (Constitutional rights).

-       “Our obligation is to define the liberty of all not to mandate our own moral code.”

-       Intimate and personal decisions are central to the liberty protected by the fourteenth amendment.

Lochner v. People of the State of NY

Majority

Economic Substantive Due Process

(NY statute prohibiting bakery EEs from working more than 60hr/wk or more than 10/hr/day)

J. Peckham

Law struck b/c based on rationale that the general right to contract in relation to  business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.

Contract based rights brought to an end by US v. Carolene Products

Substantive Due Process: Marriage & Family

Court found that State statutes criminalizing interracial marriage were depriving individuals of a liberty (fundamental right to marry) without the due process of law guaranteed by the 14th Amend. Under the U.S. Constitution the freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by the State.

“Marriage is one of the ‘basic civil rights of man’ fundamental to our very existence and survival.”

State Action

“A private party’s joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a “state actor” for purposes of the 14^th Amendment.” 

Lujan v. Defenders of Wildlife

Judicial Review - Standing

Standing: No standing granted because plaintiffs injuries were hypothetical, attenuated from government causation, and not easily redressable by the requested remedy. Ct ruled against Π’s because they did not have concrete plans to return to the habitats so the harm was not yet actual or imminent.

Substantive Due Process: Procreation

The government does NOT have to fund abortions. Roe v. Wade held that there is a constitutional right not to have the government burden our right to an abortion, NOT that we have the “right to an abortion.”

Dormant Commerce Clause

State enacted a law prohibiting people from brining baitfish into the state from out-of-state.

Law is discriminatory but the purpose is legitimate (prevent a parasite) so the Court upheld as constitutional.

2 PART TEST

(when state law is shown to discriminate against interstate commerce either on its face or in practical effect)

(BOP- falls on the State)

1. The statute serves a legitimate local purpose; and

2. Purpose could not be served as well by available nondiscriminatory means

Marbury v. Madison

Judicial Review - Hierarchy of American Laws

It is the Supreme Court, not Congress, which has the authority and duty to declare a congressional statute unconstitutional if the Court thinks it violates the Constitution.

State Action

A corporate town that was open to the public was denying citizens the right to read and distribute religious materials on its streets.

IS state action – the more an owner opens his property to the public (making it a public function), the more his actions are subject to the Constitution.

Procedural Due Process

--SSDA eligibility was terminated without the opportunity to orally present evidence or to cross examine witnesses prior to termination.

--Was given notice of termination

--Argued that he should have the right to present his own evidence in person at the pre-termination hearing and the right to cross the medical witnesses at the pre-termination hearing.

Matthews 3 Part Test

(What & When of Procedural Due Process)

1. Private/Personal Interest – how strong is the private interest (that will be affected by the official action) of the individual in securing the procedural safeguard being requested?

2. Risk of error/value of additional procedures – what is the risk of error (risk of erroneous deprivation of interest) of the proceeding going forward without the procedural safeguard, and what is the value that the procedural safeguard will add to the proceedings? Will the outcome change if we don’t allow it?

3. The gov’ts interest – What is the government’s interest in not providing the specific procedural safeguard that is requested? (including the fiscal and administrative burdens that the additional or substitute procedural requirement would entail)

McColloch v. Maryland

Judicial Review - Hierarchy of American Laws

(Maryland imposed a tax upon the Bank of US)

--The Supremacy Clause of Article IV establishes federal judicial power over the acts of state officials

--The preemption of state law by Fed. law is based upon the concept that the people of the US have the right to govern themselves, and they may not be overruled by the people of a single state.

--In every preemption case, the Court asks, “Did Congress intend to preempt the State law?”

Substantive Due Process: Guns

-       the court struck down a similar ordinance as the one in Heller. The 2^nd amendment is applicable against the states under the 14^th amendment.

o   Right to bear arms is a fundamental one because it is “deeply rooted in the Nation’s history and tradition.” (Patriots during the Revolution, cowboys on the western frontiers, etc)

o   States are still allowed to enact reasonable regulation on the possession of handguns

Substantive Due Process: Marriage & Family

(Law against teaching foreign language before high school.)

- Case stands for the proposition that the constitution protects liberty and liberty includes:
 * freedom from bodily restraint
 * right of individual to contract
 * Engage in common occupations of life
 * to acquire useful knowledge
 * to marry
 * to establish a home and bring up children
 * to worship God according to the dictates of his own conscience
 * to enjoy privileges long recognized at common law 

Substantive Due Process: Marriage & Family

(Bastard daddy doesn't get rights over husband - paternity can only be challenged by husband or wife, not 3rd party)

Is parenthood a fundamental right? NO

J. Scalia (majority) -adopting the tradition that is more “on point” will prevent arbitrary decision making – “A rule of law that binds neither

O'Connor -The Court should not “foreclose the unanticipated by the prior imposition of single mode of historical analysis.”

Substantive Due Process: Marriage & Family

When the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.

City enacted a ‘single family home’ ordinance that made it illegal for P to live with her grandchildren.

Rationale of the city:
- prevent overcrowding
- minimizing traffic and parking
- avoid undue financial burden on school system

Failure of Rationale:

- doesn't prevent people from having tons of kids in same house

- doesn't prevent people from having lots of cars, and doesn't take into account people who use public transportation

- doesn't have any provisions about # of children

State Action

State regulation (liquor license at a private lodge) does not equal conferral of state power. Thus, state regulation does not pave the way for state action.

Morrison v. Olson

 Separation of Powers: Appointment & Removal Power

Act allowing appointment of independent counsel by Court & removal by attorney general found to be constitutional

--Congress has broad discretion to delegate appointment of inferior officers even if it is appointment across branches of the gov't

--Removal restrictions DON'T impede Pres' ability to exercise execute the laws IF

** it is not essential that counsel be removable "at will"  

**control over the officer not central to functioning of Exec. Branch

Myers v. U.S.

Separation of Powers: Removal Power

Act: Postmaster can be removed by the President only "by and with the advice and consent of the Senate."

Issue: Can Congress involve itself in the removal of an executive official (postmaster)?  NO

-- Constitution gives the express right to the Pres. to appoint administrative officials which implies that Pres. remains responsible for them and should thus also have the sole power to remove them

--THEREFORE statute limiting Pres’ pwr of removal is unconstitutional

N.L.R.B. v. Jones & Laughlin Steel Corp.

Congress' Power: Commerce Clause

(Affectation Doctrine)

Commerce Clause invests Congress with the power to regulate all economic activity which, in the aggregate, substantially affects interstate commerce, and not merely trade or the movement of goods

NCAA v. Tarkanian

&

Brentwood Academy v. Tennessee Secondary School

State Action

Public institutions form a substantial percentage of the member institutions to the athletic association

HOWEVER the public officials in Tarkanian all came from different states so associaiton does NOT represent the public institutions of any one particular State so NOT state action whereas in Brentwood they did.

"The nominally private character of the Association is overborne by

pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it.”

Federalism: "No Commandeering" Principle

(Low Level Radioactive Waste Policy Amendments Act)

Congress is coercing states (not merely encouraging) with “take title” provision which requires states to keep their own nuclear waste if they dont have a processing plant that meets fed. regs.

The federal government cannot compel the States to enact or administer a federal regulatory program.  Monetary incentives and access incentives however were constitutional.

Substantive Due Process

Ct greed w/the state that 5th Amdt Rts NOT incorporated by 14th Amdt. Case later overrruled, however, J. Cardozo coined phrases for definition of "fundamental right."

Perez v. United States

   Congress' Power: Commerce Clause

Commerce clause reaches 3 categories of problems:

1) the use of channels of interstate or foreign commerce which Congress deems are being misused (kidnappings)

2) the protection of the instrumentalities of interstate commerce (thefts from interstate shipments)

3) those activities affecting commerce (3^rd category is at issue here)

-- loan sharking “the 2nd largest source of revenue for organized crime

Procedural Due Process

property interest in continued employment?? 

state junior college professor may have had de facto tenure in his employment based upon a statement in the college's Faculty Guide:

"faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory and as long as he displays a cooperative attitude toward his co-workers and his superiors, and as long as he is happy in his work."

Philadelphia v. New Jersey

Dormant Commerce Clause

NJ statute enacted to stop the importation of garbage from other states because its own landfills were filling up. The Court found the law to be protectionist (illegitimate goal - protection of natural resources for the use of in-state-citizens) and thus unconstitutional per se.

Substantive Due Process: Procreation

Woman’s suffering through pregnancy is too intimate and personal for the state to insist upon its own vision of the woman’s role. The destiny of the woman must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.

Federalism: "No Commandeering" Principle

SC invalidated a federal law requiring state and local law enforcement officials to conduct background checks on prospective handgun purchasers

Holding: Congress cannot unilaterally require that executive branch state official enforce federal law

Rationale: The power of the Fed Gov’t would be augmented immeasurably if it were able to impress into its service the police officers of the 50 States.

Rule: The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.

Procedural Due Process:

Termination of Gov't Benefits

1. Notice of the basis for the termination of benefits;
2. Claimant be allowed to present evidence orally;
3. Allowed representation by counsel;
4. Allowed to cross-examine witnesses;
5. Decision based upon evidence produced at the hearing;
6. Ruling should state the reasons for the decision;
7. Impartial decision maker. 

Goldberg v. Kelly

Rasul v. Bush

Separation of Powers: 

Pres' Pwrs to suspend right of habeas corpus

Fed. cts have jurisdiction over gov't officials who have custody of prisoners and that the courts therefore have statutory jurisdiction to issue writs of habeas corpus on behalf of detainees

Holding also reiterated in Boumediene case.

PREEMPTED by Detainee Treatment Act of 2005 removed the jurisdiction of the federal courts to hear petitions for habeas corpus in future cases

State Action

New Perspective School was a private entity but received over 90% of its funding from public sources. Question whether school performed "public" function. 

"Public"function performed must be “traditionally the exclusive prerogative of the State.  This school’s creation was a “legislative policy choice” not a mandated public function.  School not compelled or influenced by the state to take the discriminatory action.

Substantive Due Process: Procreation

Right of a pregnant woman to terminate pregnancy:
1. Personal "liberty" embodied in 14th Amndt's due process clause
2. Personal marital, familial, sexual privacy protected by penumbra of rights embodied in the Bill of Rights (precedent)
3. Rights reserved to the people by the 9th amendment (Griswold concurring opinion by J. Goldberg)

At point of "viability" the state’s interest in the protection of life, health, medical standards become constitutionally compelling and allow for regulation.

Separation Of Powers Approaches

(by Supreme Court Justice)

Text – Burger, Black, Scalia (strict enforcement of Separation of Powers per the Constitution)

Policy – White, Jackson, Rehnquist (lenient enforcement of Separation of Powers per the Constitution; allow Congress and the Executive Branch to experiment)

Tradition - Frankenferter (rejects Black's textual approach to resolving separation of powers problems.)

State Action

Judicial enforcement of a restrictive covenant was state action in violation of the 14th Amend.

Merely entering into a contract with another private party is not state action, but judicial enforcement of a contract is state action.

Holding: Judicial Enforcement in this case constituted full coercive state power to deny Ps the their property interest on the basis of race. [Equal protection violation]

Substantive Due Process: Procreation

Court struck down eugenics law that sterilized folk convicted of 3 or more crimes of moral turpitude. Marriage and procreation are fundamental rights. This is not about the police power of the states, its about fundamental rights.

Substantive Due Process

--Historically significant because of the interpretation of the 14th Amend

-- In the beginning, “privileges and immunities” meant all the rights of the citizens.

--SC was hostile to the 14th Amend for a few years and this case made “privileges and immunities” worthless. [still law today]

Sources of Penumbra

Privacy Rights

1) Bill of Rights

 -- EX: Amdt 3 -prevents the quartering of soldiers in any house in times of peace without the consent of the home owner -- zone of privacy in the home

2) Amdt 9 - Rights retained by the people

South Central Timber Development v. Wunnike

Dormant Commerce Clause: Market Regulator

(NOT Market Participant)

The State owns large amounts of natural resource Condition of sale of natural resource was that purchaser would have it processed w/in the state.

State not acting as a “seller” but rather as a “regulator,” b/c was attempting to control the use of the product after it was sold.

Law is protectionist and therefore unconstitutional

Federalism: Spending Clause

(Act of Congress authorizing the withholding of 5% of federal highway construction funds from states where the drinking age was under 21 is a valid exercise of spending power)

THE FIVE PART TEST

1. The spending must be for the general welfare;

 --in considering whether a particular expenditure serves general public purposes, courts should defer substantially to the judgment of congress (the voice of the people, yo). 

2. Any condition must be unambiguous and express in the statute;

 --so states can make an informed choice cognizant of the consequences of their participation.

3. Any condition must be related to the purpose of the funding;

4. Condition itself may not violate the constitution;

 --the spending cannot facilitate a Constitutional violation.

5. The condition may encourage, not force.

 --No commandeering – induce, not compel.

Southern Pacific Co. v. State of Arizona

Dormant Commerce Clause

State adopted a law limiting the length of trains for safety purposes.

Court found this law to be evenhanded BUT

the burdens on interstate commerce outweighed the benefits to the state so the law was invalid/unconstitutional.

Stare Decisis Test

from Planned Parenthood v. Casey

At least one, probably more, of the factors should be at issue before a case is overturned:

1. Is the rule in the case now practically unworkable?
2. Was the rule in the case relied on so much that overturning it would be costly? (statutory interpretations are harder to overturn than constitutional interpretations)
3. Has the case been undermined by subsequent decisions?
4. Have the facts or understandings of the facts changed? (economic substantive due process à laissez-faire policy is not so important, racial segregation à racial superiority is no longer part of our collective psychology)

Substantive Due Process: Procreation

Nebraska law criminalizing “partial birth abortions” (in which a fetus was partially delivered before being terminated) was found to be unconstitutional because:

The statute doing so allowed this procedure when the mother’s “life” was at risk but did not speak to situations in which the mother’s “health” was at risk.

Where significant encroachment upon personal liberty, the state may prevail only upon showing a

Subordinating interest which is compelling.

The law must be shown to be necessary and not merely rationally related, to the accomplishment of a permissible state policy.

The 5 Part Spending Clause Test

1. The spending must be for the general welfare;

 --in considering whether a particular expenditure serves general public purposes, courts should defer substantially to the judgment of congress (the voice of the people, yo). 

2. Any condition must be unambiguous and express in the statute;

 --so states can make an informed choice cognizant of the consequences of their participation.

3. Any condition must be related to the purpose of the funding;

4. Condition itself may not violate the constitution;

 --the spending cannot facilitate a Constitutional violation.

5. The condition may encourage, not force.

 --No commandeering – induce, not compel.

 Substantive Due Process: Marriage & Family

Liberty requires the burden of proof to be on the challenger, as does the Constitution.

The court is NOT saying that the right of parents to raise their children is an absolute right.  They are saying that the burden of proof is on the state to justify the infringement of the fundamental right. 

Fundamental right of parents to make decisions concerning the care, custody, and control of their children.

Rationale: There is a presumption that fit parents act in the best interests of their children. So long as the parent adequately cares for his or her children (is fit), there will normally be no reason for the State to interject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of those kids.

U.S. v. Curtiss-Wright Corp

Separation of Powers:

Scope of Presidential Power

--President should have broad, personal discretion in making foreign affairs decisions.

--Congress should not meddle with such a sphere.

--President has better grip than Congress could ever have on the conditions of foreign affairs (confidential relationships with foreign ministers).

U.S. v. [President] Nixon

 Separation of Powers: Executive Privilege

(Pres. claimed incriminating tapes of Oval Office discussions re Watergate were privileged b/c of need of presidential privacy)

-- Executive privilege is best invoked for national security matters.

--The Pres has an important interest in his right to privacy but the adversarial nature of the judicial system in America requires a full picture of the facts. No one is above the rules of discovery/evidence.

--The legitimate ends of the judicial process outweigh Presidential privilege in this case

U.S. v. [President] Nixon

 Pres. claimed incriminating tapes of Oval Office discussions re Watergate were and intra-branch dispute & therefore political

 Factors of Justiciability Applied to Intra-Branch Disputes

Doesn't matter that Pres &AG are in the same branch of gov't... is still justiciable.

-- Power Designated: Pwr to conduct criminal litigation is specificly designated to Attorney General by Art. II, §2

-- Judicially discoverable standards:Explicit power to contest the invocation of executive privilege in the process of seeking evidence deemed relevant to the performance of these specially delegated duties

Federalism: Congress' Pwr to Enforce 14th Amdt

(Congress can’t broadly regulate violence against women)

--Activity being regulated was essentially non-economic (Arguments that gender motivated violence was economic was too far attenuated).

--Thus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.

--If Congress was allowed to regulate gender-motivated violence, it would be able to regulate murder or any other type of violence.

United States v. Darby

Congress' Power: Commerce Clause

(Fair Labor Standards Act of 1938 establishing wage and hour requirements)

--Congress may regulate literal shipments of goods across state lines even if motive of regulation was to control aspects of local production.

--Employees under substandard labor conditions engaged in the production of goods for interstate commerce is so related to the commerce and so affects it as to be within the reach of the power of congress to regulate it.

United States v. Lopez

Congress' Power: Commerce Clause

(Guns Free School Zone Act which prohibits guns near schools found to be unconstitutional)

For activities which affect interstate commerce

(not instrumentalities, things, or people w/in commerce)

--Standard is that the activity must “substantially affect” (not merely have any effect on) interstate commerce in order to be within Congress’s power to regulate it under the Commerce Clause.

United States v. Morrison

 Congress' Power: Commerce Clause

(Violence Against Women Act)

--Activity regulated [private, interpersonal violence] is non-economic

--Regulation of crime is traditionally w/in relm of state police power so then [slippery slope argument] therefore if Congress can regulate gender-motivated violence, it would be able to regulate murder or any other type of violence

Substantive Due Process: Death

When does the Action of a Private Party

Constitute State Action?

1)    When the government significantly involves itself in the action of the private party

2)    When the nexus between the private party and state sufficiently close such that the action of the private party is fairly attributable to the government

-- The required nexus may be present if the private entity has exercised powers that are "traditionally the exclusive prerogative of the State." Jackson v. Metropolitan Edison Co.

Wickard v. Filburn

 Congress' Power: Commerce Clause

(Homegrown wheat for personal consumption)

[cumulative/aggregate effects test]

--Congress may regulate an entire class of activity if [Congress has a rational basis for believing] the class as a whole would have a substantial economic effect, even if a single activity, taken alone, would not have any interstate impact.

-- If 10,000 people were to engage in the same kind of activity as the individual who is resisting regulation would it have a substantial effect on interstate commerce?

Youngstown Sheet and Tube v. Sawyer

Separation of Powers: 

Pres. Pwr to Respond to Foreign Emergencies

Majority

Pres’s power to regulate civilians as commander in chief, limited to when war already taking place / outside the theater of war, no power over civilians

No enumerated power of the president to seize private property

(Property seizure is properly w/in relm of Congress' powers)

Distinguishable from Curtiss-Wright b/c Congress didn't specifically give Pres.  authority to take action, even though they didn't object after they found out.

Youngstown Sheet and Tube v. Sawyer

 Separation of Powers:

Pres. Pwr to Respond to Foreign Emergencies

Concurrence - Tripartite Approach

(only applicable for disputes b/w power of

executive vs  legislative branches)

Congressional Approval – Express or implied authority from Congress (at height of power)

Silence – Absence of grant or denial of authority (Pres. must rely on own independent powers / if concurrent power w/Congress then evaluate "imperatives of events" and "contemporary imponderables")

Disapproval – Incompatible with express or implied will of Congress (only based on Pres' own powers minus Congress' powers)

J. Marshall - "Reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed"

(statute that prohibited any person who is behind in paying child support from entering into another marriage)

Substantive Due Process: Marriage & Family

Statute that prohibited any person who is behind in paying child support from entering into another marriage.

J. Marshall -

"...prior and subsequent decisions of the Court confirms that the right to marry is of fundamental importance for all individuals."

"Cases ... have routinely categorized the decision to marry as among the personal decisions protected by the right of privacy."

[Governor] Bush v. Schiavo

Separation of Powers:

Delegation of Power to Executive Branch

(Florida legislature granted the governor executive power to intervene in a court decision concerning the withdrawal of life support)

--Legislature neglected to include appropriate guidelines/restrictions on this power for the governor

--Would set a precedent for the legislature and the governor to overturn any court decision with which it disagreed.

--The Governor’s executive order overruling was an unconstitutional encroachment on the judicial branch b/c purely judicial acts are not subject to review as to their accuracy by the Governor