Questions and answers (part 3)

QUESTION: Are there any meaningful differences in the standards for using the 14th Amendment to invalidate State action based on Substantive Due Process for enumerated or unenumerated rights? In Lochner and Griswald, after finding that the case implicated a fundamental right, the Court applied strict scrutiny. Was this necessary with the incorporation cases?

ANSWER: There is no difference in the standards. (Many of the incorporation cases were decided before the modern era, or in the field of criminal procedure, thus we did not see this reference to strict scrutiny. But there is no difference in the practical effect.)

QUESTION: In the context of determining if an unenumerated right is "fundamental" and if a statute violates that right, how narrowly can the Court frame the issue?

ANSWER: The justices differ on this issue. I think it is fair to say that there is a large amount of discretion in how a judge perceives the "right" at issue in a given case. (And it may partly depend on how the litigant has framed or argued the point.)

QUESTION: In Bowers, the Court asked if there was a fundamental right for homosexuals to engage in sodomy when the statute actually prohibited all acts of sodomy, while in Lawrence they frame the issue more generally not to find a fundamental right in homosexual sex but to protect the "most private human contact in the most private places." Is there a standing or a advisory opinion problem when the Court frames the issue to encompass the constitutionality of the entire statute instead of the statute as applied in the case?

ANSWER: You raise two related but distinct questions. The framing of the right at issue is a conceptual question: what right protected by the Constitution is arguably violated by this governmental action? The facial vs. as-applied distinction concerns the nature of the litigant's constitutional challenge. Has the litigant argued that the statute is facially invalid, meaning that there are no constitutional applications of the statute? Or instead has she argued that, although the statute might be valid as applied to other persons, it is unconstitutional as applied to her? (The right at issue might be characterized as narrowly or broadly in either a facial or an as-applied challenge.) And yes, there is sort of a standing-like issue when a litigant is attempting to use her case to challenge the constitutionality of a statute as applied to other persons. This is why facial challenges are generally disfavored (outside the context of the First Amendment).

QUESTION: Would it matter if the law had been geared explicitly at only homosexual sodomy and didn't regulate sodomy generally?

ANSWER: Not to sound too Clintonian, but it depends on what you mean by "it" here. Again, the conceptualization of the right at issue sort of exists at the level of understanding the Constitution. So what the statute proscribes should not really affect that analytic move. But yes, what the statute proscribes (and what conduct the litigant has or will engage in) will affect whether the statute can validly be attacked as facially unconstitutional.

QUESTION: Is there a good way of distinguishing the Minnesota v. Clover/ Exxon (no discrimination) decisions from the Hunt (yes discrimination) decision based strictly on the DCC doctrinal framework?

ANSWER: Not in my opinion. I think the only way to understand those decisions is to accept that the justices must have believed, without saying so in the opinion, that the purpose of the statute in Hunt was protectionist, while it was not in Clover Leaf or Exxon.

QUESTION: In all of these cases I think the regulation was equally applicable to in-state actors as out-of-state ones (although in Exxon there were no in-state companies w/ the vertical integration) and was found to quantitatively discriminate practical effect in favor of local industries over out-of-state ones (In Exxon, 99 percent of the companies insulated and benefitted were in-state). Why isn't the question of discrimination in practical effect an empirical one?

ANSWER: The Court sort of says it is an empirical question. But I don't think that actually bears scrutiny, as there was no real empirical difference (as you suggest) in the discrimination in the cases you identified. So what explains it? I think that it functions as an additional doctrinal tool (though the Court has not so said) to infer that the law was motivated by protectionism.

QUESTION: Are there any useful distinctions b/w these cases or is the Court purely guided by its belief about whether the state was motivated by a protectionist purpose when deciding if the law is discriminatory in practical effect?

ANSWER: Nothing useful that I have found. If you find something, let me know.

QUESTION: I just took your 2001 final and had a question about Essay Question A. I know this was before Raich came down, but is it relevant/correct to say that the EPA is a broad regulatory scheme that deals with interstate commerce (interstate selling of eagle feathers)?

ANSWER: Perhaps, yes. And I think the question would then be whether, as in Raich, Congress is justified in regulating non-commercial, intrastate instances of the activity that is regulated by the broader regulatory scheme. (See my longer answer below.)

QUESTION: Also, is the lack of jurisdictional elements in the statute relevant?

ANSWER: Sure, it is relevant in the sense that, were there a jurisdictional element, it might have made the statute clearly constitutional. Thus, the lack of one makes it harder to justify the statute.

QUESTION:I have a question regarding your preference for exam essay responses. Several of your answers to the practice exams state that the only plausible option for challenging X is Y. In particular, the a 2001 question asks "On what basis could the government argue that the lawsuit is nonjusticiable." Then your answer states that the only plausible justiciablility challenge the government can make is to the plaintiff's standing. Does this mean that if we quickly explain why other possible justiciability challenges are not plausible we are wasting time - essentially discussing non-issues? Or are your responses just explaining the real issue that require in depth analysis, but you still expect us to justify why the other justiciability issues are not relevant.

ANSWER: Not necessarily. And it is hard for me to give precise guidance on the question. Let me do the best I can.

If you were to briefly explain why non-plausible paths are indeed not plausible, you almost certainly would receive some points. (It depends on how far out of the range of plausibility.) But you are also using time that might be used on addressing other things. So there is no harm -- and potentially some good -- in a brief explanation you describe. But once you get beyond brief, you are taking important time away from the issues that are much more important to address in some detail. Perhaps the best way to think of it is this: I award points for any discussion that is relevant and correct. But those points are scaled to their significance in the question.

I'm not sure this is completely responsive to your question, but it is probably the best I can do in accurately reflecting how I evaluate student essays.

Questions and answers (part 2)

QUESTION: With regard to standing, if a individual is requesting declaratory relief that a law is unconstitutional, does this require the showing of a future imminent harm as required when requesting injunctive relief, or would standing be satisfied by a previous injury in fact?

ANSWER: Future harm. A declaration that the law is unconstitutional would not redress the past injury.

QUESTION: In applying substantive Due Process to the states this is done through the 14th amendment, if a federal law is restricting what could be viewed as a fundamental right can substance Due Process be applied to the federal government through the 5th amendment?

ANSWER: Yes.

QUESTION: I know we went over the Anti-Commandeering principal and the federal government making the states perform some affirmative act or prohibiting some act, but wanted to try to clarify something, is the federal government prohibiting a state from doing something not going to create an anti-commandeering issue?

ANSWER: If it is a mere prohibition, I do not think it can be a commandeering. For if it were, then ordinary preemption would be unconstitutional. (Every federal law that preempts a state law effectively prohibits a state from regulating in a particular way.)

QUESTION:Going back to the 2009 Test, H1N1 - With respect to the spending power - if CA elected to not administer the program and the Federal government ended up doing, my understanding is that the Act still would have been characterized as spending power legislation. CA simply turned it down. My question is whether Congress the Act would still have been classified as "spending legislation" if Congress had elected for the Federal Gov't to administer the vaccine. Intuitively and looking at the Spending Clause - this seems like an easy question since Congress is paying for the program. However, when we discussed spending in class it seemed like the context only related to Congress' taxing and how used to incentive states. Am I correct in thinking that Federal Government programs administered by the Federal Government applies to the Spending Clause?

ANSWER: If I am understanding you correctly, the answer is yes. Often Congress uses the Spending Clause to encourage states to take certain actions by offering them money and attaching conditions. But the vast bulk of Spending Clause legislation does not involve the states. Think of defense spending. Or Social Security. Or Medicare. The federal government's provision of a benefit like a vaccine would constitute spending legislation as well, even when the states are not involved.

QUESTION: I just want to confirm what I believe you said regarding standing of states to sue the Federal Government. My understanding from the discussion today is that a state can sue (has standing) the Federal Government for passing a law that the state believes is unconstitutional.

ANSWER: That is true if the claim is that the law violates a right held by the state, such as its sovereign right not to be commandeered. But I do not think it is correct more generally. (A state would lack standing to vindicate the First Amendment rights of its citizens, for instance.)

QUESTION: The basis for the state's standing is that the law would be forcing the state to violate the Constitution in enforcing the law?

ANSWER: I would state it differently. The injury for standing purposes would be that the law forces the state to do something it does not want to do. The legal claim would be either (a) that the law amounts to a commandeering, or perhaps (b) the law is unconstitutional for some other reason, such as the fact that it requires the state to engage in unconstitutional behavior. But the claim need not be (b) to give the state standing to sue.

QUESTION: I wonder what we are supposed to discuss if the federal government (instead of state government) invades individual's fundamental rights or Privilege and immunities (rights to travel, same sex-marriage), such as the federal law of Defense of marriage Act in the Fall 2005 exam. Substantive due process should not apply since it is not state action. There are of course Bill or Rights. Are we supposed to discuss this?

ANSWER: You have raised two different questions. First, the the Fourteenth Amendment only applies to the states (as the text states "No State . . . ."). But the Fifth Amendment, which obviously applies to the federal government, also contains a Due Process Clause.

QUESTION: I am looking at your 2009 model answer right now and I'm kind of confused why preemption is not mentioned in the answer since there is a state law and a federal law that conflict and in this case the federal law is basically preempting the state law by canceling all sales contracts between the states and the vaccine manufacturers and by prohibiting states from purchasing an additional doses of the vaccine. Is the reason its not mentioned b/c you stated in the beginning of the exam not to talk about sovereign immunity? I guess I'm kind of confused as to what part of the class "sovereign immunity" is referring to because it seems pretty general.

ANSWER: Preemption is only relevant if one party is invoking state law, and that state law may be displaced due to a conflicting federal law. True enough, that may be true in the abstract in last year's exam. But what were the actual claims raised by the parties? Was anyone invoking state law in any way, such that the validity of that state law would be in issue? As to state sovereignty, we did not cover it (except for those brave souls who attended the optional Eleventh Amendment class). Often I include these disclaimers out of an abundance of caution -- particularly for students who have spent much of their time studying materials other than those that I have assigned.

Questions and answers (part 1)

QUESTION: It seems like the imminent injury analysis under standing is the same as the ripeness analysis? Is that right?

ANSWER: I think that is right. If an injury-in-fact is not sufficiently imminent, then in essence we are saying that the controversy is unripe.

QUESTION: Does the Privileges and Immunities Clause apply also to gov't regulation or only regulation by the States? If, for instance, somehow the national gov't could restrict certain people (either from that CA or from other states) from taking the bar in CA, would that violate the P and I clause?

ANSWER: Article VI itself only limits the power of state governments.

QUESTION: To what extent can the national gov't limit access to medical procedures whose legality are guaranteed by the right to privacy using eminent domain/preemption?

ANSWER: Any government action that infringes on a fundamental right would be subject to strict scrutiny. So if the medical procedure is a medical procedure is guaranteed (in the sense it is a fundamental right), then that would be the analysis.

QUESTION: Based on your sample answer to the 2009 exam, for instance, Ha is not constitutionally guaranteed the right to that immunization. While the national gov't could not proscribe receiving the vaccine, it can use its taking power to hoard all the vaccines and prohibit the States and private hospitals from purchasing any additional doses. If the States and private hospitals have no alternative method of providing the vaccine, is this different in effect from making it illegal for the States to vaccinate?

ANSWER: I may not fully understand the question. Why couldn't the federal government proscribe receiving the vaccine? Suppose the FDA determines that it is not safe and effective (as it does often for various drugs). As a general matter, I do not think that raises any serious constitutional questions. I agree, though, that the government's forcing others to sell all that they have to the government, and then refusing to sell it to someone, would be largely indistinguishable from proscribing that individual from receiving it. I think I might just disagree with the premise of the question.

QUESTION: I have a question about your exam from 2001. Specifically the question about the bald eagle. Does the analysis now change because of Raich? Before Raich, intrastate possession could not be considered an economic activity and thus not aggregated. However, I feel that after Raich, intrastate possession can be considered an economic activity if that commodity is sold in interstate commerce (even illegally as is marijuana and maybe bald eagles), thus it can be aggregated and fall under the Commerce Clause. Is this correct? Or is there a distinction between the bald eagle question and Raich in that she was growing pot and in the question the eagle is only being held in possession?

ANSWER:I think you are right that the analysis changes, though I would phrase how it does so differently. After Raich, the question is not so much whether the statute as applied to her is unconstitutional in isolation (or whether her activity, in isolation, is economic or commercial). Rather, the question is probably (1) does the statutory scheme as a whole regulate an activity that substantially affects interstate commerce, and (2) if so, then is Congress obligated to create an exception for applications of the statutory scheme that sweep up purely intrastate, noncommercial instances of that activity? Here, there is a good argument that the broader regulatory scheme is regulating a commercial or economic activity (the interstate trade in the parts of endangered species). Moreover, Congress would likely have a reasonable basis for concluding that exempting non-commercial possession would undermine the broader regulatory scheme (given the fungible nature of eagle feathers). So I think Raich affect the analysis, no doubt, but not on whether the precise activity that she was engaged in should now be considered economic or commercial in nature.

The level of scrutiny in Lawrence

QUESTION: I was just wondering in the Lawrence case why the comments after the case said that the Court did not explicitly spell out a standard for scrutiny when it seemed to me the Court was applying rational basis, as they used the language "legitimate" when discussing the State's interests?

ANSWER: Terrific question, and we will spend some time on this in class. You are of course correct that, near the end of the opinion, the Court states: "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." This seems to connote rational basis review. But if the Court were actually applying rational basis review, why would it have talked at such length about the importance of the liberty interest at stake? If this were really rational basis review, then wouldn't the right at issue in Lawrence (however, exactly, we want to characterize it) be no more significant, for purposes of constitutional law, than the right of opticians to grind lenses without a prescription, or the right of milk distributors to sell skim milk with vegetable oil? The problem is that everything that precedes the sentence you identify suggests that this right is more important than the sorts of "rights," if we can even call them that, that trigger mere rational basis review. Indeed, every law, at least in theory, must be rationally related to a legitimate government interest to satisfy due process. So if any law would receive rational basis review, what explanation can there be for the Court to explain, over 30 pages, why what is at stake is more than just any right? We have to make sense of the whole opinion in its entirety, and not just that one sentence in isolation.

The Court, politics, and the appointments process

QUESTION: I have a little bit of a rant here, but also a philosophical question to ask if you have time for it: Stevens was nominated by a Republican; now is seen as "liberal"; his confirmation vote was 98-0. I don't think such a vote is going to happen today. Are the appointments too politicized? And can anyone, those sitting on the court included, find a way to truly rise above politics and rule in an apolitical way? You've already noted the political leanings of the court throughout history. I am fascinated by 5-4 decisions handed down through the years and imagine how things might be different but for one vote. And how Professor Joondeph might be standing there presenting something totally different to us doctrinally but for that one vote. Is that something you contemplate as a teacher? I taught engineering classes for several years that were more concrete in terms of right and wrong answers and that shiftiness doesn't always sit well with me.

ANSWER: Lots of great stuff here. Let me try to take them in turn. Is the appointments process too politicized? In my view, no. These appointments have very significant political consequences; they shape the contours of constitutional law for years to come. Constitutional law, for instance, would be very different had Robert Bork become a justice rather than Anthony Kennedy. That said, I think a number of people behave ridiculously during these events, exaggerating the consequences and distorting candidates' records. But that is sort of a different question. I think the problem, if there is one, is that the country is more politically polarized than in prior eras. And that seems to be a product of the two parties opposing one another ideologically on just about every single major issue. In previous times, there were important political coalitions that crossed party lines. Northern Republicans voted with many Democrats (and southern Democrats voted with many Republicans) on civil rights issues in the 1960s and 1970s. Conservative Democrats voted with Republicans on labor questions. In short, our political system functioned with many cross-party coalitions. For whatever reason, that is now gone, and the parties are rather uniformly divided on most every issue. This has led to ideological polarization everywhere, including nominations to the Supreme Court. Nominations have been simply another place where this has played out.

Can anyone rule in an apolitical way? In a word, no. Constitutional law is inherently political. The issues are contentious, and many are deeply ideological. Most can be decided either way, with completely defensible legal arguments, supported by the traditionally accepted sources of legal authority. So no, it cannot possibly be apolitical. It could be less transparently political. Judges can be more self-aware, and we can ask judges to be more conscious of checking themselves, to try to examine whether they are being pulled too hard by the predispositions. But I think that is probably the most we can realistically hope for.

Might the law we are learning be totally different, but for one changed vote? Yes and no. In the short run, yes. What the particular justices think, based on their own ideological leanings, often make constitutional law what it is. And my job is to make some sense of it, regardless of its causal origins. I still think it is quite interesting, even if it is not "correct" in any way. In the medium or long run, I would say that those 5-4 votes are much less significant. The answers are still "political," but they are determined by the People, or at least the portion of the People that have political influence. The Court is shaped more than it shapes. So, while the justices resolve important questions in the short run, the long run is determined by elections, social movements, and much broader economic and cultural changes in society. 5-4 decisions that run counter to these larger forces will ultimately be discarded. Witness Slaughter-House, Lochner, and Plessy v. Ferguson.

Do I think about the randomness inherent this process of constitutional lawmaking? All the time. But I still think it is fascinating. Constitutional law represents a normative political vision. The subject is inherently political, as it shapes our national political life. It can never be anything like engineering as a subject matter, because the basic "rules" or "principles," unlike the law of gravity, will always be contested.

I think the best frame in which to view these things is to think about the Constitution as setting out a broad framework. Some of the rules are fairly hard-wired (each state gets two senators, laws must be passed by both houses, etc.). Others are very open-textured, and thus, to some degree, up for grabs. Each generation works within this framework, both to enact positive law (statutes and regulations) and to shape the open-textured elements of the constitutional text (what is the meaning of interstate commerce or due process?). It is always a work in progress. The Court is only one player. It is a very important one, especially in the short term. But it is more of a reflection of society's values in the long term.

More on the dormant Commerce Clause

QUESTION: I'm a bit confused about applying the Pike test. My understanding was that the Pike test was only to be applied to laws that were not discriminatory, but had discriminatory effects.

ANSWER: Correct and incorrect, respectively. If the law does not discriminate against interstate commerce (on its face, in purpose, or in practical effect), then the Pike balancing test applies. But if we come to the legal conclusion that the law "discriminates against interstate commerce in practical effect," such as in Hunt, then it is a discriminatory law, and the much more stringent form of scrutiny applies. Pike only applies with the law is non-discriminatory.

QUESTION: For laws that were facially discriminatory or had a protectionist purpose, the state had to prove that it had a compelling public interest to justify the law. Is this accurate?

ANSWER: No. The exacting scrutiny is with respect to the means, not the end. (See the preceding post on tiers of scrutiny.) The end merely must be legitimate--i.e., not protectionism. The means must be the only ones available--that is, there can be no nondiscriminatory alternative.

Tiers of scrutiny

QUESTION: I am a little confused on the strict scrutiny test spectrum. For instance, under rational basis, it says the objective language must be "legitimate," which is the language used for the Dormant Commerce Clause test. However, in lecture it was stated that if a law is found to be facially discriminatory then the Court applies the strict scrutiny test, but the language of "legitimate" implies a rational basis level of scrutiny. So I am a bit confused from the breakdown on the board today.

ANSWER: Perfectly understandable question. I was not meaning to present a fully comprehensive examination of all the different forms of judicial scrutiny applied in constitutional law. Rather, my intent was to illustrate the three tiers of scrutiny typically applied in "individual rights" cases: rational basis, intermediate, and strict.

You are absolutely right, in that the scrutiny applied to state laws that discriminate against interstate commerce is a sort of hybrid. It demands that the state interest merely be legitimate (i.e., something other than protectionism), and that the means be necessary (i.e., there is no feasible nondiscriminatory alternative). This is a technical point, but I would not call this "strict scrutiny" in its classic sense (though you would not really be wrong for doing so). The reason, as you say, is that we do not demand that the government's interest be compelling. It is sufficient that it be something other than protectionism.

Now, you might ask, why has the Court set up this sort of hybrid test? The reason lies in the ultimate purpose of dormant Commerce Clause--namely, to prohibit parochial, protectionist state regulation. When the government impinges on a person's constitutionally protected right, in contrast, we demand that the government have a really good (indeed, compelling) reason for doing so. But with the dormant Commerce Clause, the concern is different. Our goal is really just to root out one sort of legislative goal: economic protectionism. So the government's interests need not be compelling.