Tiers of scrutiny

QUESTION: What is the scrutiny applied in Eisenstadt v. Baird? We have that it is the minimum rationality standard. But doesn't this case decide that the right to privacy is fundamental, so strict scrutiny should apply?

ANSWER: You are right -- if the Court had decided the case on due process grounds. But that sentence in our casebook was really an aside. If you look at the full opinion, you will see that the Court decided the case based on the Equal Protection Clause. The statute (at least in its application) discriminated on the basis marital status. The Court subjected this discrimination to rational basis review, and held (perhaps disingenuously) that the law failed to rationally further a legitimate state interest. (More candidly, I would call this rational basis "plus," as the Court was certainly more demanding than the test of Lee Optical.)

QUESTION: What level of scrutiny applied in Griswold? We think it's strict scrutiny because our notes say "high level of scrutiny" and again it concerns fundamental right to privacy.

ANSWER: That seems like a logical inference to me. The Court does not use the magic words, but yes, I think it was applying strict scrutiny.

QUESTION: What are the strict scrutiny cases? Griswold, Eisenstadt, and Lochner?

ANSWER: Due process decisions that seem to apply strict scrutiny, or something like strict scrutiny, would include Lochner, Pierce, Meyer, Griswold, Roe, Casey, Loving, Zablocki, arguably Lawrence, and Perry v. Schwarzenegger. 

When are agencies part of the Executive Branch?

QUESTION: I'm a little confused on what agencies are classified as, such as the EPA. In your 2008 model answer it was stated that the commission was placed in the executive branch (I think), and thus the line-item veto and non-delegation doctrine doesn't really apply in regards to the President's authority over what is actually goes into law. I thought the Commission to be a quasi-legislative branch that has both authority to create the law and dictate enforcement (although that was limited as custom agents would which is strictly a part of the executive branch). I would argue that having the President able to essentially veto what he wants from the agency, and the agency is more legislative then not. So the President is overstepping the boundaries set by separation of power as he is essentially deciding what laws gets passed. Is this an incorrect analysis or just a different viewpoint (that would still receive mostly full credit if this was an exam answer)?

ANSWER: I would say, candidly, that your analysis is largely incorrect. Let me try to explain in a few steps. First, where an agency is "placed" is not really the issue. Rather, the issue is whether the agency is involved in the execution or implementation of federal law. Any agency so doing is part of the "executive branch," at least in a sense. Now, some people will say that independent agencies are not part of the Executive Branch because they are independent of the President--independent typically because their heads are not removable by the President at will. I would say that this lessens presidential control, but it does nothing to obviate the underlying reality that the agency is executing federal law. Second, sure, the agency is "quasi legislative" in the sense you describe. But so is every agency. All execution of law involves some discretion, and often it is sensible to announce in advance, in the form of regulations (that look like statutes) how the agency plans to exercise that discretion. But this does not make them an extension of Congress, or part of the legislative branch. Recall that, under cases such as Chadha and Bowsher and Buckley that Congress can play no role in the execution of federal law. So this agency cannot constitutionally be a part of the legislative branch. Third, once we resolve that the agency is part of the bureaucracy that is executing federal law (whatever exact label we place on it), it should become clear that there can be no line-item veto problem. the President is merely adjusting how the law is being executed; he is not altering the statute itself. Finally, the delegation issue is only relevant in evaluating the standard that Congress has given the executive branch as a whole. So long as that states an intelligible principle for enforcement, that doctrine is satisfied.

  

QUESTION: Also, what are agencies like the EPA actually classified under and who is in charge of them? It seems that they are legislative in the fact that they create regulations but also executive as they enforce these regulations (through fines and whatnot). So is the legislative branch or he executive branch in charge of them or are they independent from both?

ANSWER: The EPA has responsibilities of enforcing and executing federal law, thus it is a part of the Executive Branch. The head is the Administrator of the EPA. Again, you are right that much of what it does seems legislative in nature. But the better way to understand this is as the exercise of discretion in the enforcement of federal law. 

Jurisdictional elements

QUESTION: I am a little confused about the idea of jurisdictional element. Is the only way to satisfy jurisdictional element to state specifically in the legislation "X in interstate commerce," or would something that is clearly used only in connection to interstate commerce suffice?

ANSWER: The term "jurisdictional element" refers specifically to additional explicit language in the statute. So, as you have phrased the question, I think yes, by definition, there is no jurisdictional element if that connection to interstate commerce is not specifically stated in the statute. (That is not to say, of course, that every statute needs a jurisdictional element. Indeed, many things, by their nature, are always in interstate commerce, such that it would be superfluous to include such additional language.)

QUESTION: For example, if there were legislation that barred handguns at weigh stations on interstate freeways, would the inclusion of the location "weigh stations" work as a jurisdictional element (assuming the only possible connection weigh stations have to commerce is in interstate commerce) and obviate the need to include " handguns in interstate commerce" in the phrasing of the law?

ANSWER: I would say "weigh stations on interstate freeways" would probably be a considered a jurisdictional element, yes. It is limited the scope of the regulated activity to a subclass with a closer connection to interstate commerce. Notice, too, that this jurisdictional element might actually bring the regulation into a different category under Lopez--namely, it might render the statute a regulation of the use of the channels of interstate commerce.

QUESTION: Congress is seeking to regulate the substantial effect, so it seems valid to transfer the jurisdictional element from "handguns in interstate commerce" to "handguns at place that is used exclusively for intestate commerce." The Lopez court used the phrasing "nexus with interstate commerce" and it seems as if, in this hypo, the weigh station is as good a nexus as any.

ANSWER: I would generally agree. I would just caution, though, that the existence of a "jurisdictional element" in a statute will not necessarily render a statute a valid use of the commerce power. Jurisdictional elements can come in sorts of different shapes and sizes, some creating a close nexus with interstate commerce and some requiring only a very attenuated one. So it all depends on how much work the jurisdictional element actually does.

QUESTION: For reference: in Lopez the court found that the statute stating "'for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.'" 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V)" was not within the commerce clause for lack of a jurisdictional element. However, the inclusion of "firearm that has moved in or that otherwise affects interstate or foreign commerce" solved the jurisdictional element problem. 

ANSWER: Not necessarily. That was Congress's fix, but the Supreme Court has not held that it was sufficient. So this remains a bit unclear at this point.

QUESTION: If the requirement is that Congress add the phrasing adopted in the second statute, the whole exercise seems rather silly. Can't that just be implied (hello, implied pre-emption!), like so many other things?

ANSWER: I agree, at least to some degree. But again, we are not sure that Congress's fix was sufficient. Moreover, Lopez might have been more symbolic than real. And yes, I think it could be inferred in some circumstances (as mentioned above), but obviously the Court was unwilling to make that inference in Lopez. 

Some questions (and answers)

QUESTION: I have a question regarding the case of Raines v. Byrd (page 46 of the casebook), involving a challenge to the Line Item Veto Act by senators. I am not sure if I clearly see why the injury is "abstract and widely dispersed" as Chief Justice Rehnquist decided. If my duty is to pass bills, and someone can render them ineffective (partially), why isn't that a concrete injury? And the only people affected are the Senators and Congressmen, so why is it widely spread? Is this a borderline case where subjective opinion makes all the difference or I am missing something?

ANSWER: I think the decision is more defensible on the ground that the injury was not sufficiently concrete (too abstract) than on the ground it was too dispersed (not sufficiently particularized). The Senators' claim was that their voting strength on bills subject to the LVA was diluted to some degree, as the LVA decreased their leverage over the President vis-a-vis his preferences. It is not hard to see that this lacks much concreteness. You describe the LVA as rendering their votes "partially ineffective," but that is debatable. Consider this: the budget bill at issue in Clinton v. New York contained more than 2,000 pages, and the President line-item vetoed two lines. To what degree did the LVA really affect Senator Byrd's voting power in the Senate? Consider also that the LVA only applied to certain sorts of bills, and certain line items within those bills. I think all of this suggests that the injury being alleged was somewhat conjectural, and somewhat abstract. (Of course, as your last sentence suggests, the vote was 5-4, so it obviously was not clear.)

QUESTION: I had a question concerning your model outline/answer #3 for Section 901 on the 2010 exam. Could you explain a little bit more about this one? While I understand that it's not the same as Clinton v. NY because the law would have already gone through presentment procedures, I'm confused on how Congress can basically allow the President to choose whether or not to enforce the law at all or in part. Is Congress really allowed to basically say to the President/executive "do whatever you think best"? Is that what you meant by the "delegation in subsection (a) might violate the non-delegation doctrine"?

ANSWER: Yes, I think that gets the gist of it. There is certainly nothing unconstitutional per se in Congress delegating discretion in the enforcement of federal law to the Executive Branch. Indeed, such delegations are inherent in any law, as no law is so clear as to preclude any discretion in enforcement. Typically, that discretion is in the form of how to enforce a statute. But there is no reason it does not also extend to whether to enforce a statute, or at least a portion thereof. In fact, it is unclear we could draw a clear distinction between the two. Consider federal criminal laws. If the Attorney General (or someone lower in DOJ) decides not to prosecute a particular individual (even though there might exist sufficient evidence to obtain a conviction), is that an exercise of discretion as to how to enforce the statute? Or is it discretion as to whether to enforce the statute? The larger point is that there is nothing inherently problematic in Congress delegating discretion in enforcement to the Executive Branch. The relevant question in such circumstances is whether the delegation is too broad, meaning that Congress has failed to provide an "intelligible principle" to guide the executive's enforcement or implementation of the law.

Channels and instrumentalities

QUESTION: First, when discussing interstate commerce, is it acceptable to determine whether the legislation has substantial effects on interstate commerce before determining whether the legislation is regulating channels or instrumentalities of interstate commerce? My reasoning is that the vast majority of examples I've come across have been substantial effects examples, so I'd rather start start with the usual suspect.

 

YES, THAT IS FINE. THERE IS NO MANDATED ORDERING. BUT JUST TO BE CLEAR, IT IS THE REGULATED ACTIVITY THAT MUST HAVE A SUBSTANTIAL EFFECT ON INTERSTATE COMMERCE, NOT THE LEGISLATION.

QUESTION: Second, and an alternative reason for wanting to start with Substantial Effects test, is can you clarify or distinguish channels and instrumentalities again? Is it fair to say that the channels are the mode of interstate activity and instrumentalities are the means? For example, highway trucking -- the highways are the mode and the trucks are the means?

 

YES, I THINK THAT IS ESSENTIALLY CORRECT, THOUGH THE COURT HAS NEVER USED THOSE PRECISE TERMS. I THINK OF CHANNELS AS THE "RIVERS" THROUGH WHICH COMMERCE FLOWS -- ROADS, NAVIGABLE WATERWAYS, RAILWAYS, TELECOMMUNICATION NETWORKS -- AND INSTRUMENTALITIES AS THE OBJECTS THAT FACILITATE THE COMMERCE -- RAILROAD CARS, AIRPLANES, ROUTERS, SERVERS, AND THE LIKE. BUT, BECAUSE THE COURT HAS NOT DECIDED A CASE INVOLVING ONE OF THESE CATEGORIES SINCE LOPEZ, WE ARE NECESSARILY GUESSING A LITTLE BIT.

Privleges or immunities

QUESTION: I am emailing you because I am having a hard time wrapping my head around the Privileges and Immunities of the 14th Amendment. My question deals with the analytical framework of the clause. I understand we first must determine whether the right is "fundamental".

 

ACTUALLY, NO, THAT IS NOT RELEVANT UNDER THIS CLAUSE -- AT LEAST AS I UNDERSTAND IT. SAENZ ESSENTIALLY HOLDS THAT THE THIRD COMPONENT OF THE RIGHT TO TRAVEL INTERSTATE -- THE RIGHT TO MIGRATE -- IS ONE OF THE PRIVILEGES OR IMMUNITIES PROTECTED BY THE CLAUSE. THUS, AS I UNDERSTAND THAT DECISION, ANY INFRINGEMENT ON THIS RIGHT, NO MATTER WHAT IT IS WITH RESPECT TO, WILL BE SUBJECTED TO STRICT SCRUTINY. THAT IS, THE "RIGHT" ON WHICH THE STATE DISCRIMINATES AGAINST NEW RESIDENTS NEED NOT BE "FUNDAMENTAL" IN ANY SENSE.

 

QUESTION: I am unclear what test we apply to find out whether the right is "fundamental". Is it the same fundamental test we used for incorporation or something totally different?

 

AGAIN, I DO NOT THINK THERE IS ANY SUCH INQUIRY. THERE IS UNDER ART. IV, BUT THAT IS A DIFFERENT QUESTION.

 

QUESTION: Does the Privileges or Immunities Clause of the 14th Amendment only deal with the 3rd right to travel - the right to migrate?

 

PROBABLY. PERHAPS IT ALSO PROTECTS THE FIRST COMPONENT -- THE RIGHT TO PHYSICAL MOVEMENT ACROSS STATE BORDERS -- BUT THE COURT HAS NOT CLEARLY SO HELD.

QUESTION: For example, let's say I, a California resident, went on vacation in Nevada. Under Art IV, Sec 2's privileges and immunities I would be able to enjoy the same privileges as a resident of Nevada, with some exceptions (i.e. - voting). However, if I established residence in Nevada, then I would be protected not under Art IV, Sec 2, but under the 14th Amendment. Is that correct?

 

YOU GOT IT. AND IN A CASE LIKE PROBLEM 6, IT IS SORT OF UNCLEAR WHICH OF THESE TWO PROTECTIONS APPLIES. BUT WE KNOW THAT IT CANNOT BE BOTH AT THE SAME TIME -- YOU ARE EITHER A NEW RESIDENT OF NEVADA, OR YOU ARE A CALIFORNIA RESIDENT VISITING.

Questions about Lochner and incorporation

QUESTION: I want to make sure I understand the difference between what Lochner said and the way it is now.  From my understanding, Lochner said that the right to contract was fundamental and that a state cannot regulate an individual economic right to contract (like minimum hours). Now, all the state needs is a legitimate interest (almost any public interest it seems) and a loose fit between the law and that interest. In effect, now a state can regulate minimum wage or hours nearly at will, whereas before, it was almost impossible. Is this a correct understanding?

 

ANSWER: Essentially, yes. I think there are a few more subtleties to Lochner that we did not really discuss. For instance, government could regulate the maximum hours of miners, for instance, because the Court saw that as raising "real" public safety concerns (as opposed to the "pretextual" ones asserted by New York in Lochner itself). But yes, your summary is basically correct.

QUESTION: The next question is when we should be considering historical recognition of a right and importance of that right.  We first talked about that in the incorporation context, but it was also mentioned tonight.  Should those considerations be taken into account /applied in any instance involving individual rights (economic or not)?

ANSWER: The question whether a right is "fundamental" as a matter of due process, such that the government's infringement on that right is subject to strict scrutiny, is precisely the same question we ask with respect to incorporation (i.e., whether one of the rights protected by the Bill of Rights applies to the states). Indeed, it is precisely the same issue, the only possible difference being that in the incorporation context, the right happens to be textually spelled out in one of the first eight amendments to the Constitution. But the "implicit in a scheme of ordered liberty"/"deeply rooted in the our nation's history and traditions" question is the same inquiry whenever we are asking whether a right is "fundamental" as a matter of due process. This is the incorporation question, precisely because the Court has held that the rights that are incorporated are those that are "fundamental." But, of course, it has not stopped with those textually spelled out in the Bill of Rights. Thus, it is also the question we ask in Griswold, in Roe, in Casey, and perhaps in Lawrence v. Texas and Perry v. Schwarzenneger.