[Senate Document 106-27]
[From the U.S. Government Publishing Office]
This publication supplements Senate Document 103-6, The Constitution of
the United
States of America: Analysis and Interpretation--it should be inserted
in the pocket on the inside back cover of that volume
106th Congress Document
SENATE
2d Session No. 106-27
________________________________________________________________________
THE CONSTITUTION
OF THE
UNITED STATES OF AMERICA
ANALYSIS AND INTERPRETATION
__________
2000 SUPPLEMENT
ANALYSIS OF CASES DECIDED BY THE SUPREME
COURT OF THE UNITED STATES TO JUNE 28, 2000
George A. Costello
Kenneth R. Thomas
Editors
David M. Ackerman
Henry Cohen
Robert Meltz
Contributors
U.S. GOVERNMENT PRINTING OFFICE
69-557 CC WASHINGTON : 2000
________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Washington, DC 20402
ARTICLE I
DELEGATION OF LEGISLATIVE POWER
The Effective Demise of the Nondelegation Doctrine
[P. 78, add to text following n.79:]
The infirm state of the nondelegation doctrine was
demonstrated further in Loving v. United States.\1\ Article
118 of the Uniform Code of Military Justice (UCMJ) \2\
provides for the death penalty for premeditated murder and
felony murder for persons subject to the Act, but the
statute does not comport with the Court's capital punishment
jurisprudence, which requires the death sentence to be
cabined by standards so that the sentencing authority is
constrained to narrow the class of convicted persons to be
so sentenced and to justify the individual imposition of the
sentence.\3\ However, the President in 1984 had promulgated
standards that purported to supply the constitutional
validity the UCMJ needed.\4\
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\1\ 517 U.S. 748 (1996). The decision was unanimous
in result, but there were several concurrences reflecting
some differences among the Justices.
\2\ 10 U.S.C. Sec. Sec. 918(1), (4).
\3\ The Court assumed the applicability of Furman v.
Georgia, 408 U.S. 238 (1972), and its progeny, to the
military, 517 U.S. at 755-56, a point on which Justice
Thomas disagreed, id. at 777.
\4\ Rule for Courts-Martial; see 517 U.S. at 754.
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The Court held that Congress could delegate to the
President the authority to prescribe standards for the
imposition of the death penalty--Congress' power under
Article I, Sec. 8, cl. 14, is not exclusive--and that
Congress had done so in the UCMJ by providing that the
punishment imposed by a court-martial may not exceed ``such
limits as the President may prescribe.'' \5\ Acknowledging
that a delegation must contain some ``intelligible
principle'' to guide the recipient of the delegation, the
Court nonetheless held this not to be true when the
delegation was made to the President in his role as
Commander-in-Chief. ``The same limitations on delegation do
not apply'' if the entity authorized to exercise delegated
authority itself possesses independent authority over the
subject matter. The President's responsibilities as
Commander-in-Chief require him to superintend the military,
including the courts-martial, and thus the delegated duty is
interlinked with duties already assigned the President by
the Constitution.\6\
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\5\ 10 U.S.C. Sec. Sec. 818, 836(a), 856.
\6\ 517 U.S. at 771-74.
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In the course of the opinion, the Court
distinguished between its usual separation-of-powers
doctrine--emphasizing arrogation of power by a branch and
impairment of another branch's ability to carry out its
functions--and the delegation doctrine, ``another branch of
our separation of powers jurisdiction,'' which is informed
not by the arrogation and impairment analyses but solely by
the provision of standards,\7\ thus confirming what has long
been evident that the delegation doctrine is unmoored to
separation-of-powers principles altogether.
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\7\ Id. at 758-59.
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--The Regulatory State
[P. 82, add to n.106:]
Notice Clinton v. City of New York, 524 U.S. 417 (1998),
in which the Court struck down what Congress had intended to
be a delegation to the President, finding that the authority
conferred on the President was legislative power, not
executive power, which failed because the Presentment Clause
had not and could not have been complied with. The
dissenting Justices argued that the law, the Line Item Veto
Act, was properly treated as a delegation and was clearly
constitutional. Id. at 453 (Justice Scalia concurring in
part and dissenting in part), 469 (Justice Breyer
dissenting).
QUALIFICATIONS OF MEMBERS OF CONGRESS
Exclusivity of Constitutional Qualifications
--Congressional Additions
[P. 111, add to n.297:]
Powell's continuing validity was affirmed in U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779 (1995), both by the
Court in its holding that the qualifications set out in the
Constitution are exclusive and may not be added to by either
Congress or the States, id. at 787-98, and by the dissent,
which would hold that Congress, for different reasons, could
not add to qualifications, although the States could. Id. at
875-76.
--State Additions
[P. 114, add to text following n.312:]
The long-debated issue whether the States could add
to the qualifications that the Constitution prescribed for
Senators and Representations was finally resolved, by a
surprisingly close vote, in U.S. Term Limits, Inc. v.
Thornton.\8\ Arkansas, along with twenty-two other States,
all but two by citizen initiatives, had imposed maximum
numbers of terms that Members of Congress could serve. In
this case, the Court held that the Constitution's
qualifications clauses \9\ establish exclusive
qualifications for Members that may not be added to either
by Congress or the States. The four-Justice dissent argued
that while Congress had no power to increase qualifications,
the States did.
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\8\ 514 U.S. 779 (1995). The majority was composed
of Justice Stevens (writing the opinion of the Court) and
Justices Kennedy, Souter, Ginsburg, and Breyer. Dissenting
were Justice Thomas (writing the opinion) and Chief Justice
Rehnquist and Justices O'Connor and Scalia. Id. at 845.
\9\ Article I, Sec. 2, cl. 2, provides that a person
may qualify as a Representative if she is at least 25 years
old, has been a United States citizen for at least seven
years, and is an inhabitant, at the time of the election, of
the State in which she is chosen. The qualifications
established for Senators, Article I, Sec. 3, cl. 3, are an
age of 30, nine years' citizenship, and being an inhabitant
of the State at the time of election.
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Richly embellished with disputatious arguments about
the text of the Constitution, the history of its drafting
and ratification, and the practices of Congress and the
States in the early years of the United States, the actual
determination of the Court as controverted by the dissent
was much more over founding principles than more ordinary
constitutional interpretation.\10\
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\10\ See Sullivan, Dueling Sovereignties: U.S. Term
Limits, Inc. v. Thornton, 109 Harv. L. Rev. 78 (1995).
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Thus, the Court and the dissent drew different
conclusions from the text of the qualifications clauses and
the other clauses respecting the elections of Members of
Congress; the Court and the dissent reached different
conclusions after a minute examination of the records of the
Convention respecting the drafting of these clauses and the
ratification debates; and the Court and the dissent were far
apart on the meaning of the practices in the States in
legislating qualifications and election laws and in Congress
in deciding election contests based on qualifications
disputes.
A default principle relied on by both Court and
dissent, given the arguments drawn from text, creation, and
practice, had to do with the fundamental principle
underlying the Constitution's adoption. In the dissent's
view, the Constitution was the result of the resolution of
the peoples of the separate States to create the National
Government. The conclusion to be drawn from this was that
the peoples in the States agreed to surrender powers
expressly forbidden them and to surrender those limited
powers that they had delegated to the Federal Government
expressly or by necessary implication. They retained all
other powers and still retained them. Thus, ``where the
Constitution is silent about the exercise of a particular
power--that is, where the Constitution does not speak either
expressly or by necessary implication--the Federal
Government lacks that power and the States enjoy it.'' \11\
The Constitution's silence about the States being limited
meant that the States could legislate additional
qualifications.
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\11\ 514 U.S. at 848 (Justice Thomas dissenting).
See generally id. at 846-65.
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Radically different were the views of the majority
of the Court. After the adoption of the Constitution, the
States had two kinds of powers: powers that they had before
the founding and powers that were reserved to them. The
States could have no reserved powers with respect to the
Federal Government. ``As Justice Story recognized, `the
states can exercise no powers whatsoever, which exclusively
spring out of the existence of the national government,
which the constitution does not delegate to them . . . . No
state can say, that it has reserved, what it never
possessed.' '' \12\ The States could not before the founding
have possessed powers to legislate respecting the Federal
Government, and since the Constitution did not delegate to
the States the power to prescribe qualifications for Members
of Congress, the States did not have it.\13\
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\12\ Id. at 802.
\13\ Id. at 798-805. And see id. at 838-45 (Justice
Kennedy concurring).
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Evidently, the opinions in this case reflect more
than a decision on this particular dispute. They rather
represent conflicting philosophies within the Court
respecting the scope of national power in relation to the
States, an issue at the core of many controversies today.
APPORTIONMENT OF SEATS IN THE HOUSE
The Census Requirement
[P. 115, add to n.317:]
Another census controversy was resolved in Wisconsin v.
City of New York, 517 U.S. 1 (1996), in which the Court held
that the decision of the Secretary of Commerce not to
conduct a post-enumeration survey and statistical adjustment
for an undercount in the 1990 Census was reasonable and
within the bounds of discretion conferred by the
Constitution and statute.
THE LEGISLATIVE PROCESS
Presentation of Resolutions
[P. 144, add new topic at end of section:]
The Line Item Veto.--For more than a century, United
States Presidents had sought the authority to strike out of
appropriations bills particular items, to veto ``line
items'' of money bills and sometimes legislative measures as
well. Finally, in 1996, Congress approved and the President
signed the Line Item Veto Act.\14\ The law empowered the
President, within five days of signing a bill, to ``cancel
in whole'' spending items and targeted, defined tax
benefits. In acting on this authority, the President was to
determine that the cancellation of each item would ``(i)
reduce the Federal budget deficit; (ii) not impair any
essential Government functions; and (iii) not harm the
national interest.'' \15\ In Clinton v. City of New
York,\16\ the Court held the Act to be unconstitutional
because it did not comply with the Presentment Clause.
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\14\ Pub. L. No. 104-130, 110 Stat. 1200, codified
in part at 2 U.S.C. Sec. Sec. 691-92.
\15\ Id. at Sec. 691(a)(A).
\16\ 524 U.S. 417 (1998).
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Although Congress in passing the Act considered
itself to have been delegating power,\17\ and although the
dissenting Justices would have upheld the Act as a valid
delegation,\18\ the Court instead analyzed the statute under
the Presentment Clause. In the Court's view, the two bills
from which the President subsequently struck items became
law the moment the President signed them. His cancellations
thus amended and in part repealed the two federal laws.
Under its most immediate precedent, the Court continued,
statutory repeals must conform to the Presentment Clauses's
``single, finely wrought and exhaustively considered,
procedure'' for enacting or repealing a law.\19\ In no
respect did the procedures in the Act comply with that
clause, and in no way could they. The President was acting
in a legislative capacity, altering a law in the manner
prescribed, and legislation must, in the way Congress acted,
be bicameral and be presented to the President after
Congress acted. Nothing in the Constitution authorized the
President to amend or repeal a statute unilaterally, and the
Court could construe both constitutional silence and the
historical practice over 200 years as ``an express
prohibition'' of the President's action.\20\
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\17\ E.g., H.R. Conf. Rep. No. 104-491, 104th Cong.,
2d Sess., 15 (1996) (stating that the proposed law
``delegates limited authority to the President'').
\18\ 524 U.S. at 453 (Justice Scalia concurring in
part and dissenting in part); id. at 469 (Justice Breyer
dissenting).
\19\ 524 U.S. at 438-39 (citing and quoting INS v.
Chadha, 462 U.S. 919, 951 (1983).
\20\ 524 U.S. at 439.
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POWER TO REGULATE COMMERCE
Definition of Terms
--Federalism Limits on Exercise of Commerce Power
[P. 167, add to n.619, immediately after New York v. United
States:]
See also Printz v. United States, 521 U.S. 898 (1997).
The Commerce Clause as a Source of National Police Power
--Is There an Intrastate Barrier to Congress' Commerce
Power?
[P. 206, add to n.818:]
In a later case the Court avoided the constitutional
issue by holding the statute inapplicable to the arson of an
owner-occupied private residence. Jones v. United States,
120 S. Ct. 1904 (2000). An owner-occupied building is not
``used'' in interstate commerce within the meaning of the
statute, the Court concluded.
[P. 207, add to text following n.820:]
For the first time in almost 60 years,\21\ the Court
invalidated a federal law as exceeding Congress' authority
under the Commerce Clause.\22\ The statute was a provision
making it a federal offense to possess a firearm within
1,000 feet of a school.\23\ The Court reviewed the doctrinal
development of the Commerce Clause, especially the effects
and aggregation tests, and reaffirmed that it is the Court's
responsibility to decide whether a rational basis exists for
concluding that a regulated activity sufficiently affects
interstate commerce when a law is challenged.\24\ The Court
identified three broad categories of activity that Congress
may regulate under its commerce power. ``First, Congress may
regulate the use of the channels of interstate commerce . .
. . Second, Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or
things in interstate commerce,\25\ even though the threat
may come only from intrastate activities . . . . Finally,
Congress' commerce authority includes the power to regulate
those activities having a substantial relation to interstate
commerce, . . . i.e., those activities that substantially
affect interstate commerce.'' \26\
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\21\ The last such decision had been Carter v.
Carter Coal Co., 298 U.S. 238 (1936).
\22\ United States v. Lopez, 514 U.S. 549 (1995).
The Court was divided 5 to 4, with Chief Justice Rehnquist
writing the opinion of the Court, joined by Justices
O'Connor, Scalia, Kennedy, and Thomas, with dissents by
Justices Stevens, Souter, Breyer, and Ginsburg.
\23\ The Gun-Free School Zones Act of 1990, Pub. L.
No. 101-647, Sec. 1702, 104 Stat. 4844, 18 U.S.C.
Sec. 922(q)(1)(A). Congress subsequently amended the section
to make the jurisdiction turn on possession of ``a firearm
that has moved in or that otherwise affects interstate or
foreign commerce.'' Pub. L. No. 104-208, Sec. 657, 110 Stat.
3009-370.
\24\ 514 U.S. at 556-57, 559.
\25\ For a recent example of such regulation, see
Reno v. Condon, 120 S. Ct. 666 (2000) (information about
motor vehicles and owners, regulated pursuant to the
Driver's Privacy Protection Act, and sold by states and
others, is an article of commerce).
\26\ 514 U.S. at 558-59.
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Clearly, said the Court, the criminalized activity
did not implicate the first two categories.\27\ As for the
third, the Court found an insufficient connection. First, a
wide variety of regulations of ``intrastate economic
activity'' has been sustained where an activity
substantially affects interstate commerce. But the statute
being challenged, the Court continued, was a criminal law
that had nothing to do with ``commerce'' or with ``any sort
of economic enterprise.'' Therefore, it could not be
sustained under precedents ``upholding regulations of
activities that arise out of or are connected with a
commercial transaction, which viewed in the aggregate,
substantially affects interstate commerce.'' \28\ The
provision did not contain a ``jurisdictional element which
would ensure, through case-by-case inquiry, that the firearm
possession in question affects interstate commerce.'' \29\
The existence of such a section, the Court implied, would
have saved the constitutionality of the provision by
requiring a showing of some connection to commerce in each
particular case. Finally, the Court rejected the arguments
of the Government and of the dissent that there existed a
sufficient connection between the offense and interstate
commerce.\30\ At base, the Court's concern was that
accepting the attenuated connection arguments presented
would result in the evisceration of federalism. ``Under the
theories that the Government presents . . . it is difficult
to perceive any limitation on federal power, even in areas
such as criminal law enforcement or education where States
historically have been sovereign. Thus, if we were to accept
the Government's arguments, we are hard pressed to posit any
activity by an individual that Congress is without power to
regulate.'' \31\
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\27\ Id. at 559.
\28\ Id. at 559-61.
\29\ Id. at 561.
\30\ Id. at 563-68.
\31\ Id. at 564.
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Whether Lopez bespoke a Court determination to
police more closely Congress' exercise of its commerce
power, so that it would be a noteworthy case,\32\ or whether
it was rather a ``warning shot'' across the bow of Congress,
urging more restraint in the exercise of power or more care
in the drafting of laws, was not immediately clear. The
Court's decision five years later in United States v.
Morrison,\33\ however, suggests that stricter scrutiny of
Congress' commerce power exercises is the chosen path, at
least for legislation that falls outside the area of
economic regulation.\34\ The Court will no longer defer, via
rational basis review, to every congressional finding of
substantial effects on interstate commerce, but instead will
examine the nature of the asserted nexus to commerce, and
will also consider whether a holding of constitutionality is
consistent with its view of the commerce power as being a
limited power that cannot be allowed to displace all
exercise of state police powers.
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\32\ ``Not every epochal case has come in epochal
trappings.'' Id. at 615 (Justice Souter dissenting)
(wondering whether the case is only a misapplication of
established standards or is a veering in a new direction).
\33\ 120 S. Ct. 1740 (2000). Once again, the
Justices were split 5 to 4, with Chief Justice Rehnquist's
opinion of the Court being joined by Justices O'Connor,
Scalia, Kennedy, and Thomas, and with Justices Souter,
Stevens, Ginsburg, and Breyer dissenting.
\34\ For an expansive interpretation in the area of
economic regulation, decided during the same Term as Lopez,
see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265
(1995).
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In Morrison the Court applied Lopez principles to
invalidate a provision of the Violence Against Women Act
(VAWA) that created a federal cause of action for victims of
gender-motivated violence. Gender-motivated crimes of
violence ``are not, in any sense of the phrase, economic
activity,'' \35\ the Court explained, and there was
allegedly no precedent for upholding commerce-power
regulation of intrastate activity that was not economic in
nature. The provision, like the invalidated provision of the
Gun-Free School Zones Act, contained no jurisdictional
element tying the regulated violence to interstate commerce.
Unlike the Gun-Free School Zones Act, the VAWA did contain
``numerous'' congressional findings about the serious
effects of gender-motivated crimes,\36\ but the Court
rejected reliance on these findings. ``The existence of
congressional findings is not sufficient, by itself, to
sustain the constitutionality of Commerce Clause
legislation. . . . [The issue of constitutionality] is
ultimately a judicial rather than a legislative question,
and can be settled finally only by this Court.'' \37\ The
problem with the VAWA findings was that they ``relied
heavily'' on the reasoning rejected in Lopez--the ``but-for
causal chain from the initial occurrence of crime . . . to
every attenuated effect upon interstate commerce.'' As the
Court had explained in Lopez, acceptance of this reasoning
would eliminate the distinction between what is truly
national and what is truly local, and would allow Congress
to regulate virtually any activity, and basically any
crime.\38\ Accordingly, the Court ``reject[ed] the argument
that Congress may regulate noneconomic, violent criminal
conduct based solely on that conduct's aggregate effect on
interstate commerce.'' Resurrecting the dual federalism
dichotomy, the Court could find ``no better example of the
police power, which the Founders denied the National
Government and reposed in the States, than the suppression
of violent crime and vindication of its victims.'' \39\
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\35\ 120 S. Ct. at 1751.
\36\ Dissenting Justice Souter pointed to a
``mountain of data'' assembled by Congress to show the
effects of domestic violence on interstate commerce. 120 S.
Ct. at 1760-63. The Court has evidenced a similar
willingness to look behind congressional findings purporting
to justify exercise of enforcement power under section 5 of
the Fourteenth Amendment. See discussion under
``enforcement,'' infra. In Morrison itself, the Court
determined that congressional findings were insufficient to
justify the VAWA as an exercise of Fourteenth Amendment
power. 120 S. Ct. at 1755.
\37\ 120 S. Ct. at 1752.
\38\ 120 S. Ct. at 1752-53. Applying the principle
of constitutional doubt, the Court in Jones v. United
States, 120 S. Ct. 1904 (2000), interpreted the federal
arson statute as inapplicable to the arson of a private,
owner-occupied residence. Were the statute interpreted to
apply to such residences, the Court noted, ``hardly a
building in the land would fall outside [its] domain,'' and
the statute's validity under Lopez would be squarely raised.
120 S. Ct. at 1911.
\39\ 120 S. Ct. at 1754.
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THE COMMERCE CLAUSE AS A RESTRAINT ON STATE POWERS
Doctrinal Background
[Pp. 215-16, add to n.864:]
Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60,
78 (1993) (Justice Scalia concurring) (reiterating view);
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175,
200-01 (1995) (Justice Scalia, with Justice Thomas joining)
(same). Justice Thomas has written an extensive opinion
rejecting both the historical and jurisprudential basis of
the dormant Commerce Clause and expressing a preference for
reliance on the Imports-Exports Clause. Camps Newfound/
Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 609 (1997)
(dissenting; joined by Justice Scalia entirely and by Chief
Justice Rehnquist as to the Commerce Clause but not the
Imports-Exports Clause).
State Taxation and Regulation: The Old Law
--Taxation
[P. 223, add to n.907:]
Notice the Court's distinguishing of Central Greyhound
in Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S.
175, 188-91 (1995).
--Regulation
[P. 227, add to n.928:]
And see C & A Carbone, Inc. v. Town of Clarkstown, 511
U.S. 383, 391 (1994) (discrimination against interstate
commerce not preserved because local businesses also
suffer).
[P. 227, add to n.930:]
For the most recent case in this saga, see West Lynn
Creamery, Inc. v. Healy, 512 U.S. 186 (1994).
State Taxation and Regulation: The Modern Law
--Taxation
[P. 229, add to n.941:]
A recent application of the four-part Complete Auto
Transit test is Oklahoma Tax Comm'n v. Jefferson Lines,
Inc., 514 U.S. 175 (1995).
[P. 231, add to n.952:]
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 120 S.
Ct. 1022 (2000) (interest deduction not properly apportioned
between unitary and non-unitary business).
[P. 232, add to text following n.959:]
A deference to state taxing authority was evident in
a case in which the Court sustained a state sales tax on the
price of a bus ticket for travel that originated in the
State but terminated in another State. The tax was not
apportioned to reflect the intrastate travel and the
interstate travel.\40\ The tax in this case was different
from the tax upheld in Central Greyhound, the Court held.
The previous tax constituted a levy on gross receipts,
payable by the seller, whereas the present tax was a sales
tax, also assessed on gross receipts, but payable by the
buyer. The Oklahoma tax, the Court continued, was internally
consistent, since if every State imposed a tax on ticket
sales within the State for travel originating there, no sale
would be subject to more than one tax. The tax was also
externally consistent, the Court held, because it was a tax
on the sale of a service that took place in the State, not a
tax on the travel.\41\
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\40\ Indeed, there seemed to be a precedent squarely
on point. Central Greyhound Lines, Inc. v. Mealey, 334 U.S.
653 (1948). Struck down in that case was a state statute
that failed to apportion its taxation of interstate bus
ticket sales to reflect the distance traveled within the
State.
\41\ Oklahoma Tax Comm'n v. Jefferson Lines, Inc.,
514 U.S. 175 (1995). Indeed, the Court analogized the tax to
that in Goldberg v. Sweet, 488 U.S. 252 (1989), a tax on
interstate telephone services that originated in or
terminated in the State and that were billed to an in-state
address.
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However, the Court found discriminatory and thus
invalid a state intangibles tax on a fraction of the value
of corporate stock owned by state residents inversely
proportional to the corporation's exposure to the state
income tax.\42\
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\42\ Fulton Corp. v. Faulkner, 516 U.S. 325 (1996).
The State had defended on the basis that the tax was a
``compensatory'' one designed to make interstate commerce
bear a burden already borne by intrastate commerce. The
Court recognized the legitimacy of the defense, but it found
the tax to meet none of the three criteria for
classification as a valid compensatory tax. Id. at 333-44.
See also South Central Bell Tel. Co. v. Alabama, 526 U.S.
160 (1999) (tax not justified as compensatory).
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[P. 232, add to n.961:]
And see Oregon Waste Systems, Inc. v. Department of
Envtl. Quality, 511 U.S. 93 (1994) (surcharge on in-state
disposal of solid wastes that discriminates against
companies disposing of waste generated in other States
invalid).
[P. 233, add to n.965:]
Compare Fulton Corp. v. Faulkner, 516 U.S. 325 (1996)
(state intangibles tax on a fraction of the value of
corporate stock owned by in-state residents inversely
proportional to the corporation's exposure to the state
income tax violated dormant Commerce Clause), with General
Motors Corp. v. Tracy, 519 U.S. 278 (1997) (state imposition
of sales and use tax on all sales of natural gas except
sales by regulated public utilities, all of which were in-
state companies, but covering all other sellers that were
out-of-state companies did not violate dormant Commerce
Clause because regulated and unregulated companies were not
similarly situated).
[P. 233, add to text following n.965:]
Expanding, although neither unexpectedly nor
exceptionally, its dormant commerce jurisprudence, the Court
in Camps Newfound/Owatonna, Inc. v. Town of Harrison,\43\
applied its nondiscrimination element of the doctrine to
invalidate the State's charitable property tax exemption
statute, which applied to nonprofit firms performing
benevolent and charitable functions, but which excluded
entities serving primarily non-state residents. The claimant
here operated a church camp for children, most of whom
resided out-of-state. The discriminatory tax would easily
have fallen had it been applied to profit-making firms, and
the Court saw no reason to make an exception for nonprofits.
The tax scheme was designed to encourage entities to care
for local populations and to discourage attention to out-of-
state individuals and groups. ``For purposes of Commerce
Clause analysis, any categorical distinction between the
activities of profit-making enterprises and not-for-profit
entities is therefore wholly illusory. Entities in both
categories are major participants in interstate markets.
And, although the summer camp involved in this case may have
a relatively insignificant impact on the commerce of the
entire Nation, the interstate commercial activities of
nonprofit entities as a class are unquestionably
significant.'' \44\
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\43\ 520 U.S. 564 (1997). The decision was a 5 to 4
one with a strong dissent by Justice Scalia, id. at 595, and
a philosophical departure by Justice Thomas. Id. at 609.
\44\ Id. at 586.
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[P. 236, add to n.978:]
In West Lynn Creamery, Inc. v. Healy, 512 U.S. 186
(1994), the Court held invalidly discriminatory against
interstate commerce a state milk pricing order, which
imposed an assessment on all milk sold by dealers to in-
state retailers, the entire assessment being distributed to
in-state dairy farmers despite the fact that about two-
thirds of the assessed milk was produced out of State. The
avowed purpose and undisputed effect of the provision was to
enable higher-cost in-state dairy farmers to compete with
lower-cost dairy farmers in other States.
--Regulation
[P. 236, add to text following n.980:]
Further extending the limitation of the clause on
waste disposal,\45\ the Court invalidated as a
discrimination against interstate commerce a local ``flow
control'' law, which required all solid waste within the
town to be processed at a designated transfer station before
leaving the municipality.\46\ The town's reason for the
restriction was its decision to have built a solid waste
transfer station by a private contractor, rather than with
public funds by the town. To make the arrangement appetizing
to the contractor, the town guaranteed it a minimum waste
flow, for which it could charge a fee significantly higher
than market rates. The guarantee was policed by the
requirement that all solid waste generated within the town
be processed at the contractor's station and that any person
disposing of solid waste in any other location would be
penalized.
---------------------------------------------------------------------------
\45\ See also Oregon Waste Systems, Inc. v.
Department of Envtl. Quality, 511 U.S. 93 (1994)
(discriminatory tax).
\46\ C & A Carbone, Inc. v. Town of Clarkstown, 511
U.S. 383 (1994).
---------------------------------------------------------------------------
The Court analogized the constraint as a form of
economic protectionism, which bars out-of-state processors
from the business of treating the locality's solid waste, by
hoarding a local resource for the benefit of local
businesses that perform the service. The town's goal of
revenue generation was not a local interest that could
justify the discrimination. Moreover, the town had other
means to accomplish this goal, such as subsidization of the
local facility through general taxes or municipal bonds. The
Court did not deal with, indeed, did not notice, the fact
that the local law conferred a governmentally-granted
monopoly, an exclusive franchise, indistinguishable from a
host of local monopolies at the state and local level.\47\
---------------------------------------------------------------------------
\47\ See The Supreme Court, Leading Cases, 1993
Term, 108 Harv. L. Rev. 139, 149-59 (1994). Weight was given
to this consideration by Justice O'Connor, 511 U.S. at 401
(concurring) (local law an excessive burden on interstate
commerce), and by Justice Souter, id. at 410 (dissenting).
---------------------------------------------------------------------------
Foreign Commerce and State Powers
[P. 241, add to n.1001:]
See also Itel Containers Int'l Corp. v. Huddleston, 507
U.S. 60 (1993) (sustaining state sales tax as applied to
lease of containers delivered within the State and used in
foreign commerce).
[P. 242, add to text following n.1004:]
Extending Container Corporation, the Court in
Barclays Bank v. Franchise Tax Board of California,\48\
upheld the State's worldwide-combined reporting method of
determining the corporate franchise tax owed by unitary
multinational corporations, as applied to a foreign
corporation. The Court determined that the tax easily
satisfied three of the four-part Complete Auto test--nexus,
apportionment, and relation to State's services--and
concluded that the nondiscrimination principle--perhaps
violated by the letter of the law--could be met by the
discretion accorded state officials. As for the two
additional factors, as outlined in Japan Lines, the Court
pronounced itself satisfied. Multiple taxation was not the
inevitable result of the tax, and that risk would not be
avoided by the use of any reasonable alternative. The tax,
it was found, did not impair federal uniformity nor prevent
the Federal Government from speaking with one voice in
international trade. The result of the case, perhaps
intended, is that foreign corporations have less protection
under the negative Commerce Clause.\49\
---------------------------------------------------------------------------
\48\ 512 U.S. 298 (1994).
\49\ The Supreme Court, Leading Cases, 1993 Term,
108 Harv. L. Rev. 139, 139-49 (1993).
---------------------------------------------------------------------------
CONCURRENT FEDERAL AND STATE JURISDICTION
The General Issue: Preemption
--The Standards Applied
[P. 247, add to n.1026, immediately preceding City of New
York v. FCC:]
Smiley v. Citibank, 517 U.S. 735 (1996).
[P. 247, add to n.1027:]
And see Department of Treasury v. Fabe, 508 U.S. 491
(1993).
[P. 247, add to n.1029:]
See also American Airlines v. Wolens, 513 U.S. 219
(1995).
[P. 248, add to n.1032:]
District of Columbia v. Greater Washington Bd. of Trade,
506 U.S. 125 (1992) (law requiring employers to provide
health insurance coverage, equivalent to existing coverage,
for workers receiving workers' compensation benefits); John
Hancock Mutual Life Ins. Co. v. Harris Trust and Savings
Bank, 510 U.S. 86 (1993) (ERISA's fiduciary standards, not
conflicting state insurance laws, apply to insurance
company's handling of general account assets derived from
participating group annuity contract); New York State Conf.
of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514
U.S. 645 (1995) (no preemption of statute that required
hospitals to collect surcharges from patients covered by a
commercial insurer but not from patients covered by Blue
Cross/Blue Shield plan); De Buono v. NYSA-ILA Med. and
Clinical Servs. Fund, 520 U.S. 806 (1997); California Div.
of Labor Stds. Enforcement v. Dillingham Constr., Inc., 519
U.S. 316 (1997); Boggs v. Boggs, 520 U.S. 833 (1997)
(decided not on the basis of the express preemption language
but instead by implied preemption analysis).
[P. 249, add to text following n.1035:]
Little clarification of the confusing Cipollone
decision and opinions resulted in the cases following,
although it does seem evident that the attempted distinction
limiting courts to the particular language of preemption
when Congress has spoken has not prevailed. At issue in
Medtronic, Inc. v. Lohr,\50\ was the Medical Device
Amendments (MDA) of 1976, which prohibited States from
adopting or continuing in effect ``with respect to a
[medical] device'' any ``requirement'' that is ``different
from, or in addition to'' the applicable federal requirement
and that relates to the safety or effectiveness of the
device.\51\ The issue, then, was whether a common-law tort
obligation imposed a ``requirement'' that was different from
or in addition to any federal requirement. The device, a
pacemaker lead, had come on the market not pursuant to the
rigorous FDA test but rather as determined by the FDA to be
``substantially equivalent'' to a device previously on the
market, a situation of some import to at least some of the
Justices.
---------------------------------------------------------------------------
\50\ 518 U.S. 470 (1996). See also CSX
Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993)
(under Federal Railroad Safety Act, a state common-law claim
alleging negligence for operating a train at excessive speed
is preempted, but a second claim alleging negligence for
failure to maintain adequate warning devices at a grade
crossing is not preempted); Norfolk So. Ry. v. Shanklin, 120
S. Ct. 1467 (2000) (applying Easterwood).
\51\ 21 U.S.C. Sec. 350k(a).
---------------------------------------------------------------------------
Unanimously, the Court determined that a defective
design claim was not preempted and that the MDA did not
prevent States from providing a damages remedy for violation
of common-law duties that paralleled federal requirements.
But the Justices split 4-1-4 with respect to preemption of
various claims relating to manufacturing and labeling. FDA
regulations, which a majority deferred to, limited
preemption to situations in which a particular state
requirement threatens to interfere with a specific federal
interest. Moreover, the common-law standards were not
specifically developed to govern medical devices and their
generality removed them from the category of requirements
``with respect to'' specific devices. However, five Justices
did agree that common-law requirements could be, just as
statutory provisions, ``requirements'' that were preempted,
though they did not agree on the application of that
view.\52\
---------------------------------------------------------------------------
\52\ The dissent, by Justice O'Connor and three
others, would have held preempted the latter claims, 518
U.S. at 509, whereas Justice Breyer thought that common-law
claims would sometimes be preempted, but not here. Id. at
503 (concurring).
---------------------------------------------------------------------------
Following Cipollone, the Court observed that while
it ``need not go beyond'' the statutory preemption language,
it did need to ``identify the domain expressly pre-empted''
by the language, so that ``our interpretation of that
language does not occur in a contextual vacuum.'' That is,
it must be informed by two presumptions about the nature of
preemption: the presumption that Congress does not
cavalierly preempt common-law causes of action and the
principle that it is Congress' purpose that is the ultimate
touchstone.\53\
---------------------------------------------------------------------------
\53\ 518 U.S. at 484-85. See also id. at 508
(Justice Breyer concurring); Freightliner Corp. v. Myrick,
514 U.S. 280, 288-89 (1995); Barnett Bank v. Nelson, 517
U.S. 25, 31 (1996); California Div. of Labor Stds.
Enforcement v. Dillingham Constr., Inc., 519 U.S. 316, 334
(1997) (Justice Scalia concurring); Boggs v. Boggs, 520 U.S.
833 (1997) (using ``stands as an obstacle'' preemption
analysis in an ERISA case, having express preemptive
language, but declining to decide when implied preemption
may be used despite express language), and id. at 854
(Justice Breyer dissenting) (analyzing the preemption issue
under both express and implied standards).
---------------------------------------------------------------------------
The Court continued to struggle with application of
express preemption language to state common-law tort actions
in Geier v. American Honda Motor Co.\54\ The National
Traffic and Motor Vehicle Safety Act contained both a
preemption clause, prohibiting states from applying ``any
safety standard'' different from an applicable federal
standard, and a ``saving clause,'' providing that
``compliance with'' a federal safety standard ``does not
exempt any person from any liability under common law.'' The
Court determined that the express preemption clause was
inapplicable. However, despite the saving clause, the Court
ruled that a common law tort action seeking damages for
failure to equip a car with an airbag was preempted because
its application would frustrate the purpose of a Federal
Motor Vehicle Safety Standard that had allowed manufacturers
to choose from among a variety of ``passive restraint''
systems for the applicable model year.\55\ The Court's
holding makes clear, contrary to the suggestion in
Cipollone, that existence of express preemption language
does not foreclose operation of conflict (in this case
``frustration of purpose'') preemption.
---------------------------------------------------------------------------
\54\ 120 S. Ct. 1913 (2000).
\55\ The Court focused on the word ``exempt'' to
give the saving clause a narrow application--as ``simply
bar[ring] a special kind of defense, . . . that compliance
with a federal safety standard automatically exempts a
defendant from state law, whether the Federal Government
meant that standard to be an absolute requirement or only a
minimum one.'' 120 S. Ct. at 1919.
---------------------------------------------------------------------------
[P. 251, add to n.1046 after Ray v. Atlantic Richfield
citation:]
United States v. Locke, 120 S. Ct. 1135 (2000) (applying
Ray).
[P. 252, add to n.1050 before Free v. Brand:]
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265
(1995) (federal arbitration law preempts state law
invalidating pre-dispute arbitration agreements that were
not entered into in contemplation of substantial interstate
activity); Doctor's Associates, Inc. v. Casarotto, 517 U.S.
681 (1996) (federal arbitration law preempts state statute
that conditioned enforceability of arbitration clause on
compliance with special notice requirement).
[P. 252, add to n.1054:]
See also Barnett Bank v. Nelson, 517 U.S. 25 (1996)
(federal law empowering national banks in small towns to
sell insurance preempts state law prohibiting banks from
dealing in insurance; despite explicit preemption provision,
state law stands as an obstacle to accomplishment of federal
purpose).
[P. 253, add to text following n.1057:]
In Boggs v. Boggs,\56\ the Court, 5 to 4, applied
the ``stands as an obstacle'' test for conflict even though
the statute (ERISA) contains an express preemption section.
The dispute arose in a community-property State, in which
heirs of a deceased wife claimed property that involved
pension-benefit assets that was left to them by testamentary
disposition, as against a surviving second wife. Two ERISA
provisions operated to prevent the descent of the property
to the heirs, but under community-property rules the
property could have been left to the heirs by their deceased
mother. The Court did not pause to analyze whether the ERISA
preemption provision operated to preclude the descent of the
property, either because state law ``relate[d] to'' a
covered pension plan or because state law had an
impermissible ``connection with'' a plan, but it instead
decided that the operation of the state law insofar as it
conflicted with the purposes Congress had intended to
achieve by ERISA and insofar as it ran into the two noted
provisions of ERISA stood as an obstacle to the effectuation
of the ERISA law. ``We can begin, and in this case end, the
analysis by simply asking if state law conflicts with the
provisions of ERISA or operates to frustrate its objects. We
hold that there is a conflict, which suffices to resolve the
case. We need not inquire whether the statutory phrase
`relate to' provides further and additional support for the
pre-emption claim. Nor need we consider the applicability of
field pre-emption.'' \57\
---------------------------------------------------------------------------
\56\ 520 U.S. 833 (1997).
\57\ Id. at 841. The dissent, id. at 854 (Justice
Breyer), agreed that conflict analysis was appropriate, but
he did not find that the state law achieved any result that
ERISA required.
---------------------------------------------------------------------------
Similarly, the Court found it unnecessary to
consider field preemption due to its holding that a
Massachusetts law barring state agencies from purchasing
goods or services from companies doing business with Burma
imposed obstacles to the accomplishment of Congress' full
objectives under the federal Burma sanctions law.\58\ The
state law was said to undermine the federal law in several
respects that could have implicated field preemption--by
limiting the President's effective discretion to control
sanctions, and by frustrating the President's ability to
engage in effective diplomacy in developing a comprehensive
multilateral strategy--but the Court ``decline[d] to speak
to field preemption as a separate issue.'' \59\
---------------------------------------------------------------------------
\58\ Crosby v. National Foreign Trade Council, 120
S. Ct. 2288 (2000).
\59\ 120 S. Ct. at 2295 n.8.
---------------------------------------------------------------------------
--Federal Versus State Labor Laws
[P. 255, add to n.1069, immediately following Bethlehem
Steel:]
See also Livadas v. Bradshaw, 512 U.S. 107 (1994)
(finding preempted because it stood as an obstacle to the
achievement of the purposes of NLRA a practice of a state
labor commissioner).
COMMERCE WITH INDIAN TRIBES
[P. 263, add to n.1114:]
For recent tax controversies, see Oklahoma Tax Comm'n v.
Sac & Fox Nation, 508 U.S. 114 (1993); Department of
Taxation & Finance v. Milhelm Attea & Bros., 512 U.S. 61
(1994); Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S.
450 (1995).
[P. 263, add to n.1117, immediately following Brendale
discussion:]
And see Hagen v. Utah, 510 U.S. 399 (1994).
[P. 264, add to n.1119:]
See South Dakota v. Bourland, 508 U.S. 679 (1993)
(abrogation of Indian treaty rights and reduction of
sovereignty).
ALIENS
The Power of Congress to Exclude Aliens
[P. 276, add to n.1199:]
See Sale v. Haitian Centers Council, 509 U.S. 155 (1993)
(construing statutes and treaty provisions restrictively to
affirm presidential power to interdict and seize fleeing
aliens on high seas to prevent them from entering U.S.
waters).
Deportation
[P. 281, add to n.1232:]
In Reno v. Flores, 507 U.S. 292 (1993), the Court upheld
an INS regulation providing for the ongoing detention of
juveniles apprehended on suspicion of being deportable,
unless parents, close relatives, or legal guardians were
available to accept release, as against a substantive due
process attack.
[P. 281, add to text at end of section:]
An alien unlawfully in the country ``has no
constitutional right to assert selective enforcement as a
defense against his deportation.'' \60\
---------------------------------------------------------------------------
\60\ Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 488 (1999).
---------------------------------------------------------------------------
COPYRIGHTS AND PATENTS
Procedure in Issuing Patents
[P. 297, add to n.1353:]
In Markman v. Westview Instruments, Inc., 517 U.S. 348
(1996), the Court held that the interpretation of terms in a
patent claim is a matter of law reserved entirely for the
court. The Seventh Amendment does not require that such
issues be tried to a jury.
Nature and Scope of the Right Secured
[P. 298, add to n.1359:]
For fair use in the context of a song parody, see
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).
THE POWER TO RAISE AND MAINTAIN ARMED FORCES
Trial and Punishment of Offenses: Servicemen, Civilian
Employees, and Dependents
[P. 316, add to n.1465:]
See Loving v. United States, 517 U.S. 748 (1996) (in
context of the death penalty under the UCMJ).
POWERS DENIED TO CONGRESS
Taxes on Exports
[P. 356, add to text following n.1772:]
Continuing its refusal to modify its Export Clause
jurisprudence,\61\ the Court held unconstitutional the
Harbor Maintenance Tax (HMT) under the Export Clause insofar
as the tax was applied to goods loaded at United States
ports for export. The HMT required shippers to pay a uniform
charge on commercial cargo shipped through the Nation's
ports. The clause, said the Court, ``categorically bars
Congress from imposing any tax on exports.'' \62\ However,
the clause does not interdict a ``user fee,'' that is a
charge that lacks the attributes of a generally applicable
tax or duty and is designed to compensate for government
supplied services, facilities, or benefits, and it was that
defense to which the Government repaired once it failed to
obtain a modification of the rules under the clause. But the
HMT bore the indicia of a tax. It was titled as a tax,
described as a tax in the law, and codified in the Internal
Revenue Code. Aside from naming, however, courts must look
to how things operate, and the HMT did not qualify as a user
fee. It did not represent compensation for services
rendered. The value of export cargo did not correspond
reliably with the federal harbor services used or usable by
the exporter. Instead, the extent and manner of port use
depended on such factors as size and tonnage of a vessel and
the length of time it spent in port.\63\ The HMT was thus a
tax, and therefore invalid.
---------------------------------------------------------------------------
\61\ See United States v. IBM Corp., 517 U.S. 843,
850-61 (1996).
\62\ United States v. United States Shoe Corp., 523
U.S. 360, 363 (1998).
\63\ Id. at 367-69.
---------------------------------------------------------------------------
[P. 356, add to text following n.1775:]
In United States v. IBM Corporation,\64\ the Court
declined the Government's argument that it should refine its
export-tax-clause jurisprudence. Rather than read the clause
as a bar on any tax that applies to a good in the export
stream, the Government contended that the Court should bring
this clause in line with the Import-Export Clause \65\ and
with dormant-commerce-clause doctrine. In that view, the
Court should distinguish between discriminatory and
nondiscriminatory taxes on exports. But the Court held that
sufficient differences existed between the Export Clause and
the other two clauses, so that its bar should continue to
apply to any and all taxes on goods in the course of
exportation.
---------------------------------------------------------------------------
\64\ 517 U.S. 843 (1996).
\65\ Article I, Sec. 10, cl. 2, applying to the
States.
---------------------------------------------------------------------------
[P. 356, add to n.1778:]
In United States v. IBM Corp., 517 U.S. 843 (1996), the
Court adhered to Thames & Mersey, and held unconstitutional
a federal excise tax upon insurance policies issued by
foreign countries as applied to coverage for exported
products. The Court admitted that one could question the
earlier case's equating of a tax on the insurance of
exported goods with a tax on the goods themselves, but it
observed that the Government had chosen not to present that
argument. Principles of stare decisis thus cautioned
observance of the earlier case. Id. at 854-55. The
dissenters argued that the issue had been presented and
should be decided by overruling the earlier case. Id. at 863
(Justices Kennedy and Ginsburg dissenting).
POWERS DENIED TO THE STATES
Ex Post Facto Laws
--Scope of the Provision
[P. 362, add to n.1815:]
In Eastern Enterprises v. Apfel, 524 U.S. 498, 538
(1998) (concurring), Justice Thomas indicated a willingness
to reconsider Calder to determine whether the clause should
apply to civil legislation.
--Changes in Punishment
[P. 364, add to n.1829:]
But see California Dep't of Corrections v. Morales, 514
U.S. 499 (1995) (a law amending parole procedures to
decrease frequency of parole-suitability hearings is not ex
post facto as applied to prisoners who committed offenses
before enactment). The opinion modifies previous opinions
that had invalidated some laws because they operated to the
``disadvantage'' of covered offenders. Henceforth, ``the
focus of ex post facto inquiry is . . . whether any such
change alters the definition of criminal conduct or
increases the penalty by which a crime is punishable.'' Id.
at 506 n.3. Accord, Garner v. Jones, 120 S. Ct. 1362 (2000)
(evidence insufficient to determine whether change in
frequency of parole hearings significantly increases the
likelihood of prolonging incarceration). But see Lynce v.
Mathis, 519 U.S. 433 (1997) (cancellation of release credits
already earned and used, resulting in reincarceration,
violates the Clause).
--Changes in Procedure
[P. 366, add to end of section:]
Changes in evidentiary rules that allow conviction
on less evidence than was required at the time the crime was
committed can also run afoul of the Ex Post Facto Clause.
This principle was applied in the Court's invalidation of
retroactive application of a Texas law that eliminated the
requirement that the testimony of a sexual assault victim
age 14 or older must be corroborated by two other witnesses,
and allowed conviction on the victim's testimony alone.\66\
---------------------------------------------------------------------------
\66\ Carmell v. Texas, 120 S. Ct. 1620 (2000).
---------------------------------------------------------------------------
Duties on Exports or Imports
--Scope
[P. 399, add to n.2000:]
Justice Thomas has called recently for reconsideration
of Woodruff and the possible application of the clause to
interstate imports and exports. Camps Newfound/Owatonna,
Inc. v. Town of Harrison, 520 U.S. 564, 609, 621 (1997)
(dissenting).
--Property Taxes
[P. 400, add to n.2020:]
See also Itel Containers Int'l Corp. v. Huddleston, 507
U.S. 60, 76-8 (1993). And see id. at 81-2 (Justice Scalia
concurring).
ARTICLE II
NATURE AND SCOPE OF PRESIDENTIAL POWER
Executive Power: Theory of the Presidential Office
--The Curtiss-Wright Case
[P. 420, add to n.34:]
In Loving v. United States, 517 U.S. 748 (1996), the
Court recurred to the original setting of Curtiss-Wright, a
delegation to the President without standards. Congress, the
Court found, had delegated to the President authority to
structure the death penalty provisions of military law so as
to bring the procedures, relating to aggravating and
mitigating factors, into line with constitutional
requirements, but Congress had provided no standards to
guide the presidential exercise of the authority. Standards
were not required, held the Court, because the President's
role as Commander-in-Chief gave him responsibility to
superintend the military establishment and Congress and the
President had interlinked authorities with respect to the
military. Where the entity exercising the delegated
authority itself possesses independent authority over the
subject matter, the familiar limitations on delegation do
not apply. Id. at 771-74.
Executive Power: Separation-of-Powers Judicial Protection
[P. 422, add to text following n.45:]
Significant change in the position of the Executive
Branch on separation of powers may be discerned in two
briefs of the Department of Justice's Office of Legal
Counsel, which may spell some measure of judicial
modification of the formalist doctrine of separation and
adoption of the functionalist approach to the doctrine.\1\
The two opinions withdraw from the Department's earlier
contention, following Buckley v. Valeo, that the execution
of the laws is an executive function that may be carried out
only by persons appointed pursuant to the appointments
clause, thus precluding delegations to state and local
officers and to private parties (as in qui tam actions), as
well as to glosses on the take care clause and other
provisions of the Constitution. Whether these memoranda
signal long-term change depends on several factors,
importantly on whether they are adhered to by subsequent
administrations.
---------------------------------------------------------------------------
\1\ Memorandum for John Schmidt, Associate Attorney
General, from Assistant Attorney General Walter Dellinger,
Constitutional Limitations on Federal Government
Participation in Binding Arbitration (Sept. 7, 1995);
Memorandum for the General Counsels of the Federal
Government, from Assistant Attorney General Walter
Dellinger, The Constitutional Separation of Powers Between
the President and Congress (May 7, 1996). The principles
laid down in the memoranda depart significantly from
previous positions of the Department of Justice. For
conflicting versions of the two approaches, see
Constitutional Implications of the Chemical Weapons
Convention, Hearings Before the Senate Judiciary
Subcommittee on the Constitution, Federalism, and Property
Rights, 104th Cong., 2d Sess. (1996), 11-26, 107-10
(Professor John C. Woo), 80-106 (Deputy Assistant Attorney
General Richard L. Shiffrin).
---------------------------------------------------------------------------
[P. 425, add to text following n.61:]
In the course of deciding that the President's
action in approving the closure of a military base, pursuant
to statutory authority, was not subject to judicial review,
the Court enunciated a principle that may mean a great deal,
constitutionally speaking, or that may not mean much of
anything.\2\ The lower court had held that, while review of
presidential decisions on statutory grounds might be
precluded, his decisions were reviewable for
constitutionality; in that court's view, whenever the
President acts in excess of his statutory authority, he also
violates the constitutional separation-of-powers doctrine.
The Supreme Court found this analysis flawed. ``Our cases do
not support the proposition that every action by the
President, or by another executive official, in excess of
his statutory authority is ipso facto in violation of the
Constitution. On the contrary, we have often distinguished
between claims of constitutional violations and claims that
an official has acted in excess of his statutory
authority.'' \3\ Thus, the Court drew a distinction between
executive action undertaken without even the purported
warrant of statutory authorization and executive action in
excess of statutory authority. The former may violate
separation of powers, while the latter will not.\4\
---------------------------------------------------------------------------
\2\ Dalton v. Specter, 511 U.S. 462 (1994).
\3\ Id. at 472.
\4\ See The Supreme Court, Leading Cases, 1993 Term,
108 Harv. L. Rev. 139, 300-10 (1994).
---------------------------------------------------------------------------
Doctrinally, the distinction is important and
subject to unfortunate application.\5\ Whether the brief,
unilluminating discussion in Dalton will bear fruit in
constitutional jurisprudence, however, is problematic.
---------------------------------------------------------------------------
\5\ ``As a matter of constitutional logic, the
executive branch must have some warrant, either statutory or
constitutional, for its actions. The source of all federal
governmental authority is the Constitution and, because the
Constitution contemplates that Congress may delegate a
measure of its power to officials in the executive branch,
statutes. The principle of separation of powers is a direct
consequence of this scheme. Absent statutory authorization,
it is unlawful for the President to exercise the powers of
the other branches because the Constitution does not vest
those powers in the President. The absence of statutory
authorization is not merely a statutory defect; it is a
constitutional defect as well.'' 108 Harv. L. Rev. at 305-06
(footnote citations omitted).
---------------------------------------------------------------------------
THE EXECUTIVE ESTABLISHMENT
Appointments and Congressional Regulation of Offices
[P. 514, add to text following n.468:]
The Court, in Edmond v. United States,\6\ reviewed
its pronouncements regarding the definition of ``inferior
officer'' and, disregarding some implications of its prior
decisions, seemingly settled, unanimously, on a pragmatic
characterization. Thus, the importance of the
responsibilities assigned an officer, the fact that duties
were limited, that jurisdiction was narrow, and that tenure
was limited, are only factors but are not definitive.\7\
``Generally speaking, the term `inferior officer' connotes a
relationship with some higher ranking officer or officers
below the President: Whether one is an `inferior' officer
depends on whether he has a superior. It is not enough that
other officers may be identified who formally maintain a
higher rank, or possess responsibilities of a greater
magnitude. If that were the intention, the Constitution
might have used the phrase `lesser officer.' Rather, in the
context of a Clause designed to preserve political
accountability relative to important Government assignments,
we think it evident that `inferior officers' are officers
whose work is directed and supervised at some level by
others who were appointed by Presidential nomination with
the advice and consent of the Senate.'' \8\
---------------------------------------------------------------------------
\6\ 520 U.S. 651 (1997).
\7\ Id. at 661-62.
\8\ Id. at 662-63. The case concerned whether the
Secretary of Transportation, a presidential appointee with
the advice and consent of the Senate, could appoint judges
of the Coast Guard Court of Military Appeals; necessarily,
the judges had to be ``inferior'' officers. In related
cases, the Court held that designation or appointment of
military judges, who are ``officers of the United States,''
does not violate the appointments clause. The judges are
selected by the Judge Advocate General of their respective
branch of the Armed Forces. These military judges, however,
were already commissioned officers who had been appointed by
the President with the advice and consent of the Senate, so
that their designation simply and permissibly was an
assignment to them of additional duties that did not need a
second formal appointment. Weiss v. United States, 510 U.S.
163 (1994). However, the appointment of civilian judges to
the Coast Guard Court of Military Review by the same method
was impermissible; they had either to be appointed by an
officer who could exercise appointment-clause authority or
by the President, and their actions were not salvageable
under the de facto officer doctrine. Ryder v. United States,
515 U.S. 177 (1995).
---------------------------------------------------------------------------
[P. 516, add new footnote to end of first sentence of first
full paragraph:]
As the text suggested, Freytag seemed to be a tentative
decision, and Edmond v. United States, 520 U.S. 651 (1997),
a unanimous decision written by Justice Scalia, whose
concurring opinion in Freytag challenged the Court's
analysis, may easily be read as retreating considerably from
it.
--Financial Disclosure and Limitations
[P. 519, add to n.498:]
The Supreme Court held this provision unconstitutional
in United States v. NTEU, 513 U.S. 454 (1995).
PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION
[P. 579, add to n.723:]
See also, following Franklin, Dalton v. Specter, 511
U.S. 462 (1994).
[P. 582, add to text following n.738:]
Unofficial Conduct.--In Clinton v. Jones,\9\ the
Court, in a case of first impression, held that the
President did not have qualified immunity from suit for
conduct alleged to have taken place prior to his election to
the Presidency, which would entitle him to delay of both the
trial and discovery. The Court held that its precedents
affording the President immunity from suit for his official
conduct--primarily on the basis that he should be enabled to
perform his duties effectively without fear that a
particular decision might give rise to personal liability--
were inapplicable in this kind of case. Moreover, the
separation-of-powers doctrine did not require a stay of all
private actions against the President. Separation of powers
is preserved by guarding against the encroachment or
aggrandizement of one of the coequal branches of the
Government at the expense of another. However, a federal
trial court tending to a civil suit in which the President
is a party performs only its judicial function, not a
function of another branch. No decision by a trial court
could curtail the scope of the President's powers. The trial
court, the Supreme Court observed, had sufficient powers to
accommodate the President's schedule and his workload, so as
not to impede the President's performance of his duties.
Finally, the Court stated its belief that allowing such
suits to proceed would not generate a large volume of
politically motivated harassing and frivolous litigation.
Congress has the power, the Court advised, if it should
think necessary to legislate, to afford the President
protection.\10\
---------------------------------------------------------------------------
\9\ 520 U.S. 681 (1997).
\10\ The Court observed at one point that it doubted
that defending the suit would much preoccupy the President,
that his time and energy would not be much taken up by it.
``If the past is any indicator, it seems unlikely that a
deluge of such litigation will ever engulf the Presidency.''
520 U.S. at 702.
---------------------------------------------------------------------------
--The President's Subordinates
[P. 582, add to n.743:]
Following the Westfall decision, Congress enacted the
Federal Employees Liability Reform and Tort Compensation Act
of 1988 (the Westfall Act), which authorized the Attorney
General to certify that an employee was acting within the
scope of his office or employment at the time of the
incident out of which a suit arose; upon certification, the
employee is dismissed from the action, and the United States
is substituted, the Federal Tort Claims Act (FTCA) then
governing the action, which means that sometimes the action
must be dismissed against the Government because the FTCA
has not waived sovereign immunity. Cognizant of the
temptation set before the Government to immunize both itself
and its employee, the Court in Gutierrez de Martinez v.
Lamagno, 515 U.S. 417 (1995), held that the Attorney
General's certification is subject to judicial review.
IMPEACHMENT
Impeachable Offenses
--Judicial Review of Impeachments
[P. 591, add to text following n.784:]
Upon at last reaching the question, the Court has
held that a claim to judicial review of an issue arising in
an impeachment trial in the Senate presents a nonjusticiable
question, a ``political question.'' \11\ Specifically, the
Court held that a claim that the Senate had not followed the
proper meaning of the word ``try'' in the impeachment
clause, a special committee being appointed to take
testimony and to make a report to the full Senate, complete
with a full transcript, on which the Senate acted, could not
be reviewed. But the analysis of the Court applies to all
impeachment clause questions, thus seemingly putting off-
limits to judicial review the whole process.
---------------------------------------------------------------------------
\11\ Nixon v. United States, 506 U.S. 224 (1993).
Nixon at the time of his conviction and removal from office
was a federal district judge in Mississippi.
ARTICLE III
JUDICIAL POWER
Characteristics and Attributes of Judicial Power
[P. 618, add to text following n.126:]
Judicial power confers on federal courts the power
to decide a case, to render a judgment conclusively
resolving a case. Judicial power is the authority to render
dispositive judgments, and Congress violates the separation
of powers when it purports to alter final judgments of
Article III courts.\1\ In this controversy, the Court had
unexpectedly fixed on a shorter statute of limitations to
file certain securities actions than that believed to be the
time in many jurisdictions. Resultantly, several suits that
had been filed later than the determined limitations had
been dismissed and had become final because they were not
appealed. Congress enacted a statute, which, while not
changing the limitations period prospectively, retroactively
extended the time for suits dismissed and provided for the
reopening of the final judgments rendered in the dismissals
of suits.
---------------------------------------------------------------------------
\1\ Plaut v. Spendthrift Farm, Inc., 514 U.S. 211,
218-19 (1995). The Court was careful to delineate the
difference between attempting to alter a final judgment, one
rendered by a court and either not appealed or affirmed on
appeal, and legislatively amending a statute so as to change
the law as it existed at the time a court issued a decision
that was on appeal or otherwise still alive at the time a
federal court reviewed the determination below. A court must
apply the law as revised when it considers the prior
interpretation. Id. at 226-27.
Article III creates or authorizes Congress to create
not a collection of unconnected courts, but a judicial
department composed of ``inferior courts'' and ``one Supreme
Court.'' ``Within that hierarchy, the decision of an
inferior court is not (unless the time for appeal has
expired) the final word of the department as a whole.'' Id.
at 227.
---------------------------------------------------------------------------
Holding the congressional act invalid, the Court
held it impermissible for Congress to disturb a final
judgment. ``Having achieved finality, . . . a judicial
decision becomes the last word of the judicial department
with regard to a particular case or controversy, and
Congress may not declare by retroactive legislation that the
law applicable to that very case was something other than
what the courts said it was.'' \2\ On the other hand, the
Court ruled in Miller v. French \3\ that the Prison
Litigation Reform Act's automatic stay of ongoing
injunctions remedying violations of prisoners' rights did
not amount to an unconstitutional legislative revision of a
final judgment. Rather, the automatic stay merely alters
``the prospective effect'' of injunctions, and it is well
established that such prospective relief ``remains subject
to alteration due to changes in the underlying law.'' \4\
---------------------------------------------------------------------------
\2\ 514 U.S. at 227 (emphasis by Court).
\3\ 120 S. Ct. 2246 (2000).
\4\ 120 S. Ct. at 2257.
---------------------------------------------------------------------------
Finality of Judgment as an Attribute of Judicial Power
[P. 620, add to n.140:]
Notice the Court's discussion in Plaut v. Spendthrift
Farm, Inc., 514 U.S. 211, 218, 225-26 (1995).
ANCILLARY POWERS OF FEDERAL COURTS
The Contempt Power
--Categories of Contempt
[P. 623, add to text following n.154:]
In International Union, UMW v. Bagwell,\5\ the Court
formulated a new test for drawing the distinction between
civil and criminal contempts, which has important
consequences for the procedural rights to be accorded those
cited. Henceforth, the imposition of non-compensatory
contempt fines for the violation of any complex injunction
will require criminal proceedings. This case, as have so
many, involved the imposition of large fines (here, $52
million) upon a union in a strike situation for violations
of an elaborate court injunction restraining union activity
during the strike. The Court was vague with regard to the
standards for determining when a court order is ``complex''
and thus requires the protection of criminal proceedings.\6\
Much prior doctrine remains, however, as in the distinction
between remedial sanctions, which are civil, and punitive,
which are criminal, and between in-court and out-of-court
contempts.
---------------------------------------------------------------------------
\5\ 512 U.S. 821 (1994).
\6\ Id. at 832-38. Relevant is the fact that the
alleged contempts did not occur in the presence of the court
and that determinations of violations require elaborate and
reliable factfinding. See esp. id. at 837-38.
---------------------------------------------------------------------------
--Due Process Limitations on Contempt Power: Right to Jury
Trial
[P. 631, add to n.195:]
See also International Union, UMW v. Bagwell, 512 U.S.
821 (1994) (refining the test for when contempt citations
are criminal and thus require jury trials).
[P. 631, add to n.196:]
In International Union, UMW v. Bagwell, 512 U.S. 821,
837 n.5 (1994), the Court continued to reserve the question
of the distinction between petty and serious contempt fines,
because of the size of the fine in that case.
--Contempt by Disobedience of Orders
[P. 634, add to n.206:]
See also International Union, UMW v. Bagwell, 512 U.S.
821 (1994).
Power to Issue Writs: The Act of 1789
--Habeas Corpus: Congressional and Judicial Control
[P. 639, add to text following n.238:]
In Felker v. Turpin,\7\ the Court again passed up
the opportunity to delineate Congress' permissive authority
over habeas, finding that none of the provisions of the
Antiterrorism and Effective Death Penalty Act \8\ raised
questions of constitutional import.
---------------------------------------------------------------------------
\7\ 518 U.S. 651 (1996).
\8\ Pub. L. No. 104-132, Sec. Sec. 101-08, 110 Stat.
1214, 1217-26, amending, inter alia, 28 U.S.C.
Sec. Sec. 2244, 2253, 2254, 2255, and Fed. R. App. P. 22.
---------------------------------------------------------------------------
Congressional Limitation of the Injunctive Power
[P. 642, add to text following n.264:]
Perhaps pressing its powers further than prior
legislation, Congress enacted the Prison Litigation Reform
Act of 1996.\9\ Essentially, the law imposes a series of
restrictions on judicial remedies in prison-conditions
cases. Thus, courts may not issue prospective relief that
extends beyond that necessary to correct the violation of a
federal right that they have found, that is narrowly drawn,
is the least intrusive, and that does not give attention to
the adverse impact on public safety. Preliminary injunctive
relief is limited by the same standards. Consent decrees may
not be approved unless they are subject to the same
conditions, meaning that the court must conduct a trial and
find violations, thus cutting off consent decrees. No
prospective relief is to last longer than two years if any
party or intervenor so moves. Finally, a previously issued
decree that does not conform to the new standards imposed by
the Act is subject to termination upon the motion of the
defendant or an intervenor. After a short period (30 or 60
days, depending on whether there is ``good cause'' for a 30-
day extension), such a motion operates as an automatic stay
of the prior decree pending the court's decision on the
merits. The Court upheld the termination and automatic stay
provisions in Miller v. French,\10\ rejecting the contention
that the automatic stay provision offends separation of
powers principles by legislative revision of a final
judgment. Rather, Congress merely established new standards
for the enforcement of prospective relief, and the automatic
stay provision ``helps to implement the change in the law.''
\11\
---------------------------------------------------------------------------
\9\ The statute was part of an Omnibus
Appropriations Act signed by the President on April 26,
1996. Pub. L. 104-134, Sec. Sec. 801-10, 110 Stat. 1321-66-
77, amending 18 U.S.C. Sec. 3626.
\10\ 120 S. Ct. 2246 (2000).
\11\ 120 S. Ct. at 2259.
---------------------------------------------------------------------------
JUDICIAL POWER AND JURISDICTION--CASES AND CONTROVERSIES
Substantial Interest: Standing
--Taxpayer Suits
[P. 657, add to n.335:]
Richardson's generalized grievance constriction does not
apply when Congress confers standing on litigants. FEC v.
Akins, 524 U.S. 11 (1998). When Congress confers standing on
``any person aggrieved'' by the denial of information
required to be furnished them, the statutory entitlement is
sufficient, and it matters not that most people will be
entitled and will thus suffer a ``generalized grievance.''
Id. at 21-25.
[P. 657, add to n.336:]
The Court's present position on Flast is set out
severely in Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), in
which the Court largely plays down the ``serious and
adversarial treatment'' prong of standing and strongly
reasserts the separation-of-powers value of keeping courts
within traditional bounds. The footnote is a response to
Justice Souter's separate opinion utilizing Flast, id., 398-
99, for a distinctive point.
--Constitutional Standards: Injury in Fact, Causation, and
Redressability
[P. 658, insert the following after the word ``Now'' in
sentence following n.345:]
political,\12\
---------------------------------------------------------------------------
\12\ Department of Commerce v. United States House
of Representatives, 525 U.S. 316 (1999).
---------------------------------------------------------------------------
[P. 659, add to text following n.347:]
In FEC v. Akins,\13\ the Court found ``injury-in-fact''
present when plaintiff voters alleged that the Federal
Election Commission had denied them information, to which
they alleged an entitlement, respecting an organization that
might or might not be a political action committee. Congress
had afforded persons access to the Commission and had
authorized ``any person aggrieved'' by the actions of the
FEC to sue to challenge the action. That the injury was
widely shared did not make the claimed injury a
``generalized grievance,'' the Court held, but rather in
this case, as in others, it was a concrete harm to each
member of the class. The case is a principal example of the
ability of Congress to confer standing and to remove
prudential constraints on judicial review.
---------------------------------------------------------------------------
\13\ 524 U.S. 11 (1998).
---------------------------------------------------------------------------
[P. 659, add to n.348 at end of string citation:]
Friends of the Earth v. Laidlaw Envtl. Servs., 120 S.
Ct. 693 (2000).
[P. 659, add to text following n.348:]
Even citizens who bring qui tam actions under the
False Claims Act, an action that entitles them to a
percentage of any civil penalty assessed for violation, have
been held to have standing, on the theory that the
government has assigned a portion of its damages claim to
the plaintiff, and the assignee of a claim has standing to
assert the injury in fact suffered by the assignor.\14\
---------------------------------------------------------------------------
\14\ Vermont Agency of Nat. Res. v. United States ex
rel. Stevens, 120 S. Ct. 1858 (2000). The Court confirmed
its conclusion by reference to the long tradition of qui tam
actions, since the Constitution's restriction of judicial
power to ``cases'' and ``controversies'' has been
interpreted to mean ``cases and controversies of the sort
traditionally amenable to, and resolved by, the judicial
process.'' Id. at 1863.
---------------------------------------------------------------------------
[P. 660, add to n.352:]
In Steel Co. v. Citizens for a Better Environment, 523
U.S. 83 (1998), the Court denied standing because of the
absence of redressability. An environmental group sued the
company for failing to file timely reports required by
statute; by the time the complaint was filed, the company
was in full compliance. Acknowledging that the entity had
suffered injury in fact, the Court found that no judicial
action would afford it a remedy.
[P. 661, add to text at end of section:]
Redressability can be present in an environmental
citizen suit even when the remedy is civil penalties payable
to the government. The civil penalties, the Court explained,
``carried with them a deterrent effect that made it likely,
as opposed to merely speculative, that the penalties would
redress [plaintiffs'] injuries by abating current violations
and preventing future ones.'' \15\
---------------------------------------------------------------------------
\15\ Friends of the Earth v. Laidlaw Envtl. Servs.,
120 S. Ct. 693, 707 (2000).
---------------------------------------------------------------------------
--Prudential Standing Rules
[P. 661, add to text following n.360:]
In a case permitting a plaintiff contractors'
association to challenge an affirmative-action, set-aside
program, the Court seemed to depart from several restrictive
standing decisions in which it had held that the claims of
attempted litigants were too ``speculative'' or too
``contingent.'' \16\ The association had sued, alleging that
many of its members ``regularly bid on and perform
construction work'' for the city and that they would have
bid on the set-aside contracts but for the restrictions. The
Court found the association had standing, because certain
prior cases under the Equal Protection Clause established a
relevant proposition. ``When the government erects a barrier
that makes it more difficult for members of one group to
obtain a benefit than it is for members of another group, a
member of the former group seeking to challenge the barrier
need not allege that he would have obtained the benefit but
for the barrier in order to establish standing. The `injury
in fact' in an equal protection case of this variety is the
denial of equal treatment resulting from the imposition of
the barrier, not the ultimate inability to obtain the
benefit.'' \17\ The association, therefore, established
standing by alleging that its members were able and ready to
bid on contracts but that a discriminatory policy prevented
them from doing so on an equal basis.\18\
---------------------------------------------------------------------------
\16\ Northeastern Fla. Ch., Assoc. Gen. Contractors
v. City of Jacksonville, 508 U.S. 656 (1993). Thus, it
appears that had the Court applied its standard in the
current case, the results would have been different in such
cases as Linda R. S. v. Richard D., 410 U.S. 614 (1973);
Warth v. Seldin, 422 U.S. 490 (1975); Simon v. Eastern
Kentucky Welfare Rights Org., 426 U.S. 26 (1976); and Allen
v. Wright, 468 U.S. 737 (1984).
\17\ 508 U.S. at 666. The Court derived the
proposition from another set of cases. Turner v. Fouche, 396
U.S. 346 (1970); Clements v. Fashing, 457 U.S. 957 (1982);
Regents of the Univ. of California v. Bakke, 438 U.S. 265,
281 n.14 (1978).
\18\ 508 U.S. at 666. But see, in the context of
ripeness, Reno v. Catholic Social Servs., Inc., 509 U.S. 43
(1993), in which the Court, over the dissent's reliance on
Jacksonville, id. at 81-2, denied the relevance of its
distinction between entitlement to a benefit and equal
treatment. Id. at 58 n.19.
---------------------------------------------------------------------------
[Pp. 661-62, add to n.360:]
Justice Scalia, who wrote the opinion in Lujan,
reiterated the separation-of-powers objection to
congressional conferral of standing in FEC v. Akins, 524
U.S. 11, 29, 36 (1998) (alleged infringement of President's
``take care'' obligation), but this time in dissent; the
Court did not advert to this objection in finding that
Congress had provided for standing based on denial of
information to which the plaintiffs, as voters, were
entitled.
[P. 662, add to n.362:]
See also Bennett v. Spear, 520 U.S. 154 (1997).
--Standing to Assert the Constitutional Rights of Others
[P. 663, add to n.370:]
The Court has expanded the rights of non-minority
defendants to challenge the exclusion of minorities from
petit and grand juries, both on the basis of the injury-in-
fact to defendants and because the standards for being able
to assert the rights of third parties were met. Powers v.
Ohio, 499 U.S. 400 (1991); Campbell v. Louisiana, 523 U.S.
392 (1998).
--Standing of Members of Congress
[P. 668, add new paragraph at end of section:]
Member or legislator standing has been severely
curtailed, although not quite abolished, in Raines v.
Byrd.\19\ Several Members of Congress, who had voted against
passage of the Line Item Veto Act, sued in their official
capacities as Members of Congress to invalidate the law,
alleging standing based on the theory that the statute
adversely affected their constitutionally prescribed
lawmaking power.\20\ Emphasizing its use of standing
doctrine to maintain separation-of-powers principles, the
Court adhered to its holdings that, in order to possess the
requisite standing, a person must establish that he has a
``personal stake'' in the dispute and that the alleged
injury suffered is particularized as to him.\21\ Neither
requirement, the Court held, was met by these legislators.
First, the Members did not suffer a particularized loss that
distinguished them from their colleagues or from Congress as
an entity. Second, the Members did not claim that they had
been deprived of anything to which they were personally
entitled. ``[A]ppellees' claim of standing is based on loss
of political power, not loss of any private right, which
would make the injury more concrete . . . . If one of the
Members were to retire tomorrow, he would no longer have a
claim; the claim would be possessed by his successor
instead. The claimed injury thus runs (in a sense) with the
Member's seat, a seat which the Member holds . . . as
trustee for his constituents, not as a prerogative of
personal power.'' \22\
---------------------------------------------------------------------------
\19\ 521 U.S. 811 (1997).
\20\ The Act itself provided that ``[a]ny Member of
Congress or any individual adversely affected'' could sue to
challenge the law. 2 U.S.C. Sec. 692(a)(1). After failure of
this litigation, the Court in the following Term, on suits
brought by claimants adversely affected by the exercise of
the veto, held the statute unconstitutional. Clinton v. City
of New York, 524 U.S. 417 (1998).
\21\ 521 U.S. at 819.
\22\ 521 U.S. at 821.
---------------------------------------------------------------------------
So, there is no such thing as Member standing? Not
necessarily so, because the Court turned immediately to
preserving (at least a truncated version of) Coleman v.
Miller,\23\ in which the Court had found that 20 of the 40
members of a state legislature had standing to sue to
challenge the loss of the effectiveness of their votes as a
result of a tie-breaker by the lieutenant governor. Although
there are several possible explanations for the result in
that case, the Court in Raines chose to fasten on a
particularly narrow point. ``[O]ur holding in Coleman stands
(at most, . . .) for the proposition that legislators whose
votes would have been sufficient to defeat (or enact) a
specific legislative Act have standing to sue if that
legislative action goes into effect (or does not go into
effect), on the ground that their votes have been completely
nullified.'' \24\ Because these Members could still pass or
reject appropriations bills, vote to repeal the Act, or
exempt any appropriations bill from presidential
cancellation, the Act did not nullify their votes and thus
give them standing.\25\
---------------------------------------------------------------------------
\23\ 307 U.S. 433 (1939).
\24\ 521 U.S. at 823.
\25\ 521 U.S. at 824-26.
---------------------------------------------------------------------------
It will not pass notice that the Court's two
holdings do not cohere. If legislators have standing only to
allege personal injuries suffered in their personal
capacities, how can they have standing to assert official-
capacity injury in being totally deprived of the
effectiveness of their votes? A period of dispute in the
D.C. Circuit seems certain to follow.
--Standing to Challenge Nonconstitutional Governmental
Action
[P. 669, add to n.401:]
See also National Credit Union Admin. v. First Nat'l
Bank & Trust Co., 522 U.S. 479 (1998), in which the Court
found that a bank had standing to challenge an agency ruling
expanding the role of employer credit unions to include
multi-employer credit unions, despite a statutory limit that
any such union could be of groups having a common bond of
occupation or association. The Court held that a plaintiff
did not have to show it was the congressional purpose to
protect its interests. It is sufficient if the interest
asserted is ``arguably within the zone of interests to be
protected . . . by the statute.'' Id. at 492 (internal
quotation marks and citation omitted). But the Court divided
5 to 4 in applying the test. And see Bennett v. Spear, 520
U.S. 154 (1997).
[P. 670, add to n.405:]
But see Bennett v. Spear, 520 U.S. 154 (1997) (fact that
``citizen suit'' provision of Endangered Species Act is
directed at empowering suits to further environmental
concerns does not mean that suitor who alleges economic harm
from enforcement of Act lacks standing); FEC v. Akins, 524
U.S. 11 (1998) (expansion of standing based on denial of
access to information).
The Requirement of a Real Interest
--Declaratory Judgments
[P. 674, add to n.436:]
See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
--Ripeness
[P. 676, add to n.449:]
For recent examples of lack of ripeness, see Ohio
Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998); Texas v.
United States, 523 U.S. 296 (1998).
[P. 678, add to n.457:]
In the context of ripeness to challenge agency
regulations, as to which there is a presumption of available
judicial remedies, the Court has long insisted that federal
courts should be reluctant to review such regulations unless
the effects of administrative action challenged have been
felt in a concrete way by the challenging parties, i.e.,
unless the controversy is ``ripe.'' See, of the older cases,
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967); Toilet
Goods Ass'n, Inc. v. Gardner, 387 U.S. 158 (1967); Gardner
v. Toilet Goods Ass'n, Inc., 387 U.S. 167 (1967). More
recent cases include Reno v. Catholic Social Servs., Inc.,
509 U.S. 43 (1993); Lujan v. National Wildlife Fed'n., 497
U.S. 871, 891 (1990).
--Mootness
[P. 679, add to n.462:]
Munsingwear had long stood for the proposition that the
appropriate practice of the Court in a civil case that had
become moot while on the way to the Court or after
certiorari had been granted was to vacate or reverse and
remand with directions to dismiss. But, in U.S. Bancorp
Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994),
the Court held that when mootness occurs because the parties
have reached a settlement, vacatur of the judgment below is
ordinarily not the best practice; instead, equitable
principles should be applied so as to preserve a
presumptively correct and valuable precedent, unless a court
concludes that the public interest would be served by
vacatur.
[PP. 679, add to n.463:]
Consider the impact of Cardinal Chemical Co. v. Morton
Int'l, Inc., 508 U.S. 83 (1993).
[P. 680, add to n.466:]
Following Aladdin's Castle, the Court in Northeastern
Fla. Ch., Assoc. Gen. Contractors v. City of Jacksonville,
508 U.S. 656, 660-63 (1993), held that when a municipal
ordinance is repealed but replaced by one sufficiently
similar so that the challenged action in effect continues,
the case is not moot. But see id. at 669 (Justice O'Connor
dissenting) (modification of ordinance more significant and
case is mooted).
[P. 680, add to n.467:]
In Arizonans For Official English v. Arizona, 520 U.S.
43 (1997), a state employee attacking an English-only work
requirement had standing at the time she brought the suit,
but she resigned following a decision in the trial court,
thus mooting the case before it was taken to the appellate
court, which should not have acted to hear and decide it.
[P. 680, add to n.469:]
But compare Spencer v. Kemna, 523 U.S. 1 (1998).
[P. 682, add to n.476 following Super Tire citation:]
Friends of the Earth v. Laidlaw Envtl. Servs., 120 S.
Ct. 693, 708-10 (2000).
--Retroactivity Versus Prospectivity
[P. 686, add to n.503:]
For additional elaboration on ``new law,'' see O'Dell v.
Netherland, 521 U.S. 151 (1997); Lambrix v. Singletary, 520
U.S. 518 (1997); Gray v. Netherland, 518 U.S. 152 (1996).
But compare Bousley v. Brooks, 523 U.S. 614 (1998).
[P. 687, add to text following n.509:]
Apparently, the Court now has resolved this dispute,
although the principal decision is a close 5 to 4 result. In
Harper v. Virginia Dep't of Taxation,\26\ the Court adopted
the principle of the Griffith decision in criminal cases and
disregarded the Chevron Oil approach in civil cases.
Henceforth, in civil cases, the rule is: ``When this Court
applies a rule of federal law to the parties before it, that
rule is the controlling interpretation of federal law and
must be given full retroactive effect in all cases open on
direct review and as to all events, regardless of whether
such events predate or postdate our announcement of the
rule.'' \27\ Four Justices continued to adhere to Chevron
Oil, however,\28\ so that with one Justice each retired from
the different sides one may not regard the issue as
definitively settled.\29\
---------------------------------------------------------------------------
\26\ 509 U.S. 86 (1993).
\27\ Id. at 97. While the conditional language in
this passage might suggest that the Court was leaving open
the possibility that in some cases it might rule purely
prospectively, not even applying its decision to the parties
before it, other language belies that possibility. ``This
rule extends Griffith's ban against `selective application
of new rules.' '' [Citing 479 U.S. at 323]. Inasmuch as
Griffith rested in part on the principle that ``the nature
of judicial review requires that [the Court] adjudicate
specific cases,'' Griffith, 479 U.S. at 322, deriving from
Article III's case or controversy requirement for federal
courts and forbidding federal courts from acting
legislatively, the ``Court has no more constitutional
authority in civil cases than in criminal cases to disregard
current law or to treat similarly situated litigants
differently.'' 509 U.S. at 97 (quoting American Trucking,
496 U.S. at 214 (Justice Stevens dissenting)). The point is
made more clearly in Justice Scalia's concurrence, in which
he denounces all forms of nonretroactivity as ``the handmaid
of judicial activism.'' Id. at 105.
\28\ Id. at 110 (Justice Kennedy, with Justice
White, concurring); 113 (Justice O'Connor, with Chief
Justice Rehnquist, dissenting). However, these Justices
disagreed in this case about the proper application of
Chevron Oil.
\29\ But see Reynoldsville Casket Co. v. Hyde, 514
U.S. 749 (1995) (setting aside a state court refusal to give
retroactive effect to a U.S. Supreme Court invalidation of
that State's statute of limitations in certain suits, in an
opinion by Justice Breyer, Justice Blackmun's successor);
Ryder v. United States, 515 U.S. 177, 184-85 (1995)
(``whatever the continuing validity of Chevron Oil after''
Harper and Reynoldsville Casket).
---------------------------------------------------------------------------
Political Questions
--The Doctrine Reappears
[P. 696, add to text following n.569:]
A challenge to the Senate's interpretation of and
exercise of its impeachment powers was held to be
nonjusticiable; there was a textually demonstrable
commitment of the issue to the Senate, and there was a lack
of judicially discoverable and manageable standards for
resolving the issue.\30\
---------------------------------------------------------------------------
\30\ Nixon v. United States, 506 U.S. 224 (1993).
The Court pronounced its decision as perfectly consonant
with Powell v. McCormack. Id. at 236-38.
---------------------------------------------------------------------------
JUDICIAL REVIEW
Limitations on the Exercise of Judicial Review
--Stare Decisis in Constitutional Law
[P. 712, add to n.639:]
Recent discussions of and both applications of and
refusals to apply stare decisis may be found in Hohn v.
United States, 524 U.S. 236, 251-52 (1998), and id. at 1981-
83 (Justice Scalia dissenting); State Oil Co. v. Khan, 522
U.S. 3, 20-2 (1997); Agostini v. Felton, 521 U.S. 203, 235-
36 (1997), and id. at 523-54 (Justice Souter dissenting);
United States v. IBM Corp., 517 U.S. 843, 854-56 (1996)
(noting principles of following precedent and declining to
consider overturning an old precedent when parties have not
advanced arguments on the point), with which compare id. at
863 (Justice Kennedy dissenting) (arguing that the United
States had presented the point and that the old case ought
to be overturned); Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 231-35 (1996) (plurality opinion) (discussing
stare decisis, citing past instances of overrulings, and
overruling 1990 decision), with which compare the dissents,
id. at 242, 264, 271; Seminole Tribe of Florida v. Florida,
517 U.S. 44, 61-73 (1996) (discussing policy of stare
decisis, why it should not be followed with respect to a
1989 decision, and overruling that precedent), with which
compare the dissents, id. at 76, 100. Justices Scalia and
Thomas have argued for various departures from precedent.
E.g., Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S.
175, 200-01 (1995) (Justice Scalia concurring) (negative
commerce jurisprudence); Colorado Republican Campaign Comm.
v. FEC, 518 U.S. 604, 631 (1996) (Justice Thomas concurring
in part and dissenting in part) (rejecting framework of
Buckley v. Valeo and calling for overruling of part of
case). Compare id. at 626 (Court notes those issues not
raised or argued).
JURISDICTION OF SUPREME COURT AND INFERIOR FEDERAL COURTS
Cases Arising Under the Constitution, Laws, and Treaties of
the United States
--Pendent Jurisdiction
[P. 721, add to n.702:]
See also Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375 (1994); Peacock v. Thomas, 516 U.S. 349 (1996) (both
cases using the new vernacular of ``ancillary
jurisdiction'').
[P. 722, add to n.713:]
In City of Chicago v. International College of Surgeons,
522 U.S. 156 (1998), the Court, despite the absence of
language making Sec. 1367 applicable, held that the statute
gave district courts jurisdiction over state-law claims in
cases originating in state court and then removed to federal
court.
Cases of Admiralty and Maritime Jurisdiction
--Admiralty and Maritime Cases
[P. 734, add to n.780:]
And see Grubart v. Great Lakes Dredge & Dock Co., 513
U.S. 527 (1995), a tort claim arising out of damages
allegedly caused by negligently driving piles from a barge
into the riverbed, which weakened a freight tunnel that
allowed flooding of the tunnel and the basements of numerous
buildings along the Chicago River. The Court found that
admiralty jurisdiction could be invoked. The location test
was satisfied, because the barge, even though fastened to
the river bottom, was a ``vessel'' for admiralty tort
purposes; the two-part connection test was also satisfied,
inasmuch as the incident had a potential to disrupt maritime
commerce and the conduct giving rise to the incident had a
substantial relationship to traditional maritime activity.
--Admiralty and Federalism
[P. 743, add to n.842:]
But, in Yamaha Motor Corp. v. Calhoun, 516 U.S. 199
(1996), a case involving a death in territorial waters from
a jet ski accident, the Court held that Moragne does not
provide the exclusive remedy in cases involving the death in
territorial waters of a ``nonseafarer''--a person who is
neither a seaman covered by the Jones Act nor a longshore
worker covered by the LHWCA.
Cases to Which the United States Is a Party
--Immunity of the United States From Suit
[P. 747, add to n.863:]
See FDIC v. Meyer, 510 U.S. 471 (1994) (FSLIC's ``sue-
and-be-sued'' clause waives sovereign immunity; but a Bivens
implied cause of action for constitutional torts cannot be
used directly against FSLIC).
Suits Between Two or More States
--Cases of Which the Court has Declined Jurisdiction
[P. 755, add to n.909:]
But in Mississippi v. Louisiana, 506 U.S. 73 (1992), the
Court's reluctance to exercise original jurisdiction ran
afoul of the ``uncompromising language'' of 28 U.S.C.
Sec. 1251(a) giving the Court ``original and exclusive
jurisdiction'' of these kinds of suits.
Controversies Between Citizens of Different States
--The Law Applied in Diversity Cases
[P. 772, add to text following n.1013:]
Some confusion has been injected into consideration
of which law to apply--state or federal--in the absence of a
federal statute or a Federal Rule of Civil Procedure.\31\ In
an action for damages, the federal courts were faced with
the issue of the application either of a state statute,
which gave the appellate division of the state courts the
authority to determine if an award is excessive or
inadequate if it deviates materially from what would be
reasonable compensation, or of a federal judicially-created
practice of review of awards as so exorbitant that it
shocked the conscience of the court. The Court determined
that the state statute was both substantive and procedural,
which would result in substantial variations between state
and federal damage awards depending on whether the state or
the federal approach was applied; it then followed the mode
of analysis exemplified by those cases emphasizing the
importance of federal courts reaching the same outcome as
would the state courts,\32\ rather than what had been the
prevailing standard, in which the Court balanced state and
federal interests to determine which law to apply.\33\
Emphasis upon either approach to considerations of applying
state or federal law reflects a continuing difficulty of
accommodating ``the constitutional power of the states to
regulate the relations among their citizens . . . [and] the
constitutional power of the federal government to determine
how its courts are to be operated.'' \34\ Additional
decisions will be required to determine which approach, if
either, prevails.
---------------------------------------------------------------------------
\31\ Gasperini v. Center for Humanities, Inc., 518
U.S. 415 (1996). The decision was 5 to 4, so that the
precedent may or may not be stable for future application.
\32\ E.g., Guaranty Trust Co. v. York, 326 U.S. 99
(1945).
\33\ E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356
U.S. 525 (1958).
\34\ 19 C. Wright, A. Miller & E. Cooper, Federal
Practice and Procedure (2d ed. 1996), Sec. 4511, at 311.
---------------------------------------------------------------------------
[P. 773, add to n.1016:]
But see O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994).
POWER OF CONGRESS TO CONTROL THE FEDERAL COURTS
The Theory Reconsidered
[P. 788, add to n.1105:]
A restrained reading of McCardle is strongly suggested
by Felker v. Turpin, 518 U.S. 651 (1996). A 1996
congressional statute giving to federal courts of appeal a
``gate-keeping'' function over the filing of second or
successive habeas petitions limited further review,
including denying the Supreme Court appellate review of
circuit court denials of motions to file second or
successive habeas petitions. Pub. L. No. 104-132, Sec. 106,
110 Stat. 1214, 1220, amending 28 U.S.C. Sec. 2244(b).
Upholding the limitation, which was nearly identical to the
congressional action at issue in McCardle and Yerger, the
Court held that its jurisdiction to hear appellate cases had
been denied, but just as in Yerger the statute did not annul
the Court's jurisdiction to hear habeas petitions filed as
original matters in the Supreme Court. No constitutional
issue was thus presented.
FEDERAL-STATE COURT RELATIONS
Conflicts of Jurisdiction: Rules of Accommodation
--Abstention
[Pp. 798-99, add to n.1161:]
But in Quackenbush v. Allstate Ins. Co., 517 U.S. 706
(1996), an exercise in Burford abstention, the Court held
that federal courts have power to dismiss or remand cases
based on abstention principles only where relief being
sought is equitable or otherwise discretionary but may not
do so in common-law actions for damages.
[P. 803, change heading to:]
Conflicts of Jurisdiction: Federal Court Interference with
State Courts
--Habeas Corpus: Scope of the Writ
[P. 816, add to n.1256:]
See also O'Dell v. Netherland, 521 U.S. 151 (1997);
Lambrix v. Singletary, 520 U.S. 518 (1997); Gray v.
Netherland, 518 U.S. 152 (1996). But compare Bousley v.
Brooks, 523 U.S. 614 (1998).
[P. 818, add to n.1268:]
In Bousley v. Brooks, 523 U.S. 614 (1998), a federal
post-conviction relief case, petitioner had pled guilty to a
federal firearms offense. Subsequently, the Supreme Court
interpreted more narrowly the elements of the offense than
had the trial court in Bousley's case. The Court held that
Bousley by his plea had defaulted, but that he might be able
to demonstrate ``actual innocence'' so as to excuse the
default if he could show on remand that it was more likely
than not that no reasonable juror would have convicted him
of the offense, properly defined.
[P. 818, add to text following n.1270:]
The Court continues, with some modest exceptions, to
construe habeas jurisdiction quite restrictively, but it has
now been joined by new congressional legislation that is
also restrictive. In Herrera v. Collins,\35\ the Court
appeared, though ambiguously, to take the position that,
while it requires a showing of actual innocence to permit a
claimant to bring a successive or abusive petition, a claim
of innocence is not alone sufficient to enable a claimant to
obtain review of his conviction on habeas. Petitioners are
entitled in federal habeas courts to show that they are
imprisoned in violation of the Constitution, not to seek to
correct errors of fact. But a claim of innocence does not
bear on the constitutionality of one's conviction or
detention, and the execution of one claiming actual
innocence would not itself violate the Constitution.\36\
---------------------------------------------------------------------------
\35\ 506 U.S. 390 (1993).
\36\ Id. at 398-417. However, in a subsequent part
of the opinion, the Court purports to reserve the question
whether ``a truly persuasive demonstration of `actual
innocence' made after trial would render the execution of a
defendant unconstitutional,'' and it imposed a high standard
for making this showing. Id. at 417-19. Justices Scalia and
Thomas would have unequivocally held that ``[t]here is no
basis in text, tradition, or even in contemporary practice .
. . for finding in the Constitution a right to demand
judicial consideration of newly discovered evidence of
innocence brought forward after conviction.'' Id. at 427-28
(Concurring). However, it is not at all clear that all the
Justices joining the Court believe innocence to be
nondispositive on habeas. Id. at 419 (Justices O'Connor and
Kennedy concurring), 429 (Justice White concurring).
---------------------------------------------------------------------------
But, in Schlup v. Delo,\37\ the Court adopted the
plurality opinion of Kuhlmann v. Wilson and held that,
absent a sufficient showing of ``cause and prejudice,'' a
claimant filing a successive or abusive petition must, as an
initial matter, make a showing of ``actual innocence'' so as
to fall within the narrow class of cases implicating a
fundamental miscarriage of justice. The Court divided,
however, with respect to the showing a claimant must make.
One standard, found in some of the cases, was championed by
the dissenters; ``to show `actual innocence' one must show
by clear and convincing evidence that but for a
constitutional error, no reasonable juror would have found
the petitioner eligible for the death penalty.'' \38\ The
Court adopted a second standard, under which the petitioner
must demonstrate that ``a constitutional violation has
probably resulted in the conviction of one who is actually
innocent.'' To meet this burden, a claimant ``must show that
it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.'' \39\
---------------------------------------------------------------------------
\37\ 513 U.S. 298 (1995).
\38\ Id. at 334 (Chief Justice Rehnquist dissenting,
with Justices Kennedy and Thomas), 342 (Justice Scalia
dissenting, with Justice Thomas). This standard was drawn
from Sawyer v. Whitney, 505 U.S. 333 (1995).
\39\ 513 U.S. at 327. This standard was drawn from
Murray v. Carrier, 477 U.S. 478 (1986).
---------------------------------------------------------------------------
In the Antiterrorism and Effective Death Penalty Act
of 1996,\40\ Congress imposed tight new restrictions on
successive or abusive petitions, including making the
circuit courts ``gate keepers'' in permitting or denying the
filing of such petitions, with bars to appellate review of
these decisions, provisions that in part were upheld in
Felker v. Turpin.\41\ An important new restriction on the
authority of federal habeas courts is that found in the new
law, which provides that a habeas court shall not grant a
writ to any person in custody pursuant to a judgment of a
state court ``with respect to any claim that was adjudicated
on the merits in State court proceedings unless the
adjudication of the claim--(1) resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States[.]'' \42\
---------------------------------------------------------------------------
\40\ Pub. L. 104-132, Title I, 110 Stat. 1217-21,
amending 28 U.S.C. Sec. Sec. 2244, 2253, 2254, and Rule 22
of the Federal Rules of Appellate Procedure. For a narrowly
decided case weakening somewhat the congressional provisions
on ``gate-keeping,'' see Hohn v. United States, 524 U.S. 236
(1998).
\41\ 518 U.S. 651 (1996).
\42\ The amended 28 U.S.C. Sec. 2254(d) (emphasis
supplied). On the constitutionality and application of this
provision, see the various opinions in Lindh v. Murphy, 96
F.3d 856 (7th Cir. 1996) (en banc), rev'd on other grounds,
521 U.S. 320 (1997); Drinkard v. Johnson, 97 F.3d 751 (5th
Cir. 1996), cert. denied, 520 U.S. 1107 (1997); Hall v.
Washington, 106 F.3d 742 (7th Cir. 1997); O'Brien v. Dubois,
145 F.3d 16 (1st Cir. 1998); Green v. French, 143 F.3d 865
(4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999).
ARTICLE IV
STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES
All Privileges and Immunities of Citizens in the Several
States
[P. 874, add to n.194:]
For the application of this test, see Lunding v. New
York Tax Appeals Tribunal, 522 U.S. 287, 296-99 (1998).
Taxation
[P. 877, in text following n.215, add:]
The Court returned to the privileges-and-immunities
restrictions upon disparate state taxation of residents and
nonresidents in Lunding v. New York Tax Appeals Tribunal.\1\
In this case, the State denied nonresidents any deduction
from taxable income for alimony payments, although it
permitted residents to deduct such payments. While observing
that approximate equality between residents and nonresidents
was required by the clause, the Court acknowledged that
precise equality was neither necessary nor in most instances
possible. But it was required of the challenged State that
it demonstrate a ``substantial reason'' for the disparity,
and the discrimination must bear a ``substantial
relationship'' to that reason.\2\ A State, under this
analysis, may not deny nonresidents a general tax exemption
provided to residents that would reduce their tax burdens,
but it could limit specific expense deductions based on some
relationship between the expenses and their in-state
property or income. Here, the State flatly denied the
exemption. Moreover, the Court rejected various arguments
that had been presented, finding that most of those
arguments, while they might support targeted denials or
partial denials, simply reiterated the State's contention
that it need not afford any exemptions at all.
---------------------------------------------------------------------------
\1\ 522 U.S. 287 (1998).
\2\ 522 U.S. at 298.
---------------------------------------------------------------------------
DOCTRINE OF THE EQUALITY OF STATES
[P. 885, add to text following n.276:]
Similarly, Indian treaty rights to hunt, fish, and
gather on lands ceded to the Federal Government were not
extinguished by statehood. These ``usufructuary'' rights
were subject to reasonable state regulation, and hence were
not irreconcilable with state sovereignty over natural
resources.\3\
---------------------------------------------------------------------------
\3\ Minnesota v. Mille Lacs Band of Chippewa
Indians, 526 U.S. 172, 204-05 (1999) (overruling Ward v.
Race Horse, 163 U.S. 504 (1896)).
---------------------------------------------------------------------------
Property Rights of States to Soil Under Navigable Waters
[P. 887, delete last sentence of section]
ARTICLE VI
NATIONAL SUPREMACY
Obligation of State Courts Under the Supremacy Clause
[P. 921, add to n.20:]
The Court's re-emphasis upon ``dual federalism'' has not
altered this principle. See, e.g., Printz v. United States,
521 U.S. 898, 905-10 (1997).
Supremacy Clause Versus the Tenth Amendment
[P. 930, add to text at end of carryover paragraph:]
Expanding upon its anti-commandeering rule, the
Court in Printz v. United States \1\ established
``categorically'' the rule that ``[t]he Federal Government
may not compel the States to enact or administer a federal
regulatory program.'' \2\ At issue in Printz was a provision
of the Brady Handgun Violence Prevention Act, which
required, pending the development by the Attorney General of
a national system by which criminal background checks on
prospective firearms purchasers could be conducted, the
chief law enforcement officers of state and local
governments to conduct background checks to ascertain
whether applicants were ineligible to purchase handguns.
Confronting the absence of any textual basis for a
``categorical'' rule, the Court looked to history, which in
its view demonstrated a paucity of congressional efforts to
impose affirmative duties upon the States.\3\ More
important, the Court relied on the ``structural
Constitution'' to demonstrate that the Constitution of 1787
had not taken from the States ``a residuary and inviolable
sovereignty,'' \4\ that it had, in fact and theory, retained
a system of ``dual sovereignty'' \5\ reflected in many
things but most notably in the constitutional conferral
``upon Congress of not all governmental powers, but only
discrete, enumerated ones,'' which was expressed in the
Tenth Amendment. Thus, while it had earlier rejected the
commandeering of legislative assistance, the Court now made
clear that administrative officers and resources were also
fenced off from federal power.
---------------------------------------------------------------------------
\1\ 521 U.S. 898 (1997).
\2\ 521 U.S. at 933 (internal quotation marks
omitted) (quoting New York v. United States, 505 U.S. 144,
188 (1992)).
\3\ 521 U.S. at 904-18. Notably, the Court expressly
exempted from this rule the continuing role of the state
courts in the enforcement of federal law. Id. at 905-08.
\4\ 521 U.S. at 919 (quoting The Federalist No. 39
(Madison).
\5\ 521 U.S. at 918.
---------------------------------------------------------------------------
The scope of the rule thus expounded was unclear.
Particularly, Justice O'Connor in concurrence observed that
Congress retained the power to enlist the States through
contractual arrangements and on a voluntary basis. More
pointedly, she stated that ``the Court appropriately
refrains from deciding whether other purely ministerial
reporting requirements imposed by Congress on state and
local authorities pursuant to its Commerce Clause powers are
similarly invalid.'' \6\
---------------------------------------------------------------------------
\6\ 521 U.S. at 936 (citing 42 U.S.C. Sec. 5779(a)
(requiring state and local law enforcement agencies to
report cases of missing children to the Department of
Justice)).
---------------------------------------------------------------------------
A partial answer was provided in Reno v. Condon,\7\
in which the Court upheld the Driver's Privacy Protection
Act against a charge that it offended the anti-commandeering
rule of New York and Printz. The Act in general limits
disclosure and resale without a driver's consent of personal
information contained in the records of state motor vehicle
departments, and requires disclosure of that information for
specified government record-keeeping purposes. While
conceding that the Act ``will require time and effort on the
part of state employees,'' the Court found this imposition
permissible because the Act regulates state activities
directly rather than requiring states to regulate private
activities.\8\
---------------------------------------------------------------------------
\7\ 120 S. Ct. 666 (2000).
\8\ 120 S. Ct. at 672.
---------------------------------------------------------------------------
The Doctrine of Federal Exemption From State Taxation
--Taxation of Government Contractors
[P. 935, add to n.118:]
Arizona Dep't of Revenue v. Blaze Constr. Co., 526 U.S.
32 (1999) (the same rule applies when the contractual
services are rendered on an Indian reservation).
--Taxation of Salaries of Employees of Federal Agencies
[P. 937, add to n.123:]
For application of the Act to salaries of federal
judges, see Jefferson County v. Acker, 527 U.S. 423 (1999)
(upholding imposition of a local occupational tax).
FIRST AMENDMENT
RELIGION
An Overview
--Court Tests Applied to Legislation Affecting Religion
[Pp. 973-74, change text following n.25 to read:]
and in several instances have not been applied at
all by the Court.
[P. 974, add to n.26 following Lee v. Weisman citation:]
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1
(1993) (upholding provision of sign-language interpreter to
deaf student attending parochial school); Board of Educ. of
Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994)
(invalidating law creating special school district for
village composed exclusively of members of one religious
sect); Rosenberger v. University of Virginia, 515 U.S. 819
(1995) (upholding the extension of a university subsidy of
student publications to a student religious publication).
[P. 974, change text following n.26 to read:]
Nonetheless, the Court employed the Lemon tests in
its most recent Establishment Clause decisions,\1\ and it
remains the case that those tests have served as the primary
standard of Establishment Clause validity for the past three
decades. However, other tests have also been formulated and
used. Justice Kennedy has proffered ``coercion'' as an
alternative test for violations of the Establishment
Clause,\2\ and the Court has used that test as the basis for
decision from time to time.\3\ But that test has been
criticized on the grounds it would eliminate a principal
distinction between the Establishment Clause and the Free
Exercise Clause and make the former a ``virtual nullity.''
\4\ Justice O'Connor has suggested ``endorsement'' as a
clarification of the Lemon test, i.e., that the
Establishment Clause is violated if the government intends
its action to endorse or disapprove of religion or if a
``reasonable observer'' would perceive the government's
action as such an endorsement or disapproval \5\; and the
Court also has used this test for some of its decisions.\6\
But others have criticized the endorsement test as too
amorphous to provide certain guidance.\7\ Justice O'Connor
has also suggested that it may be inappropriate to try to
shoehorn all Establishment Clause cases into one test and
has called instead for recognition that different contexts
may call for different approaches.\8\ In its two most recent
Establishment Clause decisions, it might be noted, the Court
employed all three tests in one decision \9\ and relied
primarily on the Lemon tests in the other.\10\
---------------------------------------------------------------------------
\1\ Agostini v. Felton, 521 U.S. 203 (1997)
(upholding under the Lemon tests the provision of remedial
educational services by public school teachers to sectarian
elementary and secondary schoolchildren on the premises of
the sectarian schools); Santa Fe Indep. Sch. Dist. v. Doe,
120 S. Ct. 2266 (2000) (holding unconstitutional under the
Lemon tests as well as under the coercion and endorsement
tests a school district policy permitting high school
students to decide by majority vote whether to have a
student offer a prayer over the public address system prior
to home football games); and Mitchell v. Helms, 120 S. Ct.
2530 (2000) (upholding under the Lemon tests a federally
funded program providing instructional materials and
equipment to public and private elementary and secondary
schools, including sectarian schools).
\2\ County of Allegheny v. Greater Pittsburgh ACLU,
492 U.S. 573, 655 (1989) (Justice Kennedy concurring in part
and dissenting in part).
\3\ Lee v. Weisman, 505 U.S. 577 (1992), and Santa
Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2216 (2000).
\4\ Lee v. Weisman, 505 U.S. 577, 621 (Justice
Souter concurring). See also County of Allegheny v. Greater
Pittsburgh ACLU, 492 U.S. 573, 623 (1989) (Justice O'Connor
concurring in part and concurring in the judgment).
\5\ Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
(Justice O'Connor concurring); Allegheny County v. Greater
Pittsburgh ACLU, 492 U.S. 573, 625 (1989) (Justice O'Connor
concurring); Board of Educ. of Kiryas Joel Village v.
Grumet, 512 U.S. 687, 712 (1994) (Justice O'Connor
concurring).
\6\ Wallace v. Jaffrey, 472 U.S. 38 (1985); Grand
Rapids School Dist. v. Ball, 473 U.S. 373 (1985); County of
Allegheny v. American Civil Liberties Union Greater
Pittsburgh Chapter, 492 U.S. 573; Capitol Square Review and
Advisory Bd. v. Pinette, 515 U.S. 753 (1995); and Santa Fe
Indep. Sch. Dist. v. Doe, 120 S. Ct. 2216 (2000).
\7\ County of Allegheny v. Greater Pittsburgh ACLU,
492 U.S. 573, 655 (1989) (Justice Kennedy concurring in the
judgment in part and dissenting in part); and Capitol Square
Review and Advisory Bd. v. Pinette, 515 U.S. 753, 768 n.3
(1995) (Justice Scalia concurring).
\8\ Board of Educ. of Kiryas Joel Village v. Grumet,
512 U.S. 687, 718-723 (1994) (Justice O'Connor concurring in
part and concurring in the judgment).
\9\ Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct.
2266 (2000).
\10\ Mitchell v. Helms, 120 S. Ct. 2530 (2000).
---------------------------------------------------------------------------
In interpreting and applying the Free Exercise
Clause, the Court has consistently held religious beliefs to
be absolutely immune from governmental interference.\11\ But
it has used a number of standards to review government
action restrictive of religiously motivated conduct, ranging
from formal neutrality \12\ to clear and present danger \13\
to strict scrutiny.\14\ For cases of intentional
governmental discrimination against religion, the Court
still employs strict scrutiny.\15\ But for most other free
exercise cases it has now reverted to a standard of formal
neutrality. ``[T]he right of free exercise,'' it recently
stated, ``does not relieve an individual of the obligation
to comply with a `valid and neutral law of general
applicability on the ground the law proscribes (or
prescribes) conduct that his religion prescribes (or
proscribes).' '' \16\
---------------------------------------------------------------------------
\11\ Reynolds v. United States, 98 U.S. (8 Otto) 145
(1878); Cantwell v. Connecticut, 310 U.S. 296 (1940); Church
of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520
(1993).
\12\ Reynolds v. United States, 98 U.S. (8 Otto) 145
(1878); Braunfeld v. Brown, 366 U.S. 599 (1961).
\13\ Cantwell v. Connecticut, 310 U.S. 296 (1940).
\14\ Sherbert v. Verner, 374 U.S. 398 (1963);
Wisconsin v. Yoder, 406 U.S. 205 (1972).
\15\ Church of the Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520 (1993).
\16\ Employment Div. v. Smith, 494 U.S. 872, 879
(1990), quoting United States v. Lee, 455 U.S. 252, 263, n.3
(1982) (Justice Stevens concurring in the judgment).
---------------------------------------------------------------------------
Establishment of Religion
--Financial Assistance to Church-Related Institutions
[P. 979, replace the paragraph that begins after n.49
following its first two sentences:]
Since that time the Court has gradually adopted a
more accommodating approach. It has upheld direct aid
programs that have been of only marginal benefit to the
religious mission of the recipient elementary and secondary
schools, tax benefit and scholarship aid programs where the
schools have received the assistance as the result of the
independent decisions of the parents or students who
initially receive the aid, and in its most recent decisions
direct aid programs which substantially benefit the
educational function of such schools. Indeed, in its most
recent decisions the Court has overturned several of the
most restrictive school aid precedents from its earlier
jurisprudence. Throughout, the Court has allowed greater
discretion with respect to aid programs benefiting
religiously affiliated colleges and social services
agencies.
[P. 979, add between the words ``requirement'' and ``to'' in
the first sentence of the second paragraph:]
of the Lemon tripartite test
[P. 979, replace the text and accompanying footnotes between
footnotes 50 and 60:]
The primary secular effect and no excessive
entanglement aspects of the Lemon test, however, have proven
much more divisive. As a consequence, the Court's
applications of these tests have not always been consistent,
and the rules guiding their application have not always been
easy to decipher. Moreover, in its most recent decisions the
Court has substantially modified the strictures these tests
have previously imposed on public aid to pervasively
sectarian entities.
In applying the primary effect and excessive
entanglement tests, the Court has drawn a distinction
between public aid programs that directly aid sectarian
entities and those that do so only indirectly. Aid provided
directly, the Court has said, must be limited to secular use
lest it have a primary effect of advancing religion. The
Establishment Clause ``absolutely prohibit[s] government-
financed or government-sponsored indoctrination into the
beliefs of a particular religious faith.'' \17\ The
government may provide direct support to the secular
services and programs sponsored by religious entities, but
it cannot directly subsidize such organizations' religious
activities or proselytizing.\18\ Thus, the Court has struck
down as unconstitutional a program providing grants for the
maintenance and repair of sectarian elementary and secondary
school facilities, because the grants had no restrictions to
prevent their use for such purposes as defraying the costs
of building or maintaining chapels or classrooms in which
religion is taught,\19\ and a program subsidizing field trip
transportation for children attending sectarian elementary
and secondary schools, because field trips are inevitably
interwoven with the schools' educational functions.\20\
---------------------------------------------------------------------------
\17\ Grand Rapids School Dist. v. Ball, 473 U.S.
373, 385 (1985).
\18\ Lemon v. Kurtzman, 403 U.S. 602 (1971);
Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973);
Mitchell v. Helms, 120 S. Ct. 2530 (2000).
\19\ Committee for Pub. Educ. v. Nyquist, 413 U.S.
756 (1973).
\20\ Wolman v. Walter, 433 U.S. 229 (1977).
---------------------------------------------------------------------------
But the Court has not imposed a secular use
limitation on aid programs that benefit sectarian entities
only indirectly, i.e., as the result of decisions by someone
other than the government itself. The initial beneficiaries
of the public aid must be determined on the basis of
religiously neutral criteria, and they must have a genuine
choice about whether to use the aid at sectarian or
nonsectarian entities. But where those standards have been
met, the Court has upheld indirect aid programs even though
the sectarian institutions that ultimately benefit may use
the aid for religious purposes. Thus, the Court has upheld a
state program allowing taxpayers to take a deduction from
their gross income for educational expenses, including
tuition, incurred in sending their children to public or
private schools, because the deduction was ``available for
educational expenses incurred by all parents'' and the aid
became available to sectarian schools ``only as a result of
numerous, private choices of individual parents of school-
age children.'' \21\ It has upheld for the same reasons a
vocational rehabilitation program that made a grant to a
blind person for training at a Bible college for a religious
vocation \22\ and another program that provided a sign-
language interpreter for a deaf student attending a
sectarian secondary school.\23\ In contrast, the Court has
struck down tax benefit and educational voucher programs
where the initial beneficiaries have been limited largely to
the universe of parents of children attending sectarian
schools and where the aid, as a consequence, has been
virtually certain to go to the sectarian schools.\24\
---------------------------------------------------------------------------
\21\ Mueller v. Allen, 463 U.S. 388, 397-399 (1983).
\22\ Witters v. Washington Dep't of Social Services,
474 U.S. 481 (1986). In this decision the Court also cited
as important the factor that the program was not likely to
provide ``any significant portion of the aid expended under
the . . . program'' for religious education. Id. at 488.
\23\ Zobrest v. Catalina Foothills Sch. Dist., 509
U.S. 1 (1993).
\24\ Committee for Pub. Educ. v. Nyquist, 413 U.S.
756 (1973) and Sloan v. Lemon, 413 U.S. 825 (1973).
---------------------------------------------------------------------------
In applying the primary effect and excessive
entanglement tests, the Court has also drawn a distinction
between religious institutions that are pervasively
sectarian and those that are not. Organizations that are
permeated by a religious purpose and character in all that
they do have often been held by the Court to be
constitutionally ineligible for direct public aid. Direct
aid to religion-dominated institutions inevitably violates
the primary effect test, the Court has said, because such
aid generally cannot be limited to secular use in such
entities and, as a consequence, it has a primary effect of
advancing religion.\25\ Moreover, any effort to limit the
use of public aid by such entities to secular use inevitably
falls afoul of the excessive entanglement test, according to
the Court, because the risk of diversion of the aid to
religious use is so great that it necessitates an intrusive
government monitoring.\26\ But direct aid to religious
entities that are not pervasively sectarian, the Court has
held, is constitutionally permissible, because the secular
functions of such entities can be distinguished from their
religious ones for purposes of public aid and because the
risk of diversion of the aid to religious use is attenuated
and does not require an intrusive government monitoring. As
a practical matter, this distinction has had its most
serious consequences for programs providing aid directly to
sectarian elementary and secondary schools, because the
Court has, until recently, presumed such schools to be
pervasively sectarian and direct aid, as a consequence, to
be severely limited.\27\ The Court has presumed to the
contrary with respect to religiously-affiliated colleges,
hospitals, and social services providers; and as a
consequence it has found direct aid programs to such
entities to be permissible.\28\
---------------------------------------------------------------------------
\25\ See, e.g., Committee for Pub. Educ. v. Nyquist,
413 U.S. 756 (1973) (grants for the maintenance and repair
of sectarian school facilities); Meek v. Pittenger, 421 U.S.
349 (1975) (loan of secular instructional materials and
equipment); Grand Rapids School Dist. v. Ball, 473 U.S. 373
(1985) (hiring of parochial school teachers to provide
after-school instruction to the students attending such
schools).
\26\ See, e.g., Lemon v. Kurtzman, 403 U.S. 602
(1971) (subsidies for teachers of secular subjects) and
Aguilar v. Felton, 473 U.S. 402 (1985) (provision of
remedial and enrichment services by public school teachers
to eligible children attending sectarian elementary and
secondary schools on the premises of those schools).
\27\ See cases cited in the preceding two footnotes.
\28\ Bradfield v. Roberts, 175 U.S. 291 (1899)
(public subsidy of the construction of a wing of a Catholic
hospital on condition that it be used to provide care for
the poor upheld); Tilton v. Richardson, 403 U.S. 672 (1971)
(program of grants to colleges, including religiously-
affiliated ones, for the construction of academic buildings
upheld); Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736
(1976) (program of general purpose grants to colleges in the
state, including religiously-affiliated ones, upheld); and
Bowen v. Kendrick, 487 U.S. 589 (1988) (program of grants to
public and private nonprofit organizations, including
religious ones, for the prevention of adolescent pregnancies
upheld).
---------------------------------------------------------------------------
In its most recent decisions the Court has modified
both the primary effect and excessive entanglement prongs of
the Lemon test as they apply to aid programs directly
benefiting sectarian elementary and secondary schools; and
in so doing it has overturned several prior decisions
imposing tight constraints on such aid. In Agostini v.
Felton \29\ the Court, in a 5 to 4 decision, abandoned the
presumptions that public school teachers giving instruction
on the premises of sectarian elementary and secondary
schools will be so affected by the religiosity of the
environment that they will inculcate religion and that,
consequently, an excessively entangling monitoring of their
services is constitutionally necessary. In Mitchell v.
Helms,\30\ in turn, it abandoned the presumptions that such
schools are so pervasively sectarian that their secular
educational functions cannot be differentiated from their
religious educational functions and that direct aid to their
educational functions, consequently, violates the
Establishment Clause. In reaching these conclusions and
upholding the aid programs in question, the Court overturned
its prior decision in Aguilar v. Felton \31\ and parts of
its decisions in Meek v. Pittenger,\32\ Wolman v.
Walter,\33\ and Grand Rapids School District v. Ball.\34\
---------------------------------------------------------------------------
\29\ 521 U.S. 203 (1997).
\30\ 120 S. Ct. 2530 (2000).
\31\ 473 U.S. 402 (1985).
\32\ 421 U.S. 349 (1975).
\33\ 433 U.S. 229 (1977).
\34\ 473 U.S. 373 (1985).
---------------------------------------------------------------------------
Thus, the Court's jurisprudence concerning public
aid to sectarian organizations has evolved over time,
particularly as it concerns public aid to sectarian
elementary and secondary schools. That evolution has given
some uncertainty to the rules that apply to any given form
of aid; and in both Agostini v. Felton \35\ and Mitchell v.
Helms \36\ the Court left open the possibility of a further
evolution in its thinking. Nonetheless, the cases give
substantial guidance.
---------------------------------------------------------------------------
\35\ 521 U.S. 203 (1994).
\36\ 120 S. Ct. 2530 (2000).
---------------------------------------------------------------------------
[P. 985, add to text following n.81:]
The Court's more recent decisions, however, have
rejected the reasoning and overturned the results of several
of these decisions. In two rulings the Court reversed course
with respect to the constitutionality of public school
personnel providing educational services on the premises of
pervasively sectarian schools. First, in Zobrest v. Catalina
Foothills School District \37\ the Court held the public
subsidy of a sign-language interpreter for a deaf student
attending a parochial school to create no primary effect or
entanglement problems. The payment did not relieve the
school of an expense that it would otherwise have borne, the
Court stated, and the interpreter had no role in selecting
or editing the content of any of the lessons. Reviving the
child benefit theory of its earlier cases, the Court said
that ``[t]he service at issue in this case is part of a
general government program that distributes benefits
neutrally to any child qualifying as `handicapped' under the
IDEA, without regard to the `sectarian-nonsectarian, or
public-nonpublic nature' of the school the child attends.''
---------------------------------------------------------------------------
\37\ 509 U.S. 1 (1993).
---------------------------------------------------------------------------
Secondly, and more pointedly, the Court in Agostini
v. Felton \38\ overturned both the result and the reasoning
of its decision in Aguilar v. Felton \39\ striking down the
Title I program as administered in New York City as well as
the analogous parts of its decisions in Meek v. Pittenger
\40\ and Grand Rapids School District v. Ball.\41\ The
assumptions on which those decisions had rested, the Court
explicitly stated, had been ``undermined'' by its more
recent decisions. Decisions such as Zobrest and Witters v.
Washington Department of Social Services,\42\ it said, had
repudiated the notions that the placement of a public
employee in a sectarian school creates an ``impermissible
symbolic link'' between government and religion, that ``all
government aid that directly aids the educational function
of religious schools'' is constitutionally forbidden, that
public teachers in a sectarian school necessarily pose a
serious risk of inculcating religion, and that ``pervasive
monitoring of [such] teachers is required.'' The proper
criterion under the primary effect prong of the Lemon test,
the Court asserted, is religious neutrality, i.e., whether
``aid is allocated on the basis of neutral, secular criteria
that neither favor nor disfavor religion, and is made
available to both religious and secular beneficiaries on a
nondiscriminatory basis.'' \43\ Finding the Title I program
to meet that test, the Court concluded that ``accordingly,
we must acknowledge that Aguilar, as well as the portion of
Ball addressing Grand Rapids' Shared Time program, are no
longer good law.'' \44\
---------------------------------------------------------------------------
\38\ 521 U.S. 203 (1997).
\39\ 473 U.S. 402 (1985).
\40\ 421 U.S. 349 (1975).
\41\ 473 U.S. 373 (1985).
\42\ 474 U.S. 481 (1986).
\43\ In Agostini the Court nominally eliminated
entanglement as a separate prong of the Lemon test. ``[T]he
factors we use to assess whether an entanglement is
`excessive,' '' the Court stated, ``are similar to the
factors we use to examine `effect.' '' ``Thus,'' it
concluded, ``it is simplest to recognize why entanglement is
significant and treat it--as we did in Walz--as an aspect of
the inquiry into a statute's effect.'' Agostini v. Felton,
supra, at 232, 233.
\44\ Justice Souter, joined by Justices Stevens and
Ginsburg, dissented from the Court's ruling, contending that
the Establishment Clause mandates a ``flat ban on [the]
subsidization'' of religion (521 U.S. at 243) and that the
Court's contention that recent cases had undermined the
reasoning of Aguilar was a ``mistaken reading'' of the
cases. Id. at 248. Justice Breyer joined in the second
dissenting argument.
---------------------------------------------------------------------------
Most recently, in Mitchell v. Helms \45\ the Court
abandoned the presumptions that religious elementary and
secondary schools are so pervasively sectarian that they are
constitutionally ineligible to participate in public aid
programs directly benefiting their educational functions and
that direct aid to such institutions must be subject to an
intrusive and constitutionally fatal monitoring. At issue in
the case was a federal program providing funds to local
educational agencies to provide instructional materials and
equipment such as computer hardware and software, library
books, movie projectors, television sets, VCRs, laboratory
equipment, maps, and cassette recordings to public and
private elementary and secondary schools. Virtually
identical programs had previously been held unconstitutional
by the Court in Meek v. Pittenger \46\ and Wolman v.
Walter.\47\ But in this case the Court overturned those
decisions and held the program to be constitutional.
---------------------------------------------------------------------------
\45\ 120 S. Ct. 2530 (2000).
\46\ 421 U.S. 349 (1975).
\47\ 433 U.S. 229 (1977).
---------------------------------------------------------------------------
The Justices could agree on no majority opinion in
Mitchell but instead joined in three different opinions. The
opinions of Justice Thomas, joined by Chief Justice
Rehnquist and Justices Scalia and Kennedy, and of Justice
O'Connor, joined by Justice Breyer, found the program
constitutional. They agreed that to pass muster under the
primary effect prong of the Lemon test direct public aid has
to be secular in nature and distributed on the basis of
religiously neutral criteria. They also agreed, in contrast
to past rulings, that sectarian elementary and secondary
schools should not be deemed constitutionally ineligible for
direct aid on the grounds their secular educational
functions are ``inextricably intertwined'' with their
religious educational functions, i.e., that they are
pervasively sectarian. But their rationales for the
program's constitutionality then diverged. For Justice
Thomas it was sufficient that the instructional materials
were secular in nature and were distributed according to
neutral criteria. It made no difference whether the schools
used the aid for purposes of religious indoctrination or
not. But that was not sufficient for Justice O'Connor. She
adhered to the view that direct public aid has to be limited
to secular use by the recipient institutions. She further
asserted that a limitation to secular use could be honored
by the teachers in the sectarian schools and that the risk
that the aid would be used for religious purposes was not so
great as to require an intrusive and entangling government
monitoring.\48\
---------------------------------------------------------------------------
\48\ Justice O'Connor also cited several other
factors as ``sufficient'' to ensure the program's
constitutionality, without saying whether they were
``constitutionally necessary''--that the aid supplemented
rather than supplanted the school's educational functions,
that no funds ever reached the coffers of the sectarian
schools, and that there were various administrative
regulations in place providing for some degree of monitoring
of the schools' use of the aid.
---------------------------------------------------------------------------
Justice Souter, joined by Justices Stevens and
Ginsburg, dissented on the grounds the Establishment Clause
bars ``aid supporting a sectarian school's religious
exercise or the discharge of its religious mission.''
Adhering to the ``substantive principle of no aid'' first
articulated in the Everson case, he contended that direct
aid to pervasively sectarian institutions inevitably results
in the diversion of the aid for purposes of religious
indoctrination. He further argued that the aid in this case
had been so diverted.
As the opinion upholding the program's
constitutionality on the narrowest grounds, Justice
O'Connor's opinion provides the most current guidance on the
standards governing the constitutionality of aid programs
directly benefiting sectarian elementary and secondary
schools.
[P. 987, replace the first sentence of the first full
paragraph:]
The limits of the Nyquist holding were clarified in
1983.
[P. 988, add to n.92:]
Similar reasoning led the Court to rule that provision
of a sign-language interpreter to a deaf student attending a
parochial school is permissible as part of a neutral program
offering such services to all students regardless of what
school they attend. Zobrest v. Catalina Foothills Sch.
Dist., 509 U.S. 1 (1993). The interpreter, the Court noted
additionally, merely transmits whatever material is
presented, and neither adds to nor subtracts from the
school's sectarian environment. Id. at 13.
--Governmental Encouragement of Religion in Public Schools:
Prayers and Bible Reading
[P. 995, revise n.121 to read:]
505 U.S. 577 (1992).
[P. 996, add to text at end of section:]
In Santa Fe Independent School District v. Doe \49\
the Court held a school district's policy permitting high
school students to vote on whether to have an ``invocation
and/or prayer'' delivered prior to home football games by a
student elected for that purpose to violate the
Establishment Clause. It found the policy to violate each
one of the tests it has formulated for Establishment Clause
cases. The preference given for an ``invocation'' in the
text of the school district's policy, the long history of
pre-game prayer led by a student ``chaplain'' in the school
district, and the widespread perception that ``the policy is
about prayer,'' the Court said, made clear that its purpose
was not secular but was to preserve a popular state-
sponsored religious practice in violation of the first prong
of the Lemon test. Moreover, it said, the policy violated
the coercion test by forcing unwilling students into
participating in a religious exercise. Some students--the
cheerleaders, the band, football players--had to attend, it
noted, and others were compelled to do so by peer pressure.
``The constitutional command will not permit the District
`to exact religious conformity from a student as the price'
of joining her classmates at a varsity football game,'' the
Court held. Finally, it said, the speech sanctioned by the
policy was not private speech but government-sponsored
speech that would be perceived as a government endorsement
of religion. The long history of pre-game prayer, the bias
toward religion in the policy itself, the fact that the
message would be ``delivered to a large audience assembled
as part of a regularly scheduled, school-sponsored function
conducted on school property'' and over the school's public
address system, the Court asserted, all meant that the
speech was not genuine private speech but would be perceived
as ``stamped with the school's seal of approval.'' The Court
concluded that ``the policy is invalid on its face because
it establishes an improper majoritarian election on
religion, and unquestionably has the purpose and creates the
perception of encouraging the delivery of prayer at a series
of important school events.''
---------------------------------------------------------------------------
\49\ 120 S. Ct. 2266 (2000).
---------------------------------------------------------------------------
--Access of Religious Groups to School Property
[P. 997, add to text following n.130:]
Similarly, public schools may not rely on the
Establishment Clause as grounds to discriminate against
religious groups in after-hours use of school property
otherwise available for non-religious social, civic, and
recreational purposes; \50\ nor may public colleges exclude
student religious organizations from benefits otherwise
provided to a full spectrum of student ``news, information,
opinion, entertainment, or academic communications media
groups.'' \51\ These cases make clear that the Establishment
Clause does not necessarily trump the First Amendment's
protection of freedom of speech; in regulating private
speech in a public forum, government may not justify
discrimination against religious viewpoints as necessary to
avoid creating an ``establishment'' of religion.
---------------------------------------------------------------------------
\50\ Lamb's Chapel v. Center Moriches Sch. Dist.,
508 U.S. 384 (1993). The Court explained that there was ``no
realistic danger that the community would think that the
District was endorsing religion,'' and that the three-part
Lemon test would not have been violated. Id. at 395.
Concurring opinions by Justice Scalia, joined by Justice
Thomas, and by Justice Kennedy, criticized the Court's
reference to Lemon. ``Like some ghoul in a late-night horror
movie that repeatedly sits up in its grave and shuffles
abroad, after being repeatedly killed and buried, Lemon
stalks our Establishment Clause jurisprudence once again,''
Justice Scalia lamented. Id. at 398.
\51\ Rosenberger v. University of Virginia, 515 U.S.
819, 824 (1995).
---------------------------------------------------------------------------
--Religion in Governmental Observances
[P. 1002, add new heading following n.163:]
Religious Displays on Government Property
[P. 1004, add new paragraph following n.174:]
In Capitol Square Review and Advisory Board v.
Pinette,\52\ the Court distinguished privately sponsored
from governmentally sponsored religious displays on public
property. There the Court ruled that Ohio violated free
speech rights by refusing to allow the Ku Klux Klan to
display an unattended cross during the Christmas season in a
publicly owned plaza outside the Ohio Statehouse. Because
the plaza was a public forum in which the State had allowed
a broad range of speakers and a variety of unattended
displays, the State could regulate the expressive content of
such speeches and displays only if the restriction was
necessary, and narrowly drawn, to serve a compelling state
interest. The Court recognized that compliance with the
Establishment Clause can be a sufficiently compelling reason
to justify content-based restrictions on speech, but saw no
need to apply this principle when permission to display a
religious symbol is granted through the same procedures, and
on the same terms, required of other private groups seeking
to convey non-religious messages.
---------------------------------------------------------------------------
\52\ 515 U.S. 753 (1995). The Court was divided 7 to
2 on the merits of Pinette, a vote that obscured continuing
disagreement over the proper analytical approach. The
portions of Justice Scalia's opinion that formed the opinion
of the Court were joined by Chief Justice Rehnquist and by
Justices O'Connor, Kennedy, Souter, Thomas, and Breyer. A
separate part of Justice Scalia's opinion, joined only by
the Chief Justice and by Justices Kennedy and Thomas,
disputed the assertions of Justices O'Connor, Souter, and
Breyer that the ``endorsement'' test should be applied.
Dissenting Justice Stevens thought that allowing the display
on the Capitol grounds did carry ``a clear image of
endorsement,'' and Justice Ginsburg's brief opinion
seemingly agreed with that conclusion.
---------------------------------------------------------------------------
--Miscellaneous
[P. 1005, add to text at end of section:]
Using somewhat similar reasoning, the Court in
Board of Education of Kiryas Joel Village v. Grumet,\53\
invalidated a New York law creating a special school
district for an incorporated village composed exclusively of
members of one small religious sect. The statute failed
``the test of neutrality,'' the Court concluded, since it
delegated power ``to an electorate defined by common
religious belief and practice, in a manner that fails to
foreclose religious favoritism.'' It was the ``anomalously
case-specific nature of the legislature's exercise of
authority'' that left the Court ``without any direct way to
review such state action'' for conformity with the
neutrality principle. Because the village did not receive
its governmental authority simply as one of many communities
eligible under a general law, the Court explained, there was
no way of knowing whether the legislature would grant
similar benefits on an equal basis to other religious and
non-religious groups.
---------------------------------------------------------------------------
\53\ 512 U.S. 687 (1994). Only four Justices
(Souter, Blackmun, Stevens, and Ginsburg) thought that the
Grendel's Den principle applied; in their view the
distinction that the delegation was to a village electorate
rather than to a religious body ``lack[ed] constitutional
significance'' under the peculiar circumstances of the case.
---------------------------------------------------------------------------
FREE EXERCISE OF RELIGION
[P. 1007, add to n.188:]
Board of Educ. of Kiryas Joel Village v. Grumet, 512
U.S. 687, 706-07 (1994) (``accommodation is not a principle
without limits;'' one limitation is that ``neutrality as
among religions must be honored'').
--The Jehovah's Witnesses Cases
[P. 1010, add to n.201:]
Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520 (1993) (Santeria faith).
--Free Exercise Exemption From General Governmental
Requirements
[P. 1018, add new footnote following comma after word
``treatment'' in third sentence of paragraph beginning
after n.253:]
This much was made clear by Church of the Lukumi Babalu
Aye v. City of Hialeah, 508 U.S. 520 (1993), striking down a
city ordinance that prohibited ritual animal sacrifice but
that allowed other forms of animal slaughter.
[P. 1018, add to text at end of third sentence of same
paragraph:]
That the Court views the principle as a general
one, not limited to criminal laws, seems evident from its
restatement in Church of the Lukumi Babalu Aye v. City of
Hialeah: ``our cases establish the general proposition that
a law that is neutral and of general application need not be
justified by a compelling governmental interest even if the
law has the incidental effect of burdening a particular
religious practice.'' \54\
---------------------------------------------------------------------------
\54\ 508 U.S. 520, 531 (1993).
---------------------------------------------------------------------------
[P. 1019, add new paragraphs following n.257:]
Because of the broad ramifications of Smith, the
political processes were soon utilized in an attempt to
provide additional legislative protection for religious
exercise. In the Religious Freedom Restoration Act of 1993
(RFRA),\55\ Congress sought to supersede Smith and
substitute a statutory rule of decision for free exercise
cases. The Act provided that laws of general applicability--
federal, state, and local--may substantially burden free
exercise of religion only if they further a compelling
governmental interest and constitute the least restrictive
means of doing so. The purpose, Congress declared in the Act
itself, was ``to restore the compelling interest test as set
forth in Sherbert v. Verner and Wisconsin v. Yoder and to
guarantee its application in all cases where free exercise
of religion is substantially burdened.'' \56\ But this
legislative effort was partially frustrated in 1997 when the
Court in City of Boerne v. Flores \57\ held the Act to be
unconstitutional as applied to the States, 6 to 3. In
applying RFRA to the States Congress had utilized its power
under Sec. 5 of the Fourteenth Amendment to enact
``appropriate legislation'' to enforce the substantive
protections of the Amendment, including the religious
liberty protections incorporated in the Due Process Clause.
But the Court held that RFRA exceeded Congress' power under
Sec. 5, because the measure did not simply enforce a
constitutional right but substantively altered that right.
``Congress,'' the Court said, ``does not enforce a
constitutional right by changing what the right is.'' \58\
Moreover, it said, RFRA ``reflects a lack of proportionality
or congruence between the means adopted and the legitimate
end to be achieved . . . [and] is a considerable
congressional intrusion into the States' traditional
prerogatives and general authority to regulate for the
health and welfare of their citizens.'' \59\ ``RFRA,'' the
Court concluded, ``contradicts vital principles necessary to
maintain separation of powers and the federal balance.''
\60\
---------------------------------------------------------------------------
\55\ Pub. L. No. 103-141, 107 Stat. 1488 (1993); 42
U.S.C. Sec. Sec. 2000bb to 2000bb-4.
\56\ Pub. L. No. 103-141, Sec. 2(b)(1) (citations
omitted). Congress also avowed a purpose of providing ``a
claim or defense to persons whose religious exercise is
substantially burdened by government.'' Sec. 2(b)(2).
\57\ 521 U.S. 507 (1997).
\58\ 521 U.S. at 519.
\59\ 521 U.S. at 533-34.
\60\ 521 U.S. at 536.
---------------------------------------------------------------------------
Boerne does not close the books on Smith, however.
It remains an open issue whether RFRA remains valid as
applied to the Federal Government, and Congress has already
used powers other than Sec. 5 to try to re-apply a strict
scrutiny standard to the States.\61\ These issues ensure
continuing litigation over the appropriate test for free
exercise cases.\62\
---------------------------------------------------------------------------
\61\ Late in the second session of the 106th
Congress, the House and the Senate passed, and President
Clinton signed into law, the ``Religious Land Use and
Institutionalized Persons Act of 2000.'' The Act utilizes
Congress' spending power and its power over interstate
commerce to impose a strict scrutiny test on state and local
zoning and landmarking laws and regulations which impose a
substantial burden on an individual's or institution's
exercise of religion. It utilizes the same powers to impose
a strict scrutiny test on state and local governments for
any substantial burdens they impose on the exercise of
religion by persons in state or locally run institutions
such as prisons, mental hospitals, juvenile detention
facilities, and nursing homes. See Pub. L. No. 106-274
(2000).
\62\ See, e.g., In re Young, 141 F.3d 854 (8th
Cir.), cert. denied, 525 U.S. 811 (1998) (lower court held
RFRA to be constitutional as applied to federal bankruptcy
law).
---------------------------------------------------------------------------
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Adoption and the Common Law Background
[P. 1025, add to text at end of section:]
The First Amendment by its terms applies only to
laws enacted by Congress, and not to the actions of private
persons.\63\ This leads to a ``state action'' (or
``governmental action'') limitation similar to that
applicable to the Fourteenth Amendment.\64\ The limitation
has seldom been litigated in the First Amendment context,
but there is no obvious reason why analysis should differ
markedly from Fourteenth Amendment state action analysis.
Both contexts require ``cautious analysis of the quality and
degree of Government relationship to the particular acts in
question.'' \65\ In holding that the National Railroad
Passenger Corporation (Amtrak) is a governmental entity for
purposes of the First Amendment, the Court declared that
``[t]he Constitution constrains governmental action `by
whatever instruments or in whatever modes that action may be
taken.' . . . [a]nd under whatever congressional label.''
\66\ The relationship of the government to broadcast
licensees affords other opportunities to explore the breadth
of ``governmental action.'' \67\
---------------------------------------------------------------------------
\63\ Through interpretation of the Fourteenth
Amendment, the prohibition extends to the States as well.
See discussion on incorporation, main text, pp. 957-64.
\64\ See discussion on state action, main text, pp.
1786-1802.
\65\ CBS v. Democratic Nat'l Comm., 412 U.S. 94, 115
(1973) (opinion of Chief Justice Burger).
\66\ Lebron v. National R.R. Passenger Corp., 513
U.S. 374, 392 (1995) (quoting Ex parte Virginia, 100 U.S.
339, 346-47 (1880)). The Court refused to be bound by the
statement in Amtrak's authorizing statute that the
corporation is ``not . . . an agency or establishment of the
United States Government.'' This assertion can be effective
``only for purposes of matters that are within Congress'
control,'' the Court explained. ``[I]t is not for Congress
to make the final determination of Amtrak's status as a
governmental entity for purposes of determining the
constitutional rights of citizens affected by its actions.''
513 U.S. at 392.
\67\ In CBS v. Democratic Nat'l Comm., 412 U.S. 94
(1973), the Court held that a broadcast licensee could
refuse to carry a paid editorial advertisement. Chief
Justice Burger, joined only by Justices Stewart and
Rehnquist in that portion of his opinion, reasoned that a
licensee's refusal to accept such an ad did not constitute
``governmental action'' for purposes of the First Amendment.
``The First Amendment does not reach acts of private parties
in every instance where the Congress or the [Federal
Communications] Commission has merely permitted or failed to
prohibit such acts.'' Id. at 119.
---------------------------------------------------------------------------
The Doctrine of Prior Restraint
--Obscenity and Prior Restraint
[P. 1033, add to n.69:]
But cf. Alexander v. United States, 509 U.S. 544 (1993)
(RICO forfeiture of the entire adult entertainment book and
film business of an individual convicted of obscenity and
racketeering offenses, based on the predicate acts of
selling four magazines and three videotapes, does not
constitute a prior restraint and is not invalid as
``chilling'' protected expression that is not obscene).
Freedom of Belief
--Flag Salute Cases
[P. 1054, add to n.177:]
The First Amendment does not preclude the Government
from ``compel[ling] financial contributions that are used to
fund advertising,'' provided such contributions do not
finance ``political or ideological'' views. Glickman v.
Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997)
(upholding Secretary of Agriculture's marketing orders that
assessed fruit producers to cover the expenses of generic
advertising of California fruit). Nor does the First
Amendment preclude a public university from charging its
students an activity fee that is used to support student
organizations that engage in extracurricular speech,
provided the money is allocated to those groups by use of
viewpoint-neutral criteria. Board of Regents of the Univ. of
Wisconsin System v. Southworth, 120 S. Ct. 1346 (2000)
(upholding fee except to the extent a student referendum
substituted majority determinations for viewpoint neutrality
in allocating funds).
--Imposition of Consequences for Holding Certain Beliefs
[P. 1054, add to n.181 following citation to Barclay v.
Florida:]
Wisconsin v. Mitchell, 508 U.S. 476 (1993) (criminal
sentence may be enhanced because the defendant intentionally
selected his victim on account of the victim's race),
Right of Association
[P. 1061, add new paragraph to text at end of section:]
When application of a public accommodations law was
viewed as impinging on an organization's ability to present
its message, the Court found a First Amendment violation.
Massachusetts could not require the private organizers of
Boston's St. Patrick's Day parade to allow a group of gays
and lesbians to march as a unit proclaiming its members' gay
and lesbian identity, the Court held in Hurley v. Irish-
American Gay Group.\68\ To do so would require parade
organizers to promote a message they did not wish to
promote. The Roberts and New York City cases were
distinguished as not involving ``a trespass on the
organization's message itself.'' \69\ Those cases stood for
the proposition that the State could require equal access
for individuals to what was considered the public benefit of
organization membership. But even if individual access to
the parade might similarly be mandated, the Court reasoned,
the gay group ``could nonetheless be refused admission as an
expressive contingent with its own message just as readily
as a private club could exclude an applicant whose manifest
views were at odds with a position taken by the club's
existing members.'' \70\
---------------------------------------------------------------------------
\68\ 515 U.S. 557 (1995).
\69\ 515 U.S. at 580.
\70\ 515 U.S. at 580-81.
---------------------------------------------------------------------------
In Boy Scouts of America v. Dale,\71\ the Court
held that application of New Jersey's public accommodations
law to require the Boy Scouts of America to admit an avowed
homosexual as an adult member violated the organization's
First Amendment associational rights. Citing Hurley, the
Court held that ``[t]he forced inclusion of an unwanted
person in a group infringes the group's freedom of
expressive association if the presence of that person
affects in a significant way the group's ability to advocate
public or private viewpoints.'' \72\ The Boy Scouts, the
Court found, engages in expressive activity in seeking to
transmit a system of values, which include being ``morally
straight'' and ``clean.'' \73\ The Court ``accept[ed] the
Boy Scouts' assertion'' that the organization teaches that
homosexual conduct is not morally straight.\74\ The Court
also gave ``deference to [the] association's view of what
would impair its expression.'' \75\ Allowing a gay rights
activist to serve in the Scouts would ``force the
organization to send a message . . . that the Boy Scouts
accepts homosexual conduct as a legitimate form of
behavior.'' \76\
---------------------------------------------------------------------------
\71\ 120 S. Ct. 2446 (2000).
\72\ 120 S. Ct. at 2451.
\73\ 120 S. Ct. at 2452.
\74\ 120 S. Ct. at 2453.
\75\ 120 S. Ct. at 2453.
\76\ 120 S. Ct. at 2454.
---------------------------------------------------------------------------
--Political Association
[P. 1063, add to text before first full paragraph on page:]
In 1996 the Court extended Elrod and Branti to
protect independent government contractors.\77\
---------------------------------------------------------------------------
\77\ O'Hare Truck Serv., Inc. v. City of Northlake,
518 U.S. 712 (1996) (allegation that city removed
petitioner's company from list of those offered towing
business on a rotating basis, in retaliation for
petitioner's refusal to contribute to mayor's campaign, and
for his support of mayor's opponent, states a cause of
action under the First Amendment). See also Board of County
Comm'rs v. Umbehr, 518 U.S. 668 (1996) (termination or non-
renewal of a public contract in retaliation for the
contractor's speech on a matter of public concern can
violate the First Amendment).
---------------------------------------------------------------------------
Particular Governmental Regulations Which Restrict
Expression
[P. 1081, change subheading to:]
--Government as Employer: Political and Other Outside
Activities
[P. 1084, add new paragraph to end of section:]
The Hatch Act cases were distinguished in United
States v. National Treasury Employees Union,\78\ in which
the Court struck down an honoraria ban as applied to lower-
level employees of the Federal Government. The honoraria ban
suppressed employees' right to free expression while the
Hatch Act sought to protect that right, and also there was
no evidence of improprieties in acceptance of honoraria by
members of the plaintiff class of federal employees.\79\ The
Court emphasized further difficulties with the ``crudely
crafted'' honoraria ban: it was limited to expressive
activities and had no application to other sources of
outside income, it applied when neither the subjects of
speeches and articles nor the persons or groups paying for
them bore any connection to the employee's job
responsibilities, and it exempted a ``series'' of speeches
or articles without also exempting individual articles and
speeches. These ``anomalies'' led the Court to conclude that
the ``speculative benefits'' of the ban were insufficient to
justify the burdens it imposed on expressive activities.\80\
---------------------------------------------------------------------------
\78\ 513 U.S. 454 (1995).
\79\ The plaintiff class consisted of all Executive
Branch employees below grade GS-16. Also covered by the ban
were senior executives, Members of Congress, and other
federal officers, but the possibility of improprieties by
these groups did not justify application of the ban to ``the
vast rank and file of federal employees below grade GS-16.''
\80\ 513 U.S. at 477.
---------------------------------------------------------------------------
--Government as Employer: Free Expression Generally
[P. 1089, add to text following n.113:]
The protections applicable to government employees
have been extended to independent government contractors,
the Court announcing that ``the Pickering balancing test,
adjusted to weigh the government's interests as contractor
rather than as employer, determines the extent of their
protection.'' \81\
---------------------------------------------------------------------------
\81\ Board of County Comm'rs v. Umbehr, 518 U.S.
668, 673 (1996).
---------------------------------------------------------------------------
[P. 1089, add to n.116:]
In Waters v. Churchill, 511 U.S. 661 (1994), the Court
grappled with what procedural protections may be required by
the First Amendment when public employees are dismissed on
speech-related grounds, but reached no consensus.
--Government as Regulator of the Electoral Process:
Elections
[P. 1095, add to text following n.143:]
Minnesota, however, could prohibit a candidate from
appearing on the ballot as the candidate of more than one
party.\82\ The Court wrote that election ``[r]egulations
imposing severe burdens on plaintiffs' [associational]
rights must be narrowly tailored and advance a compelling
state interest. Lesser burdens, however, trigger less
exacting review, and a State's important regulatory
interests will usually be enough to justify reasonable
nondiscriminatory restrictions.'' \83\ Minnesota's ban on
``fusion'' candidates was not severe, as it left a party
that could not place another party's candidate on the ballot
free to communicate its preference for that candidate by
other means, and the ban was justified by ``valid state
interests in ballot integrity and political stability.''
\84\
---------------------------------------------------------------------------
\82\ Timmons v. Twin City Area New Party, 520 U.S.
351 (1997).
\83\ 520 U.S. at 358 (internal quotation marks
omitted).
\84\ 520 U.S. at 369-70.
---------------------------------------------------------------------------
[P. 1097, add to n.150:]
See also Colorado Republican Campaign Comm. v. FEC, 518
U.S. 604 (1996) (the First Amendment bars application of the
Party Expenditure Provision of the Federal Election Campaign
Act, 2 U.S.C. Sec. 441a(d)(3), to expenditures that the
political party makes independently, without coordination
with the candidate).
[P. 1098, add to text following n.155:]
In Nixon v. Shrink Missouri Government PAC,\85\ the
Court held that Buckley v. Valeo ``is authority for state
limits on contributions to state political candidates,'' but
state limits ``need not be pegged to Buckley's dollars.''
\86\ The Court in Nixon justified the limits on
contributions on the same grounds that it had in Buckley:
``preventing corruption and the appearance of it that flows
from munificent campaign contributions.'' \87\ Further,
Nixon did ``not present a close call requiring further
definition of whatever the State's evidentiary obligation
may be'' to justify the contribution limits, as ``there is
little reason to doubt that sometimes large contributions
will work actual corruption of our political system, and no
reason to question the existence of a corresponding
suspicion among voters.'' \88\ As for the amount of the
contribution limits, Missouri's fluctuated in accordance
with the consumer price index, and, when suit was filed,
ranged from $275 to $1,075, depending on the state office or
size of constituency. The Court upheld these limits, writing
that, in Buckley, it had ``rejected the contention that
$1,000, or any other amount, was a constitutional minimum
below which legislatures could not regulate.'' \89\ The
relevant inquiry, rather, was ``whether the contribution
limitation was so radical in effect as to render political
association ineffective, drive the sound of a candidate's
voice below the level of notice, and render contributions
pointless.'' \90\
---------------------------------------------------------------------------
\85\ 120 S. Ct. 897 (2000).
\86\ 120 S. Ct. at 901.
\87\ 120 S. Ct. at 905.
\88\ 120 S. Ct. at 907-08.
\89\ 120 S. Ct. at 909.
\90\ 120 S. Ct. at 909.
---------------------------------------------------------------------------
[P. 1098, add to n.157:]
The Court subsequently struck down a Colorado statute
that required ballot-initiative proponents, if they pay
circulators, to file reports disclosing circulators' names
and addresses and the total amount paid to each circulator.
Buckley v. American Constitutional Law Found., 525 U.S. 182
(1999). Although the Court upheld a requirement that
proponents' names and the total amount they have spent to
collect signatures be disclosed, as this served ``as a
control or check on domination of the initiative process by
affluent special interest groups'' (id. at 202), it found
that ``[t]he added benefit of revealing the names of paid
circulators and the amounts paid to each circulator . . . is
hardly apparent and has not been demonstrated.'' Id. at 203.
The Court also struck down a requirement that circulators be
registered voters, as the state's interest in ensuring that
circulators would be amenable to subpoenas was served by the
requirement that they be residents--a requirement on which
the Court had no occasion to rule.
--Government and Power of the Purse
[P. 1113, add to text following n.236:]
In National Endowment for the Arts v. Finley, the
Supreme Court upheld the constitutionality of a federal
statute requiring the NEA, in awarding grants, to ``tak[e]
into consideration general standards of decency and respect
for the diverse beliefs and values of the American public.''
\91\ The Court acknowledged that, if the statute were
``applied in a manner that raises concern about the
suppression of disfavored viewpoints,'' \92\ then such
application might be unconstitutional. The statute on its
face, however, is constitutional because it ``imposes no
categorical requirement,'' being merely ``advisory.'' \93\
``Any content-based considerations that may be taken into
account in the grant-making process are a consequence of the
nature of arts funding . . . . The `very assumption' of the
NEA is that grants will be awarded according to the
`artistic worth of competing applications,' and absolute
neutrality is simply `inconceivable.' '' \94\ The Court also
found that the terms of the statute, ``if they appeared in a
criminal statute or regulatory scheme, . . . could raise
substantial vagueness concerns . . . . But when the
Government is acting as patron rather than as sovereign, the
consequences of imprecision are not constitutionally
severe.'' \95\
---------------------------------------------------------------------------
\91\ 524 U.S. 569, 572 (1998).
\92\ 524 U.S. at 587.
\93\ 524 U.S. at 581. Justice Scalia, in a
concurring opinion joined by Justice Thomas, claimed that
this interpretation of the statute ``gutt[ed] it.'' Id. at
590. He believed that the statute ``establishes content- and
viewpoint-based criteria upon which grant applications are
to be evaluated. And that is perfectly constitutional.'' Id.
\94\ 524 U.S. at 585.
\95\ 524 U.S. at 588-89.
---------------------------------------------------------------------------
Governmental Regulation of Communications Industries
--Commercial Speech
[P. 1116, add to n.12:]
Shapero was distinguished in Florida Bar v. Went For It,
Inc., 515 U.S. 618 (1995), a 5 to 4 decision upholding a
prohibition on targeted direct-mail solicitations to victims
and their relatives for a 30-day period following an
accident or disaster. ``Shapero dealt with a broad ban on
all direct mail solicitations'' (id. at 629), the Court
explained, and was not supported, as Florida's more limited
ban was, by findings describing the harms to be prevented by
the ban. Dissenting Justice Kennedy disagreed that there was
a valid distinction, pointing out that in Shapero the Court
had said that ``the mode of communication [mailings versus
potentially more abusive in-person solicitation] makes all
the difference,'' and that mailings were at issue in both
Shapero and Florida Bar. 515 U.S. at 637 (quoting Shapero,
486 U.S. at 475).
[P. 1116, add to text following n.13:]
, or prohibit a certified public accountant from
holding herself out as a certified financial planner.\96\
---------------------------------------------------------------------------
\96\ Ibanez v. Florida Bd. of Accountancy, 512 U.S.
136 (1994) (also ruling that Accountancy Board could not
reprimand the CPA, who was also a licensed attorney, for
truthfully listing her CPA credentials in advertising for
her law practice).
---------------------------------------------------------------------------
[P. 1116, add to text following n.14:]
The Court later refused, however, to extend this
principle to in-person solicitation by certified public
accountants, explaining that CPAs, unlike attorneys, are not
professionally ``trained in the art of persuasion,'' and
that the typical business executive client of a CPA is ``far
less susceptible to manipulation'' than was the accident
victim in Ohralik.\97\ To allow enforcement of such a broad
prophylactic rule absent identification of a serious problem
such as ambulance chasing, the Court explained, would dilute
commercial speech protection ``almost to nothing.'' \98\
---------------------------------------------------------------------------
\97\ Edenfield v. Fane, 507 U.S. 761, 775 (1993).
\98\ 507 U.S. at 777.
---------------------------------------------------------------------------
[P. 1117, delete last two sentences of paragraph continued
from p. 1116, and substitute the following:]
The Court has developed a four-pronged test to
measure the validity of restraints upon commercial
expression.
[P. 1117, add to n.19 following San Francisco Arts &
Athletics citation:]
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)
(government's interest in curbing strength wars among
brewers is substantial, but interest in facilitating state
regulation of alcohol is not substantial). Contrast United
States v. Edge Broadcasting Co., 509 U.S. 418 (1993),
finding a substantial federal interest in facilitating state
restrictions on lotteries. ``Unlike the situation in Edge
Broadcasting,'' the Coors Court explained, ``the policies of
some States do not prevent neighboring States from pursuing
their own alcohol-related policies within their respective
borders.'' 514 U.S. at 486.
[P. 1118, add to n.20 following Bolger citation:]
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995)
(prohibition on display of alcohol content on beer labels
does not directly and materially advance government's
interest in curbing strength wars among brewers, given the
inconsistencies and ``overall irrationality'' of the
regulatory scheme); Edenfield v. Fane, 507 U.S. 761 (1993)
(Florida's ban on in-person solicitation by certified public
accountants does not directly advance its legitimate
interests in protecting consumers from fraud, protecting
consumer privacy, and maintaining professional independence
from clients).
[P. 1118, add to text following n.20:]
Instead, the regulation must ``directly advance''
the governmental interest. The Court resolves this issue
with reference to aggregate effects, and does not limit its
consideration to effects on the challenging litigant.\99\
---------------------------------------------------------------------------
\99\ United States v. Edge Broadcasting Co., 509
U.S. 418, 427 (1993) (``this question cannot be answered by
limiting the inquiry to whether the governmental interest is
directly advanced as applied to a single person or
entity'').
---------------------------------------------------------------------------
[P. 1118, add to n.21 following Bolger citation:]
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) (there
are less intrusive alternatives--e.g., direct limitations on
alcohol content of beer--to prohibition on display of
alcohol content on beer label).
[P. 1118, add to n.22:]
In a 1993 opinion the Court elaborated on the difference
between ``reasonable fit'' and least restrictive
alternative. ``A regulation need not be `absolutely the
least severe that will achieve the desired end,' but if
there are numerous and obvious less-burdensome alternatives
to the restriction . . . , that is certainly a relevant
consideration in determining whether the `fit' between ends
and means is reasonable.'' City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 417 n.13 (1993).
[P. 1118, delete remainder of section after n.22, and add
the following:]
The ``reasonable fit'' standard has some teeth, the
Court made clear in City of Cincinnati v. Discovery Network,
Inc.,\100\ striking down a city's prohibition on
distribution of ``commercial handbills'' through
freestanding newsracks located on city property. The city's
aesthetic interest in reducing visual clutter was furthered
by reducing the total number of newsracks, but the
distinction between prohibited ``commercial'' publications
and permitted ``newspapers'' bore ``no relationship
whatsoever'' to this legitimate interest.\101\ The city
could not, the Court ruled, single out commercial speech to
bear the full onus when ``all newsracks, regardless of
whether they contain commercial or noncommercial
publications, are equally at fault.'' \102\ By contrast, the
Court upheld a federal law that prohibited broadcast of
lottery advertisements by a broadcaster in a State that
prohibits lotteries, while allowing broadcast of such ads by
stations in States that sponsor lotteries. There was a
``reasonable fit'' between the restriction and the asserted
federal interest in supporting state anti-gambling policies
without unduly interfering with policies of neighboring
States that promote lotteries.\103\ The prohibition
``directly served'' the congressional interest, and could be
applied to a broadcaster whose principal audience was in an
adjoining lottery State, and who sought to run ads for that
State's lottery.\104\
---------------------------------------------------------------------------
\100\ 507 U.S. 410 (1993). See also Edenfield v.
Fane, 507 U.S. 761 (1993), decided the same Term, relying on
the ``directly advance'' third prong of Central Hudson to
strike down a ban on in-person solicitation by certified
public accountants.
\101\ 507 U.S. at 424.
\102\ 507 U.S. at 426. The Court also noted the
``minute'' effect of removing 62 ``commercial'' newsracks
while 1,500 to 2,000 other newsracks remained in place. Id.
at 418.
\103\ United States v. Edge Broadcasting Co., 509
U.S. 418 (1993).
\104\ 508 U.S. at 428.
---------------------------------------------------------------------------
In 1999 the Court struck down a provision of the
same statute as applied to advertisements for private casino
gambling that are broadcast by radio and television stations
located in a State where such gambling is legal.\105\ The
Court emphasized the interrelatedness of the four parts of
the Central Hudson test; e.g., though the government has a
substantial interest in reducing the social costs of
gambling, the fact that the Congress has simultaneously
encouraged gambling, because of its economic benefits, makes
it more difficult for the government to demonstrate that its
restriction on commercial speech materially advances its
asserted interest and constitutes a reasonable ``fit.'' In
this case, ``[t]he operation of [18 U.S.C.] Sec. 1304 and
its attendant regulatory regime is so pierced by exemptions
and inconsistencies that the Government cannot hope to
exonerate it.'' \106\ ``[T]he regulation distinguishes among
the indistinct, permitting a variety of speech that poses
the same risks the Government purports to fear, while
banning messages unlikely to cause any harm at all.'' \107\
---------------------------------------------------------------------------
\105\ Greater New Orleans Broadcasting Ass'n, Inc.
v. United States, 527 U.S. 173 (1999).
\106\ 527 U.S. at 190.
\107\ 527 U.S. at 195.
---------------------------------------------------------------------------
In a 1986 decision the Court had asserted that
``the greater power to completely ban casino gambling
necessarily includes the lesser power to ban advertising of
casino gambling.'' \108\ Subsequently, however, the Court
has eschewed reliance on Posadas,\109\ and it seems doubtful
that the Court would again embrace the broad principle that
government may ban all advertising of an activity that it
permits but has power to prohibit. Indeed, the Court's very
holding in 44 Liquormart, Inc. v. Rhode Island,\110\
striking down the State's ban on advertisements that provide
truthful information about liquor prices, is inconsistent
with the general proposition. A Court plurality in 44
Liquormart squarely rejected Posadas, calling it
``erroneous,'' declining to give force to its ``highly
deferential approach,'' and proclaiming that a State ``does
not have the broad discretion to suppress truthful,
nonmisleading information for paternalistic purposes that
the Posadas majority was willing to tolerate.'' \111\ Four
other Justices concluded that Posadas was inconsistent with
the ``closer look'' that the Court has since required in
applying the principles of Central Hudson.\112\
---------------------------------------------------------------------------
\108\ Posadas de Puerto Rico Assocs. v. Tourism Co.
of Puerto Rico, 478 U.S. 328, 345-46 (1986). For discussion
of the case, see P. Kurland, Posadas de Puerto Rico v.
Tourism Company: `` 'Twas Strange, 'Twas Passing Strange;
'Twas Pitiful, 'Twas Wondrous Pitiful,'' 1986 Sup. Ct. Rev.
1.
\109\ In Rubin v. Coors Brewing Co., 514 U.S. 476
(1995) (invalidating a federal ban on revealing alcohol
content on malt beverage labels), the Court rejected
reliance on Posadas, pointing out that the statement in
Posadas had been made only after a determination that the
advertising could be upheld under Central Hudson. The Court
found it unnecessary to consider the greater-includes-lesser
argument in United States v. Edge Broadcasting Co., 509 U.S.
418, 427 (1993), upholding through application of Central
Hudson principles a ban on broadcast of lottery ads.
\110\ 517 U.S. 484 (1996).
\111\ 517 U.S. at 510 (opinion of Stevens, joined by
Justices Kennedy, Thomas, and Ginsburg). The Stevens opinion
also dismissed the Posadas ``greater-includes-the-lesser
argument'' as ``inconsistent with both logic and well-
settled doctrine,'' pointing out that the First Amendment
``presumes that attempts to regulate speech are more
dangerous than attempts to regulate conduct.'' Id. at 511-
12.
\112\ 517 U.S. at 531-32 (concurring opinion of
O'Connor, joined by Chief Justice Rehnquist and by Justices
Souter and Breyer).
---------------------------------------------------------------------------
The ``different degree of protection'' accorded
commercial speech has a number of consequences. Somewhat
broader times, places, and manner regulations are to be
tolerated.\113\ The rule against prior restraints may be
inapplicable,\114\ and disseminators of commercial speech
are not protected by the overbreadth doctrine.\115\
---------------------------------------------------------------------------
\113\ Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 771 (1976); Bates
v. State Bar of Arizona, 433 U.S. 350, 384 (1977). But in
Linmark Associates v. Township of Willingboro, 431 U.S. 85,
93-94 (1977), the Court refused to accept a times, places,
and manner defense of an ordinance prohibiting ``For Sale''
signs on residential lawns. First, ample alternative
channels of communication were not available, and, second,
the ban was seen as a content limitation.
\114\ Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976);
Central Hudson Gas & Electric Co. v. Public Serv. Comm'n,
447 U.S. 557, 571 n.13 (1980).
\115\ Bates v. State Bar of Arizona, 433 U.S. 350,
379-81 (1977); Central Hudson Gas & Electric Co. v. Public
Serv. Comm'n, 447 U.S. 557, 565 n.8 (1980).
---------------------------------------------------------------------------
Different degrees of protection may also be
discerned among different categories of commercial speech.
The first prong of the Central Hudson test means that false,
deceptive, or misleading advertisements need not be
permitted; government may require that a commercial message
appear in such a form, or include such additional
information, warnings, and disclaimers, as are necessary to
prevent deception.\116\ But even truthful, non-misleading
commercial speech may be regulated, and the validity of such
regulation is tested by application of the remaining prongs
of the Central Hudson test. The test itself does not make
further distinctions based on the content of the commercial
message or the nature of the governmental interest (that
interest need only be ``substantial''). Recent decisions
suggest, however, that further distinctions may exist.
Measures aimed at preserving ``a fair bargaining process''
between consumer and advertiser \117\ may be more likely to
pass the test \118\ than regulations designed to implement
general health, safety, or moral concerns.\119\ As the
governmental interest becomes further removed from
protecting a fair bargaining process, it may become more
difficult to establish the absence of less burdensome
regulatory alternatives and the presence of a ``reasonable
fit'' between the commercial speech restriction and the
governmental interest.\120\
---------------------------------------------------------------------------
\116\ Bates v. State Bar of Arizona, 433 U.S. 350,
383-84 (1977); Ohralik v. Ohio State Bar Ass'n, 436 U.S.
447, 456 (1978). Requirements that advertisers disclose more
information than they otherwise choose to are upheld ``as
long as [they] are reasonably related to the State's
interest in preventing deception of consumers,'' the Court
explaining that ``[t]he right of a commercial speaker not to
divulge accurate information regarding his services is not .
. . a fundamental right'' requiring strict scrutiny of the
disclosure requirement. Zauderer v. Office of Disciplinary
Counsel, 471 U.S. 626, 651 & n.14 (1985) (upholding
requirement that attorney's contingent fees ad mention that
unsuccessful plaintiffs might still be liable for court
costs).
\117\ 44 Liquormart, Inc. v. Rhode Island, 517 U.S.
484, 501 (1996) (opinion of Justice Stevens, joined by
Justices Kennedy and Ginsburg).
\118\ See, e.g., Ohralik v. Ohio State Bar Ass'n,
436 U.S. 447, 465 (1978) (upholding ban on in-person
solicitation by attorneys due in part to the ``potential for
overreaching'' when a trained advocate ``solicits an
unsophisticated, injured, or distressed lay person'').
\119\ Compare United States v. Edge Broadcasting
Co., 509 U.S. 418 (1993) (upholding federal law supporting
state interest in protecting citizens from lottery
information) and Florida Bar v. Went For It, Inc., 515 U.S.
618, 631 (1995) (upholding a 30-day ban on targeted, direct-
mail solicitation of accident victims by attorneys, not
because of any presumed susceptibility to overreaching, but
because the ban ``forestall[s] the outrage and irritation
with the . . . legal profession that the [banned]
solicitation . . . has engendered'') with Rubin v. Coors
Brewing Co., 514 U.S. 476 (1995) (striking down federal
statute prohibiting display of alcohol content on beer
labels) and 44 Liquormart, Inc. v. Rhode Island, 517 U.S.
484 (1996) (striking down state law prohibiting display of
retail prices in ads for alcoholic beverages).
\120\ Justice Stevens has criticized the Central
Hudson test because it seemingly allows regulation of any
speech propounded in a commercial context regardless of the
content of that speech. ``[A]ny description of commercial
speech that is intended to identify the category of speech
entitled to less First Amendment protection should relate to
the reasons for permitting broader regulation: namely,
commercial speech's potential to mislead.'' Rubin v. Coors
Brewing Co., 514 U.S. 476, 494 (1995) (concurring opinion).
The Justice repeated these views in 1996: ``when a State
entirely prohibits the dissemination of truthful,
nonmisleading commercial messages for reasons unrelated to
the preservation of a fair bargaining process, there is far
less reason to depart from the rigorous review that the
First Amendment generally demands.'' 44 Liquormart, Inc. v.
Rhode Island, 517 U.S. 484, 501 (1996) (a portion of the
opinion joined by Justices Kennedy and Ginsburg). Justice
Thomas, similarly, wrote that, in cases ``in which the
government's asserted interest is to keep legal users of a
product or service ignorant in order to manipulate their
choices in the marketplace, the Central Hudson test should
not be applied because such an `interest' is per se
illegitimate . . . .'' Greater New Orleans Broadcasting
Ass'n, Inc. v. United States, 527 U.S. 173, 197 (1999)
(Thomas, J., concurring) (internal quotation marks omitted).
---------------------------------------------------------------------------
--Radio and Television
[P. 1126, delete last paragraph on page]
--Governmentally Compelled Right of Reply to Newspapers
[P. 1127, add to n.65:]
See also Hurley v. Irish-American Gay Group, 515 U.S.
557 (1995) (State may not compel parade organizer to allow
participation by a parade unit proclaiming message that
organizer does not wish to endorse).
[P. 1127, add new section following n.65:]
Regulation of Cable Television.--The Court has
recognized that cable television ``implicates First
Amendment interests,'' since a cable operator communicates
ideas through selection of original programming and through
exercise of editorial discretion in determining which
stations to include in its offering.\121\ Moreover,
``settled principles of . . . First Amendment
jurisprudence'' govern review of cable regulation; cable is
not limited by ``scarce'' broadcast frequencies and does not
require the same less rigorous standard of review that the
Court applies to regulation of broadcasting.\122\ Cable
does, however, have unique characteristics that justify
regulations that single out cable for special
treatment.\123\ The Court in Turner Broadcasting System v.
FCC \124\ upheld federal statutory requirements that cable
systems carry local commercial and public television
stations. Although these ``must-carry'' requirements
``distinguish between speakers in the television programming
market,'' they do so based on the manner of transmission and
not on the content the messages conveyed, and hence are
content-neutral.\125\ The regulations could therefore be
measured by the ``intermediate level of scrutiny'' set forth
in United States v. O'Brien.\126\ Two years later, however,
a splintered Court could not agree on what standard of
review to apply to content-based restrictions of cable
broadcasts. Striking down a requirement that cable operators
must, in order to protect children, segregate and block
programs with patently offensive sexual material, a Court
majority in Denver Area Educational Telecommunications
Consortium v. FCC \127\ found it unnecessary to determine
whether strict scrutiny or some lesser standard applies, as
the restriction was deemed invalid under any of the
alternative tests. There was no opinion of the Court on the
other two holdings in the case,\128\ and a plurality \129\
rejected assertions that public forum analysis,\130\ or a
rule giving cable operators' editorial rights ``general
primacy'' over the rights of programmers and viewers,\131\
should govern.
---------------------------------------------------------------------------
\121\ City of Los Angeles v. Preferred
Communications, 476 U.S. 488 (1986) (leaving for future
decision how the operator's interests are to be balanced
against a community's interests in limiting franchises and
preserving utility space); Turner Broadcasting System v.
FCC, 512 U.S. 622, 636 (1994).
\122\ Turner Broadcasting System v. FCC, 512 U.S.
622, 638-39 (1994).
\123\ 512 U.S. at 661 (referring to the ``bottleneck
monopoly power'' exercised by cable operators in determining
which networks and stations to carry, and to the resulting
dangers posed to the viability of broadcast television
stations). See also Leathers v. Medlock, 499 U.S. 439 (1991)
(application of state gross receipts tax to cable industry
permissible even though other segments of the communications
media were exempted).
\124\ 512 U.S. 622 (1994).
\125\ 512 U.S. at 645. ``Deciding whether a
particular regulation is content based or content neutral is
not always a simple task,'' the Court confessed. Id. at 642.
Indeed, dissenting Justice O'Connor, joined by Justices
Scalia, Ginsburg, and Thomas, viewed the rules as content-
based. Id. at 674-82.
\126\ 391 U.S. 367, 377 (1968). The Court remanded
Turner for further factual findings relevant to the O'Brien
test. On remand, the district court upheld the must-carry
provisions, and the Supreme Court affirmed, concluding that
it ``cannot displace Congress' judgment respecting content-
neutral regulations with our own, so long as its policy is
grounded on reasonable factual findings supported by
evidence that is substantial for a legislative
determination.'' Turner Broadcasting System v. FCC, 520 U.S.
180, 224 (1997).
\127\ 518 U.S. 727, 755 (1996) (invalidating
Sec. 10(b) of the Cable Television Consumer Protection and
Competition Act of 1992).
\128\ Upholding Sec. 10(a) of the Act, which permits
cable operators to prohibit indecent material on leased
access channels; and striking down Sec. 10(c), which permits
a cable operator to prevent transmission of ``sexually
explicit'' programming on public access channels. In
upholding Sec. 10(a), Justice Breyer's plurality opinion
cited FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and
noted that cable television ``is as `accessible to children'
as over-the-air broadcasting, if not more so.'' 518 U.S. at
744.
\129\ This section of Justice Breyer's opinion was
joined by Justices Stevens, O'Connor, and Souter. 518 U.S.
at 749.
\130\ Justice Kennedy, joined by Justice Ginsburg,
advocated this approach. 518 U.S. at 791, and took the
plurality to task for its ``evasion of any clear legal
standard.'' Id. at 784.
\131\ Justice Thomas, joined by Chief Justice
Rehnquist and Justice Scalia, advocated this approach.
---------------------------------------------------------------------------
Subsequently, in United States v. Playboy
Entertainment Group, Inc.,\132\ the Supreme Court made
clear, as it had not in Denver Consortium, that strict
scrutiny applies to content-based speech restrictions on
cable television. The Court struck down a federal statute
designed to ``shield children from hearing or seeing images
resulting from signal bleed,'' which refers to blurred
images or sounds that come through to non-subscribers.\133\
The statute required cable operators, on channels primarily
dedicated to sexually oriented programming, either to
scramble fully or otherwise fully block such channels, or to
not provide such programming when a significant number of
children are likely to be viewing it, which, under an FCC
regulation meant to transmit the programming only from 10
p.m. to 6 a.m. The Court apparently assumed that the
government had a compelling interest in protecting at least
some children from sexually oriented signal bleed, but found
that Congress had not used the least restrictive means to do
so. Congress in fact had enacted another provision that was
less restrictive and that served the government's purpose.
This other provision requires that, upon request by a cable
subscriber, a cable operator, without charge, fully scramble
or otherwise fully block any channel to which a subscriber
does not subscribe.
---------------------------------------------------------------------------
\132\ 120 S. Ct. 1878 (2000).
\133\ 120 S. Ct. at 1883.
---------------------------------------------------------------------------
Government Restraint of Content of Expression
--Group Libel, Hate Speech
[P. 1136, add to n.111:]
On the other hand, the First Amendment does permit
enhancement of a criminal penalty based on the defendant's
motive in selecting a victim of a particular race. Wisconsin
v. Mitchell, 508 U.S. 476 (1993). The law has long
recognized motive as a permissible element in sentencing,
the Court noted. Id. at 485. The Court distinguished R.A.V.
as involving a limitation on ``speech'' rather than conduct,
and because the state might permissibly conclude that bias-
inspired crimes inflict greater societal harm than do non-
bias inspired crimes (e.g., they are more likely to provoke
retaliatory crimes). Id. at 487-88. See generally Laurence
H. Tribe, The Mystery of Motive, Private and Public: Some
Notes Inspired by the Problems of Hate Crime and Animal
Sacrifice, 1993 Sup. Ct. Rev. 1.
--Obscenity
[P. 1152, add to n.14:]
None of these strictures applies, however, to
forfeitures imposed as part of a criminal penalty. Alexander
v. United States, 509 U.S. 544 (1993) (upholding RICO
forfeiture of the entire adult entertainment book and film
business of an individual convicted of obscenity and
racketeering offenses). Justice Kennedy, dissenting in
Alexander, objected to the ``forfeiture of expressive
material that had not been adjudged to be obscene.'' Id. at
578.
--Non-obscene But Sexually Explicit and Indecent Expression
[P. 1161, add to n.61:]
Similar rules apply in regulation of cable TV. In Denver
Area Educ. Tel. Consortium v. FCC, 518 U.S. 727, 755 (1996),
the Court, acknowledging that protection of children from
sexually explicit programming is a ``compelling''
governmental interest (but refusing to determine whether
strict scrutiny applies), nonetheless struck down a
requirement that cable operators segregate and block
indecent programming on leased access channels. The
segregate-and-block restrictions, which included a
requirement that a request for access be in writing, and
which allowed for up to 30 days' delay in blocking or
unblocking a channel, were not sufficiently protective of
adults' speech and viewing interests to be considered either
narrowly or reasonably tailored to serve the government's
compelling interest in protecting children. In United States
v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878
(2000), the Supreme Court, explicitly applying strict
scrutiny to a content-based speech restriction on cable TV,
struck down a federal statute designed to ``shield children
from hearing or seeing images resulting from signal bleed.''
Id. at 1883.
The Court seems to be becoming less absolute in viewing
the protection of all minors (regardless of age) from all
indecent material (regardless of its educational value and
parental approval) to be a compelling governmental interest.
In striking down the Communications Decency Act of 1996, the
Court would ``neither accept nor reject the Government's
submission that the First Amendment does not forbid a
blanket prohibition on all `indecent' and `patently
offensive' messages communicated to a 17-year-old--no matter
how much value the message may have and regardless of
parental approval. It is at least clear that the strength of
the Government's interest in protecting minors is not
equally strong throughout the coverage of this broad
statute.'' Reno v. American Civil Liberties Union, 521 U.S.
844, 878 (1997). In Playboy Entertainment Group, 120 S. Ct.
at 1892, the Court wrote: ``Even upon the assumption that
the Government has an interest in substituting itself for
informed and empowered parents, its interest is not
sufficiently compelling to justify this widespread
restriction on speech.'' The Court also would ``not discount
the possibility that a graphic image could have a negative
impact upon a young child'' (id. at 1893), thereby
suggesting again that it may take age into account when
applying strict scrutiny.
[P. 1161, add to text following n.61:]
In Reno v. American Civil Liberties Union,\134\ the
Court struck down two provisions of the Communications
Decency Act of 1996 (CDA), one of which would have
prohibited use of an ``interactive computer service'' to
display indecent material ``in a manner available to a
person under 18 years of age.'' \135\ This prohibition
would, in effect, have banned indecent material from all
Internet sites except those accessible by adults only.
Although intended ``to deny minors access to potentially
harmful speech . . . , [the CDA's] burden on adult speech,''
the Court wrote, ``is unacceptable if less restrictive
alternatives would be at least as effective . . . . [T]he
Government may not `reduc[e] the adult population . . . to .
. . only what is fit for children.' '' \136\
---------------------------------------------------------------------------
\134\ 521 U.S. 844 (1997).
\135\ The other provision the Court struck down
would have prohibited indecent communications, by telephone,
fax, or e-mail, to minors.
\136\ 521 U.S. at 874-75. The Court did not address
whether, if less restrictive alternatives would not be as
effective, the Government would then be permitted to reduce
the adult population to only what is fit for children.
---------------------------------------------------------------------------
In Reno, the Court distinguished FCC v. Pacifica
Foundation,\137\ in which it had upheld the FCC's
restrictions on indecent radio and television broadcasts,
because (1) ``[t]he CDA's broad categorical prohibitions are
not limited to particular times and are not dependent on any
evaluation by an agency familiar with the unique
characteristics of the Internet,'' (2) the CDA imposes
criminal penalties, and the Court has never decided whether
indecent broadcasts ``would justify a criminal
prosecution,'' and (3) radio and television, unlike the
Internet, have, ``as a matter of history . . . `received the
most limited First Amendment protection,' . . . in large
part because warnings could not adequately protect the
listener from unexpected program content. . . . [On the
Internet], the risk of encountering indecent material by
accident is remote because a series of affirmative steps is
required to access specific material.'' \138\
---------------------------------------------------------------------------
\137\ 438 U.S. 726 (1978).
\138\ 521 U.S. at 867.
---------------------------------------------------------------------------
[P. 1161, start a new paragraph of text with the material
that previously followed n.61, and change the opening
words of that new paragraph from ``Also, government
may'' to ``The government may also''.]
[P. 1163, add to text following n.74:]
In Erie v. Pap's A.M.,\139\ the Supreme Court again
upheld the application of a statute prohibiting public
nudity to an ``adult'' entertainment establishment. Although
there was again only a plurality opinion, parts of that
opinion were joined by five justices. These five adopted
Justice Souter's position in Barnes, that the statute
satisfied the O'Brien test because it was intended ``to
combat harmful secondary effects,'' such as ``prostitution
and other criminal activity.'' \140\ Justice Souter,
however, though joining the plurality opinion, also
dissented in part. He continued to believe that secondary
effects were an adequate justification for banning nude
dancing, but did not believe ``that the city has made a
sufficient evidentiary showing to sustain its regulation,''
and therefore would have remanded the case for further
proceedings.\141\ He acknowledged his ``mistake'' in Barnes
in failing to make the same demand for evidence.\142\
---------------------------------------------------------------------------
\139\ 120 S. Ct. 1382 (2000).
\140\ 120 S. Ct. at 1392, 1393.
\141\ 120 S. Ct. at 1402.
\142\ 120 S. Ct. at 1405.
---------------------------------------------------------------------------
The plurality opinion found that the effect of
Erie's public nudity ban ``on the erotic message . . . is de
minimis'' because Erie allowed dancers to perform wearing
only pasties and G-strings.\143\ It may follow that
``requiring dancers to wear pasties and G-strings may not
greatly reduce . . . secondary effects, but O'Brien requires
only that the regulation further the interest of combating
such effects,'' not that it further it to a particular
extent.\144\ The plurality opinion did not address the
question of whether statutes prohibiting public nudity could
be applied to serious theater, but its reliance on secondary
effects suggests that they could not.
---------------------------------------------------------------------------
\143\ 120 S. Ct. at 1393. The plurality said that,
though nude dancing is ``expressive conduct,'' ``we think
that it falls only within the outer ambit of the First
Amendment's protection.'' Id. at 1391. The opinion also
quotes Justice Stevens to the same effect with regard to
erotic materials generally. Id. at 1393. In United States v.
Playboy Entertainment Group, Inc., 120 S. Ct. 1878, 1893
(2000), however, the Court wrote that it ``cannot be
influenced . . . by the perception that the regulation in
question is not a major one because the speech [``signal
bleed'' of sexually oriented cable programming] is not very
important.''
\144\ 120 S. Ct. at 1397.
---------------------------------------------------------------------------
Speech Plus--The Constitutional Law of Leafleting,
Picketing, and Demonstrating
--The Public Forum
[P. 1167, add to n.98 following citation to Niemotko v.
Maryland:]
Capitol Square Review and Advisory Bd. v. Pinette, 515
U.S. 753 (1995) (denial of permission to Ku Klux Klan,
allegedly in order to avoid Establishment Clause violation,
to place a cross in plaza on grounds of state capitol);
Rosenberger v. University of Virginia, 515 U.S. 819 (1995)
(University's subsidy for printing costs of student
publications, available for student ``news, information,
opinion, entertainment, or academic communications,'' could
not be withheld because of the religious content of a
student publication); Lamb's Chapel v. Center Moriches
School Dist., 508 U.S. 384 (1993) (school district rule
prohibiting after-hours use of school property for showing
of a film presenting a religious perspective on child-
rearing and family values, but allowing after-hours use for
non-religious social, civic, and recreational purposes).
[P. 1169, add to n.106:]
Candidate debates on public television are an example of
this third type of public forum: the ``nonpublic forum.''
Arkansas Educational Television Comm'n v. Forbes, 523 U.S.
666, 679 (1998). ``Although public broadcasting as a general
matter does not lend itself to scrutiny under the forum
doctrine [i.e., public broadcasters ordinarily are entitled
to the editorial discretion to engage in viewpoint
discrimination], candidate debates present the narrow
exception to this rule.'' Id. at 675. A public broadcaster,
therefore, may not engage in viewpoint discrimination in
granting or denying access to candidates. Under the third
type of forum analysis, however, it may restrict candidate
access for ``a reasonable, viewpoint-neutral'' reason, such
as a candidate's ``objective lack of support.'' Id. at 683.
--Public Issue Picketing and Parading
[P. 1179, add to text at end of section:]
More recently, disputes arising from anti-abortion
protests outside abortion clinics have occasioned another
look at principles distinguishing lawful public
demonstrations from proscribable conduct. In Madsen v.
Women's Health Center,\145\ the Court refined principles
governing issuance of ``content-neutral'' injunctions that
restrict expressive activity.\146\ The appropriate test, the
Court stated, is ``whether the challenged provisions of the
injunction burden no more speech than necessary to serve a
significant governmental interest.'' \147\ Regular time,
place, and manner analysis (requiring that regulation be
narrowly tailored to serve a significant governmental
interest) ``is not sufficiently rigorous,'' the Court
explained, because injunctions create greater risk of
censorship and discriminatory application, and because of
the established principle ``that an injunction should be no
broader than necessary to achieve its desired goals.'' \148\
Applying its new test, the Court upheld an injunction
prohibiting protesters from congregating, picketing,
patrolling, demonstrating, or entering any portion of the
public right-of-way within 36 feet of an abortion clinic.
Similarly upheld were noise restrictions designed to ensure
the health and well-being of clinic patients. Other aspects
of the injunction, however, did not pass the test. Inclusion
of private property within the 36-foot buffer was not
adequately justified, nor was inclusion in the noise
restriction of a ban on ``images observable'' by clinic
patients. A ban on physically approaching any person within
300 feet of the clinic unless that person indicated a desire
to communicate burdened more speech than necessary. Also, a
ban on demonstrating within 300 feet of the residences of
clinic staff was not sufficiently justified, the restriction
covering a much larger zone than an earlier residential
picketing ban that the Court had upheld.\149\
---------------------------------------------------------------------------
\145\ 512 U.S. 753 (1994).
\146\ The Court rejected the argument that the
injunction was necessarily content-based or viewpoint-based
because it applied only to anti-abortion protesters. ``An
injunction by its very nature applies only to a particular
group (or individuals) . . . . It does so, however, because
of the group's past actions in the context of a specific
dispute.'' There had been no similarly disruptive
demonstrations by pro-abortion factions at the abortion
clinic. 512 U.S. at 762.
\147\ 512 U.S. at 765.
\148\ 512 U.S. at 765.
\149\ Referring to Frisby v. Schultz, 487 U.S. 474
(1988).
---------------------------------------------------------------------------
In Schenck v. Pro-Choice Network of Western New
York,\150\ the Court applied Madsen to another injunction
that placed restrictions on demonstrating outside an
abortion clinic. The Court upheld the portion of the
injunction that banned ``demonstrating within fifteen feet
from either side or edge of, or in front of, doorways or
doorway entrances, parking lot entrances, driveways and
driveway entrances of such facilities''--what the Court
called ``fixed buffer zones.'' \151\ It struck down a
prohibition against demonstrating ``within fifteen feet of
any person or vehicles seeking access to or leaving such
facilities''--what it called ``floating buffer zones.''
\152\ The Court cited ``public safety and order'' \153\ in
upholding the fixed buffer zones, but it found that the
floating buffer zones ``burden more speech than is necessary
to serve the relevant governmental interests'' \154\ because
they make it ``quite difficult for a protester who wishes to
engage in peaceful expressive activity to know how to remain
in compliance with the injunction.'' \155\ The Court also
upheld a provision specifying that ``once sidewalk
counselors who had entered the buffer zones were required to
`cease and desist' their counseling, they had to retreat 15
feet from the people they had been counseling and had to
remain outside the boundaries of the buffer zones.'' \156\
---------------------------------------------------------------------------
\150\ 519 U.S. 357 (1997).
\151\ 519 U.S. at 366 n.3.
\152\ 519 U.S. at 366 n.3.
\153\ 519 U.S. at 376.
\154\ 519 U.S. at 377.
\155\ 519 U.S. at 378.
\156\ 519 U.S. at 367.
---------------------------------------------------------------------------
In Hill v. Colorado,\157\ the Court upheld a
Colorado statute that makes it unlawful, within 100 feet of
the entrance to any health care facility, to ``knowingly
approach'' within eight feet of another person, without that
person's consent, ``for the purpose of passing a leaflet or
handbill to, displaying a sign to, or engaging in oral
protest, education, or counseling with such other person.''
\158\ This decision is notable because it upheld a statute,
and not, as in Madsen and Schenck, merely an injunction
directed to particular parties. The Court found the statute
to be a content-neutral time, place, and manner regulation
of speech that ``reflects an acceptable balance between the
constitutionally protected rights of law-abiding speakers
and the interests of unwilling listeners. . . .'' \159\ The
restrictions are content-neutral because they regulate only
the places where some speech may occur, and because they
apply equally to all demonstrators, regardless of viewpoint.
Although the restrictions do not apply to all speech, the
``kind of cursory examination'' that might be required to
distinguish casual conversation from protest, education, or
counseling is not ``problematic.'' \160\ The law is narrowly
tailored to achieve the state's interests. The eight-foot
restriction does not significantly impair the ability to
convey messages by signs, and ordinarily allows speakers to
come within a normal conversational distance of their
targets. Because the statute allows the speaker to remain in
one place, persons who wish to hand out leaflets may
position themselves beside entrances near the path of
oncoming pedestrians, and consequently are not deprived of
the opportunity to get the attention of persons entering a
clinic.
---------------------------------------------------------------------------
\157\ 120 S. Ct. 2480 (2000).
\158\ 120 S. Ct. at 2484.
\159\ 120 S. Ct. at 2488.
\160\ 120 S. Ct. at 2492.
---------------------------------------------------------------------------
Different types of issues were presented by Hurley
v. Irish-American Gay Group,\161\ in which the Court held
that a state's public accommodations law could not be
applied to compel private organizers of a St. Patrick's Day
parade to accept in the parade a unit that would proclaim a
message that the organizers did not wish to promote. Each
participating unit affects the message conveyed by the
parade organizers, the Court observed, and application of
the public accommodations law to the content of the
organizers' message contravened the ``fundamental rule . . .
that a speaker has the autonomy to choose the content of his
own message.'' \162\
---------------------------------------------------------------------------
\161\ 515 U.S. 557 (1995).
\162\ 515 U.S. at 573.
---------------------------------------------------------------------------
--Leafleting, Handbilling, and the Like
[P. 1181, add to text after n.168:]
Talley's anonymity rationale was strengthened in
McIntyre v. Ohio Elections Commission,\163\ invalidating
Ohio's prohibition on the distribution of anonymous campaign
literature. There is a ``respected tradition of anonymity in
the advocacy of political causes,'' the Court noted, and
neither of the interests asserted by Ohio justified the
limitation. The State's interest in informing the electorate
was ``plainly insufficient,'' and, while the more weighty
interest in preventing fraud in the electoral process may be
accomplished by a direct prohibition, it may not be
accomplished indirectly by an indiscriminate ban on a whole
category of speech. Ohio could not apply the prohibition,
therefore, to punish anonymous distribution of pamphlets
opposing a referendum on school taxes.\164\
---------------------------------------------------------------------------
\163\ 514 U.S. 334 (1995).
\164\ In Buckley v. American Constitutional Law
Found., 525 U.S. 182 (1999), the Court struck down a
Colorado statute requiring initiative-petition circulators
to wear identification badges. It found that ``the restraint
on speech in this case is more severe than was the restraint
in McIntyre'' because ``[p]etition circulation is a less
fleeting encounter, for the circulator must endeavor to
persuade electors to sign the petition. . . . [T]he badge
requirement compels personal name identification at the
precise moment when the circulator's interest in anonymity
is greatest.'' Id. at 199.
---------------------------------------------------------------------------
[P. 1181, substitute for first full paragraph on page:]
The handbilling cases were distinguished in City
Council v. Taxpayers for Vincent,\165\ in which the Court
held that a city may prohibit altogether the use of utility
poles for posting of signs. While a city's concern over
visual blight could be addressed by an anti-littering
ordinance that did not restrict the expressive activity of
distributing handbills, in the case of utility pole signs
``it is the medium of expression itself'' that creates the
visual blight. Hence, the city's prohibition, unlike a
prohibition on distributing handbills, was narrowly tailored
to curtail no more speech than necessary to accomplish the
city's legitimate purpose.\166\ Ten years later, however,
the Court unanimously invalidated a town's broad ban on
residential signs that permitted only residential
identification signs, ``for sale'' signs, and signs warning
of safety hazards.\167\ Prohibiting homeowners from
displaying political, religious, or personal messages on
their own property ``almost completely foreclosed a
venerable means of communication that is both unique and
important,'' and that is ``an unusually cheap and convenient
form of communication'' without viable alternatives for many
residents.\168\ The ban was thus reminiscent of total bans
on leafleting, distribution of literature, and door-to-door
solicitation that the Court had struck down in the 1930s and
1940s. The prohibition in Vincent was distinguished as not
removing a ``uniquely valuable or important mode of
communication,'' and as not impairing citizens' ability to
communicate.\169\
---------------------------------------------------------------------------
\165\ 466 U.S. 789 (1984).
\166\ Justice Brennan argued in dissent that
adequate alternative forms of communication were not readily
available because handbilling or other person-to-person
methods would be substantially more expensive, and that the
regulation for the sake of aesthetics was not adequately
justified.
\167\ City of Ladue v. Gilleo, 512 U.S. 43 (1994).
\168\ 512 U.S. at 54, 57.
\169\ 512 U.S. at 54. The city's legitimate interest
in reducing visual clutter could be addressed by ``more
temperate'' measures, the Court suggested. Id. at 58.
SECOND AMENDMENT
[P. 1193, add to n.1:]
Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of
an Anglo-American Right (1994); Glenn Harlan Reynolds, A
Critical Guide to the Second Amendment, 62 Tenn. L. Rev. 461
(1995); William Van Alystyne, The Second Amendment and the
Personal Right to Bear Arms, 43 Duke L.J. 1236 (1994).
[P. 1194, add to n.7:]
See also Hickman v. Block, 81 F.3d 98 (9th Cir.)
(plaintiff lacked standing to challenge denial of permit to
carry concealed weapon, because Second Amendment is a right
held by States, not by private citizens), cert. denied 519
U.S. 912 (1996); United States v. Gomez, 92 F.3d 770, 775
n.7 (9th Cir. 1996) (interpreting federal prohibition on
possession of firearm by a felon as having a justification
defense ``ensures that [the provision] does not collide with
the Second Amendment''); United States v. Wright, 117 F.3d
1265 (11th Cir.), cert. denied 522 U.S. 1007 (1997) (member
of Georgia unorganized militia unable to establish that his
possession of machineguns and pipe bombs bore any connection
to the preservation or efficiency of a well regulated
militia).
[P. 1194, add to text at end of section:]
Pointing out that interest in the ``character of
the Second Amendment right has recently burgeoned,'' Justice
Thomas, concurring in the Court's invalidation (on other
grounds) of the Brady Handgun Violence Prevention Act,
questioned whether the Second Amendment bars federal
regulation of gun sales, and suggested that the Court might
determine ``at some future date . . . whether Justice Story
was correct . . . that the right to bear arms `has justly
been considered, as the palladium of the liberties of a
republic.' '' \1\
---------------------------------------------------------------------------
\1\ Printz v. United States, 521 U.S. 898, 937-39
(1997) (quoting 3 Commentaries Sec. 1890, p. 746 (1833)).
Justice Scalia, in extra-judicial writing, has sided with
the individual rights interpretation of the Amendment. See
Antonin Scalia, A Matter of Interpretation, Federal Courts
and the Law, 136-37 n.13 (A. Gutmann, ed., 1997) (responding
to Professor Tribe's critique of ``my interpretation of the
Second Amendment as a guarantee that the federal government
will not interfere with the individual's right to bear arms
for self-defense'').
FOURTH AMENDMENT
SEARCH AND SEIZURE
History and Scope of the Amendment
--The Interest Protected
[P. 1206, add to n.38 before Rakas v. Illinois citation, and
add parenthetical to Rakas citation:]
But cf. Minnesota v. Carter, 525 U.S. 83 (1998) (a
person present in someone else's apartment for only a few
hours for the purpose of bagging cocaine for later sale has
no legitimate expectation of privacy); Cf. Rakas v.
Illinois, 439 U.S. 128 (1978) (auto passengers demonstrated
no legitimate expectation of privacy in glove compartment or
under seat of auto).
[P. 1206, add to end of n.38:]
Property rights are still protected by the Amendment,
however. A ``seizure'' of property can occur when there is
some meaningful interference with an individual's possessory
interests in that property, and regardless of whether there
is any interference with the individual's privacy interest.
Soldal v. Cook County, 506 U.S. 56 (1992) (a seizure
occurred when sheriff's deputies assisted in the
disconnection and removal of a mobile home in the course of
an eviction from a mobile home park). The reasonableness of
a seizure, however, is an additional issue that may still
hinge on privacy interests. United States v. Jacobsen, 466
U.S. 109, 120-21 (1984) (DEA agents reasonably seized
package for examination after private mail carrier had
opened the damaged package for inspection, discovered
presence of contraband, and informed agents).
[P. 1206, add to n.39:]
Bond v. United States, 120 S. Ct. 1462, 1465 (2000).
--Searches and Inspections in Noncriminal Cases
[P. 1214, add to text following n.82:]
In another unusual case, the Court held that a
sheriff's assistance to a trailer park owner in
disconnecting and removing a mobile home constituted a
``seizure'' of the home.\1\
---------------------------------------------------------------------------
\1\ Soldal v. Cook County, 506 U.S. 56, 61 (1992)
(home ``was not only seized, it literally was carried away,
giving new meaning to the term `mobile home' '').
---------------------------------------------------------------------------
Searches and Seizures Pursuant to Warrant
--Probable Cause
[P. 1218, add to n.98:]
Similarly, the preference for proceeding by warrant
leads to a stricter rule for appellate review of trial court
decisions on warrantless stops and searches than is employed
to review probable cause to issue a warrant. Ornelas v.
United States, 517 U.S. 690 (1996) (determinations of
reasonable suspicion to stop and probable cause to search
without a warrant should be subjected to de novo appellate
review).
--Execution of Warrants
[P. 1226, delete first sentence of section and substitute
the following:]
The Fourth Amendment's ``general touchstone of
reasonableness . . . governs the method of execution of the
warrant.'' \2\ Until recently, however, most such issues
have been dealt with by statute and rule.\3\
---------------------------------------------------------------------------
\2\ United States v. Ramirez, 523 U.S. 65, 71
(1998).
\3\ Rule 41(c), Federal Rules of Criminal Procedure,
provides, inter alia, that the warrant shall be served in
the daytime, unless the magistrate ``for reasonable cause
shown'' directs in the warrant that it be served at some
other time. See Jones v. United States, 357 U.S. 493, 498-
500 (1958); Gooding v. United States, 416 U.S. 430 (1974). A
separate statutory rule applies to narcotics cases. 21
U.S.C. Sec. 879(a).
---------------------------------------------------------------------------
[P. 1227, add to text following sentence containing n.158:]
In Wilson v. Arkansas,\4\ the Court determined that
the common law ``knock and announce'' rule is an element of
the Fourth Amendment reasonableness inquiry. The ``rule'' is
merely a presumption, however, that yields under various
circumstances, including those posing a threat of physical
violence to officers, those in which a prisoner has escaped
and taken refuge in his dwelling, and those in which
officers have reason to believe that destruction of evidence
is likely. The test, articulated two years later in Richards
v. Wisconsin,\5\ is whether police have ``a reasonable
suspicion that knocking and announcing their presence, under
the particular circumstances, would be dangerous or futile,
or that it would inhibit the effective investigation of the
crime.'' In Richards, the Court held that there is no
blanket exception to the rule whenever officers are
executing a search warrant in a felony drug investigation;
instead, a case-by-case analysis is required to determine
whether no-knock entry is justified under the
circumstances.\6\
---------------------------------------------------------------------------
\4\ 514 U.S. 927 (1995).
\5\ 520 U.S. 385, 394 (1997).
\6\ The fact that officers may have to destroy
property in order to conduct a no-knock entry has no bearing
on the reasonableness of their decision not to knock and
announce. United States v. Ramirez, 523 U.S. 65 (1998).
---------------------------------------------------------------------------
[P. 1227, delete sentence containing n.159:]
[P. 1227, add to text following n.161:]
Because police actions in execution of a warrant
must be related to the objectives of the authorized
intrusion, and because privacy of the home lies at the core
of the Fourth Amendment, police officers violate the
Amendment by bringing members of the media or other third
parties into a home during execution of a warrant if
presence of those persons was not in aid of execution of the
warrant.\7\
---------------------------------------------------------------------------
\7\ Wilson v. Layne, 526 U.S. 603 (1999). Accord,
Hanlon v. Berger, 526 U.S. 808 (1999) (media camera crew
``ride-along'' with Fish and Wildlife Service agents
executing a warrant to search respondent's ranch for
evidence of illegal taking of wildlife).
---------------------------------------------------------------------------
Valid Searches and Seizures Without Warrants
--Detention Short of Arrest: Stop-and-Frisk
[P. 1230, add to n.12:]
Maryland v. Wilson, 519 U.S. 408, 413 (1997) (after
validly stopping car, officer may order passengers as well
as driver out of car; ``the same weighty interest in officer
safety is present regardless of whether the occupant of the
stopped car is a driver or passenger'').
[P. 1230, add to text following n.12:]
If, in the course of a weapons frisk, ``plain
touch'' reveals presence of an object that the officer has
probable cause to believe is contraband, the officer may
seize that object.\8\ The Court viewed the situation as
analogous to that covered by the ``plain view'' doctrine:
obvious contraband may be seized, but a search may not be
expanded to determine whether an object is contraband.\9\
Also impermissible is physical manipulation, without
reasonable suspicion, of a bus passenger's carry-on luggage
stored in an overhead compartment.\10\
---------------------------------------------------------------------------
\8\ Minnesota v. Dickerson, 508 U.S. 366 (1993).
\9\ 508 U.S. at 375, 378-79. In Dickerson the Court
held that seizure of a small plastic container that the
officer felt in the suspect's pocket was not justified; the
officer should not have continued the search, manipulating
the container with his fingers, after determining that no
weapon was present.
\10\ Bond v. United States, 120 S. Ct. 1462 (2000)
(bus passenger has reasonable expectation that, while other
passengers might handle his bag in order to make room for
their own, they will not ``feel the bag in an exploratory
manner'').
---------------------------------------------------------------------------
[P. 1231, add to n.16:]
Illinois v. Wardlow, 120 S. Ct. 673 (2000) (unprovoked
flight from high crime area upon sight of police produces
``reasonable suspicion'').
[P. 1231, add, after n.16, to end of sentence containing
n.16:]
, although the Court has held that an
uncorroborated, anonymous tip is insufficient basis for a
Terry stop, and that there is no ``firearms'' exception to
the reasonable suspicion requirement.\11\
---------------------------------------------------------------------------
\11\ Florida v. J.L., 120 S. Ct. 1375 (2000)
(reasonable suspicion requires that a tip be reliable in its
assertion of illegality, not merely in its identification of
someone).
---------------------------------------------------------------------------
--Search Incident to Arrest
[P. 1235, add to text following n.37:]
If there is no custodial arrest, as in the case of
a routine traffic stop, the threat to officer safety is ``a
good deal less,'' and the scope of a permissible search is
also more limited.\12\
---------------------------------------------------------------------------
\12\ Knowles v. Iowa, 525 U.S. 113, 117 (1998)
(officers may order driver and passengers out of car, and
may conduct Terry-type pat down upon reasonable suspicion
that they may be armed and dangerous).
---------------------------------------------------------------------------
[P. 1237, change n.48 to read:]
437 U.S. 385, 390-91 (1978). Accord, Flippo v. West
Virginia, 120 S. Ct. 7 (1999) (per curiam).
--Vehicular Searches
[P. 1239, add to n.62:]
An automobile's ``ready mobility [is] an exigency
sufficient to excuse failure to obtain a search warrant once
probable cause is clear''; there is no need to find the
presence of ``unforeseen circumstances'' or other additional
exigency. Pennsylvania v. Labron, 518 U.S. 938, 940 (1996).
Accord, Maryland v. Dyson, 527 U.S. 465 (1999) (per curiam).
[P. 1239, delete text accompanying n.63, and substitute the
following:]
and they may not make random stops of vehicles on
the roads, but instead must base stops of individual
vehicles on probable cause or some ``articulable and
reasonable suspicion'' \13\ of traffic or safety violation
or some other criminal activity.\14\
---------------------------------------------------------------------------
\13\ Delaware v. Prouse, 440 U.S. 648, 663 (1979)
(discretionary random stops of motorists to check driver's
license and registration papers and safety features of cars
constitute Fourth Amendment violation); United States v.
Brignoni-Ponce, 422 U.S. 873 (1975) (violation for roving
patrols on lookout for illegal aliens to stop vehicles on
highways near international borders when only ground for
suspicion is that occupants appear to be of Mexican
ancestry). In Prouse, the Court cautioned that it was not
precluding the States from developing methods for spot
checks, such as questioning all traffic at roadblocks, that
involve less intrusion or that do not involve unconstrained
exercise of discretion. 440 U.S. at 663.
\14\ An officer who observes a traffic violation may
stop a vehicle even if his real motivation is to investigate
for evidence of other crime. Whren v. United States, 517
U.S. 806 (1996). The existence of probable cause to believe
that a traffic violation has occurred establishes the
constitutional reasonableness of traffic stops regardless of
the actual motivation of the officers involved, and
regardless of whether it is customary police practice to
stop motorists for the violation observed.
---------------------------------------------------------------------------
[P. 1240, add to text following n.66:]
Although officers who have stopped a car to issue a
routine traffic citation may conduct a Terry-type search,
even including a pat down of driver and passengers if there
is reasonable suspicion that they are armed and dangerous,
they may not conduct a full-blown search of the car.\15\
---------------------------------------------------------------------------
\15\ Knowles v. Iowa, 525 U.S. 113 (1998)
(invalidating an Iowa statute permitting a full-blown search
incident to a traffic citation).
---------------------------------------------------------------------------
[P. 1240, add new footnote at end of first sentence in first
full paragraph:]
The same rule applies if it is the vehicle itself that
is forfeitable contraband; police, acting without a warrant,
may seize the vehicle from a public place. Florida v. White,
526 U.S. 559 (1999).
[P. 1240, change sentence ending with n.70 to read:
Police in undertaking a warrantless search of an
automobile may not extend the search to the persons of the
passengers therein \16\ unless there is a reasonable
suspicion that the passengers are armed and dangerous, in
which case a Terry pat down is permissible.\17\
---------------------------------------------------------------------------
\16\ United States v. Di Re, 332 U.S. 581 (1948);
Ybarra v. Illinois, 444 U.S. 85, 94-96 (1979).
\17\ Knowles v. Iowa, 525 U.S. Ct. 113, 118 (1999).
---------------------------------------------------------------------------
[P. 1240, change sentences beginning after n.71 to read:]
Luggage and other closed containers found in
automobiles may also be subjected to warrantless searches
based on probable cause, regardless of whether the luggage
or containers belong to the driver or to a passenger, and
regardless of whether it is the driver or a passenger who is
under suspicion.\18\ The same rule now applies whether . . .
.''
---------------------------------------------------------------------------
\18\ Wyoming v. Houghton, 526 U.S. 295, 307 (1999)
(``police officers with probable cause to search a car may
inspect passengers' belongings found in the car that are
capable of concealing the object of the search'').
---------------------------------------------------------------------------
--Consent Searches
P. 1242, add to n.82:]
Ohio v. Robinette, 519 U.S. 33 (1996) (officer need not
always inform a detained motorist that he is free to go
before consent to search auto may be deemed voluntary).
--Drug Testing
[P. 1249, substitute for paragraph beginning after n.128:]
Emphasizing the ``special needs'' of the public
school context, reflected in the ``custodial and tutelary''
power that schools exercise over students, and also noting
schoolchildren's diminished expectation of privacy, the
Court in Vernonia School District v. Acton \19\ upheld a
school district's policy authorizing random urinalysis drug
testing of students who participate in interscholastic
athletics. The Court redefined the term ``compelling''
governmental interest. The phrase does not describe a
``fixed, minimum quantum of governmental concern,'' the
Court explained, but rather ``describes an interest which
appears important enough to justify the particular search at
hand.'' \20\ Applying this standard, the Court concluded
that ``deterring drug use by our Nation's schoolchildren is
at least as important as enhancing efficient enforcement of
the Nation's laws against the importation of drugs . . . or
deterring drug use by engineers and trainmen.'' \21\ On the
other hand, the interference with privacy interests was not
great, the Court decided, since schoolchildren are routinely
required to submit to various physical examinations and
vaccinations. Moreover, ``[l]egitimate privacy expectations
are even less [for] student athletes,'' since they normally
suit up, shower, and dress in locker rooms that afford no
privacy, and since they voluntarily subject themselves to
physical exams and other regulations above and beyond those
imposed on non-athletes.\22\ The Court ``caution[ed] against
the assumption that suspicionless drug testing will readily
pass muster in other contexts,'' identifying as ``the most
significant element'' in Vernonia the fact that the policy
was implemented under the government's responsibilities as
guardian and tutor of schoolchildren.\23\
---------------------------------------------------------------------------
\19\ 515 U.S. 646 (1995).
\20\ Id. at 661.
\21\ Id.
\22\ Id. at 657.
\23\ Id. at 665.
---------------------------------------------------------------------------
No ``special needs'' justified Georgia's
requirement that candidates for state office certify that
they had passed a drug test, the Court ruled in Chandler v.
Miller.\24\ Rather, the Court concluded that Georgia's
requirement was ``symbolic'' rather than ``special.'' There
was nothing in the record to indicate any actual fear or
suspicion of drug use by state officials, the required
certification was not well designed to detect illegal drug
use, and candidates for state office, unlike the customs
officers held subject to drug testing in Von Raab, are
subject to ``relentless'' public scrutiny.
---------------------------------------------------------------------------
\24\ 520 U.S. 305 (1997).
---------------------------------------------------------------------------
Enforcing the Fourth Amendment: The Exclusionary Rule
--Narrowing Application of the Exclusionary Rule
[P. 1267, add to n.211:]
Similarly, the exclusionary rule does not require
suppression of evidence that was seized incident to an
arrest that was the result of a clerical error by a court
clerk. Arizona v. Evans, 514 U.S. 1 (1995).
[P. 1267, add to text following n.213:]
The rule is inapplicable in parole revocation
hearings.\25\
---------------------------------------------------------------------------
\25\ Pennsylvania Bd. of Probation and Parole v.
Scott, 524 U.S. 357 (1998).
---------------------------------------------------------------------------
--Operation of the Rule: Standing
[P. 1270, add to n.229 following citation to Rakas v.
Illinois:]
United States v. Padilla, 508 U.S. 77 (1993) (only
persons whose privacy or property interests are violated may
object to a search on Fourth Amendment grounds; exerting
control and oversight over property by virtue of
participation in a criminal conspiracy does not alone
establish such interests).
FIFTH AMENDMENT
DOUBLE JEOPARDY
Development and Scope
[P. 1282, n.59, delete citation to One Lot Emerald Cut
Stones case]
[P. 1283, n.60, delete citation to 89 Firearms case and
add:]
Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767
(1994) (tax on possession of illegal drugs, ``to be
collected only after any state or federal fines or
forfeitures have been satisfied,'' constitutes punishment
for purposes of double jeopardy).
[P. 1283, add to text following n.60:]
Ordinarily, however, civil in rem forfeiture
proceedings may not be considered punitive for purposes of
double jeopardy analysis,\1\ and the same is true of civil
commitment following expiration of a prison term.\2\
---------------------------------------------------------------------------
\1\ United States v. Ursery, 518 U.S. 267 (1996)
(forfeitures, pursuant to 19 U.S.C. Sec. 981 and 21 U.S.C.
Sec. 881, of property used in drug and money laundering
offenses, are not punitive). The Court in Ursery applied
principles that had been set forth in Various Items of
Personal Property v. United States, 282 U.S. 577 (1931)
(forfeiture of distillery used in defrauding government of
tax on spirits); One Lot Emerald Cut Stones v. United
States, 409 U.S. 232 (1972) (per curiam) (forfeiture of
jewels brought into United States without customs
declaration); and United States v. One Assortment of 89
Firearms, 465 U.S. 354 (1984) (forfeiture, pursuant to 18
U.S.C. Sec. 924(d), of firearms ``used or intended to be
used in'' firearms offenses). A two-part inquiry is
followed. First, the Court inquires whether Congress
intended the forfeiture proceeding to be civil or criminal.
Then, if Congress intended that the proceeding be civil, the
court determines whether there is nonetheless the ``clearest
proof'' that the sanction is ``so punitive'' as to transform
it into a criminal penalty. 89 Firearms, supra, 465 U.S. at
366.
\2\ Kansas v. Hendricks, 521 U.S. 346, 369-70 (1997)
(commitment under State's Sexually Violent Predator Act).
---------------------------------------------------------------------------
Reprosecution Following Acquittal
--Acquittal by Jury
[P. 1290, add footnote to end of first sentence in section:]
What constitutes a jury acquittal may occasionally be
uncertain. In Schiro v. Farley, 510 U.S. 222 (1994), the
Court ruled that a jury's action in leaving the verdict
sheet blank on all but one count did not amount to an
acquittal on those counts, and that consequently conviction
on the remaining count, alleged to be duplicative of one of
the blank counts, could not constitute double jeopardy. In
any event, the Court added, no successive prosecution
violative of double jeopardy could result from an initial
sentencing proceeding in the course of an initial
prosecution.
Reprosecution Following Conviction
--Sentence Increases
P. 1296, add to n.131:]
In Monge v. California, 524 U.S. 721 (1998), the Court
refused to extend the ``narrow'' Bullington exception
outside the area of capital punishment.
[P. 1297, add new paragraph to text following n.133:]
The Court is also quite deferential to legislative
classification of recidivism sentencing enhancement factors
as relating only to sentencing and as not constituting
elements of an ``offense'' that must be proved beyond a
reasonable doubt. Ordinarily, therefore, sentence
enhancements cannot be construed as additional punishment
for the previous offense, and the Double Jeopardy Clause is
not implicated. ``Sentencing enhancements do not punish a
defendant for crimes for which he was not convicted, but
rather increase his sentence because of the manner in which
he committed his crime of conviction.'' \3\
---------------------------------------------------------------------------
\3\ United States v. Watts, 519 U.S. 148, 154 (1997)
(relying on Witte v. United States, 515 U.S. 389 (1995), and
holding that a sentencing court may consider earlier conduct
of which the defendant was acquitted, so long as that
conduct is proved by a preponderance of the evidence). See
also Almendarez-Torres v. United States, 523 U.S. 224 (1998)
(Congress' decision to treat recidivism as a sentencing
factor does not violate due process); Monge v. California,
524 U.S. 721 (1998) (retrial is permissible following
appellate holding of failure of proof relating to sentence
enhancement). Justice Scalia, whose dissent in Almendarez-
Torres argued that there was constitutional doubt over
whether recidivism factors that increase a maximum sentence
must be treated as a separate offense for double jeopardy
purposes (523 U.S. at 248), answered that question
affirmatively in his dissent in Monge. 524 U.S. at 740-41.
---------------------------------------------------------------------------
``For the Same Offence''
--Legislative Discretion as to Multiple Sentences
[P. 1299, add to n.142:]
But cf. Rutledge v. United States, 517 U.S. 292 (1996)
(21 U.S.C. Sec. 846, prohibiting conspiracy to commit drug
offenses, does not require proof of any fact that is not
also a part of the continuing criminal enterprise offense
under 21 U.S.C. Sec. 848, so there are not two separate
offenses).
--Successive Prosecutions for the Same Offense
[P. 1300, substitute for the two sentences immediately
following n.150:]
In 1990, the Court modified the Brown approach,
stating that the appropriate focus is on same conduct rather
than same evidence.\4\ That interpretation held sway only
three years, however, before being repudiated as ``wrong in
principle [and] unstable in application.'' \5\
---------------------------------------------------------------------------
\4\ Grady v. Corbin, 495 U.S. 508 (1990) (holding
that the State could not prosecute a traffic offender for
negligent homicide because it would attempt to prove conduct
for which the defendant had already been prosecuted--driving
while intoxicated and failure to keep to the right of the
median). A subsequent prosecution is barred, the Court
explained, if the government, to establish an essential
element of an offense, will prove conduct that constitutes
an offense for which the defendant has already been
prosecuted. Id. at 521.
\5\ United States v. Dixon, 509 U.S. 688, 709 (1993)
(applying Blockburger test to determine whether prosecution
for a crime, following conviction for criminal contempt for
violation of a court order prohibiting that crime,
constitutes double jeopardy).
---------------------------------------------------------------------------
[P. 1301, add to n.154:]
The fact that Felix constituted a ``large exception'' to
Grady was one of the reasons the Court cited in overruling
Grady. United States v. Dixon, 509 U.S. 688, 709-10 (1993).
[P. 1301, add to text following n.154:]
For double jeopardy purposes, a defendant is
``punished . . . only for the offense of which [he] is
convicted''; a later prosecution or later punishment is not
barred simply because the underlying criminal activity has
been considered at sentencing for a different offense.\6\
Similarly, recidivism-based sentence enhancement does not
constitute multiple punishment for the ``same'' prior
offense, but instead is a stiffened penalty for the later
crime.\7\
---------------------------------------------------------------------------
\6\ Witte v. United States, 515 U.S. 389 (1995)
(consideration of defendant's alleged cocaine dealings in
determining sentence for marijuana offenses does not bar
subsequent prosecution on cocaine charges).
\7\ Monge v. California, 524 U.S. 721, 728 (1998).
---------------------------------------------------------------------------
SELF-INCRIMINATION
Development and Scope
[P. 1306, add to text following n.177:]
Incrimination is not complete once guilt has been
adjudicated, and hence the privilege may be asserted during
the sentencing phase of trial.\8\
---------------------------------------------------------------------------
\8\ Estelle v. Smith, 451 U.S. 454, 462-63 (1981)
(``We can discern no basis to distinguish between the guilt
and penalty phases of respondent's capital murder trial so
far as the protection of the Fifth Amendment privilege is
concerned''); Mitchell v. United States, 526 U.S. 314 (1999)
(non-capital sentencing).
---------------------------------------------------------------------------
[P. 1307, add to n.180:]
Two Justices recently challenged the interpretation
limiting application to ``testimonial'' disclosures,
claiming that the original understanding of the word
``witness'' was not limited to someone who gives testimony,
but included someone who gives any kind of evidence. United
States v. Hubbell, 120 S. Ct. 2037, 2050 (2000) (Justice
Thomas, joined by Justice Scalia, concurring).
[P. 1307, delete n.181 and add to text following sentence
that contained n.181:]
A person may be compelled to produce specific
documents even though they contain incriminating
information.\9\ If, however, the existence of specific
documents is not known to the government, and the act of
production informs the government about the existence,
custody, or authenticity of the documents, then the
privilege is implicated.\10\ Application of these principles
resulted in a holding that the Independent Counsel could not
base a prosecution on incriminating evidence identified and
produced as the result of compliance with a broad subpoena
for all information relating to the individual's income,
employment, and professional relationships.\11\
---------------------------------------------------------------------------
\9\ Fisher v. United States, 425 U.S. 391 (1976).
Compelling a taxpayer by subpoena to produce documents
produced by his accountants from his own papers does not
involve testimonial self-incrimination and is not barred by
the privilege. ``[T]he Fifth Amendment does not
independently proscribe the compelled production of every
sort of incriminating evidence but applies only when the
accused is compelled to make a testimonial communication
that is incriminating.'' Id. at 408 (emphasis by Court).
Even further removed from the protection of the privilege is
seizure pursuant to a search warrant of business records in
the handwriting of the defendant. Andresen v. Maryland, 427
U.S. 463 (1976). A court order compelling a target of a
grand jury investigation to sign a consent directive
authorizing foreign banks to disclose records of any and all
accounts over which he had a right of withdrawal is not
testimonial in nature, since the factual assertions are
required of the banks and not of the target. Doe v. United
States, 487 U.S. 201 (1988).
\10\ In United States v. Doe, 465 U.S. 605 (1984),
the Court distinguished Fisher, upholding lower courts'
findings that the act of producing tax records implicates
the privilege because it would compel admission that the
records exist, that they were in the taxpayer's possession,
and that they are authentic. Similarly, a juvenile court's
order to produce a child implicates the privilege, because
the act of compliance ``would amount to testimony regarding
[the subject's] control over and possession of [the
child].'' Baltimore Dep't of Social Services v. Bouknight,
493 U.S. 549, 555 (1990).
\11\ United States v. Hubbell, 120 S. Ct. 2037
(2000).
---------------------------------------------------------------------------
[P. 1309, add to n.190:]
In determining whether a state prisoner is entitled to
federal habeas corpus relief because the prosecution
violated due process by using his post-Miranda silence for
impeachment purposes at trial, the proper standard for
harmless-error review is that announced in Kotteakos v.
United States, 328 U.S. 750, 776 (1946)--whether the due
process error ``had substantial and injurious effect or
influence in determining the jury's verdict--not the
stricter ``harmless beyond a reasonable doubt'' standard of
Chapman v. California, 386 U.S. 18, 24 (1967), applicable on
direct review. Brecht v. Abrahamson, 507 U.S. 619 (1993).
[P. 1311, add to text at end of section:]
There is no ``cooperative internationalism'' that
parallels the cooperative federalism and cooperative
prosecution on which application against States is premised,
and consequently concern with foreign prosecution is beyond
the scope of the Self-Incrimination Clause.\12\
---------------------------------------------------------------------------
\12\ United States v. Balsys, 524 U.S. 666 (1998).
---------------------------------------------------------------------------
The Power to Compel Testimony and Disclosure
--Immunity
[P. 1315, add to n.224:]
See also United States v. Hubbell, 120 S. Ct. 2037
(2000) (because the statute protects against derivative use
of compelled testimony, a prosecution cannot be based on
incriminating evidence revealed only as the result of
compliance with an extremely broad subpoena).
Confessions: Police Interrogation, Due Process, and Self-
Incrimination
--Miranda v. Arizona
[P. 1332, delete all of first paragraph after first
sentence, and add the following new paragraphs:]
For years, the constitutional status of the Miranda
warnings was clouded in uncertainty. Had the Court announced
a constitutional rule, or merely set forth supervisory rules
that could be superseded by statutory rules? The fact that
Miranda itself applied the rules to a state court
proceeding, and that the Court in subsequent cases
consistently applied the warnings to state proceedings, was
strong evidence of constitutional moorings. In 1968,
however, Congress enacted a statute designed to set aside
Miranda in the federal courts and to reinstate the
traditional voluntariness test.\13\ The statute lay
unimplemented, for the most part, due to constitutional
doubts about it. The Court also created exceptions to the
Miranda warnings over the years, and referred to the
warnings as ``prophylactic'' \14\ and ``not themselves
rights protected by the Constitution.'' \15\ There were even
hints that some Justices might be willing to overrule the
decision.
---------------------------------------------------------------------------
\13\ Pub. L. No. 90-351, Sec. 701(a), 82 Stat. 210,
18 U.S.C. Sec. 3501. See S. Rep. No. 1097, 90th Cong., 2d
Sess. 37-53 (1968). An effort to enact a companion measure
applicable to the state courts was defeated.
\14\ New York v. Quarles, 467 U.S. 549, 653 (1984).
\15\ Michigan v. Tucker, 417 U.S. 433, 444 (1974).
---------------------------------------------------------------------------
In Dickerson v. United States,\16\ the Court
resolved the basic issue, holding that Miranda was a
constitutional decision that could not be overturned by
statute, and consequently that 18 U.S.C. Sec. 3501 was
unconstitutional. Application of Miranda warnings to state
proceedings necessarily implied a constitutional base, the
Court explained, since federal courts ``hold no supervisory
authority over state judicial proceedings.'' \17\ Moreover,
Miranda itself had purported to ``give concrete
constitutional guidance to law enforcement agencies and
courts to follow.'' \18\ That the Miranda rules are
constitution-based does not mean that they are
``immutable,'' however. The Court repeated its invitation
for legislative action that would be ``at least as
effective'' in protecting a suspect's right to remain silent
during custodial interrogation. Section 3501, however,
merely reinstated the ``totality-of-the-circumstances'' rule
held inadequate in Miranda, so that provision could not be
considered as effective as the Miranda warnings.
---------------------------------------------------------------------------
\16\ 120 S. Ct. 2326 (2000).
\17\ 120 S. Ct. at 2333.
\18\ 120 S. Ct. at 2334 (quoting from Miranda, 384
U.S. at 441-42).
---------------------------------------------------------------------------
The Dickerson Court also rejected a request to
overrule Miranda. ``Whether or not we would agree with
Miranda's reasoning and its resulting rule, were we
addressing the issue in the first instance,'' Chief Justice
Rehnquist wrote for a seven-Justice majority, ``the
principles of stare decisis weigh heavily against overruling
it now.'' There was no special justification for overruling
the decision; subsequent cases had not undermined the
decision's doctrinal underpinnings, but rather had
``reaffirm[ed]'' its ``core ruling.'' Moreover, Miranda
warnings had ``become so embedded in routine police practice
[that they] have become part of our national culture.'' \19\
---------------------------------------------------------------------------
\19\ 120 S. Ct. at 2336.
---------------------------------------------------------------------------
[P. 1332, substitute for paragraph that carries over to P.
1333:]
Although the Court had suggested in 1974 that most
Miranda claims could be disallowed in federal habeas corpus
cases,\20\ such a course was squarely rejected in 1993. The
Stone v. Powell \21\ rule, precluding federal habeas corpus
review of a state prisoner's claim that his conviction rests
on evidence obtained through an unconstitutional search or
seizure, does not extend to preclude federal habeas review
of a state prisoner's claim that his conviction had been
obtained in violation of Miranda safeguards, the Court ruled
in Withrow v. Williams.\22\ The Miranda rule differs from
the Mapp v. Ohio \23\ exclusionary rule denied enforcement
in Stone, the Court explained. While both are prophylactic
rules, Miranda unlike Mapp, safeguards a fundamental trial
right, the privilege against self-incrimination. Miranda
also protects against the use at trial of unreliable
statements, hence, unlike Mapp, relates to the correct
ascertainment of guilt.\24\ A further consideration was that
eliminating review of Miranda claims would not significantly
reduce federal habeas review of state convictions, since
most Miranda claims could be recast in terms of due process
denials resulting from admission of involuntary
confessions.\25\
---------------------------------------------------------------------------
\20\ In Michigan v. Tucker, 417 U.S. 433, 439
(1974), the Court had suggested a distinction between a
constitutional violation and a violation of ``the
prophylactic rules developed to protect that right.'' The
actual holding in Tucker, however, had turned on the fact
that the interrogation had preceded the Miranda decision and
that warnings--albeit not full Miranda warnings--had been
given.
\21\ 428 U.S. 465 (1976).
\22\ 507 U.S. 680 (1993).
\23\ 367 U.S. 643 (1961).
\24\ 507 U.S. at 691-92.
\25\ Id. at 693.
---------------------------------------------------------------------------
[P. 1334, add to text following n.324:]
Whether a person is ``in custody'' is an objective
test assessed in terms of how a reasonable person in the
suspect's shoes would perceive his or her freedom to leave;
a police officer's subjective and undisclosed view that a
person being interrogated is a suspect is not relevant for
Miranda purposes.\26\
---------------------------------------------------------------------------
\26\ Stansbury v. California, 511 U.S. 318 (1994).
---------------------------------------------------------------------------
[P. 1338, add to text following n.344:]
After a suspect has knowingly and voluntarily
waived his Miranda rights, police officers may continue
questioning until and unless the suspect clearly requests an
attorney.\27\
---------------------------------------------------------------------------
\27\ Davis v. United States, 512 U.S. 452 (1994)
(suspect's statement that ``maybe I should talk to a
lawyer,'' uttered after Miranda waiver and after an hour and
a half of questioning, did not constitute such a clear
request for an attorney when, in response to a direct
follow-up question, he said ``no, I don't want a lawyer'').
---------------------------------------------------------------------------
The Operation of the Exclusionary Rule
--Supreme Court Review
[P. 1341, add to text at end of section:]
In Withrow v. Williams,\28\ the Court held that the
rule of Stone v. Powell,\29\ precluding federal habeas
corpus review of a state prisoner's claim that his
conviction rests on evidence obtained through an
unconstitutional search or seizure, does not extend to
preclude federal habeas review of a state prisoner's claim
that his conviction rests on statements obtained in
violation of the safeguards mandated by Miranda.
---------------------------------------------------------------------------
\28\ 507 U.S. 680 (1993).
\29\ 428 U.S. 465 (1976). See main text, pp. 1265-
66.
---------------------------------------------------------------------------
DUE PROCESS
Substantive Due Process
--Discrimination
[P. 1358, add to n.75 following Richardson v. Belcher
citation:]
FCC v. Beach Communications, 508 U.S. 307 (1993)
(exemption from cable TV regulation of facilities that serve
only dwelling units under common ownership).
--Retroactive Taxes
[P. 1364, substitute for last paragraph in section:]
Although the Court during the 1920s struck down
gift taxes imposed retroactively upon gifts that were made
and completely vested before the enactment of the taxing
statute,\30\ those decisions have recently been
distinguished, and their precedential value limited.\31\ In
United States v. Carlton, the Court declared that ``[t]he
due process standard to be applied to tax statutes with
retroactive effect . . . is the same as that generally
applicable to retroactive economic legislation''--
retroactive application of legislation must be shown to be
``justified by a rational legislative purpose.'' \32\
Applying that principle, the Court upheld retroactive
application of a 1987 amendment limiting application of a
federal estate tax deduction originally enacted in 1986.
Congress' purpose was ``neither illegitimate nor
arbitrary,'' the Court noted, since Congress had acted ``to
correct what it reasonably viewed as a mistake in the
original 1986 provision that would have created a
significant and unanticipated revenue loss.'' Also,
``Congress acted promptly and established only a modest
period of retroactivity.'' The fact that the taxpayer had
transferred stock in reliance on the original enactment was
not dispositive, since ``[t]ax legislation is not a promise,
and a taxpayer has no vested right in the Internal Revenue
Code.'' \33\
---------------------------------------------------------------------------
\30\ Untermyer v. Anderson, 276 U.S. 440 (1928);
Blodgett v. Holden, 275 U.S. 142 (1927), modified, 276 U.S.
594 (1928); Nichols v. Coolidge, 274 U.S. 531 (1927). See
also Heiner v. Donnan, 285 U.S. 312 (1932) (invalidating as
arbitrary and capricious a conclusive presumption that gifts
made within two years of death were made in contemplation of
death).
\31\ Untermyer was distinguished in United States v.
Hemme, 476 U.S. 558, 568 (1986), upholding retroactive
application of unified estate and gift taxation to a
taxpayer as to whom the overall impact was minimal and not
oppressive. All three cases were distinguished in United
States v. Carlton, 512 U.S. 26, 30 (1994), as having been
``decided during an era characterized by exacting review of
economic legislation under an approach that `has long since
been discarded.' '' The Court noted further that Untermyer
and Blodgett had been limited to situations involving
creation of a wholly new tax, and that Nichols had involved
a retroactivity period of 12 years. Id.
\32\ 512 U.S. 26, 30 (1994) (quoting Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 16-17 (1976)). These
principles apply to estate and gift taxes as well as to
income taxes, the Court added. 512 U.S. at 34.
\33\ 512 U.S. at 33.
---------------------------------------------------------------------------
--Deprivation of Property: Retroactive Legislation
[P. 1365, add to n.130:]
Concrete Pipe & Products v. Construction Laborers
Pension Trust, 508 U.S. 602, 636-41 (1993) (imposition of
multiemployer pension plan withdrawal liability on an
employer is not irrational, even though none of its
employees had earned vested benefits by the time of
withdrawal). In Eastern Enterprises v. Apfel, 524 U.S. 498
(1998), the challenge was to a statutory requirement that
companies formerly engaged in mining pay miner retiree
health benefits, as applied to a company that had placed its
mining operations in a wholly owned subsidiary three decades
earlier, before labor agreements included an express promise
of lifetime benefits. In a fractured opinion, the justices
ruled 5 to 4 that the scheme's severe retroactive effect
offended the Constitution, though differing on the governing
clause. Four of the majority justices based the judgment
solely on takings law, while opining that ``there is a
question'' whether the statute violated due process as well.
The remaining majority justice, and the four dissenters,
viewed substantive due process as the sole appropriate
framework for resolving the case, but disagreed on whether a
violation had occurred.
[P. 1366, add to n.138:]
The Court has addressed similar issues under breach of
contract theory. United States v. Winstar Corp., 518 U.S.
839 (1996).
NATIONAL EMINENT DOMAIN POWER
When Property Is Taken
--Regulatory Takings
[P. 1387, add to n.277 after initial citation:]
Accord, Concrete Pipe & Products v. Construction
Laborers Pension Trust, 508 U.S. 602, 645-46 (1993).
[P. 1387, add to text at end of sentence containing n.277:]
However, where a statute imposes severe and
``substantially disproportionate'' retroactive liability
based on conduct several decades earlier, on parties that
could not have anticipated the liability, a taking (or
violation of due process) may occur. On this rationale, the
Court in Eastern Enterprises v. Apfel \34\ struck down the
Coal Miner Retiree Health Benefit Act's requirement that
companies formerly engaged in mining pay miner retiree
health benefits, as applied to a company that spun off its
mining operation in 1965 before collective bargaining
agreements included an express promise of lifetime benefits.
---------------------------------------------------------------------------
\34\ 524 U.S. 498 (1998). The split doctrinal basis
of Eastern Enterprises undercuts its precedent value, and
that of Connolly and Concrete Pipe, for takings law. A
majority of the justices (one supporting the judgment and
four dissenters) found substantive due process, not takings
law, to provide the analytical framework where, as in
Eastern Enterprises, the gravamen of the complaint is the
unfairness and irrationality of the statute, rather than its
economic impact.
---------------------------------------------------------------------------
[P. 1391, delete remainder of paragraph after n.299 and
substitute the following:]
``If [the government] wants an easement across the
Nollans' property, it must pay for it.'' \35\ Because the
Nollan Court found no essential nexus between the permit
condition and the asserted government interest, it did not
address whether there is any additional requirement when
such a nexus does exist, as is often the case with land
dedications and other permit conditions.\36\ Seven years
later, however, the Court announced in Dolan v. City of
Tigard \37\ that exaction conditions attached to development
permits must be related to the impact of the proposed
development not only in nature but also in degree.
Government must establish a ``rough proportionality''
between such conditions and the developmental impacts at
which they are aimed.\38\ The Court ruled in Dolan that the
city's conditioning of a building permit for expansion of a
hardware store on the store owner's dedication of a portion
of her land for a floodplain/recreational easement and for
an adjacent pedestrian/bicycle pathway amounted to a taking.
The requisite nexus existed between the city's interest in
flood control and imposition of the floodplain easement, and
between the interest in minimizing traffic congestion and
the required bike path dedication, but the Court found that
the city had not established a rough proportionality of
degree. The floodplain/recreational easement not only
prevented the property owner from building in the
floodplain--a legitimate constraint--but also deprived her
of the right to exclude others. And the city had not
adequately demonstrated that the bike path was necessitated
by the additional vehicle and bicycle trips that would be
generated by the applicant's development.\39\
---------------------------------------------------------------------------
\35\ 483 U.S. at 842.
\36\ Justice Scalia, author of the Court's opinion
in Nollan, amplified his views in a concurring and
dissenting opinion in Pennell v. City of San Jose, 485 U.S.
1 (1988), explaining that ``common zoning regulations
requiring subdividers to observe lot-size and set-back
restrictions, and to dedicate certain areas to public
streets, are in accord with [constitutional requirements]
because the proposed property use would otherwise be the
cause of'' the social evil (e.g., congestion) that the
regulation seeks to remedy. By contrast, the Justice
asserted, a rent control restriction pegged to individual
tenant hardship lacks such cause-and-effect relationship and
is in reality an attempt to impose on a few individuals
public burdens that ``should be borne by the public as a
whole.'' 485 U.S. at 20, 22.
\37\ 512 U.S. 374 (1994).
\38\ 512 U.S. at 391. Justice Stevens' dissent
criticized the Court's ``abandon[ment of] the traditional
presumption of constitutionality and imposi[tion of] a novel
burden of proof on [the] city.'' Id. at 405. The Court
responded by distinguishing between challenges to generally
applicable zoning regulations, where the burden
appropriately rests on the challenging party, and imposition
of property exactions through adjudicative proceedings,
where ``the burden properly rests on the city.'' Id. at 391
n.8. As for the standard of proof, the Court looked to state
law and rejected the two extremes--a generalized statement
of connection deemed ``too lax'' to protect the Fifth
Amendment right to just compensation, and a ``specific and
uniquely attributable'' test deemed too exacting. Instead,
the Court chose an ``intermediate position'' requiring a
showing of ``reasonable relationship,'' but recharacterized
it as ``rough proportionality'' in order to avoid confusion
with ``rational basis.'' Id. at 391.
\39\ The city had quantified the traffic increases
that could be expected from the development, but had merely
speculated that construction of the bike path ``could
offset'' some of that increase. While ``[n]o precise
mathematical calculation is required,'' the Court concluded,
``the city must make some effort to quantify its findings in
support of the dedication.'' Id. at 395-96.
---------------------------------------------------------------------------
Nollan and Dolan occasioned considerable debate
over the breadth of what became known as the ``heightened
scrutiny'' test. The stakes were plainly high, in that the
test, where it applies, lessens the traditional judicial
deference to local police power and places the burden of
proof as to rough proportionality on the government. In City
of Monterey v. Del Monte Dunes at Monterey, Ltd.,\40\ the
Court unanimously confined the Dolan rough proportionality
test--and, by implication, the Nollan nexus test--to the
exaction context that gave rise to those cases. For certain,
then, is that City of Monterey bars application of rough
proportionality to outright denials of development. Still
unclear, however, is whether the Court meant to place
outside Dolan exactions of a purely monetary nature, in
contrast with the dedication conditions involved in Nollan
and Dolan.\41\
---------------------------------------------------------------------------
\40\ 526 U.S. 687 (1999).
\41\ City of Monterey also appears to give a lax
interpretation to the ``substantially advances a legitimate
government interest'' test of Agins, by endorsing jury
instructions interpreting ``substantially advance'' to
require only a ``reasonable relationship.'' 526 U.S. at 704.
Such a reading of City of Monterey, however, puts it
squarely at odds with Nollan, 483 U.S. at 834 n.3, where the
Court earlier stressed that ``substantially advance''
imposes a stricter standard than the due process one of
rational basis.
---------------------------------------------------------------------------
[P. 1393, add to text following n.306:]
Outside the land-use context, however, the Court
has now recognized a limited number of situations where
invalidation, rather than compensation, remains the
appropriate takings remedy.\42\
---------------------------------------------------------------------------
\42\ Eastern Enterprises v. Apfel, 524 U.S. 498
(1998) (statute imposing generalized monetary liability);
Babbitt v. Youpee, 519 U.S. 234 (1997) (amended statutory
requirement that small fractional interests in allotted
Indian lands escheat to tribe, rather than pass on to
heirs); Hodel v. Irving, 481 U.S. 704 (1987) (pre-amendment
version of escheat statute).
---------------------------------------------------------------------------
[P. 1394, change n.312 to read:]
Hodel v. Irving, 481 U.S. 704 (1987) (complete
abrogation of the right to pass on to heirs fractionated
interests in lands constitutes a taking); Babbitt v. Youpee,
519 U.S. 234 (1997) (same result based on ``severe''
restriction of the right).
[P. 1394, add to text after n.312:]
Nor must property have realizable net value to fall
under the Takings Clause.\43\
---------------------------------------------------------------------------
\43\ Phillips v. Washington Legal Foundation, 524
U.S. 156 (1998) (interest on client funds in state Interest
on Lawyers Trust Account program is property of client
within meaning of Takings Clause, though funds could not
generate net interest in absence of program).
---------------------------------------------------------------------------
[P. 1395, delete remainder of paragraph after n.314 and
substitute the following new paragraph:]
Failure to incur such administrative (and judicial)
delays can result in dismissal of an as-applied taking claim
based on ripeness doctrine, an area of takings law that the
Court has developed extensively since Penn Central. In the
leading decision of Williamson County Regional Planning
Commission v. Hamilton Bank,\44\ the Court announced the
canonical two-part ripeness test for takings actions brought
in federal court against state and local agencies. First,
for an as-applied challenge, the property owner must obtain
from the regulating agency a ``final, definitive position''
regarding how it will apply its regulation to the owner's
land. Second, the owner must exhaust any possibilities for
obtaining compensation from state fora before coming to
federal court. Thus, the claim in Williamson County was
found unripe because the plaintiff had failed to seek a
variance (first prong of test), and had not sought
compensation from the state courts in question even though
they recognized inverse condemnation claims (second prong).
Similarly, in MacDonald, Sommer & Frates v. County of
Yolo,\45\ a final decision was found lacking where the
landowner had been denied approval for one subdivision plan
calling for intense development, but that denial had not
foreclosed the possibility that a scaled-down (though still
economic) version would be approved.\46\ In a somewhat
different context, a taking challenge to a municipal rent
control ordinance was considered ``premature'' in the
absence of evidence that a tenant hardship provision had
ever been applied to reduce what would otherwise be
considered a reasonable rent increase.\47\ Facial challenges
dispense with the Williamson County final decision
prerequisite, though at great risk to the plaintiff in that
without pursuing administrative remedies, a claimant often
lacks evidence that a statute has the requisite economic
impact on his or her property.\48\
---------------------------------------------------------------------------
\44\ 473 U.S. 172 (1985).
\45\ 477 U.S. 340 (1986).
\46\ Most recently, the Court found the final-
decision prerequisite met in Suitum v. Tahoe Regional
Planning Agency, 520 U.S. 725 (1997). That threshold
showing, said the Court, did not demand that a landowner
first apply for approval of her sale of transferrable
development rights (TDRs) where the parties agreed on the
TDRs to which she was entitled and their value was simply an
issue of fact. Suitum is also significant for reaffirming
the two-prong Williamson County ripeness test, despite its
rigorous application by lower federal courts to avoid
reaching the merits in the majority of cases.
\47\ Pennell v. City of San Jose, 485 U.S. 1 (1988).
\48\ See, e.g., Hodel v. Virginia Surface Mining &
Reclamation Ass'n, 452 U.S. 264, 295-97 (1981) (facial
challenge to surface mining law rejected); United States v.
Riverside Bayview Homes, 474 U.S. 121, 127 (1985) (mere
permit requirement does not itself take property); Keystone
Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 493-502
(1987) (facial challenge to anti-subsidence mining law
rejected).
SIXTH AMENDMENT
RIGHT TO TRIAL BY IMPARTIAL JURY
Jury Trial
[P. 1408, change heading to:]
--The Attributes and Function of the Jury
[P. 1410, add to text following n.64:]
Certain functions of the jury are likely to remain
consistent between the federal and state court systems. For
instance, the requirement that a jury find a defendant
guilty beyond a reasonable doubt, which had already been
established under the Due Process Clause,\1\ has been held
to be a standard mandated by the Sixth Amendment.\2\ The
Court further held that the Fifth Amendment Due Process
Clause and the Sixth Amendment require that a jury find a
defendant guilty of every element of the crime with which he
is charged, including questions of mixed law and fact.\3\
Thus, a district court presiding over a case of providing
false statements to a federal agency in violation of 18
U.S.C. Sec. 1001 erred when it took the issue of the
``materiality'' of the false statement away from the
jury.\4\ Later, however, the Court backed off from this
latter ruling, holding that failure to submit the issue of
materiality to the jury in a tax fraud case can constitute
harmless error.\5\
---------------------------------------------------------------------------
\1\ See In re Winship, 397 U.S. 358, 364 (1970).
\2\ Sullivan v. Louisiana, 508 U.S. 275 (1993).
\3\ United States v. Gaudin, 515 U.S. 506 (1995).
\4\ Gaudin, 515 U.S. at 523.
\5\ Neder v. United States, 527 U.S. 1 (1999).
---------------------------------------------------------------------------
--Criminal Proceedings to Which the Guarantee Applies
[P. 1411, add to text following n.68:]
A defendant who is prosecuted in a single
proceeding for multiple petty offenses, however, does not
have a constitutional right to a jury trial, even if the
aggregate of sentences authorized for the offense exceeds
six months.\6\
---------------------------------------------------------------------------
\6\ Lewis v. United States, 518 U.S. 322 (1996).
---------------------------------------------------------------------------
[P. 1411, add to n.73:]
The distinction between criminal and civil contempt may
be somewhat more elusive. International Union, UMW v.
Bagwell, 512 U.S. 821 (1994) (fines levied on the union were
criminal in nature where the conduct did not occur in the
court's presence, the court's injunction required compliance
with an entire code of conduct, and the fines assessed were
not compensatory).
Impartial Jury
[P. 1416, add to n.104:]
The same rule applies in the federal setting. United
States v. Martinez-Salazar, 120 S. Ct. 774 (2000).
PLACE OF TRIAL--JURY OF THE VICINAGE
[P. 1419, add to text following n.128:]
Thus, a defendant cannot be tried in Missouri for
money-laundering if the charged offenses occurred in Florida
and there was no evidence that the defendant had been
involved with the receipt or transportation of the proceeds
from Missouri.\7\
---------------------------------------------------------------------------
\7\ United States v. Cabrales, 524 U.S. 1 (1998).
---------------------------------------------------------------------------
CONFRONTATION
[P. 1422, add to text following n.154:]
A prosecutor, however, can comment on a defendant's
presence at trial, and call attention to the defendant's
opportunity to tailor his or her testimony to comport with
that of previous witnesses.\8\
---------------------------------------------------------------------------
\8\ Portuondo v. Agard, 120 S. Ct. 1119 (2000).
---------------------------------------------------------------------------
[P. 1423, add to n.158:]
Bruton was held applicable, however, where a blank space
or the word ``deleted'' is substituted for the defendant's
name in a co-defendant's confession, making such confession
incriminating of the defendant on its face. Gray v.
Maryland, 523 U.S. 185 (1998).
[P. 1423, add to n.160:]
Lilly v. Virginia, 527 U.S. 116 (1999).
ASSISTANCE OF COUNSEL
Development of an Absolute Right to Counsel at Trial
--Gideon v. Wainwright
[P. 1435, n.217, delete citation and parenthetical to
Baldasar v. Illinois appearing after last semi-colon,
and insert the following:]
But see Nichols v. United States, 511 U.S. 738 (1994)
(as Scott v. Illinois, 440 U.S. 367 (1979) provides that an
uncounseled misdemeanor conviction is valid if defendant is
not incarcerated, such a conviction may be used as the basis
for penalty enhancement upon a subsequent conviction).
--Effective Assistance of Counsel
[P. 1439, add to n.244:]
In Hill v. Lockhart, 474 U.S. 52 (1985), the Court
applied the Strickland test to attorney decisions in plea
bargaining, holding that a defendant must show a reasonable
probability that, but for counsel's errors, he would not
have pleaded guilty.
[P. 1439, delete last sentence at end of first full
paragraph on page and add the following:]
In Lockhart v. Fretwell,\9\ the Court refined the
Strickland test to require that not only would a different
trial result be probable because of attorney performance,
but that the trial result which did occur was fundamentally
unfair or unreliable.\10\
---------------------------------------------------------------------------
\9\ 506 U.S. 364 (1993).
\10\ 506 U.S. at 368-70 (1993) (failure of counsel
to raise a constitutional claim that was valid at time of
trial did not constitute ``prejudice'' because basis of
claim had since been overruled).
---------------------------------------------------------------------------
[P. 1440, n.247, delete citation to Lozada v. Deeds and
accompanying sentence, and substitute the following:]
Also not constituting per se ineffective assistance is a
defense counsel's failure to file a notice of appeal, or
even to consult with the defendant about an appeal. Roe v.
Flores-Ortega, 120 S. Ct. 1029 (2000).
--Self-Representation
[P. 1440, add to text at end of first paragraph of section:]
The right applies only at trial; there is no
constitutional right to self-representation on direct appeal
from a criminal conviction.\11\
---------------------------------------------------------------------------
\11\ Martinez v. Court of App. of Cal., Fourth App.
Dist., 120 S. Ct. 684 (2000). The Sixth Amendment itself
``does not include any right to appeal.'' 120 S. Ct. at 690.
SEVENTH AMENDMENT
TRIAL BY JURY IN CIVIL CASES
Application of the Amendment
--Cases ``at Common Law''
[P. 1455, add to n.29:]
Feltner v. Columbia Pictures Television, 523 U.S. 340
(1998) (jury trial required for copyright action with close
analogue at common law, even though the relief sought is not
actual damages but statutory damages based on what is
``just).''
[P. 1455, add to text following n.30:]
Where there is no direct historical antecedent
dating to the adoption of the amendment, the court may also
consider whether existing precedent and the sound
administration of justice favor resolution by judges or
juries.\1\
---------------------------------------------------------------------------
\1\ Markman v. Westview Instruments, Inc., 517 U.S.
370 (1996) (interpretation and construction of terms
underlying patent claims may be reserved entirely for the
court).
---------------------------------------------------------------------------
--Procedures Limiting Jury's Role
[P. 1461, add to n.59:]
A federal appellate court may also review a district
court's denial of a motion to set aside an award as
excessive under an abuse of discretion standard. Gasperini
v. Center for Humanities, Inc., 518 U.S. 415 (1996) (New
York State law which requires a review of jury awards to
determine if they ``deviate materially from reasonable
compensation'' may be adopted by federal district, but not
appellate, court exercising diversity jurisdiction).
--Directed Verdicts
[P. 1461, add new footnote at end of sentence beginning
after n.61:]
But see Hetzel v. Prince William County, 523 U.S. 208
(1998) (when an appeals court affirms liability but orders
level of damages to be reconsidered, the plaintiff has a
Seventh Amendment right either to accept the reduced award
or to have a new trial).
EIGHTH AMENDMENT
EXCESSIVE FINES
[P. 1471, add to text following n.35:]
The Court has held, however, that the Excessive
Fines Clause can be applied in civil forfeiture cases.\1\
---------------------------------------------------------------------------
\1\ In Austin v. United States, 509 U.S. 602 (1993),
the Court noted that the application of the Excessive Fines
Clause to civil forfeiture did not depend on whether it was
a civil or criminal procedure, but rather on whether the
forfeiture could be seen as punishment. The Court was
apparently willing to consider any number of factors in
making this evaluation; civil forfeiture was found to be at
least partially intended as punishment, and thus limited by
the clause, based on its common law roots, its focus on
culpability, and various indications in the legislative
histories of its more recent incarnations.
---------------------------------------------------------------------------
[P. 1471, delete paragraph after n.35, and add the
following:]
In 1998, however, the Court discerned a previously
unseen vitality in the strictures of this clause. In United
States v. Bajakajian,\2\ the government sought to require
that a criminal defendant charged with violating federal
reporting requirements regarding the transportation of more
than $10,000 in currency out of the country forfeit the
currency involved, which totaled $357,144. The Court held
that the forfeiture \3\ in this particular case would
violate the Excessive Fines Clause and that the amount
forfeited was grossly disproportionate to the gravamen of
defendant's offense. In determining proportionality, the
Court did not limit itself to a comparison of the fine
amount to the proven offense, but it also considered the
particular facts of the case, the character of the
defendant, and the harm caused by the offense.\4\
---------------------------------------------------------------------------
\2\ 524 U.S. 321 (1998).
\3\ The Court held that a criminal forfeiture, which
is imposed at the time of sentencing, should be considered a
fine, because it serves as a punishment for the underlying
crime. 524 U.S. at 328. The Court distinguished this from
civil forfeiture, which, as an in rem proceeding against
property, would generally not function as a punishment of
the criminal defendant. 524 U.S. at 330-32.
\4\ In Bajakajian, the lower court found that the
currency in question was not derived from illegal
activities, and that the defendant, who had grown up a
member of the Armenian minority in Syria, had failed to
report the currency out of distrust of the government. 524
U.S. at 325-26. The Court found it relevant that the
defendant did not appear to be among the class of persons
for whom the statute was designed, i.e., a money launderer
or tax evader, and that the harm to the government from the
defendant's failure to report the currency was minimal. 524
U.S. at 338.
---------------------------------------------------------------------------
CRUEL AND UNUSUAL PUNISHMENTS
--Capital Punishment
[P. 1478, add to n.69:]
Consequently, a judge may be given significant
discretion to override a jury sentencing recommendation, as
long as the court's decision is adequately channeled to
prevent arbitrary results. Harris v. Alabama, 513 U.S. 504
(1995) (Eighth Amendment not violated where judge is only
required to ``consider'' a capital jury's sentencing
recommendation).
[P. 1480, add to n.76:]
But see Tuilaepa v. California, 512 U.S. 967 (1994)
(holding that permitting capital juries to consider the
circumstances of the crime, the defendant's prior criminal
activity, and the age of the defendant, without further
guidance, is not unconstitutionally vague).
[P. 1480, add to n.77:]
Arave v. Creech, 507 U.S. 463 (1993) (consistent
application of narrowing construction of phrase ``exhibited
utter disregard for human life'' to require that the
defendant be a ``cold-blooded, pitiless slayer'' cures
vagueness).
[P. 1480, add to n.81 after citation to Spaziano v.
Florida:]
See Hopkins v. Reeves, 524 U.S. 88 (1998) (defendant
charged with felony murder did not have right to instruction
as to second degree murder or manslaughter, where Nebraska
traditionally did not consider these lesser included
offenses).
[P. 1481, add to n.82:]
Romano v. Oklahoma, 512 U.S. 1 (1994) (imposition of
death penalty after introduction of evidence that defendant
had been sentenced to death previously did not diminish the
jury's sense of responsibility so as to violate the Eighth
Amendment).
[P. 1483, add new footnote at end of second sentence of
paragraph beginning after n.93:]
See, e.g., Johnson v. Texas, 509 U.S. 350 (1993)
(consideration of youth as a mitigating factor may be
limited to jury estimation of probability that defendant
would commit future acts of violence).
[P. 1483, add new footnote at end of third sentence of
paragraph beginning after n.93:]
Richmond v. Lewis, 506 U.S. 40 (1992) (no cure of trial
court's use of invalid aggravating factor where appellate
court fails to reweigh mitigating and aggravating factors).
[P. 1484, add to n.98:]
A court is not required give a jury instruction
expressly directing the jury to consider mitigating
circumstance, as long as the instruction actually given
affords the jury the discretion to take such evidence into
consideration. Buchanan v. Angelone, 522 U.S. 269 (1998). By
the same token, a court did not offend the Constitution by
directing the jury's attention to a specific paragraph of a
constitutionally sufficient instruction in response to the
jury's question about proper construction of mitigating
circumstances. Weeks v. Angelone, 120 S. Ct. 727 (2000).
[P. 1484, add to text following n.100:]
Due process considerations can also come into play;
if the state argues for the death penalty based on the
defendant's future dangerousness, due process requires that
the jury be informed if the alternative to a death sentence
is a life sentence without possibility of parole.\5\
---------------------------------------------------------------------------
\5\ Simmons v. South Carolina, 512 U.S. 154 (1994).
But see Ramdass v. Angelone, 120 S. Ct. 2113 (2000)
(refusing to apply Simmons because the defendant was not
technically parole ineligible at time of sentencing).
---------------------------------------------------------------------------
[P. 1484, add to n.103:]
Thus, where psychiatric testimony was introduced
regarding an invalid statutory aggravating circumstance, and
where the defendant was not provided the assistance of an
independent psychiatrist in order to develop rebuttal
testimony, the lack of rebuttal testimony might have
affected how the jury evaluated another aggravating factor.
Consequently, the reviewing court erred in reinstating a
death sentence based on this other valid aggravating factor.
Tuggle v. Netherland, 516 U.S. 10 (1995) (per curiam).
[P. 1487, add to text following n.116:]
In addition, the Court has held that, absent an
independent constitutional violation, habeas corpus relief
for prisoners who assert innocence based on newly discovered
evidence should generally be denied.\6\ Third, a different
harmless error rule is applied when constitutional errors
are alleged in habeas proceedings. The Chapman v. California
\7\ rule applicable on direct appeal, requiring the State to
prove beyond a reasonable doubt that a constitutional error
is harmless, is inappropriate for habeas review, the Court
concluded, given the ``secondary and limited'' role of
federal habeas proceedings.\8\ The appropriate test is that
previously used only for non-constitutional errors:
``whether the error `has substantial and injurious effect or
influence in determining the jury's verdict.' '' \9\ A
fourth rule was devised to . . . .
---------------------------------------------------------------------------
\6\ Herrera v. Collins, 506 U.S. 390 (1993) (holding
that a petitioner would have to meet an ``extraordinarily
high'' threshold of proof of innocence to warrant federal
habeas relief).
\7\ 386 U.S. 18 (1967).
\8\ Brecht v. Abrahamson, 507 U.S. 619, 633 (1993).
\9\ Brecht v. Abrahamson, 507 U.S. at 637 (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Brecht was a non-capital case, but the rule was subsequently
applied in a capital case. Calderon v. Coleman, 525 U.S. 141
(1998) (per curiam).
---------------------------------------------------------------------------
--Prisons and Punishment
[P. 1498, add to n.171:]
Helling v. McKinney, 509 U.S. 25 (1993) (prisoner who
alleged exposure to secondhand ``environmental'' tobacco
smoke stated a cause of action under the Eighth Amendment).
[P. 1498, add to n.174:]
Deliberate indifference in this context means something
more than disregarding an unjustifiably high risk of harm
that should have been known, as might apply in the civil
context. Rather, it requires a finding that the responsible
person acted in reckless disregard of a risk of which he or
she was aware, as would generally be required for a criminal
charge of recklessness. Farmer v. Brennan, 511 U.S. 825
(1994).
TENTH AMENDMENT
RESERVED POWERS
Effect of Provision on Federal Powers
--Federal Police Power
[P. 1514, add to text following n.42:]
Reversing this trend, the Court in 1995 in United
States v. Lopez \1\ struck down a statute prohibiting
possession of a gun at or near a school, rejecting an
argument that possession of firearms in school zones can be
punished under the Commerce Clause because it impairs the
functioning of the national economy. Acceptance of this
rationale, the Court said, would eliminate ``a[ny]
distinction between what is truly national and what is truly
local,'' would convert Congress' commerce power into ``a
general police power of the sort retained by the States,''
and would undermine the ``first principle'' that the Federal
Government is one of enumerated and limited powers.\2\
Application of the same principle led five years later to
the Court's decision in United States v. Morrison \3\
invalidating a provision of the Violence Against Women Act
(VAWA) that created a federal cause of action for victims of
gender-motivated violence. Congress may not regulate ``non-
economic, violent criminal conduct based solely on that
conduct's aggregate effect on interstate commerce,'' the
Court concluded. ``[W]e can think of no better example of
the police power, which the Founders denied the National
Government and reposed in the States, than the suppression
of violent crime and vindication of its victims.'' \4\
---------------------------------------------------------------------------
\1\ 514 U.S. 549 (1995).
\2\ 514 U.S. at 552, 567-68 (1995).
\3\ 120 S. Ct. 1740 (2000).
\4\ 120 S. Ct. at 1754.
---------------------------------------------------------------------------
--Federal Regulations Affecting State Activities and
Instrumentalities
[P. 1518, add new paragraphs at end of section:]
Extending the principle applied in New York, the
Court in Printz v. United States \5\ held that Congress may
not ``circumvent'' the prohibition on commandeering a
state's regulatory processes ``by conscripting the State's
officers directly.'' \6\ Struck down in Printz were interim
provisions of the Brady Handgun Violence Protection Act that
required state and local law enforcement officers to conduct
background checks on prospective handgun purchasers. ``The
Federal Government may neither issue directives requiring
the States to address particular problems, nor command the
States' officers . . . to administer or enforce a federal
regulatory program. It matters not whether policymaking is
involved, and no case-by-case weighing of the burdens or
benefits is necessary; such commands are fundamentally
incompatible with our constitutional system of dual
sovereignty.'' \7\
---------------------------------------------------------------------------
\5\ 521 U.S. 898 (1997).
\6\ 521 U.S. at 935.
\7\ Id.
---------------------------------------------------------------------------
In Reno v. Condon,\8\ the Court distinguished New
York and Printz in upholding the Driver's Privacy Protection
Act of 1994 (DPPA), a federal law that restricts the
disclosure and resale of personal information contained in
the records of state motor vehicles departments. The Court
returned to a principle articulated in South Carolina v.
Baker that distinguishes between laws which improperly seek
to control the manner in which States regulate private
parties, and those which merely regulate state activities
directly.\9\ Here, the Court found that the DPPA ``does not
require the States in their sovereign capacities to regulate
their own citizens,'' but rather ``regulates the States as
the owners of databases.'' \10\ The Court saw no need to
decide whether a federal law may regulate the states
exclusively, since the DPPA is a law of general
applicability that regulates private resellers of
information as well as states.\11\
---------------------------------------------------------------------------
\8\ 120 S. Ct. 666 (2000).
\9\ 484 U.S. 505, 514-15 (1988).
\10\ 120 S. Ct. at 672.
\11\ Id.
ELEVENTH AMENDMENT
STATE IMMUNITY
Purpose and Early Interpretation
--Expansion of the Immunity of the States
[P. 1526, add to text following n.31:]
An in rem admiralty action may be brought, however,
if the State is not in possession of the res.\1\
---------------------------------------------------------------------------
\1\ California v. Deep Sea Research, Inc., 523 U.S.
491 (1998) (application of the Abandoned Shipwreck Act)
(distinguishing Ex parte New York and Treasure Salvors as
involving in rem actions against property actually in
possession of the State).
---------------------------------------------------------------------------
[P. 1527, add to n.32 after first citation:]
Breard v. Greene, 523 U.S. 371, 377 (1998) (foreign
nation may not contest validity of criminal conviction after
State's failure at time of arrest to comply with notice
requirements of Vienna Convention on Consular Relations).
The Nature of the States' Immunity
[P. 1527, add to n.33:]
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64
(1996).
[P. 1528, add to n.43 after first sentence and accompanying
citation:]
Of course, when a state is sued in federal court
pursuant to federal law, the Federal Government, not the
defendant state, is ``the authority that makes the law''
creating the right of action. See Seminole Tribe of Florida
v. Florida, 517 U.S. 44, 154 (1996) (Justice Souter
dissenting).
[P. 1528, add to text following n.43:]
This view also has support in modern case law:'' .
. . the State's immunity from suit is a fundamental aspect
of sovereignty which the States enjoyed before the
ratification of the Constitution, and which they retain
today . . . .'' \2\
---------------------------------------------------------------------------
\2\ Alden v. Maine, 527 U.S. 706, 713 (1999).
---------------------------------------------------------------------------
[P. 1530, delete n.51 and accompanying text]
[P. 1530, delete second full paragraph on page]
[P. 1531, add to text at end of section:]
The Hans interpretation has been solidified with
the Court's ruling in Seminole Tribe of Florida v.
Florida,\3\ that Congress lacks the power under Article I to
abrogate state immunity under the Eleventh Amendment, and
with its ruling in Alden v. Maine that the broad principle
of sovereign immunity reflected in the Eleventh Amendment
bars suits against states in state courts as well as
federal. Both of these cases, however, were 5 to 4
decisions, with the four dissenting Justices believing that
Hans was wrongly decided.\4\
---------------------------------------------------------------------------
\3\ 517 U.S. 44 (1996).
\4\ Chief Justice Rehnquist wrote the opinion of the
Court in Seminole Tribe, joined by Justices O'Connor,
Scalia, Kennedy, and Thomas. Justice Stevens dissented, as
did Justice Souter, whose opinion was joined by Justices
Ginsburg and Breyer. In Alden, Justice Kennedy wrote the
opinion of the Court, joined by the Chief Justice, and by
Justices O'Connor, Scalia, and Thomas. Justice Souter's
dissenting opinion was joined by Justices Stevens, Ginsburg,
and Breyer.
---------------------------------------------------------------------------
Suits Against States
--Consent to Suit and Waiver
[P. 1533, add to n.68:]
The fact that a state agency can be indemnified for the
costs of litigation does not divest the agency of its
Eleventh Amendment immunity. Regents of the University of
California v. Doe, 519 U.S. 425 (1997).
--Congressional Withdrawal of Immunity
[P. 1535, delete last sentence of first paragraph and
substitute the following new paragraphs:]
Pennsylvania v. Union Gas lasted less than seven
years, the Court overruling it in Seminole Tribe of Florida
v. Florida.\5\ Chief Justice Rehnquist, writing for a 5 to 4
majority, concluded that there is ``no principled
distinction in favor of the States to be drawn between the
Indian Commerce Clause [at issue in Seminole Tribe] and the
Interstate Commerce Clause [relied upon in Union Gas].'' \6\
In the majority's view, Union Gas had deviated from a line
of cases tracing back to Hans v. Louisiana \7\ that viewed
the Eleventh Amendment as implementing the ``fundamental
principle of sovereign immunity [that] limits the grant of
judicial authority in Article III.'' \8\ Because ``the
Eleventh Amendment restricts the judicial power under
Article III, . . . Article I cannot be used to circumvent
the constitutional limitations placed upon federal
jurisdiction.'' \9\ Subsequent cases have confirmed this
interpretation.\10\
---------------------------------------------------------------------------
\5\ 517 U.S. 44 (1996) (invalidating a provision of
the Indian Gaming Regulatory Act authorizing an Indian tribe
to sue a State in federal court to compel performance of a
duty to negotiate in good faith toward the formation of a
compact).
\6\ 517 U.S. at 63.
\7\ 134 U.S. 1 (1890).
\8\ 517 U.S. at 64 (quoting Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 97-98 (1984).
\9\ 517 U.S. at 72-73. Justice Souter's dissent
undertook a lengthy refutation of the majority's analysis,
asserting that the Eleventh Amendment is best understood, in
keeping with its express language, as barring only suits
based on diversity of citizenship, and as having no
application to federal question litigation. Moreover,
Justice Souter contended, the state sovereign immunity that
the Court mistakenly recognized in Hans v. Louisiana was a
common law concept that ``had no constitutional status and
was subject to congressional abrogation.'' 517 U.S. at 117.
The Constitution made no provision for wholesale adoption of
the common law, but, on the contrary, was premised on the
view that common law rules would always be subject to
legislative alteration. This ``imperative of legislative
control grew directly out of the Framers' revolutionary idea
of popular sovereignty.'' Id. at 160.
\10\ College Savings Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999) (The
Trademark Remedy Clarification Act, an amendment to the
Lanham Act, did not validly abrogate state immunity);
Florida Prepaid Postsecondary Educ. Expense Bd. v. College
Savings Bank, 527 U.S. 627 (1999) (amendment to patent laws
abrogating state immunity from infringement suits is
invalid); Kimel v. Florida Bd. of Regents, 120 S. Ct. 631
(2000) (abrogation of state immunity in the Age
Discrimination in Employment Act is invalid).
---------------------------------------------------------------------------
Section 5 of the Fourteenth Amendment, of course,
is another matter. Fitzpatrick v. Bitzer,\11\ ``based upon a
rationale wholly inapplicable to the Interstate Commerce
Clause, viz., that the Fourteenth Amendment, adopted well
after the adoption of the Eleventh Amendment and the
ratification of the Constitution, operated to alter the pre-
existing balance between state and federal power achieved by
Article III and the Eleventh Amendment,'' remains good
law.\12\
---------------------------------------------------------------------------
\11\ 427 U.S. 445 (1976).
\12\ 517 U.S. at 65-66.
---------------------------------------------------------------------------
[Pp. 1535-36, delete remainder of paragraph following n.79
and add the following:]
This means that no legislative history will suffice
at all.\13\ Indeed, at one time a plurality of the Court was
of the apparent view that only if Congress refers
specifically to state sovereign immunity and the Eleventh
Amendment will its language be unmistakably clear.\14\ Thus,
the Court held in Atascadero that general language
subjecting to suit in federal court ``any recipient of
Federal assistance'' under the Rehabilitation Act was
insufficient to satisfy this test, not because of any
question about whether States are ``recipients'' within the
meaning of the provision but because ``given their
constitutional role, the States are not like any other class
of recipients of federal aid.'' \15\ As a result of these
rulings, Congress began to utilize the ``magic words'' the
Court appeared to insist on.\16\ More recently, however, the
Court has accepted less precise language.\17\
---------------------------------------------------------------------------
\13\ See, particularly, Dellmuth v. Muth, 491 U.S.
223, 230 (1989) (``legislative history generally will be
irrelevant''), and Hoffman v. Connecticut Dep't of Income
Maintenance, 492 U.S. 96, 103-04 (1989).
\14\ Justice Kennedy for the Court in Dellmuth,
supra, 491 U.S. at 231, expressly noted that the statute
before the Court did not demonstrate abrogation with
unmistakably clarity because, inter alia, it ``makes no
reference whatsoever to either the Eleventh Amendment or the
States' sovereign immunity.'' Justice Scalia, one of four
concurring Justices, expressed an ``understanding'' that the
Court's reasoning would allow for clearly expressed
abrogation of immunity ``without explicit reference to state
sovereign immunity or the Eleventh Amendment.'' Id. at 233.
\15\ Atascadero State Hosp. v. Scanlon, 473 U.S.
234, 246 (1985). And see Dellmuth v. Muth, 491 U.S. 223
(1989).
\16\ Following Atascadero, in 1986 Congress provided
that States were not to be immune under the Eleventh
Amendment from suits under several laws barring
discrimination by recipients of federal financial
assistance. Pub. L. No. 99-506, Sec. 1003, 100 Stat. 1845
(1986), 42 U.S.C. Sec. 2000d-7. Following Dellmuth, Congress
amended the statute to insert the explicit language. Pub. L.
No. 101-476, Sec. 103, 104 Stat. 1106 (1990), 20 U.S.C.
Sec. 1403. See also the Copyright Remedy Clarification Act,
Pub. L. No. 101-553, Sec. 2, 104 Stat. 2749 (1990), 17
U.S.C. Sec. 511 (making States and state officials liable in
damages for copyright violations).
\17\ Kimel v. Florida Board of Regents, 120 S. Ct.
631, 640-42 (2000). In Kimel, statutory language authorized
age discrimination suits ``against any employer (including a
public agency)'' and a public agency was defined to include
``the government of a State or political subdivision
thereof.'' The Court found this language to be sufficiently
clear evidence of intent to abrogate state sovereign
immunity. The relevant portion of the opinion was written by
Justice O'Connor, and joined by Chief Justice Rehnquist and
Justices Stevens, Scalia, Souter, Ginsberg, and Breyer.
---------------------------------------------------------------------------
[P. 1536, delete paragraph containing n.85 and substitute
the following:]
Having previously reserved the question of whether
federal statutory rights could be enforced in state
courts,\18\ the Court in Alden v. Maine \19\ held that
states could also assert Eleventh Amendment ``sovereign
immunity'' in their own courts. Recognizing that the
application of the Eleventh Amendment, which limits only the
federal courts, was a ``misnomer'' \20\ as applied to state
courts, the Court nonetheless concluded that the principles
of common law sovereign immunity applied absent ``compelling
evidence'' that the States had surrendered such by the
ratification of the Constitution. Although this immunity is
subject to the same limitations as apply in federal courts,
the Court's decision effectively limited the application of
significant portions of federal law to state governments.
---------------------------------------------------------------------------
\18\ Employees of the Dep't of Pub. Health and
Welfare v. Department of Pub. Health and Welfare, 411 U.S.
279, 287 (1973).
\19\ 527 U.S. 706 (1999).
\20\ 527 U.S. at 713.
---------------------------------------------------------------------------
Suits Against State Officials
[P. 1540, add to n.105:]
In the process of limiting application of Young, a Court
majority has recently referred to ``the Young fiction.''
Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 281 (1997).
[P. 1541, add to n.112:]
In a case removed from state court, presence of a claim
barred by the Eleventh Amendment does not destroy
jurisdiction over non-barred claims. Wisconsin Dep't of
Corrections v. Schacht, 524 U.S. 381 (1998).
[P. 1544, add as first full paragraph on page (penultimate
paragraph in section):]
In Idaho v. Coeur d'Alene Tribe,\21\ the Court
further narrowed Ex parte Young. The implications of the
case are difficult to predict, due to the narrowness of the
Court's holding, the closeness of the vote (5 to 4), and the
inability of the majority to agree on a rationale. The
holding was that the Tribe's suit against state officials
for a declaratory judgment and injunction to establish the
Tribe's ownership and control of the submerged lands of Lake
Coeur d'Alene is barred by the Eleventh Amendment. The
Tribe's claim was based on federal law--Executive Orders
issued in the 1870s, prior to Idaho Statehood. The portion
of Justice Kennedy's opinion that represented the opinion of
the Court concluded that the Tribe's ``unusual'' suit was
``the functional equivalent of a quiet title action which
implicates special sovereignty interests.'' \22\ The case
was ``unusual'' because state ownership of submerged lands
traces to the Constitution through the ``equal footing
doctrine,'' and because navigable waters ``uniquely
implicate sovereign interests.'' \23\ This was therefore no
ordinary property dispute in which the State would retain
regulatory control over land regardless of title. Rather,
grant of the ``far-reaching and invasive relief'' sought by
the Tribe ``would diminish, even extinguish, the State's
control over a vast reach of lands and waters long . . .
deemed to be an integral part of its territory.'' \24\ A
separate part of Justice Kennedy's opinion, joined only by
Chief Justice Rehnquist, advocated more broadscale
diminishment of Young. The two would apply case-by-case
balancing, taking into account the availability of a state
court forum to resolve the dispute and the importance of the
federal right at issue. Concurring Justice O'Connor, joined
by Justices Scalia and Thomas, rejected such balancing.
Young was inapplicable, Justice O'Connor explained, because
``it simply cannot be said'' that a suit to divest the State
of all regulatory power over submerged lands ``is not a suit
against the State.'' \25\
---------------------------------------------------------------------------
\21\ 521 U.S. 261 (1997).
\22\ 521 U.S. at 281.
\23\ Id. at 284.
\24\ Id. at 282.
\25\ Id. at 296.
FOURTEENTH AMENDMENT
[P. 1568, change heading to:]
PRIVILEGES OR IMMUNITIES
P. 1571, add new paragraph to text following n.32:]
In a doctrinal shift of uncertain significance, the
Court will apparently evaluate challenges to durational
residency requirements, previously considered as violations
of the right to travel derived from the Equal Protection
Clause, as a potential violation of the Privileges or
Immunities Clause. Thus, where a California law restricted
the level of welfare benefits available to Californians
resident less than a year to the level of benefits available
in the State of their prior residence, the Court found a
violation of the right of newly arrived citizens to be
treated the same as other state citizens.\1\ Despite
suggestions that this opinion will open the door to a
``guaranteed equal access to all public benefits,'' \2\ it
seems more likely that the Court is protecting the privilege
of being treated immediately as a full citizen of the State
one chooses for permanent residence.\3\
---------------------------------------------------------------------------
\1\ Saenz v. Roe, 526 U.S. 489 (1999).
\2\ 526 U.S. at 525 (Thomas, J., dissenting).
\3\ The right of United States citizens to choose
their State of residence is specifically protected by the
first sentence of the Fourteenth Amendment--``All persons
born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and
of the State wherein they reside . . . .''
---------------------------------------------------------------------------
DUE PROCESS OF LAW
The Development of Substantive Due Process
--``Liberty''
[P. 1581, add to n.75:]
County of Sacramento v. Lewis, 523 U.S. 833 (1998)
(high-speed automobile chase by police officer causing death
through deliberate or reckless indifference to life would
not violate the Fourteenth Amendment's guarantee of
substantive due process).
Health, Safety, and Morals
--Protecting Morality
[P. 1636, add to text following n.163:]
Similarly, a court may order a car used in an act
of prostitution forfeited as a public nuisance, even if this
works a deprivation on an innocent joint owner of the
car.\4\
---------------------------------------------------------------------------
\4\ Bennis v. Michigan, 516 U.S. 442 (1996).
---------------------------------------------------------------------------
Procedure in Taxation
--Sufficiency of Remedy
[P. 1665, add to n.177:]
See also Reich v. Collins, 513 U.S. 106 (1994)
(violation of due process to hold out a post-deprivation
remedy for unconstitutional taxation and then, after the
disputed taxes had been paid, to declare that no such remedy
exists); Newsweek, Inc. v. Florida Dep't of Revenue, 522
U.S. 442 (1998) (per curiam) (violation of due process to
limit remedy to one who pursued pre-payment of tax, where
litigant reasonably relied on apparent availability of post-
payment remedy).
Substantive Due Process and Noneconomic Liberty
[P. 1666, add to n.184:]
The Court has subsequently made clear that these cases
dealt with ``a complete prohibition of the right to engage
in a calling,'' holding that ``a brief interruption'' did
not constitute a constitutional violation. Conn v. Gabbert,
526 U.S. 286, 292 (2000).
--Abortion
[P. 1679, add to text at end of section:]
The passage of various state laws restricting so-
called ``partial birth abortions'' gave observers an
opportunity to see if the ``undue burden'' standard was in
fact likely to lead to a major retrenchment in abortion
regulation. In Stenberg v. Carhart,\5\ the Court reviewed a
Nebraska statute which forbade ``partially delivering
vaginally a living unborn child before killing the unborn
child and completing the delivery.'' The Court noted that
the prohibition appeared to apply to abortions performed
throughout a pregnancy, and that the lone exception was for
an abortion necessary to preserve the life of the mother.\6\
Thus the statute brought into question both the distinction
maintained in Casey between pre-viability and post-viability
abortions, and the oft-repeated language from Roe, which
provides that abortion restrictions must contain exceptions
for situations where there is a threat to either the life or
health of a pregnant woman.\7\ The Court, however,
reaffirmed these central tenets of its abortion decisions,
striking down the Nebraska law because its possible
application to pre-viability abortions was too broad and the
exception for threats to the life of the mother was too
narrow.
---------------------------------------------------------------------------
\5\ 120 S. Ct. 2597 (2000).
\6\ The Nebraska law provided that such procedures
could be performed where ``necessary to save the life of the
mother whose life is endangered by a physical disorder,
physical illness, or physical injury, including a life-
endangering physical condition caused by or arising from the
pregnancy itself.'' Neb. Rev. Stat. Ann. Sec. 28-328(1).
\7\ Roe v. Wade, 410 U.S. 113, 164 (1973).
---------------------------------------------------------------------------
--Family Relationships
[P. 1689, add to text at end of section:]
The Court has, however, imposed limits on the
ability of a court to require that children be made
available for visitation with grandparents and other third
parties. In Troxel v. Granville,\8\ the Court evaluated a
Washington State law which allowed ``any person'' to
petition a court ``at any time'' to obtain visitation rights
whenever visitation ``may serve the best interests'' of a
child. Under this law, a child's grandparents were awarded
more visitation with a child than was desired by the sole
surviving parent. A plurality of the Court, noting the
``fundamental rights of parents to make decisions concerning
the care, custody and control of their children,'' \9\
reversed this decision, noting the lack of deference to the
parent's wishes and the contravention of the traditional
presumption that a fit parent will act in the best interests
of a child.
---------------------------------------------------------------------------
\8\ 120 S. Ct. 2054 (2000).
\9\ 120 S. Ct. at 2060.
---------------------------------------------------------------------------
[P. 1690, change heading to:]
--Liberty Interests of the Retarded, Mentally Ill or
Abnormal: Civil Commitment and Treatment
[P. 1691, add paragraph to text after n.310:]
The Court's resolution of a case involving
persistent sexual offenders suggests that state civil
commitment systems, besides confining the dangerously
mentally ill, may also act to incapacitate persons
predisposed to engage in specific criminal behaviors. In
Kansas v. Hendricks,\10\ the Court upheld a Kansas state law
which allowed civil commitment without a showing of ``mental
illness,'' so that a defendant diagnosed as a pedophile
could be committed based on his having a ``mental
abnormality'' which made him ``likely to engage in acts of
sexual violence.'' Although the Court minimized the use of
this expanded nomenclature,\11\ the concept of abnormality
appears both more encompassing and less defined than the
concept of illness. It is unclear how, or whether, the Court
would distinguish this case from the indefinite civil
commitment of other recidivists such as drug offenders.
---------------------------------------------------------------------------
\10\ 521 U.S. 346 (1997).
\11\ 521 U.S. at 359. But see Foucha v. Louisiana,
504 U.S. 71, 80 (1992) (holding that a State can not hold a
person suffering from a personality disorder without clear
and convincing proof of a mental illness).
---------------------------------------------------------------------------
--``Right to Die''
[P. 1693, add new paragraph at end of section:]
In Washington v. Glucksberg,\12\ however, the
Supreme Court rejected an argument that the Due Process
Clause provides a terminally ill individual the right to
seek and obtain a physician's aid in committing suicide.
Reviewing a challenge to a state statutory prohibition
against assisted suicide, the Court noted that it moves with
``utmost care'' before breaking new ground in the area of
liberty interests.\13\ The Court pointed out that suicide
and assisted suicide have long been disfavored by the
American judicial system, and courts have consistently
distinguished between passively allowing death to occur and
actively causing such death. The Court rejected the
applicability of Cruzan and other liberty interest
cases,\14\ noting that while many of the interests protected
by the Due Process Clause involve personal autonomy, not all
important, intimate, and personal decisions are so
protected. By rejecting the notion that assisted suicide is
constitutionally protected, the Court also appears to
preclude constitutional protection for other forms of
intervention in the death process, such as suicide or
euthanasia.\15\
---------------------------------------------------------------------------
\12\ 521 U.S. 702 (1997). In the companion case of
Vacco v. Quill, 521 U.S. 793 (1997), the Court also rejected
an argument that a State which prohibited assisted suicide
but which allowed termination of medical treatment resulting
in death unreasonably discriminated against the terminally
ill in violation of the Equal Protection Clause of the
Fourteenth Amendment.
\13\ 521 U.S. at 720.
\14\ E.g., Planned Parenthood v. Casey, 505 U.S. 833
(1992) (upholding a liberty interest in terminating
pregnancy).
\15\ A passing reference by Justice O'Connor in a
concurring opinion in Glucksberg and its companion case
Vacco v. Quill may, however, portend a liberty interest in
seeking pain relief, or ``palliative'' care. Glucksberg and
Vacco 521 U.S. at 736-37 (Justice O'Connor, concurring).
---------------------------------------------------------------------------
PROCEDURAL DUE PROCESS: CIVIL
Power of the States to Regulate Procedure
--Costs, Damages, and Penalties
[P. 1698, add to n.34:]
See also Honda Motor Co. v. Oberg, 512 U.S. 415 (1994)
(striking down a provision of the Oregon Constitution
limiting judicial review of the amount of punitive damages
awarded by a jury).
[P. 1698, add to text after n.34:]
The Court has indicated, however, that the amount
of punitive damages is limited to what is reasonably
necessary to vindicate a state's interest in deterring
unlawful conduct.\16\ These limits may be discerned by a
court by examining the degree of reprehensibility of the
act, the ratio between the punitive award and plaintiff's
actual or potential harm, and the legislative sanctions
provided for comparable misconduct.\17\
---------------------------------------------------------------------------
\16\ BMW v. Gore, 517 U.S. 559 (1996) (holding that
a $2 million judgment for failing to disclose to a purchaser
that a ``new'' car had been repainted was ``grossly
excessive'' in relation to the State's interest, as only a
few of the 983 similarly repainted cars had been sold in
that same State). But see TXO Prod. Corp. v. Alliance
Resources, 509 U.S. 443 (1993) (punitive damages of $10
million for slander of title does not violate the Due
Process Clause of the Fourteenth Amendment even though the
jury awarded actual damages of only $19,000).
\17\ BMW v. Gore, 517 U.S. at 574-75 (1996).
---------------------------------------------------------------------------
Jurisdiction
[P. 1716, change heading to:]
--Actions In Rem: Proceeding Against Property
[P. 1717, add to n.144:]
Predeprivation notice and hearing may be required if the
property is not the sort that, given advance warning, could
be removed to another jurisdiction, destroyed, or concealed.
United States v. James Daniel Good Real Property, 510 U.S.
43 (1993) (notice to owner required before seizure of house
by government).
The Procedure Which is Due Process
--The Interests Protected: Entitlements and Positivist
Recognition
[P. 1726, add to n.194:]
But see American Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40 (1999) (no liberty interest in worker's compensation
claim where reasonableness and necessity of particular
treatment had not yet been resolved).
[P. 1730, add to n.214 after citation to Connecticut Bd. of
Pardons v. Dumschat:]
Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998).
[P. 1731, add to text following n.215:]
In an even more recent case, the Court limited the
application of this test to those circumstances where the
restraint on freedom imposed by the State creates an
``atypical and significant'' deprivation.\18\
---------------------------------------------------------------------------
\18\ Sandin v. Conner, 515 U.S. 472, 484 (1995)
(solitary confinement not atypical ``in relation to the
ordinary incidents of prison life'').
---------------------------------------------------------------------------
--When is Process Due
[P. 1737, add to text following n.246:]
Where the adverse action is less than termination
of employment, the governmental interest is significant, and
where reasonable grounds for such action have been
established separately, then a prompt hearing held after the
adverse action may be sufficient.\19\
---------------------------------------------------------------------------
\19\ Gilbert v. Homar, 520 U.S. 924 (1997) (no
hearing required prior to suspension without pay of tenured
police officer arrested and charged with a felony).
---------------------------------------------------------------------------
--The Requirements of Due Process
[P. 1741, add to n.269:]
See also Richards v. Jefferson County, 517 U.S. 793
(1996) (res judicata may not apply where taxpayers who
challenged a county's occupation tax had not been informed
of the prior case and where their interests had not been
adequately protected).
[P. 1741, add to text following n.270:]
Such notice, however, need not describe the legal
procedures necessary to protect one's interest if such
procedures are otherwise set out in published, generally
available public sources.\20\
---------------------------------------------------------------------------
\20\ City of West Covina v. Perkins, 525 U.S. 234
(1999).
---------------------------------------------------------------------------
[P. 1741, add to n.272:]
Even where a court finds that a party was not prejudiced
by the lack of a hearing, and where an appeal was provided,
failure to give notice and hearing is a violation of due
process. Nelson v. Adams, 120 S. Ct. 1579 (2000) (amendment
of judgment to impose attorney fees and costs to sole
shareholder of liable corporate structure invalid without
notice or opportunity to dispute).
PROCEDURAL DUE PROCESS--CRIMINAL
The Elements of Due Process
--Clarity in Criminal Statutes: The Void-For-Vagueness
Doctrine
[P. 1749, add to text following n.20:]
A loitering statute which is triggered by failure
to obey a police dispersal order may not, however, leave a
police officer absolute discretion to give such orders.\21\
Thus, a Chicago ordinance, which required police to disperse
all persons in the company of ``criminal street gang
members'' while in a public place with ``no apparent
purpose,'' failed to meet the ``requirement that a
legislature establish minimal guidelines to govern law
enforcement.'' \22\ The Court noted that ``no apparent
purpose'' is inherently subjective because its application
depends on whether some purpose is ``apparent'' to the
officer, who would presumably have the discretion to ignore
such apparent purposes as engaging in idle conversation or
enjoying the evening air.
---------------------------------------------------------------------------
\21\ Kolender v. Lawson, 461 U.S. 352, 358 (1983).
\22\ City of Chicago v. Morales, 527 U.S. 41 (1999).
---------------------------------------------------------------------------
--Other Aspects of Statutory Notice
[P. 1750, add to text following n.24:]
Persons may be bound by a novel application of a
statute, not supported by Supreme Court or other
``fundamentally similar'' case precedent, so long as the
court can find that, under the circumstance, ``unlawfulness
. . . is apparent'' to the defendant.\23\
---------------------------------------------------------------------------
\23\ United States v. Lanier, 520 U.S. 259, 271-72
(1997).
---------------------------------------------------------------------------
--Initiation of the Prosecution
[P. 1753, add to n.43:]
The Court has also rejected an argument that due process
requires that criminal prosecutions go forward only on a
showing of probable cause. Albright v. Oliver, 510 U.S. 266
(1994) (holding that there is no civil rights action based
on the Fourteenth Amendment for arrest and imposition of
bond without probable cause).
--Fair Trial
[P. 1756, add to n.59:]
But see Montana v. Egelhoff, 518 U.S. 37 (1996) (State
may bar defendant from introducing evidence of intoxication
to prove lack of mens rea).
--Prosecutorial Misconduct
[P. 1760, add to n.76:]
See also Wood v. Bartholomew, 516 U.S. 1 (1995) (per
curiam) (holding no Due Process violation where prosecutor's
failure to disclose the result of a witness' polygraph test
would not have affected the outcome of the case).
[P. 1760, add to text after n.80:]
This tripartite formulation, however, suffered from
two apparent defects. First, it added a new level of
complexity to a Brady inquiry by requiring a reviewing court
to establish the appropriate level of materiality by
classifying the situation under which the exculpating
information was withheld. Secondly, it was not clear, if the
fairness of the trial was at issue, why the circumstances of
the failure to disclose should affect the evaluation of the
impact that such information would have had on the trial.
Ultimately, the Court addressed these issue in the case of
United States v. Bagley.\24\
---------------------------------------------------------------------------
\24\ 473 U.S. 667 (1985).
---------------------------------------------------------------------------
In Bagley, the Court established a uniform test for
materiality, choosing the most stringent requirement that
evidence is material if there is a reasonable probability
that, had the evidence been disclosed to the defense, the
outcome of the proceeding would have been different.\25\
This materiality standard, found in contexts outside of
Brady inquiries,\26\ is applied not only to exculpatory
material, but also to material which would be relevant to
the impeachment of witnesses.\27\ Thus, where inconsistent
earlier statements by a witness to an abduction were not
disclosed, the Court weighed the specific effect that
impeachment of the witness would have had on establishing
the required elements of the crime and of the punishment,
finally concluding that there was no reasonable probability
that the jury would have reached a different result.\28\
---------------------------------------------------------------------------
\25\ 473 U.S. at 682.
\26\ See United States v. Malenzuela-Bernal, 458
U.S. 858 (1982) (testimony made unavailable by Government
deportation of witnesses); Strickland v. Washington, 466
U.S. 668 (1984) (incompetence of counsel).
\27\ 473 U.S. at 676-77.
\28\ Strickler v. Greene, 527 U.S. 263 (1999).
---------------------------------------------------------------------------
--Proof, Burden of Proof, and Presumptions
[P. 1761, add to n.83:]
See also Sullivan v. Louisiana, 508 U.S. 275 (1993)
(Sixth Amendment guarantee of trial by jury requires a jury
verdict of guilty beyond a reasonable doubt).
[P. 1762, add to n.87:]
But see Victor v. Nebraska, 511 U.S. 1 (1994)
(considered as a whole, jury instructions that define
``reasonable doubt'' as requiring a ``moral certainty'' or
as equivalent to ``substantial doubt'' did not violate due
process because other clarifying language was included.)
[Pp. 1763-64, delete last sentence and accompanying footnote
(96) of paragraph beginning on P. 1763 and substitute
the following:]
Another important distinction which can
substantially affect a prosecutor's burden is whether a fact
to be established is an element of a crime or instead is a
sentencing factor. While a criminal conviction is generally
established by a jury using the ``beyond a reasonable
doubt'' standard, sentencing factors are generally evaluated
by a judge using few evidentiary rules and under the more
lenient ``preponderance of the evidence'' standard. The
Court has taken a formalistic approach to this issue,
allowing States to essentially designate which facts fall
under which of these two categories. For instance, the Court
has held that whether a defendant ``visibly possessed a
gun'' during a crime may be designated by a State as a
sentencing factor, and determined by a judge based on the
preponderance of evidence.\29\ Although the Court has
generally deferred to the legislature's characterizations in
this area, it limited this principle in Apprendi v. New
Jersey by holding that a sentencing factor cannot be used to
increase the maximum penalty imposed for the underlying
crime.\30\ This decision, however, arguably conflicts with
related case law regarding, for instance, the use of
aggravating sentencing factors by judges in imposing capital
punishment,\31\ and is subject to at least one
exception.\32\ Further, the decision might be evaded by
legislatures revising criminal provisions to increase
maximum penalties, and then providing for mitigating factors
within the newly established sentencing range.
---------------------------------------------------------------------------
\29\ McMillan v. Pennsylvania, 477 U.S. 79 (1986).
\30\ 120 S. Ct. 2348, 2362-63 (2000) (interpreting
New Jersey's ``hate crime'' law).
\31\ Walton v. Arizona, 497 U.S. 639 (1990).
\32\ This limiting principle does not apply to
sentencing enhancements based on recidivism. Apprendi, 120
S. Ct. at 2361-62. As enhancement of sentences for repeat
offenders is traditionally considered a part of sentencing,
establishing the existence of previous valid convictions may
be made by a judge, despite its resulting in a significant
increase in the maximum sentence available. Almendarez-
Torres v. United States, 523 U.S. 224 (1998) (deported alien
reentering the United States subject to a maximum sentence
of two years, but upon proof of felony record, is subject to
a maximum of 20 years). See also Parke v. Raley, 506 U.S. 20
(1992) (where prosecutor has burden of establishing a prior
conviction, a defendant can be required to bear the burden
of challenging the validity of such a conviction).
---------------------------------------------------------------------------
--Sentencing
[P. 1765, add to n.104 after Spencer v. Texas citation:]
Parke v. Raley, 506 U.S. 20 (1992).
--The Problem of the Incompetent or Insane Defendant or
Convict
[P. 1769, add to n.120:]
It is a violation of due process, however, for a State
to require that a defendant must prove competence to stand
trial by clear and convincing evidence. Cooper v. Oklahoma,
517 U.S. 348 (1996).
--Rights of Prisoners
[P. 1773, add to n.150:]
Establishing a right of access to law materials,
however, requires an individualized demonstration of an
inmate having been hindered in efforts to pursue a legal
claim. See Lewis v. Casey, 518 U.S. 343 (1996) (no
requirement that the State ``enable [a] prisoner to discover
grievances, and to litigate effectively'').
--Probation and Parole
[P. 1780, add to text at end of sentence carried over from
P. 1779:]
The power of the executive to pardon, or grant
clemency, being a matter of grace, is rarely subject to
judicial review.\33\
---------------------------------------------------------------------------
\33\ Ohio Adult Parole Auth. v. Woodard, 523 U.S.
272 (1998).
---------------------------------------------------------------------------
EQUAL PROTECTION OF THE LAWS
Scope and Application
--State Action
[P. 1796, add to text following n.52:]
Or, where a state worker's compensation statute was
amended to allow, but not require, an insurer to suspend
payment for medical treatment while the necessity of the
treatment was being evaluated by an independent evaluator,
this action was not fairly attributable to the State, and
thus pre-deprivation notice of the suspension was not
required.\34\
---------------------------------------------------------------------------
\34\ American Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40 (1999).
---------------------------------------------------------------------------
[P. 1797, add to text following n.60:]
to private insurance companies providing worker's
compensation coverage,\35\
---------------------------------------------------------------------------
\35\ American Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40 (1999)
---------------------------------------------------------------------------
Equal Protection: Judging Classifications by Law
--The Traditional Standard: Restrained Review
[P. 1805, add footnote to sentence appearing after n.107:]
Vacco v. Quill, 521 U.S. 793 (1997) (assisted suicide
prohibition does not violate Equal Protection Clause by
distinguishing between terminally ill patients on life-
support systems who are allowed to direct the removal of
such systems and patients who are not on life support
systems and are not allowed to hasten death by self-
administering prescribed drugs).
TRADITIONAL EQUAL PROTECTION: ECONOMIC REGULATION AND
RELATED EXERCISES OF THE POLICE POWER
Police Power Regulation
--Classification
[P. 1831, add to n.260 after paragraph headed
``Attorneys'':]
Cable Television: exemption from regulation under the
Cable Communications Policy Act of facilities that serve
only dwelling units under common ownership. FCC v. Beach
Communications, 508 U.S. 307 (1993). Regulatory efficiency
is served by exempting those systems for which the costs of
regulation exceed the benefits to consumers, and potential
for monopoly power is lessened when a cable system operator
is negotiating with a single owner.
Other Business and Employment Relations
--Labor Relations
[P. 1834, add footnote at end of first sentence of section:]
Central State Univ. v. American Ass'n of Univ.
Professors, 526 U.S. 124 (1999) (upholding limitation on the
authority of public university professors to bargain over
instructional workloads).
EQUAL PROTECTION AND RACE
Juries
[P. 1855, add to n.79 after citation to Powers v. Ohio:]
Campbell v. Louisiana, 523 U.S. 392 (1998) (grand jury).
Permissible Remedial Utilizations of Racial Classifications
[P. 1868, delete last sentence and add to text at end of
section:]
The distinction between federal and state power to
apply racial classifications proved ephemeral. The Court
ruled in Adarand Constructors, Inc. v. Pena \36\ that racial
classifications imposed by federal law must be analyzed by
the same strict scrutiny standard that is applied to
evaluate state and local classifications based on race. The
Court overruled Metro Broadcasting and, to the extent that
it applied a review standard less stringent than strict
scrutiny, Fullilove v. Klutznick. Strict scrutiny is to be
applied regardless of the race of those burdened or
benefited by the particular classification; there is no
intermediate standard applicable to ``benign'' racial
classifications. The underlying principle, the Court
explained, is that the Fifth and Fourteenth Amendments
protect persons, not groups. It follows, therefore, that
classifications based on the group characteristic of race
``should be subjected to detailed judicial inquiry to ensure
that the personal right to equal protection . . . has not
been infringed.'' \37\
---------------------------------------------------------------------------
\36\ 515 U.S. 200 (1995). This was a 5 to 4
decision. Justice O'Connor's opinion of Court was joined by
Chief Justice Rehnquist, and by Justices Kennedy, Thomas,
and--to the extent not inconsistent with his own concurring
opinion--Scalia. Justices Stevens, Souter, Ginsburg and
Breyer dissented.
\37\ 515 U.S. at 227 (emphasis original).
---------------------------------------------------------------------------
THE NEW EQUAL PROTECTION
Classifications Meriting Close Scrutiny
--Sex
[P. 1879, add to text after n.51:]
Even when the negative ``stereotype'' which is
evoked is that of a stereotypical male, the Court has
evaluated this as potential gender discrimination. In J.E.B.
v. Alabama ex rel. T.B.,\38\ the Court addressed a paternity
suit where men had been intentionally excluded from a jury
through peremptory strikes. The Court rejected as unfounded
the argument that men, as a class, would be more sympathetic
to the defendant, the putative father. The Court also
determined that gender-based exclusion of jurors would
undermine the litigants' interest by tainting the
proceedings, and in addition would harm the wrongfully
excluded juror.
---------------------------------------------------------------------------
\38\ 511 U.S. 127 (1994).
---------------------------------------------------------------------------
[P. 1881, add to n.58:]
See also Miller v. Albright, 523 U.S. 420 (1998)
(opinion by Justice Stevens, joined by Justice Rehnquist)
(equal protection not violated where paternity of a child of
a citizen mother is established at birth, but child of
citizen father must establish paternity by age 18).
[P. 1885, add to text after n.76:]
In a 1996 case, the Court required that a State
demonstrate ``exceedingly persuasive justification'' for
gender discrimination. When a female applicant challenged
the exclusion of women from the historically male-only
Virginia Military Institute (VMI), the State of Virginia
defended the exclusion of females as essential to the nature
of training at the military school.\39\ The State argued
that the VMI program, which included rigorous physical
training, deprivation of personal privacy, and an
``adversative model'' that featured minute regulation of
behavior, would need to be unacceptably modified to
facilitate the admission of women. While recognizing that
women's admission would require accommodation such as
different housing assignments and physical training
programs, the Court found that the reasons set forth by the
State were not ``exceedingly persuasive,'' and thus the
State did not meet its burden of justification. The Court
also rejected the argument that a parallel program
established by the State at a private women's college served
as an adequate substitute, finding that the program lacked
the military-style structure found at VMI, and that it did
not equal VMI in faculty, facilities, prestige, or alumni
network.
---------------------------------------------------------------------------
\39\ United States v. Virginia, 518 U.S. 515 (1996).
---------------------------------------------------------------------------
Fundamental Interests: The Political Process
--Apportionment and Districting
[P. 1905, add to n.157 after citation for Summers v.
Cenarrusa:]
But see Voinovich v. Quilter, 507 U.S. 146 (1993)
(vacating and remanding for further consideration the
rejection of a deviation in excess of 10 percent intended to
preserve political subdivision boundaries).
[P. 1906, add to n.161:]
Hunt v. Cromartie, 526 U.S. 541 (1999).
[P. 1906, add to text following n.161:]
Even if racial gerrymandering is intended to
benefit minority voting populations, it is subject to strict
scrutiny under the Equal Protection Clause if racial
considerations are the dominant and controlling rationale in
drawing district lines.\40\ Showing that a district's
``bizarre'' shape departs from traditional districting
principles such as compactness, contiguity, and respect for
political subdivision lines may serve to reinforce such a
claim,\41\ although three Justices would not preclude the
creation of ``reasonably compact'' majority-minority
districts in order to remedy past discrimination or to
comply with the requirements of the Voting Rights Act of
1965.\42\
---------------------------------------------------------------------------
\40\ Miller v. Johnson, 515 U.S. 900 (1995) (drawing
congressional district lines in order to comply with Sec. 5
of the Voting Rights Act as interpreted by the Department of
Justice not a compelling governmental interest).
\41\ Id.; Shaw v. Reno, 509 U.S. 630 (1993). See
also Shaw v. Hunt, 517 U.S. 899 (1996) (creating an
unconventionally-shaped majority-minority congressional
district in one portion of State in order to alleviate
effect of fragmenting geographically compact minority
population in another portion of State does not remedy a
violation of Sec. 2 of Voting Rights Act, and is thus not a
compelling governmental interest).
\42\ Bush v. Vera, 517 U.S. 952, 979 (1996) (opinion
of Justice O'Connor, joined by Chief Justice Rehnquist and
Justice Kennedy) (also involving congressional districts).
---------------------------------------------------------------------------
The Right to Travel
[P. 1911, add new paragraph following heading:]
The doctrine of the ``right to travel'' actually
encompasses three separate rights, of which two have been
notable for the uncertainty of their textual support. The
first is the right of a citizen to move freely between
States, a right venerable for its longevity, but still
lacking a clear doctrinal basis.\43\ The second, expressly
addressed by the first sentence of Article IV, provides a
citizen of one State who is temporarily visiting another
State the ``Privileges and Immunities'' of a citizen of the
latter State.\44\ The third is the right of a new arrival to
a State, who establishes citizenship in that State, to enjoy
the same rights and benefits as other state citizens. This
right is most often invoked in challenges to durational
residency requirements, which require that persons reside in
a State for a specified period of time before taking
advantage of the benefits of that State's citizenship.
---------------------------------------------------------------------------
\43\ Saenz v. Roe, 526 U.S. 489 (1999). ``For the
purposes of this case, we need not identify the source of
[the right to travel] in the text of the Constitution. The
right of ``free ingress and regress to and from''
neighboring States which was expressly mentioned in the text
of the Articles of Confederation, may simply have been
``conceived from the beginning to be a necessary concomitant
of the stronger Union the Constitution created.'' Id. at 501
(citations omitted). See main text infra n.5 [p. 1912].
\44\ Paul v. Virginia, 8 U.S. (Wall) 168, 180 (1868)
(``without some provision . . . removing from citizens of
each State the disabilities of alienage in other States, and
giving them equality of privilege with citizens of those
States, the Republic would have constituted little more than
a league of States; it would not have constituted the Union
which now exists'').
---------------------------------------------------------------------------
--Durational Residency Requirements
[P. 1911, add new paragraph to text following heading:]
Challenges to durational residency requirements
have traditionally been made under the Equal Protection
Clause of the Fourteenth Amendment. In 1999, however, a
majority of the Supreme Court approved a doctrinal shift, so
that state laws which distinguished between their own
citizens based on how long they had been in the State would
be evaluated instead under the Privileges or Immunities
Clause of the Fourteenth Amendment.\45\ The Court did not,
however, question the continuing efficacy of the earlier
cases.
---------------------------------------------------------------------------
\45\ Saenz v. Roe, 526 U.S. 489, 502-03 (1999).
---------------------------------------------------------------------------
[P. 1913, add to text following sentence containing n.10:]
The Privileges or Immunities Clause of the
Fourteenth Amendment was the basis for striking down a
California law which limited welfare benefits for California
citizens who had resided in the State for less than a year
to the level of benefits which they would have received in
the State of their prior residence.\46\
---------------------------------------------------------------------------
\46\ Saenz v. Roe, 526 U.S. 489 (1999).
---------------------------------------------------------------------------
[P. 1913, add to text following n.13:]
More recently, the Court has attempted to clarify
these cases by distinguishing situations where a state
citizen is likely to ``consume'' benefits within a State's
borders (such as the provision or welfare) from those where
citizens of other States are likely to establish residency
just long enough to acquire some portable benefit, and then
return to their original domicile to enjoy them (such as
obtaining a divorce decree or paying in-state tuition rate
for a college education).\47\
---------------------------------------------------------------------------
\47\ Saenz v. Roe, 526 U.S. 489, 505 (1999).
---------------------------------------------------------------------------
[P. 1916, add new heading and text following n.24:]
Sexual Orientation
In Romer v. Evans,\48\ the Supreme Court struck
down a state constitutional amendment which both overturned
local ordinances prohibiting discrimination against
homosexuals, lesbians or bisexuals, and prohibited any state
or local governmental action to either remedy discrimination
or to grant preferences based on sexual orientation. The
Court declined to follow the lead of the Supreme Court of
Colorado, which had held that the amendment infringed on
gays' and lesbians' fundamental right to participate in the
political process.\49\ The Court also rejected the
application of the heightened standard reserved for suspect
classes, and sought only to determine whether the
legislative classification had a rational relation to a
legitimate end.
---------------------------------------------------------------------------
\48\ 517 U.S. 620 (1996).
\49\ Evans v. Romer, 854 P. 2d 1270 (Colo. 1993).
---------------------------------------------------------------------------
The Court found that the amendment failed even this
restrained review. Animus against a class of persons was not
considered by the Court as a legitimate goal of government:
``[I]f the constitutional conception of `equal protection of
the laws' means anything, it must at the very least mean
that a bare . . . desire to harm a politically unpopular
group cannot constitute a legitimate governmental
interest.'' \50\ The Court then rejected arguments that the
amendment protected the freedom of association rights of
landlords and employers, or that it would conserve resources
in fighting discrimination against other groups. The Court
found that the scope of the law was unnecessarily broad to
achieve these stated purposes, and that no other legitimate
rationale existed for such a restriction.
---------------------------------------------------------------------------
\50\ 517 U.S. at 634, quoting Department of
Agriculture v. Moreno, 413 U.S. 528, 534 (1973).
---------------------------------------------------------------------------
Poverty and Fundamental Interests: The Intersection of Due
Process and Equal Protection
--Criminal Procedure
[P. 1919, add to n.40 after citation to Penson v. Ohio:]
But see Smith v. Robbins, 528 U.S. 259 (2000) (upholding
California law providing that appellate counsel may limit
his or her role to filing a brief summarizing the case and
record and requesting the court to examine record for non-
frivolous issues).
--Access to Courts
[P. 1922, add paragraph to text following n.56:]
The continuing vitality of Griffin v. Illinois,
however, is seen in the case of M.L.B. v. S.L.J.,\51\ where
the Court considered whether a State seeking to terminate
the parental rights of an indigent must pay for the
preparation of the transcript required for pursuing an
appeal. Unlike in Boddie, the State, Mississippi, had
afforded the plaintiff a trial on the merits, and thus the
``monopolization'' of the avenues of relief alleged in
Boddie was not at issue. As in Boddie, however, the Court
focused on the substantive due process implications of the
state limiting ``[c]hoices about marriage, family life, and
the upbringing of children,'' \52\ while also referencing
cases establishing a right of equal access to criminal
appellate review. Noting that even a petty offender had a
right to have the State pay for the transcript needed for an
effective appeal,\53\ and that the forced dissolution of
parental rights was ``more substantial than mere loss of
money,'' \54\ the Court ordered Mississippi to provide the
plaintiff the court records necessary to pursue her appeal.
---------------------------------------------------------------------------
\51\ 519 U.S. 102 (1996).
\52\ 519 U.S. at 106. See Boddie v. Connecticut, 401
U.S. 371 (1971).
\53\ Mayer v. Chicago, 404 U.S. 189 (1971).
\54\ 519 U.S. at 121 (quoting Santosky v. Kramer,
455 U.S. 745, 756 (1982)).
---------------------------------------------------------------------------
ENFORCEMENT
--State Action
[P. 1933, delete last full paragraph of section, and
substitute the following:]
The Court, however, ultimately rejected this
expansion of the powers of Congress in United States v.
Morrison.\55\ In Morrison, the Court invalidated a provision
of the Violence Against Women Act \56\ that established a
federal civil remedy for victims of gender-motivated
violence. The case involved a university student who brought
a civil action against other students who allegedly raped
her. The argument was made that there was a pervasive bias
against victims of gender-motivated violence in state
justice systems, and that the federal remedy would offset
and deter this bias. The Court first reaffirmed the state
action requirement for legislation passed under the
Fourteenth Amendment,\57\ dismissing the dicta in Guest, and
reaffirming the precedents of the Civil Rights Cases and
United States v. Harris. The Court also rejected the
assertion that the legislation was ``corrective'' of bias in
the courts, as the suits are not directed at the State or
any state actor, but rather at the individuals committing
the criminal acts.\58\
---------------------------------------------------------------------------
\55\ 120 S. Ct. 1740, 1754-59 (2000).
\56\ Pub. L. No. 103-322, Sec. 40302, 108 Stat.
1941, 42 U.S.C. Sec. 13981.
\57\ 120 S. Ct. at 1756 (quoting Shelley v. Kraemer,
334 U.S. 1, 13 (1948), for the proposition that the
Amendment ``erects no shield against merely private conduct,
however discriminatory or wrongful'').
\58\ This holding may have broader significance for
federal civil rights law. For instance, 42 U.S.C.
Sec. 1985(3) (a civil statute paralleling the criminal
statute held unconstitutional in United States v. Harris)
lacks a ``color of law'' requirement. Although the
requirement was read into it in Collins v. Hardyman, 341
U.S. 651 (1951), to avoid constitutional problems, it was
read out again in Griffin v. Breckenridge, 403 U.S. 88, 97
(1971) (while it might be ``difficult to conceive of what
might constitute a deprivation of the equal protection of
the laws by private persons . . . there is nothing inherent
in the phrase that requires the action working the
deprivation to come from the State''). What the unanimous
Court held in Griffin was that an ``intent to deprive of
equal protection, or equal privileges and immunities, means
that there must be some racial, or perhaps otherwise class-
based, invidiously discriminatory animus behind the
conspirators' action.'' Id. at 102. As so construed, the
statute was held constitutional as applied in the complaint
before the Court on the basis of the Thirteenth Amendment
and the right to travel; there was no necessity therefore,
to consider Congress' powers under Sec. 5 of the Fourteenth
Amendment. Id. at 107.
The lower courts have been quite divided with
respect to what constitutes a non-racial, class-based
animus, and what constitutional protections must be
threatened before a private conspiracy can be reached under
Sec. 1985(3). See, e.g., Action v. Gannon, 450 F.2d 1227
(8th Cir. 1971); Dombrowski v. Dowling, 459 F.2d 190 (7th
Cir. 1972); Great American Fed. S. & L. Ass'n v. Novotny,
584 F.2d 1235 (3d Cir. 1978) (en banc), rev'd, 442 U.S. 366
(1979); Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) (en
banc). The Court's decision in Morrison, however, appears to
preclude the use of Sec. 1985(3) in relation to Fourteenth
Amendment rights absent some state action.
---------------------------------------------------------------------------
--Congressional Definition of Fourteenth Amendment Rights
[P. 1936, add to text following n.127:]
The case of City of Boerne v. Flores,\59\ however,
illustrates that the Court will not always defer to
Congress' determination as to what legislation is
appropriate to ``enforce'' the provisions of the Fourteenth
Amendment. In Flores, the Court held that the Religious
Freedom Restoration Act,\60\ which expressly overturned the
Court's narrowing of religious protections under Employment
Division v. Smith,\61\ exceeded congressional power under
section 5 of the Fourteenth Amendment. Although the Court
allowed that Congress' power to legislate to deter or remedy
constitutional violations may include prohibitions on
conduct that is not itself unconstitutional, the Court also
held that there must be ``a congruence and proportionality''
between the means adopted and the injury to be remedied.\62\
Unlike the pervasive suppression of the African-American
vote in the South which led to the passage of the Voting
Rights Act, there was no similar history of religious
persecution constituting an ``egregious predicate'' for the
far-reaching provision of the Religious Freedom Restoration
Act. Also, unlike the Voting Rights Act, the Religious
Freedom Restoration Act contained no geographic restrictions
or termination dates.\63\
---------------------------------------------------------------------------
\59\ 521 U.S. 507 (1997).
\60\ Pub. L. No. 103-141, 107 Stat. 1488, 42 U.S.C.
Sec. 2000bb et. seq.
\61\ 494 U.S. 872 (1990).
\62\ 521 U.S. at 533.
\63\ 521 U.S. at 532-33. The Court found that the
Religious Freedom Restoration Act was ``so far out of
proportion to a supposed remedial or preventive object that
it cannot be understood as responsive to, or designed to
prevent, unconstitutional behavior.'' Id.
---------------------------------------------------------------------------
A reinvigorated Eleventh Amendment jurisprudence
has led to a spate of decisions applying the principles the
Court set forth in Boerne, as litigants precluded from
arguing that a State's sovereign immunity has been abrogated
under Article I congressional powers \64\ seek alternative
legislative authority in section 5. For instance, in Florida
Prepaid Postsecondary Education Expense Board v. College
Savings Bank,\65\ a bank which had patented a financial
method designed to guarantee investors sufficient funds to
cover the costs of college tuition sued the State of Florida
for administering a similar program, arguing that the
State's sovereign immunity had been abrogated by Congress in
exercise of its Fourteenth Amendment enforcement power. The
Court, however, held that application of the federal patent
law to the States was not properly tailored to remedy or
prevent due process violations. The Court noted that
Congress had identified no pattern of patent infringement by
the States, nor a systematic denial of state remedy for such
violations such as would constitute a deprivation of
property without due process.\66\
---------------------------------------------------------------------------
\64\ Seminole Tribe of Florida v. Florida, 517 U.S.
44 (1996) (Article I powers may not be used to abrogate a
State's Eleventh Amendment immunity, but Fitzpatrick v.
Bitzer, 427 U.S. 445 (1976), holding that Congress may
abrogate Eleventh Amendment immunity in exercise of
Fourteenth Amendment enforcement power, remains good law).
See discussion pp. 1533-37.
\65\ 527 U.S. 627 (1999).
\66\ 527 U.S. at 639-46. See also College Savings
Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527
U.S. 666 (1999) (Trademark Remedy Clarification Act
amendment to Lanham Act subjecting States to suits for false
advertising is not a valid exercise of Fourteenth Amendment
power; neither the right to be free from a business
competitor's false advertising nor a more generalized right
to be secure in one's business interests qualifies as a
``property'' right protected by the Due Process Clause).
---------------------------------------------------------------------------
A similar result was reached regarding the
application of the Age Discrimination in Employment Act to
state agencies in Kimel v. Florida Board of Regents.\67\ In
determining that the Act did not meet the ``congruence and
proportionality'' test, the Court focused not just on
whether state agencies had engaged in age discrimination,
but on whether States had engaged in unconstitutional age
discrimination. This was a particularly difficult test to
meet, as the Court has generally rejected constitutional
challenges to age discrimination by States, finding that
there is a rational basis for States to use age as a proxy
for other qualities, abilities and characteristics.\68\
Noting the lack of a sufficient legislative record
establishing broad and unconstitutional state discrimination
based on age, the Court found that the ADEA, as applied to
the States, was ``so out of proportion to a supposed
remedial or preventive object that it cannot be understood
as responsive to or designed to prevent unconstitutional
behavior.'' \69\
---------------------------------------------------------------------------
\67\ 120 S. Ct. 631 (2000). Again, the issue of the
Congress' power under Sec. 5 of the Fourteenth Amendment
arose because sovereign immunity prevents private actions
against States from being authorized under Article I powers
such as the Commerce Clause.
\68\ See, e.g., Gregory v. Ashcroft, 501 U.S. 452
(1991) (applying rational basis test to uphold mandatory
retirement age of 70 for state judges).
\69\ 120 S. Ct. at 647, quoting City of Boerne, 521
U.S. at 532.
FIFTEENTH AMENDMENT
ABOLITION OF SUFFRAGE QUALIFICATIONS ON BASIS OF RACE
Adoption and Judicial Enforcement
--The Judicial View of the Amendment
[P. 1940, add new paragraph to text at end of section:]
Although ``the immediate concern of the Amendment
was to guarantee to the emancipated slaves the right to
vote,'' the Amendment ``is cast in fundamental terms'' that
transcend that immediate objective, and ``grants protection
to all persons, not just members of a particular race.'' \1\
Moreover, the Court has construed ``race'' broadly to
comprehend classifications based on ancestry as well as
those based on race.\2\ ``Ancestry can be a proxy for
race,'' the Court explained recently, finding such a proxy
in Hawaii's limitation of the right to vote in a statewide
election for an office responsible for administering a trust
for the benefit of persons who can trace their ancestry to
Hawaiian inhabitants of 1778.\3\
---------------------------------------------------------------------------
\1\ Rice v. Cayetano, 120 S. Ct. 1044, 1054 (2000).
\2\ Guinn v. United States, 238 U.S. 347 (1915)
(invalidating Oklahoma exception to literacy requirement for
any ``lineal descendants'' of persons entitled to vote in
1866).
\3\ Rice v. Cayetano, 120 S. Ct. 1044, 1055 (2000).
---------------------------------------------------------------------------
Congressional Enforcement
--Federal Remedial Legislation
[P. 1949, add to n.59:]
In Lopez v. Monterey County, 525 U.S. 266 (1999), the
Court reiterated its prior holdings that Congress may
exercise its enforcement power based on discriminatory
effects, and without any finding of discriminatory intent.
TWENTY-FIRST AMENDMENT
Scope of Regulatory Power Conferred upon the States
--Effect of Section 2 upon Other Constitutional Provisions
[P. 1982, delete sentence containing n.31 and substitute the
following:]
The Court departed from this line of reasoning in
California v. LaRue.\1\
---------------------------------------------------------------------------
\1\ 409 U.S. 109 (1972).
---------------------------------------------------------------------------
[P. 1983, add to text at end of section:]
In 44 Liquormart, Inc. v. Rhode Island,\2\ the
Court disavowed LaRue and Bellanca, and reaffirmed that,
``although the Twenty-first Amendment limits the effect of
the dormant Commerce Clause on a state's regulatory power
over the delivery or use of intoxicating beverages within
its borders, `the Amendment does not license the States to
ignore their obligations under other provisions of the
Constitution,' '' \3\ and therefore does not afford a basis
for state legislation infringing freedom of expression
protected by the First Amendment. There is no reason, the
Court asserted, for distinguishing between freedom of
expression and the other constitutional guarantees (e.g.,
those protected by the Establishment and Equal Protection
Clauses) held to be insulated from state impairment pursuant
to powers conferred by the Twenty-first Amendment. The Court
hastened to add by way of dictum that states retain adequate
police powers to regulate ``grossly sexual exhibitions in
premises licensed to serve alcoholic beverages.'' ``Entirely
apart from the Twenty-first Amendment, the State has ample
power to prohibit the sale of alcoholic beverages in
inappropriate locations.'' \4\
---------------------------------------------------------------------------
\2\ 517 U.S. 484 (1996) (statutory prohibition
against advertisements that provide the public with accurate
information about retail prices of alcoholic beverages is
not shielded from constitutional scrutiny by the Twenty-
first Amendment).
\3\ 517 U.S. at 516 (quoting Capital Cities Cable,
Inc., v. Crisp, 467 U.S. 691, 712 (1984)).
\4\ 517 U.S. at 515.
ACTS OF CONGRESS HELD UNCONSTITUTIONAL IN WHOLE OR IN PART BY THE
SUPREME COURT OF THE UNITED STATES
128. Act of Aug. 29, 1935, ch. 814 Sec. 5(e), 49 Stat. 982, 27 U.S.C.
Sec. 205(e).
The prohibition in section 5(e)(2) of the Federal
Alcohol Administration Act of 1935 on the display of alcohol
content on beer labels is inconsistent with the protections
afforded to commercial speech by the First Amendment. The
government's interest in curbing strength wars among brewers
is substantial, but, given the ``overall irrationality'' of
the regulatory scheme, the labeling prohibition does not
directly and materially advance that interest.
Rubin v. Coors Brewing Co., 514 U.S. 476
(1995).
Justices concurring: Thomas, O'Connor,
Scalia, Kennedy, Souter, Ginsburg,
Breyer, and Chief Justice Rehnquist.
Justice concurring specially: Stevens.
129. Act of Aug. 16, 1954, ch. 736, 68A Stat. 521, 26 U.S.C.
Sec. 4371(1).
A federal tax on insurance premiums paid to foreign
insurers not subject to the federal income tax violates the
Export Clause, Art. I, Sec. 9, cl. 5, as applied to casualty
insurance for losses incurred during the shipment of goods
from locations within the United States to purchasers
abroad.
United States v. IBM Corp., 517 U.S. 843
(1996).
Justices concurring: Thomas, O'Connor,
Scalia, Souter, Breyer, and Chief
Justice Rehnquist.
Justices dissenting: Kennedy, Ginsburg.
130. Act of May 11, 1976 (Pub. L. No. 94-283, Sec. 112(2)), 90 Stat.
489; 2 U.S.C. Sec. 441a(d)(3).
The Party Expenditure Provision of the Federal
Election Campaign Act, which limits expenditures by a
political party ``in connection with the general election
campaign of a [congressional] candidate,'' violates the
First Amendment when applied to expenditures that a
political party makes independently, without coordination
with the candidate.
Colorado Republican Campaign Comm. v.
FEC, 518 U.S. 604 (1996).
Justices concurring: Breyer, O'Connor
and Souter.
Justices concurring in part and
dissenting in part: Kennedy, Scalia,
Thomas, and Chief Justice Rehnquist.
Justices dissenting: Stevens and
Ginsburg.
131. Act of Oct. 17, 1988 (Pub. L. No. 100-497, Sec. 11(d)(7)), 102
Stat. 2472, 25 U.S.C. Sec. 2710(d)(7).
A provision of the Indian Gaming Regulatory Act
authorizing an Indian tribe to sue a State in federal court
to compel performance of a duty to negotiate in good faith
toward the formation of a compact violates the Eleventh
Amendment. In exercise of its powers under Article I,
Congress may not abrogate States' Eleventh Amendment
immunity from suit in federal court. Pennsylvania v. Union
Gas Co., 491 U.S. 1 (1989), is overruled.
Seminole Tribe of Florida v. Florida,
517 U.S. 44 (1996).
Justices concurring: Chief Justice
Rehnquist, and O'Connor, Scalia,
Kennedy, and Thomas.
Justices dissenting: Stevens, Souter,
Ginsburg and Breyer.
132. Act of Nov. 30, 1989 (Pub. L. No. 101-194, Sec. 601), 103 Stat.
1760, 5 U.S.C. app. Sec. 501.
Section 501(b) of the Ethics in Government Act, as
amended in 1989 to prohibit Members of Congress and federal
employees from accepting honoraria, violates the First
Amendment as applied to Executive Branch employees below
grade GS-16. The ban is limited to expressive activity and
does not include other outside income, and the ``speculative
benefits'' of the ban do not justify its ``crudely crafted
burden'' on expression.
United States v. National Treasury
Employees Union, 513 U.S. 454
(1995).
Justices concurring: Stevens, Kennedy,
Souter, Ginsburg, and Breyer.
Justice concurring in part and
dissenting in part: O'Connor.
Justices dissenting: Chief Justice
Rehnquist, and Scalia and Thomas.
133. Act of Nov. 29, 1990 (Pub. L. No. 101-647, Sec. 1702), 104 Stat.
4844, 18 U.S.C. Sec. 922q.
The Gun Free School Zones Act of 1990, which makes
it a criminal offense to knowingly possess a firearm within
a school zone, exceeds congressional power under the
Commerce Clause. It is ``a criminal statute that by its
terms has nothing to do with `commerce' or any sort of
economic enterprise.'' Possession of a gun at or near a
school ``is in no sense an economic activity that might,
through repetition elsewhere, substantially affect any sort
of interstate commerce.''
United States v. Lopez, 514 U.S. 549
(1995).
Justices concurring: Chief Justice
Rehnquist, and O'Connor, Scalia,
Kennedy, and Thomas.
Justices dissenting: Stevens, Souter,
Breyer, and Ginsburg.
134. Act of Dec. 19, 1991 (Pub. L. No. 102-242 Sec. 476), 105 Stat.
2387, 15 U.S.C. Sec. 78aa-1.
Section 27A(b) of the Securities Exchange Act of
1934, as added in 1991, requiring reinstatement of any
section 10(b) actions that were dismissed as time barred
subsequent to a 1991 Supreme Court decision, violates the
Constitution's separation of powers to the extent that it
requires federal courts to reopen final judgments in private
civil actions. The provision violates a fundamental
principle of Article III that the federal judicial power
comprehends the power to render dispositive judgments.
Plaut v. Spendthrift Farm, Inc., 514
U.S. 211 (1995).
Justices concurring: Scalia, O'Connor,
Kennedy, Souter, and Thomas, and
Chief Justice Rehnquist.
Justice concurring specially: Breyer.
Justices dissenting: Stevens and
Ginsburg.
135. Act of Oct. 5, 1992 (Pub. L. No. 102-385, Sec. Sec. 10(b) and
10(c)), 106 Stat. 1487, 1503; 47 U.S.C. Sec. 532(j) and Sec. 531
note, respectively.
Section 10(b) of the Cable Television Consumer
Protection and Competition Act of 1992, which requires cable
operators to segregate and block indecent programming on
leased access channels if they do not prohibit it, violates
the First Amendment. Section 10(c) of the Act, which permits
a cable operator to prevent transmission of ``sexually
explicit'' programming on public access channels, also
violates the First Amendment.
Denver Area Educ. Tel. Consortium v.
FCC, 518 U.S. 727 (1996).
Justices concurring: Breyer, Stevens,
O'Connor (Sec. 10(b) only), Kennedy,
Souter, and Ginsburg.
Justices dissenting: Thomas, Scalia,
O'Connor (Sec. 10(c) only), and
Chief Justice Rehnquist.
136. Act of Oct. 30, 1984, (Pub. L. No. 98-608, Sec. 1(4)), 98 Stat.
3173, 25 U.S.C. Sec. 2206.
Section 207 of the Indian Land Consolidation Act,
as amended in 1984, effects an unconstitutional taking of
property without compensation by restricting a property
owner's right to pass on property to his heirs. The amended
section, like an earlier version held unconstitutional in
Hodel v. Irving (1987), provides that certain small
interests in Indian land will escheat to the tribe upon
death of the owner. None of the changes made in 1984 cures
the constitutional defect.
Babbitt v. Youpee, 519 U.S. 234 (1997).
Justices concurring: Ginsburg, O'Connor,
Scalia, Kennedy, Souter, Thomas,
Breyer, and Chief Justice Rehnquist.
Justice dissenting: Stevens.
137. Act of Nov. 16, 1993 (Pub. L. No. 103-141), 107 Stat. 1488, 42
U.S.C. Sec. Sec. 2000bb to 2000bb-4.
The Religious Freedom Restoration Act, which
directed use of the compelling interest test to determine
the validity of laws of general applicability that
substantially burden the free exercise of religion, exceeds
congressional power under section 5 of the Fourteenth
Amendment. Congress' power under section 5 to ``enforce''
the Fourteenth Amendment by ``appropriate legislation'' does
not extend to defining the substance of the Amendment's
restrictions. This RFRA appears to do. RFRA ``is so far out
of proportion to a supposed remedial or preventive object
that it cannot be understood as responsive to, or designed
to prevent, unconstitutional behavior.''
City of Boerne v. Flores, 521 U.S. 507
(1997).
Justices concurring: Kennedy, Stevens,
Thomas, Ginsburg, and Chief Justice
Rehnquist.
Justice concurring specially: Scalia.
Justices dissenting: O'Connor, Breyer;
Souter.
138. Act of Feb. 8, 1996, 110 Stat. 56, 133-34 (Pub. L. No. 104-104,
title V, Sec. 502), 47 U.S.C. Sec. Sec. 223(a), 223(d).
Two provisions of the Communications Decency Act of
1996--one that prohibits knowing transmission on the
Internet of obscene or indecent messages to any recipient
under 18 years of age, and the other that prohibits the
knowing sending or displaying of patently offensive messages
in a manner that is available to anyone under 18 years of
age--violate the First Amendment.
Reno v. ACLU, 521 U.S. 844 (1997).
Justices concurring: Stevens, Scalia,
Kennedy, Souter, Thomas, Ginsburg,
and Breyer.
Justices concurring in part and
dissenting in part: O'Connor and
Chief Justice Rehnquist.
139. Act of Nov. 30, 1993 (Pub. L. No. 103-159), 107 Stat. 1536.
Interim provisions of the Brady Handgun Violence
Prevention Act that require state and local law enforcement
officers to conduct background checks on prospective handgun
purchasers are inconsistent with the Constitution's
allocation of power between Federal and State governments.
In New York v. United States, 505 U.S. 144 (1992), the Court
held that Congress may not compel states to enact or enforce
a federal regulatory program, and ``Congress cannot
circumvent that prohibition by conscripting the State's
officers directly.''
Printz v. United States, 521 U.S. 898
(1997).
Justices concurring: Scalia, O'Connor,
Kennedy, Thomas, and Chief Justice
Rehnquist.
Justices dissenting: Stevens, Souter,
Ginsburg, and Breyer.
140. Act of Nov. 17, 1986 (Pub. L. No. 99-662, title IV, Sec. 1402(a)),
26 U.S.C. Sec. Sec. 4461, 4462.
The Harbor Maintenance Tax (HMT) violates the
Export Clause of the Constitution, Art. I, Sec. 9, cl. 5 to
the extent that the tax applies to goods loaded for export
at United States ports. The HMT, which requires shippers to
pay a uniform charge of 0.125 percent of cargo value on
commercial cargo shipped through the Nation's ports, is an
impermissible tax rather than a permissible user fee. The
value of export cargo does not correspond reliably with
federal harbor services used by exporters, and the tax does
not, therefore, represent compensation for services
rendered.
United States v. United States Shoe
Corp., 523 U.S. 360 (1998).
141. Act of Oct. 19, 1976 (Pub. L. No. 94-553, Sec. 101(c)), 17 U.S.C.
Sec. 504(c).
Section 504(c) of the Copyright Act, which
authorizes a copyright owner to recover statutory damages,
in lieu of actual damages, ``in a sum of not less than $500
or more than $20,000 as the court considers just,'' does not
grant the right to a jury trial on the amount of statutory
damages. The Seventh Amendment, however, requires a jury
determination of the amount of statutory damages.
Feltner v. Columbia Pictures Television,
523 U.S. 340 (1998).
142. Act of Oct. 24, 1992, Title XIX, 106 Stat. 3037 (Pub. L. No. 102-
486), 26 U.S.C. Sec. Sec. 9701-9722.
The Coal Industry Retiree Health Benefit Act of
1992 is unconstitutional as applied to the petitioner
Eastern Enterprises. Pursuant to the Act, the Social
Security Commissioner imposed liability on Eastern for
funding health care benefits of retirees from the coal
industry who had worked for Eastern prior to 1966. Eastern
had transferred its coal-related business to a subsidiary in
1965. Four Justices viewed the imposition of liability on
Eastern as a violation of the Takings Clause, and one
Justice viewed it as a violation of substantive due process.
Eastern Enterprises v. Apfel, 524 U.S.
498 (1998).
Justices concurring: O'Connor, Scalia,
Thomas, and Chief Justice Rehnquist.
Justice concurring specially: Kennedy.
Justices dissenting: Stevens, Souter,
Ginsburg, and Breyer.
143. Act of April 9, 1996, 110 Stat. 1200 (Pub. L. No. 104-130), 2
U.S.C. Sec. Sec. 691 et seq.
The Line Item Veto Act, which gives the President
the authority to ``cancel in whole'' three types of
provisions that have been signed into law, violates the
Presentment Clause of Article I, section 7. In effect, the
law grants to the President ``the unilateral power to change
the text of duly enacted statutes.'' This Line Item Veto Act
authority differs in important respects from the President's
constitutional authority to ``return'' (veto) legislation:
the statutory cancellation occurs after rather than before a
bill becomes law, and can apply to a part of a bill as well
as the entire bill.
Clinton v. City of New York, 524 U.S.
417 (1998).
Justices concurring: Stevens, Kennedy,
Souter, Thomas, Ginsburg, and Chief
Justice Rehnquist.
Justices dissenting: Scalia, O'Connor,
and Breyer.
144. Act of June 19, 1934, ch. 652, 48 Stat. 1088, Sec. 316, 18 U.S.C.
Sec. 1304.
Section 316 of the Communications Act of 1934,
which prohibits radio and television broadcasters from
carrying advertisements for privately operated casino
gambling regardless of the station's or casino's location,
violates the First Amendment's protections for commercial
speech as applied to prohibit advertising of private casino
gambling broadcast by stations located within a state where
such gambling is illegal.
Greater New Orleans Broadcasting Ass'n
v. United States, 527 U.S. 173
(1999).
Justices concurring: Stevens, O'Connor,
Scalia, Kennedy, Souter, Ginsburg,
Breyer, and Chief Justice Rehnquist.
Justice concurring specially: Thomas.
145. Act of April 8, 1974, Pub. L. No. 93-259, Sec. Sec. 6(a)(6),
6(d)(1), 29 U.S.C. Sec. Sec. 203(x), 216(b).
Fair Labor Standards Amendments of 1974 subjecting
non-consenting states to suits for damages brought by
employees in state courts violates the principle of
sovereign immunity implicit in the constitutional scheme.
Congress lacks power under Article I to subject non-
consenting states to suits for damages in state courts.
Alden v. Maine, 527 U.S. 706 (1999).
Justices concurring: Kennedy, O'Connor,
Scalia, Thomas, and Chief Justice
Rehnquist.
Justices dissenting: Souter, Stevens,
Ginsburg, and Breyer.
146. Act of Oct. 27, 1992, Pub. L. No. 102-542, 15 U.S.C. Sec. 1122.
The Trademark Remedy Clarification Act, which
provided that states shall not be immune from suit under the
Trademark Act of 1946 (Lanham Act) ``under the eleventh
amendment . . . or under any other doctrine of sovereign
immunity,'' did not validly abrogate state sovereign
immunity. Congress lacks power to do so in exercise of
Article I powers, and the TRCA cannot be justified as an
exercise of power under section 5 of the Fourteenth
Amendment. The right to be free from a business competitor's
false advertising is not a ``property right'' protected by
the Due Process Clause.
College Savings Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527
U.S. 666 (1999).
Justices concurring: Scalia, O'Connor,
Kennedy, Thomas, and Chief Justice
Rehnquist.
Justices dissenting: Stevens, Souter,
Ginsburg, and Breyer.
147. Act of Oct. 28, 1992, 106 Stat. 4230, Pub. L. No. 102-560, 29
U.S.C. Sec. 296.
The Patent and Plant Variety Remedy Clarification
Act, which amended the patent laws to expressly abrogate
states' sovereign immunity from patent infringement suits is
invalid. Congress lacks power to abrogate state immunity in
exercise of Article I powers, and the Patent Remedy
Clarification Act cannot be justified as an exercise of
power under section 5 of the Fourteenth Amendment. Section 5
power is remedial, yet the legislative record reveals no
identified pattern of patent infringement by states and the
Act's provisions are ``out of proportion to a supposed
remedial or preventive object.''
Florida Prepaid Postsecondary Educ.
Expense Bd. v. College Savings Bank,
527 U.S. 627 (1999).
Justices concurring: Chief Justice
Rehnquist, and O'Connor, Scalia,
Kennedy, and Thomas.
Justices dissenting: Stevens, Souter,
Ginsburg, and Breyer.
148. Act of April 8, 1974 (Pub. L. No. 93-259, Sec. Sec. 6(d)(1),
28(a)(2)), 88 Stat. 61, 74; 29 U.S.C. Sec. Sec. 216(b), 630(b).
The Fair Labor Standards Act Amendments of 1974,
amending the Age Discrimination in Employment Act to subject
states to damages actions in federal courts, exceeds
congressional power under section 5 of the Fourteenth
Amendment. Age is not a suspect classification under the
Equal Protection Clause, and the ADEA is ``so out of
proportion to a remedial or preventive object that it cannot
be understood as responsive to, or designed to prevent,
unconstitutional behavior.''
Kimel v. Florida Bd. of Regents, 120 S.
Ct. 631 (2000).
Justices concurring: O'Connor, Scalia,
Kennedy, Thomas, and Chief Justice
Rehnquist.
Justices dissenting: Stevens, Souter,
Ginsburg, and Breyer.
149. Act of September 13, 1994 (Pub. L. No. 103-322, Sec. 40302), 108
Stat. 1941, 42 U.S.C. Sec. 13981.
A provision of the Violence Against Women Act that
creates a federal civil remedy for victims of gender-
motivated violence exceeds congressional power under the
Commerce Clause and under section 5 of the Fourteenth
Amendment. The commerce power does not authorize Congress to
regulate ``noneconomic violent criminal conduct based solely
on that conduct's aggregate effect on interstate commerce.''
The Fourteenth Amendment prohibits only state action, and
affords no protection against purely private conduct.
Section 13981, however, is not aimed at the conduct of state
officials, but is aimed at private conduct.
United States v. Morrison, 120 S. Ct.
1740 (2000).
Justices concurring: Chief Justice
Rehnquist, and O'Connor, Scalia,
Kennedy, and Thomas.
Justices dissenting: Souter, Breyer,
Stevens, and Ginsburg.
150. Act of Feb. 8, 1996 (Pub. L. No. 104-104, Sec. 505), 110 Stat.
136, 47 U.S.C. Sec. 561.
Section 505 of the Telecommunications Act of 1996,
which required cable TV operators that offer channels
primarily devoted to sexually oriented programming to
prevent signal bleed either by fully scrambling those
channels or by limiting their transmission to designated
hours when children are less likely to be watching, violates
the First Amendment. The provision is content-based, and
therefore can only be upheld if narrowly tailored to promote
a compelling governmental interest. The measure is not
narrowly tailored, since the Government did not establish
that the less restrictive alternative found in section 504
of the Act--that of scrambling a channel at a subscriber's
request--would be ineffective.
United States v. Playboy Entertainment
Group, Inc., 120 S. Ct. 1878 (2000).
Justices concurring: Kennedy, Stevens,
Souter, Thomas, and Ginsburg.
Justices dissenting: Scalia, Breyer,
O'Connor, and Chief Justice
Rehnquist.
151. Act of June 19, 1968 (Pub. L. No. 90-351, Sec. 701(a)), 82 Stat.
210, 18 U.S.C. Sec. 3501.
A section of the Omnibus Crime Control and Safe
Streets Act of 1968 purporting to reinstate the
voluntariness principle that had governed the
constitutionality of custodial interrogations prior to the
Court's decision in Miranda v. Arizona, 384 U.S. 486 (1966),
is an invalid attempt by Congress to redefine a
constitutional protection defined by the Court. The warnings
to suspects required by Miranda are constitution-based
rules. While the Miranda Court invited a legislative rule
that would be ``at least as effective'' in protecting a
suspect's right to remain silent, section 3501 is not an
adequate substitute.
Dickerson v. United States, 120 S. Ct.
2326 (2000).
Justices concurring: Chief Justice
Rehnquist, and Stevens, O'Connor,
Kennedy, Souter, and Ginsburg.
Justices dissenting: Scalia and Thomas.
STATE ACTS HELD UNCONSTITUTIONAL
1090. Edenfield v. Fane, 507 U.S. 761 (1993).
A rule of the Florida Board of Accountancy banning
``direct, in-person, uninvited solicitation'' of business by
certified public accountants is inconsistent with the free
speech guarantees of the First Amendment.
Justices concurring: Kennedy, White,
Blackmun, Stevens, Scalia, Souter,
Thomas, and Chief Justice Rehnquist.
Justice dissenting: O'Connor.
1091. Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114 (1993).
Oklahoma may not impose income taxes or motor
vehicle taxes on members of the Sac and Fox Nation who live
in ``Indian country,'' whether the land is within
reservation boundaries, on allotted lands, or in dependent
communities. Such tax jurisdiction is considered to be
preempted unless Congress has expressly provided to the
contrary.
1092. Department of Treasury v. Fabe, 508 U.S. 491 (1993).
An Ohio statute setting priority of claims against
insolvent insurance companies is preempted by the federal
priority statute, 31 U.S.C. Sec. 3713, which accords first
priority to the United States, to the extent that the Ohio
law protects the claims of creditors who are not
policyholders. Insofar as it protects the claims of
policyholders, the law is saved from preemption by section
2(b) of the McCarran-Ferguson Act.
Justices concurring: Blackmun, White,
Stevens, O'Connor, and Chief Justice
Rehnquist.
Justices dissenting: Kennedy, Scalia,
Souter, Thomas.
1093. Oregon Waste Systems, Inc. v. Department of Envtl. Quality, 511
U.S. 93 (1994).
Oregon's imposition of a surcharge on in-state
disposal of solid waste generated in other states--a tax
three times greater than the fee charged for disposal of
waste that was generated in Oregon--constitutes an invalid
burden on interstate commerce. The tax is facially
discriminatory against interstate commerce, is not a valid
compensatory tax, and is not justified by any other
legitimate state interest.
Justices concurring: Thomas, Stevens,
O'Connor, Scalia, Kennedy, Souter,
Ginsburg.
Justices dissenting: Chief Justice
Rehnquist, and Blackmun.
1094. Associated Industries v. Lohman, 511 U.S. 641 (1994).
Missouri's uniform, statewide use tax constitutes
an invalid discrimination against interstate commerce in
those counties in which the use tax is greater than the
sales tax imposed as a local option, even though the overall
statewide effect of the use tax places a lighter aggregate
tax burden on interstate commerce than on intrastate
commerce.
1095. Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767 (1994).
Montana's tax on the possession of illegal drugs,
to be ``collected only after any state or federal fines or
forfeitures have been satisfied,'' constitutes punishment,
and violates the prohibition, derived from the Double
Jeopardy Clause, against successive punishments for the same
offense.
Justices concurring: Stevens, Blackmun,
Kennedy, Souter, and Ginsburg.
Justices dissenting: Chief Justice
Rehnquist, and O'Connor, Scalia, and
Thomas.
1096. West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994).
A Massachusetts milk pricing order, imposing an
assessment on all milk sold by dealers to Massachusetts
retailers, is an unconstitutional discrimination against
interstate commerce because the entire assessment is then
distributed to Massachusetts dairy farmers in spite of the
fact that about two-thirds of the assessed milk is produced
out of state. The discrimination imposed by the pricing
order is not justified by a valid factor unrelated to
economic protectionism.
Justices concurring: Stevens, O'Connor,
Kennedy, Souter, and Ginsburg.
Justices concurring specially: Scalia
and Thomas.
Justices dissenting: Chief Justice
Rehnquist and Blackmun.
1097. Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).
A provision of the Oregon Constitution, prohibiting
judicial review of the amount of punitive damages awarded by
a jury unless the court can affirmatively say there is no
evidence to support the verdict, is invalid under the Due
Process Clause of the Fourteenth Amendment. Judicial review
of the amount awarded was one of the few procedural
safeguards available at common law, yet Oregon has removed
that safeguard without providing any substitute procedure,
and with no indication that the danger of arbitrary awards
has subsided.
Justices concurring: Stevens, Blackmun,
O'Connor, Scalia, Kennedy, Souter,
and Thomas.
Justices dissenting: Ginsburg and Chief
Justice Rehnquist.
1098. Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687
(1994).
A New York State law creating a special school
district for an incorporated village composed exclusively of
members of one small religious sect violates the
Establishment Clause.
Justices concurring: Souter, Blackmun,
Stevens, O'Connor, and Ginsburg.
Justice concurring specially: Kennedy.
Justices dissenting: Scalia, Thomas, and
Chief Justice Rehnquist.
1099. American Airlines v. Wolens, 513 U.S. 219 (1995).
The Illinois Consumer Fraud Act, to the extent that
it authorizes actions in state court challenging as ``unfair
or deceptive'' marketing practices an airline company's
changes in its frequent flyer program, is preempted by the
Airline Deregulation Act, which prohibits states from
``enact[ing] or enforc[ing] any law . . . relating to [air
carrier] rates, routes, or services.''
Justices concurring: Ginsburg, Kennedy,
Souter, Breyer, and Chief Justice
Rehnquist.
Justices concurring specially: O'Connor,
Thomas.
Justice dissenting: Stevens.
1100. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995).
Ohio's prohibition on the distribution of anonymous
campaign literature abridges the freedom of speech. The law,
aimed at speech designed to influence voters in an election,
is a limitation on political expression subject to exacting
scrutiny. Neither of the interests asserted by Ohio
justifies the limitation.
Justices concurring: Stevens, O'Connor,
Kennedy, Souter, Ginsburg, and
Breyer.
Justice concurring specially: Thomas.
Justices dissenting: Scalia, and Chief
Justice Rehnquist.
1101. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).
An amendment to the Arkansas Constitution denying
ballot access to congressional candidates who have already
served three terms in the House of Representatives or two
terms in the Senate is invalid as conflicting with the
qualifications for office set forth in Article I of the U.S.
Constitution, (specifying age, duration of U.S. citizenship,
and state inhabitancy requirements). Article I sets the
exclusive qualifications for a United States Representative
or Senator.
Justices concurring: Stevens Kennedy,
Souter, Ginsburg, and Breyer.
Justices dissenting: Thomas, O'Connor,
Scalia, and Chief Justice Rehnquist.
1102. Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995).
Oklahoma may not impose its motor fuels excise tax
upon fuel sold by Chickasaw Nation retail stores on tribal
trust land. The legal incidence of the motor fuels tax
fall--on the retailer, located within Indian country, and
the petitioner did not properly raise the issue of whether
Congress had authorized such taxation in the Hayden-
Cartwright Act.
1103. Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995).
Application of Massachusetts' public accommodations
law to require the private organizers of a St. Patrick's Day
parade to allow participation in the parade by a gay and
lesbian group wishing to proclaim its members' gay and
lesbian identity violates the First Amendment because it
compels parade organizers to include in the parade a message
they wish to exclude.
1104. Miller v. Johnson, 515 U.S. 900 (1995).
Georgia's congressional districting plan violates
the Equal Protection Clause. The district court's finding
that race was the predominant factor in drawing the
boundaries of the Eleventh District was not clearly
erroneous. The State did not meet its burden under strict
scrutiny review to demonstrate that its districting was
narrowly tailored to achieve a compelling interest.
Justices concurring: Kennedy, O'Connor,
Scalia, Thomas, and Chief Justice
Rehnquist.
Justices dissenting: Stevens Ginsburg,
Breyer, and Souter.
1105. Fulton Corp. v. Faulkner, 516 U.S. 325 (1996).
North Carolina's intangibles tax on a fraction of
the value of corporate stock owned by North Carolina
residents inversely proportional to the corporation's
exposure to the State's income tax, violates the ``dormant''
Commerce Clause. The tax facially discriminates against
interstate commerce, and is not a ``compensatory tax''
designed to make interstate commerce bear a burden already
borne by intrastate commerce.
1106. Barnett Bank v. Nelson, 517 U.S. 25 (1996).
A federal law empowering national banks in small
towns to sell insurance (12 U.S.C. Sec. 92) preempts a
Florida law prohibiting banks from dealing in insurance. The
federal law contains no explicit statement of preemption,
but preemption is implicit because the state law stands as
an obstacle to the accomplishment of one of the federal
law's purposes.
1107. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).
Rhode Island's statutory prohibition against
advertisements that provide the public with accurate
information about retail prices of alcoholic beverages
abridges freedom of speech protected by the First Amendment,
and is not shielded from constitutional scrutiny by the
Twenty-first Amendment. There is not a ``reasonable fit''
between the blanket prohibition and the State's goal of
reducing alcohol consumption.
Justices concurring: Stevens, Scalia (in
part), Kennedy (in part), Souter (in
part), Thomas (in part), and
Ginsburg (in part).
Justices concurring specially: Scalia,
Thomas, O'Connor, Souter, Breyer,
and Chief Justice Rehnquist.
1108. Romer v. Evans, 517 U.S. 620 (1996).
Amendment 2 to the Colorado Constitution, which
prohibits all legislative, executive, or judicial action at
any level of state or local government if that action is
designed to protect homosexuals, violates the Equal
Protection Clause of the Fourteenth Amendment. The
amendment, adopted by statewide referendum in 1992, does not
bear a rational relationship to a legitimate governmental
purpose.
Justices concurring: Kennedy, Stevens,
O'Connor, Souter, Ginsburg, and
Breyer.
Justices dissenting: Scalia, Thomas, and
Chief Justice Rehnquist.
1109. Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681 (1996).
A Montana law declaring an arbitration clause
unenforceable unless notice that the contract is subject to
arbitration appears in underlined capital letters on the
first page of the contract is preempted by the Federal
Arbitration Act.
Concurring Justices: Ginsburg, Stevens,
O'Connor, Scalia, Kennedy, Souter,
Breyer, and Chief Justice Rehnquist.
Justice dissenting: Thomas.
1110. Shaw v. Hunt, 517 U.S. 899 (1996).
North Carolina's congressional districting law,
containing the racially gerrymandered 12th Congressional
District as well as another majority-black district,
violates the Equal Protection Clause because, under strict
scrutiny applicable to racial classifications, creation of
District 12 was not narrowly tailored to serve a compelling
state interest. Creation of District 12 was not necessary to
comply with either section 2 or section 5 of the Voting
Rights Act, and the lower court found that the redistricting
plan was not actually aimed at ameliorating past
discrimination.
Justices concurring: Chief Justice
Rehnquist, and O'Connor, Scalia,
Kennedy, and Thomas.
Justices dissenting: Stevens, Ginsburg,
Souter, and Breyer.
1111. Bush v. Vera, 517 U.S. 952 (1996).
Three congressional districts created by Texas law
constitute racial gerrymanders that are unconstitutional
under the Equal Protection Clause. The district court
correctly held that race predominated over legitimate
districting considerations, including incumbency, and
consequently strict scrutiny applies. None of the three
districts is narrowly tailored to serve a compelling state
interest.
Justices concurring: O'Connor, Kennedy,
and Chief Justice Rehnquist.
Justices concurring specially: O'Connor,
Kennedy, Thomas, and Scalia.
Justices dissenting: Stevens, Ginsburg,
Breyer, and Souter.
1112. United States v. Virginia, 518 U.S. 515 (1996).
Virginia's exclusion of women from the educational
opportunities provided by Virginia Military Institute denies
to women the equal protection of the laws. A state must
demonstrate ``exceedingly persuasive justification'' for
gender discrimination, and Virginia has failed to do so in
this case.
Justices concurring: Ginsburg, Stevens,
O'Connor, Kennedy, Souter, and
Breyer.
Justice concurring specially: Chief
Justice Rehnquist.
Justice dissenting: Scalia.
1113. M.L.B. v. S.L.J., 519 U.S. 102 (1996).
Mississippi statutes that condition appeals from
trial court decrees terminating parental rights on the
affected parent's ability to pay for preparation of a trial
transcript violate the Equal Protection and Due Process
Clauses of the Fourteenth Amendment. Decrees terminating
parental rights belong in the same category of cases,
starting with Griffin v. Illinois, 351 U.S. 12 (1956), in
which the Court has ruled that the State's adverse action
against an individual is so devastating that access to
appellate review may not be made contingent upon ability to
pay.
Justices concurring: Ginsburg, Stevens,
O'Connor, Souter, and Breyer.
Justice concurring specially: Kennedy.
Justices dissenting: Chief Justice
Rehnquist, and Thomas, and Scalia.
1114. Lynce v. Mathis, 519 U.S. 433 (1997).
A Florida statute canceling early release credits
awarded to prisoners as a result of prison overcrowding
violates the Ex Post Facto Clause, Art. I, Sec. 10, cl. 1,
as applied to a prisoner who had already been awarded the
credits and released from custody. The cancellation of early
release credits met the two-part test for an ex post facto
law: it was ``clearly retrospective'' and it disadvantaged
the petitioner by lengthening his period of incarceration.
Justices concurring: Stevens, O'Connor,
Kennedy, Souter, Ginsburg, Breyer,
and Chief Justice Rehnquist.
Justices concurring specially: Thomas,
and Scalia.
1115. Chandler v. Miller, 520 U.S. 305 (1997).
A Georgia statute requiring that candidates for
state office certify that they have passed a drug test
effects a ``search'' that is plainly not tied to
individualized suspicion, and does not fit within the
``closely guarded category of constitutionally permissible
suspicionless searches,'' and hence violates the Fourth
Amendment. Georgia has failed to establish existence of a
``special need, beyond the normal need for law
enforcement,'' that can justify such a search.
Justices concurring: Ginsburg, Stevens,
O'Connor, Scalia, Kennedy, Souter,
Thomas, and Breyer.
Justice dissenting: Chief Justice
Rehnquist.
1116. Camps Newfound/Owatonna v. Town of Harrison, 520 U.S. 564 (1997).
Maine's property tax law, which contains an
exemption for charitable institutions but limits that
exemption to institutions serving principally Maine
residents, violates the ``dormant'' Commerce Clause as
applied to deny exemption status to a nonprofit corporation
that operates a summer camp for children, most of whom are
not Maine residents. The nonprofit character of the
enterprise does not exclude it from protection.
Protectionism, whether targeted at for-profit or not-for-
profit entities, is prohibited.
Justices concurring: Stevens, O'Connor,
Kennedy, Souter, and Breyer.
Justices dissenting: Scalia, Thomas,
Ginsburg, and Chief Justice
Rehnquist.
1117. Foster v. Love, 522 U.S. 67 (1997).
A Louisiana statute that provides for an ``open
primary'' in October for election of Members of Congress and
that provides that any candidate receiving a majority of the
vote in that primary ``is elected,'' conflicts with the
federal law, 2 U.S.C. Sec. Sec. 1 and 7, that provides for a
uniform federal election day in November, and is void to the
extent of conflict. ``[A] contested selection of candidates
for a congressional office that is concluded as a matter of
law before the federal election day . . . clearly violates
Sec. 7.''
1118. Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287 (1998).
A New York law that effectively denies only
nonresident taxpayers an income tax deduction for alimony
paid violates the Privileges or Immunities Clause of Art.
IV, Sec. 2. New York did not adequately justify its failure
to treat resident and nonresident taxpayers with substantial
equality.
Justices concurring: O'Connor, Stevens,
Scalia, Souter, Thomas, and Breyer.
Justices dissenting: Ginsburg, Kennedy,
and Chief Justice Rehnquist.
1119. Knowles v. Iowa, 525 U.S. 113 (1998).
An Iowa statute authorizing law enforcement
officers to conduct a full-blown search of an automobile
when issuing a traffic citation violates the Fourth
Amendment. The rationales that justify a search incident to
arrest do not justify a similar search incident to a traffic
citation.
1120. Buckley v. American Constitutional Law Found., 525 U.S. 182
(1999).
Three conditions that Colorado placed on the
petition process for ballot initiatives--that petition
circulators be registered voters, that they wear
identification badges, and that initiative sponsors report
the names and addresses of circulators and the amounts paid
to each--impermissibly restrict political speech in
violation of the First and Fourteenth Amendments.
Justices concurring: Ginsburg, Stevens,
Scalia, Kennedy, and Souter.
Justice concurring specially: Thomas.
Justices concurring in part and
dissenting in part: O'Connor,
Souter, and Chief Justice Rehnquist.
1121. South Central Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999).
Alabama's franchise tax law discriminates against
foreign corporations in violation of the Commerce Clause.
The law establishes a domestic corporation's tax base as the
par value of its capital stock, a value that the corporation
may set at whatever level it chooses. The tax base of a
foreign corporation, on the other hand, contains balance
sheet items that the corporation cannot so manipulate.
1122. Saenz v. Roe, 526 U.S. 489 (1999).
A provision of California's Welfare and
Institutions Code limiting new residents, for the first year
they live in California, to the level of welfare benefits
that they would have received in the state of their prior
residence abridges the right to travel in violation of the
Fourteenth Amendment.
Justices concurring: Stevens, O'Connor,
Scalia, Kennedy, Souter, Ginsburg,
and Breyer.
Justices dissenting: Chief Justice
Rehnquist, and Thomas.
1123. Rice v. Cayetano, 120 S. Ct. 1044 (2000).
A provision of the Hawaii Constitution restricting
the right to vote for trustees of the Office of Hawaiian
Affairs to persons who are descendants of people inhabiting
the Hawaiian Islands in 1778 is a race-based voting
qualification that violates the Fifteenth Amendment.
Ancestry can be--and in this case is--a proxy for race.
Justices concurring: Kennedy, O'Connor,
Scalia, Thomas, and Chief Justice
Rehnquist.
Justices concurring specially: Breyer
and Souter.
Justices dissenting: Stevens and
Ginsburg.
1124. United States v. Locke, 120 S. Ct. 1135 (2000).
Four Washington State regulations governing oil
tanker operations and manning are preempted. Primarily
through Title II of the Ports and Waterways Safety Act of
1972, Congress has occupied the field of regulation of
general seaworthiness of tankers and their crews, and there
is no room for these state regulations imposing training and
English language proficiency requirements on crews and
imposing staffing requirements for navigation watch. State
reporting requirements applicable to certain marine
incidents are also preempted.
1125. Carmell v. Texas, 120 S. Ct. 1620 (2000).
A Texas law that eliminated a requirement that the
testimony of a sexual assault victim age 14 or older must be
corroborated by two other witnesses violates the Ex Post
Facto Clause of Art. I, Sec. 10 as applied to a crime
committed while the earlier law was in effect. So applied,
the law falls into the category of an ex post facto law that
requires less evidence in order to convict. Under the old
law, the petitioner could have been convicted only if the
victim's testimony had been corroborated by two witnesses,
while under the amended law the petitioner was convicted on
the victim's testimony alone.
Justices concurring: Stevens, Scalia,
Souter, Thomas, and Breyer.
Justices dissenting: Ginsburg, O'Connor,
Kennedy, and Chief Justice
Rehnquist.
1126. Troxel v. Granville, 120 S. Ct. 2054 (2000).
A Washington State law allowing ``any person'' to
petition a court ``at any time'' to obtain visitation rights
whenever visitation ``may serve the best interests'' of a
child is unconstitutional as applied to an order requiring a
parent to allow her child's grandparents more extensive
visitation than the parent wished. Because no deference was
accorded to the parent's wishes, the parent's due process
liberty interest in making decisions concerning her child's
care, custody, and control was violated.
Justices concurring: O'Connor, Ginsburg,
Breyer, and Chief Justice Rehnquist.
Justices concurring specially: Souter
and Thomas.
Justices dissenting: Stevens, Scalia,
and Kennedy.
1127. Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).
A New Jersey ``hate crime'' statute that allows a
judge to extend a sentence upon finding by a preponderance
of the evidence that the defendant, in committing a crime
for which he has been found guilty, acted with a purpose to
intimidate because of race, violates the Fourteenth
Amendment's Due Process Clause and the Sixth Amendment's
requirements of speedy and public trial by an impartial
jury. Any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury
and established beyond a reasonable doubt.
Justices concurring: Stevens, Scalia,
Souter, Thomas, and Ginsburg.
Justice concurring specially: Thomas.
Justices dissenting: O'Connor, Kennedy,
Breyer, and Chief Justice Rehnquist.
1128. California Democratic Party v. Jones, 120 S. Ct. 2402 (2000).
California's ``blanket primary'' law violates the
First Amendment associational rights of political parties.
The law lists all candidates on one ballot and allows
primary voters to choose freely among candidates without
regard to party affiliation. The law ``adulterate[s]'' a
party's candidate-selection process by forcing the party to
open up that process to persons wholly unaffiliated with the
party, and is not narrowly tailored to serve a compelling
state interest.
Justices concurring: Scalia, O'Connor,
Kennedy, Souter, Thomas, Breyer, and
Chief Justice Rehnquist.
Justices dissenting: Stevens and
Ginsburg.
1129. Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000).
Application of New Jersey's public accommodations
law to require the Boy Scouts of America to admit an avowed
homosexual as a member and assistant scout master violates
the organization's First Amendment associational rights. The
general mission of the Scouts, to instill values in young
people, is expressive activity entitled to First Amendment
protection, and requiring the Scouts to admit a gay scout
leader would contravene the Scouts' asserted policy
disfavoring homosexual conduct.
Justices concurring: Chief Justice
Rehnquist, and O'Connor, Scalia,
Kennedy, and Thomas.
Justices dissenting: Stevens, Souter,
Ginsburg, and Breyer.
1130. Stenberg v. Carhart, 120 S. Ct. 2597 (2000).
Nebraska's statute criminalizing the performance of
``partial birth abortions'' is unconstitutional under
principles set forth in Roe v. Wade and Planned Parenthood
v. Casey. The statute lacks an exception for instances in
which the banned procedure is necessary to preserve the
health of the mother, and, because it applies to the
commonplace dilation and evacuation procedure as well as to
the dilation and extraction method, imposes an ``undue
burden'' on a woman's right to an abortion.
Justices concurring: Breyer, Stevens,
O'Connor, Souter, and Ginsburg.
Justices dissenting: Chief Justice
Rehnquist, and Scalia, Kennedy, and
Thomas.
ORDINANCES HELD UNCONSTITUTIONAL
125. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410
(1993).
Cincinnati's refusal, pursuant to an ordinance
prohibiting distribution of commercial handbills on public
property, to allow the distribution of commercial
publications through freestanding newsracks located on
public property, while at the same time allowing similar
distribution of newspapers and other noncommercial
publications, violates the First Amendment.
Justices concurring: Stevens, Blackmun,
O'Connor, Scalia, Kennedy, and
Souter.
Justices dissenting: Chief Justice
Rehnquist, and White and Thomas.
126. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520
(1993).
Hialeah, Florida ordinances banning the killing of
animals in a ritual sacrifice are unconstitutional as
infringing the free exercise of religion by members of the
Santeria religion.
Justices concurring: Kennedy, White,
Stevens, Scalia, Souter, Thomas, and
Chief Justice Rehnquist.
Justices concurring specially: Blackmun
and O'Connor.
127. C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994).
Clarkstown, New York ``flow control'' ordinance,
which requires all solid waste within the town to be
processed at a designated transfer station before leaving
the municipality, discriminates against interstate commerce
and is invalid under the Commerce Clause.
Justices concurring: Kennedy, Stevens,
Scalia, Thomas, and Ginsburg.
Justice concurring specially: O'Connor.
Justices dissenting: Souter, Blackmun,
and Chief Justice Rehnquist.
128. City of Ladue v. Gilleo, 512 U.S. 43 (1994).
An ordinance of the City of Ladue, Missouri, which
prohibits all signs but makes exceptions for several narrow
categories, violates the First Amendment by prohibiting a
resident from placing in the window of her home a sign
containing a political message. By prohibiting residential
signs that carry political, religious, or personal messages,
the ordinance forecloses ``a venerable means of
communication that is both unique and important.''
129. City of Chicago v. Morales, 527 U.S. 41 (1999).
Chicago's Gang Congregation Ordinance, which
prohibits ``criminal street gang members'' from
``loitering'' with one another or with other persons in any
public place after being ordered by a police officer to
disperse, violates the Due Process Clause of the Fourteenth
Amendment. The ordinance violates the requirement that a
legislature establish minimal guidelines for law
enforcement.
Justices concurring: Stevens, O'Connor,
Kennedy, Souter, Ginsburg, and
Breyer.
Justices dissenting: Scalia, Thomas, and
Chief Justice Rehnquist.
SUPREME COURT DECISIONS OVERRULED BY SUBSEQUENT DECISION
Overruling Case Overruled Case(s)
* 205.United States v. Dixon, 509 Grady v. Corbin, 495 U.S. 508
U.S. 688 (1993). (1990).
* 206. Nichols v. United States, 511 Baldasar v. Illinois, 446
U.S. 738 (1994). U.S. 222 (1980).
* 207. Hubbard v. United States, 514 United States v. Bramblett,
U.S. 695 (1995). 348 U.S. 503 (1955).
* 208. Adarand Constructors, Inc. v. Metro Broadcasting, Inc. v.
Pena, 515 U.S. 200 (1995). FCC, 497 U.S. 547 (1990);
Fullilove v. Klutznick, 448
U.S. 448 (1990) (in part).
* 209. United States v. Gaudin, 515 Sinclair v. United States,
U.S. 506 (1995). 279 U.S. 263 (1929).
* 210. Fulton Corp. v. Faulkner, 516 Darnell v. Indiana, 226 U.S.
U.S. 325 (1996). 390 (1912).
* 211. Seminole Tribe of Florida v. Pennsylvania v. Union Gas
Florida, 517 U.S. 44 (1996). Co., 491 U.S. 1 (1989).
* 212. 44 Liquormart, Inc. v. Rhode California v. LaRue, 409 U.S.
Island, 517 U.S. 484 (1996). 109 (1972) (in part);
New York State Liquor Auth.
v. Bellanca, 452 U.S. 714
(1981) (in part);
City of Newport v. Iacobucci,
479 U.S. 92 (1986) (in part).
* 213. Agostini v. Felton, 521 U.S. Aguilar v. Felton, 473 U.S.
203 (1997). 402 (1985);
Grand Rapids School Dist. v.
Ball, 473 U.S. 373 (1985) (in
part).
* 214. State Oil Co. v. Khan, 522 Albrecht v. Herald Co., 390
U.S. 3 (1997). U.S. 145 (1968).
* 215. Hudson v. United States, 522 United States v. Halper, 490
U.S. 93 (1997). U.S. 435 (1989).
* 216. Hohn v. United States, 524 House v. Mayo, 324 U.S. 42
U.S. 236 (1998). (1945).
* 217.Minnesota v. Mille Lacs Band Ward v. Race Horse, 163 U.S.
of Chippewa Indians, 526 U.S. 504 (1896) (in part).
172 (1999).
* 218.College Savings Bank v. Parden v. Terminal Ry., 377
Florida Prepaid Postsecondary U.S. 184 (1964) (in part).
Educ. Expense Bd., 527 U.S.
666 (1999).
* 219. Mitchell v. Helms, 120 S. Ct. Meek v. Pittenger, 421 U.S.
2530 (2000). 349 (1975);
Wolman v. Walter, 433 U.S.
229 (1977).
TABLE OF CASES
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) ...... 71, 73,
149, 162, 171
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ................ 37
Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971) ................... 143
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) ...... 39, 137,
171
Agostini v. Felton, 521 U.S. 203 (1997) ........... 39, 49, 54, 55, 171
Aguilar v. Felton, 473 U.S. 402 (1985) ..................... 53-56, 171
Albrecht v. Herald Co., 390 U.S. 145 (1968) ....................... 171
Albright v. Oliver, 510 U.S. 266 (1994) ........................... 133
Alden v. Maine, 527 U.S. 706 (1999) ................ 121, 122, 124, 156
Alexander v. United States, 509 U.S. 544 (1993) ................ 63, 76
Allen v. Wright, 468 U.S. 737 (1984) ............................... 33
Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) ....... 8, 16
Almendarez-Torres v. United States, 523 U.S. 224 (1998) ....... 96, 135
American Airlines v. Wolens, 513 U.S. 219 (1995) .............. 13, 160
American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) ..... 131,
136
Andresen v. Maryland, 427 U.S. 463 (1976) .......................... 98
Apprendi v. New Jersey, 120 S. Ct. 2348 (2000) ............... 135, 167
Arave v. Creech, 507 U.S. 463 (1993) .............................. 116
Arizona Dep't of Revenue v. Blaze Constr. Co., 526 U.S. 32 (1999)
.................................................................... 48
Arizona v. Evans, 514 U.S. 1 (1995) ................................ 92
Arizonans For Official English v. Arizona, 520 U.S. 43 (1997) ...... 37
Arkansas Educ. Television Comm'n v. Forbes, 523 U.S. 666 (1998)
79
Associated Industries v. Lohman, 511 U.S. 641 (1994) .............. 159
Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) ............ 124
Austin v. United States, 509 U.S. 602 (1993) ...................... 115
Babbitt v. Youpee, 519 U.S. 234 (1997) ....................... 105, 153
Baldasar v. Illinois, 446 U.S. 222 (1980) ......................... 171
Baltimore Dep't of Social Servs. v. Bouknight, 493 U.S. 549 (1990)
................................................................... 98
Barclays Bank v. Franchise Tax Bd. of California, 512 U.S. 298
(1994) ............................................................ 13
Barnett Bank v. Nelson, 517 U.S. 25 (1996) ................ 15, 16, 162
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) ................. 72
Bennett v. Spear, 520 U.S. 154 (1997) .......................... 34, 36
Bennis v. Michigan, 516 U.S. 442 (1996) ........................... 128
Blodgett v. Holden, 275 U.S. 142 (1927) ........................... 102
BMW v. Gore, 517 U.S. 559 (1996) .................................. 131
Board of County Comm'rs v. Umbehr, 518 U.S. 668 (1996) ......... 65, 66
Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687
(1994) ............................................... 49, 50, 60, 160
Board of Regents of the Univ. of Wisconsin System v. Southworth,
120 S. Ct. 1346 (2000) ............................................ 64
Boddie v. Connecticut, 401 U.S. 371 (1971) ........................ 142
Boggs v. Boggs, 520 U.S. 833 (1997) ............................. 14-16
Bond v. United States, 120 S. Ct. 1462 (2000) .................. 87, 89
Bousley v. Brooks, 523 U.S. 614 (1998) ......................... 37, 42
Bowen v. Kendrick, 487 U.S. 589 (1988) ............................. 54
Boy Scouts of America v. Dale, 120 S. Ct. 2446 (2000) ......... 64, 167
Bradfield v. Roberts, 175 U.S. 291 (1899) .......................... 54
Braunfeld v. Brown, 366 U.S. 599 (1961) ............................ 50
Breard v. Greene, 523 U.S. 371 (1998) ............................. 121
Brecht v. Abrahamson, 507 U.S. 619 (1993) ..................... 98, 117
Buchanan v. Angelone, 522 U.S. 269 (1998) ......................... 116
Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999)
.......................................................... 67, 82, 165
Bush v. Vera, 517 U.S. 952 (1996) ............................ 140, 163
Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525 (1958) .......... 41
C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383 (1994)
9, 12, 169
Calderon v. Coleman, 525 U.S. 141 (1998) .......................... 117
California Democratic Party v. Jones, 120 S. Ct. 2402 (2000) ...... 167
California Dep't of Corrections v. Morales, 514 U.S. 499 (1995)
20
California Div. of Labor Stds. Enforcement v. Dillingham Constr.,
Inc., 519 U.S. 316 (1997) ..................................... 14, 15
California v. Deep Sea Research, Inc., 523 U.S. 491 (1998) ........ 121
California v. LaRue, 409 U.S. 109 (1972) ..................... 149, 171
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) ............ 18
Campbell v. Louisiana, 523 U.S. 392 (1998) .................... 34, 137
Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564
(1997) ................................................ 9, 11, 20, 164
Cantwell v. Connecticut, 310 U.S. 296 (1940) ....................... 50
Capital Cities Cable, Inc., v. Crisp, 467 U.S. 691 (1984) ......... 149
Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753
(1995) .................................................... 50, 59, 79
Cardinal Chemical Co. v. Morton Int'l, Inc., 508 U.S. 83 (1993)
37
Carmell v. Texas, 120 S. Ct. 1620 (2000) ...................... 20, 166
Carter v. Carter Coal Co., 298 U.S. 238 (1936) ...................... 6
CBS v. Democratic Nat'l Comm., 412 U.S. 94 (1973) .................. 63
Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 653 (1948) ....... 10
Central Hudson Gas & Elec. Co. v. Public Serv. Comm'n, 447 U.S.
557 (1980) ..................................................... 70-73
Central State Univ. v. American Ass'n of Univ. Professors, 526
U.S. 124 (1999) .................................................. 137
Chandler v. Miller, 520 U.S. 305 (1997) ....................... 92, 164
Chapman v. California, 386 U.S. 18 (1967) ..................... 98, 117
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520
(1993) ............................................... 50, 60, 61, 169
City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) ......... 82
City of Boerne v. Flores, 521 U.S. 507 (1997) ........ 61, 62, 144, 153
City of Chicago v. International Coll. of Surgeons, 522 U.S. 156
(1998) ............................................................ 39
City of Chicago v. Morales, 527 U.S. 41 (1999) ............... 133, 169
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993)
.............................................................. 70, 169
City of Ladue v. Gilleo, 512 U.S. 43 (1994) ................... 83, 169
City of Los Angeles v. Preferred Communications, 476 U.S. 488
(1986) ............................................................ 74
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687 (1999) ....................................................... 105
City of Newport v. Iacobucci, 479 U.S. 92 (1986) .................. 171
City of West Covina v. Perkins, 525 U.S. 234 (1999) ............... 132
Civil Rights Cases, 109 U.S. 3 (1883) ............................. 143
Clements v. Fashing, 457 U.S. 957 (1982) ........................... 34
Clinton v. City of New York, 524 U.S. 417 (1998) ........ 2, 5, 35, 155
Clinton v. Jones, 520 U.S. 681 (1997) .............................. 26
Coleman v. Miller, 307 U.S. 433 (1939) ............................. 35
College Savings Bank v. Florida Prepaid Postsec. Educ. Expense
Bd., 527 U.S. 666 (1999) .......................... 123, 145, 156, 171
Collins v. Hardyman, 341 U.S. 651 (1951) .......................... 143
Colorado Republican Campaign Comm. v. FEC, 518 U.S. 604 (1996)
39, 66, 151
Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973) ... 52, 53, 57
Concrete Pipe & Products v. Construction Laborers Pension Trust,
508 U.S. 602
(1993) .......................................................... 103
Conn v. Gabbert, 526 U.S. 286 (2000) .............................. 128
Cooper v. Oklahoma, 517 U.S. 348 (1996) ........................... 136
County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573
(1989) ........................................................ 49, 50
County of Sacramento v. Lewis, 523 U.S. 833 (1998) ................ 127
Crosby v. National Foreign Trade Council, 120 S. Ct. 2288 (2000)
17
CSX Transportation, Inc. v. Easterwood, 507 U.S. 658 (1993) ........ 14
Dalton v. Specter, 511 U.S. 462 (1994) ......................... 24, 26
Darnell v. Indiana, 226 U.S. 390 (1912) ........................... 171
Davis v. United States, 512 U.S. 452 (1994) ....................... 101
De Buono v. NYSA-ILA Med. and Clinical Servs. Fund, 520 U.S. 806
(1997) ............................................................ 14
Delaware v. Prouse, 440 U.S. 648 (1979) ............................ 90
Dellmuth v. Muth, 491 U.S. 223 (1989) ........................ 123, 124
Denver Area Educ. Tel. Consortium v. FCC, 518 U.S. 727 (1996) ..... 75,
76, 153
Department of Agriculture v. Moreno, 413 U.S. 528 (1973) .......... 142
Department of Commerce v. United States House of Representatives,
525 U.S. 316 (1999) ............................................... 32
Department of Taxation & Finance v. Milhelm Attea & Bros., 512
U.S. 61
(1994) .......................................................... 17
Department of Treasury v. Fabe, 508 U.S. 491 (1993) ........... 13, 159
Dickerson v. United States, 120 S. Ct. 2326 (2000) ............ 99, 158
District of Columbia v. Greater Washington Bd. of Trade, 506 U.S.
125 (1992) ........................................................ 13
Doctor's Associates, Inc. v. Casarotto, 517 U.S. 681 (1996) ... 16, 163
Doe v. United States, 487 U.S. 201 (1988) .......................... 98
Dolan v. City of Tigard, 512 U.S. 374 (1994) ................. 104, 105
Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972) ............... 143
Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996) ................... 44
Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) ... 20, 103, 105, 155
Edenfield v. Fane, 507 U.S. 761 (1993) .................... 69, 70, 159
Edmond v. United States, 520 U.S. 651 (1997) ....................... 25
Employees of the Dep't of Pub. Health and Welfare v. Department of
Pub. Health and Welfare, 411 U.S. 279 (1973) ..................... 124
Employment Div. v. Smith, 494 U.S. 872 (1990) ......... 51, 61, 62, 144
Erie v. Pap's A.M., 120 S. Ct. 1382 (2000) ......................... 78
Estelle v. Smith, 451 U.S. 454 (1981) .............................. 97
Evans v. Romer, 854 P.2d 1270 (Colo. 1993) ........................ 141
Ex parte Virginia, 100 U.S. 339 (1880) ............................. 63
Farmer v. Brennan, 511 U.S. 825 (1994) ............................ 118
FCC v. Beach Communications, 508 U.S. 307 (1993) ............. 102, 137
FCC v. Pacifica Foundation, 438 U.S. 726 (1978) ................ 75, 77
FDIC v. Meyer, 510 U.S. 471 (1994) ................................. 40
FEC v. Akins, 524 U.S. 11 (1998) ........................... 32, 34, 36
Felker v. Turpin, 518 U.S. 651 (1996) ...................... 31, 41, 43
Feltner v. Columbia Pictures Television, 523 U.S. 340 (1998) ..... 113,
155
Fisher v. United States, 425 U.S. 391 (1976) ....................... 98
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) .................. 123, 144
Flippo v. West Virginia, 120 S. Ct. 7 (1999) ...................... 90
Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) .......... 68, 73
Florida Prepaid Postsec. Educ. Expense Bd. v. College Savings
Bank, 527 U.S. 627 (1999) .............................. 123, 144, 156
Florida v. J.L., 120 S. Ct. 1375 (2000) ............................ 89
Florida v. White, 526 U.S. 559 (1999) .............................. 91
Foster v. Love, 522 U.S. 67 (1997) ................................ 165
Foucha v. Louisiana, 504 U.S. 71 (1992) ........................... 130
Freightliner Corp. v. Myrick, 514 U.S. 280 (1995) .................. 15
Friends of the Earth v. Laidlaw Envtl. Servs., 120 S. Ct. 693
(2000) ........................................................ 33, 37
Frisby v. Schultz, 487 U.S. 474 (1988) ............................. 80
Fullilove v. Klutznick, 448 U.S. 448 (1990) .................. 138, 171
Fulton Corp. v. Faulkner, 516 U.S. 325 (1996) ........ 10, 11, 162, 171
Furman v. Georgia, 408 U.S. 238 (1972) .............................. 1
Gardner v. Toilet Goods Ass'n, 387 U.S. 167 (1967) ................. 37
Garner v. Jones, 120 S. Ct. 1362 (2000) ............................ 20
Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996) ..... 41,
113
Geier v. American Honda Motor Co., 120 S. Ct. 1913 (2000) .......... 15
General Motors Corp. v. Tracy, 519 U.S. 278 (1997) ................. 11
Gilbert v. Homar, 520 U.S. 924 (1997) ............................. 132
Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457 (1997)
63
Goldberg v. Sweet, 488 U.S. 252 (1989) ............................. 10
Gooding v. United States, 416 U.S. 430 (1974) ...................... 88
Grady v. Corbin, 495 U.S. 508 (1990) .......................... 97, 171
Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) ..... 50, 52-55,
171
Gray v. Maryland, 523 U.S. 185 (1998) ............................. 110
Gray v. Netherland, 518 U.S. 152 (1996) ........................ 37, 42
Great American Fed. S. & L. Ass'n v. Novotny, 584 F.2d 1235 (3d
Cir. 1978) ....................................................... 143
Greater New Orleans Broadcasting Ass'n v. United States,
527 U.S. 173 (1999) ..................................... 71, 73, 155
Green v. French, 143 F.3d 865 (4th Cir. 1998) ...................... 44
Gregory v. Ashcroft, 501 U.S. 452 (1991) .......................... 145
Griffin v. Breckenridge, 403 U.S. 88 (1971) ....................... 143
Griffin v. Illinois, 351 U.S. 12 (1956) ........................... 164
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) ...... 40
Guaranty Trust Co. v. York, 326 U.S. 99 (1945) ..................... 41
Guinn v. United States, 238 U.S. 347 (1915) ....................... 147
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995) .............. 27
Hagen v. Utah, 510 U.S. 399 (1994) ................................. 17
Hall v. Washington, 106 F.3d 742 (7th Cir. 1997) ................... 44
Hanlon v. Berger, 526 U.S. 808 (1999) .............................. 89
Hans v. Louisiana, 134 U.S. 1 (1890) .............................. 122
Harper v. Virginia Dep't of Taxation, 509 U.S. 86 (1993) ........... 38
Harris v. Alabama, 513 U.S. 504 (1995) ............................ 116
Heiner v. Donnan, 285 U.S. 312 (1932) ............................. 102
Helling v. McKinney, 509 U.S. 25 (1993) ........................... 118
Herrera v. Collins, 506 U.S. 390 (1993) ....................... 42, 117
Hetzel v. Prince William County, 523 U.S. 208 (1998) .............. 113
Hickman v. Block, 81 F.3d 98 (9th Cir. 1996) ....................... 85
Hill v. Colorado, 120 S. Ct. 2480 (2000) ........................... 81
Hill v. Lockhart, 474 U.S. 52 (1985) .............................. 111
Hodel v. Irving, 481 U.S. 704 (1987) ......................... 105, 153
Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264
(1981) ........................................................... 107
Hoffman v. Connecticut Dep't of Income Maintenance, 492 U.S. 96
(1989) ........................................................... 123
Hohn v. United States, 524 U.S. 236 (1998) ................ 39, 43, 171
Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ................ 131, 160
Hopkins v. Reeves, 524 U.S. 88 (1998) ............................. 116
House v. Mayo, 324 U.S. 42 (1945) ................................. 171
Hubbard v. United States, 514 U.S. 695 (1995) ..................... 171
Hudson v. United States, 522 U.S. 93 (1997) ....................... 171
Hunt v. Cromartie, 526 U.S. 541 (1999) ............................ 139
Hunt-Wesson, Inc. v. Franchise Tax Bd. of Cal., 120 S. Ct. 1022
(2000) ............................................................ 10
Hurley v. Irish-American Gay Group, 515 U.S. 557 (1995) ... 64, 74, 81,
161
Ibanez v. Florida Bd. of Accountancy, 512 U.S. 136 (1994) .......... 69
Idaho v. Coeur d'Alene Tribe, 521 U.S. 261 (1997) ............ 124, 125
Illinois v. Wardlow, 120 S. Ct. 673 (2000) ......................... 89
In re Winship, 397 U.S. 358 (1970) ................................ 109
In re Young, 141 F.3d 854 (8th Cir. 1998) .......................... 62
INS v. Chadha, 462 U.S. 919 (1983) .................................. 5
International Union, UMW v. Bagwell, 512 U.S. 821 (1994) ...... 30, 31,
109
Itel Containers Int'l Corp. v. Huddleston, 507 U.S. 60 (1993) ...... 9,
12, 21
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) ............... 138
Jefferson County v. Acker, 527 U.S. 423 (1999) ..................... 48
John Hancock Mut. Life Ins. Co. v. Harris Trust and Sav. Bank, 510
U.S. 86 (1993)...................................................... 13
Johnson v. Texas, 509 U.S. 350 (1993) ............................. 116
Jones v. United States, 120 S. Ct. 1904 (2000) ................... 6, 8
Jones v. United States, 357 U.S. 493 (1958) ........................ 88
Kansas v. Hendricks, 521 U.S. 346 (1997) ...................... 95, 129
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470
(1987) ........................................................... 107
Kimel v. Florida Bd. of Regents, 120 S. Ct. 631 (2000) ...... 123, 124,
145, 157
Knowles v.Iowa, 525 U.S. 113 (1998) ....................... 90, 91, 165
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) ............ 39
Kolender v. Lawson, 461 U.S. 352 (1983) ........................... 133
Kotteakos v. United States, 328 U.S. 750 (1946) ............... 98, 117
Lamb's Chapel v. Center Moriches Sch. Dist., 508 U.S. 384 (1993)
59, 79
Lambrix v. Singletary, 520 U.S. 518 (1997) ..................... 37, 42
Leathers v. Medlock, 499 U.S. 439 (1991) ........................... 74
Lebron v. National R.R. Passenger Corp., 513 U.S. 374 (1995) ....... 63
Lee v. Weisman, 505 U.S. 577 (1992) ............................ 49, 50
Lemon v. Kurtzman, 403 U.S. 602 (1971) .................. 52-56, 58, 59
Lewis v. Casey, 518 U.S. 343 (1996) ........................... 32, 136
Lewis v. United States, 518 U.S. 322 (1996) ....................... 109
Lilly v. Virginia, 527 U.S. 116 (1999) ............................ 110
Linda R. S. v. Richard D., 410 U.S. 614 (1973) ..................... 33
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) ....................... 44
Linmark Associates v. Township of Willingboro, 431 U.S. 85 (1977)
.................................................................... 72
Livadas v. Bradshaw, 512 U.S. 107 (1994) ........................... 17
Lockhart v. Fretwell, 506 U.S. 364 (1993) ......................... 111
Lopez v. Monterey County, 525 U.S. 266 (1999) ..................... 147
Loving v. United States, 517 U.S. 748 (1996) ................ 1, 18, 23
Lujan v. National Wildlife Fed'n, 497 U.S. 871 (1990) .............. 37
Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287 (1998) ..... 45,
165
Lynce v. Mathis, 519 U.S. 433 (1997) .......................... 20, 164
Lynch v. Donnelly, 465 U.S. 668 (1984) ............................. 50
M.L.B. v. S.L.J., 519 U.S. 102 (1996) ........................ 142, 164
MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340 (1986)
................................................................... 106
Madsen v. Women's Health Center, 512 U.S. 753 (1994) ............... 79
Mapp v. Ohio, 367 U.S. 643 (1961) ................................. 100
Markman v. Westview Instruments, Inc., 517 U.S. 348 (1996) .... 18, 113
Martinez v. Court of App. of Cal., Fourth App. Dist., 120 S. Ct.
684 (2000) ....................................................... 111
Maryland v. Dyson, 527 U.S. 465 (1999) ............................. 90
Maryland v. Wilson, 519 U.S. 408 (1997) ............................ 89
Mayer v. Chicago, 404 U.S. 189 (1971) ............................. 142
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334 (1995) ........ 82, 161
McMillan v. Pennsylvania, 477 U.S. 79 (1986) ...................... 135
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ....................... 14
Meek v. Pittenger, 421 U.S. 349 (1975) ..................... 53-56, 171
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990) ......... 138, 171
Michigan v. Tucker, 417 U.S. 433 (1974) ....................... 99, 100
Miller v. Albright, 523 U.S. 420 (1998) ........................... 138
Miller v. French, 120 S. Ct. 2246 (2000) ....................... 29, 31
Miller v. Johnson, 515 U.S. 900 (1995) ....................... 139, 162
Minnesota v. Carter, 525 U.S. 83 (1998) ........................... 87
Minnesota v. Dickerson, 508 U.S. 366 (1993) ........................ 89
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172
(1999) ....................................................... 46, 171
Miranda v. Arizona, 384 U.S. 436 (1966) ................... 98-100, 158
Mississippi v. Louisiana, 506 U.S. 73 (1992) ....................... 40
Mitchell v. Helms, 120 S. Ct. 2530 (2000) ..... 49, 50, 52, 54, 56, 171
Mitchell v. United States, 526 U.S. 314 (1999) ..................... 97
Monge v. California, 524 U.S. 721 (1998) ....................... 96, 97
Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767 (1994) ...... 95,
160
Montana v. Egelhoff, 518 U.S. 37 (1996) ........................... 133
Mueller v. Allen, 463 U.S. 388 (1983) .............................. 52
Murray v. Carrier, 477 U.S. 478 (1986) ............................. 43
National Credit Union Admin. v. First Nat'l Bank & Trust Co., 522
U.S. 479 (1998)..................................................... 36
National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)
68
Neder v. United States, 527 U.S. 1 (1999) ......................... 109
Nelson v. Adams, 120 S. Ct. 1579 (2000) ........................... 132
New York State Conf. of Blue Cross & Blue Shield Plans v.
Travelers Ins. Co., 514 U.S. 645 (1995) ........................... 13
New York State Liquor Auth. v. Bellanca, 452 U.S.714 (1981) ....... 171
New York v. Quarles, 467 U.S. 549 (1984) ........................... 99
New York v. United States, 505 U.S. 144 (1992) ................ 47, 154
Newsweek, Inc. v. Florida Dep't of Revenue, 522 U.S. 442 (1998)
128
Nichols v. Coolidge, 274 U.S. 531 (1927) .......................... 102
Nichols v. United States, 511 U.S. 738 (1994) ................ 110, 171
Nixon v. Shrink Missouri Government PAC, 120 S. Ct. 897 (2000)
67
Nixon v. United States, 506 U.S. 224 (1993) .................... 27, 38
Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) ..... 104, 105
Norfolk So. Ry. v. Shanklin, 120 S. Ct. 1467 (2000) ................ 14
Northeastern Fla. Ch., Assoc. Gen. Contractors v. City of
Jacksonville, 508 U.S. 656 (1993) ......................... 33, 34, 37
O'Brien v. Dubois, 145 F.3d 16 (1st Cir. 1998) ..................... 44
O'Dell v. Netherland, 521 U.S. 151 (1997) ...................... 37, 42
O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996)
................................................................... 65
O'Melveny & Myers v. FDIC, 512 U.S. 79 (1994) ...................... 41
Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) ...... 132, 136
Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998) ............ 36
Ohio v. Robinette, 519 U.S. 33 (1996) .............................. 91
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) ....... 69, 72, 73
Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995) ...... 17,
161
Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175 (1995)
............................................................. 9, 10, 39
Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993) ...... 17,
159
One Lot Emerald Cut Stones v. United States, 409 U.S. 232 (1972)
95
Oregon Waste Systems v. Department of Envtl. Quality, 511 U.S. 93
(1994) ................................................... 11, 12, 159
Ornelas v. United States, 517 U.S. 690 (1996) ...................... 87
Parden v. Terminal Ry., 377 U.S. 184 (1964) ....................... 171
Parke v. Raley, 506 U.S. 20 (1992) ........................... 135, 136
Paul v. Virginia, 8 U.S. (Wall) 168 (1868) ........................ 140
Peacock v. Thomas, 516 U.S. 349 (1996) ............................. 39
Pennell v. City of San Jose, 485 U.S. 1 (1988) ............... 104, 106
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ..... 122
Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357
(1998) ............................................................ 93
Pennsylvania v. Labron, 518 U.S. 938 (1996) ........................ 90
Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) ........ 122, 152, 171
Phillips v. Washington Legal Foundation, 524 U.S. 156 (1998) ...... 106
Planned Parenthood v. Casey, 505 U.S. 833 (1992) .................. 130
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) ...... 29, 30, 152
Portuondo v. Agard, 120 S. Ct. 1119 (2000) ........................ 110
Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478
U.S. 328 (1986)................................................. 71, 72
Powers v. Ohio, 499 U.S. 400 (1991) ................................ 34
Printz v. United States, 521 U.S. 898 (1997) ..... 5, 47, 85, 119, 120,
154
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996) .............. 42
Raines v. Byrd, 521 U.S. 811 (1997) ............................ 34, 35
Rakas v. Illinois, 439 U.S. 128 (1978) ........................... 87
Ramdass v. Angelone, 120 S. Ct. 2113 (2000) ....................... 117
Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978)
34
Regents of the Univ. of California v. Doe, 519 U.S. 425 (1997)
122
Reich v. Collins, 513 U.S. 106 (1994) ............................. 128
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) ... 77, 154
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471
(1999) ............................................................ 18
Reno v. Catholic Social Servs., Inc., 509 U.S. 43 (1993) ....... 34, 37
Reno v. Condon, 120 S. Ct. 666 (2000) ...................... 6, 48, 120
Reno v. Flores, 507 U.S. 292 (1993) ................................ 18
Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878) ............. 50
Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) .............. 38
Rice v. Cayetano, 120 S. Ct. 1044 (2000) ..................... 147, 166
Richards v. Jefferson County, 517 U.S. 793 (1996) ................. 132
Richards v. Wisconsin, 520 U.S. 385 (1997) ......................... 88
Richmond v. Lewis, 506 U.S. 40 (1992) ............................. 116
Roe v. Flores-Ortega, 120 S. Ct. 1029 (2000) ...................... 111
Roe v. Wade, 410 U.S. 113 (1973) .................................. 129
Roemer v. Maryland Bd. of Pub. Works, 426 U.S. 736 (1976) .......... 54
Romano v. Oklahoma, 512 U.S. 1 (1994) ............................. 116
Romer v. Evans, 517 U.S. 620 (1996) .......................... 141, 162
Rosenberger v. University of Virginia, 515 U.S. 819 (1995) .... 49, 59,
79
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ........ 69-71, 73, 151
Rutledge v. United States, 517 U.S. 292 (1996) ..................... 96
Ryder v. United States, 515 U.S. 177 (1995) .................... 25, 38
Saenz v. Roe, 526 U.S. 489 (1999) .................. 127, 140, 141, 166
Sale v. Haitian Centers Council, 509 U.S. 155 (1993) ............... 17
Sandin v. Conner, 515 U.S. 472 (1995) ............................. 132
Santa Fe Indep. Sch. Dist. v. Doe, 120 S. Ct. 2266 (2000) ..... 49, 50,
58
Santosky v. Kramer, 455 U.S. 745 (1982) ........................... 142
Sawyer v. Whitney, 505 U.S. 333 (1995) ............................. 43
Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357
(1997) ............................................................ 80
Schiro v. Farley, 510 U.S. 222 (1994) .............................. 95
Schlup v. Delo, 513 U.S. 298 (1995) ................................ 43
Scott v. Illinois, 440 U.S. 367 (1979) ............................ 110
Scott v. Moore, 680 F.2d 979 (5th Cir. 1982) ...................... 143
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) ..... 39, 121,
122, 144, 152, 171
Shaw v. Hunt, 517 U.S. 899 (1996) ............................ 139, 163
Shaw v. Reno, 509 U.S. 630 (1993) ................................. 139
Shelley v. Kraemer, 334 U.S. 1 (1948) ............................. 143
Sherbert v. Verner, 374 U.S. 398 (1963) ........................ 50, 61
Simmons v. South Carolina, 512 U.S. 154 (1994) .................... 117
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976)
.................................................................... 33
Sinclair v. United States, 279 U.S. 263 (1929) .................... 171
Sloan v. Lemon, 413 U.S. 825 (1973) ................................ 53
Smiley v. Citibank, 517 U.S. 735 (1996) ............................ 13
Smith v. Robbins, 528 U.S. 259 (2000) ............................. 142
Soldal v. Cook County, 506 U.S. 56 (1992) .......................... 87
South Carolina v. Baker, 484 U.S. 505 (2000) ...................... 120
South Central Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999) ... 10, 165
South Dakota v. Bourland, 508 U.S. 679 (1993) ...................... 17
Spencer v. Kemna, 523 U.S. 1 (1998) ................................ 37
Stansbury v. California, 511 U.S. 318 (1994) ...................... 101
State Oil Co. v. Khan, 522 U.S. 3 (1997) ...................... 39, 171
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)
................................................................... 33
Stenberg v. Carhart, 120 S. Ct. 2597 (2000) .................. 128, 168
Stone v. Powell, 428 U.S. 465 (1976) ......................... 100, 101
Strickland v. Washington, 466 U.S. 668 (1984) ................ 111, 134
Strickler v. Greene, 527 U.S. 263 (1999) .......................... 134
Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725 (1997) ..... 106
Sullivan v. Louisiana, 508 U.S. 275 (1993) ................... 109, 134
Texas v. United States, 523 U.S. 296 (1998) ........................ 36
Tilton v. Richardson, 403 U.S. 672 (1971) .......................... 54
Timmons v. Twin City Area New Party, 520 U.S. 351 (1997) ........... 66
Toilet Goods Ass'n v. Gardner, 387 U.S. 158 (1967) ................. 37
Troxel v. Granville, 120 S. Ct. 2054 (2000) .................. 129, 166
Tuggle v. Netherland, 516 U.S. 10 (1995) .......................... 117
Tuilaepa v. California, 512 U.S. 967 (1994) ....................... 116
Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) ............. 74
Turner Broadcasting System v. FCC, 520 U.S. 180 (1997) ............. 75
Turner v. Fouche, 396 U.S. 346 (1970) .............................. 34
TXO Prod. Corp. v. Alliance Resources, 509 U.S. 443 (1993) ........ 131
U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18
(1994) ............................................................ 37
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ..... 2, 3, 161
United States v. Bagley, 473 U.S. 667 (1985) ...................... 134
United States v. Bajakajian, 524 U.S. 321 (1998) .................. 115
United States v. Balsys, 524 U.S. 666 (1998) ....................... 99
United States v. Bramblett, 348 U.S. 503 (1955) ................... 171
United States v. Brignoni-Ponce, 422 U.S. 873 (1975) ............... 90
United States v. Cabrales, 524 U.S. 1 (1998) ...................... 110
United States v. Carlton, 512 U.S. 26 (1994) ...................... 102
United States v. Di Re, 332 U.S. 581 (1948) ........................ 91
United States v. Dixon, 509 U.S. 688 (1993) ................... 97, 171
United States v. Doe, 465 U.S. 605 (1984) .......................... 98
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993) .... 69-71,
73
United States v. Gaudin, 515 U.S. 506 (1995) ................. 109, 171
United States v. Gomez, 92 F.3d 770 (9th Cir. 1996) ................ 85
United States v. Halper, 490 U.S. 435 (1989) ...................... 171
United States v. Harris, 106 U.S. 629 (1883) ...................... 143
United States v. Hemme, 476 U.S. 558 (1986) ....................... 102
United States v. Hubbell, 120 S. Ct. 2037 (2000) ............... 98, 99
United States v. IBM, 517 U.S. 843 (1996) ............. 18, 19, 39, 151
United States v. Jacobsen, 466 U.S. 109 (1984) ..................... 87
United States v. James Daniel Good Real Property, 510 U.S. 43
(1993) ........................................................... 131
United States v. Lanier, 520 U.S. 259 (1997) ...................... 133
United States v. Lee, 455 U.S. 252 (1982) .......................... 51
United States v. Locke, 120 S. Ct. 1135 (2000) ................ 16, 166
United States v. Lopez, 514 U.S. 549 (1995) ............. 6-8, 119, 152
United States v. Malenzuela-Bernal, 458 U.S. 858 (1982) ........... 134
United States v. Martinez-Salazar, 120 S. Ct. 774 (2000) .......... 110
United States v. Morrison, 120 S. Ct. 1740 (2000) ..... 7, 8, 119, 143,
157
United States v. National Treasury Employees Union, 513 U.S. 454
(1995) ................................................... 26, 65, 152
United States v. O'Brien, 391 U.S. 367 (1968) .................. 74, 78
United States v. One Assortment of 89 Firearms, 465 U.S. 354
(1984) ............................................................ 95
United States v. Padilla, 508 U.S. 77 (1993) ....................... 93
United States v. Playboy Entertainment Group, Inc., 120 S. Ct.
1878 (2000) ............................................... 75-78, 157
United States v. Ramirez, 523 U.S. 65, 71 (1998) ................... 88
United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) ..... 107
United States v. United States Shoe Corp., 523 U.S. 360 (1998)
19, 154
United States v. Ursery, 518 U.S. 267 (1996) ....................... 95
United States v. Virginia, 518 U.S. 515 (1996) ............... 139, 163
United States v. Watts, 519 U.S. 148 (1997) ........................ 96
United States v. Winstar Corp., 518 U.S. 839 (1996) ............... 103
United States v. Wright, 117 F.3d 1265 (11th Cir. 1997) ............ 85
Untermyer v. Anderson, 276 U.S. 440 (1928) ........................ 102
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) ............. 102
Vacco v. Quill, 521 U.S. 793 (1997) .......................... 130, 137
Various Items of Personal Property v. United States, 282 U.S. 577
(1931) ............................................................ 95
Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 120
S. Ct. 1858 (2000).................................................. 33
Vernonia School Dist. v. Acton, 515 U.S. 646 (1995) ............ 91, 92
Victor v. Nebraska, 511 U.S. 1 (1994) ............................. 135
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. 748 (1976) ...................................... 72
Voinovich v. Quilter, 507 U.S. 146 (1993) ......................... 139
Wallace v. Jaffrey, 472 U.S. 38 (1985) ............................. 50
Walton v. Arizona, 497 U.S. 639 (1990) ........................... 135
Ward v. Race Horse, 163 U.S. 504 (1896) ........................... 171
Warth v. Seldin, 422 U.S. 490 (1975) ............................... 33
Washington v. Glucksberg, 521 U.S. 702 (1997) ..................... 130
Waters v. Churchill, 511 U.S. 661 (1994) ........................... 66
Weeks v. Angelone, 120 S. Ct. 727 (2000) .......................... 117
Weiss v. United States, 510 U.S. 163 (1994) ........................ 25
West Lynn Creamery, Inc. v. Healy, 512 U.S. 186 (1994) ..... 9, 11, 160
Whren v. United States, 517 U.S. 806 (1996) ........................ 90
Williamson County Regional Planning Comm'n v. Hamilton Bank,
473 U.S. 172 (1985) ............................................. 106
Wilson v. Arkansas, 514 U.S. 927 (1995) ............................ 88
Wilson v. Layne, 526 U.S. 603 (1999) ............................... 89
Wilton v. Seven Falls Co., 515 U.S. 277 (1995) ..................... 36
Wisconsin Dep't of Corrections v. Schacht, 524 U.S. 381 (1998)
125
Wisconsin v. City of New York, 517 U.S. 1 (1996) .................... 4
Wisconsin v. Mitchell, 508 U.S. 476 (1993) ..................... 64, 76
Wisconsin v. Yoder, 406 U.S. 205 (1972) ........................ 50, 61
Withrow v. Williams, 507 U.S. 680 (1993) ..................... 100, 101
Witte v. United States, 515 U.S. 389 (1995) .................... 96, 97
Witters v. Washington Dep't of Social Servs., 474 U.S. 481 (1986)
................................................................ 52, 55
Wolman v. Walter, 433 U.S. 229 (1977) ................. 52, 54, 56, 171
Wood v. Bartholomew, 516 U.S. 1 (1995) ............................ 134
Wyoming v. Houghton, 526 U.S. 295 (1999) ........................... 91
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199 (1996) ................. 40
Ybarra v. Illinois, 444 U.S. 85 (1979) ............................. 91
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)
72
Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) ... 49, 53,
55, 57
INDEX
Abortion
Colorado statute restricting proselytizing outside clinics ....... 81
Nebraska ban on ``partial-birth'' abortions, undue burden on
right .......................................................... 128
protests, injunctions, First Amendment protections ............... 79
Admiralty
maritime torts ................................................... 40
Advertising
ban on ads for casino gambling, invalidity ....................... 71
compelled disclosure of information .............................. 72
Affirmative action
federal legislation subject to strict scrutiny .................. 137
Age Discrimination in Employment Act
not exercise of 14th Amdmt. enforcement power ................... 145
Ancestry
proxy for race for 15th Amdmt. analysis ......................... 147
Antiterrorism and Effective Death Penalty Act of 1996
limitations on successive habeas petitions ....................... 43
Appointments Clause
definition of ``inferior officer'' ............................... 25
military judges .................................................. 25
Association, right of
Boy Scouts' exclusion of homosexual from adult membership ........ 64
contribution limitations, campaign finance ....................... 67
parade organizers, control of parade message ..................... 64
Boy Scouts
right to exclude avowed homosexuals .............................. 64
Brady Handgun Violence Prevention Act
state enforcement, constitutionality ............................. 47
Cable television
First Amendment protections ...................................... 74
indecent programming ............................................. 76
Campaign finance
independent party expenditures, First Amendment .................. 67
state limits on contributions to state political candidates ...... 67
Census
decision not to make statistical adjustment ....................... 4
Children
juvenile court order to produce a child .......................... 98
Civil commitment
not punishment for double jeopardy purposes ...................... 95
sexual predators with mental abnormality or personality disorder
................................................................ 129
Commerce clause
discriminatory local solid waste ``flow control'' law ............ 12
discriminatory state taxation ................................ 10, 11
state taxation, apportionment, multinational corporation ......... 13
Commerce power
anti-commandeering restriction .............................. 47, 119
invalidity of Gun-Free School Zones Act ........................... 6
invalidity of Violence Against Women Act .......................... 8
*COM008*Congress
Members, standing to sue ......................................... 35
qualifications of Members, term limits ......................... 2, 3
Congressional districting
racial gerrymandering, bizarrely shaped districts ............... 139
Congressional powers
abrogation of states' 11th Amdmt. immunity via 14th Amdmt. ...... 144
no power to abrogate states' 11th Amdmt. immunity via Art. I
122
Contempt
distinction between civil and criminal contempt .................. 30
Counsel, assistance of
ineffective counsel, grounds for new trial ...................... 111
self-representation, no right on direct appeal from conviction
111
Death penalty
Antiterrorism and Effective Death Penalty Act of 1996 ............ 43
military justice, standards promulgated by President .............. 1
permissible jury instructions ................................... 116
Delegation
Line Item Veto Act ................................................ 5
military justice, President's authority as Commander-in-Chief
1, 23
Diversity of Citizenship
federal court cases, choice of law ............................... 40
Driver's Privacy Protection Act
not invalid commandeering of state government ................... 120
Drug testing
candidates for state office ...................................... 92
public high school athletes ...................................... 91
Due process
anti-loitering ordinance, enforcement, lack of standards ........ 133
retroactive legislation .................................... 102, 103
retroactive taxation ............................................ 102
solitary confinement of prisoners ............................... 132
Durational residency requirements
privileges or immunities analysis .......................... 127, 140
Enforcement of Fourteenth Amendment
congressional power, requisites for legislation ................. 143
congruence and proportionality requirements ..................... 144
Ex Post Facto Clause
decreasing frequency for parole-suitability hearings ............. 20
retroactive reduction of evidence needed to convict .............. 20
Excessive fines
civil forfeiture ................................................ 115
reporting violation, currency export ............................ 115
Export Clause
Harbor Maintenance Tax ........................................... 18
False Claims Act
qui tam actions, standing to sue ................................. 33
False statements
federal statute, materiality as issue for jury .................. 109
Federalism
anti-commandeering rule .......................................... 47
Gun-Free School Zones Act, invalidity ........................... 119
principles reflected in commerce power analysis ................... 7
state sovereign immunity, suits in federal court ................ 122
Violence Against Women Act, invalidity .......................... 119
First Amendment
expressive behavior, state authority to regulate, 21st Amdmt.
149
Forfeiture
innocent joint owner, car used in prostitution .................. 128
Government contractors
free speech rights ............................................... 65
Grandparents
right to visitation with grandchildren .......................... 129
Grants
decency standard, funding for the arts ........................... 68
Gun-Free School Zones Act
invalid exercise of commerce power ........................... 6, 119
Guns
Brady Act, background checks, state enforcement ............. 47, 119
regulation, Second Amendment implications ........................ 85
Habeas corpus
Antiterrorism and Effective Death Penalty Act .................... 43
claim of innocence, capital cases ............................... 117
statutory limitations ........................................ 41, 42
Harbor Maintenance Tax
constitutionality ................................................ 18
Hate crimes
sentence enhancement, need for proof beyond reasonable doubt
135
Homosexuals
Colorado constitutional amendment limiting local laws protecting
................................................................ 141
exclusion of avowed homosexual from Boy Scouts ................... 64
Honoraria ban
government employees, free speech rights ......................... 65
Immigration
deportation of illegal alien, selective enforcement no defense
18
Immunity from suit
President, conduct prior to assuming office ...................... 26
States, actions in state courts ................................. 124
States, congressional power to abrogate pursuant to 14th Amdmt.
................................................................. 144
States, federal court actions, Eleventh Amendment ............... 121
Impeachment
judicial review of Senate trial, ``political question'' .......... 27
Import-export clause
federal excise tax on insurance for exported goods ............... 19
Indian Gaming Regulatory Act
invalidity, abrogation of state immunity in federal court ....... 122
Indigents
trial transcript necessary for appeal in parental rights case
142
Injunctions
public demonstrations, First Amendment limitations ............... 79
Judicial review
preclusion of review, military base closures ..................... 24
Westfall Act, Federal Tort Claims Act ............................ 27
Jury trial
civil, when required ............................................ 113
criminal, mixed questions of law and fact ....................... 109
when required, multiple petty offenses .......................... 109
Limitations period
retroactive change, final judgments, unconstitutionality ......... 29
Line Item Veto Act
as delegation of power ............................................ 2
constitutionality, presentment clause ............................. 4
standing of Members of Congress to challenge ..................... 35
Loitering
Chicago ordinance, lack of standards governing police discretion
................................................................ 133
Military justice
appointment of military judges ................................... 25
death penalty, President's promulgation of standards .............. 1
Miranda warning
constitutional underpinning ...................................... 99
waiver of rights ................................................ 101
Mootness
appropriateness of vacatur as remedy ............................. 37
Newsracks
use on public property, ban limited to commercial materials ...... 70
Nude dancing
First Amendment coverage ......................................... 78
Parades
organizers, right to control parade message ...................... 81
Parents
right to control care and custody of children ................... 129
Political question
impeachment proceedings, judicial review ..................... 27, 38
Preemption
Burma sanctions, Mass. law's conflict with federal objectives
17
ERISA, express preemption language, conflict analysis ............ 16
Medical Device Amendments ........................................ 14
National Traffic and Motor Vehicle Safety Act, state tort law
15
Presentment Clause
Line Item Veto Act, violation of clause ........................... 5
President
immunity from suit, conduct prior to assuming office ............. 26
Press, freedom of
cable television ................................................. 74
Prison Litigation Reform Act
automatic stay provisions, constitutionality ..................... 31
restrictions on litigation ....................................... 31
Privileges and immunities of state citizenship
disparate state taxation of residents and nonresidents ........... 45
Privileges or immunities of national citizenship
durational residency requirements, welfare eligibility .......... 127
Prosecutorial misconduct
failure to disclose evidence, materiality ....................... 134
Public television
candidate debates, access, First Amendment ....................... 79
Punitive damages
amount, due process constraints ................................. 131
Racial discrimination
affirmative action, federal legislation, strict scrutiny ........ 137
voting, 15th Amdmt., ancestry as proxy for race ................. 147
Racial gerrymandering
``bizarre'' shape of congressional districts .................... 139
Religion: Establishment Clause
equal access of religious groups to school property .............. 58
Lemon tests ...................................................... 49
prayer at public high school football games ...................... 58
public funding for instructional materials for church schools
56
public funding for sign-language interpreter in public schools
55
religious displays on public property ............................ 59
special school district for religious sect ....................... 60
test for validity ................................................ 50
Religion: Free Exercise
animal sacrifice ................................................. 61
Religious Freedom Restoration Act
constitutionality ........................................... 61, 144
Retroactivity
ex post facto laws ............................................... 20
extension of limitations period, effect on final judgments ....... 29
liability for past conduct, taking and due process implications
................................................................. 103
Supreme Court ruling, cases still on direct review ............... 38
tax legislation, due process .................................... 102
tax statutes, need for rational legislative purpose ............. 102
Right to die
physician-assisted suicide, no due process right ................ 130
Ripeness
challenges to administrative action .............................. 36
regulatory taking claim, as-applied challenge ................... 106
Search and seizure
``knock and announce'' rule ...................................... 88
anonymous tip, uncorroborated .................................... 89
automobile stop, ordering passengers from car .................... 89
definition of ``seizure'' ........................................ 87
drug testing of candidates for state office ...................... 92
drug testing of public high school athletes ...................... 91
frisk, ``plain touch,'' seizure of contraband .................... 89
reasonable suspicion, flight upon sight of police ................ 89
traffic violation, pretextual stop ............................... 90
Self-Incrimination
consent directive, foreign bank accounts ......................... 98
production of tax records ........................................ 98
Self-representation
no right on direct appeal from conviction ....................... 111
Sentence enhancement
not additional punishment for double jeopardy purposes ........... 96
Sentencing
sentencing factors distinguished from elements of crime ......... 135
Separation of powers
automatic stays, Prison Litigation Reform Act .................... 31
changed position of Justice Department ........................... 23
delegation to President in role as Commander-in-Chief ............. 2
legislative alteration of final judgments of courts .............. 29
presidential immunity from suit .................................. 26
Sex discrimination
jury selection .................................................. 138
military college ................................................ 138
Sexual predators
civil commitment ................................................ 129
Speech, commercial
beer labels, display of alcohol content .......................... 69
cable television ................................................. 74
compelled disclosure in advertising .............................. 72
liquor ads, price information .................................... 71
reasonable fit between ends and means of regulation .............. 70
Speech, freedom of
advertising restrictions ......................................... 71
anonymous advocacy ............................................... 82
ban on public nudity, ``exotic'' dancing ......................... 78
federal support for arts, decency standard ....................... 68
hate crimes, enhancement of criminal penalty ..................... 76
imposition of mandatory activity fee by public university ........ 63
in-person solicitation ........................................... 69
independent government contractors ........................... 65, 66
parade organizers, right to control parade message ............... 81
public demonstrations, injunctions ............................... 79
required disclosures by ballot-initiative petition circulators
67
residential signs ................................................ 82
signs, use of utility poles ...................................... 82
Standing to sue
False Claims Act, qui tam actions ................................ 33
Members of Congress .............................................. 34
public contracts, challenge to affirmative action ................ 33
redressability ................................................... 33
statutory conferral, generalized grievance ....................... 32
suit by organization on behalf of members ........................ 34
Stare decisis
conflicting views of Justices .................................... 39
rejection of request to overrule Miranda ........................ 100
State action
First Amendment limitation ....................................... 62
predicate for exercise of 14th Amendment enforcement power ...... 143
States
immunity from suit in state courts .............................. 124
immunity in federal courts, congressional power to abrogate ..... 121
residual sovereignty in constitutional structure ................. 47
statehood, effect on Indian treaty rights to hunt and fish ....... 46
Submerged lands
Coeur d'Alene Tribe suit barred by Eleventh Amendment ........... 125
Suicide
no due process right to physician assistance .................... 130
Taking of property
as-applied challenges, ripeness requirement ..................... 106
exaction conditions, development permits ........................ 104
Taxation, Federal
excise tax, import-export clause ................................. 19
Harbor Maintenance Tax, Export Clause ............................ 18
Taxation, State
apportionment, multinational corporation, franchise tax .......... 13
discrimination against interstate commerce ................... 10, 11
privileges and immunities, nonresident taxation .................. 45
salaries of federal judges, application of local occupation tax
.................................................................. 48
Term limits
Members of Congress, state-imposed limits ......................... 2
Travel, right to
doctrinal shift to privileges or immunities analysis ............ 127
three separate rights ........................................... 140
Twenty-first Amendment
authority of states, regulation of expressive behavior .......... 149
prohibition against liquor price advertising not shielded by
149
Vacatur
remedy for mootness, limitations ................................. 37
Violence Against Women Act
invalid as exercise of 14th Amendment enforcement power ......... 143
invalid exercise of commerce power ................................ 8
Visitation rights
grandparents .................................................... 129
Voting
Hawaii restriction based on ancestry, 15th Amendment ............ 147