104th Congress Document
SENATE
2d Session No. 104-14
________________________________________________________________________
THE CONSTITUTION
OF THE
UNITED STATES OF AMERICA
ANALYSIS AND INTERPRETATION
__________
1996 SUPPLEMENT
ANALYSIS OF CASES DECIDED BY THE SUPREME
COURT OF THE UNITED STATES TO JULY 1, 1996
Prepared by the
Congressional Research Service
Library of Congress
Johnny H. Killian
George A. Costello
Kenneth R. Thomas
Editors
U.S. GOVERNMENT PRINTING OFFICE
22-725CC WASHINGTON : 1997
________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Washington, DC 20402
[[Page 1]]
ARTICLE I
Delegation
[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 premedicated 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\ 116 S. Ct. 1737 (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, 116 S. Ct. at 1742, a point on which Justice
Thomas disagreed, id. at 1753.
\4\ Rule for Courts-Martial; see 116 S. Ct. at 1740,
1741-42.
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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\ 116 S. Ct. at 1750-51.
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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
[[Page 2]]
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 1743-44.
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Qualifications of Members of Congress
[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,
who would hold that Congress, for different reasons, could
not add to qualifications, although the States could. Id. at
875-76.
[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 7 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
years, nine years citizenship, and an inhabitant of the
State.
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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 re-
[[Page 3]]
specting 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 at the
foundation of the Constitution's founding. 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 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 the context of the
States, an issue at the core of many controversies today.
[[Page 4]]
[P. 115, add to n.317:]
Another census controversy was resolved in Wisconsin v.
City of New York, 116 S. Ct. 1091 (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.
Commerce Clause
[P. 207, add to text following n.820:]
For the first time in almost sixty years, \14\ the
Court invalidated a federal law as exceeding Congress'
authority under the commerce clause. \15\ The statute was a
provision making it a federal offense to possess a firearm
within 1,000 feet of a school. \16\ 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. \17\
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, 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.'' \18\
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\14\ Carter v. Carter Coal Co., 298 U.S. 238 (1936).
\15\ 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.
\16\ 18 U.S.C. Sec. 922(q)(1)(A). Congress
subsequently amended the section to make the offense
jurisdictionally turn on possession of ``a firearm that has
moved in or that otherwise affects interstate or foreign
commerce.'' Pub. L. 104-208, 110 Stat. 3009-370.
\17\ 514 U.S. at 556-57, 559.
\18\ Id. at 558-59.
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Clearly, said the Court, the criminalized activity
did not implicate the first two categories. \19\ 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 enter-
[[Page 5]]
prise.'' 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.'' \20\ 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.'' \21\ 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. \22\
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.'' \23\
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\19\ Id. at 559.
\20\ Id. at 559-61.
\21\ Id. at 561.
\22\ Id. at 563-68.
\23\ Id. at 564.
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Whether this decision bespeaks a Court determination
to police more closely Congress' exercise of its commerce
power, so that it would be a noteworthy case, \24\ or
whether it is 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 is unclear. Obviously,
Justice Thomas would undo much of modern commerce-clause
jurisprudence. He writes that the substantial-effects test
in conjunction with the aggregation principle betrays the
intent of the Framers and confers a ``police power'' on
Congress that it should not, indeed, does not, have. He
argues that the Court in a future case should undo what it
has done. \25\ On the other hand, Justice Kennedy, with whom
Justice O'Connor joined, argued that the Court should
generally not upset the stability of commerce-clause
jurisprudence and should not erode the ``essential
principles now in place respecting the congressional power
to regulate transactions of a commercial nature.'' But, when
a congressional enactment upsets the federal balance by
extending federal power into areas ``to which
[[Page 6]]
States lay claim by right of history and expertise,'' he
would have the Court intervene. \26\
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\24\ ``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).
\25\ Id. at 584-602 (Justice Thomas concurring).
\26\ Id. at 568-83 (Justice Kennedy concurring).
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Thus, it seems unlikely that the Court, as now
constituted, will retreat from much of the existing law in
this area, but it may well be that, outside the area of
economic regulation, \27\ the Court will exert a restraining
hand to legislation such as that federalizing much state
criminal law enforcement.
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\27\ For a striking example, in the same Term as
Lopez, see Allied-Bruce Terminix Cos. v. Dobson, 513 U.S.
265 (1995).
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Dormant Commerce Clause--State Regulation and Taxation
[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).
[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).
[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).
[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. 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
unapportioned to reflect the intrastate travel and the
interstate travel. \28\ The tax in this case was different,
the Court held. The previous tax constituted a levy on gross
receipts, payable by the seller, whereas the present tax was
a sales
[[Page 7]]
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. \29\
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\28\ 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.
\29\ 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. \30\
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\30\ Fulton Corp. v. Faulkner, 116 S. Ct. 848
(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 855-60.
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[P. 232, add to n.961:]
And see Oregon Waste Systems 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. 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.
[P. 236, add to text following n.980:]
Further extending the limitation of the clause on
waste disposal, \31\ 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. \32\ 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
[[Page 8]]
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.
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\31\ See also Oregon Waste Systems, Inc. v.
Department of Envtl. Quality, 511 U.S. 93 (1994)
(discriminatory tax).
\32\ C & A Carbone, Inc. v. Town of Clarkstown, 511
U.S. 383 (1994).
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The Court analogized the constraint as a form of
economic protectionism, which bars out-of-state processors
from the business of treating the localities 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. \33\
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\33\ 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).
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[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 Corp., the Court in Barclays
Bank v. Franchise Tax Bd. of California, \34\ 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 is that foreign corporations have less protection under
the neg-
[[Page 9]]
ative commerce clause, perhaps intentionally for a variety
of reasons. \35\
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\34\ 512 U.S. 298 (1994).
\35\ The Supreme Court, Leading Cases, 1993 Term,
108 Harv. L. Rev. 139, 139-49 (1993).
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Preemption
[P. 247, add to n.1026, immediately preceding City of New
York v. FCC:]
Smiley v. Citibank, 116 S. Ct. 1730 (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).
[P. 249, add to text following n.1035:]
No clarification of the confusing Cipollone decision
and opinions resulted in Medtronic, Inc. v. Lohr. \36\ The
Medical Device Amendments (MDA) of 1976 prohibits 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. \37\ 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''
[[Page 10]]
to a device previously on the market, a situation of some
import to at least some of the Justices.
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\36\ 116 S. Ct. 2240 (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).
\37\ 21 U.S.C. Sec. 350k(a).
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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.
\38\
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\38\ The dissent, by Justice O'Connor and three
others, would have held preempted the latter claims, 116 S.
Ct. at 2262, whereas Justice Breyer thought that common-law
claims would sometimes be preempted, but not here. Id. at
2259 (concurring).
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[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 predispute arbitration agreements that were not
entered into in contemplation of substantial interstate
activity); Doctor's Associates, Inc. v. Casarotto, 116 S.
Ct. 1652 (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 of Marion County v. Nelson, 116 S.
Ct. 1103 (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. 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).
[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, 115 S. Ct.
2214 (1995).
[[Page 11]]
[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
[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).
[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.
Copyrights and Patents
[P. 297, add to n.1353:]
In Markman v. Westview Instruments, Inc., 116 S. Ct.
1384 (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.
[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 War Power
[P. 316, add to n.1465:]
See Loving v. United States, 116 S. Ct. 1737 (1996) (in
context of the death penalty under the UCMJ).
Taxes on Exports
[P. 356, add to text following n.1775:]
In United States v. IBM Corp., \39\ 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 \40\ and
with dormant-commerce-clause doctrine. In that
[[Page 12]]
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.
---------------------------------------------------------------------------
\39\ 116 S. Ct. 1793 (1996).
\40\ Article I, Sec. 10, cl. 2, applying to the
States.
---------------------------------------------------------------------------
[P. 356, add to n.1778:]
In United States v. IBM Corp., 116 S. Ct. 1793 (1996),
the Court adhered to Thames & Mercy, 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 conflating of a tax on the
insurance of exported goods as the same as 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 1800-01. The dissenters argued that the issue had been
presented and should be decided by overruling the earlier
case. Id. at 1804 (Justices Kennedy and Ginsburg
dissenting).
Ex Post Facto Laws
[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 held impermissible 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.
Imposts or Duties on Imports or Exports
[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).
[[Page 13]]
ARTICLE II
Executive Power
[P. 420, add to n.34:]
In Loving v. United States, 116 S. Ct. 1737 (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 his 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
1750-51.
Separation of Powers
[P. 422, add to text following n.45:]
Significant change in the position of the Executive
Branch respecting its position 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 contention
of the Department of Justice, 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).
---------------------------------------------------------------------------
[[Page 14]]
[P. 425, in text following n.61, add:]
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.'' Id. at 305-06 (footnote
citations omitted).
---------------------------------------------------------------------------
Appointment of Officers
[P. 512, add to n.461:]
The 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 designa-
[[Page 15]]
tion 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 was impermissible and their
actions were not salvageable under the de facto officer
doctrine. Ryder v. United States, 515 U.S. 177 (1995).
[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 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, 115 S. Ct. 2227 (1995), held that the Attorney
General's certification is subject to judicial review.
Impeachment
[P. 591, in text following n.784, add:]
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.'' \6\ Specifically, the
Could 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.
---------------------------------------------------------------------------
\6\ 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.
[[Page 17]]
---------------------------------------------------------------------------
ARTICLE III
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\
---------------------------------------------------------------------------
\2\ Id. at 227 (emphasis by Court).
---------------------------------------------------------------------------
[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).
[[Page 18]]
Contempt Power
[P. 622, add to text following n.154:]
In International Union, UMW v. Bagwell, \3\ 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.
\4\ Much prior doctrine, 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 remain.
---------------------------------------------------------------------------
\3\ 512 U.S. 821 (1994).
\4\ 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.
---------------------------------------------------------------------------
[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.
[P. 634, add to n.206:]
See also International Union, UMW v. Bagwell, 512 U.S.
821 (1994).
Congressional Control Over Habeas
[P. 639, add to text following n.238:]
In Felker v. Turpin, \5\ the Court again passed up
the opportunity to delineate Congress' permissive authority
over habeas, finding that of the provisions of the
Antiterrorism and Effective Death Penalty Act \6\ none did
raise questions of constitutional import.
---------------------------------------------------------------------------
\5\ 116 S. Ct. 2333 (1996).
\6\ P. L. 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.
---------------------------------------------------------------------------
[[Page 19]]
Congressional Control Over the Injunctive Process
[P. 642, add to text following n.264:]
Perhaps pressing its powers further than prior
legislation, Congress has enacted the Prison Litigation
Reform Act of 1996. \7\ 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. If a decree was previously issued without
regard to the standards now imposed, the defendant or
intervenor is entitled to move to vacate it. No prospective
relief is to last longer than two years if any party or
intervenor so moves. A number of constitutional challenges
can be expected respecting Congress' power to limit federal
judicial authority to remedy constitutional violations.
---------------------------------------------------------------------------
\7\ The statute was part of an Omnibus
Appropriations Act signed by the President on April 26,
1996. P. L. 104-134, Sec. Sec. 801-10, 110 Stat. 1321-66-77,
amending 18 U.S.C. Sec. 3626. See Benjamin v. Jacobson, 935
F. Supp. 332 (S.D.N.Y. 1996).
---------------------------------------------------------------------------
Standing
[P. 661, add to text following n.357:]
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.'' \8\ 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
[[Page 20]]
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.'' \9\ The
association, therefore, established standing by alleging
that its members was able and ready to bid on contracts but
that a discriminatory policy prevented them from doing so on
an equal basis. \10\
---------------------------------------------------------------------------
\8\ 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).
\9\ Northeastern Fla. Ch. of the Associated Gen.
Contractors v. City of Jacksonville, 508 U.S. 656, 666
(1993). 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).
\10\ 508 U.S. at 666. But see, in the context of
ripeness, Reno v. Catholic Social Services, 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.
---------------------------------------------------------------------------
Declaratory Judgments
[P. 674, add to n.436:]
See also Wilton v. Seven Falls Co., 515 U.S. 277 (1995).
Ripeness
[P. 678, add to n.457:]
In the context of the ripeness to challenge of 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 Services, Inc.,
509 U.S. 43 (1993); Lujan v. National Wildlife Federation,
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. 679-80, add to n.463:]
Consider the impact of Cardinal Chemical Co. v. Morton
Int'l, Inc., 508 U.S. 83 (1993).
[[Page 21]]
[P. 680, add to n.466:]
Following Aladdin's Castle, the Court in Northeastern
Fla. Ch. of the Associated 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).
Retroactivity of Judicial Decisions
[P. 687, add to text following n.509:]
Apparently, the Court now has resolved this dispute,
although the principal decision is a close five-to-four
result. In Harper v. Virginia Dep't of Taxation, \11\ 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.'' \12\ Four Justices continued to adhere to
Chevron Oil, however, \13\ so that with one Justice each
retired from the different sides one may not regard the
issue as definitively settled. \14\
---------------------------------------------------------------------------
\11\ 509 U.S. 86 (1993).
\12\ 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.
\13\ 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.
\14\ 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).
---------------------------------------------------------------------------
[[Page 22]]
Political Questions
[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. \15\
---------------------------------------------------------------------------
\15\ 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--Stare Decisis
[P. 712, add to n.639:]
Recent discussions of and both applications of and
refusals to apply stare decisis may be found in United
States v. IBM Corp., 116 S. Ct. 1793, 1800-01 (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 1804
(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,
116 S. Ct. 1114, 1127-32 (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 1133, 1145. 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, 116 S. Ct. 2309, 2323 (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 2321 (Court notes those issues
not raised or argued).
Federal Question Jurisdiction
P. 721, add to n.702:]
See also Kokkonen v. Guardian Life Ins. Co., 511 U.S.
375 (1994); Peacock v. Thomas, 116 S. Ct. 862 (1996) (both
cases using the new vernacular of ``ancillary
jurisdiction'').
Admiralty
[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
[[Page 23]]
giving rise to the incident had a substantial relationship
to traditional maritime activity.
United States as a Party
[P. 743, add to n.842:]
But, in Yamaha Motor Corp. v. Calhoun, 116 S. Ct. 619
(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.
[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 States
[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.
Diversity of Citizenship
[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. \16\
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 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, \17\ rather than what had been the
prevailing standard,
[[Page 24]]
in which the Court balanced state and federal interests to
determine which law to apply. \18\ 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.'' \19\ Additional decisions will be required to
determine which approach, if either, prevails.
---------------------------------------------------------------------------
\16\ Gasperini v. Center for Humanities, Inc., 116
S. Ct. 2211 (1996). The decision was five-to-four, so that
the precedent may or may not be stable for future
application.
\17\ E.g., Guaranty Trust Co. v. York, 326 U.S. 99
(1945).
\18\ E.g., Byrd v. Blue Ridge Rural Elec. Coop., 356
U.S. 525 (1958).
\19\ 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
[P. 788, add to n.1105:]
A restrained reading of McCardle is strongly suggested
by Felker v. Turpin, 116 S. Ct. 2333 (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. 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
[Pp. 798-99, add to n.1161:]
But in Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712
(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.
Habeas Corpus
[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, \20\ 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
[[Page 25]]
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. \21\
---------------------------------------------------------------------------
\20\ 506 U.S. 390 (1993).
\21\ 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, \22\ 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.'' \23\ 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.'' \24\
---------------------------------------------------------------------------
\22\ 513 U.S. 298 (1995).
\23\ 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).
\24\ 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, \25\ 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
[[Page 26]]
upheld in Felker v. Turpin. \26\ 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[.]'' \27\
---------------------------------------------------------------------------
\25\ P. 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.
\26\ 116 S. Ct. 2333 (1996).
\27\ The amended 28 U.S.C. Sec. 2254(d) (emphasis
supplied). On the constitutionality of this provision, see
the various opinions in Lindh v. Murphy, 96 F.3d 856 (7th
Cir. 1996) (en banc).
[[Page 27]]
FIRST AMENDMENT
RELIGION
An Overview
--Court Tests Applied to Legislation Affecting Religion
[Pp. 973-74, change text following n.25 to read:]
and with increasing frequency have not been applied
at all by the Court.
[P. 974, add to n.26 following Lee v. Weisman citation:]
Zobrest v. Catalina Foothills School 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, 114 S. Ct. 2481 (1994)
(invalidating law creating special school district for
village composed exclusively of members of one religious
sect).
[P. 974, add to text following n.29:]
Justice O'Connor has suggested that it is
inappropriate to try to shoehorn all Establishment cases
into one test, and has called instead for recognition that
different contexts may call for different approaches. \1\
For example, the Justice proposes that cases involving
government ``speech'' on religious topics be judged by an
endorsement test that would invalidate government actions
only if a reasonable observer would perceive the action as
an endorsement or disapproval of religious belief. \2\
---------------------------------------------------------------------------
\1\ Board of Educ. of Kiryas Joel Village v. Grumet,
114 S. Ct. 2481, 2498-99 (1994).
\2\ Lynch v. Donnelly, 465 U.S. 668, 688 (1984)
(concurring); Allegheny County v. Greater Pittsburgh ACLU,
492 U.S. 573, 625 (1989) (concurring); Board of Educ. of
Kiryas Joel Village v. Grumet, 114 S. Ct. 2481, 2500 (1994)
(concurring).
---------------------------------------------------------------------------
ESTABLISHMENT OF RELIGION
[P. 977, add to text following n.41:]
``[The] Court has long held that the First Amendment
reaches more than classic, 18th century establishments.''
\3\
---------------------------------------------------------------------------
\3\ Board of Educ. of Kiryas Joel Village v. Grumet,
114 S. Ct. 2481, 2494 (1994) (citing Torcaso v. Watkins, 367
U.S. 488, 492-95 (1961)).
---------------------------------------------------------------------------
Financial Assistance to Church-Related Institutions
[P. 984, add to text following n.74:]
On the other hand, public payment of a sign-language
interpreter for a deaf student attending parochial school
created no such
[[Page 28]]
effects or entanglement problems, the Court ruled in a later
case, since this was not an expense that the parochial
school would otherwise have borne, and since the interpreter
had no role in selecting or editing the content of the
educational and religious lessons. \4\ Aguilar and Grand
Rapids are now tenuous at best, five Justices having
recently expressed the opinion that the cases should be
overruled or at least reconsidered. \5\
---------------------------------------------------------------------------
\4\ Zobrest v. Catalina Foothills School Dist., 509
U.S. 1 (1993).
\5\ See Board of Educ. of Kiryas Joel Village v.
Grumet, 114 S. Ct. 2481 (1994). Four Justices advocated
outright overruling: Justice O'Connor, id. at 2498 (Aguilar
erroneously requires ``disfavoring'' of religion and should
be reconsidered) (concurring opinion); and Justice Scalia,
joined by Chief Justice Rehnquist and Justice Thomas, Id. at
2514-15 (dissenting opinion). Justice Kennedy stated that
the cases ``may have been erroneous,'' and advocated
reconsideration. Id. at 2505 (concurring opinion).
---------------------------------------------------------------------------
[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 School
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.
[P. 997, change heading to:]
Access of Religious Groups to Public 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; \6\ public colleges may not exclude
student religious organizations from benefits otherwise
provided to a full spectrum of student ``news, information,
opinion, entertainment, or academic communications media
groups;'' \7\ and a state that creates a traditional public
forum for citizen speeches and unattended displays on a
plaza at its state capitol cannot, on Establishment Clause
grounds, deny access for a religious display. \8\ These
cases make clear that the Establishment Clause does not
[[Page 29]]
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.
---------------------------------------------------------------------------
\6\ Lamb's Chapel v. Center Moriches School 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.
\7\ Rosenberger v. University of Virginia, 115 S.
Ct. 2510 (1995).
\8\ Capitol Square Review Bd. v. Pinette, 115 S. Ct.
2440 (1995).
---------------------------------------------------------------------------
[P. 1002, add new heading following n.163:]
Religious Displays on Government Property
[P. 1004, add new paragraph at end of section:]
In Capitol Square Review Bd. v. Pinette, \9\ 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 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.
---------------------------------------------------------------------------
\9\ 115 S. Ct. 2440 (1995). The Court was divided 7-
2 on the merits of Pinette, a vote that obscured continuing
disagreement over 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'' (id. at
2471), 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, \10\
invalidated a New York law creating a special school
district for an incorporated village
[[Page 30]]
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 nonreligious groups.
---------------------------------------------------------------------------
\10\ 114 S. Ct. 2481 (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.
114 S. Ct. at 2488.
---------------------------------------------------------------------------
FREE EXERCISE OF RELIGION
[P. 1007, add to n.188:]
Board of Educ. of Kiryas Joel Village v. Grumet, 114 S.
Ct. 2481, 2492-93 (1994) (``accommodation is not a principle
without limits;'' one limitation is that ``neutrality as
among religions must be honored'').
Free Exercise Exemption From General Governmental
Requirements
[P. 1018, add new paragraph following n.253:]
The political processes were soon utilized in an
attempt to provide additional protection for religious
exercise. In the Religious Freedom Restoration Act of 1993,
\11\ Congress sought to supersede Smith and substitute a
statutory rule of decision. The Act provides 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.'' \12\ Enactment of the Religious Freedom
Restoration Act does not, however, close the book on Smith.
Issues concerning the RFRA's constitutionality ensure
continuing litigation over the appropriate constitutional
test. \13\
---------------------------------------------------------------------------
\11\ Pub. L. 103-141, 107 Stat. 1488 (1993); 42
U.S.C. Sec. Sec. 2000bb to 2000bb-4.
\12\ Pub. L. 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).
\13\ See, e.g., Flores v. City of Boerne, 877 F.
Supp. 355 (W.D. Tex. 1995) (holding the RFRA
unconstitutional); and Canedy v. Boardman, 16 F.3d 183, 186
n.2 (7th Cir. 1994) (dictum that the constitutionality of
the RFRA--not before the court--``raises a number of
questions involving the extent of Congress's powers under
Section 5 of the Fourteenth Amendment''). For an overview of
these issues, see Scott C. Idleman, The Religious Freedom
Restoration Act: Pushing the Limits of Legislative Power, 73
Tex. L. Rev. 247 (1994). For arguments pro and con, compare
Douglas Laycock, The Religious Freedom Restoration Act, 1993
B.Y.U. L. Rev. 221 with Christopher L. Eisgruber and
Lawrence G. Sager, Why the Religious Freedom Restoration Act
is Unconstitutional, 69 N.Y.U. L. Rev. 437 (1994).
---------------------------------------------------------------------------
[[Page 31]]
[P. 1018, add new note 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.'' \14\
---------------------------------------------------------------------------
\14\ 508 U.S. 520, 531 (1993).
---------------------------------------------------------------------------
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Adoption and 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. \15\ This leads to a ``state action'' (or
``governmental action'') limitation similar to that
applicable to the Fourteenth Amendment. \16\ 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.'' \17\ 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.''
\18\ The rela-
[[Page 32]]
tionship of the government to broadcast licensees affords
other opportunities to explore the breadth of ``governmental
action.'' \19\
---------------------------------------------------------------------------
\15\ Through interpretation of the Fourteenth
Amendment, the prohibition extends to the States as well.
See discussion on incorporation, main text, pp. 957-64.
\16\ See discussion on state action, main text, pp.
1786-1802.
\17\ CBS v. Democratic Nat'l Comm., 412 U.S. 94, 115
(1973) (opinion of Chief Justice Burger).
\18\ Lebron v. National R.R. Passenger Corp., 115 S.
Ct. 961, 971 (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. ``It 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.''
115 S. Ct. at 971.
\19\ 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
--Imposition of Consequences for Holding Certain Beliefs
[P. 1054, add to n.181 following cite 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 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. \20\ 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
[[Page 33]]
not involving ``a trespass on the organization's message
itself.'' \21\ 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.'' \22\
---------------------------------------------------------------------------
\20\ 115 S. Ct. 2338 (1995).
\21\ Id. at 2351.
\22\ Id.
---------------------------------------------------------------------------
--Political Association
[P. 1063, add to text before first full paragraph on page:]
In 1996 the Court extended Branti and Finkel to
protect independent government contractors. \23\
---------------------------------------------------------------------------
\23\ O'Hare Truck Serv., Inc. v. City of Northlake,
116 S. Ct. 2353 (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, 116 S. Ct. 2342 (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 That 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, \24\ 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. \25\
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
[[Page 34]]
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. \26\
---------------------------------------------------------------------------
\24\ 115 S. Ct. 1003 (1995).
\25\ 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.''
\26\ 115 S. Ct. at 1018.
---------------------------------------------------------------------------
--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.'' \27\
---------------------------------------------------------------------------
\27\ Board of County Comm'rs v. Umbehr, 116 S. Ct.
2342, 2346 (1996).
---------------------------------------------------------------------------
[P. 1089, add to n.116:]
In Waters v. Churchill, 114 S. Ct. 1878 (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. 1097, add to n.150:]
See also Colorado Republican Campaign Comm. v. FEC, 116
S. Ct. 2309 (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).
Governmental Regulation of Communications Industries
--Commercial Speech
[P. 1116, add to n.12:]
Shapero was distinguished in Florida Bar v. Went For It,
Inc., 115 S. Ct. 2371 (1995), a 5-4 decision upholding a
prohibition on targeted direct-mail solicitations to victims
and their relatives for a 30-day period following an
accident or disaster. The ban struck down in Shapero was far
broader, both in scope and in duration, the Court explained,
and was not supported, as Florida's was, by findings
describing the harms to be prevented by the ban. Dissenting
Justice Kennedy disagreed that there was a valid
distinction, pointing out the Court's previous reliance on
the mode of communication (in-person solicitation versus
mailings) as ``mak[ing] all the difference.'' 115 S. Ct. at
2382 (quoting Shapero, 486 U.S. at 475).
[[Page 35]]
[P. 1116, add to text following n.13:]
, or prohibit a certified public accountant from
holding herself out as a certified financial planner. \28\
---------------------------------------------------------------------------
\28\ Ibanez v. Florida Bd. of Accountancy, 114 S.
Ct. 2084 (1994) (also ruling that Accountancy Board could
not reprimand the CPA, who was also a licensed attorney, for
truthfuly 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. \29\ 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.'' \30\
---------------------------------------------------------------------------
\29\ Edenfield v. Fane, 507 U.S. 761, 775 (1993).
\30\ Id. at 1803.
---------------------------------------------------------------------------
[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 cite:]
Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (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.'' 115 S. Ct. at 1591.
[P. 1118, add to n.20 following Bolger cite:]
Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (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 ag-
[[Page 36]]
gregate effects, and does not limit its consideration to
effects o |
