THE CONSTITUTION IN THE YEAR 2000:

Choices Ahead in Constitutional Interpretation

Office of Legal Policy

Department of Justice

OCTOBER 11, 1988

Table of Contents A B /

11 i&

INTRODUCTION

1. Will judicially created exclusionary rules relating to the Fourth,

Fifth, and Sixth Amendments be utilized to impose more exten-

sive restrictions on criminal investigation and prosecution? 1

2. Will the constitutional right to abortion be expanded or

restricted under the Fourteenth Amendment? 11

3. Will the Due Process and Equal Protection Clauses of the

Fourteenth Amendment be used to establish a constitutional

right of sexual preference or to invalidate laws that disadvan-

tage homosexuals? 20

4. Will the "right of privacy," derived from the Fourteenth

Amendment's Due Process Clause, be expanded to invalidate

various state laws that prohibit individual behavior in the

interest of promoting standards of public morality? 33

5. Will the Supreme Court define discrimination in terms of

"disparate impact" and thereby use the Equal Protection Clause

to require race and gender "affirmative action" policies? 44

6. Will public policies that have a disparate impact on the basis of

wealth be limited under the Equal Protection Clause of the

Fourteenth Amendment, and will the Constitution be interpreted

to require particular levels of social welfare spending? 57

7. Will public initiatives to strengthen private education run

afoul of the Religion Clauses of the First Amendment? 70

8. Will the Free Exercise Clause of the First Amendment be

interpreted to require special accommodation of religious

practices in an era of expanding government? 82

9. Will the freedom of association protected by the First Amend-

ment provide any significant protection against the appli-

cation of government policies to private groups and

organizations? 94

10. Will the Takings Clause and the Contracts Clause of the

Constitution be revitalized? 106

i
11. Will the courts become more involved in deciding controver-

sies pertaining to the Executive's authority under Article II in

the areas of foreign policy and national defense? 119

12. Will the Tenth Amendment play a significant role in protecting

the states from federal control? 130

13. Will the equity power of the federal courts to restructure local

institutions be limited? 141

14. Will the rights of legal and illegal aliens be expanded under the

Equal Protection Clause of the Fourteenth Amendment and

other provisions of the Constitution? 152

15. Will the judiciary strictly enforce the constitutional require-

ment of separation of powers? 169

CONCLUSION 185

APPENDIX: The Constitution of the United States 187

ii
Introduction

There have been few times in the history of our country at which

former Chief Justice Hughes' famous statement that "the Constitution

of the United States is what the judges say it is" has more accurately

depicted the state of American jurisprudence. The controversy over the

federal judicial selection standards, the debate over Supreme Court

nominations, and the heated divisions in the law schools, the circuit

courts, and the political arena about the appropriate role of the federal

judiciary within the constitutional system all reflect the increasing

centrality of questions of jurisprudence in the public policy realm.

Whether the fault lines are defined in terms of interpretivism vs.

non-interpretivism or strict interpretation vs. liberal interpretation or

commitment to original meaning vs. commitment to an evolving

constitution, it is clear that there are substantial differences of opinion

over the judicial role in contemporary society.

The purpose of this report is to provide a glimpse of the stakes that

are involved in the manner in which the ongoing debate is resolved in the

highest court of the land—the United States Supreme Court. "The

Constitution in the Year 2000" is a modest effort to set forth a sampling

of constitutional controversies that may come before the Court between

now and the year 2000, the resolution of which is likely to be sharply

influenced by the judicial philosophies of the individual justices who sit

on the Court. The aggregate result of these decisions will, in large part,

determine how the Constitution at the turn of the twenty-first century

looks different from the Constitution of 1989 as well as that of 1789.

Almost certainly, the Constitution that reigns as the "Supreme Law of

the Land" in the year 2000 will be affected enormously by the decisions

and interpretations of the next dozen years. Perhaps it appears that way

to all generations, but the alternative roads down which the Court might

travel over this time seem unusually divergent from a contemporary

perspective.

"The Constitution in the Year 2000" selects fifteen important areas

of potential conflict on the Court between now and the year 2000.

While certainly these topics do not exhaust the areas of controversy that

could have been selected—some of which are obviously unknowable at

this time—the fifteen selected areas of discussion do promise to be areas

in which recurrent litigation is likely to occur in the federal system and

in which ultimate resolution by the Supreme Court will be necessary.

Within each of this report's chapters, there is a Part A which sets

forth a summary background of the current legal status of the

iii
controversy, with a description of some of the leading cases. In Part

B—the heart of each chapter—there is a discussion, necessarily specu-

lative, of some of the facets of the issue that may come before the Court

during the 1990's. Finally, Part C briefly summarizes these controversies

in a single sentence.

Several disclaimers obviously are in order. As already noted, the

fifteen areas under discussion here do not purport to define compre-

hensively the scope of the forthcoming debate. That would be impos-

sible to do in the course of a limited document such as this. Inevitably,

as well, there will be controversies before the Court that no one could

have predicted even a few years earlier. Nevertheless, the selection of

topics is more than random guesswork; it includes a significant number

of areas of potential constitutional controversy that are likely to

consume a great deal of the Court's time over the next decade and with

respect to which it may well embark upon radically different constitu-

tional paths.

Second, this report attempts to set forth the background and the

likely parameters of the debate in as neutral and balanced a manner as

possible. Nevertheless, this is sometimes a difficult thing to do to

everyone's satisfaction. Suffice it to say that the intent was to charac-

terize current law and the alternative courses of future legal develop-

ment in the most objective possible manner, trying to avoid skewing the

debate in a way compatible with the perspectives of the Justice

Department as an institution or the current Administration. The reader

will have to make the ultimate determination about the extent to which

this has been done successfully.

Finally, the reader should not be oblivious to the fact that any

attempt to define future courses of action in terms only of two principal

forks in the road necessarily runs the risk of over-simplifying complex

areas of controversy susceptible to a wide range of more subtle and

nuanced solutions. That such a host of intermediate paths may be

available to the Court does not, however, diminish the utility of defining

the larger options in constitutional interpretation that may be available

to the High Court in the years immediately ahead.

As the traditional lead agency in the executive branch in the

judicial selection process, the Department of Justice believes that this

report will prove helpful in communicating to the public, the media and

Members of Congress the growing importance of the judicial selection

process. It is to be hoped that it will better inform the citizenry of the

issues that will effectively be decided by the judiciary in late twentieth

century America. In addition, it is hoped that this report will enable the

Nation's media to better anticipate the issues to be confronted by the

iv
courts in the same way that they currently anticipate issues of the

economy, foreign policy, and national defense to be confronted by new

Administrations every four years. Finally, it is hoped that this report will

allow Members of Congress of both parties, pursuant to their consti-

tutional responsibilities, to assess judicial nominees in the most thor-

ough and informed manner possible.

There are few factors that are more critical to determining the course

of the Nation, and yet are more often overlooked, than the values and

philosophies of the men and women who populate the third co-equal

branch of the national government—the federal judiciary. It is with the

intention of generating intelligent debate, and of providing a rudimentary

road-map to the constitutional twists and turns the courts may take over

the next generation, that the following report is submitted.

v
1. Will Judicially Created Exclusionary Rules Relating

to the Fourth, Fifth, and Sixth Amendments Be

Utilized to Impose More Extensive Restrictions on

Criminal Investigation and Prosecution?

A. Background

In an article published in 1965, Judge Henry Friendly expressed

concern that expansive Supreme Court decisions were effectively trans-

forming the Bill of Rights into a detailed "code of procedure" for

criminal cases.1 This observation came at the mid-point of the judicial

revolution in criminal procedure that occurred in the 1960's; decisions

in the latter half of that decade established many additional restrictions

on investigation and prosecution. Today, the major precedents of the

Warren Court continue to define the basic law of criminal procedure in

the United States.

A number of the Court's most controversial decisions involved the

adoption of rules that attempt to regulate law enforcement practices by

excluding evidence—regardless of its reliability or probative value—

when it has been obtained in a manner that violates legal norms or

judicially specified restrictions on investigation. In particular, the Court

has adopted such rules relating to improperly seized evidence, post-

arrest questioning of suspects, and undercover investigations.

In relation to improperly seized evidence, the common-law rule

was that the means by which evidence was obtained did not affect its

admissibility at trial.2 The Supreme Court subsequently departed from

this traditional principle and adopted an exclusionary rule for Fourth

Amendment violations, but initially limited the application of the new

rule to federal proceedings.3 In Mapp v. Ohio,4 however, the Court

overturned its earlier precedents that declined to impose the exclusion-

ary rule on the states, and adopted a nationally uniform rule that

evidence obtained in violation of the Fourth Amendment could not be

used at trial.

In relation to custodial interrogation, the Supreme Court's deci-

1 Friendly, The Bill-of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929

(1965).

2 See Adams v. New York, 192 U.S. 585 (1904).

3 See, e.g., Weeks v. United States, 232 U.S. 383 (1914) (exclusionary rule for federal

proceedings); Wolf v. Colorado, 338 U.S. 25 (1949) (exclusionary rule inapplicable to

states).

4 367 U.S. 643 (1961).

1
sions prior to the 1960's rejected any right to counsel or warnings in

connection with police questioning.5 Confessions or other pre-trial

statements were inadmissible only if involuntary, that is, obtained

through actual coercion by the police. The Supreme Court's S-to-4

decision in Miranda v. Arizona,6 however, adopted a new set of rules

restricting the use of pre-trial statements by suspects in custody. The

Miranda rules generally condition the admissibility of such statements

on the delivery of the "Miranda warnings" and on an "affirmative

waiver" by the suspect before questioning; they also generally bar the

use of statements obtained through any questioning after the suspect

has expressed an interest in consulting a lawyer or has indicated in any

manner that he is unwilling to talk. The Court justified these innova-

tions partly on the view that the Fifth-Amendment right against

compelled self-incrimination requires a completely free, unpressured,

and informed decision whether to talk, and partly on the view that

interrogation tactics involving extreme psychological pressures and

manipulation were commonplace.7

In relation to undercover investigation, there was no thought prior

to the 1960's that the use of such methods or resulting evidence might

implicate the right to counsel under the Sixth Amendment. Rather, the

constitutional right to counsel was understood simply as a right to have

counsel to assist in preparing and presenting a defense. In Massiah v.

United States,8 which involved incriminating statements made to an

informant after the suspect had been indicted and had retained counsel,

the Court adopted a new view of the Sixth-Amendment right as

effectively restricting certain investigative methods. The general rule of

Massiah and subsequent decisions is that the right to counsel bars the

use of statements that an undercover agent elicits from a defendant after

the defendant has been formally charged with a crime.9

By the late 1960's, therefore, the Supreme Court had adopted

novel restrictions on obtaining and using evidence in a number of

important areas, ostensibly to protect rights guaranteed by the Fourth,

Fifth and Sixth Amendments. These restrictions were controversial at

the time of their creation, and they remain so today. Defenders of these

5 See, e.g., Crooker v. California, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504

(1958); Wilson v. United States, 162 U.S. 613 (1896).

6 384 U.S. 436 (1966).

7 See generally Markman, Miranda v. Arizona: A Historical Perspective, 24 Am.

Crim. L. Rev. 193, 210-24 (1986).

• 377 U.S. 201 (1964).

'See generally Baker & Elsen, Counsel for the Suspect: Massiah v. United States and

Escobedo v. Illinois, 49 Minn. L. Rev. 47, 49-58 (1964).

2
restrictions have tended to minimize the adverse effects they may have

on law enforcement, and to view them as essential to the effectuation of

the constitutional provisions to which they relate.10 Those who oppose

these rules have tended to argue that the adverse effect on enforcement

is substantial, that the new rules are in conflict with traditional

understandings of constitutional principles, and that any legitimate

interests they protect could more effectively be safeguarded by means

that are less detrimental to effective investigation and prosecution."

More recent Supreme Court decisions rejecting the constitutional

rationales of the Mapp and Miranda decisions have added another

dimension to this debate. In the Court's current view, the search-

and-seizure exclusionary rule is a judge-made, non-constitutional rem-

edy intended to deter Fourth Amendment violations, and the Miranda

rules are "prophylactic" safeguards that the police may violate without

violating the Constitution.12 A number of writers have expressed

consternation over the fact that the Court continues to enforce the

Mapp and Miranda restrictions despite this change,13 without attempt-

ing to explain the source of its authority to impose on the states rules

that it expressly acknowledges are not constitutionally required.14

A closely related development has been the emergence of various

10 See, e.g., Kamisar, Is the Exclusionary Rule an "Illogical" or "Unnatural" Inter-

pretation of the Fourth Amendment?, 62 Judicature 66 (1978); Schulhofer, Recon-

sidering Miranda, 54 U. Chi. L. Rev. 435 (1987).

"See, e.g., Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62

Judicature 214 (1978); Markman, supra note 7; Johnson, A Statutory Replacement

for the Miranda Doctrine, 24 Am. Crim. L. Rev. 303 (1986).

12 See, e.g.. United States v. Calandra, 414 U.S. 338, 348 (1974); Michigan v. Tucker,

417 U.S. 433, 443-46 (1974).

13 See, e.g., Sonenshein, Miranda and the Burger Court: Trends and Countertrends, 13

Loyola U. L.J. 405, 407-08, 425-28 (1982); Stone, The Miranda Doctrine in the

Burger Court, 1977 Sup. Ct. Rev. 99, 118-20, 123; see also Grano, Prophylactic Rules

in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw. U.L. Rev. 100,

101-02, 106-11 (1985).

The Supreme Court has claimed a supervisory power to prescribe non-constitutional

evidentiary and procedural rules for the lower federal courts, but has denied that it possesses

such authority in relation to state proceedings. Even in relation to federal proceedings,

questions have been raised concerning the validity of the Court's creation of such non-

constitutional rules for the purpose of regulating executive law enforcement functions.

See Beale, Reconsidering Supervisory Power in Criminal Cases: Constitutional and

Statutory Limits on the Authority of the Federal Courts, 84 Colum. L. Rev. 1433 (1984);

Office of Legal Policy, U.S. Department of Justice, Report on the Judiciary's Use of

Supervisory Power to Control Federal Law Enforcement Activity (1986). ..,

14 See generally Schulhofer, supra note 10, at 446-53 (1987); Grano, Miranda's Constitu-

tional Difficulties: A Reply to Professor Schulhofer, 55 U. Chi. L. Rev. 174 (1988) (debate

over validity of Court's creating non-constitutional prophylactic rules).

3
restrictions and exceptions to the exclusionary rule and Miranda. If, as

the Court now holds, the exclusionary rule and Miranda are not actually

required by the Constitution, then there can be no objection in principle

to making them inapplicable in contexts in which their societal costs

seem to outweigh their benefits. For example, the Court has held that

the exclusionary rule is wholly or generally inapplicable in grand jury,

deportation, and habeas corpus proceedings, and it has adopted a

so-called "good faith" exception to the exclusionary rule for searches

under warrants.15 Similarly, the Court has recognized a "public safety"

exception to Miranda, where a suspect is questioned to abate an

immediate danger to the public,16 and it has held in certain contexts that

evidence derived from voluntary statements obtained in violation of

Miranda is admissible at trial.17 The Court has also held that both

illegally seized physical evidence and voluntary statements obtained in

violation of Miranda may be used to impeach a defendant's testimony.18

Contrary to the Court's treatment of the exclusionary rule and

Miranda, it has continued to characterize the Massiah rule as constitu-

tionally required. Moreover, despite criticisms that Massiah's general

ban on undercover investigation after formal charging is unrelated to

the conventionally recognized values underlying the right to counsel and

unjustifiable as a matter of policy,19 the Court has not only been

unwilling to reconsider the Massiah decision,20 but also has applied it

expansively in a number of recent cases. For example, the Court has

15 See United States v. Calandra, 414 U.S. 338 (1974); INS v. Lopez-Mendoza, 468 U.S.

1032 (1984); Stone v. Powell, 428 U.S. 465 (1976); United States v. Leon, 468 U.S. 897

(1984).

16 See New York v. Quarles, 467 U.S. 649 (1984).

17 See Oregon v. Els tad, 470 U.S. 298 (1985) (statement by suspect following Miranda

warnings admissible even if it results from earlier admission elicited by police

questioning without warnings); Michigan v. flicker, 417 U.S. 433 (1974) (testimony

of witness discovered as a result of suspect's statements obtained in violation of

Miranda admissible under facts of case). A contrary rule applies to derivative

evidence obtained through actual constitutional violations. See Elstad, supra, 470

U.S. at 308.

18 See United States v. Havens, 446 U.S. 620 (1980); Oregon v. Hass, 420 U.S. 714,

720-24 (1975).

"See, e.g., Uviller, Evidence from the Mind of the Criminal Suspect: A Reconsideration

of the Current Rules of Access and Restraint, 87 Colum. L. Rev. 1137, 1154-64 (1987);

Enker & Elsen, supra note 9, at 49-50, 53-58; Office of Legal Policy, U.S. Department

of Justice, Report on the Sixth Amendment Right to Counsel Under the Massiah Line

of Cases 7-21 (1986); see also F. Graham, The Self-inflicted Wound 163-64 (1970).

20 See United States v. Henry, 447 U.S. 264, 269 n.6 (1980) (refusing, without

explanation, to discuss argument of government and dissenting Justice that Massiah

should be reconsidered).

4
construed Massiah as requiring that a formally charged defendant give

a knowing and intelligent waiver of the right to counsel prior to police

questioning, thereby providing a constitutional basis for a Miranda-like

warnings and waiver requirement following formal charging.21 The

Court has also held that Massiah's restriction on using statements given

to an informant relating to pending charges is applicable even if the

investigation is necessitated by the defendant's subsequent commission

of additional crimes.22

The Court's continued enforcement of the rules of Mapp, Mi-

randa, and Massiah raises both questions relating to the importance of

the search for truth in criminal investigation and prosecution, and

questions relating to institutional legitimacy. Rules that attempt to

regulate law enforcement activities by excluding traditionally admissible

evidence, regardless of its reliability and probative value, bear a heavy

burden of justification under a philosophy that emphasizes the impor-

tance of truth-seeking in the criminal justice process, but may more

readily be accepted if one attaches greater weight to countervailing

interests in that process. Thus, from different perspectives, these rules

may appear either as unwarranted obstacles to effective investigation

and prosecution, or as important protections for the rights of suspects

and defendants. The legitimacy question, which arises from the Court's

promulgation of rules that it concedes are not constitutionally man-

dated, also has significant implications for the continued validity of the

current rules. The future development of the law of criminal procedure

is bound up with these underlying questions.

B. Possible Developments in the Future

The Supreme Court's criminal procedure decisions contain basic

tensions and unresolved doctrinal anomalies that suggest the possibility

of significant changes—and perhaps fundamental changes—in the

years ahead. Two alternative avenues of future development may be

envisioned.

Along one road, the Court might attach greater weight to the

effective prosecution of crime, and might generally become less willing

to perpetuate rules that restrict the discovery or use of reliable evidence,

unless such restrictions are clearly required by the Constitution under

historically rooted interpretations of its provisions. This approach

21 See Brewer v. Williams, 430 U.S. 387 (1977); Patterson v. Illinois, 56 U.S.L.W. 4733

(1988).

22 See Maine v. Moulton, 474 U.S. 159 (1985).

5
would entail reconsidering the Miranda rules and the exclusionary rule

in light of the Court's view that they are not constitutionally required,

and might also entail reconsidering Massiah in light of arguments that

it is not constitutionally well-founded.

Along the other road, the Court could embrace doctrinal changes

that would validate, and possibly even extend, existing restrictions on

law enforcement in an effort to protect the rights of criminal defen-

dants, as the Court conceives them. In regard to Miranda and the

exclusionary rule, for example, the Court in the future might attempt to

bring theory and practice into line by avowing a broad quasi-legislative

power to prescribe nationally uniform (albeit non-constitutional) rules

of evidence and procedure. At least in relation to Miranda, however,

even so basic a doctrinal innovation would not necessarily justify the

continued application of the current rules, because existing statutory

law is inconsistent with those rules.

Specifically, in 1968 Congress enacted 18 U.S.C. § 3501, which

was designed to overrule the Miranda decision by requiring the admis-

sion of pre-trial statements under the traditional standard of

voluntariness.23 Under the Supreme Court's current view of Miranda

and the Fifth Amendment, the statute requires nothing that the

Constitution prohibits, but provides only for the admission of

statements—despite non-compliance with Miranda—where the police

have not engaged in actual compulsion in violation of the Fifth

Amendment.24 If the government were to assert the validity of § 3501 in

a case before the Supreme Court, the Court might adhere to its current

position that the Miranda rules are non-constitutional, recognize that

Congress can validly change or repeal rules that the Constitution does

not require, and validate Congress's overruling of Miranda.

Alternatively, the Court could attempt to save Miranda, despite the

contrary mandate of the statute, by adopting some new rationale for

treating the Miranda rules as constitutional requirements.25 For exam-

ple, while the Court now holds that the Sixth-Amendment right to

counsel—and the Massiah restrictions which ostensibly are based on

that right—do not come into play until a defendant is formally charged

with a crime, future decisions might move back the point at which the

23 See generally Markman, supra note 7, at 226-29. The validity of this statute has never

been tested in a case before the Supreme Court. See id. at 229-31.

24 See, e.g., Oregon v. Elstad, 470 U.S. 298, 306-09 (1985).

25 The assertion in litigation of a state statute, such as Ariz. Rev. Stat. Ann. § 13-3988,

that parallels 18 U.S.C. § 3501, could present the Court with a comparable choice

between abrogating Miranda and attempting to devise some rationale for holding a

statute unconstitutional on grounds of inconsistency with Miranda.

6
right to counsel attaches to the time of arrest. Since the Court has

construed Massiah as providing a constitutional basis for Miranda-like

procedures once the right to counsel attaches, such a change would

effectively give constitutional status to the Miranda rules, and might be

relied on to justify overriding Congress's 1968 enactment. A change of

this sort not only would validate the basic existing restrictions on

enforcement in this area, but also would place in doubt the validity of

the limitations and exceptions to Miranda that are currently premised on

the Miranda rules' non-constitutional status,26 and could subject the

police to other restrictions in dealing with suspects that now apply only

after formal charging.27

Were the Court to adopt an outlook closer to that of the Warren

Court, even more substantial changes might occur that could place in

doubt the continued viability of police questioning of suspects as a

meaningful avenue of investigation. As noted earlier, the Miranda

decision suggested a general interpretation of the Fifth Amendment as

requiring an essentially pressure-free and fully informed choice whether

to talk—a position that is inconsistent with many of the Supreme

Court's current Fifth Amendment decisions.28 If the Court during the

next decade were to endorse and apply the more expansive language of

Miranda on this issue, the current rules might well appear to be

insufficiently restrictive.29 The consequences of such a doctrinal change

might include extending Miranda to non-custodial questioning of

suspects, or adopting more fundamental measures to counteract the

"pressures" of custodial questioning, such as limiting valid waivers of

the Miranda rights to cases in which a suspect has actually consulted

with a lawyer before deciding whether to talk.30 A reform of the latter

26 These include the "public safety" exception to Miranda and the admissibility of at

least some types of derivative evidence obtained through Miranda violations. See

New York v. Quarles, 467 U.S. 649 (1984); Oregon v. Elstad, 470 U.S. 298 (1985).

27 SeeMoran v. Burbine, 475 U.S. 412 (1986) (police generally need not advise suspect

prior to interrogation of effort by counsel to reach him, but would have to do so after

attachment of counsel right at formal charging).

28 See, e.g., Minnesota v. Murphy, 465 U.S. 420 (1984); Jenkins v. Anderson, 447 U.S.

231, 235-38 (1980).

29 Various writers have argued on these grounds or on similar grounds that more ,

extensive restrictions should be imposed on police questioning. See, e.g., O.

Stephens, The Supreme Court and Confessions of Guilt 204-05 (1973); Kamisar,

Brewer v. Williams, Massiah and Miranda: What is Interrogation? When does it

Matter?, 67 Geo. L.J. 1, 96-100 (1978); Interrogations in New Haven: The Impact of

Miranda, 76 Yale L.J. 1519, 1614-15 (1967).

30 See generally Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417, 1425-26 & n. 47

(1985); Grano, supra note 14, at 185-86, both criticizing such a position.

7
sort could effectively abolish post-arrest questioning of suspects, since

a lawyer will normally advise a defendant he represents to say nothing

to the police.31

Even if the Court does not adopt basic doctrinal changes in this

area, various important issues may arise in future litigation. One such

issue is the possibility of generally replacing the Miranda rules or the

exclusionary rule with alternative safeguards or remedies that arguably

provide effective protection for suspects' rights, but at lesser cost to the

processes of investigation and prosecution. Since the Court now regards

these rules as non-constitutional protective devices, there is no obstacle

in principle to exploring alternative approaches.32 For example, in

relation to custodial interrogation, it has been suggested that legitimate

concerns over police abuse could be addressed more directly and

effectively by such measures as electronic recording of custodial inter-

views, reasonable time limits on questioning, and specific rules con-

cerning permissible interrogation tactics and behavior.33 In relation to

the exclusionary rule, the Supreme Court's decision in INS v.

Lopez-Mendoza 34 suggests a receptiveness to the development of

alternatives. In holding in that case that the exclusionary rule does not

apply in deportation proceedings, the Court attached substantial weight

to the fact that the Immigration and Naturalization Service has a

general administrative oversight system for preventing Fourth Amend-

ment violations by its officers.35

A final area in which there may be significant constitutional

developments involves the question of particular exceptions and limita-

tions to Miranda and the exclusionary rule. As noted earlier, were the

31 See Uviller, supra note 19, at 1161, 1170-72; Caplan, supra note 30, at 1438-41;

Office of Legal Policy, U.S. Department of Justice, Report on the Law of Pre-THal

Interrogation 111-12 (1986) [hereafter cited as "Miranda Report"].

32 The Miranda decision itself recognized some latitude to adopt alternative safeguards

for the suspect, and encouraged the federal government and the states to continue to

seek more effective procedures. See Miranda, 384 U.S. at 467, 490; see also Oregon

v. Elstad, 470 U.S. 298, 306-07 n.l (1985).

33 See, e.g., American Law Institute, A Model Code of Pre-Arraignment Procedure

§ 130.4 and Comment at 341-42 (1975); Johnson, supra note 11; Miranda Report,

supra note 31, at 97-99, 105-07, 112.

34 468 U.S. 1032, 1044-45 (1984).

35 See generally United States v. Janis, 428 U.S. 433, 449 & n. 21 (1976) (citing literature on

alternatives to exclusionary rule); Office of Legal Balicy, U.S. Department of Justice, Report

on the Search and Seizure Exclusionary Rule iv-vii, 14-15, 17-18, 53-65 (1986) (discussion

of alternatives); Office of Legal Policy, U.S. Department of Justice, Guidelines on

Constitutional Litigation 89 (1988) (encouraging litigators to argue for inapplicability of

exclusionary rule where officers responsible for violation are subject to other sanctions).

8
Supreme Court to take the position that the Miranda restrictions are

required by the Constitution, this would invite litigative challenges to

the exceptions to Miranda (e.g., the "public safety" exception) that the

Court has justified on a non-constitutional view of the Miranda rules.

Similarly, were the Court to resolve the legitimacy question in relation to

the exclusionary rule by adopting the view that the Constitution

itself—not simply a judicially fashioned rule—generally bars the use of

evidence obtained by unconstitutional means, this could place in doubt

existing exceptions which are premised on the non-constitutional status

of the exclusionary rule, such as the "good faith" exception for searches

under warrants.

Alternatively, the Court might continue to regard the applicability

of Miranda and the exclusionary rule in particular contexts as depend-

ing on a balancing of costs and benefits, and might extend existing

exceptions and limitations. For example, the Court may extend the

"good faith" exception to the exclusionary rule to warrantless searches.

The question of the validity of a general "good faith" exception also

might come before the Court through the enactment of legislation, since

there has been broad support in Congress for such legislation.36 In

connection with Miranda, a comparable issue is the use of evidence

derived from voluntary statements obtained in violation of Miranda.

While the Court has upheld the use of such evidence in some contexts,

it has not adopted a generally applicable rule on this issue.

C. Potential Controversies for the 1990's

The following lists some of the criminal procedure issues that the

Court may confront in the next decade:

— Should the Massiah rule, applying the Sixth Amendment's right to

counsel both to direct interrogation and to the elicitation of

information by undercover informants after formal charges have

been initiated against an accused, be reconsidered?

— Should the Massiah rule applying the Sixth Amendment's right to

counsel to post-charge interrogation by police and undercover

agents be extended to apply to the post-arrest stage or even before?

— Does the Supreme Court have constitutional authority to overturn

state judgments on the basis of court-made rules which it acknowl-

For example, the Senate passed legislation providing a general "good faith" exception

to the exclusionary rule as S. 1764 in the 98th Congress, and the House of

Representatives passed such legislation as section 673 of H.R. 5484 in the 99th

Congress.

9
edges are not required by the Constitution, such as the "remedial"

exclusionary rule for Fourth Amendment violations and the "pro-

phylactic" Miranda rules relating to potential Fifth Amendment

violations?

Is 18 U.S.C. § 3501 invalid because it is inconsistent with the

judicially created Miranda rules, or does that statute validly

require the admission of pre-trial statements under the voluntari-

ness standard of the Fifth Amendment?

Should police questioning be restricted further under the Fifth

Amendment's protection against compulsory self-incrimination,

such as by extending Miranda to non-custodial questioning of

suspects, or by barring custodial questioning of a suspect unless he

has actually consulted with an attorney before deciding whether to

talk?

Will alternative safeguards for a suspect's Fourth- and Fifth-

Amendment rights be accepted as adequate replacements for the

exclusionary rule and the Miranda rules?

Should the Court reconsider or overrule the various limitations on

the Miranda rules that are recognized in current decisions, such as

the "public safety" exception to Miranda and the admissibility of

statements obtained in violation of Miranda for impeachment

purposes?

Should the Court extend the existing limitations on Miranda, such

as by adopting a general rule admitting evidence derived from

voluntary statements obtained in violation of Miranda!

Should the Court reconsider or overrule the limitations on the

exclusionary rule that are recognized in current decisions, such as

the inapplicability of the exclusionary rule in grand jury and

deportation proceedings, the "good faith" exception for searches

under warrants, and the admissibility of illegally seized evidence

for impeachment purposes?

Should the Court extend the existing limitations on the exclusion-

ary rule, such as by adopting a general objective reasonableness

("good faith") exception, and would the Court uphold such an

exception if it were enacted by Congress?

10
2. Will the Constitutional Right to Abortion Be

Expanded or Restricted under the Fourteenth

Amendment?

A. Background

After reviewing the abortion laws of the United States, Canada,

and eighteen Western European nations, Harvard law professor Mary

Ann Glendon concluded in 1987 that the abortion policy of the United

States was the most tolerant of abortion.1 She found that only five

nations other than the United States permitted "abortion on

demand"—that is, abortion for any reason in the sole judgment of the

woman—in the early stages of pregnancy.2 Moreover, while late-

pregnancy abortions can be regulated in the United States only to a

limited degree, other nations permitting abortion on demand in early

pregnancy forbade abortions in late pregnancy except under certain

conditions. These conditions were usually health-related and usually

required prior approval from a government board.3

Professor Glendon also found the United States exceptional in the

degree to which abortion policy was formulated by the judiciary. In

most nations that she studied, abortion policy was purely a legislative

matter. "Although abortion legislation of several other countries has

been challenged," she noted, "only in Italy and West Germany were the

legislative resolutions of the problem held unconstitutional. Nowhere

have the courts gone as far as the United States Supreme Court in

precluding further statutory development." 4

The exceptional status of American abortion policy is the result of

the Supreme Court's 1973 decision in Roe v. Wade.s Until Roe, most

states had been gradually liberalizing their abortion laws, but none had

made their abortion laws as tolerant of abortion as the regime that the

Court mandated in its decision. Relying on the Fourteenth Amend-

ment's Due Process clause, Justice Blackmun's majority opinion held

1 M. Glendon, Abortion and Divorce in Western Law 22-24 (1987).

2 Id.

3 Id. at 151-54.

4 Id. at 25. The Constitutional Court of West Germany held that legalization of

abortion in the first trimester violated the fetus's right to life. Id. More recently, after

Glendon's findings were published, the Supreme Court of Canada found a right of

access to abortion under the Canadian Charter of Rights and Freedoms. Morgan-

thaler, Smoling and Scott v. The Queen, 44 D.L.R.4th 385 (Can. 1988).

5 410 U.S. 113 (1973).

11
that women have a "fundamental" right to abortion, which can be

limited only if a "compelling" state interest justifies the regulation.6

The Court found that a state has legitimate interests in protecting

a mother's health and in protecting "potential life," but it concluded

that neither interest is sufficiently "compelling" to justify any regula-

tion of abortion during the first trimester of pregnancy.7 The Court

concluded that abortion may pose a greater risk to maternal health than

childbirth after the first trimester; accordingly, it held that from this

point the state may regulate (but not prohibit) abortion for the limited

purpose of protecting maternal health.8 Finally, concluding that the

state's interest in protecting potential life becomes compelling at the

point of viability, the Court held that the state can prohibit abortions at

this point, except when an abortion is needed to protect maternal life or

health.9 In a companion case, the Court also indicated that determining

whether the health of the mother justifies an abortion during the final

trimester is a medical judgment to be made "in the light of all the

factors—physical, emotional, psychological, familial, and the woman's

age—relevant to [her] well-being." 10 The Court's decision in Roe thus

invalidated the abortion laws of all fifty states, as well as the proposed

statute of the Model Penal Code."

Although Justice Blackmun's opinion was defended by some,12 it

was generally criticized by academic commentators, even those who

sympathized with the result. Professor Laurence Tribe wrote that the

Court merely asserted, without any analytical support, its conclusion

that a state has no interest in protecting potential life until viability:

"One reads the Court's explanation several times before becoming

convinced that nothing has inadvertently been omitted." 13 The student

editors of the Harvard Law Review complained that the Court "left its

holding without a firm constitutional basis." 14

6 Id. at 152-55.

7 Id. at 163.

•id.

9 Id. at 163-64.

10 Doe v. Bolton, 410 U.S. 179, 192 (1973).

"American Law Institute, Model Penal Code § 230.3(2), reprinted in Doe v. Bolton,

440 U.S. 179. 205-07 (1973).

12 Heymann & Barzelay, The Forest and the Trees: Roe v. Wade and Its Critics, 53

B.U.L. Rev. 765 (1973).

13 Tribe, The Supreme Court, 1972 Term—Foreword: Toward A Model of Roles in the

Due Process of Life and Law, 87 Harv. L. Rev. 1, 4 (1973). See also J. Noonan, A

Private Choice: Abortion in America in the Seventies (1979); Epstein, Substantive

Due Process By Any Other Name: The Abortion Cases, 1973 Sup. Ct. Rev. 159.

14 The Supreme Court, 1972 Term—Leading Cases, 87 Harv. L. Rev. 55, 81 (1973).

12
Perhaps the harshest academic critic of Roe was Professor John

Hart Ely, who likened it to the Court's economic "substantive due

process" decisions of the early twentieth century, such as Lochner v.

New York.15 The Constitution, Ely noted, "simply says nothing, clear

or fuzzy, about abortion." 16 In addition to finding that Roe was not

grounded in the text of the Constitution, Ely found that it could not be

justified by a concern for judicial protection of politically powerless

minorities: "Compared with men, very few women sit in our legisla-

tures. . . . But no fetuses sit in our legislatures." 17 Ely concluded that

Roe "is bad because it is bad constitutional law, or rather because it is

not constitutional law and gives almost no sense of an obligation to try

to be." 18

On the other hand, Roe's defenders have argued that Roe properly

applied the right to privacy that the Court had previously recognized in

such cases as Skinner v. Oklahoma 19 and Griswold v. Connecticut.™ In

Skinner, the Court invalidated a state law permitting sterilization of

certain felons who were repeat offenders. Because the law permitted

sterilization of those who committed grand larceny, but not those who

committed embezzlement, the Court found that the law denied equal

protection.21 Although Skinner was decided under the Equal Protection

Clause rather than a "right to privacy," it emphasized the interest that

individuals have in making uncoerced choices about procreation, and

for this reason, it has sometimes been cited to support an implicit right

to privacy in such choices.22 In Griswold, the Court invalidated a state

law forbidding the use of contraceptives. The Court based its decision

on a right of privacy existing in the "penumbras" of the First, Third,

Fourth, Fifth, and Ninth Amendments.23 Taken together, according to

Professor Tribe, Skinner and Griswold stand for the principle that

"whether one person's body shall be the source of another life must be

left to that person and that person alone to decide." 24

"Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920,

937-43 (1973), referring to Lochner v. New York, 198 U.S. 45 (1905). The Court in

Lochner struck down a limit on the maximum working hours in bakeries; it held that

the limit infringed an implied constitutional right to "liberty of contract."

16 Ely, supra note 15, at 927.

17 Id. at 933.

18 Id. at-947.

"316 U.S. 535 (1942).

20 381 U.S. 479 (1965).

21 Skinner, 316 U.S. at 541-42.

22 L. Tribe, American Constitutional Law 1339 (2d ed. 1988).

23 Griswold, 381 U.S. at 484.

24 L. Tribe, supra note 22, at 1340 (2d ed. 1988).

13
During the fifteen years since it decided Roe, the Supreme Court

has not only reaffirmed that decision, but also substantially extended it.

It has held that a state cannot require that any additional care be given

to a viable fetus if the care might pose the slightest further risk to the

mother's health.25 Similarly, it has held that a state cannot require that

a woman considering abortion be given information about fetal devel-

opment, potential physical and emotional harms of abortion, her legal

right to child support from the father, or the possibility of assistance

from government agencies or private organizations if she bears the

child.26 The Court likewise has held that a state cannot impose a

24-hour waiting period between the woman's signing of a consent form

and the performance of the abortion.27

The Court also has limited the ability of states to involve parents

in the abortion decisions of their minor daughters. A state cannot

require parental consent for an abortion unless it also permits the minor

girl the alternative of seeking approval from a government official, such

as a judge.28 The Court indicated in Bellotti v. Baird that the judge must

approve the minor's request if she can show either "(1) that she is

mature enough and well enough informed to make her abortion

decision, in consultation with her physician, independently of her

parents' wishes; or (2) that even if she is not able to make this decision

independently, the desired abortion would be in her best interests." 29

Four dissenting Justices in Bellotti argued that even this arrangement

was too restrictive; in their view, the Constitution prohibits a state from

giving any third party the authority to override the decision of a minor,

no matter how young, to have an abortion.30

The Court has upheld a Utah statute that required parental notifica-

tion before a minor received an abortion,31 although it reserved judgment

as to whether the statute would be constitutional if applied to minors who

are emancipated or sufficiently mature.32 Three Justices dissented, arguing

See Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747,

768-71 (1986); Planned Parenthood Ass'n of Kansas City v. Ashcro/t, 462 U.S. 476,

485 n.8 (1983); Colautti v. Franklin, 439 U.S>. 379, 397-401 (1979).

26 Thornburgh, 476 U.S. at 759-65; City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416, 442-45 (1983).

27 Akron, 462 U.S. at 449-51.

28 Id. at 439-40; Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476,

490-93 (1983); Bellotti v. Baird, 443 U.S. 622 (1979).

29 Bellotti v. Baird, 443 U.S. 622, 643-44.

30 Id. at 652-56 (Stevens, J., dissenting).

31 H.L. v. Matheson, 450 U.S. 398 (1981).

32 Id. at 405-07.

14
that a state cannot require parental notification in any situation, whether

the pregnant minor is deemed mature or not.33 One commentator, a New

York state judge, maintained that a state has no compelling interest that

would justify a notification requirement because a minor's decision to

obtain an abortion is itself an indication of "the foresight and deliberation

that mark mature decisionmaking." 34

In a series of 5-4 decisions, however, the Court has rejected the

argument that a state must subsidize abortions for indigent women if it

subsidizes childbirth for them.35 States are thus able to choose whether or

not to pay for abortions. The Court's decisions in this area have been

criticized by academic commentators such as Professor Tribe 36 and

Michael Perry,37 who argue that a state's decision not to finance abortion

violates an indigent woman's right of choice regarding abortion.

Although the Supreme Court has permitted states to require some

limited forms of parental involvement in a minor's abortion decision,

and has permitted states to refuse to pay for abortions, the current

abortion right is generally a sweeping one. The Supreme Court's

decisions in this area have displaced traditional conceptions of informed

consent and parental control. One measure of the special status that the

Court has accorded the abortion right is its intimation that the

reproductive privacy principle of Roe is as important as the equality

principle of Brown v. Board of Education.38

B. Possible Developments in the Future

The Supreme Court's present doctrine on abortion remains highly

controversial and might change substantially in the 1990's. Within the

Court itself, significant divisions exist as to the direction that the Court

33 Id. at 434-54 (Marshall, J., dissenting).

34 Dembitz, The Supreme Court and a Minor's Abortion Decision, 80 Colum. L. Rev.

1251,1255-56,1262 (1980).

35 Harris v. McRae, 448 U.S. 297 (1980); Williams v. Zbaraz, 448 U.S. 358 (1980)5

Maher v. Roe, 432 U.S. 464 (1977).

36 L. Tribe, supra note 22, at 1345-46; Tribe, The Abortion Funding Conundrum;

Inalienable Rights, Affirmative Duties, and the Dilemma of Dependence, 99 Harv.

L. Rev. 330 (1985).

37 Perry, Why the Supreme Court Was Plainly Wrong in the Hyde Amendment Case: A

Brief Comment on Harris v. McRae, 32 Stan. L. Rev. 1113 (1980); Perry, The

Abortion Funding Cases: A Comment on the Supreme Court's Role in American

Government, 66 Geo. L.J. 1191 (1978). But see Fahy, The Abortion Funding Cases:

A Reply to Professor Perry, 67 Geo. L.J. 1205 (1979).

38 See Thornburgh, 476 U.S. at 759, referring to Brown v. Board of Education, 347 U.S.

483 (1954) (holding unconstitutional de jure school segregation).

15
should take. Two justices have criticized Roe,39 while another has

expressed doubts about some of the post-Roe cases which prohibited

states from adopting regulations that discourage abortion or place any

appreciable burden on women who want one.40 If these criticisms

prevail, the Court in the next decade may alter its course by permitting

the States more ambit to prohibit, limit, or regulate abortion. If, on the

other hand, the Court remains on its current course, it may impose even

more severe limits on state regulations that affect abortions.

One area that is likely to remain controversial over the next decade

is the ability of states to maintain parental involvement in the abortion

decisions of minors. For example, the Court might adopt the view of the

four dissenting Justices in Bellotti who argued that states cannot require

any parental or governmental involvement in a minor's abortion

decision, including parental notification. Alternatively, the Court might

conclude that the Constitution does not preclude the States from

putting parents back into the decisionmaking process.

Another issue likely to surface again in coming years is whether the

people of a state can refuse to subsidize abortions for indigent women.

As noted earlier, four Justices have argued that the equal protection

clause requires states with comprehensive health programs to provide

funding for abortions. This view, if adopted, would expand the

"privacy" right in Roe into a claim upon public funds. In addition to

deciding that the federal government and the states cannot exclude

abortion coverage from welfare programs without violating the Four-

teenth Amendment, the Court also could extend such a doctrine to

foreign aid programs; it could, for example, forbid the federal govern-

ment from imposing anti-abortion restrictions on foreign aid programs

for family planning.

Further issues are raised by the use of fetuses for medical

experimentation and treatment.41 The Court might uphold a right to

abortions for the purpose of fetal experimentation (or "harvesting," as

it is called by its critics). Because Roe permits abortion for any reason

during the first trimester of pregnancy, the Court might apply it in the

future to forbid government interference in such activities. Additionally,

although Roe protects an abortion right in late pregnancy only to

benefit the mental or physical health of the mother, the Court might

39 Thornburgh, 476 U.S. at 786-97 (White, J., dissenting). Justices Rehnquist and

White also dissented in Roe. 410 U.S. at 171-78 (Rehnquist, J., dissenting); id. at

221-223 (White, J., dissenting).

40 Thornburgh, 476 U.S. at 828-33 (O'Connor, J., dissenting).

41 See generally Note, State Prohibition of Fetal Experimentation and the Fundamental

Right of Privacy, 88 Colum. L. Rev. 1073 (1988).

16
expand the concept of "health" broadly enough to cover fetal experi-

mentation on the ground that the mother may receive an economic

reward or a psychic gratification.

Another issue that may surface over the next decade is the extent to

which the Court will prohibit hospitals from refusing to perform

abortions. A majority might hold that extending all forms of medical

services except abortion is a form of sex discrimination, and that it is

therefore unlawful under the Equal Protection Clause (in the case of

public institutions) and Title VII (in the case of private institutions). In

General Electric v. Gilbert*2 the Court interpreted Title VII to permit

an employer's disability insurance plan to exclude pregnancy from its

coverage. It rejected the contention that because only women can

become pregnant, the plan discriminated on the basis of sex. Congress,

however, overturned the Court's interpretation of Title VII.43 Under the

analysis endorsed by Congress, a refusal to perform abortions could be

seen as a violation of either the Equal Protection Clause or of Title VII,

as only women can have abortions.

While adhering to its basic doctrines on regulation of abortion, the

Court in the 1990's might nevertheless permit states greater latitude in

discouraging abortion. For example, it could permit states to require

that pregnant women receive information about the possible physical

and psychological consequences of an abortion and about alternatives

to abortion. The Court could permit states not only to provide factual

information about abortion, but also to express the idea that an

abortion has serious moral ramifications. The vast majority of women

seeking an abortion would perhaps be unlikely to alter their choices as

a consequence, but the community would at least be able to impress

upon the citizenry in general, and those seeking to have abortions in

particular, the gravity of this decision.44 On the other hand, the Court

might continue to treat efforts at discouraging abortion as infringing

upon the abortion right. Under this approach, the mother does not

simply have a right to make a voluntary decision about abortion; the

community also must abstain from providing information in an attempt'

to dissuade her, even if her decision ultimately remains voluntary.

The possibilities considered above are based on the assumption

that the Court will continue to apply Roe in some form. The Court,

however, could choose in the 1990's to reconsider the analysis of Roe

itself. Either in a single sweep or in a gradual manner, the Court might

42 429 U.S. 125 (1976).

43 Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k).

44 Fager, Fetal Distraction, The New Republic, May 30, 1988, at 21.

17
overrule Roe on either of two grounds. First, Roe has been criticized by

Justice O'Connor because its reliance on the state of medical technol-

ogy puts it "on a collision course with itself." 45 Because abortion

procedures in late pregnancy are becoming safer for the mother, the

state's interest in regulating abortion after the first trimester to protect

maternal health may become less "compelling" under Roe's analysis. At

the same time, because medical advances are bringing the point of fetal

viability closer to the time of conception, the state's interest in

regulating to protect fetal life must become "compelling" under Roe's

viability test at earlier and earlier stages of pregnancy. Justice O'Connor

therefore concluded that the test set forth in Roe is unworkable.46 In her

view, not only are determinations about proper medical practice better

left for the legislature, but the malleable test of Roe fails to provide

constant principles for judges to apply. Instead, Roe forces courts to

"pretend to act as science review boards." 47

Second, as noted earlier, Roe has been criticized by several scholars

as lacking any constitutional basis. Under this "interpretivist" critique,

Roe is invalid because it is not supported by any values legitimately

derivable from the text, history, or structure of the Constitution. Stated

as such, the debate over Roe is not just about abortion issues, but about

who will decide those issues—the people through their elective repre-

sentatives or the courts. While Justice O'Connor's critique of the

particular test announced in Roe does not necessarily mean that the

abortion right itself must be rejected, the interpretivist critique, if

adopted by the Court, would entail exactly that.

If the Court were to overrule Roe or curtail it, that in itself would

not make abortions illegal or limit their availability. Rather, it would

transfer the decision to the people and their elected representatives.

While their responses cannot be predicted with assurance, the likelihood

is that each state's abortion policy would be something of a compromise—

an attempt to act out of respect and compassion for both the pregnant

woman and the fetal life.

C. Potential Controversies For the 1990's

The following lists some of the abortion issues that the Court may

confront during the next decade:

— Was Roe itself correctly decided under the Fourteenth Amend-

ment?

43 Akron, 462 U.S. at 458 (O'Connor, J., dissenting).

** Id. at 459.

"Id.

I8
To what extent do the Fourteenth-Amendment rights of a pregnant

woman limit a state's ability to require that care be given to a

viable fetus during an abortion?

Does the Fourteenth Amendment forbid a state from directing that

a woman receive information about potential physical and emo-

tional harms of abortion, about alternatives to abortion, and

about her legal rights if she chooses to bear her child?

Under the Fourteenth Amendment, can a state provide for parental

involvement, by requiring either parental consent or notification,

when a minor girl seeks an abortion?

Does the Fourteenth Amendment require a state to subsidize

abortions for indigent women?

Does a state violate the Fourteenth Amendment by forbidding or

regulating the "harvesting" of fetal tissue for medical experimen-

tation or treatment?

If a hospital refuses to perform abortion procedures, is this

decision forbidden under the Fourteenth Amendment or under

Title VII as a form of sex discrimination?

>

19
3. Will the Due Process and Equal Protection Clauses

of the Fourteenth Amendment Be Used to Establish a

Constitutional Right of Sexual Preference or to

Invalidate Laws that Disadvantage Homosexuals?

A. Background

In a 1973 article defending Roe v. Wade,1 Professors Philip B.

Heymann and Douglas E. Barzelay confidently asserted that the

constitutional right of privacy identified in that case would not be

extended to protect all consensual sexual activity: "To whatever degree

such behavior may be socially harmless, it certainly does not produce

the same kind of nearly irrevocable effects, nor spring from the same

deep well of cultural values as do decisions about marriage, procre-

ation, or child rearing." 2

In more recent years, however, growing efforts have been made to

include "all consensual sexual activity" under the right to privacy. The

"right of privacy" was first announced in Griswold v. Connecticut,3

where the Court held unconstitutional the application of a Connecticut

law that prohibited the use of contraceptives, even by married couples.

The Court reasoned that the law violated a right of privacy that,

although without explicit textual support in the Constitution, can be

derived from the "penumbras" of certain provisions, such as the Third

Amendment's prohibition of quartering solders in houses without

consent and the Fourth Amendment's protection against unreasonable

searches and seizures.

In Griswold, the Court spoke in terms of the marital relationship:

We deal with a right of privacy older than the Bill of Rights—

older than our political parties, older than our school system.

Marriage is a coming together for better or worse, hopefully

enduring, and intimate to the degree of being sacred.4

In the cases following Griswold, however, the Court extended the right

of privacy beyond marriage. In Stanley v. Georgia,5 the Supreme Court

held that even though obscenity may be regulated by the state, the

private possession of obscene material in the home cannot be made a

1 410 U.S. 113 (1973).

2 Heymann & Barzelay, The Forest and the TYees: Roe v. Wade and Its Critics, 53

B.U.L. Rev. 765, 774 (1973).

J 381 U.S. 479 (1965).

4 Id. at 486.

'394 U.S. 557 (1969).

20
crime. In Eisenstadt v. Baird,6 decided seven years after Griswold, the

Court invalidated a Massachusetts law that prohibited the distribution

of contraceptives to unmarried persons while allowing such sales to

married couples. The Court observed that "[i]f the right of privacy

means anything, it is the right of the individual, married or single, to be

free from unwarranted governmental intrusion into matters so funda-

mentally affecting a person as the decision whether to bear or beget a

child." 7 A year after Eisenstadt, the Court held in Roe that the right of

privacy, which it now viewed as encompassed within the Fourteenth

Amendment's due process clause, "is broad enough to encompass a

woman's decision whether or not to terminate her pregnancy." 8

Relying upon these cases, a number of commentators and interest

groups have urged the courts to extend constitutional protections to

homosexual activities. They have argued that the Court should protect

"intimate human associations," 9 including homosexual ones, and that

"blanket prohibitions on homosexual activity" do not satisfy the

requirements for "abridging the constitutional right to privacy." 10 The

Court also has been urged to treat classifications based upon sexual

preference with heightened scrutiny under the Equal Protection Clause

because, it is argued, sexual orientation is a "morally irrelevant

characteristic," beyond individual control, and because homosexuals

have been the focus of prejudice and are unable effectively to protect

themselves politically.11

A few lower courts have responded favorably, ruling that homo-

sexual conduct is protected under the new constitutional right to

privacy, or that homosexuals as a group are entitled to heightened

6 405 U.S. 438 (1972).

7 Id. at 454 (emphasis in original).

8 410 U.S. at 154.

9 See L. Tribe, American Constitutional Law 1423 (2d ed. 1988) [hereinafter Tribe];

See also Karst, The Freedom of Intimate Association, 89 Yale L.J. 624 (1980).

10 See Richards, Constitutional Legitimacy and Constitutional Privacy, 61 N.Y.U.L.

Rev. 800, 860-61 (1986) [hereinafter Richards]. See also Note, Chipping Away at

Bowers v. Hardwick: Making the Best of an Unfortunate Decision, 63 N.Y.U.L. Rev.

154, 158 (1988) (arguing that Bowers "can, and must, be limited to its facts").

11 See Note, An Argument for the Application of Equal Protection Heightened Scrutiny

To Classifications Based on Homosexuality, 57 S. Cal. L. Rev. 797, 830, 835 (1984)

[hereinafter Argument for Heightened Scrutiny]. See also S. Estrich & V. Kerr, Sexual

Justice, in Our Endangered Rights: The ACLU Report on Civil Liberties Today 98

(N. Dorsen ed. 1984) (arguing that the legal disabilities of homosexuals serve to

reinforce sexual stereotypes) [hereinafter Estrich]; Note, The Constitutional Status of

Sexual Orientation: Homosexuality As a Suspect Classification, 98 Harv. L. Rev.

1285 (1985) (arguing that sexual preference should be treated as a suspect classifica-

tion) [hereinafter Constitutional Status].

21
protection under the Equal Protection Clause of the Fourteenth

Amendment.12 One such case arose in the Eleventh Circuit. Michael

Hardwick was arrested while engaging in consensual sexual conduct

with another male in his bedroom. He was charged under a Georgia

statute that provided criminal penalties for consensual sodomy. Al-

though the state did not immediately pursue the matter, Hardwick filed

a lawsuit challenging the statute's constitutionality. Reversing the trial

court's denial of relief, the Eleventh Circuit held that the constitutional

right of privacy protected private, consensual homosexual conduct from

state regulation.13 This activity, the court reasoned, "is quintessentially

private and lies at the heart of an intimate association beyond the

proper reach of state regulation." 14 In support of its decision, the court

cited Griswold, Stanley, Eisenstadt and Roe.

On appeal, however, the Supreme Court, in a 5-4 decision,

reversed the Eleventh Circuit's decision and held that the right of

privacy did not extend to homosexual conduct, even when private and

consensual.15 Distinguishing the Court's privacy precedents, Justice

White concluded that no connection exists between family, marriage, or

procreation on the one hand and homosexual activity on the other.16

The Court also refused to go beyond its precedents to announce a new

fundamental right to engage in homosexual sodomy, a right "not readily

identifiable in the Constitution's text." 17 In a dissenting opinion,

Justice Stevens contended that the essential liberty that animated cases

like Griswold and Eisenstadt "surely embraces the right to engage in

nonreproductive, sexual conduct that others may consider offensive or

immoral." 18 "[T]he homosexual and the heterosexual," Stevens in-

sisted, "have the same interest in deciding how he will live his own

life . . . ." 19

The Court's opinion in Bowers has been widely criticized, partic-

ularly in academic circles. Professor Tribe, who argued Hardwick's case

12 See e.g., Watkins v. United States Army, 847 F.2d 1329 (9th Cir.) (regulations

excluding homosexuals from military service violate Equal Protection Clause), reh'g

en banc granted, 847 F.2d 1362 (1988); High Tech Gays v. Defense Industrial Security

Clearance Office, 668 F. Supp. 1361 (N.D. Cal. 1987) (Defense Department policy

requiring expanded security clearance procedures for homosexuals violates Equal

Protection Clause).

13 Hardwick v. Bowers, 760 F.2d 1202 (11th Cir., 1985), rev'd, 478 U.S. 186 (1986).

14 Id. at 1212.

15 See Bowers v. Hardwick, 478 U.S. 186 (1986).

16 Id. at 191.

"Id.

18 Id. at 218 (Stevens, J., dissenting).

19 Id.

22
before the Supreme Court, contended that "[s]ix decades of privacy

precedents . . . were dismissed in two brisk paragraphs as having no

relevance to this issue, since those cases involved rights related to

'family, marriage, or procreation.'" 20 In Professor Tribe's view, the

Court's earlier rulings established "the freedom to enter into and carry

on intimate associations," including sexual associations.21 Such free-

dom, he insisted, should not be limited to heterosexual relationships.22

Professor Tribe's argument reflects the difficulty in reconciling the

cases in this area. Ever since Griswold was decided in 1965, lawyers,

academics, and judges have searched for some unifying principle to

explain the Court's privacy decisions and guide lower courts. This effort

has been largely unsuccessful. As Judge Robert Bork wrote in Dronen-

berg v. Zech,23 rejecting a claim that homosexual conduct was protected

under the right to privacy, "[w]e have no guidance from the Constitu-

tion or . . . from articulated Supreme Court principle." 24

While the Supreme Court, at least for the present, has rejected

arguments that homosexual conduct is protected as a fundamental

liberty under the Constitution, it has yet to decide whether classifica-

tions based on sexual preference should be accorded "heightened

scrutiny" under the Equal Protection Clause. The Equal Protection

Clause prohibits a state from denying "any person within its jurisdic-

tion the equal protection of the laws." 25 When a state's classification of

individuals is challenged on equal protection grounds, the Court employs

one of three levels of scrutiny, each defined by a different legal test. If a

classification is based upon race or ethnicity, the Court considers it

inherently suspect and applies strict scrutiny. This means that the Court

will invalidate the classification unless the state can show that its classifi-

cation is necessary to advance a compelling state interest. Typically, the

Court will find either that the state's interest is not sufficiently important

to be considered "compelling" or that, in any event, the state can further its

interests without using the suspect classification. If a classification is based

upon an attribute such as gender, the Court considers it "quasi-suspect"

20 Tribe, supra note 9, at 1422. See also Richards, supra note 10, at 860-61; Chipping

Away at Bowers v. Hardwick, supra note 10, at 163-64.

21 Tribe, supra note 9, at 1421.

22 Id. at 1421-35.

23 741 F.2d. 1388 (D.C. Cir. 1984).

24 Id. at 1396.

25 U.S. Const, amend. XIV, § 1. While the Fourteenth Amendment applies only to the

states, the Supreme Court has applied an equal protection analysis to the federal

government under the Due Process Clause of the Fifth Amendment. See Boiling v.

Sharpe, 347 U.S. 497 (1954).

23
and applies an "intermediate" scrutiny, which means that the state must

show that its classification is substantially related to the achievement of

some important governmental objective. Here, too, the Court often

concludes that the state's interests are not important enough to justify use

of the classification or that the classification is not really needed to further

the state's interests. For most classifications, however, the Court applies a

"rational basis" test, under which the state prevails if some reasonable

relationship exists between its classification and a legitimate objective.

When the Court uses this test, it usually upholds the state's classification.

In deciding whether to give a classification heightened scrutiny—

either "strict" or "intermediate"—the Court considers a number of

factors. These include whether the class has been the subject of

prejudice or discrimination in the past, whether the characteristics that

define the class have any relation to ability or performance, whether the

defining characteristics of the class are immutable, and whether the

class is a "discrete and insular minority" that is incapable of protecting

its interests through the normal political process. What the Court has

not yet decided is whether laws that classify on the basis of sexual

preference, such as by denying certain governmental positions to

homosexuals or by prohibiting homosexual marriages, warrant height-

ened scrutiny, under which such laws would face a substantial risk of

being invalidated.

While the Supreme Court has yet to reach the issue, sexual

preference has been recognized as a classification subject to strict

scrutiny by the Court of Appeals for the Ninth Circuit. In Watkins v.

United States Army,26 the court struck down certain Army regulations

that excluded homosexuals from the ranks. The panel concluded that

homosexuals, as a group, have suffered a history of discrimination, that

sexual preference has no relevance to an individual's ability or perfor-

mance, and that the characteristic defining this class, sexual orienta-

tion, is unchangeable.27 The Watkins case will shortly be reheard en

banc by the Ninth Circuit. It is, of course, impossible to predict what

the court will decide. Once that decision is made, however, the Supreme

Court likely will be faced with a case squarely presenting the issue of

sexual preference under the Equal Protection Clause.

If the Court decides to apply heightened scrutiny to classifications

based on sexual preference, virtually every state and federal statute,

26 847 F.2d 1329 (9th Cir.), reh'g en banc granted, 847 F.2d 1362 (1988).

27 Id. at 1345-49. The court concluded that, "[although the causes of homosexuality

are not fully understood, scientific research indicates that we have little control over

our sexual orientation and that, once acquired, our sexual orientation is largely

impervious to change." Id. at 1347.

24
policy, or program that regulates homosexuality or homosexual conduct

will be subject to challenge. State sodomy statutes would be only the

beginning. Any public policy that treats homosexuals disadvanta-

geous^, in the military, in government, in schools, or in any other facet

of public life, would be open to question.

B. Possible Developments in the Future

Needless to say, future developments in this area of the law will be

controversial. In Bowers v. Hardwick,28 which rejected a claim that the

right to privacy extends to homosexual conduct, the four dissenters

insisted that there was no principled distinction between the family and

procreative rights previously included under the right to privacy and the

right to engage in homosexual conduct asserted by Hardwick. They

maintained that the former rights were protected because they form a

central part of an individual's life, not for the public's benefit.

Moreover, they insisted that "[o]nly the most willful blindness [can]

obscure the fact that sexual intimacy is 'a sensitive, key relationship of

human existence, central to family life, community welfare, and the

development of human personality.'" 29 To the dissenters, therefore, the

right of privacy necessarily included a right of sexual preference.

Given the sharp divisions both on and off the Supreme Court, it

can be expected that the Court during the next decade again will be

requested to choose between competing roads with regard to the issue of

homosexuality. In the privacy area, the Court may stand by its Bowers

decision, leaving the people of each state free to decide for themselves

whether homosexual activity should be prohibited.30 On the other hand,

the Court may reject Bowers and recognize a right of sexual preference

as part of the fundamental.right of privacy protected by the Constitu-

tion. The Court would likely then impose its own solution in an area

where the states are currently debating and resolving the issues.31

M 478 U.S. 186 (1986).

29 Id. at 204-05.

30 Until 1961 every state outlawed sodomy. See Bowers, 478 U.S. at 193. Since that time,

some 27 states have abandoned their criminal laws in this area through the legislative

or judicial process. See Constitutional Status, supra note 11, at 1285 n.4.

31 Sodomy statutes, like that at issue in Bowers, would be only one sort of regulation

subject to challenge. Virtually all other government regulation of homosexuals and

homosexual conduct would be opened to question, because the Court has held that

regulations limiting a "fundamental" right must be justified by a compelling state

interest under the Equal Protection Clause. See Kramer v. Union Free School Dist.,

395 U.S. 621, 627 (1969).

25
Even if Bowers remains the law, the Court during the next decade

most likely will also face a clear choice between competing roads under the

Equal Protection Clause. Along one path, it can maintain the status quo

and treat classifications based upon sexual preference like most other

classifications that it upholds under a rational basis test. The people of

each state thus would continue to resolve these issues through the repre-

sentative process. Down the other path, the Court could accept the

reasoning of the Ninth Circuit in Watkins v. United States Army, which

applied heightened scrutiny to classifications based on sexual preference. If

the Court in the future decides to apply such heightened scrutiny, all

current classifications based on sexual preference would be brought into

question. Virtually every regulation of homosexuality or homosexual

behavior, at least between consenting adults, might be invalidated as a

violation of the Constitution's new guarantee of equal protection.

Specifically, regulations barring homosexuals from service in the

Armed Forces, at issue in Watkins, would be subject to serious

challenge. As a general matter, the armed forces reject homosexual

enlistees and routinely discharge known homosexuals. The military has

traditionally justified the exclusion of homosexuals from its ranks on

morale and discipline grounds. In Watkins, for example, the Army

argued that both morale and military discipline would be threatened by

tensions between homosexuals and non-homosexuals. The Army fur-

ther contended that homosexual officers would be unable to command

the respect and trust of their heterosexual troops, and that discipline

could be undermined by the formation of emotional attachments

between homosexuals of different ranks. The Army also argued that

accepting homosexuals into its ranks might be seen as tacit approval of

homosexual conduct that could expose the service to ridicule and

ultimately hinder recruiting efforts.32

Until Watkins, the courts generally deferred to the military's

justifications for excluding homosexuals.33 If the 1990's witness a

redefinition of sexual preference as a suspect classification, however,

such considerations are unlikely to prevail. The Ninth Circuit panel in

Watkins quickly rejected the Army's policy arguments once it held that

strict scrutiny was the applicable standard.

In addition to military classifications based on sexual preference,

there are numerous federal and state jobs from which homosexuals have

32 Watkins, 847 F.2d at 1350.

33 The military's policy of excluding homosexuals has been unsuccessfully challenged a

number of times. See, e.g., Dronenberg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984):

Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980).

26
been barred on security grounds. Federal agencies, for example, have

traditionally been reluctant to grant the highest security clearances to

homosexuals. If the Supreme Court were to adopt the approach of the

Watkins Court in the future, this policy also would be open to

challenge.

The practice of barring homosexuals from sensitive positions was

recently challenged in Webster v. Doe?* In Webster, a former employee

of the CIA argued that his dismissal because of his homosexuality was

unconstitutional. The employee had been terminated by order of the

Director of the agency, under § 102(c) of the National Security Act of

1947, which gives the Director the authority to discharge Agency

employees when he deems it "necessary or advisable in the interests of

the United States." 35 The employee argued that the Director's action

was both an arbitrary and capricious administrative act, and a violation

of his constitutional rights to privacy and equal protection of the laws.

While the Supreme Court did not reach the merits of this claim, it held

that the constitutionality of the Director's decision was at least review-

able under the Administrative Procedure Act. The issue, therefore, is

likely to come before the Court again in the near future.

Any future definition of sexual preference as a suspect classifica-

tion would also affect many state regulations and policies. For instance,

many states refuse to license homosexuals as teachers. The justifications

proffered for these restrictions have included the fear, whether or not

justified, of homosexual recruiting or abuse in the schools and the

desire to avoid providing homosexual role models for young and

impressionable children. Under strict scrutiny, policies of this kind

would be subject to substantial challenge in the courts.

It is in the area of family law, however, that the adoption of the

Watkins rule by the Supreme Court could work the greatest change in

the future. For example, the presumption followed by many states

against granting child custody to a homosexual parent almost certainly

would be called into question. In the past, the justification for such

rules has been the social unacceptability (and often illegality) of

homosexual parents' practices, both because of the example set for the

child and because of the degree to which such practices depart from

commonly accepted sexual mores. If the Supreme Court chooses to

redefine sexual preference as a suspect classification, this argument is

likely to be rejected.

34 108 S. Ct. 2047 (1988). The lower court opinions are Doe v. Casey, 601 F. Supp. 581

(D.D.C. 1985), rev'd, 796 F.2d 1508 (D.C. Cir. 1986).

35 50 U.S.C. § 403(c) (1982).

27
Palmore v. Sidoti36 is an instructive case. In Palmore, a Florida

state court transferred custody of a child from her white mother to her

white father after the mother co-habitated with, and later married, a

black man. While the state court was careful to note that the "father's

evident resentment of the mother's choice of a black partner is not

sufficient to wrest custody from the mother," 37 it nevertheless cited

society's general disapproval of such relationships as a basis for its

decision. The Supreme Court reversed. Chief Justice Burger, writing for

a unanimous Court, held that the Florida court's decision violated the

Equal Protection Clause. "Private biases," he explained, "may be

outside the reach of the law, but the law cannot, directly or indirectly,

give them effect." 38 By analogy, therefore, were the Court in the future

to treat classifications based on sexual preference as suspect, a state

statute, rule, or policy denying child custody to homosexual parents, or

even creating a presumption in favor of a non-homosexual parent,

might not pass constitutional muster in light of Palmore.

Over the next decade, the Court could also be called upon to

address the question of homosexual marriages. Currently, a few states

allow a homosexual to adopt his or her partner. However, "no state

recognizes a marital relationship between members of the same sex or

makes provisions for comparable legal relationships for homosexual

couples." 39 The states offer numerous advantages to married couples,

particularly in the area of inheritance and survivor's rights. In addition,

the fact that states recognize heterosexual couples by licensing marriages

marks the "institution of marriage" as socially acceptable and desir-

able. That the states do not recognize marriages between homosexuals

thus results in a denial of concrete legal benefits, and can be interpreted

as official disapproval of homosexuality in general.

In Loving v. Virginia*0 the Supreme Court invalidated a Virginia

statute forbidding intermarriage between the races. The statute made

such marriages void and prescribed criminal penalties for entering into

them. The state judge took the view that such marriages were, in effect,

unnatural, but Chief Justice Warren, for a unanimous Court, wrote that

"[t]here can be no doubt that restricting the freedom to marry solely

because of racial classification violates the central meaning of the Equal

Protection Clause." 41 If the Supreme Court accepts sexual preference,

34 466 U.S. 429 (1984).

37 Id. at 432.

34 Id. at 434.

39 Argument for Heightened Scrutiny, supra note 11, at 807.

40 388 U.S. 1 (1967).

41 Id. at 12.

28
like race, as a classification subject to strict equal protection scrutiny,

state refusal to recognize homosexual marriages could likewise be

invalidated.

This point should not seem far-fetched. A number of commenta-

tors have discussed the possibility of requiring the states to recognize

homosexual marriages,42 and the issue has already been brought before

the courts. In Singer v. Hara,43 two men claimed that the state's refusal

to issue them a marriage license violated the Equal Protection Clause.

They cited Loving, and argued that the same fundamental right to

marry was implicated in their case. While the Washington state Court of

Appeals rejected this argument, a redefinition of classifications based

upon sexual preference under the Equal Protection Clause would very

likely require a different result.44

Any future redefinition of sexual preference as a suspect classifi-

cation will also affect state adoption laws. State policies prohibiting

homosexuals from adopting children, or acting as foster parents, would

be subjected to the same searching review by the courts. Although the

Supreme Court has not yet decided a case on point, the United States

District Court for the Eastern District of Pennsylvania recently decided

an instructive case, again in the area of race.

42 See, e.g., Estrich, supra note 11, at 124-25; Rivera, Our Straight-Laced Judges: The

Legal Position of Homosexual Persons in the United States, 30 Hastings L.J. 799,

874-78 (1979) (so long as benefits accrue to married couples "it seems likely that

many homosexual family units will continue to seek legal recognition through

marriage"); Argument for Heightened Scrutiny, supra note 11, at 807; Note, Religion

and Morality Legislation: A Re-examination of Establishment Clause Analysis, 59

N.Y.U. L. Rev. 301 (1984) (prohibition of same-sex marriages amounts to an

unconstitutional establishment of religion); Comment, Homosexuals' Right to

Marry: A Constitutional Test and a Legislative Solution, 128 U. Pa. L. Rev. 193,

207-09 (1979) (examination of current restrictions on homosexual marriage leads to

the conclusion that the restrictions are unconstitutional); Note, The Legality of

Homosexual Marriage, 82 Yale L.J. 573 (1973) (discussing the constitutionality of

restricting marriage to heterosexual couples). *

In an analysis of the proposed Equal Rights Amendment, which would have

treated classifications based on sex like those based on race, Senator Orrin Hatch

discussed homosexual marriages and the relevance of Loving: "Why is it so far

fetched to assume that the Equal Rights Amendment, which is intended to lead to the

same standard of review . . . would not lead to a similar result?" O. Hatch, The

Equal Rights Amendment: Myths and Realities 52 (1983).

43 11 Wash. App. 247, 522 P.2d 1187 (1974).

44 See also Jones v. Hallahan, 501 S.W.2d 588 (Ky. 1973) (there is no constitutional

sanction or protection for the right of marriage between persons of the same sex);

Baker v. Nelson, 291 Minn. 310, 191 N.W.2d 185 (1971) (prohibition of same-sex

marriages does not offend the Ninth or Fourteenth Amendments).

29
In Mclaughlin v. Pernsley,45 plaintiffs were the white foster parents

of a black infant. The child, originally placed with plaintiffs, was

removed after two years and placed with a black family. The court

found that the only reason for this relocation was that plaintiffs were

white and the baby was black. The district judge applied the strict

scrutiny required in testing classifications based on race, and held that

the government had violated the Equal Protection Clause. Even though

he found that the state had a compelling interest in providing adequate

care for foster children, the judge concluded that the "use of race alone

in making long-term foster care placements is not necessary nor

appropriate to accomplish those salutary governmental objectives stated

above." 46

Of course, it is impossible to predict with certainty what a court

would do in the future if faced with a homosexual or homosexual couple

that wished to adopt, or to act as foster parents. As the judge in

Mclaughlin held, the state clearly has a compelling interest in providing

secure and stable homes for children committed to its care. Whether a

court would find that prohibiting homosexuals from participating in

foster care programs, or from adopting children, is necessary to that

interest is the difficult question. Again, if a Watkins approach is

adopted, arguments that homosexuals are unfit role models, or socially

ostracized, are increasingly unlikely to be successful.

The current controversy over governmental responses to Acquired

Immune Deficiency Syndrome ("AIDS") could also be affected by a

redefinition of classifications based on sexual orientation under the

Equal Protection Clause. Since a majority of the disease's victims have

been homosexuals, state programs implemented to curb the spread of

the disease, such as the closing of gay bathhouses and testing, could be

challenged as disguised attempts at invidious discrimination. States

would then have to justify each program as necessary to a compelling

state interest, rather than as rationally related to a proper state purpose.

Were classifications based on sexual preference treated like those

based upon race or gender, questions would arise in many other areas.

For example, the arguments that have been used to justify affirmative

action for minorities and women equally could be applied to homosex-

uals, who have historically been excluded from full participation in

society. In addition, a judicial extension of the civil rights laws to

45 No. 86-7143 (E.t>. Pa. Aug. 23, 1988).

46 Id. at 9. Similar issues are being litigated with regard to homosexualtiy. For example,

a California state trial court recently rejected a claim that the "Big Brothers"

organization, which provides adult-male companions for fatherless boys, could not

properly exclude homosexual volunteers. See Wash. Post, Oct. 2, 1988, at F2.

30
include discrimination based on sexual preference would not be impos-

sible. Title VII of the Civil Rights Act of 1964,47 for instance, prohibits

employment discrimination based on sex, and Title VIII of the Civil

Rights Act of 1968 48 prohibits housing discrimination based on sex. An

argument could be constructed that these provisions should be inter-

preted also to prohibit discrimination based upon sexual preference.

Indeed, in Singer the claimants made a similar argument, claiming that

Washington's Equal Rights Amendment, which prohibits discrimina-

tion on account of sex, should be interpreted to prohibit discrimination

against homosexuals.49

Finally, the extension of statutory civil rights protections to

homosexuals in some contexts could implicate the Free Exerise Clause

of the First Amendment. In Gay Rights Coalition of Georgetown

University Law Center v. Georgetown University,50 the District of

Columbia Court of Appeals held that a private Roman Catholic

university could not deny the use of its facilities to a homosexual

student group. The court grounded its opinion in the District of

Columbia Human Rights Act, which prohibits educational institutions

from denying the use of their facilities on the basis of sexual orienta-

tion. It reasoned that the university was not required to recognize the

homosexual students as an official university organization, but con-

cluded that the First Amendment did not shield it from having to grant

them the use of university facilities.51

C. Potential Controversies For the 1990's

The following lists some of the issues involving homosexual rights

that the Court may confront during the next decade:

— Should the Court's decision in Bowers v. Hardwick be reconsid-

ered and the right of privacy under the Due Process Clause or the

Ninth Amendment be extended to homosexual conduct?

— Should classifications relating to homosexuality be granted height-

ened scrutiny under the Equal Protection Clause of the Fourteenth

Amendment?

— Does it violate the equal protection requirement of the Fifth

47 42 U.S.C. § 2000e-2(a) (1982).

44 42 U.S.C. § 3601 (1982).

49 See Singer, 522 P.2d at 1193-94 (rejecting the argument). Singer is discussed at notes

43-44 and accompanying text, supra.

50 536 A.2d 1 (D.C. App. 1987).

31 Id. at 39.

31
Amendment Due Process Clause for the government to exclude

homosexuals from the Armed Services?

Does it violate the Fifth Amendment's Due Process Clause or the

Fourteenth Amendment's Equal Protection Clause for the federal

government or the states, respectively, to exclude homosexuals

from other sensitive positions because of their sexual preference?

Does the Equal Protection Clause of the Fourteenth Amendment

permit states to exclude homosexuals from teaching in public

schools?

Does the Equal Protection Clause of the Fourteenth Amendment

require states to recognize homosexual marriages?

Does the Equal Protection Clause of the Fourteenth Amendment

permit states to discriminate against homosexuals in making child

custody determinations?

Does the Equal Protection Clause of the Fourteenth Amendment

permit states to discriminate against homosexuals in making

adoption or foster care determinations?

If the Court redefines sexual preference as a classification subject

to strict scrutiny under the Equal Protection Clause of the

Fourteenth Amendment, will programs meant to stop the spread of

the AIDS virus be invalidated as constituting impermissible dis-

crimination against homosexuals?

Will the Free Exercise Clause of the First Amendment prevent the

extension of civil rights laws to prohibit discrimination against

homosexuals by religious groups?

Should affirmative action programs for minorities and women be

extended to include homosexuals?

32
4. Will the "Right of Privacy;' Derived from the

Fourteenth Amdendment's Due Process Clause,

Be Expanded to Invalidate Various State Laws that

Prohibit Individual Behavior in the Interest of

Promoting Standards of Public Morality?

A. Background

Arguing in defense of an expansive constitutional "right of

privacy," which would protect various kinds of currently unlawful

behavior from state regulation, Professor David A. J. Richards of New

York University Law School wrote,

[T]he elaboration of an independent constitutional right to

privacy in Griswold et al. represents an implementation of

underlying moral values of treating persons as equals in light

of . . . new theories of the person arising from the post-

Freudian idea that one's sexual and procreative life is not just

the property of the state, but one of the critical choices

which, autonomously exercised, enables people to establish

personal integrity in a life they can call their own .... The

unity of these disparate rights is not in the definition of the

ultimate rights, but in the common moral arguments they

invoke: the concern for the exacting protection of matters not

properly of public concern.1

Expressing a different view in his testimony before the Senate

Judiciary Committee, Supreme Court nominee Judge Robert H. Bork

insisted that a general right of privacy, besides lacking roots in the

Constitution's text, does not—and cannot—lend itself to consistent

application:

We do not know what it covers. It can strike at random. For

example the Supreme Court has not applied the right consis-

tently and I think it is safe to predict that the Supreme Court

will not. . . . Privacy to do what, Senator? You know,

privacy to use cocaine in private? 2

The Supreme Court recognized a general right to privacy under the

Constitution in its contraception and abortion decisions. In Griswold v.

'Richards, Human Rights As the Unwritten Constitution: The Problem of Change

and Stability in Constitutional Interpretation, 4 U. Day. L. Rev. 295, 302 (1979).

2 Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the

United States: Hearings Before the Comm. on the Judiciary of the United States

Senate, 100th Cong., 1st Sess. 124-25 (1987).

33
Connecticut,3 the Court invalidated a Connecticut law that prohibited

even married couples from using contraceptives. The Court found that

the law violated an unenumerated right of marital privacy, which it

derived from the "penumbras" of various provisions in the Bill of

Rights, including the First, Third, Fourth, Fifth, and Ninth Amend-

ments. The Court did not elaborate upon the scope of this right, but

concluded that it encompassed the right of married individuals to use

contraceptives. Seven years later, however, in Eisenstadt v. Baird,4 the

Court significantly expanded the Griswold privacy right by extending it

to unmarried individuals: "If the right of privacy means anything, it is

the right of the individual, married or single, to be free from unwar-

ranted governmental intrusion into matters so fundamentally affecting

a person as the decision whether to bear or beget a child." 5

Liberated in Eisenstadt from its previous connection to family

relationships, the general right of privacy became a potent constitu-

tional source of rights not explicitly enumerated in the written Consti-

tution, a right that could be used to invalidate state laws reflecting

notions of public morality. The potential of this right for expansion

materialized just one year later in Roe v. Wade,6 where the Court,

building upon its earlier cases, recognized a right of women to terminate

a pregnancy: "This right of privacy, whether it be founded in the

Fourteenth Amendment's concept of personal liberty and restrictions

upon state action, as we feel it is, or, as the District Court determined,

in the Ninth Amendment's reservations of rights to the people, is broad

enough to encompass a woman's decision whether or not to terminate

her pregnancy." 7

Four years after Roe, the Court relied on the Due Process Clause

of the Fourteenth Amendment in Moore v. City of East Cleveland8 to

overturn a conviction of a woman who violated a single-family zoning

ordinance by living with two grandchildren who were not siblings. The

term "family" in the ordinance did not include non-sibling grandchil-

dren. Although the Constitution does not explicitly address family

living arrangements, the plurality opinion concluded that "the choice of

relatives in this degree of kinship may not lightly be denied by the

3 381 U.S. 479 (1965).

4 405 U.S. 438 (1972).

5 Id. at 454 (emphasis in original).

6 410 U.S. 173 (1973).

7 Id. at 153. The Due Process clause, upon which the Court relied, provides, "nor shall

any State deprive any person of life, liberty, or property, without due process of law."

U.S. Const., amend. XIV.

* 431 U.S. 494 (1977).

34
State." 9 In dissent, Justice White argued that the Court "is most

vulnerable and comes nearest to illegitimacy when it deals with judge-

made constitutional law having little or no cognizable roots in the

language or even the design of the Constitution." 10 Justice White also

faulted the plurality for requiring courts to make "arguable" and

"debatable" value judgments."

In Carey v. Population Services International,12 decided the same

term as Moore, the Court invalidated a state law that permitted only

pharmacists to sell contraceptives and that prohibited the sale of

contraceptives to persons under 16 years of age. The Court emphasized

that the right of privacy protects individuals in matters of childbearing

from unjustified intrusions by the state. In the course of its opinion, the

Court described as still open the question of whether the right of

privacy protected all adult consensual sexual conduct. The majority

opinion observed that the Court had never "answered the difficult

question whether and to what extent the Constitution prohibits state

statutes regulating [private consensual sexual] behavior among adults,"

and it declined "to answer that question now." 13

In Bowers v. Hardwick,1* a 5-4 decision, the Court gave a negative

answer to the question it had reserved in Carey, and appeared to signal

a halt, at least temporarily, to the expansion of the right of privacy. In

Bowers, the plaintiff challenged the constitutional validity of a statute

proscribing homosexual sodomy. The Court's opinion, authored by

Justice White, described the Court's previous privacy cases as dealing

with "child rearing and education," "family relationships," "procre-

ation," "marriage," "contraception," and "abortion." 15 None of the

rights announced in these cases, the Court declared, "bears any

resemblance to the claimed constitutional right of homosexuals to

engage in acts of sodomy." 16 The Court said that the claim that the

Court's privacy cases constitutionally insulate "any kind of private

sexual conduct between consenting adults . . . from state proscription

is insupportable." 17 Rejecting the argument that homosexual conduct

9 Id. at 505-06. The Court distinguished Village of Belle Terre v. Borass, 416 U.S. 1

(1974), in which it had upheld an ordinance that precluded unrelated individuals

from living together.

10 431 U.S. at 549 (White, J., dissenting).

"Id.

12 431 U.S. 678 (1977).

13 Id. at 688 n.5, 694 n. 17.

14 478 U.S. 186 (1986).

15 Id. at 191. \

16 Id. at 191-92.

17 Id. at 191.

35
in the privacy of the home is protected under Stanley v. Georgia,16 the

Court observed that "[victimless crimes, such as the possession and use

of illegal drugs, do not escape the law where they are committed at

home." 19 Finally, putting precedent aside, the Court refused to expand

the right of privacy into new areas. Making obvious reference to Justice

White's admonition in Moore, the Court warned of the danger of

illegitimacy when it announces rights not readily identifiable in the

Constitution's text.20

The dissenting Justices acknowledged that the Court's prior

decisions "may be characterized by their connection to protection of the

family." Nevertheless, they argued that those rights were protected not

because of any inherent importance of the family but because the family

nurtures the individual.21 The dissent characterized the right of privacy

as one allowing people "to live their lives differently." 22

The opposing positions taken by the majority and dissent in

Bowers reflect the continuing controversy over both the existence and

definition of the right of privacy. Even if a right of privacy can be

derived from the Constitution, the question of the right's scope remains

to be answered. Dean Bruce Hafen has argued that "marriage and

kinship are still the touchstones of constitutional adjudication in

family-related cases, including those dealing with sexual privacy." 23

Other commentators, however, see room for a much more expansive

right. As viewed by Professor Gene Nichols, the privacy right is part of

a right to "self-government," defined as "the ability to formulate,

shape, and act upon the core aspects of one's sense of identity, character

and personality." 24 Such differences of opinion undoubtedly will help

to shape the contours of the debate about privacy in the future.

B. Possible Developments in the Future

Some commentators have suggested that it is impossible to recon-

cile Roe v. Wade, which employed a broad conception of the right to

18 394 U.S. 557 (1969) (reversing a conviction for possession of pornography in the home).

"Bowers, 478 U.S. at 195.

f Id. at 194.

21 Id. (emphasis added) (Blackmum, J., dissenting).

22 Id. at 213.

23 Hafen, The Constitutional Status of Marriage, Kinship, and Sexual Privacy-

Balancing the Individual and Social Interests, 81 Mich. L. Rev. 463, 471 (1983).

24 Nichols, Children of Distant Fathers: Sketching an Ethos of Constitutional Liberty,

1985 Wis. L. Rev. 1305, 1347.

36
privacy in recognizing a constitutional right to an abortion, with

Bowers v. Hardwick, which employed a narrower conception of the

right to privacy in upholding the states' authority to prohibit private

homosexual conduct.25 If this criticism is accurate, the tension between

these two important and controversial decisions makes the Court's

present doctrine regarding the right of privacy especially open to change

in the future. Assuming that the Court will not overturn all its existing

privacy cases, one road it may choose—arguably the one it began to

traverse in Bowers—would be to limit the right to those areas in which

it already has been extended, or perhaps even to overturn some existing

applications of the right. The alternative road, which would involve a

rejection of Bowers' admonition of caution and restraint, would

dramatically extend the right to invalidate numerous laws, particularly

state laws, that reflect conceptions of public morality.

Given the close vote in Bowers and the controversy surrounding

the decision, the Court over the next decade may again confront the

question of whether the state can regulate sexual activities between

consenting adults. Homosexual conduct is just one part of this larger

question. Professor Karst has argued, for example, that statutes forbid-

ding adultery and bigamy are "debatable on principle." 26 Similarly,

while conceding that it might be justifiable to punish adultery in some

circumstances, Professor Tribe has argued that it is doubtful that

societal interests "can sustain a per se criminal prohibition on extramar-

ital sexual contacts." 27 While courts have not yet gone this far, the

Pennsylvania Supreme Court has held that regulations of sexual

conduct that discriminate on the basis of marital status violate the

Equal Protection clause.28 Because laws against adultery depend upon

marital status, it is at least conceivable that arguments such as those put

forth by Professors Karst and Tribe would receive a warm reception

under an expanded right of privacy.

Laws prohibiting prostitution also could be vulnerable in the years

to come under an expanded right of privacy. A student commentator

has argued that the right of privacy forbids states from interfering with

25 See, e.g., Pearl, Chipping Away at Bowers v. Hardwick: Making the Best of an

Unfortunate Decision, 63 N.Y.U.L. Rev. 154 (1988). Roe and Bowers are discussed at

notes 6-7 & 14-20 and accompanying text, supra.

26 Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 671-74 (1980).

27 L. Tribe, American Constitutional Law 1433 (2d ed. 1988).

28 Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980). See also State v. Pilcher,

242 N.W.2d 348 (Iowa 1976).

37
prostitution.29 Similarly, while acknowledging that there are some

"moral principles qualifying the principle of sexual autonomy," Profes-

sor Richards has argued that those principles "do not justify any

absolute prohibition of sexual autonomy of the kind that the criminal-

ization of prostitution involves." 30 On this issue, Professor Tribe is

equivocal, suggesting only that "a plausible argument could perhaps be

advanced in favor of outlawing prostitution because of the risks of

coercion inherent when money and sex are overtly mingled, not to

mention the obvious coercion involved in the pimping hierarchy." 31 In

1977, a New York court took the position that prostitution was

protected by an implied right of privacy in the state constitution, but its

decision was later reversed.32 Whatever the current position of the law,

however, arguments for a constitutional right to engage in prostitution

cannot be rejected out of hand under an expanded right of privacy not

tied to traditional family matters. On the other hand, the limited right

of privacy, set forth in cases like Bowers, would have little room for such

a right.

It is even conceivable that the Court could confront arguments in

the next decade that laws banning incest are unconstitutional, at least as

applied to consenting adults. Professor Karst has argued that because of

the problem of possible coercion, "incest laws forbidding parent-child

marriage are arguably sustainable even where the child is mature," but

he also has insisted that the state interest in proscribing brother-sister

marriage is much weaker.33 Although he has expressed doubts that any

court "in the foreseeable future" would hold that the Constitution

protects the right of a brother and sister to marry, he has insisted that

the reasons for such reluctance lie "not in principle but in the force of

conventional morality." 34

Another question the Court may confront in the next decade is

whether the state can provide parents a right to be involved in important

decisions made by their children. The Court could be asked to expand

the right of privacy to permit children greater independence from their

29 Note, Empowering Prostitutes: A Proposal For International Legal Reform, lOHarv.

Women's L.J. 117, 138-41 (1987); see also Note, Right of Privacy Challenges to

Prostitution Statutes, 58 Wash. U.L.Q. 439 (1980).

30 Richards, Commercial Sex and the Rights of the Person: A Moral Argument for the

Decriminalization of Prostitution, 127 U. Pa. L. Rev. 1195, 1276 (1979).

31 L. Tribe, supra note 27, at 1432.

32 In re Dora P., 92 Misc. 2d 62, 400 N.Y.S.2d 455 (N.Y. Fam. Ct. 1977), rev'd, 68

A.D.2d 719. 418 N.Y.S.2d 597 (1979).

33 Karst, supra note 26, at 672.

34 Id. at 673.

38
parents and from the government in a number of decisions relating to

sexual relations. The right to privacy has been interpreted by the Supreme

Court to limit the authority of states to promote parental involvement in

the contraception and abortion decisions of their minor children.35 Some

commentators would extend the autonomy rights beyond those contexts.

The former chairman of the American Bar Association's Section on

Individual Rights and Responsibilities proposed, for example, "that we

consider the logical and ultimate step—that all legal distinctions between

children and adults be abolished." 36 While recognizing the need for

parental discipline, Professor Karst has stated that a "constitutional

presumption" should exist against efforts to enforce that discipline through

law. Again, arguments such as these at least would be plausible under an

expanded right of privacy tied to notions of individual autonomy; they

would confront serious obstacles, however, under a limited right of privacy

tied to traditional family values.

Another issue that may confront the Court in the 1990's is the

authority of the government to regulate drug use. The Court has never

held that the Constitution provides a right to possess recreational drugs.

On the contrary, as already observed, it has suggested the opposite in

dicta. This is unlikely to change if the Court continues on the road taken

in Bowers that limits the right of privacy to decisions pertaining to

marriage, family, and childbearing. As in all these areas, however,

arguments have been made for a more expansive right of privacy.

Professor Richards has argued, for example, that "decisions to use

drugs are embraced by the constitutional right to privacy," and "that

laws criminalizing many forms of drug use violate certain basic rights of

the person." 37 Characterizing it somewhat differently, Professor Tribe

has argued that the right to privacy should be understood to forbid

governmental interference with an individual's "chemical predilec-

tions." 38 In Tribe's view, governmental regulation of "psychoactive

35 Bellotti v. Baird, 443 U.S. 622 (1979); Carey v. Population Services Int'l, 431 U.S. 678

(1977).

36 Manahan, Editorial: Children's Lib, 3 A.B.A. Sec. on Indiv. Rts. & Resps. (Spr.

1976). But see Hafen, Children's Liberation and the New Egalitarianism: Some

Reservations About Abandoning Children to Their "Rights", 1978 B.Y.U. L. Rev.

605.

37 Richards, Drug Use and the Rights of the Person: A Moral Argument for

Decriminalization of Certain Forms of Drug Use, 33 Rutgers L. Rev. 607, 608, 674

(1981); see also Weis & Wizren, Pot, Prayer, Politics and Privacy: The Right to Cut

Your Own Throat in Your Own Way, 54 Iowa L. Rev. 709 (1969); Note, Marijuana

Prohibition and the Constitutional Right of Privacy: An Examination of Ravin v.

State, 11 Tulsa L. J. 563 (1976).

M L. Tribe, supra note 27, at 1324-26 (2d ed. 1988).

39
substances" is an "attempt to regulate ways in which the mind processes

the sensory data it receives from the world." 39 Such regulation occurs

because "substances that have appealed to less conventional groups—

and particularly to groups whose life styles challenged the conventional

morality—are a source of anxiety to the majority and have been natural

targets for criminalization . . . ." 40 The result is "governmental

invasion and usurpation of the choices that together constitute an

individual's psyche." 41

That such arguments are within the plausible bounds of an

expanded right of privacy was made apparent in Ravin v. State,42 where

the Alaska Supreme Court held that an adult's possession of marijuana

at home for personal use is protected by the state constitution. The

Court found no conclusive evidence to support Alaska's claim that

marijuana poses health risks.43 The Court acknowledged that prohib-

iting such possession of marijuana might reduce the incidence of

driving under the influence of marijuana. Nevertheless, it added,

[W]e do not believe that the potential harm generated by

drivers under the influence of marijuana, standing alone,

creates a close and substantial relationship between the public

welfare and control of ingestion of marijuana and possession

of it in the home for personal use. Thus we conclude that no

adequate justification for the state's intrusion into the citi-

zen's right to privacy by its prohibition of possession of

marijuana by an adult for personal consumption in the home

has been shown.44

The Court in the decade ahead might also be asked to apply the

right of privacy to cover suicide and euthanasia. Beginning with In re

Quinlan,43 many state courts have interpreted the right of privacy to

include a right "to decline medical treatment under certain

circumstances." 46 Some commentators have argued that the right of

39 Id. at 1324.

40 Id. at 1326.

41 Id.

42 537 P.2d 494 (Alaska 1975).

43 Id. at 508.

44 Id. at 511. One Justice, concurring in the judgment, strongly implied that he would

extend the Court's holding to cover possession of marijuana outside the home. Id. at

516 (Connor, J., concurring). Three years later, the Alaska Supreme Court declined

to extend the rationale to protect the use of cocaine in the home. State v. Erickson,

574 P.2d 1 (Alaska 1978).

45 70 N.J. 10, 355 A.2d 647 (N.J. 1976).

46 Id. at 663. See Comment, Guaranteeing the Right To Privacy: A Proposal, 17

Rutgers L.J. 615 (1986).

privacy even extends to suicide.47 In Bouvia v. Superior Court, a

California appeals court, saying that "a desire to terminate one's life is

probably the ultimate exercise of one's right to privacy," ruled that a

quadriplegic who was not comatose or terminal could choose death over

treatment.48 Although the court distinguished a right to let nature take

its course from a right to commit suicide,49 its decision made more

plausible privacy arguments in support of the latter.

In Quinlan, the New Jersey Supreme Court not only recognized a

right to decline treatment for oneself, but also upheld the authority of

one person to make such decisions for another. The Court held that the

guardian of a comatose patient could exercise this right for the patient

by making the decision to shut off "artificial life support," in this case,

a respirator.50 Later, the New Jersey Supreme Court stated that the right

to refuse treatment would have permitted a guardian, under appropriate

procedures, to decide to remove a feeding tube of an incompetent,

bedridden woman who was not comatose or in a vegetative state, but

who had serious and irreversible physical and mental impairments and

a limited life expectancy.51

As Judge Bork recognized, the ultimate reach of the general right

of privacy is virtually unbounded.52 Applications of this right in the

areas of abortion and homosexual conduct already have been

discussed.53 Taking an expansive approach, the Court in the future may

combine the right of privacy with an Equal Protection argument to

require the government to fund abortions for indigent women under

public health programs. With respect to homosexual persons, the

Court, using an expansive view of the right of privacy, could decide that

states cannot prohibit homosexual marriage or adoption of children by

homosexuals. In the area of obscenity, the Court could decide, quite

apart from the First Amendment freedom of speech issue, that the right

of privacy gives individuals a right to possess and use obscenity even

outside the home. Outside of these areas, it is even conceivable that the

Court would use an expansive right of privacy to invalidate laws

requiring the occupants of automobiles to wear seat belts and motor-

47 See Marzen, O'Dowd, Crone & Balch, Suicide: A Constitutional Right?, 1A Duq. L.

Rev. 1 (1985).

48 179 Cal. App. 3d 1127, 1144, 225 Cal Rptr. 297, 305-06 (1986).

49 Id.

30 Id. at 662-65. Quinlan died nine years after the respirator was removed. See N.Y.

Times, June 12, 1985, at Al, col. 5.

51 In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985).

52 See note 2 and accompanying text, supra.

53 See Chapters 2 and 3, supra.

41
cyclists to wear helmets. Under the narrower view of the right of

privacy, however, all these matters would be left to the representative

branches of government to decide.

Whether pertaining to sexual activity, drug use, suicide, or other

areas, the laws discussed in this section reflect a legislative desire not

simply to prevent tangible harms but also, and sometimes more

importantly, to enforce societal notions of public morality. Underlying

the expanded conception of the right of privacy is the view that unless

the state can demonstrate tangible harms, morality must be left for the

private decisionmaking of the individual. This view rejects any signifi-

cant notion of public morality; it similarly rejects arguments based on

the moral tone of society. Underlying the narrower conception of the

privacy right is the view that the Constitution's text does not in general

impede the states in their efforts to enforce public morality by law—that

the Constitution leaves to the people, through their elected representa-

tives, the decision of how much public morality should constrain

individual choice. The Supreme Court in the next decade has a clear

choice between these competing views. The view it chooses will deter-

mine the answers to the specific questions this section has raised.

C. Potential Controversies for the 1990's

The following lists some of the privacy issues that the Court may

confront during the next decade:

— Do state laws that prohibit adultery violate the right of privacy

derived from the Fourteenth Amendment's Due Process Clause?

— Does the Due Process Clause of the Fourteenth Amendment guaran-

tee a right to engage in prostitution free from state interference?

— Does the right of privacy derived from the Fourteenth Amend-

ment's Due Process Clause extend to acts of incest between

consenting adults?

— Are state laws and municipal ordinances that regulate sexual relations

of any kind between consenting adults unconstitutional under the

right of privacy derived from the Fourteenth Amendment?

— Are state laws and municipal ordinances that regulate sexual

relations among children and between children and adults uncon-

stitutional under the right of privacy?

— Does the right of privacy derived from the Fourteenth Amend-

ment's Due Process Clause guarantee minor girls the right to use

contraceptives and to have abortions without the knowledge or

consent of their parents?

42
Do both the right of privacy derived from the Fourteenth Amend-

ment's Due Process Clause and the Fourteenth Amendment's

Equal Protection Clause combine to require the government to

provide public funds for indigent women to obtain an abortion?

Does the right of privacy derived from the Fourteenth Amend-

ment's Due Process Clause guarantee a right to possess and use

obscenity whether inside or outside one's home?

Does the right of privacy guarantee a right to choose, free from

legal constraints, whether to use narcotics?

Does the right of privacy guarantee the individual the right to

make his own decision about suicide and euthanasia?

Does the right of privacy give a totally incapacitated person the

right to demand someone else's assistance in terminating his own

life?

Do laws that require the use of seat belts and the wearing of

helmets violate the privacy right of the individual to make his own

choices in these matters?

43
5. Will the Supreme Court Define Discrimination in

Terms of "Disparate Impact" and Thereby Use the

Equal Protection Clause to Require Race and

Gender "Affirmative Action" Policies?

A. Background

In a 1987 article, Professor Charles R. Lawrence suggested that the

Supreme Court abandon the intent requirement for equal protection

violations under the Fourteenth Amendment. Traditionally, the Court

has required some showing of discriminatory intent or purpose before

finding an equal protection violation. Thus, a government policy or

practice that works to the disadvantage of one group over others is not

unconstitutional unless it was actually implemented with an invidious

purpose to discriminate.

Professor Lawrence, however, argued that questions of "intent"

are no longer very meaningful. Racism, he insisted, has permeated the

American culture and psyche to such an extent that now "we are all

racists." 1 In his view, traditional notions of intent cannot deal with this

unconscious, cultural racism. Therefore, he concluded, "judicial explo-

ration of the cultural meaning of governmental actions with racially

discriminatory impact is the best way to discover the unconscious racism

of governmental actors." 2 In other words, a governmental action that

affects racial minorities in a statistically disproportionate manner, such

as a civil service examination passed by a higher percentage of

non-minorities than minorities, should be held unconstitutional even if

it has a non-discriminatory purpose.3

The Supreme Court has already adopted such an approach to

statutory discrimination claims. In Griggs v. Duke Power Co.* the

Court held that a Title VII of the Civil Rights Act of 1964 5 claim of

discrimination can be established by showing that an otherwise neutral

1 Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious

Racism, 39 Stan. L. Rev. 317, 322 (1987) [hereinafter Unconscious Racism].

2 Id. at 387-88.

1 Professor Tribe has taken a similar position, writing that the intent requirement is

"utterly alien to the basic concept of equal justice under law. The burden on those

who are subjugated is none the lighter because it is imposed inadvertently." L. Tribe,

American Constitutional Law 1519 (2d ed. 1988).

4 401 U.S. 424(1971).

5 42 U.S.C. § 2000e-2(a) (1982). Title VII provides that no employer may discriminate

on the basis of "race, color, religion, sex, or national origin."

44
practice or policy affects minorities differently than non-minorities. The

plaintiffs in Griggs claimed that company employment policies, requir-

ing certain minimum test scores and a high school diploma, violated the

Civil Rights statute because these policies had a statistically dispropor-

tionate impact on blacks. While these requirements were applied

without any racially discriminatory intent or purpose, the evidence

demonstrated that they had the incidental effect of excluding more

blacks than whites from employment. The Supreme Court agreed with

the plaintiffs, reasoning that the "disparate impact" of the company's

policies itself violated the law because the company had not established

a "demonstrable relationship" between the test and diploma require-

ments and successful job performance. In the Court's view, the absence

of an intention to discriminate was irrelevant in this statutory context.

Since 1971, the Griggs analysis has been extended well beyond Title

VII to a variety of other statutory schemes. For example, under section

5 of the Voting Rights Act of 1965,6 certain states must obtain advance

approval by the Attorney General or a federal court for local election

law changes. Construing this provision, the Supreme Court has held

that new electoral systems are permissible if they do not result statisti-

cally in a retrogression in minority voting power.7 Furthermore, Con-

gress itself has specifically adopted a form of disparate impact analysis

in section 2 of the Act, forbidding any state from adopting voting

requirements, practices, or procedures that have the effect of frustrating

efforts to elect minority representatives notwithstanding the purpose of

the state's action.8 Today, the essence of a section 2 claim is "that a

certain electoral law, practice, or structure interacts with social and

historical conditions to cause an inequality in the opportunities enjoyed

by black and white voters to elect their preferred representatives." 9 A

state's requirements, for example, that voters periodically re-register, or

else have their names purged from the voting rolls, has been called into

question under this provision on the grounds that the minority poor

often lack access to transportation affording convenient opportunities

for registration and re-registration. In short, if the effect of a particular

practice is to impede the election of minorities, it is invalid regardless of

the purpose or intent with which it was adopted.

The disparate impact analysis also has been judicially extended to

the Fair Housing area. Title VIII of the Civil Rights Act of 1968 makes

6 42 U.S.C. § 1974(e) (1982).

7 See City of Richmond v. United States, 422 U.S. 358 (1975); Beer v. United States,

425 U.S. 130(1976).

8 See 42 U.S.C. § 1973 (1982).

'Thornburg v. Gingies, 478 U.S. 30, 47 (1986).

45
it unlawful to discriminate in housing on the basis of race, color,

religion, sex, or national origin.10 While the Supreme Court has not yet

reached the issue, a majority of the federal circuit courts of appeal have

adopted a disparate impact rule in fair housing cases." Thus, if a

neutral housing policy has the effect of disproportionately affecting

minorities, e.g., a landlord's policy to exclude welfare recipients from

his apartment where more blacks than whites are on welfare, a prima

facie case of discrimination has been stated under the Act. The

defendant must then carry the burden of demonstrating that the policy

was necessary to promote a compelling interest.12

In fact, the Griggs analysis has been adopted under the great

majority of federal civil rights statutes, and has been used successfully

to attack numerous actions having no discriminatory intent or purpose.

Such successfully challenged actions and policies include an employer's

refusal to hire job applicants with arrest or conviction records,13 a city's

decision not to construct a public housing project,14 a state law

requiring high school seniors to pass a literacy examination as a

prerequisite to graduation,15 a state's use of IQ tests in its public

schools,16 a state's height and weight requirements for its prison

guards,17 a municipal election arrangement that was not certain to result

in the election of candidates of certain ethnic groups in proportion to

those groups' relative shares of the local population,18 and a school

district's cost-saving policy of only hiring teachers with less than five

years of experience.19

While the Griggs analysis has been extended to discrimination claims

brought under various statutes, the Supreme Court has never applied a

10 See 42 U.S.C. § 3601 (1982).

"See, e.g.. United States v. City of Black Jack, 508 F.2d 1179, 1184 (5th Cir. 1974),

cert, denied, 422 U.S. 1042 (1975) (proof that zoning ordinance forbidding the

construction of new multi-family dwellings disproportionately impacted minorities

sufficient to state prima facie case under Title VIII).

12 Id. at 1185.

13 See Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp. 952 (D.D.C. 1980),

qff'd 702 F.2d 221 (D.C. Cir. 1981) (arrest r.^ords); Green v. Missouri Pacific R.R.,

523 F.2d 1290 (8th Cir. 1975) (conviction records).

14 See Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert, denied.

Whitman Area Improv. Council v. Resident Advisory Bd., 435 U.S. 908 (1978).

"See Debra P. v. Turlington, 644 F.2d 397 (5th Cir. 1981).

16 See Larry P. v. Riles, 495 F. Supp. 926 (N.D. Cal. 1979). aff'd in relevant part, 793

F.2d 969 (9th Cir. 1984).

17 See Dothard v. Rawlinson, 433 U.S. 321 (1977).

"See Jones v. City of Lubbock, 111 F.2d 364 (5th Cir. 1984).

"See Gelier v. Markham, 635 F.2d 1027 (2d Cir. 1980), cert, denied, 451 U.S. 945

(1981).

46
disparate impact analysis to constitutional claims. Instead, it has consis-

tently held that an equally applied, racially neutral government policy does

not violate the Equal Protection Clause even though it may inadvertently

have a disproportionate impact on a minority group. A discriminatory

purpose must be shown to prove a constitutional violation.

The leading case is Washington v. Davis,™ in which the Court

upheld a Washington D.C. police examination against an equal protec-

tion challenge. Even though the examination was applied in a non-

discriminatory way to all police applicants, a disproportionate number

of blacks failed. While agreeing that the test had a disproportionate

impact, the Court found that it had not been adopted with the intent to

exclude blacks from the force. The Court concluded that "the invidious

quality of a law claimed to be racially discriminatory must ultimately be

traced to a racially discriminatory purpose." 21

Were the Court to adopt a disparate impact analysis for constitu-

tional claims, Davis would have to be reconsidered if not overruled.

Furthermore, the Court would have to reconsider its affirmative action

jurisprudence. Under the Court's current view, a governmental affir-

mative action' program that grants preferences to racial or ethnic

minorities can be justified only by showing that the program either is

designed to remedy specific intentional discrimination 22 or is necessary

to further some other compelling governmental interest.23 The Court

has held, however, that governmental bodies cannot adopt race-

conscious preference programs merely to remedy general societal

discrimination 24 or to eliminate disproportionate representation as

such. The Court's position has led Professor Kathleen Sullivan to

lament that "the Court has approved affirmative action only as precise

penance for the specific sins of racism a government, union, or

employer has committed in the past." 25 Were the Court to abandon the

intent requirement in its equal protection cases, however, it would clear

the way for governmental units to implement race- or gender-conscious

20 426 U.S. 229 (1976). See also Personnel Administrator of Massachusetts v. Feeney,

442 U.S. 256 (1979) (applying same principle in gender-discrimination cases under the

Fourteenth Amendment).

21 426 U.S. at 241.

22 See Wygant v. Jackson Board of Education, 476 U.S. 267, 273-77 (1986).

23 Id. at 273-76. See also Regents of the University of California v. Bakke, 438 U.S. 265,

306-310 (Powell, J.).

24 See Wygant, 476 U.S. at 276-77.

23 Sullivan, Sins of Discrimination: Last Terms's Affirmative Action Cases, 100 Harv.

L. Rev. 78, 80 (1986). Professor Sullivan suggests that justifications based upon

redress for past discrimination be abandoned, and that affirmative action programs

be justified as a means to build a racially equal society for the future.

47
affirmative action programs designed to achieve a specific racial or

gender balance. The governmental unit would be able to justify such

programs as intended to remedy a constitutional violation. Indeed, such

programs could not only be justified, but might be required as an

element of the government's constitutional mandate to promote "equal

protection" for all persons.

The seminal affirmative action case is Regents of the University of

California v. Bakke.26 In Bakke, the Court struck down a special

medical school admissions plan that reserved a certain number of seats

just for minority students. Without agreeing on a rationale, five justices

ruled that the program had to be invalidated. Four Justices held that the

set-asides violated Title VI of the Federal Civil Rights Act and declined

to reach the equal protection issue. Justice Powell, the fifth and

deciding vote in the case, took the view that the program violated both

the statute and the Equal Protection Clause, but on the latter point he

spoke only for himself. Powell also insisted, however, that race could be

used as a factor in admissions, and on this point he was joined by the

four dissenters, who would have gone even further and upheld the

set-aside as such. Because of this alignment of votes, Justice Powell's

opinion regarding when race can be used as a factor in admissions

became, in effect, the opinion of the Court.

Since Bakke, the Court has remained divided on the constitutionality

of race-conscious preference programs designed to benefit minority

groups. In Fullilove v. Klutznick,21 it upheld a congressionally mandated

government contract set-aside for minority businesses. While the Justices

again were unable to agree upon a common rational, Chief Justice Burger's

lead opinion noted both that the program at issue was designed to correct

the continuing effects of past discrimination within the industry and that

the burden on innocent non-minorities was not significant.28 Nevertheless,

because the evidence of such discrimination was sparse—the set-aside was

proposed and adopted as a floor amendment—Fullilove seemed to suggest

that race-conscious programs, at least when adopted by the Congress,

could withstand constitutional scrutiny.

More recently, however, in Wygant v. Jackson Board of

Education,29 the Court struck down a government affirmative action

"438 U.S. 265 (1978).

27 448 U.S. 448 (1980).

29 Id. at 478-79, 485. He was joined by Justices White and Powell. Three Justices,

applying "intermediate" scrutiny, voted to uphold the program as a valid exercise of

federal power to eliminate the effects of past discrimination. Three Justices would

have invalidated the program.

29 476 U.S. 267 (1986).

48
plan designed to provide more minority teachers in the public schools.

Among other things, the plan provided that non-minority teachers

would be laid off before minority teachers with less seniority. Agree-

ment on a rationale again eluded the Court. The plurality observed,

however, that "[t]his Court never has held that societal discrimination

alone is sufficient to justify a racial classification." 30 To justify such

classifications under the Equal Protection Clause, it explained, the

Court has "insisted upon some showing of prior discrimination by the

government unit involved." 31 Concurring, Justice O'Connor pointed

out that once this showing was made, the entire Court agreed that

remedying the discrimination was a sufficient state interest to justify the

use of a "carefully constructed affirmative action program." 32

Private race-conscious programs, which can only be challenged

under Title VII of the Civil Rights Act, have fared better than

governmental ones. When testing a program under Title VII, the Court

does not require a showing of past intentional discrimination to justify

racial preferences for minority groups. In United Steel Workers v.

Weber33 for example, the Supreme Court upheld under Title VII a

private affirmative action program granting minority workers prefer-

ences on account of race. It concluded that an employer could justify

such a program merely by pointing to a "conspicuous racial imbalance

in traditionally segregated job categories." 34

The Supreme Court recently reaffirmed Weber in Johnson v.

Transportation Agency of Santa Clara Co.,35 which upheld an affirma-

tive action program that allowed the promotion of one employee over

another merely on the basis of race or sex. The plan was designed to

remedy racial and sexual imbalances in "traditionally segregated job

categories." 36 Although there was no showing of past discrimination

on the employer's part, Justice Brennan, writing for a majority of five,

noted that " Weber held that an employer seeking to justify the adoption

of a plan need not point to its own prior discriminatory practices, nor

even to evidence of an 'arguable violation' on its part." 37

In all, the issue is whether the Court will continue to require a

showing of purpose or intent to discriminate before a constitutional

30 Id. at 274.

31 Id.

32 Id. at 286 (O'Connor, J., concurring).

33 443 U.S. 193 (1979).

34 Id. at 209.

35 107 S. Ct. 1442 (1987).

36 Id. at 1455.

"Id. at 1451.

49
claim can be established, or whether it will adopt a disparate impact,

effects analysis. Under an effects test, government statutes, policies or

programs that have a statistically disparate impact on minorities or

women could be invalidated regardless of the purpose behind them, lb

date, attempts to convince the Justices to read an effects test into the

Constitution have been unsuccessful. However, the Court has adopted

the disparate impact analysis under a number of statutory schemes, and

arguments that it should be extended to constitutional claims continue

to be made. This debate goes to the very heart of how our society will

define "civil rights" and "discrimination" in the future.

B. Possible Developments in the Future

Thus, as the Court moves into the 1990's, it faces a clear choice of

roads leading in opposite directions. On one road, the one the Court is

now traversing, only purposeful discrimination would be viewed as a

Fourteenth or Fifteenth Amendment violation. On the other road,

disproportionate statistical impact, regardless of discriminatory intent,

would suffice for a constitutional violation, much as it currently does in

some statutory contexts.

In the future, the Court could choose to maintain the traditional

intent requirement under the constitution, and might even reassess the

application of the effects test in statutory interpretation. The disparate

impact approach is arguably inconsistent with the text and legislative

history of a number of the statutes under which it has been adopted.

Title VII, for example, forbids employment discrimination because of

an individual's race, color, religion, sex, or national origin.38 In the next

ten years the Court may well return to the original understanding of

these acts and revisit Griggs.

However, were the Court over the next decade to "constitutional-

ize" the "disparate impact" definition of discrimination by extending

the Griggs analysis to the equal protection area, the consequences would

be dramatic. Any government policy that affected minority groups in a

disproportionate statistical manner, regardless of intent, would be

subject to constitutional challenge. Moreover, purposeful past discrim-

ination no longer would be necessary to justify reverse discrimination

plans adopted voluntarily by governmental bodies. Such government

programs might even be required as part of a general effort to redress

statistical imbalances throughout society.

"42 U.S.C. § 2000e-2(a). See Office of Legal Policy, U.S. Department of Justice,

Redefining Discrimination: "Disparate Impact" and The Institutionalization of

Affirmative Action—Report to the Attorney General (Nov. 4, 1987).

50
Many public policies and practices arguably have a disparate

impact upon minorities. For example, arguments could be made that

various criminal statutes and sentencing policies are unconstitutional

because they have a disparate impact upon certain groups. If studies

showed that particular sentencing practices affected one group more

onerously than another, such practices would be subject to challenge.

The Supreme Court recently heard just such an argument in McCleskey

v. Kemp.39 There, the Court rejected a claim that the Georgia death

penalty statute was unconstitutional. The defendant asserted an Equal

Protection violation, claiming that Georgia's death penalty statute was

administered so that "persons who murder whites are more likely to be

sentenced to death than persons who murder blacks, and black

murderers are more likely to be sentenced to death than white

murderers." 40 He based his claim upon a statistical study. The Court

concluded, however, that the study was insufficient to show that "any of

the decisionmakers in McCleskey's case acted with discriminatory

purpose." 41 If the Court were to adopt an effects test under the

Fourteenth Amendment, however, it could easily conclude that such

statistics render the death penalty unconstitutional.

Were the Court to adopt an effects test in the future, all govern-

ment testing would be subject to challenge. For example, medical board

and bar examinations could be ruled unconstitutional if a disparate

impact could be established. The Court would have to decide whether

civil service competency tests, like the one at issue in Davis, are justified

by a compelling necessity. Similarly, the tests given in public schools and

universities could be questioned if minority students were shown to

perform less well than non-minority students.42

In fact, the adoption of a disparate impact test under the Constitution

would implicate every case that followed the Davis analysis. For example,

in City of Mobile v. Bolden,43 the Court rejected a claim that a local at-large

election system violated the Fifteenth Amendment's guarantee of voting

rights by effectively diluting black voting strength. The plurality concluded

that "in the absence of . . .an invidious purpose, a State is constitutionally

free to redraw political boundaries in any manner it chooses." 44

39 107 S. Ct. 1756 (1987).

40 Id. at 1766.

41 Id. at 1769.

42 A student's grade point average is largely determined by his or her performance on

various examinations, and this average is one of the principal admission factors

considered by universities and professional schools.

43 446 U.S. 55 (1980).

44 Id. at 63.

51
As noted above, the Court already applies a Griggs analysis under

the Voting Rights Act. One commentator has noted that the Voting

Rights Act has been transformed into an "instrument for affirmative

action, a means to promote minority office-holding roughly in propor-

tion to the population." 45 Were this approach extended to constitu-

tional claims, the result would be the recognition of a constitutional

right to proportional representation that might be applied to all state

and federal elective offices.

Under a constitutional disparate impact standard, the Court over

the next decade could face numerous discrimination issues in the

housing area. In Village of Arlington Heights v. Metropolitan Housing

Development Corp.,46 the Court held that a local ordinance reserving

an area for single-family housing need not be repealed merely because

it had the effect of excluding more minorities than non-minorities. The

Court noted that "[p]roof of racially discriminatory intent or purpose

is required to show a violation of the Equal Protection Clause." 47 If the

intent requirement is abandoned, however, the rule announced in

Arlington Heights would have to be reconsidered. Local zoning laws

that have the effect of creating "racial imbalances" in a community will

be subject to challenge. Design specifications, height limits, lot size

requirements, limitations on multi-family units, and other regulations

intended to provide a pleasant residential atmosphere, or to protect the

environment, could be invalidated even though they have no racially

motivated purpose. Other local decisions, such as whether and where to

construct public housing, could also be challenged, regardless of the

governmental purpose behind such decisions.

In Personnel Administrator of Massachusetts v. Feeney,4* the

Court applied the Davis approach, and rejected an equal protection

challenge to a state law giving a preference to veterans in state

employment. While the preference was granted to all veterans, male and

female, it operated "overwhelmingly" to the advantage of men, and

arguably imposed a disproportionate burden upon women—few of

whom were veterans. Nevertheless, the Court upheld the law, finding no

purpose to discriminate on the basis of gender.49 If Davis were

abandoned, such preferences would almost certainly be open to ques-

tion. Indeed, virtually all other veterans' benefits such as educational

45 A. Thernstrom, Whose Votes Count?: Affirmative Action and Minority Voting

Rights 192 (1987).

46 429 U.S. 252 (1977).

47 Id. at 266.

48 442 U.S. 256(1979).

49 Id. at 279-80.

52
aid, medical care and VA mortgages, could be challenged under an

effects test as equal protection violations.50

Any future decision by the Supreme Court extending the Griggs

disparate impact analysis to constitutional claims will also have an

impact upon school desegregation cases. Brown v. Board of

Education 51 and its progeny have invalidated only racial segregation in

schools that results from intentionally discriminatory acts by the state.

In this connection, the Court has been careful to distinguish between de

jure segregation, where there is a purpose or intent to segregate, and de

facto segregation, where such an intent is lacking.52 The Court relied on

this distinction in Milliken v. Bradley,53 which held that a cross-district

busing plan could not be imposed upon school districts that had never

practiced intentional, de jure segregation.

The constitutionalization of disparate impact could have especially

far-reaching effects in the area of economic legislation. The Court has

declined to recognize wealth as a suspect classification,54 but under a

disparate impact approach, many racially neutral classifications that

affect one economic group more than another could be transformed

into racial classifications. It would only be necessary to show that social

or economic legislation effectively burdens minorities more than non-

minorities, a relatively easy task in many instances because a greater

percentage of minorities fall below the poverty line. Thus, for example,

a state's decision to reduce welfare payments may affect minority group

members disproportionately.

If the Court during the next decade chooses to follow in the

constitutional area the course it charted in Griggs, it would have to

decide whether such core legislative decisions as the level of state and

federal taxation, or the nature of allowable tax deductions, are invalid

because they can be said to have an adverse impact on minorities. For

example, if it could be shown both that deductions for home mortgage

50 During hearings on the proposed Equal Rights Amendment, Frank E.G. Weil,

counsel to the American Veterans Committee, testified that a disparate impact

analysis would probably be applied under the Amendment. Veterans' preferences, he*

noted, would probably only be upheld if the courts found that there was no "way of

achieving the[ir] objectives in a nondiscriminatory or significantly less discriminatory

manner." See The Impact of the Equal Rights Amendment: Hearings Before the

Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 98th Cong.,

1st & 2nd Sess. Pt. 1, 746-47 (1984).

"347 U.S. 483 (1954).

52 See Keyes v. School District No. I, 413 U.S. 189, 208 (1973).

53 418 U.S. 717 (1974).

54 See e.g., Maher v. Roe, 432 U.S. 464, 471 (1977) (state refusal to pay for indigent

abortions not equal protection violation).

53
interest encourage the construction of single-family homes at the

expense of multi-family rental units, and that this disproportionately

has an adverse affect on minorities, mortgage interest deductions would

be subject to challenge. Similarly, the decision of a state or local

government not to allocate more resources for the construction of

low-income housing, mass transportation systems, job training pro-

grams, or child care facilities, could be challenged on these grounds.

Under a Griggs analysis, the Court also would have to reconsider

its approach to government-sponsored affirmative action programs that

burden non-minorities. To date, the Court has treated such programs

with heightened scrutiny under the Equal Protection Clause.55 More-

over, the Court has shown concern about the effect that minority

set-asides have on innocent non-minorities.56 Were purposeful discrim-

ination no longer a requirement in equal protection analysis, however,

government could justify set-aside programs as designed to remedy the

unconstitutional "effects" of various practices. As Professor Lawrence

has argued, "without the necessity for blame, our resistance to accept-

ing the need and responsibility for remedy will be lessened." 57 Affir-

mative action programs designed to achieve racial balance in school

admissions, employment, housing, and elected representation more

easily could be adopted by governmental units without regard to past

discrimination or present burdens upon non-minorities. A plan requir-

ing non-minority workers to be laid off before minority workers with

less seniority, like that invalidated in Wygant, would have a much better

chance of being upheld.

Finally, if the Court were to extend the effects test to constitutional

cases, it would have to decide whether the government's failure to act to

remedy general societal discrimination violates equal protection guar-

antees. For example, the failure of a state or local government to adopt

an affirmative action plan in its hiring and promotion practices could be

challenged as an equal protection violation, as could the failure to raise

taxes to pay for low-cost housing in predominantly non-minority areas.

Likewise, the state's failure to require cross-district school busing to

achieve racial balance between predominantly minority and non-

minority school systems could be deemed under some circumstances a

violation of the Equal Protection Clause.

• ■ ■

"See TVibe, supra note 3, at 1523.

56 In Wygant, for example, Justice Powell expressed concern for the rights of innocent

non-minorities in testing the affirmative action plan at issue. See 476 U.S. at 280-84.

Professor TVibe argues that this concern was "decisive" in that case. See TVibe, supra

note 3, at 1535.

57 Unconscious Racism, supra note 1, at 326.

54
Thus, in the next decade the Supreme Court will very likely face a

fundamental choice about the future path of civil rights in America. It

may continue to require a showing of some discriminatory purpose for

a constitutional violation, and it may reinstate the intent requirement

for claims brought under the Civil Rights Acts. On the other hand, the

Court may extend the effects test for unlawful discrimination, already

adopted under many statutory schemes, to claims brought under the

Constitution. If it chooses the latter course, the role of the federal

government could shift from ensuring that individuals are not discrim-

inated against because of their race or ethnic background, to the

formidable task of trying to create statistically measured equality

throughout society.

C. Potential Controversies For the 1990's

The following lists some of the equal protection issues pertaining

to race and gender that the Court may confront during the next decade:

— Should the Court abandon the intent requirement for discrimina-

tion claims under the Equal Protection Clause of the Fourteenth

Amendment and adopt a Griggs disparate impact analysis?

— Should the Court revisit its decision in Griggs and reinstate the

intent requirement for discrimination claims brought under such

statutes as Title VII of the Civil Rights Act of 1964?

— Should government affirmative action programs that discriminate

against non-minorities on the basis of race be held valid under the

Equal Protection Clause of the Fourteenth Amendment when

adopted to correct general societal discrimination?

— Should government testing for hiring and promotions be deemed a

violation of the Equal Protection Clause of the Fourteenth

Amendment if it has a disproportionate impact upon minorities,

regardless of any showing of discriminatory intent?

— Should educational testing in public schools be deemed a violation

of the Equal Protection Clause of the Fourteenth Amendment if it

has a disproportionate impact upon minorities, regardless of any

showing of discriminatory intent?

— Should public university entrance and course examinations be

'deemed violations of the Equal Protection Clause of the Four-

teenth Amendment if they have a disproportionate impact upon

minorities, regardless of any showing of discriminatory intent?

— Should state certification requirements, such as bar examinations,

be deemed violations of the Equal Protection Clause of the

Fourteenth Amendment if they have a disproportionate impact

55
upon minorities, regardless of any showing of discriminatory

intent?

Should criminal statutes and penalties, such as the death penalty,

be deemed violations of the Equal Protection Clause of the

Fourteenth Amendment if they have a disproportionate impact

upon minority groups, regardless of any showing of discrimina-

tory intent?

Should government decisions setting law enforcement priorities,

such as devoting more resources to combating white collar crime

instead of violent street crime, be deemed violations of the Equal

Protection Clause of the Fourteenth Amendment if they have a

disproportionate impact upon minority groups, regardless of any

showing of discriminatory intent?

Should electoral systems that do not result in proportional repre-

sentation for minority groups be deemed violations of the Equal

Protection Clause of the Fourteenth Amendment or of the Fif-

teenth Amendment?

Should land development restrictions, such as zoning regulations,

that adversely impact minority groups be deemed violations of the

Equal Protection Clause of the Fourteenth Amendment, regardless

of any showing of discriminatory intent?

Should such local government decisions as the construction and

placement of public housing projects be deemed violations of the

Equal Protection Clause of the Fourteenth Amendment if they

disproportionately burden minorities regardless of any showing of

discriminatory intent?

Should government taxing decisions such as granting tax deduc-

tions for mortgage interest be deemed violations of the Equal

Protection Clause of the Fourteenth Amendment if they dispro-

portionately burden minority interests, regardless of any showing

of discriminatory intent?

Should government decisions allocating resources, whether to

spend less on social programs and more on defense, for example,

be deemed violations of the Equal Protection Clause of the

Fourteenth Amendment if they disproportionately burden minor-

ity interests, regardless of any showing of discriminatory intent?

Should governmental failure to undertake affirmative action pro-

grams to remedy societal discrimination be declared a violation of

the Equal Protection Clause of the Fourteenth Amendment using

a disparate impact analysis?

56
6. Will Public Policies That Have a Disparate Impact

on the Basis of Wealth Be Limited Under the Equal

Protection Clause of the Fourteenth Amendment,

and Will the Constitution Be Interpreted to Require

Particular Levels of Social Welfare Spending?

A. Background

Just over fifty years ago, in West Coast Hotel Co. v. Parrish,1 the

Supreme Court for the first time upheld state minimum wage legislation,

and thus began to retreat from prior decisions, such as Lochner v. New

York,2 that had invalidated governmental interference in the marketplace.

Commenting on West Coast Hotel, Professor Laurence Tribe emphasized

the decision's focus on the exploitation of workers.3 In Tribe's view, the

Court not only held that the state could adopt minimum wage legislation

if it so desired, but also concluded, in effect, that the state was right to do

so.4 Now, Tribe argues, "the same premises that toppled Lochner [can]

propel courts to intervene actively in order to prevent governments from

tolerating . . . extreme suffering and deprivation." 5

Although the Court has not yet accepted Tribe's invitation, it

might eventually increase its influence over welfare policy in either of

two possible ways. First, the Court could use a heightened standard of

Equal Protection scrutiny when it confronts laws with a "disparate

impact" on the poor. Second, and along the lines urged by Professor

Tribe, the Court could find in the Constitution unenumerated rights to

such state benefits as education, health care, or a guaranteed income.

Because the representative branches of government currently determine

the desirability and scope of such programs, a move by the Court

toward either of these positions would result in a significant shift of

decisionmaking authority to the courts.

The first approach to expanding welfare rights under the Consti-

tution is the application of some form of heightened scrutiny for

purposes of Fourteenth Amendment Equal Protection analysis.6 The

1 300 U.S. 379 (1937).

2 198 U.S. 45 (1905).

3 Tribe, Unraveling National League of Cities: The New Federalism and Affirmative

Rights to Essential Government Services, 90 Harv. L. Rev. 1065, 1086 (1977).

4 Id.

5 Id. at 1087.

6 U.S. Const, amend. XIV § 1 ("No state shall . . . deny to any person within its

jurisdiction the equal protection of the laws.").

57
Court has interpreted the Equal Protection Clause as meaning that

legislative classifications are generally valid as long as they bear a

rational relationship to a legitimate governmental purpose, a deferential

standard of judicial review.7 The Court, however, has employed "strict

scrutiny" for certain "suspect" classifications, such as those based on

race, requiring the government to demonstrate that the classification is

"necessary" to further a "compelling" governmental interest.8 The

Court also has developed an intermediate level of scrutiny, primarily in

the area of gender classifications, that requires the state to show that the

classification at issue substantially furthers an important governmental

interest.9

In cases claiming unconstitutional race or sex discrimination, the

Court has held that it will only apply heightened scrutiny if the

governmental conduct demonstrates a discriminatory intent.10 Because

few legislative actions are deliberately designed to discriminate against

the poor, the adoption of a similar requirement of purposeful or

intentional discrimination in this area would severely limit the range of

government actions that could be constitutionally challenged even if

wealth classifications were treated as "suspect." Stated differently,

under a requirement of intentional discrimination, the Court would

find nothing constitutionally suspect about a neutral law that in its

application disproportionately burdened the poor. In certain statutory

contexts, however, the Court has employed a "disparate impact" test,

one that requires justification of certain actions, such as employment

tests, that in a statistical sense disproportionately burden a particular

racial group." To date, the Court has not adopted such an approach to

Equal Protection analysis.

In a few decisions, however, the Court has come close to subjecting

legislative enactments having a disparate impact on the poor to

heightened scrutiny under the Equal Protection Clause, but it has never

done so explicitly. In Douglas v. California,12 for example, the Court

required California to provide indigents with counsel for appeals in

criminal cases. The Court said that it was constitutionally unacceptable

7 See, e.g., Dandridge v. Williams, 397 U.S. 471, 485-86 (1970).

* See, e.g., Palmore v. Sidoli, 466 U.S. 429, 432-34 (1984).

9 See Craig v. Boren, 429 U.S. 190, 197 (1976).

10 Washington v. Davis, 426 U.S. 229, 239-41 (1976) (race discrimination); Personnel

Adm'r of Mass. v. Feeney, 442 U.S. 256, 274 (1979) (sex discrimination).

11 See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (finding racial

discrimination under the 1964 Civil Rights Act because certain employment criteria

had the effect of disqualifying black applicants more than white ones).

12 372 U.S. 353 (1963).

58
that a "rich man can require the court to listen to argument of counsel

before deciding on the merits, but a poor man cannot." 13 In Douglas,

no state law classified on the basis of wealth. Nevertheless, indigents

who could not afford counsel were at a disadvantage in taking an

appeal. The Court's opinion, therefore, can be read as suggesting that

the impact of the process on the poor caused the constitutional

problem, even though there was no discriminatory intent.

Since Douglas, an often closely divided Court has refused to

extend heightened scrutiny to wealth classifications.14 In Dandridge v.

Williams,15 for example, the Court upheld Maryland's welfare program,

under which welfare payments increased with family size up to a limit

that applied regardless of the number of family members. Employing

the deferential "rational basis" test traditionally applied to economic

and social legislation, the Court found Maryland's interest in encour-

aging employment and in avoiding discrimination between welfare

families and the working poor more than sufficient to justify the limit.16

In San Antonio Independent School District v. Rodriguez,11 the Court

upheld a school financing scheme that to some extent resulted in school

districts with poor students having less money to spend per pupil than

districts with more affluent students. In Maker v. Roe 18 and Harris v.

McRae,19 the Court upheld statutes that provided funding to the poor

for childbirth but not for abortion, even though the statutes left women

capable of paying for abortions at a clear advantage. Even in the area

of access to the courts, the Court has been reluctant to extend Douglas.

In Ross v. Moffitt,20 for example, the Court held that a state did not

have to appoint counsel for indigents seeking discretionary appellate

review of their convictions.21

This is not to suggest, however, that the Court has completely

ignored wealth as a factor in cases that have heightened the level of

scrutiny in Equal Protection analysis. In Shapiro v. Thompson,22 the

13 Id. at 357. Cf. Boddie v. Connecticut, 401 U.S. 371, 374 (1971), where the Court

held, under the Due Process Clause, that filing fees imposed in divorce cases

unconstitutionally limited indigents in obtaining access to the courts.

14 See L. Tribe, American Constitutional Law 1625-26 (2d ed. 1988).

15 397 U.S. 471 (1970).

16 Id. at 486.

17 411 U.S. 1 (1972).

18 432 U.S. 464 (1977).

"448 U.S. 297 (1980).

20 417 U.S. 600 (1974).

21 Id. at 618-19. See also United States v. Kras, 409 U.S. 434 (1973) (indigents must pay

fee before filing for bankruptcy).

22 394 U.S. 618 (1969).

59
Court invalidated a one year residency requirement for welfare benefits,

and in Memorial Hospital v. Maricopa County,2i it invalidated a similar

requirement for indigents seeking non-emergency medical services.

Although both cases apparently employed heightened scrutiny because

the fundamental "right to travel" was implicated, it has been argued

that the decisions cannot properly be understood without focusing on

the deprivation of essential benefits for indigents that both involved.24

In Rodriguez, moreover, although the Court stated that it had never

held that "wealth discrimination alone" mandates strict scrutiny,25 it left

open the possibility that such discrimination combined with some other

factor might cause it to raise the level of scrutiny. The Court suggested,

for example, that a state statute charging tuition for primary and

secondary education would be closely scrutinized if it had the effect of

cutting some people entirely off from education.26

The second approach to judicial intervention on behalf of the

poor, one extensively advocated in the academic literature, involves the

recognition of some form of constitutional right to a guaranteed income

or to other benefits of the welfare state.27 Professor Charles Black

contends that such a right may be derived from the Ninth Amendment's

provision that "[t]he enumeration in the Constitution, of certain rights,

shall not be construed to deny or disparage others retained by the

people." 28 To decide what rights to protect, Black would look to the

people's inalienable right to pursue happiness under the Declaration of

Independence. Because poverty is overwhelmingly the greatest obstacle

to the pursuit of happiness, he argues, its continuance should be

23 415 U.S. 250(1974).

24 See Tribe, supra note 3, at 1080. Cf. Soma v. Iowa, 419 U.S. 393 (1975) (upholding

a one-year residency requirement for those seeking a divorce).

25 411 U.S. at 29.

26 Id. at 25 n.60.

27 See Black, Further Reflections on the Constitutional Justice of Livelihood, 86

Colum. L. Rev. 1103 (1986); Michelman, The Supreme Court, 1968 Term—Forword:

On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7

(1969); Michelman, In Pursuit of Constitutional Welfare Rights: One View of Rawls'

Theory of Justice, 121 U. Pa. L. Rev. 962 (1973) [hereinafter Michelman, In Pursuit

of Constitutional Welfare Rights]; Tribe, supra note 3, at 1065-66,1078-90,1103-04.

See also Weinreb, Generalities of the Fourth Amendment, 42 U. Chi. L. Rev. 47,

84-85 (1974) (suggesting that Fourth Amendment privacy concerns may imply a right

to housing). For critical views of implied constitutional welfare rights, see Bork, The

Impossibility of Finding Welfare Rights in the Constitution, 1979 Wash. U.L.Q. 695;

Winter, Poverty, Economic Equality, and the Equal Protection Clause, 1972 Sup. Ct.

Rev. 41.

M U.S. Const, amend. IX. See Black, supra note 27, at 1104-05.

60
deemed unconstitutional.29 Professor Frank Michelman supports simi-

lar constitutional entitlements by building on Professor John Hart Ely's

theory that the guarantees of the Ninth and Fourteenth Amendments

should be interpreted in a way that is "representation-reinforcing." 30 In

Michelman's view, analysis of these provisions should focus on whether

a particular government action affects one's ability to participate in the

political process and to obtain benefits from it.31 Michelman then

argues that as long as the poor lack the basic necessities of life, effective

political participation is impossible for them.32

Although individual Justices have embraced aspects of Michelman's

approach, the Court has never found a right to any level of government

benefits in the Constitution. In Rodriguez, the Court rejected the conten-

tion that a minimum level of education was constitutionally required.33

Acknowledging that it may be difficult for a person to vote intelligently or

otherwise participate in the political process without an adequate educa-

tion, the Court said it had "never presumed to possess either the ability or

the authority to guarantee to the citizenry the most effective speech or the

most informed electoral choice." 34

Notwithstanding Rodriguez, the Court in Plyler v. Doe,35 a 5-4

decision, invalidated a Texas law that permitted the exclusion of children

of illegal aliens from the public schools. Although the Court reaffirmed

its holding in Rodriguez that education is not a right conferred on

individuals by the Constitution, the Court also said that "neither is it

merely some governmental 'benefit' indistinguishable from other forms

of social welfare legislation." 36 Applying a heightened level of scrutiny,

29 Black, supra note 27, at 1106.

30 Michelman, Welfare Rights in a Constitutional Democracy, 1979 Wash. U.L.Q. 659,

669-70. See Ely, Toward a Representation-Reinforcing Mode of Judicial Review, 37

Md. L. Rev. 451 (1978).

31 Michelman, supra note 30, at 670.

32 Id. at 677.

33 See 411 U.S. at 35-36. The Court also said in Rodriguez that even if a minimal level

of education was a constitutional right, no evidence existed that the levels of

educational expenditures in Texas fell short of providing this. Id. at 36-37. For this

reason, some have said that the Court did not decide whether there is a right to an

education under the Constitution. Kadrmas v. Dickinson Pub. Schools, 108 S. Ct.

2481, 2491 n.l (1988) (Marshall, J., dissenting).

34 411 U.S. at 36 (emphasis in original).

35 457 U.S. 202 (1982).

36 Id. at 221. See also Tribe, supra note 3, at 1080. Tribe suggests that cases purporting

to be decided on the basis of a right to travel, such as Shapiro v. Thompson, can only

be understood if welfare and medical benefits have a special constitutional status. See

text accompanying notes 22-24, supra.

61
the Plyler Court held that the state had the burden of demonstrating

that the classification at issue furthered a "substantial interest," and it

concluded the state failed to satisfy this burden.37

The Court's view of the constitutional status of public education

took another turn in Kadrmas v. Dickinson Public Schools,39 also a 5-4

decision. Despite Plyler, the Court in Kadrmas did not apply a

heightened level of scrutiny in upholding a North Dakota law that

allowed some school districts but not others to charge for school bus

transportation. That is, instead of requiring the state to prove that the

classification advanced "compelling" or "substantial" state interests,

the Court merely found that the classification was rationally related to

a legitimate state goal. The Court, citing Rodriguez, once again

explicitly rejected the claim that governmentally financed education is

a fundamental right under the Constitution.39

In summary, the constitutional debate regarding poverty has

occurred on two levels. First, it has been argued that the Court should

subject classifications that adversely affect the poor to rigorous analysis

under the Fourteenth Amendment's Equal Protection Clause. To date,

the Court largely has rejected this argument. Second, and even more

radically, it has been argued that the Court should rely on either the

Ninth or the Fourteenth Amendment to create rights to various kinds of

welfare benefits. Again, the Court has not been receptive to such

arguments.

Underlying the debate over these questions is the more fundamen-

tal question of who will address the problem of poverty in our society.

Those who argue for the positions just described believe the courts

should play the major role. Others, including to date a majority of the

Supreme Court, see poverty as a question for the representative

branches of government to address. Judge, then Professor, Ralph

Winter expressed the latter position forcefully some years ago. Winter

insisted that although judicial activism supposedly died when Lochner

v. New York 40 was overruled in the 1930's, the spirit of Lochner is very

much alive in the arguments of Professors Tribe, Black, and

Michelman.41 In Winter's view, were the Court to take an activist

approach to resolving the problem of poverty, it might "ignite a social

and political revolution . . . and intrude on the affairs of the elected

37 457 U.S. at 217-18, 224-30.

38 1 08 S. Ct. 2481 (1988).

39 Id. at 2487.

40 198 U.S. 45 (1905). See notes 1-5 and accompanying text, supra.

41 See Winter, supra note 27, at 102.

62
branches in a fashion exceeding the judicial invalidation of the New

Deal before 1937." «

B. Possible Developments in the Future

In addressing the issues of poverty and economic inequality during

the next decade, the Court could move in sharply different directions.

Going down one road, it could subject statutes that adversely affect or

disproportionately burden the poor to some form of heightened Equal

Protection scrutiny that would make such statutes difficult to sustain.

The Court also could hold that the Constitution does require some

minimum level of social welfare benefits. Going down the alternative

road, however, the Court could continue to allow wide latitude to

legislatures in the areas of social and economic legislation. Further-

more, it could reaffirm the view, which it currently holds, that the

provision of state benefits, whether it be education, a guaranteed

income, or welfare in general, is the exclusive province of the represen-

tative branches of government.

It can be expected that the Court in the next decade will be asked

to reconsider whether statutes that disproportionately affect the poor

should receive some kind of heightened scrutiny under the Equal

Protection Clause. If the Court indicates that it is receptive to such

reconsideration, it almost certainly again will confront challenges to

state systems for financing public education. Virtually every state in the

country relies on local property taxes to support its public schools.43

Although these local property tax systems give local governments

considerable discretion with regard to both taxing and spending for

education, they obviously often result in different levels of per-pupil

expenditures in different school districts throughout each state. To

prevent these disparities, the Court might interpret the Equal Protection

Clause as requiring virtually all of the states to abandon their current

systems and to adopt uniform, statewide funding of education. Alter-

natively, however, the Court could reaffirm the approach it took in

Rodriguez to such an Equal Protection challenge and decide that,

regardless of its own views on the desirability of a particular approach

to educational funding, this issue is one for state and local governments

to decide for themselves. That a contrary decision would have such

Id. at 42-43.

See Rodriguez, 411 U.S. at 44. Another aspect of locally controlled education,

neighborhood schools, might also be subject to attack on the grounds that such

schools improperly separate students on the basis of wealth.

63
enormous consequences throughout the entire country might make the

Court less willing to use the Constitution to achieve reform in this area.

The Court in the next decade may also confront challenges to land-

use regulations on the grounds that they impermissibly discriminate on

the basis of wealth. For example, the Court might be asked to rule that

the Equal Protection Clause prevents zoning boards from placing

single-family homes in one neighborhood and apartments in another, or

from restricting residential lots to a minimum size. Such decisions, it

could be argued, have a discriminatory effect on the poor, even though

they do not reflect any discriminatory intent. Of course, the Court

would not be receptive to such Equal Protection claims if it chose to

adhere to its current view that wealth classifications are not suspect and

that, in any event, only intentional discrimination against a particular

group violates the Constitution.

If the Court changed its mind on these issues, a vast array of other

government activity would be subject to serious challenge under the Equal

Protection Clause. For example, challenges could be brought against fees

for government services, such as those for water, drivers' licenses, and

higher education.44 In addition, Maher45 and Harris 46 would be subject

to reconsideration, with arguments again being made that the Equal

Protection Clause requires the government to fund abortions for the poor.

In the welfare area, limits on the benefits that a family can receive, upheld

in Dandridge*1 might be challenged, and persons excluded from welfare or

other programs might claim an Equal Protection right to be included.48

Indeed, the range of possible challenges to government programs would be

unbounded. In a market-based economy, any government decision to limit

a particular service, or to refrain from providing it, will produce a disparate

impact on the basis of wealth, for those with more money are almost

always better able to purchase substitutes for government services than

those with less money.

If the Court decided that classifications having a disparate impact

on the basis of wealth warrant a stricter level of Equal Protection

44 See Douglas v. California, 372 U.S. 353, 361-62 (1963) (Harlan, J., dissenting). See

also id. at 361 ("Every financial exaction which the State imposes on a uniform basis

is more easily satisfied by the well-to-do than by the indigent.").

45 Maher v. Roe, 432 U.S. 464 (1977).

46 Harris v. McRae, 448 U.S. 297 (1980).

47 Dandridge v. Williams, 397 U.S. 471, 487 (1970).

44 See Edelman, The Next Century of Our Constitution: Rethinking Our Duty to the

Poor, 39 Hastings L.J. 1, 49 (1987) (arguing that total exclusion of families without

children and other classes of potential beneficiaries under the Aid to Families with

Dependent Children program is unconstitutional).

64
scrutiny, it could become involved in challenges to various aspects of the

tax laws. For example, most states impose sales taxes, which because of

their flat rates consume a larger percentage of income at lower

economic levels.49 Because income tax deductions for items such as

home mortgage interest similarly provide less of a benefit to those at the

lower economic level—and no benefit at all to those who must

rent—they too would be subject to challenge. Likewise, tax-deductible

charitable contributions might be challenged as disproportionately

advantageous to those with more money.

A final area where legislative classifications may have a disparate

impact on the basis of wealth is the criminal law.50 If the Court took the

position that laws that disproportionately burden the poor must receive

strict scrutiny, the logic of its approach would seem to suggest that only

prosecutions for the most serious of the crimes that the poor dispro-

portionately commit—those for which the state's interest in enforce-

ment is strong or compelling—could withstand heightened Equal

Protection scrutiny. For example, prosecutions for armed robbery might

be permitted, but not for crimes such as vagrancy or loitering. Similarly,

the logic of the approach under consideration would seem to suggest

that disparities in punishment between robbery, a crime associated with

the poor, and embezzlement, a crime associated with the well off, would

be unconstitutional.51 Most obviously, capital punishment for murder

might be challenged as unconstitutional on grounds that those who are

executed are disproportionately poor. While these examples might seem

unthinkable, and while the Court might refuse to adopt any of these

arguments, the logic of the arguments could not be faulted under the

view that laws that disproportionately burden the poor are inherently

suspect for Equal Protection purposes.

Aside from using the Equal Protection Clause, a second way that

the Court could intervene on behalf of the poor would be to declare, as

many academic commentators would like, that the Constitution, either

through the Ninth or Fourteenth Amendments, includes various unenu-

merated rights to government benefits.52 The Court, of course, could •

take this step simply by overruling its numerous cases holding that the

Constitution does not include provisions that create rights to govern-

mental benefits. To avoid the appearance of such a sudden, radical

49 See Douglas, 372 U.S. at 361-62 (Harlan, J., dissenting).

50 Id. at 362.

51 Cf. Skinner v. Oklahoma, 316 U.S. 535, 538 (1942) (statute providing sterilization for

larceny but not for embezzlement violates Equal Protection Clause).

52 See notes 27-32 and accompanying text, supra.

65
change, however, the Court might lay the groundwork for such an

approach by first taking some less radical steps.

For example, the Court could lend support to the notion that

welfare benefits are constitutional entitlements by imposing under the

Fourteenth Amendment's Due Process Clause increasingly stringent

procedural protections when government denies such benefits to a given

individual or changes the conditions of an existing program. The Court

already has held that the Due Process Clause requires a hearing before

termination of a welfare recipient's benefits,53 and the Court could go

even further in imposing due process requirements. Similarly, as already

discussed, the Court could strictly scrutinize statutory or regulatory

distinctions within such programs.54 Professor Michelman has sug-

gested how such judicial "tactical judgments" 55 might work:

[T]he courts might invalidate statutory eligibility conditions;

strictly construe delegations of authority to administrative

officers to fashion such conditions; impose exacting stan-

dards of procedural nicety in processing admission to and

exclusion from assistance; invalidate seemingly plausible clas-

sifications among potential eligibles; or create seemingly

inflexible requirements of equal expenditure for all program

beneficiaries, perhaps as a device for ensuring that at least the

minimum acceptable level of service will be attained for all.56

In Michelman's view, having given certain government programs in-

creased constitutional significance by such decisions, the courts could

build upon these decisions and ultimately conclude that a right to the

entitlement exists as such under the Constitution.57

If the Court decides to go down this road, one issue it will face is

which government benefits are constitutionally required. Among those

that have been suggested are education, housing, clothing, medical care,

and a guaranteed income.58 Other possibilities might include access to

parks or other recreational facilities or a certain level of police

protection.59 Obviously, the possibilities for constitutional entitlements

are limited only by the limits of one's imagination.

For any constitutionally based entitlement, the Court also would

"Goldberg v. Kelly, 397 U.S. 254 (1970).

54 Michelman, In Pursuit of Constitutional Welfare Rights, supra note 27, at 1013-14.

55 Id. at 1015.

56 Id. at 1013-14 (footnotes omitted).

57 Id. at 1015.

59 See, e.g., Michelman, supra note 30, at 677.

59 Cf. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (Constitution does noi

require federal or state governments to maintain law and order).

66
have to decide what level of the benefit the Constitution required and

whether providing it is a federal or state responsibility. For example, for

a constitutionally guaranteed minimum income, one commentator has

suggested that a "judicially manageable" minimum might be 60°7o of

the current poverty-level income.60 Although he considers such an

income less than ideal, it would increase welfare payments in half the

states.61 A higher minimum income, of course, would have a much

larger impact on the budgets of more states. Moreover, higher guaran-

teed incomes would reduce the incentive of those in low-wage jobs to

remain employed.62 A constitutional right to housing would present

similar problems. Professor Michelman, for example, suggests that the

Constitution might require shelter not only from the elements but also

from the "physical and psychological onslaughts of social

debilitation." 63 In determining how far a constitutional right extended,

just as in creating such entitlements initially, the Court would face the

difficulty of operating in an area without any explicit guidance, even in

general terms, from the Constitution.

By creating constitutional entitlements, a final issue the Court

inevitably would face is the constitutionality of legislative or adminis-

trative actions that limit or impair these rights. Presumably, if there

were a right to a minimum income, any government action that had the

effect of impairing this income would be subject to a high degree of

judicial scrutiny. It might be questioned, for example, whether the

Court would uphold the requirement, now present in many welfare

programs, that an able-bodied recipient work in order to receive welfare

payments. Similarly, if there were a right to education, the Court could

find itself deciding the circumstances under which a public school

system could expel a student. If there were a right to housing, it could

find itself deciding the circumstances under which a public landlord

could evict a tenant.

Of course, the Court could refuse altogether to go down the road

of recognizing constitutional rights to government benefits. That is, the

Court in the upcoming decade might continue to interpret the Consti-

tution as leaving responsibility for these questions with the representa-

tive branches of government. Relying on the text of the Constitution,

60 Edelman, supra note 48, at 52.

61 Id.

62 See id. at 51-52.

63 Michelman, supra note 30, at 677. For an approach to determining a constitutionally

required level of education, see Levin, Education As a Constitutional Entitlement: A

Proposed Judicial Standard for Determining How Much Is Enough, 1979 Wash.

U.L.Q. 703, 710-11.

67
the Court could conclude that the relationship of these benefits to the

Constitution itself, or even to the ability to participate in the democratic

process,64 is tenuous at best. The Court might also conclude that

principled judicial decisionmaking in this area is impossible.65

If the Court in the 1990's goes down the road of a more expansive

Equal Protection approach to laws that have a disproportionate impact

on the poor, the legal and political landscape in the year 2000 obviously

will differ from what it is today. This will be even more true, of course,

if the Court recognizes an unenumerated constitutional entitlement to

certain government benefits. At this point, however, it is uncertain

whether the Court will take these approaches, either partially or

completely. Instead, the Court may remain on the course it is now

charting, if often by closely divided votes. If the Court does so, the

issues discussed in this section probably will not be resolved in a judicial

forum. This will in no way preclude efforts to address the problems of

poverty and economic inequality, however. Instead, it will leave the

questions of how and when to address such problems with the

representative branches of government.

C. Potential Controversies for the 1990's

The following lists some of the issues in the area of wealth

discrimination and welfare rights that the Court may confront in the

next decade:

— Will government programs that disproportionately burden the

poor be invalidated under the Equal Protection Clause of the

Fourteenth Amendment?

— Will the Equal Protection Clause preclude the states from relying

on local property taxes to finance public education?

— Do zoning laws and school district boundaries that make it more

difficult for the poor to obtain the housing and education of their

choice violate the Equal Protection Clause?

— Will the Equal Protection Clause require the government to waive

fees, tuition expenses, and other charges for public services?

— Will sales taxes and other flat rate taxes be found to be unconsti-

tutionally regressive under the Equal Protection Clause?

— Will statutes providing harsher punishment for crimes associated

with the poor than for comparable crimes associated with those

who are not poor be found to violate the Equal Protection Clause?

64 See notes 30-32 and accompanying text, supra.

65 See Boric, supra note 27, at 700-01 (suggesting there is little reason to find a

constitutional right to welfare without finding a similar right to national defense).

68
— Will the Ninth or Fourteenth Amendments be interpreted to

require the government to provide a minimum level of education,

housing, medical care, income, or other welfare benefits?

— If there is a constitutional right to a minimum level of certain

benefits, how will the Court determine what that minimum level

should be?

— If there is a constitutional right to a minimum level of education,

will a school system be able to expel a student for disruptive

behavior or for misconduct, such as drug-dealing?

69
7. Will Public Initiatives to Strengthen Private

Education Run Afoul of the Religion Clauses of

the First Amendment?

A. Background

Testifying before a congressional committee in 1981, prior to his

appointment to the federal bench, then-Professor Antonin Scalia

commented upon the inconsistencies in the Supreme Court's Establish-

ment Clause jurisprudence:'

[T]he chaos is demonstrated easily enough by a recitation of

the Supreme Court's commandments to the States in the aid

to education field: Thou mayest provide bus transportation to

and from school for parochial school students;2 but thou

shalt not provide bus transportation to and from field trips.3

Thou mayest furnish textbooks for use in sectarian schools,4

but thou shall not provide other instructional materials and

equipment, such as maps.5 (Senator Moynihan has raised the

question, 'What do you do with a map that's in a textbook?';

the Supreme Court has not yet addressed that fine

issue.) . . . [T]hou shalt not, in certain circumstances at

least, permit parents an income tax remission for tuition

payments to schools whose function consists in part of

sectarian education.6 I envision these commandments not as

engraved upon tablets of stone but as scribbled on one of

those funny pads that children use, with a plastic sheet on top

that can be pulled up to erase everything and start anew.

The Establishment Clause of the First Amendment states that

"Congress shall make no law respecting an establishment of religion."

One possible reading of the Establishment Clause is that Congress

establishes religion when it either discriminates among religions (such as

by setting up an official state church) or coerces the exercise of religion.

1 TUition Tax Credits: Hearings on S. 550 Before the Subcomm. on Taxation and Debt

Management of the Senate Comm. on Finance, 97th Cong., 1st Scss., Part I, 546-65

(1981) (statement of Antonin Scalia) (citations included; format modified).

2 Everson v. Board of Education, 330 U.S. 1 (1947).

3 Wolman v. Walter, 433 U.S. 229 (1977).

4 Board of Education v. Allen, 392 U.S. 236 (1968); Meek v. Pittenger, 421 U.S. 349

(1975).

5 Wolman, 433 U.S. 229.

6 Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756

(1973).

70
The Supreme Court has interpreted the clause more broadly, however, to

preclude governmental sponsorship or financial support for religion in

general.7 Employing a test first enunciated in Lemon v. Kurtzman,8 the

Court usually determines whether the government has "established"

religion by asking whether the government's action (1) has a secular

purpose, (2) has a principal or primary effect that neither advances nor

inhibits religion, and (3) is capable of administration without fostering

an excessive government entanglement with religion. If any prong of this

inquiry produces a negative answer, the Supreme Court usually con-

cludes that the governmental action violates the Establishment Clause.9

In Lemon, the Court held invalid a Pennsylvania statute providing

for the "purchase" of specified "secular educational services" for

non-public schools. The statute reimbursed non-public schools for

teachers' salaries, textbooks, and instructional materials. The statute

also required each school to establish an accounting procedure that

would separately identify secular and non-secular expenditures, and it

permitted reimbursement only of the former. Acknowledging that the

statute had a secular legislative purpose, which was to assure a quality

education to private school students, the Court nevertheless held that

"the cumulative impact of the entire relationship arising under the

statute . . . involve[d] excessive entanglement between government

and religion." 10 It found that the "restrictions and surveillance neces-

sary to ensure that teachers play a strictly non-ideological role [gave]

rise to [unconstitutional] entanglements between church and state." 11

The Court did not reach the effects prong of the Lemon test.

Everson v. Board of Education 12 is the first case in which the

Court addressed the question of what constitutes unconstitutional aid

to private education. In Everson, a 5-4 decision, the Court upheld a

state statute that provided reimbursement to all parents, including those

with children in religious schools, for bus transportation of their

children to and from school. The Court found that the statute at issue

did not breach the "wall of separation," as it required no discrimination

7 Lemon v. Kurtzman, 403 U.S. at 612-13 (1971); Walz v. Tax Comm'n, 397 U.S. at 668

(1970); Everson, 330 U.S. at 8-18.

8 403 U.S. 602 (1971).

9 While the Court continues to adhere to the Lemon test in virtually all establishment

clause cases, it has called the test into question. In Marsh v. Chambers, 463 U.S. 783

(1983), for example, the Court upheld the constitutionality of state-paid legislative

chaplains by relying on history rather than on the Lemon test.

10 Lemon, 403 U.S. at 614.

"Id. at 620-21.

12 330 U.S. 1 (1947).

71
between believers and non-believers or among different religions, and as

it did not provide for direct aid to religious schools. Writing for the

majority, however, Justice Black suggested that the decision went to the

"verge" of forbidden territory under the Religion Clauses.13

Twenty-one years later, in Board of Education v. Allen,1* the Court

relied on Everson in holding that a statute that provided for the

purchase and loan of textbooks to both public and parochial school

students was not a law "respecting an establishment of religion." Justice

Black, in dissent, argued that Everson was distinguishable because the

statute in question in that case provided aid to the child, not to the

school. In Black's view, the "direct" aid to the parochial school at issue

in Allen violated the Establishment Clause.

The distinction between direct and indirect aid that Justice Black

tried to make in Allen today is an important indicator of the constitu-

tionality of state aid programs that include private, religious schools.

For example, in Mueller v. Allen,15 a 5-4 decision, Justice Rehnquist's

majority opinion noted that "all but one of [the Court's] recent cases

invalidating state aid to parochial schools have involved the direct

transmission of assistance from the State to the schools themselves." 16

In Mueller, the Court held that a Minnesota statute allowing tax

deductions for tuition, textbook, and transportation expenses did not

violate the Establishment Clause.17 Similarly, the Court in Witters v.

Washington Dept. of Services for the Blind,18 unanimously held that the

Establishment Clause did not preclude a state from extending assistance

under a vocational rehabilitation assistance program to a blind person

studying to become a clergyman at a Christian college.

It has proven more difficult for direct aid to parochial schools to

pass constitutional muster. In Aguilar v. Felton,19 another 5-4 opinion,

13 Id. at 16.

M 392 U.S. 236 (1968).

15 463 U.S. 388 (1983).

16 Id. at 399.

17 Tin years before Mueller, however, the Court had decided in Committee for Public

Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), that tax benefits to

parents of children attending private schools were unconstitutional. The Court in

Mueller distinguished Nyquist on two grounds. First, it concluded, without much

elaboration, that Mueller, unlike Nyquist, involved a "genuine tax deduction."

Second, it found that, unlike the tax deduction in Nyquist, the Minnesota deduction

for educational expenses applied to all parents, not just those who were sending their

children to non-public schools. But see 463 U.S. at 405 (Marshall, J., dissenting)

(arguing that parents of children in religious schools received almost all the benefit)

18 471 U.S. 1002(1986).

19 473 U.S. 402 (1985).

72
the Supreme Court held unconstitutional New York City's use of federal

funds to pay the salaries of public school employees who taught

remedial courses and provided guidance services in parochial schools.

Without deciding that the program had the primary effect of aiding

religion, the Court concluded that the excessive entanglement between

church and state that resulted from the state's need to administer the

program was an insurmountable constitutional barrier.

On the same day it decided Aguilar, the Court also held in School

District of the City of Grand Rapids v. Ball20 that a school district may

not finance, under a shared time and community education program,21

remedial and enrichment classes for non-public school students to be

held in non-public school classrooms. The Court held that such a

program would impermissibly promote religion in three ways. First, it

reasoned, state-paid instructors, influenced by their sectarian surround-

ings, might either subtly or overtly indoctrinate the students. Second,

the programs promoted, in the Court's view, a symbolic union between

church and state. Third, the programs subsidized "the religious func-

tions of the parochial schools by taking over a substantial portion of

their responsibility for teaching secular subjects." 22 For these reasons,

the Court found that the shared time and community education

programs had the "primary or principal effect" of aiding religion.23

The Court, however, has upheld some forms of direct aid to

parochial schools. In Roemer v. Board of Public Works of Maryland,1*

a plurality opinion, the Court permitted the state to provide financial

aid, in the form of non-categorical grants, to religious colleges on an

equal basis with private secular colleges. The state statute provided that

the aid could not be used for sectarian purposes.25 In upholding the

Maryland statute, the Court reasoned in part that college-age students

are less impressionable and better able to distinguish church from state

than are students of more tender years. The Court used similar

20 473 U.S. 374 (1985).

21 The shared time program provided classes during the regular school day that were

designed to supplement the student's state-mandated "core curriculum." The shared

time teachers were full-time employees of the public schools. The community

education program offered voluntary classes after school. Its teachers were employed

for the most part by the school in which the classes were taught.

22 Ball, 473 U.S. at 397.

23 Id. at 39-7.

"426 U.S. 736 (1976).

"See also Hunt v. McNair, 413 U.S. 734 (1973) (South Carolina statutory scheme for

aiding colleges by issuance of revenue bonds for projects, appropriately limited to

exclude facilities for sectarian study or religious worship, does not violate the

establishment clause).

73
reasoning in Tilton v. Richardson,26 decided the same day as Lemon, in

rejecting an Establishment-Clause challenge to all but one section of the

Higher Education Facilities Act of 1963. The plurality distinguished

primary and secondary education, which have the inculcation of

religious values as one of their purposes, from higher education, in

which this purpose is much less apparent. The Court was thus able to

distinguish Lemon.21

Two other noteworthy Establishment Clause cases concerning aid

to private schools are Meek v. Pittenger28 and Wolman v. Walter™ In

both cases, the Court permitted public funds to be used to purchase

secular textbooks for loans to non-public school students.30 In Wolman,

the Court also allowed the use of public funds to be used to provide

standardized test and scoring services to non-public schools. Meek and

Wolman disagreed, however, on the use of public funds to provide

non-public school students with certain health care benefits. Wolman,

which upheld such benefits, distinguished Meek, noting that the

benefits in the latter case were provided on the premises of the religious

school. In both cases, the Court prohibited the use of public funds to

purchase instructional materials and equipment other than books. In

Wolman, moreover, the Court prohibited the use of public funds for

field trip transportation.

Many commentators have criticized the Supreme Court's Estab-

lishment Clause jurisprudence.31 As cases like Meek and Wolman attest,

it is difficult to find a principled consistency in the Court's cases.

Rather, each case seems to be decided on its own unique factual

circumstances. Indeed, the Supreme Court itself has acknowledged the

truth of this criticism.32 This lack of consistency creates uncertainty

26 403 U.S. 672 (1971).

27 See also L. Tribe, American Constitutional Law 1177-78 ("A program's facial

neutrality alone is insufficient where impressionable children are concerned—

certainly in the public schools, and perhaps in other spheres as well.").

28 421 U.S. 349 (1975).

29 433 U.S. 229 (1977).

10 In each case, the Court relied partly on the distinction between aid to a student and

aid to an institution in order to distinguish the textbook loan provision from other

provisions of the statutes.

31 See, e.g., M. Howe, The Garden and the Wilderness: Religion and Government in

American Constitutional History 12 (1965); Comment, Mueller v. Allen: Tuition Tax

Relief and the Original Intent, 1 Harv. J.L. & Pub. Policy 551 (1984).

32 Writing for the majority in Lemon, Chief Justice Burger took the unusual step of

stating that "(c)andor compels acknowledgement . . . that we can only dimly

perceive the lines of demarcation in this extraordinarily sensitive area of constitu-

tional law." Lemon, 403 U.S. at 612.

74
among the public and, more importantly, among legislators who believe

that the public interest warrants measures to strengthen private educa-

tion, much of which is provided by religious institutions. Ultimately, it

seems, the Court must either decide that state-provided assistance to

such schools is constitutionally permissible or that it is not, for its effort

to straddle the fence has produced neither a coherent body of law nor

the direction that legislatures require if they are to act responsibly.

B. Possible Developments in the Future

The many 5-4 and plurality decisions in the Court's Establishment

Clause jurisprudence, and the obvious tensions in its sometimes difficult-

to-reconcile decisions, suggest that further developments, possibly even

substantial ones, are likely to occur in this area. While the Court could

continue the case-by-case approach produced by the Lemon three-pronged

test, with its emphasis on purpose, effect, and entanglement,33 it also could

choose during the next decade to move more aggressively in either of two

competing directions. Moving in one direction, the Court could become

more tolerant of aid to religious schools, permitting even direct aid to pass

constitutional muster. Moving in the opposite direction, the Court could

become less tolerant of such aid, rejecting, as violative of an unyielding

"wall" between church and state, even indirect aid. The path that the

Supreme Court takes in this area may very well change private education as

we know it today.

During the next decade, therefore, the Court may directly confront

this choice by deciding that the Lemon test, which is responsible for its

largely ad hoc approach in the school aid cases, should be reconsidered.

There already is much criticism of the Lemon test within the Court

itself. Justice White, who dissented in Lemon, continues to disagree

strongly with the Court's method of deciding Establishment Clause

issues as they pertain to religious schools.34 In Wallace v. Jaffree 35 and

subsequent cases,36 Chief Justice Rehnquist also has advocated both a

reconsideration of the Lemon test and the adoption of a more historical

approach that would take the original meaning of the Establishment

33 See notes 7-9 and accompanying text, supra, discussing the test in detail.

34 See, e.g.. Ball, 473 U.S. at 400, (White, J. dissenting) ("I have long disagreed with the

Court's interpretation and application of the Establishment Clause in the context of

state aid to private schools.").

35 472 U.S. 38 (1985).

36 See, e.g., Ball, 473 U.S. at 400-01 (Rehnquist, J. dissenting).

75
Clause into consideration.37 Justice O'Connor, while not explicitly

critical of the Lemon test, seems more inclined to allow a wider variety

of state initiatives with respect to religious schools to pass constitutional

muster.38 Nevertheless, other Justices on the Court continue to apply

the Lemon test strictly; indeed, these Justices, who favor a strict "wall

of separation" between church and state, probably would support

abandoning the Lemon test only if the Court adopted an approach that

would hold invalid even indirect aid to religious schools.

Those who wish to lead the Court down the road toward a strict

wall of separation may argue that the constitutional future of even

indirect aid to sectarian schools has become somewhat uncertain in light

of Grove City College v. Bell39 and the "Civil Rights Restoration Act of

1987," 40 which reversed a part of the Grove City holding. In the part of

the decision that remains the law, Grove City interpreted Title IX of the

"Education Amendments of 1972" 41 to treat financial aid to students

attending educational institutions as aid to the institutions themselves.

The Civil Rights Restoration Act reversed the part of Grove City that

limited Title IX regulation only to the part of the educational institution

receiving the aid. Taken together, at least in the regulatory context,

Grove City and the Civil Rights Restoration Act thus stand for the

proposition that government-provided student assistance, no matter

how limited, really constitutes government aid for the entire institution

the student is attending. If the Court decides to use the same analysis in

its Establishment Clause cases, it may conclude in the future to

37 A historical approach to the Establishment Clause would almost certainly allow more

state aid to parochial education to pass constitutional muster. See R. Cord,

Separation of Church and State: Historical Fact and Current Fiction 15 (1982)

("There appears to be no historical evidence that the First Amendment was intended

to preclude Federal governmental aid to religion when it was provided on a

nondiscriminatory basis. Nor does there appear to be any historical evidence that the

First Amendment was intended to provide an absolute separation or independence of

religion and the national state."). See also M. Malbin, Religion, Liberty, and Law in

the American Founding 13 (AEI Reprint 1981) ("[T]he establishment clause was not

meant to prohibit truly nondiscriminatory forms of aid to religion.").

3* In Ball, 473 U.S. 374, for instance, Justice O'Connor, without mentioning Lemon but

nevertheless seeming to apply the Lemon test, dissented from the part of the majority

opinion holding the shared time program unconstitutional but agreed with the

majority that the community education program was unconstitutional. Id. at

398-400 (O'Connor, J. dissenting).

39 465 U.S. 555 (1984).

40 Pub. L. No. 100-259, 20 U.S.C.A. § 1687 et seq. (Supp. II, 1988).

41 Pub. L. No. 92-318, 20 U.S.C. § 1681 et seq. (1982).

1%
invalidate such aid when the institution the student is attending is a

religious school.42

Even if the Court holds that there is no Establishment Clause

violation in such indirect aid, a significant question under the First

Amendment's Free Exercise Clause remains. A religious educational

institution that is forced to submit to the Civil Rights Restoration Act

could argue that the Act imposes unconstitutional conditions to the

extent that it requires the institution to violate its religious tenets.43 Were

the Court to agree, religious institutions would be exempt from the

non-discrimination requirements that apply to other institutions that

indirectly, through student aid, receive federal financial assistance. This

would have the effect of making more federal money available to

private, religious schools that might otherwise decline even indirect

federal assistance to avoid having to comply with federally mandated

requirements.

Of course, before deciding this free exercise issue, the Court would

have to consider whether § 908(B)(4) of the Act itself exempts religious

educational institutions from the Act's remaining strictures. This

section exempts from Title IX "any operation of an entity which is

controlled by a religious organization if the application of [Title IX]

would not be consistent with the religious tenets of such organization."

The scope of this exemption, however, is not altogether clear. In 1984,

the President of the American Association of Presidents of Independent

Colleges and Universities testified before the Congress that:

[M]any colleges and universities which have strong institu-

tional commitments to religiously based moral values are not

protected by this exemption, because they are not formally

controlled by a religious organization. Even for controlled

institutions, the exemption leaves the burden of proof on the

college to convince the Department of Education that there is

in fact a specific tenet of a religious organization at stake in

a particular situation, and that it conflicts with the applica-

tion of some portion of the law or regulations.44

Along these lines, a specific issue the Court may confront during

the next decade is whether single-sex religious colleges may continue to

42 Roemer, 426 U.S. 736, which upheld direct aid in limited circumstances, could be

distinguished because it would be virtually impossible for an educational institution

to prove that no student used his financial aid for sectarian purposes.

43 See Civil Rights Act of 1984: Hearings on S. 2568 Before the Subcomm. on the

Constitution of the Senate Comm. on the Judiciary, 98th Cong., 2nd Sess. 42 (1984)

(statement of Bruce Hafen).

44 Id. at 84-85.

77
receive federal aid in light of the federal government's countervailing

policy against sex discrimination in Title IX, which was specifically

enacted to combat sex discrimination in educational institutions. In

Bob Jones University v. United States *s in which an institution's

religious belief in separation of the races confronted an IRS regulation

that denied tax exemptions to institutions that racially discriminated,

the Court held that the government's interest in preventing race

discrimination would prevail. The Court, of course, could decide to pay

more deference to religious belief when sex discrimination, which has

never been accorded strict scrutiny by a majority of the Court,46 is

involved. Absent some such distinction, a single-sex religious college

would either have to abide by the government's regulation or survive

without federal aid.

Other issues that are likely to surface again during the next decade

concern the constitutionality of tax deductions for private school

expenses and tuition tax credits. To date, the Court has considered these

issues on a case-by-case basis, apparently without any overarching

philosophy. To the extent that these benefits have been indirect and

available to parents of all private school students, not just religious

school students, they have generally been considered constitutional.

Nevertheless, the Court's opinions in this area often have been closely

divided.47 A Court that believed in an impregnable wall of separation

between church and state almost certainly would try to retreat from

cases such as Mueller, which upheld tax deductions for parents,

including those with children in religious schools. On the other hand, a

Court that took a less expansive view of the Establishment Clause, one

more tied to a concern that government not favor one religion over

another, would be more likely to uphold such non-discriminatory

deductions and credits.

A Court following the latter approach probably would also uphold

a governmental program that distributed vouchers allowing parents to

choose the schools their children would attend. A Court zealously

patrolling the wall of absolute separation for any breach, however,

would be more likely to hold such a program unconstitutional. Voucher

programs necessarily involve some interaction between religious schools

and the state. Under the Court's current precedents, it is unclear how

the Court would decide this issue. While a voucher program could be

45 461 U.S. 574 (1983).

44 Currently the Court employs "intermediate" scrutiny in sex discrimination cases. See

Craig v. Bonn, 429 U.S. 190 (1976). But cf. Frontiero v. Richardson, 411 U.S. 677

(1973) (plurality opinion) (arguing for strict scrutiny standard).

47 See, e.g., Mueller, 463 U.S. 388.

78
classified as involving only indirect aid, such a program nevertheless

might fail the effects or the excessive entanglement prong of the Lemon

test. The effects prong might be violated if the number of students using

their vouchers in parochial schools prompted the Court to conclude that

the program had the primary effect of advancing religion. The dissent

in Mueller made such an argument. The excessive entanglement prong

might be violated if the voucher program required a religious school to

set up accounting procedures in order to satisfy the government that it

was using the money in a manner that the government deemed

appropriate. This was the basis of the Court's decision in Aguilar,

which held New York City's Title I program unconstitutional.

The Court in the next decade most likely will confront other First-

Amendment issues, such as whether it is constitutional to allow student

religious groups "equal access" to public schools.48 As defined by several

courts, the equal access question involves a conflict between Establishment

Clause prohibitions on the one hand and freedom of speech, free exercise

of religion, and freedom of association on the other. Widmar v. Vincent 49

raised the issue in the context of a state university that denied only religious

groups the right to meet on campus. The Court held that so long as the

university was providing a public forum, its interest in not violating the

Establishment Clause was outweighed by the free speech rights of the

students in the religious groups.

In the context of primary and secondary schools, however, three

different courts have held that the Establishment Clause outweighs the

competing constitutional interests. In Brandon v. Board of Education,™

decided prior to Widmar, the Second Circuit held that a high school was

not a public forum and that the students' right to free exercise of

religion could not overcome the Establishment Clause's proscription

against the mingling of church and state. In Lubbock Civ. Lib. Union

v. Lubbock Ind. School Dist.,Si the Fifth Circuit similarly held that a

school district's policy of permitting students to voluntarily gather for

religious purposes violated the Establishment Clause in that it did not

have a secular purpose. Bender v. Williamsport Area School Dist.,52

48 While this issue does not involve "aid" to education, the Court will nevertheless face

a similar choice in terms of direction. The Court could take an Establishment Clause

approach that permits efforts to accommodate such groups or it could insist on a

rigid wall of separation between church and state that would make such accommo-

dation unconstitutional.

49 454 U.S. 263 (1981).

50 635 F. 2d 971 (2d Cir. 1980).

51 669 F. 2d 1038 (5th Cir. 1982).

52 741 F. 2d 538 (3rd Cir. 1984), vacated on other grounds, 475 U.S. 534 (1986).

79
however, is the most interesting of the three cases, for it is the only one

that attempts to distinguish Widmar. Reasoning that younger students

are more impressionable than college-age students, the Third Circuit

concluded that the Establishment Clause prohibits a high school from

providing a forum for religious groups to meet during activity periods.

Although it acknowledged that the First-Amendment interests of the

student groups were implicated in the case, the court concluded that

these interests had to yield because the school district's policy violated

the effects and entanglement prongs of the Lemon test.

With regard to all the issues discussed, the Court's approach

during the upcoming decade will depend in large part on how it

perceives the basic purpose of the First Amendment's Establishment

Clause. If the Court views the First Amendment as mandating a rigid

wall between church and state, it will likely be more receptive to

Establishment Clause challenges and less receptive to free exercise

challenges, especially when the two clauses appear to be in conflict.

Under such a jurisprudence, private, religious education would suffer.

Without state aid in some form, religious schools might become too

expensive for parents to consider them a viable alternative to the public

schools, and this could force many of these schools to close. If, on the

other hand, the Court rejects the necessity of such a rigid wall, it will

likely be less willing to find Establishment Clause violations in non-

discriminatory programs of aid to private, religious schools and more

willing to uphold free exercise challenges to governmental restrictions on

religious institutions. This view of the First Amendment would basically

leave to the representative branches of government the questions of

whether and to what extent public funds should be spent on private,

religious education. Under this approach, private education would

likely survive as a viable alternative to public education, for many states

undoubtedly would welcome the opportunity to experiment with vari-

ous types of aid.

C. Potential Controversies for the 1990's

The following lists some of the First Amendment issues concerning

aid to private, religious schools that the Court may confront during the

next decade:

— Should the Court abandon the Lemon three-pronged test in favor

of an approach that allows even direct aid to religious schools to

pass constitutional muster under the First Amendment's Estab-

lishment Clause?

80
Should the Court abandon the Lemon three-pronged test in favor

of an approach that views the First Amendment's Establishment

Clause as prohibiting even indirect aid to religious schools?

In light of Grove City and the Civil Rights Restoration Act, does

financial aid to students attending parochial schools constitute

direct aid to those schools and thereby violate the First Amend-

ment's Establishment Clause?

Does the Civil Rights Restoration Act violate the First Amend-

ment's Free Exercise Clause by requiring some religious educa-

tional institutions to compromise their religious beliefs in order for

their students to receive federal financial aid?

Do the single-sex admissions policies of religious educational

institutions that receive federal aid impermissibly conflict with the

prohibition against sex discrimination in Title IX?

Will indirect aid to religious schools, such as tuition tax credits and

tax deductions for parents of children attending those schools,

violate the First Amendment's Establishment Clause?

Can a state adopt a tuition voucher program, applicable to all

schools, including religious ones, without violating the Establish-

ment Clause?

Does the Establishment Clause prohibit the public schools from

recognizing the free exercise interests of student religious groups

wishing to use school premises for their activities?

81
8. Will the Free Exercise Clause of the First

Amendment Be Interpreted to Require Special

Accommodation of Religious Practices in an Era

of Expanding Government?

A. Background

"The problem of the moment, as I see it," wrote the director of

religious and civil liberty of the National Council of Churches four

years ago, "is no longer resisting the encroachment of expansionist

churches, but resisting the encroachment of expansionist

government." 1 Professor Michael McConnell also has commented

upon this development, observing that it has occurred even though the

two religion clauses 2 of the First Amendment were adopted as limita-

tions on an already limited government:

The growth of the modern welfare-regulatory state has vastly

increased the occasions for conflict between government and

religion. The government has entered areas formerly private

and often religious, such as education and charity ('welfare'),

and has enacted regulations affecting religious institutions,

such as labor and antidiscrimination laws.3

Thus, while the intersection of government and religion has sometimes

evoked charges of an establishment of religion and calls to keep church

out of state, the Supreme Court in this "age of the affirmative state" *

increasingly is confronted with claims that the free exercise of religion

must be protected by keeping state out of church.

The prototypical case for such a free exercise claim involves a law

of general application that is facially neutral toward religion but that

conflicts nevertheless with the exercise of the claimant's religion. In

such a case, the claimant typically asserts that the Free Exercise Clause

entitles him to an exemption from the law's otherwise generally

applicable requirements. For example, an Amish employer may seek a

free exercise exemption from the requirement that employers withhold

and pay to the government social security taxes on wages.5 Similarly, a

1 Kelley, Uncle Sam: Church Inspector, 79 Liberty 3, 5 (May/June 1984), reprinted in

Issues in Religious Liberty: Hearings Before the Subcomm. on the Constitution of

the Senate Comm. on the Judiciary 98th Cong., 2d Sess. 783, 785 (1984).

2 The First Amendment provides that "Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof . . . ."

3 McConnell, Accommodation of Religion, 1985 Sup. Ctl Rev. 1, 23.

4 L. Tribe, American Constitutional Law 1204 (2d ed. 1988).

5 United States v. Lee, 455 U.S. 252 (1982) (rejecting free exercise challenge).

82
Christian school that refuses to rehire a pregnant teacher may seek an

exemption from sex-discrimination laws if its religious principles require

that a mother be at home with young children.6 Claims of this kind are

becoming more numerous because of the dramatic expansion of

government that Professor McConnell noted.

To be sure, government sometimes attempts to minimize the

conflict between law and the exercise of religion by providing exemp-

tions for religious believers. For instance, government has accommo-

dated religion by exempting religious institutions from some anti-

discrimination laws,7 by prohibiting employers from firing employees

for Sabbath observance,8 and by exempting religious conscientious

objectors from military service.9 These efforts, however, have sometimes

resulted in court decisions invalidating the accommodation under the

Establishment Clause, the First Amendment's other religion clause.10

Such decisions are not altogether surprising, given that current Estab-

lishment Clause jurisprudence makes the tension between the two

religion clauses almost inevitable. As Chief Justice Rehnquist has

remarked, "[b]y broadly construing both Clauses, the Court has

constantly narrowed the channel between the Scylla and Charybdis

through which any state or federal action must pass in order to survive

constitutional scrutiny.""

The decisions invalidating legislative efforts at accommodation

reflect an approach to the Free Exercise Clause that is animated by a

concern about transgressing the Establishment Clause. This approach,

often called "strict neutrality" and associated with Professor Philip

Kurland of the University of Chicago,12 views the religion clauses

together "as a single precept that government cannot utilize religion as

6 See Dayton Christian Schools, Inc. v. Ohio Civil Rights Comm'n, 766 F.2d 932 (6th

Cir. 1985), rev'd on procedural grounds, All U.S. 619 (1986).

1 E.g., Civil Rights Act of 1964, Title VII, § 702, 42 U.S.C. § 2000e-l (1982)

(exemption from rules on employment discrimination on basis of religion). *

8 E.g., Conn. Gen. Stat. § 53-303e(b) (1985).

9 E.g., Universal Military Training and Service Act of 1948, § 60), 50 U.S.C. App.

§ 4560) (1982).

"Compare Estate of Thornton v. Caldor, Inc., 412 U.S. 703 (1985) (invalidating statute

protecting employees from firing for Sabbath observance) with Corporation of the

Presiding Bishop v. Amos, 107 S. Ct. 2862 (1987) (upholding § 702 of Title VII at

least respecting non-profit activities); see also Welsh v. United States, 398 U.S. 333,

356-61 (1970) (Harlan, J., concurring in the result) (arguing that limiting conscien-

tious objector status to religious objectors violated Establishment Clause).

"Thomas v. Review Board, 450 U.S. 707, 721 (1981) (Rehnquist, J., dissenting).

12 P. Kurland, Religion and the Law: Of Church and State and the Supreme Court

(1962); see also Kurland, The Irrelevance of the Constitution: The Religion Clauses

of the First Amendment and the Supreme Court, 24 Vill. L. Rev. 3 (1978-79).

83
a standard for action or inaction because these clauses prohibit

classification in terms of religion either to confer a benefit or to impose

a burden." 13 "Strict neutrality" does not prohibit neutral applications

of law that may indirectly further religion. It does, however, prohibit

exclusively religious exemptions from laws of general applicability, and

does not require government to provide exemptions that would be

permissible. A strict neutrality approach is evident in Justice Harlan's

view that the statutory grant of a draft exemption only for conscientious

objectors with religious objections to military service violated the

Establishment Clause,14 and in his view that a state is permitted but not

constitutionally compelled to provide unemployment benefits to indi-

viduals who leave employment because their job requirements conflict

with their religious beliefs.15

A conflicting strain of free exercise doctrine, which sometimes

requires government to make an effort at accommodation, also is

evident in the Court's opinions. Unlike the neutrality approach, this

alternative approach treats religion as a preferred value under the First

Amendment. When governmental action, even under a neutral law,

coerces an individual into acting contrary to his sincere religious beliefs,

either by forcing him to act or by prohibiting him from acting, the

government under this approach generally must accommodate the

individual unless it can demonstrate that the action at issue advances a

compelling governmental interest through the least restrictive means.

The Court often, but not always, has seemed to prefer the accom-

modation approach over the strict neutrality approach. In Sherbert v.

Verner,*6 for example, the Court, over Justice Harlan's dissent, held that

the Free Exercise Clause prohibited the state from denying unemployment

benefits to a Seventh-Day Adventist who refused to work on Saturday. The

Court concluded that the unemployment benefits law, although neutral on

its face, improperly forced the complainant to choose between forfeiting

unemployment benefits by following her religious precepts and abandon-

13 P. Kurland, Religion and the Law, supra note 12, at 18.

14 Welsh v. United States, 398 U.S. at 361 (Harlan, J., concurring) ("To conform with

the requirements of the First Amendment's religious clauses as reflected in the

mainstream of American history, legislation must, at the very least, be neutral.").

'.' Sherbert v. Vemer, 374 U.S. 398, 422 (1963) (Harlan, J., dissenting) (since certain

non-religious exemptions were available, "it would be a permissible accommodation

of religion for the State, if it chose to do so, to create an exception to its eligibility

requirements for persons like the appellant") (emphasis in original). See Welsh, 398

U.S. at 359 n.9 (Harlan, J., concurring) (exemptions must be "sufficiently broad to

be religiously neutral").

16 374 U.S. 398 (1963).

M
ing those precepts to remain employed. In the Court's view, this was

equivalent to fining the complaint for her Saturday worship.17 The Court

added that its decision did not foster the establishment of religion because

it merely put Sabbatarians on an equal footing with Sunday worshippers,

whom state law exempted from work on those occasions when the law

permitted Sunday work.18

The Court, however, has sometimes avoided the Establishment

Clause concern by rejecting the claim that the Free Exercise Clause

requires an exemption for the complainant. In some cases, the Court

has held that compelling governmental interests justify the restrictions

on the complainant's exercise of religion. For example, pointing to the

government's strong interest in providing for the public welfare through

social security, the Court has upheld the requirement that an Amish

farmer pay employers' social security taxes and withhold such taxes

from his Amish employees.19 Similarly, the Court has refused to require

an exemption from minimum wage requirements for workers at con-

cerns operated by religious foundations.20

Recently, the Court rejected a Native American's claim that the

Free Exercise Clause prohibited a state from using his daughter's social

security number in the AFDC program. The claimant argued that the

uniqueness of the number and his daughter's inability to control the

government's use of it would "rob [her] spirit" and "prevent her from

attaining greater spiritual power." 21 The Court held that an individual

cannot require government to conduct its internal affairs consistently

with the individual's beliefs.22 A plurality also rejected the Native

American's argument that the First Amendment precludes the state

from requiring an AFDC applicant to furnish a social security number

as a condition of receiving benefits.23 Invoking a neutrality approach,

the plurality distinguished Sherbert and Thomas on the ground that the

17 Id. at 404.

11 Id. at 409; see id. at 406 (discussing exemption for Sunday worshippers). In two more

recent cases, the Court has reaffirmed Sherbert by requiring a free-exercise exemption

from the general eligibility requirements of unemployment compensation plans. In

both cases, the Court rejected the Establishment Clause argument by quoting

Sherbert with little additional discussion. See Hobbie v. Unemployment Appeals

Comm'n, 107 S. Ct. 1046, 1051 (1987) (Seventh-Day Adventist; Saturday work);

Thomas v. Review Board, 450 U.S. at 719-20 (Jehovah's Witness; manufacture of

goods for military use).

"United States v. Lee, 455 U.S. 252 (1982).

20 Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985).

21 Bowen v. Roy, 476 U.S. 693, 696 (1986).

22 Id. at 699.

2i Id. at 701-12 (opinion of Burger, C.J., joined by Powell and Rehnquist, JJ.).

85
unemployment programs in those cases treated religious reasons for

leaving work less favorably than non-religious reasons, and thus

displayed "hostility, not neutrality, towards religion." 24 Since the

AFDC statutes were neutral with regard to religion, a free exercise

exemption was unnecessary.25 Dissenting from this part of the opinion,

Justice O'Connor argued that, in view of Sherbert and Thomas, the

Native Americans could not be compelled to furnish a social security

number in violation of their religious beliefs. Tacitly rejecting the

plurality's strict neutrality rationale, Justice O'Connor concluded that

the government "must accommodate a legitimate free exercise claim

unless pursuing an especially important interest by narrowly tailored

means." 26

Exactly what Justice O'Connor meant by a "legitimate free

exercise claim" became clearer in a majority opinion she more recently

authored rejecting a free exercise challenge to a Forest Service plan to

build a road through national forest grounds that certain Native

American tribes used for religious ceremonies.27 Although recognizing

that the First Amendment sometimes requires government to accom-

modate religion, the Court held that the Native Americans in this case

had not presented a legitimate free exercise claim. The Court conceded

that construction of the road would diminish the ability of the tribes to

achieve spiritual fulfillment. Nevertheless, stressing the critical word

"prohibit" in the Free Exercise Clause, it concluded that the govern-

ment has to show that its actions are narrowly tailored to achieve

especially important interests only when such actions have the effect of

coercing individuals into acting contrary to their religious beliefs.28

Thus, the Court's Free Exercise decisions reflect a tension between

a strict neutrality approach and an approach that generally requires

government to make some effort to accommodate religious beliefs and

practices. Whereas the neutrality approach requires only that govern-

ment treat religious beliefs and practices the same as non-religious

beliefs and practices, the accommodation approach often imposes a

duty on government to take account of religion and to accommodate it.

With the continuing expansion of government, the significant issue for

the future will be whether neutrality alone adequately protects the

individual's right to the free exercise of religion.

24 Id. at 708.

25 The plurality agreed that a legislative exemption would not violate the Establishment

Clause. Id. at 712 n.19 (citing Sherbert).

26 Id. at 727 (O'Connor, J., concurring in part and dissenting in part).

27 Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S. Ct. 1319 (1988).

28 Id. at 1326.

86
B. Possible Developments in the Future

Free exercise doctrine in the Supreme Court currently is in a state

of flux, and controversy is likely to continue throughout the next

decade. The Court's various opinions reflect two divergent courses that

it may take in the future. On one course, the Court would insist on strict

governmental neutrality toward religion, with efforts at accommodation

viewed with suspicion under the Establishment Clause. On the compet-

ing course, the Court not only would permit government to look

favorably upon religion by accommodating religious beliefs and prac-

tices, but also would sometimes require such accommodation. While

neither approach currently is predominant in the Court's opinions, the

pressure on the Court to choose one or the other persists.

If the Court during the next decade moves in the direction of

reading the First Amendment as requiring strict neutrality, it will not

generally interfere in conflicts that develop between governmental

practices and individual religious beliefs, so long as the government

remains neutral toward religion. While the Court would remain ready to

invalidate actions that reflected governmental animus toward religion, it

also would be likely to insist on non-preferential treatment of religious

believers. Equal treatment, of course, can bring a religious believer into

conflict with the government, as when the government treats everyone

equally by denying any conscientious objector exemption to the military

draft. Nevertheless, under a strict neutrality approach, this conflict

would be unlikely to raise a First Amendment concern.

If, however, the Court moves in the direction of requiring govern-

ment to accommodate religious belief when even a facially neutral law

or action forces an individual to act contrary to his religious beliefs, it

will likely find itself much more involved in free exercise issues. Under

this approach, the Court would be likely to sustain a claim for

accommodation unless the government could show that it was pursuing

a compelling interest in the least restrictive manner possible. By

following this direction, the Court would acknowledge both the role of

religion as a mediating institution in society 29 and the potential threat

that the expansion of government poses to that role. Moving in this

direction would reflect the view that religion has a special place, which

government must recognize, in our constitutional structure.

Recently, the Court declined to reach a free exercise issue that

might have foreshadowed the direction it will take in the next decade.

The issue was whether a state could deny unemployment benefits to

29 See McConnell, supra note 3, at 17-18.

87
Native American rehabilitation counselors who were discharged for the

religious use of peyote.30 Twenty-five years ago, the California Supreme

Court suggested a negative answer to this question when it held that the

Free Exercise Clause prevented prosecution of Native Americans for the

religious use of peyote.31 Whether the Supreme Court will agree

depends, in part, on the direction it takes with free exercise claims.

Under the neutrality approach, the Court would be likely to hold that

since a generally applicable law criminalizing drug use makes no

religious classification, a believer is not entitled to a free exercise

exemption. Under the thinking of this approach, to provide such an

exemption would be to favor religion in violation of the neutrality

requirement. Under the competing accommodation approach, however,

the Court might recognize that such a law has a coercive effect on the

practice of religion and thus require the government to demonstrate a

compelling interest for not exempting Native Americans. Of course, the

Native Americans might still lose under this approach. The result would

probably depend on the Court's evaluation of whether an exemption for

Native Americans would undermine the state's compelling interest in

the enforcement of its drug laws.32 Even if the Native Americans

ultimately lost, however, the Court's examination of the issue under the

accommodation approach would be much more demanding than under

the neutrality approach.

Another issue that may arise in the upcoming years is whether

fundamentalist Christians can be required to provide their children's

social security numbers to claim them as exemptions for tax purposes.

A group of "born-again" Christians has already raised such an issue in

a lower court, claiming that the requirement forces them to violate their

religious beliefs.33 The Court's divided opinion in Bowen v. Roy,34

previously discussed, suggests that the Court could come out either way

on this issue. If the Court opted for the neutrality approach, it would

likely uphold the tax law's generally applicable requirement. If the

Court chose the accommodation path, however, it would have to decide

30 Employment Division, Dep't of Human Resources v. Smith, 108 S. Ct. 1444 (1988)

(remanding to Oregon Supreme Court for determination of whether religious use of

peyote was legal in Oregon).

31 People v. Woody, 61 Cal.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964).

32 Cf. United States v. Lee, 455 U.S. at 260-61 (ability to raise revenues for wide range

of governmental purposes might be undermined if those whose beliefs conflicted with

any of those purposes had to be partly exempted from taxes).

33 See Social Security Number for Children Disputed, N.Y. Times, Aug. 21, 1988. § I,

at 21, col. 1.

34 476 U.S. 693 (1986).

88
whether the government had a less restrictive means of vindicating its

important interests in ensuring that parents are not claiming exemptions

for non-existent children or that parents who live apart are not both

claiming the same child as an exemption.

Challenges to the operation of zoning ordinances are another

illustration of the free exercise issues likely to arise in the next decade.

In particular, the Supreme Court may be asked to decide the constitu-

tionality of ordinances that have the effect of prohibiting churches and

other religious buildings from residential areas 35 or that effectively ban

religious services from private residences.36 To the extent such ordi-

nances treat secular non-residential buildings the same as church

buildings, and large, non-religious gatherings the same as prayer

meetings, the Court would be likely to sustain them under a strict

neutrality approach. If the Court decided to follow the accommodation

approach to free exercise issues, it might still uphold the ordinances, but

it would first have to analyze whether the zoning ordinance "pro-

hibited" the free exercise of religion,37 for example, by effectively

forbidding eveq those religious gatherings that must be held in the

home, such as the seven-day mourning period observed by Jews. Should

the case involve this sort of prohibition, the Court might conclude that

equal treatment was not enough and require the locality to explain why

its interest in protecting the peace, safety, and order of residential areas

could not be upheld in a less restrictive manner.

A further issue that may arise in the next decade is whether public

school students have a right to "opt out" of classes in which the subject

matter or course materials conflict with their religious beliefs.38 While

the Court has upheld the right of the Amish to reject formal education

33 E.g., Lakewood Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, 699

F.2d 303 (6th Cir.) (upholding ordinance limiting church buildings to commercial or

multi-family residential areas, even though less conducive to worship and land in

those areas was more expensive), cert, denied, 464 U.S. 815 (1983).

36 E.g., Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983) (ordinance

previously construed to prohibit religious services in residences upheld partly because

ordinance would permit services in area four blocks from claimant's residence), cert,

denied, 469 U.S. 827 (1984).

37 The Court in Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S. Ct. 1319,

1326 (1988), stressed that "prohibit" was a critical word in the Free Exercise Clause.

38 See, e.g., Mozert v. Hawkins County Board of Educ., 827 F.2d 1058 (6th Cir. 1987)

(rejecting free exercise claim of right to opt out of classes in which religiously

objectionable materials were taught), cert, denied, 108 S. Ct. 1029 (1988); Grove v.

Mead School District No. 354, 753 F.2d 1528 (9th Cir.) (rejecting challenge to

assigned book because students had been permitted to read alternate book and to

leave class during discussions), cert, denied, 474 U.S. 826 (1985).

89
entirely after the eighth grade,39 it has not addressed the narrower issue

of selective "opting out." Since laws that require attendance in school

without permitting students to "opt out" are neutral toward religion,

the Court might side with the school authorities on this issue under a

strict neutrality approach. The Court might even feel constrained by its

Establishment Clause jurisprudence not to allow an accommodation of

religion in school.40 Alternatively, under an accommodation approach

that is less wary of Establishment Clause tensions, the Court might hold

that the state's important interest in education can still be vindicated by

allowing the students to use alternative educational materials.41 Such a

holding, however, is by no means certain. With private education as an

available alternative, the Court even under an accommodation ap-

proach might rule that the state has not coerced any student into

violating religious beliefs.42

The conflict between legal requirements of non-discrimination and

religious practices that may be inconsistent with those requirements is

also likely to come before the Court in the next decade. For example,

legal challenges may be directed to the practices of some religions,

including Catholicism and traditional Judaism, of excluding women

and homosexuals from the clergy 43 and from certain teaching positions

at religious schools. Indeed, a successful local court challenge already

has been brought against a Catholic university that refused to recognize

a homosexual student organization.44 If the Court chooses the road of

neutrality, it may well refuse to carve out a free exercise exemption for

religions from universally applicable non-discrimination laws. If, how-

ever, the Court chooses the alternative road of accommodation, it may

39 Wisconsin v. Yoder, 406 U.S. 205 (1972). .

40 Cf. Illinois ex ml. McCollum v. Board of Educ, 333 U.S. 203 (1948) (invalidating

program exempting students from half hour of secular classes each week for

consensual religious instruction on public school premises).

41 See Mozert v. Hawkins County Public Schools, 647 F. Supp. 1194,1202 (E.D. Thro.

1986), rev'dsub nom. Mozert v. Hawkins County Board of Educ., 827 F.2d 1058 (6th

dr. 1987), cert, denied, 108 S. Ct. 1029 (1988).

42 See Mozert v. Hawkins County Board of Educ, 827 F.2d at 1080 (Boggs, J.,

concurring) (free exercise does not imply "a freedom from state teaching, even of

offensive material, when some alternative [is] legally permissible").

43 See generally Note, Title VII and the Appointment of Women Clergy: A Statutory

and Constitutional Quagmire, 13 Colum. J.L. & Soc. Probs. 257 (1977).

44 Gay Rights Coalition v. Georgetown University, 536 A.2d 1, 5 (D.C. 1987) (en banc)

(requiring university to provide facilities and funding to organization on same basis

as other organizations although without formal endorsement, because "the District

of Columbia's compelling interest in the eradication of sexual orientation discrimi-

nation outweighs any burden imposed upon Georgetown's exercise of religion").

require government to exclude internal religious practices from enforce-

ment of its non-discrimination laws.45

Similarly, the Court may have to decide whether social service

agencies affiliated with religious groups must secularize themselves by

removing religious symbols from common areas, by providing oppor-

tunities for children of other faiths to practice their religions, and by not

imposing religious dietary practices on those children.46 These agencies

typically accept placements from city and state governments, which

provide compensation for providing care. A city or state government

may use this contractual relationship with the agencies as a basis for

requiring them to conform to various requirements, such as that they

provide non-denominational care.47 The agencies, however, might assert

that such mandatory contractural requirements violate the Free Exercise

Clause. If the Court chooses the road toward neutrality, it likely would

rule in favor of the government's enforcement of generally applicable

requirements. If, however, the Court chooses the road of accommoda-

tion, it may be more sympathetic toward a claim that the government's

interests can be effectuated without requiring religious groups to act as

if they were secular institutions.

Finally, the continuing validity of the Sherbert line of cases may

itself be an issue. Congress recently enacted the Family Support Act of

1988, a law that restructures the AFDC system, in part by requiring

most recipients to work. Section 201(a) of the Act requires states to

impose sanctions of reduced aid on any recipient who "fails without

good cause to participate in the [work] program or refuses without good

cause to accept employment in which such individual is able to

engage . . . ." It is possible, in light of Sherbert and its progeny, that

the Court would interpret the "good cause" requirement as including

religiously based reasons for refusing work, so as to avoid a possible

45 See Laycock, Towards a General Theory of the Religion Clauses: The Case of Church

Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1389

(1981) (autonomy allows religious groups to "select their own leaders, define their

own doctrines, resolve their own disputes, and run their own institutions"; religious

groups "exercise their religion through religious organizations") (footnotes omitted).

4' Cf. Wilder v. Bernstein, 848 F.2d 1338 (2d Cir. 1988) (upholding settlement

agreement, which included these and other requirements, between class of black

Protestant foster children and city, state, and Catholic and Jewish foster-care

agencies).

47 Cf. Under 21 v. City of New York, 65 N.Y.2d 344, 492 N.Y.S.2d 522 (1985) (challenge

by Salvation Army and Catholic and Jewish organizations operating social service

programs partly funded by City to Mayor's executive order requiring that contracts

with City contain agreement not to discriminate in employment on basis of "sexual

orientation or affectional preference").

91
infirmity under the Free Exercise Clause. However, a free exercise

challenge of this provision might lead the Court to reconsider its

decision in Sherbert. If the Court did reconsider that precedent, it

would, under a neutrality approach, most likely adopt the Harlan

dissent in Sherbert, which argued that a legislature could add religious

exceptions to the non-religious ones but was not constitutionally

required to do so. If the Court reconsidered Sherbert under an

accommodation approach, on the other hand, it might choose to

reaffirm Sherbert, but it would still have to confront the issue of

whether the denial of benefits, which the Sherbert Court viewed as a

penalty on the exercise of religion, in fact amounted to a "prohibition"

of the free exercise of religion, as the Court now seems inclined to

require.48 That it is a "prohibition" might be questioned since it could

be claimed that the AFDC recipient, despite religious objections to a

particular job, would retain the right to practice her religion through the

expedient of finding a different job.

In deciding the various issues discussed in this section, the Court

in the future will likely have to choose between the alternative interpre-

tations of the Free Exercise Clause represented by strict neutrality and

accommodation. That choice will reveal whether the Court views

religion as an institution that government must respect but not encour-

age, or whether it views it as an institution, like family and community,

that government may encourage in a non-discriminatory way. The

Court's choice between these approaches obviously will have an impor-

tant effect on the ability of individuals to practice their religions in an

era of expanding government.

C. Potential Controversies for the 1990's

The following lists some of the free exercise issues that the Court

may confront in the next decade:

— Will the Court interpret the Free Exercise Clause of the First

Amendment as requiring government neutrality toward religion or

as imposing a constitutional duty on government to accommodate

religious practice?

— Is a state barred by the Free Exercise Clause from enforcing

generally applicable drug laws against individuals who use drugs as

part of a religious ceremony?

— Are Christian fundamentalists entitled to a free exercise exemption

See Lyng v. Northwest Indian Cemetery Protective Ass'n, 108 S. Ct. 1319, 1326

(1988). See also notes 27-28 and accompanying text, supra.

92
from a law that requires taxpayers to provide social security

numbers for dependents?

May localities use zoning ordinances to prohibit groups from

building religious structures in residential areas or from using

residences for prayer meetings without violating the First Amend-

ment's Free Exercise Clause?

Does the First Amendment's Free Exercise Clause entitle students

to "opt out" of public school courses or reject course materials

that conflict with their religious beliefs?

Does the Free Exercise Clause require government to exempt

religious groups from generally applicable non-discrimination laws

if those laws would require the religious groups to act contrary to

their beliefs?

May the government, consistently with the Free Exercise Clause,

require social service agencies that are affiliated with religious

groups to provide care in a non-sectarian manner?

Does the government prohibit the free exercise of religion when it

requires recipients of AFDC to perform work as a condition of aid

without regard to possible religious conflicts with particular jobs?

93
9. Will the Freedom of Association Protected by the

First Amendment Provide Any Significant

Protection Against the Application of Government

Policies To Private Groups and Organizations?

A. Background

Alexis de Tocqueville, a perceptive early student and critic of Amer-

ica, noting the American propensity to form clubs and associations,

observed that "[t]he most natural right of man, after that of acting on his

own, is that of combining his efforts with those of his fellows and acting

together." He concluded that "the right of association seems ... by

nature almost as inalienable as individual liberty." 1

The Supreme Court has inferred a "freedom of association" from

the language of the First Amendment to the Constitution, which

provides that "Congress shall make no law . . . abridging the freedom

of speech, or of the press, or the right of the people peaceably to

assemble, and to petition the Government for a redress of grievances."

Freedom to choose one's associates, however, necessarily includes

freedom to be selective: an associational group, by definition, is an

organization in which some are included and others excluded. This

brings the constitutional right of "freedom of association" into fre-

quent conflict with governmental efforts to prohibit various kinds of

discrimination and to impose particular public policies.

The Supreme Court formally recognized a constitutional right of

citizens to be protected in their voluntary associations in NAACP v.

Alabama ex rel. Patterson,2 where it invalidated a state's attempt to

compel an organization to produce membership lists on the grounds

that disclosure might invite physical harm or social harassment by

non-members. In Buckley v. Valeo,3 the Court also recognized a right to

confidentiality regarding contributions to associations, and in Abood v.

Detroit Board of Education* the Court recognized the right of an

individual not to become a member of a labor organization. In each of

these cases, the Court applied a "compelling interest/least restrictive

means" balancing test and concluded that the individual's interest in

freedom of association should prevail. The Court also acknowledged,

1 A. de Tocqueville, Democracy in America 178 (G. Lawrence trans. 1966).

2 357 U.S. 449 (1958) (hereinafter Patterson).

3 424 U.S. 1 (1976).

4 431 U.S. 209 (1977).

94
however, that the right of association was not absolute. It suggested, for

example, that the right may be limited by state regulations necessary to

serve a "compelling interest" unrelated to the suppression of ideas.

Although the Court's decisions in these early cases generally

tended to favor the constitutionally protected interests of the individual,

the Court in recent years increasingly has seemed willing to subordinate

the associational interests of organizations to the regulatory interests of

the states. For example, in Roberts v. United States Jaycees,5 the Court

held that Minnesota could require the all-male Jaycees organization to

accept women as full voting members. The Court began its analysis by

subdividing the freedom of association into two subcategories:

"freedom of intimate association" and "freedom of expressive

association." 6 The freedom of intimate association, the Court con-

cluded, receives protection "as a fundamental element of personal

liberty." 7 Without being specific, the Court seemed to find a source for

this freedom in the "penumbras" of the Bill of Rights, in the privacy

rights it has recognized in the due process clause, or in a combination

of the two.3 Whatever the source, the Court emphasized that this

freedom protected only certain kinds of associations, such as those

involving family relationships in which the individual has "deep attach-

ments and commitments to the necessarily few other individuals with

whom [he] shares not only a special community of thoughts, experi-

ences, and beliefs but also distinctively personal aspects of [his] life." 9

The intensely personal nature of these relationships, the Court added,

justifies affording them "a substantial measure of sanctuary from

unjustified interference by the State." 10 On the other hand, the

5 468 U.S. 609 (1984).

6 Id. at 617-18.

7 468 U.S. at 618. See also Karst, The Freedom of Intimate Association, 89 Yale L.J.

624 (1980).

8 The Court cited both Griswold v. Connecticut, 381 U.S. 479 (1964), which relied on

a "penumbras" rationale, and cases like Moore v. City of East Cleveland, 431 U.S.

494 (1977), which relied more on a "substantive due process" analysis. The Court's ^

opinion in Griswold listed the Ninth Amendment, which states that "[t]he enumer-

ation in the Constitution, of certain rights, shall not be construed to deny or

disparage others retained by the people!' as one within the penumbra of which a right

of marital privacy could be found, but did not rely on the Ninth Amendment itself.

Nevertheless, the Ninth Amendment sometimes is invoked as a source of unenumer-

ated rights. See Report to the A ttorney General: Wrong Turns on the Road to Judicial

Activism: The Ninth Amentment and the Privileges or Immunities Clause (U.S.

Department of Justice Office of Legal Policy, Sept. 25, 1987).

9 Jaycees, 468 U.S. at 620.

10 Id. at 618.

95
"freedom of expressive association," formally recognized as a constitu-

tional right in Patterson, protects the "freedom to engage in association

for the advancement of beliefs and ideas." 11 The First Amendment

thus protects the right "to associate with others in pursuit of a wide

variety of political, social, economic, educational, religious, and cul-

tural ends," 12 and "plainly presupposes a freedom not to associate with

other persons." 13

Regarding the freedom of intimate association, the Court found

that the Jaycees fell outside the category of relationships worthy of this

constitutional protection. The Court stressed that the local chapters of

the Jaycees were large and basically unselective and that their activities

frequently involved the participation of strangers.14 As to the Jaycees'

freedom of expressive association, the Court reiterated that "[i]nfringe-

ments on that right may be justified by regulations adopted to serve

compelling state interests, unrelated to the suppression of ideas, that

cannot be achieved through means significantly less restrictive of

associational freedoms." 15 The Court thus applied the strict scrutiny

balancing test that it had fashioned in Patterson, Buckley, and Abood,

but this time it concluded that the balance favored the state's interest in

promoting equality rather than the members' interest in freedom of

association.

In Board of Directors of Rotary International v. Rotary Club of

Duarte, 16 the Court held that California could require Rotary clubs to

admit women into membership. Unlike the Jaycees, the Rotary Club

traditionally had been highly selective, limiting membership to males by

invitation only. Following the "intimate association-expressive associa-

tion" analysis it had employed in Jaycees, the Court concluded that the

relationship among Rotary Club members is not the kind of intimate or

private relationship that warrants constitutional protection. The Court

observed that the clubs are relatively large, that chapters are encouraged

to introduce new prospects, that visitors are regularly present, and that

newspaper coverage of meetings is actively sought. "[R]ather than

carrying on their activities in an atmosphere of privacy, [the organiza-

tions] seek to keep their 'windows and doors open to the whole

world.'" »

"' Patterson, 357 U.S. at 460.

12 Jaycees, 468 U.S. at 622.

13 Id. at 623 (emphasis added) (citations omitted).

14 Id. at 621.

15 Id. at 623 (citations omitted).

16 Rotary, 107 S. Ct. 1940 (1987).

17 Id. at 1947 (quoting 1 Rotary Basic Library, Focus on Rotary 60-61 (1981)).

96
With regard to the "expressive association" test, the Court ob-

served, as it had in Patterson, that "[i]mpediments . . . to the exercise

of one's right to choose one's associates," such as broadly interpreted

public accommodations statutes, "can violate the right of association

protected by the First Amendment." 18 Nevertheless, the Court said

that the right to associate for expressive purposes is a derivative right,

applicable only when it aids in the exercise of an explicit First

Amendment right. For an organization to claim constitutional protec-

tion for discriminatory membership policies under the "expressive

association" rubric, it must show a direct relation between membership

exclusion and the organization's expressive purposes. Consequently,

Rotary International's claim could not be upheld unless it could

demonstrate that a significant expressive purpose or objective would be

adversely affected by admitting women.19 Although the Court recog-

nized that the organization's service activities were protected indirectly

by the First Amendment, it concluded that requiring the organization to

admit women would not substantially alter or disrupt its purposes. The

Court added that even if there were some "slight infringement," the

interference would be justified by the "State's compelling interest in

eliminating discrimination against women." 20

Most recently, in New York State Club Ass'n v. New York City,21

the Supreme Court upheld a New York City law prohibiting discrimi-

nation by large private clubs but exempting certain benevolent and

religious organizations. New York City's Human Rights Law 22 forbids

discrimination based on race, creed, color, national origin, or sex in any

place of public accommodation, but specifically exempts "any institu-

tion, club or place of accommodation which is in its nature distinctly

private." A 1984 amendment 23 provided that any organization, other

than a benevolent order or religious corporation, "shall not be consid-

ered in its nature distinctly.private" if it has more than four hundred

members, provides regular meal service, and regularly receives payment

directly or indirectly from or on behalf of nonmembers for the

furtherance of trade or business. A consortium of private clubs

challenged the law as unconstitutional on its face under the First and

Fourteenth Amendments. Following Jaycees and Rotary, the Supreme

Court upheld the New York law, finding that the size and nature of at

"Id. ■

"id.

10 id.

21 108 S. Ct. 2225 (1988).

22 N.Y.C. Admin. Code Sec. 8-102(9) (1986).

23 Local Law No. 63 of 1984.

97
least some of the organizations covered by the amended law precluded

their claiming protection as "intimate associations." The Court also

concluded that the State's interest in eradicating discrimination justified

the regulation, which did not on its face unduly infringe the organiza-

tions' "expressive association" interest in pursuing goals explicitly

protected by the First Amendment.

The Court's opinion in New York State Club Ass'n conforms to its

decisions in Jaycees and Rotary upholding state laws prohibiting discrim-

ination against challenges based on associational rights. Rotary essentially

closed the "intimate association" door on many, if not most, non-familial

associations, leaving the freedom of "expressive association" the only

available basis for constitutional protection.24 Thus, an organization must

show a direct relation between membership exclusion and the organiza-

tion's expressive purposes in order to prevail when its membership practices

are challenged under a state anti-discrimination law. The Court acknowl-

edged that "[i]t is conceivable, of course, that an association might be able

to show that it is organized for specific expressive purposes and that it will

not be able to advocate its desired viewpoints nearly as effectively if it

cannot confine its membership to those who share the same sex ... or

the same religion." 25 The burden, however, is on the organization to prove

that its specific expressive purpose will be frustrated if it is required to

comply with anti-discrimination laws.

At the current juncture, therefore, the extent to which the First

Amendment protects the freedom of association is somewhat unclear.

Since Patterson, when the Court relied on this freedom to prevent the

compulsory disclosure of an organization's membership list, the Court

repeatedly has rejected claims that the First Amendment prevents the

state regulation of groups. Moreover, while the Court has recognized an

unenumerated right to intimate association, it so far has given this right

limited scope. The issue for the future, therefore, is whether the

freedom of association, in either of its manifestations, will place any

significant restraint on the government's ability to regulate the associ-

ation of individuals in groups.

B. Possible Developments in the Future

When a case involves a contest between a state's regulatory interest

in promoting equality and an organization's First-Amendment interest

24 See Note, Board of Directors of Rotary International v. Rotary Club of Duarte:

Redefining Associational Rights, 1988 B.Y.U. L. Rev. at 152-53.

25 New York State Club Ass'n., 108 S. Ct. at 2234.

98
in freedom of association, the case law described above seems to suggest

that the Court is more likely today than it was some years ago to rule in

favor of the former. The Court's more restrictive approach to the

freedom of association has come about, somewhat ironically, at the

same time that the Court has taken an increasingly expansive view of the

right of privacy, which it has derived from the Fourteenth Amendment's

Due Process Clause.

In the future, the Court may continue on its present path, and if it

does so, organizations will continue to have a difficult time prevailing

with First-Amendment claims of freedom of association. The Court,

however, could alter its current course either by finding a greater

impairment of First-Amendment interests than it so far has found in

state regulations or by requiring, as it did in Patterson, the state to have

truly compelling interests to justify such impairments. With regard to

the right of intimate association, which has less of a textual footing, the

Court's choice in the future is between a narrow view that essentially

limits this right to family relationships and an expansive view that could

provide protection to various groups outside the family. If the Court

follows this latter path, groups may succeed with freedom of association

claims even though they fail to demonstrate that the state regulation has

impaired their "expressive" activities under the First Amendment.

One issue that may arise over the next decade is whether states can

extend their anti-discrimination laws even to benevolent and religious

organizations. In New York State Club Ass'n, the Court upheld, against

an equal protection challenge, New York City's exemption for such

institutions. If the City decided to abolish this exemption, however, the

Court might have to consider whether even religious institutions may be

subject to such regulation. It is at least possible that the Court would

conclude that they may. In Bob Jones University v. United States,26 for

example, a private religious university unsuccessfully challenged the

Internal Revenue Service's revocation of tax-exempt status because the

school, for religious reasons, excluded students on the basis of race and

forbade interracial dating or marriage. Although the Court's opinion

focused on the criteria for tax-exempt status under the Internal Revenue

Code, Justice Powell, in his partial concurrence, noted a troubling

element of conformity that appeared to inform the Court's analysis:

The Court asserts that an exempt organization must 'demon-

strably serve and be in harmony with the public interest,'

must have a purpose that comports with 'the common

community conscience,' and must not act in a manner

26 461 U.S. 574 (1983).

99
'affirmatively at odds with [the] declared position of the

whole Government.' Taken together, these passages suggest

that the primary function of a tax-exempt organization is to

act on behalf of the Government in carrying out governmen-

tally approved policies. In my opinion, such a view of Sec.

501(c)(3) ignores the important role played by tax exemptions

in encouraging diverse, indeed often sharply conflicting,

activities and viewpoints.27

Another issue likely to arise in the 1990's is the extent of the

burden organizations will have to bear to demonstrate a nexus between

their asserted expressive purposes and their membership requirements.

The Court may take a narrow view and limit First-Amendment

protections only to those groups that make a virtually irrefutable

showing that they cannot comply with a non-discrimination law

without defeating the expressive purpose for which they exist. Under

such an approach, perhaps a society advocating male supremacy would

prevail with an argument that it could not effectively advocate its views

by abandoning its restrictive membership requirements, but most other

organizations, particularly social ones that exist primarily to provide

recreational opportunities to members, would not succeed with such an

argument. Alternatively, the Court might take a broader view that

reflects more concern about the possibility that First-Amendment

interests are being impaired.

The alternatives can be illustrated by considering the case of the

Boy Scouts. In an amicus brief in Rotary, the Boy Scouts of America

(B.S.A.) argued that since the B.S.A. "hold[s] as one of its fundamen-

tal values that homosexual conduct is not moral," its constitutionally

protected right of "expressive association" would be infringed if it were

compelled to accept homosexuals as scoutmasters.28 The B.S.A. also

argued that requiring the group to accept either women or homosexuals

as scoutmasters would be antithetical to its purpose of providing male

27 Id. at 609.

M See Brief of the Boy Scouts of America as Amicus Curiae in Support of Appellants

Rotary International, Rotary, 107 S. Ct. 1940 (1987) (No. 86-142). The B.S.A. has

been involved in litigation on this matter. See Curran v. Mount Diablo Council of the

Boy Scouts of America, 147 Cal. App. 3d 712, 195 Cal. Rptr. 325 (1983). appeal

dismissed, 468 U.S. 1205 (1984). The B.S.A. also has been faced with litigation where

plaintiffs have sought to require it to accept women as scoutmasters. See Pollard v.

Quinnipiac Council, Boy Scouts of America, PA-SEX-37-3 (Conn. Comm. on

Human Rights and Opportunities) (decision of hearing examiner, January 4, 1984),

vacated, (Conn. Super. Ct. May 19, 1986), affirmed 204 Conn. 287, 528 A.2d 352

(1987); Adamski v. Suffolk County Council of the Boy Scouts of America,

P-S-73766-80 (N.Y. Div. of Human Rights).

100
role models for young scouts. If, in an actual case, the Court were to

decide that these indeed were the B.S.A.'s "expressive purposes," it

might rule in their favor. If, however, the Court followed the approach

of cases like Jaycees, it might conclude either that such arguments are

insufficient to show that non-discriminatory policies would impede the

B.S.A.'s ability to disseminate its preferred views or that, in any event,

the state's interest in ending discrimination is sufficiently "compelling"

to override the B.S.A.'s expressive interests.

The reach of recent civil rights statutes is bound to confront the Court

with freedom of association claims in the future. For example, the Civil

Rights Restoration Act of 1988 29 imposes civil rights requirements when-

ever federal dollars are received. In particular, private colleges and univer-

sities have expressed concern that this law will inhibit their First-Amend-

ment interests in academic freedom and freedom of association, and in

many cases their right to the free exercise of religion as well.30 Many

organizations that receive federal funds may challenge this law, claiming in

language similar to that suggested in Rotary by the B.S.A. that to force

them to accept undesired members may violate their fundamental expres-

sive purposes. Whether this argument will succeed is uncertain.31 In

Runyon v. McCrary,32 the Court held that a private school could be

compelled under the civil rights laws to enter into contracts with the parents

of students, and could not claim either freedom of association or freedom

of contract to refuse to accept non-white students. Runyon, however, may

be reconsidered.33 In any event, Runyon does not preclude the possibility

that some private schools and organizations will be able to make successful

First-Amendment claims.

The status of student associations at private educational institu-

tions also may be subject to renewed challenge in the 1990's. In Gay

Rights Coalition of Georgetown University Law Center v. Georgetown

29 Pub. L. No. 100-259, 102 Stat. 29 (1988).

30 See Civil Rights Act of 1984: Hearings on S. 2568 Before the Subcomm. on the

Constitution, Comm. on the Judiciary, 98th Cong., 2d Sess. 37-103 (1984) (State-

ment of Bruce C. Hafen, President, American Association of Presidents of

Independent Colleges and Universities).

31 Section 7 of the Act provides that "[n]othing in the amendments made by this Act

shall be construed to extend the application of the Acts so amended to ultimate

beneficiaries of Federal financial assistance excluded from coverage before the

enactment of this Act." While this may be intended to exclude certain existing

qualified organizations from the Act's coverage, the language is unclear.

"427 U.S. 160(1976).

"See Patterson v. McLean Credit Union, 108 S. Ct. 419 (1988) (case restored to

calendar for reargument; parties instructed to brief and argue whether the Court's

interpretation of 42 U.S.C. § 1981 adopted in Runyon should be reconsidered).

101
University,34 homosexual student groups brought suit against a private

Catholic university following the university's refusal, on religious

grounds, to "recognize" the student groups. The District of Columbia

Court of Appeals held that, although the university could not be

compelled to grant official recognition to the groups, it could not deny

them tangible benefits such as meeting facilities or student activity

funds. The Court concluded that this burden on the university's free

exercise of religion was outweighed by the District's compelling interest

in eradicating discrimination on the basis of sexual orientation.

If the Court permits the states to forbid private clubs and

associations from discriminating on grounds of race, gender, or other

specified characteristics, in the future it also may uphold state and local

laws forbidding discrimination on such largely arbitrary yet common

grounds as income, handicap, personality, or personal appearance.35 So

long as the regulations do not infringe on the association's expressive

purposes as determined by the Court,36 the Court could uphold the

constitutionality of the restrictions consistently with its decisions in

Jaycees, Rotary, and New York State Club Ass'n.

The membership policies of certain selective, private organizations

also might be challenged under the "state action" doctrine. For instance, a

student who alleged that he or she was denied admission to a fraternity or

sorority at a state-run college or university on grounds of race or sex might

successfully claim that the public nature of the institution and its support

of such organizations provide the necessary state action to invoke the

Fourteenth Amendment's Equal Protection clause. The question of

whether private action is sufficiently imbued with state involvement to

warrant application of constitutional restraints often is vexing. In Burton v.

Wilmington Parking Authority,31 for example, the Court found state

action, and hence an equal protection violation, in racial discrimination by

a private restaurant that happened to be located within a public parking

building. The Court relied on the facts that the parking structure was

publicly owned, that it was dedicated to public uses, that public funds paid

for maintenance and repairs, that patrons of the private restaurant had the

benefit of public parking, and that the restaurant provided additional

business for the public garage.

34 536 A.2d 1 (D.C. App. 1987).

"See Note, Facial Discrimination: Extending Handicap Law to Employment Discrim-

ination on the Basis of Physical Appearance, 100 Harv. L. Rev. 2035 (1987).

36 See Rotary, 107 S. Ct. at 1947 (concluding that "fellowship in service {was] the

principal purpose" of the organization, and that admitting women would not

substantially alter or disrupt the purposes of the organization).

37 365 U.S. 715 (1961).

102
More recent cases, however, have been less willing to And state

action in private activity. In Moose Lodge No. 107 v. /ras,38 where an

all-white private lodge refused to serve a black guest, the discriminatory

practice was challenged on equal protection grounds. The Court held

that the fact that the organization had received a liquor license from the

state did not constitute sufficient state action to invoke the Equal

Protection clause. More significantly, in Rendell-Baker v. Kohn,39 the

Court refused to find state action in a private school's discharge of

teachers even though public funds accounted for most of the school's

funding, nearly all of the students for the school's special education

courses had been referred to the school by public authorities, the school

was required to comply with state regulations, and the school issued

diplomas certified by the local school committee.

Obviously, the future direction of the Court's state action doctrine

will determine how far the courts will be able to go in using the

Constitution directly to restrict the activities and policies of private

organizations. Were Burton's reasoning to become dominant, the

actions of private organizations within state run institutions could be

viewed as actions of the state for Fourteenth Amendment purposes.

Associations within police departments, teachers' associations that

meet on public school property, and associations of private and public

colleges that govern intercollegiate athletics all could be found to

involve state action under this view.40 Similarly, volunteer groups, such

as volunteer fire departments, that enter into contracts or working

relationships with city and state governments might be deemed "state

actors" for purposes of the Fourteenth Amendment.

Finally, the Court during the next decade will be faced with choices

relating to claims based on a right to "intimate association." To the

extent that it expands recognition of unenumerated rights such as the

right to privacy,41 it may choose to expand the scope of "intimate

association," recognized in Jaycees, to provide protection for groups

whose members share a special relationship.42 This could include groups

like college fraternities and sororities, or communes, whose members

38 407 U.S. 163 (1972).

19 457 U.S. 830 (1982).

40 Seee.g., Tarkanian v. National Collegiate Athletic Ass'n., 741 P.2d 1345, 1349 (Nev.

1987) (action of private collegiate sports association in requiring the suspension of

basketball coach was state action for purposes of the Due Process Clause and 42

U.S.C. § 1983), cert, granted, 108 S. Ct. 1011 (1988).

41 See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1964); Roe v. Wade, 410 U.S. 113

(1973).

42 See Jaycees, 468 U.S. at 620.

103
live together in what approaches an extended family relationship.

Indeed, given the Court's apparent reluctance to recognize First-

Amendment interests in these cases, such groups might have recourse

only to the "intimate association" protection. On the other hand, the

Court may decide to limit the right of intimate association to family

relationships,43 and thereby reject the claims of such groups. Were the

Court to take a more sympathetic view of the First-Amendment interests

at stake in many of these cases, the pressure for it to expand the right of

initiate association would diminish.

The tension throughout this area is between the freedom of

voluntary associations and organizations to choose their members

according to their own wishes and the state's ability to enforce

regulations in the public interest. It is not clear where the line of

demarcation between these two often competing values will be drawn.

Whether public policies are to be imposed on every private institution,

or whether some point will be determined beyond which private groups

may seek refuge, are matters that the Court will be asked to decide in the

coming years.

C. Potential Controversies for the 1990's

The following lists some of the freedom of association issues that

the Court may confront during the next decade:

— Does the freedom of association protected by the First Amend-

ment assure the right of organizations, such as the Boy Scouts, to

define their own membership criteria, or will such organizations be

subject to increasingly expansive non-discrimination laws?

— Does the Civil Rights Restoration Act of 1988, making enforce-

ment of federal anti-discrimination laws mandatory against organ-

izations that accept federal funds, require that all such organiza-

tions admit members on an equal-opportunity basis, or will an

organization be able to carve out an exemption under the First

Amendment freedom of association by showing that its selective

membership policies further its expressive purposes?

— Outside the contexts of race and sex, will the freedom of associa-

tion be interpreted to protect the right of private associations to set

subjective membership criteria, such as those pertaining to income

or personal appearance?

— Does the Free Exercise Clause of the First Amendment require

exceptions to non-discrimination laws for religious organizations,

See Moore v. City of East Cleveland, 431 U.S. 494 (1977).

104
or will the Court conclude that even such organizations can be

regulated by the state?

— Will fraternities or sororities at state-run colleges be able to defend

single-sex membership policies, or will the state action doctrine be

expanded so that such discrimination will be viewed as state action

that violates the Equal Protection Clause?

— Will the state action doctrine be expanded so that the membership

requirements of volunteer groups within public entities, such as

police, firemen's, and teachers' associations, will be subject to

challenge under the Fourteenth Amendment's Equal Protection

Clause?

— Does the Equal Protection Clause of the Fourteenth Amendment

require the application of non-discrimination laws to the admis-

sions or student group recognition policies of private educational

institutions?

— Will fraternities and sororities at private colleges be able to defend

single-sex or single-race membership requirements as incidents of

their "freedom of intimate association"?

105
10. Will the Takings Clause and the Contract Clause

of the Constitution Be Revitalized?

A. Background

The Constitution's two principal protections of economic liberties

are the Takings Clause, which prohibits governmental takings of private

property without just compensation, and the Contract Clause, which

prohibits the states from impairing contractual obligations.1 Like the

First Amendment's prohibition of laws abridging freedom of speech,2

the Takings and Contract Clauses are seemingly absolute in their terms.

Nevertheless, in interpreting these clauses, the Court has freely balanced

the economic liberties the Takings and Contract Clauses protect against

the government's asserted interests in regulating these liberties.

With regard to the Takings Clause, the Court has most closely

adhered to the Clause's seemingly absolute terms in the area of physical

takings. In Loretto v. Teleprompter Manhattan CATV Corp.,3 the Court

held that a taking included any permanent physical occupation, regard-

less of size, of real estate.4 As a result, the Court prohibited New York

from requiring a landlord to install cable television wires and boxes on

her property without compensation.5 The dissent in Loretto argued that

the Court's per se rule for physical occupations failed to distinguish

significant from insignificant losses.6 In the dissent's view, the Court

should have evaluated both the extent of New York's interference with,

and the landlord's alternative uses of, the occupied property.7

In contrast to its approach to physical takings, the Court has taken

a case-by-case balancing approach in deciding whether the govern-

ment's use of its police power to regulate private property is a taking.

1 U.S. Const, amend. V ("[N]or shall private property be taken for public use, without

just compensation."); id. art. I, § 10, cl. 1 ("No State shall . . . pass any . . .

Law impairing the Obligation of Contracts . . . ."). Other constitutional provisions

that have been invoked to protect economic liberties include the Due Process Clause

and the "negative" Commerce Clause. See Office of Legal Policy, U.S. Department

of Justice, Report to the Attorney General on Economic Liberties Protected by the

Constitution 75-91 (1988).

2 U.S. Const, amend. 1 ("Congress shall make no law . . . abridging the freedom of

speech, or of the press . . . .").

3 458 U.S. 419 (1982).

4 Id. at 441. See also United States v. Causby, 328 U.S. 256, 265 (1946) flow plane flights,

although only partially destroying value of property as chicken farm, a taking).

5 458 U.S. at 421-22.

6 Id. at 447 (Blackmun, J., dissenting).

7 Id. at 453.

106
One factor the Court has examined in assessing a regulatory taking is

the extent to which the regulation interferes with "investment-backed

expectations." 8 In Keystone Bituminous Coal Ass'n v. DeBenedictis,9

the Court, in a 5-4 decision, upheld a Pennsylvania regulation that

prohibited the mining of 27 million tons of coal to prevent the collapse

of surface structures. Because the regulation did not render any mining

operations commercially impracticable, and because it affected less

than 2°7o of the mines' total coal, the Court ruled that a "deprivation

significant enough to satisfy the heavy burden placed upon one alleging

a regulatory taking" had not occurred.10 The dissent argued, however,

that if a regulation destroys an identifiable segment of property, it

should be unnecessary to evaluate the extent of the loss to determine

that a taking has occurred. The dissent also contended that for Takings

Clause purposes, it was irrelevant that the loss of property resulted from

regulation rather than from physical removal."

In addition to a regulation's economic impact, a second factor the

Court has assessed in deciding whether there has been a taking is the

extent to which the regulation singles out an individual or small group

for particular burdens. In Penn Central Transportation Co. v. City of

New York,12 for example, the Court sustained a New York City

ordinance requiring the owners of certain scattered historic landmarks

to maintain the exteriors of their structures in their present condition.

As a result, Penn Central could not use the airspace above Grand

Central Station to construct a tower that was otherwise permitted by the

applicable zoning law. As the dissent pointed out, the ordinance, unlike

a normal zoning restriction that applies in an evenhanded manner to an

entire neighborhood, singled out Penn Central for far less favorable

treatment than neighboring landowners.13 Because, however, the ordi-

nance was part of a comprehensive city plan, the Court rejected Penn

Central's claim for compensation.14

In Nollan v. California Coastal Commission,li a 5-4 decision, the

Court addressed whether a state's demand for certain property rights in

return for the issuance of a building permit constitutes a taking. In

exchange for a permit allowing reconstruction of the Nollan's beach-

8 See, e.g., Penn Cent. Thmsp. Co. v. City of New York, 438 U.S. 104, 124 (1978).

9 107 S. Ct. 1232 (1987).

10 Id. at 1246, 1248 & n.24.

"Id. at 1258-59 (Rehnquist, C.J., dissenting).

12 438 U.S. 104 (1978).

13 Id. at 138-41 (Rehnquist, J., dissenting).

14 Id. at 131-32.

15 107 S. Ct. 3141 (1987).

107
front residence, the California Coastal Commission wanted the Nollans

to convey a public easement along their beach. The Court held that the

Commission could only impose conditions on the permit that "substan-

tially advance[d]" the same interests that would be advanced by

prohibiting the construction entirely.16 For example, to preserve a view

of the beach, the Commission could limit the height of the house. It

could not, however, withhold the permit simply to obtain an unrelated

concession. Because the state's interest in beach access was unrelated to

whether or not the house was reconstructed, the Court described the

withholding of the permit as "an out-and-out plan of extortion." 17 The

principal dissent argued that the Court's standard of review was not

sufficiently deferential. The appropriate standard, it argued, was not

whether the state's interest was substantially advanced by the regula-

tion, but whether the state had any rational basis for believing that the

measure adopted might achieve its ends.18

Another recent case also addressed the question of what relation-

ship must exist between a private activity and a government regulation

in order for the regulation not to constitute a taking. In Pennell v. City

of San Jose,19 the Court reviewed a rent control ordinance that allowed

the city to disapprove rent increases on the basis of several factors,

including individual tenant hardship. Lacking evidence that any land-

lord had been deprived of rent because of the hardship provision, the

Court refused to decide if the city could exercise its police power in this

way without paying compensation.20 Addressing the merits, however,

two dissenting Justices contended that aiding individual indigent ten-

ants was an improper purpose for a rent control ordinance, because

landlords are no more the cause of the poverty of individual tenants

than others in society.21 As the dissent viewed the case, "the City [was]

not 'regulating' rents in the relevant sense of preventing rents that are

excessive; rather, it [was] using the occasion of rent regulation ... to

establish a welfare program privately funded by those landlords who

happen to have 'hardship' tenants." 22

In one area involving the state's exercise of its police power, that of

temporary regulatory takings, the Court has adopted a bright-line rule.

V Id. at 3146-47, 3150 (quoting Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)).

17 Id. at 3148 (quoting J.E.D. Assocs. v. Town of Atkinson, 121 N.H. 581. 584, 432

A.2d 12, 14 (1981)).

See id. at 3151-54 (Brennan, J., dissenting).

"108 S. Ct. 849 (1988).

20 Id. at 856.

21 Id. at 862 (Scalia, J., dissenting).

22 Id. at 863.

108
In First English Evangelical Lutheran Church v. County of Los

Angeles,13 the Court addressed a temporary county regulation that,

following destruction of church camp in a flood, forbade all construc-

tion in the flooded area. The Court held that if the regulation deprived

the church of all use of its land the church should receive compensation

for the period the regulation was in effect.24

The Court's affinity for balancing interests is even more evident in

its cases interpreting the Contract Clause. In the landmark Depression-

era case of Home Building & Loan Ass'n v. Blaisdell,25 the Court held

that a temporary Minnesota law extending the period of redemption

from mortgage foreclosure sales did not impair contractual obligations

in violation of the Contract Clause. Denying the clause a literal reading,

the Court balanced Minnesota's interest in the legislation against the

degree of contractual impairment. It found that the law, enacted in an

economic emergency, addressed a widespread social problem and did

not seek to benefit particular individuals.26 Moreover, the Court noted

both that the statute did not impair the underlying indebtedness and

that interest continued to accrue during the moratorium.27 Examining

the Contract Clause's explicit language as well as the history surround-

ing its adoption, the dissent insisted, however, that Minnesota's legis-

lative effort to assist mortgage debtors was precisely the kind of state

action the Clause was designed to prevent.28

Two cases in the late 1970's, United States Trust Co. v. New

Jersey 29 and Allied Structural Steel Co. v. Spannaus,30 continued to

employ BlaisdelFs balancing approach, but both were less deferential to

the state in their outlook. In United States Trust, the Court, in a 4-3

decision, invalidated New Jersey's statutory repeal of a bond covenant

limiting the use of certain transportation reserves and revenues. Because

the repeal benefitted New Jersey by giving it greater financial flexibility,

the Court closely scrutinized the state's justifications for it. The Court

found that a total repeal of the covenant was not essential because the

state had other reasonable means, apart from using the funds restricted

by the covenant, to attain its goal of improving mass transit.31

23 107 S. Ct. 2378 (1987).

24 Id. at 2381-82, 2389.

25 290 U.S. 398 (1934).

26 Id. at 416-18, 428, 444-47.

27 Id. at 445.

24 Id. at 465 (Sutherland, J., dissenting).

29 431 U.S. 1 (1977).

30 438 U.S. 234 (1978).

"431 U.S. at 25-26, 29-31.

109
In Allied Steel, the Court invalidated a Minnesota law that

increased the pension obligations of certain companies that were closing

their Minnesota facilities.32 The Court concluded that the statute

substantially modified the contractual obligations embodied in Allied's

pension plan, an area in which Allied had no reasonable basis to expect

regulation.33 Furthermore, distinguishing Blaisdell, the Court con-

cluded that the statute did not address a widespread problem, but rather

focused on a narrow class of employers.34 Three dissenting Justices

argued, however, that Minnesota's law did not impair contractual

obligations but rather, like "all positive social legislation," imposed new

burdens on a particular class.35

Notwithstanding United States Drust and Allied Steel, more recent

cases have upheld state laws having an adverse effect on contractual

obligations. In Energy Reserves Group v. Kansas Power & Light,36 the

Court held that in view of the extensive regulation of natural gas prices,

legislation nullifying price escalator clauses did not substantially impair

reasonable contractual expectations.37 Six justices in Energy Reserves

also found the state's police power interest in regulating prices suffi-

ciently strong to outweigh the interests protected by the Contract

Clause.38 Similarly, in Keystone, the Court found that Pennsylvania's

environmental interest in preventing the collapse of surface structures

was more than adequate to void contractual provisions allowing for

unrestricted underground mining.39 The Court dismissed the mining

companies' agreements as contracts "with some previous owners of

property generations ago." 40

In summary, interpretation of the Takings and Contract Clauses

has usually balanced the economic liberties the Clauses were designed to

protect against other governmental interests. In interpreting the Takings

Clause, the Court has in the areas of permanent physical occupations

and certain temporary regulatory takings adopted blanket rules protect-

ing private property. For other government regulatory actions, it has

usually not found a taking unless the property as a result of the

32 4 38 U.S. at 250-51.

33 Id. at 244-50.

34 Id. at 247-49.

35 Id. at 251 (Brcnnan, J., dissenting).

36 459 U.S. 400(1983).

37 Id. at 415-16.

3* Id. at 416-18.

39 Keystone, 107 S. Ct. at 1252-53. The regulations at issue in Keystone were also

challenged on Takings Clause grounds. See notes 8-11 and accompanying text, supra.

40 107 S. Ct. at 1252.

110
regulation had no economic value or unless there was no substantial

relationship between the purpose of the regulation and the affected

private activity. Even more than in its interpretation of the Takings

Clause, the Court has balanced the liberties protected by the Contract

Clause against other governmental interests. The Court generally has

allowed contractual impairments unless either a state government's self-

interest was involved or the impairment appeared to result from

narrowly drawn special-interest legislation. As the Court enters the

1990's, its recent decisions suggest that property rights shielded by the

Takings Clause may receive increased protection. In the Court's Con-

tract Clause jurisprudence, however, there is no hint yet of such a

change.

B. Possible Developments in the Future

The Court's Takings and Contract Clause jurisprudence reflects

disagreement over both the importance of the economic liberties

protected by these provisions and the role of the courts in protecting

them. In addressing these issues, the Court in the next decade could take

sharply divergent roads. On the one hand, the Court could treat

economic liberties in a manner more comparable to the way it treats

other individual liberties, such as those protected by the First

Amendment.41 Alternatively, the Court could view these economic

liberties as interests that may be impaired whenever, in its view,

governmental regulatory interests outweigh them.

During the next decade, the Court is likely to face new challenges to

its Takings Clause doctrine that government must provide compensation

when it causes a permanent physical occupation of real property. For

example, the issue of the need for compensation might arise were a city to

require that part of all apartment or office complexes be made available

without charge for day-care or recreational facilities. If the Court adheres

to Loretto's per se rule, which views any permanent physical occupation of

real estate as a taking, the apartment or office owner would be entitled to

compensation.42 Alternatively, the Court could take the balancing ap-

proach of the Loretto dissent, weighing such factors as the law's overall

economic impact on the building owner and the government's interest in

41 Cf. Pennell v. City of San Jose, 108 S. Ct. 849, 860 (1980) (Scalia, J., dissenting)

(suggesting Court should hear facial challenge to statute on Takings Clause grounds

as readily as it would hear challenge to racial classification on Equal Protection

Clause grounds).

42 See notes 3-7 and accompanying text, supra.

Ill
regulating the use of the property.43 Under the latter approach, the Court

might decide that the state can require such unprofitable uses of private

property without providing compensation.

In the regulatory area, the Court will continue to confront

regulations that, by destroying part of a piece of property without

destroying the whole, thereby adversely affect investment-backed expec-

tations. In Penn Central and Keystone, the Court denied compensation

to the landowners after examining the law's impact on the totality of the

property interest.44 The Court in the future may adhere to this

approach. Alternatively, as suggested by the dissent in Keystone, the

Court could take the position that the loss of an identifiable property

interest through regulation, like a physical taking, requires compensa-

tion. Under this approach, the loss of only some of the mining

companies' coal in Keystone would reduce the amount of compensation

payable, but it would not determine whether there was a taking.

A second factor the Court has used in assessing regulatory takings,

the extent to which an individual property owner is singled out for

special burdens, is also likely to receive renewed attention in the 1990's.

For example, a comprehensive plan might limit development on espe-

cially "scenic" property but not on surrounding land. Adhering to Penn

Central, the Court might hold that the owners of such property, like the

owners of historic landmarks in New York City, would not receive

compensation.45 The Court thus would determine whether or not

private property had been taken by weighing the public interest in the

regulation against the extent of the private loss. On the other hand, if

the Court adopted the view of the Penn Central dissent, it might require

compensation when owners of scattered property are required to

maintain their property in one condition while their neighbors are

permitted more profitable development. If it took this approach, the

Court might view the Takings Clause as particularly designed to prevent

uncompensated government actions having a disproportionate impact

on an individual or a small group.46

One of the major issues facing the Court in the 1990's will be

legislative action conditioning an otherwise available benefit on the

43 Cf. Loretto, 458 U.S. at 453 n.10 (Blackmun, J., dissenting) (state requirement that

landlord allow third party to install swimming pool or vending machines for tenants'

benefit would present difficult takings problems under balancing test).

44 Penn Central, 438 U.S. at 130-31; Keystone, 107 S. Ct. at 1249. See text accompa-

nying notes 8-11, supra.

45 See text accompanying notes 12-14, supra.

46 See Epstein, Taxation, Regulation, and Confiscation, 20 Osgoode Hall L.J. 433,

437-38 (1982).

112
relinquishment of a property interest. For example, many municipalities

condition new residential or commercial construction on the developer's

willingness to build a certain number of subsidized housing units or to

contribute to a fund for this purpose.47 Other common requirements

include the construction of roads benefitting not just the new development

but the public generally and special school fees for new projects of all

kinds.48 In the environmental area, a landowner may have to remove toxic

substances in exchange for permission to build on his property, even

though his development creates no health risk and does not increase the

environmental problem.49 The Court could give local governments sub-

stantial discretion in this area by allowing them to regulate so long as the

regulation is rationally related to a legitimate public purpose. Under this

approach, probably none of these development conditions would amount

to a taking. Alternatively, following its holding in Nollan, the Court may

insist that any such condition is a taking unless, without the new

construction, the problem the condition sought to address would be less

severe.50 The Court might take this approach because of a belief that the

problems of inadequate highways, schools, and other public facilities result

not from new development but from population growth. Thus, like the

view the Penn Central dissent took of the burden imposed on certain

landmark owners, the Court might consider many development conditions

a taking because they disproportionately single out a small group to meet

society's larger needs.

Similar concerns may underlie the Court's approach in the future to

ordinances, like the rent control law in Pennell,51 that require the owners of

nursing homes or hospitals to provide free or below-market-price care to

impoverished patients. Other ordinances might require the owners of

unused property to give squatters certain rights. Using a balancing

analysis, the Court could sustain such laws, even though they fail to

provide adequate compensation, as long as they do not totally destroy the

owners' property interests. On the other hand, the Court could adopt the

approach of the dissent in Pennell and hold that because owners have not

caused the poverty of poor patients or squatters, they alone cannot be

made to bear the burden of assisting them.

47 See Recent Development, Constitutional Law: Eminent Domain and Conditional

Grants of Building Permits—Nollan v. California Coastal Commission, 11 Harv. J.L.

& Pub. Pol'y 265, 270-71 (1988).

48 See Falik & Shimko, The "Takings" Nexus—The Supreme Court Chooses a New

Direction in Land-Use Planning: A View from California, 39 Hastings L.J. 359, 381,

391-94 (1988).

49 Id. at 395.

50 See text accompanying notes 15-18, supra.

51 See notes 19-22 and accompanying text, supra.

113
Another issue the Court may face in the next decade is when a

subsequently abandoned government regulation entitles the affected

party to compensation for the time the regulation was in effect. A

landowner might, for example, want to build apartments on land zoned

for agriculture. If a court determined that the restriction, provided it

remained in effect, would constitute a taking, the local government

might want to rescind the regulation rather than pay for the full value of

the property interests taken. The Supreme Court would then have to

decide whether the landowner was entitled to compensation for the

period during which the regulatory taking was in effect.52 Following the

approach in First English, the Court might hold that, once a regulatory

action causes a taking, the government must pay compensation for the

time it is in effect.53 On the other hand, the Court could balance the

diminution in value during the interim period against the value of the

landowner's right to develop his property now. It might also consider

the extent to which requiring compensation would hinder the land-use

planning efforts of local governments.

In addition to physical and regulatory takings, a third area in

which the Court may face Takings Clause challenges in 1990's is

taxation. Traditionally, the Court has been extremely deferential to the

representative branches of government in this complex area. Arguing,

however, that taxation, regulation, and confiscation are analogous

governmental actions, Professor Epstein insists that the right to com-

pensation under the Takings Clause should not be dependent on the

label attached to the particular governmental action.54 Epstein cites as

an illustration Montana's tax of up to 30% on the contract price of

mined coal.55 In Epstein's view, the tax unfairly burdened the coal

companies, just as the companies would have been burdened had the

state confiscated their coal without compensation.56 In the 1990's, the

Court could adopt Professor Epstein's view that under the Takings

Clause, the government should be able to impose a special tax on a

small group only if that group receives in return particular government

services of comparable worth. Alternatively, the Court could hold that

52 See Epstein, Takings: Descent and Resurrection, 1987 Sup. Ct. Rev. 1, 30-31.

"See text accompanying notes 23-24, supra.

*54 Epstein, supra note 46, at 433-35.

55 Id. at 445. Other examples Epstein gives are the federal tax imposed on coal mines to

provide black lung benefits and the windfall profits tax on crude oil. Id. at 442-45.

The Court sustained Montana's coal severance tax against a challenge that it

offended the negative implications of the Commerce Clause in Commonwealth

Edison Co. v. Montana, 453 U.S. 609 (1981).

56 See Epstein, supra note 46, at 433-35.

114
taxes, unlike regulations or confiscations, no matter how skewed their

incidence, are a legislative matter and not subject to the restrictions of

the Takings Clause.

Still another Takings Clause issue that the Court may face in the

next decade is whether, as Professor Laurence Tribe suggests, benefits

under governmental entitlement programs should be deemed "private

property" and thus subject to the protection of the Clause.57 If the

Court found that such benefits are entitled to constitutional protection,

it could prohibit or severely limit legislative changes that adversely

affect the beneficiaries of these programs. For example, the Court might

hold that Congress could not reduce social security cost-of-living

increases in an effort to address the budget deficit. Similarly, the Court

might decide that a beneficiary's interest in other state or federal

programs should be constitutionally protected. In Tribe's view, the

Court should take this approach because beneficiaries' expectations of

certain benefits are so strong as to make their interest the equivalent of

traditional forms of private property.58 Alternatively, the Court could

reaffirm its holding that because the representative branches of govern-

ment do not have to create benefit programs, they are free to alter the

terms of such programs at any time.59 Such a decision would reflect a

continued belief that public welfare payments and subsidies cannot

properly be equated with more traditional forms of property.

In interpreting the Contract Clause during the next decade, one

issue the Court again may face is whether to uphold a state modification

of its own contractual obligations. Taking one road, the Court could

overrule United States Trust and hold that the legislature has broad

discretion to make such contractual changes.60 Under this approach,

those who contract with state governments would have to rely on the

political process to prevent changes to the terms of their agreements.

Taking the other road, the Court could continue to interpret the

Contract Clause as requiring the states, absent an extremely strong

countervailing interest, to adhere to their freely negotiated obligations.

Another issue the Court may be asked to reconsider is whether the

Contract Clause allows retroactive legislation in such areas as debtor

57 L. Tribe, Constitutional Choices 186-87 (1985). The Court has held that the Takings

Clause does not apply to such benefits. See Bowen v. Gilliard, 107 S. Ct. 3008, 3019

(1987) (benefits under the Aid to Families with Dependent Children program); United

States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174 (1980) (social security and

railroad pension benefits).

5> L. Tribe, supra note 57, at 186.

59 Bowen, 107 S. Ct. at 3019; Fritz, 449 U.S. at 174.

60 See notes 29-31 and accompanying text, supra.

115
relief. For example, in an economic downturn, states might enact

legislation extending the time for payment of installment loans, farm

debts, home mortgages, and other kinds of indebtedness. They also

might reduce the interest rate or modify other aspects of their debtors'

obligations. Under the deferential balancing approach it took in

Blaisdell, the Court might uphold such laws if it concluded that the

state's interest in imposing the restraint outweighed the degree of

contractual impairment.61 Under a more rigorous and less deferential

balancing approach, the Court might uphold such laws only if the state

presented substantial, or even compelling, reasons for its action.

Finally, under an approach that took the language of the Contract

Clause literally to mean what it appears to say, the Court might simply

prohibit such modifications of contractual agreements. The Court's

approach in the 1990's will depend on whether it views the Contract

Clause, as it did in Keystone,62 as a minor and perhaps anachronistic

check on state legislation, or whether it believes the freedom of contract

the Clause protects is an important individual liberty.

One far-reaching step the Court could take in the 1990's is to hold

that the Contract Clause applies to impairments not just of existing

contracts but of future contracts as well. Professor Epstein suggests that if

the Clause does not apply to future contracts, it could be rendered

meaningless by a state law prohibiting anyone, or any class of individuals,

from entering into any contract.63 Were the Court to agree, it might hold

that the Clause prevents state minimum wage or usury laws, or state laws

prohibiting opticians from prescribing eyeglasses.64 Ever since its 1827

decision in Ogden v. Saunders,65 however, the Court has held that the

Contract Clause only affects retroactive contractual impairments. More-

over, a prospective reading of the Clause would lead to judicial intervention

in an enormous range of state economic regulation. Because similar

intervention under the doctrine of substantive due process has been a

discredited approach ever since the New Deal, the Court might hesitate

before using the Contract Clause for the same ends.66

61 See notes 25-28 and accompanying text, supra.

62 See 107 S. Ct. 1232, 1252 (1987). See text accompanying notes 39-40, supra.

63 See Epstein, Toward a Revitalization of the Contract Clause, 51 U. Chi. L. Rev. 703,

725 (1984).

64 Id. at 725-26.

65 25 U.S. (12 Wheat.) 213 (1827) (4-3 decision).

66 See Epstein, supra note 63, at 703-05. See also Scalia, Economic Affairs As Human

Affairs, 4 Cato J. 703, 706-08 (1985) (suggesting that judicial intervention in

economic affairs could lead to bad results as well as good, and that one form of

"judicial activism" encourages another).

116
Regardless of whether the Court applies the Contract Clause prospec-

tively, another way in which the Court could expand the Clause's protec-

tion of economic liberties is to limit exercises of the states' police power in

a way that impairs the freedom of parties to contract. One such limit would

be to restrict the state's ability to alter the terms of contracts to instances in

which those terms may violate the rights of a third party.67 For example, the

Court might strike down legislation nullifying contractual provisions that

pass taxes on to consumers.68 The Court might take this approach if it

decided that the Contract Clause applies regardless of whether the state

legislation affects a large or small group. On the other hand, the Court

could continue, as it has since the 1930's, to apply a deferential balancing

analysis. Under this approach, the Court might permit the contractual

impairment so long as it was not the result narrowly drawn special interest

legislation and was a reasonable exercise of the state's police power.

If the Court does find that the Takings Clause shields the liberty of

private property from government interference much the same way the

First Amendment shields the liberty of speech, that will not prevent

government from protecting historic landmarks or providing assistance

for impoverished tenants. It will mean, however, that legislatures will

not be able to impose these costs solely on the owner of the historic

landmark or on the tenant's landlord. Similarly, if the Court gives

greater protection to private contracts under the Contract Clause, it will

not leave state and local governments unable to exercise their traditional

police powers. Because contracts are a form of property, states would be

able to interfere with contractural obligations as long as they were

willing to pay compensation under the Takings Clause. The question for

the Court in the next decade, therefore, is not whether government can

act in the public interest, but rather whether, in doing so, it must

compensate those whose property interests it adversely affects.

C. Potential Controversies for the 1990's

The following lists some of the issues in the area of economic

liberties that the Court may confront in the next decade:

— Will government actions that impinge on the economic liberties

protected by the Takings and Contract Clauses receive the kind of

close judicial scrutiny typically accorded infringements of other

liberties protected by the Constitution?

— Will the owner of an apartment or office building be entitled to

See Epstein, supra note 63, at 732.

See id. at 738-40.

117
compensation under the Takings Clause if government requires

him to use part of his property for such things as day care or

recreational facilities?

Will a regulation that destroys only part of a larger property

interest, such as a mining company's interest in some of its coal,

require compensation under the Takings Clause?

Will owners of properties suffering losses from historic preserva-

tion ordinances that impose no burdens on surrounding properties

be entitled to compensation under the Takings Clause?

Will the Takings Clause require compensation for a landowner

who, in order to develop his property, must build a highway

benefitting the public generally?

Will the Takings Clause require compensation for a landlord who

has to reduce his rent in cases of tenant hardship?

Will special taxes, such as large levies on coal severance, that

disproportionately burden a small group, be declared unconstitu-

tional under the Takings Clause?

Will reductions in governmental entitlement benefits be viewed as

impermissible takings under the Takings Clause?

Will holders of state government bonds continue to be protected

under the Contract Clause from unilateral alteration in their terms

by state governments?

Will the Contract Clause prevent states from altering the terms of

private contracts to provide relief for debtors?

Will the Contract Clause be interpreted to prevent states from

limiting, through such means as usury and minimum wage laws,

contracts executed in the future?

118
11. Will the Courts Become More Involved in

Deciding Controversies Pertaining to the

Executive's Authority under Article II in the

Areas of Foreign Policy and National Defense?

A. Background

During the last two decades, Congress increasingly has challenged

the Executive's authority to determine United States foreign policy.

Members of Congress and academic commentators have expressed the

opinion that the Executive Branch, under the Constitution, does not

have pre-eminent authority in foreign affairs. These critics of Executive

power instead have argued that United States foreign policy is subject to

co-determination by both political branches of the federal government.1

While the debate over Executive authority has been intensifying,

the federal judiciary has become more involved with issues relating to

foreign policy. First, in an effort to increase its involvement in foreign

affairs, the Congress has sought to procure judicial assistance. For

example, having enacted legislation constraining the President's foreign

policy activities, Congress has sought to enforce this legislation in the

courts.2 In addition, private parties, displeased with various facets of

United States foreign policy, also have called upon the federal courts to

assist in attaining their own policy objectives. Thus, with increasing

frequency, federal courts have been called upon to arbitrate foreign

policy disputes involving either the two political branches of the federal

government or the government and private parties.

Given these developments, the question of the proper role of the

federal courts in adjudicating foreign-policy-related controversies is one of

major significance. Over the years, the courts have developed a number of

general constraints—some prudential, some based on constitutional

requirements—on their jurisdiction to hear legal disputes. Using these

1 This debate has historical antecedents, as demonstrated by the Pacificus-Helvidius

exchanges that pitted Alexander Hamilton, who supported presidential supremacy in

foreign affairs, against James Madison, who argued that Congress, not the President,

was empowered to shape United States foreign policy. For a discussion of this issue

in the contemporary context, see, e.g., Rodman, The Imperial Congress, National

Interest (Winter, 1985). For a historical review of the struggle between Congress and

the Executive regarding the foreign affairs powers, see, e.g., E. Corwin, The

President: Office and Powers, 184-85 (4th rev. ed. 1957).

2 See, e.g., Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (seeking an order to have

the President comply with the reporting requirements of the War Powers Resolution).

119
constraints, the federal courts often have declined to reach the merits of the

controversies brought before them. This has been especially true in cases

presenting foreign policy issues. The courts traditionally have been reluc-

tant to become entangled in foreign policy disputes or to challenge the

decisions reached by the political branches in this area.3

One constraint on judicial review of foreign policy decisions is the

political question doctrine.4 In its classical formulation, this doctrine,

which can be traced to Marbury v. Madison,5 holds that the Constitu-

tion commits the resolution of certain matters to the political branches

of government, thus making judicial review inappropriate. The under-

pinning of this formulation of the political question doctrine is the

principle of separation of powers.6 Thus, the political question bar to

jurisdiction is triggered whenever "the Constitution has committed to

another agency of government the autonomous determination of the

issue." 7 The courts applied this doctrine in a number of early cases

involving issues related to foreign policy, claiming that the resolution of

such issues was within the constitutional authority of either the

President or Congress.8 In several instances, the courts have dismissed

3 See, e.g., Chicago and S. Air Lines, Inc. v. Watermann S.S. Corp., 333 U.S. 103,111

(1948) (the judiciary lacks the "aptitude, facilities [and] responsibility" to make

foreign policy determinations); United Stales v. Pink, 3I5 U.S. 203, 222-23 (1942)

(citing United States v. Belmont, 301 U.S. 324, 328 (1937) ("[T]he conduct of foreign

relations is committed by the Constitution to the political departments of the Federal

Government; ... the propriety of the exercise of that power is not open to judicial

inquiry."). But see First National City Bank v. Banco Nacional de Cuba, 406 US.

739, 768 (1972), in which both Justice Powell and Justice Brennan challenged the

propriety of judicial acquiescence in foreign affairs matters; id. at 773-6. (Powell, J.,

concurring); id. at 778-96 (Brennan, J., dissenting).

4 See Firmage, The War Powers and the Political Question Doctrine, 49 U. Cola L.

Rev. 65, 66 (1977).

5 5 U.S. (1 Cranch) 137, 165-66 (1803) (dictum that discretionary actions of the

President in the realm of foreign affairs are nonreviewable by the courts). See also

Gaines v. Thompson, 74 U.S. (7 Wall.) 347, 349 (1808) ("[Discretionary] acts

of . . .an [executive branch] officer, . . . can never, as [those of] an officer, be

examinable in a court of justice.").

'According to James Madison, the "accumulation of all powers, legislative, executive

and judicial, in the same hands, whether of one, a few, or many, and whether

, hereditary, self-appointed, or elective, may itself be pronounced the very definition of

tyranny." 77k Federalist No. 47, 301 (J. Madison) (C. Rossiter ed. 1961). See also,

Youngstown Sheet and Tube Co, v. Sawyer, 343 U.S. 579, 593-94 (1952); Myers v.

United States, 111 U.S. 52. 293 (1926).

7 See, e.g., Baker v. Can, 369 U.S. 186,217 (1962). See also Wechsler, lb ward Neutral

Principles of Constitutional Law, 73 Harv. L. Rev. 1, 7-8 (1959).

1 See, e.g., Oetjen v. Central Leather Co., 246 US. 297, 301 (1918) (Executive's

recognition of Mexican government binding on the courts); Jones v. United States,

(continued . . .(

120
foreign policy cases without deciding which of the political branches

had authority under the Constitution to resolve the issue.9

Another formulation of the political question doctrine is rooted in

prudential reasons for avoiding jurisdiction. Under this formulation,

the courts for various reasons may refuse to decide a dispute even

though the matter is not textually committed to one of the political

branches.10 It has been argued, for example, that the courts may

properly refuse to consider the merits of otherwise justiciable contro-

versies because of "the fear of the consequences that a decision on the

merits might entail." 11 Similarly, it has been claimed that courts should

not resolve disputes that require policy decisions calling for nonjudicial

discretion, or that call for adherence to political decisions already made.

Finally, it has been suggested that the political question doctrine is

implicated whenever the judiciary is unable to obtain the necessary

information to decide the dispute.12 All these circumstances, of course,

often are present in foreign-policy-related cases.

A frequently cited prudential basis of non-justiciability is the

principle that the judiciary, whenever possible, should avoid resolving

conflicts between Congress and the President. In Goldwater v. Carter,™

for example, Senator Goldwater brought suit claiming that President

Carter lacked the constitutional power to abrogate, without Senate

concurrence, a mutual defense treaty with Taiwan. The Court ordered

the case dismissed as a nonjusticiable political dispute, but a majority

of the Court could not agree on a rationale. Justice Rehnquist's

plurality opinion, which referred to various aspects of the political

* (. . . continued)

137 US. 202, 212 (1890) (de jure or de facto sovereign of territory is not a judicial but

a political question); Williams v. Suffolk Insurance Co., 38 U.S. 415, 419-20 (1839)

(President's determination of sovereignty of foreign territory "conclusive on the

judicial department").

'See, e.g., Goldwater v. Carter,-444 U.S. 996, 1001 (1979) (political question presented

because case involved "the authority of the President in the conduct of our country's

foreign relations and the extent to which the Senate or the Congress is authorized to

negate the action of the President"). See also Atlee v. Richardson, 411 U.S. 911

(1973) (concluding that whether the United States was at war with Vietnam was not

a suitable matter for the courts).

10 See, e.g.. Baker v. Carr, 369 U.S. 186, 217 (1962).

"Finkelstein, Judicial Self-Limitation, 37 Harv. L. Rev. 338,344-45 (1924). See also A.

Bickel, The Least Dangerous Branch 183-98 (1962); C. Post, The Supreme Court and

Political'Questions (1969); P. Strum, The Supreme Court and "Political Questions":

A Study in Judicial Evasion 140-45 (1974).

12 See, e.g.. Baker v. Carr, 369 U.S. 186, 217 (1962); Coleman v. Miller, 307 U.S. 433,

454-55 (1939); Scharpf, Judicial Review and the Political Question: A Functional

Analysis, 75 Yale L.J. 517, 566 (1966).

13 444 U.S. 996 (1979).

121
question doctrine, emphasized that each of the co-equal political branches

of government "has resources available to protect and assert its interests,

resources not available to private litigants outside the judicial forum." 14

Given the availability of such self-help remedies, the opinion suggested that

it was preferable for the courts to decline to referee such encounters.

Concurring in the judgment, Justice Powell rejected the plurality's reliance

on the political question doctrine.15 In Powell's view, the issue of treaty

termination was not committed to the President alone. Moreover, the

Court could resolve the issue, he insisted, by applying "normal principles

of interpretation to the constitutional provisions at issue." 16

Federal courts also have invoked the concept of standing to restrict

the justiciability of issues relating to foreign policy. Recently, however,

it has been suggested that individual members of Congress have

standing to sue executive branch officials whose actions impair the

lawmaking function of Congress. For example, in Kennedy v.

Sampson,*1 Senator Kennedy brought suit against the Administrator of

the General Services Administration to compel publication of a bill as

a validly enacted law. The Executive Branch claimed that the bill had

never become law because the President had exercised a pocket veto. The

court held that Senator Kennedy had standing because the purported

pocket veto threatened to diminish his sphere of legislative power by

preventing properly enacted statutes from becoming law. Likewise, in

Goldwater v. Carter,™ the lower court found standing because of the

injury to the congressional plaintiffs' alleged right to a voice in the

decision to terminate a mutual defense treaty with Taiwan.

To the extent that the courts have overcome the doctrines restrict-

ing the justiciability of foreign policy issues, their opinions on the

merits have been mixed. Affirming the right of the Executive Branch to

shape foreign policy, a number of decisions have employed language

strongly implying the plenary nature of the President's foreign affairs

powers.19 Other decisions, however, have supported the view that the

14 Id. at 1004.

"Id. at 998-1002 (Powell, J., concurring).

16 Id. at 999.

17 511 F.2d 430 (D.C. Cir. 1974).

"617 F.2d 697 (D.C. Cir.), vacated on other grounds, 444 U.S. 996 (1979).

19 See, e.g.. United States v. Curtiss-Wright Export Co., 299 U.S. 304, 319-20 (1936)

(President "alone has the power to speak or listen as a representative of the nation":

President "not Congress has the better opportunity of knowing the conditions which

prevail in foreign countries"); Chicago and Southern Air Lines, Inc. v. Waterman Steam-

ship Corp., 333 U.S. 103, 109 (1948) (President's foreign policy actions, often based on

secret intelligence, ought not be disturbed by courts with no access to such data).

122
Congress has extensive foreign affairs powers that stem from its

enumerated powers in Article I, such as, for example, the power to

declare war, and from the "necessary and proper" clause.20 Moreover,

the decisions upholding the exercise of the President's foreign affairs

powers typically have found that the Executive was acting with congres-

sional approval.21 In fact, in The Steel Seizure Case, the only significant

case involving foreign policy in which the element of congressional

approval was absent, the Supreme Court concluded that the Constitu-

tion did not authorize the President's action in seizing the steel mills to

avert a strike that would have adversely affected the nation's efforts in

the Korean war.22

Despite their occasional willingness to consider the merits of

foreign policy cases, the courts have failed to rule definitively on a

number of controversial, contemporary foreign policy questions. Such

questions include, for example, whether the President can unilaterally

terminate a treaty,23 and whether the President has the authority to

overrule statutes through the medium of executive agreements with

foreign nations.24

20 See, e.g., Perez v. Brownell, 356 U.S. 44,57 (1958) ("Although there is in the

Constitution no specific grant to Congress of power to enact legislation for the

effective regulation of foreign affairs, there can be no doubt of the existence of this

power in the law-making organ of the nation . . . ."); Fong Yue Ting v. United

Stores, 149 U.S. 698, 713 (1893) ("The power [to control foreign policy] . . . being

a power affecting international relations, is vested in the political departments of the

government, and is to be regulated by treaty or by act of Congress.").

21 See, e.g., Dames & Moore v. Regan, 453 U.S. 654 (1981); Chicago and Southern Air

Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948); United States v.

Curtiss-Wright Export Co., 299 U.S. 304 (1936).

22 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In this case, Justice

Jackson, in a concurring opinion, developed a three-part analysis of the President's

foreign affairs powers, noting that they were strongest when the President acted in

harmony with an act of Congress, and weakest when the President acted contrary to

Congressional will. Id at 635-36 (Jackson, J., concurring). See also Dames A Moore

v. Regan, 453 U.S. 654 (1981) (referring to Jackson's analysis). Jackson's three-part

analysis, however, has never been used by the Court as the basis for a holding in a

foreign policy case.

23 Given the basis of Justice Powell's concurrence in Goldwater v. Carter, AAA U.S. 99

(1979), the question of whether a President has the unilateral right to terminate a

treaty, which does not entail recognition of a foreign government, remains open for

possible judicial consideration. See notes 13-16 and accompanying text, supra.

24 See, e.g.. United States v. Guy W. Capps, Inc., 204 F.2d 655, 658 (4th Cir. 1953)

("[T]he executive agreement was void because it was not authorized by Congress and

contravened provisions of a statute dealing with the very matter to which it

related . . . ."), aff'd on other grounds, 348 U.S. 296 (1955); Restatement of the

Law, 3d, Foreign Relations Law of the United States, § 144(1) (1985).

123
B. Possible Developments in the Future

The doctrines constraining judicial consideration of foreign policy

issues and requiring judicial deference to Executive foreign policy

determinations are in an unsettled state. Significant differences of

opinion exist within the Supreme Court and in the lower courts as to the

appropriate judicial approach to these issues. Thus, major changes in

these areas may occur in the 1990's, and the unresolved question is

which direction such changes will take.

Specifically, the Court has a choice in the next decade between two

quite different approaches. With regard to questions of justiciability,

the Court either could move in the direction of eroding such barriers to

adjudication of foreign policy cases as the political question doctrine

and the standing requirement, thereby assuming a greater role in

resolving foreign policy issues, or it could strictly enforce or even extend

these impediments to adjudication, thereby leaving the determination of

significant foreign policy issues primarily for the political branches of

government. To the extent the Court decides to become involved in the

merits of foreign policy issues, its choices are between recognizing the

pre-eminent authority of the Executive Branch in this area or permitting

a greater role for the Congress and the federal judiciary in deciding such

questions. Of course, the possibility remains that the Court will weave

between these alternative courses on an ad hoc basis. Nevertheless, it

can be expected that the tensions generated by these competing ap-

proaches will continue to have an impact on the Court's decisions in the

future.

With regard to the political question doctrine, the Supreme Court

in the 1990's could decide to limit the doctrine so that it more readily

can adjudicate the merits of major foreign policy controversies between

the President and Congress. There are indications that at least some of

the lower courts are inclined to move in this direction. In Lowry v.

Reagan,25 for example, the district court considered a challenge by 110

members of the House of Representatives to the President's failure to

comply with the reporting requirements of section 4(a)(1) of the War

Powers Resolution.26 The court declined to accept jurisdiction, noting,

among other things, that several bills to compel the President to invoke

this section failed to pass Congress. Significantly, however, the court

also suggested that "[a] true confrontation between the Executive and a

unified Congress, as evidenced by its passage of legislation to enforce

25 676 F. Supp. 333 (D.D.C. 1987).

26 50 U.S.C. § 1543(a)(1) (1982).

124
the [War Powers] Resolution, would pose a question ripe for judicial

review." 27

The court's reasoning in Lowry is not altogether clear. If the

political question doctrine does not preclude the adjudication of

disputes between the Congress and the President that stem from the War

Powers Resolution, it is unclear why Congress should have to reaffirm,

by enacting yet another statute, that the War Powers Resolution should

apply. Conversely, however, if such disputes are barred by the political

question doctrine, the bar would seem equally applicable even if

Congress took yet another vote on the subject. Nevertheless, the court

in Lowry implied that such an additional vote would have presented a

stronger case for exercising jurisdiction to adjudicate the issue of the

constitutional prerogatives of the President to dispatch military forces

abroad in the absence of congressional declaration of war.

In the area of standing, the choice between the competing ap-

proaches is best illustrated by the issue of congressional standing. One

approach for the Court would be to follow those lower court cases that

have granted standing to legislators alleging that executive actions

diminished or diluted their voting power.28 The potential of this

approach for increasing judicial involvement in foreign policy matters

obviously is great, for inasmuch as Congress may vote on virtually any

foreign policy issue, unilateral executive action almost always can be

said to have an adverse impact on congressional voting power. Thus,

this approach, if followed to its logical conclusion, could result in the

courts having jurisdiction in virtually all cases in which Congress

decides to challenge the Executive's exercise of foreign affairs powers.

Alternatively, however, the Court could decide either that the political

branches must resolve for themselves their foreign policy differences or

that congressional standing would be appropriate only when the

Constitution is fairly clear in requiring the joint action of both political

branches.

Aside from justiciability, the most significant question that the

Court may confront in the near future is whether to assume an active

role in reviewing the Executive's foreign policy determinations. One

distinct line of cases offering opportunities for increased judicial review

involves situations in which such determinations implicate private

rights. The Court, for example, could be presented with a case involving

a request for damages or equitable relief because a covert operation,

27 Lowry, 626 F. Supp. at 339 (citations omitted).

M E.g., Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.), vacated on other grounds, 444

U.S. 996 (1979); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).

125
purportedly carried out by the Executive in contravention of Congres-

sional intelligence oversight guidelines, resulted in damage to private

property.29 Similarly, the Court could confront a case in which a

member of the armed forces, claiming that he was sent abroad in

violation of the War Powers Resolution, brought a lawsuit against the

Executive.30

The Court could take two approaches in dealing with such

litigation. On the one hand, it could view such private lawsuits as an

opportunity to scrutinize the Executive's foreign policy decisions. It

could do this by ruling that the private party should prevail when the

Executive, in the judgment of the Court, overstepped the bounds of its

constitutional authority. This approach can be supported by the

argument that, in our constitutional system, it is the province of the

courts to protect individual rights, and that deference to the Executive

Branch, even in the foreign policy area, would extinguish these rights.

Alternatively, the Court could decide that the existence of a private

claim cannot justify relaxing either the justiciability constraints on the

adjudication of foreign policy issues or the deference traditionally owed

by the courts to the Executive Branch in this area. This latter approach

can be supported by the argument that the existence of a private injury

The fact that such a situation would not be far-fetched is demonstrated by a recent

case. In Ramirez v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984), the plaintiffs sought

to enjoin the United States Government from constructing or operating a military

and intelligence training center on their land in Honduras. The district court

originally held that the case presented a nonjusticiable political question. The Court

of Appeals, however, reversed and remanded, holding that the case was justiciable.

Depending on the relief being sought, such a lawsuit may be difficult to sustain. For

example, the Federal Torts Claims Act (FTCA)—the primary procedural vehicle for

seeking money damages from the government—contains express exceptions for

claims "arising in a foreign country," or "arising out of the combatant activities of the

military or naval forces, or the Coast Guard, during time of war." 28 U.S.C.

§ 2680(j), (k). Moreover, FTCA suits by members of the armed forces against the

government for injuries received during the course of an activity incident to their

military service have been barred by the so-called Feres doctrine, which holds that

such suits would adversely affect military discipline and impair the distinctively

federal character of the relationship between the government and armed forces

personnel. Thus, the statutory veterans' disability and death benefits system provides

the sole remedy for service-connected injuries. See, e.g.. United States v. Shearer, 473

U.S. 52 (1985); Feres v. United States, 340 U.S. 135 (1950). However, it might be

argued that the Feres doctrine should not apply where the gravamen of the complaint

is not a negligent act by a military commander incident to regular military service, but

rather an allegedly unlawful act by the President in sending troops into combat.

Although the prospects of success with such an argument might seem dubious, one

can also envision efforts to obtain injunctive relief to prevent the President from

sending armed forces into combat without congressional authorization.

126
cannot be made the vehicle for reviewing the Executive's foreign policy

decisions without greatly increasing the potential for counterproductive

judicial oversight of such decisions.

A recent case, Rainbow Navigation Inc. v. Department of the

Navy,31 illustrates how a private claim can be used to entangle the

judiciary in foreign policy issues and in ongoing disputes between the

two political branches. The case involved a treaty between the United

States and Iceland that, among other things, established a procedure for

competitively awarding contracts for the shipment of military cargoes

between the two countries. In the process of obtaining Senate "advice

and consent" to the treaty, Executive Branch officials made statements

indicating that the Rainbow Navigation Company would benefit from

the treaty's competitive bidding provisions, but after the treaty's

ratification, Rainbow Navigation brought suit claiming that the Navy

failed to conform to the Executive's earlier representations. Despite the

well settled principle that a treaty is a compact between nations whose

meaning, as a matter of domestic law, must be determined by examining

the agreement reached by the signatories,32 and notwithstanding the fact

that the issue of the legal effect of Executive testimony regarding a

treaty being considered by the Senate is one of ongoing constitutional

debate between the Executive and the Senate,33 the court rejected the

government's argument that such representations are not binding and

found in favor of Rainbow Navigation. Disagreeing with the Executive

Branch, the court took the position that a treaty's meaning, as a matter

of domestic law, is determined in part by the representations that the

Executive Branch makes to the Senate.

Under the district's court view in Rainbow Navigation, the

judiciary may impose legal obligations on the Executive that are not

supported by the international obligations the Executive has assumed

under the treaty. Were the Supreme Court to adopt this approach to

treaty interpretation, the Executive's authority to conclude and inter-

pret treaties could be significantly impaired. Alternatively, however, the

Court could disapprove this approach, continue to insist on traditional

deference to Executive views concerning the meaning of treaties, and

adhere to the view that the meaning of a treaty must be determined by

the agreement actually reached by the parties.

31 C.A. No. 88-0992 (D.D.C. May 17, 1988).

32 See generally L. Henkin, Foreign Affairs and the Constitution (1978).

33 This debate has been joined in the context of the interpretation of certain provisions

of the 1972 ABM treaty, and was reinforced by the addition of the so-called Byrd

Amendment to the 1988 INF Treaty. See, e.g., Rivkin, The GOP Must Share the

Blame for the Byrd Amendment, Wall St. J., June 15, 1988, at 24.

127
It also is possible that the Court in the future might be called upon

to arbitrate foreign affairs confrontations between the President and the

Congress which involve private parties. Judicial involvement in such

confrontations may be facilitated by the congressional enactment of

statutes that not only purport to regulate the President's conduct of

foreign affairs, but that also prescribe criminal penalties for Executive

Branch officials who refuse to follow the statute's restrictions. In such

a situation, the courts would be called upon to impose these penalties

and, in the process, to adjudicate the underlying constitutional issue of

the propriety and legitimacy of congressional regulation of the Presi-

dent's foreign policy functions.

The Court in the next decade also may be asked to adjudicate

direct disputes between the Executive and the Congress over their

respective foreign policy powers under the Constitution. One likely

context for such a legal confrontation would be a congressional lawsuit

to enforce the provisions of the War Powers Resolution. Similarly,

confrontations in the area of intelligence policy could take place in view

of the increasing efforts by the Congress to regulate intelligence

activities. If the Congress passed a statute that required the Executive to

provide prior notification of significant intelligence activities, and that

enabled Congress to terminate covert actions of which it disapproved,

an Executive-Congressional dispute, similar to the one over the War

Powers resolution, would almost certainly arise in the courts.

In resolving controversies such as these, the Court could follow

alternative approaches. Under one approach, the Court would uphold

the long-recognized Presidential prerogative to dispatch troops abroad,

to respond to aggression, and to initiate covert intelligence operations.

Under this approach, the Court would adhere to the view that the

President generally has plenary authority in foreign affairs, and it would

protect the President's authority in this area by strictly enforcing

separation of powers principles.34 Alternatively, the Court could hold

that Congress also has broad foreign policy powers under the Consti-

tution. If the Court takes this approach, it could sustain the validity of

most congressional enactments that seek to impose limitations on the

Executive's foreign policy activities, or that seek for Congress a shared

responsibility in foreign policy decisions.

34 See, e.g., Bowsher v. Synar, 478 U.S. 714, 730 (1986); INS v. Chadha, 462 U.S. 919

(1983). But see Morrison v. Olson, 108 S. Ct. 2597 (1988).

128
C. Potential Controversies for the 1990's

The following lists some of the issues pertaining to the Executive's

authority in foreign policy and national defense that the Court may

confront during the next decade:

— Will the political question doctrine be interpreted to prevent the

courts from becoming involved in major foreign policy controver-

sies between the President and Congress?

— Will standing limitations constrain the ability of individual mem-

bers of Congress to challenge the Executive's exercise of foreign

affairs powers?

— If the courts decide the merits of foreign policy disputes between

the President and the Congress, should they uphold the view that

the Executive generally has plenary authority to manage foreign

affairs?

— Does the President have independent constitutional authority

under Article II to use military force abroad to repel aggression

and to protect American lives and property, or can the Congress,

through judicially enforceable restrictions, limit this authority or

require for itself a role in its exercise?

— Does the President have independent authority under Article II to

commence covert operations abroad, or can the Congress, through

judicially enforceable restrictions, limit this authority or require

for itself a role in its exercise?

— Should Executive Branch testimony before the Senate during the

treaty ratification process be used by the courts to limit the

Executive's authority in interpreting a treaty, or should the courts

look no further in interpreting a treaty than the agreement actually

reached by the signatories?

— May the President through an executive agreement pertaining to

foreign policy overturn a prior congressional enactment?

129
12. Will the Tenth Amendment Play a Significant

Role in Protecting the States from Federal

Control?

A. Background

The framers of the Constitution, fearful of excessive power in a

central government, apportioned power between the national and state

governments. They delegated specific powers to the federal government

with regard to matters for which state action was not adequate, such as

interstate commerce and national defense; in other matters, they left the

states with their historical autonomy. The framers saw this dual system of

government, which they called "federalism," as a means to the end of

protecting individual liberties. As James Madison wrote in The Federalist,

In a single republic, all the power surrendered by the people,

is submitted to the administration of a single government;

and usurpations are guarded against by a division of the

government into distinct and separate departments. In the

compound republic of America, the power surrendered by the

people, is first divided between two distinct governments, and

then the portion allotted to each, subdivided among distinct

and separate departments. Hence a double security arises to

the people. The different governments will controul each

other; at the same time that each will be controuled by itself.1

According to one school of thought, the framers expressed the

principles of federalism as constitutional guarantees that are judicially

enforceable. Under this view, the Constitution protects federalism in

two complementary ways. First, the Tenth Amendment limits the ability

of the federal government to interfere with certain classes of state

activities if that interference would jeopardize state autonomy. The

Tenth Amendment provides that "[t]he powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people." Second, the

structure of the Constitution as a whole assumes and guarantees the

existence of independent states. The Supreme Court referred to this

implied guarantee of state autonomy in its 1868 decision in Lane County

v. Oregon,2 noting that each state is "endowed with all the functions

essential to separate and independent existence" and that "in many

1 The Federalist No. 51 at 350-51 (J. Madison) (J. Cooke ed. 1961).

2 74 U.S. (7 Wall.) 71 (1868).

130
articles of the Constitution the necessary existence of the States, and,

within their proper spheres, the independent authority of the States, is

distinctly recognized." 3

According to a competing school of thought, neither the Tenth

Amendment nor the overall structure of the Constitution imposes any

independent, judicially enforceable limits on the ability of Congress to

regulate state activity. Under this view, the Tenth Amendment simply

restates a truism that congressional powers are limited to those enumer-

ated in Article I. This interpretation of the Constitution leaves states

with essentially no judicial protection from federal control, because the

Supreme Court has gradually adopted an expansive and increasingly

limitless view of congressional powers under Article I, especially under

the Commerce Clause. A particularly extreme version of this position,

maintained by Dean Jesse Choper, holds that the courts should not hear

federalism claims at all, even if a federal measure clearly intrudes on the

constitutional autonomy of the states.4 *

The modern debate over judicial protection of state autonomy can

be traced to the Supreme Court's 1968 decision in Maryland v. Wirtz.5

That decision upheld an extension of the Fair Labor Standards Act to

cover employees of state hospitals and schools. Justice Douglas dis-

sented from the Court's decision, arguing that "the 1966 amendments

to the Fair Labor Standards Act disrupt the fiscal policy of the states

and threaten their autonomy in the regulation of health and

education." 6

In 1974, Congress further extended the Act to cover all state

employees.7 When cities and states challenged the 1974 amendments,

the Supreme Court overruled Wirtz in the landmark case of National

League of Cities v. Usery* The Court invalidated Congress's attempt to

regulate the decisions of states regarding the wages and hours of state

employees. It found that the application of the Act to states acting in

their sovereign capacities—to "States as States"—would intrude on

functions essential to the states' "separate and independent .

existence." 9 The Court said that

3 Id. at 76.

4 J. Choper, Judicial Review and the National Political Process (1980); Choper, The

Scope of National Power Vis-a- Vis the States: The Dispensability of Judicial Review,

86 Yale L.J. 1552, 1557-60 (1977).

5 392 U.S. 183 (1968).

6 392 U.S. at 203.

7 88 Stat. 58-61.

8 426 U.S. 833 (1976).

9 Id. at 345.

131
[T]here are attributes of sovereignty attaching to every state

government which may not be impaired by Congress, not

because Congress may lack an affirmative grant of legislative

authority to reach the matter, but because the Constitution

prohibits it from exercising the authority in that manner.10

In National League of Cities and later cases, the Court developed

a four-part test for determining whether a federal enactment violates

state sovereignty. First, the enactment had to regulate the states as

states; second, it had to address matters that are indisputably attributes

of state sovereignty; third, it had to impair directly the ability of states

to structure integral operations in areas of traditional governmental

functions; and fourth, it had to lack the justification of a federal

interest that warranted state submission." Under National League of

Cities, if a court found that these four conditions existed, then it was

required to hold the federal enactment unconstitutional.

The Court overruled its decision in National League of Cities just

nine years later in Garcia v. San Antonio Metropolitan Transit

Authority.12 The Garcia opinion argued that the National League of

Cities doctrine was unworkable because courts could not distinguish in

any consistent way traditional governmental functions from nontradi-

tional ones.13 The Court pointed to the divergent results that lower

courts had reached in attempting to classify governmental functions.14

Echoing Dean Choper, the Court held that state sovereignty was

adequately and more properly protected by the national political

process and that issues of federalism were most appropriately debated

and resolved within such a legislative context.15 It noted that the framers

of the Constitution had given states a variety of means to participate in

the national political process, such as the selection of United States

senators by state legislatures.16 Four dissenting Justices argued that the

Court had both disregarded constitutional guarantees of state sover-

eignty and exaggerated the likelihood that the national political process

would adequately protect the states.17

10 Id.

"Hodel v. Virginia Surface Mining & Reel. Ass'n, 452 U.S. 264, 287-88 (1981).

12 469 U.S. 528 (1985).

13 Id. at 538-47.

uJd. at 538-39.

15 Id. at 550-54.

16 Id. at 551. The Seventeenth Amendment instituted direct election of U.S. senators in

1913.

17 "One can hardly imagine this Court saying that because Congress is composed of

individuals, individual rights guaranteed by the Bill of Rights are amply protected by

(continued . . .)

132
While Garcia was applauded by many,18 Professor William Van

Alstyne, among others, took a contrary view.19 He agreed with the

Garcia majority that the category of "traditional" governmental func-

tions was a problematic aspect of National League of Cities both

because it was difficult to define and because it did not seem derivable

from the Tenth Amendment. Contrary to the Garcia majority, however,

he suggested that the distinction made National League of Cities

"unduly modest rather than too sweeping." 20 According to Van

Alstyne, the Court in National League of Cities had erred by failing to

protect the full range of state governmental services from federal

control, whether deemed traditional or not.21

Related to the question of whether the Constitution limits direct

federal regulation of the states is the question of whether the Consti-

tution limits the ability of Congress to regulate indirectly by imposing

conditions on federal grants. Rather than advancing the specific

purposes of the underlying program, some conditions on federal grants

seek to dictate policy to the states to promote what fairly can be

described as tenuously related policy objectives. For example, condi-

tions on federal highway construction grants require that states regulate

billboard advertising,22 hide junkyards along the road,23 impose Hatch

Act prohibitions on the political activity of state employees,24 adhere to

a national drinking age,25 and adhere to a national speed limit.26 Many

of these restrictions have worthwhile purposes, but there arguably is

little reason why these matters could not have been left to the individual

states.

The Court consistently has held that Congress has a broad power

to impose conditions on its spending, even if the condition is intended

(. . . continued)

the political process. Yet, the position adopted today is indistinguishable in princi-

ple." Id. at 565 n.8 (Powell, Burger, Rehnquist, and O'Connor, JJ., dissenting). See

also id. at 579 (Rehnquist, J., dissenting); id. at 580 (O'Connor, Powell, and

Rehnquist, J J., dissenting).

i* See, e.g.. Field, Garcia v. San Antonio Metropolitan Transit Authority: The Demise

of a Misguided Doctrine, 99 Harv. L. Rev. 84 (1985).

19 Van Alstyne, The Second Death of Federalism, 83 Mich. L. Rev. 1709 (1985).

20 Id. at 1716.

21 Id. at 1717-20.

22 23 U.S.C. § 131.

23 23 U.S.C § 136.

24 5 U.S.C.§§ 1501-08. The Supreme Court upheld this requirement in Oklahoma v.

United States Civil Service Commission, 330 U.S. 127 (1947).

23 23 U.S.C. § 158. The Supreme Court upheld this requirement in South Dakota v.

Dole, 107 S. Ct. 2793 (1987).

26 23 U.S.C. § 154.

133
to bring about a result that the Congress had no constitutional power to

undertake through direct means. In Steward Machine Co. v. Davis,27 for

example, the Court approved a federal statute that granted a tax

exemption for Social Security taxes in states that set up their own

unemployment plans; because the states were not coerced into partici-

pating, the Court said, Congress did not exceed its powers by condi-

tioning the tax exemption this way.

More recently, in South Dakota v. Dole,28 the Court held that

Congress may condition part of a state's federal highway funds on its

adoption of a minimum drinking age of twenty-one. Although the

adoption of a minimum drinking age is ordinarily a state or local

matter, the Court found that Congress could impose this condition as

an exercise of its spending power regardless of whether it had indepen-

dent authority to set a minimum drinking age. According to Dole, the

principal limits on congressional power to impose conditions on a grant

are that the condition must be in pursuit of the general welfare, that the

participant states must have notice of the condition, and that the

condition cannot require the states to engage in an activity that is itself

unconstitutional (e.g., by violating an individual's rights).

Under the Supreme Court's current doctrine, therefore, states

receive virtually no judicial protection from the leverage that Congress

can place upon them with conditional grants. A conditional spending

requirement will be upheld as long as the state has the option to abstain

from participating. As one commentator has pointed out, however,

every conditional grant presents the state with this choice.29 Moreover,

the limits expressed in Dole have little force. Virtually any congressional

enactment, if otherwise constitutional, will be held to be in pursuit of

the general welfare, and the enactment of a statute or regulation is itself

sufficient to give a state notice of a condition.

The recent case of South Carolina v. Baker 30 can be seen as an

intersection of the congressional power to regulate directly and its power

to regulate indirectly through grant conditions. In that case, the Court

affirmed Garcia and upheld the ability of Congress to tax and regulate

state and local bond issues. The Court overruled an 1895 decision,

Pollock v. Farmers' Loan and Trust Co.,31 in which it held that the

Constitution forbids the federal government from taxing the interest on

27 301 U.S. 548 (1937).

28 107 S. Ct. 2793 (1987).

29 Note, The Coercion Test and Conditional Federal Grants to the States, 40 Vanderbilt

L. Rev. 1159, 1169 (1987).

30 108 S. Ct. 1355 (1988).

31 157 U.S. 429, 583-86 (1895).

134
state and local bonds. According to Baker, the tax exemption for state

and local bonds is a congressionally granted privilege rather than a

constitutional prerogative. Thus, because tax-exempt status is now

purely a matter of congressional grace, Congress seemingly could

impose much the same conditions on tax-exempt bonds that it imposes

on grants.

Besides validating the erosion of state power by permitting federal

intrusions into areas traditionally viewed as within the domain of the

states, the Court has weakened state authority by giving a wide scope to

federal preemption. The federal government's authority to preempt state

regulations governing a particular issue differs from its purported authority

to control state policies through direct regulation of the states themselves.

In regulating commercial activity under the Commerce Clause, for exam-

ple, the Congress legitimately can enact legislation that displaces any

conflicting state measures. Congressional authority to preempt state law

arises from the Supremacy Clause in Article VI of the Constitution.

The Court, however, has invalidated state laws that did not

explicitly conflict with federal laws by presuming or inferring a congres-

sional intent to fully occupy a given field of regulation. Thus, in Hines

v. Davidowitz 32 and its progeny, particularly Pennsylvania v. Nelson,33

the Court developed an approach that inquires into such things as

whether (1) the federal regulation is so pervasive as to make reasonable

the inference that the states were left with no room for supplementation;

(2) the federal interest demonstrates a need for national uniformity; and

(3) the danger of conflict between state laws and the administration of

the federal program is particularly acute. Recently, however, the Su-

preme Court has been less willing to presume congressional preemption

unless there is a clear demonstration of congressional intent wholly to

occupy a particular field.34

The question of the meaning of federalism is present in each of the

areas discussed above. Though federalism issues frequently get blurred

in partisan disputes, Professor Deborah Jones Merritt persuasively has

observed that the constitutional debate about federalism is not a debate

between conservative and liberal ideological values. For proponents of

federalism, one of its principal benefits is that it accommodates political

diversity and variety among the states.35 In light of the varied programs

32 312 U.S. 52 (1941).

"350 U.S. 497 (1956).

14 E.g., Puerto Rico Department of Consumer Affairs v. ISLA Petroleum Corp., 108

S. Ct. 135 (1988).

"Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century,

88 Colum. L. Rev. 1, 8-9 (1988).

135
of different state governments, federalism cannot be said to serve any one

political point of view. The debate is concerned, rather, with contrasting

visions of the structure of American government—one in which states

retain a substantial degree of independence, as many believe the framers

intended, or one in which state independence is drastically limited to

accommodate the rise of a more powerful federal government.

B. Possible Developments in the Future

Whether judicially enforceable constitutional protection should be

accorded to state autonomy is likely to remain a vehemently contested

issue within the Supreme Court. The contentious nature of the dispute

is evident in the tone of the dissenting opinions in the most important

federalism cases. When Justice Brennan dissented from the Court's 5-4

decision in National League of Cities, he accused the majority of

creating "a transparent cover for invalidating a congressional judgment

with which they disagree." 36 He added, "I cannot recall another

instance in this Court's history when the reasoning of so many decisions

covering so long a span of time has been discarded in such a roughshod

manner." 37 Later, when a new 5-4 majority overruled National League

of Cities in Garcia, Justice Rehnquist predicted that the Court would

eventually overrule Garcia3* Justice O'Connor described Garcia as a

move to "shirk the duty acknowledged by National League of Cities"

and expressed hope that "this Court will in time again assume its

constitutional responsibility." 39 Justice O'Connor also dissented vehe-

mently in Baker.*0

If the Supreme Court in the next decade adheres to its current

doctrine in the area of federalism, Congress will have essentially

unrestricted power to displace state policies through direct regulation,

conditional grants, and conditional tax exemptions. On the other hand,

the Court could modify or even overrule Garcia, as some Justices have

suggested, and restore to the states some measure of judicial protection

from congressional activity.

If the Court continues on its current road, it could allow Congress

to determine a variety of state policies in addition to the wages and

36 National League of Cities, 426 U.S. at 867 (Brennan, White, and Marshall, JJ.,

dissenting). Justice Stevens dissented separately.

37 Id. at 871-72.

38 Garcia, 469 U.S. at 580 (Rehnquist, J., dissenting).

39 Id. at 589 (O'Connor, Powell, and Rehnquist, JJ., dissenting).

40 Baker, 108 S. Ct. at 1370 (O'Connor, J., dissenting).

136
hours of state employees. The Court in the future might permit

Congress to dictate budgetary matters to the states through direct

regulation. The states might be required to finance certain kinds of

programs that Congress deems desirable, but does not want to pay for

with limited federal funds. The states might be forbidden to finance

programs that Congress believes to be ill-considered. Similarly, state tax

policies could be dictated by federal enactments. Indeed, if the Supreme

Court maintains its current course, there would be nothing to prevent

Congress from depriving a state of every aspect of autonomy, even its

ability to choose its own capital city—an attempted exercise of federal

authority that the Court struck down in Coyle v. Smith in 1911.41

Besides modifying its doctrine regarding direct federal regulation

of state and local governmental activity, the Court in the 1990's might

reconsider its doctrine regarding the imposition of conditions upon

federal grants to the states. When Congress disburses money to the

states so that they can undertake a particular program, whether it is

highway construction or welfare services, some conditions on the money

obviously are necessary for the grant to effect its purpose. For example,

the federal government must be able to require the states to spend the

money on the program that Congress meant to finance, and not on

something else. Likewise, the federal government can impose conditions

to ensure that the program will be administered effectively. As noted

earlier, however, other conditions on federal grants are potentially more

troubling.

When Congress seeks to control state policies by imposing condi-

tions on grants and tax exemptions, the states can theoretically avoid

congressional control simply by abstaining from the federal program. In

practice, while abstention is not impossible, it is highly burdensome. It

requires the state to reject benefits for which its citizens have already

paid through their federal taxes. Additionally, once a state has begun

participating in a federal grant program, the state may embark on

projects under the assumption that grant funds will continue to be

available. It may therefore be all but impossible for a state to withdraw,

from a federal program in response to a newly instituted condition.

To protect state autonomy from federal overreaching in grant

conditions, the Court might eventually adopt doctrines similar to those

with which it protects individuals from abusive grant conditions. The

Supreme Court has repeatedly held that the government cannot condi-

tion a grant to an individual on the recipient's surrendering of his or her

41 221 U.S. 559(1911).

137
rights. For example, in Sherbert v. Venter,42 the Court struck down a

denial of unemployment benefits by South Carolina to a woman whose

religious beliefs forbade her from working on Saturday. The state denied

her benefits because she had refused to accept work without good

cause. The Court held that the state had penalized her for exercising her

religious beliefs. The Court said that the state was not constitutionally

required to have a program of unemployment benefits, but if it offered

benefits, it could not impose conditions that impaired a recipient's

exercise of his or her First Amendment rights. Likewise, in F.C.C. v.

League of Women Voters 43 the Court held that the federal government

could not withhold grant funds from public broadcasting stations that

broadcast editorials; the condition was said to infringe the freedom of

the press.

During the next decade, therefore, the Court could impose similar

limitations on the ability of the federal government to demand that state

governments waive aspects of their autonomy in exchange for federal

funds. For example, it could require a stronger nexus between a grant

condition and the purpose of the federal program, as Justice O'Connor

suggested in her dissent in Dole.44 On the other hand, the Court might

continue to permit Congress a broad power to impose conditions on

federal funds.

Another possibility for the 1990's is that the Court will reconsider

its doctrines granting Congress virtually limitless powers under the

Commerce Clause. The Commerce Clause in Article I § 8 of the

Constitution gives Congress the authority "[t]o regulate commerce

. . . among the several states." The limited nature of congressional

power under Article I originally served to protect state sovereignty from

congressional regulation. Today, in contrast, Congress can use the

Commerce Clause as a basis for regulating almost any public or private

activity.

The Court might limit the commerce power by seeking once again

to distinguish commerce "among the several states," which does fall

within federal powers, from commerce that falls outside federal powers.

In Gibbons v. Ogden,4S an early Commerce Clause case, the Court

cautioned that congressional authority to regulate commerce does not

encompass "that commerce, which is completely internal, which is

374 U.S. 398 (1963). The Court reaffirmed the rule of Sherbert in Hobbie v. Unemploy-

ment Appeals Comm'n, 107 S. Ct. 1046 (1987); Thomas v. Review Bd., 450 U.S. 707

(1981).

468 U.S. 364 (1984).

Dole, 107 S. Ct. at 2799 (O'Connor, J., dissenting).

22 U.S. (9 Wheat.) 1 (1824).

138
carried on between man and man in a state, or between different parts

of the same state, and which does not extend to or affect other

states." 46 Over the years since Gibbons, however, the Court has

essentially abandoned the task of policing the outer limits of the

commerce power.47 A classic illustration of the modern breadth of the

commerce power is Wickard v. Filburn,4* in which the Court found that

Congress's power to regulate commerce "among the several states"

included the power to regulate an individual farmer's production of

wheat on his own land for home consumption. If the Court began

giving more consideration in the future to the extent of congressional

powers under Article I, including the Commerce Clause, state auton-

omy would receive correspondingly greater protection.

Finally, although it is not a constitutional issue, the Court's

approach to preemption in the next decade could be influenced by

federalism concerns.49 On the one hand, the Court could refuse to find

Congressional occupation of a regulatory field absent either clear

Congressional intent to displace the states or an actual conflict with

state law. Such an approach, of course, would reflect a belief that state

autonomy presumptively should be preserved. On the other hand, the

Court could decide a pursue the goal of national uniformity whenever

possible. Under this approach, of course, the Court would be more

willing to find that federal law has displaced the state's authority to

supplement the federal effort in the particular field.

For those who view federalism as a serious concern of the

Constitution, the current state of the Supreme Court's law in this area

is troubling. The Court has declined to enforce constitutional limits on

congressional activity, and it has adopted an apparently limitless

definition of the congressional powers granted in Article I. If the Court

continues down this path, it may be expected that the role of the states

in addressing public policy issues will be signficantly reduced by the year

2000. In the upcoming years, however, the Court could decide to reverse

its current course and place judicial limits, derived from the Tenth

Amendment and the structure of the Constitutution, on the authority

of Congress to control state policies and to interfere in matters of state

concern. If so, one might expect to see a new vitality by the year 2000

in the efforts of state governments to address the concerns of their

citizens. .

46 Id. at 194.

47 See generally Van Alstyne, Federalism, Congress, the States and the Tenth Amend-

ment: Adrift in the Cellophane Sea, 1987 Duke L.J. 769.

48 317 U.S. Ill (1942).

49 See notes 32-35 and accompanying text, supra.

139
C. Unresolved Controversies For the 1990's

The following lists some of the federalism issues that the Court

may confront during the next decade:

— Do the Tenth Amendment and the structure of the Constitution

provide the judiciary with any basis for protecting the autonomy of

the states from direct congressional control?

— To what extent, if any, does the Tenth Amendment preclude

Congress from regulating the decisions of state and local govern-

ments with regard to such things as the employment conditions of

public employees, budgetary levels, and other matters?

— Does the Tenth Amendment impose any limits upon the ability of

Congress to pursue regulatory objectives by imposing sweeping

grant conditions on the states?

— Should the constitutional grants of power in Article I, including

the Commerce Clause, be interpreted in a less expansive way, thus

imposing inherent limits on congressional regulatory power?

— Should federal preemption of state law be found only when a clear

conflict occurs between federal and state law or when Congress'

intent is otherwise clear, or should the courts find preemption

whenever in their view an interest in national uniformity exists?

140
13. Will The Equity Power of the Federal Courts to

Restructure Local Institutions Be Limited?

A. Background

Comprehensive remedial orders to state institutions, which have

come to be known as "institutional injunctions," have been justified by

the courts as an exercise of their "inherent equitable powers." 1 The

federal judiciary has used these injunctions to exercise considerable

control over the day-to-day operations of state schools, prisons, jails,

and mental hospitals. In various cases, federal courts have ordered the

re-assignment of 48,000 public-school students,2 threatened to close

penitentiaries,3 prescribed the specific dimensions of cells and bunks in

jails,4 and set the precise temperatures for hot water and heating in

mental hospitals.5 Concerning such institutional injunctions, Professor

Abram Chayes, one of their strongest champions, has said:

[T]he trial judge has increasingly become the creator and

manager of complex forms of ongoing relief, which have

widespread effects on persons not before the court and

require the judge's continuing involvement in administration

and implementation.6

Professor Arthur Selwyn Miller, also a strong supporter, has de-

scribed some of these injunctions as "mind-boggling" and as beyond "legal

theory." 7 Judge Frank M. Coffin of the United States Court of Appeals

for the First Circuit has said that in issuing and administering institutional

injunctions, "the judge must play not only an adjudicative role, but

legislative and executive roles as well." 8 Yet another commentator has

remarked that "[t]hese forms of relief raise the question whether the

judiciary has begun to tolerate in itself a blending of functions that would

never be tolerated in another branch of government." 9

1 TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 916 (9th Cir. 1987).

2 Columbus Bd. of Education v. Penick, 443 U.S. 449 (1979).

1 Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970).

4 Smith v. Sullivan, 611 F.2d 1039 (5th Cir. 1980).

5 Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972), aff'd in part and remanded in

part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).

'Chayes, The Role ofthe Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1284

(1976).

7 A.S. Miller, Toward Increased Judicial Activism 139 (1982).

"Coffin, The Frontier of Remedies: A Call for Exploration, 67 Calif. L. Rev. 983, 989

(1979).

9 Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 Stan.

L. Rev. 661 (1978).

141
The origins of contemporary equity practice can be traced to the

1944 Supreme Court case, Hecht Co. v. Bowles,x0 where the Court

characterized the judiciary's equitable powers in sweeping terms:

The essence of equity jurisdiction has been the power of the

Chancellor to do equity and to mould each decree to the

necessities of the particular case. Flexibility rather than

rigidity has distinguished it. The qualities of mercy and

practicality have made equity the instrument for nice adjust-

ment and reconciliation between the public interest and

private needs as well as between competing private claims."

Since 1944, the Supreme Court has cited this passage in numerous

cases as the standard articulation of the basic principles of equity.12

Only recently, the Court reaffirmed the view that "[t]he essence of

equity jurisdiction . . . [is] to do equity" and that equity implies

"[t]he qualities of mercy and practicality." 13 Lower courts have made

similar statements. The Third Circuit, for example, recently said that a

federal district court sitting in admiralty has "inherent equitable power"

to act according to "equity and good conscience." 14 Similarly, a federal

district court claimed to have the "broad, inherent, equitable duty and

power to do what justice is required." 15

The Hecht conception of equity was an important element in the

Supreme Court's two decisions in Brown v. Board of Education (Brown

I and Brown II).16 After concluding that legally mandated segregated

schooling violated the Fourteenth Amendment's Equal Protection

Clause, the Court in Brown / ordered the parties to brief and argue the

issue of "appropriate relief." 17 In taking this step, the Court implied

that "right" and "remedy" might not be inter-dependent concepts. The

Court's order, that is, seemed premised on a rejection of the historical

view that the right that had been violated itself implied the appropriate

remedy.18 This implication of Brown I was confirmed in Brown //when

10 321 U.S. 321 (1944).

"Id. at 329-30.

12 See Brown v. Board of Education (Brown II), 349 U.S. 294, 300 (1955); Swann v.

Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).

13 United States v. Paradise, 107 S. Q. 1053, 1077 (1987).

14 Bock v. M/V Green Star, 815 F.2d 918, 922 (3d Cir. 1987).

"United States v. Missouri Self Service Gas Company, 671 F. Supp. 1232, 1241 (W.D.

Ma 1987).

"Brown I, 347 U.S. 483 (1954); Brown U, 349 U.S. 294 (1955).

17 Brown I, 347 U.S. at 495.

18 Cf. Wright, The Law of Remedies As a Social Institution, 18 U. Det. L.J. 376, 377

(1955): "But we err if we lose sight of the intertwining, the neat equating, of right and

remedy which the maxim [where there is a right, there is a remedy] suggests."

142
the Court instructed federal trial courts in school desegregation cases to

formulate remedies according to their assessment of "local

conditions." 19 The Court, citing Hecht, said that "[i]n fashioning and

effectuating the decrees, the courts will be guided by equitable

principles." 20 Thus, Brown II charged the federal district courts with

the largely unreviewable task of fashioning remedial orders according to

their own considered judgments of what was appropriate rather than

requiring them to narrowly tailor relief to identified constitutional

violations.

In Swann v. Charlotte-Mecklenburg Board of Education,21 the

Court decided that it needed to define "[i]n more precise terms

. . . the scope of the duty of school authorities and district courts in

implementing Brown /." 22 The question had arisen whether the

equitable powers of courts in remedying de jure segregation included

the power to order the busing of school children in order to achieve

racial balance. Chief Justice Burger, writing for a unanimous Court,

answered that the judiciary's equitable powers were broad enough to

encompass busing. "Once a right and a violation have been shown," he

added, "the scope of a district court's equitable powers to remedy past

wrongs is broad, for breadth and flexibility are inherent in equitable

remedies." 23

The Court in Swann also stated, however, that "the nature of the

violation determines the scope of the remedy." 24 Moreover, in Millikin

v. Bradley (Millikin II),25 the Court held that three principles governed

the choice of remedies in institutional injunction cases. The first is the

Swann nature-and-scope principle, whereby the breadth of remedies is

measured by the breadth of the substantive legal violations; the second

is a principle enunciated in Millikin v. Bradley (Millikin I)26 that

decrees must be remedial, in the sense that they must be confined to the

correction of constitutional violations and may not be used indepen-

dently to accomplish desirable social results; the third is the principle

that the federal courts should defer, when appropriate, to "the interests

of state and local governments in managing their own affairs." 27

"Brown II, 349 U.S. at 299.

20 Id. at 300.

21 402 U.S. 1 (1971).

22 Id. at 6.

23 Id. at 15.

24 Id. at 16.

25 433 U.S. 267 (1977).

26 418 U.S. 717 (1974).

27 Millikin II, 433 U.S. at 280-81.

143
This latter view of equity, more limited than that expressed in

Brown II, has historical roots. It has been argued, for example, that

although the Chancery Court at English common law operated under a

rule of conscience between the fifteenth and seventeenth centuries,

thereafter it "utilized rules and principles in the same manner as had the

common-law courts and in fact drew on the great common-law practi-

tioners to develop these rules." 28 In Robinson v. Campbell,29 moreover,

the Supreme Court indicated that the equity power that federal courts

were given by the Constitution was the same as that existing in the Court

of Chancery at the time of the Constitution's ratification.30

The Supreme Court's cases thus reflect two views of equity.

According to the seemingly dominant modern view, the fashioning of

appropriate remedies is left largely to the equitable discretion of the trial

courts.31 The federal courts have broad and loosely defined powers,

subject to only limited appellate review, to achieve justice with these

decrees in accordance with their individual assessments of local condi-

tions and needs. According to the competing but less frequently

articulated traditional view, equity functions more as a rule-governed

branch of the law in which rights and remedies are closely intertwined,

with the former dictating the scope of the latter. Under this view, the

remedial power of the federal judiciary is bounded by legal constraints.

Two recent federal appellate court decisions exemplify these com-

peting views. In Jenkins v. Missouri,32 the Kansas City school desegre-

gation caser the Eighth Circuit Court of Appeals substantially deferred

to the discretion of the trial court. The district court had found both the

city of Kansas City and the state of Missouri guilty of failure to

eradicate the "lingering results" of previous de jure segregation in the

Kansas City school system.33 Among the lingering results, the court

said, were low achievement scores and dilapidated buildings. Citing its

28 Jennings, The Chancellor's Foot Begins lb Kick: Judicial Remedies in Public Law

Cases and the Need for Procedural Reforms, 83 Dick. L. Rev. 217, 221 (1987).

29 16 U.S. (3 Wheat.) 212 (1818).

30 Id. at 223. See also Sprague v. Ticonic National Bank, 307 U.S. 161, 164 (1939). In

1836, Joseph Story wrote that the view that each case in equity "stands upon its own

• circumstances" leaves the definition of equity lb "the arbitrary description of a

judge." 1 J. Story, Commentaries on Equity Jurisprudence § 1 (1836).

31 "The choice of remedies to redress racial discrimination is *a balancing process left,

within appropriate constitutional or statutory limits, to the sound discretion of the

trial court.'" United States v. Paradise, 107 S. Ct. 1053, 1073 (1987) (quoting

FullUove v. Klutznick, 448 U.S. 448, 508 (1980) (Powell, J., concurring)).

32 No. 86-1934 (8th Cir. Aug. 19, 1988).

33 Id. at 6.

144
"broad equitable powers," 34 the court then issued a remedial order that

established precise capital improvement budgets for each of thirty-six

schools; prescribed the construction of gymnasiums, stadiums, and

swimming pools; required the elimination of "appearance impair-

ments" so that the school system would achieve "suburban compara-

bility" in "visual attractiveness"; and mandated curricular changes

involving class size, summer school, full-day kindergarten, before- and

after-school tutoring, and early childhood education. By-passing the

legislative process for raising revenues, the Court then imposed three

revenue measures to pay for these improvements: first, it nearly doubled

the real property tax; second, it imposed a surcharge on the state income

tax; and third, it ordered a multi-million-dollar bond issue.35 In the

Eighth Circuit's view, all these rulings, except the imposition of the

surcharge, were within the trial court's equitable discretion.

In Inmates of Occoquan v. Barry,36 on the other hand, the District

of Columbia Circuit was far less deferential to the discretion of the

federal district court, which had issued a detailed decree after finding a

District of Columbia prison to be in violation of the Eighth Amend-

ment's prohibition of cruel and unusual punishment. The district court

had conducted a comprehensive penological, health, and safety survey

of nearly every aspect of prison life, including physical and mental

health services, environmental conditions, and fire safety. Employing

the standards of professional associations, such as the American

Correctional Association, the district court had found "deficiencies" in

each of these areas. It then imposed a limit on the prison population

until such time as these deficiencies were corrected.

On appeal, the Court of Appeals criticized the district court for

engaging in "prison reform" rather than limiting itself to "core constitu-

tional concerns." 37 Reviewing the findings of the district court with

respect to both the alleged constitutional violations and the appropriate-

ness and extent of the remedies, the Court concluded that the district court

had overstepped its authority. The Court of Appeals concluded that the

district court had authority to enter remedial orders to correct specific

constitutional violations but that it did not have the authority to enter more

sweeping orders intended simply to make the Occoquan prison "a better

place or to bring it within sound penological practices." 38

34 Jenkins v. Missouri, 672 F. Supp. 400 (W.D. Mo. 1987), qff'd. No. 86-1934 (8th Cir.

Aug. 19, 1988).

35 Id. at 403-04.

36 844 F. 2d 828 (D.C. Cir. 1988).

37 Id. at 20.

MId.

145
Overall, then, there exists in the federal judiciary one point of view

that a federal court, after finding a constitutional violation, has an

inherent judicial power to go beyond the violation and restructure a

social institution to make it more equitable or just. This notion is set

against the contrary point of view that regards the judicial power more

restrictively and leaves the improvement of social institutions to the

legislative and executive branches.

B. Possible Developments in the Future

The Jenkins and Occoquan cases illustrate the alternative roads

that the Supreme Court could take in the 1990's. One road leads to an

expansive notion of the equity power, one that permits federal courts to

exercise broad "remedial" authority over the policies, rules, and

practices of social institutions. The alternative road leads to a more

constrained notion of the equity power, one more informed by the

historical understanding of equity. Under this latter view, the scope of

the appropriate equitable remedy is defined and meaningfully limited by

the underlying constitutional wrong.

During the next decade, the Supreme Court may be asked to define

the proper scope of a trial court's equitable power in correcting the

perceived consequences of past constitutional violations. As Jenkins

illustrates, the school desegregation cases remain a source of contention

with regard to this issue. Because the constitutional wrong is defined

not by de facto, statistical segregation but only by de jure, intentional

discrimination,39 the historical view of equity might suggest that the

courts' remedial authority is exhausted once such intentional discrimi-

nation has been enjoined.

In Swann, however, the Court stated that the remedial objective is

"to eliminate from the public schools all vestiges of state-imposed

segregation," 40 and it upheld a district court remedial order that

included the modification of attendance zones and the mandatory

busing of school children. The road chosen in Swann thus suggests that

an equitable remedy, addressing consequences, may seek to bring about

the conditions that the court thinks would have existed but for the

constitutional wrong. Of course, because the Court has used terms such

as "feasible," "realistic," "fair," and "reasonable" to define the limits of

39 Swann, 402 U.S. at 15-16, 24.

40 Id. at 15.

146
equity,41 the Court may reject such far-reaching injunctions as the one

at issue in Jenkins. Nevertheless, if the Court remains on the road taken

in Swann, the difference between the scope of what is permissible and

what is not will be a question of degree rather than kind.

If the Supreme Court decides to take the path of the Eighth Circuit

in Jenkins, the future will probably witness injunctive decrees of greater

detail and scope. This is because the expansive view of equity reflected

in Jenkins does not require a finding that the conditions "corrected" by

such decrees are themselves in violation of the constitution. All that is

required is that the affected conditions bear some loosely defined

connection to the underlying wrong. Thus, under the expansive ap-

proach, it might be expected that the federal courts would assert more

administrative control over state and local institutions: busing more

students, revising more curricula, and redesigning more school build-

ings; regulating both the method and content of treatment in mental

hospitals; requiring prison officials to justify various aspects of prison

life; and raising tax revenues to fund such improvements. Moreover, to

fashion such remedies, the courts increasingly will come to rely on

expert witnesses, such as social scientists, for advice as to optimal

policies that should be pursued.

If, on the other hand, the Supreme Court decides to take the path

of the D.C. Circuit in Occoquan, the 1990's probably will witness less

detailed and narrower interventions by the judiciary. Under this ap-

proach, the courts will continue to address alleged constitutional

violations, such as whether a school system is in violation of the Equal

Protection Clause or a prison is in violation of the Eight Amendment's

prohibition of cruel and unusual punishment. What will be different,

however, is that courts will limit the scope of their remedial decrees to

the specific constitutional violations they uncover. Under this approach,

the Supreme Court would not view as within a court's inherent

equitable power sweeping judicial decrees designed generally to improve

conditions that do not violate the constitution. Moreover, given the

narrower scope of the remedial task, courts will have less need to rely on

non-legal expert witnesses.

One of the more controversial issues that may confront the

Supreme Court in the next decade is whether the remedial power of the

federal courts extends to the public purse. The district court in Jenkins

saw few limits in this area. Thus, the court justified its sweeping order

raising taxes with the assertion that "[a] district court's broad equitable

41 Id. at 31.

147
power to remedy the evils of segregation includes the power to order tax

increases and bond issuances." 42

Confronted with such an issue, the Court could agree with the

Jenkins court that judicially mandated tax increases are within the

federal courts' equitable discretion to correct the consequences of past

constitutional wrongs. Indeed, Jenkins is not an isolated example of the

view that when additional financial resources from the public are

needed to redress the consequences of past violations, the judiciary has

not only the power but the duty to see that such resources are provided.

For example, in Liddell v. Missouri (Liddell VII)*3 the Eighth Circuit

justified "the district court's broad equitable powers ... to order

increases in local tax levies on real estate" by stating that "[i]t is

anomalous to suggest that the district court has the power to disestab-

lish a dual school system but does not have the power to fashion an

appropriate remedy." The court concluded that the federal courts can

"require a tax increase in excess of that authorized by the voters." 44

On the other hand, the Supreme Court could decide that the "judicial

power" conveyed by Article III stops short of the power of the purse. First,

the Court could conclude that such a remedy is beyond the scope of the

underlying wrong. Second, taking the view that "[t]he judiciary . . . has

no influence over ... the purse; [and] no direction ... of the wealth

of the society," 45 the Court could conclude that the raising and spending

of pubUc funds is inherently a legislative task, one that may not be taken

from the people's elected representatives. In federal cases, the Court might

even rely on the Constitution's provision that "[n]o money shall be drawn

from the treasury but in consequence of appropriations made by law." 46

This narrower view of the judiciary's power would not mean that courts

would no longer address alleged constitutional violations by public institu-

tions. In the prison context, for example, courts would still enjoin states from

subjecting prisoners to conditions that violate the Eighth Amendment, but the

representative branches of government would decide whether to raise or spend

tax revenues to abate such conditions or to take other measures, such as closing

particular cells or reducing the size of the prison population.

Another issue the Court may confront in the next decade is the

42 Jenkins, 672 F. Supp. at 411. As previously indicated, the Eighth Circuit Court of

Appeals upheld the district court's property tax increase and bond issue but

overturned its requirement of an income tax surcharge. See notes 32-35 and

accompanying text, supra.

43 731 F. 2d 1294, 1320-21 (8th Cir. 1984).

44 Id. at 1320.

45 The Federalist Na 78, at 504 (A. Hamilton) (Modern Library ed. 1937).

46 U.S. Const, art I, § 9.

148
extent to which an injunction may affect persons who were neither

parties in the particular suit nor participants in the constitutional

wrong. For example, private builders in housing desegregation suits

against governmental bodies have found themselves affected by the

remedial orders of the courts. In United States v. Yonkers Board of

Education*1 the trial court found that the the City of Yonkers had

engaged in intentional housing desegregation by confining public

housing for minority occupancy to areas in which minority residence

already was concentrated.48 The court's remedial decree required the

city to construct subsidized housing in non-minority areas. It suggested,

however, that the City could provide such housing by "requiring private

developers to construct units of subsidized housing as a condition to

obtaining variances or zoning changes." 49 The court also said that the

City could comply with this part of its decree by requiring a certain ratio

of subsidized housing in private housing developments that were

intended to provide market-rate housing.50

Confronted with decrees of this nature, the Supreme Court could

conclude that it should defer to the trial court, which is in a better

position to know local conditions and to assess what is needed to cure

constitutional violations. The Court might also conclude that private

citizens cannot avoid sharing the remedial burden when their elected

officials violate the Constitution. On the other hand, the Court could

decide that remedial decrees cannot impose burdens on private parties

who have not participated in the underlying wrong. Some support for

this position can be derived from Millikin /,S1 the Detroit school-

desegregation case that prohibited a lower court from including school

districts surrounding Detroit in its desegregation order because those

districts were neither parties to the suit nor involved in the unlawful

segregation of Detroit's schools.

An important procedural issue that the Supreme Court may

confront in the 1990's is whether the federal appellate courts should

defer to the equitable rulings of the federal trial courts or should subject

such rulings to meaningful appellate review. In Jenkins, the Eighth

Circuit deferred to the discretion of the trial court concerning both its

findings of fact and its choice of remedies. In Occoquan, however, the

47 United States v. Yonkers Board o/Educ, 837 F.2d 1181 (2d Cir. 1987), cert, denied,

108 S. Ct. 2821 (1988). The trial court opinions are reported at 626 F. Supp. 1276

(S.D.N.Y. 1985) and 635 F. Supp. 1577 (S.D.N.Y. 1986).

** 837 F.2d at 1219.

49 Yonkers, 635 F. Supp. at 1582.

50 Id.

51 418 U.S. 717 (1974).

149
D.C. Circuit based its decision to overturn the trial court on a careful

review of its findings and the scope of its remedies.

Confronted with this issue, the Supreme Court may decide that the

standard of review of the federal trial courts in institutional injunction

cases should remain deferential. The Court may conclude that only the

trial court has the necessary perspective and familiarity with local

conditions to determine the appropriate remedy. In addition, the Court

may conclude that appellate courts are not well-equipped to review the

exceptionally long records that frequently are produced in the institu-

tional injunction cases. On the other hand, the Court may decide that

the unusual nature of institutional injunction cases requires a greater

rather than a lesser standard of review. In requiring more rigorous

appellate scrutiny of such decrees, the Court could cite the enormous

potential of such suits to take policymaking decisions away from the

politically accountable branches of government. In addition, with

regard to its own review, the Court could cite the provision in Article III

giving it appellate jurisdiction "both as to Law and Fact." 52

Most important perhaps is the issue of whether the Constitution

itself limits the federal judicial power in any way. One possible

limitation may be found in the constitutional principle of federalism,

whereby political power is divided between the state and the federal

governments. Relying on this principle, the Court could conclude that

the states must remain free to fashion their own policies in the absence

of actual violations of the Constitution. Another possible limitation,

already discussed, is that the phrase "the judicial power" in Article III

may itself restrict the courts to certain kinds of actions traditionally

associated with courts. The Supreme Court may decide, however, that

neither federalism nor Article III limits the breadth of judicial remedies.

The Court has indicated, for example, that the courts have a limited role

to play in protecting the states from congressional encroachment,53 and

it might take a similar position with regard to protecting them from the

federal courts. Similarly, with regard to the scope of "the judicial

power," the Court may conclude that the courts have the inherent power

to do what is necessary to remedy constitutional wrongs.54

52 U.S. Const, art III, § 2.

".See South Carolina v. Baker, 108 S. Ct. 355.(1988); Garcia v. San Antonio

Metropolitan Thinsit Authority, 469 U.S. 528 (1985).

54 See e.g. Jenkins, slip op. at 28 ("The judiciary's power to determine the rights and

liabilities of parties in cases arising under the Constitution and laws of the United

States is beyond question, and this power is without purpose if it does not carry with

it the power to determine a remedy. See Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803).").

150
Along one path, then, the federal courts in the next decade may

issue remedial orders that tightly regulate the daily operations of social

institutions, that devise new programs for those institutions and raise

the taxes to pay for them, and that require actions from private parties

who are not responsible for constitutional violations. Along the other

path, however, the next decade may see the federal courts recognizing

inherent limitations on "the judical power," returning more authority to

state legislative and executive agencies, and restricting themselves to the

correction of specific and discrete constitutional violations.

C. Potential Controversies for the 1990's

The following is a list of some of the issues concerning the

equitable powers of the federal courts which the Supreme Court may

confront in the next decade:

— Should the equitable power of the federal courts under Article III

be confined to preventing the continuation of the constitutional

wrong, or should this power broadly extend to both the perceived

consequences of the underlying wrong and conditions related to it?

— Does the equitable power of the federal courts give them authority

to increase taxes to pay for the improvements mandated in their

remedial decrees?

— Does Article III allow the courts to extend the scope of their

decrees to third parties who have not participated in the underlying

constitutional wrong?

— Should the Supreme Court defer to the equitable rulings of the

federal trial courts or should the Court subject such rulings to

careful appellate scrutiny under its power to review "Law and

Fact" in Section 2 of Article III?

— Are the equitable powers of the federal courts limited by the Tenth

Amendment or Article III?

— Will the federal courts order school busing, revisions of school

curricula, and redesigns of school buildings?

— Will the federal courts increasingly prescribe the details of the

treatment of patients in mental hospitals and the rehabilitation of

incarcerated criminals?

— WilJ the federal courts engage in line-item budgeting for the social

institutions that they have brought under their jurisdiction?

151
14. Will the Rights of Legal and Illegal Aliens Be

Expanded Under the Equal Protection Clause of

the Fourteenth Amendment and Other Provisions

of the Constitution?

A. Background

Since its founding, the United States has struggled to

reconcile its self-conception as an open land willing to take in

all comers with its self-interested desire to preserve the

national bounty for those who are here. * * *

This cleavage in political vision mirrors a division in

legal thought between two ways to view aliens and aliens'

rights. The first view relies on instrumental reasoning: aliens

come to be seen as vehicles for increasing the national

welfare; they are thus admitted to this country, and, once

granted this initial right, accorded additional legal rights only

if such inclusion will advance the welfare of the existing

citizenry.

The second view draws on aliens' intrinsic worth, on

their categorical claims as human beings or their even stron-

ger claims as participating members of this society. * * *

[A]s their contribution to the social and economic life of the

United States increases, aliens, under this view, may claim to

a correspondingly increasing "scale of rights."

This passage from a frequently cited 1984 Note points with

reasonable accuracy to a tension in approaches to immigration and

immigration law that is becoming increasingly evident, not only in the

decisions and opinions of judges, but in the current debate over reform

of the statutes controlling legal immigration to the United States.1 The

tension is between the national interest, specifically the interest of a

majority of American citizens now residing in this country, as they

themselves perceive it, and the interest of aliens, those who are already

here as well as those who would like to be admitted.

The rights of aliens have in general increased over the last 20 years,

while there has been a decrease in the authority of citizen majorities

represented in the legislatures of this country, at least at the state level,

1 Developments in the Law: Immigration Policy and the Rights of Aliens, 96 Harv. L.

Rev. 1286 (1983). The language of this passage, as well as the rest of the Note, reflects

the preference of the Note's authors for the second of the two views.

152
to discriminate in favor of United States citizens except with respect to

a limited set of rights and functions related to governance itself. Peter

Schuck has argued:

Immigration has long been a maverick, a wild card, in our

public law. ... In a legal firmament transformed by revo-

lutions in due process and equal protection doctrine and by a

new conception of judicial role, immigration law remains the

realm in which government authority is at the zenith, and

individual entitlement is at the nadir.2

Although this statement is probably still correct with respect to Federal

law, the limitations imposed on the actions of the states with respect to

the treatment of aliens—even illegal aliens—make it less obviously true

at other levels of government.

The legal situation and trends described below will determine the

extent to which the political power and economic benefits of this

country can be reserved for American citizens. The conflict between the

interests of citizens and those of aliens may increase in coming years if

immigration levels remain as high or higher than at present, as now

seems likely, and if substantial numbers do not naturalize.3 If this

possibility is kept in mind, the following cautionary note, which Prof.

Schuck expresses in a more general context near the end of his article,

becomes especially salient:

Once society's duty to aliens is no longer moored to the

classical norms of mutual consent and compliance with

publicly sanctioned legal procedures but is derived from

vague, even circular, notions of social expectations and

relationships, the legal order is cast adrift upon a sea whose

ungovernable tides may carry it to realms unknown, unimag-

ined, and fraught with danger.4

The Supreme Court faces claims that under various circumstances

the states or the Federal Government may not discriminate in favor of

American citizens over aliens, or even in favor of lawful residents

(citizens and aliens) over aliens who are in the country in violation of

Federal law. Several kinds of cases arise in this area. The subject matter

of a state or Federal statute that discriminates in favor of citizens over

aliens, or lawful residents over illegal aliens, may be the right to receive

2 The Transformation of American Immigration Law, 84 Colum. L. Rev. 1 (1984).

3 Nationals from several of the countries sending large numbers of immigrants to the

United States have low naturalization rates. See Senate Report on the Immigration

Reform and Control Act of 1986, S. Rep. No. 132, 99th Cong., 1st Sess. 7 (1985).

4 Id. at 88-89.

153
tax-financed benefits such as welfare or education; the right to obtain

government or government-licensed employment, or to be hired by a

willing private employer; the right to own land or exploit publicly

owned natural resources, such as fishing grounds; or the right to vote.

A state statute that discriminated against aliens in the distribution

of welfare services was held unconstitutional by the Supreme Court in

1971 in Graham v. Richardson.9 One ground for the Court's decision

was a holding that the statute violated the Equal Protection Clause of

the 14th Amendment. The Court declared for the first time that for

purposes of the Equal Protection Clause, alienage should be considered

an "inherently suspect" classification and thus the statute should be

"subject to close judicial scrutiny" to determine whether it served a

compelling government interest and was precisely tailored to serve that

interest. Aliens were apparently viewed as a suspect class because they

were believed to be without political power (and thus it could not be

assumed that their interests would be appropriately protected in the

representative branches of government), and had been subjected histor-

ically to irrational prejudice. The Court stated that aliens are a "prime

example of a 'discrete and insular minority.'" 6 As an alternative

ground, the Court held that the statute violated the Supremacy Clause

of Article VI of the Constitution. The Court held that such a statute

created a burden on the entry of lawful aliens into the state and hence

was inconsistent with Federal immigration law.

State statutes that discriminated against aliens with regard to entry

into a state's competitive civil service,7 practicing law,8 working as a

licensed civil engineer,9 receiving state educational benefits,10 and

serving as a notary public,11 have also been held unconstitutional. In

these cases the Court used the same reasoning as in Graham and relied

on that case as a precedent.

3 403 U.S. 365 (1971) (unanimous decision, but Harlan, J., not joining in parts of the

opinion relying on the Equal Protection Clause).

6 Id. at 371-72 (quoting United States v. Carolene Prods. Co., 304 U.S. 152-53 & n.4

(1938)). But see Sugarman v. Dougall, 413 U.S. 634, 649-57 (Rehnquist, J.,

dissenting); Toll v. Moreno, 458 U.S. 1, 38-42 (Rehnquist, J., dissenting).

7 Sugarman v. Dougall, supra.

"In re Griffiths, 413 U.S. 717 (1973).

9 Examining Board v. Flores de Otero, 426 U.S. 572 (1976).

10 Nyquist v. Mauclet, 432 U.S. 1 (1977). See also 7b// v. Moreno, 458 U.S. 1 (1982)

(striking down a statute that denied in-state tuition status to certain non-immigrant

aliens resident in the state who had been explicitly granted special treatment by

Congress, including tax exemptions for many) (relying on the ground of the

Supremacy Clause only, not the Equal Protection Clause).

"Bernal v. Fainter, 467 U.S. 216 (1984).

154
However, in one of these cases, Sugarman v. Dougall, the Court

suggested that a state would be authorized under the Constitution to

discriminate against aliens in order to limit "participation in [the

state's] government to those who are within 'the basic conception of a

political community.'" 12 Such discrimination might include not only

voting, but certain kinds of public employment: "elective or important

nonelective executive, legislative, and judicial positions, [because] of-

ficers who participate directly in the formulation, execution, or review

of broad public policy perform functions that go to the heart of

representative government." 13

Consistent with the Sugarman dicta, the Court has upheld state

statutes that discriminated against aliens in the employment of state

policemen,14 public school teachers,15 and deputy probation officers.16

In these cases the Court stated that it is by virtue of being a citizen and

thus belonging to the polity that an individual is entitled to participate

in the "process of democratic decisionmaking," 17 to help exercise the

"right to govern," 18 the "powers of governance," 19 to be a part of the

"operation of the state as governmental entity." 20

The Court indicated its belief in the fundamental importance of

citizenship as a status: 21 "The act of becoming a citizen is more than

a ritual with no content beyond the fanfare of ceremony. A new citizen

has become a member of a Nation, part of a people distinct from

others." 22 "An oath of allegiance or similar ceremony cannot substi-

tute for the unequivocal bond citizenship represents." 23 One of the

practical differences that may well exist between citizens and aliens, one

12 413 U.S. at 642.

"Id. at 647.

14 Foley v. Connelie, 435 U.S. 291 (1978).

15 Ambach v. Norwick, 441 U.S. 68 (1979).

16 Cabell v. Chavez-Salido, 454 U.S. 432 (1982).

17 Foley, 435 U.S. at 296.

"Id. at 297.

"Ambach, 441 U.S. at 75.

20 Id. at 73-74.

21 The Court in Ambach noted the fact, pointed out by Justice Rehnquist in his dissent

in Sugarman (see infra note 57), that "the Constitution itself refers to the distinction

[between citizens and aliens] no less than 11 times . . . , indicating that the status

of citizenship was meant to have significance in the structure of our government."

441 U.S. at 75. In his Sugarman dissent Justice Rehnquist expressed extensive views

on the importance of citizenship beyond the political context and on the difference

between aliens and citizens.

22 Foley, 435 U.S. at 295-96.

23 Ambach, 441 U.S. at 75.

155
which the Court has viewed as important, relates to American traditions

and values. In Foley the Court stated that it was not surprising that most

states required police officers to be American citizens, since the state

may "reasonably presume [citizens] to be more familiar with and

sympathetic to American traditions." 24 Justice Blackmun in his con-

curring opinion in the same case referred to citizens as "persons who

can be presumed to share in the values of [the state's] political

community." 25 In Ambach, in explaining why citizenship was a reason-

able requirement for a school teacher, the Court referred to the

importance of the schools in "inculcating the fundamental values

necessary to the maintenance of a democratic political system." 26

The constitutionality of a state statute discriminating against

aliens in private employment was adjudicated earlier in this century in

TYuax v. Raich.21 That statute prohibited employers of more than five

persons from employing less than 80% "qualified electors or native

born citizens." The Court stated that a state statute that denies aliens

the right to earn a livelihood has the effect of keeping out of the state

aliens who have been lawfully admitted to the country under the

authority of acts of Congress, and thus was inconsistent with the

exclusive Federal authority to control the admission or exclusion of

aliens.28 The statute in question concerned not merely employees of the

state or of state-financed projects, but also private employers. Thus it

could preclude a significant portion of available means of earning a

living in both public and private sectors.

TYuax also, however, contained dicta acknowledging that state

statutes which discriminate against aliens can sometimes by justified,

e.g., to conserve state natural resources for citizens:

The discrimination defined by the act does not pertain to the

regulation or distribution of the public domain, or of the

common property or resources of the people of the State, the

enjoyment of which may be limited to its citizens as against

both aliens and the citizens of other States.29

As examples of permissible discrimination, the Court referred to cases

—i

24 435 U.S. at 299. At this point in the opinion the Court inserted a footnote that

evidenced the Court's view of the practical importance of such values and traditions.

In part it reads as follows: "Police powers in many countries are exercised in ways that

we would find intolerable and indeed violative of constitutional rights."

25 4 3 5 U.S. at 302.

26 441 U.S. at 77.

27 239 U.S. 33 (1915).

28 239 U.S. at 42.

29 239 U.S. at 39-40.

156
involving the right to plant oysters in a river in the state,10 owning

firearms for hunting wild game within the state,31 the devolution of real

property,32 and also engagement in public work, or receipt of the benefit

of public monies. The Court emphasized that the state statute in

question involved a regulation of the "conduct of ordinary private

enterprise." 33 The Court pointed out that the statute was not based on

a "special public interest" in any particular business, since it related to

every sort.34

In a subsequent case, the Court even upheld a citizenship require-

ment for a certain kind of private, licensed employment.35 The court

also later upheld other state statutes that discriminated against aliens,

e.g., owning farmland,36 or being employed in public works projects.37

The rule supported in Thiax is commonly called the "special public

interest" doctrine. There is apparently little support on the Court for

that doctrine today, though several of the core cases have never been

held unconstitutional, e.g., state prohibitions against aliens' ownership

of land. In Takahashi v. Fish & Game Comm'n,3* the Court overturned

a state statute that denied offshore fishing licenses to aliens ineligible for

citizenship. The Court in Graham stated that "Takahashi . . . cast

doubt on the continuing validity of the special public-interest doctrine

in all contexts." 39

In Skafte v. Rorex,40 the Supreme Court dismissed, for want of a

substantial Federal question, an appeal challenging a state statute

requiring that state residents be American citizens in order to vote. The

Court's order dismissing the appeal cited Sugar man v. Dougall and

Kramer v. Union Free School District,41 which, though not involving

"McCready v. Virginia, 94 U.S. 391, 39 6 (1877).

31 Patsone v. Pennsylvania, 232 U.S. 138, 145, 146 (1914).

12 Blythe v. Hinckley, 180 U.S. 333, 341, 342 (1901).

"239 U.S. at 40.

34 239 U.S. at 43.

35 Clarke v. Deckebach, 21A U.S. 392 (1927) (upholding a city ordinance that prohibited

aliens from operating a billiard hall).

36 Terrace v. Thompson, 263 U.S. 197 (1923).

"Heim v. McCall, 239 U.S. 175 (1915).

M 334 U.S. 410 (1948). But see Sugarman, 413 U.S. at 654-55 (Rehnquist, J., dissenting)

(noting that Takahashi was a racial discrimination case in disguise because the statute

at issue applied only to aliens not eligible for citizenship (Japanese and certain other

non whites)).

39 403 U.S. at 374.

40 430 U.S. 961 (1977), dismissing appeal from 553 P.2d 830 (Colo. 1976).

41 395 U.S. 621 (1969) (noting that the parties had agreed that states have the power to

impose a citizenship qualification for voters).

157
the right of aliens to vote, do contain supportive statements. In

Sugarman, the Court stated:

This Court has never held that aliens have a constitutional

right to vote or to hold high public office under the Equal

Protection Clause. Indeed, implicit in many of this Court's

voting rights decisions is the notion that citizenship is a

permissible criterion for limiting such rights.42

A state statute discriminating against illegal alien children with

respect to the right to receive free public education was held to violate

the Equal Protection Clause in Plyler v. Doe.*3 The Court applied an

"intermediate scrutiny" standard, i.e., the statute had to further a

substantial government objective. The Court rejected the view that strict

scrutiny would be required (which requires that the statute serve a

compelling state interest and be precisely tailored to serve that

interest)—because neither illegal aliens nor their children are a "suspect

class" and because education is not a "fundamental right" guaranteed

by the Constitution. However, the Court emphasized that the children

were morally innocent of the unlawful status that occurred as a result of

their parents' actions, and that if education were withheld from the

children, they would suffer long-term harm, as would society.

In assessing the statute according to the "intermediate scrutiny"

standard, the Court rejected one-by-one the purposes offered by the

state: to prevent undue depletion of the limited funds available for

education and other social services, to preserve the fiscal integrity of the

state's school financing system in the face of an ever increasing burden

caused by illegal alien immigration, and to reduce the incentive for

illegal immigration.44

Federal statutory discrimination against aliens—legal or illegal—

has never been held unconstitutional. Indeed, very few cases have

reached the Court. A Federal statute requiring aliens to reside in the

country for five years before becoming eligible to apply for Medicare,

when no such requirement was in effect for citizens, was unanimously

upheld in Mathews v. Diaz.*5 The Court stated that the political

branches of the Federal Government, rather than the Judiciary, have the

constitutional authority to regulate the entrance and residence of aliens.

Furthermore, matters involving aliens have important foreign relations

impacts and are affected by ever-changing political and economic

42 413 U.S. at 648-49.

43 457 U.S. 202 (1982).

44 457 U.S. at 227-30. The dissent by Justice Burger, joined by Justices White.

Rehnquist, and O'Connor, is referred to at note 70, infra.

*> 426 U.S. 67 (1976).

158
circumstances. Consequently, decisions in that area require policy

judgments that are appropriate for the representative branches, not the

courts.46

The Court has also mentioned certain purposes, such as to

encourage naturalization 47 or to obtain bargaining chips for use in

seeking reciprocal benefits for United States citizens abroad,48 which

have been rejected as legitimate objectives for state action, but which are

viewed as legitimate for the Federal Government.

B. Possible Developments in the Future

The Supreme Court has decided many cases involving state and

Federal discrimination that favors American citizens over aliens, or that

favors lawful residents, both citizens and aliens, over illegal aliens.

Nevertheless, substantial uncertainties remain about important aspects

of this subject. In addition, there has been much academic criticism of

a number of the decisions. In the next decade, the Court almost

certainly will confront cases that require a resolution of the open

questions, and probably also will have the opportunity to reconsider

questions that already have been resolved. Such cases are likely to arise

with increasing frequency because of the increasingly high level of legal

and illegal immigration and the low naturalization rates of immigrants

from several countries.

There are two general paths that the Court could take in such

cases. On the one hand, the Court might take the path that involves

further limits on the ability of the representative branches of the state

and national governments to favor American citizens over aliens. This

path would require more expansive interpretations of the Equal Protec-

tion Clause of the Fourteenth Amendment, the "equal protection

component" of the Fifth Amendment, or the Supremacy Clause of

Article VI. Alternatively, the Court might take the opposite path,

holding that legislatures may favor American citizens over aliens in a

greater number of circumstances than its recent doctrine allows. This

46 426 US. at 81-82. See Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (overturning

Federal civil service regulation banning aliens from Federal civil service, as beyond

the authority of lower-level Executive agency, but suggesting that Congress or the

President could adopt such provision); Mow Sun Wong v. Campbell, 626 F.2d 739

(9th Cir. 1980) (upholding President's Executive Order banning aliens from Federal

civil service), cert, denied, 450 U.S. 959 (1981).

47 Nyquist v. Maudet, 432 U.S. 1 (1977).

4* Hampton v. Mow Sun Wong, 426 U.S. at 104-05; 435 F. Supp. 37, 45 (N.D. Cal.

1977) (on remand).

159
second path would follow from a narrower interpretation of such

constitutional provisions. With respect to discrimination in favor of

lawful residents, the Court faces a similar choice. It might take a path

that involves additional limits on the authority of the states to favor

lawful residents, and that involves establishing similar limits for the first

time on the authority of Congress. Alternatively, it might take the

opposite path, expanding the authority of the states and maintaining

the authority of Congress.

One issue the Court might face in the next decade is the extent to

which American citizens may constitutionally be favored over aliens for

state or state-licensed employment. If the Court were to take the

expansive path, then states might no longer be permitted to require

American citizenship for some state or local government jobs that can

now be reserved for citizens, such as that of teacher, policeman, and

probation officer, on the ground that such requirements violate either

the Fourteenth Amendment's Equal Protection Clause or the Suprem-

acy Clause of Article VI.49 This would require a broader interpretation

of one or both of such provisions. The Court might narrow its current

interpretation of the "political function" exception to the "strict

scrutiny" by the courts that is now given to state statutes that

discriminate against aliens (a level of judicial scrutiny which requires

that the statute be shown to be necessary in order to serve a compelling

state interest).50 As a consequence, certain of the state statutes of this

kind which are now reviewed only for rationality would probably be

overturned. Advocates of this view have argued that states should be

permitted to require citizenship only for jobs that involve public

employees who "participate directly in the formulation, execution, or

review of broad public policy," 51 and that state employees such as

probation officers do not fall within this category.52

Indeed, some advocates of an expansive interpretation argue that

there should be no "political function" exception at all, that every state

law that discriminates against aliens is "inherently suspect" 53 and

should be subjected to the same level of strict scrutiny by the judiciary.

Such advocates argue that the interests of the states in "preserving the

political community" should not lead the Court to abandon the strict

scrutiny standard, but rather should be considered in the application of

49 See supra notes 7-20.

50 See supra note 6 and accompanying text.

51 See Foley, 435 U.S. at 296, quoting Sugarman, 413 U.S. at 647.

"See Foley, 435 U.S. at 304-05 (Marshall, J., dissenting).

51 See supra text accompanying note 6.

160
that standard, specifically with respect to whether or not there is a

"compelling state interest" in the statute at issue and whether or not the

statute furthers such interest in the way that is least prejudicial to

aliens.54

The overturning of such statutes could also result from an

expansive interpretation of the Supremacy Clause, namely that any state

laws that discriminate against lawful resident aliens violate the Clause.

According to this view, the Supremacy Clause prohibits states from

restricting benefits such as access to employment so greatly that the

value of lawfully immigrating is substantially reduced. Supporters of

this view argue that state laws should be overturned if they interfere with

the congressional policy of allowing aliens to move into any state after

their entry into this country.55

If the Court were instead to take the second path, the one based on

narrower interpretations of these constitutional provisions, then the

states could require American citizenship for more kinds of state or

state-licensed employment (subject to the provisions of any applicable

Federal anti-discrimination laws). One possibility would be if the Court

were, first, to broaden the "political function" exception, e.g., to cover

more categories of public employees and possibly some state-licensed

private employees such as attorneys,56 or to hold that only a rational-

basis test should be applied. The latter view is expressed in Justice

Rehnquist's dissent in Sugarman, which argued that citizens may

reasonably be assumed to be more assimilated and dedicated to

American society, and more familiar with American social and political

institutions and mores, and that such factors "could materially affect

the efficient functioning of city government, and possibly as well the

very integrity of that government." 57

The upholding of such broader, more discriminatory statutes

would also depend on a holding that state laws violate the Supremacy

54 See Note, Developments in the Law: Immigration Policy and the Rights of Aliens, 96 %

Harv. L. Rev. 1286, 1409 (1983).

55 See Graham, supra, at 379-80; 7b// v. Moreno, 458 U.S. 1, 11-13 (1982) (overturning

a state university denial of in-state tuition to certain nonimmigrant aliens).

36 But see In re Griffiths, 413 U.S. 717 (1973) (holding unconstitutional a state law

requiring American citizenship for admission to the bar).

"Sugarman, 413 U.S. at 651-62 (Rehnquist, J., dissenting). Justice Rehnquist has

argued that "the political powerlessness of aliens is the result of state-created

classifications which this Court has upheld as constitutional [through the 'political

function' exception]" and that "a classification which is constitutionally relevant to

many important state purposes should not be considered 'suspect.'" Toll v. Moreno,

458 U.S. 1, 41-42 & n.13 (1982) (Rehnquist, J., dissenting).

161
Clause only if their application would directly conflict with Federal law,

such as the anti-discrimination provision of the Immigration Reform

and Control Act of 1986 (which permits discrimination in favor of a

citizen applicant if required by state or Federal law or government

regulation or contract, or if the citizen applicant is at least as qualified

as competing alien applicants).58 Advocates of this view argue that state

laws that burden aliens but do not directly intrude on the constitutional

power of the Federal Government to control immigration and natural-

ization are not invalid unless specifically contravened by congressional

or executive action or there is evidence that Congress has intentionally

"occupied the field" with respect to the kind of discrimination

involved.59

A second issue that the Court might face in the near future is the

extent to which American citizenship may be required for welfare or

education programs, or for ownership of land in the state or exploita-

tion of the state's natural resources. In order for citizenship to be

required in such circumstances, the Court would have to either overrule

the holding of Graham that the Equal Protection Clause generally

requires strict scrutiny of state discrimination against aliens, or apply a

much looser strict scrutiny standard, i.e., a less demanding standard of

"compelling government interest." Those preferring an expansive view

of the Equal Protection Clause believe that the reasoning of the Graham

decision is still sound.60 Advocates of the return to a narrower

interpretation argue that there is an important state interest in regulating

and distributing the state's property and resources in a way that favors

state citizens (i.e., American citizens resident in the state 6i), who have

full political allegiance to the United States, and who are more likely to

have a long-term attachment to the state. As stated by then-Judge

Cardozo in People v. Crane: 62

To disqualify aliens is discrimination, indeed, but not arbi-

trary discrimination; for the principle of exclusion is the

restriction of the resources of the state to the advancement

and profit of the members of the state. Ungenerous and

unwise such discrimination may be. It is not for that reason

unlawful. . . .

'* Pub. L. No. 99-603, § 102(a), 100 Stat. 3359, 3374-75 (1986) (codified at 8 U.S.C.

'§ 1324b(aK2KC), (aK4)).

39 SeeAmbach, 441 U.S. at 72-75; De Canas v. Bica, 42A U.S. 351 (1976); see also Toil,

458 U.S. at 26-30 (Rehnquist, J., dissenting).

60 See supra notes 5-6 and accompanying text.

61 U.S. Const, amend. XIV, § 1.

62 214 N.Y. 154, 108 N.E. 427, aff'd, 239 U.S. 195 (1915).

162
. . . The state, in determining what use shall be made

of its own moneys, may legitimately consult the welfare of its

own citizens, rather than that of aliens.63

A third issue the Court might confront is whether it is constitu-

tional for states to allow only American citizens to vote (current law in

all states). At least one academic commentator has argued that states

may not constitutionally withhold voting rights on the basis of alienage.

He believes that all state laws that discriminate against aliens should be

subjected to strict scrutiny and that it has not been established that there

is a compelling state interest in denying aliens the vote.64

The opponents of this view argue that the Court's reasoning in

cases rejecting challenges to state discrimination against aliens in

connection with certain kinds of public employment applies even more

strongly to voting, the most central and fundamental political right and

activity of the members of a political community in a democracy. In

Foley, the Court stated that "it is clear that a State may deny aliens the

right to vote, or to run for office, for these lie at the heart of our

political institutions." 65

A fourth issue that the Court may face is the extent to which illegal

alien children, or even adults, are eligible for state-financed education

and welfare benefits. If the Court were to take the more expansive path,

then states might not be permitted to disqualify illegal alien children

from at least some welfare or other state-financed assistance programs

provided to citizens and lawful resident aliens—in other words, an

expansion of Plyler to interests other than education.66 Advocates of

this view argue that children are not morally responsible for their

unlawful presence in the United States and that their unlawful status is

an irrational basis for treating them less favorably than other children

resident in the state. In this view, denying social benefits to such children

adds to the long-term social problems and costs associated with poor

health and poverty.67

See supra notes 29-39 and accompanying text; Truax, 239 U.S. at 39-40; Heim v.

McCall, 239 U.S. 175 (1915) (upholding a state requirement that public contractors

employ only U.S. citizens); Terrace v. Thompson, 263 U.S. 197 (1923) (upholding a

state statute forbidding aliens to own land for the purpose of farming).

Rosberg, Aliens and the Right to Vote, 75 Mich. L. Rev. 1093, 1109-35 (1977).

435 U.S. at 297.

See supra note 43 and accompanying text.

See Note, State Legislation Denying Subsistence Benefits to Undocumented Aliens:

An Equal Protection Approach, 61 Tex. L. Rev. 859-92 (1983); Note, Undocumented

Aliens' Right to Medicaid After Plyler v. Doe, 1 Ford. Int'l L.J. 83-117 (1983-84).

163
Another aspect of this issue is whether states might also be

required to provide to the entire class of resident illegal aliens at least

some of the education, welfare, and other state-financed benefits

provided to citizens and lawful resident aliens—an expansion of Plyler

to adults as well as to interests other than education. Advocates argue

that the reasoning of Plyler means that unless there is a "substantial

state interest" involved, the Court should not uphold a state statute that

discriminates against illegal aliens if important interests of the aliens are

involved and they are "morally blameless" for their unlawful status,

e.g., when their entry is the result of their poor economic situation in

their native country. Merely saving money or even discouraging illegal

immigration does not, in this view, constitute a substantial state

interest.68

If the Court were instead to take the less expansive path, then states

could withhold state-financed benefits from illegal alien adults and, at

least to some degree, children, in order, for example, to eliminate one of

the incentives for illegal immigration, and also to save state taxes for use

on behalf of the law-abiding residents of the state. This would occur if

Plyler were limited to its facts, i.e., applied only in cases involving a

denial of public education to illegal alien children, or if the case were

overruled. Advocates of this approach argue that states have a substan-

tial interest in conserving state resources for their citizens and for those

aliens who are in the state lawfully.69 As Chief Justice Burger noted in

his dissent in Plyler, the Equal Protection Clause has not been

interpreted in other contexts to require "strict scrutiny" or "interme-

diate scrutiny" of statutes that classify on the basis of factors over which

an individual has no control or that concern benefits that are as

important as education, e.g., food, shelter, or medical care.70 To

provide benefits to illegal aliens not only makes it easier for them to

remain in violation of Federal law, but acts as an incentive for further

illegal immigration, especially of entire families, and thus as a further

draw on state resources.71

Another issue that the Court might confront is whether even

Congress can favor American citizens, e.g., in setting eligibility require-

ments for various economic assistance programs. An expansive Court

68 See Note, Developments in the Law: Immigration Policy and the Rights of Aliens, 96

Harv. L. Rev. 1286, 1450 & n.95, 1464 (1983).

69 See supra notes 29-39 and accompanying text.

70 257 U.S. at 245.

71 See, e.g., Alonso v. People, 50 Cal. App. 3d 242, 253, 123 Cal. Rptr. 536, 543-44

(1975) (noting that denial of unemployment insurance will make illegal aliens less

likely to remain in the State), cert, denied, 425 U.S. 903 (1976).

164
could adopt a Graham-type "strict scrutiny" standard for determining

whether a Federal law violated the "equal protection component" of the

Fifth Amendment—and could apply a demanding standard for deter-

mining whether the required degree of government interest were present.

Advocates of this view state that the same arguments that strict scrutiny

is needed to protect "discrete and insular minorities" against state

discrimination 72 also apply with respect to Federal actions.73

If, however, the Court were to take the other, less expansive path in

this context, then Congress would likely be held to be authorized to

disqualify, and to require the states to disqualify, aliens from receiving

welfare, education, and other benefits, or otherwise to discriminate

against aliens—in order, for example, to encourage naturalization,74 to

provide bargaining power to the Executive Branch in negotiations for

reciprocal rights for Americans residing abroad,75 to preserve the value

of American citizenship and the conception of a political community,

or to serve any other legitimate purpose. Such results would occur if the

Court were to hold that Federal laws which discriminate against aliens

are not subject to strict scrutiny, but rather only to a review for

rationality, or even a lesser standard. Advocates of this view argue

generally that the power of Congress over immigration and aliens is

plenary.76 They state that decisions about the regulation of immigration

and the treatment of aliens require policy judgments that are the

responsibility of the political branches of the Federal Government, not

the judiciary; hence a narrow standard of review is appropriate for some

of the same reasons that preclude judicial review of political

questions.77

The Court might also face the issue of whether Congress may

constitutionally discriminate in favor of American citizens for most

employment of the kind now covered at the state level by the "political

function" exception, or even with respect to voting rights.78 Advocates

of the expansive view argue that there is generally no compelling Federal

72 See supra note 6.

73 See Note, Developments in the Law: Immigration Policy and the Rights of Aliens, 96

Harv. L. Rev. 1286, 1419-25 (1983).

74 See Nyquist v. Maudet, 432 U.S. 1, 10 (1977).

75 See Hampton v. Mow Sun Wong, 426 U.S. 88, 104 (1976); 435 F. Supp. 37, 45 (N.D.

Cal. 1977) (on remand).

76 See Fiallo v. Bell, 430 U.S. 787, 792 (1977) (and cases cited therein); Toll v. Moreno,

458 U.S. 1, 10 (1982) (and cases cited therein).

77 See Mathews v. Diaz, 426 U.S. 67, 81-82 (1976).

78 Under current law, Congress almost certainly has the authority to enact a law to

prohibit states from allowing aliens to vote—though it has not exercised such

authority, and no state now allows aliens to vote.

165
interest in excluding aliens from Federal employment, or even from

voting, that such discrimination is needed only in the rare situation

where national security is involved and it can be shown that aliens as a

class are more likely to be a security risk than U.S. citizens—and there

is no alternative, less burdensome way to insure loyalty and understand-

ing of American values and institutions.79 Those who argue for a less

expansive approach present the same arguments in this context as in the

last paragraph, regarding Federal authority to discriminate in regard to

economic benefits.

Even Federal discrimination in favor of lawful residents might be

prohibited if the Court were to take the expansive path. This would

mean that Congress could not withhold all benefits from illegal aliens or

require the states to do so, in order, for example, to reduce the incentive

for illegal immigration and to make it more difficult for illegal aliens to

remain in this country (for example, if their ability to obtain employ-

ment has been reduced as a result of the employer sanctions provisions

of the 1986 immigration reform law). This is the path that would be

taken if the Court adopted a Plyler-type rule for Federal statutes, as

recommended by Professor Tribe, at least with respect to illegal alien

children, but contrary to dicta in Plyler itself. Tribe and other advocates

of this view argue that Congress should be no more free than the states

to "inflict permanent harm upon long-term residents of the United

States for reasons that are wholly beyond their control." 80

If, instead, the Court were to take the other, less expansive path in

this context, then Congress could continue to seek to reduce the

incentive for illegal immigration, and to reduce the tax burden on

Americans, by withholding benefits from illegal aliens or requiring

states to do so. This would be the result if the Court were to hold that

the Plyler rule ought not to be applied to Federal law. Advocates of this

view argue generally that Congress' power over aliens is plenary,81 and

in addition that the primary goal of U.S. immigration law, like Federal

law generally, is to promote the interests of American citizens. Those

interests are harmed if aliens, regardless of "moral blamelessness," are

encouraged to enter the U.S. unlawfully by a requirement that any

important benefit provided to citizens and lawful resident aliens must

also be provided to them (or their children).

Finally, brief mention should be made of a category of cases

outside the discrimination area, cases that will undoubtedly continue to

9 See Rosberg, supra note 64, at 1109-35.

80 L. Tribe, American Constitutional Law § 16-23, at 1552 (2d ed. 1988).

81 See supra notes 46 and 76, and accompanying text.

166
confront the Court in the next decade. These involve the procedural

rights of aliens under the due process clause of the Fifth Amendment,

and concern the procedures for the issuance of visas, and for excluding

or deporting aliens from this country. However, such cases lie outside

the scope of the present analysis.

C. Potential Controversies for the 1990's

The following lists some of the aliens' rights issues that the Court

may confront in the next decade:

— Will the Court interpret the Equal Protection Clause as requiring

that states not favor citizens over lawful aliens except as required by

a compelling state interest and, possibly, with respect to voting,

holding elective office, and serving in a few high-level public

offices, or instead as allowing discrimination if rationally related

to a "special public interest," political or economic?

— Will the Court interpret the Supremacy Clause as prohibiting state

statutes that discriminate against lawful aliens in the establishment

of substantial burdens or benefits, or instead as only requiring that

action not be inconsistent with a specific provision of a Federal

statute or with evidence of Congressional intent?

— Will the Court interpret the Equal Protection Clause as requiring

that states not favor citizens and lawful resident aliens over illegal

aliens under certain circumstances, e.g., involving the "moral

blamelessness" or "important interests" of potential beneficiaries,

or instead as requiring only that states not discriminate without a

rational basis?

— Will the Court interpret the "equal protection component" of the

Fifth Amendment as requiring the Federal Government to be

nondiscriminatory toward aliens (even illegal aliens) except as

required by a compelling Federal interest, or instead as requiring

only that the Federal Government not discriminate without a

rational basis?

— Specifically, is a state barred by the Equal Protection Clause or the

Supremacy Clause from prohibiting aliens from receiving tax-

financed benefits, such as welfare or free public education, or from

owning land or exploiting state natural resources (e.g., fishing

grounds)?

— Are aliens entitled under the Equal Protection Clause or the

Supremacy Clause to be considered for state or state-licensed

employment?

167
— May states consistent with the Equal Protection Clause prohibit

aliens from voting?

— Does the Equal Protection Clause entitle illegal alien children to

state-financed medical care or other welfare benefits, or illegal

alien adults to receive state-financed educational benefits, or

medical care or other welfare benefits?

— Is the Federal Government barred under the "equal protection

component" of the Fifth Amendment from taking actions that

deny illegal alien children from receiving state-financed medical

care or other welfare benefits, or illegal alien adults from receiving

state-financed educational benefits, or medical care or other

welfare benefits?

— Will the procedural rights of aliens be expanded under the due

process clause of the Fifth Amendment, e.g., with respect to

procedures followed in issuing visas or in excluding or deporting

aliens?

168
15. Will the Judiciary Strictly Enforce the

Constitutional Requirement of Separation

of Powers?

A. Background

By dividing governmental power among three separate branches of

the federal government, the framers of the Constitution believed that

they had created a significant safeguard for individual liberty.1 In their

view, separation of powers protected liberty because it prevented any of

the three branches from becoming dominant and acquiring unlimited

power. As Madison articulated the underlying philosophy of separation

of powers: "The accumulation of all powers, legislative, executive, and

judicial, in the same hands, whether of one, a few or many, and whether

hereditary, self-appointed, or elective, may justly be pronounced the

very definition of tyranny." 2

Reflecting this philosophy, the Constitution is explicit in locating

legislative power in the Congress, executive power in the President, and

judicial power in the Judiciary.3 Implicit within this tripartite structure

were the notions that each branch would be supreme within its own

sphere and that each would prevent encroachments on its prerogatives

by the others. Madison again explained the underlying thinking:

"[T]he great security against a gradual concentration of the

several powers in the same department consists in giving to those

who administer each department the necessary constitutional

means and personal motives to resist encroachments of the

others. The provision for defense must in this, as in all other

cases, be made commensurate to the danger of attack." 4

As the framers anticipated, conflicts between the three branches,

particularly between the Congress and the President, have occurred over

time.5 Although many of the disputes between the Congress and the

1 1 M. Fanand, The Records of the Federal Convention of1787 66, 71-74, 88, 91-92 (rev.

ed. 1966); 2 id. at 335-37, 533, 537, 542. See C. Montesquieu, L 'Esprit des Lois (1748).

2 The Federalist No. 47, at 324 (Cooke ed. 1961).

3 Compare U.S. Const., Art. I, § 1 ("All legislative Powers herein granted .shall be

vested in a Congress . . .."), with id. Art. II, § 1 ("The executive Power shall be

vested in a President of the United States of America."), and id. Art. HI, § 1 ("The

judicial Power of the United States, shall be vested in one supreme Court . . . .").

4 The Federalist No. 51, at 349 (Cooke ed. 1961).

5 As Justice Brandeis stated, "[t]he doctrine of the separation of powers was adopted

by the Convention of 1787, not to promote efficiency but to preclude the exercise of

(continued . . .)

169
President have been resolved through the political process, some have

presented "cases and controversies" for the courts to resolve.6

In INS v. Chadha,1 the Supreme Court recently decided one such

dispute, involving the constitutionality of the "legislative veto." The

statute at issue in Chadha authorized the Attorney General to suspend

the deportation of a deportable alien, but also authorized either House

of Congress, by resolution, to override the Attorney General's suspen-

sion. The Supreme Court held the legislative veto provision unconsti-

tutional. The Court first concluded that the one-House veto was

essentially legislative in nature: Congress' action "had the purpose and

effect of altering the legal rights, duties and relations of persons,

including the Attorney General, Executive Branch officials and

Chadha, all outside the legislative branch." 8 The Court then concluded

that a legislative act performed by only one House violates both the

bicameralism and presentment requirements of Article I, § 7—the

requirements that both Houses approve legislation and that such

legislation be presented to the President for approval or veto.9 The

Court explained:

The bicameral requirement, the Presentment Clauses, the

President's veto, and the Congress' power to override a veto

were intended to erect enduring checks on each Branch and to

protect the people from the improvident exercise of power by

mandating certain prescribed steps. To preserve those checks,

and maintain the separation of powers, the carefully defined

limits on the power of each Branch must not be eroded. To

accomplish what has been attempted by one House of

Congress in this case requires action in conformity with the

express procedures of the Constitution's prescription for

(. . . continued)

arbitrary power. The purpose was not to avoid friction, but by means of the inevitable

friction incident to the distribution of governmental power among the departments,

to save the people from autocracy." Myers v. United States, 272 U.S. 52, 293 (1926)

(Brandeis, J., dissenting).

6 U.S. Const., Art. Ill, § 1. Limits on the Judiciary's ability to arbitrate separation of

powers disputes are reflected in the standing and political question doctrines, as

discussed in Chapter 11 in connection with the Executive's power over foreign

relations. In addition, the Judiciary's ability to arbitrate such disputes is itself subject

to separation of powers requirements.

7 462 U.S. 919 (1982).

8 Id. at 952.

9 Id. at 946-51. See also Process Gas Consumers Group v. Consumer Energy Council,

463 U.S. 1216 (1983) (summary affirmance of decision invalidating one-House veto);

United States Senate v. FTC, 463 U.S. 1216 (1983) (summary affirmance of decision

invalidating two-House veto).

170
legislative action: passage by a majority of both Houses and

presentment to the President." 10

Though not frequently litigated in the modern era, another issue

concerning legislative power is the extent to which Congress may

delegate rulemaking authority to others. The Court early held that

Congress could authorize the courts to promulgate rules of practice and

procedure, but this involved not so much delegation of legislative

authority as a recognition of incidental rulemaking authority within the

judiciary." As Chief Justice Marshall stated, "[i]t will not be contended

that Congress can delegate to the courts, or to any other tribunals,

powers which are strictly and exclusively legislative. But Congress may

certainly delegate to others, powers which the legislature may rightfully

exercise itself." 12 Relying on separation of powers principles,13 the

Supreme Court later stated in dictum that Congress could not delegate

its legislative power.14 At most, however, the Court only attempted to

enforce the more limited proposition that "Congress cannot delegate

any part of its legislative power except under a limitation of a prescribed

standard," 15 and it did this only in a few early New Deal cases.16 Other

than in those cases, the Court has virtually ignored even this limitation,

and not surprisingly, the legislative standards governing such delega-

tions have often been very broad and imprecise.17

10 462 U.S. at 957-58.

"Wayman v. Southard, 23 U.S. 1 (1825).

12 Id. at 41.

11 See Field v. Clark, 143 U.S. 649, 692 (1892). As Chief Justice Taft explained: "The

well-known maxim 'delegata potestas non potest delegari,' . . . has had wider

application in the construction of our Federal and State Constitutions than it has in

private law. The Federal Constitution and State Constitutions of this country divide

the governmental power into three branches .... [I]n carrying out that constitu-

tional division . . . it is a breach of the National fundamental law if Congress gives

up its legislative power and transfers it to the President, or to the Judicial branch, or

if by law it attempts to invest itself or its members with either executive power or

judicial power." J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 405-06

(1928).

14 United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932).

15 United States v. Chicago, M., St. P. & P. Ry, 282 U.S. 311, 324 (1931).

16 See Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schecter Poultry Co.

v. United States, 295 U.S. 495 (1935).

17 The Court has required only an "intelligible principle." J. W. Hampton, Jr. & Co. v.

United States, supra; Federal Energy Admin, v. Algonquin SNG, Inc., 426 U.S. 548,

559 (1976). Standards such as "public interest," New York Central Securities Corp. v.

United States, 287 U.S. 12 (1932), "just and reasonable," Tagg Bros. & Moorhead v.

United States, 280 U.S. 420 (1930), "public convenience, interest, or necessity,"

Federal Radio Comm. v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 66 (1933), and

(continued . . .)

171
Separation of powers issues pertaining to the executive power have

arisen more frequently than those pertaining to the legislative or judicial

power. The executive power under Article II—including the power to

"take care that the Laws be faithfully executed"—was intentionally

vested in a single individual or "unitary" Executive, not multiple

individuals or an "Executive Council." 18 While the executive power

extends to both domestic and foreign matters, consideration here is

limited to the former.19

In Buckley v. Valeo,20 the Court struck down the Federal Election

Commission's powers to issue regulations, make binding interpretations

of law, and order prosecution of criminal offenses, because the Com-

missioners were not appointed in accordance with the Appointments

Clause of the Constitution. The Appointments Clause authorizes the

President to appoint officers of the United States with the advice and

consent of the Senate, except that it permits Congress to authorize the

appointment of "inferior" officers by the President alone, by the

courts, or by the Heads of Departments.21 The statute in Buckley

provided for the appointment of two Commissioners by the Speaker of

17 (. . . continued)

"unfair methods of competition," FTC v, Gratz, 253 U.S. 421 (1920), ail have been

found to meet this minimal standard. But see Industrial Union Dep't, AFL-CIO v.

American Petroleum Institute, 448 U.S. 607, 671-724 (1980) (Rehnquist, J., dissent-

ing) (contending that technological and economic feasibility "to the extent possible"

was too imprecise a standard to support delegation).

18 1 M. Far rand, The Records of the Federal Convention of 1787, at 65-73, 93 (rev. ed.

1966); C. Thach, The Creation of the Presidency, 1776-1789 (1923). As Hamilton

noted, "[ejnergy in the executive is a leading character in the definition of good

government. It is essential to the protection of the community against foreign attacks:

It is not less essential to the steady administration of the laws, to the protection of

property .... to the security of liberty against the enterprises and assaults of

ambition, of faction and of anarchy." The Federalist No. 70, at 471 (Cooke ed. 1961).

19 The President's power in foreign affairs is considered in Chapter 11.

20 424 U.S. 1 (1976).

21 The President "shall nominate, and by and with the Advice and Consent of the

Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of

the supreme Court, and all other Officers of the United States, whose Appointments

are not herein otherwise provided for, and which shall be established by Law; but the

Congress may by Law vest the Appointment of such inferior Officers, as they think

proper, in the President alone, in the Courts of Law, or in the Heads of Depart-

ments." U.S. Const., Art. II, § 2. Appointment of principal officers must conform

with the strictures of the Appointments Clause, while Congress has greater freedom

in structuring the appointment of inferior officers. United States v. Germain, 99 U.S.

508 (1879). The line between principal and inferior officers is not entirely clear. See

Morrison v. Olson, 108 S. Ct. 2597 (1988); 2 J. Story, Commentaries on the

Constitution § 1536, at 397-98 (3d ed. 1858). .

172
the House, two by the President Pro Tempore of the Senate, and two by

the President, and it required each Commissioner to be confirmed by

both the House and the Senate. The Court found defective both the

requirement that the President's appointees be confirmed by both

Houses of Congress, and the granting of appointment power to the

Speaker of the House and the President Pro Tempore of the Senate,

neither of whom are mentioned in the Appointments Clause as

authorized to make appointments.22 With regard to the Commission's

authority to seek judicial enforcement of the law, the Court also said

that "it is to the President, and not to the Congress, that the

Constitution entrusts the responsibility to 'take Care that the Laws be

faithfully executed.'" 23 Under the Court's holding, the only powers the

Commission could properly exercise, given its composition, were its

investigative and information functions, because these were merely in

aid of the legislative function of Congress.24

In Bowsher v. Synar,25 the Court invalidated provisions of the

Balanced Budget and Emergency Deficit Control Act of 1985

("Gramm-Rudman") 26 that authorized the Comptroller General, an

officer of the Legislative Branch, to order specific spending reductions

to meet budget deficit limitations that Congress and the President failed

to meet. The Court concluded that by "placing the responsibility for

execution of the [Act] in the hands of an officer who is subject to

removal only by itself, Congress . . . retained control over the execu-

tion of the Act and has intruded into the executive function." 27 The

Court presently is considering a related issue in Ameron, Inc. v. United

States Army Corps of Engineers,2* which concerns the power of the

Comptroller General to limit the actions of executive officials in

contract dispute cases.

Congress and the President also have disputed the scope of the

President's authority to remove federal officers. Over sixty years ago, in

Myers v. United States,29 the Court held that Congress cannot impose

an "advice and consent of the Senate" requirement on Presidential

removal of executive officials. The Court reasoned that the Constitution

22 424 U.S. at 124-28.

23 Id. at 138.

24 Id. at 137-38. After Buckley, Congress provided for each Commissioner to be

appointed by the President, with Senate confirmation.

25 4 78 U.S. 714 (1986).

26 Pub. L. No. 99-177, 99 Stat. 1038.

27 478 U.S. at 734.

™ 809 F.2d 979 (3d Cir. 1986), cert, granted, 108 S. Ct. 1218 (1988).

29 Myers v. United States, 272 U.S. 52, 151 (1926).

173
prevents Congress from "draw[ing] to itself . . . the power to remove

or the right to participate in the exercise of that power. To do this would

be to go beyond the words and implications of the [Appointments

Clause] and to infringe the constitutional principle of the separation of

governmental powers." In Humphrey's Executor v. United States,10

however, the Court upheld a provision that allowed the President to

remove Federal Trade Commissioners only for reasons of "inefficiency,

neglect of duty, or malfeasance in office." The Court concluded that

administrative agencies such as the FTC perform quasi-legislative and

quasi-judicial functions and "cannot in any proper sense be character-

ized as an arm or an eye of the executive." 31 The Court thus limited the

holding of Myers to officers of the executive department performing

executive functions.

In Morrison v. Olson,32 the Court upheld legislation authorizing a

court-appointed Independent Counsel to conduct investigations and

prosecutions—clearly a part of the Executive power to "take care that

the Laws be faithfully executed" 33—with respect to certain senior

executive officials. First, the Court reasoned that the Independent

Counsel was an inferior officer, whose appointment Congress could vest

in the courts under the Appointments Clause, because (1) the Attorney

General initiated the appointment and could remove the Independent

Counsel for cause, (2) the Independent Counsel's duties were narrowly

prescribed to specific investigations and prosecutions, and (3) the class

of individuals who could be prosecuted was limited by the authorizing

legislation.34 Second, the Court concluded that the appointment of the

Independent Counsel did not violate Article Ill's limitations on the

judicial power. The Court reasoned that the Appointments Clause

specifically provides for the appointment of inferior officers by the

courts; moreover, the legislation did not give the court power to

"supervise" the Independent Counsel.35

Third, and most important, the Court held that the Act establish-

ing the Independent Counsel did not violate the separation of powers.

The Court first addressed the good-cause limitation on the Attorney

30 295 U.S. 602 (1935). In Wiener v. United States, 357 U.S. 349 (1948), the Court, even

without a statutory limitation, rejected the President's power to remove a member of

the temporary Commission created to adjudicate damages under the War Claims Act

of 1948.

31 295 U.S. at 628.

32 108 S. Ct. 2597 (1988).

33 U.S. Const., Art. II, § 2.

34 108 S. Ct. at 2608-11.

35 Id. at 2611-15.

174
General's power to remove the Independent Counsel. Departing from

the Myers-Humphrey's Executor distinction between purely executive

officers and officers who exercise quasi-legislative and quasi-judicial

functions, the Court said instead that the essential question is "whether

the removal restrictions are of such a nature that they impede the

President's ability to perform his constitutional duty." 36 In this case,

the Court concluded, the limitation did not "unduly trammel" executive

authority.37 Considering next whether the Act as a whole unduly

interfered with the role of the Executive Branch, the Court concluded

that the creation of the Independent Counsel did not "impermissibly

undermine" the Executive's ability to carry out its constitutionally

assigned functions.38 Pointing to provisions in the Act that left the

Attorney General a limited role in overseeing the actions of the

Independent Counsel, the Court concluded:

Notwithstanding the fact that the counsel is to some degree

'independent' and free from Executive supervision to a greater

extent than other federal prosecutors, in our view these features

of the Act give the Executive Branch sufficient control over the

independent counsel to ensure that the President is able to

perform his constitutionally assigned duties.39

Morrison thus makes it evident that Congress, at least to some extent, may

vest executive functions in officials not subject to the President's control.

The judicial power under Article HI is not as frequently the subject

of separation of power questions. Article III vests the judicial power in

courts whose judges are appointed by the President with the advice and

consent of the Senate, serve during "good Behaviour," and receive

salaries that may not be diminished.40 The judicial power extends only

to "cases and controversies" arising under the Constitution, laws and

treaties of the United States, and such state-law and common-law issues

as might arise within cases over which the courts otherwise have

jurisdiction. Though it has not been precisely defined, a case or

controversy may be said to be that "which, from its nature, is the

subject of a suit at the common law, or in equity, or admiralty." 41

In Northern Pipeline Construction Co. v. Marathon Pipe Line

Ca,42 the Court held unconstitutional provisions of the Bankruptcy

36 Id. at 2619.

37 Id.

38 Id. at 2621.

39 Id. at 2622.

40 U.S. Const. Art. Ill, § 1.

41 Murray's Lessee v. Hobo ken Land & Improvement Ca, 59 U.S. 272 (1856).

42 458 U.S. 50 (1982).

175
Code that vested jurisdiction over common-law claims in bankruptcy

courts whose judges did not hold Article III tenure. The Court

distinguished between the adjudication of "private" rights granted by

State law and common law, on the one hand, and the adjudication of

"public" rights created by Congress.43 Since then, however, the Court

has twice upheld the vesting of adjudicative authority in non-Article III

tribunals. Thomas v. Union Carbide Agricultural Products Ca44

concerned a pesticide registration scheme that vested disputes among

participants over compensation matters in a binding arbitration pro-

ceeding. The Court noted in Thomas that "the public rights doctrine

reflects simply a pragmatic understanding that when Congress selects a

quasi-judicial method of resolving matters that 'could be conclusively

determined by the Executive and Legislative Branches,' the danger of

encroaching on the judicial powers is reduced," and that Congress may

"create a seemingly 'private' right that is so closely integrated into a

public regulatory scheme as to be a matter appropriate for agency

resolution with limited involvement by the Article III judiciary." 45 In

CFTC v. Schor, the Court permitted an independent administrative

agency to adjudicate state-law counterclaims together with the statutory

issues arising out of the same dispute.46 Thus, the Court has held that

Congress could vest the determination of state-law issues in an

administrative body that could not be vested in a judicial body with less

than Article III protections.

Another major separation of powers case concerning the judiciary

is United States v. Mistretta,41 now pending before the Supreme Court,

which involves challenges both to the composition of the United States

Sentencing Commission (three of whose seven members are Article III

judges) and to the Commission's authority to issue binding regulations

to judges regarding sentencing in criminal cases.

In summary, the constitutional requirement of separation of

powers frequently places the three co-ordinate branches of government

in conflict. Though these conflicts often are resolved between the

political branches themselves, the courts regularly have been called

43 Id. at 63-87 (Brennan, Marshall, Blackmun & Stevens, J J., plurality opinion), 89-92

(Rehnquist & O'Connor, JJ., concurring in the judgment). Cf. Crowell v. Benson,

285 U.S. 22 (1932) (holding administrative agency fact-finding subject to judicial

review constitutionally permissible).

44 473 U.S. 568 (1985).

45 Id. at 589, 594.

46 478 U.S. 866 (1986).

47 682 F. Supp. 1033 (E.D. Mo. 1987), cert, granted before judgment, 108 S. Ct. 2818

(1988).

176
upon to decide some of these disputes, to the extent that they properly

present a "case and controversy" to which the judicial power extends.

The kinds of separation of powers disputes discussed above merely

scratch the surface of a broad and continuing debate within the

government.

B. Possible Developments in the Future

The fundamental question pertaining to separation of powers for

the Supreme Court during the next decade, as in the past, is whether the

judiciary should play a significant role in enforcing the constitutional

separation of powers—that is, in resisting efforts by one branch of the

federal government, quite often the legislative branch, to encroach upon

the constitutional prerogatives of the others. Stated differently, the

question is whether the judiciary will permit the political tendency of

extending, accumulating, and fusing power to prevail over the Madiso-

nian goal of diffusing and limiting power.

In considering this issue, the Supreme Court has a choice between

two quite different roads. One road—what might be termed the

"Madisonian" road—leads toward the more rigorous structural ap-

proach with regard to separation of powers issues. On this road, the

Court would find itself often acting as the final arbiter of constitutional

disputes regarding separation of powers and invalidating those laws and

actions that were intended to achieve efficient results by bypassing

separation of powers concerns. The other road—what might be termed

the "pragmatic" road—leads toward a more flexible, perhaps more

functional, approach with regard to separation of powers issues. On this

road, the Court would often seek to accommodate the political goal of

seeking greater efficiency, even if this meant fusing aspects of the

executive and legislative branches and creating greater power for the

government as a whole. 48 Perhaps this pragmatic road would lead the

Court ultimately to conclude, as it has with federalism issues,49 that the

Cf. Constitutional Controversies 14 (R. Goldwin, W. Schambra, A. Kaufman, eds.,

1987) (remarks of now-Judge Laurence H. Silberman) ("It is quite clear that if we

move toward fusing aspects of the executive and legislative branches ... we would

create greater power for the government, as a whole. This is fundamental to the

separation of powers. The American democracy, unique in the world, makes it very

difficult for government to accrue power.").

See South Carolina v. Baker, 108 S. Ct. 1355 (1988); Garcia v. San Antonio Metro.

Transit Authority, 469 U.S. 528 (1985) (political process, not judicial review, the

principal means of protecting the constitutional prerogatives of the states). The

judicial role in resolving federalism issues is discussed in Chapter 12.

177
courts should withdraw almost entirely from enforcing separation of

powers principles and leave the resolution of these disputes to the

political branches themselves.50

The Madisonian road—marked out in Chadha, Buckley, Bowsher

and Marathon 51—may lead to less efficiency in government, but it

assures greater responsibility by the respective branches of government

for their constitutionally assigned tasks. The Madisonian road is

rigorous with regard to classification. Under this approach, the Court

must determine, first, whether the function or office at issue should be

classified as legislative, executive, or judicial in character and, second,

whether the function or office is, in fact, being performed by an official

of the appropriate branch. The Court under this approach would not be

tolerant of efforts by one branch to perform functions assigned to the

others, and it would view with skepticism efforts to fuse functions by

creating independent offices or agencies that share the attributes of

more than one branch.

The pragmatic road—marked out in Thomas, Schor and

Morrison 52—may lead to greater governmental efficiency, but it pro-

vides less responsibility in the respective branches of government

because it tolerates the blurring or fusing of functions. The pragmatic

road is less rigorous with regard to the classification of functions. The

starting point for the pragmatic approach is perhaps best reflected in the

frequently cited words of Justice Jackson:

While the Constitution diffuses power the better to secure

liberty, it also contemplates that practice will integrate the

dispersed powers into a workable government. In enjoins

upon its branches separateness but interdependence, auton-

omy but reciprocity.53

Under this approach, the Court still may inquire whether the function

or office at issue is essentially legislative, executive, or judicial in

character and whether the function or office is being performed by an

official of the corresponding branch, but a negative answer to the latter

inquiry is not necessarily fatal. Rather, the pragmatic approach requires

the Court to inquire further whether the assignment of duties to a

30 Cf. J. Choper, Judicial Review and the National Political Process (1980) (court

should view separation of powers questions as non-justiciable).

31 See notes 7-10, 20-28, 42-43 and accompanying text, supra.

32 See notes 32-39, 44-46 and accompanying text, supra.

33 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,

concurring), quoted in Morrison v. Olson, 108 S. Ct. 2597, 2620 (1988). Justice

Jackson may not necessarily have endorsed the meaning given to these words by the

modern pragmatic approach to separation of powers issues.

178
person outside the appropriate branch of government impermissibly

impedes that branch in exercising its constitutionally assigned func-

tions. Because the ultimate question would be one of degree rather than

kind, the Court's analysis under the pragmatic approach necessarily

involves a balancing of the interests that it perceives to be at stake.54 As

Justice Scalia recently observed, the question under this approach is not

whether one branch has intruded upon the prerogatives of the other, but

whether it has intruded "too much." 55

Because the scope of Chadha remains open to question, one area

in which the Court may have to consider these competing approaches in

the upcoming decade involves congressional action, other than by

legislation enacted pursuant to the requirements of Article I, § 7, that

seeks to limit executive prerogatives. For example, Congress has re-

quired the Executive to report certain proposed actions and to delay

implementation for a certain period of time.56 This mechanism gives

Congress time to enact legislation if it disagrees with the proposed

action; it restricts Executive discretion and flexibility and may raise

issues of Executive privilege in some circumstances, but it does not

directly transgress the Constitution's bicameralism and presentment

requirements.

More problematic than these provisions are proposals that would

seek to condition Executive funding decisions on approval of the

particular expenditure by the Appropriations Committee or some other

congressional committee. A separation of powers issue would arise, for

example, if legislation required the Secretary of Interior to obtain the

approval of certain congressional committees before purchasing specific

tracts of land for inclusion in the National Park System.57 Under a

Madisonian approach, the Court probably would see such a require-

ment as an improper attempt by Congress to retain and exercise power

without following the constitutional prerequisites for legislation. Under

a pragmatic approach, the Court might find that such preapproval is

merely part of a conditional grant of spending authority pursuant to

Congress' "power of the purse." 58 The question then would be whether

54 Cf. Morrison v. Olson, 108 S. Ct. 2597, 2629 (1988) (Scalia, J., dissenting) (Court

replaced clear constitutional prescription with a balancing test).

55 Id. at 2641.

56 See, e.g., Pub. L. No. 95-557, Title HI, § 324, 92 Stat. 2099, Oct. 31,1978 (requiring

notification to Congress of proposed rules and 30-day mandatory waiting period

before rules become effective).

57 See Kaiser, Congressional Control of Executive Action in the Aftermath of the

Chadha Decision, 36 Ad. L. Rev. 239, 243 (1984).

58 U.S. Const., Art. I, § 9, cl. 7.

179
such a provision would impermissibly impede the Executive in the

performance of his constitutional duties.

The delegation doctrine raises the question of vesting quasi-

legislative, quasi-executive and quasi-judicial functions in independent

administrative agencies, as well as vesting quasi-legislative and quasi-

judicial functions in executive departments and agencies. Under a strict

Madisonian concept of separation of powers, the Court conceivably

could hold that the Congressional delegation of rulemaking functions

to the Executive branch or to independent agencies violates the separa-

tion of powers.59 In his Chadha dissent, Justice White contended that,

"by virtue of congressional delegation, legislative power can be exer-

cised by independent agencies and Executive departments." "There is

no question!' Justice White added, "but that agency rulemaking is

lawmaking in any functional or realistic sense of the term." 60 Justice

White argued that, if such delegation of rulemaking authority is

constitutionally permissible, the one-House veto at issue in Chadha

should not be infirm; conversely, however, it could be countered that, if

the one-House veto is constitutionally infirm, as Chadha held, then so

are these delegations of rulemaking authority. Nevertheless, under a

pragmatic approach, the Court could continue to hold that delegation

of rulemaking authority does not offend the separation of powers

doctrine. And even under a pragmatic approach, the Court could again

require, as it once briefly did, that Congress provide clearly defined

standards to guide agency discretion.

The "unitary Executive" principle of Article II 61 also provides a basis

to question the viability of "independent" agencies in their present form.

The Court could take a Madisonian view that, because the Constitution

vests all executive power in a President, Congress may not give executive

power to agencies that are not under the President's control. Under this

approach, the Court could find that the "independent" agencies do not

have a place in the constitutional structure, and require that they be

reorganized with their powers reassigned to the respective branches of

government. On the other hand, however, the Court could take the

pragmatic approach that views independent agencies as necessary to the

efficient operation of a complex government.*

59 But see Yakus v. United States, 321 U.S. 414 (1944) (upholding delegation to Price

Administrator, under Price Control Act, of authority to issue regulations pursuant to

legislative standards).

60 Chadha, 462 U.S. at 985-86 (White, J., dissenting). Justice White also noted that

"rules and adjudication by the agencies meet the Court's own definition of legislative

action." Id. at 989.

61 See note 18 and accompanying text, supra.

180
While the pragmatic approach appears to conflict with the notion

of a unitary Executive, it does provide support for the viability of

independent agencies. If the Court follows the pragmatic approach,

Congress will be able to continue assigning executive—as well as

legislative and judicial—functions to "independent agencies," but sub-

ject at least to the Morrison test of whether the limitations on the

President's powers "are of such a nature that they impede the Presi-

dent's ability to perform his constitutional duty . . . ." 62 This latter

question would remain unresolvable except on a case-by-case basis. For

example, although the specific power to prosecute offenses against the

United States might still be seen as a function of the President's Article

II authority to "take care that the Laws be faithfully executed"—as the

Court held in Buckley 63—the validity of assigning this function outside

the Executive branch might very well be seen to depend upon the totality

of circumstances.64 Indeed, if "a particular function, like a chameleon,

will often take on the aspect of the office to which it is assigned," 65 as

Justice Stevens recently suggested, the Court may decide that particular

functions simply cannot be characterized as executive, legislative, or

judicial.

Thus, in the coming years, the Court increasingly may confront

Article II separation of powers issues arising from congressional efforts

to expand the powers of the independent agencies. Indeed, the long-

term importance of Morrison is that it may encourage Congress further

to attempt to free agency officials, with purely or largely executive

functions, from the President's control. As Justice Scalia noted in

Morrison:

It effects a revolution in our constitutional jurisprudence for

the Court, once it has determined that (1) purely executive

functions are at issue here, and (2) those functions have been

given to a person whose actions are not fully within the

supervision and control of the President, nonetheless to

proceed further to sit in judgment of whether "the President's

need to control the exercise of [the independent counsel's]

discretion is so central to the functioning of the Executive

Branch" as to require complete control .... whether the

conferral of his powers upon someone else sufficiently de-

prives the President of control over the independent counsel

62 108 S. Ct. at 2619.

63 Buckley, 424 U.S. at 140. See note 23 and accompanying text, supra.

64 Cf. Morrison, 108 S. Ct. at 2641 (Scalia, J., dissenting) (characterizing majority

approach as based on the "totality of the circumstances").

65 Bowsher, 478 U.S. at 749 (Stevens, J., concurring).

181
to interfere impermissibly with [his] constitutional obligation

to ensure the faithful execution of the laws," . . . and

whether "the Act give[s] the Executive Branch sufficient

control over the independent counsel to ensure that the

President is able to perform his constitutionally assigned

duties" . . . .«

Under the Madisonian approach, of course, none of these questions

would be relevant: once the Court determined that a particular function

belonged to a particular branch of government, the only question left to

decide would be whether that function had been assigned to the

appropriate branch.

The "unitary Executive" principle of Article II is not the only

constitutional basis for challenging the viability of the independent

agencies. Just as the Court could rely on Article II in concluding that

Congress may not delegate executive functions to the independent

agencies, it could rely on Article III in concluding that Congress may

not delegate judicial functions to these agencies. More precisely, taking

a strict separation of powers approach, the Court could determine that

Article III adjudicatory power, particularly with regard to state-created

or common-law rights, may not be delegated to administrative agencies

or to the administrative law judges that these agencies employ. In this

regard, the structural approach taken in Marathon 67 stands in contrast

to the more pragmatic approach apparent in Thomas and Schor.68

These cases thus offer the Court a choice of direction in this area.

Under a strict separation of powers approach, which the result in

Marathon reflects, the Court would be less likely to permit an indepen-

dent agency such as the CFTC to exercise adjudicatory power over

claims arising out of state law, an authority the Court upheld in Schor.

Separation of powers questions, such as those discussed above,

are likely to continue to arise not only in the upcoming decade but in the

foreseeable future as well, for these issues place in tension the desire for

government to have the power to act promptly and efficiently to address

national problems and the desire to protect liberty by making it difficult

for government to act. As Dr. James Q. Wilson, then a Professor of

Management at the University of California at Los Angeles, remarked

66 Morrison, 108 S. Ct. at 2628 (Scalia, J., dissenting) (emphasis and brackets in

original; citations omitted). The majority's reliance in Morrison on a core functions

analysis may be no more successful here than it proved to be with respect to

federal-state relations. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528

(1985), overruling National League of Cities v. Usery, 426 U.S. 833 (1976).

67 See notes 42-43 and accompanying text, supra.

68 See notes 44-46 and accompanying text, supra.

182
a few years ago, separation of powers "facilitates scrutiny, sometimes at

the expense of action; it protects the particular and the individual,

sometimes at the expense of the general." 69 When the desire is for

action rather than scrutiny, separation of powers may seem to have

defects. To a large extent, the modern debate over separation of powers

is whether separation of powers has the "virtues of those defects." 70

The modern debate is whether the fears that motivated the framers to

diffuse power remain as valid today as when the framers adopted the

constitution.

Those who are impatient with obstacles to governmental action are

likely to find appealing the pragmatic approach to separation of powers

issues. To some extent, this impatience was reflected in the Independent

Counsel provision at issue in Morrison, for the underlying, pragmatic

congressional concern was that the Executive could not be trusted to

investigate and prosecute its own officials. Those who support the

Madisonian conception must concede that the doctrine of separation of

powers, like the provisions of the Bill of Rights, can impose costs. As

Justice Scalia observed in his Morrison dissent:

A system of separate and coordinate powers necessarily

involves an acceptance of exclusive power that can theoreti-

cally be abused. As we reiterate this very day, "[i]t is a truism

that constitutional protections have costs." . . . While the

separation of powers may prevent us from righting every

wrong, it does so in order to ensure that we do not lose

liberty.71

As the Supreme Court moves into the 1990's, it faces a clear choice

between these competing approaches.

C. Potential Controversies for the 1990's

The following lists some of the separation of powers issues that the

Court may confront during the next decade:

— Does the constitutional principle of separation of powers require

the invalidation of all the one-House and two-House vetoes

contained in federal law, or may some of these provisions be

distinguished from the one-House veto invalidated in Chadhal

— Is the constitutional principle of separation of powers violated by

legislation requiring the Executive to "report" to the Congress

69 Constitutional Controversies, supra note 48, at 6 (remarks of James Q. Wilson).

70 Id.

7' Morrison, 108 S. Ct. at 2597 (Scalia, J., dissenting).

183
before a specific action is taken—such as disbursement of funds—

and to wait for a specified period of time before executing that

action so that Congress may consider legislation?

Does the principle of separation of powers permit Congress to

impose specific conditions on executive action, such as prior

approval of expenditure of funds by the Appropriations Commit-

tees in the House and Senate?

Under what circumstances, if any, does the constitutional principle

of separation of powers permit Congress to assign Executive

functions, such as the power of prosecution, to officials outside

the control of the Executive, whether organized in independent

agencies or appointed by an authority other than the Executive?

Does the principle of separation of powers impose any articulable

limits on the Congress's authority to limit the President in

removing from office purely executive officials?

Does the principle of separation of powers require restrictions—at

a minimum, clear legislative standards—on the ability of Congress

to delegate broad rulemaking and adjudicatory authority to

executive and administrative agencies?

Does the principle of separation of powers limit the Congress'

ability to assign legislative, executive, and judicial functions—such

as rulemaking, prosecution, and adjudication—to the "inde-

pendent" administrative agencies?

To what extent does the separation of powers permit Congress to

assign adjudicatory functions to administrative agencies and em-

ployees?

Will the principle of separation of powers be applied to require the

independent agencies to be dismantled or restructured?

Will the Supreme Court permit judicial officers or panels of

judicial officers to appoint executive officers who have broad

authority and discretion, such as agency Inspectors General?

184
Conclusion

The Constitution in the year 2000 is likely to be a much different

document from what it resembles today. To a significant degree, its

precise character will be defined by hundreds of Supreme Court

decisions in such areas as those set out in the fifteen chapters of this

report. Given the growing divisions in society over the proper approach

to constitutional interpretation and the role of the judiciary within our

constitutional architecture, the meaning of the Constitution in the year

2000 will be determined largely by the individuals who sit on the

Supreme Court over the next decade. As this report attempts to show,

the range of policy issues likely to be addressed by the Court is an

extremely broad one, the resolution of which will determine the kind of

society that America will be as we embark upon the twenty-first century.

185
Appendix

CONSTITUTION OF THE UNITED STATES OF AMERICA—1787 1

We the People of the United States, In Order

to form a more perfect Union, establish Jus-

tice, insure domestic Tranquility, provide for

the common defence, promote the general

Welfare, and secure the Blessings of Liberty

to ourselves and our posterity, do ordain and

establish this Constitution for the United

States of America.

Article I.

Section 1. All legislative Powers herein grant-

ed shall be vested in a Congress of the United

States, which shall consist of a Senate and

House of Representatives.

< In May, 17SS. a committee of Congress made a report recom-

mending an alteration in the Article* of Confederation, but no

if uon was taken on it, and it wai left to the State Legislatures

to proceed in the matter. In January. 17M. the Legislature of

Virginia passed a resolution providing for the appointment of

fire commissioners, who. or any three of them, should meet

such commissioners as might be appointed in the other States

of the Union, at a time and place to be agreed upon, to take

into consideration the trade of the United States; to consider

how far a uniform system in their commercial regulations may

be necessary to their common interest and their permanent

harmony: and to report to the several States such an act. rela-

tive to this great object, as. when ratified by them, will enable

the United States in Congress effectually to provide for the

avne. The Virginia commissioners, after some correspondence,

fixed the first Monday in September as the time, and the city

of Annapolis as the place for the meeting, but only four other

States were represented, via: Delaware. New York. New Jersey,

sod Pennsylvania: the commissioners appointed by Massachu-

setts, New Hampshire, North Carolina. and Rhode 1sland failed

u> attend. Under the circumstances of so partial a representa-

tion, the commissioners present agreed upon a report, (drawn

by Mr. Hamilton, of New York.) expressing their unanimous

conviction that it might essentially tend to advance the inter

esti of the Union if the States by which they were respectively

delegated would concur, and use their endeavors to procure the

concurrence of the other States, in the appointment of commls-

aooers to meet at Philadelphia on the Second Monday of May

following, to take into consideration the situation of the United

States, to devise such further provisions as should appear to

them necessary to render the Constitution of the Federal Gov

emment adequate to the exigencies of the Union: and to report

such an act for that purpose to the United States in Congress

assembled as. when agreed to by them and afterwards con-

firmed by the Legislatures of every State, would effectually

provide for the same.

Congress. on the 21st of February. 1787, adopted a resolution

in favor of a convention, and the Legislatures of those States

■tuch had not already done so (with the exception of Rhode

island) promptly appointed delegates. On the 25th of May.

men States having convened. George Washington, of Virginia.

*is unanimously elected President, and the consideration of

the proposed constitution was commenced. On the 17th of Sep

umber. 1787, the Constitution as engrossed and agreed upon

»*s signed by all the members present, except Mr. Gerry of

Massachusetts, and Messrs. Mason and Randolph, of Virginia

The president of the convention transmitted it to Congress.

*uh a resolution stating how the proposed Federal Govern

tnent should be put in operation, and an explanatory letter

Congress, on the 28th of September. 1787, directed the Const!

tution so framed, with the resolutions and letter concerning the

same, to be transmitted to the several Legislatures in order to

tw submitted to a convention of delegates chosen in each State

t>> the people thereof, in conformity to the resolves of the con

'enuon"
CONSTITUTION OF THE UNITED STATES OP AMERICA—1787

'SacnoR 3. The Senate of the United 8tates

shall be composed of two Senators from each

State, chosen by the Legislature thereof, for six

Years: and each Senator shall have one Vote.

Immediately after they shall be assembled in

Consequence of the first Election, they shall be

divided as equally as may be into three Classes.

The Seats of the Senators of the first Class

shall be vacated at the Expiration of the second

Year, of the second Class at the Expiration of

the fourth Year, and of the third Class at the

Expiration of the sixth Year, so that one third

may be chosen every second Year; and if Vacan-

cies happen by Resignation, or otherwise,

during the Recess of the Legislature of any

State, the Executive thereof may make tempo-

rary Appointments until the next Meeting of

the Legislature, which shall then fill such Va-

cancies.

No Person shall be a Senator who shall not

have attained to the Age of thirty Years, and

been nine Years a Citizen of the United States,

and who shall not, when elected, be an Inhabi-

tant of that State for which he shall be chosen.

The Vice President of the United States shall

be President of the Senate, but shall have no

Vote, unless they be equally divided.

The Senate shall chuse their other Officers,

and also a President pro tempore, in the Ab-

sence of the Vice President, or when he shall

exercise the Office of President of the United

States.

The Senate shall have the sole Power to try

all Impeachments. When sitting for that Pur-

pose, they shall be on Oath or Affirmation.

When the President of the United States is

tried, the Chief Justice shall preside: And no

Person shall be convicted without the Concur-

rence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not

extend further than to removal from Office,

and disqualification to hold and enjoy any

Office of honor. Trust or Profit under the

United States: but the Party convicted shall

nevertheless be liable and subject to Indict-

ment, Trial, Judgment and Punishment, accord-

ing to Law.

'Scctioh 4. The Times, Places and Manner of

holding Elections for Senators and Representa-

tives, shall be prescribed in each State by the

Legislature thereof: but the Congress may at

any time by Law make or alter such Regula-

tions, except as to the Places of chuslng Sena-

tors.

The Congress shall assemble at least once in

every Year, and such Meeting shall be on the

first Monday in December, unless they shall by

Law appoint a different Day.

Scctioh 5. Each House shall be the Judge of

the Elections, Returns and Qualifications of its

own Members, and a Majority of each shall

constitute a Quorum to do Business: but a

smaller Number may adjourn from day to day,

and may be authorized to compel the Attend-

ance of absent Members, in such Manner, and

under such Penalties as each House may pro-

vide.

*Thla tecUon ha* bttn affected by the 17th amendment, p.

LVU.
CONSTITUTION OP THE UNITED STATES OF AMERICA-1787

me Same shall take Effect, shall be approved

by him. or being disapproved by him, shall be

repassed by two thirds of the Senate and House

of Representatives, according to the Rules and

limitations prescribed in the Case of a Bill.

Section 8. The Congress shall have Power To

lay and collect Taxes. Duties, Imposts and Ex-

cises, to pay the Debts and provide for the

common Defence and general Welfare of the

United States: but all Duties, Imposts and Ex-

cises shall be uniform throughout the United

States:

To borrow Money on the credit of the United

States:

To regulate Commerce with foreign Nations,

and among the several States, and with the

Indian Tribes:

To establish a uniform Rule of Naturaliza-

tion, and uniform Laws on the subject of Bank-

ruptcies throughout the United States:

To coin Money, regulate the Value thereof,

and of foreign Coin, and fix the Standard of

Weights and Measures:

To provide for the Punishment of counter-

feiting the Securities and current Coin of the

United States:

To establish Post Offices and post Roads:

To promote the Progress of Science and

useful Arts, by securing for limited Times to

Authors and Inventors the exclusive Right to

their respective Writings and Discoveries:

To constitute Tribunals inferior to the su-

preme Court:

To define and punish Piracies and Felonies

committed on the high Seas, and Offences

against the Law of Nations:

To declare War, grant Letters of Marque and

Reprisal, and make Rules concerning Captures

on Land and Water:

To raise and support Armies, but no Appro-

priation of Money to that Use shall be for a

longer Term than two Years:

To provide and maintain a Navy:

To make Rules for the Government and Reg-

ulation of the land and naval Forces:

To provide for calling forth the Militia to ex-

ecute the Laws of the Union, suppress Insurrec-

tions and repel Invasions:

To provide for organizing, arming, and disci-

plining, the Militia, and for governing such

Part of them as may be employed in the Service

of the United States, reserving to the States re-

spectively, the Appointment of the Officers,

and the Authority of training the Militia ac-

cording to the discipline prescribed by Con-

gress:

To exercise exclusive Legislation in all Cases

whatsoever, over such District (not exceeding

ten Miles square) as may, by Cession of particu-

lar States, and the Acceptance of Congress,

become the Seat of the Government of the

United States, and to exercise like Authority

over all Places purchased by the Consent of the

Legislature of the State in which the Same

shall be, for the Erection of Forts, Magazines,

Arsenals. dock-Yards, and other needful Build-

ings:-And

To make all Laws which shall be necessary

and proper for carrying into Execution the

OF THE UNITED STATES

OF AMERICA—1787

for the i

Each" Stale (hall appoint. in such Manner aa

the TaaMalme thereof may direct, a Number

of Electors, equal to the whole Number of Sen-

ators and Representatives to which the State

may be entitled in the Congress: but no Senator

or Representative, or Person holding an Office

of Trust or Profit under the United States,

shall be appointed an Elector.

'The Electors shall meet in their respective

States, and vote by Ballot for two Persons of

whom one at least shall not be an Inhabitant of

the same State with themselves. And they shall

make a List of all the Persons voted for, and of

the Number of Votes for each: which List they

shall sign and certify, and transmit sealed to

the Seat of the Government of the United

States, directed to the President of the Senate.

The President of the Senate shall, in the Pres-

ence of the Senate and House of Representa-

tives, open all the Certificates, and the Votes

shall then be counted. The Person having the

greatest Number of Votes shall be the Presi-

dent, if such Number be a Majority of the

whole Number of Electors appointed: and if

there be more than one who have such Major-

ity, and have an equal Number of Votes, then

the House of Representatives shall immediately

chuse by Ballot one of them for President: and

if no Person have a Majority, then from the

five highest on the List the said House shall in

like Manner chuse the President. But in claus-

ing the President, the Votes shall be taken by

States, the Representation from each State

having one Vote: A quorum for this Purpose

shall consist of a Member or Members from two

thirds of the States, and a Majority of all the

States shall be necessary to a Choice. In every

Case, after the Choice of the President, the

Person having the greatest Number of Votes of

the Electors shall be the Vice President. But if

there should remain two or more who have

equal Votes, the Senate shall chuse from them

by Ballot the Vice President.

The Congress may determine the Time of

chusing the Electors, and the Day on which

they shall give their Votes: which Day shall be

the same throughout the United States.

No Person except a natural born Citizen, or a

Citizen of the United States, at the time of the

Adoption of this Constitution, shall be eligible

to the Office of President: neither shall any

Person be eligible to that Office who shall not

have attained to the Age of thirty five Years,

and been fourteen Years a Resident within the

United States.

In Case of the Removal of the President from

Office, or of his Death, Resignation, or Inabil-

ity to discharge the Powers and Duties of the

said Office, the same shall devolve on the Vice

President, and the Congress may by Law pro-

vide for the Case of Removal. Death, Resigna-

tion or Inability, both of the President and Vice

President, declaring what Officer shall then act

as President, and such Officer shall act accord-

ingly, until the Disability be removed, or a

I shall be elected.

for his Services, a

OF THE UNITED STATES OF AMERICA—1787

Affirmation, to support this Constitution; but

no religious Test shall ever be required as a

Qualification to any Office or public Trust

under the United States.

Article VII.

The Ratification of the Conventions of nine

States, shall be sufficient for the Establishment

of this Constitution between the States so rati-

fying the Same.

dors in Convention by the Unanimous Consent

of the States present the Seventeenth Day of

September in the Year of our Lord one thou-

sand seven hundred and Eighty seven and of

the Independence of the United States of

America the Twelfth. Ih witness whereof We

'have hereunto subscribed our Names,

Oo. WASHINGTON—PretidK

and deputy from Virginia

William Jackson Secretary

New Hampshire

Nicholas Oilman

Nathaniel Ookham

Rum Kmc

Connecticut

Wm. Saml. Johnson Roger

New York

Hamilton*

New Jersey

Wil.

David

Wm. Paterson.

Jona. Dayton

Pennsylvania

B. Franklin

Thomas Mifflin

Robt. Morris

Oeo. Cltmer

Thos. FitzSimons

JARED InGERSOLL

James Wilson.

Oouv. Morris

Delaware

Geo. Read

Gunning Bedford

jun

John Dickinson

Richard BaSsrn

Jaco. Broom

James McHenry

Dan of St. Thos.

Ji

John Blair—

Wm. Blount

Richd. Dobbs

Spaight.

Maryland

Danl. Carroll.

Virginia

Madison Jr.

North Carolina

He. Williamson

South Carolina

j. rutledoe

Charles

Cotesworth

Pinckney

William

Georgia
CONSTITUTION OP THE UNITED STATES OP AMERICA—1787

their Services, a Compensation, which shall not

he diminished during their Continuance in

Office.

'Section 2. The Judicial Power shall extend

to all Cases, in Law and Equity, arising under

this Constitution, the Laws of the United

States, and Treaties made, or which shall be

made, under their Authority:—to all Cases af-

fecting Ambassadors, other public Ministers

and Consuls:—to all Cases of admiralty and

maritime Jurisdiction:—to Controversies to

which the United States shall be a Party:—to

Controversies between two or more States:—be-

tween a State and Citizens of another State:—

between Citizens of different States:—between

Citizens of the same State claiming Lands

under Grants of different States, and between a

State, or the Citizens thereof, and foreign

States. Citizens or Subjects.

In all Cases affecting Ambassadors, other

public Ministers and Consuls, and those in

which a State shall be Party, the supreme

Court shall have original Jurisdiction. In all the

other Cases before mentioned, the supreme

Court shall have appellate Jurisdiction, both as

to Law and Fact, with such Exceptions, and

under such Regulations as the Congress shall

make.

The Trial of all Crimes, except in Cases of

Impeachment, shall be by Jury: and such Trial

shall be held in the State where the said

Crimes shall have been committed: but when

not committed within any State, the Trial shall

be at such Place or Places as the Congress may

by Law have directed.

Section 3. Treason against the United States,

shall consist only in levying War against them,

or in adhering to their Enemies, giving them

Aid and Comfort. No Person shall be convicted

of Treason unless on the Testimony of two Wit-

nesses to the same overt Act, or on Confession

in open Court.

The Congress shall have Power to declare the

Punishment of Treason, but no Attainder of

Treason shall work Corruption of Blood, or

Forfeiture except during the Life of the Person

attainted.

Article IV.

Section 1. Full Faith and Credit shall be

given in each State to the public Acts, Records,

and Judicial Proceedings of every other State.

And the Congress may by general Laws pre-

scribe the Manner in which such Acts, Records

and Proceedings shall be proved, and the Effect

thereof.

Section 2. The Citizens of each State shall be

entitled to all Privileges and Immunities of Citi-

zens in the several States.

A Person charged in any State with Treason.

Felony, or other Crime, who shall flee from

Justice, and be found in another State, shall on

Demand of the executive Authority of the

State from which he fled, be delivered up. to be

removed to the State having Jurisdiction of the

Crime.

No Person held to Service or Labour in one

State, under the Laws thereof, escaping into

'This section has been affected by the 11th amendment, p

another, shall, in Consequence of any Law or

CONSTITUTION OP THE UNITED STATES OP AMERICA—1787

«rty or property, without due process of law:

nor shall private property be taken for public

use. without Just compensation.

Article [VI.]

In all criminal prosecutions, the accused shall

enioy the right to a speedy and public trial, by

arT impartial Jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law. and to be informed of the nature

and cause of the accusation: to be confronted

with the witnesses against him: to have compul-

sory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for

his defence.

Article [VII.]

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the

right of trial by Jury shall be preserved, and no

fact tried by a Jury, shall be otherwise reexam-

ined in any Court of the United States, than ac-

cording to the rules of the common law.

Article [VIII.]

Excessive bail shall not be required, nor ex-

cessive fines imposed, nor cruel and unusual

punishments inflicted.

Article [IX.]

The enumeration in the Constitution, of cer-

tain rights, shall not be construed to deny or

disparage others retained by the people.

Article [X.]

The powers not delegated to the United

States by the Constitution, nor prohibited by it

to the States, are reserved to the States respec-

tively, or to the people.

[Article XI.]

The Judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of

the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State.

Proposal ahs RatincatiOM

The eleventh amendment to the Constitution of the

United States was proposed to the legislatures of the

several States by the Third Congress, on the 4th of

March 1794: and was declared in a message from the

President to Congress. dated the 8th of January. 1798.

to have been ratified by the legislatures of three-

fourths of the States. The dates of ratification were:

New York, March 27, 1794: Rhode Island. March 31.

1794: Connecticut, May 8. 1794: New Hampshire. June

18. 1794: Massachusetts. June 26. 1794: Vermont, be-

tween October 9, 1794 and November 9. 1794: Virginia.

November 18. 1794: Georgia. November 29. 1794; Ken-

tucky. December 7, 1794; Maryland. December 26.

1794: Delaware. January 23. 1795: North Carolina.

February 7, 1795.

Ratification was completed on February 7, 1795.

The amendment was subsequently ratified by South

Carolina on December 4. 1797, New Jersey and Penn-

sylvania did not take action on the amendment.

[Article XII.] '•

The Electors shall meet in their respective

states, and vote by ballot for President and

t was affected by the 20th amendment. 1 3.

Vice-President, one of whom, at least, shall not

be an inhabitant of the same state with them-

selves: they shall name in their ballots the

person voted for as President, and in distinct

CONSTITUTION OP THE UNITED STATES OP AMERICA—1787

AjtncLi xnx.

Sbctiox 1. Neither slavery nor involuntary

servitude, except as a punishment for crime

whereof the party shall have been duly convict-

ed, shall exist within the United States, or any

place subject to their jurisdiction.

Sxcnoar 2. Congress shall have power to en-

force this article by appropriate legislation.

Proposal asm Ranricanos

The thirteenth amendment to the Constitution of

the United State* was proposed to the legislature* of

the several State* by the Thirty-eighth Contra*, on

the 31st day of January, 1865, and wa» declared, in a

proclamation of the Secretary of State, dated the 18th

of December, 1865, to have been ratified by the legisla-

ture* of twenty-seven of the thirty-six States. The

date* of ratification were: Illinois, February 1. 1866:

Rhode Island. February 2,1866: Michigan. February 2.

1866: Maryland, February 3.1865; New York. February

3.1866: Pennsylvania. February 3. 1865: Wert Virginia.

February 1, 1866: Missouri. February 6. 1865: Maine.

February 7,1865: ** February 7,1865: Massachu-

setts. February 7, 1866: Virginia. February », 1865:

Ohio. February 10. 1865: Indiana. February 13. 1865:

Nevada. February 16. 1865; Louisiana. February 17,

1865: Minnesota. February 23. 1865; Wisconsin, Febru-

ary 24.1866: Vermont. March 9. 1865: Tennessee. April

7, 1865; Arkansas. April 14. 1865; Connecticut. May 4.

1866; New Hampshire. July 1. 1866; South Carolina.

November 13. 1865: Alabama. December 2.1865; North

Carolina. December 4. 1865; Georgia. December 6.

1846.

Ratification was completed on December 6,1865.

The amendment was subsequently ratified by

Oregon, December 8. 1865: California. December 19,

1865: Florida. December 28. 1865 (Florida again rati-

fied on June 9.1868. upon its adoption of a new consti-

tution); Iowa. January 15, 1866; New Jersey. January

23. 1866 (after having rejected the amendment on

March 16. 1866): Texas. February 18. 1870: Delaware.

February 12, 1901 (after having rejected the amend-

ment on February 8. 1865): Kentucky, March 18. 1976

(after having rejected it on February 24.1865).

The amendment wa* rejected (and not subsequently

ratified) by Mississippi. December 4.1865.

AJtTICLC XIV.

Sectioh 1. All persons bom or naturalized in

the United States, and subject to the Jurisdic-

tion thereof, are citizens of the United States

and of the State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of citizens

of the United 8tates: nor shall any State de-

prive any person of life, liberty, or property,

without due process of law; nor deny to any

person within it* Jurisdiction the equal protec-

tion of the laws.

Sxcnow 2. Representatives shall be appor-

tioned among the several States according to

their respective numbers, counting the whole

number of persons in each State, excluding In-

dians not taxed. But when the right to vote at

any election for the choice of electors for Presi-

dent and Vice President of the United States.

Representatives in Congress, the Executive and

Judicial officers of a State, or the members of

the Legislature thereof. is denied to any of the

male inhabitants of such State, being twenty-

one years of age, and citizens of the United

ION OP THE UNITED STATES OP AMERICA—1787

Article XV.

Section 1. The right of citizens of the United

States to vote shall not be denied or abridged

by the United States or by any State on ac-

count of race, color, or previous condition of

servitude.

Section 2. The Congress shall have power to

enforce this article by appropriate legislation.

Piofosal in Ratotcation

The fifteenth antendment to the Constitution of the

United States was proposed to the legislatures of the

several State* by the Fortieth Congress, on the 26th

of February. 1869. and was declared. in a proclamation

of the Secretary of State, dated March 30, 1870. to

have been ratified by the legislatures of twenty-nine

of the thirty-seven States. The dates of ratification

were: Nevada. March 1. 1869; West Virginia. March 3.

1869: Illinois, March 5. 1869: Louisiana. March 5. 1869:

HOrtb Carolina. March 5. 1869: Michigan. March 8.

1869: Wisconsin. March 9. 1869: Maine, March 11.

1869: Massachusetts. March 12. 1869: Arkansas. March

16, 1869: South Carolina. March 15. 1869: Pennsylva-

nla. March 25. 1869: New York. April 14. 1869 (and the

legislature of the same State passed a resolution Janu-

ary 6, 1870. to withdraw its consent to it. which action

it rescinded on Much 30. 1970): Indiana. May 14. 1869:

Connecticut, May 19,1869: Florida. June 14.1869: New

Hampshire. July 1. 1869: Virginia. October 8. 1869:

Vermont. October 20. 1869: Missouri. January 7, 1870;

Minnesota. January 13. 1870: Mississippi. January 17,

1870; Rhode Island. January 18. 1870; Kansas. January

19, 1870: Ohio. January 27, 1870 (after having rejected

it on April 30. 18691: Georgia. February 2, 1870: Iowa.

February 3. 1870.

Ratification was completed on February 3. 1870.

unless the withdrawal of ratification by New York was

effective: in which event ratification was completed on

February 17,1870. when Nebraska ratified.

The amendment was subsequently ratified by Texas,

February 18. 1870: New Jersey, February 15, 1871

(after having rejected it on February 7, 1870): Dela-

ware. February 12, 1901 (after having rejected it on

March 18. 1869): Oregon, February 24. 1959: Califor-

nia. April 3. 1962 (after having rejected it on January

28. 1870): Kentucky. March 18. 1976 (after having re-

jected it on March 12, 1869).

The amendment was approved by the Governor of

Maryland. May 7, 1973: Maryland having previously

rejected it on February 26.1870.

The amendment was rejected (and not subsequently

ratified) by Tennessee. November 16.1869.

Article XVI.

The Congress shall have power to lay and col-

lect taxes on incomes, from whatever source de-

rived, without apportionment among the sever-

al States, and without regard to any census or

enumeration.

Proposal and Ratuncation

The sixteenth amendment to the Constitution of

the United States was proposed to the legislatures of

the several States by the Sixty-first Congress on the

12th of July. 1909. and was declared, in a proclamation

of the Secretary of State, dated the 25th of February.

1913. to have been ratified by 36 of the 48 States. The

dates of ratification were: Alabama. August 10. 1909:

Kentucky, February 8. 1910: South Carolina. February

19. 1910: Illinois. March 1. 1910: Mississippi. March 7,

1910: Oklahoma. March 10. 1910; Maryland. April 8.

1910: Georgia. August 3. 1910; Texas. August 16, 1910:

CONSTITUTION OF THE UNITED 8TATE8 OF AMERICA-1787

transportation of intoxicating llquon within,

the Importation thereof into, or the exporta-

tion thereof from the United States and all ter-

ritory subject to the Jurisdiction thereof for

beverage purposes is hereby prohibited.

8sc. 2. The Congress and the several States

shall have concurrent power to enforce this ar-

ticle by appropriate legislation.

Sec. 3. This article shall be inoperative unless

it shall have been ratified as an amendment to

the Constitution by the legislatures of the sev-

eral States, as provided in the Constitution,

within seven years from the date of the submis-

sion hereof to the States by the Congress.

Proposal ura Ratirication

The eighteenth amendment to the Constitution of

the United States was proposed to the legislatures of

the several States by the Sixty-fifth Congress, on the

18th of December. 1917, and was declared. in a procla-

mation of the Secretary of State, dated the 29th of

January. 1919. to have been ratified by the legislatures

of 36 of the 48 States. The dates of ratification were:

Mississippi. January 8. 1918: Virginia. January 11.

1918: Kentucky. January 14. 1918: North Dakota. Jan-

uary 25, 1918:8outh Carolina. January 29.1918: Mary-

land. February 13. 1918: Montana. February 19. 1918:

Texas. March 4. 1918; Delaware, March 18. 1918:

South Dakota. March 20. 1918: Massachusetts. April 2.

1918: Arizona. May 24. 1918: Georgia. June 26. 1918;

Louisiana. August 3. 1918: Florida. December 3. 1918:

Michigan. January 2. 1919: Ohio. January 7. 1919:

Oklahoma. January 7, 1919: Idaho. January 8. 1919:

Maine. January 8. 1919: West Virginia. January 9.

1919: California. January 13. 1919: Tennessee. January

13. 1919: Washington. January 13. 1919: Arkansas,

January 14. 1919: Kansas. January 14. 1919: Alabama.

January 16, 1919: Colorado. January 13. 1919: Iowa.

January 15, 1919: New Hampshire, January 15, 1919:

Oregon, January 15, 1919: Nebraska. January 16. 1919:

North Carolina. January 16. 1919: Utah. January 16,

1919: Missouri, January 16, 1919: Wyoming. January

16.1919.

Ratification was completed on January 16,1919.

The amendment was subsequently ratified by Min-

nesota on January 17, 1917: Wisconsin. January 17,

1919: New Mexico, January 20. 1919: Nevada. January

21. 1919: New York. January 29. 1919: Vermont. Janu-

ary 29. 1919: Pennsylvania. February 25. 1919: Con-

necticut. May 6, 1919: and New Jersey. March 9. 1922.

The amendment was rejected (and not subsequently

ratified) by Rhode Island.

AjmcLg [XXX]

The right of citizens of the United States to

vote shall not be denied or abridged by the

United States or by any State on account of

sex.

Congress shall have power to enforce this ar-

ticle by appropriate legislation.

Paorosal AWS Ratification

The nineteenth amendment to the Constitution of

the United 8tates was proposed to the legislatures of

the several States by the Sixty-sixth Congress, on the

4th of June, 1919, and was declared. in a proclamation

of the Secretary of State, dated the 26th of August.

1920. to have been ratified by the legislatures of 36 of

the 48 Stales The dates of ratification were: Illinois.

June 10. 1919 (and that State readopted its resolution

of ratification June 17, 1919): Michigan. June 10. 1919:

Wisconsin. June 10. 1919: Kansas. June 16. 1919: New

CONSTITUTION OP THE UNITED STATES OP AMERICA—1787

the Constitution by the legislatures of three-

fourths of the several States within seven years

from the date of its submission.

Proposal and Ratification

The twentieth amendment to the Constitution was

proposed to the legislatures of the several states by

the Seventy-Second Congress. on the 2d day of March.

1932 and was declared. in a proclamation by the Sec-

retary of State, dated on the 6th day of February.

1933 to have been ratified by the legislatures of 36 of

the 48 States. The dates of ratification were: Virginia.

March 4. 1932: New York, March 11. 1932: Mississippi.

March 16. 1932; Arkansas. March 17. 1932: Kentucky,

March 17, 1932: New Jersey. March 21. 1932: South

Carolina. March 25, 1932; Michigan. March 31. 1932;

ne April 1. 1932; Rhode 1sland. April 14. 1932: nil-

April 21.1932: Louisiana. June 22. 1932: West Vlr-

. July 30. 1932: Pennsylvania. August 11. 1932; In- [, August 15, 1932: Texas. September 7, 1932: Ala-

bama. September 13. 1932: California. January 4. 1933:

North Carolina. January 5, 1933: North Dakota. Janu-

ary 9.1933: Minnesota. January 12. 1933: Arizona. Jan-

uary 13. 1933: Montana. January 13. 1933: Nebraska.

January 13. 1933: Oklahoma. January 13. 1933:

Kansas, January 16, 1933: Oregon. January 16, 1933:

Delaware, January 19, 1933: Washington, January 19.

1933: Wyoming, January 19. 1933: Iowa. January 20.

1933: South Dakota. January 20. 1933: Tennessee. Jan-

uary 20. 1933: Idaho. January 21. 1933: New Mexico.

January 21. 1933: Georgia. January 23. 1933: Missouri.

January 23. 1933: Ohio. January 23. 1933: Utah. Janu-

ary 23. 1933.

Ratification was completed on January 23. 1933.

The amendment was subsequently ratified by Massa-

chusetts on January 24. 1933: Wisconsin. January 24.

1933: Colorado. January 24. 1933: Nevada. January 26,

1933: Connecticut, January 27, 1933: New Hampshire.

January 31. 1933: Vermont, February 2. 1933: Mary-

land. March 24. 1933: Florida. April 26. 1933.

Article [XXI.]

Section 1. The eighteenth article of amend-

ment to the Constitution of the United States

is hereby repealed.

Sec. 2. The transportation or importation into

any State, Territory, or possession of the

United States for delivery or use therein of in-

toxicating liquors, in violation of the laws

thereof, is hereby prohibited.

Sec. 3. This article shall be inoperative unless

it shall have been ratified as an amendment to

the Constitution by conventions in the several

States, as provided in the Constitution, within

seven years from the date of the submission

hereof to the States by the CongTess.

Proposal and Ratification

The twenty-first amendment to the Constitution

was proposed to the several states by the Seventy

Second Congress, on the 20th day of February. 1933.

and was declared. in a proclamation by the Secretary

of State, dated on the 5th day of December. 1933. to

have been ratified by 36 of the 48 States. The dates of

ratification were: Michigan. April 10. 1933: Wisconsin.

April 25. 1933: Rhode Island. May 8. 1933: Wyoming.

May 25. 1933; New Jersey. June 1. 1933: Delaware.

June 24. 1933: 1ndiana. June 26. 1933: Massachusetts.

June 26. 1933: New York. June 27, 1933: Illinois. July

10. 1933: 1owa. July 10. 1933: Connecticut. July 11.

1933: New Hampshire, July 11. 1933: California. July

24. 1933: West Virginia. July 25. 1933: Arkansas.

August 1. 1933: Oregon. August 7, 1933: Alabama.

CONSTITUTION OF THE UNITED 8TATES OP AMERICA—1787

Atmcu [xxiii.]

Sacnoir 1. The District constituting the seat

of Government of the United States shall ap-

point in such manner as the Congress may

direct:

A number of electors of President and Vice

President equal to the whole number of Sena-

tors and Representatives in Congress to which

the District would be entitled if it were a State,

but in no event more than the least populous

State: they shall be in addition to those ap-

pointed by the States, but they shall be consid-

ered, for the purposes of the election of Presi-

dent and Vice President, to be electors appoint-

ed by a State; and they shall meet in the Dis-

trict and perform such duties as provided by

the twelfth article of amendment.

Sac. 2. The Congress shall have power to en-

force this article by appropriate legislation.

Proposal mid Ratotcatioh

, was proposed by the Eighty-sixth

i on June 17, 1M0 and was declared by the Ad-

ministrator of General Services on Apr. 3. 1M1. to

have been ratified by 38 of the 6O States. The dates of

ratification were: Hawaii. June 23. 1960 (and that

State made a technical correction to its resolution on

June 30. 1960): Massachusetts. August 22. 1960: New

Jersey, December 19. 1960: New York. January 17,

1(41: California. January 19. 1961: Oregon. January

27, 1961: Maryland. January 30. 1961: Idaho. January

31.1961: Maine, January 31. 1961: Minnesota. January

31. 1961; New Mexico. February 1. 1961: Nevada. Feb-

ruary 2, 1961: Montana. February 6. 1961; South

Dakota. February 6. 1961; Colorado, February 8. 1961;

Washington. February 9. 1961; West Virginia. Febru-

ary 9. 1961; Alaska. February 10. 1961: Wyoming, Feb-

ruary 13. 1961: Delaware, February 20. 1961; Utah,

February 21. 1961: Wisconsin. February 21. 1961:

Pennsylvania. February 28. 1961: Indiana. March 3.

1961: North Dakota. March 3. 1961: Tennessee. March

6. 1961; Michigan. March 8. 1961: Connecticut. March

9. 1961: Arizona. March 10. 1961; Illinois. March 14.

1961: Nebraska. March 15. 1961: Vermont, March 15.

1961: Iowa. March 16. 1961: Missouri. March 20. 1961:

Oklahoma. March 21. 1961: Rhode Island. March 22.

1961: Kansas. March 29.1961: Ohio. March 29.1961.

Ratification was completed on March 29.1961.

The amendment was subsequently ratified by New

Hampshire on March 30. 1961 (when that State an-

nulled and then repeated its ratification of March 29.

1961).

The amendment was rejected (and not subsequently

ratified) by Arkansas on January 24. 1961.

CDrrrncanon or Validity

Publication of the certifying statement of the Ad-

ministrator of Oeneral Services that the Amendment

had become valid was made on Apr. 3. 1961. F.R. Doc.

61-3017, 26 F.R. 2808.

Amcu [xxiv.]

Sacnon 1. The right of citizens of the United

States to vote in any primary or other election

for President or Vice President, for electors for

President or Vice President, or for Senator or

Representative in Congress, shall not be denied

or abridged by the United States or any State

by reason of failure to pay any poll tax or other

tax.

Sac. 2. The Congress shall have power to en-

force this article by appropriate legislation.

CONSTITUTION OP THE UNITED STATES OP AMERICA-1787

to the President pro tempore of the Senate and

the Speaker of the House of Representatives

their written declaration that the President is

unable to discharge the powers and duties of

his office. Thereupon Congress shall decide the

issue, assembling within forty-eight hours for

that purpose if not in session. If the Congress,

within twenty-one days after receipt of the

latter written declaration, or, if Congress is not

in session, within twenty-one days after Con-

gress is required to assemble, determines by

two-thirds vote of both Houses that the Presi-

dent Is unable to discharge the powers and

duties of his office, the Vice President shall

continue to discharge the same as Acting Presi-

dent: otherwise, the President shall resume the

i and duties of his office.

Proposal ahd Ratirication

This amendment was proposed by the Eighty-ninth

Congress by Senate Joint Resolution No. 1. which was

approved by the Senate on Feb. 19, 1965, and by the

House of Representatives, in amended form, on Apr.

13. 1965. The House of Representatives agreed to a

Conference Report on June 30. 1965. and the Senate

meed to the Conference Report on July 6, 1965. It

raj declared by the Administrator of General Serv-

ices, on Feb. 23.1967, to have been ratified by the leg-

islatures of 39 of the 50 States.

This amendment was ratified by the following

July 12. 1965: Wisconsin. July 13. 1965;

Oklahoma. July 16, 1965: Massachusetts. Aug. 9. 1965:

Pennsylvania. Aug. 18. 1965; Kentucky, 8ept. 15. 1965;

arizona. Sept. 22. 1965: Michigan, Oct. 5. 1965: Indi-

ana. Oct. 20. 1965: California. Oct. 21. 1965: Arkansas.

Nov 4. 1965: New Jersey. Nov. 29. 1965; Delaware. Dec.

7. 1965: Utah, Jan. 17, 1966: West Virginia. Jan. 20.

1966: Maine. Jan. 24. 1966: Rhode Island, Jan. 28. 1966:

Colorado. Feb. 3. 1966: New Mexico. Feb. 3. 1966:

Kansas. Feb. 8. 1966: Vermont, Feb. 10. 1966: Alaska.

Feb 18. 1966: Idaho. Mar. 2. 1966: Hawaii. Mar. 3.

1966: Virginia. Mar. 8. 1966: Mississippi. Mar. 10. 1966:

New York. Mar. 14. 1966: Maryland. Mar. 23. 1966:

Missouri. Mar. 30. 1966: New Hampshire. June 13.

1966: Louisiana. July 5. 1966: Tennessee, Jan. 12. 1967:

Wyoming. Jan. 25, 1967: Washington. Jan. 26. 1967:

1owa. Jan. 26. 1967: Oregon. Feb. 2. 1967: Minnesota.

Feb. 10. 1967: Nevada. Feb. 10. 1967.

Ratification was completed on Feb. 10.1967,

The amendment was subsequently ratified by Con-

necticut. Feb. 14. 1967: Montana. Feb. 15, 1967: South

Dakota. Mar. 6. 1967: Ohio. Mar. 7, 1967: Alabama.

Kar. 14. 1967: North Carolina. Mar. 22. 1967: 1llinois.

Mar. 22. 1967: Texas. April 25. 1967: Florida. May 25.

1961.

Cratincation or Validity

Publication of the certifying statement of the Ad-

ministrator of General Services that the Amendment

had become valid was made on Feb. 25. 1967, F R Doc

67-2208. 32 F.R. 3287.

proposal aitd Ratotcatiob

This amendment was proposed by the Ninety-second

Congress by Senate Joint Resolution No. 7, which was

approved by the Senate on Mar. 10. 1971. and by the

House of Representatives on Mar. 23. 1971. It was de-

clared by the Administrator of General Services on

July 5, 1971. to have been ratified by the legislatures

of 39 of the 6O States.

This amendment was ratified by the following

States: Connecticut. March 23. 1971: Delaware. March