LESSON: LOCHNER AND ITS SIGNIFICANCE Adv. Con. Law.

 

1.  SCOTUS has shown throughout the years that it is adept at marshalling its judicial power and using it deftly while simultaneously understanding that it’s power can be limited by its co-equal branches.  To protect its judicial power, the Court has been cognizant of the impact of its decisions and its own acceptance, and even popularity.  See David Dalition, Adv. Con Law Note Judicial Review, Walking a Fine Line.  Each time the Court overturns a law passed by the democratically elected legislature, it is in effect, overturning the will of the voters.  See David Dalition, Adv. Con Law Note Judicial Review, Walking a Fine Line.  Of course, as we have discussed, the Constitution, is the supreme charter of our system and any law that violates the founding charter must be nullified via the Court’s power of judicial review. 

 

2.  The Court’s handling of economic due process provides insight into the above and our recent discussions.  Be prepared to discuss Lochner v. New York, and its significance. 

In a 5 to 4 holding, the Court nullified a New York law that aimed to safeguard the health of bakers’ by prohibiting them from being worked for more than 10 hours a day or 60 hours each  week.  The court found that the law violated the Due Process Clause as an unreasonable, unnecessary and arbitrary interreference with the right of employees to contract for hours that they desired to work.  Be prepared to discuss in detail how the court defined “liberty” in Lochner and compare that to the Court’s modern definition of “liberty”.   See David Dalition, Adv. Con Law, Economic and Substantive Due Process.  Does the word liberty appear anywhere in the US Constitution?  What formed the basis of the Court’s decision to overturn the New York law that appeared to be a reasonable attempt to provide an upper limit to the demands upon which employers could work their employees?  What do you believe motivated the Court’s decision?  One of the aims of the law was to protect the health of bakers, which allegedly suffered due to their often extremely long shifts.  Why did the Court find that New York’s law was unfair, unreasonable, and inappropriate?  What did the Court say that New York could have done to protect bakers’ health besides this legislation which unconstitutionally infringed upon the liberty to contract?  The holding of the case might be summarized as any legislation that interferes with the liberty to contract violates the Due Process Clause unless the legislation is necessary to directly further an important government objective.  See David Dalition, Adv. Con Law, Economic and Substantive Due Process.   Was the Court’s emphasis on freedom to contract consistent with the economic milieu of the day?  What was the reaction of New York?  The federal government?  Be prepared to discuss Adkins v. Children’s Hospital. 

 

3.  Be prepared to discuss Justice Harlan’s dissenting opinion and whether you agree or disagree with it.  We will also discuss Muller v. Oregon and you will be required to write a one-page analysis of Muller in light of Lochner.  Do you believe New York’s law was an arbitrary and capricious interference with the liberty to contract?  Why or why not?  Some have argued that the Court used raw power to substitute its policy preferences for that of the legislature.  Do you agree or disagree?  When is it legitimate for the Court to overturn the democratically passed laws of the legislature?  See David Dalition, Adv. Con Law Note Judicial Review, Walking a Fine Line.  Does it make a difference if the liberty to contract is explicitly protected in the constitution?  Why or why not? 

  

4.  Did the Court attribute illicit motives to the legislature for passing the law?  Explain what in the decision forms the basis of your opinion.  Finally, how did the Court’s opinion impact the bargaining power of employers and employees?  

LESSON: DUE PROCESS Adv. Con Law David Dalition

1. Provide a very brief (one sentence) introduction to the Due Process Clause. The Fourteenth

Amendment provides that “no state shall make or enforce any law which shall… deprive any

person of life, liberty, or property, without due process of law…” In short, this is the Fourteenth

Amendment’s Due Process Clause.                      

 

2. How does the 14th amendment related to the Bill of Rights? The Fourteenth Amendment’s

Due Process Clause is the vehicle by which the Supreme Court has incorporated the Bill of

Rights (the first ten amendments) and made them applicable to the individual states.

3. How might one describe the primary function of the 14th Amendment’s Due Process Clause?

One might describe the primary function of the 14th Amendment’s Due Process Clause as the

requirement that the state act with procedures that are deemed fair (notice and opportunity to

be heard) when it engages in actions that tend to deprive a person of life, liberty, and/or

property. In literal terms, this is often viewed as an equity issue. See procedural v. substantive

due process, David Dalition, Adv. Con. Law Note 102. In other words, has the citizen in question

be treated fairly. Said another way, has the government fairly, as opposed to arbitrarily,

handled this person’s situation. Any action by the government must be handled in such a way

that the person allegedly deprived of life, liberty and/or property, must be provided due

process of law.

 

4. What are the first questions asked when deciding whether there is a due process violation?

In most cases, the first questions asked are whether a person has been deprived of his life

liberty, and/or property (also sometimes referred to as being taken) and, if the answer is yes,

then we must ask whether that person was provided due process of law prior to the

deprivation or taking of life, liberty, and/or property.

 

5. Is Due Process generally related to life, liberty, or property? Generally, procedural due

process pertains to the government’s deprivation of life, liberty, and/or property. See the

Incorporation Doctrine, David Dalition Adv. Con. Law Note. In other words, we are talking

about governmental overreach, not the overreach of one private individual against another

private individual. Also, the matter must pertain to life, liberty, and/or property as there is not

considered to be a general interest in having the government behave with fair procedures in

the overall sense pertaining to every action taken.

 

6. What is notice and an opportunity to be heard? Generally, notice is construed to mean that

before the government deprives a person of their life, liberty, and/or property, the government

must provide said person of its intent to take life, liberty or property from them. The notice

must be adequate for the person to prevent a defense or rebuttal to the government’s

intended action(s). The opportunity to be heard envisions that the person has an opportunity

to present his or her defense or rebuttal to an unbiased finder of fact. In other words, the

person has the opportunity to show why the government’s intended taking and deprivation

should not occur as it violates the constitution or applicable statutes and laws

The Writing Fellows Program at the US Military Academy, West Point

Texas resident David Dalition spent over 25 years as an attorney for the US Army after receiving his law degree from the University of Notre Dame. More recently, David Dalition was appointed to an esteemed Assistant Professor position with the US Military Academy at West Point.

The Academy’s central mission is to educate, train, and inspire cadets so that upon graduating they are committed to duty, honor, and country to prepare them for a professional career in the US Army. It provides cadets a fine comprehensive education that includes opportunities to apply for programs that extend beyond the basic core subjects, such as the Writing Fellows Program.

In the highly selective Writing Fellows Program, chosen cadets work with faculty to research and contribute to conversations regarding writing and communication. Students selected to participate in the program enroll in two intensive courses that focus on writing practices and education. Additionally, students present their own writings at national conferences hosted by various writing organizations. The program also brings in guest speakers and coordinates writing workshops.

Faculty who participate in the program gain from the experience as well. They complete relevant academic courses and staff the school’s Mounger Writing Center. Faculty also attend and present at conferences, and the program presents an opportunity for them to pursue their own projects. 

Executive Orders - A Constitutionally Granted Authority for Presidents

Retired U.S. Army Judge Advocate David Dalition served in the Army for 25 years, starting out as a trial attorney before working his way up to staff judge advocate. David Dalition also earned a Master of Laws from Columbia in constitutional law. He was the director of the advanced constitutional law program at the United States Military Academy, West Point, New York. He also worked with commanders regarding legal matters including the implementation of executive orders.

An executive order is issued by the President of the United States to implement his or her will through the executive branch of government. The president does this backed by powers given by the U.S. Constitution, specifically Article II, which grants the president the functions of commander in chief, head of state, head of the executive branch, and chief law enforcement officer. He is granted a sole constitutional responsibility to ensure laws are faithfully executed. Presidents since George Washington have done so through executive orders.

After a president issues and signs an executive order, the White House sends it to the Office of the Federal Register where it is numbered and published in the Federal Register. Because it has the force of law, it is also codified under Title 3 of the Code of Federal Regulations.

As the president has wide latitude accorded by the U.S. Constitution to issue executive orders, they do not require approval from Congress. In addition, Congress cannot simply pass legislation to overturn such an order. However, it may pass legislation that makes it difficult to execute orders such as by cutting funding. It is also important to note that executive orders can only be used to execute powers the president already has. They cannot be used by a president to give himself or herself new powers. The U.S. Supreme Court has overturned executive orders outside the president’s power.