Constitutional History, 1989–1999

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During the years from 1989 to 1999, the Supreme Court fashioned a number of novel doctrines for affirmative action, federalism, religious liberty, the right of privacy, and presidential powers. Pressured by public criticism and challenges from Congress, the Court modified and in some cases overruled earlier holdings. Nominations by Presidents george h. w. bush and william j. clinton helped push the Court toward the center.

Policies for affirmative action bounced around because none of the branches provided consistent principles. Although language in some of the civil rights acts of Congress appeared to announce a race-neutral policy, other statutes endorsed preferential treatment. In fullilove v. klutznick (1980), the Court upheld a congressional statute that set aside a certain percentage of public works funds for "minority business enterprises." When the states and cities tried to adopt similar set-asides, the Court in richmond (city of) v. j. a. croson co. (1989) struck them down. A year later, in metro broadcasting, inc. v. fcc (1990), the Court again upheld affirmative action at the congressional level, this time a program that offered advantages to minorities in deciding licenses and ownership of radio and television broadcast stations.

The Court revisited these holdings in adarand constructors, inc. v. peÑa (1995), which required federal race-based policies to satisfy the same standard—strict scrutiny—applied to state and local programs. Such programs must serve a compelling state interest and be narrowly tailored to address identifiable past racial discrimination. Federal courts, Congress, and federal administrative agencies must now reassess affirmative action programs in light of this heightened standard.

Following Adarand, Clinton summarized his administration's review of federal affirmative action programs. Acknowledging some problems, he concluded: "We should reaffirm the principle of affirmative action and fix the practices. We should have a simple slogan: Mend it, but don't end it." He directed agencies to eliminate affirmative action programs if they (1) create a quota, (2) create preferences for unqualified individuals, (3) create reverse discrimination, or (4) continue even after its equal opportunity purposes have been achieved. A moratorium was placed on some set-aside programs.

Affirmative action programs came under attack in a number of states, including California, Texas, and Michigan. Californians voted in support of a ballot initiative to end bilingual education—allowing immigrant students to receive one year of English immersion before moving into regular classes unless their parents obtain a waiver—and another initiative outlawing affirmative action in public hiring, contracting, and education.

The Court continues to struggle with federalism. Its attempt in national league of cities v. usery (1976) to distinguish between national and state powers proved so confusing and incapable of application that the Court rejected its handiwork nine years later, in garcÍav. sanantonio metropolitan transit authority (1985). At that point, it appeared that the protection of federalism would depend largely on the political process operating within Congress.

However, several decisions in the 1990s seemed to revive state power. In gregory v. ashcroft (1991), the Court held that Missouri's constitution, which provided a mandatory retirement age of 70 for most state judges, did not violate the age discrimination act (ADEA). Although the Court referred to the tenth amendment and the guarantee clause, the decision rested largely on statutory interpretation, leaving the door open for Congress to rewrite the ADEA if it wanted to cover state judges.

A year later, the Court again cited the Tenth Amendment when it invalidated part of a 1985 congressional statute designed to force states to find disposal sites for low-level radioactive waste. The 6–3 decision in new york v. united states (1992) ruled that the statutory provision, forcing states to take possession of the waste if they failed to discover other solutions, was an invalid effort by Congress to commandeer the states' legislative processes and thus inconsistent with the Tenth Amendment. The Court explained that states are not "mere political subdivisions" of the United States, nor are state governments regional offices or administrative agencies of the federal government. In terms of public policy, the decision had modest impact. Rather than try to draft new legislation to satisfy the Court, Congress decided to rely on the existing compacts that states had created to dispose of the waste.

On a similar ground, the Court in Printz v. United States (1997) struck down, by a 5–4 vote, a key portion of a 1993 gun control law. That statute required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. The Court said that Congress may not "command" state officers to administer a federal regulatory program. The decision is not expected to have a substantial effect on governmental policy. Most states already require background checks.

Great fanfare was given to united states v. lÓpez (1995), the Court's decision striking down a congressional statute that banned guns within 1,000 feet of schools. Some commentators regarded the ruling as highly significant, but it may have been a case where Congress simply failed to present adequate findings to show an interstate commerce link with guns on school playgrounds. Within two weeks of the decision, Clinton submitted legislation to Congress to amend the earlier statute by requiring the federal government to prove that the firearm has "moved in or the possession of such firearm otherwise affects interstate or foreign commerce." Congress enacted the legislation in 1996, finding that crime at the local level "is exacerbated by the interstate movement of drugs, guns, and criminal gangs," that the occurrence of violent crime in school zones has resulted in a decline in the quality of education, and that it has the power under the interstate commerce clause to enact the legislation.

Also in 1995, federalism was at issue in the term limits case decided by the Court, U.S. Term Limits, Inc. v. Thornton. A number of states had adopted constitutional amendments or other measures to place term limits on legislators not only in state legislatures but in Congress as well. Arkansas, for example, amended its constitution to limit members of Congress to three terms in the U.S. house of representatives and to two terms in the U.S. senate. The Court held that the Arkansas constitution violated the U.S. Constitution by adding to the qualifications established for members of Congress. The fifth vote in this 5–4 decision was supplied by Justice anthony m. kennedy, who invoked principles of federalism by charging that Arkansas had invaded "the sphere of federal sovereignty."

Federalism became entwined with religious freedom in a case that arose in Oregon. Two members of the Native American Church had been fired by a private organization because they ingested peyote, a hallucinogenic drug. They took the drug as part of a religious sacrament. Their application for unemployment compensation was denied by Oregon under a state law that disqualifies employees who are fired for work-related "misconduct." Remaining drug-free was a condition of their employment.

Divided 6 to 3, the Court in employment division, department of human resources of oregon v. smith (1990) held that the free exercise clause permits a state to prohibit sacramental peyote use and to deny unemployment benefits to persons fired for such use. State law may prohibit the possession and use of a drug even if it incidentally prohibits a religious practice. The Court distinguished this case from other unemployment-benefit cases by noting that the religious conduct in those cases was not prohibited by law. Oregon law made it a criminal offense to possess or use peyote.

Oregon remained free to make an exemption for the use of peyote by members of the Native American Church. Twenty-three states had statutory or judicially crafted exemptions for the religious use of peyote. One year after Smith, the Oregon legislature enacted a bill that protects the sacramental use of peyote by the Native American Church.

A number of religious groups urged Congress to pass legislation that would grant greater religious freedom than that recognized by the Court. The purpose was to reinstate the previous standard (compelling state interest) for testing federal, state, and local laws burdening religion. Proponents of the bill believed that the Court's ruling threatened a number of religious practices, including the use of ceremonial wine, the practice of kosher slaughter, and the Hmong (Laotian) religious objection to autopsy.

In 1993, Congress enacted the religious freedom restoration act (RFRA), which provided that government may substantially burden a person's religious exercise only if it demonstrates a compelling interest and uses the least restrictive means of furthering that interest. The statute therefore restored the compelling interest test that the Court had adopted in 1963 and 1972. In 1994, Congress passed legislation to legalize the use of peyote by Native Americans for ceremonial purposes.

In Boerne v. Flores (1997), the Court ruled that Congress, in passing the RFRA, had exceeded the scope of its enforcement power under the fourteenth amendment, section 5. Parts of the Court's decision were superficial, unpersuasive, and internally inconsistent, inviting continued challenges and legislative activity. Although the Court strongly hinted that it has the last and final word in deciding the meaning of the Constitution, in fact it left the door wide open for future congressional action. In 1998, new legislation (called "Son of RFRA") was introduced to rely more on congressional spending power and commerce power. Also in 1998, the U.S. Court of Appeals for the Eighth Circuit held that RFRA was constitutional as applied to the federal government.

In 1999, the Court handed down a series of rulings that once again protected the independence of the states. In Alden v. Maine; Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, U.S.; and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, the Court declared that Congress cannot subject states to suits in their own courts for violating federal rights unless they first give their consent. The Court also invalidated efforts by Congress to abrogate state immunity from suit for violations of intellectual property rights.

Privacy issues led to a number of important Court rulings. roe v. wade (1973), establishing a woman's right to abortion, was under steady attack from both conservatives and liberals as a prime example of judicial overreaching. As medical knowledge advanced, the Court's attempt to rely on the viability of a fetus was undermined by technology. Appointments to the Court by Presidents ronald reagan and Bush further helped to erode Roe. In webster v. reproductive health services (1989), the Court retreated somewhat from Roe and continued that process three years later, in planned parenthood v. casey (1992), jettisoning Roe 's trimester framework while affirming the "core meaning" of Roe by preserving the right to abortion.

The Court's bitter experience with Roe may have convinced it to announce in two 1997 rulings that there was no right to die with the assistance of a physician. Under heavy criticism from the public, the Court had learned that it had to carve out a more modest role for itself while recognizing a larger function for elected branches and the states.

On May 6, 1994, Paula Corbin Jones filed suit in federal court against President Clinton and Danny Ferguson, an Arkansas state trooper, for actions that occurred in 1991 at a hotel in Little Rock, Arkansas. She alleged that Clinton, as governor of Arkansas, violated her constitutional rights to equal protection and due process by sexually harassing and assaulting her. Clinton, claiming immunity from civil suit, filed a motion to dismiss the complaint without prejudice to its refiling after his presidency.

The Constitution does not provide an express immunity for the President. Nevertheless, federal courts have developed a doctrine of immunity of officials for official acts. Paula Jones was raising a different issue: Is the President entitled to immunity from civil liability for unofficial acts committed in his personal capacity? A district court ruled that the President did not have absolute immunity from civil causes of action that arise prior to assuming office. However, the judge held that the trial could be delayed until after Clinton left the presidency, but allowed the discovery and deposition process to go forward, including deposing the President.

The Eighth Circuit upheld the decision that Clinton was not entitled to immunity from civil liability for his unofficial acts, but reversed the district court by holding that the trial could proceed while he was in office. A unanimous Supreme Court, in clinton v. jones (1997), affirmed the appellate court. If properly managed by the trial court, "it appears to us highly unlikely to occupy any substantial amount of petitioner's [Clinton's] time."

Clinton was deposed and the case was dismissed in 1998. After Paula Jones appealed to the Eighth Circuit, Clinton agreed to settle the case by offering her $850,000. However, his responses to questions about his relationship with former White House aide Monica Lewinsky led to new charges that he had committed perjury, suborned the perjury of witnesses, and obstructed justice. independent counsel Kenneth Starr investigated these charges and concluded, in a report to the House of Representatives, that Clinton may have committed impeachable offenses. The House impeached Clinton on two articles (perjury and obstruction of justice), but the Senate voted 45 to 55 on the first article and 50 to 50 on the second, both votes being well short of the two-thirds required for removal from office.

Starr's investigation led to several constitutional claims by the White House. Presidential aides insisted that they could not be compelled to testify at a grand jury. First Lady Hillary Clinton believed that her discussions with a government attorney were privileged. The U.S. Secret Service argued that the agents responsible for protecting the President should not be forced to testify about matters of Clinton's conduct. On all those matters Starr won at every level, including appeals by the administration to the Supreme Court.

As part of the "Contract With America," Republicans supported an item veto—often referred to as a line-item veto—for the President. Enacted in 1996, the Line Item Veto Act supplemented the rescission authority given to the President by the Impoundment Control Act of 1974. Instead of requiring the President to obtain the support of both Houses of Congress within a specified number of days, as set forth in the 1974 legislation, the Line Item Veto Act put the burden on Congress—during a thirty-day review period—to disapprove presidential rescission proposals. Any bill or joint resolution of disapproval would be subject to a presidential veto, ultimately requiring a two-thirds majority in each chamber for an override.

The Line Item Veto Act provided for expedited judicial review to test the constitutionality of the statute. Senator Robert C. Byrd and several colleagues filed suit to challenge this transfer of authority to the President. The Court in Raines v. Byrd (1997) held that the legislators did not have sufficient personal stake in the dispute, and did not allege a sufficiently concrete injury, to establish standing to bring the case. The next year, however, the Court in Clinton v. New York (1998) held that the private parties challenging the statute had standing and that the statute was unconstitutional because it violated the procedure that requires that all bills be presented to the President for his signature or veto. Writing for the majority, Justice john paul stevens argued that there was no constitutional authorization for the President to amend or repeal a statute.

Louis Fisher


Baker, Lynn A. 1995 Conditional Federal Spending After López. Columbia Law Review 95:1911–1989.

Devins, Neal 1996 Shaping Constitutional Values: Elected Government, the Supreme Court, and the Abortion Debate. Baltimore, Md.: Johns Hopkins University Press.

Fisher, Louis 1999 American Constitutional Law, 3rd ed. Durham, N.C.: Carolina Academic Press.

Garrow, David J. 1994 Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. New York: Macmillan.

Lessig, Lawrence 1995 Translating Federalism: United States v. López. Supreme Court Review 1995:125–215.

Mc Connell, Michael W. 1997 Institutions and Interpretation: A Critique of City of Boerne v. Flores. Harvard Law Review 111:153–195.

Strauss, David A. 1993 Abortion, Toleration, and Moral Certainty. Supreme Court Review 1993:1–28.

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Constitutional History, 1989–1999

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Constitutional History, 1989–1999