CONSTITUTIONAL LAW I

BROWN
Spring 2005 – Erin Hoke

INTERPRETATIVE ANALYSIS - *HUGE*

1. TEXTUAL ANALYSIS
2. LEGISLATIVE HISTORY
3. STRUCTURE (W/IN CONSTITUTION)
4. JUDICIAL INTERPRETATION (PRIOR CASES)
5. PRUDENCE

CHAPTER 1 – THE FEDERAL JUDICIAL POWER

A. AUTHORITY FOR JUDICIAL REVIEW
a. Marbury v. Madison
i. TWO THINGS:
1. Constitution is the supreme law of the land – Article III is a
ceiling.
2. Judicial review established.
ii. Article III: created the federal judiciary and defines its powers. Some of
the topics covered:
1. “The judicial Power of the United States shall be vested.”
2. “…in one Supreme Court and in such inferior courts as Congress
may from time to time establish.”
3. “cases” and “controversies”
4. Supreme Court has original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and those in
which a state shall be a party. In all other cases, the S.Ct. has
appellate jurisdiction, subject to “such Exceptions and under such
regulations as Congress shall make.”
iii. Judicial Review: The judiciary has the authority to review the constitutionality
of executive and legislative acts, as long as they are not “political”
1. Distinguish between “political acts” and “duties.”
a. Political/discretionary – not reviewable by court.
2. Check on legislative branch.
3. If the S.Ct. identifies a conflict btw a constitutional provision and a
congressional statute, the Court has the authority (and the duty) to
declare the statute unconstitutional and to refuse to enforce it.
iv. Marbury’s 5 themes in a nutshell:
1. Separation of Powers: their powers sometimes overlap to act as a checks
and balances to prevent from exceeding
2. Federal Law Supremacy: Not implicated classically; when conflict between
the Constitution and Act of Congress => Constitution wins
a. Constitution is the Supreme Law of the Land.
3. Enumerated Powers: federal court can only exercise powers given by the
Constitution (Art. III is a ceiling).
4. Federalism: none

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5. Interpretation of the Constitution: Supreme Court interpreting and duty of
courts to interpret

b. Judicial review of state and local actions

i. Martin v. Hunter’s Lessee (dispute over land; whether a VA statute conflicted
w/ a federal treaty)
1. The Court can review the constitutionality of a decision by a state’s
highest court.
a. A state is not a sovereign entity.
b. Need for uniformity in decisions throughout nation interpreting
the Constitution
c. M v. M applies to state decisions!
2. The S.Ct. may determine whether a state court has reached a decision
that is not in conformity w/ the Constitution; but it may NOT review
state court decisions that merely adjudicate questions of state law
(exclusive and adequate), ONLY FEDERAL QUESTIONS (Appellate
Jurisdiction).
ii. Cohens v. Virginia – criminal Ds can seek S.Ct. review when they
claim their conviction violates the Constitution.

B. LIMITS ON FEDERAL JUDICIAL POWER – ARTICLE III

a. Interpretive limits
i. Originalist – enforce what is stated or clearly implicit in written
Constitution
ii. Non-originalist – Constitution evolves through interpretation and
amendment
1. Court looks at S.Ct. precedent, history, prudential concerns, social
costs, scrutiny and text (US v. Emerson)
b. Congressional limits
i. Congress’ ability to limit jurisdiction of federal courts:
1. Article III ceiling (M v. M)
2. McCardle and Klein
ii. Article III – sets out types of cases S.Ct. can hear: “box” of powers, Can
Congress give anything outside of the box – NO (M v. M); Can they remove
powers w/in the box?
iii. Article III: the Exceptions and Regulations Clause: “the S.Ct. shall have
appellate jurisdiction both as to Law and Fact, with such Exceptions, and under
such regulations as the congress shall make.”
1. One side: provides Congress with broad powers to remove matters from
S.Ct. purview – a check on judiciary’s power
2. Other side: Congress is limited in ability to control S.Ct. jurisdiction –
clause modifies the word “fact” (concern about ability to over-turn the
fact finder)
3. Both views – power cannot be used in manner that violates Constitution
iv. Ex parte McCardle (Congress takes away S.Ct.’s appellate jurisdiction to hear
habeas corpus pleas.)
1. Congress has the ability to modify jurisdiction of the Supreme Court
– can decide when S.Ct. can hear cases.

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 2. Although the Court’s authority stems from the Constitution, it “is
conferred w/ such exceptions and under such regulations as congress
shall make.”
a. S.Ct. right to hear an HC case is only withdrawn where Court
gets case by appeal from lower courts; an original petition for
HC could be commenced in S.Ct. (Felker v. Turpin)
v. US v. Klein (S.Ct. decides what constitutes loyalty after Civil War)
1. Separation of powers is a limit on Congress’ authority to limit S.Ct.
jurisdiction.
2. While acknowledging Congress’ power to create exceptions and
regulations to the Court’s appellate jurisdiction, Congress cannot
direct the results in particular cases, there by invading the judicial
function.
3. Any jurisdictional limitation must be neutral.
vi. Robertson v. Seattle Audubon
1. Congress has power to pass legislation that will affect only suits
pending or going forward.
2. Courts must apply new law to cases pending – not old cases or fact
finding.
vii. Important consideration: Article III shouldn’t be looked at in isolation.
1. “Everyone should have their day in court.”

Supreme Court’s Supreme Court’s Lower Federal

Original Jurisdiction Appellate Jurisdiction Court’s Jurisdiction
Source of Congress None Art. III §2 cl.2 McCardle Art. III §1
Power (can’t be altered or added/ Art. I §8 cl.9
subtracted)
Constraints on Congress’s N/A Bill of Rights Separation of Bill of Rights Separation of
Power Powers Powers

c. Justiciability limits
i. Five limits:
1. Prohibition on advisory opinions
2. Standing
3. Ripeness
4. Mootness
5. Political Question
ii. Advisory opinion
1. To avoid being an advisory opinion, there must:
a. Be an actual dispute between adverse litigants, and
b. A substantial likelihood that a federal court decision
will bring about some change or effect.
2. Court doesn’t give advice on how to do something – only CASE or
CONTROVERSY!
3. Congress cannot vest review of the decisions of Art III Courts in
officials of the Executive Branch (Hayburn’s case).
4. A statute cannot retroactively command the federal courts to

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 5. reopen final judgments, thus violating separation of powers and
principle that a judgment conclusively resolves the case (Plaut v.
Spendthrift Farm)
6. Compared w/ declaratory judgments:
a. Parties seeking declaratory judgment have been actually injured
by statute and not just concerned with hypothetical activity.

iii. Standing
1. Constitutional standing requirements:
a. Π must allege that he has suffered or imminently will suffer an
injury
b. ∏ must allege that the injury is caused by Δ conduct
c. Π must allege that a favorable federal court decision is likely to
redress the injury
2. Prudential standing requirements:
a. Limitation on 3rd party standing
b. Prohibition against generalized grievances
3. Injury
a. General principles:
i. The injury cannot be merely speculative,
hypothetical, amorphous or conjectural. (Wright)
ii. Injuries must be concrete, finite, or imminent.
iii. If a Constitutional right is violated, the injury
requirement is satisfied.
iv. Common law violations are injuries as well, and
they satisfy the injury requirement.
b. Lujan v. Defenders of Wildlife
i. Injury must be actual and imminent
1. Desire to use or observe an animal species, even
for a purely aesthetic purpose is an interest for
purposes of standing.
2. The desire to return some day to the areas
affected is insufficient for standing “w/o any
description of concrete plans or any
specification of when the some day will be” –
otherwise too speculative.
ii. The harm need not be economic in nature:
injury to aesthetic and environmental well-being
could be injury-in-fact (Sierra Club v. Morton)
c. City of LA v. Lyons (chokehold case)
i. In order for a person to have standing to seek an
injunction, the individual must allege a substantial
likelihood that he or she will be subjected again in the
future to the allegedly illegal policy.
ii. Where P asserts multiple claims, he must
have standing for each.

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 d. If a right to information is created by statute, the denial of
such information is an injury sufficient to satisfy Art. III
(FEC v. Akins).
e. Injury in Equal Protection Clause.
i. General rule: Just because you are a member of a
minority who has been denigrated does not
automatically give you standing.
ii. Reapportionment of voting districts: If P doesn’t
live in the voting district in question they have not
been personally subjected to a racial classification –
they only have a generalized grievance. (US v.
Hays)
iii. School integration and taxes: If there is racial
discrimination on the part of the govt. this is only a
basis for standing to those persons who are actually
denied equal treatment. (Allen v. Wright)
4. Causation and Redressability
a. Criteria:
i. Challenged action is a “but for” cause of injury.
ii. Favorable decision in suit will address the injury.
b. Causation:
i. Make sure there isn’t a lot of stuff that happens in
between Ds conduct and Ps injury, this would make
the traceability too attenuated (Allen v. Wright)
c. Redressability:
i. Make sure the court’s decision will fix the problem.
1. Linda R v. Richard D – Even if the father
were jailed, the mother would not be more
likely to receive child support payments.
2. Warth v. Seldin - No standing b/c the Ps could
not demonstrate that appropriate housing would
be constructed w/o the exclusionary zoning
ordinances b/c the low-income residents might
not be able to afford to live there regardless of
zoning or builders might not want to construct
there.
3. Simon v. Eastern KY Welfare Rights Org (IRS
rule changed to say only tax exemptions for free
med. care in emergency situations). No standing
b/c purely speculative whether new ruling was
reason for P’s not receiving free care and not for
sure that a win in the lawsuit would get them the
care anyway
4. Nuclear power plant: Duke Power v.
Carolina Environmental Study Group - Court
said there is standing b/c plant was built in P’s
area which subjected them to many injuries.
5. Limitation on 3rd party standing

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 a. A plaintiff can assert only injuries that he or she has
suffered; a plaintiff cannot present the claims of 3rd parties
who are not part of the lawsuit.
b. EXCEPTIONS: situations in which a person who has suffered
an injury has standing to raise the interest of 3rd parties not
before the court (NOTE: meet all constitutional requirements
also!)
i. Where the 3rd party is unlikely to be able to sue:
1. A person may assert rights of 3rd party not before
the court if there are substantial obstacles to the
3rd party asserting his or her own rights and if
there is some reason to believe that the advocate
will effectively represent the interests of the 3rd
party.
2. Barrows v. Jackson (P, a white person who had
signed a racially restrictive covenant, was sued
for breach of contract for allowing nonwhites to
occupy the property; D was based on rights of
blacks, who were not parties to the lawsuit)
Held: 3rd party standing allowed, permitting
white D to raise interests of blacks to rent and
own property in the community
ii. Close relationship between the plaintiff and 3rd
party.
1. Doctor/patient relationships (Singleton v.
Wulff – abortion case; doctors suffered
economic injury b/c they were performing
operations and Medicaid not funding them)
2. Vendors and customers (Craig v. Boren –
bartenders challenges 21 age limit for males
to buy beer, his injury was loss of business)
c. Waiver – if it is clear that the person has waived his rights,
the 3rd person cannot bring in future claims (Gilmore v.
Utah)
d. Associations and organizations
i. Association has standing where its own interests are
at stake, or
ii. Association can sue on behalf of its members if:
1. members would otherwise have standing to
sue themselves
2. interests sought to be protected are crucial to
organization’s purpose, AND
3. neither claim nor relief requires participation
of members in lawsuit
e. First Amendment provides grounds to assert rights of
parties not before the court if a statute abridges 1st
amendment (overbreadth doctrine.)
6. Prohibition against generalized grievances

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a. General Rule: If the plaintiff alleges a violation of no specific
constitutional right, but instead claims an interest only as a
taxpayer or a citizen in having the government follow the
law, standing is not allowed.
i. Standing would exist if taxpayer were challenging the
constitutionality of a tax they were subject to or a
miscalculation by IRS…individual relief for their own
tax status.
b. Rule before 1968 – Frothingham v. Mellon
i. Federal court review must be based on a plaintiff’s
alleging a direct injury and “not merely that he suffers in
some indefinite way in common w/ people generally.”
ii. Taxpayer had no standing to assert that taxpayers’ funds
in general were being improperly collected or spent.
c. EXCEPTION made after 1968 – Flast v. Cohen (tax payers
challenged funding of religious schools – Court allowed suit b/c
this was a violation of Establishment Clause.)
i. Taxpayer may challenge constitutionality of a federal
taxing and spending program if there is a logical nexus
between status of a taxpayer and the claim.
ii. Two part nexus test:
1. Statute must rely on Congress’ taxing and
spending power (Art 1, §8); i.e. Congress must
be spending or taxing!
2. The law/expenditure must violate a specific
constitutional limitation; here the expenditure
was in violation of 1st amendment (religion)
iii. NOTE: No case after Flast has been able to come w/in
the exception!! This is a narrow exception!!
d. Cases that failed the Flast test:
i. US v. Richardson - taxpayer wasn’t technically
challenging how congress was spending money, he
was challenging a CIA regulation – only those
constitutional provisions which act as “specific
limitations” on the taxing and spending power of
congress may be relied upon.
ii. Valley Forge College - No standing b/c the govt. action
was authorized not by the T&S Clause, but by the
Property Clause. First part of test was satisfied.
e. Citizenship suits: no standing on the part of citizens as to object
to unlawful or unconstitutional conduct b/c they have no
individualized injury in fact. (Schlesinger v. Reservists)
f. After these cases, the only situation in which a taxpayer
standing appears permissible is if the P challenges a govt.
expenditure as violating the establishment clause.
g. Challenging an administrative agency regulation that doesn’t
directly control person’s activities - P must be part of the group
intended to benefit from the law

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iv. Ripeness
1. Applied: determine when the litigation may occur; often hinges on
INJURY requirement (haven’t suffered injury yet)
2. Question: When may a party seek preenforcement review of a statute or
regulation?
3. Two prerequisites:
a. The hardship to the parties of withholding court
consideration
i. Three scenarios:
1. Substantial hardship to denying preenforcement
review when a person is forced to choose
between forgoing possibly lawful activity and
risking substantial sanctions. Abbot
Laboratories v. Gardner (FDA regulation
requiring inclusion of generic names for
prescription drugs on all labels)
2. Enforcement is certain; where the application of
the law is inevitable and consequences attach to
it, the matter is ripe even though there will be a
time delay before the disputed provisions take
effect. Regional Rail Reorganization Act Cases.
3. Collateral injuries, not the primary focus of the
lawsuit, exist to make case justiciable.
ii. NOTE: If there appears minimal harm to denying
review, the case will be dismissed as not ripe.
1. Poe v. Ullman (pregnancy was medically
unadvisable and Conn. Law prevented
distribution of contraceptives). Because
Connecticut has not chosen to press enforcement
of the statute deprives the controversies of the
immediacy.
b. The fitness of the issues for judicial decision.
i. Purely legal question: The more judicial consideration
of an issue would be enhanced by a specific set of facts,
the greater the probability that a case seeking
preenforcement review will dismissed on ripeness.

v. Mootness
1. There must be a CONTROVERSY at all stages of litigation!! If
anything occurs while a lawsuit is pending to end the plaintiff’s
injury, the case is to be dismissed as moot.
2. Circumstances causing case to be moot: criminal ∆ dies, civil P dies,
settlement, challenged law is repealed or expires, and any change in facts
that end the controversy.
3. EXCEPTIONS: Ps injury is resolved, but case shouldn’t be dismissed.
a. Collateral consequences: A secondary injury survives after the
P’s primary injury has been resolved.

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 i. Criminal rule  no possibility that any collateral legal
consequences will be imposed on the basis of the
challenged conviction.
ii. Civil rule  P continues to suffer some harm that a
favorable court decision would remedy.
b. Wrongs capable of repetition yet evading review
i. Injury is likely to recur in the future and it is possible
that it could happen to the plaintiff again.
1. Defunis – guy applied to law school, by the time
he gets to S.Ct. he is almost done w/ school;
court says case is moot b/c he will never apply
to law school again
ii. It must be a type of injury of inherently limited
duration so that it is likely to always become moot
before federal court litigation is completed.
1. Roe v. Wade – by the time Roe gets to court the
abortion problem is over, she had the baby; not
moot b/c possibility exists that she could get
pregnant again and face same problem
2. Moore v. Ogilvie –Capable of repetition b/c Ps
might again seek access to ballot for
independent candidates and the matter would
always escape review b/c litigation could never
be completed before election.
c. Voluntary Cessation
i. Case can’t be dismissed if defendant voluntarily
ceases the allegedly improper behavior but is free to
return to it at any time – there must be no chance he
will resume behavior.
1. Friends of the Earth v. Laidlaw (P’s allege
holder of NPDES was violating mercury
discharge limits)
ii. Burden of proof: A D bears the heavy burden of
showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur.
iii. Statutory change - enough to render a case moot,
unless the Court believes there is a likelihood of
reenactment of substantially similar law if lawsuit is
dismissed.
d. Class Actions
i. Even if named plaintiff in certified class is considered
moot (dies) this doesn’t render everyone else moot.
ii. Representatives still retain a personal stake in obtaining
certification.

vi. Political Question Doctrine

1. Baker v. Carr – court says that certain questions are political in
nature and not of court’s concern.
2. Factors in Baker to find a Political Question:
a. Commitment to other branches

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 i. The issue does not fall under Court and out of respect for
separation of power, court won’t touch it
ii. Nixon – judge challenges process by which he was
impeached; court says in constitution the sole power to
try impeachments is in Senate; challenges to
impeachments and removal are nonjusticiable.
iii. Powell – Congress refuses to seat P b/c of dirty deeds;
court says this is not a political question b/c the House is
only charged w/ determining whether qualifications are
met, NOT setting the qualifications.
b. Lack of standards
i. The court says they cannot answer the question properly
ii. Luther – concerns Guaranty Clause; federal govt. will
guarantee a republican form of govt. in every state; court
says there is no way to measure such a guaranty.
c. Choice to avoid multiple pronouncements
i. Govt. should speak in a unified voice – President and Ct.
should say same thing, esp. in area of foreign affairs.
ii. Goldwater – President made decisions about treaty. In
foreign affairs the US needs to speak in a unified voice –
everyone needs to say the same thing.
3. Malapportionment – court CAN hear cases.
4. Gerrymandering – court CAN hear cases.

CHAPTER 2: FEDERAL LEGISLATIVE POWER

A. CONGRESS AND THE STATES
a. U.S. Const. art. I, § 8 enumerates the powers of Congress.
i. Lay & collect taxes
ii. Provide defense
iii. Regulate commerce
iv. Control patents, copyrights
v. Declare war
vi. Make all laws NECESSARY and PROPER, cont.

b. Important questions to ask:

i. Does Congress have the authority under the Constitution to legislate?
ii. If so, does the law violate another constitutional provision or doctrine
(i.e. infringing upon separation of powers or individual liberties)?

c. McCulloch v. Maryland (Bank of US w/ branch in MD; MD wants to tax bank to try

to get rid of it)
i. Two main questions:
1. Can Congress incorporate Bank of US? YES.
a. The fact that something is not in the enumerated list of
Congress’ powers, doesn’t mean they can’t do it!
b. Necessary and proper is there for this reason – no way to list
EVERY power Congress could have.
i. Congress has power to “raise revenues” so they can
do this by chartering a bank.
2. Can Maryland tax the bank? NO.

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 a. When Maryland taxes bank they are taxing every American
(who are funding the bank also) – a smaller entity can’t tax a
larger one.
ii. Way to get from express power to implied power.
iii. What is required to meet the Necessary and Proper Clause: (the
definition of what Congress can do.)
1. What is a “constitutional law”?
a. Ends legitimate
b. Means appropriate
c. Not prohibited by spirit or letter of constitution
iv. Courts will NOT strike down a congressional action so long as:
1. Congress has employed a means not prohibited by Constitution, and
2. The means is rationally related to objectives w/in Congress’
enumerated powers.

B. THE COMMERCE POWER

a. Commerce power before 1937
i. Early case: Gibbons v. Ogden (steamboat operators’ monopoly competing
w/ local ferry service.)
1. Commerce included navigation and all phases of business.
2. Congress could regulate intrastate commerce if it had an impact in
interstate activities – subject to no limits (10th).
ii. 1890-1937 – main theme “dual federalism” – federal and state govt. were
separate sovereigns w/ separate zones; characterized by laissez faire attitude.
1. Commerce was narrowly defined to leave a zone of power to the
states.
a. Commerce was one stage of business, distinct from
manufacturing (US v. EC Knight –monopoly of mfr. sugar
not w/in Congress’ control) and
b. Fixing of wages, employment of men, hours of labor, etc.
(all for the purposes of production, not of trade.) (Carter v.
Carter Coal Co. – min. price of coal fixed)
2. “Among the states” meant that Congress could only regulate
when there was a direct effect on IC.
a. If intrastate commerce injures interstate commerce, Congress
can step in to protect interstate commerce.
b. Wherever the interstate and intrastate transactions of carriers
are so related that the government of the one involves the
control of the other, it is Congress, and not the state, that is
entitled to prescribe the final and dominant rule. (Shreveport
Rate Cases)
c. ALA Schecter Poultry Cases – NIRA’s attempt to regulate
maximum hours and min. wages was beyond CC.
i. Activities not w/in Stream of Commerce
3. 10 amendment reserved a zone of activities to the states; federal
th

laws unconstitutional if they invaded this zone.

a. 10th reserved control of mining, mfr., production, etc. to the
states.
b. Courts more hostile to congressional interference w/
employer/employee relationships.

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 i. Hammer v. Dagenhart (child labor case) -
Regulating the hours of labor of children was
entrusted to state authority (OVERRULED)
ii. Congress’ grant of power over IC was not to give it
authority to control the States’ exercise of the police
power over local trade and mfr.
c. Court was sympathetic to commerce-prohibiting/police
power techniques.
i. Champion v. Ames (the lottery case) - lottery tickets
would pollute commerce and corrupts moral climate.
ii. Must look at the “nature of the thing itself”;
regulation by Congress is seen as an enforcement of
state police power, not usurpation.

iii. 1937-1990s - Broad Commerce Power – brought on by Great Depression;

Court removes many restrictions and allows Congress to regulate at will.
1. Congress could exercise control over all phases of business
provided there is a substantial effect on IC.
a. NLRB v. Jones & Laughlin Steel – fact employees were
engaged in production not determinative - the commerce
power is plenary and may be exerted to protect interstate
commerce no matter the source of the dangers that threaten
it.
b. Court is transitioning from direct effect  substantial effect.
Case reconcilable w/ previous era b/c steel business was part
of the stream of commerce and labor relations w/in it had a
direct effect on commerce
2. Congress could regulate any activity that taken cumulatively had
an effect on IC.
a. Wickard v. Filburn (cap on amount of wheat harvested)
-Even if P’s activities are local in nature, Congress still has
power over it if there is a substantial, cumulative economic
effect on IC.
3. Congress expanded use of prohibitions in furtherance of general
welfare and police power.
a. US v. Darby (Court upholds act prohibiting shipment in IC
of goods made by employees paid less than min. wage)
i. Overrules Hammer v. Dagenhart.
ii. Congress may control production by regulating
shipments in IC; the shipment of manufactured
goods interstate is IC and the prohibition of such is a
regulation of commerce.
4. Rational basis test for finding an interstate effect.
a. Regulatory laws: Congress can regulate intrastate activities if
necessary to protect its regulation of interstate activities.
b. Civil Rights laws: Heart of Atlanta Motel v. US – Civil
Rights Act of 1964 is a valid exercise of commerce power.
c. TEST:

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 i. Whether Congress had a rational basis for finding
that racial discrimination by motels affected
commerce, and
ii. If it had such a basis, whether the means it selected
to eliminate that evil are reasonable and
appropriate.
d. Criminal laws:
i. NOTE: activity in crime is purely commercial.
ii. Perez v. US (loan sharking) - As long as Congress
had a rational belief that even purely intrastate loan
sharking nevertheless directly affected interstate
commerce, law upheld.
5. 10th was not a limit – federal law would be upheld so long as it
was w/in scope of Congress’ power.
a. NL Cities, Garcia

iv. MODERN VIEW:

1. Narrowing of Commerce power and revival of 10th as a limitation.
2. 3 categories of activity Congress may regulate under commerce
power (US v. Lopez)
a. Use of the channels of interstate commerce (Heart of ATL.
Motel)
b. Instrumentalities of interstate commerce, or persons or
things in IC
c. Regulate activities having a substantial relation to IC
(substantially affects)
3. NOTE: We are dealing w/ non-economic activity.
4. US v. Morrison (federal civil remedy for victims of gender-
motivated violence)
a. Congress cannot regulate a non-economic activity that has
traditionally been dealt w/ by state laws.
b. Congress may not regulate non-economic, violent criminal
conduct based solely on that conduct’s aggregated effect on
IC.
c. NOTE: This case the ability of Congress to regulate based
on findings of substantial effects on interstate commerce.
5. Other modern themes:
a. Court doesn’t give much deference to fact that Congress
believed activity has requisite effect.
b. “Rational basis” is not enough.
c. If object of regulations has traditionally been left to
states, less likely that Congress has power.
i. This can be outweighed by a national solution
needed.

v. Progression of 10th amendment as a limit:

1. Pre-1937 – Congress could not regulate into state’s zones  10th is a
limit.
2. 1937-1990 – 10th not a limit, no statute was invalidated.

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 a. 1976-1985 NL Cities v. Usery – 10th was a limit.
i. Surprising decision: set of wage and hour
regulations violates the 10th amendment.
ii. State has traditional power to determine wages,
BUT Congress also has power to regulate IC,
what happens when these powers overlap?
iii. Court has a problem w/ the idea that congress is
interfering w/ something that “traditionally”
belongs to the states
b. 1985 Garcia – overrules NL Cities
i. One judge switches vote and old position on 10th
amendment power is restored (5-4).
ii. Is payment of wages to mass transit workers a
traditional function?
iii. As long as congress regulates states just like
private employers, 10th amendment is not a
limitation; only when congress tries to regulate
states as states  10th amendment is not as
much of a limitation.
3. 1990s - cuts back on Garcia
a. NY v. US, US v. Printz stand for proposition 10th is a
limitation!
b. NY v. US – commandeering case
i. The problem was Congress said they must pass
legislation to do x. Can’t tell the states how to
pass laws.
ii. In regulating the waste, congress is telling the state
that they must take some kind of legislative action
(i.e. commandeer the state legislature)
c. Printz v. US – Congress told states to do background checks
for Congress on guns.
i. Congress can not “commandeer” the legislature;
nor can it assign functions for state executive
officers.
d. Regulating in a generally applicable sense (min. wage law
that applies to all businesses including the state) does not
invoke the 10th amendment (Garcia).
e. Raich

C. TAXING AND SPENDING POWER

a. Generally: Congress has the broad power to tax and spend for the general welfare
so long as it does not violate other constitutional provisions.
b. Taxing power:
i. Art. 1, §8, “Congress shall have the power to lay and collect taxes, duties,
imposts and excises…
ii. Independent source of federal authority: Congress may tax activities or
property that it might not be authorized to regulate directly under any
of the enumerated regulatory powers.

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 iii. Special rules on taxes:
1. Must be uniform throughout the US (indirect – tax on activity)
2. Direct taxes on property – revenue comes from each state in
proportion to its share of nation’s population.
3. No duty on exports.
c. Spending power:
i. Art. 1, §8, “To pay the debts and provide for the common defense and
general welfare of the US, but all duties, imposts and excises shall be
uniform throughout the US.”
ii. Old law - US v. Butler: Limit on Congress’ ability to tax and spend – A
regulatory scheme has to be justified as a reasonable means of carrying out
some other enumerated power.
1. Madison  only allowed spending or taxing to further one of the
enumerated objects of legislative activities
2. Hamilton  broader concept
iii. Today, 10th amendment is not a limitation on federal spending power
(Congress can use its spending power in areas of primarily local
interest.)
iv. If Congress can’t achieve objective X by direct regulation, since that
would lie beyond its enumerated powers, it CAN condition is spending
power to achieve the result indirectly by depriving the states of money if
they do not achieve the regulatory result. (Dole v. SD – setting drinking
age)
1. Conditions on grants to state govt.
a. Must be in the pursuit of “the general welfare”
b. Conditions must be unambiguous so that states know the
consequences of participation
c. Conditions must be related to the “federal interest in
particular national projects or programs.”
d. The condition imposed cannot violate an independent bar/
constitutional prohibition

D. CONGRESS’ POWER UNDER POST-CIVIL WAR AMENDMENTS

a. 13TH, 14TH, 15TH – Two main issues:
i. To what extent may Congress enact legislation pursuant to these amendments
to reach purely private conduct?
ii. What power does Congress have to interpret these differently from the
Supreme Court, w/ respect to:
1. remedies
2. substantive content
b. TEXT of amendments
i. 13th: “Neither slavery nor involuntary servitude…shall exist w/in the US, nor
any place subject to their jurisdiction.”
ii. 14th: “No state shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the US; nor shall any State deprive
any person of life, liberty, or property, w/o due process or law; nor deny any
person w/in its jurisdiction the equal protection of the laws.
iii. 15th: “The right to vote shall not be denied or abridged by the US or by any
State on acct. of race, color, or previous condition of servitude.”

15
 iv. Common to all: “The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article.”

c. Congress’ power to regulate private conduct

i. §5 power (§2, 15th) – To what extent may Congress “appropriately”
enforce the 14th and 15th amendments by proscribing conduct which the
Court would not construe to be “state action?”
1. Examples:
a. When private conduct prevents state officials from giving
equal protection of due process to others.
b. Private conduct that intentionally interferes w/ rights
guaranteed to an individual by federal constitutional
provisions other than 14th.
2. Gray area: Purely private discrimination by one individual against
another, where no state facilities, programs or rights are directly
involved.
ii. 13th amendment and private conduct:
1. Language not explicitly limited to governmental action.
2. Civil Rights Cases: narrow view – only deals w/ “badges and
incidents” of slavery; could only prohibit people from being or
owning slaves – not discriminating against them.
3. Jones v. Mayer – Congress has power to “rationally determine what
are the badges and incidents of slavery” – individual actors that
discriminate against slavers can be reached as well.
iii. 14 amendment:
th

1. Early decision – Civil Rights Cases: Only state action could violate
14th, Congress’ enforcement power only permitted it to restrict state
action, and not private conduct.
2. Change in US v. Guest: a concurrence (not a majority) –
Congress could, under §5, reach a substantial range of private
discriminatory conduct.
3. CURRENT LAW: US v. Morrison – disregard the concurrences in
Guest.
a. General rule: 14th only applies to conduct of the states.
b. §5 powers do not apply so that Congress can not reach
purely private conduct, even if that conduct interferes w/
rights protected by the 14th.
i. Civil Rights Cases reaffirmed.
c. Congress can’t regulate purely private conduct that has
nothing to do w/ state officials.
d. Congress can:
i. Prohibit private individuals from interfering w/
state officials’ attempts to furnish equal protection
or due process.
ii. Punish private conduct where private party acts in
conjunction w/ a state official.

d. Scope of Congress’ remedial power

i. What kinds of remedial actions may Congress take?

16
 ii. 15th amendment voting rights: broadening of “remedial powers”
1. Voting Rights Act of 1965 passed to eradicate racial discrimination
in voting (literacy tests)
a. Findings were not judicially reviewable.
2. Act upheld in SC v. Katzenbach (“nationalist prospective of §5”)
a. (Overruled) Court construed Congress’ power to enforce
15th broadly – “any rational means” could be used.
b. Congress’ actions were viewed as being designed to combat
what, by the Court’s own opinions, constituted past or
prospective violations of post-Civil War amendments.
c. Other legislation seemed to be an attempt by Congress to
redefine the meaning and scope of constitutional guarantees
themselves – as opposed to “remedial” legislation.

e. Scope of Congress’ power to modify constitutional rights

i. If Congress disagrees w/ S.Ct. about the proper scope of the rights
guaranteed by 13, 14, 15th, may Congress use its remedial power to
change the scope of these guarantees?
1. NO. Congress may not redefine the scope of guarantees.
ii. CURRENT LAW: It is up to the Court alone, not Congress, to define the
scope of Constitutional rights, even rights as to which Congress has an
explicit remedial power.
iii. City of Boerne v. Flores: Congress can only prevent or provide remedies
for violations of rights recognized by S.Ct.
1. Rationale: If Congress could define its own powers by altering 14th,
no longer would Constitution be the supreme law of the land.
2. In order for §5 remedial legislation to effect unconstitutional
behavior by a state it must :
a. Relate directly to a 14th amendment right, and
b. Be CONGRUENT AND PROPORTIONAL to the
constitutional violation.
i. Proportionality – hit the problem w/ the size of
hammer it needs to be hit with…can’t kill a fly w/ a
sledgehammer!
ii. Congruence – Congress must identify a pattern of
conduct; solution to the problem must be connected
to the problem itself.
3. Therefore, if statute is a valid remedial power, Congress can let
private individuals bring damage suits in federal court. BUT if
statute fails congruent/proportionality test, states have immunity
from the suit.
f. Remedial powers and 11th amendment:
i. If Congress wants to subject states to federal-court damage actions by private
individuals, Congress must rely exclusively on its 13th, 14th, or 15th
amendment remedial powers as the source for legislation.
1. No commerce clause.
2. No age and disability discrimination ADEA/ADA (Kimel, Garrett)
a. Only if acting under power to enforce equal protection
clause of 14th.

17
 3. No patent infringement suits
ii. Congruence and proportionality test is given strict scrutiny.
1. Congress must clearly est. that states committed major constitutional
violations, and then narrowly tailor legislation allowed.
2. Congress has very high burden of showing violation.
3. If burden met, remedial measures must tightly fit violation est.

E. 11TH AMENDMENT: Congress’ power to authorize suits against state govt.

a. TEXT 11th: “Judicial power of the US 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 of Subjects of any foreign state.”
i. S.Ct,’s interpretation:
1. Bars suits by a citizen against his or her own state. (Hans v.
Louisiana) – seems contrary to actual text.
2. Bars suits against a state by citizens of another state. (Chisholm v.
Ga.)
3. Covers federal question suits, not just diversity suits.
ii. Constitutional limitation on federal judicial power!! NO SUITS BY
PRIVATE CITIZENS AGAINST STATES!!
b. General rule: citizens cannot sue states!

c. Exceptions: Abrogation of sovereign immunity - where you can get to the states.
i. Suits against officials for injunctions for violations of federal law (Ex parte
Young)
1. Suits against official for money damages, out of their own pocket.
2. Can only sue state officer for injunctive relief.
ii. Suits against cities.
iii. Suits by one state against another.
iv. Suits by private individuals suing state in state court.
v. Appellate jurisdiction to review state-court decision.
vi. When state waives 11th amendment right – consents.

d. BIG EXCEPTION: If Congress passes a statute pursuant to 14th and that statute
gives private citizens the right to sue a state in federal court, this statute will be
enforced and WILL NOT VIOLATE 11th.
i. Fitzpatrick – Congress may authorize suits against states pursuant to 14th.
ii. Seminole Tribe v. Florida – Congress can not abrogate 11th pursuant to
commerce clause.
1. Overrules Union Gas – allowed commerce clause to abrogate.
2. Art I (enumerated powers of Congress) can not be used to
circumvent limitations Art. III places on Judiciary.
3. Dissent: the majority’s holding prevents Congress from providing a
federal forum for a broad range of actions against States.
a. 11th was only intended to est. SI in diversity not federal Qs.
iii. Congress’ tries to use 14th to give ability for people to sue:
1. Patent suits in Florida Prepaid.
a. When Congress can abrogate SI:
i. Congress must express intent to abrogate
through 14th.

18
 ii. Congress must identify pattern of conduct
transgressing 14th amendment (Congruence from
Boerne).
iii. Congress must have tailored scheme to remedy
problem (Proportionality from Boerne).
2. Hibbs – Congress validly abrogated SI in enacting FLMA.
3. Kimel, Garrett – When a state acts as an employer, it is not liable for
money damages if it discriminates against a disabled employee in a
way that ADA or ADEA is violated.
iv. Start w/ proposition that Congress will not abrogate SI.
v. Trend: There is a new and restricted view of federal power.
1. Seminole, Florida Prepaid – only 13, 14, 15 to have suits against
state government.
2. U.S. v. Lopez – limit on Commerce power.
3. NY v. US – 10th is a limit
4. Alden v. Maine – state immunity from state-court suits based on
federal rights.
5. Federal Maritime – prohibition on certain federal administrative
proceedings involving state ∆s.

e. Congress’ power to authorize suits against state govt. in state courts

i. 11th not a problem because this amendment involves federal courts, NOT
STATE COURTS
ii. Alden v. Maine
1. Court says if you can’t abrogate state’s immunity in federal court
you can’t subject them to suit in their own courts
2. Holding: The doctrine of sovereign immunity generally prevents
Congress from subjecting the states to private suits in their own
courts, even where the right sued on is federal.
iii. Rationale: There is a SI for states that predates the constitution; this never
changed.
iv. Federal agency proceedings:
1. Federal Maritime Comm. v. SC State Ports - the federal
government is barred from requiring that states defend against
private complaints in proceedings brought before federal
administrative agencies.
a. Port Authority was an agency of state govt. so sovereign
immunity applied.
CHAPTER 3: THE FEDERAL EXECUTIVE POWER
A. INHERENT PRESIDENTIAL POWER
a. Art. II, §2: President’s enumerated powers – Commander-in-Chief of the armed forces,
treaty making power.
b. Implied powers: “The executive Power shall be vested in a President.”
c. Broad limitation: The president may not make laws; he may only carry them out.
i. Youngstown Sheet v. Tube Co. v. Sawyer (President seizes steel industry)
1. Congress has lawmaking power and seizure of steel industry is
unconstitutional

19
 2. Majority’s Holding (Black): the president’s power, if any, to issue the
order must stem either from an act of Congress or from the constitution
itself.
3. Jackson’s concurrence*: president may take action not prohibited by
the constitution or a statute.
a. 3 levels of executive power
i. where president acts pursuant to express authority of
congress, his authority is at a maximum
ii. president acts in absence of congressional grant or in a
denial of authority, not in contradiction of congress,
congress is just silent  twilight zone – may or may not
have authority – potentially they could both handle the
problem
iii. president acts in contradiction to congress – power at a
minimum (This case falls here b/c seizures have been
covered by 3 statutes)
4. Douglas: president can act w/o express statutory or constitutional
authority so long as he is not usurping the powers of another branch of
govt. or keeping another branch from performing its duties.
5. Dissent - President has inherent authority and may act unless conduct
violates the constitution. The Korean War makes this matter necessary.
d. Executive Privilege: of the president to keep secret conversations w/ or memos to or
from advisors
i. Not mentioned in constitution, but presumed that exec has some privilege to keep
stuff secret.
ii. Nixon – President seeks to invoke executive privilege and refuse to produce tapes
of conversations.
iii. Three points:
1. Court, not President, evaluates claims of executive privilege
2. President does have a privilege of confidentiality of Presidential
communications in the exercise of Article II powers
3. Executive privilege is qualified
a. not absolute privilege
b. privilege is qualified if the matters are not related to his job
e. President’s veto power
i. Art. I, §7 – President has power to veto a bill passed by Congress
ii. Line-item veto
1. Defined: statute empowers the president to veto (or cancel) particular
parts of appropriation bills while allowing the rest to go into effect.
2. Unconstitutional because it violates the Presentment Clause (Clinton)
a. Presentment Clause – Bill must pass through both houses and
then get signed by President.
3. LIV lets president legislate b/c he can pick what is good and what
isn’t….this is congress’ job.
iii. Legislative veto
1. Defined: Congress delegates to agency but retains power to overturn an
agency action by resolution.
2. Unconstitutional because it violates President’s veto power and
bicameralism. (Chadha)

20
B. CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE
a. NON-DELEGATION DOCTRINE
i. CURRENT LAW: Congress must have the ability to delegate.
1. Old law: Schlechter Poultry/Panama Refining – Congress couldn’t
delegate legislative power to executive bodies (President/agency)
ii. Limitations on delegation:
1. Delegation is appropriate when given to someone who usually does
that particular job.
a. Mistretta - sentencing guidelines are constitutional
i. Congress may delegate sentencing guidelines to panel of
judges
1. judges traditionally sentence criminals
2. judges have sat on commissions before
2. Congress must provide some set of guidelines.
a. Whitman-Congress has given sufficient guidance to EPA to set
environmental standards.
iii. Today, although the court says that when Congress delegates its legislative
power it must provide criteria (“intelligible principles”) to guide the agency’s
exercise of discretion, all delegations, even w/o criteria, have been upheld.

C. CHECKING ADMINISTRATIVE POWER

a. The Appointment Power
i. TEXT: Art II, §2, cl. 2 - president “shall nominate, and by and with the Advice
and Consent of the Senate, shall appoint …, but the Congress may by Law vest
the Appt. of such inferior Officers, as they proper….”
ii. President has ability to appoint Federal officers
1. Principal Officers – appoints and is subject to confirmation by the
Senate; Congress may not appoint federal officials.
a. Includes secretaries, ambassadors, and federal judges.
2. Inferior Officers – President can appoint them, but Congress may give
away appt. power in President, heads of dept., or lower federal courts.
a. Morrison v. Olson – Congress may delegate power to appt.
independent counsel to judiciary b/c IC is an inferior officer.
b. Limitation: Congress may not delegate appointment of
executive officials to itself (Buckley)

b. The President’s Removal Power

i. TEXT: Constitution is silent on removal power of federal officials.
ii. Determining who is an executive official and who is an inferior official:
1. Look at duties, who they answer to, type of work
2. Think about this in the alternative.
iii. Purely executive officials
1. President has implicit power to remove executive principal officials.
2. President may remove executive [inferior] officials as long as limitations
do not impede the president’s ability to perform his constitutional duty.
(Morrison v. Olson) and unless removal is limited by statute
a. Congress may by statute limit removal both if it is an office
where independence from the president is desirable, and
b. If the law does not prohibit removal, but rather limits removal to
instances where good cause is shown.

21
 iv. Non-executive officials
1. Congress may limit or completely block President’s right of removal
(Humphrey’s Executor)
2. President may remove only if Congress has explicitly given him the right
to do so (Wiener v. U.S.)

c. Congress’ Removal Power

i. Congress does not have the ability to remove an executive official (Bowsher
v. Synar), they can only impose limitations.
1. Separation of Power issue: we don’t want to give one branch the power
to fire the other’s employees.
ii. Congress still has a right to remove an executive officer by impeachment.

D. FOREIGN POLICY
a. TEXT: Art I, §8 – Congress has power to declare war and raise support armies.
i. Art II – President commander in chief of the army and navy; power to make
treaties by and with the advice and consent of the Senate
b. Foreign affairs are an area for President! (Curtiss Wright)
i. president makes treaties w/ advice and consent of senate, but he alone negotiates
ii. president is the sole representative of the nation
iii. the president, not congress, has the better opportunity of knowing the conditions
which prevail in foreign countries in time of war
c. Treaty: agreement negotiated by president and effective when ratified by Senate.
d. Executive agreement: between US and foreign country that does not require legislative
approval.
i. Pink and Belmont – Court upholds executive agreements.
ii. Dames & Moore - (narrow) because the settlement of claims has been determined
to be a necessary incident to the resolution of a major foreign policy dispute
between our country and another, and because it is concluded that congress
acquiesced in the President’s action, the President has power to settle such
claims.
1. Two issues: necessary incident, Congress has acquiesced.
e. WAR POWERS
i. Constitution sets up a scheme w/o guidance on war powers.
1. Article I – grants Congress the power to declare war and the authority to
raise and support the army and the navy
2. Article II – makes president the commander in chief
ii. War Powers Resolution  response to dangers learned in Vietnam War w/o
conducting the formalities set out in the constitution.
1. Two major issues:
a. What constitutes a declaration of war?
b. When may the President use American troops in hostilities w/o
congressional approval?

iii. ENEMY COMBATANTS

1. Hamdi: NARROW decision
a. President’s justification for detaining Hamdi
i. Majority (3 justices): Authorization of Use of military
Force (AUMF) authorized by Congress.

22
 1. §4001: “no citizen shall be imprisoned or
otherwise detained by US except pursuant to act
of Congress”
2. limitation on AUMF: b/c he was seized on
battleground, he can be held during duration of
conflict
ii. Thomas: AUMF is not necessary b/c President has
inherent authority to take this kind of action.
iii. Relation to Youngstown – “twilight zone” issue –
President doesn’t need inherent authority, can look to
authorization from Cong.
1. Weak argument: b/c AUMF is very broad power
for President’s power in times of war.
b. Scalia’s DISSENT: Criminal procedures would have been
adequate (also issue in Padilla)
i. Hamdi is a citizen of US and thus he is entitled to
normal legal proceedings.

2. Padilla (dirty bomb in airport)

a. Comparable to Milligan.
b. Outcome: Padilla should be charged w/ original federal crimes, if
found innocent, he is set free.
c. No express congressional authorization to detain Padilla - Not
foreign battleground (Hamdi), so AUMF does not apply.
d. Thomas DISSENT: in order for President to “take care” he must
be able to deal w/ people messing around w/ the US.
i. Youngstown argument: President cannot take a “military
model” and usurp Congress’ power to take care of
domestic issues.
3. Hamdan/FISA (Foreign Intelligence Surveillance Act)
a. Comparison to Youngstown:
i. There, pres was saying “Because we need to win the
war, I have authority to take over steel mills?” Here, he
is saying “because we need to win the war, I should be
able to detain foreign combatants under certain
circumstances”
ii. Much less tenuous in Hamdan, more of a direct
connection between the presidential power and the need
to be addressed in the context of war
b. Scalia’s dissent: There are other ways to get wire taps
4. BIG QUESTION: Do we adopt an emergency view or do we strictly
adhere to the Constitution framework.

Citizenship? Seizure on field of Seizure in act of Seizure in US

battle? belligerency? territory in place
where US courts
open and
operating?
Milligan US NO NO, even though YES, Court finds

23
 he was accused of that laws of war
conspiracy, not shall never be
taking part at time applied to citizens of
of seizure. the states when the
civilian courts are
open and their
process
unobstructed.
Quirin Haupt renounced NO, but has YES (?), but YES
US citizenship – domestic seized w/o
acts of environment weapons or
belligerency trump become the field explosives.
his right as a US of battle?
citizen.
Hamdi US, but he doesn’t YES, carrying a YES (?), he says NO
know it (thinks he weapon, but denies no, govt. says yes
is Saudi). involvement. b/c he had a
weapon.
Padilla US NO, airport – but NO, but allegedly YES, but govt.
is US transformed conspiring to set argues that
into field of battle? off dirty bomb in international
(Quirin) US. terminal in airport,
is not US territory.

E. CHECKS ON THE PRESIDENT

a. Immunity
i. Discretionary functions/official acts:
1. President has absolute immunity from civil liability for his official acts
(Nixon v. Fitzgerald) insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.
2. Rationale: being subject to civil liability would inhibit president from
making certain decisions
ii. Non-official acts:
1. President has no immunity for things that do not involve his job – not
immune from civil suit for having affairs (Clinton v. Jones)
a. No immunity for things done before Presidency
b. Impeachment
i. TEXT:
1. Art. II, §4 – impeachment for conviction of treason, bribery, or other
high crimes and misdemeanors
2. Art I, §2 – House of Representatives has sole power to impeach
3. Art I, §3 – Senate has sole power to try impeachments (2/3 members
must be present
ii. Procedure: Being impeached is like charging you for a crime. House votes for
impeachment, requires majority of house. Senate tries impeachment (like a court
of law) – 2/3 votes to convict the President.

CHAPTER 4: LIMITATIONS ON STATE REGULATORY AND TAXING POWER

A. PREEMPTION OF STATE AND LOCAL LAWS

24
a. General rule: Constitution is the supreme law of the land. Generally, federal law trumps
state law.
i. BIGGIE: Courts must discern congressional intent!
b. Three categories of preemption:
i. EXPRESS – congress’ intention is blatant; preemption clause
1. Scope of express preemption clause is rarely clear.
2. Analysis: start w/ the presumption that the historic police power of
the state is not superseded by the federal act unless that is the clear
and manifest purpose of congress
3. Cipollone v. Liggett Group Inc: “Preemption: No requirement of
prohibition based on smoking and health shall be imposed under State
law w/ respect to the advertising or promotion of any cigarettes and
packages of which are labeled.”
a. RULE: “State law” includes common law as well as statutes and
regulations (Erie)
b. Illustrates that express preemption provisions require judicial
interpretation as to what specific types of state law are
preempted.
4. Lorillard Tobacco v. Reilly (Court invalidated a Mass. law that
prohibited outdoor advertising for cigarettes, such as billboards, w/in
1000 feet of a playground or school.)
a. Conclusion dealing w/ categorization:
i. The states framework covers tobacco products not in
terms of content, but location of ads; Court says that
content/location distinction cannot be squared w/ the
language of the provision which reaches “all
requirements and prohibitions” imposed under State law.
ii. Stevens shifts analysis from content of location to the
fact that the states traditionally govern zoning.
iii. Possible connection to shopping center cases.
i. IMPLIED
1. CONFLICT – if federal law and state law are mutually exclusive, so
that a person could not comply w/ both, the state law is deemed
preempted.
a. General, fact that both laws are different doesn’t necessarily
mean they conflict. I.e. the federal law could be a minimum
standard and permits states to set stricter standards. However, if
federal standard is the standard, state law is preempted.
b. When states set stricter standards in an area than does the
federal law, it is necessary to decide whether the federal govt.
meant its law to be exclusive or only a minimum standard.
i. Florida Lime & Avocado v. Paul
ii. Question to ask: When congress passed this law, did
they intend to preempt Cal. state law?
2. IMPEDING – Congress is trying to achieve a federal objective w/ their
law; does state law impede the accomplishment of this objective?
a. Analysis:
i. Courts must determine the federal objective
ii. Decide the point at which the state regulation
unduly interferes w/ achieving the goal

25
 b. LOOK AT: the purposes of the federal and state laws.
i. Pacific Gas v. State Energy Resources Commission:
ii. Holding: no intended preemption b/c the federal
objective was purely a safety issue and states purpose
is based on economics. Because they have different
objectives, dual compliance w/ the laws is permissible.
c. Possible argument: state law put a burden on federal objective
by requiring more than they thought was enough.
3. FIELD – field preemption means that federal law is exclusive in the area
and preempts state laws even if they serve the same purposes as the
federal law and do not impede the implementation of federal law.
a. Preemption exists if Congress has taken some area and regulated
it so substantially that they intend to “wholly occupy the field.”
b. Foreign policy and immigration, national defense – federal govt.
has exclusive authority in dealing w/ foreign nations, and
therefore state regulations in this area are preempted.
i. Hines v. Davidowitz: immigration laws
c. Others may include: national defense.
d. NOTE: Look at areas traditionally of state concern (police
power).
c. In preemption look for four things:
i. intent of Congress
ii. is congress already dealing w/ the issue – is a clear federal scheme already in
place
iii. is the field traditionally left to the states (health and safety – police powers,
education)
iv. is this is a national matter – something Congress already does – immigration,
patent law, bankruptcy, regardless of whether a law is on the books

B. DORMANT COMMERCE CLAUSE

a. Defined: principle that state and local laws are unconstitutional if they place an
undue burden on interstate commerce
i. TEXT: Art I, §8 – inferred from Congress’ power to regulate commerce among
the states.
ii. If Congress has legislated, the question is whether the federal law preempts the
state or local law.
iii. If Congress has not acted, state and local laws can still be challenged as unduly
impeding interstate commerce.
b. Key question: whether the state or local law discriminates against out-of-staters or
whether it treats in-staters and out-of-staters alike.
i. NOTE: if discrimination in regard to a fundamental right or important economic
activity, a challenge can be brought under privileges and immunities clause of
Art IV, §2 or equal protection clause of 14th.
c. Early approach – Gibbons v. Ogden, Cooley v. Board of Warden
d. Modern approach: BALANCING
i. if the law discriminates against out-of-staters, the court has a strong
presumption against the law and will uphold the law only if necessary to achieve
an important purpose (strict scrutiny)
1. if in-state people are not affected by the law, but out of state people are

26
 ii. if law does not discriminate against out-of-staters, the court will be in favor of
upholding the law, and the law will be overturned only if burdens on IC
outweigh the benefits of the regulation (heightened scrutiny)

Discriminatory Non-Discriminatory
Upheld (necessary to Exxon Upheld (benefits greater Barnwell
achieve purpose) Maine v. Taylor than burden) Pike
Clover Leaf Creamery
CTS

Overruled (not City of Phil. v. NJ Overruled (burden Southern Pacific

necessary to achieve Carbonne outweighs benefits) Kassel
purpose) Hunt Bibb
West Lynn Creamery
Dean Milk
Hughes v. OK

C. Two kinds of frameworks:

A. DISCRIMINATORY
I. FACIALLY
1. General rule: When legislation is facially discriminatory there is a
presumption that legislation is invalid, unless there is no other way to
achieve the same means.
2. Laws that limit access by out-of-staters to in-state resources
a. City of Philadelphia v. NJ (NJ prohibited import of waste into
their state. It was common that lots of waste came into NJ,
including from Philadelphia. City was attempting to reserve its
scarce landfill space for in-state use.)
i. Majority of court said law was discriminatory b/c out-of-
staters were affected.
ii. Holding: Court said the law was not necessary to
achieve an important purpose – there were other ways to
accomplish cleaning up waste. Some times you must
show this is your last resort.
b. Hughes v. Oklahoma (OK law prevented the transport of
minnows obtained in OK for sale outside the state)
i. Holding: Law is unconstitutional b/c it essentially
reserved profiting from minnow fishing exclusively for
in-state residents.
ii. Purported purpose could have been achieved by less
discriminatory means.
3. Laws that limit access to local markets by out-state-businesses
a. Maine v. Taylor – (Court upheld a Maine law that prohibited
the importing of live baitfish into the state.)
i. Objective is to protect the state’s “fragile fisheries”;
parasites would threaten ecological environment– there
was no less discriminatory way to prevent these threats.

27
 ii. Holding: Law is definitely discriminatory but state has
met second part of test – the law is necessary to achieve
an important purpose.
4. Laws that require use of local businesses
a. Dean Milk Co v. City of Madison (city required milk be
processed w/in 5 miles of city)
i. Holding: Court found law discriminatory b/c out of state
firms couldn’t process milk in their own facility and ship
to WI for sale.
ii. RULE: local regulations that treat out-of-staters in a
disparate manner will be treated as discriminatory even
though they also discriminate against those in other parts
of that state.
b. Cooley v. Board of Wardens (Penn. required use of local pilot or
the payment of a fee for bringing ship into Philadelphia)
i. Holding: (old case) law upheld b/c nature of problem
was purely local – would be overturned now.
ii. NEUTRAL (w/ discriminatory purpose / impact)
1. Imposes costs on out-of-staters that in-staters would not have to
bear/protectionist purpose
a. Hunt v. Washington State Apple Ad. Comm. (NC required apples
to have federal sticker or no sticker – appears not to be
discriminatory b/c everyone would have to follow this rule.)
i. Holding: Law is discriminatory b/c it has the effect of
limiting the ability of out-of-staters to do business in a
state by imposing additional costs on them.
ii. Court found out this was really an attempt to keep WA
apples out of the market (PROTECTIONIST)
2. Exclude all out-of-staters from a particular state market, but not if it only
excludes on group of out-of-staters.
a. Exxon v. Governor of Maryland (MD prohibited oil producers or
refineries from operating retail gas stations in MD.
i. Holding: not discriminatory even though law greatly
harmed out of state oil companies and favored local
businesses.
ii. Court agreed that Shell, BP, etc. would be left out of
new scheme for selling gas in MD, but other retailers
(small) are still permitted to sell gas in the state.
1. “Commerce clause protects an interstate market,
not interstate firms.”
2. Gas will still be sold in MD, market is still there.
b. See also Clover Leaf
3. Laws that require use of local businesses
a. C&A Carbone v. Town of Clarkston (city ordinance that required
solid waste in town to be deposited at a transfer station for a fee.)
i. Holding: Law is discriminatory and fails to achieve
necessary purpose.
ii. Even though law applied to both in and out-of-staters,
the economic effects are interstate in reach, as only the

28
 favored operator is allowed to process waste that is w/in
town limits.
iii. The waste could be more economically processed by
using other plants in the region (fails strict scrutiny)
iv. City could argue under police power if there was a
particularly kind of waste (only one plant can handle it)
– this argument fails b/c the waste in this case is generic
4. Law is motivated by a protectionist purpose:
a. Look at how the objective is being accomplished!!
b. West Lynn Creamery, Inc. v. Heely (Mass charged a tax on all
milk sold in state – this on its face affected everyone equally (all
people had to pay tax)).
i. Problem in what Mass did w/ tax revenues – they took
tax money and funneled it back to Mass. farmers. This
is discriminatory.
ii. If Mass had dropped tax fund in treasury and in separate
bill decided to take money out of treasury and pay
farmers, this would be OK…this is basically an indirect
route to accomplish the same thing.

b. NON-DISCRIMINATORY – BALANCING TEST!

i. Benefits greater than burdens – law upheld
1. Pike v. Bruce Church (AZ regulation requiring cantaloupes grown there
to be packed in the state rather than in another state.)
a. Holding: not discriminatory according to court b/c everyone
must pack cantaloupes the same way.
b. “Where the statute regulates even-handedly it will be upheld
unless the burden imposed on such commerce is clearly
excessive compared to local benefits” – the balancing test.
c. Burden not met.
2. Minnesota v. Clover Leaf Creamery Co. (MI law prohibited the sale of
milk in plastic disposable containers, but all sale in paper containers. MI
had a substantial paper industry but no plastic industry.)
a. Holding: Law has a discriminatory effect b/c it prohibits out-of-
state plastics industry from having access to Minn. markets,
however, the law was not discriminatory b/c it regulates even-
handedly by prohibiting all milk retailers from selling products
in plastic.
3. CTS v. Dynamics Corp (Indiana law limited corporate takeovers by
requiring that a purchaser who acquired “control shares” in an Ind. corp.
would acquire voting rights only if the transaction was approved by a
majority vote of the preexisting disinterested shareholders.)
a. Holding: No IC effect, therefore not discriminatory.
b. Law upheld: State has interest in promoting stable relationships
among parties involved in the corp. it charters, as well as
ensuring that investors have an effective voice – also, law only
provides regulatory procedures, no prohibitions.
4. SC St. Highway Dept. v. Barnwell - transportation (SC is regulating
size of trucks that can pass through their state.)

29
 a. Holding: Court says that regulation of local highways is a local
concern, but there is also balancing.
b. Initiation of balancing test: The burdens on IC are not that big,
i.e. it won’t stop flow of commerce, and the benefits to SC are
good.
ii. Burdens outweigh benefits – law overruled
1. Transportation cases:
a. Bibb v. Navajo Freight Lines (Arkansas requires curved mud
guard where as 45 other states require straight)
i. Truckers would have to stop at boarder and change
mudguard – big burden!!
b. Kassel v. Consolidated Freightways Corp (Iowa law bans 65
foot double trailers)
i. Holding: Law unconstitutional b/c of the substantial
burden on IC by forcing trucks to avoid Iowa or detach
trailers; also, state failed to present persuasive evidence
that 65-foot doubles are less safe than 55-foot singles.
c. Southern Pacific v. Arizona (state law limited train lengths)
i. Court says big burden on IC versus a benefit. If you
bring too big of a train across state lines, you have to
split train, get a new engine, etc.
ii. Barnwell and this case seem to say different things.
A big truck is the same as a big train….
1. Southern Pacific – court looked at fact that lots
of train tracks going through state; in Barnwell
not that many trucks were coming through the
state – look at facts of case*
D. EXCEPTIONS
a. Congress authorizes state regulation
i. Insurance laws regulated by states (McCarran-Ferguson Act)
b. State is a market participant, not a regulatory body
i. Distinguishes situation in which state is a regulatory body from situations where
state is an entrepreneur.
1. Reeves v. SD: SD starts concrete factory to provide consistent source of
cement; at a point, there was a shortage and therefore a need to prefer in
state purchasers; if left over cement, then out of state purchasers can buy.
a. Held: SD, as seller of cement, was clearly a market participant
and thus was able to favor in-state purchasers over those from
out of the state.
ii. Limitation:
1. South Central Timber (court declared unconstitutional an Alaska law that
required that purchasers of state-owned timber have the timber processed
in Alaska before it is shipped out of state.)
a. The State may not impose conditions, whether by statute,
regulation, or contracts, that have a substantial regulatory
effect outside of that particular market.
i. AK did not sell processing services, they sold logs.
They overreached the market in which they were a
participant. Vertical monopoly vs. horiz monopoly?

30
 b. Rationale: Controls of limiting access to goods should end at
first sale; not continuing to place conditions on the sale.

CHAPTER 5: STRUCTURE OF THE CONSTITUTION’S PROTECTION OF CIVIL RIGHTS

AND CIVIL LIBERTIES
A. REJECTION OF APPLICATION BEFORE CIVIL WAR
a. Early RULE: Bill of Rights applied only to federal govt. (Barron)
b. Enactment of 14th amendment changes Barron’s rule.
i. “All persons born or naturalized in the US, and subject to the jurisdiction thereof,
are citizens of the US 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
US; nor shall any State deprive any person of life, liberty or property, without due
process of law; nor deny any person w/in its jurisdiction the equal protection of the
laws.”
ii. Due Process Clause: this phrase has been translated to mean that States
must now adhere to Bill of Rights THROUGH 14th (incorporation).

c. Slaughterhouse case (1873): (butchers challenge local monopoly)

i. When 14th passed, it wasn’t clear whether it limit states’ substantive, as
opposed to procedural, powers.
ii. Held: Due Process clause of 14th protects only against procedural unfairness
and is not violated, so look to P & I clause for relief.
1. Court ignores substantive due process argument, though it is mentioned.
iii. Brief issue: 14th amendment is only intended to protect national P & I
1. Said only intended to protect against infringement by states of national P
& I – right as a butcher is not a P & I
iv. Holding: P & I of 14th are removed as a basis for applying the Bill of Rights to
the states or for protecting any rights from state interference.
v. Now, there is a narrow class of what is considered national P & I
1. Right to travel from state to state (Saenz)
2. Right to vote in national election
3. Petition congress to address for a redress of grievances

d. Incorporation of Bill of Rights into the Due Process Clause of 14th.

i. 14th amendment may apply civil rights to states.
ii. Twining v. NJ: (exemption from testimonial compulsion)
1. BIG DEAL: opened door to S.Ct. applying provisions of the BR to
the states by finding them to be included (incorporated) into the due
process clause of 14th.
2. Court at least acknowledges some sets of rights require protection.
iii. Gitlow – freedom of speech
iv. Powell – 6th amendment
v. INCORPORATION – due process clause was intended to incorporate
substantive, as well as procedural rights. Determined the reach of the BR and
the extent to which individuals could turn to the federal courts for protection
from state and local governments.

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 1. Selective incorporation: selectively pick out Bill of Rights that are
fundamental (winning argument) – as opposed to “total incorporation”
vi. CURRENT Incorporation: nearly all Amendments have been incorporated
except:
1. 2nd, 3rd, 5th, 7th, 8th

B. APPLICATION OF BILL OF RIGHTS AND CONSTITUTION TO PRIVATE CONDUCT

a. The Requirement for State Action
i. NOTE: the constitution applies to govt. at all levels and to actions of govt.
officers at all levels. The Constitution does not generally apply to private
entities or actors (EXCEPT: 13th)

b. STATE ACTION DOCTRINE

I. FEDERAL CONSTITUTIONAL RIGHTS DO NOT GOVERN
INDIVIDUAL BEHAVIOR AND CONGRESS LACKS THE AUTHORITY
TO APPLY THEM TO PRIVATE CONDUCT.
1. General scenario: in almost every litigation where an individual argues
that his constitutional rights have been violated, the court can grant relief
only if it finds that there has been state action (some sort of participation
by a governmental entity).
2. Problem: when a private individual is alleged to interfere w/
constitutional right.
ii. WHO? State, city, county, municipally-owned utility, etc. or federal
instrumentality
iii. Civil Rights Cases: invalidated Civil Rights Act of 1875 which prohibited private
individuals from discriminating in public places.
1. Absent congressional legislation, courts will not find conduct that is
exclusively private to be violative of the 14th amendment guarantees.
2. (Guest) Congress may have the power to reach purely private
conduct through its §5 powers.
3. 13th amendment applies only to slavery and involuntary servitude –
narrow view (overruled)
iv. Cons: absent statutory restriction, private conduct can infringe the most basic
rights (speech, privacy, equality) w/o redress in the courts
1. Private infringements can be just as harmful as govt.
2. Can perpetuate social inequalities
v. Pros: preserves zone of private autonomy and advances federalism.
1. Limits reach of federal law
2. Lots of private actions might be taken to court.
3. Preserves zone of state authority.
vi. MODERN APPROACH TO STATE ACTION
1. Broadened view of Civil Rights Cases definition of “state action”
2. Court has two main theories of how private conduct is so closely linked
to official conduct that it should be considered “state action”
a. Private actor is fulfilling a public function.
b. Connections btw state and private actor are so great that state can
be said to be entangled with or even encouraged private
activity.

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c. EXCEPTIONS TO STATE ACTION DOCTRINE – Where private conduct must
comply w/ Constitution
i. PUBLIC FUNCTIONS EXCEPTION - when a private individual is entrusted by
the state with the performance of functions that are governmental in nature, he becomes
an agent of the state and his acts constitute state action
ii. ENTANGLEMENT EXCEPTION - the private conduct is so entangled w/
state they essentially become one body.

d. PUBLIC FUNCTIONS EXCEPTION

i. Company town – Marsh v. Alabama (corporation wholly owned town and town
outlawed distribution of religious literature)
1. The more an owner, for his advantage, opens up his property for use by
the public in general, the more do his rights become limited by the
statutory and constitutional rights of those who use it.
2. Town is freely accessible, w/ a commercial center – not just residential
(potential argument that a privately owned purely residential community
or camp may not be “state action”)
3. Balancing test btw “constitutional rights of owners of property” and
the right of the people to “enjoy freedom of the press and religion.”
a. The circumstances that the property rights were held by others
than public are not sufficient to justify the State permitting a
corporation to govern a community of citizens so as to restrict
their fundamental liberties thru the enforcement of a state statute.
ii. Speech in shopping centers
1. Amalgamated Food v. Logan Valley (note Hudgens)
a. Ct. compares Marsh business block and the shopping center –
both have unrestricted access, commercial businesses, “look
public”
b. Picketers were protesting a particular store in the mall.
i. Union picketers would have been deprived of all
reasonable opportunity to convey their message to
Weis if they had been denied access
c. The mall is the functional equivalent of a “business block”
and for 1st purposes, must be treated the same.
2. Lloyd v. Tanner (flyers in a mall dealing w/ protests to Vietnam War)
a. Marsh and AF do not apply when speech does not relate to
center’s operation (war protests).
b. There were adequate alternatives of communication (streets,
sidewalks right outside mall).
c. If Ds were allowed to pass out flyers this would be a significant
infringement on property rights w/o enhancing their 1st rights.
3. Hudgens v. National Labor Relations Board (dispute involving one
particular store, but picketed in open area and parking lot)
a. Overruled AF: shopping is NOT like a corporate town,
therefore shopping centers can make any regulations they want
regarding speech.
b. General rule: time, manner, place restrictions OK, not content.
c. Follows Lloyd case.
iii. Private property used for public purposes - parks - Evans v. Newton
1. Will called for park to be operated in discriminatory manner.

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 a. State was original trustee but it was switched to private trustee to avoid
state action.
2. State courts that aid private parties to perform a public function on
a segregated basis implicate the State in conduct proscribed by 14th.
3. Argument that a park is “municipal in nature” would probably fail today
b/c of the current requirement that the function be “traditionally
exclusive” to the govt.
iv. Function traditionally “exclusive” domain of govt. (Rehnquist era)
1. Utilities – Jackson v. Metropolitan Edison Co.
a. Privately owned utility licensed and regulated by the state
was NOT a performance of a public function.
b. Court rejected argument that all heavily regulated businesses
“affected w/ a public interest” should be treated as exercising PF.
c. Dissent (Marshall): service “uniquely public in nature” is PF, but
mere existence of govt. regulation is not enough.
2. Nursing homes – Blum v. Yaretsky
a. Operating a nursing home, including making decisions about
patient care, was NOT a public function.
b. Majority argument: activity must be one which the state is
required to provide by statute or state constitution.
3. Private school – Rendell-Baker v. Kohn
a. Operation of a private school, even one whose income comes
primarily from public grants, is NOT a PF.
b. Education was not the “exclusive” prerogative of the state.
4. Elections – Terry v. Adams
a. local democratic party held pre-primary which generally elected
ultimate winner but disallowed black voters
b. State permitted an unofficial election to usurp role of official primary –
election of public officials is a public function

e. ENTANGLEMENT EXCEPTION
i. The constitution may apply to private conduct if the govt. affirmatively
authorizes, encourages, or facilitates private conduct that violates the
constitution.
1. ALLOWANCE ISN’T ENOUGH!!!!

JUDICIAL SYMBIOSIS REGULATION/LICENSING SUBSIDIES

PROCESS
Shelley v. Kramer* Burton Moose Lodge Norwood
Lugar* - AMA Metro Edison Rendell-Baker
Edmondson - Rendell- AMA Blum
Baker Rendell-Baker - Brentwood
- Blum Blum (no state action)
i.

ii. Judicial Process

34
 1. RULE: the action of state courts and of judicial officers in their
official capacity has long been regarded as action of the state w/in
meaning of 14th.
a. Shelley v. Kramer - enforcement by state courts of the restrictive
covenants is an action of those States that denied Ps the equal
protection of the laws.
b. Flaw in the case: ultimately everything can be made state action
under the rule.
2. Joint participation – Ex. prejudgment attachment
a. Private parties’ joint participation w/ state officials in the
seizure of property is sufficient to characterize “state actor”;
therefore, creditors’ failure to follow rules of due process was
discriminatory. He has to play by same rules as state if he
uses their process.
i. Lugar v. Edmondson Oil Co (Ed sought prejudgment
attachment of certain of P’s property. Clerk of court
issued writ, then executive by sheriff)
ii. B/c Ed acted together with clerk and sheriff, Ed’s
conduct in attachment was state action.
b. Lugar two-step analysis:
i. Deprivation must be caused by some exercise of
some right or privilege created by the state.
1. can’t accomplish goal w/o using govt. process
ii. Party charged w/ deprivation must be a state actor.
1. Look at: extent to which actor relies on govt.
function
2. Whether actor is performing a traditional govt.
function
3. Whether injury caused is aggravated by
incidents of govt. authority
c. NOTE: There mere fact you go to govt. for a little help, not
entanglement; must use full govt. process.
i. Distinguish: Flagg Brothers - self-help repossession
was not state action, due process not required.
3. Joint participation – Ex. Preemptory juror challenges
a. State action exists when private parties make extensive use of
state procedures w/ the “overt, significant assistance of state
officials”
b. When a private litigant (either civil or criminal) uses
peremptory challenges to exclude jurors on racial grounds,
this conduct constitutes state action and violates EPC.
i. Edmondson v. Leesville Concrete Co (Ed invoked 7th
right to trial by jury – thereby having voir dire)
ii. Background: Batson v. KY – no preemptory challenges
(excusing prospective jurors w/o cause) in a
discriminatory fashion in criminal cases.
iii. Symbiosis
1. Mutually beneficial relation between state and private discriminator
– each benefits from the other’s conduct.

35
 2. If the state has insinuated itself into a position of interdependence w/ the
lessee (private actor) the proscriptions of the 14th must be complied w/ by
the lessee.
a. Burton v. Wilmington Parking Authority (Parking Authority
(state) houses a private restaurant inside that discriminated)
i. The restaurant is operated as an integral part of a public
building devoted to pub. Parking.
ii. The markings on the building of the city leads the people
to believe that the city is condoning the behavior
iii. Symbiosis – Restaurant was essential to successful
operation of overtly open public parking garage.
iv. State benefited heavily from the lease – the property was
a public property that leased out to private entities
3. See also:
a. AMA
b. Rendell-Baker
c. Blum

iv. Government regulation/licensing

1. General Rule: govt. licensing and regulating is NOT sufficient for a
finding of state action, unless there is other govt. encouraging or
facilitating of unconstitutional conduct.
2. Licensing – Mere fact state grants a license to an entity does not
transform the latter’s conduct into state action.
a. Moose Lodge v. Irvis (Black was denied service at private club.
Claims that b/c state issued liquor license act was sufficient for
state action.)
i. Symbiosis – could ML exist w/o liquor license?
1. Cf. Burton – ML is a private club in a private
building.
ii. States must “significantly” be involved
3. See also Metro Edison – Despite intense regulations, actions by
“natural” monopolies (utility co.) will not generally be deemed state
action.
4. Need more than approval and acquiescence of the State – look for
coercive power or encouragement.
a. AMA v. Sullivan (State permits employer or insurer to w/hold
payment for disputed worker’s comp claims while being
reviewed. Ps allege violation of due process b/c there was no
pre-deprivation notice and no opportunity to be heard.)
i. Party’s mere use of the State’s dispute resolution
machinery, w/o the overt, significant assistance of
state officials, cannot be considered state action.
ii. Mere permission to do something is different than
encouraging to do something.

v. Government subsidies
1. One could say govt. would have more of an obligation to ensure
constitutional rights when govt. offers its money b/c it can apply its own
conditions to its uses. Ask what the money means.

36
2. If the school engages in discriminatory practices the State, by
tangible aid in the form of textbooks, gives support to such
discrimination – STATE ACTION.
a. Norwood v. Harrison (Ps allege that certain private schools
excluded students on the basis of race and that by supplying
textbooks to the students attending the schools, Ds have provided
direct state aid to racially segregated education.)
i. Ct. says the State probably had good intentions, but this
doesn’t negate the fact that violated a constitutional
duty.
ii. Racial discrimination is barred by Constitution and a
State may not induce encourage or promote private
persons to accomplish what is constitutionally forbidden
to accomplish.
3. Operation of private schools that receive public funding is not
necessarily a state action.
a. Rendell - Baker v. Kohn (private school receives grants; school
is firing employees w/o due process)
i. State does not regulate personnel decisions and policies.
This leaves entities independent of state – court finds
that this breaks the connection.
ii. The decisions to discharge Ps were not compelled or
even influenced by any state regulation.
iii. Dissent: nexus is so substantial btw school and State that
the school’s action must be considered state action.
1. Financial dependence on the State; school is
heavily regulated and closely supervised by
State; school is performing statutory duty of
State.
2. C/A: Majority: although the state dominates
education, the state does not do so to preclude
others from having their own educational
enterprises – their dominance is not exclusive.
4. No state action because individuals maintain discretion and where
these decisions were made by independent private entities based on
professional standards not est. by the State.
a. Blum v. Yaretsky (Medicaid patients’ challenge of decisions by
nursing homes in which they reside to discharge them.
b. Test:
i. Must be a close nexus
ii. State must have exercised coercive power or
provided encouragement (not just approval or
acquiescence)
c. Dissent: state action  state est. system of treatment levels and
review in order to further its own fiscal goals and the state
prescribes w/ as much precision as is possible the standards by
which individual determinations are to be made (stronger
argument I think).
5. Regulation of interscholastic athletics w/in a state.

37
 a. Even though high school athletics w/in a state was regulated
by a nominally private association, the association was a state
actor due to extensive participation of states entities in
association’s affairs.
i. Brentwood Academy v. Tenn.
1. 84% members were public schools.
2. Entwinement: links btw state and private group
are so extensive.
3. If a state formally recognizes the role played by
a private association in a particular type of state-
organized activity, that recognition will make it
more likely the assoc. will be state actor.

vi. Initiatives encouraging violations of rights

1. Ballot initiatives and referendums and their relation to state action
a. If an amendment or statute encourages discrimination it may
be deemed invalid. People can not be given the authority to
effectuate illegitimate objectives.
i. Reitman v. Mulkey (D said Ps claim of denial of rental
b/c of race was void on grounds of a statute, which was
intended to allow private sellers to discriminate in the
housing market.)
ii. Right to discriminate was “embodied” in state’s basic
charter, immune from all regulation at any level of state
govt. There was express constitutional authority.
iii. Dissent: statute does not go against 14th – voters utilized
a procedure in Cal. Constitution.
1. Action was adopted in most democratic of
processes.

CHAPTER 6: ECONOMIC LIBERTIES – SUBSTANTIVE DUE PROCESS

A. EARLY HISTORY OF SUBSTANTIVE DUE PROCESS
a. Fifth (federal) and Fourteenth (State) Amendments contain due process clause
i. due process clauses were originally understood to protect procedural due process
ii. procedural due process-procedures that government must follow when it takes
away life, liberty, or property
iii. substantive due process-whether the government has an adequate reason for
taking away life, liberty, or property
b. Slaughterhouse Cases rejected substantive due process, but a few years later there were
major pressures to review the substance of state economic regulations.

B. RISE OF SUBSTANTIVE DUE PROCESS

a. Enactment of 14th amendment
b. Laissez-faire attitude following Civil War – min. govt. interference w/ business.
c. Two decisions where S.Ct. sustained regulations, but indicated willingness to engage
in substantive review in certain circumstances.
i. Munn v. Illinois – upheld law regulating rates charged by grain elevators, but
indicated that in “mere private contracts” judiciary would determine if
regulations were “reasonable.”

38
 ii. Mugler v. Kansas – upheld ban on alcoholic beverages, but indicated that
legislation will only be valid under states “police power” if it is truly related to
protection of public health, safety or morals, and only if it did not violated rights
secured by fundamental law.
d. 1897 Court finally used substantive due process to invalidate a statute.
i. Allgeyer v. Louisiana - Court struck down state law which prohibited anyone from
obtaining insurance on state property from any company not licensed in state
1. Law violated 14th b/c it prevented freedom of contract.
2. Guarantee of “liberty” protected not only physical liberty, but also such
intangibles as right to live and work where one wishes, to earn a
livelihood, and to enter any Ks necessary to accomplish these goals.
3. Trend of striking down lots of state legislation on due process
grounds!
e. Lochner v. NY - Court struck down state law that limited baker’s hours to ten per day and
sixty per week as violating right to contract (fundamental right to contract).
i. Lochner begins era of scrutinizing state regulations that deny life, liberty or
property - look for reasons!!
ii. Heightened scrutiny test:
1. Very close “fit” between statute and the goals which it was to serve.
iii. Lochner era decisions
1. Maximum work hours: Lochner statute invalidated, but court seemed
willing to allow laws where it found that the class needed special
protections.
a. Women: Court sustained max hour law for women in Muller v.
Oregon.
b. Note: this is Phase 2 CC – era of laissez faire – get govt.
regulation out!
2. Minimum wages: Struck down minimum wage law for women in
Adkins v. Children’s Hospital (freedom of K grounds).
3. Reconciling the two: maximum hour laws promote general health
objective and minimum wage laws only lessen economic inequality.
Court is more willing to accept laws that perform state police powers but
shuns laws that regulate economics

C. MODERN APPROACH TO ECONOMIC SUBSTANTIVE DUE PROCESS

a. Decline of Lochner: 1930s Phase 3 hit a screeching halt –b/c of Depression, Court was
forced to reexamine lasseiz faire. Some govt. regulation became necessary. New Deal
programs convinced many people of need for aggressive legislative programs to ensure
nation’s economy. Problem: Roosevelt’s court was stuck in Phase 2 laissez faire -
substantive due process was a big deal. Court must rethink its position. Court-packing
plan – forced justices to change opinion in fear of losing job  due process doctrine
chipped away, therefore, a greater deference to legislative intervention in economics.
i. Nebbia v. NY – Court upholds state law regulating milk prices.
1. Lochner is NOT overruled, but court has given deference to the state.
2. Court says “as long as reason given is not unreasonable, arbitrary or
capricious, court is OK w/ it.”
3. The standard of scrutiny is lowered.
ii. West Coast Hotel v. Parrish – Court overrules Adkins by upholding a state
minimum wage law for women.

39
 1. Enabling workers to obtain a living wage is a legitimate limitation on
freedom of K.
iii. Carolene Products (federal reg. attempting to prohibit shipment of filled milk)
1. Under Lochner govt. would have no business doing this – milk producers
have a right to pursue their interests.
2. In this case, court upholds regulation, buying into argument that the milk
is bad.
3. NEW STANDARD: Presumption of constitutionality for economic
regulations; if state can show a rational basis for their law, law is
upheld.
a. Footnote 4: scrutiny is lowered to rational basis for general
economic regulations. However, in the case of insular and
discrete minorities, there may be a necessity to use a higher level
of scrutiny. Modern civil rights movement is born – if state
wants to regulate race or gender scrutiny is heightened.

b. MODERN APPROACH
i. Court will uphold economic regulation as long as there is a minimally
rational relation between the means chosen and the end being pursued
(assuming the objective being pursued falls w/in state’s police power)
ii. Presumption of constitutionality unless the legislature has acted in an
“arbitrary and irrational” way.
iii. NOTE: No state law has been defeated since 1937 on economic substantive due
process grounds.
iv. Recent cases:
1. Court hypothesizes reasons which would support legislature’s action
even though there is no evidence whatsoever that these reasons really
motivated lawmakers.
a. Williamson v. Lee Optical – (Court upheld state law preventing
opticians from fitting eyeglass lenses into frames).
2. Court sometimes doesn’t even weigh the decision of the legislature if it
thinks the law is “economically unwise.”
a. Ferguson – (Court upholds state law prohibiting non-lawyers from
debt-adjusting).

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