Congressional Legislative Power

I.

Unlike state power, Congressional power is not plenary: federal legislation is only constitutional when it is
enacted pursuant to an enumerated power
a. Commerce Clause (1)
i. What is the thing Congress is regulating?
1. Channels (or carriers) of interstate commerce (waterways, trains, roads) [X must be a
means for commerce to travel from state to state]
a. Gibbons- State of NY law granted exclusive monopoly to one operator of
steamboats to run ferries from NY to NJ. Another operator wants to run ferries
as well and maintains he has right under federal law as vessels in the coasting
trade. Congress vetoes NY law; within power (2)
b. Shreveport state regulated rates of train travel w/in state to be cheaper than
those charged interstate; Held: Congress has power to regulate interstate and
intrastate commerce to foster and protect interstate commerce (carrier runs
across state lines) (2)
2. Goods/services traveling in interstate commerce [X must be bought or sold or frequently
transferred over state lines]
a. Champion- Federal statute regulated transportation of lottery tickets (good) no
crossing state lines (2)
b. Darby- services [actual thing moving]
i. Darby indicted for violating Fair Labor Act which prohibits shipping
goods in interstate commerce that were created through labor that does
not abide by minimum wage and maximum hours standard Court
upheld Act --- If good (thing) is being shipped in interstate commerce,
Congress can regulate anything regarding that good, such as how it is
produced - Application of Champion doesnt matter what the motive
of Congress is) (3)
c. Not within commerce power:
i. Dagenhart (The Child Labor Case) (1918) [Day] (142-144): Congress
set child labor laws that said products cannot be shipped in interstate
commerce if they are the product of child labor. Held: Congress cannot
regulate this court looked at real object of regulation, which was
focused on child labor [Overruled] (2-3)
3. Intrastate (economic) activity with close & substantial relation to interstate commerce
(those activities that would obstruct interstate commerce if unregulated, particularly
when aggregated with others) [Even if intrastate activity has an interstate impact, only
intrastate activity of an economic type is subject to federal regulation.)

a. Congress has power:

i. Jones & Laughlin [overrules Dagenhart]: Steel Corp. violated National
Labor Relations Act by firing members of the union based on age. Held:
Employment decisions affect interstate commerce because an employee
strike disrupts sale and price of steel and has the potential of
transporting labor. Employment within Steel Corp. affects the whole
country because the corp. is 4th largest steel producer in the country (3)
1. Unlike in Darby, Congress didnt regulate product itself; but can
regulate this (labor dispute) although this deals with
manufacturing and production of product through labor of its
employees
ii. Wickard- Held: Congress may regulate the amount of wheat that
farmers grow for their own home consumption. (3-4)
iii. Heart of Atlanta: Hotel refused service to African-Americans in
violation of Title II of Civil Rights Act. Held: Racial discrimination has
substantial disruptive effect on commercial intercourse (4)
iv. McClung: McClung restaurant allowed only take-out services, but
refused dining service to African Americans, violating 1964 Civil Rights

Act. Held: Restaurant is substantially affecting interstate commerce

because by refusing = fewer customers = less food sold = less food
bought by restaurant (4)
b. Congress does not have power:
i. Lopez: Gun-Free Zones Act of 1990 federal offense for any individual
to knowingly possess a firearm at school. Held: This is not substantially
related to interstate commerce. This not an economic activity and
therefore does not fall within commerce. (4)
ii. Morrison: VAWA = federal civil remedy for victims of gender-motivated
violence. Thing Congress is regulating = Gender-motivated violence.
Held: not an economic activity; therefore, Congress does not have the
power to regulate (5)
ii. Sebelius: Commerce Clause does not permit Congress to regulate inactivity, even if that
inactivity has serious interstate economic consequences in the aggregate (unless the participant is
already engaged in some sort of activity in the relevant market)
b. Tax Clause - Article I, Sec 8, Clause 1 (7)
i. Most will be legal and w/in tax power [Kahriger- regulating gambling], but some skepticism
developing recently [Sebelius]
ii. Does it raise revenue?
1. Even if it does, may not be enough
iii. Is it exceedingly heavy?
1. Cannot prohibit conduct entirely
2. If you owe 90$ of your income in taxes probably not a tax under old view (distinction
between tax and penalty)
iv. Does it punish a violation of law?
1. Must be a tax on a lawful activity; not an unlawful activity
v. Note: Not plenary doesnt include power to jail
1. Child Labor Tax Case: Held: Child Labor Tax Law unconstitutional b/c tax is more like
penalty (motive matters); Kahriger: Held: Regulating gambling, constitutional broad
authority (motive does not matter) (7)
c. Spending Clause - Article I, Sec 8, Clause 1 (8): Congress has the power to tax, and to spend that
tax money for the general welfare, and it could certainly offer to fund (STATE/DEPARTMENT) that
voluntarily changed their practices in ways designed to avoid the (problem Y Congress is trying to fix)
i. If Congress is just spending, its probably fine (broad authority)
1. Congress may spend for the General Welfare, and if Congress considers the purchase
of vaccine to be within the general welfare, courts will not review that decision.
ii. If its conditional spending [The money be spent ONLY if the state does X?], must:
1. Be in pursuit of general welfare
a. Easy Congress knows what this is
2. Condition has to be unambiguous states must know what they are agreeing to
3. Condition must be
a. Related to the target of the spending; AND
b. Reasonably calculated to advance purpose of program [Dole- highways &
drinking age] (8)
4. Not be coercive (that is, to force states as a practical matter to sign up for the spending,
lest their residents tax money be excessively drawn to benefit only other states citizens)
[Butler] (8)
a. Super large grants can be coercive [Sebelius]
b. Recipients must feel free to say no
d. Necessary & Proper Clause - Article I, Section 8, Clause 18 (5)
i. Whatever Congress is doing just needs to be rationally related to what needs to be done under
the enumerated powers [Comstock] (Necessary and proper to foregoing powers or any other
power granted to Congress, and all other Powers vested by this Constitution in the Government
of the United States, or in any Department or Officer thereof.)

1. Comstock is a very broad interpretation, but not all courts willing to extend this power to
everything; some extensions of power are simply not proper (even if necessary) (5)
2. Sebelius: Chief Justice Roberts understood the Necessary and Proper Clause to
encompass not all legislation rationally related to the exercise of legitimate
Congressional power, as in McCulloch v. Maryland, but to encompass only legislation
that is proper in form. (8-9)
a. CJ found that Congressional regulation of inactivity was not proper at least
in the context of a Congressional requirement to purchase. Though CJ was not
particularly precise in defining the contours of that which is proper, it seems
likely that the Court would find similar regulation of inactivity to be improper
here (b/c of following policy). If Congress can force individuals who are not
currently engaged in activity to submit to a required procedure, it is very
difficult to imagine what Congress would not have the power to require.
ii. Beware of looking for something that is necessary in abstract to do something Congress could
have done - Congress needs to have actually done something pursuant to an enumerated power
e. Treaty Power - Article II, Section 2 (9)
i. Treaties can give Congress additional authority, gives Congress power to legislate when would
not have that power absent the treaty; so, Congress has the power to do anything that is
rationally related to a treaty that has already been signed (through the necessary and proper
clause, Article I, Section 8, Clause 18)
1. Missouri v. Holland (1920) [Holmes] (203-205): State wanted to prevent game warden
from attempting to enforce Migratory Bird Treaty, which prohibited killing, capturing, or
selling any of the migratory birds included in the terms of treaty between U.S. and
Canada. Held: Congress had power to pass Act - Power to create treaties power
vested in the President and Senate by the Constitution (Treaty Clause, Art. II 2);
Follows that Congress has the power to pass laws that are necessary and proper to
executing the treaty (9)
f. Congressional Enforcement Power 13th & 14th Amendments (37-38)
i. 13th: Congress has power to legislate if abolishing badges and incidents of slavery against both
private and public actors
1. In enforcing the 13th Amendment, Congress can enforce substantively the abolishment
of slavery stated in amendment and has more power to eradicate badges and incidents of
slavery [The Civil Rights Cases- refusal of entry to theaters for African Americans not a
badge and incident of slavery, so Congress cannot force anyone to allow this] (38)
2. If Congress has already regulated the badges and incidences of slavery - the
necessary and proper clause might apply to extend that power
ii. 14th: Clause is an enumerated power, allowing Congress to remedy or deter violations of the 14th
Amendment, as long as the legislation in question is congruent and proportional to the actual
14th Amendment wrong [City of Boerne- struck down RFRA remedy for intentional religious
discrimination that required religious exceptions all over the country, Morrison- Violence
Against Women Act; Enforcement power must be applied against the states, not private
individuals] (38)
1. Congruence - width of scope [little broader, little narrower]: Scope of response - in
appropriate fields
2. Proportionality - in response to breadth, Congress could create appropriate measures to
deal w/ actual problem: Degree of response / deterrence / remedy / severity

Limits on Congressional Power

g. Federalism- 10th Amendment = structural constraint protecting idea of federalism and sovereignty of
states banding together to agree to the Constitution. (5)
i. Although 10th Amendment is itself just a rule of construction, it makes clear that state
governments retained their sovereign capacity even as the federal government was created by the
Constitution; also gives rise to the

ii. Anti-commandeering doctrine: the federal government may not commandeer the states
sovereign power, when it is acting in its exclusive role as a government, either as a legislature
[NY v. US] or as an executive [Printz]
iii. Rule: While Congress may regulate state actors in the course of enacting general regulations
broadly applicable to all [Garcia] Congress may not commandeer the sovereign apparatus of the
states to force the states to act in their governmental capacity at Congresss command
1. Printz: Congress CANNOT require state officials to undertake federal duties (officers
were acting as branches of state executive, not merely as private purchaser or employer)
(6-7)
2. NY v. US: Congress CANNOT require states to legislate (as sovereign entities) but can
incentivize states w/ $ (6)
3. Garcia: Congress CAN regulate state along w/ other entities (as an employer) as part of
broader federal regulatory scheme that also regulates similar private conduct (6)
iv. Political accountability*
h. Separation of Powers (12)
i. Nondelegation doctrine Article I, Section 1: legislature may not delegate legislative power
(12-13)
1. UNLESS Is there an intelligible principle guiding executive action?
a. SCOTUS has allowed legislature to delegate some policy decisions to executive
as long as include intelligible principle to guide the executive action - Just need
to give a hint of where to start in administering the action
b. Requisite intelligible principle lacks in two statutes:
i. Literally no guidance for exercise of discretion
ii. Conferred authority to regulate entire economy on basis of no more
precise standard than stimulating the economy by assuring fair
competition
2. Whitman: Clean Air Act- EPA must review the air quality standards every five years.
Intelligible principle: standard must be at level to protect public health. When congress
gives authority to an agency, Congress needs to detail how the agency is to perform.
Held: Within discretion of EPA to set air quality standards at level that is required to
protect public health (13)
ii. Bicameralism and Presentment Clause Article I, Section 7, Clause 2: Every bill which shall
have passed the House of Representatives and the Senate, shall, before it becomes a law, be
presented to the President of the United States
1. Formal process [Chadha, Clinton v. NY: line-item veto]: If president vetoes, goes back
to the house. President has to veto within 10 days. Court has determined that
bicameralism and presentment clause is ONLY way to make a law
2. Bicameralism legislative act of congress must be passed by both house and senate
3. Presentment before it can become law, it must be presented to president. If president
vetoes, may only become law if measure is re-passed by 2/3 majority in each house. If
president just sits on it and doesnt do anything, it becomes law if congress is in session
(if not in session, it doesnt).
4. Only applies to legislative action having purpose and effect of altering legal rights,
duties, and relations of persons outside legislative branch. [Chadha]
iii. Does this branch usurp anothers granted powers? (Is Congress exercising anothers power?)
1. Nondelegation: executive takes on legislative power (OK w/ intelligible principle)
2. Clinton v NY- line-item veto: executive takes on legislative power (President cant
legislate) (13-14)
3. Executive takes on judiciary power
a. Policy: Presidents declaration that something is unconstitutional is a
particularly stark assessment of the meaning of the law, likely to provoke
judicial territoriality likely intrudes on the judiciarys prerogative to deliver
conclusive assessments of the law
4. Steel Seizure: executive takes on legislative power (Domestic affairs President cant
legislate) (15)
5. Chadha: legislature takes on executive/judicial power (Need Bicameralism) (13)

iv. Does this branch impair anothers powers?

1. Background principle - is this the sort of thing that this branch is supposed to be doing?

Presidents Executive Power

II.

Does the President have this power?

a. Enumerated Powers Article II
i. Act as Commander-in-Chief: shall be the commander and chief of the army and navy.
ii. Grant pardons: shall have power to grant reprieves and pardons for offences against the US.
iii. Negotiate treatises (with Senate)
iv. Appointments power (w/ Senate consent; exception: Recess Appointments)
v. Take care that the laws be faithfully executed (power to execute any statutory authority): oath of
affirmation I will faithfully execute the office of the president of the US...
b. Inherent Executive Power
i. Foreign policy executive agreements foreign affairs w/ domestic consequences
1. Dames & Moore: Iranian hostage crisis. President Carter mandated (as an executive
order) that as part of deal to get hostages back, all litigation and claims with Iran had to
be terminated. Congress didnt explicitly authorize the Claims Tribunal, but Congress
never said President couldnt do it (15-16)
2. Curtiss-Wright: Company conspired to sell machine guns to Bolivia (engaged in armed
conflict in Chaco). Congress delegated power to president to issue proclamation making
illegal further sales of arms to warring nations. This is regarding foreign affairs, so
President gets to do it (16)
a. President alone has power to speak/listen as representative of the nation;
President has better opportunity of knowing conditions which prevail in foreign
countries; Traditionally its been OK
b. Congress clearly authorized President to do this inherent power unless
violates Constitution
ii. Recognition power
1. Zivotofsky: Congresss act stated that passport of U.S. citizen born in Jerusalem should
list Israel as place of birth. State department issued a passport in his name listing
Jerusalem as his place of birth. Only President has power to recognize (16)
a. Strong practice and tradition of pretending that President has power exclusively
iii. Rescind treaties w/o process
1. Goldwater: Senator Goldwater argued that rescission of a treaty required approval of 2/3
of the Senate; contended that just as the president cannot unilaterally repeal a law,
neither is it constitutional for the president to rescind a treaty w/o the Senate's consent
[Court- this isnt justiciable didnt decide on the issue but had practical effect] (17)
iv. Temporary Immunity
1. Clinton v. Jones: not for personal actions done before Presidency; only that which is
related to the Presidency, during his Presidency (17)

Limits on Executive Power

III.

Is the Presidents power limited by anything?

a. Time period for Recess Appointments (3-10 days not enough time) [NLRB v. Noel Canning] (14)
b. Domestic affairs w/ international consequences [Jacksons concurrence in Youngstown- Steel seizure
case] (15)
c. Does his power set up direct conflict with Congress?
i. Youngstown: Where the President acts with Congressional authorization, Presidential power is at
its highest. Where the President acts in the face of Congressional silence, the basis for
Presidential action is unclear, but the Court will often give the benefit of the doubt to the
President, particularly in foreign affairs. But where the President acts contrary to Congress,
Presidential power is at its lowest ebb, and only permissible if the President is acting under the
power granted by the Constitution itself

Judicial Power
IV.

Does the court have this power?

a. Enumerated powers - Article III
i. The power (and responsibility) to say what the law is
1. Construing what statutes mean and what the Constitution permits/requires
ii. Nonjusticiability [Goldwater] (17)
1. Power to decide not to decide
2. Have to look to other authority besides the courts to decide
3. Branches of government can decide for themselves
4. Textual commitment to coordinate branch
5. Lack of judicially manageable standards
iii. Case and controversies (standing) [Allen v. Wright, Lujan] (17, 18)
1. Real live dispute (not too early, not too late ripeness, mootness) [Allen v. Wright]
2. Adverse litigants
3. Concrete injury, cause, redressability [Lujan]

Limits on Judicial Power

V.

Is the courts power limited?

a. Congress can limit courts ability to hear cases Article III, Section 3 [Ex Parte McCardle] (17)

States Power
VI.

State power is plenary any power not vested in the federal government is left with the states

Limitations on State Power

VII.
VIII.

Explicit limitations in the Constitution Article I, Section 10

Federalism (9)
a. Supremacy Clause (9)
i. Constitution = Supreme Law of Land
b. Preemption: limits what states can do when Congress acts
i. 1. Express preemption (No state shall regulate)
1. Direct conflict: state law goes directly against federal law
ii. 2. Implied field preemption (Feds own the field) very rare
1. Regulated field so thoroughly that congress owns the field.
2. Silkwood: Held: State-authorized award of punitive damages arising out of escape of
plutonium from a federally-licensed nuclear facility is not preempted. Court finds that
Congress had no intent for forbidding state remedies for injury (no intent for field
preemption) (9)
3. Prigg: Federal govt intended to regulate field of slavery; so even if Congress never
passed act; states would have no authority to in anyway regulate anything involved in
slave trade, including protecting people (own citizens) from being abducted by slave
bounty hunters (10)
iii. 3. Implied conflict preemption (Impossible to comply with both)
1. State law requires one thing and federal law requires another
2. States cannot make a law that makes it impossible to comply with both state and federal
law
iv. 4. Implied conflict preemption (Frustrate purposes of law)
1. If state law frustrates federal law, will be undermining what congress set out to do
c. Dormant Commerce Clause (10-11)
i. Limits on what states may do that affects commerce among the several states. In orther words,
the dormant commerce clause only regulates state laws that themselves affect commerce.
ii. Because Constitution gives Congress power to regulate interstate commerce, that implies a limit
on what states can do even when Congress doesnt act

iii. Additionally, the dormant commerce clause only affects state laws where Congress has not
spoken directly on the issue, preempting state regulation.
iv. Analysis:
1. Did a state (or local government) pass this law?
a. If its a federal law enacted by Congress Commerce Clause
2. Could Congress have passed this statute?
3. Has Congress acted (i.e., is the state law preempted)? Did Congress regulate?
a. If Congress did act/regulate Preemption problem [Silkwood] (9)
b. If Congress didnt act/regulate Dormant Commerce Clause doctrine
4. Look to the type of regulation that Colofornia has created whether it is evenhanded
regulation that appears to apply across the board (as in Barnwell Brothers), or whether it
facially singles out commerce from out of state (as in Philadelphia v. NJ) [What is
legitimate state interest (OK- ecologic conservation, health/safety; NOT OK - protecting
local businesses from competition)]
a. Discriminate against out-of-staters
i. Probably not ok: is there any reasonably nondiscriminatory alternative?
ii. Strict scrutiny
iii. Hughes v. Oklahoma: States act making it illegal to transfer minnows
for sale outside of state discriminatory & unconstitutional b/c other
reasonable nondiscriminatory alternatives available to achieve
legitimate interest of ecological conservation (10)
iv. City of Philadelphia v. New Jersey: NJ law prohibits importation of
waste that originated outside state; discriminatory b/c applies unevenly
to out-of-staters; NOT OK b/c there are reasonable nondiscriminatory
alternatives available to achieve legitimate interest of maintaining
health/safety of citizens (11)
b. Apply across the board (Nondiscriminatory)
i. Probably ok: does burden on interstate commerce clearly exceed local
benefit? The states law will be upheld as constitutional as long as
the burden on interstate commerce does not clearly exceed any local
benefit, with a heavy thumb on the scale for upholding the statute
ii. Rational basis review
iii. Barnwell Bros: law limiting weight of trucks driving on intrastate
highways applied to everyone across the board not discriminatory;
also judicial deference to state highway regulations; burden < benefit so
not preempted by Dormant Commerce clause (11)
iv. Bibb: Mudguard law applied to everyone across the board not
discriminatory; but, burden > benefit so preempted by Dormant
Commerce clause (11)
v. Exception Market Participant Doctrine (10)
1. If state is itself participating in the market and discriminating against out of state
commerce, then we will allow the state to make the decision regarding who to buy from
and who to sell to
a. Participating in the market is different than just regulating something
2. Ex: UC schools charging less for in-state residents that out-of-state residents
vi. Many laws, in fact virtually all state laws, will affect interstate commerce; however not all of
them violate the Dormant Commerce Clause

IX.

Privileges & Immunities Clause (28-29)

a. State v. State privileges and immunities- Article IV, 2, cl. 1: The Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in the several States.
i. Applies to:
1. Constitutional rights (see Fundamental Rights analysis below): "Fundamental to the
promotion of interstate harmony" or "bearing upon the vitality of the Nation as a single
entity" articulate a fundamental right

X.

2. Important economic activities (such as ability to earn a livelihood) [Baldwin- right of

access to Montana state elk is not fundamental]
ii. Policy: Keep states from discriminating against each other (ANTI-DISCRIMINATION
principle)
iii. Two Step Analysis:
1. Activity must be sufficiently basic to the livelihood of nation
2. Restriction will be invalidated, unless it is closely related to advancement of substantial
state interest; that is the discrimination must be necessary to achieve a substantial govt
interest
iv. Baldwin: Different kinds of Montana elk-hunting licenses for residents and nonresidents; higher
fees for nonresidents. Congress stepped in and said that states can charge out of state hunters
more (not dormant commerce clause situation). Held: Equality in access to Montana elk is not
fundamental to promotion of interstate harmony (12)
v. Virginia v. Friedman (1988) [Justice Kennedy] (Supp. 56-58): VA will not admit lawyer to the
bar in VA w/o taking exam b/c she is not resident. Rule: If privilege or immunity is being
deprived by the state, court will look to see if it is closely related to advancement of state interest
[similar to strict scrutiny]. (12)
1. Fundamental right: choice of employment; VA has not shown how discrimination
achieves state objectives
b. Nation v. State - 14th Amendment: ...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...
i. National governments privileges and immunities:
1. Of national citizenship (the sorts of rights arising out of the fact that we have a national
government rights that states couldnt guarantee)
2. Right to petition Congress
3. Right to vote for national officers
4. Right to enter national parks, navigable waters
5. Right to be protected on the high seas
6. Right to travel (first modern addition to privileges and immunities clause since 14th
amendment and Slaughter-house)
ii. Protected by strict scrutiny if substantially burdened
iii. The Slaughter-House Cases: Louisiana state law granted monopoly to New Orleans slaughter
house. Held: Citizens of states (state citizenship) are different than citizens of US (national
citizenship). (28)
1. Purpose of 13th & 14th amendments = protect former slaves; rejected application of DPC
to protect right to practice ones trade
2. Narrow interpretation of privileges & immunities clause
Equal Protection (18)
a. The Equal Protection Clause of the 14th Amendment, is reverse incorporated against the federal
government through the Due Process Clause of the 5th Amendment
b. Government must treat similarly situated classes in similar fashion
i. Legitimate End:
1. There must be some good reason for the government to treat people differently
ii. Legitimate means:
1. The difference in treatment has to be related to the reason for the classification
2. *Note: Every government law separates people into groups
c. Inherently suspect classes [US v. Carolene Products Footnote]
i. If there is one group, discrete and insular minority, that is consistently in the minority and
legislation continuously affects them, the normal political process will not work
ii. Courts have authority and responsibility to step in on behalf of discrete and insular minorities to
ensure they are equally protected by the law apply heightened scrutiny
iii. Who are discrete and insular minorities? Usually treats immutable characteristics things you
cant change; those who cannot participate in relevant political process
1. Race, orientation, age, wealth
iv. Who is a suspect class?

1. Suspect class when have been saddled with disabilities or subjected to history of
purposeful unequal treatment or relegated to position of political powerlessness
v. Default: Rational basis rationally related to a legitimate state interest
1. Presume constitutionality; court will make up a state interest
vi. Rational basis with bite heightened scrutiny (disabilities, sexual orientation)
1. Prejudice and animus alone arent legitimate state interests: courts forego traditional
levels of scrutiny
vii. Intermediate Scrutiny substantially related to an important state interest
1. State action may be suspect; need actual interest specified
viii. Strict Scrutiny narrowly tailored to a compelling state interest
1. State action is suspect; need actual interest specified; Recognized compelling state
interests (22):
a. National security (?) [Korematsu]
i. Questions exist about tailoring perhaps but if country going to fall gov't may have interest in discrimination
b. Remedying specific past discrimination [Croson]
i. Easily: just depends on HOW SPECIFIC
ii. Individuals (Freedman's Bureau)
c. Diversity in higher education [Bakke, Grutter, Gratz]
d. Preventing racial isolation (?) [Parents Involved]
2. Gov't expressly discriminates against minority [Strauder, Korematsu] (23)
3. Gov't expressly classifies based on race without express discrimination [Brown, Cooper,
Loving, Johnson] (23-24)
4. Gov't expressly favors minority [Croson, Grutter, Gratz, Parents Involved] (24-25)
5. Facially neutral acts scrutiny depends; default: rational basis
a. No express distinction based on race rational basis
i. Unless: disparate impact & discriminatory intent strict scrutiny
b. With discriminatory intent (intent to treat differently) and effect [Yick Wo,
Lukumi Babalu] (26, 27)
c. With discriminatory effect but no discriminatory intent rational basis
[Washington v. Davis, Smith] (27)
d. Whats the classification at issue? Whos being treated differently?
i. Rational basis (18)
1. Default [Dukes]
2. Alienage* -- Classifications made by Congress (19)
3. Age (19)
ii. Rational basis with bite some sort of heightened scrutiny (19)
1. Disabilities [Cleburne] (19-20)
2. Sexual Orientation [Windsor-DOMA, SmithKline Beecham Corp- jury strikes] (20)
iii. Intermediate
1. Gender
a. Facial classifications intermediate
i. Frontiero: Women had to prove that husbands dependent on them to get
greater benefits. Service men automatically able to treat their wives as
dependents. Held: distinction unconstitutional. (20)
ii. US v. Virginia: VMI - single-sex school with mission to produce citizen
soldiers or men prepared for leadership in civilian life and in military
service. Important state interest: diversity in educational approach &
unique method would have to be modified if admitted women
Substantially related? No -- Creating VWIL was not comparable, based
on stereotypes, + no persuasive evidence that VMIs male-only
admission policy was in furtherance of state policy of diversity (21)
iii. Michael M.: Statute makes men alone criminally liable for act of sexual
intercourse; Important state interest: preventing illegitimate teenage
pregnancies; Substantially related? Yes -- Criminalizing one party (men)
can further incentive other party (women) to report; Criminal sanction

XI.

imposed solely on males roughly equalizes the deterrents on the sexes;

Risk of pregnancy is substantial deterrence for females (21)
b. Facially neutral rational basis
i. Geduldig: Disability insurance system pays benefits to person in private
employment temporarily unable to work because of disability not
covered by workmens compensation. Program excludes from coverage
certain disabilities that are attributable to pregnancy (21)
ii. Feeney: Massachusettss veterans preference statute provided that all
veterans who qualify for state civil service positions must be considered
for appointment ahead of any qualifying non-veterans. [No intent to
discriminate rational basis review] (21)
iv. Strict scrutiny
1. Race
a. Gov't expressly discriminates against minority
b. Gov't expressly classifies based on race without express discrimination
c. Gov't expressly favors minority
d. Facially neutral acts
i. No express distinction based on race
ii. With discriminatory intent (intent to treat differently) and effect
iii. With discriminatory effect but no discriminatory intent
2. Alienage* -- Classifications made by states
e. Is there a facial classification?
f. Is there some other indicia of discriminatory intent? (Intent to distinguish among groups) (Facially
neutral but has discriminatory intent).
i. If there is, apply appropriate scrutiny (degree of scrutiny).
Individual rights - Fundamental rights
a. Procedural Due Process (27-28)
i. Has there been a deprivation of life, liberty, or property w/o the right kind of procedures?
1. Deprivation - Intentional act
a. Daniels v. Williams: Held: inability to sue federal employee not a deprivation of
liberty interest in freedom from bodily injury (28)
2. Life - straightforward
3. Liberty or property - depends on state law; setting up expectations
ii. How we know what process is due?
1. Three-part balance [Mathews v. Eldrige] (28)
a. How important is thing youre being deprived of
b. How sure are we that existing process will deal w/ screw up
c. Cost of new process that would be better?
2. Protected Interests
a. Created by state law (and later, Constitution)
i. Legitimate expectation of:
1. Keeping job
2. Receiving welfare
3. Parole
4. Access to school
b. Substantive Due Process (29-36)
i. Judges do not agree about the proper level of specificity for defining fundamental rights, and the
choice of specificity can often determine the final outcome. More specific articulations amount
to greater constraints on the Court, limiting the ability of an unelected branch of government to
undo the work of a branch more responsive to the majority of the electorate, but will be less
likely to have a substantial history and tradition of protection. More general articulations will
have a more robust history but provide far less constraint.
ii. Plaintiff will want to present the right with some degree of specificity, so as to avoid judicial
concerns of policymaking unmoored from the countrys history and tradition
iii. Is there a fundamental right? (31)
1. Most of the 1st 8 Amendments ["Selective incorporation"]

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2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

Freedom from excessive punitive damages [BMW v. Gore]

Freedom to marry (ish) [Zablocki, Loving] (33, 34)
Freedom to be able to have children [Skinner] (33)
Freedom to get contraception (ish) [Griswold] (33)
Freedom to raise/educate children (ish) [Meyer, Pierce] (32)
Abortion [Roe- based on privacy right in Griswold, Casey] (34, 35)
Freedom to consensual intimacy at home [Lawrence] (36)
Most economic rights [West Coast Hotel] (31)
Paternity outside marriage [Michael H.] (34)
Assisted suicide [Glucksberg] (34-35)
a. These are all negative liberties - freedom from gov't intervention (not a
requirement for gov't to provide you with something)
iv. How do we know if it is fundamental (if not the above)?
1. In order to see whether this is a right is fundamental that is, whether it is essential to
our system of ordered liberty, so rooted in the traditions and conscience of our people
as to be ranked as fundamental, and without it, would offend canons of decency and
fairness and accepted notions of justice PLAINTIFF can fall back on sources of law
2. The penumbras and emanations of the first 8 Amendments
a. Preserve a zone of privacy for intimate medical choices, as the Court found in
Roe (based on the privacy right in Griswold) and it is unlikely that the
Framers privacy concerns were restricted to abortion, rather than to all medical
procedures. And though Glucksberg rejected a fundamental right to assisted
suicide, it did distinguish the request for medical assistance with ending life
from a patients longstanding ability to refuse unwanted health care, indicating
that the Court might well believe the latter to be more fundamental.
3. Lawrence inquiry --- is there an emerging consensus?
4. Look to precedent (as done above)
a. These are just the way to start the analysis but is not completely determinative
b. Way you define the right matters a lot
v. If not a fundamental right, rational basis.
vi. If it is a fundamental right, does the government policy directly and substantially infringe that
right?
1. If yes, strict scrutiny.
a. Even if the law amounts to a direct and substantial burden, it might still
nevertheless be constitutional. Laws that directly and substantially burden
fundamental rights will be reviewed with strict scrutiny: Congress will have to
show a compelling state interest, and that the law is narrowly tailored to that
interest.
2. If not a fundamental right, law gets rational basis review.
c. Equal Protection/Due Process Hybrids (36-37)
i. When the rights are super important but not fundamental Once state allows you to vote for one
of these offices, has to offer access on equal terms
1. Appeals for parental termination [MLB v. SLJ]
2. Education (for undocumented kids)
3. Voting
ii. Order of analysis:
1. Is there an equal protection claim flat out?
2. Is there a due process claim flat out?
3. If neither, is there a hybrid?
iii. There are really important benefits that the government doesnt have to offer at all, but if the
government does - must offer equally
1. If not offered equally default standard of review: heightened scrutiny

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