Constitutional Law Outline

Adoption of the Const:

o 1776 Declaration of Independence no framework for government, set of principles
o 1781 Articles of Confederation weak central government, lacked enforcement power for
basics like taxation and military
o 1787 Constitution Desire to consolidate power so as to realize the natural resource
potential from the geographically isolated and massive land area Essentially an
unprecedented experiment, bringing together such a large mass of people/land with
widely divergent interests and no longstanding common history/identity
Functions of the Constitution
o 1. Create government and divide power (separation of powers)
Articles 1-3: Power sharing agreement blueprint for future unforeseen problems,
requiring that the exercise of power be interactive between branches
Policy:
Rationale: Protect individual liberty + prevent government tyranny (deep
suspicion of centralized authority)
Critique: Slows government action These purposeful barriers can impede the
resolution of modern issues, which require more pressing and quick responses
o 2. Manage relationship between federal government and states (federalism)
Relevant sections:
Article 1 1 and 8 in combination with 10th Amendment: Congressional action is
valid only if explicitly authorized (the powers herein granted) and state action
is valid unless expressly prohibited
Article 6 Clause 2: Supremacy Clause This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof shall be the supreme
Law of the Land
Policy rationale for dividing Congress:
1. Tyranny of the majority Compromise between large and small states
2. Relieve tension regarding centralization of government
o 3. Protect individual rights
The articles offered very minimal protections
Exceptions:
o Article 1, 9, Clause 2: preserves the writ of habeus corpus = releases
prisoners whove been unlawfully detained, so acts as a safeguard against
arbitrary state action
o Article 3, 2, Clause 3: ensures trial jury
o Article 4, 1: out-of-state residents are entitled to same rights as in-state
residents
Rationale:
o Unnecessary where gov is not given express authority, rights are presumed
o Unwise Impossible to predict every individual liberty required to be in
writing. By listing some protected rights, future gov may refuse unforeseen
but necessary rights not on the list
Amendments:
For the most part, there must be government conduct for the constitution to
apply
XIII/13th = first to limit individuals by prohibiting slavery and involuntary
servitude
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Why accomplish these functions through a Constitution supreme law of the land +
difficult to amend (Article V = 2/3 vote in both houses + vote in state legislatures), so
that consent of the governed may not be subject to the short-term impulses of transient
majorities = Tyranny of the majority

Federal Branches of Gov

Judicial Branch
- Article 3
o

1: Vests judicial power to Supreme Court, and lower courts as Congress may establish
A judge appointed under Article III basically has life tenure although the language
refers to good behavior subject only to Congressional impeachment and
conviction (egregious conduct i.e. perjury, sexual abuse, obstruction of justice)
Cannot diminish salary So that congress cannot punish judges for making
decisions they dont like
2: Judicial power extends to issues arising under this Constitution, the Laws of the
United States, and Treaties cases involving interpretation of the Constitution

- Judicial Review (Power)

o

Article 3, 2, Clause 1: Does not explicitly authorize judicial review

Other interpretations + critique
Separation of powers Constitution should be self-regulating, sets forth
instructions to and requires an oath from the legislature to stay within its
boundaries
Unelected body the people should review legislative action via political
regulation = voting
The court may review
Executive conduct that is ministerial/non-discretionary = specific legal obligation
not prescribed by the Constitution (Marbury v. Madison)
Rationale: It is the essence of civil liberty that rights are not just symbolic, that
the government entitles you to a remedy for rights that are violated (even if
conduct is by executive branch)
Legislative enactments to determine their constitutionality + nullify those found to
be outside Constitutional bounds (Marbury v. Madison)
Rationale:
o The Constitution is a superior, paramount law, unchangeable by ordinary
means
o Interpretation is emphatically the province and duty of the judicial
department
o The text arising under the Constitution = Courts must apply the law
authorizing its jurisdiction, and so uphold the Constitution against a statute
that is repugnant to it + invalidate the statute
State court judgments (Martin v. Hunters Lessee)
Rationale:
o Structure of Constitution Congress has discretion in creating lower federal
courts, and if none were created, the Supreme Court would be essentially
powerless (little room for original jurisdiction) UNLESS review of state court
rulings is allowed
o Essential to ensure uniformity in interpreting federal law
Criminal Defendants (Cohens v. Virginia)
Rationale: state courts often could not be trusted to adequately protect federal
rights because offices and salary are dependent on will of legislature
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BUT The courts power is limited by what the Constitution prescribes, and that power
cannot be expanded by Congress (Marbury v. Madison)
CASES
Marbury v. Madison:
Original jurisdiction = authority for the court to hear the case first
Political acts = those acts vested in executive discretion by the enumerated
powers of Article 2
Form without substance = e.g. Judiciary Act purported to give the Supreme Court
authority to hear the case where not authorized to do so
Interesting note: Marshall could/should have
o Recused himself due to conflict of interest as Secretary of State for the
Adams administration, he worked through the night to have the commissions
signed and sealed.
o Avoided the Constitutional question by solely addressing the part of the
Judiciary Act stating that Supreme Court has appellate jurisdiction, not original
jurisdiction (and Marbury brought the case straight to SC)

- Interpretive Methodology
Not mutually exclusive, may be used simultaneously
It takes a theory to beat a theory, not enough to poke holes
When one theory leads to a bad result for your client dont gloss over or avoid the
weakness confront the weakness and argue why that should not be fatal for your
client
Important to remember for exam: are you asked to act as an advocate or judge?
Originalism: Based on original intent of framers
Premises: 1. the meaning of the Constitution today should be determined by the
original intent (state of mind) of the collective body that created it; 2.
Judges/scholars today can come to reasonable and reliable understandings about
this state of mind through careful historical examination of archival work; and 3. This
should be authoritative on judges.
Rationale: Consistent with
History
Separation of powers = Judicial branch implements, not creates, value choices
Democracy = Judges are unelected and unaccountable, Constitution should
evolve only via amendment by the electorally accountable legislature
Weaknesses:
Can be difficult to ascertain intent = which group of people should we identify to
determine intent + how should we interpret meaning when even the founders
experiences confusion in applying it just 8 years later
Impoverished version of equality = created centuries ago + purposeful difficulty
in amendment not always in line with our rapidly developing society and so
constrains judges rather than instructs them (e.g. technology,
interconnectedness, contraceptives, etc.)
Textualism: Based on actual words of law most rigorous and objective
Rationale: judges may not impute personal preferences into the law
Weaknesses:
Text doesnt answer all the questions! little to no recognition of un-enumerated
rights
Competing definitions
Undemocratic: Rigid standard constrains amendment (Article V) + Original
framers represented the interests of only a tiny fraction of the population

Process theory: Based on the procedural mechanisms that judiciary was designed to
protect
Rationale: The judicial branch, being unelected and thereby immune to majoritarian
preferences, is best to ensure that political/institutional processes respect the rights
of political minorities (while leaving substantive value choices to politically
accountable bodies) E.g. restrictions on freedoms of speech
Weakness: Not terribly objective in determining which categories apply in protecting
political minorities
Living constitutionalism/pragmatism: Based on costs and benefits of ruling
Rationale:
Judges should be sensitive to the desirability of social change, stability,
consequences, decisions of other bodies, etc.
The framers intended to use ambiguous language such that the document could
adapt and endure as its meaning liquidated over time
There are three types of language in the Constitution:
1. Fixed, easily discernible rules;
2. Abstract principles; and
3. Silence

- Argument techniques
o
o

o
o
o

Textual: see interpretation methodology

Structural: Analysis based on the overall structure of the Constitution and how the
document intended to set up a coherent and functional system = e.g. separation of
powers
In Heller, Scalia talks about the phrase right of the people within other portions of
the Constitution and asserts the same interpretation should be applied to each
provision citing that phrase
Precedential: prior case law
Institutional competence and process arguments: Legislature has better institutional
capacity to think about competing concerns/data in reference to constituents (particularly
locally) + Separation of powers
Originalist/historical: Intention of the drafters/enactors analyze the history of the
drafting and ratification
Look for: Concerns? Expectations? Rejection or acceptance of alternative wording in
different drafts?
Overlaps with textual analysis when the meanings of words have changed over time
Consider whether to use public meaning of ordinary people at that time in history
v. private meaning of the more highly educated drafters
Pragmatic/consequentialist: Forward looking should ask what decision will produce
the best result?
Perhaps strict interpretation may always create the best results, allowing people to
anticipate and rely upon fixed standards OR perhaps the framers intended to not
bind the judiciary by original intention, but instead to expressly make the
Constitution vague such that it may evolve with society
Weaknesses: institutional competence + democratic legitimacy
In Heller: the decision will force courts to make decisions on other current regulations
about who, what, when, where, and how guns are allowed to be possessed... e.g.
Convicted felons, registration, licensing, concealed carry in vehicles, sensitive places
like schools or playgrounds, commercial sale at gun shows, waiting period, etc.

o Examples
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E.g. Habeas Corpus Article 1, 9: Habeas Corpus may be suspended ONLY IF

required by public safety by a rebellion/invasion, but no explicit statement about
what body actually determines suspension
Argument for
o Executive authority:
1) No express limitation within Article IIs grant of executive power;
2) Naturally executive power, so not necessary to specify within Article
II 2-3;
3) Plainly for dangerous emergencies requiring a quick response, not
until Congress is called
4) Structurally appears within prohibitions, not grants of power, given
to Congress
o Legislative authority:
1) Appears in Article 1 which involves Legislative powers;
2) 9 lists prohibitions of Congressional power, so may be specified as
an exception;
3) Necessary and proper clause of 8
4) Separation of powers threat of the personal prerogatives of a
single executive official
E.g. Impeachment trial Article 1, 3, Clause 6: Who presides over the
impeachment trial of a NON-President official?
President: Specifies when the president is tried President assumed to
preside in all other cases
Vice President: Head of the Senate = body that presides over impeachment
trials, Conflict of interest prevents him from presiding over Presidential trial
Issue: what if the VP is on trial?
E.g. Second Amendment: A well-regulated Militia, being necessary to the
security of a Free State, the right of the people to keep and bear Arms, shall not be
infringed
Protects an individual right to possess weapons in case of confrontation (Heller)
Applies to state, local, and federal government (McDonald v. City of Chicago)
Uncertainty about how to evaluate 2nd Amendment challenges without an explicit
test/pronouncement by the Supreme Court BUT, since Heller, none of 200
regulations were struck down by federal courts.
District of Columbia v. Heller: Supreme Court invalidated a D.C. law that prohibited
possession of usable handguns in the home, as violating the Second Amendment.
Prefatory clause:
o Scalia: Gives insight to purpose. Does not limit or expand the scope of the
operative clause and does not suggest that was the only reason Americans
valued the right
o Stevens: The preamble informs the meaning of the remainder of its text,
identifying and limiting the right so that the entire text refers to militia. It
should not be treated as mere surplusage, for it cannot be presumed that any
clause in the constitution is intended to be without effect Marbury v. Madison
Right of the people:
o Scalia: structural reference to other portions of the Constitution, which refer
to individual rights and all members of the political community not only to a
subset of the people
o Dissent: the amendment already does apply to a subset, which Scalia even
acknowledges with his reference to restrictions on criminals
State Constitutions:
o Not comparable/similar enough to 2nd amendment text
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The drafters of the U.S. Constitution had available examples of language they
could have put in via state constitutions in existence at the time, yet chose to
not apply the same language regarding defense of individuals to the
Amendment, which insinuates the interpretation should be more restrictive.
o State constitutions created AFTER the U.S. Constitution also employ language
specifying individuals similar to the other states, which supports the
argument that the drafters would have written to that specificity if that is what
they meant.
Test creation postponed for future cases:
o Technical/procedural limits v. restrictive bans
o Breyers pragmatic interest-balancing inquiry:
Does the statute burden the right in a way that is out of proportion to
the statutes salutary effects/government interest
Proportional relation between the problem being solved and method
used to solve it
Problem that the statute is trying to solve is extremely grave + without
alternative solutions an extreme prohibition is acceptable
o

- Justiciability doctrines (Limit on Power)

Justiciability doctrines: judicially created limits on the matters that can be heard in
federal courts (answers who, when, and what may be heard with judicial competence)
o Origin: Supreme Courts interpretation of Article III 2 cases and controversies
The courts power is limited by what the Constitution prescribes, and that power
cannot be expanded by Congress (Marbury v. Madison)
Article III 2 set the ceiling of Supreme Court authority, not a floor, so
Unconstitutional for courts to assume more jurisdiction than authorized by the
Constitution BUT
Judiciary may police its own boundaries to ensure it stays within Constitutional
bounds
Prudential limits = not Constitutionally-based, but instead on prudent judicial
administration to balance the interests of the legal system (e.g. preventing the
overburdening of federal courts)
o Purpose:
assure that judicial branch will not violate the separation of powers
improve judicial decision making concrete controversies best suited for judicial
resolution
conserve judicial resources
o In exam:
Always need to run through these limits to see if court can hear case!!
As a threshold question, we need to determine if this case is even justiciable. It is
because none of the Justiciability limits apply [discuss the potential issues and why
these are satisfied]
Is there an issue regarding
Who: Party bringing suit lacks personal stake? Standing
What: Lacks actual dispute or effect of judgment? Prohibition against advisory
opinions
When: Injury occurred but no longer an issue? Mootness
When: Injury has not occurred yet? Ripeness
Prohibition of advisory opinions: Federal courts cannot issue advisory opinions
(interpreted from Art. III requirement for cases and controversies)
o Elements of a case and controversy:
o

1. Actual dispute between adverse litigants

Sec of State Thomas Jefferson: request for neutral advice on conflict between
France and England
2. Substantial likelihood that the court decision will bring about some change or have
some effect
Cannot be subject to review by the
o Executive Hayburns case: Congressional act directed court to rule on
veteran pension claims but stated that Sec of War could ignore the courts
decision
o Congress Plaut: Congressional act required the court to retroactively
reopen cases on which a final judgment had already been rendered, thereby
depriving prior judgment of its effect
Rationale: severs link between court decisions and outcome in the real world;
separation of powers
Note: courts must apply revised laws when reviewing judgments on appeal
Ripeness: Determines when a court can engage in pre-enforcement review of cases
o Elements:
1. Fitness for judicial decision (Abbott Laboratories)
Concrete enough understanding for judiciary to make an informed, competent
decision
2. Hardship to parties of withholding court consideration (Abbott Laboratories)
Degree of hardship / unattractiveness of choices or level of constraint
Likelihood of harm or statutory enforcement (Poe v. Ullman) / inevitability (RRRA)
Be able to argue that the strength of showing in one criterion outweighs the
weakness on the other!!!
o Rationale: need an adversarial posture to understand arguments fully + Article III
requirement for a live controversy (not just curiosity or interest
o Declaratory Judgment Act allows for pre-enforcement review and authoritative
pronouncements on Constitutionality of statutes
o Problems: A person might
Unnecessarily obey an unconstitutional law + refrain from conduct that is
Constitutionally protected OR
Violate a statute, confident that it will be invalidated + then unsuccessfully mount a
Constitutional challenge and be punished when the law is upheld
o CASES
Poe v. Ullman: giving information about birth control was illegal
Must have a real threat of enforcement before a federal court may adjudicate the
constitutionality of a statute
Alternative choices for plaintiff couples: Stop having sex, risk terrible medical
consequences, or violate the law and hope they dont get caught
Regional Rail Reorganization Act cases: If the operation of a statute is patently
inevitable, it is irrelevant that there will be a time delay
Mootness: Plaintiff must present a live controversy at every stage of suit case is moot if
anything occurs while a lawsuit is pending to end the plaintiffs injury (E.g. Death, settlement,
repeal of a statute)
Why a personal stake is important: A dispute must have sharply presented issues in
a concrete factual setting and self-interested parties vigorously advocating opposing
positions
o Rationale: To prevent
Waste of judicial resources

Judgments having no effect on the parties (Assures that the dispute is capable of
judicial resolution)
Flexible doctrine: A number of exceptions to this rule
1. Wrongs capable of repetition, yet evading review
Elements:
o 1. Nature of injury = inherently limited duration irremediable within time
allotted for judicial review AND
o 2. Likely to happen to the same plaintiff again
Examples:
o Elections = Moore v. Ogilvie
o Pregnancy = Roe v. Wade
o NOT DeFunis = harm will be over + cannot be repeated to the party + more
flexible time
2. Voluntary cessation by the defendant, unless subsequent events make it
absolutely clear that the behavior could not reasonably be expected to recur
(Laidlaw)
Laidlaw: voluntary behavior on the part of the defendant does not ensure that
the injury will not happen again
settlement moot: plaintiff comes to terms that contractually bind the parties,
defendant is additionally liable for future suits
injunction is court-ordered (cessation of policy for particular plaintiff) not
voluntary cessation
3. Class action suits with live controversy (even after the named plaintiffs claim has
expired and class certification has been denied)
Geraghty: federal prisoner lost on the merits and then was released on parole,
but other federal prisoners facing parole had live controversy
The class itself (with a multitude of interests) is actually the plaintiff
4. Still have a live controversy where collateral injury remains, although primary
injury is over
still have a lesser but palpable injury
E.g. Criminal sentence is complete adverse consequences remain for person
charged convicted criminals may still challenge case even after released from
incarceration

Standing: Whether a particular person is the proper party to ask the court for judicial review
o Issue: Does the plaintiff have such a personal stake to assure a sharp, concrete
presentation of issues?
o Purpose: To ensure
1. A specific controversy and
2. an advocate with sufficient personal concern
o Elements:
To satisfy a constitutional standing inquiry, a plaintiff must assert a personal injury
fairly traceable to the defendants allegedly unlawful conduct and likely to be
redressed by the requested relief (Allen v. Wright)
Must be established.
o For at least one plaintiff (MA v. EPA)
o For each form of remedy sought (Lyons)
Injury, causation, redressability
1. Personal injury
o Concrete and individualized / not required to be exclusive, can be widespread
(MA v. EPA)
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Stigmatic injury must be directly affected (Allen v. Wright)

Not merely conjectural or hypothetical interest (Lujan)
Unlawful government conduct is insufficient, must show a
concrete/individualized harm (Lujan)
2. Conduct fairly traceable to injury (Allen v. Wright)
o Meaningful contribution is enough (MA v. EPA)
o Programmatic claim against gov action is disfavored (Allen v. Wright, Lujan)
Traceable: Specific laws/decisions
Uncertain: generalized discontent with gov action/program
Subsidizes unlawful activity? (Dissent, Allen v. Wright)
3. Injury is likely to be redressed by the requested judicial relief
o Not speculative/uncertain (Allen v. Wright)
o Injunctive relief Injury must be on-going, not finished (Lyons)
Broaden/narrow injury in analysis
Will injury continue until and unless plaintiff receives equitable relief?
o Probable (aka better than plausible) that ruling will reduce harm?
Based on third parties individual decisions? Unknown effect? (Allen v.
Wright)
Incremental step is sufficient to serve as relief (MA v. EPA)
o
o
o

Policy rationale for limiting standing:

Promote separation of powers
Critique: Can be undermined by undue restriction must preserve judicial role
Efficiency Preventing flood of litigation by those having only an ideological stake
Fairness ensures that people will raise only their own rights and concerns and that
people cannot be intermeddlers trying to protect others who do not want the
protection
Critique: one of the most confused and erratic areas of the law
Cases:
Allen v. Wright
Court ruled that the parents of black public school children lacked standing in a
suit against the Internal Revenue Service for failing to adequately monitor
racially discriminatory private schools.
Rule: A plaintiff must allege personal injury fairly traceable to the defendants
allegedly unlawful conduct and likely to be redressed by the requested relief
Rationale: The two injuries proposed failed standing
o 1. Stigmatic: government aid to discriminatory institutions
injury too abstract
Stigmatic effect of discrimination is basis for standing only to those
personally denied equal treatment, no evidence that any of the
children applied to and were refused admission
o 2. Impairs desegregation efforts of public schools
injury was concrete and serious BUT redressability was entirely
speculative
Causal connection broken because redressability depends on third
party decisions relative to decision by court
Plaintiffs must show that the judicial remedy (IRSs enforcement of tax
exempt status) would redress the injury (improve integration of these
public schools)

10

Dissent: Tax exemption equates to a subsidy, government inherently

discourages/encourages a particular activity by increasing/decreasing
costs of participation
Overly broad: Challenges an entire program established by a government
agency rather than a specifically identifiable violation of law

EPA
Facts: Court affirmed constitutional standing for this case brought by a group of
states and organizations claiming that EPA failed to regulate GHG emissions as
required under the Clean Air Act.
o At least one plaintiff must have standing
o Congress may not confer standing beyond Article III limits
o Injury: Concrete + individualized/unique Does NOT have to be exclusive
The fact that the harms are widely shared does not minimize the Plaintiffs
interest in the outcome of the litigation or deprive the P of standing
o Causation: The sector at issue meaningfully contributes to overall global
warming
o Redressability: Court does not have to provide complete relief given the
enormity of potential consequences regardless of the possible delay in
effectiveness of the remedy + whatever happens elsewhere, slowing the
harm is enough relief for this element
Lyons
Facts: Lyons sued for injunctive relief to prohibit the city from authorizing police
officers to apply a chokehold without justification against citizens who pose no
threat of violence.
Holding: lack of standing
Rules:
o Plaintiff must establish standing for each form of remedy sought
Effect: constricts ability to seek injunctive relief for constitutional
violations because standing is a threshold inquiry whereas discovery
would likely reveal the information necessary to uncover the
probability of experiencing injury again
o Injury on-going or finished? constrict or broaden inquiry in analysis
Finished when Lyons hit the ground cannot show a real and
immediate threat of personal future injury of this kind such that courts
ruling would provide a personal remedy
On-going:
Class argument: demographic reality creates a more direct line
between statistical history of discriminatory conduct by
government officials and Lyons particular subset
Permanent personal injury to plaintiff: psychological injury of
being subjected to police violence, this does not need to be
statistically supported
Lujan
Facts: Class action suit brought against secretary of interior for determining that
Endangered Species Act doesnt apply overseas. Congress allowed for individual
right to bring a claim, but this only confers a procedural right to bring a claim.
Article III Standing still requires a personal harm
Holding: lack of standing
Programmatic approach: challenge to a more generalized level of Government
action instead of attacking the separate decisions that allegedly caused them
harm.
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Rule: An abstract interest is not sufficient for standing need a coherent

connection between the plaintiff and purported loss
Statutory text analysis:
o Creates a cause of action procedural mechanism for people to bring suit
o NOT a substantive right that satisfies constitutional standing inquiry (injury,
causation, redressability)
o Rationale: separation of powers
o Exceptions: There ARE some statutes that create an individual substantive
right for standing
Fair Housing Act = statutory right to be free of discriminatory housing
practices
Federal Election Campaign Act = right to receive information about a
candidate

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Legislative Branch
- In the Constitution
Article I generally: federal legislative power
Congress may act only if there is express or implied authority to act in the
Constitution
All legislative powers herein granted shall be vested in a Congress
o 10th Amendment: states
States may act unless the Constitution prohibits the action
Powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively
o Supremacy Clause:
Article 6 Clause 2
This Constitution, and the Laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the authority
of the United States, shall be the supreme law of the land
Federal government is supreme over the states, and States cannot nullify or burden,
by taxes or other restraints, federal regulations they disagree with (McCulloch)
o Necessary and Proper Clause:
Article 1 8
Let the end be legitimate, let it be within the scope of the constitution, and all
means which are appropriate, which are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the constitution, are Constitutional
Congress has enumerated powers, but through the necessary and proper clause, may
choose the means to carry out its powers (McCulloch v. MD)
Compact theory of federalism:
o States are sovereign because they created the United States by ceding some of their
power and ratifying the Constitution
o Basically sees the Constitution as an illusory promise (in K law)
o Not a dead theory, but McCulloch definitively rejected and severely marginalized this
theory
McCulloch
o Court invalidated Marylands tax on the national bank
o Issue 1: Whether Congress has the authority to create the Bank of the United States?
Reference to history of banks creation (BUT natural and familiar does not mean
constitutional)
Supremacy clause (VI,2):
Rule: Federal government, though limited in its powers, is supreme in its sphere.
States may not nullify or burden constitutional exercises of federal power.
Rationale: Constitution was ratified by the people, not the states, so the people
are sovereign. State delegates were solely an administrative necessity.
Note: Marbury made judicial branch supreme in its sphere (separation of powers)
Necessary and proper clause (I,8):
Rule: Constitution grants Congress specific enumerated powers + the power to
choose any means not prohibited by the Constitution to carry out that lawful
authority (not an independent grant but rather means to an end)
Rationales:
o Structural: **We must never forget that it is a constitution we are
expounding**
o

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= The Constitution, created as a general framework, necessitates

inference so as to endure and adapt to future crises of human affairs
Placed in 8 which expands Congresss powers, not in 9 which imposes
limits
o Textual: Necessary = useful or desirable (dissent: = indispensable)
o Pragmatism: strict construction would impose a paralysis on Congress and
prevent its efficient / effective exercise of power
Issue 2: Whether Maryland had the authority to tax the bank?
The power to create the bank includes a power to preserve its existence meanwhile
the power to tax includes the power to destroy so the tax would interfere and
endanger the banks existence
Unfair for states to regulate those who have no representation in the state (some of
those who were being taxed were outside the state, and so lacked the ability to
oppose or benefit from tax)
Rule: States are limited in the ability to interfere with federal activities

The Commerce Clause (Power)

-

Analysis track:
o Congress doesnt have the power to enact any laws it wants
Article 1 8: The Congress shall have the power to regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes
o Quick historical overview
Commerce = Commercial intercourse at all phases of business (Gibbons v. Ogden)
Assessment of activity, not motives for regulation
Rational Basis Review (Wickard)
Court may invalidate legislation only if it is clear that there is
o no rational basis for a congressional finding that the regulated activity affects
IC or
o no reasonable connection between the regulatory means selected and the
asserted end
o Modern Test:
Only Scalia and Kennedy agreed on all three cases forming the governing law far
from unanimous and difficult to defend
Categories of activity that Congress may regulate (Lopez)
1. Use of the channels of IC
2. Instrumentalities of IC = people or things
3. Activities that substantially affect IC
Economic nature of activity?
History: Announced in Lopez, reaffirmed in Morrison, and maintained in Gonzales
Definition: the production, distribution, and consumption of commodities
(Gonzales)
Potential factors (Gonzales and Wickard)
o Interstate market exists somewhere for the commodity
o Could be diverted into interstate market
o Could influence price and market decisions
o Would undercut regulation over the larger class
o Removes some share of the market from IC
o Fungible
o Not just remotely connected with a commercial transaction (Lopez)
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At least in areas the Court regards as traditionally state regulated, Congress

cannot regulate noneconomic activities based on aggregate effect (Morrison)
Jurisdictional limits? (Morrison)
If deemed economic, apply class of activity aggregated effects test:
Congress may regulate de minimus and purely local activities if the class of
economic activity exerts a substantial economic effect on IC (Gonzales/Wickard)
Cumulative effect of particular class of activities, taken together (Wickard)
Rational basis review application
Arises only when purpose is listed: The legislative purpose and evidentiary
findings of the purported relation to IC assist the Court but are not determinative,
though court often defers to this evidence
Is there a rational basis for finding that regulated activity affects IC or reasonable
connection between means selected and asserted end?

CASES
o Heart of Atlanta: discrimination / motel activity assessment
Evidence supporting impact of discrimination on IC: uncertainty in ability to find
lodging a) impaired pleasure/convenience of traveling; and b) discouraged travel
within black community
RULE: CC power includes ability to regulate against any obstruction to IC regardless
of
o a) Whether obstructions also deemed moral and social wrongs;
o b) The local nature of business if substantial and harmful effect upon IC; or
o c) Alternative methods that Congress could have pursued
o Katzenbach: discrimination / family-owned restaurant nearby mass transit Aggregate
principle
Evidence: a) Substantial portion of the food served moved in IC, b) Sells less
interstate goods because of discrimination, c) Travel obstructed directly, and d)
Business/development generally suffered
Although appellees own contribution may be trivial by itself, this is not enough to
remove him from the scope of federal regulation where taken together with that of
many others similarly situated, his contribution is far from trivial
o Hodel: regulatory / surface mining reclamation rational basis review
o Lopez: regulatory / guns near schools invalidated
Noneconomic nature of the activity played a large role in the decision
Congressional findings about the conducts impact on the economy do not necessarily
make it const
Slippery slope would authorize a general federal police power
o Morrison: discrimination / civil damages for gender-motivated violence invalidated
RULE:
Economic nature of activity: At least in areas the Court regards as traditionally
state regulated, Congress cannot regulate noneconomic activities based on
aggregate effect
Absence of jurisdictional limits: Congress might have fared better if it had
restricted law to make connection with commerce more clear (e.g. trafficking of
women)
Rationale:
Absence of rational basis review, though never expressly rejects this standard

15

Slippery slope: aggregation would allow Congress to regulate any activity that
presents an aggregated substantial effect on employment, production, transit, or
consumption
Counter-argument: Cumulative national effect of violence against women a)
Absenteeism in the workplace, b) Increased rate of firing rape victims due to
residual effects, c) Avoidance of higher paying night jobs, and d) Constraint on
freedom of travel
Thomas concurrence: Substantial effects test is rootless and malleable it allows
Congress to police states under guise of regulating commerce
Wickard: commodities / controlling volume of wheat to avoid surpluses and low prices
valid
Ask: Would the failure to regulate the class of activity undercut regulation over the
interstate market in that commodity?
RULE: Congress may regulate the cultivation of a fungible commodity for home
consumption if there is an established interstate market and where leaving out that
aggregated class of activity would have a substantial influence on price and market
conditions
Gonzales: commodities / homegrown marijuana valid
RULES:
Economic nature: Regardless if production of a commodity is meant solely for
home consumption, it may be regulated by Congress if it has a substantial effect
on supply and demand within national market for that commodity and thereby
frustrates valid federal interest in regulation (or, in this case, elimination of entire
commercial good)
Relevant class of activity: Defined by statute if the class of conduct regulated by
the act is determined to be within CC power, any smaller subdivision within the
class may not be challenged So less likely to succeed in challenge against a
smaller class than that within statute
Economics: production, distribution, and consumption of commodities
Alternative avenues for changing the law:
Legally: Congress may choose to amend regulation
Democratically: Citizens may vote for supportive representatives
Rational basis review is back: Congress had a rational basis for finding that home
cultivation of marijuana would create a) enforcement difficulties with regulation and
b) concerns about diversion to illegal channels
Dissent: Requiring economic nature of activity creates a perverse incentive to
regulate comprehensively such that the class of activities assuredly encompasses
some economic activity

10th Am. Anti-Commandeering Principle (Limit on Commerce Power)

-

Even if Congress is acting within the bounds of the enumerated powers in Article I, the Court
reads the 10th Amendment to impose an external constraint and may strike down laws it
deems impermissibly commandeering.
This is an area with few guideposts, but the Court seems to consider the following factors (not
elements)
o Whether the federal law
1. Imposes coercive duties v. ability for state to opt out? (NY)
Permissible:
o setting standards where state may choose method
o attaching strings to federal funding
16

2. Requires an affirmative duty to action v. negative prohibition?

Means analysis: Does law require an obligation for the
o State Legislature to enact a federal regulation? (NY)
o State Executive branch to administer a federal regulation? (Printz)
Critique: most duties may be characterized either way think action v. inaction
3. Target only states v. generally applicable to both states and private parties alike?
Potential exception: general applicability . If the law generally applies to both
states and private parties alike then it likely does not target state gov in a way
that makes courts nervous about state sovereignty issues (Garcia, Conden)
Note: Compelling gov interest is NOT sufficient to excuse impermissibly
commandeering laws (NY)

Policy
o For 10th Amend operating as an additional constraint = states rights and federalism
1. Decrease likelihood of federal tyranny,
2. Enhance democratic rule by providing gov that is closer to the people Smaller
electorate elected reps more immediately accountable and responsive to public
desires
3. Allowing states to act as laboratories to experiment with new policies
Gov accountability (NY)
Courts responsibility for judicial review as set out in Marbury (dissent in Garcia)
o Against = separation of powers
10th Am operates as a reminder that Congress may legislate only with Const authority
Not the role of the judiciary Political processes operate as a sufficient safeguard
(Garcia)
CASES
o Garcia: fair labor standards act
Decided against using the 10th amendment to invalidate federal laws
Expressly overruled the test set up by National League of Cities (which invalidated
federal laws that interfere with traditional gov functions) because it was: 1.
Unworkable / elusive at best; and 2. Not in line with democratic self-governance
because it inevitably invites an unelected federal judiciary to make policy decisions
Rationale:
Political safeguard to state sovereignty: The principal and basic restraint on
federal power is that inherent within the structure of the political process. State
participation in federal governmental action ensures that unduly burdensome
laws will not be promulgated. Every senator and representative is beholden to a
particular constituency. There are no members of congress that have a national
affiliation.
Lack of evidence for a systematic concern: 1/5 of all state gov expenditures come
from federal grants, suggesting that state interests are being aggressively
promoted in federal process
Dissent (Powell):
That the political process USUALLY acts in state interests is not enough when the
process appears to have offended state sovereignty
The court has abdicated its Constitutional role for judicial review over legislature
o New York: Forced states to accept ownership of radioactive waste invalidated
Holding: The federal law impermissibly commandeers state governments by coercing
them to implement federal legislation re-emergence of judicial review.
Rule:
The federal gov may not directly compel state legislatures to enact federal
regulations
17

BUT Congress may still conscript states for federal agenda by encouraging a
particular regulation
o E.g. Set standards that state and local gov must meet
o E.g. Attach conditions on grants to state and local gov to induct state and
local actions
Factor to be assessed (but not a hard and fast component): Court distinguishes
Garcia as a generally applicable law that applies to state and private parties alike
Rationale: This would undermine gov accountability States may have interests not
in line with the entirety of states acting as Congress, and so individual states should
not suffer political repercussions as a result of executing unfavorable decisions not
made by that states legislature.
Printz: Forced officers to reasonably assess the legality of firearms purchased
invalidated
Rule: Federal gov may not coerce states officials to administer federal regulations
Rationale: impermissibly presses state executive officials to implement a federal
mandate
Historically: (particularly the early years) Congress had not exercised such power
Separation of powers (Faithful execution clause): Congress cannot circumvent
federal law enforcement by speaking directly to the state law enforcers
At least ostensibly, the principal of judicial minimalism dictates that judges are best
positioned to judge solely what is in front of them rather than opine upon a broader
rule
Conden: DMV and private suppliers cant disclose personal info without written consent
valid
Cryptic opinion unanimous and very short
Within CC power b/c states sell the personal info to individuals which generates
significant revenues for the states
Within 10th Amendment b/c
1. Coercive
2. Passive: negative prohibition of conduct, rather than an affirmative obligation
like NY and Printz Does not require the state legislature/executive to
enact/administer the law
3. General applicability: Does not apply solely to states Regulates states as
owners of databases and also regulates the resale of that information by private
parties

Taxing and Spending (Power)

-

Article I 8:
o Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, 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
Analysis:
o The taxing and spending clause confers an independent enumerated power (Butler)
o It has been interpreted very broadly, though not unlimited (Dole)
o Limitations (Dole)
1. Textual limit
In the pursuit of the general welfare
Court defers substantially to the judgment of Congress
2. Clear statement rule
Conditions must be explicit and unambiguous
18

3. Germane
Conditions imposed must be germane/related to the federal interest in particular
national projects or programs
4. Condition
Must be within constitutional bounds for states
Under the 21st Amendment, the States are free to implement a drinking age.
Therefore, when Congress induces the states to adopt a particular drinking age is
not unconstitutional behavior.
5. 10th Amendment
Cannot be unduly coercive

CASES
o Butler:
Facts: Federal act allowed the Secretary of Ag to set limits on production of certain
crops and to impose taxes on productions in excess of those limits; purpose: crisis in
ag production
RULE: Taxing and spending power is a free-standing enumerated power; its confines
are set in the clause which confers it, and not in those enumerated in 8
Court adopts Hamiltonian view
Madisonian view: Taxing/spending power must be confined only to further another
enumerated power
The holding and other analysis is irrelevant because the act applied to private parties
and so the 10th Amendment would no longer be implicated
o Dole:
Facts: SD Conditioned receipt of a small portion of federal highway funds based on
legal drinking age
State did not dispute first three restrictions
4. Condition within constitutional bounds for states
Under the 21st Amendment, the States are free to implement a drinking age.
Therefore, when Congress induces the states to adopt a particular drinking age is
not unconstitutional behavior.
5. 10th Amendment Cannot be unduly coercive
Here: Court refers to the small percentage of funds
Subsequent cases: have refused to strike down bargaining provisions that are
significantly greater amounts of money

Am 14 5 Enforcement Clause (Power)

-

14th Amendment
o 5: enforcement clause speaking to congress The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article
o 1: operative clause speaking to states
privileges and immunities clause: No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States
due process clause: nor shall any State deprive any person of life, liberty, or property,
without due process of law
equal protection clause: nor deny to any person within its jurisdiction the equal
protection of the laws
Analysis of authority granted to Congress by 5:
o Who may be regulated: states, not private parties (Morrison)
o Scope of power: Competing views
Broad (Katzenbach)
19

Court represents floor, not a ceiling Congress can enact legislation that
provides greater fourteenth amendment protection than what the judiciary has
recognized as deficient
Rules:
o Cannot undercut or dilute the rights recognized by the Court
o Must be plainly adapted to enforcing 1
o Consistent with the spirit and letter of the Const
Narrow (City of Boerne)
Congress cannot interpret the 14th Amendment to provide remedies that the
Court has not already identified as violating const rights. Legislation has to be
specifically directed to conduct already identified by the Court as unconstitutional
and in the way the Court sees it.
Congress may not redefine, expand, or enlarge the scope of the rights protected
by the 14th amendment
o Ends must be narrow: remedial, not substantive power
o Means must be preventative: Congruence and proportionality test

CASES
o Morrison: Who can be regulated?
Rule: The scope of 5 is constrained by the operative provision of 1, which speaks
only to states Congress cannot regulate private parties based upon the 14 th
Amendment
Rationale: This act is a civil remedy for private parties, has no bearing at all on states
or state officials
o Katzenbach v. Morgan & Morgan Scope of Congress 5 power / broad view
NY voting requirement about English
Rule: Congress may enact legislation so long as it is
o 1. Plainly adapted to enforcing the operative clause of the fourteenth and
o 2. Consistent with the letter and spirit of the Constitution
Rationale:
Deference to legislature via rational basis review It was for Congress to assess
and weigh the various conflicting considerations.
The narrow view would confine the legislative power to an insignificant role, to
prescribing remedies or methods available to further what the court has already
said.
o Boerne: Scope of Congress 5 power / narrow view
Facts: Religious Freedom Restoration Act required states to show the law enacted was
the least restrictive means of furthering a compelling state interest
Rule: Congress may not redefine, expand, or enlarge the scope of the rights protected
by the 14th am.
Constrains the legitimate ends of 5 power NARROW SCOPE
14th Amendment power is remedial, not substantive.
Congress does not determine WHEN the Constitution is violated
Limited to preventing or correcting Constitutional violations as the Court
sees it.
Marbury v. Madison: Congress is not given authority to determine what
grants of authority are given by the Constitution
Constrains the legitimate means PREVENTATIVE MEASURES
Preventative measures may be permissible if the act fulfills the
Congruence and proportionality test:

20

The measure adopted by Congress has to be

proportionate to the judicially defined constitutional
harm.
There has to be calibration between the magnitude of
Congress remedy and the problem addressed.
Bishop argues: RFRA is a reasonable means of protecting the free
exercise of religion as defined by Smith Smith left intact that targeting
religious beliefs and practices is unconstitutional
Court response: RFRA has out of proportion sweeping coverage that
requires most every law to have a compelling justification for
constraining religion
Example: abortion
Imagine Congress surveyed the landscape, examined the multiplicity of state criminal
prohibitions on abortion, and created legislation to prevent state criminal prohibitions
on abortion
Narrow: It would be acting outside the bounds of 5 because Court had not ruled on
the subject yet.
Broad: Congress could make this law by taking an expansive view of its protections.
By prohibiting a wide range of conduct; that Congress assures to a very high level of
certainty that that conduct which violates the Constitution will be protected against.

21

Intersection between Congress &

States and Localities
Preemption (Limit on Power)
-

Assuming that Congress has properly enacted a law, how does that federal law impact on
state and local law?
o Preemption invalidates a state law when it conflicts with a federal law
o Origins: The Supremacy Clause of Article VI 2
Classically arises when litigant wants to get around obeying a state law
Ways of finding pre-emption:
o 1. Federal law expressly preempts state or local law
Explicitly state in statutes language OR
Implicitly contained in statutory structure and purpose
o 2. Implied by a clear congressional intent to preempt state or local law
Conflict: between laws makes mutual compliance a physical impossibility
Obstacle: to the execution of the full purposes and objectives of Congress
Field: is so pervasively controlled by Congress that it excludes even supplementary
state regulations
Express preemption:
o Congress includes a preemptive provision within law precluding state or local regulation
o Key analysis:
Must determine intent define the scope of regulation
Broad/narrow construction of
Text of the specific provision
Structure and content of whole law
Prior legislative history
o Lorillard Tobacco
Facts: MA regulation on advertising and sale of tobacco. Federal law precluded states
from regulating advertising/promotion of cigarettes.
Court analysis:
Must give meaning to each element of the pre-emption provision
youth exposure to advertising v. smoking and health
o Intertwined and non-distinguishable
o Structural: ban on electronic media advertising showed that Congress
included restrictions on location of advertising that would impact youth
location v. content of advertising
o Text of preemption provision: ALL requirements and provisions of state
laws
o Structural: another section of the law includes a location-based restriction;
the internet
o Obstacle: would negate the purpose of the federal restrictions and warnings
Dissent:
Issue implicates the traditional police power of the states to regulate land usage
and protect the health/safety of minors Narrow construction preemption
provisions to give deference to States traditional police power
Here, purpose of federal law was to foreclose the waste of resources and ensure
uniform and clear advertising to inform public about dangers of smoking
No need to interfere with state limitations on location of billboards
22

Implied Preemption:
o Conflicts Preemption:
Direct conflict between federal law and state law; no need to inquire into
congressional design
Key analysis:
Physically impossible to comply with both level of exclusivity
Whether the federal law is seen as
o Mutually exclusive: sets the exclusive standard; inevitably may collide
o Not mutually exclusive: sets a minimum standard; represents the floor, not
the ceiling
Florida Lime & Avocado
Facts: Avocado growers and oil content CA requires stricter standard for
saleable avocados
There is a difference between the regulations, but this poses (rather than
disposes) of the issue
Holding: not mutually exclusive dual compliance is possible
o Obstacle Preemption:
Impedes the function of the federal law; obstacle to achieving federal objective
Key analysis:
Broad/narrow construction of
o Purpose of federal/state laws
o Division between federal/state regulatory authority
Pacific Gas & Electric Co.
Facts: CA nuclear waste disposal regulations conditioning construction of nuclear
plants on adequate means of disposal; halted any construction. Federal law to
promote development of nuclear energy.
Rationale:
o Field occupied by federal gov?
Safety solely federal domain; state cannot go against federal
judgments on safety
Economics within state domain; states characteristically govern the
economic feasibility for energy facilities
o Conflict with federal decisions concerning waste disposal?
Safety would go against the statutes objective
Economics unpredictably high costs or shutdowns to deal with
containing waste
o Obstacle/frustrates federal goal?
NO Congress has allowed states sufficient power in determining
economic viability of nuclear plants, even if that means stopping
development entirely and undercutting the federal objective.
o Field Preemption:
Congress clearly intended to fully occupy the field, leaving no room for even
supplemental state regulation
E.g. field of foreign affairs / immigration, naturalization, deportation
Key analysis:
Superior authority of federal gov in the field
Federal gov has enacted a complete scheme of regulation
Basic subject is identical
Scope of the field Congress intends to occupy?
Hines v. Davidowitz
23

Facts: Alien Registration Act of PA was enacted before federal act, and possessed
only additional, complementary requirements.
Why a field issue?
o No express preemption provision
o No conflict / mutual exclusivity
o No obstacle
o BUT added card carrying requirement, annual registration, and one dollar fee
Rule: States cannot, inconsistently with the purpose of Congress, conflict or
interfere with, curtail, or complement the federal law, or enforce additional or
auxiliary regulations.

24

The Dormant Commerce Clause (Limit on Power)

-

Introduction
o Definition: Principle that state and local laws are unconstitutional if they place an undue
burden on IC
o Origins:
Not explicitly declared in Const; Inferred from Article 1 8 CC power + Article 6 2
Supremacy Clause
Introduced first in Gibbons v. Ogden
o Two functions of commerce clause
1. Explicit: positive authorization of congressional action; limited by Necessary &
Proper Clause
2. Dormant: operates when Congress has not acted; independent limit on state and
local regulation
o TEST: Challenging state laws that burden interstate commerce
1. Is the state law discriminatory?
Question: Does the law affirmatively discriminate against interstate transactions,
or place only an incidental burden on interstate commerce?
Types:
o Facially (NJ landfill case)
o Effect: Likely to be found discriminatory in effect if it
Imposes costs on out-of-staters that in-staters would not have to bear
(Hunt)
Excludes virtually all out-of-staters from accessing that particular
market; NOT just a subset of particular firms (Exxon)
Includes local discrimination: similar to Balkanization; even though some
in-staters may be affected, still discriminates against out-of-staters
(Dean Milk: 5 mile radius of city)
o Purpose
Simple economic protectionism? (West Lynn: out-of-staters funding instaters)
Who is challenging the statute? (West Lynn; Cloverleaf)
Rationale for differentiating between discriminatory and nondiscriminatory laws:
Framers most concerned about protectionist state legislation; less likely to
interfere with the economy; and at least partly represented in the political
process
2. Does the state law impermissibly burden interstate commerce?
If the Court deems the state law
o Discriminatory strong presumption against the law
Upheld only if unavoidable to achieve a legitimate local purpose (Maine
v. Taylor)
Legitimate local purpose: Term of art entailing strict scrutiny; nonprotectionist
Unavoidable: the least restrictive option to achieving that objective
o Non-discriminatory invalidated only if the burdens imposed on IC are
clearly excessive in relation to the putative local benefits (Pike)
Nature and extent of interest and burden on IC
Does not matter whether alternatives exist
Also analyze:
Privileges and immunities clause Article IV 2
EPC of 14th Am
Policy rationales
25

Supporting DCC:
Economic: Interdependence between states due to federal free trade system
emphasizes need to encourage free competition and access to markets to protect
against
Hostility: opens rivalry, retaliation, and reprisals between states
Burdens: unreasonable barrier of economic protectionism harms the economy for
everyone
Inefficiency: equivalent to imposing customs duties; diverts business from lowcost producers without any colorable national justification
Historical: Framers were particularly concerned about uniformity in commercial
regulation and envisioned a federal free trade unit; no other federal power was so
universally assumed to be necessary
Political: Lack of political representation for out-of-staters affected by the law; political
process cannot be trusted when a state is helping itself at the expense of out-ofstaters who have no representation (e.g. McCulloch v. Maryland invalidated MD tax
that would be borne by those without the state)
Impossible for Congress to rule on the multiplicity and diversity of regulations that
may undermine its overarching commerce power
o Critique on DCC:
Textual: Not an explicit provision in Constitution, framers could easily have included
this limitation on state power in its enumerated limits within Article 1 10; meanwhile,
there IS an express Const provision granting Congress authority to invalidate such
state laws
Separation of powers: these policy-laden judgments are not for an unelected body of
federal judges
o H.P. Hood
Facts: NY denied a MA corporation license to build another plant in NY that would ship
milk to MA
Rule: States do not have the power to seek their own economic objectives through
curtailment or burdening of interstate commerce.
Key analysis:
Purpose any health, safety, or fraud concern OR is the regulation solely
economic?
Alternatives Does the regulation actually restrict/obstruct interstate commerce
OR does P have other available alternative actions?
CASES:
o Historical:
Often invoked in recent decisions; tests are different but Court never expressly
overruled them
Attempted to draw rigid categories for areas where federal law was exclusive
Gibbons v. Ogden: Police power v. commerce power
Cooley: National v. local subject matter
National: area of national importance requiring uniformity of regulation
Local: best provided for by diverse regulation where applicable to local
peculiarities
Determined by
o 1. Custom: compare with other systems of practice; generally left to
legislative discretion?
o 2. Nature and extent of discrimination
o Balancing approach = benefit v. burden
Barnwell
o

26

Law in question: SC law prohibited vehicles above a certain weight to use state
highways
Holding: Non-discriminatory; upheld
Rationale: Benefit outweighs burden
o Safety: Evidence that lighter, narrower trucks more easily move onto
shoulder of the road
o Local matter: state funds and maintains its own highways; Courts may not
weigh the evidence to scale the merit of the legislative choice
Southern Pacific
Law in question: AZ law prohibited operation of long trains within state
Holding: Non-discriminatory; invalidated
Rationale: Burden outweighs benefit
o Interest: questionable and slight increase in safety, may actually increase
danger of accidents
o National matter: Requires national standardization to secure efficient and
economical operation of railway systems
o Private trains funded the maintenance of the tracks
o Burden: substantially increases cost and impairs efficiency (delay,
manpower, number of locomotives)
o Practical effect was to regulate beyond state boundaries
Facially discriminatory
By its terms, the state law distinguishes between in- and out-of-staters
Philadelphia v. NJ
Law: restricts importation of waste originating or collected outside the state
Holding: Discriminatory; invalidated
Rationale:
o All objects of interstate trade merit CC protection; none is excluded by
definition at the outset as valueless
o State interest: public health, safety and welfare; with rapidly increasing
volume of solid and liquid waste, diminishing landfill sites, and
environmental threats
o Means: closing borders / complete and simple isolationism unacceptable;
at different times and in different ways, states may want to close its borders,
and the Commerce Clause serves to protect against the efforts by one State
to isolate itself in the stream of IC from a problem shared by all
Dissent:
o Significant state interest: serious health, explosion, aesthetic, and pollution
problems
o No alternative: either prohibit all landfill operations inside and outside the
state (which is impossible) OR accept waste from every portion of the US
(which would multiply the health and safety problems)
Maine v. Taylor (minnows)
Facts: Prohibition on bringing shipments of live bait fish into Maine
Holding: rare exception facially discriminatory; upheld
Rationale:
o Facially discrim: restricts interstate trade in the most direct manner
possible at state border
State retains authority to regulate matters of legitimate local concern
BUT the burden falls on the State to demonstrate both legitimate local
purpose + this purpose could not be served as well by available
nondiscrim means
27

State interest: Serious ecological concerns unrelated to economic

protectionism; unpredictable extent of disruption to the natural ecology
o Lack of alternative: Inspection was physically impossible: Small size of
baitfish + large quantities of shipments + would require destruction of the
fish
o Dissent: ambiguity about dangers and alternatives should actually defeat,
rather than sustain, the discriminatory measure
Effect is discriminatory
SUBSET V. ENTIRETY OF OUT-OF-STATERS
Hunt
Facts: NC statute allowed only the USDA grade label to be placed on apples sold
in-state. WA had a special label, invested in a stringent inspection program that is
attractive to retailers and consumers.
Held: discriminatory effect; invalid
Rationale about differential effect:
o Costly burden to out-of-staters that doesnt apply to in-staters
Leveling effect: loss of competitive advantage; insidiously operates to
the advantage of local producers
Cost of compliance: forced to change marketing practices to
accommodate state market
o Lack of state interest to counter presumption of invalidity:
Does not protect consumers: limits consumer knowledge
Availability of other alternatives: could permit out-of-staters to utilize
state grades only if they also marked their shipments with the applicable
USDA label
Exxon
Facts: MD law prohibited producers or refiners from operating gas stations within
state as a response to complaints about inequitable distribution of gasoline
among retail stations.
Exxon argument: Burdens out-of-staters All refiners and producers are out-ofstate, so the law really burdens only dealers from other states
Held: non-discriminatory; upheld
Rationale:
o Facially: Does not distinguish between in-state and out-of-state companies
o Effect: Not an impermissible burden or barrier to IC
Entire supply of gasoline flows from outside MD merely shifts business
from one interstate supplier to another
The CC protects the interstate market, not particular interstate firms
o The consuming public may be injured by resultant price increase, but that
relates only to the wisdom of the statute, not its burden on commerce
Dissent:
o 5% of gas sold in-state was from local independent dealers who were
exempted from the law
o Precludes out-of-state companies from competing directly for the profits of
competitive pricing
o Alternative: regulate leasing of all service stations, not just those owned by
producers/refiners
Dean Milk
Facts: Madison, WI prohibited sale of milk by locational radius surrounding the city
Holding: discriminatory; invalidated
o Facially discriminatory
o

28

Effect is discriminatory
Local purpose is legitimate: Public health concerns
BUT the law erects an economic barrier protecting local industry from
competition without the state
NOT unavoidable / less restrictive means are available:
Implementing uniform standards of quality established by health
authorities in the jurisdiction but without a geographical limitation
Requiring importing producers to pay reasonable and actual cost of
inspection by its own officials
it is immaterial that WI milk from outside the Madison area is
subjected to the same proscription as that moving in IC
Purpose is discriminatory
West Lynn
Facts: MA order requiring all milk dealers to pay into a fund that is disbursed to instate milk farmers on a monthly basis; 2/3 milk is produced and sold from out-ofstate.
Held: discriminatory; invalid
Rationale: Non-discriminatory tax + discriminatory subsidy In reality, simple
econ protectionism
o Taxes: Nondiscriminatory measures are generally upheld in spite of any
adverse effect on IC.
o Subsidy: A pure subsidy funded out of general revenue ordinarily imposes no
burden on IC, but this pricing order is principally funded from out-of-state to
benefit in-state.
o Political processes of the State can no longer be relied upon one of the
groups hurt by the tax who would otherwise exert its influence to lobby
against it actually was a primary supporter
Clover Leaf
Facts: Minnesota banned only particular types of nonreturnable, non-refillable
milk containers
Held: nondiscriminatory; valid
Rationale: Burden not clearly excessive in relation to the benefit of the putative
state interest
o Interest: Promoting conservation of energy and natural resources; easing
waste disposal
o Incidental burdens on IC
Minor inconvenience of conforming to statute
Most dairies package their products in more than one type of
container
Plastic will continue to be used in production of the alternatives:
refillable plastic bottles, paperboard, and plastic pouches
In-state and out-of-state interests on both sides of the dispute
In-state pulpwood producers would benefit BUT theres no reason to
suspect that the gainers will be in-state and lowers out-of-state:
o 2 of the 3 dairies challenging the statute are in-state firms
o Out-of-state pulpwood producers will presumably absorb some
benefit
Non-discriminatory analysis
Pike
Facts: AZ order prohibited company from packing uncrated cantaloupes at its CA
facility
o

29

Holding: Non-discriminatory; invalidated

Test: upheld unless the burden on IC is clearly excessive in relation to the benefits
served by the law
Rationale:
o Interest: tenuous; to enhance the reputation of other in-state producers by
having the companys cantaloupes identified as originating in AZ
o Burden:
Company faced imminent loss of its crop because there was no facility in
AZ and cantaloupes are highly perishable
Unnecessary because company would not otherwise need an additional
facility in AZ
o Undertones of discriminatory effect!!!
Required company to build an in-state facility and thereby likely hire instate residents
To increase in-state reputation

Exceptions to DCC (Power)

-

When laws that otherwise would violate the DCC are still allowed
Two types:
o Congressional approval:
Makes CC power no longer dormant
Congress has plenary over commerce among the states
Congress may confer upon the States an ability to restrict the flow of IC that they
would not otherwise enjoy (Western and Southern Life Insurance)
Even if clearly discriminatory and unconstitutional
This is one of the few areas where Congress has clear authority to overrule a
Supreme Court decision interpreting the Const
Analyze: Scope of authorization state action within those bounds?
o Market participant exception:
When discrim involves
1) allocating benefits of internally funded programs OR
2) state-owned business
o Acting in proprietary capacity
Purchaser of goods (Hughes v. Alexandria Scrap)
Purchaser of services (White v. MA Council of Construction Employers)
Seller (Reeves)
o NOT imposing conditions downstream (South-Central Timber)
Rationale:
State sovereignty: role of each state as guardian and trustee for its people
Right of private businesses: allowed to exercise independent discretion in selling
to parties
Separation of power: Better suited for Congress = competing, politically charged
considerations
Fairness: allows residents to recoup benefits of the taxes they pay
Less hostile/coercive: spending programs are not as hostile to other states
Critique:
Purpose of DCC: to stop protectionist actions by state gov generally
Ambiguity: no clear distinction between gov action as regulator and market
participant
CASES
30

Hughes v. Alexandria Scrap: MD acting as a purchaser of goods; offered to pay

for destruction of inoperable cars, but required more onerous documentation from
out-of-staters allowed
Reeves
o Facts: SD limited sale of cement because of shortage, favored resident
companies
o Analysis: States must comply with limits imposed on private parties
Analyze anti-commandeering principle general applicability
(Garcia/Conden) Resolved by Commerce power + Preemption
White v. MA Council of Construction Employers
o Facts: MA executive order required that all construction projects be
performed by a workforce of at least half Boston residents
o Fits both exceptions to DCC:
Internal funds: MA was acting as a purchaser of services market
participant
Federal funds: Congress had authorized this discrimination to combat ills
of unemployment, homelessness, etc. congressional approval
South-Central Timber
o Facts: AK offered to sell state-owned timber at a significantly lower price with
the K provision that the buyer must process wood in-state. Company did not
operate a mill in-state.
o Holding: State acting as a market regulator; invalid
o Rule: Imposing conditions downstream on post-purchase activity reverts
State to regulator of private market relationships
o Rationale: Market activity ends when transaction between seller and buyer is
complete
o Dissent: unduly formalistic to differentiate between paths chosen by the
State
Could sell timber only to companies that maintain processing plants instate (Reeves)
Could directly subsidize the processing industry (Hughes)
Could pay to have the logs processed and only then enter the market as
a seller

Privileges and Immunities Clause (Limit on Power)

-

Article 4 2:
o Text: Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the several States
o Prohibits discrimination by states against nonresidents (not aliens or corporations)
o Protects rights fundamental to interstate unity
Relationship with DCC:
o Mutually reinforcing; can violate both at once
o Differences:
1. Must be discriminatory
2. Aliens and corporations are not protected
3. Neither exceptions for congressional approval or market participation will save
statute
Analysis:
o 1. Interest:
Does the interest fall within the purview of the Privileges and Immunities Clause?
Definition: Pertain to the vitality of the nation as a single entity (Baldwin)
31

Includes: 1) Const rights / civil liberties and 2) Pursuit of a livelihood (Camden;

Witsell)
Not recreational hunting (Baldwin)
o 2. Discrimination:
Does the state law discriminate against non-residents?
Municipality regulations are not immune, though in-state residents cant bring suit
(Camden)
o 3. Objective:
Substantial and independent reason for discrimination?
Less restrictive analysis; deference to state
o 4. Means:
Degree of discrimination bears a close relationship to States objective?
Less restrictive means? (Piper)
o If the statute fails no exception for congressional approval or market participant
CASES
o Witsell
Facts: SC imposed different licensing costs for in- and out-of-state commercial shrimp
fishing boats. State alleged the purpose was to conserve its shrimp supply; fishers
alleged it was to exclude non-residents and thereby create a commercial monopoly
for SC residents (100x)
Holding: invalidated
Substantial independent goal for statute? Evidence that state doesnt care about
total number of shrimp taken; Statute does not limit on number of licenses given
Means closely related?
No evidence that non-residents present a particular threat to shrimp boating
Alternatives available: Impose a fee on bigger boats; ban nets that kill shrimp
habitat
RULE: States should have considerable leeway in analyzing local evils and in
prescribing appropriate cures
o Camden
Facts: municipal requirement that 40% of all employees for city construction projects
be city residents
Holding: remanded for further investigation about citys economic decay; Court has
ruled in another case that unemployment is not a substantial reason
RULE: Municipal residency classifications are not immune from PIC review
Nonresidents are ipso fact not residing in a city within that State, so practical
effect is to keep out all nonresidents, even though some residents are similarly
disadvantaged
In-state residents who are similarly disadvantaged still cannot bring claim
Protected right? YES: right to pursue livelihood
Substantial independent reason? to alleviate grave social and economic ills:
increase employment and stop middle class flight
Close relation? Non-city residents benefit from employment without improving tax
base and property value; percentage tailored to allow non-resident employment
o Baldwin
Facts: recreational hunting license pricing differential (25x)
Holding: hunting for pure sport is outside the purview of what the PIC is protecting
RULE: only covers those privileges/immunities bearing upon the vitality of the Nation
as a single entity
hinder the formation, the purpose, or the development of a single Union of those
States

32

Some distinctions merely reflect the fact that this is a Nation composed of
individual States (e.g. voting)
Here:
Recreation and sport: Not a means to the nonresidents livelihood; available only
to wealthy nonresident or hobbyist willing to sacrifice other values to indulge in it
Tailored means: Not totally excluded from the activity
State interest: Elk supply is finite and must be carefully tended in order to be
preserved
Piper
Facts: NH required in-state home address for admission to bar
Holding: invalidated
Interest? YES Practice of law involves the right to pursue a livelihood
Objective? Non-resident members would be less likely to
Become and remain familiar with local rules and procedures reasonable to
presume nonresident lawyers would only take the exam and pay annual dues if
he anticipates a considerable practice there
Behave ethically State can discipline or suspend right to practice instead of
complete ban
Be available for court proceedings There may be some logic to states concern
that a nonresident member of the bar at times would be unavailable for court
proceedings
Do pro bono and other volunteer work could require this instead of complete
ban

Intersection between Congress &

President
Sources of Executive Authority
-

Court is the ultimate arbiter of whether Pres has overstepped bounds, but must first deal with
Justiciability:
o Political question? When the Court is asked to invalidate a statutory provision that has
been approved by both Congress and President, it should only do so for the most
compelling Constitutional reasons (Bowsher)
o Standing? Congress cannot fully confer Article III standing
Article II does not expressly impose limits on pres power
Analysis for Pres action (Youngstown Sheet & Tube Co.)
o The Court has placed more weight on the familiar tripartite scheme (Medellin v. TX)
used in Jacksons concurrence, but never disavowed Blacks opinion; should be viewed as
two alternatives existing side-by-side
o Blacks majority: NO inherent Pres power; Pres may act only with express Const or
statutory authority
o Jacksons tripartite framework:
When the President takes measures
1. Pursuant to an express or implied authorization of Congress
Power: at its greatest; may act with both Pres and Congress powers (Articles I
and II)
Test: Strong presumption of validity
33

2. In absence of Congressional grant or denial **most pronounced divergence from

Black**
Power: can only rely upon his own independent powers + twilight zone
Twilight zone: If Congress and Pres have concurrent authority or its distribution
is uncertain Cong silence may enable/invite measure of independent Pres
authority
Test: Case-by-case determination considering the imperatives of events and
contemporary imponderables didnt offer additional tools to determine
validity
3. Incompatible with the implied or express will of Congress
Power: at its lowest ebb; basically disobeying federal law
Test: Valid only if Pres has const authority to act and Congress did NOT have
const authority to make law
Conflicting policy:
o Narrow scope Separation of powers
Const allocates limited powers to each branch
Madison: Opening language only gives a title to executive and determines that there
would be one individual at head; Const created gov of limited authority should not
grant one individual untrammeled authority
Douglas concurrence in Youngstown: Emergency did not create power; it merely
marked an occasion when power should be exercised. Must resist simple pragmatism
o Broad scope
Pragmatism:
Pres should be given the power to respond to national emergencies
Necessary to act in light of leg failure to do so + greater efficiency of exec
branch
Especially if Cong did not refuse Pres power when it had warning of his plan to
act (Youngtown)
Text/Structure of Const:
Article I grants powers herein granted limits Congressional power, but Article
II does not limit Presidential powers with such language
Hamilton: Reflects an intention to grant in the president all powers of an
executive nature; only limitation is what can be found to be within this power
CASE: Youngstown
o Facts: President Truman issued a seizure order to take possession of steel mills due to a
proposed work stoppage during Korean War because the strike would immediately
jeopardize national defense given the indispensability of steel as a component of war
materials.
o Holding: not constitutional
o Courts analysis:
Blacks majority (4 justices):
NO inherent Pres power; Pres may act only with express Const or statutory
authority
Here: Absence of
o Express Cong authorization by statute
refused to adopt this method in prior legislation
o Const authorization:
Commander-in-chief = directly and intimately connected with
affairs of war
Power to see that the laws are faithfully executed = lawmaking
power limited to recommending or vetoing laws

34

Jacksons concurrence:
Trumans seizure falls within 3rd category (against implied or express will of
Congress)
Fails this test, and is actually the reverse
Pres has const power? No: Military powers do not supersede representative gov
of internal affairs
Congress outside its authority? No: Const expressly places power to raise troops
and provide funding with Congress
Douglas concurrence:
Emergency faced by Truman was serious BUT the emergency did not create
power; it merely marked an occasion when power should be exercised.
Call to resist simple pragmatism: Separation of powers was adopted to
preclude the exercise of arbitrary power. The purpose was not to avoid friction
(Brandeis in Myers v. US)
Frankfurters concurrence: Leg history is tantamount to an express withholding of
power
Dissent rationales:
Duty to act: successful execution of legislative programs depended upon
continued production of steel and stabilized prices for steel Evidence of
historical support for these prompt actions
Not arbitrary, unlimited, or dictatorial: informed Congress immediately, subject
to Cong direction, temporary character of seizure
Intersection between Article II 1 and 3:
o 1 presidential oath to defend the Constitution of the US
Duty to veto laws he believes would violate the Constitution in any respect
o 3: President shall take care that the laws be faithfully executed
Faithful execution clause
Pres has Const duty to enforce laws he signed into being unless and until held
unconst by the courts
o At what point does the decision not to prosecute undermine the principle of faithful
execution?
o Limited resources argument:
Limited resources necessitate allocation decisions and selective enforcement =
concession to reality
Impossible for Pres to pursue every violation of any law To give the best effect of
the law, should be able to exercise administrative leeway in pursuing cases
E.g. federal death penalty = much more expensive than life in prison (mostly
procedural) so president must use executive discretion in enforcing the death penalty

Expansion of Exec authority beyond Article II (Limit on Power)

-

Issues presented below:

o Separation of powers: Undermines congressional authority
o Timing: already passed law rather than intervening during the legislative process
o No congressional remedy: cannot supersede by a counter-veto
Line-item veto
o Clinton v. NY
Facts: Line Item Veto Act allowed President to cancel particular provisions within laws;
Congress could overturn that line-item veto by a majority vote of both houses.
35

Holding: Pres cannot cancel certain provisions line by line; even when Congress wants
him to do that, veto power is all-or-nothing.
RULE: Cong cannot statutorily increase Pres authority beyond Const limits; must
follow amendment procedure of Article V
Rationale:
Power to make laws is with congress and president must execute the laws that
are passed
Strict procedural bicameralism in lawmaking: Const lays out an exclusive and
finely wrought method for lawmaking; repeal or amendment authority is not
granted to Pres in any provision silence construed as express prohibition
Const structure requires a stability which transcends the convenience of the
moment
Attempt to transgress the separation of powers = threat to liberty
Const return v. statutory cancellation:
o Timing: veto takes place before v. after bill becomes law
o Substance: the entire bill v. only part is returned to Cong
Dissent (Breyer)
Pragmatism: Historical simplicity v. modern complexity; Congress can no longer
pass individual appropriations bills and is practically stopped from using the
method that was historically plausible
Judicial deference: no dispute among the other two branches, so the judiciary
should only intervene for the most compelling const reasons
This is not a repeal or amendment: Congress merely narrowed the universe of
options, and allowed Pres to choose between them
Signing statements
o Spectrum of assertions within signing statements:
Rhetorical: Most innocuous form; used to promote public awareness and mobilize
political constituencies
Political: Middle ground; defines terms using creative or aggressive interpretation;
must read and understand the entire purpose of the enactment to know if Pres is
deliberately abusing power or lawfully interpreting it
Constitutional avoidance: Straight up disobedience; asserts that certain provisions are
constitutionally defective and he will disregard them
o Pres has an obligation to veto, but risks serious political consequences
o Recent years Escalation in quantity and quality with much more aggressive assertions
of presidential authority (e.g. Bush the unitary executive)

Appointments and Removal (Power)

-

Analysis track
o Appointment: Article II 2
President appoints ambassadors, judges, and other principal officers by and with
advice and consent of Senate
Policy: provide pres with necessary tools to fulfill const duties and increase
accountability
Congress may vest appt of inferior officers in the president, courts of law, or heads of
departments
Can NOT give appointment power to itself: Article II specifies several
possibilities as to who may possess that power and Congress is not among them
Did Congress have power to vest appt of that position? = Inferior officer?
(Morrison)
36

o
o
o
o

Authority: Layer of authority between officer and president?

Duties: limited or broad in scope?
Jurisdiction: policymaking or judicial functions?
Tenure: continuing, temporary, intermittent, or defined? Circumstances for
removal?

Removal:
No constitutional provision addresses the removal power
President has extensive removal power, but it may be constrained (Humphreys)
Rationale (Myers)
Incident to power of appointment
Pres must have broad authority over removal to fulfill his duty to faithful
execute the laws
Pres charged with duty to supervise, control, and direct can better gage
defects/evaluate officers
Test: What is the NATURE of the position? Does the office suggest need for
independence from Pres?
Even without a statutory restriction (Weiner)
Court applied quasi-judicial/-leg language in Humphreys; but is difficult to
apply in practice
Amorphous inquiry: Functional and contextual are there good reasons why the
office should be independent of the pres?
If purely executive Pres can remove them at will to accomplish his Const duty
(Myers)
If independence from the pres would be desirable are Congresss limits on removal
constitutional?
Does the limitation impermissibly interfere with presidents const duties?
Congress may limit removal power, but not
o Prohibit it altogether (Morrison)
o Give itself sole power to remove official (Bowsher)
Good cause standard does not unduly trammel on exec authority (Morrison)
CASES
o Morrison v. Olson
Facts: Ethics in Government Act allowed for a special court, created by the Attorney
General, to appoint an independent counsel for investigating federal officers. Plaintiff
claims that the independent council cannot be appointed by someone other than the
president (principal v. inferior officer) Attorney General could terminate the
independent counsel with the limitation that he must defend the removal to Congress
in that it was for good cause. Counsel could file for judicial review.
APPOINTMENT
RULE: Does not violate Article III to give a federal court power to appoint prosecutorial
officers
Desire for independence in investigating alleged wrongdoing within the exec
branch most logical place to put the appt power was in the Judicial Branch
Note: it WOULD violate separation of powers to give the court authority to
supervise appointees
Factors of an inferior officer
1. Jurisdiction: Act is restricted to certain suspect exec officials, but can only act
within the scope of the jurisdiction as requested by the AG
2. Tenure: No specific time limit BUT temporary because the counsel is
appointed to accomplish a single task and afterwards is terminated
3. Duties: Empowered only to investigate and prosecute certain federal crimes
o

37

4. Authority: She possesses a degree of independent discretion BUT to some

degree is inferior in rank because the Attorney General can remove her
Dissent (Scalia): The law should be struck down because it vests some purely
executive power, criminal prosecution, in a person who is not the President. The
officer is not inferior because she is not removable at will and thus subordinate to any
Exec officer
REMOVAL
Test: Whether the removal restrictions are of such a nature that they impede the
Presidents ability to perform his constitutional duty
Removal is within executive branch BUT is limited and monitored
Imposition of a good cause standard by itself does not unduly trammel on exec
authority, even though the counsel exercises no small amount of discretion and
judgment
Power to remove an exec official has not been completely stripped from the Pres
(prohibiting him from ensuring the faithful execution of the laws)
Myers
Facts: Postmaster was appointed and removed by Pres by and with the advice and
consent of the Senate
RULE: Pres has extensive removal authority over executive officers
Here: Officer was restricted to performing exec functions and so inherently subject to
exclusive and illimitable removal power of Pres
Humphreys Executor
Facts: Suit for back pay of salary; Pres tried to remove a commissioner, disclaiming
any reflection upon his services; Cong Act said Pres could remove any commissioner
for inefficiency, neglect of duty, or malfeasance in office
Issue: Whether the statutory limit on Pres removal power was within bounds of Const?
RULE: Cong can limit Pres removal power of officials whose independence from Pres is
crucial
Rationale:
Administrative body to carry into effect leg policies BUT these exec functions
are performed in the discharge and effectuation of its other powers
Created by Congress
Performs leg and judicial duties:
o Leg: makes investigations and reports to inform Congress
o Judicial: acts as a master in chancery
Fixed term of office is vitally important to ensure independence:
o Length of tenure: to gain experience
o Certainty of tenure: independent of executive authority, except in its
selection, and so free to exercise its judgment without the leave or
hindrance of any gov branch
Wiener
Facts: Suit for back pay based on alleged illegal removal of a member of the War
Claims Commission
RULE: Even where there is no express limit within the statute, it is the functional need
for independence that determines the conditions on Pres power to remove officers
Rationale: Court infers that Congress did not want the President to have any influence
on how the adjudication of any claim came out
Created by Congress
Judicial role: to adjudicate claims for compensating injuries in connection with
WWII
38

Tenure defined: no later than three years after the expiration of the time for
filing claims
Bowsher
Facts: Act empowered Congress to remove the comptroller by an agent other than
impeachment
Holding: Violates Separation of Powers for Congress to reserve the power of removal
over an executive officer except by impeachment.
Note on Justiciability: theres standing because the Comptroller already has desire to
please Cong
Rationale:
Position was not created by Congress
In effect, removal power allowed Congress to control the execution of its law
The Const does not contemplate an active role for Congress in the supervision
of officers charged with execution of the laws it enacts

Foreign Policy, War, and the War on Terrorism

-

Const invites a struggle over control of the war power by dividing powers between exec
and leg branches
o Article II Clause 2: makes pres the commander-in-chief
o Article I, 8, Clause 11: Congress has power to declare war and to raise and support
the army and navy
o Purpose: the founders wanted to clog rather than facilitate war / checks and
balances
Justiciability issue: questions involving the war powers have not been clearly answered
because of the Courts view that these foreign policy disputes are political questions, and thus
not justiciable
E.g. Whether War Powers Resolution is constitutional?
1541: The President may introduce troops into hostilities, ONLY where there is:
1) A declaration of war by Congress; 2) Specific statutory authorization; OR 3) A
national emergency created by attack upon the U.S.
1544: requires the president to withdraw troops after 60 days unless Congress:
1) has declared war or enacted specific authorization; 2) has extended by law the
60-day period; or 3) is physically unable to meet as a result of an armed attack
extended for not more than an additional 30 days
Hamdi
o Presidential power and the war on terrorism detentions
o Facts: U.S. citizen moved to Saudi Arabia, was seized by members of the Taliban gov,
eventually turned over to U.S. military, and then held incommunicado in Guantanamo Bay
for two years (unable to communicate with outside world including family or counsel).
o RULE: Although Congress granted power to detain enemy combatants, 5 th Am due process
demands that a citizen receive fair notice of factual basis for detention and a meaningful
opportunity to be heard by a neutral decision-maker
o Rationale
Gov: asserts authority outside statute to detain Hamdi indefinitely without formal
proceedings
Authority comes from Presidents role as commander-in-chief within Article II
Capture and detention are important incident[s] of war to prevent enemys
return to battlefield
Limited to the duration of active hostilities
Hamdi: Unique nature of this unconventional war with no single, defined enemy
makes it never ending
39

Gov is basically asserting authority to hold him for life

But gov has not released any data to prove his enemy combatant status
Court: We must balance the tension between the autonomy the gov asserts is
necessary to effectively pursue a particular goal and due process concerns when
depriving a citizen of a const right
Separation of powers: although the Court has shown great deference to the
political branches in war matters, this is not beyond judicial purview
Must apply the balancing test of Mathews v. Eldridge:
o 1. Private interest at stake
Most profound/elemental liberty: being free from physical detention by
ones own gov
Not offset by circumstances of war or the accusations of treason
o 2. Gov interest and burden faced in providing greater process
Practical challenges of wartime presumption in favor of gov and
hearsay evidence would probably be allowed
o 3. Risk of erroneous deprivation
Accuracy issue: Lack of credible evidence in the rubble of war,
incentives, middle men
o 4. Probable value of additional or substitute safeguards

40

Applying the Bill of Rights

Constitutional Redemption: Slavery
-

Original Const deliberately protected the institution of slavery and gave systematic
advantages to states allowing slavery (not a stain, but pervasive like an infection to its core)
o 3/5 compromise: applied to population number and thereby proportional representation
in the House of Reps Ar.1 2 P3, structural incentives to maintain system of slavery
because emancipation would result in emigration and the states would lose
representation
o The more slaves that could be brought from Africa = more seats in Congress
higher representation for those states in the national government
E.g. South Carolina v. New Hampshire: both had a similar number of people but
because of the 3/5 clause, SC had 6 seats and NH had 4 seats
o 20-year moratorium on reevaluating slave importation imposed by Article V; incentive for
states to amass slaves and thereby political power during those years and gain a
majority of control in congress
Constitutional redemption: Idea that the const can be reworked to take the evil out;
Reconstruction era amendments made the const able to be workable; not perfect, but
perfectable

Incorporation: Applying the Bill of Rights to States

-

Rule: Supreme Court has selectively incorporated almost all the Bill of Rights through the 14 th
Am DPC to apply to state and local gov
o 14th Am = State
o 5th Am = Federal
Content of incorporated rights: from a practical perspective, except for the requirements of a
12-person jury and a unanimous verdict, the Bill of Rights provisions that have been
incorporated apply to the states exactly as they apply to fed gov
o Critique: federalism, unduly limits states
o Rationale: fundamental liberties, should not vary depending on the level of gof
Duncan
o Holding: 14th Am guarantees a right of jury trial in all criminal cases would come within
the 6th Am
o Rationale: Protects against gov tyranny and arbitrary law enforcement
o Analysis track:
a) to deny this right would violate due process,
b) the 14th Am protects against violations of due process, and
c) the right is guaranteed by the 6th Am
applicable to states
Provisions of the Bill of Rights that never have been incorporated / do not apply to state and
local gov:
o 3rd Am: right to not have soldiers quartered in a persons home; never has reached the
Court, but they would surely find this provision applies to states
o 5th Am: right to a grand jury indictment in criminal cases
o 7th Am: right to jury trial in civil cases
o 8th Am: prohibition of excessive fines
o If not yet incorporated, analyze whether the right is fundamental to our scheme of
ordered liberty?
41

State Action Doctrine (Limit on Right)

-

State Action Requirement

o Rule: Private conduct generally does not have to comply with the Const (Stanley)
o Rationale: language of the 14th is directed only at state conduct depriving individuals of
Const rights
o Exceptions:
13th Am: involuntary servitude; forbids people from owning slaves
Gov can enact laws requiring private conduct to meet the Const standards required
of the gov;
Actions are brought directly under such statutes and governed by those terms
Const still does not apply
Exceptions to the state action doctrine:
Where private conduct must comply with the Const
Major inconsistency in the case law
Types:
o Public functions exception
Definition: Private entities must comply with the Const when
performing a task traditionally and exclusively reserved for gov
(Jackson)
Tests:
Private property used for a public purpose? (Marsh)
o Running a town ownership does not always mean
absolute dominion
Analyze: Open street or sidewalk access? Public area
nearby?
o Other cases: Political party elections; Maintenance of
municipal parks
Activity that has been traditionally, exclusively done by gov?
(Jackson)
o NOT an electric utility company
o Entanglement exception
Definition: Const applies if the gov affirmatively authorized,
encouraged, or facilitated private conduct that violates the const
More than just providing procedure for claims
Includes judicial and law enforcement actions; licensing and
regulation; subsidies voter initiatives permitting discrimination
Shelley remains controversial because ultimately everything can be
made state action; Court has never taken Shelley this far, nor has it
articulated any clear limiting principles
Areas where Court has used judicial enforcement as state action:
Prejudgment attachment using courts to sequester property
Peremptory challenges excusing prospective jurors without
showing cause in a discriminatory fashion
CASES
o Stanley (general rule)
Facts: Private owners of facilities open to the public (hotel, theater, and opera
house)
Rule: Congress may not legislate private party conduct under 5 of the 14 th Am; gov
action is required
Rationale:
42

The 14th Am is prohibitory upon the States; does not provide protection from
private parties
Congress is similarly bounded or restricted to legislate only against state laws
or agents.
Dissent (Harlan):
Elevates form over substance: contrary to the spirit of the 14 th Am and intent of
the framers to protect equality and fairness
Lack of clear line between private and state action / Gov is involved, to some
extent, in almost every activity
Marsh(public functions broad)
Facts: Crime of remaining on the premises of another after being told to leave P
argues this would violate her 1st and 14th Am right to distribute religious writings
Holding: Running a town is a public function, and so the state action requirement of
14th Am is met
Rationale:
If the area was a municipality or public area, this would violate Const rights.
Different dimension of property ownership: The more an owner, for his
advantage, opens up his property for use by the public in general, the more his
rights become circumscribed by the statutory and const rights of those who use
it
Formally, Chickasaw is private property, but it FUNCTIONS like a public entity.
o Residential buildings, streets, sewage system, deputy, merchants and
service establishment
o The company-owned sidewalk was accessible to and freely used by the
public
o Nothing to distinguish the town other than by property title; did not change
the needs of the people residing in the town
Jackson (public functions narrow)
Facts: woman claimed that termination of her electricity was unlawful in violation of
DPC because company needed to keep her power on until she received court
hearing
TEST: Sufficiently close nexus between the State and challenged action?
Traditionally done by gov?
RULE: Extensive state regulation of an essential public service does not necessarily
transform the companys actions into that of the State for 14 th Am purposes
Does not expansively apply to all businesses affected with the public interest
this would arguably expand the doctrine to cover doctors, lawyers, and grocery
stores
Shelley (entanglement exception)
Facts: Neighborhood property owners made a restrictive covenant prohibiting
occupancy based on race. When a black family moved there, property owners filed
suit and won in state court to enforce the covenant.
RULE: If any branch of gov affirmatively acts to enforce private discriminatory
conduct, it violates EPC
Rationale: Not merely passive, the court has made available the full coercive power
for the private parties to deny individuals const rights

43

Equal Protection Clause

-

14th Am passed after the Civil War to stop widespread discrim against former slaves
o Rarely used until 1950s with Brown v. Board of Education which ushered in modern era
of EPC jurisprudence
o Race = core concern of EPC
Text: No state shall deny to any person within its jurisdiction the equal protection of the
laws
Purpose: to combat invidious discrim and safeguard fundamental rights
Mutually applies to federal gov: Supreme Court has held that
o The DPC of the 5th Am implicitly requires for equal protection by federal gov
o EPC analysis in the 5th Am area is the same as that under the 14th Am
Tiered system based on whether the group is deemed a suspect classification
o Strict scrutiny: Race, National origin (most exacting/searching judicial inquiry)
o Intermediate scrutiny: Gender, Illegitimate children
o Rational basis: Age, Wealth, Mental retardation, Households containing unrelated
individuals
Analysis track:
o 1. CLASSIFICATION:
Impermissibly interferes with a fundamental right?
Involves a suspect class?
o 2. STANDARD: What is the level of scrutiny?
o 3. APPLICATION: Did the gov meet the test?
Ends + means = interest + tailoring
Level of scrutiny
Strict Scrutiny
Intermediate
Scrutiny
Rational Basis
Review

Acceptable Gov
Interest
Compelling
Important gov
interest
Legitimate

Means
Necessary/narrow
tailoring
Substantially related
Rationally related

FACTORS FOR CLASSIFICATION (Cleburne)

o Immutable characteristic / not chosen + unchangeable?
Includes religion
Drug addiction and homosexuality are contestable
o History of discrimination or stigma?
likely to reflect prejudice instead of permissible gov purpose
o Discrete and insular minority? (Carolene Products)
Political powerlessness; inability to defend and advance interests through the
political process
Women are severely underrepresented in political offices
Aliens do not have the ability to vote
o Irrelevant to the persons qualifications or contributions to society?
Irrelevant =
44

likely to reflect prejudice; Inevitable inference that the disadvantage imposed

is born of animosity toward the class of persons affected (Romer)
Relevant =
Need for additional programming differentiates class in a meaningful and
relevant way (Cleburne) mental retardation
Physical effects of aging (Murgia)
Large and amorphous class = difficult to extrapolate differences (Cleburne)
Conduct = rather than status; no classification (Scalia dissent in Romer)

E.g. Wealth Should it be a suspect class?

o No: Not immutable fervent cultural belief in upward mobility
o Yes:
Immutable extreme ends of affluence and poverty are entrenched
Discrete and insular minority Lack of political power, especially where money is
crucial for influence
History of discrimination Stereotype of laziness and inability to contribute to
society
Right to minimum entitlements under the Const; every person should be assured of
food, shelter, and medical care to survive
o Supreme Court: expressly held wealth is not a suspect class in Rodriguez: challenge to
TX system of local property taxes to pay for public education. Wealthy areas could tax at
low rates and had a great deal to spend while poor areas taxed at high rates, but still
had little to spend on education
o Public school funding still is determined by tax basis of residents in the area
segregation is still pervasive; many minority students attend schools that are vastly
inferior in terms of resources; for this reason, states like CA and TX have instituted raceconscious policies in higher education.
o Could make a category: socio-economic status?

- Rational Basis Review

o

Test: The law will be upheld as long as it is rationally connected to a legitimate

gov purpose
ENDS: legitimate purpose
Invalid = A bare desire to harm a politically unpopular group (Moreno); Mere
negative attitudes or fear, unsubstantiated by factors which are properly
cognizable (Cleburne)
MEANS: reasonable relationship
Does not need to be
o Wise (Murgia)
o Least restrictive alternative
o Precise Court will allow laws that are both significantly
Underinclusive (Railway Express)
Def: does not regulate all who are similarly situated
Rationale: leg may take one step at a time in addressing
problems
Overinclusive (NYC Transit)
Problem: unfair to those who are unnecessarily regulated

45

Invalid = unsubstantiated differentiations where the characteristic of the

class is indistinguishable with other classes not discriminated against such that
there is no rational justification for distinguishing the two (Cleburne)
o Symptoms of invalidity:
Other provisions exist to deal with the purported problem (Moreno)
Classification runs counter to the purported goal by discriminating
against those who are central to the statutes legitimate interest
(Moreno)

CASES:
o Railway Express
Facts: NY prohibited advertising on side of trucks unless transporting goods related
to the advertisement
RULE: Under-inclusiveness is not fatal to rational basis review
Analysis:
1. Classification? Advertising on trucks = trivial
2. Standard? Rational Basis
o Not the sort of oppressive discrimination the court is most concerned with
3. Application? Valid
o Legitimate purpose: traffic congestion
o Reasonable relation: Arbitrary classification between trucks based on inside
contents + does not address other primary forms of advertising on streets,
but EPC does not require that all evils of the same genus be eradicated or
none at all
o NYC Transit
Facts: Prohibition on employment against drug users including methadone, which is
considered a treatment and used by recovering addicts
RULE: Over-inclusiveness is not fatal to rational basis review
Note: Court could have found no discrimination at all, prohibits employees using
drugs
Analysis:
1. Classification? Drug use
2. Standard? Rational Basis
3. Application? Valid
o Legitimate purpose: high risk involved with drug use, public safety
o Reasonable relation:
Evidence proving likelihood of relapse was sufficient
Although NY could find other means to screen prospective employees,
rational basis review does not require a close fit between means and
ends
o Moreno
Facts: food stamp program made households containing unrelated persons ineligible
for participation
RULE: A bare desire to harm a politically unpopular group cannot constitute a
legitimate gov interest
Analysis:
1. Classification? Households containing unrelated persons
2. Standard? Rational Basis
3. Application? Unconstitutional
o Purpose:
46

1. Statute itself / declaration of policy Alleviating malnutrition + to

promote and strengthen ag economy
Court: relatedness of low income people living together is
inapplicable to these purposes
2. Legislative history giving voice to the opinions of the electorate
which wants to prevent hippie communes from participating in the
food stamp program
Court: Bare desire to harm politically unpopular group = NOT
legitimate; Must be effectuating some purpose in the public
interest rather than just reflecting the animosity of the
electorate
o Means:
3. Argument to court purpose is to minimize fraud
Court: no reasonable relation
o Wholly unsubstantiated assumptions
o Other provisions exist to deal with these same problems
o Actually runs counter to goal by eliminating people who
need the program; living together is reflective of this need
Dissent (Rehnquist): Reasonable to specify the basic family unit as the basis for gov
provision of food because independent reasons for family units to exist other than
to obtain food stamps, whereas Congress could conceivably want to prevent
households formed solely for that purpose from taking advantage of the food stamp
program
Cleburne
Facts: City denied a special use permit for a group home for the mentally retarded
Holding: Should apply rational basis review + the ordinance is invalid
Analysis:
1. Classification? Mentally retarded persons
2. Standard? Rational Basis
o History of discrimination: skimmed over; Dissent (Marshall) delves into
history of eugenics, state-mandated segregation, and bigotry that
paralleled the worst effects of Jim Crow
o Political powerlessness: Strong legislative effort to provide programs and
care to this class, not a systemic trampling on their rights
o Immutability: Cognitive disabilities are certainly not chosen and generally
unalterable, can only seek coping mechanisms
o Defining characteristics irrelevance to performance/contributions in society:
This is the one, in the courts eyes, that clearly failed to be met
large and amorphous class huge range makes it difficult to
extrapolate the differences within their ability to contribute to society
** relationship between classification and need for additional
programming differentiates this class in a meaningful and relevant
way **
Measures taken to benefit this class consequentially might also
disadvantage them
3. Application? Unconstitutional
o Purpose: Public opinion
Mere negative attitudes or fear, unsubstantiated by factors which are
properly cognizable, are not permissible bases for treating the class
differently.
Private biases may be outside the reach of the law, but the law
cannot, directly or indirectly, give them effect
47

Means: Unsubstantiated differentiation unclear how the characteristic of

the class would rationally justify differences in permitted uses regarding
the
Flood plain: nursing homes, hospitals, homes for convalescents could
be placed on site
Number of occupants: fraternity house, dormitory, or nursing home not
restricted

Romer
Facts: Colorado amendment banned homosexuality as a legally cognizable basis for
any claim of discrimination or minority status; they could obtain specific protection
against discrimination only by amendment. Ultimate effect is to prohibit any gov
entity from adopting similar policies in the future unless by amendment of the state
constitution
Analysis:
1. Classification? Sexual Orientation
o Not just repealing special status, withdraws legal protections for this solitary
class
o Dissent (Scalia): This is about conduct, not status; merely reflects that the
populace deems homosexual conduct immoral, thereby disfavors it in the
political system hippie discussion in Moreno?
2. Standard? Court does not go through Cleburne factors
o Applies rational basis, but seemingly uses a higher standard of review since
homosexual conduct was criminal at the time and there seems to be a
legitimate objective in that sense
3. Application? Unconstitutional
o Purpose: to prevent the deterioration of sexual morality
Desire to harm a politically unpopular group is not legitimate (Moreno)
o Means: too narrow and too broad identifies persons by a single trait and
then denies them protection across the board
Law makes it more difficult for one group of citizens than for all others
to seek aid from the gov is itself a denial of equal protection of the
laws in the most literal sense
Inevitable inference that the disadvantage imposed is born of
animosity toward the class of persons affected
NOTE: Appropriate standard for sexual orientation remains undecided
Romer v. Evans: Kennedy only observed that the law fails EVEN the rational
basis test
Lawrence v. Texas: law prohibiting private consensual homosexual activity
invalidated unnecessary to decide whether heightened scrutiny is
appropriate
Murgia
Facts: mandatory retirement of police officers at the age of 50
1. Classification? Age
2. Standard? Rational Basis
o Not a fundamental right
o Not sufficiently akin to those classifications found suspect to call for
heightened scrutiny
Immutable yes
History of discrim no history of purposeful unequal treatment
Discrete and insular NOT MET HERE: arguably better represented
than average within leg; the class has significant political clout
48

Irrelevance of characteristic NOT MET HERE: basis for stereotyped

characteristics are at least partially indicative of their abilities
3. Application? Valid
o Ends: to protect public by assuring physical preparedness of police;
Legitimate Physical ability generally declines with age
o Means: No indication that so few officers are unqualified as to render age
wholly unrelated to the objective; Does not need to be wise or without any
less discriminatory alternatives
Dissent (Marshall): This Court has called the right to work of the very essence of
the personal freedom and opportunity that it was the purpose of the 14 th Am to
secure Truax v. Raich
o Harm to health, mind, and life expectancy
Subject to arbitrary discrim Cannot readily find alternative
employment
Deprived of status in community and opportunity for meaningful
activity
Fear of becoming dependent
Lonely in new-found isolation
Over-inclusive: Alternatives are available: the state already individually tests its
officers for physical fitness and concedes that such testing is adequate to
determine physical ability
Note: arguably under-inclusive plenty of people questionably unfit under 50

- Strict Scrutiny
o

FACIALLY DISCRIM
Explicit classification strict scrutiny immediately applied
ALL racial classifications are subjected to the most rigid scrutiny
Not automatically invalidated (Korematsu)
Separate is inherently unequal (Brown)
Does not matter whether statute
o Burdens both races (Loving)
o Benefits a minority (Croson)
THE TEST:
1. Compelling gov interest
o Pressing public necessity? (Korematsu)
o Specific showing of prior discrim within relevant jurisdiction and among the
relevant entities (Croson)
2. narrowly tailored to achieve that interest
o 1. Action taken is most precisely calibrated to achieve gov objective
Not under or over inclusive
o 2. Consideration of alternatives
FACIALLY NEUTRAL
1. IMPACT: Disproportionate effect (Palmer)
o Cannot depend solely on motivations of leg Futile to invalidate +
generally multiple interwoven purposes for enacting statutes
2. INTENT: discriminatory purpose was a motivating factor (WA v. Davis;
Arlington Heights)
o Partial motivation is acceptable proof (Arlington Heights)
o Desired, not merely known (Feeney)
49

May be proven through circumstantial and direct examples of motives

(Arlington Heights)
Impact itself, when extreme (Yick Wo, Gomillion)
Historical background
Procedural
Substantive
Legislative history
If both proven
o Burden shifts to gov to show result would have been the same.
o If unable to do so, law will be treated as equivalent to a racial classification
strict scrutiny
o In practice, the law is doomed here: already proven to be racially motivated,
so applying strict scrutiny is a formality at this point
o

CASES
o Korematsu
Origin of strict scrutiny, not the best example of it
Facts: executive order to evacuate people of Japanese descent from their homes
during WWII
RULE: Laws concerning racial classification are immediately suspect (reviewed with
great suspicion and distrust), but not automatically invalid pressing public
necessity may sometimes justify restrictions
Pressing public necessity = Evidence of disloyalty + Lack of time and resources to
screen and segregate the disloyal from the loyal + Purported need to protect
national security
Dissent (Murphy):
Court affords wide authority to military discretion in wartime, given that officers
have greater knowledge of the facts being on the scene, BUT procedural due
process imposes limits on that.
Judicial test for gov depriving individual of rights based on plea of military
necessity = An immediate, imminent, and impending need as not to admit of
delay and not to permit the intervention of ordinary const processes to alleviate
the danger not met here
No reliable evidence suggesting that, by virtue of their ancestry, Japanese in
large numbers were enemies of the state. Rather, language in the order
indicates racial animus to be protected against
o Plessy (1896)
Facts: Jim Crow law (system of apartheid and gov mandated segregation in public)
in LA that separated railway carriages by race; Plessy was 1/8 black and asserted he
was wrongly removed.
Holding: separate but equal is permissible so long as facilities are equal tolerance
of legal racism
Martian analysis: Separation does not necessarily imply inequality or inferiority;
solely because the race chooses to put that construction upon it. Later, the court
contradicts itself saying if one race be inferior to the other socially, the constitution
of the US cannot put them upon the same plane.
Dissent (Harlan): Factors in social and historical circumstances; common knowledge
that the purpose of the law IS to impose a badge of inferiority
o Brown (1954)
Series of cases preceding Brown = NAACP strategy to bring cases in descending 1)
Order of inequality: refused admission to separate area of cafeteria; and 2) Level of
education: law school to primary
50

Going from blatant inequality impacting a small sector to lesser inequalities

having a broad impact
Purpose: so that deciding each case was modest enough for the Court to rule
against the segregation without directly overruling Plessy and while avoiding
political ramifications
Facts: Minors were denied admission to public schools in their community on basis
of segregation
RULE: Separate is inherently unequal
Denotes inferiority of status in the community; the impact is greater when
sanctioned by law Affects the motivation of a child to learn Tendency to
retard the educational and mental development of the community
Analysis of the 14th Am
o History is inconclusive: Divisive issue with avid proponents and opponents
+ public education had not yet taken hold in the South so lack of debate in
state gov
o Language: contain a necessary implication of positive immunity or right to
be exempt from legal discriminations implying inferiority in society,
lessening security of their enjoyment of fundamental rights, and reducing
them to the condition of a subject class
Court uses social science studies to support the conclusion
Rationale: did not want to allow room for a dissent and thereby lose weight
of unanimity
Critique: makes room for later vulnerability and critique of methodology
Loving
Facts: Miscegenation statute in VA; a white person could not marry a non-white
person
RULE: ALL racial classifications must be subjected to the most rigid scrutiny,
regardless of whether it punishes members of each race to the same degree
Analysis: Classification in statute applied only to marriages involving white persons,
suggesting it was designed to discrim Not even a legitimate purpose independent
of invidious racial discrimination
Palmer
Facts: Jackson closed its public swimming pools rather than having to desegregate
them. Black citizens filed suit to force the city to reopen pools, arguing the decision
was motivated to avoid integration.
RULE: Improper motivation alone doesnt render a statute unconst; analyze the
operative effect of law
Rationale:
Extremely difficult to ascertain the motivations behind a legislative enactment
Rarely just one motivation + can be inextricably interwoven
Futile for Court to invalidate a law because of bad motives alone if the law is
struck down for this reason, it would presumably be valid once re-passed for dif
purposes
Dissent (Douglas): This is not about swimming; its about the cost of pursuing
integration. Sends a message that the class may risk losing public facilities if
they attempt to protest. Motivation is important translates the closure as a
device to inhibit desegregation
WA v. Davis
Facts: claim against police department for its recruitment procedure including a
verbal skill test; claim was not about intentional discrimination, but rather that the
test bore no relationship to job performance and had a highly discriminatory impact
in screening out black candidates
51

RULE: Discriminatory impact alone does not trigger strict scrutiny analysis;
o Court applies rational basis review:
Neutral on its face: administered generally, concededly seeks to ascertain
level of verbal skill
Rationally serves gov interest: purpose here is not discriminatory, but rather
to enhance the verbal communication skills of its police force
o Dissent (Brennan): Lack of correlation between the challenged practice and jobrelated skills
Feeney
Facts: absolute preference for veterans in applying to certain job positions; broad
def of veterans
Analysis: Facially neutral
Discrim impact: By identifying veterans as the preferred group, discriminated
against women because 98% of veterans in the state were male
RULE: Discrim purpose Inevitability, foreseeability, or awareness of adverse
impact on identifiable group is insufficient; Must be part of the goal = because
of
Arlington Heights
Facts: city denied rezoning request that would allow multiple-family residences; had
a disproportionate effect on racial minorities, but need to also prove intent (WA v.
Davis); Claim is that this was a social issue meant to stop blacks from living there
RULE:
Burden of proof for intent: Must show invidious discrim purpose was a
motivating factor; rarely only one motivation, so partial motivation is acceptable
proof
Methods of showing intent:
o 1. Impact: In rare cases, the effect is so extreme it is unexplainable on
grounds other than race, and thus plaintiff can prove intent through impact
(Yick Wo, Gomillion)
o 2. Procedural irregularity: actor was skipping steps or tinkering with process
o 2. Substantive inconsistencies: the decision seems out-of-line with what the
gov would be normally prone to do; E.g. if the multi-family zoning request
would have put the area in line with surrounding zones
o 4. Legislative or administrative history: including contemporary statements
by members, minutes of its meetings, and reports; mostly a null category,
but a possibility
Burden shifting step:
o If discrim intent is shown Gov may rehabilitate the law by showing result
would have been the same without any impermissible motive
o Gov must show: discriminatory motivation was too minor or insignificant to
qualify as the intent behind the law, there are multiple motives at play
Croson
Facts: unyielding racial quota required prime contractors to subcontract at least
30% $$ of k to minority-owned businesses; did not apply to prime contractors
owned by minorities
RULE:
Compelling interest: requires direct evidence of a concrete harm in the field
related to the specific classification; NOT just a speculative and amorphous
claim of past discrim
Narrowly tailored:
o 1. Precisely calibrated / very close fit between what the law is trying to
achieve
52

o 2. Lack of alternative
Analysis:
Compelling interest? NO
o Exclusion of blacks from trade unions and training programs in the
construction industry doesnt show discrim by city or prime contractors in
relation to minority subcontractors
o Comparison: using past discrim in primary school to justify racial preference
in medical school admissions
o Lack of causal link: Sheer speculation of discrim impact on the specific field
o Random inclusion of other racial groups: weakens likelihood that the citys
interest was actually to remedy past discrim
o Passive Participant / plurality section: If city could show it had become a
passive participant in a system of racial exclusion practiced by the local
industry, it would serve as a compelling interest (in assuring that public
taxes do not serve to finance the evil of private prejudice)
o Policy: against generalized assertions of past discrim arbitrary +
immeasurable
Slippery slope: open the door to claims for remedial relief by every
disadvantaged group
Immeasurable: no guidance as to the precise scope of the injury to be
remedied
Arbitrary: mosaic of shifting preferences
Means no greater than necessary / narrowly tailored? NO
o 1. Very close fit between what the law is trying to achieve / means chosen
are precisely calibrated (not under or overinclusive)
Not here: overinclusive
Absoluteness of the quota: Rigid, mechanical, automatic,
formulaic
Unrealistic assumption of lockstep proportionality: between
minority representation in the population and minority pursuit of
a particular trade
Suggests: a more flexible inquiry, case-by-case assessment, using race
as a plus factor
o 2. Gov had no alternative
Must explain why alternatives wont work because use of race
classification is suspect, it is to be used as a last resort. Even if there
discrimination is proven, gov must show there was no less troubling
way to produce a similar salutary effect.
Here: City might otherwise
Offer financing for small firms
Prohibit discrim by local entities in providing credit
Modify bureaucratic barriers to increase opportunity for new
entrants
Note: Representation issue here racial minority held political majority in the
leg body if one aspect of the EPC is to protect discrete and insular
minorities from tyranny of the majority, this would normally support use of
lower scrutiny when the white majority places burdens upon itself. But here, it
would rather militate FOR heightened judicial scrutiny
Grutter
Colleges and universities may use race as one factor in admissions decision
(Bakke)

53

Facts: law school race-conscious admissions policy

Influential differences from Croson
Interest to enhance educational objectives / not solely to raise diversity
participation
Tailoring critical mass allowed flexibility and variance in #s / not a racial
balancing quota
Analysis:
Compelling interest YES: to achieve educ benefits by enrolling critical mass
of diversity
o Develop skills needed in an increasingly global marketplace
o Make classroom discussion livelier and more enlightening via wide variety of
backgrounds
o Avoid isolation and pressure to be the singular spokesperson for issues
related to minority
o Break down stereotypes by showing diversity within minority
Narrowly tailored YES: critical mass
o Quotas NOT permissible
Quantitatively fixes a number or proportion exclusively for a particular
class
Some attention to numbers without more does not amount to a
quota; naturally some relationship between numbers and
achieving goal
Insulates the individual from comparison with all other candidates
o Flexible range + not insulated IS permissible
Flexible range: number of minorities in each class varied within a 7%
range
Not insulated: used as a plus factor so ALL factors are meaningfully
considered alongside race
1) broad and unlimited range of diversity factors considered
2) frequently accepts nonminority applicants with lower grades
and test scores than minority applicants
o Lack of alt: Eliminating reliance on LSAT or GPA would reduce status of
the law school
Limited duration is required
School must keep searching for alternatives through periodic review or have a
sunset provisions
Rationale: Assures all citizens that deviation from the norm of equal treatment
is temporary, a measure taken in the service of the goal of equality itself
Dissent (Scalia): goal is really to convey general lessons in socialization; slippery
slope for future law suits
Dissent (Thomas):
Aesthetic goal = cruel farce resentment, badge of inferiority for all, and
some overmatched
The school does not even have an interest in existing other states do not have
law schools
Schools elite status causes it to be a way station for other states lawyers
Dissent (Kennedy): Deference is antithetical to strict scrutiny.

- Intermediate Scrutiny: Gender Classifications

54

Semi-suspect classification

Immutable yes

Socially salient: immediately visible

Not chosen: by chance of birth (Frontiero)

History of discrim yes

Classifications usually based on stereotypes (e.g. Lochner era)

romantic paternalism put women, not on a pedestal, but in a cage (Frontiero)

Discrete and insular minority yes and no

Patterns of political powerlessness and underrepresentation

Not the same social isolation; women live alongside men in society, family, and

community
Irrelevance of attribute yes and no

Some biological dif are meaningful and may justify discrim (e.g. muscle mass,
bone structure, maternal functions)

Identifying these differences does not carry the same disfavor or quality of

invidious thought
Generally bears no relation to ability to perform or contribute to society
(Frontiero)
TEST (laid out in Boren)

1) serve important gov objectives

Impermissible if used to (US v. Virginia)

o Denigrate either gender
o Stereotype by denying opportunity to all men or women artificial

constraint
2) substantially related to achievement of those objectives

CASES
o Frontiero
Facts: law allowed a serviceman to claim his wife as a dependent without burden of
proof, but required servicewomen to demonstrate dependency of husband
Analysis: applied strict scrutiny
Interest? administrative convenience: wives frequently are dependent, while
husbands are not
o No concrete evidence offered
o Potentially, gov could validly discrim if it was cheaper to holistically grant
increased benefits with respect to all male members than to independently
determine dependency
o Craig v. Boren
Facts: OK statute prohibited sale of low-alcohol beer to males under 21 and to
females under 18
TEST: Gender classifications must
1) serve important gov objectives
o Here: enhancement of traffic safety
2) be substantially related to achievement of those objectives
o Evidence is statistically trivial: .18% of females versus 2% of males arrested
for drunk driving
55

Dissent (Rehnquist): the level of scrutiny used here was invented out of thin air and
uses diaphanous and elastic phrases that invite subjective judicial preferences or
prejudices
US v. Virginia
o Facts: Virginia Military Institute was a single-sex public university. Virginia created a
womens college that was obviously inferior in its academic offerings, methods of
education, and financial resources: lower SAT score of entrants, faculty with fewer
Ph.D.s and significantly lower salaries, offered only a bachelor of arts degree so that any
student wanting an engineering or science degree had to spend two years out-of-state
paying private school tuition.
o Analysis:
Ends: exceedingly persuasive justification = important? NO
1. Benefits of diversity and educational benefits
Justifications must describe the actual state purpose, NOT merely a
rationalization
No evidence showed that VMI was established with a view of
diversifying through its categorical exclusion of women
2. Adversative method would have to be modified to include women
The notion that admitting women would downgrade the schools
stature mirrors the self-fulfilling prophecies of historical justifications
for denying rights/opportunities.
Education is not uniformly suitable, but people are not being forced to
attend VMI.
Rather, its a matter of whether the public school can const deny
persons with the will and capacity to succeed there solely based on
their gender.
The schools mission purports to advocate for American democracy
and free enterprise
Means: substantially related?
Inherent differences might be accepted (e.g. to compensate for particular
econ disabilities; to promote equal employment opportunity) but CANNOT
o Denigrate the members of EITHER sex
o Impose an artificial constraint an individuals opportunity: Stereotyping is
an impermissible basis for denying opportunity to all men or women
because it includes those whose talent and capacity place them outside
the average description
Remedial Requirement: Must closely fit the const violation aka be shaped to place
the injured party in the position they would have occupied in the absence of
discrimination
o Note: does not invalidate ALL public single-sex institutions; Unique no comparable
equivalent and thus special education for only one sex
o Like Plessy v. Ferguson separate but equal is acceptable if comparably equal
opportunities are offered
Class discussion:
o Hand-to-hand combat would be inherently altered in accordance with general social
understanding
Response: Should the gov go WITH the social norm or against it? Maybe right now
50% of each punch would be weakened now, but in 50 years that wouldnt be the
case
o Benefits of single-sex education:
Women might speak up more without social expectation to be submissive and could
lessen anxiety/stress by lessening instances of sexual assault

56

Response: like race, there is an implied hierarchy such that separate-but-equal

institutions may be inherently unfavorable to women (inferiority complex; less
networking and connections to power)
Men have enhanced focus on academics
Response: part of education is a socialization process that requires interaction
with both sexes

- Illegitimacy
o
o
o

Quasi-suspect class applying intermediate scrutiny Substantially related to an

important gov interest
Law denying benefits to ALL non-marital children are invalidated (too under or
overinclusive)
One interest the court has accepted states need to eliminate fraud and have
accurate/reliable procedures for determining paternity E.g. requiring the child to
establish paternity while the father is still alive

Intermediate Scrutiny: Alienage Classifications

-

Definition: discrim against non-citizens; not about the country the person came from
(national origin)
Origins: EPC explicitly says that no person shall be denied equal protection of the laws,
rather than citizen
TEST:
o Alienage = discrimination against non-citizens
o General rule: strict scrutiny (Graham)
o Two major exceptions: Rational basis for classifications related to
1. Self-government or democratic process
E.g. state may deny aliens the right to vote, hold political office, and serve on
juries
Rationale: A democratic society is ruled by its people (Foley)
o The laws to which the citizens are subject should be created and enforced
by people who are
o Substantial effect on
2. Federal law / Congressionally approved discrim
Immigration and foreign policy
Federal gov has plenary power to regulate immigration, thus Court has been
deferential to federal statutes and presidential orders that discriminate against
aliens
Overall rationale: it is reasonable to allocate benefits and burdens to citizenship
CASES
o Graham: AZ law denied welfare benefits to aliens who had not resided in America for a
certain time
o Foley
Facts: law required citizenship for acceptance onto state police force
TEST: whether the position involves discretionary decision making, or execution of
policy, which substantially affects members of the political community?
Rationale a democratic society is ruled by its people
Here: these officers are entrusted with many important policy responsibilities having
a serious impact on the day-to-day life of citizens; it is permissible for the state to
presume that a citizen would be in a better posture to fulfill that role
Marshall dissent: Lack of a meaningful line between this exception and strict
scrutiny
57

Court has since permitted other roles including elementary school teachers and
probation officers, while rejecting the notary public (administers over non-contentious
matters such as taking affidavits and oaths)

58

Substantive Due Process:

Fundamental Rights
-

EPC: Concerned with gov action that distinguishes between groups of people; acknowledges
that laws necessitate some arbitrary classification and so guards specifically against
invidious discrimination
Procedural Due Process: e.g. notice, opportunity to be heard by a neutral body; does not
constrain gov power
Substantive component of Due Process: steps in to fill the void protects against gov action
that is unduly invasive of rights deemed to be fundamental by using strict scrutiny

Origins of SDP
-

Not expressly within text of the 14th Am; based on judicial interpretation
Started with the Lochner era
o Court used freedom of k under Due Process to limit gov regulation and protect
economic liberty
o Lochner
Facts: law limited the hours an employee could work in a bakery or confectionary
establishment
5-4 in favor of freedom to k; purportedly uses rational basis but does not tolerate
underinclusiveness
Analysis: Interferes with right of k between employer and employee which is a
liberty protected by 14th Am this limits state police power court must scrutinize
the law to ensure it is a fair, reasonable exercise of the police powers of the state
Dissent (Holmes): Const is not intended to embody a particular economic theory
whether of paternalism or laissez faire
Laissez-faire period ended with The Great Depression when it became obvious that freedom
of k was an empty promise and did not offer any meaningful freedom for employees
o West Coast Hotel
Facts: WA state law established a minimum wage for women and minors
RULE: SDP does not proffer an absolute liberty, but rather a liberty which gov is
expected to protect involving social welfare and freedom; Regulation must be
reasonable in relation to its subject + adopted in the interests of the community
Purpose: not arbitrary or capricious; to prevent exploitation of employees with
relatively weak bargaining power, which places a direct burden upon the community
to support them (not just detrimental to personal health and well-being) Even if
wisdom is debatable, leg is entitled to a wide field of discretion
Means: oriented towards the class receiving the least pay
o Carolene Products
Facts: Filled Milk Act prohibited interstate shipment of milk compounded with any
fat/oil besides milk fat
Issue: does this infringe the Fifth Amendment? NO.
Analysis: Deference to leg regarding laws governing ordinary commercial transactions
rational basis
RULE: What might warrant a more searching judicial inquiry
discrete and insular minorities = unable to protect their interests through the
political process
When leg facially interferes with rights encapsulated in the bill of rights or distorts
the political process
o Williamson
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Facts: law limited the work a non-licensee could perform without a prescription from a
licensed expert
RULE: any conceivable leg purpose will suffice extremely deferential to economic
regulations now
Analysis:
Court admitted the law may exact a needless, wasteful requirement in many cases
It is for the leg to balance the advantages and disadvantages of the new
requirement
Legislature might have concluded the frequency of occasions was sufficient to
justify regulation
Any conceivable purpose will suffice: Eye exams were so critical for detecting
latent ailments or diseases such that every new frame or lens should be
accompanied by a prescription note: the law does not require new eye exams
every time there are new frames or lenses
The Lochner era now represents the worst of judicial activism and interference with the will of
the populace
However, there are still rights perceived as so fundamental they should be examined under
strict scrutiny despite not expressly found within the const
Why and when do we reject/approve the courts overturning laws as violating the const?

Analysis Track:
-

1) Is there a fundamental right at stake?

o Precedent: Assess the degree of specificity or breadth encompassed
Right to procreate (Skinner)
Right to privacy (Griswold)
Right to reproductive autonomy (Griswold)
Right to abortion (Roe)
Right to marry (Loving)
Right to control upbringing of own children
Right to keep family together
o Undecided:
Is the right
Deeply rooted in national tradition and collective conscience of our people?
(Griswold / Moore)
OR
Essential to the orderly pursuit of happiness? (Loving)
o Tradition does not negate the right as fundamental
2) Is that right actually being infringed?
o Practical assessment of how the law would operate
o Direct and substantial interference with that right
More of a flat-out prohibition (Loving) OR trivial/logistical requirement?
Tangential OR may influence individual behavior?
3) If yes, does the law being challenged satisfy strict scrutiny?
4) If not a fundamental right being infringed, then does the law satisfy rational basis review?
Right to procreate
o Buck
Facts: law imposed involuntary sterilization of mental defectives
Highlights the dif between substantive and procedural due process:
60

When the superintendent came to the conclusion it would be beneficial for a

patient to be sterilized, he went through the proper procedural requirements to
perform the operation. Carrie Buck was not contending that the superintendent
violated any part of the procedure, but rather that no amount of procedure can
justify such a violation of liberty.
Analysis:
Purpose of the act: Health of the patient + welfare of society
o Public welfare: to prevent those who are manifestly unfit from continuing
their kind and thereby prevent the nation being swamped with incompetence
Means: may call upon the best citizens for their lives here, sterilization is a
lesser sacrifice
Cannot say as a matter of law that the grounds do not exist justifies result
o Skinner
Facts: law imposed involuntary sterilization of habitual criminals (those convicted of
2+ times for crimes amounting to felonies involving moral turpitude) Skinner had
been convicted twice of larceny.
RULE:
Marriage and procreation are fundamental to the very existence and survival of
the race
Analysis
Rationale justifying invalidity of sterilization
o Cause certain classes which are inimical to the dominant group to wither and
disappear
o There is no redemption for the individual whom the law touches
EPC Rational basis review
o The law differentiates between larceny and embezzlement offenses; not a
protected class
o State cannot distinguish between these classes upon conspicuously artificial
lines without providing sufficient reason
Concurrence: applies SDP I seriously doubt the EPC requires it to apply the
measure to all criminals in the first instance, or to none should ask whether the
wholesale condemnation of a class to such an invasion of personal liberty satisfies
the demands of due process
Right to privacy / reproductive autonomy
o Griswold to purchase and use contraceptives
Facts: Doctors violated statute forbidding them from assisting or counseling others in
using contraceptives
RULE: prohibition on contraception has a maximum destructive impact upon the zone
of privacy in marriage that is created by several fundamental const guarantees
Analysis:
Penumbra basis for const rights: arising from various guarantees in the Bill of
Rights (Pierce; Meyer)
o 1st right of association (used in Pierce and Meyer)
o 3rd prohibition against the quartering of soldiers
o 4th right to be secure against unreasonable searches and seizures
o 5th gov may not force citizen to self-incriminate creates a zone of privacy
akin to the concept that gov may not intrude upon other privacies
o 9th The enumeration in the Const, of certain rights, shall not be construed
to deny or disparage others retained by the people

61

we look at these amendments together as an interlocking whole, and together

they demonstrate the framers intended to create a zone of privacy and that
privacy was an important value to them
Here, we are dealing with a deep-rooted right to privacy = Marriage is older than
our political parties and school systems so if these privacy rights have been
protected, marriage must be as well
Goldberg concurrence:
Highlights the importance of the 9th Am
o Precedent:
Marbury v. Madison: it cannot be presumed that any clause in the const
is intended to be without effect
Myers v. US: in interpreting the const, real effect should be given to all
the words it uses
o To allow the infringement of such a fundamental, basic, and deep-rooted right
would 1. Ignore the 9th Am and give it no effect whatsoever; and moreover 2.
Would violate the 9th Am
Courts must look to the traditions and collective conscience of our people to
determine whether a principle is so rooted there as to be ranked as fundamental
(not the precise definition)
Harlan concurrence:
Proper inquiry = DPC of 14th Am
The word liberty within the DPC includes the right to make reproductive choices
Problem with this suggestion: it encapsulates the Lochner approach, which is now
disfavored (as pointed out in the majority, which rejects the Lochner approach
because we do not sit as a super-legislature)
Black dissent:
Starts off saying the law is every bit as offensive to me BUT we are compelled
to uphold it
Argument:
o No general right to privacy in the Const The extent to which the Const does
protect privacy, it does so only in certain enumerated circumstances. The gov
has a right to invade privacy unless prohibited by some specific const
provision.
o Neither DPC nor 9th Am could serve as a proper basis for invalidating the law
Innately, the court must apply their personal and private notion there is
no gadget to measure the collective conscience of the people in a reliable
and accurate way this is just a thin cover for the Court to uphold values it
thinks important
o The framers provided the means to amend itself in accordance with changes
in societal opinion through Article 5
Discussion:
How could the Const be amended to include the right at hand?
o Right to make procreative choices we are hard-pressed to find language
that would capture what enough of us want to survive the 2/3 amendment
process e.g. some view abortion as a criminal act
o Right to individual autonomy almost no limited principle at all
o Right to privacy suggests a right to autonomy, but limits it to private
choices rather than economic or social choices
Supreme court does not use the penumbra theory or 9 th Am Ultimately the
substantive due process approach won out in later cases as the formula for
analysis
62

o
o

Penumbra approach: embarrassing because it seemed like a grab-bag search

for semi-related Const support
9th Am: controversial
Some agree that it protects a whole realm of unremunerated rights.
Some think it is just a rule of construction that forecloses a particular
type of interpretive argument (when youre having your fight, what you
shouldnt be doing is saying a right doesnt exist because its not
expressly there).
Some think it only limits federal gov because the term people is
basically the people speaking their state and local gov.
If you find Lochner inappropriate but Skinner appropriate how do you
defend that intuition?
Private, individual choices v. broad, social choices
The liberty approved by Lochner was a farce and actually deprived the
working class of liberty, whereas the right to contraception is meaningful
Consequences of these decisions Lochner contributed to the
Depression and so disfavored by public opinion BUT judiciary is
supposed to be immune to public sentiment
Textualist argument: The way that judges show restraint is by tethering
themselves to the text of the Constitution when we see the word liberty
we should interpret it only so far as it does not have ripple effects in the
community

Eisenstadt
Facts: law distinguished between married couples and single persons in relation to
allowing contraception
RULE: made review based on the individual rather than marital couple
Analysis:
There is no rational purpose of treating marital couples and single persons
separately
Purpose:
o To protect/encourage purity, chastity, self-restraint, sanctity of the home, and
virtue
o Sufficient
Means:
o It is plainly unreasonable to assume that the state determined pregnancy and
the birth of an unwanted child as punishment for fornication at best a
marginal relation to the proffered objective People will engage in the
behavior the state deems as immoral, but will only be prevented from
preventing unwanted pregnancy
Arguments: If you were the state/pro-contraception, how would you use Griswold to
defend your position?
State: The courts decision cannot be disentangled from marriage in the social
structure
Pro-contraception: The marital couple is not an individual entity each individual
has a separate emotional and physical make-up and individual liberty matters at
the individual level, not the couple
Rule: Right of privacy involves the right of the individual (regardless of relationship
status) to be free from unwarranted gov intrusion into matters so fundamentally
affecting a person as the decision whether to beget a child
Burger dissent: Distinguishing Griswold: The Court now is confronted with a statute
that regulates distribution of contraceptives, not a blanket prohibition The Court has
passed into the area of personal predilections
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The Right to Abortion

-

Possible analysis tracks

o concept of personal liberty contained in the Fourteenth Amendments Due Process Clause
o personal marital, familial, and sexual privacy protected by the Bill of Rights or its
penumbras
o among the rights reserved to the people by the Ninth Amendment?
Eisenstadt emphasizes departure from Griswold in that it does not rely on sanctity of marital
relationship If the right of privacy means anything it is on the individual basis the very
next year the Court decided Roe v. Wade
Roe
o 1973 Justice Blackmun wrote the opinion / surprise nominated by Nixon, close with
Burger, republican
o Facts: Jane Roe brought a declaratory judgment action to prevent the enforcement of
Texas statutes criminalizing all abortions except to save the mothers life.
o Analysis:
Abortion was a crime in 46 states
most deriving from latter half of 19th century
Reasons for these statutes:
Victorian social concern to discourage illicit sexual conduct (not taken seriously by
courts)
Hazardousness of procedure modern medical techniques have made abortions
relatively safe particularly in the first trimester
State interest in protecting prenatal life as long as at least potential life is
involved, the State may assert interests beyond the protection of the pregnant
woman alone
Why States cannot fully outlaw abortions:
Mental and physical health may be taxed by child care
Psychological harm of maternity on an unwilling woman
Stigma of unwed motherhood
Lack of resources to care for child
When is there a state interest?
Nobody takes seriously the states interest in protecting against illicit sexual
activity (interesting because that was a main justification for the statute in the
case the year before)
**health and safety of mother
** protecting the potentiality of fetal life
o People disagree profoundly about when life begins:
At conception Catholics / TX problem: Court cannot get entangled
with religion
Viability (potentially able to live outside mothers womb with artificial
aid) physicians and scientific colleagues problem: this is always
changing
o Why Roe is challenging Court says that these interests (maternal health and fetal life)
become more compelling as the pregnancy proceeds
o Holding:
Right to personal privacy includes the abortion decision, but the right is not
unqualified and must be considered against important state interests in regulation
Blackmun is forecasting trimester viability approach
Prior to the approximate end of the first trimester, the abortion decision must fall
to the medical judgment of the womans physician and not criminalized by statute
64

After the first trimester, the State may regulate and even proscribe abortion,
except where necessary for the preservation of the mothers life State interest:
potential fetal life
Grounded in strict scrutiny
Abortion is a fundamental right part of the broader right to privacy
Has to further compelling state interest and be narrowly tailored
Whats challenging is the states interest changes during course of pregnancy
o Virtually no interest in the first trimester
o After first
o Dissent (Rehnquist): the right to abortion is not universally accepted, and thus the right to
privacy is not inherently involved here
Casey
o OConnor majority
o Analysis of stare decisis
Have the relevant facts changed? that just goes to timing of viability, not
applicable to Roes central holding
Reliance?
o Argument: it would be inequitable to back away from Roe decision because
people have
o There IS a reliance interest over the past decades, women have organized
intimate relationships that they would be able to turn to abortion
Prudential
Pragmatic
OConnor refuses to overrule Roes central holding
There is a stare decisis reason to follow that precedent
However, changes are in the midst Drawing a line of viability
Court rejects trimester framework altogether where almost no regulation was
permitted in the first trimester
The plurality is opening up the possibility for regulation from the outset of
pregnancy so long as it doesnt out rightly refuse abortion
Up to viability, the woman has to have the right to choose an abortion + the state
has the right to ensure that the decision is thoughtful and informed = dramatic
departure from Roe
o only where state regulation imposes an undue burden on womans ability
to have an abortion
o The law has the is shorthand for the conclusion that the law has the purpose
or effect of placing a substantial obstacle in the path of a woman seeking to
abort a non-viable fetus
o After viability, states can prohibit abortion
o Rule: A law is invalid if its purpose or effect is to place a substantial obstacle / undue
burden in the path of a woman seeking an abortion at a stage of her pregnancy before
the fetus attains viability
o Scalia: sweet mystery of life passage
Using the undue burden principle, the court has upheld
o Requiring women to give informed consent by being provided with typical milestones and
other information to ensure the decision is thoughtful and informed
o Requiring a 24-waiting period before the procedure could be performed after information
o Parental consent for minors with a bypass neutral decision maker as an alternative is
appropriate
o FAILED: spousal notification provision
Extensive findings of spousal abuse
65

Summary of Abortion Regulations

-

Abortion is still considered a fundamental right under the DPC (Roe)

Casey rejected the trimester approach. Up until viability, a woman must still be allowed to get
an abortion BUT states may regulate abortions as long the law does not impose an undue
burden the purpose or effect of placing a substantial obstacle in the path of a woman
seeking to get an abortion
This is an ambiguous test, but the Court has ruled on several regulations
o that they deemed not an undue burden
24-hour waiting period, which is often in conjunction with a mandatory provision of
information about fetal development to induce reflection
Parental consent for minors as long as there is a judicial bypass
Narrow ban on a particular type of procedure (decided in 2007 with a federal partialbirth abortion law)
o As well as some that constitute an undue burden
BUT a regulation that takes off too many methods would constitute a substantial
obstacle
Spousal notice
States CAN prohibit abortion after viability = meaningful life that could survive outside the
womb
o This is a moving target that is likely to change
o It may be possible to challenge the states definition of viability as conflicting with what
the court defined in Roe

The right to marry

o First recognized as a fundamental right in Loving v. Virginia
o Loving
Facts: VA statute prevented marriage between persons solely on the basis of racial
classifications
State argument: the law operated equally upon whites and blacks alike shouldnt
be thought of as a violation because it applied equally
Court response: these miscegenation statutes are still racial classifications apply
strict scrutiny (Korematsu) not a compelling interest
Issue: whether statute violates the EPC and DPC of the Fourteenth Amendment?
Rationale:
Fundamental right Freedom to marry has long been recognized as one of the
vital personal rights essential to the orderly pursuit of happiness by free men
fundamental to our very existence and survival
Court went an extra step that was unnecessary = The statute is doubly offensive
o racial classifications + applied to marriages
o State is using impermissible/invidious racial discrimination (EPC) to limit the
fundamental right of marriage (DPC) and so violates both EPC and DPC
EPC: impermissible race discrimination
DPC: to deny this fundamental freedom on so unsupportable a basis as
the racial classifications of equality at the heart of the 14 th Am is surely to
deprive all the States citizens of liberty without due process of law
essential to the orderly pursuit of happiness by free men
o Because of this extra step, Loving still continues to be important particularly
with same-sex marriage
66

The right of parents to control the upbringing of their children

First cases recognizing family autonomy involved this right
Decided during the Lochner era and expressly use substantive due process to protect
this right
o Meyer
Facts: teacher unlawfully taught a 10-year-old child German
Law: prohibited teaching any language besides English
Purpose: Ethnically German population of the mid-west, during wartime, wanted
citizens to identify as American before identifying with German heritage
Liberty defined
Defending SDP by framers intent + language Drafters intentionally used a term
that is more capacious than merely physical restraint; Includes more than just
freedom from physical restraint
McReynolds feels comfortable enough to list rights included, such as the right to
o K
o Engage in any of the common occupations of life
o Acquire useful knowledge
o Marry
o Establish a home and bring up children
o Worship God according to the dictates of his own conscience
o enjoyment of those privileges long recognized at CL as essential to the
orderly pursuit of happiness by free persons this language stands
alongside the language in Griswold for when a right is fundamental this
language appears in later civil rights cases
Critique of the list Overly broad not even sure what the things on his list mean
o There is still a lot of uncertainty about the contours of this right
Parents have a constitutionally protected right to control the upbringing of their
child / part of the liberty that is protected by the 14 th Am this aspect of Meyer
has endured
o We dont
**** Test: Is the right in question essential to the orderly pursuit of happiness by
free men? ****
o Pierce
Goes hand-in-hand with Meyer establishes general proposition that parents have
right to control over their childs welfare
Facts: law forced standardization of education by requiring parents to send children to
public school education
Note by Aviel: We still have the requirement that parents send kids to school so. In
effect, there is a bifurcated scheme the parents who can afford private or parochial
school can send their children there while parents who cant afford it must send kids
to public school
Liberty: of parents and guardians to direct the upbringing and education of children
under their control
o Note Cases
Not absolute right:
Vaccinations
Labor (Prince)
Prince v. MA not unlimited
Facts: 9-year-old directed by parents to solicit for the Jehovahs Witness religion
Rule: Family is not beyond regulation in the public interest
67

Rationale: the need to protect children from being exploited and harmed justified
the laws prohibiting child labor even IF work was at the direction of the parents
and done for religious purposes
Wisconsin v. Yoder deference to parents
Facts: Amish parents allowed to exempt teenage children from compulsory school
attendance
Rule: in weighing competing claims of parents and state Court has given great
deference to parents
Rationale:
o right to control the upbringing of their children and free exercise of
religion
o Additional education would threaten their childrens religious beliefs and the
uniquely insulated Amish culture
o No evidence of any harm to the 1) physical or mental health of the child, or 2)
to the public safety, peace, order, or welfare
Parham v. J.R. deference to parents
Facts: due process in parents committing child to an institution
Rationale: that some parents may at times be acting against the interests of their
children is a basis for caution, not a basis to discard the assumption that a parent
generally acts in the childs best interest statist notion that favors gov power
over all parental authority because some parents abuse and neglect children
is repugnant to American tradition

The right to keep the family together

o Includes extended family
o Moore
Plurality opinion
However, this has not undermined the strength of the decision; court has later
cited to it enough that it is part of the set of cases that articulate some sort of
right for family decision-making that dont need to be within marriage or parent
decision making
Stevens concurrence (wanted to decide case using property rights rationale)
Facts: A city housing ordinance placed restrictions upon occupancy to members of a
single family, which it limited to only a few categories of related individuals. Inez
Moore was sentenced to 5 days in jail and a fine for living with her son and her two
grandsons. The two boys were first cousins rather than brothers, the cousin had come
to live with his grandmother after his mother died, and so was considered an illegal
occupant.
She raises both DPC and EPC challenge.
Liberty protected: right for families decide to live together
Analysis:
Distinguished Belle Terre v. Boraas: that case affected only unrelated individuals
(all who are related by blood can live together) so only applied rational basis
Here, court applies strict scrutiny
o City interests are legitimate: Preventing overcrowding , minimizing traffic and
parking congestion, and avoiding an undue financial burden on school system
o Tenuous relation / marginal at best / the problem is in the tailoring:
Overinclusiveness: sweeps into its confines people who are not even
related to the problem; e.g. forbids an adult brother and sister to share a
household, even if the both faithfully use public transportation
68

Underinclusiveness: fails to include persons who are part of the problem;

e.g. allows a family with a dozen kids to live together, each with his or
her own car
E.g. of tailoring that better address these issues: Requiring parking
permits

Const protection for sexual orientation and sexual activity

-

Lawrence v. TX
o Facts: law made it a criminal offense to engage in deviate sexual intercourse meaning
oral or anal sex with an individual of the same sex; police entered private residence and
observed two men engaging in a sexual act
o Issue: whether the petitioners were free as adults to engage in the private conduct in the
exercise of liberty under the DPC of the 14th Am?
o Bowers v. Hardwick
Summary: 1986 / GA law prohibited conduct whether or not the participants were of
the same sex. There is not a fundamental right to sodomy, applied rational basis
review, and upheld law prohibiting sodomy. The Court in Lawrence expressly overruled
this precedent.
Analysis by Lawrence Court:
Bowers issue: whether the Const confers a fundamental right for homosexuals to
engage in sodomy?
o Failed to appreciate the extent of the liberty at stake
o Demeans the claim put forward just as it would demean a married couple to
claim marriage is just about the right to sexual intercourse
Statutes = Invasion of privacy
o Statute purports to do no more than prohibit a particular sexual act
o BUT the penalties and purpose have more far-reaching consequences
o Seeks to control a personal relationship involving a personal bond that is
more enduring than the overt expression of sexual conduct that it outlaws
Touches upon the most private human conduct (sexual behavior)
In the most private of places (the home)
Historical premises are doubtful
o No longstanding history directed at homosexual conduct as a distinct matter
o Early American sodomy laws
General condemnation of non-procreative sexual activity
To ensure no lack of coverage if a predator committed a sexual assault
that did not constitute rape as defined by criminal law
Infrequent prosecution of private conduct difficult to say that society
approved of a rigorous and systematic punishment of such private, adult,
consensual acts
o Recent history
Show an emerging awareness that liberty gives substantial protection to
adults in conducting their private lives in matter pertaining to sex
Major decrease in number of states that have and enforce laws only
against homosexuals
References the cases of Casey and Romer
Sloppy!
o Calls the conduct an exercise of their liberty, but never declared that
homosexual sodomy is a fundamental right under DPC, but seems to apply
rational basis by referencing the lack of a legitimate state interest
o Could have said
69

We dont need to decide whether heightened scrutiny applies, because

this case fails even rational basis review
Could have identified homosexuality as a suspect class
Could have said there was a fundamental right to private consensual
sexual activity or personal relationships
o Concurrence (OConnor)
Disagreed with overturning of Bowers
In Bowers interest in promoting morality was deemed a rational basis for the
law
BUT HERE violates EPC because directed at a group rather than an act
Not a suspect class, so applies rational basis
o Purpose of classifications wont satisfy rational basis if
For disadvantaging the group burdened by the law
Moral disapproval of a group
Bare desire to harm the group
o Evidence of animosity toward class rarely enforced with private consensual
acts, so more of a statement of disapproval
o If there was a neutral sodomy law, in both effect and application it might
be constitutional, but she is confident that democratic society would not likely
tolerate these laws if it involves their right to engage in certain private
conduct as well
Discussion about this rationale:
o Moral disapproval of a conduct is innately moral disapproval of a group
o Her fix is insufficient, does not address the inequality that shes worried
about
o Dissent (Scalia)
Stare decisis
Historically: The right to engage in this conduct is NOT deeply rooted in this Nations
history and tradition or implicit in the concept of ordered liberty
Sodomy was a criminal offense at common law
Lack of enforcement doesnt mean recognition of the right practical difficulties
due to illegal conduct occurring in privacy of home
An emerging awareness by definition means it is not deeply rooted or traditional
value
Rational Basis
Legitimate purpose:
o To further the belief of its citizens that certain forms of sexual behavior are
immoral and unacceptable
o Same interest furthered by criminal laws against fornication, bigamy,
adultery, adult incest, bestiality, and obscenity
Concurrence casts doubt on whether laws limiting marriage could pass rational-basis
scrutiny
Court has obligation to decide cases neutrally, whereas the majority has signed onto
the homosexual agenda
Importance of moral disapprobation as a legitimate state interest for proscribing that
conduct
Morals legislation appropriate justification here?
o Justification
Morality is inextricable from law
Deference to the democratic process and resultant legislative judgments
o Nope

70

This realm of activity is private distinction between people that only impacts the
people engaged in it
Cannot impose religious views on another person
Morality of society = tyranny of the majority

71

Mini Outline/Checklist:
Article III Source of Judicial Power
Authority for Judicial Review (Doctrine of Judicial Review) Marbury v. Madison
Limits on Federal Judicial Power Justiciability Doctrines
Central Themes (1) Separation of Powers (2) Federalism
Marbury v. Madison: The Authority for Judicial Review of Congressional and Presidential Actions
The Authority for Judicial Review of State and Local Actions Hunter v. Lessee [fed. Treaty interp.] &
Cohens v. Virgina [brothers convicted]
Cooper v. Aaron Federal cts. Authority to review constitutionality of state laws and the actions of state
officials

JUSTICIABILITY DOCTRINES: determine which matters federal courts can hear and decide and which must be dismissed.
There are two types: (1) Constitutional = Art. III interp. (2) Prudential = discretionary/self-restraint.
STANDING
RIPENESS
MOOTNESSPOLITICAL QUESTION DOCTRINE

72