The Separation of Federal Powers

The Role of the Judiciary

 Introduction to the Constitution
o In reviewing the Constitution’s text, what goals did the Framers appear to have in mind?
 To improve the Articles of Confederation
 The AOC had Congress but no judicial or executive branch.
o Congress was NOT given the power to tax or regulate commerce
 It treated each state to have its own sovereignty, freedom, independence and
jurisdiction that was not expressly stated in the AOC
 Conversations in the Creation of the Constitution:
 Federalists: support the constitution creating a strong federal government
 Anti-federalists- opposed a strong federal government
 Purpose of the Constitution
 establishes a national government and divides and delegates power among 3 branches
o promotes checks and balances,
o prevents tyranny (too much power for one person)
o framers only wanted the federal gov to act when necessary
 Control the relationship b.t federal gov and the states
o Legislative powers delegated to US congress had to be explicitly authorized by
the constitution (Article 1)
o Powers not expressly delegated to Congress was reserved by the states (10th
Amendment)
 Limit government power by protecting individual rights.
o Article 1 prevents Congress from enacting bills of attainder ex post facto laws,
suspending habeas corpous, impairing obligation of contracts
o How does one use the Constitution to solve a problem of national import?
 The constitution limits federal power so its very difficult to change the constitution and
easier to change a statute constitution helps limit power to prevent tyranny
 The constitution is society’s attempt to limit itself: bind future generations
 The Authority for Judicial Review: Marbury v. Madison
o Justifications for Judicial Review
 Someone must decide what is constitutional; if the judicial branch cannot say what law
congress created is const, then the const is no longer the supreme law of the land
 Can review ministerial acts
o Justifications Against
 Not explicitly stated in the constitution
 No right to review exec conduct examples:
 Veto power
 Signing statements
 Pardons
 Political acts
o Holding: court held that it lacked jurisdiction to grant a writ of mandamus through original jurisdiction
(Judiciary Act of 1789 unconstitutional)
o Significance: The role of the judiciary is to interpret the constitution
 Allows SC to review executive conduct for constitutionality
 Allows SC to review legislative actions for constitutionality
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  The Con. Is regulatory
 Congress can not increase the jx of the federal courts
 Limited by Article III Section 2
 Possible Limits on the Judicial Power
o The method of constitutional Interpretation
 Originalism- enforcing norms that are clearly and expressly stated in the constitution-
protects values of stability
 Benefits- accurate, predictable, stability
 Problems- doesn’t allow for moral/social change very easily
 Non-originalism- protects values not stated or implied in const (world changes)
 Benefits- allows for change of society views, con needs to be able to keep up
 Problems- to easily changeable, people change their minds all the time
o Congress as a Possible Limit
 District of Columbia v. Heller (Tools of Interpretation)
 Text of the 2nd amendment (Structure)
o Majority Interprets the 2nds amendment by separating the clauses
 Prefatory Clause- “well Regulated militia”= disciplined and trained militia
comprised of all makes physically capable of acting in concert for the
common defense. “Security of the free state”= security of a free polity, not
security of each of the several state
 Operative Clause- “Right of the people”= all of the people “Keep and bear
arms”= hold weapons
 The dissent doesn’t believe in separating the clauses and interprets the clauses differently.
But says right of the people is all of the people and keep and bear arms refers to holding
weapons
 Intent
o Majority- weapons for self protection is a basic right
o Dissent- for military service
 History (how its been regarded throughout history)
 Precedent (taken from cases)
 Policy (Consequences of Interpretation)

The Division of Power Between the Executive and Legislative Branches

 Separation of Powers and Presidential Authority
o Purpose (Prevent tyranny and efficiency of administration)
o Models
 Formalism- Strict adherence by each branch to the powers specifically given to it
 Functionalism- Stick to the purpose of distributing the powers; The separation is violated only
if one branch aggrandizes its power at the expense of another branch
o Inherent Executive Power
 Source of Power
 Hamilton view- there is an inherent exec authority
o To make this argument look at the relationship btw Article I and II, pres has
authority not specifically delineated by the con
 Article I- all leg powers herein granted
 Article II- the exec power shall be vested and he shall take care that the
laws be faithfully executed
o Conclusion: Article I is a limit on power, Article II is not
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  Madison view- there is no inherent exec power
o Inherent power is inconsit with const. there are no enumerated powers in Article
II
 Executive Orders- legally binding orders given by the President to Federal Administrative
Agencies. (authority taken from Article 2 of the constitution)
 Youngstown Sheet & Tube Co v. Sawyer 4 modes of inherent executive power
o Model 1: Pure Formalism (what the majority takes in this case)
 Looks specifically to powers granted by the con or statute. Says prez
may act only if there is constitutional or statutory authority
 No inherent authority
o Model 2:
 Pres may act until he usurps (takes over a power, prevents another
branch from performing its function) the power of another branch of gov
o Model 3:
 Pres may exercise inherent power until congress acts to limit him
o Model 4:
 Pres had inherent authority and may act unless he violates a specific con
limitationThis gives the prez greater power
o Functional Approach (Combination of the models)
 Category 1 Congress authorizes President’s action (President’s authority
at its highest)
 Category 2 Congress / Constitution silent on President’s action (“twilight
zone”)
 Category 3 Congress disapproves of President’s action -express or
implied (President’s authority at its lowest)
o Significance:
 Pres may not "execute" laws of his own making: the pres may not
constitutionally legislate on his own authority, ever!
 Pres is not/cannot be the sole judge of scope of his con and statutory
powers
 SC can and will rule on these questions in matters of war, foreign affairs,
nations security, and national emergency
 Executive Privilege- to protect communications between the prez and staff
 Source of Privilege
o U.S. V. Nixon Balancing Test: The judiciary must balance the need for
information in a judicial proceeding and the executives of Article II
prerogatives. The exec privilege exists, it comes from supremecy of each branch
from their constitutional duties but the executive privilege is not abolsute
 Holding in this case was there was no good justification for the privilege
 Congress’ Authority to Increase Executive Power
o Clinton v. City of New York
 Line Item Veto- pres can cancel parts of appropriation bills while allowing others to go into
effect through certain procedures.
 3 types of provisions: any dollar amount of discretionary budget authority, any item of
new direct spending, and any limited tax benefit
 The Formalist Approach in this case focused on intent and text (conficlts with Articles of
Constitution)

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  The functional approach in this case focuses on history and policy- the objective of a line item
veto is constitutionally proper. It is in accordance with Article 1 Section 7, it is different from
this procedure
 Administrative Power and the Constitution
o Non-delegation doctrine comes from Article I Section I; the principle that congress cannot delegate
legislative power
o To be constitutional, congress must lay down by legislative act an intelligible principle to which the
person or body authorized to act is directed to conform
o ALA Schechter Poultry Corp. v. US
 Issue: whether Congr can give Prez power to approve codes of fair competition (gives the prez
unlimited discretion)
 Rational: Congress cannot delegate legislative power to the pres to exercise an unlimited
discretion to make whatever laws he thinks may be needed or advisable
 Holding: this is an unconsitutional delegation of lef power
o Whitman v. American Truncking Assn Inc.
 Issue: whether the statute has delegated legislative power to the agency
 Rule: when congress confers decision making authority upon agencies congress must lay down
by legislative act an intelligible principle to which the person or body authorized to act is direct
to conform
 Bottom line: so long as the court can find an "intelligible principle" to guide the agency's
decision, the court will uphold the law
 Checking Administrative Power
o Legislative Veto and its demise- Used by a vote of one House in Congress or it can be a joint
resolution, or congressional committee vote; Congr. can overturn an agency’ decision
 Immigration & Naturalization Service v. Jagdish Rai Chadha
 Issue: whether the action of one House of Congress violated structures of the con
 Holding: legislative vetoes are piece of legislation, legislation can only occur through
the legislative process (bicameralism and to the president), in this case, the legislation
was not properly enacted through the legislative process because the action by the
House was not within any of the express constitutional exceptions authorizing one
House to act.
 Dissents and concurrences argued this wasn’t legislation because it was deciding the
rights of an individual person which is adjudication. Legislative vetos are not generally
applicable like legislation is
o Appointment of the President
 Appointment Power: Article II, Section 2, Clause 2- gives president power to nominate
 If it is a principle officer, pres must appoint with advice and consent of the senate
 If inferior officer, congress may give appointment power to the pres, courts of law, or
head of department
 To be a permissible appointment by someone other than the president to appoint, the
person they appoint must be an inferior officer
o Removal Power of the President- there is nothing in constitution about this.
 Morrison v. Olson
 An inferior officer is one who has power limited in scope, lots of oversights, lower rank
to someone, limited duration, subject to removal, limited jurisdiction. In this case, the
independent counsel was an inferior officer not a principle because her duties were
limited to what the AG designed, subject to removal by the AG, limited tenure. So the
AG could appoint or remove the officer

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  The removal restriction does not impede the presidents ability to perform his con duties
 Dissent argues that this appointment violated the separation of powers because the
power to prosecute is an executive authority; uses the formalist approach saying that all
exec power must be performed under the direct control of the pres
 Congress cannot give itself or its officers the appointment power
 Arguments in favor of removal power: implicit in the power to appoint, Inherent exec authority
 Bottom line: pres may fire any exec official however Congress can limit removal by statute
where independence from the pres is desirable and the statute does not prohibit removal but
limits it to where there is good cause
 Myers v. US (overruled by future cases)- Post Master General
 The power to remove is implicit as the power to appoint
 Holding: Pres has exclusive, unlimited removal power, uses model 4 from Youngstown
 Takeaway: Pres has unlimited authority and congress cant do anything about placing
limits
 Humphrey's Executor v. US p. 363 (FTC Commissioner)
 Holding: there are allowed to be restrictions by Congress on limiting presidential
removal by having the pres show good cause
 Weiner v. US p. 364 (Member of the War Claims Commission)
 Pres can have restrictions on removal power: where independence is desired, free from
political influence
 The court may impose a for cause restriction when one is absent
 This helps to stabilize the exec system, otherwise every pres would come in and make
sweeping changes
 Bowsher v. Synar p. 366 (Comptroller General)
 Congress cannot place the job of executing law in the hands of an officer and keep
removal for itself
 Summary of these 5 cases on Removal Power
 Pres has the power to remove exec officials, but congress can limit if independence is
needed/desired
 Congress cannot completely prohibit all removal. It may limit to good cause
 Congress cannot give itself removal power, they can only impeach
 The ultimate question is whether the removal restriction impairs the ability of the pres
to perform his constitutional duties
 Free Enterprise Fund v. Public Company Accounting Oversight board
 Congress may limit removal power to good cause if it is in the office where
independence from the president is desirable. Cannot put 2 layers of good cause
removal between a president and an officer. This case uses Formalist Approach to
decide—reasoning for holding: vesting clause was violated, take care clause was
violated , lack or accountability and slipperly slope
 Test:
o Is independence desirable? If yes, ok to have removal restrictions
o Are the restrictions that Congress has imposed constitutional? Can the pres still
perform his con duties?
 Compare to Morrison
o Morrison—Attorney General, Principal Officer (removable at will)—
Independent Counsel, inferior officer (removable by good cause)
o PCAOB—SEC Commissioner, Principal Officer (good cause removal)—
PCAOB, unsure if principal or inferior (good cause removal by SEC)

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 Allocation of power in Conducting Foreign Policy
o Separation of powers and foreign policy- the legislature and executive branch can make such decisions
without judicial review
 Source of Power:
 Article I Section 8- congress has power to collect duties, raise armies, regulate
commerce with foreign nations, declare war
 Article II- pres is commander in chief, authority to negotiate treaties with advice and
consent of congress, appoint ambassadors
 The Issue: there is overlap of powers in certain situations
 United States v. Curtis-Wright Export Corp p. 370
 Holding: a congressional delegation of power to the pres in the area of foreign policy is
not a forbidden delegation of power
 Significance: Pres has power to speak/listen for the nation and this Pres power does not
require an act of congress
 Rationale: presidential power in domestic and foreign affairs are not the same b/c they
have different origins and classes
o Domestic affairs powers - specifically enumerated in constitution to separate
federal from state powers
o Foreign affairs powers - do not depend on affirmative grants of power in the
Constitution; the prez is the only one with negotiating power, he is the
representative of the nation. The senate just gives him advice and consent
o The Court uses Model 4- pres has inherent authority and may act unless he
violates a specific con limitation; however no matter which model was chosen,
the acts would have been constitutional
o Treaties and Executive Agreements
 Treaty- agreements btw US and foreign countries, negotiated by pres, and effective when
ratified by the senate; require senate approval
 Exec agreements- agreements btw US and foreign countries effective when signed by pres and
head of foreign nation; no senate approval
 Dames & Moore v. Regan Secretary of the treasure p. 374
 Issue: whether executive agreements are the con powers of the pres
 Holding: where the settlement of claims has been determined to be necessary incident to
the resolution of a major foreign policy dispute btw our country and another, and where
as here we can conclude that Congress acquised in the Pres's action, wer are not
prepared to say that the pres lacks the power to settle such claims
 Are exec agreements a problem?
 I don’t think so, needed for strong exec functioning
 Provide Efficiency, leadership, as long as its not abusive, needed for quick decisions
 Goldwater v. Carter- says that the president does have the power to rescind a treaty
 War Powers
o Who is the primary war maker? There are 2 approaches:
 Congress  and the Pres only has power to repel sudden attacks on the US
 President and Congr only has narrow veto power over the most major military ventures
o The court’s role: Answers are unlikely to come from judiciary, little exists in regard to ways pres can
use troops without congressional approval or as to what congress may do to suspend american
involvement in the war
o War Powers Resolution

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  Pres may send troops in 3 situations:
 Declaration of war
 Specific statutory authorization
 National emergency
 Pres must consult with congress in all possible situations
 Pres must report troop within 48 hours
 Requires withdrawals in 60 days unless congress approves or gives 30 day extensions, or is
unable to meet b/c national emergency
 Resolution takes away pres authority over troops and gives congress more authority than
written in the con
 Arguments surrounding the resolution:
 Justifications for unconstitutional
o Limits the pres as commander in chief
o Contains a legislative veto
 Justifications for con
o Major actions under constitution should be approved by 2 branches of gov
o ernment
o Reinforces separation of powers to have this check on the president
 Think: How can congress enforce the war powers resolutions?
 Presidential Power an the War on Terrorism—when can the pres detain citizens that are captured on a
foreign enemy battlefield
o Hamdi v. Rumsfeld p. 382
 Issue 1: does the pres have the authority to detain a US citizen captured on foreign battlefield as
an enemy combatant?
 Yes, as long as congress says so with a congressional act (the government argues that
Hamdi’s status as a citizen is not relevant, as long as the gov provided evidence that he
was an enemy combatant he can be detained)
 Habeas corpus- way for someone to seek legality of their detention (Hamdi filed for
this)
 Issue 2: due process; what process is due a UC citizen detained as an enemy combatant?
 Due process demands that a citizen held in the US as an enemy combatant be given a
meaningful opportunity to contest the factual basis for that detention before a neutral
decision maker
o The gov did not want due process because they said the facts were not in dispute
 Plurality looks to the Matthew v. Eldridge balancing test to ensure a citizen is not
deprived of life, liberty, or property
 Holding: The AUMF gives the pres the authority to detain US citizens as enemy combatants

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 Checks on the President
o Richard Nixon v. A Ernest Fitzgerald p. 420 Absolute Immunity of the President
 Issue: the scope and immunity possessed by the pres of the US; may the pres be sued civilly for
firing a member of his administration? If he is immune from suit, is he entitled to qualified or
absolute immunity?
 Holding: as a former pres of the US, petitioner is entitled to absolute immunity from damages
liability predicated on his official acts
 Rational
 Don’t want pres to be cold or chilled in his office, don’t want pres to be target for civil
suits, he has unique con status, risk of effecting the functioning of the gov when the pres
can be sued
 Argument made for qualified immunity; other officials have qualified, leaves the victim
without redress, places pres above the law, immunity should attach to certain conducts
not the office as a whole
 Remaining remedies when absolute immunity is used: impeachment, scrutiny
 Absolute immunity only applies to official actions of the pres, not personal
o William Jefferson Clinton v. Paula Corbin Jones p. 423
 Facts: Jones seeks to recover damages from pres based on actions (made moves on her) taken
before his term as pres. Pres wants to defer until his term is over
 Holding: Does not follow that separation of powers principles would be violated by allowing
the action to proceed, appears unlikely to take up substantial time, not persuaded by national
security concerns, respondent has right to orderly disposition of her claims. The proceedings
would not impeded on presidential duties
 Takeaway:
 There is no immunity for unofficial conduct
 Pres does not have ability to defer if the acts took place before presidency; limited
scope of absolute immunity
 The doctrine of separation of powers does not require federal courts to stay all private
actions against the pres until he leaves office
o Impeachment
 House of rep has sole power to impeach, then trial by senate
 SC has held that impeachment and removal process pose non-justiciable political questions
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  Should criminality be required for impeachment?
 Framers view of impeachment: remedy for abusive power, breach of trust, usurpation
 What are high crimes and misdemeanors?
 Indictable crime, behaving in manor incompatible with function of office, employing
power for improper use or personal gain, acts that violate con, whatever majority of
house considers is to be
 Art. II, § 4 of the Constitution provides that pres and other officers can be removed for high
crime
 Art. I, § 2 - House of Representatives has sole power to impeach. If House impeaches, trial in
Senate
 Art. I, § 3 - Senate has sole power to try impeachments and prescribes that “no Person shall be
convicted without the Concurrence of two thirds of the Members present.”

Federalism: The Division of Powers Between the State and National

Governments
Federal Authority and State Limitations on It
 The Scope of Congressional Authority
o The Federal Legislative Power
 Article I-legislative powers given to congress
 Section 8- necessary and proper clause
 10th amend- powers not delegated to US reserved for the states or the people
 Article 6: Supremacy Clause
 Mculloch v. Maryland p. 129- how does McCulloch v. Maryland define federalism?
 Issue: Does Congress have the authority to create the bank (despite it not being an
enumerated power) of the US and may the state of MD tax the bank of the US
 Congressional power to create the national bank? congress can only act if there is con
authority for such actions, states can act unless con forbids action. People created the
fed gov, not the states, so the states do not vest power in the fed gov, the people do; fed
gov is supreme over the states must read const like a statute that is responsive to
today’s reality
o The states argued that the states created the fed gov to the fed gov should be
subordinate to the states
 The necessary and proper clause- these outline additional grants to Congress because
they are among its grants of powers, not among its limitations
o To argue the n and p clause is a limitation- narrow reading of the word
"necessary"; plain meaning
o Court argues "necessary" takes on the context of where it is place- convenient,
useful, what produces the end
 Holding: Marshall does think Congress has power to create the bank, this power comes
from revenue, raising armies, ect..no particular power is specified;
o The bank is an appropriate (necessary and propery) means to an end for the
revenue power
o We do not look at the const explicitly
 Significance: If a power is legitimate the government can choose the means to carry it
out
 US v. Comstock p. 15 Necessary and Proper Clause
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  Facts: Congress enacted federal civil-commitment statute which detains mentally ill,
sexually dangerous federal prisoners beyond the date the prisoner would otherwise be
released
 Issue: whether the fed gov has the authority under Article I necessary and proper clause
to enact this federal program or whether it doing so falls beyond the reach of a gov "of
enumerated powers"
 Holding: Breyer reasons for justifying the statute: there has been a long history of fed
gov involvement, broad authority of N&P clause allows it, gov has strong reasons for
enacting that statute to protect public from danger, the statute accounts for states
interests and because the statute is narrow and modest in scope relating to Article 1is
necessary and proper as such
o Opposing Arguments: To argue statute is uncon: for the law to be valid it must
be necessary and proper for carrying into execution one or more enumerated
powers in the con; congress' authority can be no more than one step removed
from a specifically enumerated power; there are no specific enumerated powers
applicable to this law; con does not give congress plenary power to punish
violent crimes. The holding seems to be inconsistent with McCulloch; the
majority provided no specific, enumerated power which this statute carries out
in a necessary and proper way
o Reasons to protect the states: they are closer to the people, they can be used as
experimentation, the division of power b.t states and fed prevents tyranny
 Congressional Power and the Tenth Amendment before 1937- Commerce Power
o Commerce Clause
 Article I, Section 8 "Congress shall have power...to regulate commerce...among the several
states
o Dormant commerce clause (this grant of power implies a negative converse) because it prohibits states
from passing legislation that burdens or discriminates against interstate commerce
o 4 eras: Broad, narrowly, expansive, narrowly
 Gibbons v. Ogden p. 142 (broad)
 Issue: does congress have the power to regulate the steamboats? Yes
 Analysis/Test:
 What is commerce? Marshall says commerce is commercial intercourse btw nations
and parts of nations. This includes navigation
 What is among the states? Narrow view: congress can regulate only commerce that is
actually going on between the states; intermingled
o Marshall draws distinction between purely internal commerce and that which
concerns more than one state; congress cannot regulate purely internal
commerce; but if intermingled, congress can regulate internal state commerce
 10 Amendment limits?
th

o 10 amend is a reminder that congress can act only if it has authority, whereas
states may act unless prohibited
o 10th amend reserves a zone of activities for states' exclusive control
o Marshall: only the con can limit powers vested in congress
o Unites States v. EC Knight Co p. 146 (narrow/limited commerce power)
 Issue: Can congress pass an act that gets rid of the sugar monopoly?
 Holding: No, the act of congress oversteps the authority given by the commerce clause
 Test

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  What is commerce? Commerce is one stage of business, distinct from earlier phases
such as production, mining, manufacturing; congress can only regulate the commerce
stage
 Court draws line btw direct vs. indirect effects on commerce; the monopoly is indirect
 The 10th amend reserves activities for state control
 This reading of the commerce clause is narrow because it narrows commerce to one
stage of business, the rest is left to the states
 Dissent: under the commerce power, congress may remove unlawful obstructions to the free
course of trade among the states, this would not interfere with the autonomy of the states
o Carter v. Carter Coal p. 147 (narrow)
 Congress passes a max hours/min wages act for the coal industry, coal producers that don’t
comply have to pay a tax
 Is coal commerce? No, court says law is related to the production of coal, no commerce is
involved in production and there is no federal power to regulate production. This is local;
should be regulated at local level; must preserve zone of activities for state control
o ALA Schechter Poultry Corp. v. US p. 151 – What is Among the States(narrow)
 Issue: Were the transactions of the poultry corp interstate commerce, when 96% of the live
poultry comes from other states, but the D's did not sell the poultry to interstate commerce?
 Princple: the commerce power ceases where the currents of interstate commerce stop (in this
case, the poultry was at rest in the state)
o Houston East and West Texas Railway Co. v. US p. 149 (broad)
 Issue: Congress is regulating intrastate railroad rates, because TX imposing higher rate if
coming to their state from another state; Congress wants to fix to no discriminate against other
states
 Holding: Congress has legit interest in insuring survival of interstate railroad, therefore it can
regulate intrastate railroads to protect interstate railroads
 Principle: the court interpreted among the states as requiring a direct effect on interstate
commerce (so if direct effect, then yes on interstate commerce among the states), but the SC
has never formulated a clear/consistent way to distinguish direct from indirect effects
o Shreveport Rate Case- among the states means having a direct effect on interstate commerce but this
case never defined direct effect
o Hammer v. Dagenhart p. 154 (narrow)- child labor case
 Issue: whether congress can regulate the shipment of goods made by child labor in interstate
commerce
 Holding: there is no congressional control over interstate transport which strongly impinges on
the manufacture of goods b/c Production of articles is a matter of local regulation
 Even though we are talking about shipments, the court strikes it down because they
don’t want congress to have the ability to regulate morals, and control production
o Champion v. Ames p. 158 (broad)
 Issue: can congress prohibit conduct (morality) under the CC or can it only regulate?
 Holding: yes, congress can use its power to regulate commerce to achieve a totally non-
commercial purely moral purpose b/c The lottery tickets are subjects of traffic and therefore are
subjects of commerce and the regulation of the carriage of such tickets from state to state is a
regulation of commerce among the several states
o Commerce Clause 1890- 1937 recap-very restrictive view of what Congress can regulate
 Does not include manufacturing or production, not commerce
 Commerce is intercourse for the purpose of trade, and includes transportation, purchase, sale,
and exchange of commodities btw citizens of diff states

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  Court looked to see whether intrastate activities affected interstate commerce in a direct or
indirect way; hard line to define and keep
 Court used stream of commerce test
 Struggle btw congress and state authority
 Congressional Power and the Tenth Amendment 1937-1991 (post Great Depression/ Broad Power)
o NLRB v. Jones & Laughlin Steel Corp p. 160 (broad)
 Company engaged in business of manu iron and steel was discriminating against members of
the union, congress passed an act regulating this
 Holding: Congress' act is con because of interstate operation of the company
 Principle: Congress may regulate Acts that have a significant effect on interstate commerce,
meaning they directly burden or obstruct interstate foreign commerce, or its free flow
 Arguments against this holding: the act was regulating workers engaged in production;
production is not commerce so can’t be regulate
o United States v. Darby p. 164 (broad)
 Issue: whether congress has the power to prohibit the shipment in interstate commerce of
lumber manufacturers; whether congress has the power to prohibit the employment of workmen
in the production of good for interstate commerce
 Holding: Yes, court finds this is interstate commerce now, because:
 manufacturing is not commerce, but interstate shipment of manu goods is commerce
 Congress has plenary power
 overrules Hammer because they say it was a departure from precedent and has not been
followed
 When may congress regulate intrastate activity? When it has an effect on interstate commerce
or the regulation of an intrastate activity is appropriate means for congress to accomplish a legit
end. The 10th amend is no limitation on Congress' power to use all means to exercise a granted
power
o Wickard v. Filburn p. 166 (broad)
 Congress passed an act restricting allotment, prices, harvesting; controlling the volume moving
in interstate and foreign commerce to avoid surpluses and shortages in wheat prices
 Holding: Congress can regulate wheat consumed on a farm where it is used wholly outside the
scheme of regulation because it has a substantial effect on interstate commerce
 Congress may reach an activity because it exerts a substantial economic effect on
interstate commerce
 Court looks at the cumulative effect, not just the small trivial effect of this one instance
 Impact: congress may reach any economic actor as long as its contribution to the
national economy taken together with many others acts similarly situated is not trivial
 Argument this is not commerce?
 The activity is local in character; this is personal production and consumption; the
effects at most are indirect
o Heart of Atlanta motel v. US (broad)
 Issue: The constitutionality of the Civil Rights Act of 1964 (was enacted under the commerce
clause, because congress can not regulate private behavior, only gov conduct)
 Holding: the action of congress applying to a motel which serves interstate travelers is within
the power granted by the CC
 Court argues that the unavailability of adequate accommodations for AA's interferes
with interstate travel; congress has the power to remove these obstructions and restraints
on interstate travel

12
  Congress may be regulating morality, but overwhelming evidence of the disruptive
effect that racial discrimination has had on commercial intercourse
 Congress had a legit end, and adopted reasonable means to attain their goals, and
congress is not going to second guess congress' means
o Katzenbach v. McClung, Sr. & McClung Jr. (broad)
 Issue: whether title II as applied to a restaurant annually receiving 70,000 worth of food which
has moved in commerce is a valid exercise of the power of congress
 Holding: Congress has a rational basis for finding that racial discrimination in restaurants
has a direct and adverse effect on the free flow of interstate commerce; congress's power is
broad and sweeping
 Supplies have come across state lines; there is a cumulative effect on interstate
commerce
 A restaurant may be reached by congress if it exerts a substantial economic effect on IC
 Congress has a rational basis for believing that discrimination will affect IC, but don’t
need to show there is an actual affect on IC
 The activities that are beyond the reach of Congress are those which are completely
within a particular state, which do not affect other state
o Regulatory Laws - Hodel v. Indiana p. 173
 Test: When may the court invalidate legislation enacted under the CC?-Only if it is clear that
there is no rational basis for a congressional finding that the regulated activity affects IC, or no
reasonable connection btw regulatory means selected and the asserted ends. “it is commerce
until proven otherwise”
o Criminal Laws- Perez v. United States p. 173
 Because loan sharking is a big part of organized crime in its national setting, can be made
criminal through CC since it affects the nation and IC
o National League of Cities v. Usery p. 175 (narrow)
 Issue: whether it violates state sovereignty to force states to pay the min wage under FLSA
 Holding: the challenged amendments directly displace the states' freedom to structure integral
operations in areas of traditional gov functions; not within the authority of congress
 Court: Congress is limited by 10th amend
 This case is different from Darby because it is the state, not the private employer
 Principle: For a federal law to violate the 10th amend, it needed to regulate "the states as
states"; directly impairing the states' ability to structure integral operations in areas of
traditional gov functions. Also the 10th amendment reserves a zone of activites for the state,
Congress cant regulate traditional state activites
o Garcia v. San Antonio Metro Transit Authority p. 178 (broad)
 Usery is overruled from this case (case by case standard)
 Any substantial restraint on CC powers must find its justification in the procedural nature of
this basic limitation rather than to dictate a "sacred province of state authority"
 The protection of state sovereignty is for the political process, not for the courts against the
federalism standard.
 This reduces the effectiveness of the 10th amend
 Congressional Power and the Tenth Amendment 1991-present
o US v. Lopez p. 184 (narrow)
 Issue: can Congress pass an act that makes it a federal offense for any individual knowingly to
possess a firearm while in a school zone under the CC?
 Holding: the act exceeds the authority of Congress to regulate commerce among the several
states
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  Court: this is a criminal statute, not essential part of larger regulation of economic activity
 Court reserves authority for state, no plenary police power of congress
 Principle: 3 instances of Congressional Regulation
 Channels of IC (highways, waterways)
 Instrumentalities of IC (people/things that travel or operate in channels of IC)
 Intrastate activities that have a substantial affect on IC: Substantial Effect Test:
o Economic activity
o Need a jurisdictional hook, a hook that makes the item move in IC
o Congressional findings
o Close link with regulated activity, not far removed
o United States v. Morrison (narrow)
 Issue: con under the CC of an act that is a federal civil remedy for the victims of gender
motivated violence
 Holding: Congress lacked con authority to enact the sections of civil remedy, gender motivated
crimes of violence are not economic activity
 No jx hook, not enough court findings, link to far removed and this was not an
economic activity
 Possible Argument for it being economic activity: if there is violence, then people don’t want to
move there, like racial discrimination
o Solid Waste Agency (narrow)
 Courts should only decide con issue when necessary, when there is a case with a con
interpretation and statutory interpretation, the decision is based on statutory interpretation when
available
 Court: migratory birds are not economic activity; don’t want to interfere with states power over
land and water use
 Argument birds are economic activity: more than a billion dollars annually on recreational
pursuits relating to migratory birds, protection of the birds is a national interest
o Prince County, Washington v. Guillen (broad)
 Issue: whether a statute protecting info compiled from safety programs from being admitted
into state trials violates con under CC
 Holding: no, the statute is properly exercised
 Court applies substantial effect test, congress could reasonable believe that adopting this
statute would allow better info collection, greater safety, informed decision making
 Court thinks this reasonable belief is good enough, within congress' ability to regulate the use
of the channels of IC
o Gonzales v. Raich (broad)—keeps the Lopez rule
 Issue: whether congress under CC can prohibit the local cultivation and use of marijuana in
compliance with CA law
 Holding: congress can regulate this activity due to rational basis for substantial effect on IC
 Defines What activities are economic? Production, distribution, consumption
 This case is similar to Wickard, where growing the plant would affect supply and
demand in interstate legal market
 Is different from Lopez v. Morrison b/c they were stand alone statutes that were not a part of a
larger economic scheme. Lopez and Morrison were outside of the commerce clause to begin
with
 Dissent- should not defer to Congress because there will be little left of the enumerated powers.
Definition of economic activity is too broad
o New York v. United States (narrow)—federal commandeering
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  Issue: can congress gives states a choice, encouraging them to provide for the disposal of low
level radioactive waste generated within their boarders ; in the present case, states had a choice:
accept ownership or regulate according to congress' instructions
 Holding: Congress may encourage the states, but may not compel leg to adopt laws or state
agencies to adopt regulations
 Congress may attach conditions to the receipt of federal funds, may not cross line to
coercion
 Rationale: Accountability the states would face the consequences of this rule, voters
would take their anger out on the states
o Printz v. US p. 226 (narrow)
 Issue: whether commanding state and local law enforcement officers to conduct background
checks on handgun purchasers and certain tasks, is permissible under the CC of the con
 Holding: No, congress cannot issue directives requiring the states to address particular
problems and cannot command the states' officers to administer or enforce a federal regulatory
program
 Rationale: history, structure of dual sovereignty, separation of powers under the take
care clause, precedent doesn’t allow this and NY v. US does not support this.
 Dissent- Text—the commerce clause and N&P clause supports this, history- const increased
fed gov powers, structure- political parties protect the state, precedent- NY v. US is not
depositive
o Reno v. Condon
 Holding: An act prohibiting the sale of a person’s information is con because it is a generally
applicable law, not specific to the states; its ok to regulate commercial activity even if it’s the
states that have to follow; Generally applicable laws that do not regulate states as states are
permissible
 Argument this is uncon: violates 10th amend, uses up time and resources of state employees
 Taxing and Spending Power – Article 1 Section 8
o "Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts
and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts
and Excises shall be uniform throughout the United States.”
o Taxing Power 3 restrictions
 Direct taxes must be allocated proportionally
 All customs, duties, and excise taxes must be uniform
 No duty on exports from any state
o 16th amend
 Tax all sources of income
 Distinction btw direct and indirect taxes are irrelevant
o Motives are irrelevant in taxes
o Congress may use taxes to:
 Raise revenue and regulate
 Federal taxes as penalties…
 Upheld so long as Congress has the power to regulate the activity
o United States v. Butler
 Issue: how to interpret congress' taxing power

15
  Holding: court decides broad power: "the power of Congress to authorize expenditure of public
money for public purposes is not limited by the direct grants of legislative power found in the
Constitution."
 Bottom line of Spending Power and the 10th amend: Spending can invade "police
power" of the states
 Scope of the taxing and spending power:
 Madison view- carry out Article I powers
o Under the 10th amendment view (reserving the conditional tax power for the
states) Butler is bad law
 Hamilton view- for the general welfare of the US
o Under the general welfare view, butler is good law
o Steward Mach Co v. Davis
 Employment is essential to the pursuit of happiness (natural right) and can not be burdened
with tax
 Holding: employment taxation is the same as property taxation
o Sabri v. US
 Federal law made it a crime to bribe gov official if gov entity receives more than 10k of federal
money
 Holding: law is valid; fed has an interest as provided here
 N&P Clause: Congress has authority “to see to it that taxpayer dollars appropriated
under its spending power are in fact spent for the general welfare and not frittered away
in graft or on projects undermined when funds are siphoned off or corrupt public
officers are derelict about demanding value for dollars.”
 Argument this is not a con law under the spending power:
 There is no hook to provide a connection btw the federal funds and the alleged
o Conditions on grants to state gov's-Congress may place strings on such grants so long as the conditions
expressly state and so long as they have some relationship to the purpose of the spending program
 Congress has broad power to set conditions for the receipt of federal funds even as to areas that
congress might otherwise not be able to regulate
o South Dakota v. Dole Test
 Congress may attach conditions to the receipt federal funds, 4 conditions:
 Exercise of the spending power must be in pursuit of the general welfare
 The condition must be ambiguous, enabling the states to exercise their choice
knowingly
 There needs to be a federal interest
 Condition may not violate any other con provision
 Holding: the condition here is serving the general welfare, congress has an interest in safe
interstate travel (drinking age); 10th amend is not a limit on spending power
 State argues this is coercion
 Congress’ Power under the Commerce Clause/the Taxing and Spending Clause
Affordable Care Act: Commerce, Necessary and Proper, Tax and Spending Clauses
National Federation of Independent Business v. Sebelius p. 24- see book notes
o Individual Mandate
 Arguments individual mandate is uncon under CC:
 CC- mandate does not regulate existing commercial activity; it demands entry into
market through purchase of insuranceNot an integral part of comprehensive scheme
(Raich)
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  Arguments individual mandate is con:
 There is substantial effect on interstate commerce, the failure to purchase health
insurance drives up costs, fee shifting problem, aggregate effect on IC
 Applying the substantial effects test:
 Is this an economic activity? Yes
 Is there a jurisdictional hook? Don’t know
 Are there congressional findings? Yes
 Is there a connection to IC? Yes
 Arguments that ACA is uncon under taxing power?
 ACA imposes a penalty on failure to purchase health insurance
o If a tax is considered a "penalty" then it is only valid if congress has the
authority to regulate the area, and SC said no authority to regulate under CC
 The tax is a direct tax that is not apportioned among the states
 Dole test for conditional spending:
 General welfare, conditioned ambiguously, federal interest, condition violate the con
o Medicaid Expansion
 Argument that Medicaid expansion is uncon?
 Spending clause- coercive to condition all Medicaid funds on states willingness to
expand Medicaid
 What does is mean for conditions on spending to be coercive?
 It is coercive if states do not have a legitimate choice of whether to accept the federal
conditions in exchange for the federal funds
 In this case, the inducement is not “‘relatively mild encouragement’ – it is a gun to the
head”
 Argument that Medicaid expansion is con?
 Modifying existing program
 Agreed that congress could change the terms of Medicaid program
 Holding:
 Congress does have the power to impose the tax on people without health insurance;
individual mandate cannot be upheld under CC; Medicaid expansion violates con
because coercive to the states
o Implications:
 Commerce Clause
 Appears to narrow the scope of the clause, but is it dicta?
 Potential battles of inactivity vs. activity
 Taxing Power
 Potential battles on drawing the line btw a tax and a penalty
 Spending Power
o Where is the line btw inducement and coercion
 Congressional Power Under the Reconstruction Amendments
o Post Civil War, 3 new amendments
 13th- ends slavery
 14th- due process and equal protection, Section 5 = Equal Protection Clause
 15th- right to vote
 Congress has the authority to enforce each of these amendments through legislation (this is
stated explicitly in each of the amendments)
o 2 Major Questions

17
  May Congress Regulate Private Conduct?- the civil rights cases said It could not. This has been
overrule for the 13th amendment but reaffirmed for the 14th amendment
o United States v. Morrison p. 250
 Holding: Congress cannot regulate private conduct under section 5 of the 14th amend
 Argument this is not just private conduct, but state conduct?
 The states were not dealing well enough with gender motivated violence, documented failure
 Majority doesn’t accept this because there were no consequences for the state
 Nationalist view:
 Congress can pass laws to expand and define rights
 Federalist view: Congress can only pass laws to provide remedies recognized by the courts
o Katzenbach v. Morgan & Morgan p. 253
 Issue: can congress prohibit the enforcement of the state law by legislating under section 5 of
the 14th amend, EPC
 Holding: congress can enact a law prohibiting the enforcement of the state law, because the act
ensures nondiscriminatory treatment, furthering aims of the EPC
 There is a connection between the N&P Clause and Section 5 of the 14th amend as intended by
the drafters
 Same broad powers
 Whether the means reasonably adapt to the end
 Whether the law is consistent with the letter and spirit of the con
o Free exercise of religion (intro to City of Boerne)
 Pre-Smith: Burdens on religion must be necessary to achieve a compelling gov purpose
 During Smith: No challenge to neutral laws of general applicability; SC narrowed the scope of
the Free Exercise Clause
 RFRA: Congress adopted act to overturn Smith and restore the preceding test; burdens on
religion must be necessary to achieve a compelling gov purpose
o City of Boerne v. Flores
 Issue: authority of congress to enact the RFRA
 Holding: RFRA exceeds congress' power (is unconst); this is an attempt of substantive change,
not preventative legislation
 Congress' section 5 power is remedial, not substantive b/c the language of “enforces”
does not give Congr. the power to describe what discrimination is on their own. Cannot
alter the meaning, must enforce. Court doesn’t want congress to independently interpret
and enforce the con when passing legislation
 Under section 4, congress may not create or expand rights, it may only remedy and
prevent violation of court recognized rights
o Must be proportionate and congruent
 There must be a relationship b.t the injury prevented and the means used to prevent it
 Nationalist view: When declaring rights, congress can go first, when there are legislative
findings, to protect those being discriminated against, their power is substantive
 Federalist view: When declaring rights, court must go first, the court must find discrimination,
congress can remedy court identified discrimination, congress cannot expand the right, their
power is remedial
 Bottom line: Under Section 5 of the 14th amend Congress may only remedy court identified
discrimination

18
 Substantial Due Process- Fundamental Rights
Introduction
 14th amend Due Process- Nor shall any state deprive any person of life, liberty, or property without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws
 5th amend- No person shall be deprived of life, liberty, or property, without due process of law
 Procedural due process- Follow procedures before depriving an individual of his or her rights
o Example: notice and opportunity to be heard
 Substantive due process- requires sufficiently strong reason to interfere with an individuals rights
 The Constitution ended up protecting economic liberty
o Economic liberty- Lochner era – Contract ClauseNo state shall pass any law impairing the
obligation of contracts
o Only applies to states’ conduct (not federal government)
o Prohibits interference with existing contracts, not future contracts
o Economic liberty includes the rights to enter into an enforce a contract, to pursue a trade or profession,
and to acquire, possess, and convey property
o Lochner Era 3 themes (no longer exist):
 Liberty of Due Process Clause protects rights, especially the right to contract
 State may only infringe liberty to achieve valid state police purpose (health, safety, morals)
 State regulation must be necessary to achieve a police purpose
o Lochner v. New York p. 608
 Issue: law about employees in baking or confectionery establishments
 Holding: law infringes with right to contract, doesn’t allow bakers to choose their own hours,
right to sell and purchase own labor is party of a persons own liberty
 This is not protected under the contracts clause of the con, because we are dealing with current
as well as future contracts
 State argument: they have a direct interest in public health, state police power, regulating
health, safety, and morals
 Impact:
 Cant unnecessarily interfere with freedom to contract bc protected by DP liberty
 Court looks for legit police power
 Courts role is to determine if law is necessary
 Demise of Lochner era: depression, court packing plan, legal realism
o United States v. Carolene Products Co p. 626
 Issue: Law, no shipment in IC of any "filled milk"; milk mixed with oil, because harmful to
public health
 Holding: the prohibition of shipment of the milk in IC does not infringe on the 5th amend
 This was a congressional decision, we should defer to the legislature on economy to see if they
have a legit purpose and a rational basis
 Most famous footnote establishes 2 standards of review
 When it comes to economic regulation, court will sustain unless it violates specific con
provision
 When it comes to non-economic regulation (religion, protection of minorities)- court
will not defer to legislature
 End of 3 Lochner Era themes:
 Liberty of DP clause does not protect the right to contract
 State may infringe liberty to achieve ANY purpose
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  State regulation must be reasonable to achieve police purpose
 Fundamental Rights-there is no clear definition for FR but certain rights are so essential that they must
ensure state courts don’t infringe on those rights
o 9th amendment- the enumeration of certain rights should not be used to disparage others.
 Used to justify non-textual rights
o If something is a fundamental right, strict scrutiny should be applied (the highest level)
 Immediate scrutiny- law relating to achieving an important gov purpose (gender)
 Rational Basis- law rationally related to legit gov. purpose (economic regulations)
o Almost all fundamental rights have been protected by the court under the DPC of the 5th and 14th
amends and/or EPC of the 14th amend
o Court must decide whether a claimed liberty is sufficiently important to be regarded as fundamental
o If under Due Process, the con issue is whether the gov interference is justified by a sufficient purpose
o If under Equal Protection Clause, the con issue is whether the govs discrimination as to who can
exercise the right is justified by a sufficient purpose
o Substantive Due Process Test 4 questions
 (1) Is there a fundamental right?
 If yes, strict scrutiny
o If no, rational basis
 Originalists- take the position that fundamental rights are limited to those liberties
explicitly stated in the text or clearly intended by the framers
 Non-Originalists- it is permissible for the court to protect fundamental rights that are
not enumerated in the con
 Moderate originalism- judiciary should implement the framers general intent, but not
necessaryily their specific views
 (2) is the right infringed?
 Infringed when the exercise of a right is prohibited
 SC considers the "directness and substantiality of the interference"
 (3) is there a sufficient justification for the law?
 If fundamental right, then gov must present a compelling interest to justify infringement
 If not fundamental, only a legit purpose is required for the law to be sustained
 (4) are the means sufficiently related to the goal sought?
 Under strict scrutiny it is not enough for the gov to prove a compelling purpose behind
the law; the gov also must show that the law is necessary to achieve the objective
 Gov must prove that it could not attain the goal through any means less restrictive of the
right
Constitutional Protection for Family Autonomy
 The right to marry
o Loving v. Virginia p. 949
 First protection of right to marry, EP case
 The freedom to marry has long been recognized as one of the vital personal rights essential to
the orderly pursuit of happiness by free men
 Denial of this "fundamental freedom" deprives citizens of liberty without due process of law
 Right cannot be infringed by the state, it is held by the individual
o Zablocki v. Redhail p. 950
 Law says cannot remarry if behind on child support payments
 Holding: the statutory classification interferes directly and substantially with the right to marry

20
  States interest is not tailored to meet the ends it seeks, it can meet these ends without
preventing marriage; the law is not necessary; violates (4)
 Test
 Is a fundamental right
 Infringes on that right, specifically for those who cannot afford it
 Justifications- welfare of the children, counsel ppl into paying child support (but there is
no counsel req in the statue and cannot ensure that the child will still not be in welfare
even with the payments)
 This is not a sufficient means to the end b.c there are other ways state can go about it
 Argument this is con: state has public interest to look out for minors, and keep people from
marrying
 Not every burden on the right to marry is considered an infringement of the right, there must be
a direct and substantial interference with the right, being deterred by the law is not the same as
the right being interfered with
 The right to custody of ones children; SC has recognized that parents have a fundamental right to custody of
their children
o Stanley v. Illinois p. 956
 Law says if an unwed mother dies, children become wards of the state
 Holding: father has a substantial interest, it is irrelevant if he is married to the mother
 Even if the states interest might be legit in keeping kids away from unfit parents, they need to
actually demonstrate that; statute is not sufficiently related to the ends (4)
 Test
 Is a fundamental right
 Infringes. a dad’s ability to take care of kids is not affected by his marital status
 Sufficient justification- yes, the state has a compelling interest to make sure kids are
raised in responsible households
 Means related to ends- no b.c this law separates kids from parents who are fit. There is a
less restrictive way to achieve this goal.
o Michael H. v. Gerald D. p. 958
 Does the biological father who is not recognized as the father on the birth certificate, have a
fundamental right?
 Holding: No, plurality looks to tradition stated at the most specific level of abstraction; no
specific right of unmarried father to custody of children
 This relationship is not protected in the family unit, traditions have protected the marital family
and not multiple fatherhood, leaves it to the people of the state to decide
 Dissent-tradition is uncertain, precedent should be protected (Stanley case), should not mater if
they were not married
 The right to keep the family together; SC has recognized fundamental right to keep the family together that
includes an extended family
o Moore v. City of East Cleveland, Ohio p. 964
 The city wants to prevent overcrowding, minimize traffic and parking congestions and avoid
undue financial burden on the school system
 There is sufficient justification for the infringement, but the means are not sufficiently related
to the ends
 The tradition of aunts, unless, grandparents, ect have roots equally venerable and equally
deserving of con recognition
 The right of parents to control the upbringing of their children
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 o Meyer v. Nebraska p. 968
 Its not only the parents rights at issue, but the teachers (teaching German to students)
 Court declared right to control upbringing a fundamental right; protected by the liberty of due
process clause
 Court uses rational basis (no strict scrutiny till 1923)
o Pierce v. Society of the sisters p. 970
 Use rational basis test
 There is no sufficient justification for the infringement of making children go to public school
 There are limits of parents to control the upbringing of their children
 Protection of the child
 Family is not beyond regulation, need to protect children from exploitation and harm
o Prince v. Mass court upheld child labor law to prevent child from soliciting under parent’s direction
because it presented more harm to the child.
o Wisconsin v. Yoder-(Amish and sending children to school)—interferes with their free exercise of
religion
o Parham v. Jr- there is no exact procedure for institutionalizing child. The court assums the parent has
the child’s best interest at heart
o Troxel v. Granvill p. 972
 Right of parents is infringed by the state law that allows any third party visitation
 There is no sufficient justification for the infringement because the court does not consider the
parents fitness
 Without deeming unfitness of the parent, usually no reason for the state to inject itself into the
private realm of the family
 Test
 Is a Fr
 Infringed because court did not take into account he mother’s capability or point of
view for her child’s interest
 Sufficient justification for law? To try to protect relationship children have with their
parents this is not sufficient . should not set aside a fit parent’s idea of who should be
around their children
 Dissent- argues that the political process and not the supreme court shoul deal with this b.c this
is among an inalienable right that is not enumerated by the const.
Constitutional Protection for Reproduction
 The right to procreate
o Procreation is a fundamental right and therefore gov imposed involuntary sterilization must meet strict
scrutiny
o Buck v. Bell p. 977- VA law permitted sterilization for mentally ill individuals court decides to
uphold this law
o Skinner v. OK p. 979
 In EP cases, the question is what is the classification? If it is a suspect classification, like race,
it receives strict scrutiny
 The classification the state was using here, was not suspect of quasi-suspect; it distinguished
people based on their felonies of moral turpitude
 How do you justify using strict scrutiny in the absence of suspect classification?- if it’s a
fundamental right, so inherent to our existence
 Court says we are dealing with legislation which involves one of the basic civil right of man,
marriage and procreation are fundamental to the very existence and survival of the race

22
  Test
 FR is the right to procreate
 Infringedcertain classes would be suppressed from doing so
 Justification—to prevent incompetence being passed down. Don’t want undesirable
traits spreading
 Means- this is not the least restrictive way to achieve their goals. Sterilization is
irreparable; marriage and proc. Are fundamental to race survival.
 The right to purchase and use contraceptives
o Griswold v. Connecticut p. 980 (see notes)
 Law prohibits use of contraceptives
 The fundamental right at issue, is the right to privacy
 Holding: law violates right to marital privacy, freedom from gov intrusion into the home,
freedom of information; uses 9th and 14th amend
o Eisenstadt v. Baird p. 986
 Law restricts contraceptives to unmarried people
 Holding: Law treats people differently (EP); the state purpose of preventing pre-marital sex has
a small relation to the law at issue; married and unmarried people must have the same right to
contraceptives
 Bottom line: right to privacy; after these cases we have a new fundamental right of personal
privacy "the right of the individual, married, or single, to be free from unwarranted go intrusion
into matters so fundamentally affecting a persons decision whether to bear or beget a child";
but, court never had to demonstrate that this right was fundamental
 The right to abortion
o Roe v. Wade p. 989
 5 choices the court could have gone with
 Life begins at conception
 State leg should resolve it
 Restrictive laws deny women equal protection
 Right to privacy includes abortion decision until viability
 Private moral question
 Option 1- life begins at conception
 Defense- Person includes fetus at conception in the con, No real precedent for this view
 Criticism- Court may be criticized because then women cannot control their own body,
Women= incubator for the state, Arbitrary, Court should stay out of this
 Implications- No woman could have an abortion, Certain forms of BC would be
banned- morning after pill, May be regulations on the mother, criminal charged for
smoking, drugs, drinking, Child abuse
 Option 2- leave it to the state to legislate
 Defense- Political process, majority rule, No protected right in the con
 Criticism- This is fundamental, protected right , This should not be subjected to the
public
 Implications- Every state would be different, different insurance policies, 50 different
rules, confusing
 Option 3- restrictive abortion laws deny women EP
 Defense- Women have control over their own bodies, personal autonomy

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  Criticism- State has interest in protecting life, Interest of the father, Denial of fetus to
life, No answer to states interests
 Implications- Gov would be forced to fund abortions for poor women
 Option 4- right to privacy includes abortion decision until viability- courts decision
 Defense- Justified on precedent of women's right to privacy on procreation, Until baby
can live outside of the womb, a woman's interest overrides the states
 History- at common law, women had a broader tight to terminate pregnancy
 Precedent- right of privacy exists; strict scrutiny is the standard
 Text- "liberty" protected in 14th amend
 Competing interests:Women's and states
o Trimester framework
 1T- Woman's interests override all others
 2T- Reasonable state laws to protect health and medical standards
 3T-States interest compelling; but must allow to preserve health or life of
woman
 Criticism of trimester framework- Doesn’t take into account the fetus's
rights, because under the con, the fetus is not a person with rights
o Originalist view- we don’t have a right to privacy, not explicitly stated in the
con. Seems like the court is saying that when viability happens, life begins
 Option 5- private moral decision- up to women to make
 Defense- Women have total control over their body
 Criticism- Allowing abortion at any stage could harm a child that could have lived
 Implications- Abortions whenever
o Planned Parenthood v. Casey p. 996
 Women's liberty is not unlimited, the state can show its concern for the life of the unborn and
states interest in life has sufficient force so that the right of the woman to terminate her
pregnancy can be limited
 Reaffirms Roe
 After viability, may prohibit life and health exception
 Strict scrutiny is no longer the test
 New test- undue burden
 Trimester distinction is overruled
 Undue burden?
 When there is a substantial obstacle
 Requirements to inform ok, but cannot hinder choice
 Laws that do not strike at right but make it more difficult or expensive are ok
 Constitutional Protection for Sexual Orientation and Sexual Activity
 "objective" criteria for fundamental rights
 Implicitly in the concept of ordered liberty
 Deeply rooted in this nations history and tradition

Constitutional Protection for Sexual Orientation and Sexual Activity

 Equal protection
o Protection for homosexuals or homosexual activities?
 No, rational basis
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 Substantive Due process
o Fundamental right to privacy include homosexual activities?
 If yes, strict scrutiny
 If no, rational basis
 Bowers v. Hardwick
o Law prohibits all sodomy
o Court found no connection btw family, marriage, procreation, and homosexual activity
o Court did not find fundamental right, instead GA law was a legit gov interest in morality and the law
was rationally related to that objective
 Lawrence v. Texas p. 1056
o Court overturns Bowers, uses DPC- liberty
o "Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain
intimate conduct" - Much broader than Bowers
o Homosexual conduct is an exercise of liberty; statute furthers no legit state interest which can justify
an intrusion into personal and private life of the individual
o Bottom line: Court wants to protect sexual orientation and activity as part of liberty, but not willing to
say fundamental right
o Court uses rational basis review
 US v. Windsor
 Does DOMA violate EPC as applied to persons of the same sex who are legally married under the law of
their state
 Justification of DOMA
o Uniform application of federal laws
o Preserve go resources
o Moral condemnation
 Criteria for strict scrutiny
o Immutable characteristic
 No control over/born that way
o History of discrimination
 Demonstrates classifications are likely based on prejudice
o Politically powerless
 "discrete and insular minorities"
 Is this a fundamental right?
o How broadly can the fundamental right to marry from Loving be stretched?

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