Spring 2008
I. JUDICIAL POWERS
ii. Judicial Review – It is the duty of the judiciary to say what the law is.
i. Supreme Court has appellate jurisdiction over ALL cases involving Federal Law (Art. III).
1. There exist other such limitations on state powers (Art. I, Sec. 10).
2. State courts are bound to obey the Constitution – Supremacy Clause
3. Uniformity of the law is necessary
2. Appellate Jurisdiction
a. Independent and Adequate State Ground – Long Presumption
i. Supreme Court has jurisdiction over State Cases when they raise federal law – it
will not decide cases on state law grounds, even if they cite federal law cases so
long as there is a plain statement of such.
1. State courts have their own Constitutions and statutes.
2. What if someone raises a claim in state court that there is a violation of
federal law? How does the court make sure it is reviewing Federal
Law? (SC has no authority to review state law).
3. Court does NOT want to issue advisory opinions
4. Uniformity
ii. Michigan v. Long – Police searched Long’s car b/c they had reason to believe it
contained weapons. Protective search of the passenger compartment was
reasonable. Long argues the SC has no jurisdiction b/c the decision rests on an
adequate and independent state ground and federal law (MI courts provide
greater protection from search/seizure – a 4th Amendment issue).
b. Congress can limit (make exceptions to) but not expand (except by scope of matters
regulated by federal statutes. – Ex parte McCardle
c. Congress must declare limitations expressly and probably cannot eliminate appellate
review entirely. – Ex parte McCardle
i. The Case or Controversy Requirement – There must be a real dispute with adverse parties abd real
interests at stake. The court tries to avoid unnecessary decision of substantial, complex and controversial
Constitutional questions.
ii. Advisory Opinions - Not Issued by the Supreme Court. Muskrat v. United States
iii. JUSTICIABILITY – A question subject to judicial resolution (there are identifiable standards) and
appropriate for such resolution (separation of powers concerns).
3. Baker v. Carr – The challenge was on the apportionment of voting districts. Permitted judicial
review of a question under the Equal Protection Clause.
a. If there is a lack of a justiciable standard then the court will stay out of the decision-
making (Politics). Courts are wary of getting involved in political questions.
4. Nixon v. United States – Judge Nixon was convicted for taking bribes and refused to resign. To
remove him he must be impeached. The Senate formed a fact finding committee but D complains
that this process violates Art. I, Sec. 3, cl. 6 (The Senate shall have sole power to try all
impeachments) the entire Senate should serve as a fact finding party.
a. Holding: Courts cannot decide what it means to “try impeachments”. There is no
identifiable textual limit. The terms in the Constitution are clear – the Senate has the
SOLE power, therefore the courts are out.
i. Checks on the Senate: House must charge and Senate must pass a super-
majority.
5. Vieth v. Jubelirer - Gerrymandering (dividing a state into voting districts so as to give one party an
advantage) will violate the Constitution if it goes “too far”, but the courts lack sufficiently clear
standards for determining when partisan scheming exceeds Constitutional bounds.
a. Supreme Court declined review b/c there is no standard to review. Political
gerrymandering is a political question.
1. Original Jurisdiction
a. Controversies between two or more states (boundaries and water)
2. Appellate Jurisdiction
a. Exists over Federal Courts and State Supreme Courts
b. Done through a Writ of Certiorari – allows the court to decide which cases deserve the
most attention Discretionary
i. AC Conflicts across the country about meaning of Federal law (common)
ii. Important unsung issues (big issues)
iii. State Supreme Court conflicts in federal law
c. Maryland v. Baltimore Radion Show – When the Supreme Court denies a case, there is
no explanation. There are too many cases and it is not always the same reason for all the
justices.
v. STANDING – A party must have a personal and concrete stake which sharpens the presentation of the
issues. It is a decision whether the litigants are entitled to have the courts decide an issue. Know the
requirements below, BUT that the cases are all over the board.
1. Ensures the scarce resources of the federal courts are devoted to those disputes in which the
parties have a concrete stake
3. Prudential Limitations
a. Third Party Standing – Generally not permitted. State’s generally cannot assert standing
on behalf of citizens, Massachusetts v. Mellon.
i. Exceptions:
1. Special relationship between 3rd party and P,
2. Statutory authorization for P to sue on behalf of 3rd party
3. 3rd party rights indirectly violated by enforcement against P or vice
versa.
4. Friends of the Earth v. Laidlaw – P’s claimed they cannot swim in the water anymore because of
water pollution. Court upheld the standing b/c of the injury to the plaintiff not to the environment.
Pollution damages lands they otherwise would have used.
5. Massachusetts v. EPA – Does Mass. have standing to compel the EPA to regulate itself? Court
upheld standing of Massachusetts to challenge the refusal of the EPA to issue regulations
governing greenhouse gas emissions by motor vehicles. Congress authorized this action in a
statutory provision, “a litigant to whom Congress has accorded a procedural right to protect his
interests can assert that right without meeting all the normal standards.”
a. While the issue is procedural, EPA may find that they can decrease the risk
i. Injury: Loss of stated owned coastal property
ii. Causation: Traceable to greenhouse gas emissions
iii. Redressability: Risk of catastrophic environmental damage would be reduced
b. Dissent – This is generalized harm and Global warming affects everyone. How do we
really know what the cause is.
vi. MOOTNESS
1. Rule – There must be actual controversy at the time court renders a decision, otherwise the case
will be rendered moot.
a. Outcome in the case will not matter to THIS plaintiff (advisory opinion).
b. Exceptions:
i. Class Actions – If named representative becomes moot, other may not be
ii. Repetition – If D could be affected by the issue again, evading review.
(pregnancy – 9 months)
iii. Voluntary change in conduct – Court makes judgment call
iv. Repeal of statutes
1. Not moot if altered, amended or substituted – Jacksonville
2. Moot is COMPLETE repeal – Hill v. Printing Indus.
c. Standing v. Mootness –
i. Standing – When you start the lawsuit there must be an injury
ii. Mootness – You had standing/injury, but things have changed
2. Friends of the Earth v. Laidlaw - D ceased its illegal conduct upon issued suit by P and argued the
case is moot. AC dismissed the claim as moot b/c not all of the three elements of standing existed
throughout the litigation.
a. Holding: Reversed – Not Moot
i. There are circumstances in which the prospect that D will engage in (resume)
harmful conduct may be too speculative to support standing but not too
speculative to overcome mootness
ii. Penalties for past behavior keep the case alive bu the court is concerned as to
whether cessation is permanent.
vii. RIPENESS
1. A Justiciability doctrine determining when review is appropriate. It seeks to separate matters that
are premature for review b/c the injury is speculative and never may occur, from those cases that
are appropriate for federal court action
a. There must be present adverse impact OR attempted enforcement of statute.
b. Must exhaust administrative remedies.
c. To challenge the law you must violate it
Ripeness -----------------------------------------Standing--------------------------------------------Mootness
a. Constitutional Text
i. Purpose of the Constitution was to create a stronger legislative body than existed under the Articles of
Confederation.
1. Enumerated – Article 1, Sec. 8
a. Federal government has no power except what the Constitution grants
2. Reconstruction Amendments – (13- sec 2), (14, sec 5), (15, sec 2)
4. Article IV
a. Sec 1 – Full Faith and Credit
b. Sec 3 – Power to admit states, Govern Territories
c. Sec 4 - Guaranty Clause
ii. Limitation:
1. Congress must be acting in some way to connect the powers which are enumerated to its actions.
How they implement the enumerated powers gives them more power though.
iii. McCulloch v. Maryland – Maryland taxed banks operating within the state but without state authority. The
US created a bank which operated in Maryland and refused to pay the tax.
1. Holding:
a. While there is no express grant to Congress of the power to create a bank, it does have
the power to do other things such as wage war and collect taxes.
b. A bank would assist in these purposes making it necessary and proper.
c. 10th Amendment is not appropriate b/c it doesn’t answer the question of what is given to
the federal government.
iv. US Term Limits v. Thornton – Like Congress, States have no power to add to the qualifications for
members of Congress – it is not reserved to the states in the 10th Amendment. The right to choose
representatives does not belong to the states, but to the people.
1. Holding: Article 1 imposes restrictions and states themselves cannot add to them.
c. COMMERCE CLAUSE
i. Constitutional Text – Art. 1, Sec. 8, Cl. 3
1. The single most important power of Congress.
2. The power to regulate commerce among foreign nations, the several states and with Indian tribes
3. Congress power is an exclusive grant over interstate commerce, so even when Congress has not
acted, States cannot act with regard to interstate commerce. States are excluded from imposing
such requirements.
4. Gibbons v. Ogden
a. NY statute granted Ogden the exclusive right to navigate boats in state waters. He
operated between NY and New Jersey. Gibbons was operating boats licensed under an
act of Congress in the same area. Ogden sought an injunction.
i. Holding: Congress acted properly and Gibbons has a right to be there too.
1. Child Labor Laws – Congress wants to control/prevent child labor. It creates and incentive
financially for manufacturers.
a. Hammer v. Dagenhart – Congress acted to End Child Labor through the commerce
clause. Purpose was to standardize the ages at which children may be employed in
mining and manufacturing.
i. Holding: Congress exceeded its powers.
1. The mere fact items were intended for interstate transportation does not
make their production subject to federal control.
2. This is something states should regulate.
3. The goods themselves are harmless to interstate commerce.
v. Regulating National Economic Issues – The New Deal & Modern Power
1. The Great Depression
a. Times were terrible and FDR was very aggressive. Federal Government created
programs to help the economy recover. The court however struck many of the programs
down (not commerce power).
b. FDR threatened the “Switch in time at saved 9” – A means of replacing older judges
with some that would allow his programs to pass.
c. 10th Amendment is NOT relevant to the Commerce Power. It is a truism, but the
Commerce power is established to reach any activity that has a substantial affect on
interstate commerce.
3. Cumulative Affects Doctrine – Actions by one person are insignificant, but actions of all will
substantially affect interstate commerce.
a. Wickard v. Filburn - Filburn raised 239 bushels of wheat, in excess of his marketing
allotment. He would sell some, feed some to livestock and use some for home-consumed
purpose. Government wants to restrict how much wheat you can keep
i. Regulation Permitted
1. Cumulative Effects Doctrine – Home-consumed wheat adversely
affects the markets if everyone does this.
b. Maryland v. Wirtz - Congress expanded regulation to cover (1) all employees of any
enterprise engaged in production of goods for commerce and (2) include hospitals,
nursing homes and schools.
i. These institutions are major users of goods imported through interstate
commerce and work stoppages would interrupt this flow of goods across state
lines.
ii. Court is very deferential here.
b. Hodel v. Virginia Surface Mining – Supreme Court upheld Federal Act regulating mining
operations – Diminish utility of the land, Cause erosion/floods, pollute the water, etc.
i. Rehnquist – There must be a limit to the commerce power
1. It must be a substantial effect on commerce AND
2. Must be reviewable by the courts as to whether that is true
b. Instruments of interstate commerce OR persons/things, even when the threat comes from
intrastate acts.
i. Airplanes, trains, buses
ii. Deferential Review, Guillen
i. Is it commercial/economic activity?
ii. Whether there is an express jurisdictional element relating to interstate
commerce – “She can have a civil remedy if…”
iii. Legislative history and Congressional findings about a connection
iv. Nature of the causal link - Direct or Attenuated?
iii. Souter (Dissent) – Apply the two-step Hodel Test. Rational Basis should be the
standard. Could Congress rationally conclude an effect on interstate commerce.
This is a deferential approach.
i. Taxation –
1. Express Power - Article I, Sec. 8, cl. 1
a. Grants Congress the power to lay and collect taxes, to pay debts, and provide for the
common defense and general welfare of the US.
b. Tax and pay the debts of the US.
c. 16th Amendment allows for collection of individual income taxes
d. Congress can tax and spend on anything for the general welfare
ii. Spending –
1. Express Power - Article I, Sec. 8, cl. 1
a. Grants Congress the power to lay and collect taxes, to pay debts, and provide for the
common defense and general welfare of the US.
b. Tax and pay the debts of the US
c. Congress can tax and spend on anything for the general welfare
b. Congress offers state’s money if they do various things Congress wants, Otherwise they
don’t get the money.
i. Congress cannot tell KU it must teach certain subjects but it can offer money to
KU and put a condition on that money that KU teach those subjects.
ii. This is okay because there is a choice on the part of the state (university)
3. Four Part Test – Dole
a. The power must be used in pursuit of the “General Welfare”
b. Any conditions must be declared unambiguously
c. Conditions must be related to the “Federal Interest”
d. Other Constitutional provisions must not prohibit the spending.
i. TREATIES –
1. Express Power – Article II, Sec. 2, cl. 2, and Article VI
a. All treaties made under the authority of the US are Supreme
b. Congress can enact laws implementing the treaty – If the President and required Senate
vote believe it is important enough, the court is not in a position to deny the power to
enact such a law.
i. Courts are Deferential
c. Missouri v. Holland - Upheld a treaty between US and Canada obligating both countries
to seek legislation protecting birds that traversed both countries. Power to make treaties
is expressly delegated and treaties are declared the supreme law of the land (Art 2 Sec 2
and Art. 6). The issue is whether the treaty is forbidden by the 10th Amendment. Court
held it not sufficient to rely upon the states and upheld the treaty.
a. EXPRESS POWERS
i. Article II –
1. Section 1 –
a. Executive power shall be vested in the President
2. Section 2 –
a. Commander in Chief, Pardon Authority, Treaty Power, Appointments of Ambassadors,
Judges, Principle Officers, Recess Appointments
3. Section 3 –
a. State of the Union, Recommend/Propose legislation, Convene both Houses of Congress,
Receive Ambassadors, Faithfully execute the laws, Commission all officers of the United
States
4. Section 7 –
a. Sign laws – Veto and Pocket Veto
b. GENERAL CONSTITUTIONAL FRAMEWORK – EXPRESS AND IMPLIED POWERS
i. President’s power extends only to the Constitution and whatever Congress designates
b. Holding – Must find express power either (1) in the Constitution, (2) in a federal statute,
or (3) Congressional authorization. None of these existed and this is a category 3
according to Jackson.
c. SPECIFIC POWERS
i. Executive Lawmaking Delegation – President cannot legislate, but it is true that in many statutes,
Congress leaves all the details to the President to implement.
a. Hamdi v. Rumsfeld –
i. D is an American in Afghanistan following 9/11/01. Congress authorized
President to use “all necessary and appropriate force” against those he
determined planned, authorized or aided the attacks. D was seized and turned
over to the US as a Taliban fighter. His father argues he was being held in
violation of Due Process and the Non-Detention Act (forbids any imprisonment
or detention of American citizens, except pursuant to an act of Congress.
1. Holding: Initial detention was authorized but he cannot be held
indefinitely – he has Due Process rights.
b. Hamdan v. Rumsfeld –
i. D was captured in Afghanistan and transported to Guantanamo (not US citizen).
D argued that the military commission, convened by the President, lacked
authority to try him. The President had issued a exec. order (authorized by
Congress) that governed the detention treatment and trial of non-citizens.
1. Holding: This is a Jackson #3. Congress passed an act precluding
such Presidential action.
3. Nixon v. Fitzgerald –
a. Fitzgerald sued claiming Nixon caused him to lose his job for “whistle-blowing”. Court
affirmed the dismissal of the action – Executive Privilege.
i. President has absolute immunity from civil liability for any acts within the
“outer perimeter” of his official duties.
ii. Applies whether or not he is currently in office.
iii. Pres. Is checked politically in other ways – media, impeachment, Congressional
oversight, re-election
4. Clinton v. Jones –
a. Can President be sued civilly while in office for non-Presidential related reasons? Ark.
state employee sued for sexual advances by President Clinton. Clinton contends that the
case and additional litigation may impose an unacceptable burden on his time and energy
and impair effective performance of his office.
i. Holding: Suit may proceed b/c it relates to his unofficial conduct, but
Presidential schedule must be considered.
ii. Functionalism – Separation of Powers is to ensure no branch gets too powerful but there ought to be some
flex in the joints. Acknowledges that the separation is not all that clear.
1. INS v. Chada –
a. Involved one-house legislative veto of a deportation decision of the AG, the court held
such vetoes unconstitutional across the board, as violations of the Presentment &
Bicameralism Clauses of the Constitution (Art. 1, Sec. 7, cl. 2, 3). They required any law
to be presented to the President and that laws be passed by both houses of Congress.
i. Legislative veto violated this process. Unilateral action is only permitted during
impeachment process.
b. This is a Formalist analysis.
c. Functionalists disagree – bicameralism was satisfied when the law was initially passed
and Congress should retain the veto power
2. Fourth Branch of Government - Without the veto power, there is very little which oversees
government agencies.
d. Congressional Delegation
i. The Court has long recognized the concept that Congress cannot delegate its legislative power to other
entities, but can enact legislation giving others authority to implement if the law provides substantial
guidance to the implementing agency or officials. Non-Delegation Doctrine.
ii. The Court has never found any act of Congress to violate this doctrine:
2. Morrison v. Olson –
a. Court upheld Act providing for Independent Counsel to be appointed by a “special
division” court to investigate high level executive branch officials.
i. Holding: Independent Counsels are Inferior Officers
1. They do not have to be appointed by the President
2. Removal by AG for “Good Cause” did not violate presidential
prerogatives.
V. FEDERALISM
a. INTRODUCTION –
i. States have general Police Powers. Therefore the question is not whether the Constitution authorizes States
to act, but whether it prohibits the States from acting.
i. Language – “The judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another state, or by
Citizens of Subjects of any foreign state.
b. Bar suit by the U.S. against a state in Federal Court, United States v. Mississippi
2. 11th bars a foreign government from suing a state in Federal Court, Monaco v. Mississippi
3. States have sovereign immunity from suits based on Federal Law brought in state court (though
this is not derived from the 11th.), Alden v. Maine
4. A state may consent to suit in Federal Court, but must make its intent to do so clear. There is no
constructive or implied consent/waiver.
iii. History
1. Ratified to overrule Chisholm v. Georgia, where the Supreme Court held a citizen of South
Carolina could sue Georgia in Federal Court.
3. States have immunity in state courts from Federal claims – Alden v. Maine
a. Suits against states under state laws are up to the states
2. Does the 11th bar an action for injunctive relief against a state official?
3. Holding – 11th does NOT bar suit against a state official when seeking an injunction. If the act
which official seeks to enforce is Unconstitutional, he is stripped of his official character and is
subjected in his person to the consequences of his individual conduct.
a. Holding otherwise would leave the state and officials free to violate federal law.
b. Dissent – He is the state & that’s what the 11th prohibits. Opens the door to federal court
supervision of state gov’t institutions.
2. Seminole Tribe wants gaming activities authorized and they can do it so long as they negotiate in
good faith with Florida. They sued the state and the Governor claiming they can name the state
b/c the federal statute allows them to name the state to compel compliance.
2. 11th DOES bar the payment of money damages from the state treasury, but not prospective
injunctive relief. This applies even if the State will ultimately be indemnified from a non-state
source. – Regents Univ. Cal v. Doe
3. 11th does NOT bar injunctive relief that requires the State to spend $$$ in order to comply, so long
as the expenditure is incidental to the primary injunctive relief – Milliken
4. 11th BARS federal court from ordering injunctive relief against the State when the basis of the
order is solely state law – Halderman
5. 11th does NOT preclude the SC from reviewing decisions coming from State courts in cases which
the State is a party and dollars are at stake.
a. Challenges to state taxes under the dormant commerce clause where state waived
immunity.
2. Congress CANNOT override States 11th Immunity under the Commerce Clause power. Or any
other Article I power.
c. THE 10TH AMENDMENT – Does it mean anything? What can Congress do/not do to the States?
i. Text – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.
2. 10th provides no enforceable limitation on federal power nor independent protection of state
sovereignty. Congress and the political process should decide the limits not the courts
3. Congress will exempt the States in the laws when they think it necessary
4. Gregory v. Ashcroft – Courts will assume Congress did not mean to effect the State’s interest
unless Congress explicitly says so.
iv. New York v. United States –
1. 10th prevents Congress from compelling states to pass laws. Congress may however attach
conditions to federal spending or preempt state regulation altogether under the Commerce Power.
d. PREEMPTION
i. When does Federal Law preclude the application of State Law?
iii. Types:
1. Express in Federal Statute –
a. Look to the intent of Congress (clarity of language, savings clause)
b. Presumption against Preemption?
c. “Savings Clause”
2. Implied –
a. Field Preemption – Scheme of federal law is so pervasive as to make a reasonable
inference that Congress left no room for the State to supplement
b. Conflict between state and federal law
i. Compliance with both is impossible
ii. If State law impedes the federal objective – if it serves as an obstacle
i. Overview –
1. IMPLIED PREEMPTION
a. The fact that Congress has the power means the court has to protect the power even when
Congress has not yet acted, but the states have. What do you do when Congress hasn’t
spoken?
ii. TEST 1 - Does the State Law Discriminate Against Interstate Commerce on its Face?
1. If YES - Per Se Invalid
a. Apply strictest scrutiny and uphold only if state has chosen least onerous means to
address legitimate local purpose.
b. State legislation here will RARELY be upheld
2. What is Discrimination?
a. Differential treatment of in-state and out-of-state economic interests that benefits the in-
state and burdens the other.
b. The Key is whether it exists, not the extent of discrimination (a few cents difference in
prices qualifies).
iii. TEST 2 - Does the State Law regulate even-handedly with only incidental effects on Interstate
Commerce? (Facially Neutral)
1. Apply the Pike Balancing Test –
a. Compare the burden imposed on interstate commerce with the local benefits.
c. “Where the statute regulates evenhandedly t effectuate a legitimate local public interest,
and its effects are only incidental on interstate commerce, it will be upheld unless the
burden imposed in interstate commerce is clearly excessive.”
2. Gibbons v. Ogden –
a. States posses the concurrent power to regulate commerce. State activity may be
unconstitutional even when Congress has not exercised its powers
i. Text – The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the
several States.”
2. If so, (a) is there a substantial reason for the difference in treatment and (b) does the
discrimination bear a substantial relationship to the State’s objective?
a. If so, the State may discriminate
i. Higher university tuition for non-residents
ii. Hunting
INDIVIDUAL RIGHTS – Bill of Rights and 14th Amendment Due Process/Equal Protection
I. STATE ACTION
ii. 14th is the primary restraint on States impeding individual rights, Not Federal Government
i. Terry v. Adams –
1. The Jaybird Democratic Association (all white) excluded blacks from pre-primary
elections. They were not merely a private club, they were part and parcel of the
Democratic party. Having elections and nominating candidates is part of the government.
v. Adickes v. SH Kress –
1. Custom / usage of using state criminal trespass statute to refuse service to minorities and
conspiracy between state and private actors is State Action.
i. Shelly v. Kraemer –
1. White neighborhood has a covenant that no blacks can live there. Black people bought a
home and neighbors sued. This is all private – No state Action.
a. Court Cannot Enforce the Covenant because that is state action and
enforcement would violate Equal Protection
ii. Self-help remedies with State Actors present or actively assisting is Always State Action.
i. NOT STATE ACTION – the law has long allowed private resolution.
The state acquiesced but did not encourage or compel.
i. West v. Adkins – Private doctor treats State prison inmates under contract with prison to provide
medical services is a State Actor
ii. Black v. Indiana Area School District – No State Action when schools bus driver employed by
private company that contracted with public schools, molested children who rode the bus.
iii. Yeager v. City of MacGregor – No State Action for volunteer fire department whose building and
equipment are furnished by the State because firefighting is NOT an exclusive public function.
g. Federal Government / Foreign States / Tribes – Generally not State action unless such officials
conspire with State Actors.
h. Private Schools
i. KU is a State Actor, Harvard is NOT.
ii. Consider funding, Extent of regulation controlling decision-making, Whether activity is an
exclusive prerogative of the government, symbiotic relationship.
1. Rendell-Baker v. Kohn –
a. Private school specializes with students who suck at school. Public
funds have accounted for 90% of the operating budget and the school must also
comply with various state regulations. Petitioners are teachers who were
discharged from the school for supporting student criticisms against school
policies. Was the firing State Action?
a. NOT STATE ACTION – The NCAA is not a state actor because (1)
large number of private school members, (2) schools are not required to
participate, (3) no delegation to the NCAA of authority to discipline member
school employees.
b. STATE ACTION – Occurs when the judge excuses the juror. The
private party invoked the authority of the court
2. NO STATE ACTION – State never took custody or created the danger. 14th is not
designed to protect citizens from each other, but from the State. State has no 14th duty to
protect citizens from private violence.
ii. Exception –
1. Special Relationship: If the State has a special relationship with the person there may be
an obligation (prisoner). When the government is responsible for one’s safety.
2. Created Danger – If the Government creates a situation where private citizens get hurt
there is a duty to protect. (Police Activity).
a. INTRODUCTION
i. State Action Requirement
ii. Incorporation
1. 1833 – Bill of Rights did not apply to the States.
2. 14th Amendment is created with Due Process and Equal Protection
a. Some rights are so fundamental, they are part of Due Process and the
Bill of Rights should apply to the States.
2. Substantive –
a. Protection against irrational, arbitrary, fundamentally unfair
government action
b. Identifying fundamental rights not enumerated, but implied in the
Constitution.
i. Three Questions:
1. Is there a LIFE, LIBERTY, or PROPERTY interest at issue?
2. If so, did the Government act with the requisite state of mind?
3. If so, were the procedures followed adequate?
ii. What are Protected Property (State law recognized) and Liberty Interests?
2. Driver’s License – State cannot revoke or suspend driver’s license once issued without
satisfying due process requirements.
3. Public Education – Child has a property/liberty interest here such that suspension of 10
days must be preceded by compliance with due process requirements
iii. Culpability Requirement – State of Mind on the Part of the State Official
1. NOTICE –
a. Must reasonably apprise parties of their interests and rights.
2. OPPORTUNITY TO BE HEARD –
a. Need not be a full trial but something in a meaningful manner at a
meaningful time. It depends on what is at stake.
ii. The risk of an erroneous deprivation through the procedures utilized, and
the probable value of any additional or substitute procedures
3. Examples:
a. No hearing required if completely impractical or if the decision is too
subjective to provide a meaningful hearing. Ingraham v. Wright; Board of
Curators v. Horowitz
b. Due Process requires State to pay for simple paternity test when
putative father is indigent and test will be virtually conclusive of claim. Little
v. Streater
i. Textual Support –
1. Art. I, Sec 10 – Contracts Clause – States cannot impair the obligation of K
2. 5th Amendment – Takings Clause (Due Process)
3. 14th Amendment – Due Process, Privileges and Immunities
a. Barron v. Mayor and City of Baltimore – Court holds the Bill of Rights
(issue over the takings clause) applies only to the federal government, not the
States.
i. Result: Before the ratification of the 14th, there were virtually no textual,
Constitutional limits on State’s ability to regulate economic rights.
i. The 14th Privileges and Immunities Clause was considered the most
important provision by proponents. History has not borne out that view.
2. There are rights that exist outside the Constitution. Clader v. Bull
a. Dissent – Unless it is expressly prohibited there is nothing judiciary can
do.
ii. There is a limit to State police power and the Courts will decide where
the limit is by judging fairness, reasonableness and appropriateness.
1. BMW of North America v. Gore – Court invalidated a state court punitive damages award
as “grossly excessive”. D was assessed $2 million punitive for failing to tell the owner of
a $40,000 car he painted it decreasing its value by 10%.
3. Philip Morris v. Williams – A heavy smoker died of lung cancer and widow sued
cigarette manufacturer. Actual damages were $821,000 and punitive of $79.5 million
were assessed. The TC instructed the jury to award to punish misconduct and deter
misconduct.
a. Punitive award based on harm to others who are not parties is a taking
without due process. Harmed caused to others would be relevant to
reprehensibility consideration.
2. Any physical invasion is a taking, even if it doesn’t bother the landowner much. Applies
to any specific interest in physical or intellectual property.
5. This is not something the court is eager to invoke and its difficult to succeed. It is a limit
in State’s ability to regulate economic interests.
d. SUBSTANTIVE DUE PROCESS RIGHT TO PRIVACY
i. Textual Support – There is none. Court relies on Due Process to protect privacy interests.
1. Griswold v. Connecticut –
a. P is director of Planned Parenthood. State law makes it a crime to use
drugs to prevent conception and to assist another under the first. P’s are
charged with providing information and instruction to married persons. Law
implicates the intimate relation of husband and wife.
b. Zone of Privacy – Penumbras are found in the 1st, 3rd, 4th, 5th, and 9th
Amendments. Together these protect the marital relationship.
a. Look for the most specific and narrow description and ask if that is
deeply rooted in tradition
3. Roe v. Wade –
a. Roe is unmarried and pregnant and is unable to get a legal abortion in
TX because her life was not threatened. TX law prohibits abortions unless
mom’s life is at risk.
i. Holding – TX Law is Unconstitutional. State may only regulate when
compelling interests exist
c. State’s Interests:
i. Health of Mother –
1. First Trimester –
a. NO State Regulation
b. Woman’s interests prevail
2. After 1st Trimester
a. State may regulate for the woman’s health/safety.
3. Third Trimester
a. Viability makes State’s interests strong for the potential
life
b. State may regulate to protect potential life
c. Banning abortion is permitted, with 2 exceptions:
4. Doe v. Bolton –
a. GA law permitted doctor to perform abortion when based solely upon
doctor’s medical judgment that the abortion is necessary.
b. Viability
i. Pre-viability – Woman’s interests are paramount but State has an interest
1. Regulation permitted – Court will use Undue Burden Standard
2. Cannot ban abortion
ii. State can regulate so long as it doesn’t impose an undue burden on the
mother’s choice:
1. Such burden exists if it “Places a substantial obstacle in the path
of the woman seeking an abortion pre-viability.”
2. State action must be calculated to inform the woman’s free
choice, not hinder it.
iii. State cannot ban abortion pre-viability
a. Procedures:
i. During First Trimester – Vacuum Method
ii. After First Trimester – Standard D&E or Intact D&E
b. Gonzales v. Carhart –
i. Congress enacted the Partial Birth Abortion Ban Act (Commerce Power)
in response to the intact D&E procedure where doctors will deliver the
living fetus through the uterus, pierce/crush the skull and then extract the
whole fetus through the cervix.
ii. 2000 NE case debated the methods for abortions as well. Court struck
down the law b/c there was not a health exception for women and the
description of the procedure was too vague and ambiguous – doctors
could fear prosecution.
v. RIGHT TO MARRY
1. Central Issue – There is something fundamental about the right to marry but there is a
tradition on regulating types of marriage. Marriage is a special relationship.
a. Loving v. Virginia
i. VA banned inter-racial marriage. Court found violations of (1) Equal
Protection - race discrimination, and (2) Due Process - liberty in
choosing who to marry.
b. Zablocki v. Redhail –
i. Law stated a man cannot marry until he pays child-support. Court said
this violates Due Process b/c it conditions marriage on whether or not
you have money. There are other ways for the state to collect child
support
c. Turner v. Safley –
i. State regulation permitted inmates to marry only upon permission of the
prison superintendant. Court held the right to marry is still fundamental
in prison. Court was wary of state having too much control whether
inmates can marry. Even though the general rule is deference to prison
administrators - not here.
a. Troxel v. Granville –
i. Grandparent visitation dispute. Mom wants to decide the visitation
rights. State law allows “any person” to petition for visitation and the
court to grant when in the best interest of the child. Does Mom have a
liberty interest in deciding what is best for her kids?
a. Quilloin v. Walcott –
i. Under GA law, if natural father has not legitimized his offspring, only
mom’s consent is required for the kid’s adoption. Dad here attempted to
block the adoption of his illegitimate son.
b. Michael H. v. Gerald D. –
i. CA law says a child born into marriage is presumed to be the child of the
relationship. Michael claims to be the father of Victoria. She lives with
Carol and Gerald. Gerald is listed as father on birth certificate. Mom
had an affair with Michael and someone else, resided with Michael and
Gerald. Michael sues saying the law is Unconstitutional
1. Presumption – Competent person has a liberty interest in refusing life savings treatment
c. Washington v. Glucksberg –
i. State law bans assisted suicide. Four doctors declared they would assist
terminally ill patients sought declaration that the law is unconstitutional.
d. Vacco v. Quill –
i. Party argued that a person’s permission to refuse life saving medical
treatment in NY is essentially the same thing as physician assisted
suicide. Equal Protection is argued for permitting one and not the other
ii. Holding – They are not the same thing and neither law treats anyone
differently. There is a difference between causation and intent.
a. Bowers v. Hardwick –
i. Court UPHELD a Georgia statute which criminalized sodomy.
Hardwick was charged with committing sodomy against another man.
Can GA make this a crime?
b. Lawrence v. Texas –
i. Police responded to a weapons disturbance, entered home and saw two
men having anal sex. Both men were arrested. TX law punishes deviate
sexual intercourse. Are people free as adults to exercise a sexual liberty?
iii. Overrule Bowers – Courts obligation is to define liberty, not mandate its
moral code.
2. Rational Basis – Standard for any liberty interest challenge. So long as there is a
rational basis for Congress to pass the law – a rational relation to governmental interest,
the law will be upheld.
III. EQUAL PROTECTION – States shall not deprive Equal Protection of the laws
a. Requirements:
i. State Action
ii. State of Mind
1. Discriminatory Intent for Constitutional Violation.
b. Levels of Review:
i. Strict Scrutiny
1. Must show a compelling governmental interest, AND
2. Law is narrowly tailored to serve the interest
c. Categories
i. Strict Scrutiny
1. Suspect Classifications
a. Race
b. Alienage/Nationality – For non-political functions and non-
immigration / naturalization matters
c. Gender?
2. Fundamental Rights
a. Voting
b. Interstate Travel
c. Religion / Speech
a. This is not Due Process because there is a rational basis that such a law
regulates government interest in traffic safety.
b. Equal Protection challenge based on who can advertise – are one’s own
ads less distracting? Court says no but the number of ads will be reduced.
i. Court does not need to eradicate the problem (complete ban)
a. Court – No Violation
i. It is rational for the court to impose ban – safety risk
ii. Law need not be perfect, only rational.
b. Dissent – There is no safety risk – concerned about race/poverty
pretext b/c of the type of people on methodone.
2. Classifications:
a. If you were retired and got both, you could continue to receive them
b. If you were about to retire, then you could continue to receive them
c. If you were working as of 1974 or had a connection as of then, then
you could stay qualified
b. When there are plausible reasons for what Gov’t did, Congress’
actual intent is irrelevant. Court can speculate on its own to find a
rational basis.
i. RACE
1. History – Constitution had recognized slavery
i. 3/5 vote requirement
ii. Slaves must be returned to the south
iii. Congress can ban importation of slaves
ii. Holding – Scott is NOT a citizen, cannot claim rights and privileges.
2. Strauder v. West Virginia – WV did not allow blacks to serve on a jury. D complains that
this is not equal protection. Court agreed. WV cannot legally ban people from serving
on jury based upon race. BUT there can be qualifications for the jury: Males, educated
people, citizens, age qualifications, property owners
3. Plessy v. Ferguson –
a. 1890 Louisiana law required train passengers to have equal but
separate accommodations for white and colored people. P was 7/8 white and
was arrested for refusing to vacate a seat for whites only.
b. Court adopts Strict Scrutiny for Racial Group Issue – Suspect Class
i. (Not yet to the modern application)
c. Holding - Constitutional
i. Law is narrowly tailored
1. Exclusion from a threatened area has a definite and close
relationship to the prevention of sabotage/espionage.
ii. Based upon war powers – deference to military decision
6. Bolling v. Sharpe –
a. Congress required segregated schools in DC. The question is whether
Congress is subject to the 14th, because No State shall… The answer is NO.
Could it be Constitutional for Congress to do this?
b. The 5th Amendment has a due Process clause too. Therefore the 5th has
an equal protection component.
7. Loving v. Virginia –
a. State law bans inter-racial marriage. P married in DC and were
convicted upon their return to VA. VA offered to suspend charges if they left
the state forever. Law only applied to whites marrying blacks (not
Asians/Hispanics).
b. Purpose of the law was to prevent corruption of the blood and preserve
racial integrity – Endorsement of White Supremacy. VA argues no Equal
Protection because penalty applies to blacks and whites equally.
8. Johnson v. California -
a. CA prison system assigns new prisoners to blocks by race. The
purpose was to reduce fighting and violence. Court said this violates equal
protection and was purely a race distinction.
1. Intentional Discrimination – May exist despite facially neutral law. What about when
the law makes no facial distinctions but the law is applied in a discriminate manner or
impacts people of a certain race over another?
2. Yick Wo v. Hopkins –
a. SF passed ordinance banning laundry in wooden buildings. They were
concerned about fires. On its fact it is not discriminatory. TO get a license you
must pass a Board. P is Chinese and brings suit b/c 240 Chinese businesses
have not been granted licenses but whites had despite owning wooden
facilities.
i. Holding – Unconstitutional
1. Practical denial of Equal Protection
2. Applied with an evil eye and unequal hand
3. Washington v. Davis –
a. DC police dept. required prospective officers take a test to become a
police officer. Four time as many blacks as whites fail – test had a significant
impact on blacks. The Dept. however had systematically sought to enroll black
officers. There is no allegation the dept. acted with discriminatory intent.
1. General Principles –
a. Level of Scrutiny – Strict when race is a factor
c. Narrow tailoring:
i. Individualized consideration of every file – Not Quotas
ii. Set numbers and racial balancing are inappropriate
iii. Entity need not use other methods before using race, Grutter
2. Analysis –
a. Step 1 – Identify Compelling Interest
4. Grutter v. Bollinger –
a. Michigan law admissions are challenged by a white resident who was
denied admission. The admissions office sought the “critical mass” of students
in underrepresented areas to be students and participate in the classroom. It is
a number which encourages underrepresented minorities to participate.
5. Gratz v. Bollinger –
a. P was a white resident denied admission to University of Michigan.
Undergrad admissions office used a point index system (max 150 points).
There were various factors and a “Miscellaneous” section. Minority students
automatically get 20 points under this special category and there is no
individualized consideration.
i. Holding – Unconstitutional
1. Point system has the effect of making race a decisive factor. It is
too automatic – more careful consideration of each file is
required.
i. Holding – Unconstitutional
1. Uncertain Standard of Review – Originally the court applied a rational basis review.
a. Reed v. Reed – Law preferred men to women when two persons were
equally entitled to be the administrator of an estate. Court held the
classification must have a rational relationship to a state objective sought to be
advanced.
i. Court held the classification to be arbitrary
i.
Classification based upon gender are inherently suspect and must be
subjected to “close judicial scrutiny”
ii. There is a tradition of gender discrimination
2. Intermediate Scrutiny ??
a. Craig v. Boren –
i. OK law allows women over 18 can purchase beer, but men cannot until
age 21. Men can possess and consume, but they cannot purchase. Is this
an equal protection violation
3. Remedial Discrimination
a. Califano v. Webster –
i. Law makes it possible for women to get higher retirement benefits. This
is a gender distinction. They are giving women benefits that they
wouldn’t give men. They do this as a remedial measure – Typically
women were paid lower wages for so long.
2. Ambach v. Norwick –
a. The state law that prohibited the hiring of public school teachers who
are aliens and not intending to become citizens.
ii. Other areas are not important and do not apply – Too Broad
1. All state employees, lawyers, engineers.
2. Romer v. Evans –
a. CO Constitution Amendment prohibits protective status for
homosexuals in Colorado. Some communities before this said you cannot
discriminate against gays, the amendment overruled such ordinances.
Amendment was challenged based on Equal Protection.
2. Mathews v. Lucas –
a. Discrimination based on birth is out of an individuals control, but it has
never reached the pervasiveness of discrimination based on race and gender.
Thus it does not command extraordinary protection
2. Mass Board of Retirement v. Murgia – We all age and there is nothing inherently
discriminatory about it. There is no indication anyone of a particular age is without
political power.
x. WEALTH DISCRIMINATION
1. Standard of Review –
a. Rational Basis when standing alone
b. Kramer v. Union Free School District - Law Limits who can vote in a
school district election. Only those who own property (schools are financed by
property taxes) and who have kids in schools are eligible.
ii. Districts with power were all white – this motivates the court to get
involved instead of claiming political question
a. Davis v. Bandemer –
i. Redistricting was done by republican house. Democrats challenged it b/c
it was designed to favor republicans. This is an equal protection claim.
The republicans argued that the court shouldn’t hear it b/c it is a political
question. They say there is no objective baseline to measure the
districting. It is not justiciable
1. Two-Prong Test:
a. Intent to discriminate against an identifiable political
group
b. Actual discriminatory Effect (success)
b. Vieth v. Jubelirer –
i. PA 2000 census involved political gerrymandering by the republicans.
c. Mobile v. Bolden –
i. The majority always controls drawing districts. The court says that it
does not violate equal protection to have at-large districts. But if you can
prove the reason behind it is discrimination then it violates equal
protection.
d. Shaw v. Reno –
i. The opposite occurs. They pocketed blacks in voting districts to have
majority minority districts. The court said if the only justification is race,
then it violates equal protection. If you draw crazy lines to make it
happen, then that is a problem.
e. Bush v. Gore –
i. There are no constitutional requirements on how states conduct voting.
Even within states it is not uniform. Issues include that one person may
have voted for multiple candidates and some votes were not clearly
indicated (hanging chads).
iii. US SC – Takes the case and decides over the course of a few days.
1. Equal Protection – votes will not be treated equally.
2. Saenz v. Roe –
a. CA limited the max welfare benefits to newly arrived residents. Its
benefits are higher and it fears people will come just for that reason – it will
cost them more money. Law says CA will not pay more in welfare for their
first 12 months than citizen would have gotten from the state they left. Purpose
is to eliminate the financial incentive.
b. Holding – Unconstitutional
i. Strict Scrutiny –
1. Law doesn’t treat new citizens the same – creates classes of
residents, which is not permitted
2. Financial reasons are not compelling – they could solve the
problem by reducing amount offered.
ii. Freedom of Speech and Right to Vote do not imply right to an education
1. Education may help to exercise those rights
4. Plyler v. Doe –
a. Texas law says no education for illegal alien children. There is no
fundamental right to education. Illegal aliens are not a suspect class.
i. Holding – Unconstitutional
1. The law is irrational b/c evidence suggests illegal aliens do nt
use the services, and there is not showing they impose greater
costs
iii. Level of Scrutiny – Rational Basis for finance issues, but more scrutiny
if issue rises to denial of public education.
i. Can Congress prohibit actions that are not violations of the 14th? OR
ii. Can Congress only prohibit and provide remedies for actual violations of the 14th?
a. Here there are two private actors, 14th does not apply – No State
Action.
i. Rely on 13th – applies to everyone
b. How does the Court decide what the “badges and incidents of slavery”
are?
i. Similar to rational basis review – Defer to Congress
ii. Opens the door to Congress defining the substance of the 13th
b. Standard of Review –
i. Could Congress rationally conclude the law might result in an Equal
Protection violation?
ii. Court will defer to Congress
ii. Examine the congressional record for evidence of a pattern or history of discrimination on the
prohibited basis.
i. Boerne v. Flores –
1. City denied church a building permit and the church challenged under RFRA, which
prohibits Govn’t from burdening a person’s exercise of religion unless (1) its in
furtherance of compelling Govn’t interest and (2) is the least restrictive means to do so
(strict scrutiny).
iii. Is it proportionate? NO
iv. Hibbs –
1. Family Medical Leave Act. State employer must allow either parent the opportunity for
unpaid leave. Someone sues Nevada for not getting the required leave. Can Congress
subject NV to suit?