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CONSTITUTIONAL LAW
SEAMAN
SPRING 2016

Outline of Constitution
 Article I – Congress
 Article II – Executive (President)
 Article III – Federal Judiciary (Supreme Court and Inferior Federal Courts)
 Article IV – State Relations
 Article V – Amendment Procedures
 Article VI – Supremacy Clause
 Article VII – Ratification Requirements
 Amendments

Note: Early Federalists were in favor of a stronger central government; now, Federalists favor less federal involvement

JUDICIAL REVIEW

I. The Federal Judicial Power

a. Supreme Court review of Acts of Congress (Marbury v. Madison, 1803)
b. Supreme Court review of state court decisions (Martin v. Hunter’s Lessee, 1816)

II. Relevant Constitutional Provisions

a. Article III, §1: Judicial Vesting Clause
i. “The judicial power of the United States, shall be vested in one supreme Court, and in such inferior
courts as the Congress may from time to time ordain and establish…”
ii.  Gives power to Congress to ordain and establish
b. Article III, §2, cl. 2: Original vs. Appellate Jxn
i. “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state
shall be party, the supreme court shall have original jurisdiction. In all other cases before mentioned,
the supreme Court shall have appellate jurisdiction, both as to law and fact, w/ such exceptions, and
under such regulations as the Congress shall make.” – Exceptions Clause
c. Article VI, cl. 2: Supremacy Clause

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i. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and
all Treaties made or which shall be made, under the Authority of the U.S., shall be the supreme Law
of the Land; and the Judges in every state shall be bound thereby, and Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”

III. Marbury v. Madison (1803) – established power of judicial review

a. Facts: Marshall, as acting secretary of state for John Adams, had signed the commissions of Marbury and
other justices of the peace whose positions had been created by the federalist congress just before Republican
Thomas Jefferson took office in March 1801. Jefferson was not happy about the appointment of midnight
judges by his political opponents so he refused to deliver the commissions and claimed that they were void
b. Write to mandamus: judicial writ issued as a command to an inferior court ordering a person to perform a
public or statutory duty
c. The Questions, as stated by C.J. Marshall:
i. “Has the applicant [Marbury] a right to the commission he demands?”
1. Jefferson says no, Marbury does not have the right to a commission he demands because the
right did not vest because it was not delivered – but Marbury is entitled to this commission
because it was sealed
2. His right originates in an act of Congress (when a commission has been signed by the
president, the appointment is made)
3. To withhold the commission is an act deemed not warranted by law but violative of a vested
legal right
ii. If Marbury has a right to the commission, and the right has been violated, is there a remedy?
1. There is a remedy – having this legal title to the office, Marbury has a consequent right to the
commission; a refusal to deliver which, is a plain violation of that right, for which the laws of
this country afford him a remedy
iii. Is he entitled to the remedy for which he applies, i.e. writ of mandamus?
1. Is he entitled to a mandamus – depends on two things: nature of the write and the power of
the court
2. Is mandamus the appropriate remedy?
a. Yes
3. Does the Supreme Court have the power to grant the writ?
a. NO! Jurisdiction question
b. To enable this court to issue a mandamus, it must be shown to be an exercise of
appellate jxn or to be necessary to enable them to exercise appellate jxn
i. It is the essential criteria of appellate jxn that it revises and corrects the
proceedings in a cause already instituted, and does not create that case
ii. **although a mandamus may be directed to the courts, yet to issue such
a writ to an officer for the delivery of a paper, is in effect the same as to
sustain an original action for that paper, and therefore seems not to
belong to appellate, but to original jxn**
d. The Underlying Questions
i. Does the Judiciary Act give the Supreme Court the power to issue the writ?
1. Yes
ii. Does Article III give the Court the power to issue the writ?
1. No
iii. When an Act of Congress, in the court’s view, conflicts w/ the Constitution, may the court invalidate
the Act of Congress?
1. Supreme Court gets to invalidate acts of Congress – Supreme Court was the winner; Madison
was not ordered to grant the commission
iv. [Implied] Which branch’s interpretation of the Constitution is supreme?
1. Supreme Court gets to invalidate acts of Congress
e. Holding:

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i. Section 13 of the Judiciary Act of 1789 is unconstitutional to the extent it purports to enlarge original
jxn of the Supreme Court beyond that permitted by the Constitution.
ii. Congress cannot pass laws that are contrary to the constitution and it is the role of the judicial system
to interpret what the Constitution permits.
f. In sum, Marbury has a right, but the Supreme Court has no right to grant

IV. Meaning of Judicial Review

a. Procedural only, rather than substantive
b. Confined to the particular case
c. Limited to power to construe constitutionality of legislation affecting Court’s own functions
d. Judicial supremacy over the branches in interpreting the Constitution
e. “[Marbury v. Madison] declared the basic principle that the federal judiciary is supreme in the exposition
of the law of the Constitution…the interpretation of the 14th Amendment enunciated by this Court is the
supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States…Every state
legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, ‘to
support this Constitution.’” – Supreme Court in Cooper v. Aaron (1958)

V. Martin v. Hunter’s Lessee

a. Facts. Appellee claimed ownership of a tract of land in the VA that was given to him by the State pursuant to
a land confiscation act.
i. Appellant claimed ownership to the same tract of land, arguing that the Act was in violation of a
treaty between the United States and Great Britain.
ii. The Virginia Court of Appeals, reversing the trial court, found in favor of Appellee.
iii. The Supreme Court took jurisdiction over the case, reversed and remanded the case back to the
Virginia Court of Appeals and instructed it to enter judgment for Appellant.
iv. On remand the Virginia Court of Appeals declined and argued that the law, section 25 of the
Judiciary Act (the Act), pursuant to which the Supreme Court took appellate jurisdiction over the
Court of Appeals, was unconstitutional.
b. Holding: Article III grants Supreme Court jurisdiction and authority over state courts on matters involving
federal law
i. The power of the federal courts to invalidate state laws and to nullify actions of state and local
officials as unconstitutional

VI. Interpretive Methods: Types of Constitutional Argument

a. Text
i. “That’s what the Constitution says”
b. Original Meaning/Intent
i. “That’s what the Constitutional clause meant to those who drafted/ratified it”
c. History/Tradition
i. “That’s the way Americans have done things for hundreds of years”
d. Precedent
i. “That’s what the Supreme Court/other courts have suggested it means.”
e. Purpose
i. “The constitutional provision was meant to accomplish a particular goal, and we should interpret it
this way bc this way best suits that goal”
f. Structure
i. “The various constitutional provisions, read together, set up a particular structure and we should
interpret them accordingly.”
g. Moral
i. “This is the morally right way to interpret the provision”
h. Evolving standards of decency
i. “It’s the social consensus today that this is the morally right way to interpret the provision.”
i. Pragmatic/Prudential

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i. “This is the best reading, because it leads to the best real-world results”
j. Changed Circumstances
i. “Even if the text of original meaning point to one reading, circumstances have changed and therefor
this interpretation is more consistent w/ today’s reality”
k. Administrability/Clarity
i. “This is the best reading, because your alternative reading is too vague to be administrable, will lead
to unpredictable results, lots of litigation, and injustice.”
l. Natural Law
i. “God/nature meant it to be this way.”
m. International Law
i. The rest of the world does it this way”

VII. Amendment II [1791]

a. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and
bear Arms, shall not be infringed”

VIII. D.C. v. Heller (2008)

a. Interpretive Method in Heller Opinions
i. Text of 2nd Am.
ii. “Text-in-context” (ie. use of same words, phrases, principles in other parts of the document.)
iii. History (before, during, after adoption of amendment)
iv. Purpose
1. Says the purpose was to prevent federal government from tyranny
v. Structural
1. A federalism argument was rejected by the majority
2. When the majority rejects a pragmatic argument, they use a structural approach and say it’s
not the role of courts to determine
vi. Pragmatic – scalia rejects
1. Limits: court says that some regulation is allowed
b. Holding:
i. 2nd Am. guarantees an individual’s right to possess a firearm unconnected w/ service in a militia, and
to use that arm for traditionally lawful purposes, such as self-defense w/in the home
c. Breyer Dissent:
i. Argues public safety necessity of gun-control laws – says there should be a balance of harms (rejected
by Scalia)
ii. Not an unlimited right
d. Stevens Dissent:
i. Disagrees with 4 points:
1. Founders would have made individual right aspect of 2nd Am. express if that was what was
intended
2. That the “militia” preamble and exact phrase “to keep and bear arms” demands conclusion
that 2nd Am. touches on state militia service only
3. Many lower courts later “collective right” reading Miller constitutes stare decisis which may
only be overturned by great peril (Miller holding that sorts of weapons protected are those “in
common use at the time”)
4. Court has not considered gun-control laws unconstitutional

LIMITS ON JUDICIAL POWER

I. Limits on the Judicial Power

a. Congressional Limits on appellate jurisdiction under Exceptions Clause – general framework (McCardle)
i. Limits on Habeas Corpus – Suspension Clause

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1. Once specific restriction on congressional power to exclude cases from the reach of the courts
– “the privilege of the write of habeas corpus shall not be suspended, unless when in cases of
rebellion or invasion the public safety may require it”
ii. Scope of Congress’s exceptions power – plenary or bounded? (Ex Parte McCardle; Boumediene v.
Bush)
b. Justicability Limits (standing and mootness)
i. Standing (Laidlow; Clapper; Hollingsworth; Windsor)

II. Ex Parte McCardle (1869)

a. Issue: The extent of the jxn of the Supreme Court to review decisions of lower courts under Federal statutory
law?
b. Facts:
i. During the Civil War reconstruction, McCardle published bad-mouthing articles advocating
opposition to Reconstruction laws enacted by Congress 
ii. Jailed by commander of military under Military Reconstruction Act (a law passed by Congress);
McCardle invoked habeus corpus in circuit court of S.D of Miss 
iii. Judge sent him back to custody, finding military actions under Congress’s law as legal 
iv. Appealed to S. Ct. under Habeus Corpus Act of 1867, which granted appellate jxn to S. Ct. to review
denial of habeas petitions.
v. After case argued and before opinion, Congress suspended Supreme Court’s jurisdiction over case,
exercising powers granted to Congress under Art. 3, §2
1. Exceptions Clause: “In all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall be party, the Supreme Court shall have original jurisdiction.
In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction,
both as to law and fact, with such exceptions, and under such regulations as the Congress
shall make.” (exceptions to the appellate jxn)
2. Here, the exception from Congress is explicit
3. If we read this case to be the only precedent, leads us to believe Congress’s power under the
Exceptions Clause is plenary
vi. Note: In this case, Congress withdrew the right to hear habeas corpus cases only when the Court got a
case under the Act of 1867 on appeal from a lower court…S. Ct. would still have been able to hear
original petition for habeas filed in S. Ct.
c. Holding: Congress has the authority to withdraw appellate jxn from Supreme Court at any time (see
Exceptions Clause!)
i. Argument that other parts of the Constitution may limit Congress’s power (see Equal Protection
Clause of 14th Amendment; Suspension Clause – limits when Congress is able to suspend habeas
corpus)

III. Relevant Constitutional Text

a. The Exceptions Clause – Art. III, §2, cl. 2
i. “…in all the other cases before mentioned, the supreme Court shall have appellate jurisdiction, both
as to Law and Fact, w/ such exceptions, and under such regulations as the Congress shall make”
ii.  in cases where Supreme Court has app. Jxn, it’s with certain restrictions
iii. This Exceptions Clause seems to indicate that Congress’s power might be plenary, but there might
be other provisions that limit powers
b. Judicial Vesting Clause – Art. III, §1
i. “The judicial power of the United States, shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and establish”
c. The Suspension Clause – Art. I, §9, cl. 2
i. “The privilege of the Write of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.”
ii.  Right of Habeas Corpus (“release of the bodies”) – right to challenge unlawful/unconstitutional
imprisonment

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IV. General Framework for Analyzing Appellate Power of the Supreme Court
a. Source of appellate jxn/power of the Court is Article III of the Constitution
b. But, the Constitution confers that power “with such exceptions and under such regulations as Congress shall
make”
c. Under longstanding Supreme Court precedent (Durousseau v. U.S.), the Court understands the affirmative
grant by Congress in the Judiciary Act as a negative (“exception”) of all appellate power not granted
d. Therefore, the Court looks to the affirmative congressional grant to determine its appellate jurisdiction

V. Is Congress’s Power under the Exceptions Clause Plenary or Limits?

a. Text
i. According to text, power is plenary because doesn’t say “within such limits”
ii. BUT, by very nature “exceptions” has a limited meaning
b. Historical practice
i. In all these years, there’s always been exceptions
c. Structure
i. Separation of powers – laid out by the govt; need checks and balances (if plenary, then Congress is
getting too much power)
d. Precedent
i. See McCardle

VI. Boumediene v. Bush (2013) [Strong structural and SOP argument]

a. Issue: Whether detainees have constitutional privilege of habeas corpus, a privilege not to be w/drawn except
in conformance w/ Suspensions Clause
b. The aliens ARE allowed to petition in the first place and so the Suspension Clause applies to them
i. Clear it applies, because Cuba is an extraterritorial nation of the United States (de facto sovereignty)
c. Govt argument: drawing from its position that at C/L the writ ran only to territories over which the crown
was sovereign, the govt says the suspension clause affords petitioners no rights bc the U.S. does not claim
sovereignty over the place of detention bc Guantanamo Bay is not formally a part of the U.S. and under the
terms of the lease b/w U.S. and Cuba, Cuba retains ultimate sovereignty over territory while U.S. exercises
complete jxn and control
d. Majority: Says, we understand the pragmatic argument and so we are saying they are allowed to make the
claim, doesn’t mean they will win (so they’re acknowledging the pragmatic concerns)
e. Scalia Dissent: America is at war, if these prisoners get out, they’re going to kill Americans.
f. Holding: Foreign terrorism suspects held at Guantanamo Bay Naval Base have constitutional rights to
challenge their detention in U.S. Courts
g. Rule: Aliens who are enemy combatants have right to habeas corpus under constitution, and the alternative
procedures substituted by Congress were not sufficient or effective
i. So we know Suspension’s Clause will reach to Guantanamo Bay
h. Basis of Argument – Separation of Powers: If political branches are governing, then there should be some
sort of checks and balances
i. In sum. Aliens classified as enemy combatants in custody at Guantanamo Bay request the court to determine
whether they have the right to file a writ for habeas corpus, which is a constitutional privilege not revoked
except if the Suspension Clause is in effect. Yes

VII. Justicability Doctrines

a. Standing
i. Focuses on whether the pl. is a proper party to bring a legal action
ii. This doctrine functions to ensure that the scarce resources of the federal courts are devoted to those
disputes in which the parties have a concrete stake. In contrast, by the time mootness is an issue, the
case has been brought and litigated, often for years
b. Ripeness
i. Controversy is not ripe if its premature; the court views its as inadequately developed factually
c. Mootness

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i. A case that has become irrelevant bc the dispute b/w the parties has ended is moot. An otherwise
moot case may be adjudicated, if there is a continuing controversy concerning damages from no
longer continuing conduct of it, in the court’s words, the controversy is one ‘capable of repetition, yet
evading review’
d. No advisory opinions
e. Political question doctrine
i. When the const. entrusts a discretionary decision to Congress or the president, rather than to the
court, the decision is said to be a political question

VIII. Standing
a. Inquiry: Are these appropriate parties who are able to bring cases to the Supreme Court?
b. Three Requirements for Standing:
i. Injury in fact
1. Concrete and particularized
2. Actual or imminent
ii. Causation
iii. Redressability
c. You can have “constitutional” or “prudential” standing:
i. Constitutional standing: based on ‘case or controversy’ language in Article III
ii. Prudential standing – e.g. third party and generalized grievance rules
iii. Why does it matter? Because if it’s constitutional standing, Congress can’t change it

IX. Injury in Fact:

a. We have this requirement in first place because it takes away the adversarial nature of the process – courts
don’t have an investigative nature, so we need to make sure people bring their best arguments fwd
b. Compare FOE v. Laidlow (2000) to Clapper v. Al USA (2013) – why is FOE’s injury ‘actual or imminent’
while Al’s injury is speculative?
c. Can a plaintiff’s concern satisfy the injury in fact requirement?
d. Why do the Hollingsworth v. Perry (2013) intervenors fail this prong of the standing test?

X. Laidlow v. FOE (2000)

a. Facts. Defendant holds a National Pollutant Discharge Elimination System permit. Plaintiff – Petitioner,
Friends of Earth, Incorporated (Plaintiff), alleges Defendant was violating mercury discharge limits of the
Clean Water Act, and brought a citizen suit against Defendant. Defendant argues that the suit is moot either
because it achieved substantial compliance with the permit guidelines by August 1992 or because of its
shutdown of the facility in question.
b. Precedent: Lujan – we held that to satisfy, Art. III standing requirements, a pl. must show:
i. (1) It has suffered ‘an injury in fact’ that is:
1. concrete and particularized and
2. actual or imminent, not conjectural or hypothetical
ii. (2) the injury is fairly traceable to the challenged action of the def; and
iii. (3) It is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision
c. Alleged inquiry: pollution causing quality decline – Supreme Court says, actually no harm, so what’s the
injury? Bad smell, recreational use issues
d. Rule: When a def. argues that voluntary cessation of an activity renders a suit moot, the defendant has the
burden of proving that the allegedly wrong behavior could not reasonably be expected to recur.
e. An association, has standing to bring suit on behalf of its members when its members would otherwise have
standing to sue on their own, the interests at stake are germane to the organization’s purpose, and neither the
claim asserted, nor the relief requested requires the participation of individual members in the lawsuit.
f. Holding: Pl. residents in the area of the river had standing to sue an industrial polluter, against whom various
deterrent civil penalties were being pursued. Standing was properly based on the fact that the residents alleged
that they would have used the river for recreational purposes, but could not bc the pollution

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i. The assertion that the case was moot bc it had ceased polluting, and had closed down the factory
responsible for the pollution is not valid because the polluter still had license to operate such a factory
and could reopen similar operations elsewhere
g. Note: the plaintiffs don’t need to prove an actual (particular) harm to the residents. Injury to the pl. came
from lessening the ‘aesthetic and recreational values of the area’ for residents and users of the river bc of their
knowledge of Laidlow’s repeated violations of its clean water permit
i. There is injury in fact when pl’s aver that they use the affected area and are persons for whom the
aesthetic and recreational value of the area will be lessened
ii. There are circumstances in which the prospect that the defendant will engage in or resume harmful
conduct may be too speculative to support standing, but not to speculative to overcome mootness
iii. Standing admits of no similar exceptions; if a pl. lacks standing at the time the action commences, the
fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a
federal judicial forum

XI. Clapper v. Amnesty International, USA (2013)

a. Facts: Challenge to the FISA amendments act of 2008, which empower the Foreign Intelligence Surveillance
Court to authorize surveillance w/o a showing of probable cause that the target of the surveillance is an agent
of a foreign power (no injury had occurred)
i. The govt need only demonstrate that the surveillance targets ‘persons reasonably believed to be
located outside the U.S. and seeks foreign intelligence information
b. Plaintiffs alleged injury: Allege they sustained greater inconvenience and higher costs bc of the need to
conduct secure communications w/ parties overseas whom the U.S. govt had probably targeted for
surveillance
c. Holding: Future harms don’t count – don’t have standing
i. Claiming a reasonable likelihood that their communications would be intercepted under FISA is not
enough to show future injury for standing purposes.
ii. Court refused to acknowledge present injury stemming from respondent’s choice to take costly
measures to protect their confidential communications
d. Breyer Dissent:
i. Argues that the future harm to respondents is not speculative and therefore should be sufficient to
establish standing
ii. Since there is a high probability that the govt will intercept at least some of the respondent’s
communications, the respondents should have standing to bring the suit

XII. Hollingsworth and Windsor

a. Can these cases be reconciled? Why does the court find standing in Windsor but not in Hollingsworth?
b. Hollingsworth v. Perry:
i. Cases that legalized same-sex marriage in CA
ii. Holding: same-sex marriage opponents did not have standing to intervene as they could not
demonstrate that they were harmed by the decision
1. Because petitioners had only a generalized grievance in the form of a desire to defend Prop.
8, (“only marriage b/w a man and woman is valid”) they did not have standing. Petitioners
could not invoke standing of the state to appeal bc a litigant must assert his/her own rights
and cannot claim relief through the intervention of a third party
c. United States v. Windsor
i. Holding: section 3 of DOMA, which federally defined marriage as a union b/w one man and one
woman as husband and wife, is unconstitutional under DPC guarantee of EP. Federal govt must
recognize same-sex marriages that have been approved by the states
ii. The U.S. Govt. despite the executive branch’s agreement regarding DOMA’s unconstitutionality,
retains a significant enough stake in the issue to support S. Ct.’s jxn. Bc the judgments in question
order the Treasury to refund tax money, govt stands to suffer a real economic injury and therefore
maintains standing

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THE DISTRIBUTION OF NATIONAL POWERS

I. Formalism v. Functionalism
a. Formalism:
i. Demands adherence by each branch to the powers granted that branch
ii. Ex. Congress can make laws only if it follows specified procedures. It may not enforce the laws it
makes. Conversely, the POTUS enforces the laws but may not make them
b. Functionalism:
i. Commands fidelity to the purposes of the distribution of powers
ii. Ex. Const’s distribution of powers is violated only if one branch aggrandizes its power at the expense
of another branch
c. In sum, the formalist takes SOP as a command of the const’s text and structure; functionalist views such
separation as a component of fulfilling the const’s goals

II. Framework – Executive Power: Domestic Affairs

a. (1) Framework for understanding the distribution of national powers between the legislative and executive
branches – Youngstown Sheet & Tube
i. J. Black approach v. J. Jackson approach: formalist v. functionalist
ii. J. Frankfurter historical approach
iii. J. Jackson opinion: three categories of presidential action and relationship to congressional power
b. (2) Limitations on Congress’s ability to delegate power to President – Clinton v. City of New York
i. How far can Congress can increase presidential power?
ii. Should Court interfere in power allocation b/w the political branches

III. Separation/Balance of Powers

IV. Relevant Constitutional Text:

a. Art. II, §1, cl. 1 – Executive Vesting Clause

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i. “The executive power shall be vested in a President of the U.S.A”

b. Art. II, §3 – Take Care Clause
i. “…he shall take Care that the Laws be faithfully executed…”
c. Art. II, §2, cl. 1
i. “The President shall be Commander in Chief of the Army and Navy of the U.S., and of the militia of
the several states…”

V. Youngstown Sheet & Tube Co. v. Sawyer (1952)

a. Facts: The indispensability of steel as a component of substantially all weapons and other war materials led
the POTUS to believe that the proposed work stoppage would immediately jeopardize our national defense
and that governmental seizure of the steel mills was necessary In order to assure the continued availability of
steel - so few hours before the strike was to begin, POTUS issued executive order directing Secretary of
Commerce to take possession of most steel mills and keep them running - companies brought proceedings
charging that the seizure was not authorized by act of congress or by any constitutional provisions
b. Issue: Decide whether the POTUS was acting w/in his constitutional power when he issued an order directing
SOC to take possession of and operate most of Nation’s steel mills
c. Pl’s argument: mill owners argue that POTUS order amounts to lawmaking, a legislative function which the
const. has expressly confided to the Congress and not POTUS
d. Govt Argument: order was made on findings of POTUS that his action was necessary to avert national
catastrophe which would result from stoppage of steel production, and in meeting this grave emergency, the
POTUS was acting w/in the aggregate of his constitutional powers as Nation’s Chief Executive and CIC
e. Note: POTUS power to issue the order MUST stem from either act of congress, or from Const. itself. There
is no statute that expressly authorizes POTUS to take possession of property as he did
f. Claim is that POTUS power should be implied from aggregate of his powers under Const – no
i. we cannot hold w/ faithfulness to our constitutional system that the CIC of armed forces has ultimate
power such as to take possession of private property in order to keep labor disputes from stopping
production. This is a job for the nation’s lawmakers, not for its military authorities
g. const. limits POTUS’ functions in the lawmaking process to the recommending to laws he thinks wise
and the vetoing of laws he thinks bad

VI. Youngstown Framework – Concurrence (Categories)

a. “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction w/ those of
Congress.”
b. Functional (usually pragmatic – Concurrence) v. formalism argument (textual majority approach)
c. In this case, we are in the twilight zone so have to look at the goals, purpose of the SOP
d. CATEGORY ONE
i. If President acts pursuant to “an express or implied authorization of Congress,” he enjoys Art. II
authority plus all power Congress can delegate
e. CATEGORY TWO
i. If Congress is silent, there is a “twilight zone” of concurrent presidential Art. II authority
f. CATEGORY THREE (least amount of power)
i. If President acts contrary to the “express or implied will of Congress,” his power is at a minimum
g. In sum, If the President has a power, it has to come from either:
i. Congress, or
1. Either executing an act of Congress
ii. Constitution
1. Doing a power that is constitutionally given to him
h. Presentment Clause – Art. I, §7, cl. 2
i. “Every Bill which shall have passed the HOR and the Senate, shall, before it become a Law, be
presented to the President of the U.S.; if he approves he shall sign it, but if not he shall return it, with
his objections to the House in which it shall have originated, who shall enter the Objections at large
on their Journal, and proceed to reconsider it.”

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VII. Clinton v. City of NY (1998) – Domestic Affairs

a. This is Category One because Congress authorized the Line Item Veto Act
b. Sometimes, Congress may allow/authorize action, but Constitution may not
c. Inquiry: When Executive and Legislative agree, can the court intervene? Yes, court says you two are not
allowed to work together and do whatever it is you want
i. President is doing something legislative, and this is contradictory to Constitution from a formalistic
standpoint
d. Cancellation procedures violate Presentment Clause (Art. 1, §7, cl. 2) – “Approval or veto of bills – Passage
over veto”
e. LIVA gives POTUS power to cancel in whole provisions that have already been signed into law
f. Difference b/w POTUS ‘return’ of a bill pursuant to Presentment Clause, and exercise of POTUS
cancellation authority pursuant to LIVA:
i. Const. return takes place before bill becomes a law; statutory cancellation occurs after bill becomes a
law
ii. Cost. Returns is of the entire bill, statutory cancellation is only a part
g. Note: in foreign affairs, POTUS has a degree of discretion and freedom from statutory restriction which
would not be admissible were domestic affairs alone involved

FOREIGN AFFAIRS

I. Foreign Affairs: Powers of the President [more enforcement from Youngstown]

a. Compare President’s power in domestic v. foreign affairs
i. We have a difference because the Constitution addresses domestic powers, but not foreign
b. Inherent powers of president (Curtiss-Wright)
c. Application of Youngstown framework in context of foreign affairs (Dames & Moore; Medellin; Zivotofsky)
d. “Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction w/ those of
Congress.” (Youngstown repeated)
Category 1 (most power) Category 2 Category 3 (least power)

If president acts pursuant to “an If Congress is silent, there is a If president acts contrary to the
express or implied authorization “twilight zone” of concurrent “express of implied will of
of Congress,” he enjoys Art. II presidential Art. II authority Congress,” his power is at a
authority plus all power minimum
Congress can delegate

-can only not do it, if

Constitution prohibits it

II. Article II, §2, cl. 2:

a. “He shall have Power, by and w/ the Advice and Consent of the Senate, to make Treaties, provided two thirds
of the Senators present concur…”

III. The Supremacy Clause – Art. IV, cl. 2

a. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all
Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law
of the Land; and the Judges in every States shall be bound thereby, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.”

IV. United States v. Curtiss-Wright (1936) – Inherent Powers of President

a. Facts: Curtis-Wright, a weapons manufacturer, was convicted of selling arms to warring nations in South
America in violation of an Executive Order that was made pursuant to a Joint Resolution of Congress
b. Issue: Did Congress in its Joint Resolution unconstitutionally delegate legislative power to POTUS?
c. Analysis: POTUS was allowed much room to operate in executing the joint resolution – no const. violation
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i. Distinction b/w internal and foreign affairs – bc POTUS alone has power to speak or listen as a
rep. of the nation, Congress may provide POTUS w/ special degree of discretion in external matters
which would not be afforded domestically
ii. In order to achieve the U.S. foreign policy aims, POTUS is better able than Congress to judge
conditions that exist in foreign nations and is afforded substantial discretion and wide latitude in those
decisions. POTUS has confidential info. as well as consular, diplomatic and foreign affairs officers to
help in his decision.
d. Stands for proposition of strong presidential powers in foreign affairs
e. Constitutional Argument:
i. These powers predate the Constitution (concept of sovereignty) – so even if the Constitution did not
give the powers, the President still has them
ii. “Natural Law” – Natural rights: president has this inherent power
f. Functionalist Argument:
i. We have a cabinet, but we vote for one person (President is unitary, Congress is not)
g. Note: statement that federal govt can exercise no powers except those specifically enumerated in the const.
and such implied powers as are necessary and proper to carry into effect the enumerated powers, is true only
in respect of our internal affairs

V. Dames & Moore v. Regan (1981)

a. *Deals with Carter’s executive orders which froze Iranian assets in U.S. in response to Iran Hostage Crises*
b. Facts: Regan administration agreed w/ Iran to terminate legal proceedings in U.S. courts involving claims by
U.S. nationals against Iran, to nullify attachments against Iranian property entered by U.S. courts to secure
any judgments against Iran, and to transfer such claims from U.S. courts to a newly created arbitration
tribunal. These agreements were implemented by executive orders.
c. Implied powers put us in category one (congress authorized it in times of national security)
d. Issue: Did POTUS have authority to transfer Iranian funds and to nullify legal claims against Iran?
e. Holding: the Act constituted a specific congressional authorization for POTUS to order the transfer of Iranian
assets. The court held that although the Act itself did not authorize the presidential suspension of legal claims,
previous acts of Congress had ‘implicitly approved’ of executive control of claim settlement
f. Rule: Where congress has a hx or acquiescence, as w/ claims settlement, it thereby implicitly approves of the
POTUS’s actions regarding that specific subject matter about which Congress was silent

VI. Medellin v. Texas (2008)

a. Facts: Medellin, a Mexican national, was convicted and sentenced to death for participating in the gang rape
and murder of two teenage girls in Houston. Medellin raised a post-conviction challenge arguing that the state
had violated his rights under the Vienna Convention, a treaty to which the United States is a party.
i. Article 36 of the Convention gives any foreign national detained for a crime the right to contact his
consulate.
ii. Medellin argued that the Vienna Convention granted him an individual right that state courts must
respect
iii. Medellin also cited a memorandum from the President of the United States that instructed state courts
to comply with the ICJ's rulings (which held that U.S. had violated the Vienna Convention rights of
51 Mexican nationals (including Medellin) and that their convictions must be reconsidered) by
rehearing the cases.
iv. Medellin argued that the Constitution gives the President broad power to ensure that treaties are
enforced, and that this power extends to the treatment of treaties in state court proceedings.
b. Avena (ICJ): Medellin and 51 other Mexican nationals are entitled to have their Texas convictions reviewed
based on violations of the Geneva Conventions. Texas courts held those claims procedurally barred.
c. President Bush issued a memorandum directing the Texas state court to comply w/ Avena based on his view
of the U.S. treaty obligations
d. Two Issues:
i. Is the judgment of the ICJ directly enforceable domestically? No
ii. Does the President’s Memorandum independently require the states to follow the ICJ’s judgment? No

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e. If we assume treaty is not self-executing, something further has to happen to give it domestic effect (Congress
has to do something to give the treaty effect)
f. Holding: even if an international treaty may constitute an international commitment, it is not binding
domestic law unless Congress has enacted statutes implementing it or unless the treaty itself is "self-
executing."
i. The President had no authority to order the enforcement in state court of an ICJ ruling, because that
would imply a law-making power not allocated to him by the Constitution.
g. Analysis: The Court held that the signed Protocol of the Vienna Convention did not make the treaty self-
executing and, therefore, the treaty is not binding upon state courts until it is enacted into law by Congress.
Furthermore, Chief Justice Roberts characterized the presidential memorandum as an attempt by the executive
branch to enforce a non-self executing treaty without the necessary Congressional action, giving it no binding
authority on state courts. 
i. POTUS has an array of political and diplomatic means available to enforce int'l obligations, but
unilaterally converted a non-self-executing treaty into a self-executing one is not amount them
ii. The responsibility for transforming an int’l obligation arising from a non-self-executing treaty into
domestic law falls to congress – requirement that Congress, rather than POTUS, implement a non-
self-executing treaty derives from Const. which derives treaty-making power b/w POTUS and senate
iii. The terms of a non-self-executing treaty can became domestic law only in the same way as any other
law-through passage of legislation by both Houses of Congress, combined w/ either the pOTUS
signature or a congressional override of presidential veto
iv. *a non-self executing treaty is one that was ratified w/ the understanding that it is not to have
domestic effect of its own force
h. This is Youngstown Category Three (Dissent says Category Two)

VII. Zivotofsky v. Kerry (2015) (SP) – Supplement

a. Facts: Zivotofsky was born in Jerusalem to U.S. Citizen parents. The parents requested the U.S. Dept record
his place of birth as "Israel" in accordance w/ the Act. State Dept refused and instead issued him a passport
listing Jerusalem as place of birth. Parents sued to enforce the act
b. Category Three (specific legislation says they have it)
c. Court looks to Art. 2, §3 (Reception Clause) to decipher President’s exclusive power (implies recognition)
d. Court combines historical practice (“reception implies recognition” and exclusive) – idea of unitary voice in
foreign policy  cites Wright analysis
e. Statute invalid because Const. by its text gives the President exclusive authority that Congress cannot take
away
f. Issue: Does a federal statute that directs the Secretary of State to record the birthplace of an American citizen
born in Jerusalem as "Israel," if requested to do so, impermissibly infringe on the President's power to
recognize foreign states? YES
i. The Court held that, although the Constitution does not explicitly address the issue of recognition of
foreign nations, the Reception Clause in Article II of the Constitution—which states that the President
will receive foreign ambassadors—grants the President the power to recognize foreign states.
ii. The fact that Article II also vests the President with the power to make treaties and appoint
ambassadors gives the President further control over recognition decisions
iii. The Court also held that precedent and history support the view that the formal recognition power
belongs exclusively to the President.
iv. Because the Executive branch has maintained a neutral position by not recognizing any nation’s
sovereignty over Jerusalem, the federal statute in question unconstitutionally infringes on the
President’s recognition power.
g. Holding: POTUS has exclusive power to grant formal recognition to a foreign sovereign. Bc the power to
recognize foreign states resides in POTUS alone, and Act infringes on Executive’s consistent decision to
withhold recognition w/ respect to Jerusalem
i. POTUS has exclusion power of recognition so Congress may not require the State dept to indicate in
passports that Jerusalem is part of Israel

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h. J. Thomas: Concurring and dissenting in part – says he agrees that the President has the power, but not from
the Reception clause; J. Thomas says reception is not the same as recognizing  he looks elsewhere in the
constitution and says there’s residual power: the President should get the power, not Congress.

VIII. Relevant Constitutional Text:

a. Art II, §1, cl. 1 (the Executive Vesting Clause):
i. “The executive Power shall be vested in a President of the United States of America.”
b. Art. II, §3 (the Take Care Clause):
i. “…he shall take Care that the Laws be faithfully executed…”
c. Art. II, §2. cl. 1:
i. “The President shall be Commander in Chief of the Army and Navy of the United States, and of the
militia of the several states…”

LEGISLATIVE AUTHORITY AND SEPARATION OF POWERS

I. Congressional Efforts to Constrain Executive Authority

a. The Non-Delegation Doctrine:
i. The principle that congress cannot delegate its legislative powers to agencies.  Rather, when it
instructs agencies to regulate, it must give them an "intelligible principle” on which to base their
regulations.
ii. In other words: Principle that the Congress being vested with "all legislative powers" by Article
One, Section 1 of the  Constitution, cannot delegate that power to anyone else. However, the Supreme
Court ruled in J. W. Hampton, Jr. & Co. v. United States (1928) that congressional delegation of
legislative authority is an implied power of Congress that is constitutional so long as Congress
provides an "intelligible principle" to guide the executive branch:
1. "'In determining what Congress may do in seeking assistance from another branch, the extent
and character of that assistance must be fixed according to common sense and the inherent
necessities of the government co-ordination.' So long as Congress 'shall lay down by
legislative act an intelligible principle to which the person or body authorized to [exercise the
delegated authority] is directed to conform, such legislative action is not a forbidden
delegation of legislative power.'"
iii. For example:
1. The FDA is an agency in the Executive branch created by Congress with the power to
regulate food and drugs in the United States. Congress has given the FDA a broad mandate to
ensure the safety of the public and prevent false advertising, but it is up to the agency to
assess risks and announce prohibitions on harmful additives, and to determine the process by
which actions will be brought based on the same.
2. Similarly, the Internal Revenue Service has been given the responsibility of collecting taxes
that are assessed under the Internal Revenue Code. Although Congress has determined the
amount of the tax to be assessed, it has delegated to the IRS the authority to determine how
such taxes are to be collected. 
b. The legislative veto (INS v. Chadha)
c. Congressional power to remove agency officials (Bowsher v. Synar)
d. President’s power to remove agency officials (Myers; Humphrey’s Executor, Morrison, PCAOB) and to make
“recess appointments” (Canning)
i. Humphreys’: Congress can restrict executive power to remove only for good cause BUT here only
was talking about independent agency officials – here justice department not independent
e. Giving special court the power to appoint executive officers (Morrison v. Olson)

II. INS v. Chadha

a. Facts: Once recommendation for suspension of Chadha’s deportation was conveyed to Congress, they had the
power to veto the Atty General’s determination that Chadha should not be deported. Then HOR rep presented

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resolution opposing the granting of permanent residence to Chadha – resolution not submitted to Senate or to
POTUS for action ie. the HOR vetoed atty general’s decision to allow Chadha to remain in U.S.
b. Relevant Constitutional Text
i. Art. I, §1 (Legislative Vesting Clause)
1. “All legislative powers herein granted shall be vested in a Congress of the United States,
which shall consist of a Senate and a House of Representatives”
ii. Art. I, §7, cl. 2
1. “Every Bill which shall have passed the House of Representatives and the Senate shall,
before it becomes a Law, be presented to the President…”
iii. Art. 1, §7, cl. 3
1. “Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of
Representatives may be necessary…Shall be presented to the President of the United States;
and before the same shall take effect, shall be approved by him, or being disapproved by him,
shall be repassed by two thirds of the Senate and House of Representatives…”
c. Different Approaches in Chadha
Constitutionality of Reasoning/Approach
legislative veto (formalism v.
functionalism)
C.J. Burger for the Unconstitutional Formalist: action was
Court legislative and did not
conform to Art. I, §7
J. Powell, Unconstitutional Functionalist: action is
concurring in the adjudicatory and raises the
judgment danger of unchecked
power
J. White, dissenting Constitutional Functionalist: legislative
veto serves to check
executive power and
preserve balance
d. Majority views this as a legislative act:
i. What Congress does here leads the Court to say it’s legislative because affected person’s legal status
(changing a legal relationship)
ii. When someone’s legal rights are going to be changed, we have a procedure because it should be
harder to change someone’s legal status – it’s a way of protecting individuals’ rights (should need
checks and balances)
e. Holding: because the act is legislative, it has to go through this procedure and because it did not, the act is
unconstitutional
i. “The fact that a given law or procedure is efficient, convenient, and useful is facilitating functions of
government, standing alone, will not save it if its contrary to the Constitution”
ii. procedure to follow is: "Every order, resolution, or vote to which the concurrence of the Senate and
HOR may be necessary shall be presented to the POTUS; and before the same shall take effect, shall
be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and
the HOR, according to the Rules and Limitations prescribed in the Case of a Bill."
iii. Although, not every action taken by either House is subject to the bicameralism and presentment
requirements of Art. I. Whether actions taken by either House are, in law and fact, an exercise of
legislative power depends not on their form but upon "whether they contain matter which is properly
to be regarding as legislative in its character and effect"
f. There are only 4 provisions laid out explicitly where one house may act alone w/ unreviewable force of law,
not subject to president’s veto and bicamerialism not needed:
i. HOR alone given the power to initiate impeachments
ii. Senate alone given power to conduct trials following impeachment charges initiated by house and to
convict following the trial
iii. Senate alone given final unreviewable power to approve or to disapprove presidential appointments
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iv. Senate alone given unreviewable power to ratify treaties negotiated by the president
g. Rule: where House takes actions that have the purpose and effect of altering legal rights, duties, or relations
of persons outside of the legislative branch, bicameralism, and presentment are required

APPOINTMENT AND REMOVAL OF “OFFICERS OF THE UNITED STATES”

I. Appointment
 Is the officer a principal or inferior officer under Art. II, §2, cl. 2 (Apply Morrison factors)
 If inferior, does the method comply w/ Art. II, §2, cl. 2? (Morrison v. Olson)
 If inferior, does the appointment violate SOP because it is an inappropriate “cross-branch appointment” that
impairs the “essential function” of another branch? (Morrison)
 Has the President acted w/in the scope of the recess appointments clause? (Canning)

II. Removal
 Has Congress attempted to retain removal power for itself? If yes, violates SOP because Congress in effect
retains control over execution of laws (Myers, Bowsher)
 Has Congress restricted President’s ability to remove an executive official? If so, does this violate SOP by
impairing the “essential function” of the executive? (Morrison, Free Ent. Fund)

III. Power of Appointment and Removal

 Art. II, §2 cl. 2 – The Appointments Clause (allows POTUS to appoint certain public officials w/ advice
and consent of senate)
 “The President shall nominate, and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consults, Judges of the Supreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise provided for, and which
shall be established by Law [Principal Officers];
but the Congress may by law vest the Appointment of such inferior Officers, as they think proper,
in the President alone, in the Courts of Law, or in the Heads of Departments”
 Principle Officers: nominated and appointed by the President, w/ the Advice and Consent of the Senate
 Inferior Officers: Congress can vest appointment in their discretion in either:
 (1) president
 (2) courts of law
 (3) heads of departments

IV. Bowsher v. Synar

 Federal Deficit issue: whether assignment by Congress to Comptroller General the functions under the
Balanced Budget Act violates the doctrine of SOP? YES! (functionalist approach)
 Giving a legislative actor, executive powers violates SOP
 Congress cannot delegate executive authority to an agent of the legislature bc it takes power away
from executive – it would have been constitutional if the comptroller’s recommendations were not
binding on the president (he was commanding executive to execute law as he determines)
 Here, Congress had the power to remove the officer who was charged w/ the execution of the laws –
they can’t do that except by impeachment and here they were allowed to remove for any good cause –
the reasons allowed for impeachment only include treason, bribery or other high crime and
misdemeanor – reasons allowable for removal here are too broad
 We know this is a legislative official because: look at how this position is treated (look how the position is
treated, they view him that way, he views himself that way, his actual duties, congress can remove him)
 Once Congress makes its choice in enacting a legislation, its participation ends they can control the
execution of its enactment only indirectly by passing new legislation
 Holding: By placing the responsibility for execution of the Balanced Budget and Emergency Deficit Control
Act in the hands of an officer who is subject to removal only by itself, Congress in effect has retained control
over the execution of the Act and has intruded into the executive function. (Congress cannot reserve for itself
the power of removal of an officer charged w/ execution of the laws EXCEPT by impeachment)
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 **the structure of the Constitution does not permit Congress to execute the laws**
 J. Stevens Dissent: doesn’t view this as executive, says it’s legislative! He’s changing the budget, and
President enacts it
 Majority thinks its being spent not changing – but even then, if he’s legislating, its unconstitutional because
there’s a procedure to follow – they’re delegating him power to legislate and they can’t do that, if they want
to do that, that has to pass bicameralism and presentment
Constitutionality Reasoning/Approach
Balanced Budget Act and (Formalism v.
Actions of C.G. functionalism)
C.J. Burger for the Unconstitutional Formalist: Congress may not
Court vest executive authority in a
legislative official
J. Stevens, concurring Unconstitutional Congress may not delegate
in the judgment legislative authority to agent
and thus avoid bicameralism
and presentment
requirements
J. White Dissenting Constitutional Functionalist: no danger of
aggrandizement of
congressional power

V. Morrison v. Olson (1988)

 Do the Independent Counsel provisions of the Ethics in Government Act violate the Appointments
clause/SOP? – this Act allows for appt of “independent counsel” to investigate and, if appropriate, prosecute
certain high-ranking govt officials for violations of federal criminal laws
 First go to the text of the clause – need to first know if the officer is inferior or principal
1. IF principal, not constitutional because only way this comes to play is if nominated by
president by advice and consent of senate
2. If inferior, probably okay
 Next, SOP inquiry – is it violated?
1. Here, inter-branch appointments could violate SOP, but here it does not so we know the
actual appointment is okay
 Factors to Determine inferior officer:
 Appointment is subject to removal by higher executive branch (fact that she can be removed by Atty
General indicates that she is to some degree ‘inferior’ in rank and authority
 Limited duties, jxn, and tenure (office is temporary in the sense that the counsel is appointed to
accomplish a single task, and when that task is over the office is terminated)
 SOP Inquiry:
 Whether the provision of the Act restricting Atty General’s power to remove independent counsel
(IC) to only those instances in which he can show ‘good cause’ taken by itself, impermissibly
interferes w/ the President’s exercise of his constitutionally appointed functions?
1. Unlike Bowsher, Congress does not attempt to gain a role in the removal of executive
officials other than its established powers of impeachment and conviction instead the Act
puts removal power in the hands of the executive branch (through the Atty General –
member of president’s cabinet and head of US Dept of Justice):
1. An IC may be removed from office only by personal action of atty general, and
only for good cause – there is no requirement of congressional approval of atty
general’s removal decision
 Whether act as a whole violates SOP by reducing the President’s ability to control prosecutorial
powers exercised by IC?
1. We have never held that the 3 branches must operate w/ absolute independence

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2. The power to appoint inferior officers such as IC is not itself an “executive function” in
the constitutional sense, at least when Congress has exercised its power to vest the apt of
an inferior officer in “court of law”
 In sum, even though POTUS could not directly fire an IC, the person holding that office was still an officer
of the Executive Branch, and not under the control of the Congress or the courts (Congress can vest appt of
inferior officers in courts of law so Congress is authorized to make inter-branch appointments)

VI. Free Enterprise Fund v. PCAOB (2010)

 Facts: Suit challenging Act alleging that the creation of the Board by the Act violated Appointments Clause
bc it deprived POTUS from exercising adequate control over board. However, Board itself was under direct
supervision of SEC, all of whose commissioners are appointed by and removed by POTUS
 Issue: may president be restricted in his ability to remove a principal officer, who is in turn restricted in his
ability to remove an inferior officer, even though that inferior officer determines the policy and enforces laws
of U.S.?
 Holding: the dual-for-cause limitations on the removal of members of the Board contravenes constitution’s
SOP
 What is the problem w/ SOX’s provision that creates a “double for cause” protection for members of the
Board?
 The PCOAB board can only be removed for good cause by SEC and the SEC cannot be removed
either unless good cause – NOT okay!
 We learned in Morrison, one layer of “good cause” is okay, but two layers is not okay because
they’re too far insulated from the actual executive, ie. the President (he can’t get to them)
 No one is directly answerable to the President who has power over PCOAB – issue of accountability
– who will be responsible to these people on the board
 Act protects board members from removal except for good cause, but withdraws from President any
decision on whether good cause exists and Act deprives President power to hold Board members
accountable
 Does this decision support a “unitary executive” view of Presidential power?
 Court looks back to Myers and says Congress cannot remove – ability to remove executive officials is
ultimately in President
 Formalist or functionalist?
 Whenever the court rejects rigid categories = functionalist
 Here, the SEC appoints these officers (SEC is executive) and creates the PCOAB board (but SEC cant remove
except for good cause) and SEC commissioners cannot be removed by POTUS except for inefficiency,
neglect of duty, or malfeasance
 Analysis:
 The Sarbanes-Oxley Act not only protected Board members from removal except for good cause, but
withdrew from the President any decision on whether that good cause existed. 
 That decision was vested instead in other tenured officers--Security and Exchange Commissioners--
none of whom was subject to the President's direct control. 
 The result was a Board that was not accountable to the President, and a President who was not
responsible for the Board. 
 The unconstitutional tenure provisions were severable from the remainder of the statute. Concluding
that the removal restrictions imposed by 15 U.S.C.S. §§ 7211(e)(6) and 7217(d)(3) were invalid left
the Board removable by the Commission at will, and left the President separated from Board
members by only a single level of good-cause tenure. 

VII. Power of Appointment

 Art. II, §2, cl. 3 – the Recess Appointments Clause
 “The President shall have Power to fill up all vacancies that may happen during the Recess of the
Senate, by granting Commissions which shall expire at the End of their next session”

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VIII. NLRB v. Canning (2014) (Recess Appointment) – Formalist Opinion

 Background: Usually POTUS needs advice and consent of senate before appointing officer of U.S. – but
Recess Appointments clause gives POTUS alone power to ‘fill up vacancies that may happen during the
Recess of the Senate, by granting commissions which shall expire at the end of their session’
 Inquiries: (look to historical practice)
 (1) Does “recess of the senate” refer only to an inter-session recess (ie. break b/w formal session of
Congress), or does it also include an intra-session recess, such as summer recess in midst of session?
1. There are 2 formal 1 year sessions each separated by next with an inter-session recess,
BUT they also take breaks during the session
2. Recess includes intra-session recesses of substantial length (greater than 10 days)
 (2) Does “vacancies that may happen” refer only to vacancies that first come into existence during a
recess, or does it also include vacancies that arise prior to a recess but continue to exist during the
recess?
1. Historically, the president has consistently and frequently interpreted the recess
appointments clause to apply to vacancies that initially occur before, but continue to exist
during a recess of the senate
2. “All vacancies” includes vacancies that come into existence while the Senate is in session
 (3) What is the calculation for the length of a “recess”? – do we ignore ‘pro forma’ session, thereby
treating the series of brief recesses as single, month-long recess?
1. Pro forma sessions count as sessions and not as periods of recess because first senate is
still “in session” and despite senate’s resolution NOT to conduct business, senate retained
the power to conduct business – it could receive communication from the POTUS and
senate wasn’t empty and they owed duty of attendance

ANALYZING AN SOP PROBLEM

I. What is the specific provision or action at issue?

II. Who is the actor: Congress, the President, an entity created by Congress, etc.?
III. Formalist reasoning: Is each branch staying within its assigned role (ie. executive executing; Congress
legislating)? If not, does the Constitution specifically provide for the type of “cross-over” action (eg.
Presidential veto; senate advice and consent, etc.)? or
IV. Functionalist reasoning: Does the act pose a danger to individual liberty by concentrating too much power
in one branch?
V. Possible factor: domestic act vs. foreign affairs
Note: (3) and (4) are not mutually exclusive – can look at them both

ANALYZING AN SOP PROBLEM – PRESIDENTIAL ACTION:

I. Under which Youngstown category does the action fall?

a. Has Congress explicitly or implicitly approved the action (category 1)?
i. Presidential power at highest – OK unless constitution specifically disallows (eg. Clinton v. City
of NY)
b. Is Congress silent, expressing neither approval nor disapproval (category 2)?
i. Presidential powers “fluctuates” according to context, hx, etc.
c. Has Congress disapproved the action, expressly or implicitly (category 3)?
i. Impressible unless Constitution gives President this power, either explicitly or inherently

ANALYZING AN SOP PROBLEM – CONGRESSIONAL ACTION

 Has Congress retained control over execution of a law? (Bowsher)

 Has Congress delegated legislative authority to an agent of Congress rather than to an executive or
independent agency? (alternate reading of Bowsher – Stevens concurrence)

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 Has Congress legislated w/o following the “single, finely wrought procedure” specified in Art. I, §7
(bicameralism & presentment)? (Chadha; Bowsher concurrence)
 Has Congress attempted to allow the President to legislate? (Clinton v. New York)
 Has Congress unconstitutionally restricted the President’s power to remove executive officials? (Morrison,
PCAOB)

THE POWER OF CONGRESS

I. Framework/Introduction – McCulloch v. Maryland

a. Interpretation of Art. I, §8 powers of Congress
b. Interpretation of Necessary and Proper Clause (U.S. v. Comstock)
c. Federalism analysis – extent to state sovereignty/theory of creation of Constitution
d. “Representation Reinforcement” theory
II. The Commerce Clause Power
III. The Taxing and Spending Powers
IV. The Treaty and War Powers
V. Power to Enforce the Reconstruction Amendments

VI. Relevant Constitutional Text

a. Art. I, §1 cl. 1
i. “All legislative powers herein granted shall be vested in a Congress of the United States…”
b. Art. VI, cl. 2
i. “This Constitution, and the Laws of the United States which shall be made in pursuance
thereof…shall be the supreme Law of the land…”

VII. Powers of Congress: Article I, §8

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a. [1] Lay and collect taxes, duties, imposts and excises, pay debts and provide for common defense
and general welfare of the U.S.
b. [2] Borrow money on the credit of the U.S.
c. [3] Regulate commerce w/ foreign nations, among the several states, and w/ the Indian tribes
d. [4] Establish rule of naturalization and bankruptcy
e. [5] Coin money, regulate its value, fix standard of weights and measures
f. [6] Punishment of counterfeiting
g. [7] Establish post offices and post roads
h. [8] Copyright clause
i. [9] Constitute tribunals inferior to the supreme court
j. [10] Define and punish piracy and felonies on the high seas and crimes against the law of nations
k. [11] Declare war
l. [12] Raise and support armies
m. [13] Provide and maintain navy
n. [14] Regulate land and naval forces
o. [15] Provide for calling forth militia, suppress insurrections and rebellions
p. [16] Organizing, arming, and disciplining the militia
q. [17] Legislation and authority over the District of Columbia
r. [18] “To make all laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by the Constitution in the Government of the United
States, or in any Department or Officer thereof.”

VIII. McCulloch v. Maryland

a. First inquiry, does Congress have the power to establish a national bank ie. do they have police power, if
so are they nonetheless limited?
i. History/practice since the founding
ii. Theory of constitutional interpretation – “We must never forget that it is a constitution we are
expounding”
iii. Text of Constitution
iv. Structural method of interpretation
b. Can the state of MD impose a tax on the operations of the bank? (Federalism)
i. The tax violates the constitution because:
1. Tax is getting in the way of Congress doing its job
2. Implications of the power to create
3. “The power to tax is the power to destroy”
4. Supremacy of national govt w/in its sphere of power – violation of supremacy clause
5. “Representation reinforcement” principle
a. Can’t have part acting on whole (MD taxing national bank and people outside
MD, the people – don’t have a say) – representation issue
c. Federal Govt. is only allowed to act when it has specific enumerated powers – limitation usually from:
rights provision or supremacy clause
i. Although the Const. does not specifically give Congress power to establish a bank, it does
delegate the ability to tax and spend, and bank is proper and suitable instrument to assist the
operations of the govt in the collection and disbursement of the revenue
ii. Because federal laws have supremacy over state laws, MD had no power to interfere w/ bank’s
operation by taxing it

IX. The Necessary and Proper Clause- Art. I, §8, Cl. 18

a. Congress has the power “To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof.”

X. U.S. v. Comstock (2010)

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a. Statute at issue: section 4248 of Adam Walsh Act which allows a district court to order the civil
commitment of an individual who is currently in the custody of the Federal Bureau of prisons if that
person: has previously engaged in sexual conduct/child molestation, currently suffers from serious mental
illness, and because of it is dangerous to other people
i. IF the govt proves its claims by clear and convincing evidence, the court will order prisoner’s
continued commitment in custody of Atty General, who must make all reasonable efforts to cause
state where the person was tried or state of domiciliary to assume responsibility for his custody
and treatment BUT if no state assumes his responsibility, the Atty General will place him in a
suitable facility where he will stay UNTIL (A) his mental condition improves to where he is no
longer dangerous OR (B) a state assumes responsibility
b. What is the “test” under the N&P Clause?
i. Whether statute comes from means that is rationally related – ie. deferring to Congress
ii. Note: N&P Clause does not flow itself, has to be attached to some enumerated power – there has
to be a statute that goes with each power
c. Holding: The Const. grants Congress legislative power sufficient to enact this section based on 5
considerations:
i. What is the relevance of the five “considerations” – is this a five-factor test?
1. (1) N&P Clause grants Congress broad authority to enact federal legislation –
a. ie. says N&P clause is very broad (Congress has broad authority to imprison,
criminalize conduct, etc. for carrying into execution the enumerated power vested
by the const. in the govt.)
2. (2) Congress has been involved in the delivery of mental health care to federal prisoners,
and has long provided for their civil commitment - Seems like a factor
a. “long hx of federal involvement in this arena”
3. (3) Congress reasonably extended its longstanding civil commitment system to cover
mentally ill and sexually dangerous persons who are already in federal custody
a. This is a pragmatic – important to do – protecting the people
4. (4) Statute accounts for state interests – requires accommodation of state interests (state
has the right at any time to assert its authority over the individual)
a. Federalism
5. (5) Statute is narrowly tailored to only address the legitimate federal interest
a. Narrow scope
d. Based on this case, very deferential standard when it comes to Congress
e. Use of “rational basis” language – deference to Congress
f. Holding is based on the N&P clause (broad interpretation)

TENTH AMENDMENT – TWO VIEWS

I. Tenth Amendment: “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”
a. First View:
i. Tenth Amendment is a truism (just a saying); it has no substantive content but is simply a reminder
that if power is not delegated it is reserved
1. Truism: a statement that is obviously true and says nothing new or interesting
ii. Tautology view – can’t be false (ie. it’s either raining outside or its not)
iii. See this view where Commerce Clause is expanded
b. Second View:
i. Tenth Amendment reserves a zone of authority to the States; it is an affirmative limit on Congress’
enumerated powers.
ii. This view taken when trying to restrict Commerce Clause power (“no something has to be kept
back”) – something has to be left to the states

COMMERCE CLAUSE – CLASSICAL AND NEW DEAL VIEWS

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I. Intro and overview of Commerce Clause materials

II. Theoretical and doctrinal issues in Commerce Clause cases
a. How does meaning of clause change over time?
b. Do/should federalism principles limit Congress’s power?
c. Is the Court the appropriate actor to police the boundaries of federalism as played out under the
Commerce Clause?
d. How does the Court define “commerce” and “among the several states”?
III. The early Republic – Justice Marshall’s expansive view of the commerce power
a. Gibbons v. Ogden
IV. 1890s – 1937 – narrow interpretation of Congress’s commerce clause power
V. The New Deal era through 1995
a. Wickard v. Filburn; Heart of Atlanta Motel

I. Intro and Overview

a. 1800s – 1890
i. Expansive interpretation of the commerce clause power, exemplified by j. Marshall in Gibbons v.
Ogden
b. 1890 – 1937
i. Conservative, laissez-faire Court strikes down federal and state economic legislation
c. 1937
i. Constitutional crisis; FDR’s court-packing plan; J. Roberts’ “switch in time that saved nine.”
d. 1937 – 1995
i. Return to expansive interpretation of Congress’ power; no federal laws invalidated
e. 1995 – present
i. Court finds some limits on federal power under CC and other provisions (the “new Federalism”)

II. Art. I, §8, cl. 3

a. The Congress shall have the power “To regulate Commerce…among the several states….”

III. Gibbons v. Ogden (1824)

a. Facts: Has to do with steamships - NY gives monopoly to Livingston to operate NY waters, license then
given to Ogden but Gibbons has a federal license to navigate the waters  NY gives injunction to Gibbons
b. Issue: whether the federal license is constitutional? Can Congress regulate Hudson River, even those waters
where ships only stay in NY?
c. Holding: NY law is invalid bc Commerce Clause designates power to Congress to regulate interstate
commerce and that broad definition of commerce includes navigation
d. What is “commerce”?
i. Commerce is more than just traffic and trade – includes navigation bc it facilitates commerce
ii. “If commerce does not include navigation, the govt of the union has no direct power over that subject,
and can make no law prescribing what shall constitute American vessels, or requiring that they shall
be navigated by American seaman”
iii. “among the several states” means intermingled with
iv. “Commerce among the states cannot stop at the external boundary line of each State, but may be
introduced into the interior”
e. Any limit to Congress’ powers as defined by C.J. Marshall in this opinion?
i. 10th Am. is not a limit – “this power like others in congress has no limit”
f. So why isn’t this dangerous? Why is this not too much power on Congress?
i. The check is the electorate – the democratic system in the check on Congress’s power = the check is
not the 10th amendment, it’s the courts
g. Just like McCulloch stands for the broad interpretation of N&P, this case stands for a broad interpretation of
commerce.

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h. HOWEVER, while the commerce power does not stop at the external boundary of a state, it does not extend
to commerce which is completely internal. State inspection laws, health laws, and laws for regulating
transportation and the internal commerce of a state fall w/in the state police power and are not w/in the power
granted to congress

IV. Limits on Commerce Power: 1890 – 1937

a. Formalist definition of “commerce” as distinct from manufacture, production, mining
b. Requirement of a “direct effect” on interstate commerce
c. Tenth Amendment as an extrinsic limitation on commerce power

V. Wickard v. Filburn (1942) (COMMERCE CLAUSE AFTER THE NEW DEAL)

a. Another broad interpretation of Commerce Clause
b. Facts: this farmer takes small amount of acreage and grows his own wheat – not selling it, not going into
commerce at all – Congress imposed this law and set a marketing quota – sets a limit on how much you can
grow and use; if you exceed this growth, we’re going to fine you
i. Farmer says Congress in regulating Commerce cannot tell him how to grow his wheat that does not
even go into commerce; he says he’s own his own farm, not even selling it
c. Farmer says: this is a regulation of production and consumption of wheat and these activities are beyond
reach of congressional power under commerce clause, since they are local in character and their effects upon
interstate commerce are at most indirect
i. Court says if he did not use home-grown wheat, he would have to buy it on the marker and the effect
on interstate commerce may not be substantial from the actions of Filburn alone, but through the
cumulative actions of thousands of farmers, its effect would certainly become substantial
ii. HOWEVER, commerce also includes manufacturing and production (all phases of production and
distribution)
iii. Even if farmer’s activity be local and though it may not be regarded as commerce, it may still,
whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate
commerce and this irrespective of whether such effect is what might at some earlier time have been
defined as ‘direct’ or ‘indirect’
iv. IF we aggregate all the farmers who grow on their own farm – they won’t then buy on the market
and will change pricing
1. “Congress could regulate wholly intrastate, NON-COMMERCIAL activity if such activity
viewed in the aggregate would have a substantial effect on interstate commerce, even if the
individual effects were trivial”
v. Here, in deciding whether there is a “substantial effect” court will defer to Congress (institutional
competency: this is what Congress does, it’s better for them to decide)
d. Holding: Production quotas under the Agricultural Act of 1938 were constitutionally applied to agricultural
production that was consumed purely intrastate, bc its effect upon interstate commerce placed it w/in power
of Congress to regulate under Commerce Clause because the intended rationale for the act was to stabilize
price of wheat on national market
e. Limits?
i. Purely internal commerce within the state is a limit (Gibbons)
ii. Seems like Congress can do anything after this opinion (maybe one limit is, this is a commodity)
f. NOW, rejection of whether a commercial activity was local or not local, but rather whether the activity exerts
a substantial economic effect on interstate commerce
g. **Whether subject of regulation in question was production, consumption, or marketing is not material
for purposes of deciding the question of federal power – that an activity is of local character may help
in doubtful case to determine whether Congress intended to reach it, but even if the activity be local,
though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress,
if it exerts a substantial economic effect on interstate commerce and this is irrespective of whether such
effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect’**

VI. Heart of Atlanta Motel v. U.S. (broad interpretation) – ALSO POST NEW DEAL

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a. Facts: This hotel only allows white people – defendant says Congress cannot tell me who I can and cannot
allow in my hotel; he says, Congress is not trying to further congress, they are trying to desegregate and they
can’t use the commerce clause in disguise
b. Test: whether there is a substantial/significant relation to national interest
i. “Whether the activity sought to be regulated is Commerce which concerns more states than one, and
has a real and substantial relation to the national interest”
ii. The power of Congress to promote interstate commerce also includes the power to regulate the
local incidents thereof, including local activities in both the state or origin and destinations,
which might have a substantial and harmful effect upon that commerce
c. State argument: If you aggregate this local activity with other incidents, there will be a substantial effect
because racism deters travel and blacks won’t put in money in the interstate commerce
d. This case belongs to the instrumentalities (Rehnquist categories) – RATIONAL BASIS used (whether
congress had a rational basis for finding racial discrimination by the motel affected commerce and if so
whether the means selected to eliminate the evil are reasonable and appropriate)

MODERN COMMERCE CLAUSE

I. Modern Limitations on the Commerce Clause Power

a. Meaning of Lopez and Morrison’s invalidation of federal laws as exceeding commerce power – first time
since 1937
b. How do these cases do it – do they overrule precedent?
c. Three categories of congressional regulation under commerce clause
d. Factors relevant to Court’s decisions
e. Split on the court – what are the main points of disagreement?
f. Do Raich and NFIB clarify what the Court will and won’t allow Congress to regulate under the Commerce
Clause?

II. Lopez, Morrison, Raich, NFIB

a. Definition of “commerce”?
i. Very local, very intrastate activities that Congress is trying to get at
ii. In Lopez: implies must be “commercial in nature” – in Lopez the act was not an economic or
commercial activity, nor was it a larger part of a regulated commerce activity
b. Until 1995, it was really hard to show that there are limits on congress…not that idea is getting turned down

III. Categories of Permissible Regulation (Lopez categories) – Congress CAN:

a. (1) Regulate/protect the channels of interstate commerce
i. ie. highways, railroads, tracks, motels (even if part of it is in one state) (so possibly even RR tracks
that are purely intrastate)
b. (2) Regulate/protect the instrumentalities of interstate commerce, or persons or things in IC (even though
the threat may come from intrastate activities)
i. ie. goods and people – trucks, ships/ things that RUN on the channels and make interstate happen
c. (3) Regulate activities having a substantial relation to IC, i.e. that substantially affect IC

IV. U.S. v. Lopez (category 3) – First case since the New Deal to set limits to Congress’ power under Commerce
Clause
a. Facts: Gun Free School Zone Act where Congress made it a federal offense for any individual knowingly to
possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone;
Act does NOT regulate a commercial activity, nor contain a requirement that the possession be connected in
any way to interstate commerce
i. Ie. Invalidates gun-free school zone acts
b. Principles: national govt is a govt w/ enumerated powers vs. Federalism: states are sovereign and divisions
are listed
c. This case reaffirms Gibbons – so it does not overturn any decisions

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d. Possible determinative factors in Lopez to find Substantial Effect (Category 3 Factors)

i. Federalism – there must be some limit to Congress’ powers
ii. Economic v. non-economic activity
1. Ie. in Lopez a gun is a criminal statute, it’s not economic in any way
iii. Jurisdictional “hook”
1. Meaning SOMETHING in the statute itself – some individual element in the statute must be
present to show jxn’l hook
2. Specific in the statute that would make the activity “touch interstate commerce in such way”
– crosses state lines
3. Court doesn’t say it’s required
iv. Existence of express congressional findings of substantial effect on interstate commerce
1. Court says you don’t HAVE to have this but it would help if there were findings
v. Traditional area of state concern (Kennedy concurrence)
vi. Accountability issue (Kennedy concurrence)
1. Deals with confusion (both parts of the concurrence) – if both state and federal govt
regulating purely state concerns – who will they hold accountable; there are certain areas of
traditional state concern only
e. Govt says in regards to aggregate effect: it will effect the national economy if people bring in guns, disrupt
educational environment and will affect willingness to travel; crimes are expensive and violent crime is costly
and it spreads
i. There were no “Express congressional findings)
f. Courts will NO LONGER defer to congress to determine “substantial effect”
i. In Atlanta Motel deference to Congress was explicit – now abandoning rational basis test
g. Ways in which Lopez breaks from post-1937 precedent?
i. Deference to Congressional determination – institutional competence; method of reasoning
ii. Economic/non-economic distinction
1. Raich: economic refers to production, distribution, and consumption of commodities
iii. Categorical distinction: channels, instrumentalities, substantial effects
iv. Reasserts idea of external (federalism) limits on commerce power
v. Traditional areas of state concern

V. United States v. Morrison (Category 3)

a. Facts: Provision of Women’s against violence act which provides a federal civil remedy for victims of
gender-motivated violence
b. Holding: Gender motivated crimes of violence are not, in any sense of the phrase, economic activity
i. “Simply because Congress may conclude that a particular activity substantially affects interstate
commerce does not necessarily make it so”
ii. “Reject that Congress may regulate noneconomic, violent criminal conduct based solely on that
conduct’s aggregate effect on interstate commerce. The constitution requires a distinction b/w what is
truly national and what is truly local”
c. Rule via Wickard: Aggregate Effects Test – intrastate activities must be considered in the aggregate only if
the activities themselves are economic in nature
d. Factors from Lopez that Court restates:
i. Economic activity
1. Gender related activity is NOT commerce
ii. Jurisdictional element
1. None here
iii. Congressional findings
1. Here, there were a few findings!
iv. Directness of link to affect on interstate commerce
1. Govt tried to give economic reasons for commercial activity
2. COURT says, you need more direct effect because saying it limits violence is too remote –
the aggregate e ffect of XYZ can be significant

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VI. Gonzales v. Raich (2005)

a. Facts: CA residents use medical bud and sued for an act prohibiting the enforcement of the Act bc it prevents
them from possessing, obtaining, or manufacturing bud for their own personal use
b. Analysis: The exemption for cultivation by patients and caregivers can only increase the supply of bud in the
CA market – likelihood that all such production will promptly terminate when patients’ medical needs during
their recovery seems remote
c. What is the test under the commerce clause after Raich?
i. “Production and distribution” of commodities is an economic activity
ii. local use affects supply and demand in national bud market, making the regulation of intrastate use
essential to regulating the drug’s national market
d. Aggregate Affects Test Established
i. **Congress can regulate purely intrastate activity that is not itself “commercial” in that it is not
produced for sale, if it concludes that failure to regulate that class of activity would undercut the
regulation of the interstate market in that commodity

VII. NFIB v. Sebelius (2012) – Commerce Clause Sense

a. Facts: Resolving constitutional challenges to a provision of ACA which requires individuals to purchase a
health insurance policy providing a minimum level of coverage, and those who don’t comply with the
mandate must pay the govt
b. Activity/inactivity distinction
i. Court not to extend to the regulation of inactivity (regulating the behavior of people who have chosen
not to buy health insurance by requiring that they either buy health insurance or make a payment to
the IRS in lieu of buying health insurance) even if that inactivity has a substantial economic effect on
interstate commerce.
1. Under this view, while the commerce power allows Congress to regulate the behavior of
people who are participating in commerce (growing wheat in Wickard v. Filburn and growing
marijuana in Gonzalez v. Raich), it does not allow Congress to force people into commerce
who have chosen not to engage in commerce.
ii. *** “Everyday individuals do not do an infinite number of things. In some cases, they decide
not to do something – in others they simply fail to do it. Allowing Congress to justify federal
regulation by pointing to the effect of inaction on commerce would bring countless decisions an
individual could potentially make w/in the scope of federal regulation, and under the Govt’s
theory – empower Congress to make those decisions for him”***
c. Holding: The Act is not justified under Commerce Clause. Court has never permitted Congress to use its
power to regulate interstate commerce so as to mandate the purchase of a particular product. He noted that in
order for Congress to ‘regulate’ interstate commerce, there must be something to regulate. Here the Act
creates commerce by regulating inactivity into activity
d. Reasoning:
i. Precedent
1. Ginsburg Dissent argues that activity and inactivity distinction is unsupported by any
precedent or text of Const.
2. Court does NOT go through Lopez factors, so not doing a typical analysis
3. You can aggregate activity, BUT not inactivity
ii. Text
iii. Structure/federalism
iv. Slippery slope
1. Ginsburg Dissent: even if the activity and inactivity distinction were permissible, individuals
who fail to purchase insurance nonetheless frequently participate in the healthcare
marketplace, substantially impacting healthcare commerce, and may therefore be regulated
by Congress

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a. Congress is just regulating the timing of the activity because everyone will use
healthcare at one point and they participate in the healthcare marketplace,
substantially impacting healthcare commerce:
i. Those who don’t have insurance, the rest of our premiums will be higher so
in theory, WE are paying for everyone else
ii. Healthcare in the society is precisely the type of problem that requires a
national solution – there’s no clause that says solve national problem though
2. If we let Congress do this, they’ll regulate any inactivity, i.e. make you eat broccoli bc if will
better healthcare in general

OTHER ARTICLE I POWERS

I. The Taxing Power

a. NFIB v. Sebelius (2012)
II. The Spending Power
a. South Dakota v. Dole (1987)
b. NFIB v. Sebelius (2012)
III. The Treaty Power
a. Bond v. United States (2014)

I. The Taxing and Spending Powers

a. Art. I, §8, cl. 1:
i. “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the
Debts and provide for the common Defense and general Welfare of the United States…”
b. Amendment XVI (1913):
i. “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived,
without apportionment among the several States…”
c. Art. II, §9, cl. 4 – the Direct Tax Clause
i. “Direct Taxes shall be apportioned among the several States” and must be “in Proportion to the
Census”

II. NFIB v. Sebelius (2012)

a. Taxing Power Issue
i. Facts: Act provides that penalty will be paid to IRS w/ individual’s taxes for those who don’t comply
with the mandate. Govt says to view the statute as imposing a tax on those who do not buy that
product – not as a mandate ordering individuals to buy insurance
ii. Is the Taxing power limited by the extent of the enumerated powers?
1. “Congress may lay and collect taxes, duties, imposts and excises, to pay the debts and
provide for the common defense and general welfare of the U.S.”
iii. Issue: is the individual mandate provision of the ACA a tax or a penalty?
1. Court says it’s a tax! And not a direct tax subject to apportionment
2. Court says we’re going to defer to Congress to tell us if it’s a tax or not
3. Looks like a tax because it’s found in the IRS code and has essential feature of any tax –
revenue for govt (the IRS must enforce it and is collected in the same manner as taxes)
4. Doesn’t matter that its labeled as a penalty because we look at what it does (the function):
a. Burden is relatively low on people
b. Court says there’s no scienter requirement
c. Criminal prosecution for non-payment is deauthorized – the court has explained that
‘if the concept of penalty means anything, it means punishment for an unlawful act of
omission’
iv. Argument that Congress may not tax inactivity – is the court’s holding consistent w/ decision on the
Commerce Clause issue?

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1. Taxing power is legitimate though and they’re saying taxing power is not as dangerous as
commerce clause
2. The const. does not guarantee that individuals may avoid taxation through inactivity – a
capitation after all, is a tax that everyone must pay simply for existing, and capitations are
expressly contemplated by the cont.
v. **Although breadth of Congress’s power to tax is greater than its power to regulate commerce, the
taxing power does not give Congress the same degree of control over individual behavior**
vi. Commerce Clause vs. Spending Power:
1. Once we recognize that Congress may regulate a particular decision under the commerce
clause, the federal govt can bring its full weight to bar. Congress may simply command
individuals to do as it direct. An individual who disobeys may be subjected to criminal
sanctions.
2. Contrastingly, Congress’s authority under the taxing power is limited to requiring an
individual to pay money into the federal treasury, no more. If a tax is properly paid, the govt
has no power to compel or punish individuals subject to it.
vii. Dissent’s argument that this is a penalty – rationale?
1. Scalia says a tax is enforced contribution to provide for the support of govt; a penalty is an
exaction imposed by statute as punishment for an unlawful act
2. When an act adopts the criteria of wrongdoing, and then imposes a monetary penalty as the
principal consequence on those who transgress its standard, it creates a regulatory penalty,
NOT a tax
b. Spending Power Issue
i. Facts: Medicaid expansion encouraged by using federal money – accept funding and expand your
Medicaid coverage; we will pay for it for a while, but then you will pay for it on your own OR lose
all your Medicaid coverage altogether. The ACA expands the scope of Medicaid program and
increases number of individuals states must cover
ii. Is the spending power limited by the extent of the enumerated powers?
1. “we have long recognized that congress may use this [spending] power [“to pay the
debts and provide for the general welfare of the U.S.”] to grant federal funds to the
states, and may condition such a grant upon the states taking certain actions that
congress could not require them to take”
2. SUCH measures encourage a state to regulate in a particular way, and influence a
state’s policy choices
iii. Why does this exercise of the spending power go beyond the very broad scope of permissible
conditional spending by Congress?
1. States argues that the act violates the basic principle that the Federal govt may not compel the
states to enact or administer a federal regulatory program
2. Congress may use its spending power to create incentives for states to act in accordance
w/ federal policies. But when pressure turns into compulsion the legislation runs
contrary to our system of federalism – the constitution does not give congress the
authority to require the states to regulate. That is true whether congress directly
commands a state to regulate or indirectly coerces a state to adopt a federal regulatory
system of its own
3. If we let the federal govt force the states to implement a federal program, it would threaten
the political accountability key to our federal system:
a. Spending Clause programs do not pose this danger when a state has a legitimate
choice whether to accept the federal conditions in exchange for federal funds bc here
state officials can be held politically accountable for choosing to accept or refuse the
federal offer
b. Danger heightened when Congress acts under Spending Clause bc congress can use
that power to implement federal policy that it could not impose directly under its
enumerated powers – congress may attach appropriate conditions to federal taxing
and spending programs to preserve its control over the use of federal funds

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4. ***We have upheld Congress’s authority to condition the receipt of funds on State’s
complying w/ restrictions on the use of those funds bc that is the means by which Congress
ensures that the funds are spent according to its view of the general welfare*** [states must
have a genuine choice]
iv. Dissent
1. No promise Medicaid will stay, states signed up for this

III. South Dakota v. Dole (1987) – Spending Power

a. Facts: SD permits 19 year olds to purchase beer and Congress enacted a law which directs Secretary of
Trans. to withhold a percentage of federal highway funds otherwise allocable from states ‘in which the
purchase or public possession of any alcoholic beverage by a person who is less than 21 years old is lawful’
i. Argued on two grounds: Constitutional Text: 21st Amendment
b. Precedent: U.S. v. Butler (1936)
i. Congress not limited to using spending power for just its enumerated powers – power is broader – ie.
general welfare – but now acknowledges there are limitations
c. Pursuant to Spending Power:
i. Congress may attach conditions on receipt of federal funds, and has repeatedly employed the power
‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the
recipient w/ federal statutory and administrative directives
d. Limitations on Congress’s spending power:
i. Pursuit of the “general welfare”
1. Courts should defer to Congress to determine what is the pursuit of the “general welfare”
ii. Condition unambiguous
1. Thus enabling states to exercise their choice knowingly, cognizant of the consequences of
their participation
iii. Nexus requirement
1. Has to be related to federal interest (J. O’Connor says, here, how is restriction on hwy funds a
safety argument – she has a federalism concern?)
iv. No independent constitutional bar
1. South Dakota says there is a bar here, the 21st amendment – Court says these are not the kind
of amendments that are independent constitutional bars (having a drinking age of 21 doesn’t
violate anyone’s rights)
v. Condition must not be coercive
1. “in some circumstances the financial inducement offered by Congress might be so coercive as
to pass the point at which ‘pressure turns into compulsion.’”
e. Holding: Even if Congress might lack the power to impose a national minimum drinking age directly, we
conclude that the encourage to state action is a valid use of the spending power

IV. Bond v. United States (2014) – Treaty Power

a. Facts: Bond worked for chemical manufacturer when she learned her friend was pregnant with Bond’s
husband. So she used her connections at the company to get toxic chemicals to put it on the doorknob where
her friend suffered burns – charged w/ violation of Chemical Weapons Convention Implementation Act of
1998
b. Issues:
i. Does Congress have the authority to enact legislation that enforces a treaty, but goes beyond the
scope of the treaty and intrudes on traditional state prerogatives? NO!
ii. Can the Act be properly interpreted so that it does not apply to ordinary poisoning cases, which have
been traditionally handled by state and local authorities? YES!
c. Here, gave a treaty domestic effect – says conviction is unconstitutional
i. Federal law does not intrude on the ability of states to regulate local matters, and the Chemical
Weapons Convention Implementation Act is not an exception to that general rule
ii. Congress has the authority to create legislation to enforce treaties, it must do so while respecting the
traditional division of sovereign responsibility b/w federal govt and states

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d. Congress cannot do this under the Commerce Clause so doing it under Treaty Power (under N&P clause, read
that along with Treaty Power, together!)

V. Necessary and Proper Clause

a. The Congress shall have power … to make all Laws which shall be necessary and proper for carrying into
execution the foregoing [Article I §8] powers, and all other powers vested by this Constitution in the Govt
of the U.S.

VI. Is an Act of Congress Constitutional?

a. Question One:
i. Does Congress have the power? Potential sources of power:
1. Commerce Clause
2. Taxing or Spending power
3. Some other Art. I, §8 powers
4. Enforcement clauses of reconstruction amendments (or other voting rights amendments)
ii. Potential constraints on above Congressional powers:
1. Separation of Powers principles
2. Violates Federalism/Tenth Amendment principles
b. Question Two:
i. Is Congress prohibited by the Constitution from doing this?
1. Violates individual rights
2. Violates a specific limitation in the text (eg. A provision of Art. I, §9)

FEDERALISM AND THE 10TH AMENDMENT

I. Two views of the 10th Am.

II. Historical progression in Court’s view of federalism and Tenth Amendment
III. May Congress regulate the States’ performance of their “traditional governmental functions”; of “States as
States”? (Nat’l League of Cities; Garcia)
IV. Process view of federalism (Garcia)
V. “Commandeering” the States
a. State legislatures (New York v. U.S.)
b. States executive officials (Printz)

I. Garcia v. San Antonio Metropolitan Transit Auth.

a. Congressional Act at Issue: The Fair Labor Standards Act (FLSA) and its application to SAMTA, a
municipal mass transit system employer.
i. States as employers are subject to FLSA just like any private employers would be
ii. 10th Amendment cannot regulate “states as states” – state argues
b. Issue: May Congress require SAMTA to pay its employees the federal minimum wage and overtime pay?
c. Precedent: Congress’ power to do this is limited by Tenth Amendment – Congress may not enforce the
FLSA minimum wage and overtime provisions against the States in areas of “traditional government
functions” from National League of Cities v. Usery (NOW OVERTURNED!)
d. Holding: Enforcement of FLSA against SAMTA is constitutional
i. back to truism view by overruling National League – which was the only case that was in the
favor in the first place
1. National League overruled because the traditional text (historical approach) is defective
bc that approach prevents change
a. The “traditional govt function” is a flawed analysis bc it is inconsistent w/
established principles of federalism
2. Here, any constitutional exemption from the requirements of the FLSA must rest on
SAMTA’s status as a govt entity rather than on the ‘local’ nature of its operations

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ii. undisputed that Commerce Clause enables FLSA – so C. Clause clearly reaches this, but does 10 th
Am. independently remove it from SMTA
e. Four Conditions must be satisfied before a state activity may be deemed immune from a particular
federal regulation under the Commerce Clause: (National League)
i. It is said that that the federal statue at issues must regulate “States as States”
ii. Statute must address matters that are indisputably attributes of state sovereignty
iii. State compliance w/ the federal obligations must directly impair the states ability to structure
integral operations in areas of traditional governmental functions
1. Note, the goal of identifying uniquely governmental functions has been rejected by the
court bc the notion of a uniquely govt’l function is unimaginable
2. We reject as unsound in principle and unworkable in practice, a rule of state immunity
from federal regulation that turns on a judicial appraisal of whether a particular
governmental function is ‘integral’ or ‘traditional’
iv. The relation of state and federal interest must not be such that the nature of the federal interest
justifies state submission
f. So is there a check on Congress then? What protects the states from overreach then?
i. The procedural nature of the federal system – i.e. elections (people elect the Congress and the
idea is these people will protect the people’s interests)
g. Garcia basically adopts the first view by reading 10th Amendment narrowly

II. “Commandeering” the States

a. New York v. United States (1992)
i. Facts: Congress declared a federal policy of holding each state responsible for providing for the
availability of capacity either w/in or outside the state for the disposal of low-level radioactive
waste generated w/in its borders
1. Act provides 3 types of incentives to encourage states to comply w/ their statutory
obligation to provide for the disposal of waste generated in their borders:
a. Money incentives
b. Access incentives – may be denied access to disposal facilities AND
c. (the issue) The Take Title Provision – “if a state in which low-level radioactive
waste is generated is unable to provide for the disposal of all such waste
generated w/in such state by X date, each state in which such waste is generated
shall take title to the waste, be obligated to take possession of the waste, and shall
be liable for all damages directly or indirectly incurred by such generator or
owners as a consequence of the failure of the state to take possession the waste”
ii. Holding: Federal Low Level Radioactive Waste Policy Amendments Act of 1985 struck down –
Congress may not “coerce” the states to regulate a certain way
1. Congress does not have the ability to require the states to govern according to Congress’
instructions
2. “In providing for a strong central govt, the framers chose a const. that confers upon
Congress the power to regulate individuals, not states”
a. example: The allocation of power contained in the commerce clause authorizes
congress to regulate interstate commerce directly; it does not authorize congress
to regulate state govt’s regulation of interstate commerce
iii. Overall, congress can directly direct the people but they cannot direct the states
1. “We conclude that while Congress has substantial power under the constitution to
encourage the states to provide for the disposal of the radioactive waste generated
w/in their borders, the Const. does not confer upon Congress the ability simply to
compel the states to do so”
iv. Here, the take title provisions gives states 2 choices – neither of which are really choices: doesn’t
direct directly – tells states what to do (this is not allowed)

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1. Accountability issue bc when due to federal coercion, elected state officials cannot
regulate in accordance w/ the views of the local electorate in matters not preempted by
federal regulation
v. To try to get the states to do something, they can encourage, BUT not coerce
vi. Congress telling states how to regulate vs. regulating directly is the issue bc then there’s
accountability issues – people aren’t going to know who to blame (lack of transparency)

b. Printz v. United States (1997)

i. Facts/Issue: Whether certain interim provisions of the Brady Act commanding states and local
enforcement officers to conduct background checks on prospective handgun purchasers and to
perform certain related tasks violates the Const.
1. The Act purports to direct state law enforcement officers to participate, although
temporarily, in the administration of a federally enacted regulatory scheme
ii. Holding: Brady Bill’s interim regulatory provisions are struck down – Congress may not require
state officials to carry out its laws
1. While Brady Act is directed to individuals, it is directed to them in their official
capacities as state officers; it controls their actions, not as private citizens, but as the
agents of the state
iii. This case expands the non-commandeering approach taken in New York
iv. Court looks to:
1. History: early Congress did not do this and did not ask official to carry out their
regulations
2. Structure: idea of dual sovereignty (has to be some limit)
3. Precedent: New York
v. So what can Congress do if they want to implement a regulation and carry it out? They have to
establish federal beaurcracy
1. State legislatures are not subject to federal direction
2. While Congress may require the federal govt to regulate commerce directly, in this case
by performing background-checks on applicants for handgun ownership, the N&P Clause
does not empower it to compel state cops to fulfill its federal tasks for it
vi. Federal govt and state govt can work directly ON the people, but cannot work via states

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ELEVENTH AMENDMENT

I. The 11th Amendment

a. Text
i. “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 or Subjects of any Foreign State.”
ii. Seems to say that citizen of one state cannot sue another state (ie. citizen of NY cannot sue GA); but
doesn’t seem to say anything about citizen of one state cannot sue it’s own state – BUT courts have
read it to expand broadly
iii. Courts say state sovereign immunity is reflected in the 11 th Amendment, but that’s not the only
representative of it – inherent in constitution itself
iv. QUESTION: Can I sue GA as a GA citizen in state court with federal question? No, principle of
sovereign immunity is expansive
b. Expression of principle of sovereign immunity

II. Chisholm v. GA (1793) – 11th Am. was a response to this holding

a. SC citizen sues GA: Art 3, §2 interpreted by the S. Ct. and reads “b/w a state and citizens of another state”
means there’s jxn and they have the ability to sue
b. Citizen wins and 11th Am. comes ABOUT to attack this case

III. Two Views of the 11th Amendment

a. One
i. It is a complete restriction on subject matter jurisdiction of the federal courts that bars all suits against
a state by a private citizen
ii. Ie. sovereign immunity applies in all cases (broad view)
b. Two
i. It only restricts federal court jurisdiction in citizen-state diversity cases, not in federal question cases
ii. Narrower view – NOT the majority view

IV. Exceptions to 11th Amendment Immunity

a. State express or implied consent
i. Suits brought by U.S. against a state
ii. Suits between states
iii. By ratifying the const., states have consented to be sued by other states AND the federal govt
b. Suits against cities or municipalities – not the “state” for 11th Am. purposes
c. Suits against state officials in their “individual capacities” – Ex Parte Young doctrine
d. Suits for prospective relief, or for $ damages against state officials personally
e. Congressional abrogation under §5 of 14th Amendment (where States have implicitly consented, but only
where Congressional intent to abrogate is clear)
i. Ie. can only abrogate when acting pursuant to 14th Am. – not Article I powers

V. Art. III, §2, cl. 1. “The judicial power shall extend to all Cases…”
a. (1) Arising under the Constitution, laws of the U.S., and Treaties
b. (2) Affecting ambassadors, public ministers, consuls
c. (3) Admiralty and maritime cases
d. (4) U.S. is a party
e. (5) Between two or more states
f. (6) Between a state and citizens of another state
g. (7) Between citizens of different states
h. (8) Between citizens of the same state claiming lands under grants of different states
i. (9) Between a state or citizen thereof and foreign states, citizens, or subjects

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VI. Congressional repeal of State sovereign immunity – Seminole Tribe of Florida v. Florida
a. Facts: Act imposes upon states a duty to negotiate in good faith w/ an Indian tribe toward formation of a
compact and authorizes a tribe to bring suit in federal court against state in order to compel performance of
that duty
b. Holding: Indian Commerce Clause does not grant Congress power to abrogate state sovereign immunity, and
therefore cannot grant jxn over a state that does not consent to being sued (here, tribe sued FL alleging they
refused to enter into negotiations, and FL has not consented to being sued)
c. In order to determine whether Congress has abrogated States’ sovereign immunity, we ask two
questions:
i. (1) Whether Congress has ‘unequivocally expressed its intent to abrogate the immunity’?
1. Here, Congress clearly shared its intent to abrogate – Act makes clear that the state is a
defendant to a suit brought by an Indian tribe
ii. (2) Whether Congress has acted pursuant to a valid exercise of power?
1. Previously, we have only found authority to abrogate under only two provisions of the
Constitution:
a. Through 14th Am., federal power extended to intrude upon province of 11th Am. (§5
of 14th Am. allowed Congress to abrogate immunity from suit guaranteed by that
Am.)
b. Pennsylvania v. Union Gas Co (plurality) – OVERRULED: Congressional
abrogation of states 11th Am. immunity been upheld; found that interstate commerce
clause granted congress power to abrogate state sovereign immunity bc power to
regulate interstate commerce would be incomplete w/o authority to render states
liable in damages
c. OVERRULED: Bc never before Union Gas had we suggested that the bounds of Art
III could be expanded by Congress operating pursuant to any constitutional provision
other than 14th Am. – indeed, congress cannot expand jxn of federal courts beyond
Art. III (Marbury)
d. HERE, determine whether Indian Commerce Clause, like interstate commerce clause
is a grant of authority to federal govt at expense of state
d. Why can they abrogate under 14th Am., but not in Article I?
i. 14th Am., Section 5  section 1, of 14th Am. is expressly a limit on what states cannot do (difference
b/w section 5 of 14th Am., not Article 1)
ii. Also 14th Am. comes later, so it modified 11th Am – Article I also predates 14th Am.
iii. “Congress’s authority under Article I could not be used to abrogate state sovereign immunity”

VII. Suit against State in State court (Alden v. Maine) and proceedings before administrative agencies (Federal
Maritime Comm’n v. S.C. State Ports Auth.)

VIII. Alden v. Maine

a. Facts: Probation officers alleged in state court suit that state had violated overtime provisions of FLSA and
sought compensation and liquidated damages
b. Issue: Whether Congress has the power, under Article I, to subject non-consenting states to private suits in
their own courts?
c. Holding: Powers delegated to Congress under Article I do not include the power to subject non-consenting
states to private suits for damages in state courts
i. While the constitutional principle of sovereign immunity does pose a bar to federal jxn over suits
against non-consenting states, there is also the postulate that states of the union, still possessing
attributes of sovereignty, shall be immune from the suits, w/o their consent, save where there has
been 'a surrender of this immunity in the plan of the convention'
d. Court Argument: Sovereign immunity derives not from 11th Am. but from structure of original const. –
doctrine that a sovereign could not be sued w/o its consent was universal in states when the const. was drafted
and ratified

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e. **We already knew, you can’t sue federal officers in federal courts, BUT you can’t sue them in state
court either**
f. Federal agency can bring claims, but individuals cannot, because states have consented

IX. Specific Issues Addressed by the Cases:

a. Under what circumstances may Congress abrogate a state’s sovereign immunity? (Seminole Tribe)
b. If a suit is barred in federal court under the doctrine of sovereign immunity, may it be brought in state court
(Alden v. Maine)
c. Does immunity extend to federal administrative proceedings? Yes (Federal Maritime Comm’n v. SCSPA)

X. Method of Interpretation and Views of Federalism

a. Text
b. Original understanding
c. Contemporary practice
d. Structure of Constitution
e. Natural Law?
f. Policy

THE DORMANT COMMERCE CLAUSE (up until now in the course, we looked at Federalism limits on Congress;
NOW looking at the converse)

**The following cases, involves situations in which Congress has not exercised legislative power pursuant to the
Commerce Clause but the S. Ct. considers invalidating state regulations on grounds that they are inconsistent w/
policies behind the constitutional allocation of power to Congress to regulate interstate commerce**

**Congress can reverse S. Ct. decisions in this area by passing legislation validating a state burden on commerce
invalidated by the Court**

**Congress can statutorily override otherwise constitutional state laws when it chooses to regulate nationally using
its commerce clause power**

I. The Dormant (“Negative”) Commerce Clause

a. Relationship to Preemption Doctrine
b. Constitutional Basis
i. Court first makes threshold scrutiny of whether the law is discriminatory or neutral
c. Modern Dormant Commerce Clause Doctrine
i. Test for laws that discriminate between in-staters and out-of-staters (Philadelphia v. NJ; Granholm
v. Heald)
ii. Test for laws that are neutral but that incidentally burden interstate commerce (Kassel v.
Consolidated Freightways; Pike v. Bruce Church)
iii. Application to state taxes (Comptroller v. Wynne)

II. Preemption v. DCC

a. Preemption: Congress has power to regulate in an area, Congress does regulate, and Congress wishes to be
the only regulator:
i. Express preemption: Congress says States may not regulate
ii. Implied preemption: Court infers Congressional intent
b. Dormant Commerce Clause: Congress has not acted, and State enacts law which affects interstate commerce.
c. Congress may override Court’s DCC decision, because Congress may choose to allow State regulation/burden
on interstate commerce

III. Wilson v. The Black Bird Creek Marsh Company (1829) – origins of DCC

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a. Facts: DE authorized Pl. Marsh Company to build a dam in Black-Bird Creek. The dam obstructed
navigation of the creek. Def. Wilson, owner of a sailboat licensed under federal navigation laws broke and
injured the dam in order to pass through the creek – Def. contends that the law authorizing the dam violates
the commerce clause
b. Holding: Because no federal law dealt specifically w/ the situation, and the state did not violate Congress’
DCC. State law was valid.
c. AS long as Congress has not exercised its power over commerce in a certain area, a state may regulate
that area as long as such regulations do not conflict w/ DCC
d. Rule: A state law is valid if it has a legitimate purpose, that purpose is consistent w/ the police power to
regulate, and it does not violate a federal law on the subject

IV. Philadelphia v. New Jersey – used the PIKE balancing test

a. Facts: A NJ law prohibited the importation of solid of liquid waste that originated or was collected from
outside the State. Private landfill operators challenged the constitutionality of the law
b. Issue: Whether the law is constitutionally permissible in light of the Commerce Clause?
c. Rule: Where a state regulates non-discriminatorily for achievement of legitimate local purpose and thereby
affects interstate commerce, the state action is constitutional unless the burdens of such regulation on
interstate commerce are clearly excessive relative the supposed local benefits of it (here the purpose was to
protect quality of environment)
d. Holding: A state may not prohibit or place barriers to articles of commerce entering or exiting its boundaries
w/o express Congressional authorization or a compelling state interest
i. Here, solid and liquid refuse and rights to landfill space to dispose thereof the articles of commerce
under the commerce clause
ii. Protectionism measures can be unconstitutional for their means as well as their ends
iii. Whatever the purpose of the statute, it may not be accomplished by discriminating against articles of
out-of-state commerce, unless there is some reason, apart from their out-of-state origin, for doing so

V. Basic Principles and Framework – from Philadelphia v. New Jersey

a. Congress has the commerce power, but there are many areas Congress could regulate but does not regulate
i. Overall, where a state law effects “simple economic protectionism,” there is “a virtually per se rule of
invalidity”
ii. BUT, where there is no patent discrimination – ie. its discriminatory merely incidentally – opposite
presumption (usually will be upheld)
iii. First, have to decide if it’s discriminatory or not?
1. If court sees state drawing a line at the border – keeping things out and their stuff in =
discriminatory: virtually per se invalidity
b. Where Congress does not regulate, the States are free to regulate “so long as they act within the restraints
imposed by the Commerce Clause itself”
c. The “bounds of these restraints” are not in the text of the CC, but they have emerged in the Court’s opinions
in order to give effect to the basic purpose of the CC, which is the economic unity of the Nation
d. Therefore: Where a state law effects “simple economic protectionism,” there is “a virtually per se rule of
invalidity”
e. What kind of law would not fail?
i. Quarantine laws!
f. But, where “there is no patent discrimination” and the state law “credibly advances” legislative objectives,
the Court applies a “flexible approach”
i. BALANCE constitutional harm AND state interest which is answered by the question: is the law
discriminatory or not (Pike v. Bruce Church Inc.):
1. “If a legitimate local purpose is found, then the question becomes one of degree. And the
extent to which that burden will be tolerated depends on the nature of the local interest
involved, and on whether it could be promoted as well w/ a lesser impact on interstate
activities”

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VI. Levels of Scrutiny – general framework in Equal Protection analysis

a. Strict:
i. Where a law classifies based on a protected characteristic, must be narrowly tailored to further a
compelling governmental interest
ii. Show there’s no other way the state could have furthered their interest
b. Intermediate:
i. special category that applies to discrimination on the basis of gender – law must be substantially
related to an important/significant governmental interest
c. Rational Basis Review:
i. Constitutional if the law is reasonably related to a legitimate gov’t interest

VII. Discrimination Types

a. For State Laws that Discriminate (facially, or in purpose of effect) –
i. Strong presumption that they are invalid under the Dormant Commerce Clause; narrow exceptions
(e.g. quarantine cases)
b. For State Laws that do NOT Discriminate –
i. “Where the statute regulates evenhandedly to effectuate a legitimate local public interest and its
effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on
such commerce is clearly excessive in relation to the putative local benefits.”

VIII. Granholm v. Heald

a. Out-of-state wine producers cannot sell wine directly to MI or to NY; but in state can (the challenged law) –
these laws are discriminatory on their face, therefore we apply the virtually “per se” strict scrutiny – might be
able to pass it though, IF the state shows: “these are our interests”
i. The states say we’re doing this for taxes and underage drinking interests
b. Allowing states to discriminate against out-of-state win invites a multiplication of preferential trade areas
destructive of the very purpose of the commerce clause
c. Burden is on the states to justify the discrimination – here, the states have not done so

IX. Kassel v. Consolidated Freightways (plurality)

a. Issue: Whether an Iowa statute that prohibits the use of certain large trucks w/in the state unconstitutionally
burdens interstate commerce
i. Iowa is trying to ban 65-foot trucks (challenged law) – but their state interest of of safety is illusory
and its regulations impair significantly the federal interest in efficiency and safe interstate
transportation; could not prove that the vehicles it targeted posed potential danger to hwy travelers
and the law was out of step w/ laws of all other Midwestern and Western states which did not have
similar regulations.
b. Facially it’s not discriminatory because they’re banning ALL trucks travelling through its highways (facially
neutral)
i. Discriminatory in purpose and effect = burden on commerce (PIKE test or incidental effect)
ii. Here, court doesn’t know what side to put it on: incidental or PIKE so does a stricter application
1. Precedent: in Philadelphia it’s facially discriminatory so applied a virtually per se strict
review and same in New Jersey
c. But here, the Court is applying the stricter version of the pipe balancing test – this is atypical for the court
(decide law fails the test)
i. Because court usually DOES accord special deference to state hwy safety regulations,
ii. But this deference derives in part from the assumption that where such regulations do not
discriminate on their face against interstate commerce, their burden usually falls on local economic
interests, thus ensuring that a state’s own political processes will serve as a check against unduly
burdensome regulations.
d. **Incantation of a purpose to promote the public health or safety does not insulate a state law from
Commerce Clause attack**
e. Brennan Concurrence:

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i. Concurrence believes that Commerce Clause challenges to state regulations must take into account 3
principles:
1. (1) The courts are not empowered to second-guess the empirical judgments of lawmakers
concerning utility of legislation
2. (2) The burdens imposed on commerce must be balanced against the local benefits actually
sought to be achieved by the State’s lawmakers, and not against those suggested after the fact
by counsel
3. (3) Protectionist legislation is unconstitutional under Commerce Clause, even if the burdens
and benefits are related to safety rather than economics. (protectionist legislation: govt action
and policies that restrict or restrain trade, done w/ intent of protecting local businesses and
jobs from foreign competition)
f. Rehnquist Dissent:
i. If it’s not even facially discriminatory, leave it to the legislature

X. Comptroller v. Wynne
a. Holding: A state may not tax a transaction or incident more heavily when it crosses state lines than when it
occurs entirely w/in the state; nor may a state impose a tax which discriminates against interstate commerce
either by providing a direct commercial advantage to local business, or by subjecting interstate commerce to
the burden of multiple taxation

DORMANT COMMERCE CLAUSE EXCEPTIONS

I. Exceptions to Dormant Commerce Clause Restrictions on State Discrimination

a. “State self-promotion” exception? (United Haulers; Davis)
b. Market Participant Exception and its limits (Wunnicke)
c. Congress decides to permit
i. Note: if congress allows it, has to be un-mistakenably clear and MPE

II. Market Participation

a. State which is acting as a producer or supplier of marketable goods or service – when a state is acting in such
a role, it may permissibly discriminate against non-residents
b. Example: SD’s right to give SD residents preferential treatment in the purchase of cement produced at a
cement plant owned and operated by the state
i. “Nothing in the purpose of animating the Commerce Clause prohibits a state, in the absence of
congressional action, from participating in the market and exercising the right to favor its own
citizens over others”

III. South Central Timber Dev. v. Wunnicke – Plurality

a. Facts: we will sell timber to anyone, but you have to process it here  makes profit for local processing
facilities (note: private companies can do that, but here a state is doing it)
b. Analysis: court says as a market-participator, you would not care what people did after timber was purchased
– you’re in the timber sale market, NOT the timber processing market (we have to limit definition of market);
so, we know this is not MPE, so then we go on and do the normal analysis – here, it’s facially discriminatory
so fails right there
c. When acting as a market-participator and not a regulator, dormant commerce clause does NOT apply (private
companies can do it)
d. Precedent:
i. Hughes v. Alexandria
ii. Reeves v. Stake
iii. White v. MA Council of Const. Employers
e. Issues:
i. Whether in the absence of congressional approval, Alaska’s requirement is permissible bc Alaska is
acting as a market participant, rather than as a market regulator?; and

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ii. If not, whether the local processing requirement is forbidden by the commerce clause?
f. Rule: If a state is acting as a market participant, rather than as a market regulator, the DCC places no
limitations on its activities
g. Holding: Alaska may be a participant in the timber market, but it may not use its leverage in that market to
exert a regulatory effect in the processing market, in which it is not a participant. The processing restriction
here takes place after the completion of the parties’ direct commercial obligations, rather than during the
course of an ongoing commercial relationship.
h. MPE Doctrine permits a state to influence a discrete, identifiable class of economic activity in which it is a
major participant
i. Limit: allows a state to impose a burden on commerce w/in the market in which it is a participant,
and NO further; may not impose conditions that have a substantial regulatory effect outside of that
particular market
i. Here, state is restricting the post-purchase activity of the purchase, rather than merely the purchasing activity
j. “A state may not avail itself of the market-participation doctrine to immunize its downstream
regulation of the timber-processing market in which it is NOT a participant”

IV. United Haulers v. Oneida-Herkimer Solid Waste Mgmt. Auth. (2007)

a. Challenged Local Law:
i. Flow-control ordinance that required all solid waste routed through a local, government-owned
facility – ie. requires haulers to bring waste to facilities owned and operated by state-created public
benefit corporation
b. Test Applied by Majority:
i. Finding the law non-discriminatory (majority), applies Pike balancing (Pluarality – Scalia does not
join this part)
c. Precedent: Carbone – court faced with flow control ordinance where town said all garbage processed in this
town must be processed in this private facility – private company will run and build it for five years, then the
town will buy it for a $1 = discriminatory (here PRIVATE company can’t do it)
d. This case has the same facts as Carbone except it’s a public facility, not private
i. Court will uphold a nondiscriminatory statute like this one unless the burden imposed on interstate
commerce is clearly excessive in relation to the putative local benefits (here, the act confers
significant health and environmental benefits upon citizens of the counties)
e. Holding: not discriminatory – this is a public monopoly and not discriminatory so we will apply the PIKE
balancing test and the court says in so doing, this case passes that test
i. Also not discriminatory because garbage processing is traditionally a local govt. action (public
facility is different) –
ii. Disposing of trash has been a traditional govt activity for years, and laws that favor the govt in such
areas, but treat every private business, whether in or out-of-state, exactly the same do not discriminate
against interstate commerce for purposes of the commerce clause
f. Note: this case was NOT decided under the market participation exception because here, the govt is acting as
regulator and participant that’s why it doesn’t apply – but even though not deciding under the market
participation exception, pushing towards government monopoly, and that’s okay

V. Possible new “exception” under DCC?

a. Davis v. Kentucky (2008)
i. Kentucky law that exempted interest earned on Kentucky bonds, but not other states’ bonds, from
income tax
1. Court held the law was non-discriminatory
2. Court did not do Pike balancing: Where a law is non-discriminatory and the state is doing a
traditional government function, Congress should invalidate if it wishes, not the federal
courts
ii. in sum, if discriminatory, PIKE applies, but here didn’t even apply it
b. United Haulers and Davis:

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i. Where the states favor themselves in traditional functions (rather than favoring in-state businesses or
consumers), court is much more deferential to the states

THE MARKET PARTICIPANT EXCEPTION/PRIVILEGES AND IMMUNITIES CLAUSE

I. The State Privileges and Immunities Clause – Art. IV., §2, cl. 1
a. United Bldg. and Constr. v. Camden; McBurney
b. Note: there’s two privileges and immunities clauses: one in 4 th Amendment and one in 14th Amendment – we
are NOT looking at the 14th Amendment one

II. General Statement of the Market Participant Exception:

a. When the State is acting as a market participant rather than a market regulator, the Dormant Commerce
Clause does not bar different treatment of in-state and out-of-state interests
b. But, such laws may still be challenged under other constitutional provisions, such as the Art. IV Privileges
and Immunities Clause and the Equal Protection Clause

III. Supreme Court Cases Recognizing Market Participant Exception prior to Wunnicke:
a. Hughes v. Alexandria Scrap Corp. (1976)
i. Court upheld a MD law under which the State bought abandoned cars for scrap and had more lenient
terms for in-state cars
b. Reeves v. Stake (1980)
i. Court upheld SD program under which a state-owned cement company charged less to in-state
purchasers
c. White v. Massachusetts Council of Const. Employers (1983)
i. Court upheld a city ordinance that required that construction projects financed by the city employ a
minimum of 50% city residents

IV. Privileges and Immunities Clause – Art. IV, §2, cl. 1

a. “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States”
i. Note: extends only to rights fundamental to the promotion of interstate harmony
b. First, we have to determine what counts as a privilege and immunity
c. Basic Rule:
i. State may discriminate against out-of-stater with regard to constitutional right or earning livelihood
only if necessary to achieve a substantial governmental interest. In other words, only if:
1. Has state discriminated against out-of-staters w/ respect to protected P/I – i.e. fundamental or
earning livelihood
2. Does it pass immediate scrutiny? Does state have to have this to further interest

**Note: On exam, DCC may also have a P/I issue**

V. United Building and Construction Trades Council v. City of Camden (1984)

a. This case looks a lot like White where Boston city ordinance said contractors have to hire X% of city
residents – held it was okay because fell in MPE; here, Camden ordinance requires that at least 40% of
employee contractors and subcontractors working on city construction projects be Camden residents
b. Note: The fact that the ordinance is a municipal, rather than a state law, does not place it outside the scope of
P/I bc for one, cannot easily distinguish municipal from state action and the municipal ordinance would not
have gone into effect w/o express approval of state treasurer and the argument that clause only applies to laws
that discriminate on basis of state citizenship (here said Camden) – no because a person who is not residing in
a given state it by that very fact not residing in the a city w/in that state
c. Why was White constitutional and Camden unconstitutional and they’re remanding for P/I test inquiry?
i. First case was challenged under DCC and P/I was challenged here – there’s no MPE here (cannot be
saved by MPE)
ii. In White (technicality) – P/I was not challenged there

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iii. The commerce clause prevents states from legislation on interstate commerce, which is in Congress’s
sole discretion. As a market participant in this case, Camden would not have violated the constitution.
The P/I however ensures that citizens of one state have the same privileges as citizens of another to
promote national unity. It only applies to certain fundamental rights
d. State/Local law at issue:
i. Camden municipal ordinance that required that at least 40% of employees of contractors and
subcontractors working on city construction projects be Camden residents.
e. Two-Step Inquiry for Application of PIC to a particular stance of discrimination against out-of-state residents:
i. (1) Does the ordinance burden “one of those privileges and immunities protected by the clause”?
1. ordinance is preventing out-of-staters from working in Camden – is this protected? Yes –
“ability to earn a livelihood” – so now we move on and apply immediate scrutiny (however,
in this case, it’s remanded for lower court to decide)
2. **Camden may w/o fear of violating commerce clause pressure private employers engaged in
public works projects funded in whole or in part by the city to hire city resident but that same
exercise of power to bias the employment decisions of private contractors and subcontractors
against out-of-state residents may be called to account under PIC**
ii. (2) If so, is there a “substantial reason” for the discrimination, and does the degree of discrimination
bear a close relation to that reason? – apply intermediate scrutiny
1. Camden states it has an interest by ensuring its citizens get a job here – Camden has
businesses/people leaving, low unemployment so important for them – but for lower court to
decide
2. The non-resident must be shown as the source of evil at which the statute is aimed
f. Majority: NJ residents, not Camden residents, are burdened by the law are burdened also, but those people
can go to the polls and vote (state controls state ordinances)
i. It is true that NJ residents not residing in Camden will be affected by the ordinance as well as out-of-
state citizens, and it’s true that the disadvantaged NJ residents have no claim under the P/I BUT NJ
residents have at least a chance to remedy at the polls and out-of-state citizens have no oppotinity to
do so
g. Dissent: says municipal law should not be covered by P/I – should only care if it’s whole state

VI. Dormant Commerce Clause v. Privileges and Immunities Clause

Dormant Commerce Clause Privileges and Immunities Clause
Congress can reverse Court decisions Congress cannot reverse Court decisions
(because they’re allowed to approve the (they can’t change decision bc no MPE
discrimination) OR the constitution cannot invalidate)
Protects corporations and individuals Protects only individuals
Applies to goods and services Applies to people
Covers discrimination and burdening of Covers discrimination w/ respect to
interstate commerce fundamental privileges and immunities
(fundamental rights or ability to earn a
livelihood)
Discriminatory regulations subject to Discriminatory regulations subject to
strict scrutiny intermediate scrutiny
Protected in-state and out-of-staters Only out-of-staters can challenge this

VII. McBurney v. Young (2013)

a. State law at issue: Virginia FOIA – VA citizens get free access to FOIA, but non-citizens don’t; does this
violate P/I? no, NOR does it violate DCC
b. Held: the law does not violate Art. IV P/I clause. Why?
i. Inquiry one: Does the law abridge a “fundamental” privilege or immunity – is a fundamental right
being burdened, and if so are they protected? Four burdens alleged
1. Opportunity to pursue a common calling (protected)
2. Ability to own and transfer property (protected)
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3. Access to VA courts (protected)

4. Access to public information (court says this is not covered by P/I)
ii. Inquiry Two: apply intermediate scrutiny – they fail:
1. Says this law was not meant to be protectionist – it’s an incidental affect and incidental
effects don’t count
2. Says he can still get the deed and own property in VA, law doesn’t abridge this right
3. Not closing court house doors
c. Does the DCC apply?
i. Court says this does not apply because this is not about article of commerce at all (even if, MPE,
citing Davis – state self promotion)
1. Insofar as there is a market for public documents in VA, it is a market for a product that
commonwealth has created and of which the commonwealth is the sole manufacturer.
2. We have held that a state does not violate the DCC, when having created a market through a
state program, it limits benefits generated by that state program, to those who fund the state
treasury and whom the state was created to serve – therefore, does not violate DCC

RECONSTRUCTION OF FEDERAL-STATE RELATIONS

I. Origin of the Reconstruction Amendments

a. Dred Scott v. Sandford
i. Facts: Scott, a slave owned by Army Surgeon, who moved around (Missouri is a slave state) 
Illinois (Free-state)
1. Missouri State (court applies precedent and says okay, he’s free because precedent said if
voluntarily bring slave to free state = free; Miss. S. Ct. reverses and overturns precedent 
applies to federal ct. instead of direct appeal to S. Ct.
ii. Arguing about whether original const. was pro-slavery or not? Majority is saying it was pro-slavery
iii. The first sentence of 14th Amendment overturned this case’s decision
iv. Holding: Dred Scott is not a citizen of U.S., and no person of African decent can be citizen (state
citizenship does not supersede federal citizenship) and therefore is not entitled to all the rights,
privileges, and immunities granted to citizens under the Const.
1. Descendants of people brought as slaves even if free not citizens, so don’t have privileges of
citizens – ie. right to sue
2. Missouri Compromise is unconstitutional and congress does not have a right to ban slavery

II. State Action Doctrine – Introduction

a. Origin (Civil Rights Cases)
b. Reasons for the requirement
c. Distinguish substance of 14th Am. protections (Section 1) from Congress’s enforcement power (Section 5)
d. Protection of individual liberty is a reason we have state action doctrine in the first place

III. Civil Rights Cases

a. Articulated state action doctrine – ie. const. not really applicable to individual persons
i. “Civil rights such as are guaranteed by the const. against state aggression, cannot be impaired by the
wrongful acts of individuals, unsupported by state authority in the shape of laws, customs, or judicial
or executive proceedings.”
b. Conduct = congress trying to prevent is race discrimination in public accommodations (private facilities, but
public accommodations)
c. Holding: 14th Am. state action holding only applies to states and private inns, etc. is not under that umbrella
d. **So if you want to make a const. claim you need to have state action** (need state action for 14 th
amendment)
e. Analysis:
i. Fourteenth Amendment state action holding
1. Still good law – yes

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ii. Fourteenth Amendment section 5 holding

1. Still good law? (Morrison; Heart of Atlanta Motel) – yes
iii. Thirteenth Amendment section 2 holding
1. §2 of 13th Am. is not still good law: now when enforcing §2, you can prohibit private conduct
in race discrimination (not gender) – this section gives Congress the power to make laws

IV. Fourteenth Amendment - §1

a. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person w/in its jurisdiction
the equal protection of the laws”

V. State Action Doctrine – Cont’d

a. Exceptions where private action may count for constitutional violation:
i. (1) Government entanglement exception (Shelley v. Kraemer, Edmonson); and
1. if the govt affirmatively authorizes, facilitates, or encourages unconstitutional conduct, then
the Constitution may apply
ii. (2) Public function exception
1. If it’s a traditional government function and the govt licenses it out to private party – ie.
prisons run by private corporation on behalf of states) - Edmonson
2. This exception was recently narrowed (now adds in “exclusively” done by the govt
iii. Entwinement? (Brentwood Academy)
b. State inaction – DeShaney

VI. Shelley v. Kraemer (1948)

a. Questions validity of court enforcement of private agreements – restrictive covenants – which have as their
purpose the exclusion of persons of designated race or color from ownership or occupancy of real property
b. Facts: Pursuant to a contract of sale, Petitioner blacks Shelly, for valuable consideration received from
Fitzgerald a warranty deed to the parcel in question
c. Although restrictive covenants agreements standing along cannot be regarded as a violation of any rights
guaranteed to petitioners by 14th Am – action of state courts and of judicial officers in their official capacities
is to be regarded as action of the states w/in the meaning of the 14 th Am., is a proposition which has long been
established by decisions of this court
d. The action of state courts in imposing penalties or depriving parties of other substantive rights w/o providing
adequate notice and opportunity to defend has long been regarded as a denial of the due process of law
guaranteed by 14th Am.
e. Holding: 14th Am. prohibits a state from enforcing restrictive covenants that would prohibit a person from
owning or occupying property based on color
f. The restrictive racially-based restrictive covenant are not, on their face, invalid under 14 th Am., but
while private parties may voluntarily abide by the terms of such a restrictive covenant, they may not
seek judicial enforcement of such a covenant because enforcement by the courts would constitute state
action – since state action would necessarily be discriminatory, the enforcement of a racially based
restrictive covenant in a state court would violate EPC
g. In sum, state court could not constitutionally prevent the sale of real property to blacks even if that property
is covered by a racially restrictive covenant. Standing alone, racially restrictive covenants violate no rights.
However, their enforcement by state court injunctions constitute state action in violation of the 14 th Am.

VII. Edmonson v. Leesville Concrete Co. (1991)

a. Issue: must decide whether a private litigant in a civil case may use preemptory challenges to exclude jurors
on account of their race
b. Precedent: KY v. Batson made it illegal to strike a juror on basis of race; Powers v. Ohio– even a white
defendant would have basis to challenge pre-emp.

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c. Questions to ask:
i. (1) Govt entanglement idea – ask whether claimed institutional deprivation resulted from the exercise
of a right of privilege having its source in state authority
ii. (2) Whether private party charged w/ deprivation could be described as a state action (factors for
consideration)
1. (a) the extent to which the actor relies on governmental assistance and benefits
2. (b) whether the actor is performing a traditional governmental function
a. here, traditional govt function is evident, the preemptory challenge is used in
selecting an entity that is a quintessential govt’l body, having no attributes of a
private actor
b. when private litigants participate in the selection of jurors, they serve an important
function w/in the govt and act w/ its substantial assistance
3. (c) whether the injury caused in aggravated in a unique way by the incidents of governmental
authority
d. Holding: Recognizing the impropriety of racial bias in the courtroom, we hold the race-based exclusion
violates the equal protection rights of the challenged jurors
e. Rule: Although private use of state-sanctioned private remedies or procedures does not rise, by itself, to the
level of state action, our cases have found state action when private parties make extensive use of state
procedures w/ the over significant assistance of state officials – cannot be disputed that w/o the overt,
significant participation of the govt, the preemptory challenge system, as well as the jury trial system, which
is a part, cimply could not exist
f. Note: Racial discrimination, though invidious in all contexts, violates the constitution only when it may be
attributed to state action
g. O’Connor Dissent: distinguishes Shelley – says this is private action and not govt action – disagrees w/
application of test, not state itself
h. Scalia Dissent: argues political correctness; hurting minority litigants/Hispanics and criminal defendants
won’t be able to strike white people for a diverse outcome

VIII. DeShaney v. Winnebago Cty Dept. of Social Services (1989)

a. Facts: Petitioners believed that the case was that he was getting abused but they did not act to remove him
from the father’s custody – sued claiming their failure to act deprived him of his liberty in violation of the
DPC – precisely by failing to intervene to protect him against a risk of violence
b. Holding: A state or county agency does not have an obligation under the due process clause of the 14 th Am.
to prevent child abuse when the child is
i. in parental, not agency custody, and
ii. the state did not create the danger of abuse or increase the child’s vulnerability to abuse
iii. NOTHING in the DPC requires states to protect life, liberty, and property of its citizens against
invasion by private actors
c. **Due process protects against state action only, and it was DeShaney who abused Joshua, the state actor
(Dept of Social Services) was not responsible
d. Rule: failure to prevent child abuse by a custodial parent does not violate the child’s right to liberty for
purposes of 14th Am.
e. The DPC does not impose a special duty on the state to provide services to the public for protection
against private actors if the state did not create those harms.
f. While the clause forbids the state itself to deprive individuals of life, liberty, and property w/o due process of
law, its language cannot fairly be read to impose an affirmative obligation on the state to ensure that those
interests do not come to harm through other means – in SDP analysis, it is the state’s affirmative act of
restraining the individual’s freedom that is the deprivation of liberty triggering the DPC
g. Brennan Dissent:
i. Recognizes that the state’s knowledge of an individual’s predicament and its expressions of intent to
help him can amount to a limitation on his freedom to act on his own behalf, or to obtain help from
others

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SUBSTANTIVE DUE PROCESS – LOCHNER, ITS DEMISE, & POSSIBLE REVIVAL

I. Due Process Clauses:

 14th Amendment
 “nor shall any state deprive any person of life, liberty, or property, without due process of law”
 5th Amendment:
 “no personal shall … be deprived of life, liberty, or property, without due process of law”

II. Distinction between Procedural and Substantive Due Process

 PDP - Adequacy of government’s procedures before depriving a person of life, liberty, or property
 SDP - Adequacy of government’s reason/justification for depriving persons of life, liberty, property

III. Pierce v. Society of Sisters

 Facts: OR’s Act requires every parent/guardian to send him to a public school and failing to do so is a
misdemeanor
 Holding: Act unreasonably interferes w/ the liberty of parents and guardians to direct the upbringing and
education of children under their control
 Rule: 14TH Am. provides a liberty interest in a parent’s or guardian’s right to decide the mode in which their
children are educated. State’s may not usurp this right when the questioned legislation does not reasonably
relate to viable state interst.

IV. Substantive Due Process – Protection of Economic Liberty

 The Lochner Era: 1887 – 1937 (in the old days, court is using SDP to protect economic rights)
 This is the same era where the the court is narrowly using the commerce clause
1. Striking down everything – if the state wants to do it, they can’t because no SDP, if
Congress wants to, no bc 10th Am.
 Due Process liberty encompasses freedom of contract
 Scrutiny of state purpose – police power
 Scrutiny of means-ends connection
 Critique and defense of Lochnerism
1. Good: practicing trade/profession is a good thing (autonomy); anti-paternalism; and
freedom of contract should be individual right
2. Bad: excessive judicial activism (unelected judges striking down laws passed by elected
officials by the people); court enforcing wrong values (economic contract) – more
normative
 The Demise of Lochner: West Coast Hotel v. Parrish (1937)
 Punitive Damages Restrictions – the possible revival of economic substantive due process (State Farm,
Philip Morris)

V. Three Important Decisions of Lochner-era Decisions

 The “liberty” of the DP clause protects substantive rights, especially freedom of contract
 The states may only infringe these rights for certain purposes – “police” purposes which include only
protecting the public health, safety, and morals
 Even if state has legitimate purpose, how well the law legitimizes that purpose (where fit comes in) –
is this law necessary to achieve the purpose (is it narrowly tailored)
 Even if the State articulates a permissible police purpose, it may only infringe these rights if necessary to
achieve the purpose
 IN this period, court made it a common practice to strike down economic regulations adopted by a state
based on const’s own notions of the most appropriate means for state to implement its considered
policies by using its interpretation of SDP to strike down laws hwld to be infringing on economic liberty
or private contract rights

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VI. Lochner v. New York (1905)

 State law at issue – hours regulations for bakers
 Holding: Statute interferes w/ right of contract b/w employer/employee – the general right to make a contract
in relation to his business is part of the liberty of the individual protected by the 14 th Am.
 Right to purchase or to sell labor is part of the liberty protected by this amendment
 Purpose of the law?
 Protecting health of workers and people to ensure bread is healthy
 Legislatures think they need to step in because bakers can’t protect themselves – bc imbalance in
bargaining power and workers won’t be able to protect their interest
 Why is this purpose insufficient?
 Protecting public health courts, protecting individual health of bakers, NOT going to count BUT note
sometimes women and children need state help
 There are certain powers – termed police powers, related to safety, health, morals, and general
welfare of public that are in the sovereignty of each state and here is not a valid exercise of
police power
 Govt thinks the law involves neither safety, morals, nor welfare of public and interest of public is not
the slightest degree affected by such an act
 What standard of review is the court applying to this regulation?
 The court says the state’s reason has to be good enough so we’re not doing rational basis review –
court is employing heightened scrutiny(H.S.): 2 prongs of H.S. –
1. (1) State interest (stronger state interest, deference by courts) has to be police power
1. here, court doesn’t buy baker’s health so fails prong 1; buy the health argument
so passes prong 1, but fails prong 2 bc this does not further the purpose
2. (2) Fit (means and function) – given the interest, how well does the law fit to carry out its
function
 “The mere assertion that the subject relates, though but in a remote degree, to the public health, does
not necessarily render the enactment valid – the act must have a more direct relation, before an act
can be held to be valid which interferes w/ the general right of an individual to be free in his person
and in his power to contract in relation to his own labor”

VII. Critique of Lochner

 The const. says nothing about theories of economics
 State had legitimate justifications for regulation
 There is no private sphere of workers-management liberty
 Court took as a given an inappropriate common law baseline

VIII. Defense of Lochner

 Decision was good policy, as least for consumers of baked goods
 Statute was not a health measure at all, nor the result of bargaining inequality; it was rent-seeking by big
unions and large employees
 There was more constitutional text (if you include contract and takings clause) than w/ other substantive due
process interpretations

IX. West Coast Hotel Co. v. Parrish (1937) – ended Lochner era
 Possible reasons for demise of Lochner:
 Rejected because economic downfall, so hard to support the idea that we don’t need to equalize
bargaining power
 Political pressure on courts (ie. FDR threatening to add justices, forcing court to shift)
 Intellectual pressures (rise of legal realist)  rejected notion of law as a science and saying no,
judges and con law is political so legal realism = no

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 State law at issue: Washington minimum wage law for women and minors – the law authorizes the fixing of
min wage for women and minors (sued to recover wages paid to her vs the fixed min. wage pursuant to the
law)
 Precedent: Adkins v. Children’s Hospital (1923)
 Federal law that was upheld under 5th Am. and this was overruled and thus Lochner refused
 Rejection of freedom of contract as liberty protected by the DP clause
 in dealing w/ the relation of employer and employee, the legislature has necessarily a wide field
of discretion in order that there may be suitable protection of health and safety, and that peace
and good order may be promoted through regulations designed to insure wholesome conditions
of work and freedom from oppression
 Expansion of legitimate state purposes for economic regulation
 Depression (economic conditions that have intervened)
 Liberty is not limitless
 Deferential review of means-ends relationship (rational basis review)
 Argument that the legislation in question constitutes an arbitrary discrimination, because it does not extend to
men, is unavailing:
 The legislature is free to recognize degrees of harm and it may confine its restrictions to those classes
of cases where the need is deemed to be clearest
 If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are
other instances to which it might have applied
 Holding: WA’s min wage law for women was a valid regulation of the right to contract freely bc of the
state’s special interest in protecting their health and ability to support themselves (Adkins overturned)
 Reasoning: Court ruled that the constitution permitted the restriction of liberty of contract by state law where
such restriction protected the community, health, and safety, or vulnerable grounds

X. State Farm v. Campbell (2003)

 Partial rebirth of economic substantive DP?
 Economic revival of S.D.P
 What is the test that the court applies to punitive damages awards by state? Is this substantive DP? Three-part
test to see whether punitive damages are too high –
 (1) how bad is defendant’s conduct?
 (2) ratio b/w compensation and punitive damage
 (3) what are other punishments
 Justifications offered by the Court for invalidating excessive punitive damage awards
 Here, there’s horizontal federalism going on
 Dissenters say, this is SDP
 Rule: The DPC prohibits imposition of grossly excessive or arbitrary punishments on tortfeasors; reason is
that elementary notions of fairness enshrined in con. Jurisprudence dictate that a person receive fair notice not
only of the conduct that will subject him to punishment, but also the severity of the penalty that a state may
impose

XI. Other Constitutional Protections for Economic Liberties

 The Contracts Clause, Art. I, §10, cl. 1: “No state shall [pass any law] impairing the Obligation of Contracts”
 Long held to apply to existing contracts, NOT future contracts
 The Takings Clause, 5th Amend: “Nor shall private property be taken for public use, without just
compensation”

SUBSTANTIVE DUE PROCESS – PERSONAL RIGHTS & PRIVACY

XII. Incorporation of the Bill of Rights: outline of debate; rights that have been incorporated; issue of
unenumerated rights – McDonald v. Chicago
 Meaning of “incorporation” and “reverse incorporation”
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 Incorporated means BOR apply to states if they’re incorporated in 14 th Am. of DP clause

1. The amendments that are NOT selectively incorporated are 2 nd, 3rd, 5th (requirement of
grand jury), and 7th right to jury trial in civil cases
 Does “liberty” in 14th DP include all BOR? Black says yes; others say no, only includes the most
important ones
 Palco v. CT
1. test laid out over here and remains the test by Justice Cardozo – says 14 th Am. protection
of liberty includes fundamental rights – fundamental that “so rooted in our hx and
implicit in concept of liberty”
2. so non-enumerated rights may still be protected (i.e. privacy, etc.)
3. Only those portions of the BOR implicit in the concept of ordered liberty, those
matters so rooted in the traditions and conscience of our people as to be ranked as
fundamental were part of the due process limiting state power
 reverse incorporation:
1. there’s no EP clause in the 5th Am. (it’s in the 14th) – it says “no state shall” – so what if
federal does it? Rev. inc. means it’ll apply to fed. Govt; the mechanism of incorporation
is the 5th Am. [EP clause from 14th Am. gets incorporation in the 5th Am. DP clause)
2. **because the 5th Am. does not say anything about matters contained in the BOR
(freedom of speech, religion, right to bear arms, jury trials etc.), so the court began
incorporating the various BOR into the DPC of the 14th Am.**
 Selective v. complete incorporation debate – McDonald
 Test for whether a particular right is part of the “liberty” protected by the DP clause
 What about rights not mentioned in the Bill of Rights of the original Constitution? The issue of non-textual,
unenumerated rights

XIII. McDonald v. Chicago (2010)

 Focusing on incorporation discussion
 Precedent: DC v. Heller – held that 2nd Am. protects right to keep and bear arms for purpose of self-defense,
and we struck down a DC law that banned the possession of handguns in the home – Chicago now has a
similar law
 Holding: 2nd Am. incorporated in 14th Am. DPC – states must recognize the right of the people to bear arms
 Right to self defense is a fundamental right and deeply rooted
 Proper Test for Incorporation:
 Whether BOR guarantee is fundamental to our system of ordered liberty (Palko)
 Thomas Concurrence: Thinks 2nd Am. is definitely incorporated, but via the P/I clause bc right to keep/bear
arms is a privilege of American citizenship

XIV. Levels of scrutiny under the EP & DP clauses and Carolene Products footnote 4
 Origin of framework and “tiers” of review: US v. Carolene Products (1938), FN4
 When will laws trigger “more exacting judicial scrutiny”?
 **Where the court finds that a particular liberty interest is “fundamental” and therefore protected by
(Substantive) DP against state deprivations, it applies strict scrutiny! **
 court says, most laws will get rational basis review under DP, but some laws will trigger heightened scrutiny
– ie. when ct finds liberty interest as fundamental – strict scrutiny means state has to show compelling govt
interest and its narrowly tailored to further that interest

***ORIGIN OF UNENUMERATED PERSONAL RIGHTS – RIGHTS MENTIONED NEITHER IN BOR NOR

14TH AM.***

XV. Buck V. Bell (1927)

 Holding: a state statute permitting compulsory sterilization of the unfit including the intellectually disabled
‘for the protection and health of the state’ did not violate the DPC of 14 th Am. – seems to do rational basis
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XVI. The Right to Privacy – Griswold v. Connecticut (1965)

 Background Supreme court case law:
 Myers v. Nebraska (1923)
1. Right of parents to make decisions regarding the upbringing of their children: Court
struck down under DP clause a statute that prohibited teaching in any language other than
English in the public schools
 Pierce v. Society of the Sisters (1925)
1. Right to make parenting decisions regarding upbringing of children: Court struck down
under DP clause a state law that required children to attend public schools
 Skinner v. Oklahoma (1942)
1. Right to procreate: court struck down a forced sterilization law under the EP clause,
implicitly overruling Buck v. Bell (1927)
 State law at issue: CT statute that makes it a crime to use contraceptives and to counsel, aid or abet a person
to do so
 *The First Amendment has a penumbra where privacy is protected from governmental intrusion. In like
context, we have protected forms of ‘association’ that are not political in the customary sense, but pertain to
the social, legal, and economic benefit of the members*
 together the 1st, 3rd, 4th, and 9th amendments create a new constitutional right – the right to privacy in
marital relations (ie. various guarantees w/in BOR create penumbras, or zones, that establish a right to
privacy)
 Concurrence:
 To hold that a right so basic and fundamental and so deep-rooted in our society as the right to
privacy in marriage may be infringed bc that right is not guaranteed in so many words by the
first 8 amendments is to ignore the 9th Am. and give it no effect whatsoever
 Ninth Amendment- Rights Retained by the People: the enumeration in the constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.
 Believes right to privacy in marital relation is fundamental and basic and a personal right retained by
people
 “we deal with a right of privacy older than the BOR – older than our political parties, older than our
school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate
to the degree or being sacred”

SUBSTANTIVE DUE PROCESS – ABORTION

I. Precedent Leading to Roe v. Wade:

 Right to procreate as a fundamental right: Skinner v. Oklahoma (1942)
 Right to privacy as a fundamental right and right to access contraceptives/right to control reproduction:
Griswold (1965); Eisenstadt (1972)
 “If the right of privacy means anything, it is the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether
to bear or beget a child” (Eisenstadt)

II. Roe v. Wade (1973)

 Law at issue: TX statute makes it crime to procure abortion except w/ respect of saving life of mother – sued
by saying the statute abridged her right pf personal privacy
 Court rationale: Right of privacy is broad enough to encompass a woman’s decision whether or not to
terminate her pregnancy but limitations
 A state may regulate in areas protected by that right if appropriate – if they properly assert important interests
in safeguarding health, maintaining medical standards, and in protecting potential life
 Two Potential Compelling Interests here:
 Important and legitimate interest in preserving and protecting the health of the mother; and
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1. Here, the right gets compelling at the end of first trimester (in light present medical
knowledge) – from and after this point, a state may regulate the abortion procedure to the
extent that the regulation reasonably relates to preservation and protection of maternal
health (ie. the state can possibly regulate via: qualifications of the person who is to
perform the abortion; the licensure of that person; as to the facility in which the
procedure is to be performed – hospital or clinic; licensing of facility, etc)
 Protecting potentiality of human life
1. Here, the compelling point is at viability bc at this point, the fetus presumably has the
capability of meaningful life outside the mother’s womb so regulation protective of fetal
life after viability has logical and biological justifications

III. From Roe to Casey

 Changes on Court 1973  1989  1992
 Webster v. Reproductive Health Services (1989) – Missouri law declared that life begins at conception,
prohibited use of govt funds or facilities for performing abortions or encouraging or advising abortion,
required viability test before abortion done after 20 weeks.
 No majority opinion, but Court upheld the law
 Dissenters expressed grave fears about continued validity of Roe v. Wade
 By 1992, when Casey is decided, Brennan and Marshall have been replaced by Souter and Thomas

IV. Planned Parenthood v. Casey (1992)

 State law at issue: PA law imposing several restrictions on abortion but not a prohibition
 “Undue Burden Test” announced (this test is the appropriate means of reconciling the State’s interest w/ the
woman’s constitutionally protected liberty)
 a statute is invalid if it has the purpose of or effect of placing a substantial obstacle in the path
of a woman seeking an abortion of a nonviable fetus
 note: measures designed to advance the interest in potential life will not be invalidated as long as
their purpose is to persuade the woman to choose childbirth over abortion but w/o undue burden on
the right
 Holdings with respect to specific provisions of the PA law
 Medical emergency
1. As w/ any medical procedure, the state may enact regulations to further the health or
safety of a woman seeking an abortion but unnecessary health regulations that have the
purpose or effect of presenting a substantial obstacle to a woman seeking an abortion
impose an undue burden on the right
2. No undue burden here
 Informed consent and 24-hour waiting period
1. Valid bc facilitates wise exercise of a woman’s right to an abortion so not an undue
burden (before, under strict scrutiny, struck down) – says truthful, non-misleading
information is not an undue burden
 Spousal notification
1. No – husband’s interest in life of child his wife is carrying does not permit the state to
empower him w/ authority over his wife – fear of abuse, etc.
 Parental consent for a minor to obtain abortion
1. Valid
 Recordkeeping and reporting
1. Valid bc relate to health and they make abortions more difficult
 Reaffirms some of Roe not all:
 Recognition of right of woman to choose to have an abortion before viability and to obtain it w/o
undue interference from the state
1. Draws line at viability so before that time, the woman has a right to choose to terminate
her pregnancy
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 Confirmation of state’s power to restrict abortions after fetal viability, if the law contains exceptions
for pregnancies which endanger the woman’s life or health
 Principle that the state has legitimate interests from the outset of the pregnancy in protecting the
health of the woman and the life of the fetus that may become a child
 Following to viability, the state in promoting its interest in the potentiality of human life may, if it
chooses, regulate and even forbid, abortion except where it is necessary, in appropriate medical
judgment, for preservation of life or health of mother
 Note that the constitutional protection of the woman’s decision to terminate her pregnancy derives from DPC
of 14th Am.
 REJECTS trimester framework

V. Stenberg v. Carhart (2000)

 State law at issue: Nebraska prohibition of ‘partial birth abortion’ except where necessary to save the life of
the mother
 Held: (5-4) law is unconstitutional – it poses an undue burden on the right to choose to terminate a pregnancy;
first time that a majority of the Court used the undue burden test for abortion restrictions.
 No exception for preservation of the health of the mother
 Imposes undue burden on women’s ability to choose a D&E procedure, thus unduly burdening the
right to choose abortion itself
 Reliance on factual findings in lower court that banning the procedure will result in a health risk for
some women

VI. Gonzales v. Carhart (2007)

 Validity of partial-birth abortion act – punishes knowingly performing partial birth abortion where the person
first delivers a living fetus (act does NOT restrict abortion procedure involving delivery of expired fetus)
 Issue: does the act pose an undue burden as a facial matter – whether imposes substantial obstacle to late-
term, but pre-viability abortions – no
 Court says the act expresses respect for dignity of human life bc it bans a method in which a fetus is killed
just inches before completion of birth process – the federal act is different than the NB law because has more
of a scienter requirement and overt act
 Where the state has a rational basis to act and does not impose an undue burden, the state may use its
regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate
interests in regulating the medical profession in order to promote respect for life, including life of the
unborn
 **Medical uncertainty over whether the Act’s prohibition creates significant health risks provides a sufficient
basis to conclude in this facial attack that the act does not impose an undue burden**
 NOW, the two interests don’t have to be compelling (retained the rule that after viability, can ban abortion,
before that can prohibit abortion from beginning if it taking case of its interests, BUT not in a way that is an
undue burden on women

SUBSTANTIVE DUE PROCESS – FAMILY AND INTIMATE RELATIONS

I. Background
 Michael v. Gerald (1989) – upheld CA statute that provided for an irrebuttable presumption that the child
born in wedlock is the child of the husband
 Scalia (plurality opinion): must examine Nation’s tradition and history at the most specific level of
abstraction possible
 Brennan: traditions should be examined at a more general level of abstraction
 Example: Bowers v. Hardwick (Scalia approach) compared to Lawrence v. Texas (Brennan approach)

II. Moore v. City of East Cleveland (1977)

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 State Law at Issue: housing ordinance that limits occupancy of a dwelling to members of a single family,
defining “family” to prohibit grandmother living w/ two grandsons who are cousins
 Precedent: Belle Terre (1974) (applying rational basis review to uphold ordinance that limited unrelated
individuals from sharing a house)
 – Requirement that govts chosen means must rationally further some legitimate state purpose UNLESS
fundamental right. Here, when a city undertakes regulation of the family, the usual judicial deference to the
legislature is inappropriate
 “This court has long recognized the freedom of personal choice in matters of marriage and family life is
on of the liberties protected by the DPC”
 –Private realm of family which the state cannot enter
 Govt Interests Advanced: preventing overcrowded, minimizing traffic and parking congestion, avoiding
undue financial burden, etc. – these are legitimate BUT not narrowly tailored
 **constitution protects sanctity of family because the institution of family is deeply rooted in this
nation’s hx and tradition

III. Troxel v. Granville (2000)

 State Law at Issue: WA law permits any person to petition a court for visitation and authorizes court to grant
visitation whenever it ‘may serve the best interest of the child’
 no presumption of parents’ wishes
 “the liberty interest in issue – the interest of parents in the care, custody, and control of their children,
is perhaps the oldest of fundamental liberty interests recognized by the court”
 Holding: the custody, care, and nurture of the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither supply nor hinder – a law that allows anyone
to petition a court for child visitation rights over parental objections infringes on parents fundamental right
to rear their children
 Courts say its fundamental right so seem to say to apply strict , but seems to be applying a balancing test

IV. Lawrence v. Texas (2003)

 Background: Bowers v. Hardwick (1986)
 Court now believes that the dissent in this case should have controlled and is such is overruled
 Right framed here vs. in Bowers: personal autonomy and consensual activity (Lawrence) vs.
homosexual sodomy (Bowers)
 State law: TX law criminalizes private, consensual sodomy b/w two persons of the same sex
 Court’s definition of the liberty interest – contrast w/ definition of right at issue in Bowers
 Awareness that liberty gives substantial protection to an adult person in deciding how to conduct their private
lives in matters pertaining to sex
 The fact that the State has traditionally viewed a particular practice as immoral is not a sufficient
reason for upholding a law prohibiting the practice – neither history nor tradition could save a law
prohibiting miscegenation from constitutional attack
 Definition of liberty right here: individual decisions by married persons, concerning intimacies of their
physical relationship, even when not intended to produce offspring, are a form of liberty protected by DPC
AND this protection extends to intimate choices by unmarried as well as married persons (in Hardwick,
sodomy was between married couples)
 **seem to be applying rational basis with bite*
 Immorality is not a legitimate state interest, does not count, it’s not enough
 O’Connor Concurrence:
 Bases the conclusion off the EPC and not the DPC
 Says this law desires to harm a politically unpopular group and you need a rational basis review to
strike down laws under EPC
 The act specifically discriminates against the homos criminalizing sodomy b/w same sex partners
 Note: so under the EPC does moral disapproval count as a legitimate state interest to justify itself a
statute that bans homosexual sodomy – but not heterosexual sodomy – NO
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 Moral disapproval of this group like a bare desire to harm the group, is an interest that is
insufficient to satisfy rational basis review under DPC
 Scalia dissent: implications of the decision for other laws regulating sexual consensual sexual activity,
marriage laws
 Says, EVEN if TX law does deny EP to homos, the denial does not need to be justified by anything
more than a rational basis, which our cases show is satisfied by enforcement of traditional notions of
sexual morality
 Says that if the court was not prepared to validate laws based on moral choices like it did in
Hardwick, then state laws against bigamy, same sex marriage, adult incest, prostitution, masturbation,
etc would not prove sustainable

V. Obergefell v. Hodges (2015)

 HISTORY AND TRADITION GUIDE AND DISCIPLINE THE INQUIRY BUT DO NOT SET ITS
OUTER BOUNDARIES
 When new insight reveals discord b/w const’s central protections and a received legal stricture, a
claim to liberty must be addressed
 Holding: a state definition of marriage is only b/w two people of opposite sex violates the DPC bc it denies
gay and lesbian people “the right to marry or have their marriages, lawfully performed in another state, given
full recognition”
 Court has reiterated that right to marry is fundamental – and 4 reasons why marriage is fundamental
and should apply w/ equal force to same-sex couples:
 The right to personal choice regarding marriage is inherent in the concept of individual autonomy (“it
would be contradictory to recognize a right of privacy w/ respect to other matter of family life and not
w/ respect to the decision to enter the relationship that is the foundation of the family in our society”)
 Right to marry is fundamental bc supports a two-person union unlike any other in its importance to
the committed individuals
 Right to marry is fundamental bc it safeguards children and families and draws meaning from related
rights of childbearing, procreation, and education – w/o recognition, stability, and predictability
marriage offers, their children suffer stigma of knowing their families are somehow lesser
 This court’s cases and nation’s traditions make clear that marriage is a keystone of our social order
 The right to marry is fundamental as a matter of hx and tradition, but rights come not from ancient
sources alone – they rise too, from a better-informed understanding of how constitutional imperatives
define a liberty that remains urgent in our own era
 The right of same-sex couples to marry that is part of the liberty promised by the 14 th Am. is derived
too, from that Am’s guarantee of EP of laws
 Basically, Gluckesburg does not apply here. (rejects careful description of the right)

SUBSTANTIVE DUE PROCESS – RIGHT TO DIE; SUBSTANCE, PROCEDURE, AND METHODOLOGY

I. Right to die and Right to Prove Innocence

 Right to refuse medical treatment: Cruzan
 Right to commit suicide/physician-assisted suicide: Washington v. Glucksberg
 Status and legitimacy of generalized state interest in protecting/defining human life
 Osborne and the liberty interest is not being incarcerated/executed for a crime for which one is “actually
innocent”
 SDP analysis as set forth in Glucksberg, Obergefell, Din
 Continuing debate over proper level of abstraction at which to describe the right and the relevant tradition
 Continuing debate over the Court’s proper role in finding unenumerated Constitutional rights

II. Cruzan v. Director, Missouri Dept’ of Health (1990) [seem to be doing balancing test again]
 State Law: MO rule of decision that requires ‘clear and convincing’ evidence of incompetent’s wishes before
withdrawal of treatment permitted
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 State interest: preservation of human life and protection against abuse

 Issue: Whether Cruzan has a right under the Const. which would require the hospital to withdraw life-
sustaining treatment from her?
 Right: Patient generally possesses the right not to consent, ie. the right to refuse treatment
 Principle that a competent person has a constitutionally protected liberty interest in refusing unwanted
medical treatment may be inferred from our prior decisions
 BUT determining that a person has a liberty interest does not end the inquiry – do determine whether const.
rights have been violated, have to balance liberty interests against relevant state interests
 Assume const. would grant a competent person a constitutionally protected right to refuse lifesaving
hydration and nutrition
 Petitioners Asserts – that incompetent persons should possess the same right – no an incompetent
person is unable to make an informed and voluntary choice to exercise a right to refuse treatment of
any other right – such a right must be exercised for her by a surrogate
 Const. doe not forbid the establishment of the procedural requirement of evidence of the incompetent’s
wishes as to withdrawal of treatment by clear and convincing evidence
 Not all incompetent patients will have loved ones available to serve as surrogate decision makers.
And even where family members ARE present, there will of course be some unfortunate situations in
which family members will not act to protect a patient, and a state is entitled to guard against
potential abuses in such situations (designed to preserve human life)

III. Permissibility of State Advancing its Moral Views

 E.g., Casey, Cruzen, Lawrence
 Three general approaches:
 Entirely permissible for State to do this through law (e.g. Scalia, Thomas, Rehnquist)
1. States have general police power; Govt has protection under enumerated powers so can
trump interest on other side
 Impermissible for state to advance a moral agenda in the face of conflict w/ individual fundamental
liberty interests (eg. Brennan, Marshall, Blackmun)
 Middle position: state has legitimate interests rooted in morality, but also accepts unenumerated
individual fundamental rights can trump these state interests (balancing approach, e.g. “undue
burden” standard) (e.g. O’Connor)

IV. Washington v. Glucksberg (1997)

 State law at issue: WA criminalizes ‘promoting a suicide attempt’ (ie. physician-assisted suicide) – this
prohibition against causing or aiding suicide does not offend 14th Am.
 Respondent physicians said they sometimes treat terminally ill suffering patients and if it wasn’t for
the ban they would assist the patients end their lives – nope sorry
 Respondents say the protected right is “personal choice by mentally competent, terminally ill adult to
commit physician-assisted suicide”
 Level of generality as right framed:
 Majority: right to assisted suicide – rejected using Palko
 Dissent: frame the right more broadly (i.e. right to control death w/ dignity and thus more likely to
pass Palko)
 Steps in Analysis:
 (1) As in all DP cases, examine Nation’s history, legal traditions, and practices
1. we know, state assisted suicide bans are expressions of state’s commitment to protection
and preservation of all human life
2. our nation’s hx, legal traditions, and practices provide the crucial guideposts for
responsible decision-making, that direct and restrain our exposition of the DPC
 DUE PROCESS ANALYSIS
1. (2) First, we know DPC protects those fundamental rights and liberties which are,
objectively, “deeply rooted in this nation’s history and traditions and implicit in the
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concept of ordered liberty’ such that ‘neither liberty nor justice would exist if they were
sacrificed’
2. (3) A careful description of the asserted fundamental liberty interest
1. Appellate Court: described whether there is a liberty interest in determining
time and manner of one’s death, ie. is there a right to die? No; We frame the
interest at stake more carefully
2. Example: Although Cruzan was a right to die, we described interest more
carefully: we assumed the const. granted competent persons a constitutionally
protected right to refuse lifesaving hydration and nutrition
3. HERE, The statute prohibits ‘aiding another person to attempt suicide and thus
question before us is ‘whether the liberty specially protected by the DPC includes
a right to commit suicide which itself includes a right to assistance in doing so’
so the overall question is whether the protections of the DPC include a right
to commit suicide w/ another’s assistance
 Petitioners reliance on Cruzan in support stating that there, we acknowledged competent, dying persons w/
having a right to direct the removal of life-sustaining medical treatment and thus hasten death, and so the
constitutional principle behind recognizing the patient’s liberty to direct the withdrawal of artificial life
support applies at least as strongly to the choice to hasten impending death by consuming lethal medication:
NO
 In Cruzan the right to refuse nutrition came from the C/L rule that forced medication was a battery,
and the long legal tradition protecting the decision to refuse unwanted medical treatment was
consistent w/ nation’s hx and constitutional traditions
 Note: the decision to commit suicide w/ the assistance of another may be just as personal and
profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal
protection
 Petitioners reliance on Casey: they said the DPC protected certain fundamental rights and personal decisions
relating to marriage, procreation, contraception, family relationships, child rearing and education and noted
that many of those rights and liberties involve the most intimate and personal choices a person may make in a
lifetime
 However, just because many rights and liberties are protected by the DPC that are sound in personal
autonomy, does not warrant the sweeping conclusion that any and all important, intimate, and
personal decisions are so protected
 The history of the law’s treatment to assisted suicide in this country has been and continues to be one of
rejection of nearly all efforts to permit it
 **Our decisions lead us to conclude that the asserted ‘right’ to assistance in committing suicide is not a
fundamental liberty interest protected by the DPC
 SECOND STEP: (since NOT fundamental, do rational basis)
 The ban on assisted-suicide also has to be rationally related to a legitimate govt interest, which here it
was:
1. WA has an unqualified interest in preservation of human life (research indicates that
people who request physician-assisted suicide withdraw that request if their depression
and pain are treated)
2. State has interest in protected integrity and ethics of medical profession
3. State has interest in protected vulnerable groups, including the poor, elderly, and disabled
persons from abuse, neglect, and mistake (ie. medical malpractice)
4. State may fear that permitted assisted suicide will start it down the path to voluntary and
involuntary euthanasia

V. DA’s Office v. Osborne (2009)

 Procedural v. Substantive DP
 Facts: Osborne proposes recognition of a freestanding and far-reaching constitutional right of access to DNA
testing (a new type of evidence)

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 No such right: Osborne does have a liberty interest but does not have the same liberty interest as a free man –
once a defendant has been afforded a fair trial and convicted of offense for which he was charged,
presumption of innocence disappears
 “Freestanding right to DNA evidence untethered from liberty interests” not a right
 There is no long hx of such a right, and the mere novelty of such a claim is reason enough to
doubt that SDP sustains it
 If the court establishes such a right, then they are acting as policymakers
 Stevens Dissent:
 Court is being reluctant to expand the concept of SDP by observing there is no long hx of post-
conviction access to DNA evidence – well of course courts have not historically granted persons
access to physical evidence for DNA testing

VI. Kerry v. Din (2015) – long hx of deference to legislature in immigration and naturalization
 Facts: Din a citizen and resident of U.S.; her husband Afghani citizen and former Taliban – Din alleges that
govt’s denial of her husband’s visa app violated her const. rights when w/o adequate explanation of the reason
for the visa denial, it deprived her of her constitutional right to live in the U.S. with her spouse
 There is no constitutional right to live with one’s spouse
 Note: Din does not argue that the govt has violated this absolute prohibition of the substantive component of
the DPC, bc it is obvious that a law barring aliens engage in terrorist activities from entering this country is
narrowly tailored to serve a compelling state interest.
 She nevertheless insists that, bc enforcement of the law effects her enjoyment of an implied
fundamental liberty, the govt must provide her a full battery of procedural DP protections
 Nothing in case law establishes a free-floating and categorical liberty interest in a marriage
 Even if we might imply a liberty interest in marriage generally speaking, that must give way when
there is a tradition denying the specific application of that general interest
 Thus Glucksberg rejected a claimed liberty interest in "self sovereignty" and "personal autonomy"
that extended to assisted suicide when there was a longstanding tradition of outlawing the practice of
suicide
 Here a long practice of regulating spousal immigration precludes Din's claim that the denial of her
husband's app has deprived her of a fundamental liberty interest
 Important Notes:
 Plurality: “We have required ‘a careful description of the asserted fundamental liberty interest,’ as
well as a demonstration that the interest is ‘objectively, deeply rooted in this Nation’s hx and
tradition…” (quoting Glucksberg)
 Court in Obergefell (11 days later): “the respondents refer to Glucksberg, which called for a ‘careful
description’ of fundamental rights…Glucksberg did insist that liberty under the DPC must be defined
in a most circumscribed manner, w/ central reference to specific historical practices. Yet while that
approach may have been appropriate for the asserted right there involved (physician-assisted suicide),
it is inconsistent w/ the approach this court has used in discussing other fundamental rights, including
marriage and intimacy”
 Obergefell says Glucksburg only applies to physician-assisted suicide, NOT marriage and intimacy

GENERAL DUE PROCESS FRAMEWORK

I. Define liberty interest at stake (ie. what right is it restricting?)

II. Ask whether that interest is “fundamental” under the DP clause (Palko)
III. Ask whether the govt act infringes the interest
IV. If the right is fundamental and the govt action infringes, apply strict scrutiny
 Whether the state has a compelling interest
 Whether the regulation is narrowly tailored to further the interest
V. If the interest is not fundamental, apply rational basis scrutiny
 Whether the government has a legitimate interest
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 Whether the regulation is rationally related to the interest

VI. NOTE special case of abortion – “undue burden” test
**applies to 5th and 14th Am. DP clauses**

EQUAL PROTECTION OF THE LAWS – INTRODUCTION; RATIONAL BASIS REVIEW

(note EPC only applies to state action)

I. Tiers of Scrutiny
 Rational Basis
 Classification is rationally related to a legitimate governmental interest
 Rational Basis Review w/ Bite
 In some cases, when the disadvantaged group is sympathetic one and the individual interest affected
is especially strong
 **sometimes where no suspect classification or fundamental right was involved: in all those cases
where the law was struck down – state’s asserted interest are compared to the strong individual
interests at stake
 Intermediate
 Classification is closely related to an important governmental interest
 When court is dealing with gender classifications
 Strict Scrutiny
 Classification fails unless it is narrowly tailored to further a compelling governmental interest
 Use when dealing with ‘suspect classification,’ such as race, or a “fundamental right,” such as the
right to vote

II. Railway Express Agency v. People of the State of NY (1949) – Traditional Rational Basis Review
 Upheld an ordinance prohibiting advertising on the sides of rented vehicles while permitting
advertising on the sides of vehicles for the vehicle owner’s own products
 Reasoning: Advertising on vehicles using streets of NYC constitutes a distraction to vehicle drivers and to
pedestrians and therefore affects the safety of the public in the use of the streets
 Rational basis: “We do not sit to weigh evidence on the due process issue in order to determine whether the
regulation is sound or appropriate; nor is it our function to pass judgment on its wisdom
 “We would be trespassing on one of the most intensely local and specialized of all municipal
problems if we held that this regulation had no relation to the traffic problems of NYC – is it he
judgment of the local authorities that it does have such a relation
 Argue that unequal treatment on basis of such an advertise distinction is not justified by aim and purpose of
the regulation because all ads cause the same distraction – BUT there is no requirement of equal protection
that all evils of the same genus be eradicated or none at all
 Note: level of deference court shows toward city

III. Armour v. Indianapolis (2012)

 Law: Homeowners claim that city’s refusal to provide them w/ refunds at the same time that city forgave the
outstanding project debts or other homeowners violated EPC
 Rule for which tier of scrutiny applied – Rational Basis:
 “Indianapolis’ classification involves neither a fundamental right nor a suspect classification –
therefore it does not get heightened scrutiny
 Under rational basis test – “such a law is constitutionally valid if there is a plausible policy reason for the
classification, the legislative facts…rationally may have been considered to be true…and the relationship of
the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational”
 If there is a such plausible reason if there is any reasonably conceivable state of facts that could
provide a rational basis for the classification
 Here: state interest of reducing administrative costs – court used rational basis because classification
between homeowners was not suspect and did not involve a fundamental right
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 Note: because the classification is presumed constitutional, the burden is on the attacker of the legislative
arrangement to negative every conceivable basis which might support it

IV. NYC Transit Auth v. Beazer (1979)

 State law: NYC TA rule that bars narcotics users from employment
 Classification at issue: narcotics users v. non-narcotics users; so no suspect classification and no fundamental
right
 Holding: NYTA had a rational basis for its classification of narcotics users – the NYTA’s rule serves the
general objectives of safety and efficiency. The rule is not directed against any class of persons characterized
by some unpopular trait. Therefore, it does not create the likelihood of bias on the part of the ruling majority

RACE AND EQUAL PROTECTION CLAUSE – SEPARATE AND UNEQUAL; INVIDIOUS RACE
DISCRIMINATION

I. Issues to Consider
 Relevance of context/culture
 Facially discriminatory v. discriminatory in purpose and/or effect
 Laws that burden v. laws that are neutral v. laws that benefit on the basis of race
 Relevance of purpose and effects
 EP Clause: equal treatment or equal outcomes? Equality for individuals or equality for groups?
 Institutional limitations of the federal courts in this context

II. Types of Discriminatory Laws:

 Law on its face discriminates based on racial classification, treating races differently (Strauder, Korematsu) –
strict scrutiny
 Law on its face refers to race by treats groups the same (Plessy, Brown, Loving) – strict scrutiny
 Law is facially silent as to race but is applied to discriminate on the basis of race (Yick Wo) – strict scrutiny
 Law is facially neutral but has disparate impact upon a racial minority (Washington v. Davis)
 Law is facially neutral and does not have disparate effects by race but was enacted w/ discriminatory purpose

III. Plessy v. Ferguson (1896) – Separate and Unequal

 Every exercise of police power must be reasonable, and extend only to such laws as are enacted in good faith
for the promotion of the public good and not for the annoyance or oppression of a particular class
 Issue: Whether Louisiana is a reasonable regulation, and w/ respect to this there must be necessarily a large
discretion on the part of the legislature
 in determining the question of reasonableness, it is at liberty to act w/ reference to the established usage,
customs, and traditions of the people, and w/ a view to the promotion of their comfort, and the preservation of
the public peace and good order
 Holding: In light of this standard, we cannot say that a law which authorizes or even requires the separation
of two races in public conveyances is unreasonable, or more obnoxious to the 14 th Am. than the acts of
congress requiring separate schools
 Court relies on hx and purpose and 14th Am. saying other courts have upheld the segregation
 Why is this not decided under Civil Rights Cases: because it’s state action here – it’s a LA law here, here, the
private RR companies not doing it on their own – they don’t even want to do it
 Harlan Dissent: if this is allowed, what would stop a state from separating on the basis of hair color, religion,
etc.  court says, well only reasonable laws would be upheld – so then what’s reasonable? Tied it to social
context and hx

*Note: Prior to Brown, the court interpreted the equal protection clause under rational basis test under Plessy. Under this
approach, the Court ruled that segregation was not discrimination and upheld “separate but equal” – starting after Brown,
started applying strict scrutiny.

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IV. Brown v. BOE (1954)

 In approaching this problem, we cannot turn back to 1868 when Am. was adopted or even to 1896 when
Plessy was decided – we must consider public education in the light of its full development and its present
place in American life throughout the nation
 Issue: Does segregation of children in public schools solely on the basis of race, even though the physical
facilities and other tangible factors may be equal, deprive the children of the minority group of equal
educational opportunities? Yes

V. Strauder v. West Virginia (1879) – strict scrutiny for invidious race discrimination
 Holding: Exclusion of individuals from juries solely because of their race is a violation of the EPC
 Analysis: To deny citizen participation in the administration of justice solely on racial grounds is practically a
brand upon them, affixed by the law; an assertion of their inferiority, and a stimulant to that race prejudice
which is an impediment to securing to individuals of the race that equal justice which the law aims to secure
to all others

VI. Yick Wo v. Hopkins (1886) – strict scrutiny for invidious race discrimination
 Facts: Yick was imprisoned for operating a laundry in wooden building in violation of SF statute. The statue
vested in board of supervisors the discretion to grant or withhold licenses to operate laundries in wooden
buildings. Board had denied licenses to all Chinese-American applicants but denied only 1/80 non-Chinese
 Rule: Though the law itself be fair on its face, and impartial in appearance, yet, if it applied and administered
by public authority w/ an evil eye and unequal hand, so as practically to make unjust illegal discriminations
b/w persons in similar circumstances, material to their rights, the denial of equal justice is still w/in the
prohibition of the constitution
 The def. is entitled to a jury of his peers, doesn’t say he’s entitled to black on jury, but should be
representative such that there is no prohibition; can’t exclude from civil responsibility
 Note: This is the first case where the Court ruled that a law that is race neutral on its face, but is administered
in a prejudicial manner, is an infringement of the EPC

VII. Korematsu v. U.S. (1944)

 Note: It should be noted that all legal restrictions which curtail the civil rights of a single racial group are
immediately suspect (but not all such restrictions are constitutional, they must pass strict scrutiny)
 As here, pressing public necessity may sometimes justify the existence of restrictions, but racial antagonism
never can
 Holding: We are unable to conclude that it was beyond the war power of Congress and the Executive to
exclude those of Japanese ancestry from the West Coast war area at the time they did – exclusion from a
threatened area has a definite and close relationship to the prevention of espionage and sabotage
 Analysis: The military is charged w/ the responsibility of defending our shores, and they concluded that
curfew was inadequate so had to resort to exclusion
 In sum, legal restrictions that curtail the civil rights of a single racial group are subject to the most rigid
scrutiny. But, pressing public necessity may sometimes justify such restrictions

VIII. In sum:
 Strauder v. West VA (1879):
 State law excluding blacks from juries violates EP right of Black criminal defendant
 Yick Wo v. Hopkins (1886):
 CA ordinance that prohibits laundries in wooden buildings but gives board supervisors discretion to
grant waivers violates EPC
 Korematsu v. U.S. (1944)
 Military relocation and exclusion order that requires all persons of Japanese ancestry in designated
military zone to leave their homes and report to relocation center survives strict scrutiny and is
constitutional

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IX. Loving v. Virginia (1967)

 Issue: Whether a statutory scheme adopted by VA to prevent marriages b/w persons solely on the basis of
racial classifications violates EP and DPC? Yes.
 State argument: bc the statute punishes equally both white and blacks in interracial marriage, statutes,
despite their reliance on racial classifications do not constitute an invidious discrimination based upon race
and so should get rational basis – reject and says reference to race = strict scrutiny
 Holding: the mere fact of equal application does not mean that our analysis of these statutes should follow the
approach we have taken in cases involving no racial discrimination where the EPC has been arrayed against a
statute discriminating b/w the kinds of advertising which may be displayed on trucks in NYC
 Rule: statutes which contain racial classifications, are not immune from the very heavy burden of
justifications which 14th Am. has traditionally required of state statutes drawn according to race – even if
there’s equal application

X. Johnson v. CA (2005)
 Application of strict scrutiny – even if facially discriminates the same
 Facts: CA dept. of corrections has unwritten policy of racially segregating prisoners in double cells in
reception centers for up to 60 days each time they enter a new correctional facility
 State’s Argument: it’s necessary to prevent violence caused by racial gangs; claims their policy should be
exempt from strict scrutiny bc it’s ‘neutral’ ie. neither benefits nor burdens one group or individual more than
any other group or individual - ie. strict scrutiny should not apply bc all prisoners are equally segregated
 Note: all racial classifications must be analyzed by a reviewing court under strict scrutiny
 Analysis: by perpetuating the notion that race matters most, racial segregation of inmates may exacerbate the
very patterns of violates that it is said to counteract

XI. Washington v. Davis (1976)

 Facts: Respondents argue that the DC PD recruiting procedures discriminated on the basis of race against
black applicants on a series of practices including, but not limited to, a written personnel test which excluded
a disproportionately high number of blacks – undisputed that there’s no discriminatory purpose
 Issue: Where a state policy has a racially disparate effect, but there is no proof of discriminatory purpose,
what standard of review under EPC?
 The “Central Purpose of the EPC” as articulated by the Court
 Central purpose of the EPC is the prevention of official conduct discriminating on the basis of race
but our cases have not embraced the proposition that a law or other official act, w/o regard to whether
reflects a racially discriminatory purpose, is unconstitutionally solely bc it has a racially
disproportionate impact
 Must prove that the statute was the product of a state contrivance to segregate on the basis of race or place of
origin
 *basic equal protection principle that the invidious quality of a law claimed to be racially
discriminatory must ultimately be traced to a racially discriminatory racial purpose
 essential element is ‘a current condition of segregation resulting from intentional state action
 does not mean that discriminatory racial purpose must be express or appear on the face of the statute,
or that a law’s disproportionate impact is irrelevant in cases involving const. based claims of racial
discrimination
 a statute, otherwise neutral on its face, must not be applied so invidiously to discriminate on the basis
of race
 *disproportionate impact, standing alone, does not trigger the rule that racial classifications are to be
subjected to the strictest scrutiny
 Holding: we have difficulty understanding how a law establishing a racially neutral qualification for
employment is nevertheless discriminatory and denies ‘any person equal protection of the laws’ simply
because greater proportion of blacks fail to qualify than members of other racial or ethnic groups
 a rue that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in
practice it benefits or burdens one race more than another would be far-reaching and would raise serious
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questions about, and perhaps invalidate a whole range of tax, welfare, public service, regulatory, and
licensing statutes that may be more burdensome to the poor and to the average black than to the more
affluent white
 In sum, to be unconstitutional, racial discrimination by the govt must obtain two elements:
 (1) Discriminatory purpose, and
 (2) Discriminatory impact
 IN addition to proving a discriminatory effect, a pl. must prove discriminatory motive on the state
actor’s part to receive redress – needs to be purpose, bc if only looked at effect, many laws would be
stricken (need intent, not just knowledge) – ie. knowing this law will have disparate impact not
enough
 Question: so is EP about same treatment of same outcome? Here, seems to suggest equal treatment
 So cannot do strict scrutiny with only effect – effect triggers rational basis – once burden is shown scrutiny
picks up

EQUAL PROTECTION OF THE LAWS – AFFIRMATIVE ACTION

I. “Benign” Racial Classifications/Affirmative Action

 Standard of Review for Racial Preferences (Crosan, Adarand, Grutter, Parents Involved, Fisher)
 Arguments for and against strict scrutiny
 Compelling Governmental Interests – what goals may the govt constitutionally pursue with race-based
preferences?
 Narrow Tailoring – what kinds of programs are constitutional to further the compelling governmental
interests?
 Anti-classification v. anti-subordination approaches to EPC

II. The Road to Strict Scrutiny

 Regents of the University of CA v. Bakke (1978)
 Fullilove v. Kluznick (1980) – alluded to intermediate scrutiny
 Croson (1989)
 Metro Broadcasting v. FCC (1990)
 Adarand Constructors v. Pena (1995)
 Grutter/Gratz (2003)
 Fisher (2013)

III. City of Richmond v. J.A. Crosan Company (1989)

 Facts: Richmond adopted the Plan which required prime contractors to whom the city awarded construction
contracts to subcontract at least 30% of the dollar amount to the contract to one or more minority business
enterprises
 Richmond contends that it would be a perversion of federalism to hold that the federal govt has a
compelling interest in remedying the effects of racial discrimination in its own public works program,
but a city govt does not
 BUT Richmond ignores that unlike states, Congress has a specific constitutional mandate to enforce
the dictates of the 14th Am.
 Note: there was no direct evidence of race discrimination on the part of the city in letting contracts or any
evidence that the city’s prime contractors had discriminated against minority-owned subcontractors
 Precedent: Fullilove – held that a congressional program requiring that 10% of certain federal construction
grants be awarded to minority contractors did not violate equal protection principles
 Analysis: Richmond plan denies certain citizens the opportunity to compete for a fixed percentage of public
contracts based solely upon their race.
 *a generalized assertion that there has been past discrimination in an entire industry provides no
guidance for a legislative body to determine the precise scope of the injury it seeks to remedy. It has ‘no
logical stopping point.’
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 The 30% quotes cannot in any realistic sense be tied to any injury suffered by anyone
 NOTE: Nothing we say today precludes a state or local entity from taking action to rectify the effects of
identified discrimination w/in its jxn
 Even in the absence of evidence of discrimination, the city has at its disposal a whole array of race-neutral
devices to increase the accessibility of city contracting opportunities to small entrepreneurs of all races
 Some benign classifications will satisfy strict scrutiny – if not benign/invidious, not compelling
 In EP, it’s individual approach – there are no protected classes, only suspect classifications

IV. Bottom line after Adarand

 “Any person, of whatever race, has the right to demand that any governmental actor subject to the
Constitution justify any racial classification subjecting that person to unequal treatment under the
strictest judicial scrutiny”

**CLEAR that strict scrutiny applies to race-conscious affirmative actions programs

**COURTS seem willing to accept some compelling governmental purpose may exist for benign race
discrimination – past discrimination is an acceptable reason if the discrimination by the govt unit or w/in that
unit’s jxn at least if the discrimination continues into the present
**Crosan requires exploration of race-neutral alternatives prior to the adoption of race-conscious govt. programs

V. Arguments for use of Strict Scrutiny for racial preferences:

 Importance of color-blindness
 Stigma of affirmative action
 Importance of individualized decisions
 Method of determining which classifications are really benign

VI. Arguments for Intermediate Scrutiny

 Political process argument (relevant to which group is being harmed by the classification)
 Common sense difference b/w welcome mat and “no trespassing” sign
 Anomaly of gender preference subject to a lesser scrutiny
 It’s not really strict scrutiny – waters down strict scrutiny in the cases where it is actually needed
 Necessary to use preferences to achieve goals of remedy of societal discrimination and diversity

VII. The Differing Views in Adarand

 Justice Scalia
 “Under our Constitution there can be no such thing as either a creditor or a debtor race … we are just
one race here. It is American.”
 Justice Thomas
 “There can be no doubt that racial paternalism and its unintended consequences can be as poisonous
and pernicious as any other form of discrimination. So called ‘benign discrimination teaches may that
because of chronic and apparently immutable handicaps, minorities cannot compete w/ them w/o their
patronizing indulgence”
 Justice Stevens
 “There is no moral or constitutional equivalence b/w a policy that is designed to perpetuate a caste
system and one that seeks to eradicate racial subordination”

VIII. Which Governmental Interests are Compelling?

 Remedy Past Discrimination
 By particular govt entity (ie. law had done so in hx) [all justices agree this would be compelling]
 Generalized societal discriminations – not compelling
 Enhance Diversity
 Validated in Grutter and Gratz [restated in Fisher]
 Grutter upheld in law school; Gratz struck down quota in undergrad
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 Create Minority Role Models

 Increase Services to Minority Communities
 Democracy

IX. Grutter v. Bollinger (2003)

 Issue: Whether the use of race as a factor in student admissions by MI law school is unlawful?
 Precedent: Bakke (1978) – we reviewed a racial set-aside program that reserved 16/100 seats in a medical
school for members of certain minority groups (no majority in that opinion) –
 NOW endorsing J. Powell’s view that “student body diversity is a compelling interest that can justify the use
of race in university admissions”
 The law school’s educational judgment that such diversity is essential to its educational mission is
one to which we defer
 The law school’s concept of critical mass is defined by references to the educations benefits that diversity is
designed to produce
 ***To be narrowly tailored, a race-conscious admissions program cannot use a quota system – it cannot
insulate each category of applicants w/ certain desired qualifications from competition w/ all other applicants
instead a university may consider race or ethnicity as a plus in a particular applicant’s file w/o insulating the
individual from comparison w/ all other candidates for the available seats
 That a race-conscious admissions program does not operate as a quota does not, by itself, satisfy the
requirement of individualized consideration.
 HERE, law school engages in a highly individualized, holistic review of each applicant's file, giving
serious consideration to all the ways an applicant might contribute to a diverse educational
environment.
 Unlike the program at issue in Gratz, the law school awards no mechanical predetermined diversity
bonuses based on race or ethnicity
 Gratz - distinguishing a race-conscious admissions program that automatically awards 20 points
based on race from the Harvard plan - held that U. Michigan undergrad admissions point-bonus
system was unconstitutional [the compelling interest is same in Gratz and Grutter, byt Gratz fails
narrow tailoring]
 Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require
a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide
educational opportunities to members of all racial groups – it does however require serious, good faith
consideration of workable race-neutral alternatives that will achieve the diversity the university seeks
 In sum, school’s goal of attaining a critical mass of underrepresented minority students does not transform its
program into a quota - deferred to university that it needs ‘critical mass’ of minority students to achieve its
goals [critical mass is flexible and quotas are not]

X. Parents Involved v. Seattle School Dist. No. 1 (2007)

 Facts: the school districts in these cases voluntarily adopted student assignment plans that rely upon race to
determine which public schools certain children may attend – in each case, the school district relies upon an
individual student’s race in assigning that student to a particular school
 Issue as framed by the Court:
 “Whether a public school that had not operated legally segregated schools… may choose to classify
students by race” for the purpose of making school assignments
 Standard of Review:
 Note that this policy arguably does not “benefit” or “harm” any individual
 Well established that when the govt distributes burdens or benefits on the basis of individual racial
classifications, that action is reviewed under strict scrutiny
 Racial classification in the school context, two interests have qualified as compelling:
 (1) Compelling interest of remedying the effects of past intentional discrimination
1. Yet the Seattle public schools have not shown that they were ever segregated by law, and
were not subject to court-ordered desegregation decrees –
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2. Jefferson Co. public schools were previously segregated by law and were subject to a
desegregation decree entered in 1975 – once the county achieved unitary status, it had
remedied the constitutional wrong that allowed race-based assignments. Any continued
use of race must be justified on some other basis
 (2) Interest in diversity in higher education upheld in Grutter – the diversity interest was not focused
on race alone but encompassed ‘all factors that may contribute to student body diversity’
1. here, race is not considered as part of a broader effort to achieve exposure to widely
diverse people, it’s determinative standing alone
 State’s Interest: Seattle contends that its use of race helps to reduce racial concentration in schools and to
ensure that racially concentrated housing patterns do not prevent nonwhite students from having access to the
most desirable schools. Jefferson same goal
 The racial classifications employed by the districts are not narrowly tailored to the goal of achieving
the educational and social benefits asserted to flow from racial diversity
 In sum: The student assignment plan of Seattle public schools and Jefferson co. public schools does not meet
the narrowly tailored and compelling interest requirements for a race-based assignment plan bc it is used only
to achieve 'racial balance.' Public schools may not use race as the sole determining factor for assigning
students to schools. Race conscious objectives to achieve diverse school environment may be acceptable
 Justice Kennedy:
 “this nation has a moral and ethical obligation to fulfill its historic commitment to creating an
integrated society that ensures equal opportunity for all of its children”
 Justice Thomas:
 “Indeed, if our hx has taught us anything, it has taught us to beware of elites bearing racial theories”
 Justice Stevens:
 “It is my firm conviction that no Member of the Court I joined in 1975 would have agreed w/ today’s
decision
 Justice Breyer (for 4 justices):
 “What of the hope and promise of Brown? ... this decision that the Court and the Nation will come to
regret”

XI. Fisher v. University of Texas (2013)

 Facts: university adopted a third admissions program in which it reverted to explicit consideration of race
 Precedent:
 Grutter: court upheld the use of race as one of the many plus factors is an admissions programs that
considered the overall individual contribution of each candidate
 Gratz: the court held unconstitutional MI’s undergrad admissions program, which automatically
awarded points to applicants from certain racial minorities
 Bakke: court considered a system used by med school – holding program impermissible
 State interest: concluded that Univ. lacked a critical mass or minority students and that to remedy the
deficiency it was necessary to give explicit consideration to race in the UG admissions program
 One compelling interest that could justify the consideration of race:
 The interest in the educational benefits that flow from diverse students –
 But subject to strict scrutiny and the university must demonstrate w/ clarity that its purpose or interest
is both constitutionally permissible and substantial, and that its use of the classification is necessary to
the accomplishment of its purpose
 Deference to university – according to Grutter, a university’s educational judgment that such diversity is
essential to its educational mission is one to which we defer.
 **Grutter calls for deference to the University’s conclusion that a diverse student body would serve
its educational goals
 once, the univ. has established that its goal of diversity is consistent w/ strict scrutiny, must prove that the
admissions process meets strict scrutiny in its implementation:
 must prove that the means chosen to attain diversity are narrowly tailored to that goal and on
this point, the university gets no deference – it’s up to the courts to decide
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 Narrow tailoring also requires that the reviewing court verify that it is 'necessary' for a university to use race
to achieve the educational benefits of diversity. This involves a careful judicial inquiry into whether a
university could achieve sufficient diversity w/o using racial classifications
 Although narrow tailoring does not require a exhaustion of every conceivable race neutral alternative,
strict scrutiny does require a court to examine w/ care, and n t to defer to a univ's serious, good faith
consideration of workable race-neutral alternatives
 Strict scrutiny imposes on the univ. the ultimate burden of demonstrating, before turning to racial
classification, that available, workable race-neutral alternatives do not suffice
 Here, deference to university is taken back from Grutter – not deferring to let them say “this is what we need
to get there” – the courts need to do that

GENDER AND EQUAL PROTECTION

I. Equal Protection – Gender Classifications

 Early cases – the road to heightened scrutiny
 Intermediate scrutiny for gender classifications – Craig v. Boren (1976)
 States’ justifications for treated sexes differently – the issue of ‘real difference’

II. Background – the Road to Heightened Scrutiny

 Goesart v. Cleary (1948) – court upheld law that prohibited women from working as bartenders unless
husband or father owned the bar
 Hoyt v. FL (1961) – court upheld jury selection system that excused/excluded women who did not
affirmatively indicate a desire to serve
 Reed v. Reed (1971) – court struck down on EP grounds a state law that gave automatic preferences to a male
where two persons were both qualified to administer the estate of a deceased person who had died intestate
 Frotiero v. Richardson (1973) – court struck down on EP grounds a federal law that provided married males
in the armed forces w/ automatic benefit increase, but required married female service-members to prove their
husbands dependent on them for support

III. Craig v. Boren (1976)

 Facts: OK statute prohibits sale of non-intoxicating 3.2% beer to males under the age of 21 and to females
under the age of 18
 Issue: Whether such gender-based differential constitutes a denial to males 18-20 years of age of the equal
protection of the laws in violation of the 14th Am.? yes
 To withstand constitutional challenges, classifications by gender must serve important governmental
objectives and must be substantially related to achievement of those objectives (intermediate scrutiny)

IV. United States v. Virginia (1996)

 Issue: Does VA’s exclusion of women from the educational opportunities provided by VMI deny to women
‘capable of all the individual activities requires of VMI cadets’ the equal protection of the laws? And if
VMI’s unique situation as VA’s sole single-sex public institution of higher education offends the Const’s
equal protection principle, what is the remedial requirement?
 Neither the goal of producing citizen-soldiers nor VMI’s implementing methodology is inherently unsuitable
to women – and the school’s impressive record in producing leaders has made admission desirable to some
women; but VA has elected to preserve it for men the advantages and opportunities a VMI education affords
 Court’s Current take on classifications on gender:
 Reviewing court must determine whether the proffered justification is exceedingly persuasive – the
burden of justification is demanding and it rests entirely on the State.
1. Says they’re doing intermediate scrutiny but adds exceedingly persuasive justification
 The state must show at least that the challenged classification serves important governmental
objectives and that the discriminatory means employed are substantially related to the achievement of
those objectives
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 The justification must not rely on overbroad generalizations about the different talents, capacities, or
preferences of males and females
 **sex classifications may be used to compensate women for particular economic disabilities they have
suffered, to promote equal employment opportunity, to advance full development of the talent and capacities
of our nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the
legal, social, and economic inferiority of women.
 State Arguments:
 Single-sex education provides important educational benefits and the option of single-sex education
contributes to diversity in educational approaches
 Unique VMI method of character development and leadership training would have to be modified
were VMI to admit women
 We find no persuasive evidence in this record that VMIs male-only admission policy is in furtherance of a
state policy of diversity
 In sum, gender-based classifications of the government can be defended only by exceedingly persuasive
justifications. The State must show that its classification serves important governmental objectives and that
the means employed are substantially related to those objectives. The justification must be genuine, not
hypothesized. And it must not rely on overbroad generalizations about the differences between males and
females.

V. Michael M. v. Superior Court of Sonoma County (1981)

 Facts. A 17-year-old male had sex w/ a 16-year-old female. Because CA only criminalized such behavior in
males, the female involved was not charged with any crime. Alleges that this disparity in the statutory rape
laws is in violation of the EPC
 Rule: a state may provide for punishment only for males to equalize deterrents to teenage pregnancy
 Note: court does not specifically refer to application of intermediate scrutiny – but great deference to the fact
that the State’s alleged objective was to deter teenage pregnancies
 Analysis: "[t]he statute protects women from sexual intercourse and pregnancy at an age when the physical,
emotional, and psychological consequences are particularly severe. Because virtually all of the significant
harmful and identifiable consequences of teenage pregnancy fall on the female, a legislature acts well within
its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of
his conduct."

VI. Nguyen v INS (2001)

 Challenged law: federal law distinguishes, for citizenship purposes, b/w children born abroad of Am. mother
and non-citizen mother. American father required to validate paternity for child to be U.S. citizen
 Issue: Do gender classifications benefitting women bc of biological differences b/w men and women violate
EP? no
 Holding: a law providing narrower standards for U.S. citizenship for a child born abroad out of wedlock to an
Am. father as opposed to an Am. mother, was justified by important government interests and did not violate
the equal protection of 5th Am.
 State Interests:
 (1) Importance of assuring that a biological parent-child relationship exists.
1. For mother, relation is verifiable from birth itself
2. For father, father need not be present at birth, therefore mom and dad not similarly
situated w/ regard to proof of biological parenthood
3. Given that proof motherhood is inherent in birth itself, it is unremarkable that Congress
did not require the same affirmative steps of mothers
 (2) the determination to ensure that the child and the citizen parent have some demonstrated
opportunity or potential to develop not just a relationship that is recognized by the law, but one that
consists of real, everyday ties that provide a connection b/w child and citizen parent and the U.S.
1. In the case of a mother, the opportunity occurs at the moment of birth since the mother is
present.

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2. In the case of a father, this some opportunity does not necessarily result since the father
does not necessarily have to be present at birth; it is not always certain that a father will
know that a child was conceived.
3. The statute takes the unremarkable step of ensuring that such an opportunity, inherent in
the event of birth as to the mother-child relationship, exists between father and child
before citizenship is conferred on the latter.
 Here, court assumes “real differences” between men and women

FUNDAMENTAL INTERESTS AND THE EPC

 If something is a fundamental interest for DPC, then it is also for EPC

 HERE, where might not be fundamental interest for DPC, but combined with suspect classification get strict
scrutiny [i.e. quasi-suspect classification and quasi-fundamental interest]
 WE know education is NOT fundamental in DPC, but really troubling, so quasi-fundamental interest
 Note: if restricting right for everyone look at DPC, if for some, look at EPC

I. Equal Protection Fundamental Interests

 Procreation:
 Skinner – sterilized males of convicted criminals; but didn’t sterilize ALL, only those for some
crimes, but not all and that distinction although not a suspect class but combined with procreation,
you get a violation (but ignore, because counts on its own as a violation of DP)
 Voting (Bush v. Gore)
 Right to vote is not a fundamental right, but if govt grants this right, they have to do it on equal basis
= any classification it makes subject to SS
 Marriage
 Now counts as fundamental interest as DP (Loving; Zablocki)
 Some marriage classifications are enough to kick us into DP alone, but sometimes might not be, so
combine with suspect classification (ie. Obergefell – doesn’t say homosexual marriage is suspect
class right but when combined with fundamental right of marriage – strict scrutiny)
 Access to judicial process (Griffin; Douglas)
 State does not have to provide, but if it does can’t draw suspect classifications
 Travel
 EPC interest, but not DPC

II. Zablocki v. Redhail (1978)

 State law: WI statute saying resident having minor issue not in his custody and which is under obligation to
support by any court order or judgment, may not marry, w/in the state or elsewhere, w/o first obtaining court
order granting permission to marry – permission not granted until applicant submits proof of compliance w/
support obligation, and demonstrates children covered by support order are not then and are not likely to
become public charges
 “Freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit
of happiness by free men.” – “Marriage is one of the ‘basic civil rights of man,’ fundamental to our very
existence and survival”
 Recent decisions have established that right to marry is part of fundamental ‘right of privacy’ implicitly in
DPC
 Note:
 When a statutory classification significantly interferes w/ the exercise of a fundamental right, it
cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored
to effectuate only those interests.
 State’s Interests: permission-to-marry proceeding is an opportunity to counsel the applicant as to the
necessity of fulfilling his prior support obligations and welfare of out-of-custody child is protected – neither
are narrowly tailored
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 Even if the individual cannot meet statute requirement, he’s just prevented from getting married and
the child still has no money – state has other means for exacting compliance w/ support obligations,
means that are at least as effective as the instate statute’s and don’t impinge on right to marry
III. SA Independent School District v. Rodriguez (1973)
 Dist. Court Findings: held that TX system discriminates on basis of wealth in manner in which education is
provided for its people. Finding that wealth is a ‘suspect’ classification and that education is a ‘fundamental
interest,’ held that TX system could be sustained only if the State could show that it was premised upon some
compelling state interest. NO.
 Note: where wealth is involved, the EPC does not require absolute equality or precisely equal advantages.
 Therefore, absence of any evidence that the financing system discriminates against any definable
category of ‘poor’ people or that it results in the absolute deprivation of education – the
disadvantaged class is not susceptible of identification in traditional terms
 Key to determining whether education is fundamental is not to be found in comparisons of the relative
societal significance of education as opposed to subsistence or housing. Nor is it to be found by weighing
whether education is as important as the right to travel. RATHER, the answer lies in assessing whether there
is a right to education explicitly or implicitly guaranteed in const.
 Education is not explicitly afforded protection in Const. nor do we find any basis that it is implicitly
protected
 **undisputed importance of education will not alone cause the court to depart from usual standard for
reviewing State’s social and economic legislation
 EPC – traditional standard of review, which requires only that the State’s system be shown to bear some
rational relationship to legitimate state purpose
 No tax scheme has been devised which is free of all discriminatory impact – in such a complex arena in which
no perfect alternatives exist, court does not impose rigorous standard of scrutiny – education policy is another
such area where court lacks knowledge and experience
 In sum, to the extent that the TX system of school financing results in unequal expenditures b/w children who
happen to reside in diff districts, we cannot say that such disparities are the product of a system that is so
irrational as to be invidiously discriminatory
 Holding: reliance on property taxes to fund public schools does not violate EPC even if it causes inter-district
expenditure disparities. Absolute equality of education funding is not required and a state system that
encourages local control over schools bears a rational relationship to a legitimate state interest
 Marshall Dissent: argues that a right’s fundamentality depends on importance of the right in effectuating
constitutional guarantees. Says that education is so important to exercise of rights protected by first Am. and
to participation in political process to create a significant nexus b/w education and these rights, making it
fundamental
 “As the nexus b/w specific constitutional guarantee and the non-constitutional interest draw close,”
the more appropriate heightened scrutiny becomes. So he wants more strict than rational basis

IV. Plyler v. DOE (1982)

 Issue: whether EPC been violated by refusal of TX to reimburse school boards for education of children who
cannot demonstrate that they’re legal?
 First, whatever his status under immigration laws, an alien is a ‘person’ guaranteed due process of law
 In applying EPC to most forms of state action, we seek only the assurance that the classification at issue
bears some fair relationship to a legitimate public purpose
 BUT we have recognized that certain forms of legislative classification, while not facially invidious,
nonetheless give rise to recurring constitutional difficulties; here, we seek assurance that the
classification reflects a reasoned judgment consistent w/ the ideal of equal protection by inquiring
whether it may fairly be viewed as furthering a substantial interest of the state
 Public education is NOT a right granted to individuals by the const. BUT neither is it merely some
governmental benefit indistinguishable from other forms of social welfare legislation (importance of
education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of child,
mark distinction
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 Education has a fundamental role in maintaining the fabric of our society. We cannot ignore the
significant social costs borne by our nation when select groups are denied means to absorb values and
skills upon which our social order rest
 **denial of education to some isolated group of children is abolition of govt barriers presenting unreasonable
obstacles to advancement on the basis of individual merit
 In sum, undocumented aliens cannot be treated as a suspect class bc and nor is education a fundamental right
 Therefore, a state need not justify by compelling necessity every variation in the manner in which
education is provided to its population BUT more is involved in these cases than the abstract question
whether the Act discriminates against a suspect class, or whether education is a fundamental right – it
imposes a hardship on a discrete class of children not accountable for their disabling status
 SO, discrimination in the act cannot be considered rational unless it furthers some substantial
goal of State
 Appellant arguments struck down:
 (1) Preventing influx of illegal immigrants – the act does not offer an effective method of dealing w/
this economic problem bc for one no evidence that economy is burdened, in fact these immigrants
contribute their labor to local economy and tax money
 (2) singled out because burdens they place on state’s ability to provide high-quality public education
– no evidence that exclusion of them will improve overall quality of education
 (3) singled out bc their unlawful presence renders them less likely than other kids to remain w/in
boundaries of state and put their education to productive social or political use

RATIONAL BASIS REVIEW AND HYBRID REVIEW

V. City of Cleburne v. Cleburne Living Center (1985)

 State Law: TX city denied special use permit for operation of a group home for the mentally retarded, acting
pursuant to ordinance requiring permit for such homes
 When social or economic legislation is at issue, the EPC allows states wide latitude and the Const. presumes
that even improvident decisions will eventually be rectified by the democratic process – (declined heightened
review to differential treatment based on age)
 Note: where individuals in the groups affected by a law have distinguishing characteristics relevant to
interests the state has the authority to implement, the courts have been very reluctant, as they should be and
w/ our respect for the SOP, to closely scrutinize legislative choices as to whether, how, and to what extent
those interests should be pursued. In such cases, EPC requires only a rational means to serve a legitimate end
 THEREFORE, retarded are not quasi-suspect group
 However, mentally retarded are not afforded no protection from invidious discrimination – to withstand equal
protection review, legislation that distinguishes b/w mentally retarded and others must be rationally related to
a legitimate governmental purpose – here it is not (said not rationally related)

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