Constitutional Law Outline

The basic issue with separation of powers: The division of power and responsibility between the three branches of the federal government. Classically, the
term "separation of powers" normally refers to the distinction between Congress' and the President's power, but in fact the term applies as well to the clashes
between those branches and the judiciary.
A. The Judicial Power
The Power to Say What the Law Is
A. Marbury establishes the power of judicial review. Justified mainly as an incident to a court’s power to adjudicate cases.
1. The Court’s analysis of when it can order an executive branch official to act turns on whether the official has a legal duty to act – thus
creating a right – thus supporting the idea that the main purpose of courts is to adjudicate cases (i.e., decide claims of legal right and make
people whole for legal violations done).
2. The Court’s analysis of whether it has the power of judicial review turns on the role of courts to adjudicate cases, which necessarily
includes the power to decide which law to apply when two laws conflict. In turn, that implies the power to refuse to give effect to a law
which conflicts with the Constitution (the supreme law)
B. Cooper suggests this power makes SC’s interpretations of Constitution themselves part of Constitution & thus binding on everyone in the nation
Limitations on the Power to Say What the Law Is
Congressional control over federal jurisdiction: Congress ends up having extremely broad power over federal court jurisdiction.
McCardle: Congress has near complete power over the Supreme
Court’s appellate jurisdiction, via the exceptions clause of Article III. But in Yerger the Court suggests that it will construe
jurisdiction-stripping statutes narrowly. And in Klein it suggests that, at least where the stripping appears to be a tool to impair the
separation of powers more generally, the Court may be suspicious.
Congress also has basically complete power over the jurisdiction of lower federal courts, since Article III gives Congress the power
to create (or not create) those lower courts as they see fit.
Issue: Could Congress completely strip all federal courts’ jurisdiction over a particular class of cases, e.g., cases dealing with abortion
rights, by using the exceptions clause to take away the Supreme Court’s jurisdiction and using its power over lower federal court
jurisdiction to do the same thing?
Congress can also place adjudicatory power in non-Article III fed tribunals, that is, “agency courts” (also known as “Article I
courts”). Schor. Schor, the leading case on point, uses a balancing test to judge whether the resulting intrusion on Article III
courts is too great. The Schor factors:
To what extent does the agency court have the powers of an Article III court
broad jurisdiction or narrow?
the power to enforce judgments
more generally, does it have the powers normally associated with an Article III court
degree of review by an Article III court
Nature of the right (public v. private)
Reasons Congress put the adjudicatory power in an agency court
Brennan dissent: Insists on a bright-line approach to separation of powers – here, if the statute allows an agency court to
adjudicate private rights, it’s automatically unconstitutional unless it comes within one of the traditional exceptions (courts
martial, etc.). Compare Morrison v. Olson
-Theme: Bright-line vs. balancing, or functional approaches to constitutional issues.
 Stern v. Marshall adopts more of a bright-line approach to this question. It struck down the power of bankruptcy courts (are
Article I courts) to adjudicate a certain class of claims involving the bankrupt party because those claims involved private rights
Non-jurisdictional controls:
Congressional control over the substantive law. Congress also has near-complete power over the substantive law the courts
interpret. This is true even when a change in that law effectively forces courts to reach certain results. Seattle Audubon.
 But see Klein, where the Court refused to allow Congress to
a. “prescribe a rule of decision” (whatever that means after Seattle Audubon and Bank Markazi) or
b. interfere with the effect of a Presidential pardon
The Power over Final Judgments: Plaut. When a case reaches final judgment, Congress cannot resurrect it, even though:
As a general matter, Congress can make substantive and procedural law retroactively applicable to a pending case; and
even though
Line governing when a decision becomes final is not set in the Constitution itself (i.e., it’s within congressional control)
-The idea: For the majority, the lesson of the pre-framing period was that legislatures could not be trusted to interfere with the
adjudicatory process, regardless of how narrowly-targeted or widespread the interference was.
-Compare Justice Breyer’s view: He agrees that in the pre-framing period legislative interference with adjudication was a
problem. But for him, this just means that if a law (like the one in Plaut) didn’t single out particular known litigants (if, for
example, it also applied prospectively, to parties whose identities were unknown) then it might be OK.
-Theme: Bright line approaches to separation of powers (majority in Plaut) versus more functional approaches (such as
Breyer’s concurrence).
Where there is, in a sense, “no law.”
Political question doctrine: By focusing on both the delegation of power to another branch and the lack of legal standards (see
Baker v. Carr) the Court points to situations where there is no legal duty, and thus no right. In such situations the Court cannot
speak because there is no right to enforce.
2. Chevron: Chevron can be seen as the statutory equivalent to the political question doctrine. By enforcing congressional choices
(“law”) when such law exists (i.e., in Chevron Step 1 situations) the Court remains faithful to Marbury. But by deferring to
administrative agency interpretive decisions (1) where Congress has delegated authority to the agency to “administer” the statute (e.g.,
by drafting regulations, as in Chevron) and (2) where Congress did not answer the interpretive issues itself (i.e., Chevron Step 2
situations) the Court is acting in a parallel fashion to its political question jurisprudence – that is, it is conceding that there is a textual
commitment of the issue to another branch & there is no legal standard for a court to apply, & thus no legal right for a court to enforce
Justiciability: This term normally refers to non-jurisdiction doctrines concerning the ability of plaintiffs to have their cases heard in court.
We focused on the justiciability doctrine of standing.
Standing: Standing asks whether the correct plaintiff is suing. There are both constitutional and prudential limits on standing:
The test for "constitutional," or "Article III," standing:
is the plaintiff injured . . .
. . . by the defendant . . .
and is the injury redressable by the court.
Understanding the constitutional limits:
The basic point of the injury requirement is to ensure that the federal courts are playing their constitutionally
appropriate role, to grant relief to a plaintiff who has been harmed by a legal violation.
-Theme: You can see this requirement as deriving from the Court's understanding of its own fundamental
role in the system -- to adjudicate legal claims on behalf of injured plaintiffs.
-Note: Congress can create rights via statute, deprivation of which constitutes “injury” for standing purposes (Havens)
Injury must be:
Particularized, not generalized (though the constitutional status of this requirement is not completely
clear). Otherwise, the courts will be thrust into the role of simply ensuring compliance with the law
without any individual being harmed or benefitted in a particularized way – thus violating Marbury’s
conception of the proper role of courts (Defenders of Wildlife).
Actual or imminent, not hypothetical (Defenders: P failure to have actual plans to return to study areas)
Concrete, not speculative (Defenders [researchers] the rejection of the “animal nexus” & other theories
as simply too speculative & as threatening to render standing a completely toothless requirement)
Causation: The injury must be fairly traceable to the defendant's action. This requirement is quite malleable, but in the
last thirty years or so the Court has applied it fairly strictly.
Warth, where the would-be residents did not have standing because it wasn't clear that D-city had caused
their inability to live in that city or whether instead that inability was caused by the housing market in general
Redressability: The court must be able to make the plaintiff whole -- that it, to redress the plaintiff's injury.
-Theme: Again, this requirement relates to the court's conception of its inherent powers – "what is a court?" It's an
institution that redresses injury done to individuals because of legal violations.
Prudential limits on standing:
We studied 2 prudential limits: no assertion of 3rd party rights; & the ban on generalized grievances (discussed above,
in section on Article III standing requirements, given the ambiguity about the constitutional status of this latter bar).
Third party standing: While every plaintiff must have his own injury in order to sue, it is possible that your legal
claim can be that the defendant has violated the legal rights of someone else.
e.g., the Rochester taxpayers in Warth: they suffered their own injury (higher tax bills) but they were
asserting the legal rights of the would-be Penfield residents (discrimination against those residents)
Congress or the courts can overturn the limitation on assertion of third party rights:
Congress: in Havens the statute authorized "any person" to sue; thus, as long as they met the
constitutional standing requirement (i.e, injury, etc.), they had standing
the Courts: in Singleton v. Wulff, the Court allows the abortion provider to sue on behalf of the woman
who claims a right to an abortion
the rule for judicial overturning of the third party standing bar: is there a "special relationship" between
the holder of the legal right and the plaintiff. Not just a special relationship in terms of, for example, a
doctor-patient relationship, but also in terms of whether the plaintiff is being forced to act as the vehicle
for denying the legal rights of the right holder.
Associational Standing
Sometimes an individual P will not want to sue, perhaps because the interest she seeks to vindicate are shared by others. In that
case, an association that represents those interests will be allowed to be the P – 3 requirements for associational standing:
Would at least one individual member of the association have standing?
Is the interest sought to be protected in the lawsuit germane to the reason the association was formed in the first place?
-E.g., the homebuilder association in Warth was formed for the purpose of promoting the building trades in New York
State; that interest was harmed by Penfield's refusal to grant building permits
Would the requested relief work without the individual members being before the court?
-E.g., in Warth, damages flowing to individual builders wouldn't work, because the court couldn't be sure that the relief
would in fact find its way to the injured parties. But an injunction requiring Penfield to be more reasonable about
allowing construction would operate to help every builder, and thus would work without any particular building
company being a party before the court.
-In general, injunctive relief will satisfy this requirement, but damages will not.
B. The Separation of Powers Between Congress and the President
Why is there a separation of powers doctrine? The basic concern of the framers was to diffuse government power, to ensure that a temporary
political majority (a "faction") would not be able to gain control over all the levers of government simultaneously, and thus to rob the people of their
basic rights. To prevent against this, the framers divided up the sovereign power in two ways: 1st, vertically, between the states & the federal gov’t,
and 2nd, horizontally, among the different branches of the federal gov’t. Thus, we have a system of three co-equal branches of the federal gov’t.
At the same time, as problems arise there will always be a temptation to blur the lines, just to get the immediate job done. For example,
To effectively adjudicate commodities fraud cases (Schor)
To deal with a serious emergency situation (Youngstown)
To provide a means for rebalancing the system, after large scale delegations of power to the executive threatens to reduce congressional
power over national policy (Chadha).
The question will be, to what extent do these tinkerings represent perfectly appropriate (and good) working with the system to make it function
efficiently, and to what extent do they represent unconstitutional deviations from the basic three-branch set up?
The basic structure: Two ways to approach the issue:
The "rigid," "separated powers" approach: Best exemplified by Justice Black's majority opinion in Youngstown, this approach focuses
on labeling & categorizing powers as legislative, judicial or executive, & then allowing only corresponding branch to exercise that power
Advantage: A nice, clean, bright line.
Unrealistic & unduly restrictive of the experimentation that is necessary for a gov’t to continue to function effectively after 200yr
Unfaithful to the idea that the branches are not just separate but also interdependent.
The flexible, "shared powers" approach. Best exemplified by Justice Jackson's concurrence in Youngstown, this approach looks more
to the relationship between the branches on any given issue. It doesn't ask, for example, whether seizing the steel mills is an executive or
legislative act, but instead asks whether the two branches that could arguably have something to say on the point (Congress and the
President) agree or disagree on the proper approach to take.
Realistic; takes into account the reality that powers are shared.
Faithful to idea that framers established a gov’t that was supposed to work/one flexible enough to respond to unanticipated events
Disadvantage: Absolutely unpredictable results in the hard cases, where the President acts against the background of congressional silence.
Even Jackson admits as much when he calls that a "twilight area" where answers will largely turn on particular facts of that case
The Results of this Jurisprudence
A. The Non-Delegation Doctrine has been significantly weakened, such that courts uphold most modern types of legislative delegations to agencies
The Black Letter: Does the statute contain an “intelligible principle” that ensures that Congress made the basic policy decision, and also
ensures that courts can judge the legality of agency action. But a very deferential test. E.g., Whitman.
The demise of the non-delegation doctrine reflects the complexity of the modern world, and the need for Congress to entrust agencies with
broad power to implement vaguely-worded statutes. Examples:
Price-control statute that gives the agency great discretion in applying criteria the statute establishes for what level to set prices at
A statute, like the Federal Communications Act, that gives the agency relatively narrow authority (to award broadcast licenses) in
order to accomplish extremely broad goals (to "serve the public interest").
The Legislative Veto: Struck down in Chadha, as a violation of the bicameralism and presentment requirements.
On the one hand, a very formalist, bright-line type of opinion.
On the other, the opinion suggests a reason for this formalism, when it recounts the inadequate consideration Congress gave to
the question whether Chadha should be deported. At the very least, the bicameralism and presentment requirements, by requiring
legislation to clear three hurdles, increases the chances that the issue will receive appropriate consideration.
If Congress chooses, it can place at least some officers who perform executive functions outside the President's power to fire at will.
-The issue: If the President is really responsible for executing the laws, you might think that he must have the ability to pick his
subordinates as he wishes; otherwise he couldn't effectively enforce the law as he saw fit.
But even the Constitution doesn't require (or even allow) 100% executive power here:
"Officers of the US" (e.g., cabinet secretaries) are appointed by the President, but have to be confirmed by the Senate.
Congress can vest the appointment of "inferior officers" in the President, the courts, or the "heads of departments."
Note the analysis Morrison used to decide the “inferior officers” issue – looking at, among other things, the scope of
the Special Prosecutor’s “jurisdiction” (i.e., his limited authority to investigate only a certain fact pattern), the fact that
there were temporal limits on his office, the fact that the SP didn’t have much policymaking power, and the control the
Attorney General had over him. Compare the sub-factors discussed in the first Schor factor.
In Morrison, the Court allowed even greater congressional limitations on the executive's power over his subordinates.
AG was allowed to fire the Special Prosecutor only for "good cause." Any such firing could be reviewed by a court.
The Court upholds this, on the ground that the limitation didn't seriously impair President's ability to execute the laws
Very much a flexible approach to separation of powers. Compare Schor, which adopted a very similar approach when
Congress took some power away from Article III courts. Just as in Schor, the Morrison Court relied on the lack of
“bad” congressional intent and the amount of Article II (in Schor, Article III) control over the new institution. In both
cases the Court expressed concern over the fact that the new institution (e.g., the SP in Morrison) was performing a
core role played by the impacted institution (e.g., the President’s power to enforce the laws). It also noted that under
the old law (e.g., Humphrey’s Executor) that concern would have been dispositive. But it concluded ultimately that this
concern was just one factor in a larger balancing test. All of these observations could be made about Schor as well.
3. In Free Enterprise Fund (which you encountered only in a note and which we discussed only briefly in class) the Court appears to
adopt a more bright-line approach to the firing power, holding, on the facts of this case, that two levels of insulation from presidential
removal-at-will power is unconstitutional. Compare Stern v. Marshall, where the current Court (in that case, in 2011) again appeared
to be adopting a bright-line approach to separation of powers, rather than a functional one such as in Schor.
D. Presidential Immunities
Nixon, Clinton, and the note cases between them all reveal the same basic methodology: not a bright line separation between the branches’ authorities and
prerogatives, but instead an attempt to accommodate the needs of the two branches involved in the collision (in these cases, the President and the courts)
1. Nixon: Only confidential presidential documents relevant to the courts’ need to adjudicate the criminal cases in front of them can be
disclosed. And decisions about which documents are relevant must be made by the court in a private inspection of the documents.
2. The note cases establish that the President has total immunity only for actions taken as part of his official duties, and his subordinates have
some, but a lesser, level of immunity (“qualified”) immunity. This partial grant of immunity is designed to ensure that courts remain free
to vindicate wrongdoing as far as that is consistent with the need to allow President to accomplish his official duties w/o fear of being sued.
3. Clinton: Lawsuits alleging liability for purely private conduct engaged in by the President are allowed, and he doesn’t have a constitutional
right to insist on their delay until he leaves office, given the need to vindicate the rights involved. But the trial court is cautioned to be
respectful if the President states that the lawsuit is sufficiently time-consuming for him that he is not able to perform is Article II duties.
(Compare the rule in Morrison regarding the constitutionality of the good-cause limit on his ability to fire the Special Prosecutor).
E. Foreign Affairs and War
1. Foreign Affairs:
-Foreign affairs issues are difficult because there’s no real text, either in Articles I or II, that expressly grants power over foreign relations to Congress or the
President. Still, the President does have some powers (e.g., to receive ambassadors) that are relevant to the issue. See Zivotovsky. On the other hand, many of
those powers are shared, and, at any rate, Congress has its own foreign relations-related powers (e.g., the power to regulate foreign commerce).
-Largely for this reason, foreign affairs cases, such as Dames & Moore and Zivotovsky, are often decided using Jackson’s three-category analysis from
Youngstown. But with a twist: as illustrated by Dames & Moore, that analysis is often conducted with a thumb on the scale in favor of PRESIDENTIAL
power. When combined with the power the President has as a matter of 21 st-century realities—that is, the ability to act quickly and decisively, and to function
as the face of the U.S. Government to the world—this often means that the President has a significantly freer hand in foreign affairs than on domestic issues.
2. The War Power
The basic tension: Congress has the power to declare war, but the President is the commander-in-chief. Using that latter power, the President has historically
sent U.S. troops into combat short of a declaration of war.
The courts almost always shy away from these disputes, usually calling them political questions.
Obviously, a very delicate and very political matter, that is probably inappropriate for the courts to enter into.
Moreover, what would happen if a court decided that a military action was unconstitutional, and the President refused
to call the troops home? Serious common-sense difficulties with courts entering into these disputes.
In the Cold War period, this presidential power was extended to its limit. It reached its height in Vietnam, which was never a
declared war.
To take back some of its power, Congress passed the War Powers Resolution. The WPR:
implicitly authorizes the President to send military forces into combat for a limited time; but
requires congressional approval if they're going to stay past that limited period; and
requires the President to pull the troops out if both houses of Congress pass a resolution to that effect.
-Note: This is a legislative veto, but, because of the unique nature of the war power, its constitutionality is probably not
controlled by Chadha.
Is the WPR constitutional? The courts will probably never tell us since they avoid these issues. Only time, and politics, will tell.
See, for example, President Bush's statement upon signing the congressional authorization to invade Iraq, suggesting that he
wanted the authorization for political cover, in case the war went badly.
The War on Terror: Cases such as Hamdi reflect the Court’s overarching concern that Congress have agreed, even if only
implicitly, with the President’s course of conduct. As such they reflect the ultimate triumph of Jackson’s concurrence, which deemphasizes formalist pigeonholing of the action as “executive” or “legislative” or “war declaring” or “war commanding” in favor
of an approach that seeks to determine whether both branches are in fundamental agreement about proper action for the nation.
-The problem: If the war against terrorism is indefinite, the authority Congress was held to give the President in the AUMF
would be unlike any other war-fighting authority it has ever given.
-Justice Souter’s separate opinion calls for a clearer statement of congressional intent to authorize the detention of American
citizens, given that Congress is the branch best suited to worry about such liberty issues—thus, it should go on record as
explicitly concluding that security concerns outweigh those liberty issues.
-Justice Thomas, by contrast, sees the security issue as one that necessarily requires near complete deference to presidential
judgments, given his understanding of the functionally appropriate role of the branches in these cases.
-Boumediene also reflects the tensions between the branches, this time, including the courts. Congress & the President responded
to earlier Court decisions allowing judicial review of Guantanamo detainees’ claims by definitively closing the door to such
review. But the SC insist that it has a role in conducing the war on terror, via its authority to determine the legality of detentions
Ultimately, most war powers issues will be decided by the political branches. Nevertheless, note the intricate legal analysis in the
OLC memo concerning Libya. In particular, note how that memo relies heavily on the “gloss of history” to determine the scope
of the President’s war power – suggesting again how political branch accommodation creates constitutional law
The underlying ideas: how to determine the appropriate scope of federal power that is, federal power that is supreme—while also giving appropriate
respect to states as sovereign entities.
A. Martin v. Hunter’s Lessee: The ability of the federal government to be the authoritative expounder of its own laws.
-But: Note that state courts can still interpret federal law (subject to ultimate Supreme Court correction).
B. McColloch v. Maryland: The ability of federal institutions to be free of the possibility of destruction by state authorities (e.g., through a state
power to single out the federal institution for taxation).
-But: Note that states can still regulate or tax federal institutions as long as they’re not singled out.
C. U.S. Term Limits v. Thornton: The ability of the federal gov’t to have a direct relationship with the American people, unmediated by states
-But: Note that representatives to fed Congress still come from, &, in some real way, are accountable to, the people of the state they come from
The Necessary and Proper Clause
The N&P Clause gives Congress broad power to select the means by which it chooses to carry into execution the powers the rest of the Constitution
(e.g., Article I, Section 8) gives it.
For example, Article I gives Congress the power “to establish post offices and post roads”; in McCulloch the Court explains that this authorizes
Congress, under the N&P clause, to pass laws punishing postal theft
The issue in McCulloch itself—the constitutionality of the Bank of the United States—is addressed in the same way. The Court notes the
breadth of the powers has in Article I, e.g., to tax and spend, to regulate interstate commerce, and to raise armies, and notes how those
powers could be more effectively put into execution if the federal government had a central banking institution, such as the Bank of the U.S.
The basic rule: a deferential standard: “Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution,” are constitutional.
Much deference to Congress.
The main check on Congress’s selection of appropriate means is political.
As long as Congress has a “rational basis” for believing that the law in question is a valid way of implementing one of Congress’s enumerated
powers, that’s adequate for purposes of judicial review.
-The Comstock (2010) case nibbles around the edges of this broad power. Recall that in that case Congress enacted a law providing for continued
confinement of sexual offenders then in federal custody, beyond their release date. The Court adopted a complex, five-factor test to decide the
constitutionality of that law, upholding it. Importantly, though, two justices concurred on narrower grounds, and pushed back against overly-broad
interpretations of the N&P Clause, while two justices dissented. This line-up suggests new-found judicial concern with broad readings of this Clause,
paralleling the modern Court’s concern with broad readings of the Commerce Clause.
-In National Federation of Independent Businesses v. Sebelius (2012), five justices rejected the argument that the Commerce Clause, when combined
with the N&P Clause, provided adequate support for the Affordable Care Act’s individual mandate. While the individual mandate is somewhat
unique, in that it compelled persons to participate in commerce (by compelling them to buy insurance) and then regulated that participation, these
latter two cases suggest that the ultra-deferential approach of McCulloch may not always win out in the modern era.
The Commerce Clause: History
The early era (Marshall): view the commerce power very broadly
Broad definition of commerce
Federal power includes power to regulate local activities that affect interstate commerce
Any limits on federal power? If there are, Marshall saw them as deriving from the political process, not the courts
Approximately 1835-1890: very little federal regulation during this period, but states become active, especially after the Civil War. The
Court upheld state regulation against claims that the state law impermissibly regulated interstate commerce (remember the dormant
commerce), by defining commerce narrowly.
E.g., distinguishing between manufacturing & commerce (Kidd v. Pearson)
Exclusivity: The idea that all regulatory acts could be pigeonholed either as a regulation of interstate commerce or a police power
regulation, with either no or very little overlap. Kidd.
1890-1937: The federal government attempts to engage in more aggressive regulation. Much of this regulation is upheld, but the Court
also strikes down a number of statutes as going beyond the commerce power.
Theories/rationales (there are others; these are the main ones):
10th Amendment as a substantive limit on federal power: if the federal government was allowed to regulate as much as
it was trying to, there would be nothing left for the states to regulate, in violation of the idea that the states retained
their general police power and that the federal government was a government of enumerated power
Manufacturing versus commerce (e.g., E.C. Knight)
Intent: Congress could not regulate interstate commerce in order to achieve some other end that it did not have direct
power to achieve (e.g., the elimination of child labor in manufacturing) (Hammer)
Regulatory Exclusivity: The idea that a regulation must either be seen as a regulation of interstate commerce or as a
local activity. This idea led courts to reject innovative or unusually aggressive federal regulation, on the theory that
upholding that regulation would leave nothing for the states to be able to regulate
Direct v. indirect effects on interstate commerce (e.g., Carter Coal)
The problems with these theories
Lack of predictability: With the rise of an integrated national economy in the late 19th century, most everything could
be viewed as affecting interstate commerce in some way
Some problems that the traditional theory suggested were beyond federal regulatory power—e.g., with production in
industries of nationwide scope—required a national policy
These theories made it impossible for the fed gov’t to regulate or protect interstate commerce effectively (Carter Coal)
In 1937 the Court begins to retreat from its narrow reading of the commerce power. In Jones & Laughlin it upholds federal regulatory
power over the production processes of a large, integrated steel producer, though still using the direct/indirect effects test & careful to insist
that there was still a category of activity fundamentally local in scope that was beyond fed regulation. Test was soon abandoned entirely.
The Modern Commerce Clause
Pre-Lopez developments
Abandonment of the distinction between manufacturing and commerce; recognition of federal power to regulate local activities
that substantially affect interstate commerce, under the Necessary and Proper Clause (Darby)
Abandonment of the requirement that Congress only regulate when its intention relates to interstate commerce (Darby; also
Heart of Atlanta Motel)
Abandonment of the 10th Amendment as a substantive limit on federal authority; adoption of the 10th Amendment as simply
restating the nature of the federal gov’t as a government of enumerated powers (the 10th Amendment as a “truism”) (Darby)
Abandonment of regulatory exclusivity theory (Darby)
Adoption of the substantial effects test (Darby and Wickard), and the principle of aggregation (Wickard)
Acceptance of attenuated causal links, basically undermining the direct/indirect effects test (Wickard; also McClung)
Adoption of the rational basis test: did Congress have a rational basis for believing that an activity, in the aggregate, substantially
affected interstate commerce (Wickard; also Heart of Atlanta)
-Between 1937 & Lopez, then, it seemed that Congress could regulate almost any activity worth regulating by using its commerce power
-The rule after these cases: Congress could regulate as long as Congress could have a rational basis for believing that, in the aggregate,
the activity being regulated had a substantial effect on interstate commerce.
Lopez and Morrison: Lopez ushered in a new, uncertain period, as now it was no longer the case that any federal action could be justified as
a regulation of interstate commerce.
Three categories of actions that Congress can regulate under its commerce power:
instrumentalities of interstate commerce (the wheels of commerce and the goods shipped in interstate commerce)
channels of interstate commerce (the things that make interstate commerce possible: e.g., roads)
activities that substantially affect interstate commerce
 It was the third category that was at issue in Lopez
Did the Gun Free School Zones Act regulate an activity that substantially affected interstate commerce?
It did not regulate an economic/commercial activity, as did the statutes upheld in all the other post-1937 cases
There were no findings suggesting an interstate commerce link that was not obvious to the naked eye, or suggesting
that the activity was in fact economic even though it didn't seem like it was
-Note: In U.S. v. Morrison the Court rejects reliance on findings as support for fed regulation of non-economic activity
There was not a jurisdictional element requirement in the statute, ensuring that a particular gun did in fact travel in
interstate commerce (i.e. was a thing in interstate commerce)
The regulation at issue was not an essential part of a broader scheme of regulation of economic activity
The Court rejects the government's "cost of crime" argument, on the ground that, if accepted, it would allow the government to
regulate anything in the country
Note: A seeming return to the idea that the 10th Amendment had substantive meaning rather than just reflecting a
truism; under Lopez, as under pre-1937 cases, the states have to be left with something
A return to judicially enforceable limits on federal power
Justice Souter, dissents, suggests economic/non-economic activity distinction resembles old indirect/direct effects test
But still pretty broad leeway for the federal gov’t; the earlier cases, like Wickard, are distinguished, not overruled
Justice Kennedy concurs, expressing concern that the federal statute regulates in an area that has been traditionally regulated by
the states, and suggesting more careful Commerce Clause scrutiny of statutes that intrude on those traditional state powers.
(Compare National League of Cities and Garcia, cases dealing with congressional power to regulate states).
Raich: In Gonzalez v. Raich the Court threaded its way through the combination of classic post-1937 doctrine, Lopez and Morrison.
The Court fits the fact pattern of Raich within Wickard, citing the same possibility of diversion (or, in Wickard, market overhang)
as justification for federal regulation of the local activity.
The Court notes that the prohibition on locally-grown and consumed marijuana was necessary to the success of broader federal
regulation of interstate commerce in the product. Indeed, note that the Court suggested that as long as Congress had a rational
basis for believing this, that was enough to sustain the regulation of the local activity.
Congressional findings are held to be relevant, and thus Morrison distinguished, because the activity is defined as economic,
using a very broad definition of “economic activity.”
Congress had a rational basis for believing that California’s restrictions on medical marijuana would not suffice to prevent
medical marijuana from entering into the interstate market.
Justice Scalia concurs on the ground that the prohibition is necessary to the vindication of a broader regulatory scheme, even if
the regulated activity (here, the prohibition on the local cultivation and possession) is not economic. He doesn’t use “rational
basis” language, but the majority does.
The Dormant Commerce Clause
The Basic Idea: Sometimes state law will be considered constitutionally invalid even in the absence of conflicting federal legislation. In
other words, sometimes the grant of power to Congress to regulate interstate commerce will, in itself and without any congressional use of
that power to enact a statute, serve to prohibit a particular state regulation.
The Background:
Before the Constitution was drafted, states regulated interstate commerce, leading to trade wars and embargoes that harmed
national prosperity. The drafters of the Constitution accordingly gave the power to regulate commerce to the federal government.
In Gibbons Marshall suggests that the power to regulate commerce may exclusively rest with Congress, that is, that the states do
not share that power, as they share, for example, the power to tax. But he doesn't have to decide that issue in Gibbons (or in the
rest of his career). At the same time, Marshall assures the states that they retain their traditional police power.
In Cooley the Supreme Court holds that whether states can regulate the navigation of ships in their harbors depends on the nature
of the issue – that is, is it the kind of issue that requires differing rules or is a uniform national rule appropriate.
The Modern Rule: rule attempts to remain faithful to Marshall's division between fed power to regulate commerce & state police power
First, ask whether the statute attempts to regulate transactions beyond its borders, or discriminates against interstate commerce.
Extraterritorial regulation is per se unconstitutional. Baldwin v. G.A.F. Seelig (a state law that attaches legal
sanctions to a transaction occurring beyond the state’s borders is an extraterritorial regulation and is unconstitutional).
So is a tariff barrier (again, Baldwin)
The most important situation here is where a state discriminates against interstate commerce: for example, when
a state bans or inhibits the sale of a product produced out of state (e.g., Maine v. Taylor or Dean Milk v. Madison)
Note that the discrimination must be against interstate commerce, rather than against particular participants in that
commerce (Exxon Corp. v. Governor of Maryland). However, courts may also examine whether out-of-state interests
are burdened to the benefit of in-state interests. (Barnwell Brothers). Note also that state subsidies to in-state
manufacturers do not constitute the kind of discrimination banned by the dormant commerce clause. (West Lynn).
If the statute does discriminate then you need to ask whether there is a valid local interest served by the statute that
cannot be served by less discriminatory means. For an example of this "narrow tailoring” requirement, see Dean Milk
If the statute fails strict scrutiny, then it is struck down. If it satisfies strict scrutiny, then you should consider the
statute to be valid. E.g., Maine v. Taylor (the baitfish case, which we didn’t discuss, but which simply stands for the
proposition that the narrow tailoring requirement is not invariably fatal to a challenged law)
If the statute does not discriminate or directly regulate interstate commerce, a court will balance the benefit the statute provides
local inhabitants against the burdens the statute places on interstate commerce.
Note that any state law will impose at least some burden on interstate commerce. A speed limit on a local street, for
example, will make interstate commerce more difficult (even though it might make it safer); a state tort law (judge
made or statutory) will affect the willingness of out-of-state manufacturers to sell in the state.
The balancing here is skewed in favor of the state law's validity: the question to ask is whether the burdens on
commerce are "clearly excessive" in relation to the benefits to state residentsea.
Note that the importance of the discrimination issue suggests a reliance by the courts on a version of political process theory –
that is, the theory under which constitutional rules are based on courts’ estimates of how effectively and fairly the democratic
process is working. The most explicit exposition of this in the DCC context is footnote 2 of Barnwell, but you can also see it in
Carbone and West Lynn Creamery.
It is settled law that, if a federal law conflicts with a state law, the state law must give way, due to the Supremacy Clause of the Constitution (Article VI).
An example of this is Gibbons, where the state law monopoly had to give way to the federal coasting license authorizing Gibbons to sail between ports in New
York and New Jersey. The preemption doctrine asks whether the federal law does in fact conflict with state law.
The types of preemption:
Express preemption: Congress explicitly states that it intends the federal law to preempt state law on the topic.
Implicit preemption
Field preemption: The fed law is so comprehensive that it is assumed Congress must have intended fed law to displace
state law on the topic. E.g., City of Burbank v. Lockheed Air Terminal (note case toward end of preemption materials)
Conflict preemption:
Physical impossibility: Given the requirements of federal and state law, it is simply impossible for a private
party to comply with both.
Example: Federal law that provides that only medical information be placed on drug labels, while a state law
requires the country of origin to also be noted; it is impossible for the drug maker to comply with both laws,
and thus the state law is preempted.
Impairment of federal objectives: It might be physically possible to comply with both fed & state law, but
private party compliance w/ the state law would frustrate the attainment of one of the purposes of the fed law
Example: Fed law imposes moderate safety requirements on employers in the construction industry as part of
a compromise between worker safety & cost. It might not be physically impossible for employer to comply
with even more stringent state requirements, but it might frustrate the fed objective of balancing cost & safety
The Presumption Against Preemption
-Courts will not presume that a federal law preempts state law; in fact, there is a presumption that there is no preemption, unless it can be
clearly shown that Congress did in fact intend to preempt (note that such an intent can be found by any of the above means).
-The point of the presumption: To protect the states, by interpreting ambiguous federal laws so as not to limit state regulatory power.
Also, this type of quasi-"clear statement" requirement serves to put states on notice that a bill pending in Congress might affect their
interests, so as to allow them to organize to oppose the bill if they choose (the "political safeguards of federalism").
This topic concerns situations where Congress is legislating in an area within its Commerce Clause authority (e.g., by enacting a fed labor law) but the law,
or its application to states, is such that the Court considers it to violate the fed structure implied by the Constitution & reflected textually in 10th Amendment
Regulation of the States as economic actors:
In National League of Cities v. Usery (1976) the Court held that Congress could not impose generally-applicable
regulation (e.g., a labor law or an environmental law) on the states if doing so would impair the ability of the states to
provide traditional government functions.
Nine years later in Garcia v. San Antonio Transit Authority (1985) the Court overruled National League, and allowed
Congress to impose such regulation, as long as the federal law contained a clear statement making states part of the
regulated class. The Court relied on the states’ ability to protect themselves through the political process, rather than
attempting to impose judicially-enforced limits on Congress’s ability to regulate the states.
-Theme: The political safeguards of federalism.
Anti-commandeering: In Printz v. United States the Court struck down a federal law that attempted to use state law enforcement
apparatus to enforce federal law. The Court was concerned that such “commandeering” would reduce the states to mere agents of the fed
gov’t, & impair the state government’s accountability to its citizenry, and would be inconsistent with the idea that states retain sovereignty
 The anti-commandeering also applies to federal attempts to commandeer state law making apparatus (New York v. United States) but not
“commandeering” of the state judicial apparatus (Testa v. Katt).
A. The 11th Amendment
1. Introduction
-The 11th Amendment immunizes the states from certain lawsuits brought in fed court. Which ones? Depends on how you read the amendment
-On its face, the amendment simply bars a state from being sued by a citizen of another state. But in Hans v. Louisiana, the Court read it more
broadly, as reaffirming background principles of sovereign immunity, which include a state being sued by one of its own citizens.
-There are a variety of ways P’s can get around a state D’s sovereign immunity. We focused mainly on 2 of them & on a 3rd very, very passingly
1. Ex parte Young
2. Waiver/Abrogation
-Very passingly, we also noted that the U.S. Supreme Court can review federal law decisions of state courts even though those state court cases
might involve states that did not consent to being sued in federal court.
Ex parte Young
The theory: When an individual sues an individual officer, rather than the state itself, he is not really suing the state,
because the officer, by acting illegally, is stripped of his official immunity. (Thus, Young is sometimes called the
"stripping" doctrine.)
The problems:
A state only acts through individual officers, so distinction between state & its officer somewhat meaningless
The 14th Amendment (which is the source for many of the federal rights individuals have against states)
prohibits states from denying due process or equal protection. Thus, the “well recognized irony” of Young:
for purposes of the 11th Amendment the plaintiff is suing an individual, not a state, but for purposes of the
14th Amendment the plaintiff is in fact suing the state. See, e.g., Pennhurst.
Limitations on Young:
the individual has to sue an individual officer, not the state; and
must seek only prospective, not retroactive, relief (Edelman); and
the legal violation must be of federal, not state, law (Pennhurst); and
the statute which P claims is violated must not include a "detailed remedial scheme" (Seminole Tribe); &
the relief must not implicate the state's sovereignty in some especially significant way (Coeur d'Alene).
Explicit Waiver
-States are always free to waive their sovereign immunity to federal court lawsuits, but those waivers must be explicit.
Implied Waiver
States are also thought to have implicitly waived their sovereign immunity by ratifying certain constitutional provisions
that gave Congress regulatory authority. This type of "implicit waiver" requires two things:
constitutional provision at issue in fact grants Congress the power to abrogate state sovereign immunity; and
that, assuming such power exists, Congress has actually exercised it by enacting a statute that abrogates state
immunity. (Note that such a statute much be clear that it is abrogating state sovereign immunity. See
Seminole Tribe. Another example of clear statement rules operating to protect the federal-state balance.)
Under which provisions have the states impliedly waived their sovereign immunity?
The 14th Amendment, which includes explicit limits on state regulatory autonomy (by saying "no state
shall . . . deny due process or equal protection"); under Section 5 of that amendment, Congress has the
power to "enforce" the provisions of the rest of the amendment. Fitzpatrick v. Bitzer.
Article I? In Union Gas the Court holds that Congress, when legislating pursuant to its Article I power,
does in fact have the authority to abrogate state sovereign immunity. But in Seminole Tribe the Court
overrules Union Gas; thus, the answer is "no."
Justice Souter dissents in Seminole Tribe, pointing out that the majority’s view of the 11th Amendment
as a hard-and-fast jurisdictional bar on such lawsuits against a state, does not jibe with the Court’s
treatment of the 11th Amendment in other contexts. For example, he notes that the Supreme Court can
grant cert. on federal question cases that arise through the state court system, even if the state had not
consented to being sued in federal court. There’s good reason for the Court’s practice (see Martin v.
Hunter’s Lessee), but it reveals that the 11th Amendment in some cases is less of a hard-and-fast
constitutional jurisdictional bar, and more of a common law principle that the Court can make
exceptions to when appropriate.
But see Central Va. Comm. College v. Katz, where the Court allows Congress to abrogate state
sovereign immunity when enacting laws under its bankruptcy power.
B. Alden and 10th Amendment-based sovereign immunity: In Alden v. Maine the Court found that state sovereign immunity, as implied by the entire
federal structure, extended to federal attempts to make states suable in the state’s own courts. The court expressed concern that allowing states to be
sued would impair states’ accountability to their own citizens, thus impairing their status as sovereigns. The same exceptions and limitations to the
11th Amendment rule of sovereign immunity apply as well to state immunity from suits in their own courts.
-Theme: The Court in several of these cases attempts to determine the true nature and meaning of a branch’s role – what does it mean to be a state?
The Taxing Power: very broad
The power to tax and spend "for the general welfare"
2. No inquiry into whether the tax has a regulatory effect, or whether that regulatory effect was the primary purpose of the tax. Sonzinsky.
3. As long as the tax looks formally like a tax (as opposed to a fine) and produces at least some revenue, it will probably be upheld.
4. See also the arguments made in favor of the Health Care law’s status as a tax. Those arguments appear more intricate than the ones in
Sonzinsky, perhaps because the payment in the ACA case was not explicitly styled as a tax.
The Spending Power: as a general matter, also very broad. South Dakota establishes the rules for the particular situation of federal
spending grants to the states
The grant must be for the general welfare (but this is so broad the Court wonders if it is a judicially enforceable limit)
The condition must be clear on the face of the grant, so the state knows that its freedom to act will be limited if it takes the money
-Theme: Note again the political safeguards of federalism
The condition must be related to the spending grant
-In South Dakota, the purpose of the grant was safe highways, which would be impaired if the state allowed a lower drinking age
than the rest of the country, as that would lead to underage drinking and driving to get to the state with the lower age
-Justice O'Connor dissents on this point, suggesting that the relatedness requirement be construed more tightly.
-Note, though, that the majority leaves open the precise scope of the relatedness requirement, thus keeping the issue open for
decision in a later case.
The condition must not infringe on another constitutional provision, e.g., a federal condition that states receiving federal
education funds deny students their right to speak
-Note that this requirement does not speak to structural constitutional provisions, such as federalism; the Court has a much
narrower set of constitutional rights in mind that the condition cannot violate.
The law can’t coerce the states. See the decision in the Health Care law for an example of coercion. Note the dissent’s argument that
it is very difficult for courts competently to distinguish between grants that truly leave a choice in the hands of the states, and
conditions that are so onerous that, in essence, they are coercive.
It’s always been understood that the 14th Amendment confers substantive constitutional rights. But the source & content of these rights has varied
considerably since 1868.
The Source of 14th Amendment Substantive Rights
A. The Privileges and Immunities Clause: In the Slaughter-House Cases the Court read the 14th Amendment’s P&I clause very narrowly, despite
indications that the 14th Amendment’s drafters intended it to be the main repository of substantive rights.
Which Rights? After Slaughter-House the P&I clause protects only “the privileges and immunities of national citizenship,” which the
Court distinguished from the privileges and immunities of state citizenship, which were left to state protection. The list of federallyprotected rights under this approach is not trivial, but still not particularly significant.
B. The Due Process Clause
Despite Slaughter-House, the Court soon began to search for theories that would allow some federal judicial check on state regulatory action while
allowing traditional state regulatory power to remain intact. With the P&I clause unavailable, thanks to Slaughter-House, the Court moved to the
Due Process Clause, where it has largely remained.
C. Other Provisions
In Griswold v. Connecticut, Justice Douglas attempted to avoid reliance on the Due Process Clause when finding a right to privacy. Instead, he relied on
the “penumbras” created by a variety of Bill of Rights provisions, such as the 1st Amendment, to find this right. Also in Griswold, Justice Goldberg
relied on the 9th Amendment to find a right of privacy. Neither of these approaches has retained lasting appeal on the Court.
The Content of 14th Amendment Substantive Rights
A. The Right to Contract
Munn And Regulation for the Common Good: In Munn v. Illinois the Court recognizes that government may infringe on traditional
property rights as long as it does so in pursuit of the public good (as opposed to doing so purely at the behest of a competing private
interest). In Munn the Court referred to the common law to determine which types of property were invested with a public interest, such
that reasonable regulation could occur. It locates this doctrine in the 14th Amendment’s Due Process Clause, which protects against
deprivations of life, liberty or property without due process of law. “Due process of law” comes to mean not just fair procedure, but
government action that is substantively non-arbitrary.
Lochner: In Lochner the Court holds that, to be valid, infringements on “the liberty to contract” must be reasonable attempts to achieve
some public good. In Lochner the Court strikes down the New York law mandating maximum working hours for bakers, on the ground
that, according to the Court, the law is not necessary for the protection of bakers’ health or the public health, and that bakers are not so
incapable of protecting their interests that they need special state protection (as, for example, children might). Thus, the regulation was
neither in pursuit of a public interest nor reasonable.
a. Lochner’s Fear: The Lochner majority worried that simply deferring to the state’s asserted public purpose objectives would sanction
political warfare whereby factions that took control of government would be able to destroy the rights of their enemies. The Court felt
a need to protect what it saw as a constitutional right to act in the economic marketplace (i.e., to contract for the sale or purchase
of goods or labor) against legislative attempts to distort economic rights by mandating certain conditions (e.g., prices or terms of sale).
b. The Depression and the End of the Lochner Era: The Great Depression raised economic challenges the nation had never experienced.
In response, the state and federal governments began regulating more aggressively, and regulating industries and economic
relationships that theretofore had been unregulated.
c. In Nebbia the Court recognized that a legislature might be just as competent as a court to determine that a business was affected with a
public interest, and thus subject to infringements on its right to contract.
d. Similarly, in West Coast Hotel the Court was willing to presume the existence of facts justifying the legislature’s conclusion that
regulation was justified by a public interest.
4. The Modern Rule of the Right to Contract: In Ferguson v. Skrupa the Court makes it clear that legislatures will have broad authority to
regulate economic affairs. Judicial review remains, but is very deferential:
a. First, the regulation would be upheld as long as the Court could perceive a rational basis for the regulation.
b. Second, the Court would presume the existence of facts supporting the existence of such a rational basis, with the burden being on the
challenger to disprove the existence of such facts. (See, e.g., the statement in Carolene Products to which Footnote 4 is appended.)
c. This is an exceptionally deferential test, which makes due process right to contract claims essentially impossible to win today.
Selected Provisions of the Bill of Rights
Starting in the 1890’s the Court began to conclude that the “liberty” protected by the Due Process Clause included particular provisions of the Bill of
Rights, or, in other words, that those provisions were “incorporated” by the Due Process Clause to apply against the states.
1. The three theories of incorporation
a. “Selective” incorporation: This method, associated with Justice Cardozo’s opinion in Palko v. Connecticut, asked whether the
particular Bill of Rights provision was “part of the very essence of a scheme of ordered liberty” such that to violate it would
violate “a principle so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Under this
approach, courts would pick and choose which Bill of Rights provisions would apply against the states. Critics, such as Justice
Black, criticized such an approach as allowing judges simply to pick the provisions they personally considered most important or
worthwhile as candidates for incorporation.
b. Total incorporation: This method held that all Bill of Rights provisions were incorporated against the states. This method also
implied that due process liberty meant only what was in the Bill of Rights. This method has the advantage of being mechanical,
and denying any discretion to judges.
c. The Frankfurter approach: This approach, associated with Justice Frankfurter’s opinion in Adamson, looked for the meaning
of due process “liberty” independently of the Bill of Rights, by asking questions similar to those asked by Justice Cardozo. Of
course, the answers might well include liberties in the Bill of Rights, but, unlike Cardozo’s approach, any relationship between
the Bill of Rights and 14th Amendment liberty was purely coincidental. This approach, therefore, would allow for recognition of
due process liberty rights beyond those provided for in the Bill of Rights.
2. The Prevailing Theory
As will become clear in post-Griswold cases, the Frankfurter approach has largely prevailed. Due process “liberty” includes most, but
not all, of the Bill of Rights, as well as an unenumerated right to privacy, as recognized in Roe v. Wade.
Unenumerated Non-Economic Rights
In addition to the right to contract and selected provisions of the Bill of Rights, the Due Process Clause has also been interpreted to
provide significant protection to rights that can vaguely be grouped under the rubric of personal autonomy and family.
Standard Analysis: The standard method of analyzing these claims entails three steps:
Identify the right at issue. While seemingly obvious, the debates in Moore and Michael H. make clear that
identifying a right requires identifying the appropriate level of generality at which it should be identified. There is
no accepted way of doing this.
Justice Scalia in Michael H. would identify the right narrowly, largely in an attempt to minimize the
unrestrained judicial discretion that might occur if this restriction did not bind judges.
-Theme: The Court’s constant anxiety about unrestrained judicial discretion to strike down laws
enacted by the People, acting through their legislatures.
Justice Brennan in Michael H. would identify the right broadly. While he doesn’t explicitly explain why, it
seems fairly clear that his method is aimed at least in part at protecting minority or nonconformist versions of
fundamental rights (e.g., an unconventional family structure). See also his concurring opinion in Moore.
-Theme: Equality as an underlying idea in constitutional law.
Factors to use in identifying the right?
Legal factors, such as the common law’s distinguishing between being allowed to refuse unwanted
medical treatment and being allowed to commit suicide (see Glucksberg)
Social history, as exemplified by Moore
Determine if the Right is Fundamental. How to make this determination?
Ask whether the right is “implicit in the concept of ordered liberty.” This is, of course, such a vague
inquiry that in reality it’s usually necessary to engage in additional inquiries.
Ask if the right is firmly supported by American history and tradition (e.g., the extended family in Moore).
Only recent history? Note that in Lawrence the Court stated that it was appropriate to focus only on the last
50 years when doing historical analysis.
Ask if the right is one that is coming to be accepted as fundamental under the “living tradition” approach of
Justices Harlan. E.g., Lawrence.
Apply the correct level of scrutiny.
If the right is fundamental, apply strict scrutiny: Is the government action narrow tailored (or, in other words,
it is the means least burdensome on the exercise of the asserted right) to attain a compelling government
interest? See Moore for a (quick) application of the narrow tailoring requirement.
If the right is not fundamental, apply the rational basis test: Is there a rational basis for concluding that the
government action furthers a legitimate government interest? See Glucksberg.
Variations on the Standard Approach:
The Harlan “reasonableness” approach. In Poe v. Ullman Justice Harlan enunciated a due process test that seeks
to weigh the government interest against the individual’s interest. Under this test, the Court’s job is not to second
guess the legislature’s resolution of that weighing, but simply to ensure that the legislature’s weighing yielded a
reasonable result. This test still requires determination whether an interest is fundamental, and it still calls for
heightened scrutiny of infringements of rights deemed fundamental – but this is all done under the banner of
“reasonableness.” Importantly, this approach attempts to locate the current state of evolving tradition, i.e., it doesn’t
look exclusively backward.
Lawrence appears to have adopted a hybrid of these approaches. It looks to history, but it starts the history clock
approximately 50 years before 2003. Similarly, it relies on precedent, but finds Griswold to be the appropriate
starting point for analysis. Thus, it seems to look at history, but to implicitly recognize that the evolution of that
history matters. Finally, it seems simply to apply rational basis review, rather than explicitly upping the scrutiny
level to strict scrutiny.
Lawrence and Obergefell, but especially Obergefell, also focus on the equality implications of depriving certain
rights to certain groups (in these cases, gays and lesbians). In one sense, the liberty-equality connection these cases
draw can be understood as a modern variant on the old idea that due process and equal protection should be
understood as one unified concept.
Abortion has a unique level of protection, given the uniqueness of the right & of the state’s interests. Current rule is from Casey.
A woman has a right to a pre-viability abortion w/o undue burdens from the state (“undue burden” standard).
An “undue burden” exists if a regulation’s purpose or effect is to place a substantial obstacle in the path of a
woman seeking a pre-viability abortion.
The state has the power to restrict abortions after viability, even to the point of banning them (as long as there’s a
woman’s health exception). But note that Congress (and states?) appears to have some discretion to determine that
certain abortion methods are never necessary for women’s health (Gonzalez v. Carhart).
Throughout the pregnancy the state may regulate abortion either for purposes of protecting women’s health or the
potentiality of fetal life.
try to convince the mother to choose childbirth
health-based restrictions on abortion
 Again, these regulations, if applied to pre-viability abortions, cannot constitute an undue burden.
Cases such as Whole Women’s Health reflect the sort of abortion regulation that is often done today—regulation of the
health facilities and providers that perform abortions. Note the majority’s careful fact-based analysis of whether those
regulations were necessary for the health of the women undergoing the procedure, and what the effect would be of
those regulations on the availability of abortion.
Particular Rights Acknowledged to be Protected by the Due Process Clause
Directing the education of your children (Meyer and Pierce v. Society of Sisters)
Possession and Use of Contraception (Griswold)
Abortion (Casey)
Living within Extended Families (Moore)
Sexual intimacy (Lawrence)
Same-sex marriage (Obergefell)
 Note, of course, that this list only enumerates the results of the cases we’ve read; depending on how broadly or narrowly
those cases are read, they may end up standing for more than these rights, as they are described above.
The Theory
Basic Point of the EPC: Legislation always classifies; the EPC is intended to ensure that legislatures classify appropriately, i.e., that they
“treat likes alike” and “differents differently”
Why should courts provide this assurance? Because making legislative policy applicable to all similarly-situated persons is a good way of
ensuring good policy.
If the legislature could enact, say, a confiscatory tax but only apply it to unpopular segments in society, then those unpopular
segments would consistently face disproportionate burdens.
But if the confiscatory tax had to apply to everyone that was similarly situated, the politically powerful groups who faced that
burden would provide a strong political check on the enactment of such legislation.
 On this point, see Justice Jackson’s concurrence in Railway Express.
The Problem with the Theory: It begs the question, “who are similarly situated,” and who gets to decide that. Theoretically, the courts
have the final word, via EPC challenges to legislation, but in reality, courts will presume the reasonableness of most legislative
classifications (see discussion of rational basis review, below)
The Fundamentals of Modern Equal Protection Law
Today, legislation challenged under EPC will be reviewed with varying degrees of scrutiny, depending on the challenged classification
Classifications based on race or national origin are subject to strict scrutiny. Strict scrutiny asks if the classification was
narrowly tailored to serve a compelling government interest.
Classifications based on gender are subject to intermediate scrutiny. Intermediate scrutiny asks if the classification serves
important governmental objectives and are substantially related to achievement of those objectives.
All other classifications we studied (collectively known as “economic and social regulation”) is subject only to “rational basis”
review. Rational basis asks if it is conceivable that the classification bears a rational relationship to a legitimate government
interest. (Note: There are classifications we did not study that get heightened review—don’t worry about them if you encounter
them in separate reading.)
The criteria for analyzing whether a class is a suspect class:
history of discrimination
the “fairness” of the government’s use of the characteristic (e.g., race) as a classification tool
relevance of the characteristic to the individual’s ability to contribute to society
3. current political powerlessness
 See, e.g., Cleburne and Frontiero
The Theory Behind Different Tiers of Review: Carolene Products Footnote 4
-The basic theory of Carolene is that non-suspect classes (e.g., business interests) are able to protect their interests in the political process
(assuming the process is fair, which is why paragraph 2 of Footnote 4 also discusses stricter judicial scrutiny for statutes impeding
access to the political process). But groups against which there is prejudice, and which are discrete and insular, may not be able to
protect their interests in the political process and thus require heightened judicial protection.
-Over time, this theory has led to the three-tier system we have today.
Rational Basis Review
The Bottom Line: Very deferential review except in certain circumstances where Court seems to deviate from its own rules regarding rational basis
The Rule: Rational basis asks if it is conceivable that the classification bears a rational relationship to a legitimate gov’t interest.
The Modern Analysis: Under the modern rule, rational basis review is usually (though not always) extremely deferential.
Identification of the public purpose: At most, the Court will hypothesize a public interest (see, e.g., Fritz). It may even
identify the purpose with explicit reference to what the statute actually accomplished (which of course, makes the statute’s
relationship to the purpose a foregone conclusion). See Fritz
Relationship Between the Statute’s Classifications and its Purpose: Very lenient. Is it conceivable that the statute has a
rational relationship to the purpose?
Theme: A very similar test to that under the modern substantive due process right to contract.
A. The Evolution of the Standard
1. Originally rational basis review; in 1971 in Reed the Court uses rational basis review to strike down a gender classification.
2. Three years later in Frontiero a plurality of the Court is willing to give gender strict scrutiny.
3. In Craig v. Boren (1976) the Court settles on intermediate scrutiny.
B. The Intermediate Scrutiny Standard
1. The formula: substantially related to an important government interest.
2. What does this standard mean?
a. a more skeptical look at statistical correlations, either requiring a tighter fit or reflecting skepticism about underlying
assumptions about gender (Craig)
b. a more searching look at the government's reasoning more generally, e.g., a closer examination of what was really
motivating the government (Virginia).
3. Does Virginia change the law?
a. The Court cites the same intermediate scrutiny standard but explains it by reference to the requirement that a gender line
have "an exceedingly persuasive justification."
b. Note how tight a correlation there has to be now between the gender line and the legitimate government interest; the fact
that one woman might have wanted the adversative training at VMI was enough to render the classification overbroad
c. The Court also insists on determining the state’s actual intent, rather than an intent that might have motivated the
government (compare Michael M., one of the note cases, where the Court credits what might have been California’s motive
in enacting its gender-asymmetrical statutory rape statute)
d. But the Court still accepts that women and men are different (unlike the races, which are presumed to be the same in all
relevant respects), which means that some differences will be allowed:
i. affirmative action for women
ii. other gender-conscious acts that aren't based on archaic stereotypes or which don't subordinate women (e.g., Nguyen)
e. When can separate but equal be OK in the gender context?
i. when it corresponds to a real difference between the genders. E.g., Nguyen, where a majority finds a real sex
difference that justifies differential treatment (but does this justification satisfy Virginia’s “exceedingly persuasive
justification” standard? The dissent argues it does not)
ii. when it's really "equal" (unlike VWIL, when compared with VMI)
iii. again, though, note that the Court may well be skeptical if they think that the “real” difference identified by the
government is in fact just a stereotype (raising the question, what is a “real” difference?)
School Desegregation
The Background
Plessy v. Ferguson, which upholds a state law mandating segregation in railway cars on the ground that any inferiority seen by
the segregation is something blacks are themselves responsible for projecting.
Attack on Segregation: Cases were litigated in 30’s, 40’s, early 50’s attempting to show that separate was not, in fact, really equal
Brown v. Board of Education I
The Court focuses on the importance of education, and notes the psychological data showing the psychic harm segregation does
to black children, in holding that separate can never be equal in public school education. It also is more willing to see this harm
as resulting from the government action, and not purely as the victims’ own, private reaction.
Theme: The difficulty the Court has interpreting an amendment whose drafters probably endorsed the very practice the Court
wishes to condemn under the statute (see the Brown Court’s refusal to rely on the legislative history of the 14th Amendment).
This is a major challenged confronting the interpretive methodology known as “originalism.”
Theme: Judicial crafting of constitutional rules based on sociological or psychological data.
The Per Curiam opinions: While not relevant to school desegregation, the next chronological step in the Court’s race jurisprudence was to
use Brown as the authority for getting rid of all state-sponsored segregation.
-In particular, note Loving v. Virginia, which was ambiguous about whether the problem with the anti-miscegenation law in that case was
invalid because it was based on White Supremacy or simply because it was a racial classification. The answer to that question (if there is
an answer) has a lot of impact on the Court’s encounter with affirmative action, starting with Bakke in 1978.
Desegregative Remedies
Brown II:
Move with all deliberate speed
Local school districts have lots of discretion
The first ten years after Brown: no movement by school districts.
By the mid-1960’s the Court was getting impatient with the slow pace of desegregation. In Swann (1971) the Court considers the
sorts of remedies district courts can impose.
require remediation of disparities in facilities, equipment, etc.
oversee school siting decisions, given the influence those decisions have over long-term residential and school
attendance patterns
aim at proportional attendance throughout the district, at least as a target when considering district’s attendance policies
busing is OK as long as it doesn’t harm kids or impact their education too much
Cutbacks on Desegregation
Milliken: No inter-district remedies unless segregative violations in the core district “caused” segregation in suburban districts
The theory: The remedy has to fit the violation.
The problem: This may make effective relief impossible, given white flight from inner city school districts.
Spangler: Re-segregation of the schools may be OK if it’s the result of private decision-making.
Theme: Segregation begets and encourages all sort of private discriminatory conduct: how can the court tease out what private
conduct is “truly” private and what is encouraged by the state? Compare the state action doctrine, and the rationale for Brown’s
rejection of Plessey’s attribution of any oppressive messaging in segregation to black persons themselves.
The Bottom Line on Desegregation: too difficult for courts to manage?
Involves the court in broad social policy involving lots of private decision-making.
Too broad a role for the courts to perform successfully? (Miliken, Spangler, Jenkins)
Too long-term a project for ongoing judicial supervision, given the federalism problems inherent in federal judicial
control over local government entities such as school boards? (Freeman)
Affirmative Action
The history: Used in some form by presidential administrations from Kennedy forward, mainly in employment and contracting. The first
judicial challenge to affirmative action, DeFunis v. Odegaard (1974), dealing with law school admissions at a state university, was
dismissed on mootness grounds without the Court considering the merits of the case.
1978-1989: Judicial ambivalence
-Starting with Regents of the U. of Calif. v. Bakke (1978), the Court began an inconclusive eleven years of sharply divided and ambiguous
holdings about the constitutionality of affirmative action. Bakke, Fullilove, Wygant, Paradise
Affirmative Action in Hiring: Strict scrutiny in Croson.
1. Federal and State programs, though potentially some room for Congress to legislate under its § 5 power. (Later this idea of a
differentiation between federal and state power is rejected.)
2. Why Strict Scrutiny?
a. The Court can't tell when a program is benign and when it's invidious. Strict scrutiny is thought to "smoke out" invidious
intent, distinguish invidious classifications from benign ones.
b. In general, race classifications stigmatize and reinforce stereotypes.
c. What about Carolene Products & the political process idea behind suspect classes? At least in Croson, SC notes that whites
in Richmond were a minority on the city council, & thus could be considered in some ways a discrete and insular minority
3. Applying Strict Scrutiny
a. The test: Is the race classification narrowly tailored to meet a compelling government interest?
b. What interests is Richmond asserting?
remedying societal discrimination – not enough
remedying particular discrimination in this industry – this is enough, but the City doesn't give enough
precise evidence of that discrimination to convince the Court that it exists
a very tough test: the Court wants very precise proof of actual evidence of this precise type of discrimination
c. Assuming the existence of a compelling gov’t interest, is there narrow tailoring? According to the Court, No.
the City didn't first try race-neutral means of taking care of any problem that might exist
The 30% number is too approximate, and includes groups, such as Eskimos, that probably were never the
subject of serious discrimination in Richmond
“the City used race as a first option, not a last resort"
d. Does this mean all affirmative action in contracting is going to be struck down? Unclear. The Court goes out of
its way to say that "strict scrutiny is not necessarily fatal scrutiny." However, the proof of past discrimination
must be quite precise, and the remedy very carefully tailored.
Affirmative Action in Higher Education: Grutter, Gratz, and Fisher
i. The Court sticks with the strict scrutiny standard but arguably applies it more deferentially (e.g., deferring to schools’ judgments
about what’s necessary for a quality education) and stating that narrow tailoring doesn’t require the school to try every raceneutral means it can think of.
ii. Also notes the compelling interest in maintaining a racially diverse student body.
iii. Requires that race-based affirmative action treat people as individuals, not as members of racial groups
1. thus, the “whole person” analysis of the law school is accepted while the automatic benefit approach of the
undergraduate college is rejected
2. Note the tie-in to Washington v. Davis’s insistence that equal protection rights are “personal rights”
iv. In Fisher, the Court again applies relatively relaxed review, for example, not seriously questioning Texas’s argument that the
Top 10% plan was not providing a critical mass of minority students.
Parents Involved
-In Parents Involved a changed court (with the addition of Roberts and Alito) is much more suspicious of racial classifications than in
Grutter. Moreover, the Louisville and Seattle plans can’t pretend to judge would-be students individually (given their young ages); rather,
race is used rather bluntly (although not as the first decision-making criterion) to achieve the districts’ goal of integrated schooling.
Because of the lack of individualized consideration, and because the Court finds that the districts’ race targets for each school were too
correlated with overall district demographics, the Court finds the use of race overly-broad and thus unconstitutional. The Court also rejects
the idea that the districts themselves can determine when there is discrimination that requires or justifies a remedy.
-Theme: Judicial insistence on its own supremacy in determining whether discrimination exists that might justify remedial action
(compare Croson, where the Court similarly refused to credit Richmond’s argument that discrimination existed, and congressional
power to enforce the 14th Amendment).
-The Kennedy concurrence: Justice Kennedy provides the crucial fifth vote in Parents Involved. He agrees with the plurality that the
districts’ use of race is too blunt (or insufficiently narrowly tailored). However, he would allow districts to take actions designed to
mitigate racially segregated schools, as long as those actions did not entail providing or withholding opportunities to individual students
solely on the basis of their race.
-A fundamental question in Parents Involved: What was Brown all about? Was it about the message of racial inferiority sent by the
segregation in that case (and, eventually, all Jim Crow laws), or was it simply and only about racial classification of any sort?
The Black Letter: Disparate Impact is not by itself enough to make out a constitutional claim. The government action must have been
intended to burden a particular group.
B. How to Show Intent?
1. Obviously, if the statute facially classifies -- e.g., a school board policy that explicitly requires segregation on the basis of race
2. Or if the statute is facially neutral, but a court concludes that it in fact was motivated by an intent to classify on the asserted ground.
3. How to show such intent? (Arlington Heights)
a. The plaintiff first has the burden to show that the alleged intent was a motivating factor in the government's decision.
b. What factors will a court look at in order to determine whether such intent existed? (Arlington Heights).
the extent of the disparate impact
foreseeability of the disparate impact (Feeny)
the historical background of the decision
sudden changes in procedure
sudden changes in substantive policy
legislative/administrative history
c. If the plaintiff succeeds in that showing, then the burden shifts to the government to prove that it would have taken the same
action, even absent that discriminatory intent.
d. The Role of Statistics
Generally not enough; disparate impact is not enough. But sometimes statistics show a pattern that is
impossible to explain except as racially-based (Yick Wo and Gomillion).
But what if they’re very probative, or suggest a systemic discrimination that’s unprovable in any way?
Animus (hatred)
In cases starting in the 1970’s & continuing to today the Court struck down laws as violating equal protection, even while purporting to do only rational basis
review. These laws affected classes (i.e., the mentally retarded, lesbians and gays) that, while not suspect classes per se, seemed to the Court vulnerable to
majoritarian oppression
In these cases the Court suggests either that one of the government’s asserted interests is clearly illegitimate, which then makes the
Court more suspicious (and thus leads to heightened scrutiny) of the state’s more legitimate interests (Cleburne) or that the fit
between the state’s legitimate interest and the statute is so bad that the Court suspects that there must be animus present (Romer). In
either case, bad fit and animus relate very closely in these cases.
As a doctrinal matter, note that the Court in Cleburne concluded that mental disability is not a suspect class. By contrast, note that in
Romer the Court did not reach the question whether homosexuality is a suspect class.
In Windsor the Court doesn’t even do rational basis review – it doesn’t do “fit” review at all. Instead, it looks at the legislative
materials (e.g., the statements on the floor of Congress) and directly concludes that the law is based on illegitimate animus.
Congressional Power to Enforce the 14th Amendment
The “§5” power: The 14th Amendment gives Congress the power to “enforce” that amendment’s guarantees. What does “enforcement” mean in the context?
Katzenbach v. Morgan: a very broad reading of that power
1. the power to enact substantive rules (e.g., no literacy tests for voting) in order to secure the rights that flow from the right that is
granted (here, to secure the equal treatment by government that flows from having a voice in the political process)
2. the power to enact substantive rules, even when the Court does not find those rules to be required by the Constitution, based on
Congress’ superior fact-finding capacity and power to interpret the Constitution just as the Court does
B. In later cases, but still before City of Boerne, the Court accepted congressional power to enact substantive rules, even when the Court does not
find those rules to be required by the Constitution, in order to overcome the evidentiary or other hurdles that might make it difficult for
individuals to vindicate the rights that the Court has in fact recognized. (This is the idea of a “prophylactic” enforcement power, which we
also described in class as a theory under which Congress can cast a “wider net” in order to ensure that 14th Amendment violations are caught.)
The Modern Rule: Stricter controls on this power: The Court now requires that enforcement legislation be congruent and proportional
(“C&P) to the constitutional violation it targets. City of Boerne v. Flores; Garrett; Hibbs. Moreover, the broad idea in Morgan that
Congress has interpretive power (the second one described above under part A) is rejected. After City of Boerne, only the Court has the
power to interpret the 14th Amendment
What is the C&P standard? Basically, a requirement that enforcement legislation have some relationship to the underlying 14th
Amendment violations Congress is seeking to vindicate. One way to understand it is that the enforcement statute has to have a logical
relationship to underlying right (i.e., must be congruent) & must have some quasi-quantitative relationship to it (i.e., must be proportional).
Applying the “C&P” standard
Determine the constitutional right sought to be protected (e.g., unconstitutional disability discrimination in Garrett or
unconstitutional sex discrimination in Hibbs).
How serious a problem is it? What has the Court said about it (what level of scrutiny has it given it—e.g., note how Garrett
insists that disability discrimination is a trivial constitutional problem based on the Court’s decision in Cleburne to give
intellectual disability discrimination only rational basis review), and is there evidence that the problem is especially resistant to a
solution (e.g., the Hibbs Court’s explanation of the history of sex discrimination).
-But note that the level of scrutiny the Court gives largely determines how open it will be to being convinced that the problem is
in fact more serious than the Court had previously realized. Garrett. Note that this is so even though there’s a strong argument
that Cleburne’s decision to give disability discrimination only rational basis review was based not on the inherent acceptability of
such discrimination, but rather on institutional competence and judicial workability concerns (e.g., the Court’s fear that judges
don’t know how to evaluate differential treatment of the intellectually disabled, and that heightened scrutiny would lead to
analogous claims that other similarly-situated groups could make). Arguably, such concerns, while appropriate for a court,
should be irrelevant to Congress’s power to safeguard against such discrimination.
Is it a problem that has resisted past attempts to eradicate it? Hibbs.
How broad is the statute? E.g., note how in Garrett the Court is concerned that the ADA’s “reasonable accommodation”
requirement requires more accommodation than does the 14th Amendment’s rule with regard to disability. Similarly, note in
Hibbs how the Court is convinced that the FMLA is in fact precisely targeted at the particular problem of employers’ gender bias
with regard to the family care responsibilities of its employees.
State Action
The Basic Idea: The 14th Amendment is a series of prohibitions directed at states. Therefore, if the action in question (say,
discrimination) is performed by a private party, then the 14th Amendment doesn’t apply.
-One might think that this requirement requires a relatively straightforward inquiry into “who’s doing the acting” in a given case. But
complexity arises because, in a basic way, government is always acting in some way. For example, the police arrest the religious
pamphleteer in Marsh, the streetcar commission approves the piping in of music into streetcars in Pollack, and the city parking authority is
contracting with The Eagle Coffee Shop in Burton.
-Thus, question becomes less “is the state acting?” & more “assuming state is doing something, is that ‘something’ sufficiently connected
w/ private conduct that it would be problematic if done directly by the state, such that that private conduct should be imputed to the state?”
-As we suggested in class, for example, is the state merely tolerating certain private action, or is it encouraging or even mandating it?
Application 1: Public Function
In these cases, the question is whether the state is assisting private conduct that essentially consists of acting like a government, such that that state
assistance is in furtherance of a governmental entity’s violation of 14th Amendment rights?
E.g., in Marsh, the police, by removing the religious pamphleteer from the company town, is assisting what is essentially a government
entity in denying free speech rights.
-Consider the shopping center cases. In Lloyd Corp., the Court reasons that the “company town” (the shopping center) did not unduly
burden speech rights by ejecting anti-war protesters, since that speech could be made just as effectively elsewhere. The Court distinguishes
the first shopping center case, Logan Valley, on the ground that the speech in Logan Valley (picketing of a store) had to be made in front of
the store in order for it to be effective
Application 2: Government Entanglement
In these cases the question is whether the government has gotten so involved, not so much with the private party per se, but with that party’s conduct,
such that that conduct should be imputable to the state.
E.g., in Pollack, the Court finds “state action” in the streetcar company’s decision to pipe music into the streetcars because the public
utilities commission approved that practice.
-In Burton the Court finds “state action” because it finds that the city parking authority depends on The Eagle’s continued operation in
order to make the parking garage project viable. Indeed, the Court points out that, in a real way, the city depends on The Eagle’s continued
racial discrimination, since The Eagle alleged in court that it could not survive if it was forced to stop discriminating. Thus, the city has
found itself in a position where it depends on the private party’s discrimination.
-In Moose Lodge the Court doesn’t find the same obvious indicia of a state relationship that it noted in Burton (in addition to the factors
above, things like the physical proximity of a state facility with the private entity). However, it does note the possibility that the state’s
insistence that a club comply with its own by-laws if it wished to maintain its liquor license might lead to a situation where the state would
insist that the lodge continue to discriminate if that’s what its by-laws called for. That insistence might involve the state with the lodge’s
ensuing discrimination
-In Jackson, the Court rejects all the arguments for state action. The fact that the service being provided (electricity) is important doesn’t
make it a public function. The fact that it’s a regulated monopoly doesn’t mean its actions are those of the state. And finally, even the fact
that the utility stated its service cut-off procedures in its tariff filing before the public utility commission, & that the commission approved
that tariff, doesn’t prove that the state expressly approved of that particular practice. Only way to read Jackson is as the statement of a
Court that is less willing to find “state action.”
Application 3: Judicial Approval
Shelley: The oddity of Shelley is that its seeming conclusion—that judicial action is, by definition, state action—would presumably make all private
contracts state action, to the extent such contracts only have meaning if a court stands ready to enforce them.
-One way out of this problem is to recognize that the plaintiffs in Shelley were third-parties—the neighbors of the property that was being sold to a
black family. Thus, we can understand Shelley as a case involving a willing seller and a willing buyer, but where a court—at the behest of an
outsider to that contract—was insisting that the court (i.e., the state) stop the deal. That makes Shelley more like government action mandating
certain private conduct, and thus makes the case a more limited, and more comprehensible, illustration of the state action doctrine.
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