CONSTITUTIONAL LAW OUTLINE
Professor Shanor
Spring 2008
I. Constitutional Background
a. Constitutional Summary
i. Article I: Congress
1. Qualifications clause
2. Elections clause
3. Speech and Debate clause
4. Presentment clause
5. Necessary and Proper clause
6. Contract clause
7. Suspension clause
ii. Article II: President
1. Appointments clause
iii. Article III: Judiciary
1. All cases clause
2. Congressional limits clause
iv. Article IV: State Relations
1. Full Faith and Credit Clause
2. Privileges and Immunities
3. Guarantee Clause
v. Article V: Amendments
vi. Article VI: Constitution’s Effects (supremacy clause)
1. Supremacy Clause
vii. Article VII: Ratification
viii. The Amendments (27 in total)
b. Early Framework: Articles of Confederation v. Constitution, Madison’s Bill of Rights
Articles of Confederation
Unicameral
Fewer rights
State votes
Supermajority
Congress disputes
No judiciary
No judicial reviewing power
No president, just president of Congress
Unanimous consent to amend
Constitution
Bicameral
New Rights (ex post facto)
Representative votes
Simple majority
Supreme Court
Supreme Court + lower courts
Judicial reviewing power
President in Executive Branch
2/3 vote (other amendment procedures)
i. Madison’s Bill of Rights laid the early framework for the Bill of Rights in the present
Constitution: The Differences are laid out below
Madison’s Proposal
Style of rhetoric much longer
No religious discrimination
Right to property
Alter document
Bill of Rights applied to States
c. Sources and Methods of Judicial Decisions
i. Methods of Decision-Making
Bill of Rights
Shorter
1st Amendment not as specific
5th Amendment talks about taking property
and just compensation for property that is
taken—no right of property, but protection
for property owners (waters down MP)
Separate amendments—Statutes are done
Madison’s way however
Not said
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
Textualism: “that’s what the Constitution says”
Original meaning/intent: Framers intent
History/tradition: that’s the way Americans have done things for hundreds of years
Precedent: that’s how Supreme Court/other courts have suggested it means in the past
Purpose: the constitutional provision was meant to accomplish a particular goal
Structure: the various constitutional provisions, read together, set up a particular
structure and we should interpret them accordingly
Moral: morally right way to interpret something
Evolving standards of decency: “it” is the social consensus today and that is the morally
right way to interpret the provision
Pragmatic/prudential: this is the best reading because it leads to the best real-world
results
Changed circumstances: even if the text or original meaning point to one reading,
circumstances have changed and therefore this interpretation is more consistent with
today’s reality
Administrative/clarity: this is the best reading because alternative readings are too
vague to be administrable, will lead to unpredictable results, etc
Natural law: God/nature meant it that way
a. Calder v. Bull: natural law arguments aren’t to be accepted by the Supreme
Court or in the interpretation of the Constitution
International Law: the rest of the world does it this way
a. Roper v. Simmons: unconstitutional to impose capital punishment to those
under 18—rest of the world has banned it, so should we
II. Judicial Power to Enforce the Constitution
a. Invalidation of Federal and State Laws
i. Marbury v. Madison (1803): Creation of Judicial Review
Judiciary Act of 1789 § 13: Gives SC original JD instead of appellate JD
Article III, § 2, cl.2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the
supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
1. Facts: In the last few days of Adams’ presidency, he appointed a number of Justices of
the Peace. The formal appointments were made by the delivery of sealed commissions
by the Secretary of State (Marshall)—Marbury commission was not delivered before
new administration took office. The new Secretary of State, Madison, refused to deliver
it. Marbury filed suit against Madison directly to the Supreme Court for a writ of
mandamus.
2. The Marshall Opinion: If the Supreme Court identifies a conflict between a constitutional
provision and a congressional statute, the Court has the authority and the duty to declare the
statute unconstitutional and refuse to enforce it.
a. Does Marbury have a right to the commission? YES
i. All the appropriate procedures were followed (signed, sealed, etc)
b. If so, do the laws of his country afford him a remedy? YES
i. The essence of civil liberty required a legal remedy for a legal wrong—
must grant a remedy for violation of vested legal rights
ii. However, there would NOT be a remedy if the subject matter was
political in nature
c. Can the Supreme Court issue this remedy? YES/NO
i. Conflict between statutory jurisdiction and that fixed by Article III of
the Constitution
1. Where the executive has a legal duty to act or refrain from
acting, the federal judiciary can provide a remedy, including a
writ of mandamus. BUT, contrary to the new statute, the
CONSTITUTION says that there is no JD here
2. Because the statute provided for original actions, it violated
Article III which Marshall interpreted as limiting the original
jurisdiction of the Supreme Court
3. Looking to the Supremacy Clause, Marshall found that it states
that the Constitution is the supreme law of the land—therefore,
the Justices should follow it over federal legislation
a. Denied Marbury his commission
b. Section 13 of the Judiciary Act is null and void:
JUDICIAL REVIEW!
i. Defending the use of judicial review: (1) oath of
office, (2) judicial role, (3) supremacy clause, (4)
“all cases” provision, (5) written constitution
ii. Other interpretations of Article III and Section 13 (not in the opinion):
Other Ways Marshall Could have Decided the Case
§ 13 Appellate JD
§13 Appellate JD
Article III allows appellate
Article III prohibits appellate JD
NO CONFLICT
CONFLICT (not this case because there was
an original writ filed, but if appeal then
CONFLICT)
§ 13 Original JD
§ 13 original JD
Article III allows original
(Public Minister, or “congress makes such
regulations as it wants to concerning JD”
Article III prohibits appellate JD
CONFLICT (OUR CASE)
NO CONFLICT
3. Criticisms of Marbury v. Madison:
a. Not explicit what the law is
b. “Passing the buck” by the other branches
c. The other two branches are subject to checks by the people through voting and
amendment procedures—why is judicial review necessary?
d. Constitutional pluralism alternative—situation in which all the branches have
the power to rule things constitution or not
4. Significance of the Case: Established the authority for the judiciary to review the
constitutionality of executive and legislative acts
a. Syllogism:
i. Major premise: Constitution is the law of the land
ii. Minor premise: Constitution vests power with the judiciary
iii. Conclusion: SC has the power to rule statutes unconstitutional
b. Note the historical underpinnings of the case: politics (Marshall v. Jefferson),
establishing supremacy of the SC
ii. Martin v. Hunter’s Lessee (1816)
Judiciary Act, § 25: authorizes jurisdiction in specified cases (validity of treat/statute)
Article 6, clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
1. Facts: There are two conflicting claims to land in VA. Martin claimed title to the land
based on the inheritance from Lord Fairfax, a British citizen who owns the property.
The US and England had entered into 2 treaties protecting the rights of British citizens
to own land in the US. Prior VA statute gave land under British crown away—how
Hunter’s Lessee gets the land. Hunter claimed that VA had taken the land before the
treaties came into effect—thus, Martin did not have a valid claim to the property
2. The Story Opinion: The Supreme Court has the jurisdiction and the authority to review all
state acts under the Constitution, laws, and treaties of the US
a. Textual Arguments
i. All cases provision: Article III allows for appellate review over ALL
cases—not having review of this case would make it only “some” cases
ii. Supremacy Clause: gives Court power to review
b. Policy Arguments
i. Uniformity of the laws: have to be able to appeal to the Supreme Court
to resolve intra-jurisdictional disputes
ii. State provincialism: state court judges are more beholden to state law
when interpreting federal law
1. “The Constitution is based on the recognition that state
attachments, state prejudices, state jealousies and state interests
might sometimes obstruct, or control the regular
administration of justice”
iii. Sovereignty: state judiciary is not immune from Constitutional limits
3. Significance: Supreme Court can review state court decisions
b. Limits on the Judicial Power: Congressional Limits TO WHAT extent can Congress limit the
Supreme Court’s jurisdiction?
Article III, § 1: Judicial power of the US shall be vested in 1 Supreme Court and such inferior courts as Congress may ordain and establish
Article I, § 9: the privilege of the writ of habeus corpus shall not be suspended, unless when in Cases of Rebellion or invasion of public Safety may
require it.
i. Ex Parte McCardle (1869): THE PRO CASE for Congressional authority (LIMITS JD)
1. Facts: Under the authority of the Reconstruction Acts, the military government had
imprisoned McCardle, who then brought a habeas corpus action alleging that the
Reconstruction legislation was unconstitutional. The lower court upheld the Act, and
McCardle appealed under the recently passed Act of 1867, providing appeal to the SC
from the circuit courts in habeas corpus cases. Congress then repealed the legislation a
few days later (removed JD for federal courts) in order to avoid a SC determination that
the Reconstruction legislation was unconstitutional with the Act of 1868.
2. The Chase Opinion: As long as a case is pending, Congress can remove jurisdiction.
a. Exceptions Clause: The Court cannot decide McCardle’s case because of
Congress’s authority to create exceptions and regulations to the Court’s
appellate jurisdiction
i. Although the Court’s authority stems from the Constitution, it is
conferred with such exceptions and under such regulations as Congress
shall make.
b. The power of the legislature: “We are not at liberty to inquire into the motives
of the legislature. We can only examine into its power under the Constitution;
and the power to make exceptions to the appellate jurisdiction of this court is
given by express words.”
3. Significance: Often used by advocates for the broad power of Congress to limit the
jurisdiction of the federal courts and the Supreme Court
a. Note: SC here was considering the constitutionality of a statute that did not
completely preclude Supreme Court review
i. “Counsel seemed to have supposed that the WHOLE appellate power of
the court is denied. But, this is an error. The Act of 1868 does not
except from that JD any cases but APPEALS from Circuit Courts under
the act of 1867. “
1. McCardle could have gone through state court with a new case
2. Act only removed jurisdiction of federal lower courts
ii. INS v. St. Cyr (2001): The Loophole Case (ALLOWS JD)
1. Facts: St. Cyr, a permanent resident, pled guilty for selling a controlled illegal substance,
making him eligible for deportation. Under pre-IIRIRA law, which was applicable at the
time of the guilty plea and conviction, St. Cyr would have been eligible for waiver of
deportation at the AG’s discretion. Removal proceedings for his deportation, however,
did not commence until after IIRIRA went into effect—the AG no longer possessed the
discretionary authority to grant relief in these types of cases and the act limited federal
court jurisdiction over deportation challenges. St. Cyr argued that AG’s discretionary
authority does not apply to removal proceedings for aliens who pled guilty BEFORE
the enactment of the statute. Issue of jurisdiction again.
2. The Opinion
a. Stevens Majority:
i. Suspension clause: Suspension clause gives a right to habeus corpus
even without jurisdiction (at least to the extent to what jurisdiction was
in 1789) “The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public
Safety may require it.”
1. Congress must “articulate specific and unambiguous statutory
directives” to repeal the availability of habeas jurisdiction”
2. Therefore, the express statutory preclusion of judicial review of
deportation proceedings in the statute does not bar the
challenge here
ii. There is a strong presumption in favor of judicial review of
administrative action
b. Scalia Dissent:
i. There is no right to habeas here—must have Congressional jurisdiction
in order for someone to bring a habeas petition
ii. Matter is entirely in the hands of the Attorney General
3. Significance: Court will go out of its way to not foreclose avenues for judicial review.
a. Note: In order to avoid the constitutional questions over the suspension clause,
the court invokes judicial review discussions.
b. Congress does not have unlimited power against the Supreme Court habeus
corpus protected in immigration cases
iii. Rasul v. Bush (2004): Modern Day (ALLOWS JD)
1. Facts: Questions over the jurisdiction of the federal courts to decide habeas petitions
from Guantanamo detainees in the face of a Congressional statute.
2. The Stevens Opinion: Federal courts have jurisdiction to consider habeas petitions from
foreign nationals captured in another country and held in detention at the US military base at
Guantanamo Bay.
a. Johnson v. Eisentrager: 21 German nationals sought HC after arrested in China
for working in Japan on behalf of Germany—SC found no JD here
i. Case distinguished because detainees in that case got military tribunal
but those in G-bay have never had any form of due process
ii. G-bay is under the control and sovereignty of US government
3. Significance: Establishes jurisdiction only to be shot down by the Military Commissions
Act of 2006 (barring jurisdiction for habeas corpus petitions from “enemy combatants”)
iv. Miller v. French (2000) (LIMITS JD)
1. Facts: In 1975, in a class action suit filed by state prison inmates, a federal district court
entered a permanent injunction to remedy violations of the 8th Amendment regarding
conditions of confinement at the prison in which the inmates were housed. While the
injunction was still in effect and long after the court’s final judgment had been entered,
Congress passed the Prison Litigation Reform Act in 1996, which sets specific standards
for the entry and termination of injunctive relief in civil actions challenging prison
conditions. The Act applies to all pending and future “prison condition” injunctions.
Essentially, the Act requires that any such injunction be narrowly tailored to remedy
the violation of federal law. In addition, § 3626(e)(2) of the Act provides for an
automatic stay (stopping of judicial proceeding through order of the court) of any
previously issued prison condition injunction if a defendant moves to terminate the
injunction under the terms of the Act. In 1997, the State of Indian filed a motion to
terminate the remedial order against the prison. Under PLRA, the motion stayed
(stopped) the court’s original remedial order. The prisoners moved to enjoin the
operation of the automatic stay, arguing that the automatic stay provision of the PLRA
violated due process and the separation of powers doctrine.
2. The O’Connor Opinion: Limits federal judicial authority based on Congressional statute
a. Congress clearly intended to make operation of the PLRA's automatic stay
provision mandatory, precluding courts from exercising their equitable power
to enjoin the stayThus, Congress lawfully imposed deadlines for federal
judges to review states officials' motions to discontinue court monitoring and
supervision of state prison conditions.
b. An injunction is not the last word of the judicial department because it is always
open to modification
i. Judicial decisions are final, but injunctions are final only until the point
where Congress wants to reverse or change the law
c. Congress can change the substantive law and require that injunctions be
modified in accord with the new law
3. Significance: This case is an exception to the notion of judicial finality as long as the
case is pending, Congress can make changes to the law
a. Note: judicial decisions are theoretically retroactive, legislation is prospective
c. Limits on the Judicial Power: The “Case or Controversy” Limit: Article III, § 2 (“cases or controversies”
i. Justiciability Considerations
1. Advisory Opinions: Since Article III mandates that the judiciary only has power
over cases and controversies, the Supreme Court has held that where a case or
controversy does not exist, the judiciary is not to issue any advisory opinion
regarding the matter.
a. In order to NOT be an advisory opinion, the case must:
i. Case presents an actual dispute
ii. Between adverse litigants
iii. Decision will have an effect of some sort
2. Standing: whether the plaintiff is a proper party to bring a legal action
a. In order to have standing, the P must have:
i. Injury in fact
ii. Traceable conduct to the plaintiff
iii. That the court can redress
3. Mootness: a case that has become irrelevant because the dispute between the
parties has ended
a. Examples of when a case is deemed moot:
i. The D dies during a criminal trial, if the P dies during a civil action
and the action does not survive the death (usually by statute), or if
the parties settle between themselves before a final judgment is
entered. In these situations the issues are no longer redressable.
4. Ripeness: premature/inadequately developed factually
5. Political Questions: when the Constitution entrusts a discretionary decision to
Congress or the President, rather than to the Court
MOOTNESS
i. FOE v. Laidlaw (2000)
1. Facts: In 1972, Congress enacted the Clean Water Act which allowed suit to be brought
by any citizen to enforce any limitation in a pollution permit—after 60 days of initiating
the suit, the EPA, the state, and violator had to be given notice. In 1986, Laidlaw, a
hazardous waste facility, began discharging pollutants into a nearby waterway. Some
years later, FOE and CLEAN started litigation against Laidlaw. Issue was whether
FOE lacked standing or the case was moot (Laidlaw had changed its conduct and
complied with the permit requirements, even closing a facility).
2. The Opinion:
a. Ginsburg Majority:
i. Mootness: NO--Voluntary changes in behavior by a D are not sufficient
to make a case moot because the D would be free to resume the behavior
once the case was dismissed (D still had a license to operate)
1. Heavy burden on the defendant—failed to meet it
ii. Standing: YES
1. Injury in fact: lost aesthetic and recreational values of the area,
do not need to prove a particular in jury (“but for” test)
2. Traceable to Laidlaw
3. Court can redress: follow Congress (“do more than promote
immediate compliance by limiting the D’s economic incentive to
delay its attainment of permit limits—also want to deter future
violations)
iii. Distinguishing Lujan (case over enforcement of Endangered Species
Act)
iv. Constitutional v. statutory standing
1. If there is no constitutional standing for P for a particular type
of facts, then it doesn’t matter what the statute says
2. Conversely, if the constitution allows you standing, but
Congress later says you do not, then you still do not have
standing
b. Scalia Dissent:
i. Polluting in the future would be a new suit!
3. Significance: created a broad standard that will allow more private citizens to enforce
environmental laws when the government fails to do so
a. Case exposes 2 different theories about litigation: Straddles both (expands
litigation under public theory regarding statutes but uses the language of the
private controversy model)
i. Private controversies: judge as a bystander who makes a final decision
ii. Public controversies: courts are there to serve public purposes, not just
private dispute resolution purposes—a judge ought to be more activist
and involved
STANDING
ii. Hein v. Freedom from Religion Foundation (2007): TAXPAYER STANDING
1. Facts: President Bush created the White House Office of Faith-Based and Community
Initiatives and other offices. They were funded by general appropriations for the
executive branch. The Freedom from Religion Foundation, Inc., and several of its
members in federal court challenged the executive branch’s use of federal money to
conduct conferences concerning Faith-Based and Community Initiatives. They argued
that the use of federal money violated the establishment clause—claimed to have
standing based as status as taxpayers.
2. Opinion: Taxpayers do not have standing (simply on the basis of their status as
taxpayers) to challenge the President’s use of executive branch funds to conduct
conferences regarding “Faith Based and Community Initiatives”—must prove actual
harm
a. Majority: dismiss due to no standing
i. Injury: tax-payer doesn’t have injury when a government does
something you don’t like
b. Scalia/Thomas: overrule Flast v. Cohen and deny all taxpayers ability to bring
suit to challenge constitutionality of any government action
c. Alito/Roberts/Kennedy concurrence:
i. Earlier SC decisions should be read to grant standing to taxpayers only
w hen the taxpayers challenged legislative acts that provided financial
support for religious sects
ii. Allowing taxpayers to challenge all types of government programs
would be the same as granting standing to all citizens in every
government action—exceed Article III powers
d. Dissent:
i. Ruling makes the establishment clause unenforceable
ii. Framers would have endorsed the position that the judiciary should
review the establishment clause in a wide variety of situations
3. Significance: Taxpayers do not have standing without a showing of real harm.
iii. Massachusetts v. EPA (2007): STATE STANDING
1. Facts: MA sues EPA for not regulating its greenhouse gas emissions.
2. Opinion: State has standing to sue the federal EPA for abdicating its duty to regulate
emissions of certain greenhouse gases.
a. Majority: YES
i. Injury: YES, rising seas have already begun to swallow MA
ii. Causation; YES, tail-pipe emissions from cars are a substantial portion
of greenhouse gas
iii. Remedy: Give a remedy by telling EPA that it has to take steps to slow
or reduce greenhouse gases
b. Dissent: NO
i. There shouldn’t be a difference between state and individual standing
3. Significance: This decision may or may not lead to a LESSENING of the requirement
that a state must show an actual injury to itself, as a state, before it has standing to
challenge an action of the federal government
a. Case most likely driven by public policy—if MA doesn’t have standing, no one
will (“no better plaintiff” theory of standing)
POLITICAL QUESTIONS
iv. Baker v. Carr (1962)
Article 4, § 4: The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them
against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.
1. Facts: TN allocates legislative representation among counties as the total number of
qualified voters residing in the respective counties. Between 1901 to 1961, TN
experienced substantial growth and redistribution of its population—question becomes
if the 1901Apportionment Act can still be applied given the enlarged voting population.
Disproportionate voting with some people’s votes given more weight. Suit arises
claiming that the 1901 statute didn’t follow the constitutional formula
2. Opinion: Upheld the justiciability of legislative re-apportionment
a. Luther v. Borden: case that dealt with what government is the real government
of RI—talked about the guarantee clause so the justices couldn’t interfere. Here,
we are talking about the Equal Protection Clause—not a PQ when we are
asking about equal protection of citizens.
b. The Baker 6-Point Test for an issue to be considered a non-justiciable PQ:
i. Textually demonstrable constitutional commitment to another
department: Not involved here
ii. Lack of discoverable or judicially manageable standards: NO--One
person, one vote standard
iii. Impossibility of deciding about an initial policy determination of the
kind for judicial discretion: NO--As long as it’s one person, one vote,
Court doesn’t care
iv. Impossibility of a court’s undertaking independent resolution without
expressing lack of respect due coordinate branches of government: No,
talking about a state
v. An unusual need for unquestioning adherence to a political decision
already made—NO, only reason to adhere would be to keep denying the
vote
vi. Potentiality of embarrassment
3. Significance: Famous for idea of “one person, one vote.” The constitutionality of
legislative appointment schemes is not a political question.
a. Many comment that it is impossible for a court to apply the criteria above to
identify what cases are political questions.
v. Vieth v. Jubelirer (2004)
1. Facts: Figures from the 2000 Census allotted PA 19 representatives in Congress, a
decrease of 2 from previous years. PA’s General Assembly then drew up a new map that
showed some elements of punishment against Democrats. The plaintiffs, registered
Democrats, want to enjoin the implementation of the map on the grounds that the
legislation constituted political gerrymander, in violation of Article I and the Equal
Protection Clause of the 14th Amendment.
2. Opinion: Political gerrymandering is a justiciable question
a. Scalia Majority: all political gerrymandering claims should be deemed nonjusticiable PQs
i. No Standards: There are no judicially discoverable or manageable
standards and no basis for courts to decide when partisan
gerrymandering offends the Constitution
b. Kennedy concurrence:
i. Lack of standards, but did not believe that such standards could not be
developed in the future
c. Dissent: gerrymandering is not a PQ
3. Significance: Political gerrymandering claims are non-justiciable PQs—however,
difficulty exists for lower courts in deciding what case means. Five justices rejected the
proposition that challenges to partisan gerrymandering are ALWAYS political
questions.
III.
The Distribution of National Powers
a. Executive Power in Domestic and Foreign Affairs
Article II, § 2, cl. 1: The executive power shall be vested in a president of the United States
PRESIDENTIAL POWER IN DOMESTIC AFFAIRS
i. Youngstown Sheet & Tube v. Sawyer (1952)
1. Facts: Apprehensive that an impending steel worker’s strike would endanger national
security, President Truman issued an executive order instructing Secretary of
Commerce to seize and operate many of the nation’s steel mills. Truman justified the
order as valid under the constitutional and statutory power vested in him as President
and Commander-in-Chief. Steel owners then sued Secretary of Commerce Sawyer.
2. Opinion:
a. Justice Black Majority Opinion: There is no inherent presidential power; the
president may act only if there is express constitutional or statutory authority
i. No statutory authority to allow the President to act in this way
ii. Formalist approach
b. Justice Frankfurter and Vinson: Historical Approaches
i. Frankfurter: uses Taft-Hartley Act; concludes that there is no seizure as
a historical matter by prior presidents that is analogous to this
particular seizure
ii. Vinson: Finds historical analogs by showing “strong” presidents and
what they have done
c. Justice Jackson Concurrence: most important for separation of powers; describes
3 situations that can happen during a stand-off between the President and
Congress (FUNCTIONALIST APPROACH)
i. President’s own powers + Congress telling President that he can do
something  this is the strongest case for the President to act
ii. “Twilight zone” where it is unclear who has authority
iii. President takes an action that is expressly against the powers of
Congress weakest position for the President
3. Significance: Leading case addressing the scope of inherent presidential power; all of
these approaches have some support in Youngstown and some support in other cases
ii. Clinton v. City of New York (1998)
Article 1, § 7, cl. 2: Presentment clause: Every bill which shall have passed the House of Representatives and the Senate, shall, before it
become a law, be presented to the President of the United States;
1. Facts: In 1996, Congress passed the Line Item Veto Act, allowing the President to hold
up spending by vetoing an appropriate item and delete tax benefits in a tax provision.
NY sued President Clinton claiming that they had been injured by his decision to
“cancel” a portion of the Balanced Budget Act of 1997. For NY, they were able to waive
payments for taxes based on health care. The President also canceled 2 sections of the
Taxpayer Relief Act which allows for business corporations to defer payment to
sellers—Snake River sued in response to the cancellation.
2. Opinion: Stevens Majority; Breyer Dissent
a. Standing
i. Majority: NY and Snake River have standing because they are injured
and there is a judicially manageable standard—plaintiffs have organized
their lives around deductions
ii. Dissent: Standing for NY but not for Snake River—standing for
governmental entity but no standing for a private business (see Scalia in
Laidlaw)
b. Merits: Constitutionality
i. Majority: Line Item Veto is unconstitutional; President has authority to
veto entire bill not just a point—President taking over a historically
legislative function (repeal function) FORMALIST
ii. Dissent: Line Item Veto is constitutional; history of presidents doing
similar actions FUNCTIONALIST
3. Significance: Declared Line Item Veto unconstitutional; Court found that a chance in
market conditions was sufficient injury to meet the standing requirement.
PRESIDENTIAL POWER IN FOREIGN AFFAIRS: BROAD ASSERTION
iii. United States v. Curtiss-Wright (1936)
1. Facts: Case involves a controversy surrounding a Presidential Embargo Proclamation of
1934, prohibiting the sale of arms to countries involved in a conflict in South America.
Authorization for this declaration was granted in a joint congressional resolution passed
earlier on the same day empowering the President to do so. Congress then revoked the
proclamation in 1935. Question over whether the president inherently has greater
powers in the area of foreign policy as compared to domestic affairs
2. The Sutherland Opinion:
a. Presidential power in foreign affairs: The president is the sole organ of the
government in international affairs
b. Realities of foreign affairs require the president to possess greater inherent
powers
3. Significance: Broadest assertion of presidential power in any case law
iv. Dames & Moore v. Regan (1981)
1. Facts: In reaction to the seizure of the U.S. embassy and American nationals in Iran,
President Jimmy Carter invoked the International Emergency Economic Powers Act
(IEEPA) and froze Iranian assets in the United States. When the hostages were released
in 1981, Treasury Secretary Donald Reagan affirmed the agreements made the Carter
administration that terminated all legal proceedings against the Iranian government
and created an independent Claims Tribunal. Dames & Moore attempted to recover
over $3 million owed to it by the Iranian government and claimed the executive orders
were beyond the scope of presidential power.
2. The Rehnquist Opinion: Rejected constitutional challenge to the order
a. Reliance on Jackson in Youngstown: President’s action was supported by
congress—he is at his strongest
b. Congressional implicit approval: Although Congress did not explicitly allow the
President to do this, there is also a historic practice of doing so through
previous acts of Congress
c. Narrowness of the ruling to just case facts here
3. Significance: Case illustrates the broad presidential power to settle foreign claims by use
of executive agreements; case is TROUBLING because the Court doesn’t deal with the
infringement on its own power
BRIEF RECAP:
--IN Domestic affairs:
-Youngstown and Clinton are about situations where the Court concludes that the President was doing
things that were legislative
-Youngstown and Clinton are also about Congress’s power to do something that the President without
that authorization might not have been able to do
--IN Foreign affairs:
-Curtiss-Wright and Dames take very different approaches to this
-President does have more power
-Silences are read more to the President’s favor than they tend to be in the domestic arena
b. Executive Privileges and Immunity
i. United States v. Nixon (1974)
1. Facts: During Watergate scandal, the special prosecutor subpoenaed tapes of White
House conversations, and the president challenged the subpoena in courts. Nixon
claimed that the secret tapes were directly under his control and solely in his custody.
His counsel argued that the Supreme Court lacked jurisdiction to issue a subpoena
because it was an intra-branch dispute. Moreover, Nixon claimed that the Constitution
gave him executive privilege and that the president ALONE determined its reach.
2. The UNANIMOUS Burger Opinion:
a. Intra-branch dispute: Court rejected the president’s contention that the case
posed a non-justiciable political question because it was an intra-branch dispute
and that the president alone had the authority to control the prosecutions
b. Issues of executive privilege:
i. It is the role of the Court to decide whether the president has executive
privilege and if so, its scope
ii. Court recognized the need for candor in communications with advisors
justified executive privilege recognized executive privilege as an
inherent presidential power (in contrast to Black opinion in
Youngstown which reject any inherent powers)
iii. However, this privilege is not absolute and must yield in light of
important countervailing interest
1. ARTICLE III > ARTICLE II: an absolute privilege would
interfere with the ability of the judiciary to perform its
constitutional function
2. Need for evidence at criminal trial outweighed executive
privilege
3. Significance: Most important case concerning executive privilege; recognizes the
existence of the executive privilege but refuses to make it absolute
ii. Clinton v. Jones (1997)
1. Facts: A private citizen, Jones, sought damages from Clinton on actions before he
became President. She claimed he made unwanted sexual advances towards her. The
President made the following arguments: respect for the office of the president warrants
a stay until AFTER his term is over because (1) the public needs his undivided attention
and (2) it will burden him too much as to impair his official duties.
2. The UNANIMOUS Stevens Opinion: A private citizen could sue President Clinton for
alleged illegal acts that were not part of his official duties and were committed in his
personal capacity before he became the President
a. Separation of powers: Doctrine of separation of powers does not require a
federal court to stay all private actions against a sitting President until he
leaves office—no evidence that any branch will have to do more work
i. Historical precedence: Only 3 Presidents have been sued for their
private actions—it is unlikely that such a deluge of litigation will ever
engulf the Presidency
b. District Court abused its discretion in deferring the trial until after the
President left the office: takes no account of Jones’ interest in the trial
3. Significance: There is no basis for presidential immunity for unofficial conduct.
Moreover, case is a powerful statement that no one, not even the president, is above the
law.
iii. Cheney v. US District Court (2004):
1. Facts: District court allowed discovery to find out whether the Federal Advisory
Committee Act applied to an energy policy task force headed by VP Cheney. Supreme
Court reversed on separation of powers grounds.
2. Holding: Distinguishing US v. Nixon and this case:
a. Narrow subpoena orders versus broad subpoena orders here
b. Executive privilege is an extraordinary assertion of power not to be lightly
invoked
c. Legislative Authority in Domestic and Foreign Affairs
i. INS v. Chadha (1983):
Article I,§ 8: gives Congress right to establish rules of naturalization and by implication immigration
Article I, § 1 and § 7: both houses must pass bill
1. Facts: Chadha was an alien who overstayed his visa. After it expired, he was ordered to
show cuase as to why he should be allowed to remain in the US. An immigration judge
ruled in favor of Chadha and ordered a stay on his deportation. However, the House
adopted a resolution overturning this decision and ordered Chadha’s deportation
(Immigration and Nationality Act gave Congress the authority to overturn an INS
decision to suspend deportation—did not have to pass through both houses of
Congress). Chadha then sued.
2. The Opinion: The legislative veto is unconstitutional
a. Burger Majority Opinion: Any legislation must be passed through both houses
of Congress for approval or veto. Court believes that Congress acted in its
legislative capacity to deport Chadha but failed to follow constitutional
procedure.
i. Believed Congress was overruling executive acts—overstepping
legislative authority
ii. Highly formalistic—emphasized the formal structure prescribed in the
Constitution for adopting laws and dismissed the functional concern
that the legislative veto was an essential check on administrative power
b. Powell Concurrence: Congress overstepping judiciary’s role because this looks
like adjudication
c. White’s Dissent: Over 200 federal laws contained legislative vetoes reflecting
Congress’s judgment that this was an essential tool for checking the exercise of
delegated powers (highly functional)
3. Significance: Invalidated an important means of congressional control of agency
discretion—however Congress can still overturn agency decisions so long as there is
bicameralism and presentment
ii. Bowsher v. Synar (1986)
1. Facts: In an attempt to eliminate the federal budget deficit, Congress adopted a law that
set the maximum allowable deficit for each of the following 5 years. If spending
exceeded the deficit ceiling, the CG was instructed to impose across-the-board spending
cuts as prescribed and limited by the Gramm Act (the CG is a legislative official). The
Supreme Court declared this to be an unconstitutional delegation of the executive power
to the legislature.
2. The Burger Opinion: The powers vested in the CG under The Gramm-Rudman Act
violated the rule that Congress can play no direct role in the execution of the laws
a. Impeachment: Congress cannot reserve for itself the power of removal (except
by impeachment) of an officer charged with the execution of the laws
b. Impermissible authority: CG was granted the executive power to administer the
law and it was impermissible for Congress to delegate the executive power to
itself or its officers
c. CG is beholden to Congress, when he should be beholden to the President
3. Significance: Congress cannot remove executive officials/invest legislative officials with
executive power—this is impermissible under the Constitution
a. Myers and Humphrey’s Executor (involve congressional limits on the
President’s removal of officials)
i. Myers: a majority of the Court found congressional limits on the
President’s removal of a postmaster unconstitutional, stating variously
that removal was an executive act, that the President has a power to
take Care to enforce the law, and that Article II vests all executive
power in the President
ii. Humphrey’s Executor: Court concluded that Congress COULD limit the
President’s removal of members of regulatory agencies—FTC, since it
was created to effectuate congressional policies, was not in any proper
sense an arm or eye of the executive
iii. Morrison v. Olson (1988)
1. Facts: Title 7 of the Ethics in Government Act allows for the appointment of an
independent counsel to investigate and prosecute certain high-ranking government
officials for violations of federal criminal laws. The statute requires the Attorney
General to investigate any allegations of wrongdoings against these high level members
of the Executive Branch and to apply to a special federal court for the appointment of a
special prosecutor if he found need for further investigation. Once appointed, only the
Attorney General could remove the independent counsel for good cause. Question arises
over constitutionality of the act (Appointments Clause) and whether the President can
remove the independent counsel.
2. The Opinion:
a. Majority:
i. Distinguishing Bowsher: Congress had no role in removing the
independent counsel
ii. Inferior v. Principal Officers
1. Inferior officers can be removed/appointed by the President
alone—question over whether independent counsel is an
inferior officer (Court says yes due to limited tenure)
2. If principal officer, under Congressional power
iii. Constitutional text: Congress had discretion to make inter-branch
appointments
b. Scalia Dissent: the Act violates the separation of powers—only the President
has exclusive executive authority
Formalist
Functional
Approach
Categorized power
Refuse categorized power and say (ex:
White’s dissent in Chadha) that
various functions are “chameleon
like” OR “quasi-legislative”
Harm
Fear of commingle powers: legislative
act as executive, etc
Aggrandizing power at the expensive
of another branch--One branch taking
power away from another
View of
Things
Textual approach to the
Constitution—think of the
Constitution as a document and
adhere it to it literally
Flexible able to grow, develop, and
change in evolutionary ways that
enable the branches to do the work of
the people
Judiciary’s
Role
Has an active role to play because the
judiciary is the keeper of the text or
the interpreter of the text
More passive judiciary given flexible
nature of the Constitution
Who has a
tendency to
this model
(though not
written in
stone)
Conservative judges (ex: Burger in
Chadha)
Liberal judges
**This distinction makes a difference in terms of what kinds of approaches/how you set the analytical framework for
dealing with very substantial issues of whether or not something is going to be permitted by the other branches of the
government
Separation and Balance of Powers: LEGISLATIVE v. EXECUTIVE BRANCH
PRESIDENTIAL POWER AND
PRIVILEGES
CONGRESS EXTENDING
LEGISLATIVE POWER TO
EXECUTIVE
CONGRESS LIMITING
EXECUTIVE POWER
President’s inherent powers
Congress’s power to authorize
President to do things that are
“legislative”
Congress’s power to remove executive
officials/to invest legislative officials
with executive power
Domestic Affairs:
Youngstown
Clinton v. New York
Bowsher v. Synar
US v. Curtiss-Wright
President’s ability to shield his actions
from judicial review
US v. Nixon
Clinton v. Jones
Cheney v. US District Court
Foreign Affairs:
Curtiss-Wright
Dames & Moore
Congress’s power to limit the
President’s removal power over
executive officials
Morrison v. Olson
Congress’s power to limit President’s
war powers
War Powers Resolution
d. Congress, President, Court, and War
Article II, § 2: treaty power is divided between President and Congress; President can make it, but 2/3 of Congress has to ratify it
Article I, § 8: Congress given power to declare war but not make ware, tax and spend for national defense
i. Ex Parte Quirin (1942)
1. Facts: Involved the military tribunal of 8 Nazi saboteurs who landed on American soil
during WW2, carrying explosives and wearing uniforms. FDR issued an executive
order providing for their trial in a military tribunal. The detainees filed a habeus corpus
petition in federal court—1 even claimed US citizenship. They argued that the
President doesn’t have the authority to order them to be tried in a military tribunal—
argued for 5th and 6th amendment rights since they are not members of army. Supreme
Court agreed to hear the case and the proceedings in the military tribunal were
suspended. Less than 24 hours after oral arguments concluded, the Court issued an
order upholding the use of military tribunals.
2. Opinion: Approved the use of court martial proceedings to try persons—including the
one who claimed US citizenship—who allegedly entered the country illegally for the
purpose of sabotage.
a. Power to provide for the common defense is within the President’s powers
b. If our own soldiers don’t have access to our courts, why would enemy offenders?
3. Significance: Great disagreement over whether Quirin is precedent for current attempt
to use military tribunals for suspected tribunals—offers very robust support of
Presidential authority to conduct war including the trial of enemy combatants
a. Supporters: argue that Quirin is on point and authorizes use of military
tribunals
b. Dissenters: discredited decision because the Court stressed that it was a
declared WAR and there was a statute authorizing military tribunals
c. Distinguished from Ex Parte Milligan (1866): Court held that an OH civilian
accused of aiding the enemy was found NOT subject to court-martial
jurisdiction because he could have been tried in a civilian court.
ii. Hamdan v. Rumsfeld (2006)
1. Facts: Case involves a detainee at Guantanamo Bay. He was captured by militia forces
and turned over to the US military—the President deemed him eligible for military
commission and charged him with 1 count of conspiracy to commit offenses triable by
military commission. Claimed he committed 4 overt acts: 1) He served as bin Laden’s
bodyguard and personal driver and believed that they were associated with terrorist
acts; 2) Arranged transportation of weapons; 3) Drove Laden to al Qaeda training
camps and lectures 4) Received weapons training. Hamdan claimed the President lacked
authority to do this
2. Opinion: Held that the first military commissions convened to try enemy combatants
could not proceed because the commission’s procedures would violate the Uniform Code
of Military Justice and no other statute or treaty authorized those procedures.
a. None of the alleged “overt acts” that Hamdan committed violate the law of
war—government needs to show an actual hostile/war-like act
b. Opinion premised on the belief that Congress did not give the President
authority to try people in this way Youngstown oriented analysis
3. Significance: Congress responded to this decision by enacting the Military
Commissions Act, authorizing military commissions and placing various jurisdictional
limitations on the access of detainees to federal court
iii. Recent MCA Cases
1. Boumediene v. Bush (2007): President has the support of Congress unlike Hamdan so
military tribunals are OK; Dissent argues that Foundres could have given President
plenary powers in war time but it didn’t (so military tribunals are not ok)
2. Bismullah v. Gates (2007): DC opinion put confidential information into hands of lawyers
for enemy combatants
3. Padilla v. Hanft (2005): US citizen being detained for work with al Qaeda in connection
with 9/11; Court held he was an enemy combatant even though he was captured in
Chicago Airport because he still fought on battleground in war
4. Al-Marri v. Wright (2007): Court held that MCA was never designed to hold people like
al-Marri since he never fought on the battleground in Afghanistan; dissent argues that
the war on terror is not a traditional war and should defer to executive
a. Padilla case and al-Marri dissent are deferential to Executive branch
Questions over the Use of Military Tribunals:
-The legality of military tribunals, like so many issued posed by the war on terrorism, raises profound questions
about separation of powers, individual rights, the applicability of the Constitution and of international law to
American activities.
-Those defending the use of tribunals (Bush administration position) argue forcefully for the need for broad
executive powers to deal with the terrorist threat
-Those criticizing the use of tribunals make powerful arguments that checks and balances are essential, and htat
basic rights need not and should not be criticized.
IV.
The Powers of Congress
a. The Basic Framework: The Necessary and Proper Clause
Article I, Section 8: Congress shall make all laws necessary and proper…
Article I, Section 1: all legislative powers herein granted shall be vested in Congress of the US, which shall consist of Senate and House of
Representatives—limited, enumerated powers of Congress
i. McCulloch v. Maryland (1819)
1. Facts: During the War of 1812, the country experienced economic problems and the
government re-created the Bank of US in 1816. State governments were particularly
angry at the bank because it called in loans owned by the states, so some states taxed
the bank like MD. The MD law required that any bank NOT chartered by the state pay
either an annual tax of $15,000 or a tax of 2% of all its notes. The bank refused to pay
the MD tax, and the state sued to recover the money.
2. The Marshall Opinion:
a. Does Congress have the authority to create the Bank? YES
i. Historical practice: invoked history of the 1st Bank
ii. The states cannot veto a federal action like the Bank because the people
are sovereign, not the states
iii. Necessary and proper clause: Congress is not only limited to those acts
specified in the Constitution—BROAD READING
1. Article I, § 8: Congress may choose any means, not prohibited
by the Constitution, to carry out its express authority
a. Necessary means useful or desirable, not indispensable
or essential
2. Clause placed in Article I, §8 which expands Congress’s powers,
not §9 which restricts them
b. Is the state tax on the bank constitutional? NO
i. Power to create the bank includes the power to preserve its existence
ii. State tax on the Bank is a tax on those in other states—not being
represented, thus illegitimate
3. Significance: Seminal case defining the scope of federal legislative power and its
relationship to state governmental authority—expansive view of Congress’s powers
over the states that continues to this day.
a. SHANOR: Absolutely critical case for the robust federal government we have
today
b. Commerce Clause Power: Classical and New Deal Views
Article I, Section 8: Congress shall have the power to “regulate commerce with foreign nations, and among the several states, and with the Indian
tribes”
i. Gibbons v. Ogden (1824)
1. Facts: NY legislature granted a monopoly to Fulton and Livingston for operating
steamboats in NY waters. Fulton and Livingston then licensed Ogden to operate a boat
between NYC and Elizabethtown Port in NJ. Gibbons operated a competing ferry
service and thus violated the exclusive rights given to Fulton and Livingston, and their
licensee Ogden, under the monopoly. Gibbons maintained that he had the right to
operate his ferry because it was licensed under a 1793 federal law as “vessels in the
coasting trade.” Basically, Ogden relies on NY state law, while Gibbons relies on federal
law.
2. The Opinion: The 1793 federal law authorized Gibbons to operate a ferry in NY waters;
thus the NY monopoly was preempted by federal law.
a. Marshall Majority: Uses textual arguments to give a broad reading of the CC
i. What is commerce? INTERCOURSE (includes navigation)
ii. What is “among the states”? INTERMINGLED WITH
1. Commerce among the states cannot stop at the external
boundary of each state
2. Congress can regulate intrastate activities if it has an impact on
interstate activities
iii. Does state sovereignty limit congressional power? NO
1. Congress has complete authority to regulate all commerce
among the states
2. The sole check on Congress is the political process, not
judicially enforced limits to protect the states
b. Johnson Concurrence: If the licensing statute was repealed tomorrow, Gibbons
would still win because federal law governs inter-state commerce. The mere fact
that Congress has the power to regulate inter-state commerce precludes NY
from regulating it.
i. Problem: Nothing in CC text or history that says that this is an
exclusive congressional power
3. Significance: Marshall lays down the basis for later Justices to uphold a federal power to
deal with national economic problems. EXPANSIVE view of CC.
ii. Wickard v. Filburn (1942)
1. Facts: Under the Agricultural Adjustment Act, the secretary of agriculture set a quota
for wheat production and each farmer was given an allotment. Farmer Filburn owned a
small dairy farm in OH and great wheat primarily for home consumption and to feed his
livestock. His allotment for 1941 was 222 bushels of wheat, but he grew 461 bushels
and was fined $117. He claimed that the federal law could not constitutionally be
applied to him because the wheat that he grew for home consumption was not a part of
interstate commerce.
2. The Jackson Opinion: Upheld application of federal law—marketing quota can be
applied to a local farmer who sells locally
a. Cumulative effect on the market: if many farmers raised for home consumption,
it would affect demand and the greater market (since it can account for more
than 20% of the market)
b. SHANOR: Commerce clause interpretation is more robust when Congress has
exercised a power than when it hasn’t
3. Significance: Another example of expansive view of Congress’s CC power.
iii. Heart of Atlanta Motel v. United States (1964)
1. Facts: Heart of Atlanta motel was located in downtown ATL and had 216 rooms and
75% of its guests were from out of state. They apparently refused to let black travelers
stay—suit filed saying that Title II of the Civil Rights Act was unconstitutional. The
hotel argued that the 14th Amendment did not prohibit racial discrimination by an
individual, and the framers intended to cover commerce as known in business fields—
people themselves are not commerce.
2. The UNANIMOUS Opinion: Upheld the constitutionality of Title II of the Civil Rights
Act
a. Voluminous testimony that discrimination by hotels impedes interstate travel
b. The determinative test is whether the activity sought to be regulated is
“commerce which concerns more states than one” and has a real and substantial
relation to the national interest
i. Doesn’t matter if Congress’s motive was moral—many federal laws
have been adopted under the commerce power to remedy moral wrongs
c. Court doesn’t really come to an answer if people = commerce
3. Significance: Shows that the Court has been consistently unwilling to limit Congress to
acting under the commerce clause ONLY to advance economic efficiency—reflects the
breadth of Congress’s power
iv. Katzenbach v. McClung (1964)
1. Facts: Court considered the constitutionality of apply the same statute as the one from
Heart of ATL to Ollie’s Barbeque, a family restaurant in Birmingham, AL. Ollie’s seated
220 (whites only), was located 11-miles from an interstate highway, and its customers
were almost exclusively local.
2. Holding: The Court upheld application of Title II of the Civil Rights Act, noting that
the restaurant had purchased about $150,000 worth of food, 46% from a local supplier
who had in turn received it from out of state.
a. Court said “viewed in isolation, the volume of food purchased by Ollie’s
Barbeque from sources supplied from out of state was insignificant when
compared with the total foodstuffs moving in commerce”
b. Nonetheless, citing Wickard and extensive Congressional findings on depressed
per capita spending by African Americans, the Court upheld Congress’
“conclusive presumption that restaurants meetings the criteria set out in the Act
affect commerce.”
i. Emphasized interstate connections of the restaurant
THUS, UP UNTIL 1995: EXPANSIVE APPROACH TO THE COMMERCE CLAUSE
c. Commerce Clause Power: Modern Limitation and Other Article I Powers
i. United States v. Lopez (1995)
1. Facts: Lopez was a 12th grade student in 1992 when he was arrested for carrying a
concealed gun and give bullets. He was charged with violating the Gun-Free School
Zones Act of 19990 which made it a federal offense for “any individual knowingly to
possess a firearm at a place that the individual knows, or has reasonable cause to believe,
is a school zone.” Lopez was convicted on violating this law—he appealed, saying that it
was an unconstitutional exercise of Congress’s commerce power Issue was whether the
Commerce Clause authorizes Congress to enact a statute that makes it a crime to
possess a gun in, or near, a school.
2. The Rehnquist Opinion: The law was unconstitutional because it was not substantially
related to interstate commerce
a. Enumerated powers: Article I limits Congress’s legislative powers to those that
are express or implied in the Constitution
b. 3 Types of activity that Congress can regulate:
i. Regulate the use of the channels of interstate commerce
ii. Regulate and protect the instrumentalities of interstate commerce
(persons, things)
iii. Regulate those activities having a SUBSTANTIAL RELATION to
interstate commerce
1. Presence of a gun near a school did not substantially affect
interstate commerce and that the federal law was
unconstitutional as a result
2. Why this didn’t fit:
a. Not commercial
b. No jurisdictional element
c. Lack of legislative findings
d. Worried about drawing the line
e. Education is typically state-regulated
i. Thomas Concurrence: states are the residual
governmental entities with police power
c. Breyer Dissent: REJECTING 60 years of precedent!
3. Significance: Restricting Congress’s Commerce Clause power—substantial effects test
ii. United States v. Morrison (2000)
1. Facts: Young woman was raped by 2 men from Virginia Tech. She said the attack caused
all sorts of emotional disturbance, she dropped out of school She sued the two men and
VA Tech, claiming that the attack violated §13981’s from the Violence Against Women
Act of 1994. That act says that all persons have a right to be free from crimes of
violence motivated by gender—and to enforce that right, a person shall be liable to the
party injured (pay damages essentially). The two men claim that § 13981 is
unconstitutional
2. The Rehnquist Opinion: Gender-motivated activities are not commercial activity.
a. Lopez: re-affirmed the 3-part test
b. Congress regulating non-economic activity that has traditionally been dealt
with state laws—afraid of how far Congress can go with this
3. Significance: Goes further than Lopez in limiting the scope of Congress’s commerce
power by narrowing the ability of Congress to regulate based on findings of “substantial
effect” on interstate commerce.
a. At least in areas that the Court regards as traditionally regulated by the states,
Congress cannot regulate non-economic activity based on a cumulative
substantial effect on interstate commerce.
b. If an activity is NON-COMMERCIAL and it does not cross state lines,
Congress cannot regulate it under the commerce clause unless the federal
government can prove that the activity in fact has a substantial effect on
interstate commerce.
iii. Gonzales v. Raich (2005)
1. Facts: Two CA residents who suffer from a variety of serious medical conditions want to
use medical marijuana under the terms of the CA Compassionate Use Act. They
brought an action seeking an injunction prohibiting the enforcement of the federal
Controlled Substances Act, in that it prevents them from using marijuana for this
medical use. They argue that its prohibition of the manufacture and possession of
marijuana for medical purposes pursuant to CA law exceeds Congress’s authority under
the Commerce Clause.
2. The Opinion: Congress may use its power to regulate commerce among the states to
prohibit the cultivation and possession of small amounts of marijuana for medicinal
purposes.
a. Stevens Majority:
i. For over 70 years, Congress has had the authority to regulate activities
that have a substantial effect on interstate commerce
ii. Marijuana, went looked at cumulatively, thus has a substantial effect on
interstate commerce---relied in Wickard
b. Scalia Concurrence: Congress may regulate those intra-state activities that do
not by themselves regulate inter-state activities (based on necessary and proper
clause)
3. Significance: Possible tension between Morrison?
a. Stands for the proposition that intrastate production of a COMMODITY sold
in interstate commerce is economic activity and thus substantial effect can be
based on cumulative impact.
b. Did not alter the substantial effects test of Morrison
SPENDING AS AN ALTERNATIVE TO THE COMMERCE CLAUSE:
Article I, § 8, cl. 1: Congress may lay and collect taxes, duties, imports, and excises to pay the debts and provide for the common defense and
general welfare of the US
iv. South Dakota v. Dole (1987)
1. Facts: South Dakota allows people 19 years of age or older to purchase beer with a
certain limit of alcohol. In 1984, Congress enacted legislation that allowed the Secretary
of Transportation to withhold a percentage of federal highway funds (5%) to States in
which the purchase or public possession of alcohol for people under 21 is legal. South
Dakota then used the government, saying that § 158 of the Act violated the
constitutional limitations on congressional exercise of the spending power and violates
the 21st Amendment to the US Constitution--Claim that the setting of minimum
drinking ages is clearly within the core powers reserved to the States and the Act
usurps this power. Government says that the 21st Amendment is not implicated in this
statute—the plain language confirms the States’ broad power to impose restrictions on
the sale and distribution of alcoholic beverages
2. The Opinion: Upheld power of Congress to use conditional spending to withhold federal
highway funds from states that allowed the purchase or possession of alcoholic
beverages by persons under the age of 21.
a. Rehnquist Majority: The 21st Amendment, like the 10th amendment, was not a
restriction on the federal government’s power to impose conditions on federal
spending programs
i. The four-part test to measure the validity of a federal spending law:
1. GENERAL WELFARE: The spending power should be used
for the general welfare
a. Reasonable here that granting money for building and
maintaining highways promotes the general welfare
2. UNAMIBIGUOUS: If Congress wants to place conditions on
the granting of money to a state or local government, Congress
must do so unambiguously, so that those governmental entities
could make a knowing choice in deciding whether to accept the
conditional grant
a. Congress has explicitly stated that states would
sacrifice part of their grants if they did not establish a
21 age limit
3. REASONABLY RELATED: Our cases have suggested that
conditions on federal grants might be illegitimate if they are
unrelated to the interest in particular national projects or
programs
a. The condition established by the law at issue was
arguably related to the purpose for which the federal
government funded highways (the purpose of having
safe roads to travel)
4. NO VIOLATION OF INDEPENDENT BAR: A federal
spending program would be invalid if the statute (or any
conditions placed on the persons who received the money)
violated an “independent bar” to the spending power that was
set forth in the Constitution
b. O’Connor Dissent: The act is an attempt to regulate the sale of liquor and this
lies outside Congress’s power because it falls within the 21st Amendment
i. Establishing of a minimum drinking age of 21 is not sufficiently related
to interstate highway construction to justify so conditioning funds
appropriated for that purpose
3. Significance: 4-part test for determining validity of federal spending law
d. Federalism Limits on Article I Powers: The 10th Amendment
10 Amendment: the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states
respectively, or to the people.
th
i. Garcia v. San Antonio MTA (1985)
1. Facts: Focused on whether the application of the Fair Labor Standards Act to state and
local governments violated the 10th Amendment. Prior decision, National League of
Cities, said that FLSA could be applied to states.
2. Opinion:
a. Blackmun Majority: FLSA does not apply to state governments
i. National League of Cities approach had proven unworkable
(traditional/non-traditional label): argued for judicial restraint in
enforcing the 10th Amendment
ii. Protection of state prerogatives should be through the political process
and not from the judiciary—political process ensures that the laws that
unduly burden the states will not be promulgated
b. Powell Dissent: Court could define the parameters of the 10th Amendment just
as the Court has defined numerous other ambiguous constitutional provisions
c. O’Connor dissent: Challenged the view that the political process would
adequately protect the interests of state governments
d. Rehnquist Dissent: Lamented the majority’s approach but predicted that the
conservative’s position on the 10th Amendment would prevail
3. Significance: Overruled National League of Cities; revived the 10th Amendment as a
limit on Congress’s power—FLSA does not apply to state governments
**If things were left with Garcia, we could say that the federal government can do the same things with respect to its
laws to the states that it can do to companies or individuals- BUT, NY v. US and Printz seem to be saying the
opposite
ii. New York v. United States (1992)
1. Facts: A federal law (the 1985 Low-Level Radioactive Waste Policy Amendments Act)
created a statutory duty for states to provide for the safe disposal of radioactive wastes
generated within their borders. The Act provided monetary incentives for states to
comply with the law and allowed states to impose a surcharge on radioactive wastes
received from other states. Additionally, to ensure effective government action, the law
provided that states would “take title” to any wastes within their borders that were not
properly disposed of between January 1, 1996, and would be liable for all damages
directly or indirectly incurred. New York did not join a regional compact—State
complied with the Act’s requirements by enacting legislation providing for the
financings of a disposal facility in NY—claim Act is inconsistent with the 10th
Amendment and the Guarantee Clause
2. The O’Connor Opinion: Invalidated a federal law as violating the 10th Amendment—
Federal legislation could not order states to adopt state legislation that would set state
standards nor order the states to take ownership of privately owned radioactive wastes
in their states.
a. This is coercion because the states have no other alternative and no way to
reject federal authority
b. Compelling states to legislate: federal government is forcing states to legislate
c. Political accountability: If people want to know who is accountable, it is the
federal government who passes the statute—but the states are the ones that
look like they are liable and take title
d. Legal argument: there is a direct relationship between the US government and
the people—not the US government to make states do something which will
have consequences for the people
i. Here: US  states  people
1. Articles of Confederation had this and the Framers took this
out—Dissent doesn’t agree with this analogy
ii. Actually: US  people and states  people
1. Congress could have just DIRECTLY regulated radioactive
waste
3. Significance: the Court does not overrule Garcia; It is unconstitutional for Congress to
compel state legislatures to adopt laws or state agencies to adopt regulations.
a. If Congress wants to regulate radioactive waste in a particular way, after this
case it can:
i. Regulate the activity directly (and take political accountability if
members of the populace dislike the federal regulations)
ii. Reward states with monetary grants conditioned on achieving federal
standards for the disposal of radioactive waste
iii. Strengthen the commerce powers of states that meet federal guideleines
by allowing them to prohibit the importation of radioactive waste from
states that do not meet federal safety guidelines
iii. Printz v. United States (1997)
1. Facts: In 1993, Congress passed the Brady Act that required a background check for
people trying to buy guns. The Act required the Attorney General by 1998 to set up a
national system that would check the background of people attempting to purchase a
gun. However, before the national system was in place, the Act required the chief law
enforcement officer (CLEO) in the jurisdiction in which the would-be purchaser resided,
to review a form filled out by the gun purchaser and determine whether the purchaser
was within a group of persons who were prohibited by federal law from purchasing
guns (interim period). Suit arose because it seemed like Congress imposed an unfunded
mandate on state executive branch officials.
2. The Scalia Opinion: Provision violated the 10th Amendment
a. The history of the Constitution and its amendments provided no evidence that
Congress had been given authority to control the activities of state legislatures
or executive legislative officials. Re-affirmed NY v. US: Congress violates the
10th Amendment when it conscripts state governments.
b. The federal system that the Constitution of 1787 created did not give the
federal government the power to control state or local legislative/executive
officers merely for the purpose of implementing federal law
i. Violates separation of powers
ii. Constitution vests all executive power in the president and Congress
impermissibly gave the executive authority to implement the law to
state and local law enforcement personnel
iii. Violates the idea of unity that the Framers wanted
c. Earlier decisions of the Court, including NY v. US, made clear that the federal
government may not compel the states to implement by legislation or executive
action, federal regulatory programs
3. Significance: The federal government may subject states to commerce power
regulations that are applied to both private sector businesses and public sector entities
engaged in similar types of activities that are involved in interstate commerce. In some
instances, compliance with those laws will require a state to change its administrative
systems. Compliance with such laws will NOT violate the principles established by New
York and Printz cases
iv. Reno v. Condon (2001): Unlike the other recent cases, the SC rejected the 10th Amendment
challenge and UPHELD the federal law. Court unanimously upheld the Federal Drivers Privacy
Protection Act, which prohibited state governments from disclosing information they received
in drivers license applications except under limited circumstances. The Act ALSO LIMITED
the use of such information by private persons who received the information through one of the
exemptions established in the act. CJ Rehnquist easily found that the drivers license information
is an article in commerce, and that the Federal Act came within the scope of Congress’s Article I
commerce power. Also, the law did not violate the 10th Amendment because it was a
prohibition of conduct, not an affirmative mandate as in NY v. US or Printz
1. Distinguishing this case from the more recent cases:
a. This case is regulation of private parties but private parties are the minimal
party to the regulation—hits the database owner primarily which is the state-This case may extend Garcia a bit even after NY and Printz
b. Telling the state what it CANNOT do as opposed to telling the state what it
CAN do--Prohibition on release of information but doesn’t require the state to
do anything; Piece of this found in NY case
c. Perspective of beneficiaries—individual citizens here benefit from the privacy
barrier --This is a regulation for which the beneficiaries are the public at large-Restriction on the state for the protection of particular beneficiaries
 First time in the last decade that the Court has rejected a federalism challenge to a federal law
 Relies on a distinction between affirmative obligations and negative prohibitions that is well established in
constitutional law
 CONGRESS MAY PROHIBIT STATE GOVERNMENTS FROM ENGAGING IN HARMFUL
CONDUCT, BUT CONGRESS MAY NO IMPOSE AFFIRMATIVE DUTIES ON STATE
GOVENRMENTS. (questionable distinction by the SC)
e. Federalism Limits on Article I Powers: The 11th Amendment
11 Amendment: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
th
 Court interpretations of the Amendment have involved both expansions and restrictions of the literal application of
its wording. This provision acts to bar suits brought against state governments in the federal courts. It does not grant
the states true immunity, for it does not exempt them from the restrictions of federal law.
 In resolving issues under the 11th Amendment, one should ask 5 basic questions:
1-Is the plaintiff one to whom the Amendment applies?
2-Is the suit truly against the state?
3-Is the suit seeking relief in a manner that is barred by the Amendment?
4-Has the state waived its immunity?
5-Is there a valid federal statute in the area that overrides the immunity?
i. Seminole Tribe of Florida v. Florida (1996)
1. Facts: The Indian Gaming Regulatory Act provides that an Indian tribe may conduct
certain gaming activities only in conformance with a valid compact between the tribe
and the state in which the gaming activities are located. The Act imposes a duty onto
States to negotiate in good faith with the tribe towards the formation of this compact. If
the State doesn’t act in good faith, then the tribe can bring a suit against the State in
federal court in order to compel performance of that duty can force the State and
Indian tribe to conclude such a compact within 60 days, if no consent by the States then
the Secretary of the Interior can prescribe procedures under which gaming can be
conducted. Federal intervention through the Secretary of the Interior to impress on the
parties to reach a deal. The Seminole Tribe sued the State of Florida, claiming that the
state had refused to enter into any negotiation for these compacts—violated the “good
faith” requirement
2. The Rehnquist Opinion: Court held that Congress may abrogate the 11th Amendment
only when acting under its §5 powers and not under any other constitutional authority
a. Congress cannot use the commerce clause to create private rights of action
against state governments for monetary damages that could be litigated in the
federal courts
b. Congress may authorize suits against states only when acting pursuant to §5 of
the 14th Amendment and not pursuant to other federal powers, such as the
Indian Commerce clause
i. §5 is different because it was meant as a limit on states and the 14th
Amendment modifies the previously enacted 11th Amendment (dissent
argues that nothing suggests this)
3. Significance: Key question after this case is whether a statute was enacted under §5 or
another congressional power—a state can be sued in federal court ONLY if the Court
concludes that the law was enacted under §5
ii. Alden v. Maine (1999)
1. Facts: Group of probation officers alleged in state court that the state of Maine had
violated the overtime provisions of the Fair Labor Standards Act of 1938 and sought
compensation and liquidated damages
2. Opinion: State governments cannot be sued in state court without their consent
a. The Kennedy Majority:
i. 11th Amendment does not control in this case
ii. Sovereign immunity principles, which are derived from the Constitution,
mean that Congressional powers under Article I do not include the
power to subject non-consenting States to private suits for damages in
state courts—Congress cannot force a state to be sued in its OWN
court system
iii. Found evidence surrounding the ratification of the Constitution of 1787
that demonstrated that the state retained immunity from suits by
private persons in their own courts unless consented—not granted by
11th Amendment
1. 11th Amendment designed not to change but to restore the
original constitutional design and the state therefore retained
immunity of a sovereign in its own courts
b. Dissent:
i. No evidence existed that the drafters or ratifiers of Article III of the
Constitution, or the 11th Amendment, meant to give the states
immunity from suits in state courts if the state had violated a statute
had had been validly passed by Congress under the powers granted to it
by the Constitution of 1787
3. Significance: Prevents Congress from subjecting the states to private suits in their own
courts, even where the right sued on is federal
a. NOTE: Alden made clear that the state’s constitutional privilege to assert its
sovereign immunity in its own courts does not give a state the right to
disregard the Constitution or a valid federal law
b. A state’s sovereign immunity does not prevent the federal government itself
from suing the state to enforce federal law—Congress could enact a federal
criminal statute that would apply to state actors, such as state prosecutors, state
marshals, and so forth, that would impose severe criminal penalties for any state
officials who violate federal statutes
iii. Federal Maritime Commission v. South Carolina Ports Authority (2002)
1. Facts: A cruise ship company brought a claim against a state agency in the Federal
Maritime Commission, claiming that it had been discriminated against in violation of
federal maritime law.
2. Opinion: States cannot be named as defendants in federal administrative agency
proceedings
a. Such actions are barred by sovereign immunity
b. Alden v. Maine: relied on Alden conclusion that sovereign immunity is broader
than the protections of the 11th Amendment
c. Preeminent purpose of sovereign immunity is to protect the dignity of state
governments and that such dignity would be impermissibly offended by
allowing states to be named as defendants in agency proceedings without their
consent
3. Significance: Opens up notions of sovereign immunity even more than previous cases
iv. Tennessee Student Association Corporation v. Hood (2004)
1. Court relied on the distinction between in rem and in personam JD
a. 11th Amendment did not bar a proceeding initiated in a federal bankruptcy court
by a former student to discharge a loan debt to a corporation administered by a
state
b. States can be sued in bankruptcy proceedings to discharge debts since they are
in rem in nature
2. The only theory that distinguishes this from the other cases is that we are not dealing
with a PERSON but we’re talking about a THING (an estate of the debtor that is
behind handled through a federal process)
v. Overview of 11th Amendment Decisions:
1. Majority: view sovereign immunity as pretty broad; can’t pass a federal statute that is
going to infringe on state immunity makes it difficult to collect in a lawsuit unless the
state has waived immunity
2. Dissent: view the majority as saying you have a right with no remedy
V. Federalism’s Limits on the States
a. Protection of Federal Institutions and Pre-Emption of State Law
i. US Term Limits v. Thornton (1995)
Qualifications Clause: Article I §2 cl. 2 “no person shall be a representative who shall not have reached 25 years of age, 7 years citizen and
inhabit the state in which he shall be chose.”—slightly different requirements for Senators
1. Facts: ARK law Amendment 73 barred ballot access to elected officials who served in
office for longer than a certain amount of time (3 terms for House, 2 terms for Senate).
At the general election of 1992, the voters of Arkansas adopted it to their State
constitution by 60%. The case arose because the amendment prohibited the name of an
otherwise eligible candidate for Congress from appearing on the general election ballot.
Petitioners argued that (1) Amendment 73 was a proper exercise of the state’s reserved
powers under the 10th Amendment and (2) that the term limit amendment was a ballot
access restriction supported by the State’s power under the Election Clause to regulate
the “times places, and manner of holding elections”
2. Opinion: It is unconstitutional for states to impose term limits on federal legislators
a. The Stevens Majority
i. Textual arguments There can be no additional qualifications added to
those already provided for in Article I, dealing with age, citizenship, and
residency
1. Structure: not put with Article I powers
a. Kennedy concurrence: split the atom of sovereignty—if
we allow this, this undermines the federal system
ii. History: Takes a pre-constitutional view of history—power to
determine constitutional limits is a new power that the states did not
have before constitution
iii. Policy: direct relationship with people and federal government, term
limits undermines this
iv. Precedent with the Powell case: people should choose who they want to
govern—going to democratic principles
b. The Thomas Dissent:
i. Language of the Constitutional provision is not an exhaustive list
ii. Post-constitutional history: just because we haven’t had term limits for
200 years does not mean that this is not a good idea
iii. Same considerations are not involved—Powell is not relevant
iv. Arkansas polity may not be able to get someone out of office that they
won’t want to
3. Significance: No term limits for federal legislators
4. Note: The key in these cases comes from the individual predilection of each judge
towards total pre-emption and no pre-emption of federal law over state law
ii. Geier v. American Honda (2000)
1. Facts: Alexis Geier bought a 1987 model Honda Accord. She was seriously injured when
the car crashed into a tree. She sued Honda, saying that the absence of airbags was a
design defect that was responsible for her injuries. The Department of Transportation
had promulgated rules pursuant to the National Traffic and Motor Vehicle Safety Act
for 1987 automobiles—the regulations required that cars have passive restraint systems
and gave manufacturers 3 choices: air bags, lap and shoulder belts (Geier’s car). Honda
argued that Geier’s suit was pre-empted by federal law because it built the car in
compliance with the federal safety requirements. The problem with this is that the
National Traffic Act which was the basis of the DOT regulations, had a savings clause
that said “nothing within the law was meant to preempt any other cause of action that
might exist.”
2. Opinion: Found federal pre-emption notwithstanding the saving clause
a. The Breyer Majority
i. Not a situation of express pre-emption but instead conflicts preemption:
allowing state liability for cars made in compliance with the federal
safety standard was deemed to CONFLICT with the federal law
ii. Savings clause did not foreclose pre-emption because there is no
indication that Congress wanted to permit lawsuits when cars were
made in compliance with the DOT’s safety regulations
b. Dissent: Case is about federalism to them—neutral reading of the statute shows
that Congress never intended to pre-empt state law
3. Significance: Provides a basis for defendants to claim pre-emption in tort liability when
produces are made in compliance with a federal safety standards. Case is also significant
in showing he need for judicial interpretation of savings clauses and judicial
determination of whether there really is a conflict between federal and state law.
iii. American Insurance Association v. Garamendi (2003)
1. Facts: Various insurance companies and a trade association of insurance companies
sought to enjoin the California Insurance Commissioner from enforcing a CA statute
requiring disclosure of information about Holocaust-era insurance policies. CA statute,
HVIRA, called for any insurer who did business in CA and that sold insurance policies
in Europe which were in effect during Holocaust-era to disclose certain information
about those policies to the California Insurance Commissioner or risk losing their
license. Germany had already agreed through a presidential agreement to participate in
a voluntary compensation fund that would be paid to the victims of the Holocaust.
Conflict arose because the presidential agreement looked like the only official forum for
compensation to victims—conflict between state and federal law.
2. Opinion: The CA HVIRA act is preempted based on the implied dormant foreign affairs
powers of the President
a. The Souter Majority:
i. Statute impermissibly interfered with the President’s conduct of foreign
affairs and was therefore preempted
ii. Executive agreements at issue did not include any preemption clause,
but there was a clear conflict to require finding preemption based on the
intent of the executive agreements and the statements of high-level
Executive Branch officials
1. Compromises the very capacity of the President to speak for the
Nation with one voice in dealing with other governments’ to
resolve claims against European companies arising out of WW2
iii. Zchernig case: clear field pre-emption when dealing with foreign affairs
that precludes operation of state law
b. Dissent: Absent a clear statement aimed at disclosure requirements by the “one
voice” to which courts properly defer in matters of foreign affairs, leave CA’s
enactment—no exec agreement or other formal expression of foreign policy
disapproves state disclosure laws like the HVIRA
3. Significance: Total field pre-emption in foreign affairs; clean slate with domestic affairs
VI.
Judicial Protection of Interstate Commerce
a. The Dormant Commerce Clause
i. What is the Dormant Commerce Clause?
1. The "Dormant" Commerce Clause, also known as the "Negative" Commerce Clause, is a
legal doctrine that courts in the United States have implied from the Commerce Clause
of the United States Constitution.
2. The Commerce Clause expressly grants Congress the power to enact legislation that
affects interstate commerce.
3. The idea behind the Dormant Commerce Clause is that this grant of power implies a
negative converse — a restriction prohibiting a state from passing legislation that
improperly burdens or discriminates against interstate commerce.
4. The question of whether such a negative implication should be recognized, and how far
it should extend, has been a subject of extensive disagreement among Federal judges.
ii. Willson v. The Black Bird Creek Marsh Company (1829)
1. Facts: The Black Bird Creek Marsh Company constructed a dam across a creek—they
obstructed navigation of the creek with the dam. The defendants own a ship called the
Sally and have a license according to the navigation laws of the US. They broke and
injured the dam. The Company sued under an action for trespass
2. Opinion: The act empowering the Black Bird Creek Marsh Company cannot be
considered repugnant to the power to regulate commerce in its dormant state or being
in conflict with
a. Property and health interests justify the dam—dam is not a regulation of
interstate commerce
b. Even though the dam stops a navigable creek and may abridge rights, this is an
affair between the government of Delaware and its citizens—Court has no role
c. If Congress had passed a statute that affected this situation—would not be
difficult to say the state law coming in conflict with the act would be void—
however, there is no act
3. Significance: Case is an early example of court getting into this area in a situation where
the Constitution essentially says the commerce regulating power is a Congressional
power
iii. Philadelphia v. New Jersey (1978)
1. Facts: New Jersey passed a law saying that “no one can bring any solid or liquid waste
which was collected or originated outside the territorial limits of the State.” In
accordance to the statute, NJ closed its borders to waste from all other states. Operators
of private landfills and several cities in other States that had agreements with those
operators were immediately affected. As a result, they filed suit against NJ, claiming the
statute and regulations were unconstitutional and violated the commerce clause
2. Opinion: Violation of the Commerce Clause: NJ can’t keep solid or liquid waste from
coming in
a. Local Character: many subjects of potential federal regulation escape
congressional attention because they are local in character
i. Pike v. Bruce Church
1. If there is a legitimate public interest AND
2. The effect on commerce is incidental
3. WILL uphold the law unless the burden on commerce
outweighs the local benefit
a. Court here decides that the statute was designed to
protect, not the State’s economy, but its environment,
and that its substantial benefits outweigh its slight
burden on interstate commerce
b. Whatever NJ’s ultimate purpose, it may not be accomplished by discriminating
against articles of commerce coming from outside the State unless there is some
reason, apart from their origin, to treat them differently
c. A state can’t accord its own residents a preferred right of access over consumers
in other states to natural resources located within its borders—cannot isolate
from a problem common to many
d. This cannot be a protective measure for health—used for quarantine cases, and
this is not quarantine law—doesn’t make sense why one type of waste gets
excluded and not the other
e. Commerce clause protection: what if NJ wants to send its waste to other states
and close their borders?
i. Commerce clause will protect NJ in the future just as it protects its
neighbors now from efforts by 1 state to isolate itself from the stream of
commerce from a problem shared by all
3. Significance: Case remains good law one state cannot bar commerce from other states
at least in situations where they allow commerce on that state item within the state
a. Court seems to be saying: If there is discrimination, we strike it down unless
there is a countervailing state interest
b. Note: Maine v. Taylor
iv. Granholm v. Heald (2005)
Section 2 of the 21st Amendment: transportation or importation into any state, territory, or possession of the US for delivery or use therein of
intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
1. Facts: MI and NY have laws that allow in-state wineries to sell directly to consumers in
that state but prohibit out-of-state wineries from doing so. Court says the point of the
statutes are to grant in-state wineries a competitive advantage over wineries located
beyond the States’ boundaries. Essentially a state, discriminatory regime that
discriminates against out-of-state wineries and sellers of alcoholic beverages (could
potentially fail under the Philly v. NJ test).
2. Opinion: Laws are unconstitutional; destructive of the very purpose of the Commerce
Clause
a. History does not support the position that the 21st Amendment gives states the
right to discriminate against out-of-staters as shown through case law
i. Court going back to pre-18th Amendment analysis because the 18th
Amendment was repealed (Webb-Kenyon Act of 1913 made states be
treated equally)
ii. Little evidence that states want to keep alcohol out of minors (can just
go out-of-state); regulatory objectives can still be achieved without this
statute,
b. Burden is on the state to show that the discrimination is justified
c. Dissent: thinks the 21st Amendment ought to trump because a statute can’t
create legislative history
3. Significance: Resolved split in the circuits, shows strong anti-discrimination policy that
the court will read in to the Commerce Clause
v. Exxon Corporation v. Governor of Maryland (1978)
1. Facts: Maryland says in this state you cant have something that is owned by Exxon or
Shell—stations have to be owned by independents. MD statute provides that a producer
or refiner of petroleum products can operate a retail service station in the state—statute
had been enacted following a gasoline shortage in which refiners provided gasoline
products to stations they owned in preference to stations owned by independent
operators . Question is whether MD statute is constitutional or not. 99% of the
refineries in the state were owned by out-of-state corporation---In excess of 99% of the
people who were shut down by this law were out-of-staters
2. Opinion: Supreme Court upheld the Maryland law 8-1: constitutionally permissible
because it discriminates against refinery-owned operators and is not discriminatory
against out-of-staters (even though 99% hit by the MD regime are in fact out-of-staters)
3. Significance: viewed as saying that if a statute has language that is explicitly
discriminatory, then the Court will strike down that statute—this all changes with
Kassel
vi. Kassel v. Consolidated Freightways (1981): NO MAJORITY HERE—ONE OF THE WORST
CON LAW DECISIONS THAT YOU WILL EVER SEE!!
1. Facts: Iowa has a statute that restricts the length of vehicles that are used on its
highways. Unlike all the other states around it geographically, Iowa generally prohibits
the use of 65-foot doubles within its borders and restrict trucking companies to 55-feet
combinations (exceptions are for shipping trucks or hauling livestock, etc). Because of
this statutory scheme, Consolidated Freightways, a trucking company, cannot use its
65-foot doubles to move commodities through the State. Have to use 55-foot singles,
60-foot doubles, detach trailers of a 65-foot double and shuttle each one separately, or
divert around Iowa . As a result, Consolidated filed suit averring that Iowa’s statute
unconstitutionally burdens interstate commerce. Iowa claims that it is a reasonable
safety measure and the 65-foot doubles are more dangerous (promotes safety and
reduces road wear within the State by diverting much truck traffic to other states)
2. Opinion: The Iowa truck-length limitations unconstitutionally burden interstate
commerce Incantation of a purpose to promote the public health or safety does not
insulate a state law from Commerce Clause attack.
a. Benefits and Burdens Analysis:
i. Double-long trailers aren’t really that unsafe as compared to the others-Safety is not that great of an argument because 2 of the singles may
have more accidents and deaths than a single double carrying the same
load
ii. Exporting death to other states
iii. Iowa would be the only state in the Midwest and West that would have
this ban on double trailers—consequence is a lot of extra-driving
iv. Inefficient—people doing a national business can’t do efficient business
b. Brennan and Marshall Concurrence: CC challenges to state regulations must
take into account 3 principles:
i. Courts are not empowered to second-guess the empirical judgments of
lawmakers concerning the utility of legislation
ii. The burdens imposed on commerce must be balanced against the local
benefits actually sought to be achieved by the State’s lawmakers
iii. Protectionist legislation is unconstitutional under the Commerce Clause,
even if the burdens and benefits are related to safety rather than
economics (fails under #3)
1. Dissents because he sees the focus of the court as being the
regulatory purpose—not whether the intended purpose of the
law was performed
3. Significance: Court taking on a legislative-like role: Making discretionary, nonprincipled decisions that the legislature does; doctrine is balancing test but the court has
not used it since 1978
a. Facially discriminatory statute  functionally discriminatory and
unconstitutional
b. Not facially discriminatory look to balancing test (though the Court has not
used this since 1978)
vii. United Haulers v. Oneida-Herkimer (2007)
1. Facts: The plaintiff, a not-for-profit corporation comprised of solid waste management
companies, sued the New York counties of Oneida and Herkimer under 42 U.S.C. § 1983,
claiming that county ordinances regulating the collection, processing, transfer and
disposal of solid waste violate the dormant Commerce Clause. The flow control
regulations required all solid wastes and recyclables generated within Oneida and
Herkhimer counties to be delivered to one of several waste processing facilities owned
by the Oneida-Herkimer Solid Waste Management Authority (“the Authority”), a
municipal corporation. The Plaintiff argued that these ordinances burden interstate
commerce by requiring garbage delivery to an in-state facility, as this restriction
necessarily prevents the use of facilities outside the Counties and diminishes the
interstate trade in waste and waste disposal services.
2. Opinion: No discrimination because it treats in-state and out-of-state facilities the
same—everyone is on the same playing field
a. Local laws that discriminated in favor of government owned (but not private
sector) businesses would not be subject to the rigorous judicial scrutiny applied
to laws that favored in-state private sector businesses or persons
b. The local law in this case did not discriminate against any out-of-state
businesses because only in-state waste processors were interested in competing
for the business of processing the garbage produced in the two counties
c. Balancing test: After deeming the ordinance nondiscriminatory, the Court
balanced its burden on commerce against its financial, health, and
environmental benefits. The Court found that it imposed only an "incidental
burden."
i. The majority declined to "rigorously scrutinize" the economic effects of
the ordinance, preferring to leave the policy analysis to local
government.
d. Scalia Dissent:
i. Scalia and Thomas believe that the judiciary should never employ a
balancing test in DCC analysis
3. Significance:
a. If in favor of a single monopoly (publicly-owned), then the case will be nondiscriminatory and gets lenient treatment on DCC analysis
b. Irony is that in a prior case, the Carbone case, the Supreme Court struck down a
statute in which everything was the same except for 1 factor:
i. The Court held in C & A Carbone, Inc. v. Town of Clarkstown (1994)
that “a so-called flow control ordinance, which require[d] all solid
waste to be processed at a designated transfer station before leaving the
municipality,’ discriminated against interstate commerce and was
invalid under the Commerce Clause because it “depriv[ed] competitors,
including out-of-state firms, of access to a local market.”
ii. If you look at both of these cases, Oneida doesn’t overrule Carbone
Discriminatory
Non-Discriminatory
Philadelphia v. New Jersey
Balancing test
Public
Private
THUS:
--IF DISCRIMINATORY, HAVE 8 OUT OF 9 THAT WILL LOOK AT IT WITH A STRONG PRESUMPTION OF
UNCONSTITUTIONALITY
--WITH THE EXCEPTION OF SCALIA AND THOMAS, 7 MEMBERS THAT ARE STILL WILLING TO LOOK AT
NON-DISCRIMINATORY STATUTES UNDER A BENEFITS-BURDEN ANALYSIS
-HOW THIS WORKS WE DO NOT KNOW
-SHANOR: HIGH BURDEN TO SAY THAT A NON-DISCRIMINATORY STATUTE OUGHT TO BE HELD
UNCONSTITUTIONAL
-Seems to be that the burden must be high and clear—looking at the evidence that the legislature had
before it
b. Dormant Commerce Clause Wrap-UP
i. SC is extremely skeptical about state discrimination against out-of-staters
ii. Conflicts within the DCC field itself:
1. Power to regulate is a power of Congress, not the courts
2. There are some areas where there is not overt, rampant discrimination, but burdens on
interstate commerce created by local regulations
a. Court’s jurisprudence is much murkier and harder to define
b. Court has taken to balancing test (burdens v. benefits) for local regulations—
shows division in the Court over doing this test
c. The Market Participant Exception
i. What is the Market Participant Exception?
1. A state may limit its own direct subsidy to persons or businesses that are domiciled in
the state
2. A state may choose to give a subsidy to a favored class of persons or business—this
direct subsidy may consist of money, products, or services that go directly from the
government to an individual person or individual business
3. Court created this market participant exception to describe why a state giving economic
subsidies to businesses domiciled in the state does not violate the commerce clause: term
separates the state when it acts as one who provides a subsidy as distinguished from the
state when it acts to regulate the market
a. When the state passes laws to regulate the market: DCC restricts state power
b. When the state enters the market to buy and sell goods/services, it can spend
its money as it sees fit, and thus it can decide to spend its money to favor its
citizens
i. However, the fact that a state is dispensing its subsidies to in-state
persons or in-state businesses will NOT allow it to place conditions on
the use of those subsidies that discriminate against interstate commerce,
such as imposing a tariff or trade barrier
ii. South-Central Timber Development v. Wunnicke (1984)
1. Facts: Alaska law required purchasers of state-owned timber to have timber processed in
Alaska before it is shipped out of state.
2. Opinion: Invalidated a state law requiring purchasers of state-owned timber to have
timber partially processed within the state before they could ship it out of the state
a. Most of the justices agreed that a state did not have any right to impose
conditions downstream in restricting how the recipient of state-owned timber
(which was a direct subsidy) would be used AFTER the private individual
received the timber
i. The limit of the M-P doctrine must be that it allows a State to impose
burdens on commerce within the market in which it is a participant, but
allows it to go no further. The State may NOT impose conditions
whether by statute, regulation, or contract, that have a substantial
regulatory effect outside of that particular market.
b. Court drew a distinction between the ability of a state to prefer its own citizens
in the initial disposition of goods when it is a market participant and a State’s
attachment of restrictions subsequent to the goods coming to rest in private
hands
3. Significance: Case establishes that once the state gives a subsidy to a private person, it
may not prohibit that private person from taking the subsidy outside of the state or
using it outside the state
a. Note: doctrine developed that says a state can’t hoard natural resources
iii. Smith v. Department of Agriculture (1980)
1. Facts: Involves a state farmer’s market and inferior sales locations are given to nonresident sellers. Question over whether the state is acting as a participant or as a a
regulator.
2. Opinion:
a. If the state is regulating the use of the farmer’s market, perhaps engaging in
downstream regulation viewed as impermissible
b. If the state is merely renting the place, then participant?
i. Court decides ultimately that it’s a seller with a limitation on its space
CLOSE QUESTION
ii. This case decided before Wunnicke decision
1. If Wunnicke had come before the Smith decision, Smith might
have been less willing to take an expansive view of the state as a
seller-buyer
WHEN EVALUATING THE MARKET PARTICIPANT EXCEPTION:
-Step 1: IS the state operating as a buyer or seller? Regulator?
-Step 2: Even if operating as a buyer or seller, is it imposing a downstream regulation?
-If only a buyer/seller, then it can discriminate MPE
-If operating as a regulator, can’t discriminate  DCC
State Privileges and Immunities: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States
(Article 4, Section 2)
iv. United Building and Construction Trades Council v. City of Camden (1984)
1. Facts: An ordinance of the city of Camden, NJ requires that at least 40% of the
employees of contractors and sub-contractors working on city construction projects be
Camden residents. The plaintiff, the Council, challenges that ordinance as a violation of
the Privileges and Immunities Clause of the US Constitution in Article 4, § 2. State
argues that (1) the Clause only applies to laws passed by a state, and (2) the Clause only
applies to laws that discriminate on the basis of citizenship
2. The Rehnquist Opinion: City ordinance was subject to restriction on the P&I clause
a. Employment on public works projects was sufficiently fundamental to the
promotion of interstate harmony so as to fall within the purview of the P&I
clause
i. Distinguished private sector employment funded through governmental
contracts from full time employment in the private sector
ii. Indicates that the Court is unlikely to invalidate city or state residency
requirements for PUBLIC sector employment under the P&I clause—in
contrast, restrictions on private sector commercial activity, even though
the activity is undertaken on the basis of state contracts, must be
subject to judicial review under Article IV to avoid the undercutting of
the harmonious economic relationships between the states
b. Court concluded that state and local governments are not absolutely prohibited
from using local citizenship or residency qualifications for purposes of hiring
workers on city or state public works projects, if nonresidents in fact are shown
to cause a particular harm to state or local interest
i. Then, the state MAY treat them differently from local residents
ii. However, the state MUST demonstrate, by making a factual record at
trial, that there is a “substantial reason” for the difference in treatment
between the local residents or citizen and nonresident
c. Unfortunately, the Court did not explain what it meant, it just remanded the
case (had insufficient factual record)—it is an understatement to say that the
standard of review in these cases IS NOT CLEAR
3. Significance: The market participant theory does not automatically excuse the need for
an inquiry under the Privileges and Immunities Clause of Article IV.
a. The government’s ability to use its funds to help a state’s residents and its local
economy might be an important or even determinative factor in ruling on the
permissibility of the law, but there still must be an independent judicial review
of the need for cities and states to use its spending power to protect its local
residents
VII. Reconstruction of Individual Rights
Amendment 14, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.
a. Origins of Reconstruction Amendments
i. Dred Scott v. Sandford (1819)
1. Facts: Dred Scott had been taken as a slave into the state of IL and northern part of the
Louisiana Purchase territory. Illinois forbade slavery, and the Missouri Compromise
had declared the territory into which Scott’s owner had taken him to be free territory.
Dred Scott sued his present owner and argued that having been taken into free areas, he
had been made a free man.
2. Opinion: A bitterly divided court ruled AGAINST Dred Scott (8 separate opinions)
a. Majority:
i. Black slaves were not citizens of the US and can never be citizens
1. Used constitution, history, politics, etc to justify
ii. Must respect MO law declaring Scott a slave notwithstanding his
previous entry into area that banned slavery
iii. The majority said that MO compromise exceeded Congress’s power
1. Original Constitution had not given Congress any power to
interfere with an owner’s vested rights in his slaves
2. Thus, MO Compromise deprived the owners of their vested
property rights (the right to have slaves) without due process
(5th Amendment private property and taking)
b. Dissent: Majority’s theory not grounded in precedent, historical understanding,
or logic
3. Significance: Case that led to the Civil War
b. State Action and the Fourteenth Amendment
i. The Civil Rights Cases (1883): 8-1 Decision
1. Facts: Concerned four criminal indictments and one civil action under Section 1 of the
Civil Rights Act of 1875. That Act established criminal and civil penalties against
anyone who interfered with the “full and equal enjoyment” of public facilities and
conveyances by persons because of their race. The five cases were brought against
individuals and railroad who had excluded black persons from railroads, hotels, and
theaters because of their race.
2. Opinion: Court reversed the indictments and the civil penalty, because it held that the
discrimination did not involve state action which the 14th Amendment requires (“nor
shall any STATE deprive…”)
a. 14th Amendment: Section 1 of the 1875 Act had a “state action” requirement
i. If a private person or a corporation refuses to allow blacks to use public
accommodations or public conveyances, they are engaging in private
wrongs that had no relationship to a deprivation of rights that the 14th
Amendment protects if we allow this, there is no limit to
Congressional power
b. 13th Amendment:
i. 13th Amendment does not require state action, for it abolishes slavery
and involuntary servitude in the US regardless of whether those
conditions are imposed by a governmental entity or private persons
ii. However, for the law to be a valid enforcement mechanism for the 13th
Amendment, it would have to relate to the abolition of slavery or the
“badges and incidents” of slavery
iii. “It would be running slavery into the ground to make it apply to every
act of discrimination which a person may see fit to make as to the guests
he will entertain, or as to the people he will take into his coach or cab or
car, or admit to his concert or theater, or deal with in other matters of
intercourse or business”
3. Harlan Dissent: Majority bases its holding on grounds that are too narrow; state is not
purely neutral in regards to these businesses
4. Significance: Case is one in which the Court was not required to reach the conclusion
that it did. The Civil Rights Cases remain good law in implicitly establishing that the
provisions of § 1 of the 14th Amendment apply only to government action, not to private
action. However, the Court has held that Congress may prohibit racial discrimination
under the 13th Amendment.
ii. Shelley v. Kraemer (1948)
1. Facts: Shelley, a black couple, bought a deed for a piece of land. They did not have actual
knowledge of the restrictive agreement at the time they bought it. Kraemer, owner of
another property subject to the terms of the restrictive covenant, brought suit to
restraint Shelley from taking possession of the property and divest title from Shelley to
someone else. Argument was that private contractual agreements need not comply with
the Constitution and that court enforcement was simply implementing private choices.
In other words, there was a willing purchaser and a willing buyer, but the state court
would enjoin the sale because third parties wanted to enforce the racially restrictive
covenant.
2. Opinion: Courts may not enforce racially discriminatory covenants; “equal protection of
the laws is not achieved through indiscriminate protection of the laws”
a. Court enforcement of these restrictive covenants has the government, through
its judicial branch, facilitating discrimination
b. The action of state courts and judicial officers in their official capacities is to be
regarded as action of the State within the meaning of the 14th Amendment—
government employed judges enforcing the contract law of the state, which
does not forbid racial discrimination, that implements discrimination by
enforcing a racially discriminatory covenant
3. Significance: Restriction on the reach of the Civil Rights Cases. Case remains
controversial because almost everything can be made state action under it. If any
decision by a state court represents a state action, then ultimately private actions must
comply with the Constitution. Although the Court has never taken Shelley this far, it
has never articulated clear limiting principles.
iii. Edmonson v. Leesville Concrete Company (1991)
1. Facts: Edmonson was injured in an accident and sued Leesville CC for negligence.
During the voir dire process, Leesville used 2 of its 3 peremptory challenges authorized
by statute to remove black persons from the jury. Edmonson, who is black, argued that
the court require Leesville to articulate race-neutral explanations for striking 2 jurors—
the district court denied it, and the jury ended up being 11 white persons and 1 black
persons. Here, we don’t have prosecution by the state—if we have a prosecution by the
state, we can say that the prosecutor, employed by the state, is a state actor and is
denying equal protection of the law when that person eliminates people from the jury
based upon their race. In this case, we don’t have the state involved: P vs. D where P is
an individual and the D is a company.
2. Opinion: Equal protection prohibits prosecutors from using peremptory challenges in a
discriminatory fashion in civil cases (extends Batson to civil cases)
a. Uses the 2-part Lugar test:
i. Exercise of right with source instituted in the state (Shanor:
tautological)
1. Peremptory challenge, not a trial
2. State conduct of trial—there is a state action when private
parties exercise peremptory challenges in a civil case in a
racially discriminatory manner
ii. Party is a state actor (Shanor: vague)
1. Emphasized involvement of the government in jury selection
from subpoenaing individuals for jury service to compelling
completion of questionnaires to judicial supervision of the voir
dire process
iii. THUS: discriminatory use of peremptory challenges denies equal
protection, even if done by private litigants
3. Scalia Dissent: What about the minority defendant who doesn’t want an all-white jury?
The majority have added more burdens to the peremptory process
4. Significance: Court narrowed the scope of its holding by characterizing the right as a
peremptory challenge, not a tort
a. Laws create peremptory challenges, and jury selection is a government function
accomplished through the power of the state and overseen by a judge
Court finds State Actor
Court says NOT State Actor
Private selector of government officials (white
crime area cases)
Public defender
Private physician who contracts to give
medical services in a state facility
Private debt collection (even though the state
provides that debt can be collected if done by a
private state entity)
Peremptory challenges in a civil court
Party exercising choice by state/individual
choices (private choice to exercise option A or
option B)
Government profit on government property
Regulated industry by virtue of being a
regulated industry (ex: liquor distributors, etc)
No money BUT government function **
State giving money with a private contractor
is not enough
iv. Brentwood Academy v. TSSAA (2001): 5-4 Vote
1. Facts: TSSAA is a not-for-profit membership corporation organized to regulate
interscholastic sports among its members, a large portion of the public and private high
schools in TN. The Association’s role in regulating interscholastic competition in public
schools has been long acknowledged by the State Board of Education. Brentwood
Academy sued the Association after it penalized the academy for placing “undue
influence” on football recruits. At the time, all the voting members of the Association
were public school administrators. Brentwood claimed that the rule’s enforcement was
state action that violated the First and Fourteenth Amendments.
a. If we have TSSAA saying that the private school cannot engage in various
activities, then TSSAA is the state that is telling the private school that it
cannot recruit football palyers
b. TSSAA is trying to argue that they are not the state, Brentwood is trying to
argue that they acted like the state in violating their amendment rights
2. The Souter Majority Opinion: The association is a state actor based on
ENTWINEMENT
a. ENTWINEMENT: "The nominally private character of the Association is overborne
by the pervasive entwinement of public institutions and public officials in its composition
and workings, and there is no substantial reason to claim unfairness in applying
constitutional standards to it,"
b. Court using 2nd part of Lugar test: is the party a state actor or not
i. Majority says entwinement = state actor
ii. Based on the FACTS
1. 84% public schools represented
2. State claims TSSAA as its own
3. Majority are state officials
4. As opposed to: no state money, no tax, no public facilities,
private corporation essentially
3. Dissenting Opinion: We have never found state action based on entwinement—this is a
private corporation and the state did not create it
4. Significance: Shows entwinement doctrine; but with addition of Roberts/Alito
entwinement doctrine likely to be reversed in the right kind of case—Case is a much
more expansive exception to state action than we have seen before
v. DeShaney v. Winnebago County Department of Social Services (1989)
14th Amendment, §1: nor shall any State deprive any person of life, liberty, or property, without due process of
law
1. Facts: A young boy, Joshua, was beaten and permanently injured by his father, with
whom he lived. The Department of Social Services visited several times but failed to
remove the boy from his father’s care. The boy went to the hospital with suspicious
bruises, etc about 2-3 times. Reported abuse for a 26-month period but the DSS failed to
act. Joshua was finally beaten SO severely that he fell into a life-threatening coma and is
now brain damaged. His mother sued DSS on his behalf—they argue that DSS deprived
Joshua of his liberty without due process of law, in violation of hits rights under the 14th
Amendment. Mother also argued that even if the due process clause gives no affirmative
obligation on the state to provide protection, then the duty arises from a special
relationship the state has with the boy.
2. Opinion: The government generally has no duty to protect individuals from privately
inflicted harms.
a. There was no constitutional violation because the child was not in the custody
of the government and the abuse occurred in the hands of a private party
b. Nothing in the language of the DPC requires the state to protect the life, liberty,
and property if its citizens against invasion by private actors—the clause is
phrased as a limitation on the State’s power to act, not as a guarantee of certain
minimum levels of safety and security
c. Two exceptions where the government has a duty:
i. Where the government has limited the ability of a person to protect
himself or herself, such as when there is an incarceration or
institutionalization
ii. Whether there is a special relationship between the government and the
injured individual, such as when the government took an affirmative
step to place the person in danger
1. Not the case here
d. THE DPC clause of the 14th Amendment does not transform every tort
committed by a state actor into a constitutional violation
3. Blackmun Dissent: Accused the majority of gross insensitivity and resorting to
formalistic reasoning in drawing an artificial distinction between an action and
inaction—want a remedy for Joshua
4. Significance: Case represents a deeply entrenched belief that the Constitution is a
charter of negative liberties—rights that restrain the government—and not a creator of
affirmative rights to government services.
a. Majority is afraid of extending tort liability
vi. State Action vs. State Inaction: 2 cases
1. Lewis v. Sacramento
a. Facts: High-speed police chase: question was when the chase ended badly,
making a quadripalegic of individual being chased, the city was sued for the
police officers having denied him due process of law in chasing him and
ultimately hurting him badly
b. Opinion: Supreme Court did not pause on whether or not the state had been
active or inactive—moved on to the question of what process is due to someone
who gets hurt in a high-speed chase
i. Not a question of action or inaction: Court took it as a given, that by
chasing this guy, the officers were actors
2. Castlerock
a. Facts: Involved a situation where a woman called 911 repeatedly, begging for
authorities to help her during domestic violence scene and they ignored her
b. Opinion: the court did grapple with the issue with whether there were special
circumstances which would lead to distinguish the DeShaney case
i. Is there a duty to respond to 911 calls?
ii. Court extended DeShaney and said there is no duty
c. Federal Privileges or Immunities
i. Slaughter-House Cases (1873)
14th Amendment, § 1: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
1. Facts: Involved a challenge to Louisiana law that granted a private company a 25-year
monopoly in the livestock landing and slaughterhouse business in the city of New
Orleans. The law also required that the company allow any person to use the facilities to
slaughter animals for a fixed fee. Several butchers brought a lawsuit challenging the
constitutionality of the grant of a monopoly. In addition to arguing that the law was
involuntary servitude in violation of the 13th Amendment, that it violated the privileges
of immunities clause, and that it violated the equal protection clause of the 14th
Amendment, the plaintiffs contended that it denied their right to practice their trade
and thus violated the due process clause
2. Opinion: Creation of a monopoly does not violate 14th Amendment
a. Privileges or Immunities challenge: The Court held to a narrow interpretation
of the amendment and ruled that it did not restrict the police powers of the state.
The Court held that the Fourteenth Amendment's Privileges and Immunities
clause affected only rights of United States citizenship and not state citizenship.
Therefore the butchers' Fourteenth Amendment rights had not been violated.
i. P&I relates to US citizenship, not state citizenship
ii. Slaughtering of animals is not a fundamental US P&I
b. Makes P&I clause a nullity because it does not add to state rights
i. State cannot infringe on national citizenship rights, only state
citizenship rights
ii. You already get federal statutory/constitutional provisions through the
Bill of Rights—don’t need P&I clause
iii. Limits federal rights to only where it is explicitly given elsewhere—no
privilege and immunity that helps
3. Significance: 14th Amendment prohibits infringement on national citizenship, not state
citizenship; Says there is nothing new to federal privileges or immunities, essentially
making that clause a nullity
a. What’s happening is that you have 3 separate clauses in 14th Amendment:
i. Privileges or Immunities
ii. Due Process
iii. Equal Protection
1. Think of a Venn Diagram
a. Something that would have been a P&I but for
Slaughterhouse Cases moves to the other clauses
b. --The EPC and Due Process clauses grow to absorb
portions of federal privileges or immunities
c. Example of one constitutional channel being shut off as
others grow
ii. Saenz v. Roe (1999): 7-2 Decision
1. Facts: The Court declared unconstitutional a CA law that restricted a new resident’s
welfare benefits to the level of the state where the person moved from for the first year
of residence. Three recent CA residents challenged the constitutionality of the statute.
Each P alleged that she had moved to CA to live with relatives in order to escape
abusive family circumstances and thus deserved the benefits. CA argued that they had a
legitimate interest in saving $10 million by having the restriction. The federal law that
allowed them to do this: 1996 Social Security Act provision.
2. The Stevens Majority Opinion:
a. Privileges or Immunities Clause protected the right of the newly arrived citizen
to the same privileges and immunities enjoyed by other citizens of the state
b. Saenz court held that CA could not give reduced welfare benefits to a newly
arrived person who was a bona fide citizen of the state of CA during the first
year in which the person resided in CA
3. Thomas Dissent: right to travel and right to citizenship are distinct
4. Significance: Used P&I clause to protect the right to travel; Viewed by some to open up
the channel that was closed by the Slaughterhouse Cases
a. Note: portability
i. A state might legitimately not give something to people who would
take that something out of the state
ii. Court may look at things differently if welfare was portable, but it is not
VIII. Individual Rights: Due Process
a. Procedural vs. Substantive Due Process
i. The Fifth and 14th Amendments, respectively, provide that neither the US nor state
governments shall deprive any person of “life, liberty or property without due process of law.”
This clause has been interpreted as imposing 2 limits on government, usually called “procedural
due process” and “substantive due process”
1. Procedural due process: refers to the PROCEDURES that the government must follow
before it deprives a person of life, liberty, or property
a. Concern what kind of notice and what form of hearing the government must
provide when it takes a particular action
2. Substantive due process: asks whether the government has adequate reason for taking
away a person’s life, liberty, or property—looks to whether there is a sufficient
justification for the government’s action
3. Possible to distinguish the two based on the remedy sought:
a. If the plaintiff is seeking to have a government action declared unconstitutional
as violating a constitutional right, substantive due process is involved
b. But, when a person or a group is seeking to have a government action declared
unconstitutional because of the lack of adequate safeguards, such as notice and a
hearing, procedural due process is the issue
ii. Issues addressed in these materials:
1. Whether there is a deprivation of life, liberty, or property (whether or not due process
applies at all): SUBSTANTIVE DUE PROCESS
2. If so, what processes apply: PROCEDURAL DUE PROCESS
iii. Good Example to help distinguish PROCEDURAL vs. SUBSTANTIVE DUE PROCESS
1. The Supreme Court has held that parents have a liberty interest in the custody of their
children. Therefore, procedural due process requires that the government provide notice
and a hearing, and that there be clear and convincing evidence of a need to terminate
custody, before parental rights are permanently ended
2. Because the right to custody is deemed a fundamental right, substantive due process
requires that the government prove that terminating custody is necessary to achieve a
compelling purpose, such as the need to prevent abuse or neglect of the child.
b. Procedural Due Process
i. Cleveland Board of Education v. Loudermill (1985)
1. Facts: Loudermill hired as a security guard by the Cleveland Board of Education. On his
job application, he stated that he had never been convicted of a felony. After the Board
reviewed his employment records in a routine examination, they discovered that he had
been convicted of grand larceny. They then dismissed him because of his dishonesty in
filling out the application. He was not given an opportunity to respond to the charge of
dishonesty or challenge the dismissal. He filed an appeal under OH law, which classified
him as a civil servant that could only be terminated for cause and could obtained an
administrative review if discharged. It provided for no pre-termination hearing for the
individual, but only a chance to have the job termination reviewed at a later date.
a. Loudermill claims to have a property right in continued employment (keep
receiving benefits of employment)—if he does, then the State can’t deprive him
of due process
i. Property right = continued employment
b. Board argues that property rights are defined by the legislature
i. Property right = legislature’s choice
c. Supreme Court typical view: if expectation of the continued benefit is strong
enough, then you get a property right
2. Opinion: a government employee who had an entitlement to his government position
under local law could not be dismissed from that position without being given some
opportunity to respond to charges that would form the basis of his job termination
a. Where there is a property interest, the Constitution and NOT state law
determines the procedures to be followed
i. If there is a deprivation of life, liberty, or property, constitutionally
adequate measures are to be followed
b. Once the statute creates entitlement, it is the due process clause and not the
statute that determines what process is due
c. Due process is satisfied if the government provides a fired employee with an
informal pre-termination hearing and a later post-termination hearing
d. Applying the Matthews Test:
i. Continued employment by the government is a significant interest for
the individual
ii. Informal pre-termination proceeding was essential to avoid erroneous
terminations
iii. Any pre-termination proceeding would entail costs to the
government—but importance of the interest to the individual and the
need to avoid errors justified an informal pre-termination proceeding
3. Significance: The nature of the procedures required by due process is a constitutional
question to be answered by the judiciary, not a statutory question for the legislature
ii. Matthews v. Eldridge (1976)
1. Facts: Eldridge received benefits for his disability under Title II of the SSA for 4 years.
He received a questionnaire from the state agency charged with monitoring his medical
condition. He completed the questionnaire, indicating that his condition had not
improved and identifying the medical sources that had received treatment—with the
state agency getting these reports. After considering the reports, the agency determined
that Eldridge’s disability benefits would cease. Eldridge contested this—challenged the
constitutional validity of the administrative procedures established by the Security of
Health, Education, and Welfare for assessing whether there exists a continuing
disability.
2. Opinion: When the government terminates SS benefits, only need a post-termination
hearing
a. The Balancing Test:
i. IMPORTANCE OF INTEREST TO INDIVIDUAL: The private
interest that will be affected by the official action (more important the
interest, more procedural safeguards required)
1. Individuals who don’t get SS benefits can still get things like
welfare
2. Disability benefits not based on financial need (distinguishing
Goldberg v. Kelly)
ii. ABILITY TO INCREASE ACCURACY OF FACT-FINDING:
Probable value, if any, of additional or substitute procedural safeguards
(the more the Court believes that additional safeguards will lead to
more accurate results, the more required)
1. Potential value of hearing is not that high—decisions turn on
medical reports by physicians
iii. BURDENS IMPOSED: Government’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail (more expensive the
procedures, the less likely it is that the Court will require them)
1. High burdens on government if required to give due process
before termination of benefits
2. THUS, EVIDENTIARY HEARING IS NOT NEEDED
b. Brennan Dissent:
i. Argued that purely speculative that individuals would not suffer greater
harms
ii. Looked to Eldridge’s current situation (lost home, etc)
3. Significance: Articulated a balancing test for deciding what procedures are required
when there is a deprivation of life, liberty, or property and due process is required
a. Fails to provide any real guidance as to how courts should balance the
competing interests
POTENTIAL DEPRIVATION
STATE INTEREST
NATURE OF EVIDENCE
iii. Hamdi v. Rumsfeld (2004)
1. Facts: Hamdi is an American citizen who was apprehended in Afghanistan and brought
to G-Bay. It was discovered that he was an American citizen and he was taken to
military prison in South Carolina. He was held as an enemy combatant and never has
been charged with any crime. He contended that his detention violated the NonDetention Act which states that no citizen shall be imprisoned or otherwise detained by
the United States except pursuant to an Act of Congress. Government contends that the
President can detain enemy combatants without any form of due process.
2. Opinion: An American citizen, apprehended in a foreign country, cannot be held without
due process even if held to be an enemy combatant
a. Used 3-part balancing test from Matthews
b. Imprisoning a person is a deprivation of liberty, need due process
3. Dissents:
a. Thomas Dissent: President has inherent authority under Article II of the
Constitution to hold Hamdi as an enemy combatant (citizen or not)
b. Scalia and Stevens Dissent: No authority to hold a US citizen as an enemy
combatant, unless Congress expressly suspends writ of habeus corpus
4. Significance: Court requires the government to give a US citizen held in the US some
sort of hearing at which he could contest the facts on which the government based a
decision to treat him as an enemy combatant
c. Economic Substantive Due Process: Court has made it clear that economic regulations—laws regulating
business and employment practices—will be upheld when challenged under the due process claue so long as they are
rationally related to serve a legitimate government purpose. Since 1937, not ONE LAW has been declared
unconstitutional by the Supreme Court as violating economic substantive due process.
i. Lochner v. New York (1905)
1. Facts: A NY statute provided that no employee shall work in a biscuit, bread, or cake
factory more than 60 hours in any one week, or more than 10 hours in any one day. A
baker was indicted under the statute and argued that it was unconstitutional. There is
no procedural due process problem here since the law was passed through the proper
channels—substantive due process problem
2. Opinion: Legislation is infirm for substantive due process reasons (interfered with
freedom of contract and did not serve a valid police purpose)
a. Articulated 3 main reasons:
i. Freedom of contract is a basic right protected as liberty and property
rights under the due process clause of the 14th Amendment: the right to
purchase or sell labor is part of the liberty protected by this amendment
1. Maximum hours law interferes with freedom of contract
because it prevented bakery owners and bakers from
contracting for as many hours of work as they wished
ii. Government could interfere with freedom of contract only to serve a
valid police purpose—protect the public safety, public health, or public
morals
1. Government could regulate freedom of K pursuant to its police
powers and those powers that relate to the safety, health,
morals, and general welfare of the public
2. Rejected argument that NY law could serve as a police
purpose—protecting the health of bakers was not a sufficient
justification to allow the state to interfere with freedom of
contract (they weren’t wards of the state, etc)
a. If the Court allowed this, then the hours of all different
kinds of employers could be regulated: doctors, lawyers,
scientists, etc
iii. Court said that it was the judicial role to carefully scrutinize legislation
interfering with freedom of contract to make sure that it served a police
purpose
1. Is this a fair, reasonable, and appropriate exercise of the State,
or is it an unreasonable, unnecessary and arbitrary interference
with the right of the individual to his personal liberty or to
enter into those contracts in relation to labor which may seem
to him appropriate or necessary for the support of himself and
his family?
a. Limited hours of work for bakers have no relationship
to public health: limit of police power has been met and
reached
3. Dissents:
a. Holmes dissent: this is a court of law, not a court of economic theory
b. Harlan dissent: need for judicial deference for legislative choices—legislation
was a reasonable way to protect dangers that bakers faced
4. Significance: Case is classic substantive due process because due process was used not to
ensure that the government followed proper procedures, but to ensure that the laws
served an adequate purpose. The Court scrutinized both the ends served by the
legislation, to ensure that there really was a valid police purpose, and this means, to
ensure that the law sufficiently achieves its purported goal.
ii. West Coast Hotel Company v. Parrish (1937)
1. Facts: Washington law required minimum wage for female employees. A female maid
sued hotel owner for violation of the law.
2. The Hughes Opinion: Upheld the WA state minimum wage law
a. What is this freedom? The Constitution does not speak of freedom of
contract—it speaks of liberty and prohibits the deprivation of liberty without
due process of law
i. Court would no longer protect freedom of contract as a fundamental
right, that government could regulate to serve any purpose, and the
judiciary would defer to the legislature’s choices as long as they were
reasonable
b. Government was not limited to regulating only to advance the public safety,
public health, or public morals
c. Dissent: Women and men are on equal footing today—why is there a need for
this law?
3. Significance: Ended the law of substantive economic due process under Lochner:
Supreme Court has left behind economic substantive due process (though there may be a
revival)  SEE CASES BELOW
iii. State Farm v. Campbell (2003)
1. Facts: In 1981, Campbell was driving with his wife and he decided to pass 6 vans
traveling ahead of them on a 2-lane highway. He caused a huge accident. Campbell’s
insurance company, State Farm, decided to contest the liability to settle the claims for
the policy limit of $50,000. They took the case to trial, assuring the Campbells that their
assets would be safe. However, a jury then determined that Campbell was 100% at fault,
and a judgment was returned for $185, 849—which was far more than the amount
offered in settlement. State Farm then refused to cover this amount in excess liability.
Campbell then appealed, but the UT Supreme Court denied the appeal. State Farm then
paid the entire judgment, including the amounts in excess of the policy limits—
Campbell then sued State Farm for bad faith, fraud, and intentional infliction of
emotional distress. The jury awarded the Campbells $2.6 million in compensatory
damages and $145 million in punitive damages, which the trial court reduced to $1
million and $25 million respectively. The UT SC reinstated the $145 million punitive
damages award. Jury determined that State Farm’s decision not to settle was
unreasonable because there was a substantial likelihood of an excess verdict—SF
appealed.
2. Opinion: Grossly excessive punitive damages awards violate due process
a. WHAT’S FAIR ARGUMENT/DEPRIVATION OF PROPERTY: Due
process clause prohibits the imposition of grossly excessive or arbitrary
punishments on a tortfeasor—if excessive, it furthers no legitimate purpose and
constitutes a deprivation of property
b. FEDERALISM ARGUMENT: Jury was wrong in punishing State Farm for its
conduct outside of Utah where the claim arose: A state can’t punish a defendant
for conduct that may have been lawful where it occurred
i. Punitive damages are now limited to punishing a defendant for that
type of conduct in that state
ii. States must be allowed to punish who they want and make their own
law—Utah can’t punish someone for actions that might have been OK
in another state
c. AMOUNT: It is appropriate in determining the reasonableness of a punitive
damage award to consider the ratio between harm, or potential harm, to the
plaintiff and the punitive damage award
i. Declined to impose a bright-line ratio to which a punitive damage
award cannot exceed
ii. Ratio of single-digits would be allowed in particularly egregious acts:
should not be 145: 1
d. CRIMINAL CONDUCT: Court said that the fact that SF’s conduct would be
criminal fraud was relevant in assessing the seriousness with which the state
regards the defendant’s conduct
i. Great care must be taken to avoid the use of the civil process to assess
criminal penalties that can be imposed only after the heightened
protections of a criminal trial have been observed
ii. PUNITIVE damages are NOT a substitute for the criminal process
3. Significance: Case clarifies the law but also creates great uncertainty—what conduct of a
defendant in the state can be considered in imposing punitive damages? What rations
greater than single digits are allowed?
iv. Phillip Morris USA v. Williams (2007)
1. Facts: A jury found that Williams’ death was caused by smoking. Williams smoked in
significant part because he thought it was safe to do and claimed that Phillip Morris
knowingly and falsely led him to believe that this was so. The jury ultimately found that
Phillip Morris was negligent (as was Williams) and that PM has engaged in deceit. In
respect to deceit, it awarded compensatory damages of about $821,000 along with $79.5
million in punitive damages.
2. Opinion: Constitution’s due process clause forbids a state to use punitive damages
awards to punish a defendant for an injury that it inflicts upon non-parties or those
whom they do not directly represent
3. Significance: “Judiciary putting its own house in order” and clarifying what it views as
“Lochner run amok”
a. Justices by a 5-4 vote ruled that imposing punitive damages on a defendant
based on a jury’s desire to punish the defendant for harming persons who were
not parties to the lawsuit constituted a taking of property that violated due
process
WHAT TO DO WHEN RIGHTS ARE INVOLVED: A Broad Overview
(1) Constitutional Bases for Fundamental Rights
a. Due Process and Equal Protection as a Source of Rights
i. Almost all of the Bill of Rights have been protected by the Court under the due process
clauses of the 5th and 14th Amendment and/or the equal protection clause of the 14th
Amendment
ii. Most have been protected under both due process and equal protection
 Under either provision, the Court must decide whether a claimed liberty is
sufficiently important to be regarded as fundamental, even though it is not
mentioned in the text of the Constitution
 Once a right is deemed fundamental, under due process or equal protection,
STRICT SCRUTINY is usually used
iii. Difference exists only in the way the arguments are phrased:
 If the right is safeguarded under due process: constitutional issue is whether the
government’s interference is justified by a sufficient purpose
 If the right is protected under equal protection: the issue is whether the
government’s discrimination as to who can exercise the right is justified by a
sufficient purpose
a. If the law denies a right to everyone: DUE PROCESS
b. IF the law denies the right to some: EQUAL PROTECTION
b. 9th Amendment
i. Goldberg used this in Griwold
ii. Not generally seen as a source of rights—there are no 9th Amendment rights
iii. Used to provide textual justification for the Court to protect non-textual rights, such as the
right to privacy
Framework for Analyzing Fundamental Rights
(2) Is there a fundamental right?
a. If the right is deemed fundamental, the government will prevail only if it meets STRICT scrutiny
i. Strict scrutiny would be applied if there is discrimination based on race, national origin, or
alienage
b. If the right is not fundamental, only the rational basis test is applied
c. Differing opinions on what constitutes fundamental rights
i. Originalists: limited to what it is in the Constitution
ii. Opposite: Court can protect other rights outside of those enumerated
iii. History/tradition: those rights deeply rooted in the nation’s history
(3) If so, is the right infringed?
a. In evaluating whether there is a violation of a right, the SC considers the “directness and
substantiality of the interference” (ZablockI)
b. Very hard to say
(4) Is the government’s action justified by a sufficient purpose?
a. If the right is deemed fundamental, the government must present a compelling interest to justify an
infringement
b. If the right is NOT fundamental, only a legitimate purpose is required for the law to be sustained
(5) Are the means sufficiently related to the goal sought?
a. Under strict scrutiny, it is not enough for the government to prove a compelling purpose behind a
law; the government must also show that the law is necessary to achieve the objective
i. Government must prove that it could not attain the goal through any means less restrictive
of the right
b. Under a rational basis view, the means only has to be a reasonable way to achieve the goal and the
government is not required to use the least restrictive alternative
d. Personal Rights & Privacy
i. Basics on Right to Privacy
1. Right to privacy has varied meanings
a. Oldest constitutional right to privacy is the 4th Amendment’s restriction on
governmental searches and seizures
b. 1st Amendment also protects some rights to privacy in speech or association
2. In terms of due process and equal protection, the right to privacy has come to mean a
right to engage in certain highly personal activities: freedom of choice in marital, sexual,
and reproductive matters
3. Early Cases on the Right to Privacy
a. Skinner v. Oklahoma (1942); used EPC to invalidate a statute that authorized
the sterilization of persons previously convicted and sentenced to imprisonment
for crimes involving moral turpitude subject to strict scrutiny
b. Poe v. Ullman (1961): Case involving birth control, court found no justiciable
controversy—Harlan dissent argued that the statute invaded marital privacy
ii. Griswold v. Connecticut (1965)
1. Facts: Griswold is the Executive Director of the Planned Parenthood League of CT, Dr.
Buxton is the Medical Director at its Center in New Haven. They were arrested under a
CT law that barred giving any person who uses contraceptives to be fined $50 or
imprisoned from 60 days to a year—anyone who aids can be treated as the principal
offender. Griswold and Buxton gave information and medical advice to married people
to prevent conception, advised on conception, etc. They were found guilty and fined
$100—they then sued the state of Connecticut
2. The Douglas Opinion: Statute impermissibly limited the right of privacy of married
persons
a. Right to privacy is a fundamental right
i. Implicit in “penumbras” of rights: 1st, 3rd, 4th, and 5th Amendments
b. CT statute violated the right to privacy in prohibiting married couples from
using contraceptives
3. The Goldberg Concurrence:
a. It is the function of the Court to defend certain fundamental rights under the
due process clause even though these rights were not expressed in the first 8
Amendments
b. 9th Amendment evinced the historic belief that certain fundamental rights could
not be restricted by the government, even though it did not create specific
rights
4. Harlan Concurrence: Withstood test of time
a. Right to privacy should be protected under the liberty of the due process clause
b. Proper constitutional inquiry is whether the CT statute infringes the DPC of
the 14th Amendment because the enactment violates basic values “implicit in the
concept of ordered liberty”
5. Significance: Case created the modern right of privacy
e. Abortion
i. Roe v. Wade (1973) (7-2) STRICT SCRUTINY
1. Facts: Overturned a TX statute that prohibited procuring or attempting the abortion of a
human fetus except when necessary to save the life of the mother. Roe was a single
woman living in TX and sought an injunction restraining D from enforcing the statutes.
Said she was unmarried and pregnant and she wanted to terminate her pregnancy with
a competent physician—unable to cross state lines due to money and did not face a
health risk. Claimed TX statutes were unconstitutionally vague and that they abridged
her right of personal privacy. TX argued life begins at conception and is present
throughout the pregnancy—thus the State has a compelling interest in protecting that
life from and after conception
2. The Blackmun Opinion: A woman’s right to have an abortion is part of her fundamental
constitutional right to privacy
a. Right of privacy found through liberty in due process clause
i. Infringing on a woman’s right to privacy through prohibiting
abortions—distress, psychological harm, mental and physical health
b. Right to abortion is not absolute and must be weighed against other
considerations, such as the state’s interest in protecting pre-natal life use
STRICT SCRUTINY because the right of abortion is a fundamental right
c. In balancing interests, state had a compelling interest in protecting maternal
health after the first trimester because it was then that abortions became more
dangerous than childbirth
i. Divided pregnancy into TRIMESTER FRAMEWORK (how Blackmun
got around issue of whether fetus = life)
1. First trimester: government could not prohibit abortions and
could regulate it only as it regulated other medical procedures
2. Second trimester: government cannot outlaw abortions but the
government may regulate it in ways reasonably related to
maternal health
3. Third trimester: government may prohibit abortions except if
necessary to preserve the life or health of the mother for the
stage subsequent to viability
ii. Create questions of viability: when the fetus becomes viable or not
3. Significance: Once the Court recognized that women have a constitutional right to
abortions PRIOR to viability, it follows that a state law is unconstitutional if it prohibits
abortion except when pregnancy endangers the mother’s health, the fetus is seriously
deformed, or the woman has been raped.
a. Sparked nation-wide debate
CRITICISMS OF ROE
DEFENSES OF ROE
In Roe, the Court acted like a legislature and not a court
Roe involved a stronger case for privacy than Griswold:
the woman’s interest in controlling her own body and her
bodily integrity
Roe is the Dred Scott of the Court’s work in the 20th
Roe is essential to the lives and well-being of millions of
century
women—it needs no further justification
Roe ended the possibility of the political compromise on
The result in Roe was correct, but it should have been
abortion rather than initiating a dialogue on the topic
Roe shifted the debate over abortion from the States,
where it might be resolved, to the nation, where it is far
harder to resolve
Roe is merely Lochner in liberal garb
decided on gender-discrimination grounds
The outcome of Roe is strongly supported by 1st
Amendment freedom of religion considerations
ii. Planned Parenthood v. Casey (1992) UNDUE BURDEN
1. Facts: PA abortion statute at issue
2. The O’Connor Opinion:
a. Recognized a woman’s fundamental right to choose to abort a non-viable fetus
i. Grounded in the concept of liberty protected by due process clause of
14th Amendment
ii. State can still regulate however after fetal viability
iii. State has a legitimate interest as well from the outset of the pregnancy
in protecting the health of the woman and life of the fetus
b. UNDUE BURDEN: Rejected trimester framework and replaced it with undue
burden test
i. Focus on whether the burden is SO strong without sufficient state
justification so as to interfere with the liberty interest of a right to an
abortion
3. Significance: Since Casey, the Court consistently has held that:
a. Laws or regulations that have the purpose or effect of creating an undue burden
on, or a substantial obstacle to, the woman’s ability to choose to abort a nonviable fetus are unconstitutional
b. The government has the power to restrict or ban abortions after the fetus is
viable, so long as the law allows exceptions for the termination of pregnancies
that would endanger the woman’s life or health
c. The government has legitimate interests from the outset of each pregnancy in
both the health of the woman and the life of the fetus
d. Right to abortion clearly grounded in due process clause of 14th Amendment
THUS, AN ABORTION REGULATION WILL BE UPHELD IF A MAJORITY BELIEVES THAT THE REGULATION IS
NARROWLY TAILORED TO PROTECT THE HEALTH OF THE WOMAN, A VIABLE FETUS, OR THE WELL BEING OF A
iii. G IF A MAJORITY BELIEVES THAT THE REGULATION IS NOT DESIGNED TO ACHIEVE ONE OF
PREGNANT MINOR.
o
THOSE ENDS, THEN
n THE COURT WILL RULE THAT THE PURPOSE OR EFFECT OF THE REGULATION WAS THE
CREATION OF ANz UNDUE BURDEN ON, OR A SUBSTANTIAL OBSTACLE TO, THE PREGNANT WOMAN’S
a
FREEDOM TO CHOOSE
TO HAVE AN ABORTION
l
e
s v. Carhart (2007) (5-4)  Re-affirming Casey
1. Facts: Partial-Birth Abortion Act prohibited only intact dilation and evacuation
procedure, which the Act defined in very specific terms. Prohibited a doctor from
intentionally bringing a living fetus into the birth canal (to certain physical points
specifically set out in the Act), and then performing an act that the physician knows will
kill the partially delivered living fetus.
2. The Kennedy Opinion: Applies Casey Standards
a. Congress did not adopt the terms of the Act for the purpose of imposing an
undue burden on, or a substantial obstacle to, a woman’s freedom to choose to
have an abortion
i. Congress’s purpose related to protecting the integrity of the medical
profession, and dealing with ethical and moral concerns regarding the
destruction of an intact fetus that was very similar to a child
b. Act on its face did not impose an unconstitutional burden on abortion rights
because the Act allowed doctors to perform a non-intact D&E procedure and to
disregard the ban when it was necessary to protect the life of the woman
3. Significance: A law regulating abortion procedures would not be invalidated on its face
if there is a rational ground for finding that the regulation was related to protecting a
woman’s health OR to the state’s interest in potential life –so long as the regulation did
not impose an undue burden on the ability of the pregnant woman to have abortions
through safe procedures
f.
Family & Marriage
i. Moore v. City of East Cleveland, Ohio (1977): Fundamental right to keep the family together
(includes extended family)
1. Facts: A city’s zoning ordinance limited the number of unrelated people who could live
together in one household and defined “unrelated” to keep a grandmother from living
with her two grandsons who were first cousins.
2. The Powell Plurality
a. Liberty in the due process clause includes protection for family rights
b. We have larger conceptions of family today
3. Significance:
a. Court has limited the reach of Moore:
i. Individuals must be related to each one another to be considered a
family
ii. Court’s refusal to find an infringement of the right to keep the family
together unless there is a direct and substantial interference
ii. Zablocki v. Redhail (1978)
1. Facts: Redhail is a WI resident who was unable to enter into a marriage in WI or
elsewhere because of his residency. In 1972, he was a minor and he fathered a child. He
was poor and could not make the child support payments. In 1974, he applied for a
marriage license with Zablocki (clerk) but the application was denied because he did not
have a court order permitting him to do so under the statute. Statute provides that any
WI resident that has a minor NOT in his custody and which he is under obligation to
support by any court order cannot marry without getting court permission. He then
filed a class action suit against WI on behalf of himself and all WI residents who had
been refused a marriage license as a result of the act by one of the clerks in WI. Claimed
it deprived them of equal protection and due process rights in the 1st, 5th, 9th, and 14th
Amendments.
2. Opinion: Statute clearly and directly interferes with right to marry
a. Right to marry has been placed on same level of importance as decisions
relating to procreation, childbirth, child-rearing, and family relationships
b. Law not sufficiently related to protecting minor children—law prevented
individuals who were unable to pay from getting money but without giving the
money to children
i. State has other alternatives to get the money
3. Significance: Right to marriage as a fundamental right
iii. Troxel v. Granville (2000): Grandparents’ Rights
1. Facts: A father of 2 young daughters committed suicide. For the first year after his death,
the girls continued to regularly visit with their paternal grandparents. Then, their
mother largely ended this visitation, restricting it to a few times a year. The
grandparents sued in WA state trial court under the state law that permits “any person”
to petition a superior court for visitation rights “at any time” and authorizes the court to
grant such visitation rights whenever “visitation may serve the best interest of the
child.” The WA trial court ruled in favor of the grandparents and ordered extensive
visitation, but the WA Supreme Court declared this unconstitutional as violating the
mother’s right to control the upbringing of her children.
2. Opinion: Declared unconstitutional WA law
a. O’Connor Plurality
i. Liberty interest: interest of parents in care, custody, and control of their
children
ii. WA law infringes on this fundamental right
1. Statute is breathtakingly broad because any person can petition
the court—gives the judge undue ability to overturn the
decisions of a fit parent
2. No allegations here that the mother was unfit, nor had
visitation completely ended
b. Thomas Concurrence:
i. Views this as a substantive due process issue—would apply strict
scrutiny and WA law fails under this test
c. Scalia Dissent:
i. Disputed the existence of fundamental rights under the due process
clause
d. Stevens Dissent:
i. Let the WA legislature draft a better law in response to the WA SC
decision
e. Kennedy Dissent:
i. WA SC was wrong in concluding that the best interests standard in the
grandparents’ rights statute was unconstitutional
3. Significance: Case can be read broadly as reaffirming that parents have a fundamental
right to control the upbringing of their children—hard to determine impact given no
majority opinion
g. Sexual Intimacy and Same-Sex Marriage
i. Lawrence v. Texas (2003)
1. Facts: Police investigated an anonymous tip of a disturbance in an apartment. When the
went to investigate, they found 2 men engaged in sexual activity. The men were
convicted and fined $200 under a TX law prohibiting “deviate sexual intercourse”
defined as sexual activity between same sex couples
2. The Kennedy Opinion:
a. Constitutional protection for all individuals in the most intimate and private
aspects of their lives
b. Court finds: (overrules Bowers v. Hardwick, GA statute banning ALL activity)
i. No longstanding history in this country of laws directed at homosexual
conduct in a distinct matter
ii. Emerging awareness that liberty gives substantial protection to adults
in sex
iii. Bowers followed “state majorities” that were mostly ignored
iv. Potential stigma and discrimination
v. 5 different states do not follow Bowers: caused uncertainty
1. Relies on the substantive component of 14th Amendment due
process clause
c. NOTE: Did not articulate the level of scrutiny to be used—did not mention
fundamental right or strict scrutiny
3. Significance:
a. Means that laws in 13 states prohibiting private consensual homosexual activity
are unconstitutional
b. Powerful affirmation of a right to privacy under the Constitution
c. Recognizes that sexual activity is a fundamental aspect of personhood and that
is entitled to constitutional protection
i. Private sex as a liberty interest
d. One of the most important decisions to date recognizing the rights of gays and
lesbians to equal dignity and equal treatment under the Constitution
ii. Goodridge v. Department of Public Health (MA SC 2003): Upheld gay marriage
1. Facts: Plaintiffs are 14 individuals from 5 MA counties. Each plaintiff attests a desire to
marry his or her partner in order to affirm publicly their commitment to each other and
to secure the legal protection and benefits afforded to married couples and their children.
In March and April of 2001, each of the couples attempted to obtain a marriage license
from a city or town clerk’s office—they were denied on the grounds that MA does not
recognize same-sex marriage. MA provisions at issue: equal protection and due process.
2. Opinion: Prohibition of same-sex marriage violated MA Constitution
a. MA constitution affords equal protection of all citizens—does not create
second-class citizens
b. 3 arguments from MA:
i. Providing a favorable setting for procreation
1. COURT: State puts a stamp of approval on a destructive
stereotype—children as the only basis for marriage
ii. Ensure the optimal setting for child rearing (2 parent family)
1. COURT: No evidence that forbidding marriage to people of the
same sex will increase the number of couples choosing to enter
into opposite sex marriages in order to have and raise children
iii. Preserve scarce State and private financial resources
1. COURT: Bears no relationship to state economy; ignores the
many same-sex couples already in the state’s care
3. Significance: Similar litigation is occurring all over the United States
iii. Hernandez v. Robels(NY): Denied gay marriage
1. Held there was neither a due process NOR equal protection right of same-sex marriage
under NY Constitution—the court’s substantive due process opinion said that the
legislature’s limitation of marriage to the union of heterosexual couples under 2 bases:
a. Legislature could rationally decide for the welfare of children and to avoid
instability
i. Heterosexual intercourse has a natural tendency to lead to children
b. Legislature could rationally believe that it is better for children to grow up with a
mother and father
i. Common-sense premise that children will do best with a mom and dad
2. NY Court basically comes out the opposite way from Goodridge, while looking at the
same factors
3. How do we reconcile Hernandez and Goodridge?
a. Talking about 2 different perspectives on rationality (both invoking rational
basis test but with 2 different views)
i. Hernandez: institutional competence look at rationality could the
legislature have looked at these things when it is in a policy-making
position
1. If you adopt this deferential analysis, then you come to
Hernandez conclusion
ii. Goodridge: Let’s look at these factors more deeply; if you look at
rational basis from institutional basis of courts/legislature—might feel
that it is somewhat irrational because children being raised by same-sex
couples will pay the price
1. Is it rational to deny funds to people simply because they are
homosexual?
2. NOTE: Interestingly, no one is going to a higher basis than a
rational basis test--If we apply a higher test, is the state
imposing an undue burden? Do they meet strict scrutiny
standards? NO
h. Right to Die
i. Different ways of looking at the right to die:
1. If an individual commits suicide
a. Prohibited in most jurisdictions but unenforceable
b. Person can basically take their own life and state cannot do much about it
2. Withdrawal of life support (Cruzan case)—stop providing food and hydration and the
person will eventually die, taking away autonomy of own body
a. MO law: need clear and convincing evidence that competent individual
exercised right to die
b. Cruzan court: OK for MO to have this requirement
c. Fundamental liberty interest is bodily integrity
3. Physician-assisted suicide (Glucksberg)
a. No right as a matter of state law
4. Euthanasia: termination of life because the state or someone else believes that this
should be done
ii. Cruzan v. Director, Missouri Department of Health (1990)
1. Facts: Nancy Cruzan suffered severe head injuries in a car accident and was in a
persistent vegetative state—no chance of her regaining consciousness. Her parents
wished to terminate food and hydration, and thus end her life. The state intervened to
prevent this. The issue was whether Cruzan had a right under the Constitution which
would require the hospital to withdraw life-sustaining treatment from her given her
vegetative state.
2. Opinion: Hospital cannot withdraw care without Cruzan’s wishes; MO law
constitutional
a. Competent adults have a constitutional right to withdraw medical care
i. Liberty protected by the due process clauses included a right of
mentally competent individuals to refuse life saving or life sustaining
medical equipment
b. A state requires clear and convincing evidence that a person wanted treatment
terminated to be cut off
c. A state may prevent family members from terminating the life of another
i. Right to end treatment belongs to each individual
ii. No automatic assurance that family members will share view
3. Significance: Gives states little guidance as to whether there is a right to refuse life
sustaining medical treatment
iii. Washington v. Glucksburg (1997): Physician-Assisted Suicide
1. Facts: 4 Doctors, 3 terminally ill patients, and an organization challenged a WA law that
banned physician-assisted suicide (prohibition causing or aiding suicide). Question of
whether the statute violated the 14th Amendment of the Constitution and whether the
patients had a right to die
2. The Rehnquist Opinion: Rejected the substantive due process challenge to a state law
prohibiting anyone from aiding another person to commit suicide
a. Individual does NOT have a fundamental constitutional right to terminate his
or her life
b. Concluded that the history of legal treatment of suicide in the United States,
and the difficulty of precisely defining a “right” to commit suicide, led to the
conclusion that “the asserted right to assistance in committing suicide is not a
fundamental liberty interest”
c. Rationality test: states have legitimate interests in the preservation of human
life, the integrity of the medical profession, and the protection of vulnerable
groups of persons who might feel pressured to terminate their lives
3. Significance:
a. Difference between physician-assisted suicide and withdrawal of life support
i. Withdrawal of life support: not administering something to someone’s
body that would interfere with their body
ii. Physician assisted suicide: have to interfere with the body (although the
individual wants this)
IX.
Individual Rights: Equal Protection
a. Equal Protection of the Laws: Introduction and Race Discrimination
i. United States v. Carolene Products (1938)
1. Facts:
2. Opinion:
a. Prejudice against discrete and insular minorities may be a special condition,
which tends seriously to curtail the operation of those political processes
ordinarily to be relied upon to protect minorities and thus “may call for a
correspondingly more searching judicial inquiry”
3. Significance:
ii. Plessy v. Ferguson (1896):
1. Facts: An 1890 LA statute required railroad companies to provide “separate but equal”
accommodations for whites and colored races. Plessy, a US citizen who resided in LA,
had 7/8 Caucasion and 1/8 African blood. One day, he bought a 1st-class ticket on the
East LA Railway and took a vacant seat in a coach designated for white passengers. He
was then asked to move by the conductor. When he refused, Plessy was kicked off the
train, imprisoned, and charged with violating state law. Issue: whether LA law violated
EPC.
2. The Brown Opinion: LA statute constitutional; no violation of EPC
a. Separate but equal facilities are constitutional
i. Separate does not necessarily imply inferiority of one race to the
other recognized as part of the state’s police power
ii. Even though 14th Amendment’s purpose was to enforce the equality of
the two races before the law, it could not have intended to abolish
distinctions based upon color or enforce a commingling of the races
b. LA passed a “reasonable regulation” because this was passed to promote the
public good
i. Every exercise must be reasonable and for the promotion of the public
good however
3. Significance: “Separate but equal” became the law of the land until Brown v. Board;
Plessy has a different theory of equality that takes account of the SOCIAL CONTEXT
iii. Brown v. Board of Education (1954)
1. Facts: Black children seek the aid of courts in obtaining the admission to the public
schools of their community on a non-segregated basis. In each instance, they have been
denied admission to schools attended by white children under segregation laws. They
allege that this deprives them of their 14th Amendment rights.
2. The Warren Opinion: Separate but equal is not constitutional
a. State mandated segregation inherently stamps black children as inferior and
deprives them of their educational opportunities
b. Possible rationales of the Court:
i. Educational context
ii. Subordination: cannot have perpetuation of racial inferiority through
governmental action
iii. International context from post-Holocaust era: Court trying to remove
a black mark from America’s conscience (do not want to look racist)
3. The Harlan Dissent: The Constitution is color-blind
4. Significance: “Separate but equal” is unconstitutional; POWER of the Court to say what
the law is but POWER of the society to make that change
iv. Strauder v. West Virginia (1879)
1. Facts: WV law limited jury service to “white male persons who are 21 years of age and
who are citizens of the state. Plaintiff, a black man, was convicted for murder in WV. He
claims that he was denied his constitutional rights. Under WV law, no colored man was
eligible to be a member of the grand jury—he believes that he could not have the full
and equal benefit of the laws in WV.
2. The Opinion: WV law is unconstitutional
a. 14th Amendment was designed to ensure the colored race the enjoyment of all
civil rights that under the law are enjoyed by white persons, and to give to that
race the protection of the general government, in that enjoyment, whether it
should be denied by the States.
i. Law is unconstitutional because it singled out and disadvantaged blacks
b. How is this different than Plessy?
i. CIVIL RIGHTS: In this case, talking about civil rights, not simply
social relations when we talk about jury duty
ii. NO SEPARATE BUT EQUAL HERE: Brown and Plessy were cases
where separate but equal was unconstitutional
1. Plessy: not unconstitutional vs. Brown: unconstitutional
2. Strauder doesn’t deal with those issues
a. If we had been talking about separate but equal juries
for black defendant, would have been Plessy and Brown
in the context of jury duy
b. There were no separate but equal juries for black
defendants; black defendants took white juries, white
defendants took white juries as well
3. FACIALLY DISCRIMINATORY: Here, talking about a law
that is discriminatory racially and facially on its face
a. Strauder takes that issue on the easiest possible context:
jury duty, murder case, African-American defendant
facially excluded African-Americans
3. Significance: Majority in this case has no difficulty in saying it is race discrimination and
that race discrimination is per se unconstitutional under the equal protection clause
v. Yick Wo v. Hopkins (1886)
1. Facts: A city’s ordinance required that laundries be located in brick or stone buildings
unless a waiver was obtained from the board of supervisors. P alleged that over 200
petitions by those of Chinese ancestry had been denied, but all but one of the petitions
filed by non-Chinese individuals were granted
2. The Opinion: ENFORCEMENT of the law is unconstitutional (not law per se)
a. Race neutral statute, but discriminatory in its application
b. The facts shown establish an administration directed so exclusively against a
particular class of persons as to warrant and require the conclusion, that,
whatever may have been the intent of the ordinances as adopted, they are
applied by the public authorities charged with the administration, and thus
representing the State itself, with a mind so unequal and oppressive as to
amount to a practical denial by the State of equal protection of the laws.
3. Significance: First 14th Amendment case expanded to NON-CITIZENS
a. Yick Wo versus Strauder Case
i. In Strauder, dealing with discrimination of blacks in the deep South
here, we don’t have the same historical context (badges of slavery, etc),
but the Court easily concludes that this violates the EPC
ii. Court is recognizing the racial complexity beyond the Civil War
context
vi. Korematsu v. United States (1944)
1. Facts: 1942 Military Act was an act of Congress that said people near a military area
doing something dangerous could get arrested—order then enforced as people of
Japanese descent in the area needed to be moved from their homes
2. The Opinion: Upheld evacuation of Japanese-Americans
a. Government’s compelling interest: national security during war-time
b. Narrowly tailored: Questionable; (Court doesn’t look to over-inclusiveness)
Japanese
Loyal +
non-loyal
Sabotage
/Espiona
ge
Non-Jap.
OVERINCLUSIVE
NEED
Nazis UNDER-INCLUSIVE
--Have a statutory regime that is both UNDER-INCLUSIVE of loyal Japanese and OVER-INCLUSIVE There is no
narrowly tailored solution
3. Significance: FIRST CASE THAT ARTICULATES STRICT SCRUTINY TO RACE
a. Court doesn’t follow strict scrutiny analysis that we have today
b. Note: Ex Parte Endo (1944): unanimously invalidated the internment of
Japanese-American as unsupported by the statute and the order (held
constitutional in Korematsu) that excluded them from the West Coast
Laws that are Evaluated under Equal Protection Clause Analysis





Separate but equal is unconstitutional (Plessy; Brown; Loving)*
Facially Racially discriminatory (Strauder, Korematsu)*
Race-neutral but discriminatory in application (Yick Wo)*
Equal in the law, but race categories (Loving)*
Equal as to race, but disparate impact (Washington v. Davis)
* = Strict scrutiny
b. Racial Classifications
i. Loving v. Virginia (1967)
1. Facts: Two residents of VA, a black woman and a white man, were married in DC.
Shortly thereafter, they returned to VA and a grand jury issued an indictment charging
the Lovings with violating VA’s ban on interracial marriages. They were sentenced to a
year in jail—asked to leave the state and not return to VA together for 25 years. They
then sued based on the unconstitutionality of the statute. State argues that because the
statute punishes both blacks and whites equally, it does not constitute “invidious
discrimination.”
2. Opinion: VA statute is unconstitutional
a. Facially neutral statute, but uses race as a category Court says you can’t do
this
b. “We reject the notion that the mere equal application of a statute concerning
racial classifications is enough to remove the classifications from the 14th
Amendment’s proscription of all invidious racial discriminations.”
i. Statute rests solely on distinctions based on race cannot proscribe
“accepted conduct”
3. Significance: Case often used by advocates for homosexual marriage
ii. Johnson v. California (2005): 5-3
1. Facts: In CA, when a male prisoner enters a new prison, whether at the start of a
sentence or as a result of a transfer to a different prison—the inmate is placed in a
reception center for 60 days. During this time, the prisoner is evaluated for purposes of
determining the inmate’s placement within the institution. Most prisoners are “doublecelled” during this time, with 2 inmates being housed together in a cell. In assigning
prisoners during this period, race is taken into account  virtually 0% chance that
inmates of different races will be housed together. Prison officials argued that this was
necessary to prevent violence (prison gangs)
2. The O’Connor Opinion: REMAND under strict scrutiny
a. Strict scrutiny must be used all racial classifications must meet strict scrutiny,
will only be upheld if the government can prove that the action is necessary to
achieve a compelling purpose
b. Segregation based on race constitutes a racial classification and must meet strict
scrutiny
3. Significance: Even though this is an unwritten POLICY—can still look at with EPC
analysis
iii. Washington v. Davis (1976):
1. Facts: Applicants for the police force in DC were required to take a test, and statistics
revealed that blacks failed the exam much more often than whites. Questions over
constitutionality—does this violate EPC?
2. The White Opinion: Proof of a discriminatory IMPACT is insufficient by itself to prove
the existence of racial discrimination
a. Court explained that discriminatory impact standing alone does not trigger the
rule that racial classifications are to be subjected to the strictest scrutiny and are
justifiable only by the weightiest of considerations
b. Thus, the laws that are facially neutral to race and national origin will receive
more than a rational basis review ONLY if there is proof of a discriminatory
purpose
i. There must be PROOF of a discriminatory purpose in order for laws to
be treated as racial classifications
ii. Looking to legislative INTENT
3. Significance: Discriminatory impact alone is not enough to trigger strict scrutiny.
a. NOTE: Arlington Heights v. Metropolitan Housing Development Corporation
(1977)
i. Case rejected a refusal to re-zone from single to multi-family that might
have had racial effects
ii. Supreme Court said they are not going to get into the business of
legislature determinations
iii. Absent a discrimination as stark as Yick Wo, impact alone is not
determinative
b. NOTE: Personnel Administrator of Mass. V. Feeney (1979)
i. Upheld an absolute veterans’ preference for public employment even
though 98.2% of all veterans were male
ii. Court held that “equal laws, equal results” was all equal protection
required
1. The distinction was made quite simply between veterans and
non-veterans, not between men and women
2. To render a statute unconstitutional, the legislature must have
acted “at least in part because of” not merely “in spite of” its
adverse effects on females
 If it doesn’t SAY race or have an individualized application: Court may not find strict scrutiny
Political Process Equal Protection
iv. The Coalition for Economic Equity v. Wilson (9th Circuit 1997)
1. Facts: In 1996, the people of CA adopted the Proposition 209 as an amendment to their
Constitution—provided that the state should not discriminate against or give
preferential treatment to any individual or group on the basis of sex, color, ethnicity, or
national origin in the operation of public employment, public education, or public
contracting. A day after the election, Ps sought a declaration that Proposition 209 was
unconstitutional because it imposes an unequal “political structure” that denies women
and minorities the right to seek preferential treatment from the lowest level of
government
a. Political Process Equal Protection:
i. Concerns a restructuring of the political process with a racial focus
2. The Opinion: Does not violate EPC
a. Political process EP works here because we have a MAJORITY rather than a
discrete minority (unlike in Hunter or the other cases below)
b. Task in this case is merely to determine whether the district court relied on an
erroneous legal premise—accept that Proposition 209 burdens members of
insular minorities within the majority that enacted it who otherwise would seek
to obtain race-based and gender-based preferential treatment from local entities
3. Significance: Chance for Court to decide on political process EPC but did not
**Three cases that use process equal protection:
(1) Hunter v. Erickson: acting City Council passed an ordinance in Akron City, OH, and it amended the
ordinance to prohibit ordinances addressing racial discrimination w/housing unless approved by majority of
voters. S.Ct. said that that this was unconstitutional because it used a racial classification. It is
unconstitutional for one type of law (anti-discrimination laws) to go through a more difficult referendum
process.
a. Fair housing and ONLY fair housing is subject to referendum (more particular political process)
b. The referenda requirement is not on its face racial—doesn’t say anything about race
c. No evidence that is accumulated that the purpose of those who move things to referendum process is
racial
d. SUPREME COURT: Political process cannot be amended to make things more difficult for advocates of
integration
 Off-shoot of CAROLENE PRODUCTS, FOOTNOTE 4
(2) Washington v. Seattle School District. Seattle enacted a plan by using mandatory busing to create de
facto segregation. S.Ct. said unconstitutional because two reasons: the local authorities that have authority
to pass ordinances were stripped only of their authority to work on this type of ordinance. The city took the
power from the locality.
a. This is different from Hunter because it is not an anti-discrimination law- it’s law that capitalized on
the housing patterns of minority communities. This was another reason why it was unconstitutional.
b. Supreme Court strikes down a local decision
c. Supreme Court again says that violates EPC: can’t take something that deals with bussing and
integration (racial matter) and move it from one level to a more difficult/remove level in order to put a
roadblock of the local authorities who have control over it
(3) Crawford v. LA Board of Ed. California constitution amended to prevent Cts. From mandating school
busing. Ct. said that repealing anti-discrimination or desegregation laws is okay because states are allowed
to do this. It allowed all Ct. ordered busing where federal courts would’ve engaged in busing as a remedy.
a. It is also a statute that leaves it to local authorities to engage in incentive programs and voluntary
busing to try to engage with residential patterns or other de facto segregation matters.
b. Supreme Court case that is roughly contemporaneous with Seattle case: doesn’t violate equal protection
when state courts are prohibited from mandating pupil assignments unless their remedying equal
protection violation
i. Here, the Supreme Court had been telling people how far busing could go—the doctrine was
relatively well-set that bussing can be used to dismantle segregation
ii. The doctrine had not said that bussing can be used where there has NOT been segregation to
simply accomplish integration from scratch
1. State-wide process in CA: you can only issue orders concerning bussing to remedy equal
protection violations
2. Do not go beyond US SC using bussing as a tool to dismantle segregation
3. Can’t use bussing just to accomplish racial balance and integration absent the finding of
some prior discrimination
c. Affirmative Action
i. City of Richmond v. J.A. Croson Company (1989)
1. Facts: City of Richmond enacted a plan that required the primary contractor on a city
awarded construction contract to subcontract to at least 30% of the amount of the
contract to sub-contractor businesses that were owned by members of certain minority
racial groups. The minority groups were identified in the statute as persons who were
“black, Spanish-speaking, Orientals, Indians, Eskimos, or Aleuts.” The plan allowed a
prime contractor to seek a waiver of the 30% requirement in exceptional circumstances
(when the 30% minimum could not be reasonably fulfilled). Question over
constitutionality of the plan under EPC plaintiff lost the contract because they were
white. City of Richmond asserted that its plan was designed to remedy past
discrimination against minorities in the construction business.
2. The Opinion: Invalidated plan; A state or local government’s affirmative or benign use
of race is subject to strict judicial scrutiny and only justified by a compelling
government interest
a. Court applies STRICT SCRUTINY:
i. Compelling state interest: Discrimination
1. Court: need EVIDENCE of past discrimination
2. Dissent: of course past discrimination (Richmond)
ii. Narrow tailoring: Looking at non-discriminatory alternatives
1. Found that even if Richmond had identified past discrimination
against minority owned construction businesses in the city, its
use of the 30% quota for subcontracts to minority owned
businesses, which provided for only limited waivers from the
quota system, showed that the plan was not narrowly tailored
to the correction of prior discrimination
3. Significance: Case does not make it clear why type of proof is required to identify past
discrimination
ii. Grutter v. Bollinger (2003) 5-4: Diversity is a compelling interest
1. Facts: The University of Michigan Law School has a policy to achieve diversity to enrich
education and make the law school class stronger—uses this as a factor for its
admissions (“critical mass”). Grutter is a white MI resident who applied to the law
school in 1996, placed on the waitlist, then rejected. She alleges discrimination based on
race—used as a predominant factor, giving applicants who belong to certain minority
groups a “significantly” greater chance of admission than students with similar
credentials from disfavored racial groups.
2. The O’Connor Opinion: Not unconstitutional; colleges and universities have a
compelling interest in creating a diverse student body and can use race as a factor,
among many, to benefit minorities and enhance diversity
a. Strict Scrutiny analysis
i. Compelling interest: diversity is a compelling interest
1. Nation of leaders
2. Diversity leads to a stronger environment overall
3. Necessary to be exposed
ii. Narrowly tailored
1. Critical mass requirement is not a quota
2. Gives substantial weight to other factors other than race
3. Alternatives
a. Does not unduly harm law school applicants
b. Expect 25 years from now, the use of racial preferences will no longer be
necessary
3. Rehnquist Dissent:
a. Use of race conscious decision-making in government might be allowed in some
circumstances, but did not specifically endorse or reject majority’s conclusion
that diversity in education might be a compelling interest and under certain
circumstances would support a race conscious admissions policy
b. Majority did NOT use a true strict scrutiny test not demanded that
government show that its law school admissions policy was necessary to
promote a compelling interest
4. Significance: Diversity a compelling interest (public education context—did not see this
in Croson)
iii. Parents Involved in Community Schools v. Seattle School District (2002)
1. Facts: Different school districts voluntarily adopted student assignment plans that use
race to determine what public schools the children attend. They do this so that the
racial balance at the school falls within a predetermined range based on the social
composition of the school district as a whole. Parents of students denied assignment to
certain schools under these plans solely because of their race then sued the Seattle
School District. Argued that the assignment to particular schools under these plans
solely because of their race violated the 14th Amendment guarantee of equal protection.
a. Two-way street affirmative action:
i. Viewed as an affirmative action program but for the benefit of whites as
well as blacks
ii. Somewhat different than affirmative action engaged in Richmond and
Grutter
1. Note: Loving v. VA: 2-way street affirmative action
2. The Opinion: Plan unconstitutional
a. When the government distributes burdens or benefits on the basis of individual
racial classifications, that action is reviewed under strict scrutiny.
i. Compelling interest
1. Argued that it was remedying the effects of past intentional
discrimination (Johnson argument)
a. Court: Public schools have not shown that they were
segregated by law or were subject to de-segregation
2. Argued for interest in diversity for higher education (Grutter
argument)
a. Court: Using this as the ONLY factor, in Grutter one of
many mechanical racial classifications
ii. Not narrowly tailored: only towards racial balance and thus is
illegitimate
b. Government action dividing use by race is inherently suspect because such
classifications promote “notions of racial inferiority and lead to politics of racial
hostility”
3. Significance: Distinguishing between racial classifications in the higher and lower
educational contexts
d. Gender Classifications: Middle-Tier Scrutiny
i. Craig v. Boren (1976)
1. Facts: OK statute prohibits the sale of “non-intoxicating” 3.2% beer to males under the
age of 21 and to females under the age of 18. Justification for difference is that men are
arrested for driving while in that age range more than women. Issue as to whether
gender-based differential constitutes a denial to males 18-20 years of age of the equal
protection of the laws in violation of the 14th Amendment.
2. The Opinion: Declared law unconstitutional
a. To withstand constitutional challenge, previous cases establish that
classifications by GENDER must serve important governmental objectives and
must be substantially related to those objectives
i. Although traffic safety is an important government interest, Court
concluded that gender discrimination was not substantially related to
that objective
ii. Reed v. Reed: gender-based differences must be substantially related to
achievement of the statutory objective here, gender and traffic safety
is far too tenuous a relationship to satisfy this standard
b. Court articulates MIDDLE-TIER SCRUTINY
i. How is this different than strict scrutiny?
1. With strict scrutiny, have compelling interest + narrow
tailoring with plaintiff having burden of proof
2. With middle-tier scrutiny:
a. Important interest (former compelling interest)
b. Substantially related to government interest (former
narrow tailoring) state has burden of proof
3. Significance: First case that establishes middle-tier scrutiny as a way to look at gender
discrimination under the 14th Amendment
ii. Michael M. v. Superior Court of Sonoma County (1981)
1. Facts: CA’s statutory rape law defines unlawful sex as an “act of sexual intercourse
accomplished with a female not the wife of the perpetrator, where the female is under
the age of 18 years.” Makes men ALONE criminally liable for the act of sexual
intercourse. In 1978, a complaint was filed alleging a 17.5 year-old male had unlawful
sex with a female under the age of 18 in violation of this law—sought to set the law
aside on state and federal constitutional grounds.
2. The Rehnquist Opinion: Constitutional
a. State could attack the problem of teenage pregnancy and sexual activity by
regulating and punishing men, but not women
i. Gender neutral law less likely to be effective because girls would be less
likely to file complaints or be witnesses if they, too, faced potential
criminal liability
ii. Teenage pregnancy as a compelling interest (though not explicitly
stated)
3. Significance: Example since Craig v. Boren where gender classifications have been
upheld WITHOUT the Court expressly using intermediate scrutiny or mentioning a
level of scrutiny
iii. United States v. Virginia (1996)
1. Facts: VMI is the sole single-sex school among VA’s 15 public schools of higher
learning—financially supported by the state. Women cannot attend VMI. A female high
school student seeking admissions to VMI caused the AG in 1990 to sue the state of VA
and VMI, alleging that VMI’s exclusively male admission policy violated the EPC.
Noted that 347 women have inquired, but VMI has not responded. VA argues: (1) single
sex-education provides important educational benefits (diversity) and (2) Unique VMI
method of character development and leadership training would have to change if
women allowed.
2. The Ginsburg Opinion: Declared unconstitutional the exclusion of women from VMI
a. Applied intermediate scrutiny
i. EXCEEDINGLY PERSUASIVE JUSTIFICATION: Parties who seek
to defend gender-based government action must demonstrate an
exceedingly persuasive justification for that action: burden is on the
State
1. Justification must not rely on overbroad generalizations about
the different talents, capacities, or preferences of males and
females
2. VMI exclusion of women found unconstitutional because it was
based entirely on gender stereotypes
3. Significance: This case is an example of middle-tier scrutiny but the language is
changing and moving perhaps towards strict scrutiny (important  exceedingly
persuasive  compelling)
a. Gender-discrimination is traditionally middle-tier scrutiny; court here (given
affirmative action context and strict scrutiny standard from Grutter) making
the standard higher
e. Fundamental Interests and the Equal Protection Clause
i. San Antonio Independent School District v. Rodriguez (1973)
1. Facts: Suit attacks TX system of financing public education. TX has a system of relying
heavily on local property taxes to pay for public education. The result was that the poor
areas were taxed at high rates, but still had little to spend on education (Edgewood
Independent School District). Wealthy areas were taxed at low rates and had a great
deal to spend on schooling (Alamo Heights School District). Plaintiffs argued (parents
of Mexican-American students) that the disparity in the funding discriminated against
the poor in violation of the EPC.
2. The Powell Opinion: Constitutional; public education is not a right granted in
Constitution
a. Poverty is not a suspect classification and therefore discrimination against the
poor only needs to meet rational basis review
b. Rejected claim that education is a fundamental right
i. Education is not among the rights afforded explicit protection under
our federal Constitution—not do we find any basis for saying that it is
implicitly so protected
ii. A century of SC adjudication under EPC affirmatively supports the
application of the traditional standard of review State only has to
show that it bears some RATIONAL RELATIONSHIP to a
LEGITIMATE STATE PURPOSE
3. Marshall Dissent: Individual interest in education is fundamental
a. Education directly affects the ability of a child to exercise his First Amendment
rights, both as a source and as a receiver of information and ideas, whatever
interests he may pursue in life
b. Finds widespread disparities in taxable district property wealth inherent in the
local property tax element of the TX financing scheme—renders it violative of
EPC
4. Significance: Education is not a fundamental right
ii. Plyler v. Doe (1982)
1. Facts: State of TX refused to reimburse local school boards for the education of children
who cannot demonstrate that their presence in the US is lawful, or by the implication by
those school boards of the burden of tuition on those children. Question as to whether
TX may deny to undocumented school-age children the free public education that it
provides to children who are citizens of the US or legally admitted aliens.
a. Arguments from the STATE
i. State may seek to protect itself from influx of illegal immigrants
1. Court: No way to really do this
ii. Undocumented children are appropriately singled out for exclusion
because of the special burdens they impose on the State’s ability to
provide high-quality public education
1. Court: Record doesn’t show this
iii. Appropriately singled out because they aren’t going to stay in the US or
put their education to social or productive use in the US
1. Court: how do you know they won’t stay?
2. The Brennan Opinion: Declared TX law unconstitutional
a. Aliens, even aliens whose presence in this country is unlawful, have long been
recognized as persons guaranteed due process of law by the 5th and 14th
Amendments
b. Did not articulate a level of scrutiny: undocumented aliens CANNOT be treated
as a suspect class because their presence in this country in violation of federal
law is not a constitutional irrelevancy
i. Education is not a fundamental right
ii. BUT using more than rational basis review: HEIGHTENED
SCRUTINY
1. Using intermediate scrutiny of some sorts in evaluating the
discrimination against undocumented alien children with regard
to education
3. Significance: SC has not overruled Plyler or even called it into question court saying
rational basis but actually using more elevated scrutiny
PYLER
Total denial of education
Documentation
Federal immigration policy
Children of immigrants
RODRIGUEZ
Less money for education
Geography
State only
“Poor”
IF YOU HAVE A SEMI-SUSPECT CLASS AND A SEMI-FUNDAMENTAL RIGHT CAN PUT THEM
TOGETHER TO GET ELEVATED SCRUTINY
iii. Bush v. Gore (2000)
1. Facts: VP Al Gore won the national popular vote, but there was discrepancy as to who
won the Electoral College (turned on FL and its 25 electoral votes). Recount showed a
Bush lead of 327 votes—Gore then petitioned to receive a hand recount in 4 counties in
FL and Bush sued to stop it (denied). Florida Secretary of State refused to extend the
deadline for certifying elections to provide the needed time for recounts. Constitution of
FL said that a candidate can request a manual recount while election statute required
counties to report their votes within 1 week of the election. Is the recount process
constitutional?
2. The Opinion: US SC stayed the counting of votes in FL
a. Counting the uncounted ballots without standards denies EP and that counting
cannot continue because FL wished to chose its electors by the December 12
safe harbor date set by federal law
i. Recount is not done in a sufficiently equal way state-wide
ii. Justices that agree with that conclusion: 7 justices say it doesn’t meet
the standards for equal protection court doesn’t say what those
standards are
b. Right to vote is a fundamental right
i. Recounting is inconsistent with the minimum procedures necessary
to protect the fundamental right of each voter in the special instance
of a statewide recount under the authority of a single state judicial
officer
c. Remedy—want to meet December 12 deadline
3. Significance: Uses language of equal protection but doesn’t use strict scrutiny
component of equal protection  no fundamental vote for president due to electors but
equal protection still applies
f.
Rational Basis and Hybrid Review CASES WHERE WE DON’T UNDERSTAND COURT
REASONING!
Cases:
1-Railway Express Agency, Inc. v. NY (1949): upheld an ordinance prohibiting advertising on sides of rented vehicles while
permitting advertising of owner’s products on side of vehicles
2-Williamson v. Lee Optical (1955): upheld a statute making it unlawful for anyone not a licensed optometrist or
opthalmologist to fit, duplicate, or replace lenses without a prescription from an opthalmologist or optometrist
3-Fizgerald v. Racing Association of Central Iowa (2003): the Court unanimously upheld the imposition of a 36% tax on
slot machines at racetracks and a 20% tax on slot machines on riverboats on the ground that it might be supported by a
“plausible policy reason”
 Cases where we can’t really see where Court reasoning comes from
i. New York City Transit Authority v. Beazer (1979)
1. Facts: NYC Transit Authority refuses to employ persons who use methadone. Have a
general policy against employing persons who use narcotic drugs (methadone
considered a narcotic rugs, used to get off heroin). In class action, suit against TA on
behalf of all persons who would have been, or would be in the future, subject to
discharge or rejection as employees of TA by reason of participation in a methadone
maintenance program.
2. The Opinion: Policy unconstitutional under EPC
a. TA rule serves general objectives of safety and efficiency—not directed against
individuals but represents a policy choice
b. Does not create or reflect any special likelihood of bias on the part of the ruling
majority
c. Upheld law under rational basis test any alternative rule is likely to be less
precise and will be more costly than the total ban using these drugs
3. Significance: This is a case where stricter scrutiny could have been used, BUT the Court
essentially says that this is not one we have to look at all that carefully
a. IF YOU HAVE A SEMI-SUSPECT RIGHT AND A SEMIFUNDAMENTAL RIGHT: ANALOGIZE TO THIS CASE
ii. City of Cleburne, Texas v. Cleburne Living Center (1985)
1. Facts: A TX city denied a special use permit for the operation of a group home for the
mentally retarded, acting pursuant to a municipal zoning ordinance that required
zoning permits for such homes. When Cleburne Living Center (CLC) applied for its
permit, the city denied it . Special permit, renewable annually for the construction of
“hospitals for the insane or feeble-minded, or alcoholic…” City classified the group
home as a hospital for the feebleminded. CLC sued saying that the zoning ordinance was
invalid on its face—discrimination of EPC
2. The Opinion: Ordinance is invalid; Rational basis review is the standard for evaluating
government actions discriminating against the mentally disabled
a. Court SAYING rational basis, but using a stricter scrutiny than that
(Footnote 4 from Carolene Products)
b. Mentally handicapped are not a suspect class
c. City offered a number of justifications for the law—Court concluded that they
were either not legitimate purposes or the ordinance was not a reasonable way
of accomplishing the goals
i. City argued that property owners in the area opposed having a facility
for the mentally disabled, and the city expressed concern that students
from a junior high across the street might harass occupants of a group
home.
1. Court held that these justifications were based on prejudices
against the mentally disabled and that indulging such private
biases is not a legitimate government purpose
ii. City contended that the home was located on a 500 year flood plain.
Court dismissed this concern because in the same area the city allowed
facilities such as nursing homes, homes for convalescents and the aged,
hospitals, and sanitariums.
1. Court rejected the city’s concern over the # who would live in
the home because no similar restrictions on size existed for
nursing homes, boarding houses, frats, etc
3. Significance: Case is reminiscent of Plyler in what the Court DOES
iii. Romer v. Evans (1996)
1. Facts: CO Constitution (Amendment 2): prohibited all legislative, executive, or judicial
action at any level of state or local government designed to protect the named class
(homosexual persons or gays and lesbians). Repeals local ordinances to the extent they
prohibit homosexuality. Soon after Amendment 2 was adopted, suit to declare its
invalidity and its enforcement in Denver. State argues that it puts gays and lesbians in
the same position as all others
2. The Opinion: Provision of CO Constitution invalid under EPC
a. Homosexuals are not a suspect class
b. Reject state’s argument that it only puts them in the same position because the
state gave wide protection from other types of discrimination
c. Prejudice is the motive behind this law to validate discrimination against gays
i. Seems inexplicable by anything but animus towards the class
d. TOO BROAD: impacts everything
3. Scalia’s Dissent: Majority is taking sides in a “cultural war”—it is political, not judicial
4. Significance: Homosexuals are not a protected class
X. Power to Enforce Reconstruction Amendments
a. The Power to Enforce the Reconstruction Amendments
Amendment 14, Section 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
i. Katzenbach v. Morgan (1966)
1. Facts: Concerned the constitutionality of §4(e) of the Voting Rights Act of 1965, which
provides that no person who has completed 6th grade in a Puerto Rican school, where
instruction was in Spanish, shall be denied the right to vote because of failing an
English literacy requirement. NY had a literacy requirement for voters—you had to
read and write in English—this disenfranchised PR migrants.
2. The Brennan Opinion: Upheld provision as a proper exercise of the powers granted to
Congress by § 5 of the 14th Amendment
a. Law constitutional because it was a remedy for discrimination
b. Accords Congress the authority to define the meaning of the 14th Amendment
3. Harlan’s Dissent  no factual data provided by Congress stating that Spanish-speaking
citizens are fully capable of making informed decisions in a NY election as are English
speaking citizens
4. Significance: Adopts a nationalist perspective according Congress the power to use its §
5 authority to expand the scope of its rights
ii. City of Boerne v. Flores (1997) (6-3)
1. Facts: Involved a church in TX that was prevented from constructing a new facility
because its building was classified as a historic landmark. The church sued under the
Religious Freedom Restoration Act, and the city challenged the constitutionality of the
law. Act requires courts considering free exercise challenges, including to neutral laws
of general applicability, to uphold the government’s actions ONLY if they are necessary
to achieve a compelling purpose and it is the least restrictive means in doing so
2. The Kennedy Opinion: Act is unconstitutional Congress can ENFORCE but not
DEFINE Constitutional rights
a. § 5 of the 14th Amendment may NOT create new rights or expand the scope of
rights Congress is limited to laws that prevent or remedy violations of rights
recognized by the Supreme Court, and these must be narrowly tailored—
proportionate and congruent to the constitutional violation
b. Congress is LIMITED to enacting laws that prevent or remedy violations of
rights already recognized by the Supreme Court
i. Congress can enforce constitutional rights but DOES NOT have the
power to determine what constitutes a constitutional violation
ii. ENFORCE does not mean define; therefore legislation is VOID
iii. Legislation must be proportional to the harm presented
3. Significance: Denies Congress power to expand rights
iii. University of Alabama v. Garrett (2001) 5-4: Must Show Pattern of Discrimination for
Individuals to be able to Sue States in Violation of 14th Amend.
1. Facts: Considered whether state governments may be sued for violating Title I of the
Americans with Disabilities Act, which prohibits employment discrimination against the
disabled and requires reasonable accommodation for disabilities by employers.
2. The Rehnquist Opinion: State governments may not be sued for violating Title I of the
ADA
a. ADA was a substantial expansion of rights compared to the Constitution
i. Under EP, discrimination based on disability only need meet a rational
basis test, being rationally related to a legitimate government purpose
ii. The ADA prohibits much more than would fail a rational basis test,
and its requirement for reasonable accommodation of disabilities is
significantly greater than the Constitution requires
b. Title I not “proportionate” or “congruent” to preventing and remedying
constitutional violations cannot show that Congress did in fact identify a
pattern of irrational state discrimination in employment against the disabled
3. Significance: STATE governments cannot be sued by individuals for violations of ADA
iv. Nevada Department of Human Resources v. Hibbs (2003): 6-3
1. Facts: FMLA requires that employers, including government employers, provide their
employees with unpaid leave time for family and medical care.
2. The Rehnquist Opinion: Family leave provision of the Family Leave and Medical Act
fits within the scope of Congress’s § 5 powers sand can be used to sue state
governments.
a. FMLA aims to protect the right to be free from gender-based discrimination in
the workplace.
i. Congress, recognizing social realities, found that the absence of family
leave policies disadvantaged women in the workplace
ii. Court concludes that Congress clearly intended the law to prevent
gender discrimination in employment
3. Significance: Intermediate scrutiny because of gender discrimination