Constitutional Law Outline
Case Index
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JUDICIAL POWER TO ENFORCE THE CONSTITUTION
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Invalidation of Federal Laws
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Invalidation of State Laws
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Marbury v. Madison (1803) (Marshall)
 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. Basically, SCOTUS has power to review the constitutionality of federal
executive actions and of federal statutes.
 Three questions addressed in this case:
o Did Marbury have a right to the commission Adams appointed him to? YES
o Does he have a legal remedy? YES
o Can the Supreme Court issue this remedy? NO, Article III limits the SCOTUS power to
appellate jurisdiction except in specific cases. As this is a case of original jurisdiction, the
Supreme Court has no jurisdictions to grant Marbury a remedy.
 This holding struck down Section 13 of the Judiciary Act of 1789 which had conferred original
jurisdiction on SCOTUS.
 From Shanor PPT:
o Major Premise: All Laws that contradict the Constitution are void.
o Minor Premise: Judiciary Act § 13 contradicts Article III, § 2.
o Conclusion: Therefore, § 13 is void.
o Construct syllogism, conclusion of which is “The S. Ct. may void any law.”
Martin v. Hunter’s Lessee (1816) (Story)
 Established constitutional basis for Supreme Court review of state court decisions.
 Quick Facts: Two conflicting claims to land in Virginia. Hunter got his claim from Virginia state
that gave away British land. Martin got land from federal treaty that protected inherited land of
British citizens. VA Court of Appeals ruled for Hunter but Supreme Court reversed holding that
the federal treaty was controlling. VA Court of Appeals disputed this saying that SCOTUS lacked
authority to review state court decisions. SCOTUS replied saying yes they do.
 SCOTUS based decision from two textual clauses in the Constitution:
o Article III, Clause 2….allows for appellate review over “all cases”. If state cases are
exempt, then this clause would be false, would make it only “some cases”.
o Supremacy Clause
 SCOTUS also articulated policy reasons for its decision:
o Supreme Court review is essential to ensure uniformity in the interpretation of federal
law.
o State court judges may be biased towards their own State’s laws when interpreting
federal law.
o Basic principle of sovereignty….state judiciary should not be exempt from Constitutional
limits.
2nd Amendment Interpretation
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District of Columbia v. Heller (2008) (Scalia)
 Petitioners and dissent believe that 2nd amendment protects ONLY the right to possess and carry
a firearm in connection with militia service. Respondent believes that it protects the right
regardless of any connection w/ militia service.
 Scalia starts with looking at the text of the 2nd Amendment, he divides it into the prefatory clause
and the operative clause.
 Scalia says the two clauses fit together b/c of the history of militias. Self-defense was the central
component of the right to bear arms. Turning to the DC statute…Scalia says that the fact that it
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requires firearms in the home to be inoperable makes it impossible for them to be used for the
core lawful purpose of self-defense and is thus unconstitutional.
STEVENS DISSENT – Question is more about scope of 2nd Amendment right then whether it
protects a “collective right” or an “individual right”. Issue is whether the amendment protects
the right to possess and use guns for non-military purposes like hunting and self defense. 2nd
Amendment protects the right to keep and bear arms for military purposes but it does NOT
curtail the Legislature’s power to regulate non-military use and ownership.
BREYERS DISSENT – Notes that even at the time of 2nd Amendment, major cities like Philly, NYC
and Boston restricted the firing of guns to some degree. Says that the DC law does not
disproportionately burden Amendment-protected interests. Adds that majority decision limits
the ability of knowledgeable, elected officials from dealing w/ gun related problems.
Exceptions to and Suspension of Habeas Corpus
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Ex Parte McCardle (1869)(Chase)
 Keystone case for the idea that Congress has authority to limit SCOTUS jurisdiction.
 Quick Facts: McCardle was imprisoned pursuant to the Reconstruction Acts. He brought a habeas
corpus action under Act of 1867 which was appealed to SCOTUS. While case was pending,
Congress issued Act of 1868 that expressly repealed the part of the 1867 Act that gave SCOTUS
jurisdiction over this type of case.
 Thus, Court holds that as long as a case is pending, Congress can remove jurisdiction.
 Decision based on Exceptions Clause (Article III, Section II): the supreme [sic] Court shall have
appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations
as the Congress shall make.
 Thus, The Court cannot decide McCardle’s case because of Congress’s authority to create
exceptions and regulations to the Court’s appellate jurisdiction
 Often used by advocates for the broad power of Congress to limit the jurisdiction of the federal
courts and the Supreme Court
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Boumediene v. Bush (2008) (Kennedy)
 Deals with the constitutionality of the Military Commissions Act’s limit on habeas at Guantanamo
Bay. Basically whether DTA review is “adequate and effective” substitute for habeas corpus.
 Specific question here is then thus: Whether foreign nationals, apprehended and detained in
distant countries during a time of serious threat to our Nation’s security may assert habeas
corpus and seek its protection.
 To determine the reach of the Suspension Clause, court looks to Eisentrager case and the factors
the Court relied upon in that case. Court concludes that there are THREE relevant factors in
determining the reach:
o Citizenship and status of detainee and the adequacy of the process through which that
status determination was made.
o Nature of the site where apprehension and then detention took place
o Practical obstacles inherent in resolving the prisoner’s entitlement to the writ.
 In contrast to Eisentrager case, the detainees here were far more limited in their ability to rebut
accusations and argue their case. Thus, the process is inadequate and does not eliminate the
need for habeus corpus review.
 Court finally holds that:
o DTA review procedures are inadequate substitute for habeas corpus
o Petitioners can proceed with action in District Court
o MCA Section 7 is the only law the Court identifies as unconstitutional
 ROBERTS DISSENT – Says that court has stricken down generous procedural protections that
were carefully thought out by the political branches. This was done before even a single detainee
even attempted to vindicate those rights.
o All the majority’s decision does is shift responsibility for those sensitive foreign policy
and national security decisions from the elected branches to the Federal Judiciary.
o If the Suspension Clause protects the writ as it existed in 1789, then the DTA process is
more than sufficient.
o The majority doesn’t explain how its process differs from the DTA process; it leaves
many difficult questions like this open.
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Reversal of Judicial Decisions
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SCALIA DISSENT – Has a fundamental problem with majority, he says that habeas corpus does
not and never has run in favor of aliens abroad; thus the Suspension Clause has no application.
Miller v. French (2000) (O’Connor)
 This is another example of a case where SCOTUS rules that Congress has broad powers to limit
jurisdiction.
 Quick Facts: In 1975, a federal district court issued a permanent injunction re conditions at a
prison. While injunction was still in effect and final judgment had been entered, Congress passed
Prison Litigation Reform Act in 1996. § 3626(e)(2) of the Act provided 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.
State of Indiana filed such a motion and prisoners moved to enjoin this saying that it violated Due
Process and separation of powers.
 Court holds that an injunction is not the last word of the judicial department because it’s always
open to modification. Judicial decisions are final but injunctions are final only to the point where
Congress wants to change the law. Since Congress clearly intended to make this provision of the
PLRA mandatory, courts could not enjoin the automatic stay.
 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.
 SOUTER DISSENT – With this precedent, Congress may assume the judicial function of
determining applicability of a rule to a fact pattern and thus violate separation of powers. May
be a situation where we don’t have enough time to tell whether a new Congressional act
requires modification of an old holding. Thus, a perfectly legal rule may have to be modified b/c
of a Congressional mandate.
Standing and Mootness
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Friends of the Earth v. Laidlaw Environmental Services (2000) (Ginsburg)
 Quick Facts: In 1972, Congress enacted Clean Water Act which allowed citizens to sue to enforce
pollution limits if they gave 60 days notice to the polluter. In 1986, Laidlaw began discharging
pollutants into a nearby waterway. In 1992, FOE sued 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).
 Issue was whether FOE had standing and if the case was moot.
 Court says this case is NOT moot. Even though Laidlaw changed its conduct, that doesn’t make
the case moot because they can just revert back to previous behavior once case is dismissed.
Proving mootness is a heavy burden that was not proven here. Ginsburg defines mootness as “A
case might become moot if subsequent events made it absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.”
 Court says FoE does have standing. There is an injury-in-fact (loss of recreation in the area) which
is “but-for” traceable to Laidlaw.
 Congressional v. Statutory Standing: If there is no constitutional standing for P for a particular
type of facts, then it doesn’t matter what the statute says. Conversely, if the constitution allows
you standing, but Congress later says you do not, then you still do not have standing
 Standing doctrines function to ensure that the scarce resources of the federal courts are devoted
to disputes where the parties have a concrete stake.
 Case is significant b/c it created a broad standard that will allow more private citizens to enforce
environmental laws when the government fails to do so.
 Kennedy’s Concurrence – Says questions of this sort are best reserved for a later case because
there is an Article II issue here (President has to “take care that the laws are faithfully executed”)
 Scalia’s Dissent
o Says P has burden of proof as to standing and fails to demonstrate injury in fact.
 Says P’s affidavits are woefully short on specific facts, vagueness doesn’t cut it
at trial.
o Says a plaintiff’s desire to benefit from the deterrent effects of a public penalty for past
conduct cannot suffice to establish a case or controversy.
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Says the new doctrine of standing that the majority endorses will permit all public civil
penalties to be enforced by private interests. Places the power of suing to enforce the
public laws in private hands.
Massachusetts v. EPA (2007) (Stevens)
 Deals with STATE STANDING
 Quick Facts: A group of States and local governments is alleging that the EPA has abdicated its
responsibility to regulate emissions of four greenhouse gasses. EPA’s defense is that because
these gasses inflict widespread harm, the doctrine of standing prevents the suit from proceeding.
 Majority says that Massachusetts DOES have standing to bring this case….
o There is INJURY b/c rising waters have begun shrinking the MA coast.
o There is CAUSATION b/c emissions = greenhouse gasses = global warming.
o REMEDY is that EPA has to take steps to reduce emissions.
 Fact that the litigant is the State of Massachusetts is significant; it owns a lot of territory that is
affected by the outcome of this case
 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
o Case most likely driven by public policy—if MA doesn’t have standing, no one will (“no
better plaintiff” theory of standing)
 ROBERTS DISSENT: Says State still has to show that its citizens satisfy Article II
o Also says that the actual injury of coastal land loss is not certainly impending, it will take
until 2100 for sea levels to rise 20 to 70 centimeters.
o Says connection between motor vehicle emissions and Massachusetts land loss is way
too speculative to establish causation.
o Redressability is also a problem, other countries also contribute to global warming.
Forcing the EPA to act will not help that much….
Political Questions
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Baker v. Carr (1962)(Brennan)
 Quick Facts: Between 1901 and 1961, Tennessee population shifted such that voting districts
were disproportionate. This suit claims that 1901 Apportionment act was unconstitutional.
 SCOTUS holds that legislative re-apportionment IS JUSTICIABLE and NOT a political question.
 This case is distinguished from Luther v. Borden (determining whether a state action violates
republic form of government clause is a political question and thus non-justiciable) b/c we are
determining constitutionality pursuant to the Equal Protection Clause here.
 Famously ambiguous Baker 6-Point Test articulated here. Many complaints that this test is
difficult to administer.
 Case is famous for “one person, one vote” idea.
 FRANKFURTER DISSENT: SCOTUS must remain completely detached from political
entanglements to ensure that the public is confident in its morality and impartiality.
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Vieth v. Jubelirer (2004)(Scalia)
 Quick Facts: 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 was biased towards
Republicans. 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.
 Plurality opinion determined that partisan gerrymandering claims were nonjusticiable political
questions because there was no discernible and manageable standard for "adjudicating political
gerrymandering claims." Kennedy concurred saying that this is true but that such standards
could be developed in the future.
 All the dissents basically say that gerrymandering is not a political question.
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DISTRIBUTION OF NATIONAL POWERS
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Framework
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Youngstown Sheet & Tube v. Sawyer (1952) (Black)
 Was President Truman acting within his constitutional power when he issued an order to take
possession of and operate most of the nation’s steel mills?
 Government argues that the authority for this is found in the Constitution. They cite provisions in
Article II…”the executive power shall be vested in the President”….”he shall take Care that the
Laws be faithfully executed”…”he shall be Commander in Chief of the Army and Navy of the
Untied States”
 Court rejects argument that this is an exercise of President’s power as Commander in Chief. Says
that even in that role he can’t seize private property, it’s a job for lawmakers.
 Court says that President does NOT have power to execute his own policy.
 Black’s majority opinion says that the President’s power to issue this order must come from an
act of Congress or from the Constitution itself. There is no statute that authorizes President to do
what he did. FORMALIST APPROACH
 Frankfurter’s concurrence takes the HISTORICAL APPROACH. 16 times in the past, Congress has
specifically provided for executive seizure of this sort. The fact that they didn’t do so here and
the passing of the Taft-Hartley Act shows that Congress intends to withhold this power in this
instance.
 ***JACKSON’S CONCURRENCE*** - Sets out 3 situations in which a President may doubt, or
others may challenge, his powers. FUNCTIONALIST APPROACH
o 1. If President acts pursuant to “an express or implied authorization of Congress,” he
enjoys Art. II authority plus all power Congress can delegate
o 2. If Congress is silent, there is a “twilight zone” of concurrent presidential Art. II
authority. Unclear who has true authority here.
o 3. If President acts contrary to the “express or implied will of Congress,” his power is at a
minimum
 Vinson’s DISSENT – Says central fact of this case is that the Nation’s entire steel production
would have been shut down completely if the President hadn’t acted. Because the President
immediately informed Congress of his action, his action cannot be said to be arbitrary or an
usurpation of congressional power. Most Functionalist approach.
 THIS IS THE LEADING CASE IN ADDRESSING SCOPE OF INHERENT PRESIDENTIAL POWER!
Executive Powers in Domestic Affairs
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Clinton v. City of New York (1998) (Stevens)
 Quick Facts: Case involves whether cancellations Clinton made to two different acts (Balanced
Budget Act and Taxpayer Relief Act) under the Line Item Veto Act was constitutional. District
Court held that the cancellations did not conform to constitutionally mandated procedures. Also
said Clinton violated Article I when he unilaterally cancelled provisions of duly enacted statutes.
 Basically, Clinton repealed a portion of both statutes. Repeal of statutes must conform to Article I.
There is no provision in the Constitution that authorizes the President to enact, to amend or to
repeal statutes.
 First issue in this case is if the two plaintiffs, NYC and Snake River, have standing.
o Majority says both have standing. Dissent says Snake River does not b/c it’s a private
business, not a government entity.
o Court found that a change in market conditions was sufficient injury to meet the
standing requirement.
 Regarding actual merits of case, majority rules that Line Item Veto is unconstitutional. President
can’t just veto/repeal parts of a bill, he only has power to send it all back. By repealing only a part
of a statute, he is basically doing legislative work (repealing). FORMALIST APPROACH.
 SCALIA’S DISSENT - Says crux of matter is whether Congress’s authorizing the President to cancel
an item of spending gives him power that traditionally resides only in the Legislative Branch. Says
that Presidents have been doing similar things for years. FUNCTIONALIST APPROACH.
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Executive Powers in Foreign Affairs
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United States v. Curtiss-Wright (1936) (Sutherland)
 DISTINGUISHES PRESIDENT POWER IN FOREIGN VS. DOMESTIC AFFAIRS!
 Quick Facts: Appellees conspired to sell guns in Bolivia. However, President and Congress made a
Joint Resolution that said that if prohibition of selling arms may reestablish peace between two
countries, and the President makes a proclamation to that effect, then it’s unlawful to sell arms
to those countries.
 Thus, issue is whether President inherently as greater powers in foreign as opposed to domestic
affairs.
 Court says there are fundamental differences in what power the federal government has when it
comes to foreign affairs and domestic affairs. “President is the sole organ of the government in
international affairs.”
 Legislation should afford the President discretion and freedom from statutory restriction when it
comes to foreign affairs. The President knows better than Congress about the conditions in
foreign countries, especially in times of war since he’s being briefed by diplomats and CIA style
dudes.
 This case represents a very broad assertion of Presidential Power!
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Dames & Moore v. Regan (1981)(Rehnquist)
 Quick Facts: Carter freezes Iranian assets in U.S. invoking IEEPA b/c of hostage crisis. Once crisis
was over, Treasury Dept. affirmed Carter’s agreements to terminate all legal proceedings against
Iran and set up a separate Claims Tribunal. Dames & Moore sues to get their money, says
Carter’s executive orders went beyond the scope of presidential power.
 Majority relies on Youngstown! Says that this action falls under Category 1…President’s action
backed by Congress so he is at the height of his power.
 Congress did not explicitly approve anything here but there is historical precedent for them doing
so in previous situations. Their failure to explicitly delegate authority does NOT mean they
disapprove of Carter’s actions, impossible to delegate for every little action Pres could take.
 Court cautions that this ruling should be construed very narrowly though.
 This case illustrates the broad presidential power to settle foreign claims using exec agreements.
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Medellin v. Texas (2008) (Roberts)
 Quick Facts: International Court of Justice (ICJ) ruled that 51 Mexican nationals were entitled to
review and reconsideration of their state-court convictions and sentences in the U.S. President
Bush then issued a Memorandum that the U.S. would discharge its international obligations by
having State courts give effect to the decision.
 Court grants certiorari to decide two questions:
o Is the ICJ’s judgment directly enforceable as domestic law in a U.S. state court?
o Does Bush’s memorandum independently require the states to provide review and
reconsideration of all the 51 Mexican’s claims without regard to state procedural rules?
 Court holds that an international treaty is not binding domestic law unless Congress passes a
statute implementing it or it is self-executing.
 Government argues that U.N. Charter gives President authority so this falls under first category
of Youngstown.
o Court disagrees with this though, Pres cant unilaterally convert a non-self executing into
a self executing. This is Congress’s job….it comes from the Constitution.
 When the President asserts the power to enforce a non-self-executing treaty, he acts in conflict
with the Senate and thus his action falls within the 3rd Youngstown category.
 Basically a FORMALIST approach here…
Executive Privileges and Immunities
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United States v. Nixon (1974)(Burger)
 Nixon refuses to turn over tapes, he motioned to quash a 3rd party subpoena for production of
evidence. Claims executive privilege here.
 Intra-branch dispute: Court rejected the president’s contention that the case posed a nonjusticiable political question because it was an intra-branch dispute and that the president alone
had the authority to control the prosecutions.
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Court says they will defer to the President’s need for candor to a degree. However, Nixon here is
using the privilege with a broad, unsubstantiated claim of public interest. Unless you’re
protecting nuke codes or something, it’s difficult to accept that the confidentiality of the
President is diminished by production of tapes and stuff.
ARTICLE III > ARTICLE II: an absolute privilege would interfere with the ability of the judiciary to
perform its constitutional function
Need for evidence at criminal trial outweighed executive privilege. In the adversary criminal
justice system, the need to develop all relevant facts is fundamental and comprehensive.
It is necessary in the public interest to afford Presidential confidentiality the greatest protection
consistent with the fair administration of justice. Allowing it here would interfere w/ due process.
Clinton v. Jones (1997) (Stevens)
 Quick Facts: 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.
 With respect to official acts, the President is punished w/ impeachment. However, with respect
to private acts, he is subject to the mercy of the laws.
 The fact that a federal court’s exercise of traditional Article III jurisdiction may significantly
burden the time and attention of the Chief Executive is not sufficient to establish a violation of
the Constitution. No valid separation of powers argument here.
 Staying the trial would be unfair to Jones; there could be prejudice in lost evidence and witnesses
forgetting stuff by delaying.
 So basically, no presidential immunity for unofficial conduct! President is not above the law!
Legislative Authority
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INS v. Chadha (1983) (Burger)
 Quick Facts: Chadha is supposed to be deported but an immigration judge lets him stay b/c he
had met the requirements for an exception to the Immigration and Nationality Act. 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.
 Court holds that the legislative veto is unconstitutional. Any legislation must be presented and
passed through BOTH houses according to Article I, Section 7 (bicameralism).
 Very FORMALISTIC decision, emphasized the legislative process outlined in Constitution and
dismissed the functional ability of the legislative veto to check administrative power.
 Powel Concurrence - The House assumed a function ordinarily entrusted to the federal courts. In
deciding this, Congress is not subject to any constraints that prevent it from acting arbitrarily.
 White’s Dissent – This decision is the death knell for the legislative veto. Legislative veto is an
important political invention that allows the President and Congress to resolve major
constitutional and policy differences and preserves Congress’s control over lawmaking.
o History of the legislative veto makes it clear that Congress doesn’t really misuse it.
o If Congress may delegate lawmaking power to agencies, it is difficult to understand
Article I as forbidding Congress from also reserving a check on legislative power for itself.
o History of the separation of powers is a history of accommodation and practicality.
o VERY FUNCTIONALIST APPROACH!
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Bowsher v. Synar (1986) (Burger)
 Quick 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 Comptroller General 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.
 Court says this delegation of authority to the CG violates the rule that Congress cannot play a
direct role in the execution of their laws…separation of powers.
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Congress cannot reserve for itself the power of removal of an officer charged with the
execution of laws. To do so would reserve in Congress control over the execution of
laws.
Because Congress has removal powers over CG, he cannot be entrusted w/ executive
power. However, court finds that he has executive power (cite 253(a)(3) which gives him
ultimate authority on budget cuts).
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CG is beholden to Congress, when he should be beholden to the President. As Chadha
makes clear, once Congress makes its choice in enacting legislation, its participation
ends.
In summary, Congress cannot remove executive officials/invest legislative officials with executive
power—this is impermissible under the Constitution. FORMALIST APPROACH
Majority relies on MYERS and HUMPHREY’S EXECUTOR...
o Myers - Court found congressional limits on the President’s removal of a postmaster
unconstitutional. Removal is an executive act, the President has a power to take Care to
enforce the law, and that Article II vests all executive power in the President
o Humphreys - 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
Stevens Concurrence – Congress can delegate legislative power to agencies or the Executive but
not to a lesser representative of the Legislative Branch (CG) to act on its behalf.
White’s Dissent – Calls the act novel and far-reaching. Said determining level of spending is a
legislative, not executive function.
o Distinguishes from Chadha because CG can only be removed through a joint
resolution…passed by BOTH houses and signed by Pres. Also, CG can only be removed
for five specified reasons.
o Says this act poses no real danger of aggrandizing congressional power and is not a
genuine threat to division of power between lawmaking and executing. FUNCTIONALIST
APPROACH.
Morrison v. Olson (1988) (Rehnquist)
 Quick Facts: Ethics in Gov’t Act allows appointment of an independent counsel to investigate
high-ranking officials. Attorney General files an application to the Special Division (a special court)
to appoint an independent counsel. Attorney General is only person that can remove the counsel.
Question regarding constitutionality of Act (Appointments Clause) and whether Pres can remove.
 Constitution divides all officers into two classes:
o Principal Officers – selected by President with advice and consent of the Senate
o Inferior Officers – Congress may allow these to be appointed by the President alone, by
the heads of departments or by the Judiciary.
 Have to decide now whether the independent counsel is an inferior or principal officer. If they’re
the latter, the Act is in violation of the Appointments Clause.
 According to majority, they are CLEARLY an inferior officer for several reasons:
o 1. They are subject to removal by a higher Exec Branch official (Attorney General).
o 2. Appellant is only empowered by the Act to perform only certain, limited, duties.
o 3. Appellant’s office is limited in tenure.
 Majority distinguishes this from Bowsher b/c it does not involve Congress itself attempting to
gain a role in the removal of executive officials. Says more similar to Humphrey’s Executor.
 SCALIA DISSENT – All the executive power should be vested in the President. Scalia concludes
that since the statute vests some purely executive power in someone who is not the President, it
is void.
o Majority greatly exaggerates how much control the President has here.
o Slippery slope here, how much power do we take away from the President before it’s
too much?
Free Enterprise Fund v. Public Company Accounting Oversight Board (2010)
 Free Enterprise Fund alleged that the creation of the PCAOB violated the Appointments Clause.
Court states the question here as “May the president be restricted in his ability to remove an
principal officer, who is in turn restricted in his ability to remove an inferior officer, even though
that inferior officer determines the policy and enforces the laws of the United States?”
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Court reasoned that because the Act protects Board members from removal except for good
cause, but withdraws from the President any decision on whether good cause exists, the Act
deprives the President the power to hold Board members accountable. Such an arrangement
contradicts Article II's vesting of the executive power in the president.
o Here, the SEC cannot remove members of the Board without good cause, and the
President cannot remove members of the SEC without good cause. Court held that this
two-tiered scheme went too far. In past cases approving a single layer of protection, the
Court explains, “[i]t was the President—or a subordinate he could remove at will—who
decided whether the officer’s conduct merited removal under the good-cause standard.
The Act before us does something quite different. It not only protects Board members
from removal except for good cause, but withdraws from the President any decision on
whether that good cause exists.”
Court held that the Board's appointment as a whole is consistent with the Appointments Clause
of the Constitution. They just get rid of the second layer of good cause protection.
Congress, President, Court and War
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Ex Parte Quirin (1942) (Stone)
 Quick Facts: Involves Germans that lived in the U.S. who returned apparently to sabotage the U.S.
after being trained in Berlin Spy School. Pres appointed a Military Commission that denied
certain enemy dudes access to the courts. Petitioners main contention is that President doesn’t
have statutory OR constitutional authority to order them to be tried in military court instead of
civil court.
 Court says Pres does have this authority from Article 15 of the Articles of War. Pres has power to
provide for common defense. Also, since even U.S. soldiers don’t have access to civilian courts,
why would enemy combatants?
 Significant b/c of precedent it created for present military tribunals, gives Pres a lot of authority
in conducting war. Opposition to this says that Congress expressly declared war here.
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Munaf v. Geren (2008) (Roberts)
 MNF-I detains people alleged to have committed hostile or warlike acts in Iraq and prosecutes
them in Iraqi courts under Iraqi law.
 Two questions here:
o Do U.S. Courts have jurisdiction over habeas corpus petitions filed on behalf of
American citizens challenging their detention in Iraq by the MNF-I?
o If such jurisdiction exists, may district courts exercise that jurisdiction to enjoin the
MNF-I from transferring such individuals to Iraqi custody or allowing them to be tried
before Iraqi courts?
 Court found that habeas statute did apply to US citizens being held overseas by US forces. They
did not accept the gov’t position that MNF-1 is not an US entity subject to habeas.
 However, Court found that US courts may not exercise their habeas jurisdiction to enjoin the US
from transferring people alleged to have committed crimes and detained in a foreign country to
that country for criminal prosecution. Iraq has a sovereign right to punish offenses against its
laws committed in its borders. Munaf was asking the courts to defeat Iraq's sovereign authority.
CONGRESS’ ARTICLE I POWERS AND THEIR LIMITS
o
Necessary and Proper Clause

McCulloch v. Maryland (1819) (Marshall)
 SEMINAL CASE ON SCOPE OF FEDERAL LEGISLATIVE POWER VERSUS STATE AUTHORITY!
 Quick 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.
 Marshall says there are two main questions in this case:
o
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o
1. Does Congress have the authority to create the Bank of the United States? YES, lays
out 4 reasons:
 HISTORICALPRECEDENT established the power of Congress to create the bank.
Invoked history of 1st bank as authority for constitutionality of the 2nd bank.
 Marshal refutes argument that states retain ultimate sovereignty because they
ratified the Constitution. He says the PEOPLE ratified the constitution so they
are sovereign, NOT the states.
 Third reason addressed scope of congressional powers under Article I. Famous
line that “we must never forget that it is a constitution that we are
expounding.” Point is that the Constitution is different from a statute and
should be interpreted as such. Even though Constitution does not mention
power to create a national bank, Congress can create one as a means of
carrying out its other powers. Dramatically expands congressional authority.
 Finally, he invokes Necessary and Proper Clause. Says it means that Congress
can choose any means not prohibited by Constitution to carry out it is authority.
Says since it was placed in Clause 8 rather than 9, it is meant to broaden
Congress power, not restrict.
o 2. Is the state tax on the Bank constitutional? NO
 Power to create bank implies a power to preserve it. Marshall says “power to
tax involves the power to destroy…” Thus court says no taxation allowed b/c it
would greatly impede operation of the Bank.
 Also, a state tax on Bank would essentially be a tax on monies of those in other
states. Unfair to allow a state to regulate those who have no connections with
that state…interferes with Commerce.
Important for three HUGE ideas:
o Federal government is supreme over states and states have no authority to negate
federal actions
o Court expansively defines the scope of Congress’s powers
o Court limits the ability of states to interfere with federal activities (i.e. taxing).
United States v. Comstock (2010)
 Issue is whether Congress can pass a law allowing the civil commitment of mentally ill sex
offenders after the completion of their criminal sentences.
 HOLDING  Court says yes, this is within the scope of the Necessary and Proper Clause. They
said that five considerations, taken together, allow them to say that the clause does allow
Congress to do this:
o 1. Court emphasizes that the N&P Clause grants Congress “broad authority,” requiring
only that a statute “constitute a means that is rationally related” to the implementation
of an enumerated power.
o 2. This statute constitutes a “modest addition” to a set of federal prison related mental
health statutes that have existed for many decades.
o 3. Because the federal government is a custodian of its prisoners, the Government has
“sound reasons” (and perhaps a duty) to protect the public from the dangers created by
an individual’s release from federal custody.
o 4. Properly accommodates state interests because the Attorney General is required to
encourage states to take custody of the individual, the statute does not invade or limit
state sovereignty
o 5. Law is narrow in scope, link to an enumerated power is not too attenuated.
 THOMAS DISSENT  This law cannot satisfy the Necessary and Proper Clause because it does
not execute any enumerated power. Thomas also criticized the majority’s “novel” five-factor
test: not only is the test unsupported by either the text of the Clause or the Court’s precedent,
he contends, but it also provides little guidance on how to apply it.
Classic View of Commerce Clause - to “regulate commerce with foreign nations, and among the several states,
and with the Indian tribes”
 Gibbons v. Ogden (1824) (Marshall)
 Seminal case on the COMMERCE CLAUSE!
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Quick 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 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.
Court holds that federal law wins b/c the New York monopoly was an impermissible restriction of
interstate commerce.
Marshall lays down the law when it comes to Commerce Clause interpretation….
o Commerce is more than just traffic, it is INTERCOURSE, includes all phases of business
including navigation.
o What does “among the several states” mean? “Among” means intermingled with,
Congress may regulate whenever there are interstate effects, even if the commerce is
strictly intrastate.
o State sovereignty does NOT limit commerce clause authority. When using Commerce
Clause power, Congress can regulate as if no state government existed. Sole check on
this Congressional power is the political process, not judicially enforced limits. Court
didn’t really follow this view until 1937. From 1937 to 1990, Court agreed with this view.
However, in the 1990s, Court has resumed using 10th Amendment as a limit on
Congress’s powers.
Johnson Concurrence - The fact that Congress has power to grant licenses under the Commerce
Clause precludes New York from doing the same.
Ultimately, this decision creates a very broad and expansive view of Commerce Clause power.

Wickard v. Filburn (1942) (Jackson)
 Quick 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 grew wheat mostly 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.
 Court upholds the act and rules against Filburn. They cited the cumulative effect of that wheat on
the national market. Just Filburn may not impact much but if every farmer did similar to him, it
would substantially effect wheat prices and thus interstate commerce.
 Commerce Clause interpretation is more robust when Congress has exercised a power then
when it hasn’t.
 This case marked a departure from how the Commerce Clause was interpreted between 1887 –
1937. Brought it back to a more expansive view in line with Gibbons v. Ogden.
 After this case, it was not necessary that a particular person or entity being regulated have a
substantial effect on commerce. Instead, the only requirement was that the activity, looked at
cumulatively across the country, would substantially effect commerce.

Heart of Atlanta Motel v. United States (1964) (Clark)
 Quick 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.
 Court unanimously upholds constitutionality of Title II of Civil Rights Act. Concluded that there
was overwhelming evidence that discrimination by hotels impedes interstate travel.
 Court noted that it didn’t matter that Congress’s motive was in part moral, many federal laws
had been adopted under commerce power to remedy moral wrongs.
 Didn’t matter that the motel was “of purely local character”, Court said “if it is interstate
commerce that feels the pinch, it does not matter how local the operation which applies the
squeeze.”
 As long as Congress has a rational basis for concluding that an activity affects interstate
commerce, they can invoke commerce clause power to regulate that activity.
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o
Shows again how broad Commerce Clause power is, not restricted to only economic efficiency.
Modern View of Commerce Clause

United States v. Lopez (1995) (Rehnquist)
 After going 60 years without finding a federal law unconstitutional for exceeding scope of
Commerce Clause, SCOTUS finally does so here.
 Quick Facts: Congress passed the Gun-Free School Zones Act in 1990 which made it a federal
offense “for an individual to knowingly possess a firearm at a place that the individual knows, or
has reasonable cause to believe, is in a school zone.” In 1992, 12th grader Lopez was arrested for
bringing a gun to school. 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.
 The act doesn’t regulate commercial activity not does it contain a requirement that the
possession be connected in any way w/ interstate commerce. Thus, SCOTUS holds that the Act
exceeds the authority of Congress to regulate Commerce among the several states.
 Although cases like Jones & Laughlin Steel, Darby and Wickard greatly expanded the previously
defined authority of Congress under the Commerce Clause, it’s still subject to outer limits.
 SCOTUS identifies THREE broad categories of activity that Congress may regulate under its
commerce power.
o 1. Congress may regulate the use of the channels of interstate commerce
o 2. Congress is empowered to regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even though the threat may
come only from intrastate activities.
o 3. Congress’s commerce authority includes the power to regulate those activities that
substantially affect interstate commerce.
 Court has not been clear in the past on whether the standard is “affect” or
“substantially affect”.
 They conclude here that the proper test is “substantially affects”.
 Court says 1st and 2nd categories are inapplicable. Doesn’t fall under 3rd category b/c :
o Criminal statute…nothing to do w/ commerce.
o No jurisdictional element
o No evidence of affecting interstate commerce from the legislative history.
o Worried about drawing the line between state and federal
o Education is typically state-regulated

KENNEDY’S CONCURRENCE – Having the federal gov’t take control of regulation over traditional state
concerns would blur the boundaries between state and federal authority. This resultant inability to hold
either branch answerable to the citizenry is more dangerous even than one branch having too much
power.
 The act forecloses the States from exercising their own judgment by regulating an activity
beyond the realm of commerce.
THOMAS’S CONCURRENCE – Concurs to say that case law has drifted far from the original understanding
of the Commerce Clause.
 Don’t want to extend it far enough so that Congress has a “police power.”
STEVENS’ DISSENT – Guns are articles of commerce and can be used to restrain commerce.
 Congress has an interest in eliminating the market for possession of handguns by school-age
children.
SOUTER’S DISSENT – Legislation implies a finding that this activity substantially affects interstate
commerce so that’s that.
BREYER’S DISSENT – Says it falls well within scope of Commerce Clause. Rejecting 60 years of precedent
here!!
 He applies three basic principles of Commerce Clause interpretation:
o Power to regulate commerce among the several states encompasses the power to
regulate local activities insofar as the significantly affect interstate commerce.
o Court must consider cumulative effect (effect of all guns possessed near schools) rather
than effect of an individual act (single instance of gun possession).
o Court must give Congress some leeway in determining if there’s a factual connection
between regulated activity and interstate commerce.
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United States v. Morrison (2000) (Rehnquist)
 Quick Facts: Woman raped by two men at VT, she sues pursuant to Violence Against Women Act.
Issue is whether the civil damages provision of the Act could be upheld as an exercise of
Commerce Clause power.
 Congress had found that gender motivated crime costs American economy billions and is a
substantial constraint on freedom of travel by women throughout the country.
 Court held that the act was unconstitutional and that gender-motivated activities are not
commercial or economic activity.
 Court uses the 3 categories outlined in Lopez to come to this holding.
 SCOTUS found Congress’s findings of impact on the economy to be inadequate. As in Lopez,
“simply because Congress may conclude an activity substantially affects interstate commerce
does not necessarily make it so.”
 Court says Congress was relying on “but-for” causation which if accepted as legit would allow
Congress to regulate basically any crimes.
 THOMAS’S CONCURRENCE – The very notion of a “substantial effects” test under the Commerce
Clause is inconsistent with the original understanding of Congress’s powers. Advocates an even
narrower reading of the Commerce Clause
 SOUTER’S DISSENT – This decision disturbs Commerce Clause precedent, there is a mountain of
evidence found by Congress that violence against women affects interstate commerce.
 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.
o 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.
o 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.

Gonzalez v. Raich (2005) (Stevens)
 Quick Facts: Two guys in CA want to use medical marijuana. They want 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.
 SCOTUS compares this case to Wickard (wheat farmer case). Respondents say there are three
key differences though.
o Act in Wickard exempted small farming operations
o Wickard involved a quintessential economic activity, a farm, while respondents don’t
sell marijuana
o Aggregate production of wheat had a significant impact on market prices.
 Although these differences are accurate, SCOTUS says that this does not diminish the
precedential force.
 Thus, this Act is legal under the Commerce Clause. Marijuana, when looked at cumulatively, has a
substantial effect on interstate commerce.
 SCALIA’S CONCURRENCE – Congress’s regulatory authority over intrastate activities that are not
themselves part of interstate commerce derives from the Necessary and Proper Clause.
 O’CONNOR’S DISSENT – Ruling here gives Congress a perverse incentive to legislate broadly
pursuant to the Commerce Clause
o Homegrown cultivation of marijuana has no apparent commercial character.
 THOMAS’S DISSENT – If Federal Government can regulate growing a half-dozen weed plants,
then their power as expanded by the Necessary and Proper Clause has no bounds.
 Significance: Possible tension between Morrison?
o 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.
o Did not alter the substantial effects test of Morrison
o
Taxing and Spending Powers
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o
South Dakota v. Dole (1987) (Rehnquist)
 Quick Facts: SD allows 19 year olds to buy beer containing up to 3.2% alcohol. In 1984, Congress
enacted legislation that withholds a percentage of federal highway funds otherwise allocable
from States in which people under 21 can purchase alcohol. SD is arguing that this is
unconstitutional b/c it violates limits on congressional exercise of spending power and violates
the 21st Amendment. SD argues that setting of drinking age is a core state power under section 2
of the 21st Amendment.
 Court upholds power of Congress to use conditional spending to withhold federal highway funds
from states that allow people under 21 to buy alcohol.
 The 21st Amendment, like the 10th amendment, was not a restriction on the federal
government’s power to impose conditions on federal spending programs
 Four-part test to measure the validity of a federal spending law:
o GENERAL WELFARE: The spending power should be used for the general welfare
 Reasonable here that granting money for building and maintaining highways
promotes the general welfare
o 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
 Congress has explicitly stated that states would sacrifice part of their grants if
they did not establish a 21 age limit
o 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
 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)
o 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.
 Basically, Congress can’t use their power to induce states into doing something
unconstitutional.
 O’CONNOR’S DISSENT – Says that this is an attempt to regulate the sale of liquor which lies
outside of Congress’s power to regulate commerce because it falls within section 2 of the 21st
amendment.
o In her opinion, establishment of a minimum drinking age of 21 is not sufficiently related
to interstate highway construction to justify conditioning funds in that way.
10th Amendment and Regulation of States
 Garcia v. San Antonio Metro Transit Authority (1985) (Blackmun)
 Focuses on whether application of Federal Labor Standards Act to state and local governments
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requiring minimum wage payments violates the 10th Amendment. In National League of Cities,
court ruled this was unconstitutional b/c this interfered with traditional state and local
governmental functions.
Under National League, four part test to see if state activity is immune from federal Commerce
Clause regulation:
o 1. Federal statute at issue must regulate “the States as States”
o 2. Statute must address “matters that are indisputably attributes of state sovereignty.”
o 3. State compliance w/ federal obligation must “directly impair the State’s ability to
structure integral operations in areas of traditional government function.”
o 4. Relation of state and federal interests must not be such that the nature of the federal
interest justifies state submission.
However, Court here completely scraps National League precedent and its test. Says that
determining state immunity from federal regulation based on a judicial appraisal of whether a
particular gov’t function is traditional is UNWORKABLE.
Blackmun argues for judicial restraint in enforcing 10th Amendment. Such decisions inevitably
invite an unelected judiciary to make decisions about which state policies it favors and dislikes.
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Here, there is nothing in the overtime or minimum wage requirements imposed by FLSA on
SAMTA that is destructive of state sovereignty or violates any constitutional provisions.
POWELL’S DISSENT – Says this decision reduces the 10th Amendment to meaningless rhetoric
when Congress acts pursuant to the Commerce Clause.
o Says government at the state and local levels is much better at serving the needs of the
States.
o This opinion basically authorizes federal control, under the Commerce Clause, over the
terms of conditions of employment of all federal employees.
O’CONNOR’S DISSENT – Technology has converted many local problems into national ones.
Majority’s abandonment of National League removes the barrier between state sovereignty and
Congress. The only barrier now is Congress’s “underdeveloped capacity for self-restraint.”
This case represents a very expansive reading of the Commerce Clause, favors centralized
federal government over states.

New York v. United States (1992) (O’Connor)
 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 and would be liable for all damages directly or indirectly
incurred.
 Court ruled this “take title” provision unconstitutional because it gave States a choice between
just taking the waste or regulating it according to Congress. This is impermissible because
Congress doesn’t have the power to make States do either of these things, to force them to
choose one or the other is unconstitutional.
 Constitution does not give Congress power to require the States to govern according to
Congress’s instructions.
 Framers made it so that Congress can assert legislative authority over individuals, but NOT states.
 Allowing the federal government to make states do things reduces the accountability of state
officials and insulates the people (federal guys) that are actually making the decisions that affect
the state’s citizens.
 Congress could’ve achieved their goal in other ways though:
o Attach conditions to the receipt of federal funds (as in South Dakota case)
o
o Regulate waste themselves rather then forcing states to do it
 This opinion basically rejects the idea that a compelling government interest is enough to permit
a law that would otherwise violate the 10th amendment. Basically, federal government can’t
make states do stuff

Printz v. United States (1997)(Scalia)
 Issue is whether certain interim provisions of the Brady Handgun Violence Prevention Act,
commanding state and local law enforcement officers to conduct background checks on
prospective handgun purchasers and to perform certain related tasks, violate the Constitution.
 Court says it does violate the constitution; Congress has no authority to control the activities of
state legislature or of executive legislative officials. Basically reaffirms New York case.
 Scalia says this violates separation of powers. 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.
 Power of the President is reduced when Congress can act as effectively without him just by
requiring state officers to execute its laws.
 STEVENS DISSENT
o “When Congress exercises the powers delegated to it by the Constitution, it may impose
affirmative obligations on executive and judicial officers of state and local governments
as well as ordinary citizens. This conclusion is firmly supported by the text of the
Constitution…”
o
11th Amendment and State Sovereign Immunity

Seminole Tribe of Florida v. Florida (1996) (Rehnquist)
 The Indian Gaming Regulatory Act imposes upon the states a duty to negotiate with Indian tribes
in good faith about forming a compact, otherwise a tribe may bring suit against the State in
federal court to compel them to do that duty.
 SCOTUS holds here that Congress does not have the power to do this and can’t grant
jurisdiction over a State that does not consent to be sued.
 In order to determine if Congress did so abrogate the State’s sovereign immunity, Court asks two
questions:
o Has Congress unequivocally expressed its intent to abrogate the immunity?
 Court says yes, Congress, in the Act, provided an unmistakably clear statement
of its intent to abrogate.
 There are only two constitutional provisions that allow abrogation
 Section 5 of the 14th Amendment allowed Congress to abrogate the
immunity from suit guaranteed by the 11th.
 In only one case (PA v. Union Gas Co.), court found that Interstate
Commerce Clause granted Congress power to abrogate.
o Whether Congress has acted pursuant to a valid exercise of power?
 Court says that Union Gas decision was a solitary departure from established law. They thus
decide to overrule it.
 Say that 11th Amendment restricts the judicial power under Article III, and Article I cannot be
used to circumvent the Constitutional limitations placed upon the federal jurisdiction.
 STEVENS’S DISSENT – Majority decision prevents Congress from providing a federal forum got a
broad range of actions against States.
 SOUTER’S DISSENT – Court today holds for the first time that Congress has no authority to
subject a State to the jurisdiction of a federal court at the behest of an individual asserting a
federal right.
o Separates the issue into 3 questions (see mid pg. 310)
o History of 11th Amendment shows that it reaches only to suits subject to federal
jurisdiction exclusively under the Citizen-State Diversity Clauses.
o Given the Framer’s concerns about curbing abuse by state governments, its odd that
they would leave the Federal Government powerless to render the states judicially
accountable for violations of Federal rights.
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Alden v. Maine (1999)(Kennedy)
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Petitioners alleged in state court that Maine had violated the overtime provisions of the FLSA.
 Court holds that state governments cannot be sued in state courts without their consent.
 This is not even an 11th Amendment issue, sovereign immunity principles mean that Congress has
no authority under Article I to force a state to be sued in its own court system.
 Court first looks to original understanding of the Constitution. They find that there is nothing on
record that speaks to this issue. Thus, they conclude that the State’s right to sovereign immunity
in their own state courts is so well established that they didn’t even need to discuss it.
 SOUTER DISSENT – No evidence that framers intended states to have immunity in state courts.
 Significance – Congress can’t subject states to PRIVATE suits in STATE court even when the issue
is federal. However, this does NOT give states the right to disregard the Constitution or other
federal laws. Sovereign immunity does no prevent the federal government itself from suing a
state. Types of suits NOT affected by Alden:
o Suits v. states alleging violations of US Constitution
o Suits v. state by federal government
o Suits v. state where immunity waived
o Suits v. cities and counties
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Federal Maritime Commission v. South Carolina State Ports Authority (2002) (Thomas)
 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.
 Case basically says that states CANNOT be named as defendants in federal administrative agency
proceedings.
 Such actions are barred by sovereign immunity.
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Relies on conclusion in Alden that sovereign immunity is broader than just 11th Amendment.
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
FEDERALISM’S LIMITS ON THE STATES
o
Article I Limitations on States
 Home Building & Loan Ass’n v. Blaisdell (1934) (Hughes)
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Case involves the validity of the Minnesota Mortgage Moratorium Law. State was concerned that
Depression would cause people to lose their homes due to foreclosures so they acted to prevent
foreclosures. Thus they created a moratorium on foreclosures of mortgages from 1933 to 1935.
Appellant is alleging that this violates the Contracts Clause and the due process and equal
protection clauses of the 14th Amendment.
SCOTUS upholds the Minnesota law and dismisses framers intent for Contracts Clause argument
as irrelevant. Says “emergency does not create power” but where constitutional grants and
limitations of power are set forth in general clauses, Court is left to fill in the details as here w/
Contracts Clause.
VERY FUNCTIONALIST HOLDING!
Court says Constitution is a living document, quotes Marshall’s in McCullough, “We must never
forget, that it is a constitution we are expounding.” This legislation was enacted not for the
benefit of specific individuals but to protect a basic interest of society and is temporary.
SUTHERLAND’S DISSENT
o Is concerned more with the precedent this case sets, says that it creates dangerous
inroads in the Constitution.
o Says that the Minnesota statute either impairs the obligation of contracts or does not.
He reasons that it does b/c it postpones the time period of repayment which is a
material and injurious change in the obligation.
U.S. Term Limits v. Thornton (1995) (Stevens)
 Case involves whether an Arkansas State Constitution amendment (amendment 73) that
prohibits the names of candidates who have already served 3 terms in the House or 2 terms from
appearing on the election ballot is constitutional.
 SCOTUS agrees with the Arkansas Supreme Court that this is unconstitutional. This goes against
the fundamental principle that people should choose whom they please to govern them.
 Makes several arguments:
 Textual arguments There can be no additional qualifications added to those
already provided for in Article I, dealing with age, citizenship, and residency
 Structure: not put with Article I powers
o Kennedy concurrence: split the atom of sovereignty—if we
allow this, this undermines the federal system
 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
 Policy: direct relationship with people and federal government, term limits
undermines this
 Precedent with the Powell case: people should choose who they want to
govern—going to democratic principles
 Precedent: In Powell v. McCormack, Court held that the House did not have power to set
qualifications for its own members other than those listed in the Constitution.
o Opinion emphasized two things:
 Egalitarian concept that opportunity to be elected be open to all
 Sovereignty is vested in the people, not States, and confers on them the right
to choose freely their Federal representatives.
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o
Petitioners make a 10th Amendment argument here saying that even if Congress doesn’t, the
States have power to impose additional qualifications.
o Court disagrees for two reasons:
 Power to add qualifications is not within the original powers of the states and
thus is not reserved to the states under the 10th Amendment.
 Even if states had some power here, Framers intended for Constitution to be
the exclusive source of qualifications for members of Congress and thus any
State power is divested.
Allowing individual states to come up w/ different qualifications would result in a patchwork of
qualifications among the states, thus undermining consistency that Framers wanted.
Any term limits should be enforced through a Constitutional Amendment.
KENNEDY’S CONCURRENCE
o Government must be controlled without collateral interference by the States.
o Nothing in the Constitution supports the idea of state interference with the selection of
reps.
THOMAS’S DISSENT
o Nothing in the Constitution deprives people of a State the power to prescribe eligibility
requirements; it is simply silent on this issue. This silence should not be construed as a
bar to action by Arkansas.
o Where the Constitution is silent about the exercise of a particular power, the Federal
Government lacks that power and the States have it.
o The 10th Amendment refers to people of the State, not people of the Nation.
o Just because we haven’t had this limitation for 200 years doesn’t mean it’s not a good
idea.
Federal Preemption of State Law
Tushnet Continuum:
• Always preemption
• Presumption for
• Neutrality
• Presumption against
• No preemption
Always
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Pre+
Neutral
Pre-
Not Preempt
Geier v. American Honda Motor Company (2000) (Breyer)
 Issue is whether the National Traffic and Motor Vehicle Safety Act pre-empts a state common
law tort action in which the plaintiff claims that Honda, who’s defense was that it complied with
the federal standard, should nonetheless have equipped a 1987 automobile with airbags.
 SCOTUS finds that there is federal preemption here. Main reasons:
o 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
o 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
o Any D.C. law that would have imposed a duty to install airbags would have stood as an
obstacle to the federal Act which means that it would be preempted.
 There is no express intent to preempt here but Court basically extrapolates that this Act is
neutral on the scale (see class 15 slide 8).
 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 the
need for judicial interpretation of savings clauses and judicial determination of whether there
really is a conflict between federal and state law.
 Strong ruling because an agency regulation is allowed to preempt state law.
 STEVENS’S DISSENT
o
o
o
o
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The purpose of the Act would not be frustrated by allowing state courts to determine
whether in 1987, the life-saving advantages of airbags had become obvious enough that
their omission would be a design defect.
Act does not contain any expression of intent to displace state law.
There is a presumption against pre-emption rooted in the concept of federalism.
Secretary should’ve put his pre-emptive position through formal notice-and-comment
procedure.
American Insurance Company v. Garamendi (2003) (Souter)
 Issue is whether California’s Holocaust Victim Insurance Relief Act of 1999 requiring any insurer
to disclose information about policies sold in Europe between 1920 and 1945 interferes with the
Federal Government’s conduct of foreign relations.
 SCOTUS holds that it does, thus the state statute is pre-empted. Based the decision on the
“implied dormant foreign affairs power of the President.”
 In exchange for Germany creating a voluntary compensation fund for Holocaust claims, Clinton
agreed to make that foundation fund the exclusive forum and remedy for the resolution of all
claims against German companies relating to the Holocaust. He also promised to use his best
efforts to get state and local governments to respect the foundation as the exclusive mechanism.
 Principle argument for preemption is that HVIRA interferes w/ foreign policy of the Executive
Branch. President’s control of foreign relations includes the settlement of claims, this is
indisputable. HVIRA threatens to frustrate the operation of this particular mechanism that the
President has chosen.
 Because of the President’s authority on foreign policy and national security, Congressional
silence does NOT mean disapproval.
 Majority relies on Zchernig case: State law is invalidated when its “an intrusion by the State into
the field of foreign affairs which the Constitution entrusts to the President and the Congress.”
 GINSBURG’S DISSENT
o No clear statement so California law should be left intact.
o None of the agreements that the President made mention HVIRA’s main concern of
public disclosure.
JUDICIAL PROTECTION OF INTERSTATE COMMERCE
o
Dormant Commerce Clause

Willson v. The Black Bird Creek Marsh Company (1829) (Marshall)
 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
 Opinion: The act empowering the Black Bird Creek Marsh Company constructing the dam cannot
be considered repugnant to DCC power.
o Property and health interests justify the dam—dam is not a regulation of interstate
commerce
o 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
o 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
 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

Philadelphia v. New Jersey (1978)(Stewart)
 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
 SCOTUS holds that this IS a violation of the Commerce Clause.
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Crucial inquiry is whether this is just a protectionist measure or a law directed at legitimate local
concerns w/ the effect on interstate commerce being only incidental.
Where a state law involves “simple economic protectionism,” there is “a virtually per se rule of
invalidity”
Court holds that this law discriminates against articles of Commerce coming from outside the
State. This is illegitimate because it isolates the state from the national economy.
Court says this statute is NOT a quarantine law because the very movement of waste does not
endanger health in New Jersey, once it’s dumped, there’s not difference between the wastes.
Commerce clause protection: what if NJ wants to send its waste to other states and close their
borders?
o 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
Court ultimately holds that the legislative effort by NJ to block the importation of certain waste
and thus saddle other states with it is impermissible under the Commerce Clause.
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
Court seems to be saying: If there is discrimination, we strike it down unless there is a
countervailing state interest
DISSENT basically says that quarantine laws are applicable here. They see no reason to
distinguish solid waste from diseased meat or other noxious items.

Granholm v. Heald (2005) (Kennedy)
 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 instate 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).
 Court says these laws are unconstitutional; this is exactly the time of protectionist legislature
that clearly violates the Dormant Commerce Clause.
 Court says this type of discrimination is not saved by the 21st Amendment. Petitioner argued that
these statutes are justified b/c they help keep alcohol out of the hands of minors. Court rejects
this saying that minors are just as likely to buy wine from in-state vs. out-of-state producers.
 Court says that they have always held that state laws that violate other provisions of the
Constitution are not saved by the 21st Amendment.
 State has the burden to show that the discrimination is justified, they don’t fulfill that here.

Kassel v. Consolidated Freightways (1981) (Powell)
 Iowa has a statute that restricts the length of vehicles that are used on its highways. Unlike all
the other states around it, Iowa generally prohibits the use of 65-foot doubles within its borders
and restricts trucking companies to 55-feet combinations. Because of this, Consolidated
Freightways has to go around Iowa or separate their trucks. As a result, Consolidated filed suit
claiming 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).
 Opinion: The Iowa truck-length limitations unconstitutionally burden interstate commerce
Purpose of promoting the public health or safety does not insulate a state law from Commerce
Clause attack. Court goes into Benefits and Burdens Analysis:
o 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
o Exporting death to other states
o 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
o Inefficient—people operating a national business can’t do efficient business
 Brennan and Marshall Concurrence: CC challenges to state regulations must take into account 3
principles:
o
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o
Courts are not empowered to second-guess the empirical judgments of lawmakers
concerning the utility of legislation
o The burdens imposed on commerce must be balanced against the local benefits actually
sought to be achieved by the State’s lawmakers
o Protectionist legislation is unconstitutional under the Commerce Clause, even if the
burdens and benefits are related to safety rather than economics (fails under #3)
 Dissents because he sees the focus of the court as being the regulatory
purpose—not whether the intended purpose of the law was performed
Significance: Court taking on a legislative-like role: Making discretionary, non-principled decisions
that the legislature does; doctrine is balancing test but the court has not used it since 1978
o Facially discriminatory statute  functionally discriminatory and unconstitutional
o Not facially discriminatory look to balancing test (though the Court has not used this
since 1978)
Market Participant Exception

South-Central Timber Development v. Wunnicke (1984) (White)
 Facts: Alaska law required purchasers of state-owned timber to have timber processed in Alaska
before it is shipped out of state.
 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
o 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
 The limit of the Market Participant 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.
o 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
 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. Note: doctrine developed that says a state can’t hoard natural resources.

United Haulers v. Oneida-Herkimer Solid Waste Management Authority (2007) (Roberts)
 The plaintiff, a not-for-profit corporation comprised of solid waste management companies, sued
the New York counties of Oneida and Herkimer, 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, a municipal corporation. The Plaintiff
argued that these ordinances burden interstate commerce by requiring garbage delivery to an instate facility, as this restriction necessarily prevents the use of facilities outside the two counties
and diminishes the interstate trade in waste and waste disposal services.
 Opinion: No discrimination because it treats in-state and out-of-state facilities the same—
everyone is on the same playing field
o 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
o 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
o 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."
 The majority declined to "rigorously scrutinize" the economic effects of the
ordinance, preferring to leave the policy analysis to local government.
o
o
o
o
Scalia Dissent: Scalia and Thomas believe that the judiciary should never employ a
balancing test in DCC analysis
Significance:
 If in favor of a single monopoly (publicly-owned), then the case will be nondiscriminatory and gets lenient treatment on DCC analysis
 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:
 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.”
If you look at both of these cases, Oneida doesn’t overrule Carbone
State Privileges and Immunities
 United Building v. City of Camden (1984)(Rehnquist)
 Camden, NJ has an ordinance requiring that at least 40% of the employees of contractors and
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sub-contractors working on city construction projects be Camden residents. United Building
claims that this is a violation of the Privileges and Immunities Claus e. Response is that 1) clause
only applies to laws passed by a State, 2) clause only applies to laws that discriminate on the
basis of citizenship.
SCOTUS says that this does fall under P&I Clause because employment on public works projects is
sufficiently fundamental to the promotion of interstate harmony.
o Distinguished private sector employment funded through governmental contracts from
full time employment in the private sector
o 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
o 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
 Then, the state MAY treat them differently from local residents
 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
Two-step Inquiry:
o Does the ordinance burden “one of those privileges and immunities protected by the
clause”?
 Court says yes here, the opportunity to seek employment with private
employers is “sufficiently basic to the livelihood of the Nation” as to fall within
the purview of the P&I Clause.
o If so, is there a “substantial reason” for the discrimination, and does the degree of
discrimination bear a close relation to that reason?
 Camden says the ordinance is necessary to counteract grace economic and
social ills; they want to reduce unemployment and prevent “middle-class flight”.
 Non-Camden workers basically leech off the city.
 Court chooses not to evaluate Camden’s justification and instead remands to
the NJ Supreme Court and leaves to them to figure out the best method for
making the necessary findings.
Significance: The market participant theory does not automatically excuse the need for an
inquiry under the Privileges and Immunities Clause of Article IV.
Basic rule: State may discriminate against outsider with regard to constitutional right or earning
livelihood only if “substantial reason” and discrimination bears “close relation” to that reason.
RECONSTRUCTION OF FEDERAL-STATE RELATIONS
o
Origins of Reconstruction Amendments
 Dred Scott v. Sandford (1856) (Taney)
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Dred Scott was a slave owned by a Missouri citizen, he was taken into Illinois, a free state. After
his master died, Scott sued the administrator of his estate saying that his residence in Illinois had
made him a free person.
Court rules against Dred Scott. They say that black slaves are not citizens and were never
intended by the writers of the Declaration of Independence and Constitution to be citizens.
Since they are not citizens, they cannot sue as citizens in federal court.
Court further declared the Missouri Compromise unconstitutional. They said that Congress
couldn’t just grant citizenship to slaves, this is a taking of property from slave owners without
due process or just compensation.
Dissent basically says that the majority’s theory is not grounded in logic or historical precedent.
This case sparked OUTRAGE and was a leading cause of the CIVIL WAR.
14th Amendment and State Action
 The Civil Rights Cases (1883) (Bradley)
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Civil Rights Act of 1875 broadly prohibited racial discrimination by hotels, restaurants,
transportation, etc;. These five cases were brought against individuals and railroads who had
violated this law.
Court rules that the Act is unconstitutional. Congress lacked authority under the 14th Amendment
to do this. Court broadly declares that 14th Amendment only applies to government action and
that therefore Congress can’t use it to regulate private behavior. This discrimination does not
involve state action, it’s private citizens that are discriminating.
Thus, section 1 of 14th Amendment ONLY applies to state and local government action, not
private conduct. This is still good law!
Addressing 13th Amendment/slavery concerns, Court says that it protects people from being or
owning slaves but it’s limited to only this. Congress can’t use this power to eliminate
discrimination, that would “run the slavery argument into the ground” to have it apply to every
single act of discrimination. This argument however has been overruled.
HARLAN DISSENT – Says the opinion is too narrow in regards to interpreting the 14 th
Amendment. Says this type of discrimination is a “badge of servitude” and Congress is proper in
remedying this. Says that state is not really neutral in regards to the discrimination by railroads
and other businesses.

Shelley v. Kraemer (1948) (Vinson)
 Main issue is whether courts could enforce contracts where members of a neighborhood agreed
not to sell their property to blacks.
 Two issues:
o Are these racially discriminatory covenants legal under 14th Amendment?
o If so, can they be enforced by the courts?
 Court says these covenants are legal because they are agreements among private individuals,
there is no state action involved.
 HOWEVER, when you ask judges to enforce these covenants, THAT constitutes state action.
Judges are held to be part of the State. They would be facilitating discrimination by enforcing
these covenants, THAT is not allowed under the 14th Amendment.
 This case is controversial because its reasoning makes it so that basically anything can be a state
action. All private violations of rights exist because state law allows them. It’s hard to think of
anything that cannot be transformed into state action under this reasoning.

Edmonson v. Leesville Concrete Company (1991) (Kennedy)
 During jury selection, Leesville used 2 of its 3 challenges to remove black people from the jury
pool. Edmonson, who is black, said that the courts should require Leesville to come up with raceneutral justifications for doing this. District court denied this and the jury ended up being 11
white people and 1 black.
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o
Precedent: In Batson v. Kentucky, SCOTUS held that equal protection prohibits prosecutors (part
of the State!) from using preemptory challenges in a discriminatory fashion in criminal cases.
Court here extends this precedent to civil cases between two private parties. They use the Luger
two-part test as part of their analysis:
o 1. Is the right being exercised created by the State or is the exerciser a person the State
is responsible for?
 Yes, state and federal laws authorize preemptory challenges.
o 2. Is the party being charged with depriving rights a state actor?
 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. This outweighs the fact that the
litigants are both private.
As a result, Court holds that discriminatory use of preemptory challenges denies equal protection
even if done by private litigants.
O’CONNOR DISSENT – When there are two private litigants, there is no state action and due
process concerns are not implicated.
SCALIA DISSENT – Think about minority defendants who don’t want as many white people on a
jury. Does that count as discrimination?
Deshaney v. Winnebago County Dept. of Social Services (1989) (Rehnquist)
 Awful facts….Joshua, a 4-year old, was beaten such that he was permanently brain damaged by
his father. Social Services had visited a few times but did not remove Joshua from his dad’s care.
Services knew that Joshua was admitted to the hospital for bruises and that he was being abused.
Joshua’s mother sued Social Services on his behalf saying that they deprived him of due process
in violation of the 14th Amendment.
 Court rules for Social Services, holds that there was no constitutional violation because the child
was not in the custody of the government and because the abuse occurred at the hands of a
private party.
 Due Process Clause interpretation: 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
 Court specifies only two narrow situations where the government has a duty to provide
protection from privately inflicted harms:
o 1. Government has limited the ability of a person to protect him or herself, i.e.
incarceration or institutionalization.
o 2. There’s 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.
 DPC does not turn every tort committed by a state official into a constitutional violation.
 This case reflects a deeply entrenched belief that the Constitution is a charter of negative
liberties, it restrains the government.
 BLACKMUN DISSENT – Accused the majority of gross insensitivity and of resorting to “formalistic
reasoning” in drawing an artificial distinction between action and inaction. Compared court's
ruling to Dred Scott, saying that in both cases SC upheld an injustice by choosing a restrictive
interpretation of the constitution and then denying that choice.
 BRENNAN DISSENT - WI child-protection laws created a regime in which private citizens and
government bodies other than a DSS had no power or role to intervene with child abuse other
than notifying the DSS. As such, the child-protection laws constituted the same custodial
"deprivation of liberty" that Rehnquist's opinion held necessary for a Due Process violation.
Federal Privileges or Immunities
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Slaughter-House Cases (1873)
 Butchers challenged Louisiana law that granted a private company a 25-year monopoly in the
slaughterhouse business. Alleged that it violated P & I Clause, equal protection clause and due
process clause.
 Court narrowly interprets all three of these clauses, says none apply here.
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Says PI Clause does not restrict police powers of the State. PI Clause only relates to US Citizenship,
not state citizenship.
Says EP clause was only meant to protect blacks. This is overruled by other cases.
Says Due Process does not protect one’s right to practice their trade. This is also overruled by
other cases.
However, the very narrow interpretation of the P & I Clause here has never been overruled.
Court held that it was NOT meant to protect individuals from state government actions and was
not meant as a basis for federal courts to invalidate state laws.
P&I Clause is removed as a basis for applying the Bill of Rights to the states or for protecting any
rights from state interference.
This decision basically rendered the P&I Clause a nullity.
What this does is broaden the scope of the other 2 clauses in the 14th Amendment, Due Process
and Equal Protection.
Saenz v. Roe (1999)
 CA law restricted the welfare benefits of new residents to the level of the state they had moved
from for one year.
 Stevens says that the right to travel is a fundamental right. One aspect of this is the right of new
citizens to be treated the same as longer term residents of a state. Specifically says this aspect is
protected by P&I Clause.
 Rehnquist and Thomas dissent both disagreeing with this resurrection of the P&I Clause. Thomas
says that majority is injecting a meaning in to the clause that wasn’t there when it was enacted.
 Significance  Resurrects the P&I Clause, applies it for the first time since Slaughterhouse Cases
basically killed it.
DUE PROCESS, PROCEDURAL AND SUBSTANTIVE
o
Procedural Due Process
 Cleveland Board of Education v. Loudermill (1985)
 Loudermill is fired for lying about a felony. He was fired and not given an opportunity to defend
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himself. State law in Ohio provided that employees were only entitled to post-termination
review.
Loudermill says he has a property right in continued employment. Court agrees, says if the
expectation of the continued benefit is strong enough, you get a property right.
When there is a property interest, the Constitution and not state law determines what process is
due. Falls under “life, liberty or property”
Here, due process is satisfied if there is a pre-termination and post-termination hearing.
Applying the Matthews Test:
o Continued employment by the government is a significant interest for the individual
o Informal pre-termination proceeding was essential to avoid erroneous terminations
o 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 pretermination proceeding
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
Mathews v. Eldridge (1976)
 Eldridge’s disability benefits were discontinued by the Secretary of Health, Education and
Welfare. He sued contesting the constitutional validity of the administrative procedure for
determining whether there’s a continuing disability.
 Court lays out a Balancing Test:
o Importance of the Interest to the Individual
 The greater the interest, the more procedural safeguards the Court will require.
 Here, people who don’t get Social Security benefits can still get welfare.
o Ability of Additional Procedures to Increase the Accuracy of Fact-Finding
 The more the Court believes additional procedures will lead to better, more
accurate decisions, the more likely it is to require them.
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o
o
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o
Here, potential value of a hearing is not very high, most of the decision making
is based on physician medical reports.
Burdens Imposed on the Government by Requiring the Procedures
 More expensive the procedures, the less likely the Court is to require them.
 Here, high burden on government if required to give hearing every time
benefits are terminated.
Therefore, only need a post-termination hearing when SS benefits are terminated.
Hamdi v. Rumsfeld (2004)
 Hamdi was a US citizen apprehended in Afghanistan and brought to Gitmo. He was moved to
South Carolina but just held there and never charged w/ a crime. He says his detention violates
Non-Detention Act but Government contends that President can detain enemy combatants
without any form of due process.
 Court applies Mathews Test here. Says that a US citizen, apprehended in a foreign country,
cannot be held without due process even if held to be an enemy combatant.
 Imprisonment is a deprivation of liberty, need due process.
 At balance here is the risk of erroneous deprivation of a citizen’s liberty and an unchecked
system of detention against government interest in ensuring that enemy combatants do not
return to war against the US.
Substantive Due Process

Pierce v. Society of the Sisters (1925)
 Oregon law required all children to attend public school. There used to be an exception for
private schools but this was repealed. Private schools sued saying this was unconstitutional.
 Court agrees that this is unconstitutional, there is a fundamental right in controlling the
upbringing of your child. The Oregon statute violates Due Process.
 “The child is not the mere creature of the state”
 Liberal interpretation of DPC here.
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Lochner v. New York (1905)
 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
 Holding  Court uses substantive due process to strike down this statute, holds that it interferes
with freedom of contract and does not serve a valid police purpose.
 Court has THREE main reasons for their holding:
o 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
 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
o Government could interfere with freedom of contract only to serve a valid police
purpose—protect the public safety, public health, or public morals
 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
 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)
 If the Court allowed this, then the hours of all different kinds of
employers could be regulated: doctors, lawyers, scientists, etc
o 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
 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



o
labor which may seem to him appropriate or necessary for the support of
himself and his family?
 Limited hours of work for bakers have no relationship to public health:
limit of police power has been met and reached
 Even if there is a police purpose, it may only infringe rights if necessary to
achieve that purpose.
Therefore, Court concludes that limit of police power has been reached and that this is an illegal
interference with the rights of individuals.
Dissents:
o Holmes dissent: this is a court of law, not a court of economic theory
o Harlan dissent: need for judicial deference for legislative choices—legislation was a
reasonable way to protect dangers that bakers faced
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.

West Coast Hotel Co. v. Parrish (1937)
 Washington law required minimum wage for female employees. Female maid sues West Coast
Hotel for violating this law.
 Holding  Court upholds the WA state law. Hughes makes it clear that the Court is abandoning
the principles in Lochner. Say the Constitution does not speak of freedom of contract. It speaks of
liberty and prohibits deprivation of liberty without due process.
 Court declares that it would no longer protect freedom of contract as a fundamental right and
that the government could regulate to serve any legitimate purpose and the judiciary would
defer to the legislature as long as its choices are reasonable.
 Since this case, not one state or federal economic regulation has been found as unconstitutional
as infringing liberty of contracts as protected by DPC.
 Court adopted a VERY deferential standard regarding choices made by legislatures.

State Farm v. Campbell (2003)
 State Farm had guaranteed Campbell that their assets would be safe if they went to trial.
However, court found that Campbell was 100% liable. Campbell ten sued State Farm saying they
acted in bad faith. Jury awarded Campbell $145 million in punitive damages.
 Holding  Court says Due Process Clause inhibits the handing out of excessive punitive damages.
Kennedy applied BMW v. Gore test.
 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
 Also a federalism issue here, jury was wrong for punishing State Farm for its conduct outside the
forum state, Utah.
 Stevens says ratio of damages should be limited to single digits.
 Argument for these punitive damages  Purpose of punitive is to punish and prevent future
occurrences; State Farm is so wealthy that you need this large sum to deter them from doing this
again.
 This case may be a partial rebirth of Substantive Due Process.
 Philip Morris Case  Court agrees that it’s wrong to issue punitive damages for harm to
nonparties. Dissent said that conduct that risks harm to many is likely more reprehensible than
conduct that risks harm to only a few.
 Exxon v. Baker  Court holds that in maritime cases, a 1:1 ratio between compensatory and
punitive damages is appropriate.
Personal Rights

Three views of Due Process
 Due process incorporates the first 8 amendments (Black’s view) -> Textualist Argument
 Due Process incorporates “fundamental” rights (Harlan, Cardozo, etc;)


Due Process incorporates NOTHING (Thomas’s view)
Buck v. Bell (1927)
 Deals w/ eugenics, Virginia passed an act that said the health of the patient and welfare of
society may be promoted in some cases by the sterilization of mental defectives.
Superintendents of state mental colonies can have sterilization operations performed if deemed
prudent.
 Court says that this is ok.
o They cannot say as a matter of law that the grounds do not exist for this and if they exist
then they justify this result.
o They compare this principle to that of compulsory vaccinations, say that its broad
enough to cover the cutting of Fallopian tubes.
 Court basically holds that the right to reproduce is not part of substantive due process.

McDonald v. Chicago (2010)
o Main question is if the 2nd Amendment applies to the states because it is incorporated by the 14th
Amendment's Privileges and Immunities or Due Process clauses.
o HOLDING  Court says that yes, the 2nd Amendment is applicable to the states because the right of
an individual to “keep and bear arms” is incorporated into the Due Process Clause of the 14th
Amendment.
o Court reasoned that rights that are "fundamental to the Nation's scheme of ordered liberty" or that
are "deeply rooted in this Nation's history and tradition" are appropriately applied to the states
through the Fourteenth Amendment.
o THOMAS CONCURRENCE  He says that this right is better incorporated into the Privileges and
Immunities Clause. This would basically overrule the Slaughterhouse Cases.
o STEVENS DISSENT  Owning a personal firearm was not a "liberty" interest protected by the Due
Process Clause., thus there should not be incorporation.
o BREYER DISSENT  There is nothing in the Second Amendment's "text, history, or underlying
rationale" that characterizes it as a "fundamental right" warranting incorporation through the
Fourteenth Amendment.

Griswold v. Connecticut (1965)
o Griswold is a doctor at the Planned Parenthood League of CT, he gives instructions and advice on
preventing contraception. They also prescribe women the best contraceptive device to use. However,
a CT statute states that people who use contraceptives or aid those who use them are to be fined.
Griswold was fined $100 for violating this statute.
o Court says this issue involves privacy and goes through how it is an implied right in the penumbra of
the 1st, 3rd, 4th and 5th Amendments.
o CT statute thus violated this right to privacy by prohibiting married coupled from using contraceptives.
o Court cites principle from NAACP v. Alabama that “governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms.”
o GOLDBERG CONCURRENCE – Basically says that the 9th Amendment is key here. To hold that a right
as basic as right to privacy in marriage may be infringed upon is to ignore the 9 th Amendment and
give it no effect at all. The purpose of the 9th Amendment is to ensure these types of rights that
weren’t guaranteed in the first 8 amendments but are still fundamental personal rights.
o ***HARLAN CONCURRENCE*** – Says that while the inquiry may be aided by resorting to the Bill of
Rights, it is not dependent on it and that this case can be decided on just the Due Process Clause of
the 14th Amendment.
 Says the proper question is whether the CT statute infringes Due Process Clause because the
enactment violates basic values “implicit in the concept of ordered liberty.”
 Right to privacy falls under liberty of Due Process Clause
 Precise issue is that the State is asserting the right to enforce its moral judgment by
intruding upon the most intimate details of the marital relation with the full power of
criminal law.
o WHITE CONCURRENCE – Cites precedent to say that there is a realm of family life which the state
cannot enter without substantial justification.

o
o

Says that CT’s only justification for this statute is that it serves State policy against
promiscuity. However, he says its difficult to see how a ban on married people using this
contributes to this policy.
 Says that there is nothing that justifies the broad scope of this state and thus it deprives
people of liberty w/out due process of law….14th Amendment…
BLACK DISSENT – Say there is no constitutional right to privacy. Courts fail to stick to the simple
language of the Constitution and end up with these broad interpretations.
 Says that the Court can’t initiate change by reading the Constitution broadly to come up with
justifications for their actions. Constitution makers knew the need for change why there are
amendments.
STEWART DISSENT – Like Black, finds no right to privacy in the Constitution. Says the way the court
rules here is incorrect, they have no Constitutional basis. The Constitutional way to take this law of
the books is for citizens of CT to persuade their reps to repeal it.
Roe v. Wade (1973)
 Roe, a single woman in Texas, sought a declaratory judgment that the Texas criminal abortion statutes
were unconstitutional on their face and an injunction restraining Wade from enforcing the statute.
 She was unable to get a legal abortion because her life was not threatened by continuing her pregnancy.
Thus she sued claiming that the Texas statutes were unconstitutionally vague and violated her right of
personal privacy under the 1st, 4th, 5th, 9th and 14th Amendments.
 Roe’s main argument is that the Texas statutes improperly invade a right, said to be possessed by the
pregnant women, to choose to terminate her pregnancy.
 Court looks at history of abortion and says that at the time of adoption of Constitution and through much
of the 19th Century, abortion was viewed with less disfavor than under most current American statutes.
 Three reasons to explain the enactment of criminal abortion laws and to justify their continued existence:
o 1. These laws were the product of Victorian social concern to discourage illicit sexual conduct.
o 2. Concern with abortion as a medical procedure. When these laws were enacted, these
procedures were risky and dangerous. In modern times however, these concerns are mostly nonexistent. However, state still has an interest in protecting women’s health and safety in a late
stage abortion.
o 3. State’s interest in protecting prenatal life.
 Court uses STRICT SCRUTINY here.
 Court says there is a constitutional right of privacy for fundamental personal rights. They hold that this
right of privacy is broad enough to encompass a woman’s decision whether or not to terminate her
pregnancy.
 However, court says the privacy right is not absolute, must be considered against important state
interests in regulation.
 Court considers the definition of “person” in the Constitution and determines that every use of the word
suggests a postnatal application. They conclude that the word person as used in the 14th Amendment
does not include the unborn.
 However, there is some point during the pregnancy at which the State has a legitimate interest in invading
the mother’s privacy right. There are two separate interests here:
o State interest in the health of the mother
 Court holds that the “compelling” point for this is at around the end of the first
trimester.
o State interest in potential life
 “Compelling” point is at viability.
 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
o Divided pregnancy into TRIMESTER FRAMEWORK (how Blackmun got around issue of whether
fetus = life)
 First trimester: government could not prohibit abortions and could regulate it only as it
regulated other medical procedures
 Second trimester: government cannot outlaw abortions but the government may
regulate it in ways reasonably related to maternal health
 Third trimester: government may prohibit abortions except if necessary to preserve the
life or health of the mother for the stage subsequent to viability


REHNQUIST DISSENT- Says an abortion is not really “private” as defined in the Constitution. Court’s
judgment is more legislative than judicial.
Planned Parenthood v. Casey (1992)
o Issue is with PA Abortion Control Act of 1982.
o Court says the reaffirm the 3 main holdings of Roe:
 Recognition of right of woman to choose to have an abortion before viability and to obtain it without
undue interference from the state
 Confirmation of the state’s power to restrict abortions after fetal viability
 State has legitimate interests from the outset of the pregnancy in protecting the health of the woman
and the life of the fetus.
o Like in Roe, they draw the line at viability. They cite two reasons:
 1. Stare decisis
 2. The concept of viability is that it’s a time where there is a realistic possibility of maintaining and
nourishing a life outside the womb such that
o Court rejects the trimester framework because it misconceives the nature of the pregnant woman’s interest
and undervalues the State’s interest in potential life.
o Say that undue burden standard is the appropriate means of reconciling the State’s interest with the woman’s
constitutionally protected liberty.
o Court then turns to the PA statutes in question:
 Medical emergency – Court holds that the definition of “medical emergency” imposes no undue
burden on a woman’s abortion right
 Informed Consent Requirement – At least 24 hours before performing the abortion, a physician must
inform the woman of the nature of the procedure, health risks, etc;. Court holds that this is not an
undue burden.
 Section 3209 – Requires a signed statement from the woman that she has notified her spouse that
she is about to undergo an abortion. Court says this is not permissible. “A state may not give to a man
the kind of dominion over his wife that parents exercise over their children.”
 Parental Consent Provision – Court upholds this as valid.
 Recordkeeping and Reporting Requirements – Under this, every facility that performs abortions is
required to file a report stating its name and address + other stuff. They cite Danforth and say this is
OK.
o STEVENS CONCURRENCE
 Burden may be undue if the burden is too severe or because it lacks a legitimate, rational justification.
Says that the 24-hour informed consent requirement fails both parts of this test.
o REHNQUIST CONCURRENCE/DISSENT
 Says Roe was wrongly decided and should be overruled consistently.
 He would uphold all parts of the PA statute.
 Women’s decision to terminate her pregnancy is not a fundamental right.
o SCALIA CONCURRENCE/DISSENT
 Says that he is sure that the right to an abortion is not a liberty protected by the Constitution.
 Compares this case to Dred Scott.
o Significance: Since Casey, the Court consistently has held that:
1. 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 non-viable fetus are
unconstitutional
2. 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
3. The government has legitimate interests from the outset of each pregnancy in both the health of
the woman and the life of the fetus
4. Right to abortion clearly grounded in due process clause of 14th Amendment.

Gonzalez v. Carhart (2007)
o 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
o
o
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.
The Kennedy Opinion: Applies Casey Standards
 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
 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
 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
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

Moore v. City of East Cleveland (1977)
o City zoning ordinance recognizes only certain people as part of the family. This prevented a
grandmother from living with her grandsons.
o Court differentiates this case from Belle Terre because it prevents blood relatives from living
together.
o Court says liberty in the DPC includes protection for family rights.
o Thus, court holds that this ordinance is unconstitutional.
o Since this case, courts have limited its reach. First, individuals must be related to be considered a
family. Second, there must be a direct and substantial infringement on the right to keep the family
together.

Troxel v. Granville (2000)
o Mother began restricting visitation rights of grandparents. Grandparents sued under WA state law
that permits any person to petition a superior court for visitation rights at any time and authorizes
that court to grant visitation rights whenever it would serve interests of the child.
o Holding  SCOTUS holds that the WA statute is unconstitutional because it violates the mother’s
right to control the upbringing of her child.
o WA statute is overly broad, gives the judge undue ability to overturn the decisions of a fit parent. Also
noted that visitation by grandparents wasn’t shut off completely, just limited to once a month.
o Thomas Concurrence:
 Views this as a substantive due process issue—would apply strict scrutiny and WA law fails
under this test
o Scalia Dissent:
 Disputed the existence of fundamental rights under the due process clause
o Stevens Dissent:
 Let the WA legislature draft a better law in response to the WA SC decision
o Kennedy Dissent:
 WA SC was wrong in concluding that the best interests standard in the grandparents’ rights
statute was unconstitutional
o Significance: Kind of a confusing case. It can be read broadly as reaffirming that parents have a
fundamental right to control the upbringing of their children. Conversely, can be read as a very
narrow decision that involved a broad law applied in a situation where the parent was fit and regular
grandparent visitation still occurred. Hard to determine impact given no majority opinion.

Lawrence v. Texas (2003)
o
o
At issue is the validity of a Texas statute making it a crime for two persons of the same sex to engage
in intimate sexual conduct.
Court says main question is if these adults were free to engage in this conduct as an exercise of their
liberty under the Due Process Clause.
o
o
o
o
o
o
Similar facts to Bowers, however in Bowers, the statute in question prohibited the conduct regardless
of sex, regardless of whether the pair was married. Here it’s only between participants of the same
sex.
 In Bowers the question was… is there was a fundamental right to sodomy?
 The Court also further narrows this question to homosexuals. This is a very narrow
interpretation of the facts which makes it easy for the Court to hold that there is no
right here.
 However, here, Kennedy frames the question much more broadly. He says, is there a
fundamental right to private, consensual behavior between people?
O’Connor argues that from an equal protection standpoint, we don't need to overrule Bowers. The
Texas statute doesn’t ban sodomy by heterosexuals, thus there is an equal protection issue here.
Court basically had a change of heart here from Bowers. Reflects a societal trend towards greater
understanding and acceptance of homosexuality.
Recognizes that right to privacy and more specifically the right to private sex is a liberty interest.
Don’t know what level of scrutiny was used here.
Significance:
 Means that laws in 13 states prohibiting private consensual homosexual activity are
unconstitutional
 Powerful affirmation of a right to privacy under the Constitution
 Recognizes that sexual activity is a fundamental aspect of personhood and that is entitled to
constitutional protection
 Private sex as a liberty interest
 One of the most important decisions to date recognizing the rights of gays and lesbians to
equal dignity and equal treatment under the Constitution

Goodridge v. Department of Public Health (2003)
o Challenging Massachusetts law that same-sex couples can’t obtain a civil marriage license.
o Court holds that they do have a state constitutional right under due process and equal protection.
The two clauses in the MA constitution mirror those of the U.S. Constitution.
o If a state wants to grant more rights than the U.S. Constitution does, that is perfectly fine. If they
want to grant less, that is a BIG problem (Supremacy Clause…).
o Court points to some federal and state cases that support their position here.
o Court proceeds with the rational basis test. They look at the State’s rationales for their position:
 First rationale is that marriage is essentially procreation. State says that this is not true, State
sanctions other ways of reproduction other than marriage.
 Dissent says the reason they can discriminate between same-sex and opposite-sex
because it’s easier than differentiating between fertile homosexual couples and
infertile. WHAT?!?
 Second rationale is that they want children to be raised in an optimal setting. Court says that
American notions and ideals have changed, best situation for a child doesn’t depend on
whether parents are same-sex or not. Back in the day, particularly in the South, there may
have been a social stigma attached to children being raised by a homosexual couple. Court
says that in Massachusetts, that’s not the way it is now.
 Third rationale is that barring same-sex marriage conserves economic resources. If we don’t
have to pay for things in regard to a married same-sex couple. They are cutting down on
those eligible for benefits such that they save money. Is it rational for the state to try to save
money? Yes. Court says that you can’t just save money by compromising a particular group
of people. They have equal protection rights regarding marriage. The rational basis of saving
money is simply not enough.

Cruzan v. Director, Missouri Department of Health (1990)
o
o
o
Due to an auto accident, Cruzan is in a persistent vegetative state. Parents asked the hospital to pull
the plug but they refused to do so without court approval.
There IS a constitutionally protected liberty interest in a competent person refusing unwanted
medical treatment.
Petitioners argue that an incompetent person should possess this same right.
o
o
o
o
o
o
o
o

Missouri requires evidence of the incompetent’s wishes as to the withdrawal of treatment to be
proved by clear and convincing evidence. Question here is whether the U.S. Constitution forbids the
establishment of this procedural requirement by the State. SCOTUS holds that it does not!
Missouri has an interest in the protection and preservation of human life.
State is entitled to protect against potential abuse by family members making decisions for
incompetents.
No automatic assurance that the view of a close family member would be the same as the patient’s if
she was competent.
Leaves a lot of questions unanswered though…
 What level of scrutiny in determining government regulation regarding refusal of medical
treatment?
 What is sufficient to constitute clear and convincing proof of a person’s desire to terminate
treatment?
 Does not address the situation of a competent person designating a surrogate to make the
decision concerning whether to pull the plug?
SCALIA CONCURRENCE – Doesn’t want this issue to be like abortion where Court takes on a
legislative duty and just muddles things up.
 Agrees with the decision but would have preferred that the Court announced clearly and
promptly that the federal courts have no business in this field.
 Scalia doesn’t see how this is any different from suicide which states CAN regulate
BRENNANS DISSENT
 Treatment received by Cruzan is substantially similar to any other medical treatment.
 Only state interest asserted here is a general interest in preservation of life.
 However, State has no legitimate interest in someone’s life that could outweigh the person’s
choice to avoid medical treatment.
 Until Nancy’s wishes have been determined, the only state interest is in safe-guarding the
accuracy of that determination.
 In these types of situations, the preferences of the victims do not escheat to the State.
STEVENS DISSENT
 Missouri policy doesn’t protect life, it defines it.
 Cruzan’s interests did not disappear with her consciousness.
Washington v. Glucksberg (1997)
o
o
o
o
o
o
o
o
o
Issue is whether WA’s prohibition against “causing” or “aiding” a suicide offends the 14 th Amendment.
SCOTUS holds that it does not!
Plaintiffs assert that there is a liberty interest protected by the 14th Amendment which extends to a
personal choice by a mentally competent, terminally ill adult to commit physician-assisted suicide.
Court starts their analysis by looking at US history, legal tradition and practices. Rehnquist says that a
right is protected as fundamental under DPC ONLY when supported by history or tradition.
Thus, no fundamental right to commit suicide
Two features of substantive due process analysis:
 First, Due Process Clause specially protects those fundamental rights and liberties which are
“deeply rooted…” From PALKO v. CONNECTICUT
 Second, Court requires a careful description of the asserted fundamental liberty interest.
FROM CRUZAN, ETC;
Court imposes a threshold requirement that a challenged state action implicate a fundamental right.
Respondents point to Casey and Cruzan to say that there is a general tradition of “self-sovereignty”.
Court responds saying that just because many of the liberties under DPC involve personal autonomy
doesn’t mean all personal autonomy decisions are protected.
Constitution requires that Washington’s assisted suicide ban be rationally related to legit government
interests. Court holds this requirement is met here:
 Washington has an “unqualified interest in the preservation of human life.” Cruzan
 State has an interest in protecting the integrity and ethics of the medical profession.
 State has an interest in protecting vulnerable groups from prejudice, negative stereotypes
and “societal indifference”.
 Finally, State may fear that allowing this will lead to involuntary euthanasia.
SOUTER CONCURRENCE – State must show a significant interest compelling enough to make it
reasonable that this right is being refused.

DA’s Office for the 3rd Judicial District v. Osborne (2009)
o
o
o
o
o
o

Issue: is there a Constitutional right to access DNA evidence?
Alaska Court of Appeals claimed that there was no state constitutional right because the other
evidence of his guilt in this crime was too strong and DNA testing would not be conclusive.
Court holds that there is NO constitutional right.
This is an issue that should be left to state legislatures to regulate.
STEVENS DISSENT
 Osborne has established his entitlement to test the State’s evidence.
 46 States and the Federal Gov’t have passed statutes providing access to evidence for DNA
testing.
 State’s refusal to provide Osborne with access to evidence for DNA testing qualifies as
arbitrary.
 Frames the question of liberty more broadly than the majority. Right of convicted persons to
DNA evidence vs. physical liberty or freedom from arbitrary government action.
SOUTER DISSENT
 Resolves this case on procedural due process grounds.
EQUAL PROTECTION OF THE LAWS
o
Traditional Rational Basis Review

Railway Express Agency v. People of State of New York (1949)
 NY law bans the use of advertising vehicles but allows you to put business notices on business
delivery vehicles so long as those vehicles are engaged in regular business and not mainly used for
advertising. Argued here that the unequal treatment between these vehicles is not justified by the
aim and purpose of the regulation.
 Holding  Court upholds the law. They defer to the judgment of the legislature here. The
government may have perceived some difference between the two kinds of ads.
 It was immaterial whether the government failed to deal with the issue as a whole instead of making
this particular restriction…”It is no requirement of equal protection that all evils of the same genus be
eradicated or none at all.”
 The classification made here has relation to the purpose for which it was made.
 Jackson Concurrence –
 Differentiates between invalidating a statute based on due process grounds or equal
protection.
 “Invalidation of a statute on due process leaves ungoverned and ungovernable conduct
which many people find objectionable.”
 Conversely, using EP clause does not disable any governmental body from dealing with the
subject at hand.
 Thus, Jackson is more receptive to attacking local ordinances on EP grounds rather than due
process grounds.

New York Transit Authority v., Beazer (1979)
o NYTA refuses to employ people who use methadone. Methadone is a narcotic that is used to cure
physical aspects of heroin addiction.
o District Court held that because it is clear that substantial numbers of methadone users are capable
of performing many of the jobs at the TA, the Constitution will not tolerate a blanket ban on all users
from all jobs. Basically, the statute is over-inclusive, broader than necessary to achieve its goals.
o SCOTUS agrees that it’s generally unwise to for the TA to rely on a general rule like this instead of
considering each individual. However, these assumptions concern matters of personal policy, they do
NOT implicate the principle safeguarded by the Equal Protection Clause.
o This classification by the TA DOES serve the general objectives of safety and efficiency. This
classification is not directed against any individual or category of persons but rather, it’s a policy
choice. “Does not create or reflect any special likelihood of bias on the part of the ruling majority.”
o
Race and the Equal Protection Clause
 Plessy v. Ferguson (1896)
o Louisiana law required railroad companies to provide separate but equal accommodations for blacks
o
o
and whites. Law required separate coaches divided by partition for each race.
Holding  SCOTUS says that laws requiring “separate but equal” facilities are Constitutional.
 Court rejects the argument that this stamps blacks with a badge of inferiority. They say that
this is not the result of anything in the act but solely because blacks chose to put that
construction on it.
 This is a valid exercise of the state’s police power.
 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
 Court says this law is not unreasonable, or even more obnoxious to the 14th Amendment
than acts of Congress requiring separate schools for black children in DC.
HARLAN DISSENT
 Pretty much everyone knows that this was intended to exclude black people from white
coaches.
 “…the common government of all shall not permit the seeds of race hate to be planted
under the sanction of the law”
 The Constitution is color-blind, it neither knows nor tolerates classes among citizens.

Brown v. Board of Education (1954)
o Five cases decided together that all challenged the doctrine of separate but equal in the context of
elementary and high school education. In these cases, the conditions between the black and white
schools differed; white schools had more teachers, better facilities.
o Holding  SCOTUS declares separate but equal UNCONSTITUTIONAL!
 Must look to the present and see if public school segregation deprives plaintiffs of the
EQUAL PROTECTION of the laws.
 State mandated segregation inherently stamps black children as inferior and deprives them
of educational opportunities.
 Separate educational facilities are inherently unequal.

Strauder v. West Virginia (1879)
o WV law limited jury service to white male citizens over 21. P was on trial in WV, no black people could
thus be on his jury. He claimed that this prevented him from having the full and equal benefits of the
laws ensured under the Constitution.
o Holding  SCOTUS rules that this law is unconstitutional
 The statute is discriminatory on its face, no separate but equal stuff here. It plainly
discriminates solely on the basis of race. This is BAD!
 This is a civil right, not merely a social right as in Plessy.
o Basically, facial race discrimination violates the Equal Protection Clause.

Yick Wo v. Hopkins (1886)
o City ordinance requires that laundries be in brick buildings unless a waiver is obtained from a board. P
was denied a waiver. P alleged that over 200 waiver requests by Chinese were denied but those of
others were almost all granted.
o Holding  SCOTUS says the administration of this law violates EPC.
 Whatever the intent of the ordinance was, the application by the State is clearly directed
exclusively against a group of people with intent to discriminate. This amounts to the State
basically denying Equal Protection.
 14th Amendment applies to all persons, not just U.S. citizens. This was the first case that said
as much.
o P clearly showed here that the application was discriminatory through statistics.

Korematsu v. United States (1944)
o Military Act led to evacuation and sequestering of Japanese-Americans on the West Coast.
o Holding  Court says that this was ok.

o
Court deferred to the judgment of the military and their assessment that there was a serious
national security risk presented by disloyal Japanese-Americans.
 There was no way of screening those who were loyal and those who were disloyal, thus it
made practical sense to round them all up.
 Says that the Strauder rule that per se discrimination is unconstitutional does not always
apply.
 Strict Scrutiny Analysis  Court says that there is a compelling government purpose here
under strict scrutiny. Regarding narrowly tailored requirement, Court says that this is
questionable but the Nation’s security is an important consideration here.
 Rule is both over and under-inclusive. Over because it rounds up all Japanese, not
just those that pose a threat. Under because why not round up Germans and
Italians as well?
This is the first case that applies Strict Scrutiny to race.

Loving v. Virginia (1967)
o Issue is a VA statute that bans interracial marriage. The Lovings were married in DC and upon
returning to Virginia, they were indicted under this statute.
o State’s argument is that the statute treats blacks and whites the same, thus it does not violate EPC.
o Holding  Statute is unconstitutional
 Court states “We reject the notion that the mere equal application of a statute concerning
racial classifications is enough to remove the classifications from the 14 th Amendment’s
proscription of all invidious racism.”
 Clear that this statute is not treating people equally, white people have more options in who
they can marry.
 Applying strict scrutiny, Court holds that there is no legitimate overriding purpose
independent of invidious race discrimination here.
 Restricting freedom to marry solely because of racial classifications violates the central
meaning of the Equal Protection Clause
o Cited a lot in homosexual marriage arguments

Johnson v. California (2005)
o CA prison system has an unwritten policy of racially segregating prisoners in double cells for 60 days
every time they enter a new facility. This is because of the prevalence of race-based gangs in CA.
o Holding  REMAND to be analyzed under strict scrutiny
 Court says that although this statute seems to treat all races the same, there is a separate
but equal problem here so use strict scrutiny.
 This will only be upheld if government can prove the action is necessary to achieve a
compelling purpose.
 State argues that it’s narrowly tailored because it’s only double cells and only for 60 days.
o Thomas Dissent – Court says prisons, like wars, are different. What CA has done here is ok, it’s
reasonably related to legitimate interests.
o Significant because even though this policy is unwritten, must still be judged under strict scrutiny.

Washington v. Davis (1976)
o Case brought by a group of black men saying that test for DC police applicants was discriminatory
because a far larger proportion of blacks failed than whites. Alleged that this violates the EPC.
o Holding  Not unconstitutional, proof of a discriminatory IMPACT is not enough to prove that
actual discrimination exists.
 No evidence that the actual administration of the test is discriminatory (i.e. blacks get less
time or have worse testing facilities)
 Discriminatory impact alone does not warrant strict scrutiny analysis
 Thus, laws that are facially race neutral will receive more than rational basis review ONLY if
there is proof of a discriminatory purpose.
 Court says a rule that a statute intending to serve neutral means is nonetheless invalid opens
up a whole can of worms regarding taxes, welfare, etc;
o
Affirmative Action
 City of Richmond v. J.A. Croson Company (1989)
o
o
o
o
o
o
o
o
o
o
o
o
o

Richmond passed a law requiring prime contractors to subcontract at least 30% of city contracts to
Minority Business Owners (MBEs). Richmond is 50% black but only .67% of the city’s prime
construction contracts had been awarded to minorities between 1978 and 1983. Minorities are
defined broadly….blacks, Hispanics, Asians, etc;
A “minority business” is one that is at least 51% owned by one of those aforementioned minorities.
Richmond asserted that its plan was designed to remedy past discrimination against minorities in the
construction business.
Questions to consider:
 What is the standard of review?
 Heightened judicial scrutiny, which is basically strict scrutiny. Requires Richmond to
show that this law is absolutely necessary to achieve a compelling government
interest and that it’s a tight fit regarding the means used to achieve the
governmental objective.
 Richmond cites as their reason that they want to remedy past injustices. Court says
that this is a compelling government interest. However, the Court finds a problem
with the application here.
Court says the purpose of strict scrutiny is to “smoke out” illegitimate uses of race by assuring that
legislatures are pursuing a goal important enough to warrant use of a highly suspect tool.
“History of racial classifications in this country suggests that blind judicial deference to legislative or
executive pronouncements of necessity has no place in equal protection analysis.”
Court doesn’t think the plan is closely tailored enough to remedy this injustice. The past injustices
were primarily towards black while these regulations apply to all minorities. These regulations are
over inclusive. Court also says the 30% mark is arbitrary.
Societal discrimination is generally a slippery slope because it opens the door for any previously
disadvantaged group to claim they deserve remedies.
Court also says that Richmond should’ve considered race-neutral means to remedy this rather than
just jumping to this option. i.e. vocational programs, networking opportunities, etc;
In the future, if you want to do something like this, you want to be subversive about this type of
program. Handle it on a case-by-case basis and don't be too transparent. Having an actual number
quota is a bad idea (as the court in Michigan Law School case later notes).
STEVENS CONCURRENCE  Judicial system, not legislature, that is best equipped to identify past
wrongdoers and to fashion remedies that will remedy those wrongs.
SCALIA CONCURRENCE  There is only one circumstance where States may act by race to “undo the
effects of past racial discrimination:” where that is necessary to eliminate their own maintenance of a
system of unlawful racial classification.
MARSHALL DISSENT  Richmond has supported its determination that minorities have been wrongly
excluded from these contracts, the stats and testimony they presented is exactly the type of evidence
that until now the Court has credited in cases approving of race-conscious measures designed to
remedy past discrimination.
Grutter v. Bollinger (2003)
o White in-state resident applied for admission to Michigan Law School and was denied. She claimed
that the school’s use of race as an admissions factor, being discriminatory, was unconstitutional.
o This usage raised minority representation at the law school from 4% to 14.5%.
o Strict Scrutiny Analysis:
 Compelling Interest
 Here, it is diversity. Court is willing to defer to the expertise of educators who say
that we need racial diversity in order to make the law school the best it can be.
 Normally in strict scrutiny, judges don't really defer much. Loosening the standard
of deep judicial skepticism.
 Narrowly Tailored Program
 Narrowly tailored because the admissions process takes other factors into account,
not just race. Race is not a dispositive factor for any candidate.
 There is not an explicit quota system here, just a “critical mass” requirement.
o Notes talk about the Gratz case which dealt with undergraduate admissions process at Michigan. (p.
694)

o
o
Different from this case because being a minority automatically added 20 points to your
application.
 This type of system seems more like quota, which is a big no-no.
 One of the problems here was that 20 points for race seemed too much. Court thinks this
bonus for just race is excessive, i.e. if your parents went to Michigan you only got 3 points.
 Souter and Ginsburg disagree, says the undergrad is doing basically the same thing as the
law school.
REHNQUIST DISSENT  Not strict scrutiny here, Michigan hat to show that their program was
necessary to promote their compelling interest. Also, the program fails strict scrutiny because it is
devoid of any reasonably precise time limit on the Law School’s use of race in admissions.

Parents Involved in Community Schools v. Seattle School District No. 1 (2007)
o 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.
o Strict Scrutiny Analysis:
 Both Seattle and Jefferson try to use different ways to formulate their goal here but Court
says in essence, the interest for both is racial balance.
 Court says using race as only factor is bad, distinguishes from Grutter. Race is not just one
factor here, it is THE factor.
 Government action dividing use by race is inherently suspect because such classifications
promote “notions of racial inferiority and lead to politics of racial hostility”
o In the absence of past discrimination, these two school districts weren’t trying to achieve remediation
so the race based classifications were not justified.
o This rule affected only a small number of students, thus there may have been another way to achieve
this goal. Also, the people it affects are affected strongly.
o “The only way to stop discriminating on the basis of race is to stop discriminating on the basis of
race.”
o Note the formalist interpretation of Brown by majority and functionalist approach by dissents.

Ricci v. DeStefano (2009)
o White and Hispanic candidates sued city of New Haven b/c New Haven wanted to destroy test results
for a rank promotion. This was because the test results would have resulted in a disproportionate
number of Whites being promoted. City was afraid of liability under Title VII for adopting a practice
that had a disparate impact on minority firefighters.
o HOLDING  Court says that New Haven violated Title VII by discarding the tests.
o Before an employer can engage in intentional discrimination for the purpose of avoiding a "disparate
impact" on a protected trait (race, color, religion, national origin), the employer must have a "strong
basis in evidence" that it will be subject to "disparate impact liability" if it fails to take the
discriminatory action.
o Charlie says this case is not that important…..
Gender and Equal Protection
 Craig v. Boren (1976)
o
o
o
o
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.
HOLDING  Court invalidates this law.
This is the first time that intermediate scrutiny is articulated explicitly. This is the test that the Court
uses for gender cases. Intermediate Scrutiny factors:
 Important Government Purpose
 Substantial Relationship
Here, state says that the important government purpose is traffic safety.
o
o
o
Court says that this purpose is important, however, the substantial relationship factor is what’s not
met. Reed v. Reed said that gender-based differences must be substantially related to achievement of
the statutory objective. Here, there is too tenuous a relationship between traffic safety and gender.
State introduces a lot of data to show that males are more dangerous on the road and get into more
accidents. Court says the 2% and .18% numbers for percentage of males and females arrested for
drunk driving are really small. They frame it as 98% as 99.82%, the difference doesn’t seem as big
now.
Significant because it established intermediate scrutiny as the standard for gender-based claims.
o
United States v. Virginia (1996)
 VMI is a public college that allows only men to enroll. Female HS student filed suit saying that the onlymale admission policy violated EPC of 14th Amendment.
 Virginia asserted two reasons in defense of the male only policy:
 First, single-sex education provides important educational benefits and the option of single-sex
education contributes to “diversity in educational approaches”.
 Second, the unique adversarial teaching method at VMI would have to be modified if women
were allowed to enroll.
 Court rejects first argument saying that they find no persuasive evidence that the male only policy is in
furtherance of diversity. Says conclusion in second argument is unfounded.
 Court says you need an “exceedingly persuasive justification” as a base for any gender-defined
classification, this standard is not met here. This seems more stringent than the standard articulated in
Craig v. Boren.
 Virginia’s remedial plan was to create a sister college that offered the same type of education. Court
rejects this though, says it would be unequal…doesn’t have VMI’s alumni base, endowment, etc;
 Court seems to apply middle-tier scrutiny in this case but they seem to have made it more stringent.
 SCALIA DISSENT  Says this is a death knell for all single-gender colleges. Says Court applied a test that
was closer to strict scrutiny than intermediate.
 However, there are ways to get around this. Sometime there is s separate but equal alternative.
Also, there may be a compelling reason offered. Also, it seems that this holding only applies to
public institutions.
o
Michael M. v. Superior Court of Sonoma County (1981)
 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 18 years old.” Thus, men alone are criminally
liable for the act of sexual intercourse.
 Court says that it has consistently upheld statues where the gender classification is not invidious but
realistically reflects the fact that the sexes are not equally situated in certain circumstances.
 Court agrees that the state has a strong interest in preventing illegitimate teenage pregnancies.
 HOLDING  Court holds that this statute is constitutional. The purpose of the CA statute is to reduce teen
pregnancy and the burden of pregnancy falls almost entirely on the woman. This law is meant to be a
deterrent to men, women are already deterred by the risk of pregnancy.
 Court agrees with CA that a gender-neutral statute would not be as effective here. Women would be far
more reluctant to report violations of the statute if it meant they would be prosecuted as well.
 Court does not use any sort of scrutiny analysis here…
 DISSENT says that the majority is too concerned with the statutory goal of reducing pregnancy and not
the fundamental question of whether the sex-based discrimination is substantially related to the
achievement of that goal.
o
Nguyen v. INS (2001)
 Federal law imposes different requirements on citizenship acquisition for children born to unmarried
parents where one is a U.S. citizen and the other is a non-citizen. The requirements differ based on
whether the parent who is a U.S. citizen is the mother or father. If the father is the citizen, one of three
affirmative steps have to be taken, however, this is not required if the citizen parent is the mother.
 Government says there are two interests to be served by this rule:
 Importance of assuring that a biological parent-child relationship exists. In the case of the mother,
this relation is verifiable from the birth itself.





Want to ensure that the child and citizen parent have some sort of relationship such that there is
a connection between them, and thus the United States. This automatically happens between
mother and child at birth but not necessarily with the father.
Court says that both these interests are valid.
They then address whether the means Congress chose to further these objectives substantially relates to
that end. Court says that the means adopted by Congress are in substantial furtherance of important
government objectives and that the fit between the means and the end is “exceedingly persuasive”.
Dissent  Sex-neutral alternative here is DNA testing to see if father is a U.S. citizen or not.
Fundamental Interests and the Equal Protection Clause
o
Skinner v. State of Oklahoma (1942)
 Deals with OK act that allows for sterilization of “habitual criminals”, people who have committed two or
more felonies involving “moral turpitude”. Acts like embezzlement or political crimes do not count under
this.
 HOLDING  Court says this is unconstitutional under the EPC of 14th Amendment.
 They say strict scrutiny is necessary here because the issue involved is the fundamental right to procreate
 Court says that when someone who commits larceny gets sterilized but someone who embezzles doesn’t,
that is a invidious kind of discrimination because they are basically very similar crimes. Despite that
similarity, this law is treating offenders unequally. The fines and prison terms for larceny and
embezzlement are the same as well.
 There’s also no evidence that criminality regarding “moral turpitude” felonies is inheritable.
 May be economic and class discrimination issues here, poor people more likely to steal, rich people more
likely to embezzle and commit stuff like tax fraud.
 Stone’s concurrence says this doesn’t look like a good EPC case but it’s a good substantive due process
case.
 Jackson’s concurrence says there is both EPC and due process concerns here.
o
Zablocki v. Redhail (1978)
 Wisconsin law prevented an individual from obtaining a marriage license without court approval if the
person had a minor child not in their custody for whom there was a court order to pay child support.
 Court first goes through and says yes, there is a fundamental right to marriage.
 However, the court says that reasonable regulations that do not significantly interfere with decisions to
enter into a marital relationship may legitimately be imposed. The statute here though clearly does
interfere directly and substantially with the right to marry.
 Court says that some people in the affected class will never be able to marry because they are simply too
poor to pay child support. Many others will be deterred from marrying because they would have to spend
so much of their limited income on child support. This is a serious intrusion in the freedom of choice of a
fundamental right.
 Wisconsin asserts two interests that are served by the statute:
 Permission-to-marry proceeding is an opportunity to counsel the applicant on fulfilling prior
support obligations
 Welfare of out-of-custody children is protected.
 Court says that these are legitimate and substantial interests but the means the State has selected here to
achieve these interests unnecessarily impinges on the right to marry. Thus, the statute is void.
 Court really doesn’t like the idea of someone wanting to pay child support but being unable to b/c they’re
too poor. Thus, state is basically saying that they are too poor to marry…this is not nice.
 Rehnquist’s dissent says that if rational basis was used, this statute would stand.
o
San Antonio Independent School District v. Rodriguez (1973)
 Involved a challenge to the Texas system of funding public education mostly via local property taxes. This
system meant that poor areas had to tax at a high rate and still had little to spend on education while rich
areas could tax little and still have much more to spend. P alleged that this violated EPC as an
impermissible distribution of wealth and that it denied the fundamental right to education.
 Court rejects the EPC claim by saying that wealth is not a suspect class and that therefore discrimination
against the poor need only meet rational basis review.
 No effort to show that this operates to the peculiar disadvantage of an indigent class.






Also, no reason to assume that the poorest people are concentrated in the poorest districts.
No absolute deprivation here, just a poorer quality education. At least where wealth is involved,
EPC does not require absolute equality or precisely equal advantages.
They then look to the Constitution to see if there is a right to education explicitly or implicitly guaranteed
by the Constitution. If a right is mentioned in the Constitution, then an unequal deprivation of it is subject
to stricter scrutiny.
 Education is not listed in the Constitution nor is there any basis to say it is implicitly protected.
 Inconsistent with Zablocki, marriage isn’t mentioned in the Constitution either…
Thus, only rational basis test is required here…State action should bear some rational relationship to
legitimate state purposes. Court says no tax scheme ahs yet been devised that is free of ANY
discriminative impact, they aren’t going to intrude here. Slippery scope argument as well…don't’ want all
fiscal schemes to be subject to intense scrutiny under EPC.
Rodriguez put the brakes on expansive EPC interpretation under the Warren Court.
DISSENT is arguing that to restrict Equal Protection analysis to just those rights found in Constitution is
too narrow, largely eliminates fundamental right/protection cases. Also inconsistent with past cases.
 Marshall also says that individual interest in education is fundamental. 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.
o
Plyler v. Doe (1982)
 Question here is whether Texas can deny public education to undocumented school-age children while
providing it to children who are U.S. citizens or legal aliens. Is this a violation of EPC?
 HOLDING  Court says that this is unconstitutional, even illegal aliens have long been recognized as
“persons” guaranteed due process by 5th and 14th Amendments.
 Difficult to think of a rational justification for punishing these children for being in the U.S. when it was
their parents that broke the law and entered illegally.
 First have to determine if there is a suspect class?
 Court says no, undocumented aliens cannot be treated as a suspect class because the fact that
they are breaking the law by being in this country is not constitutionally irrelevant.
 Court then asks if there’s a fundamental right?
 Nothing in the Constitution about right to education. “Public education is not a right granted to
individuals in the Constitution” “But neither is it merely some governmental benefit
indistinguishable from other forms of social welfare legislation.” Kind of a “No, but….” answer
given by the court.
 Court says their applying rational basis, but they apply intermediate instead….
 Court says that in terms of educational need and cost, undocumented children are “basically
indistinguishable” from legally resident alien children.
 Savings achieved by denying these children education is insubstantial in light of the costs involved to
these children.
 State argues 3 things:
 State may seek to protect itself from an influx of illegal immigrants.
o Act doesn’t provide an effective method of dealing with this anyways. Also, no evidence
in record showing that illegal entrants impose any significant burdens on State economy.
 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
o Court says record doesn’t show this.
 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
o Court says that there’s no assurance that ANY child period will stay within the State. A
 DISSENT basically says that social desirability is not the law.
o
Bush v. Gore (2000)
 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?






Court said that the problem here was that counting the uncounted ballots without uniform standards
denies Equal Protection. Counting could not continue because Florida wanted to choose its electors by
the December 12 safe harbor date set by federal law.
“…we are presented with a situation where a state court with the power to assure uniformity has ordered
a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there
must be at least some assurance that the rudimentary requirements of equal treatment and fundamental
fairness are satisfied.”
Seven of the justices say that the procedures of this recount don’t mean equal protection standards.
However, they don’t say what these standards are.
Right to vote is a fundamental right. “The recount process, in its features here described, 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.”
Rational Basis and Hybrid Review
o
City of Cleburne, Texas v. Cleburne Living Center (1985)
 City of Cleburne denied a special use permit to have a home for the mentally retarded in the city pursuant
to a zoning ordinance requiring a permit.
 Court first says that mental retardation is not a quasi-suspect classification and thus a more stringent
standard of review than rational basis is unneeded.
 Court says that government consideration of the differences between mentally handicapped
people and non-handicapped people is not only legitimate but desirable.
 City Council had several reasons for denying the permit:
 Council was concerned with negative attitudes and fears of nearby property owners.
o Court says that the law cannot give private biases effect.
 Concerned that the facility was near a junior high school, feared students would harass
occupants of the home.
 Also concerned that the home location was on a “five hundred year flood plain”.
o Court says that these reasons are dumb.
 Note that court says age discrimination is sometimes okay (Murgia case)
o
Romer v. Evans (1996)
 Colorado Constitution Amendment 2 prohibits ALL government action at any state or local level that is
designed to protect the named class of homosexuals. Also repealed all laws protecting homosexuals from
discrimination or that discriminated against them.
 HOLDING  Court says that this is invalid under the EPC.
 State says that what the amendment does is put gays and lesbians in the same position as all other
persons. Court rejects this, says that Amendment 2 withdraws from homosexuals, and no others, specific
legal protection from the injuries caused by discrimination and also forbids reinstatement of these
protective laws and policies.
 SCOTUS says that the Colorado statute is much too broad, doesn’t really put them on the same playing
field. Singles out a class and burdens them.
 Court says there is a class here but it’s only subject to rational basis scrutiny.
 Court says this Colorado statute is irrational, this is because the statute gives no protection of the law to
people who do deserve protection. This creates a pariah class of people who get nothing from the
government. The sheer breadth of the law is so discontinuous with the reasons offered for it that fails
rational basis; there is no rational relationship to legitimate state interests.
 Seems to the Court that there is no other explanation for this incredible over breadth than animus.
 This case also states that homosexuals are not a protected class.
POWER TO ENFORCE THE RECONSTRUCTION AMENDMENTS
o
Katzenbach v. Morgan (1966)
 Issue here is the constitutionality of 4(e) of the Voting Rights Act of 1965. That section provides that no
person who has completed 6th grade in Puerto Rico, even if the language of instruction was not English,
can be denied the right to vote. This was in response to a NY literacy requirement for voting that
disenfranchised Puerto Rican migrants.





Court says that this is a proper exercise of powers granted to Congress under Section 5 of the 14th
Amendment: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this
article.”
Court offered two justifications for allowing Congress to do this:
 Congress could’ve concluded that giving Puerto Ricans the right to vote would empower them
and remedy past discrimination against them, thus the law is Constitutional.
 Congress could’ve found that the literacy test denied equal protection, even though this finding
is contrary to Lassiter where Court said that English language requirement for voting did NOT
violate the 14th Amendment. This is very important because it accords Congress the authority to
define the meaning of the 14th Amendment.
Major issue here is whether Congress could interpret the Constitution independent of what the Court had
previously found as unconstitutional.
 Court says that Congress has broad powers under Section 5, basically the same broad powers as
expressed in the Necessary and Proper Clause.
However, this does NOT mean that Congress can go in the other direction and negate or dilute equal
protection or due process decisions. Basically, Court is willing to let Congress expand EP rights under
Section 5 but they can’t cut back on them.
Very nationalist view of Section 5 here.
o
City of Boerne v. Flores (1997)
 Texas church was prevented from constructing a new facility b/c its building was a historic landmark.
Church sues under Religious Freedom Restoration Act, City then challenged the constitutionality of the
RFRA.
 Congress had enacted the RFRA with the express goal of overturning Smith (peyote case), a case that said
free exercise of religion cannot be used to challenge neutral laws of general applicability. Specifically,
RFRA prohibited government from substantially burdening a person’s exercise of religion even if the
burden results from a rule of general applicability unless the government can demonstrate the burden 1)
is in furtherance of a compelling governmental interest; 2) is the least restrictive means of furthering that
compelling government interest.
 HOLDING  SCOTUS says that this is unconstitutional, Congress cannot under Section 5 create new rights
or expand the scope of rights. Rather, Congress is limited to laws that prevent or remedy violations of
rights recognized by the Supreme Court. Also, these laws must be narrowly tailored to the constitutional
violation.
 Congress can enforce constitutional rights but does not have the power to determine what constitutes a
constitutional violation. Court also says that RFRA is overbroad. This is in contrast to the 4e statute in
Katzenbach which is much more narrowly construed, only deals with language.
 Another difference  RFRA deals with 1st Amendment issue of religion, 4e deals with 14th
Amendment EP concerns;
o The 1st Amendment stuff relates to 14th Amendment because it is incorporated into
the DPC.
 Big difference between the lack of legislative findings in this case and the legislative findings
presented in Katzenbach.
 Court thinks that RFRA challenges it’s authority, there’s no challenge in Katzenbach.
 Basically, Congress cannot expand rights under Section 5.
o
University of Alabama v. Garrett (2001)
 Court considers whether state governments may be sued for violating Title I of the Americans with
Disabilities Act. This Act prohibits employment discrimination against the disabled and requires
reasonable accommodation for disabilities by employers. Issue is whether employees of State of Alabama
can recover money damages because of State’s failure to comply with the ADA.
 HOLDING  SCOTUS holds that state governments may not be sued for violating Title I of ADA.
 Method of analysis here:
 1. Identify the “metes and bounds” of the Constitutional right in question.
 2. Examine whether Congress has identified a history and pattern of unconstitutional
discrimination by the States.
 3. Determine whether the Congressional response to the problem is “congruent and
proportional” to the remedy and prevention of the injury in question.
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o
Court looks to Cleburne and says that mental retardation does not qualify as a suspect class. Thus only
rational basis required, State actions towards those individuals need only be rational.
Court says that the ADA was a substantial expansion of rights compared to the Constitution. ADA
prohibits much more than would fail a rational basis test, it imposes more requirements than the
Constitution requires. Thus, Title I of the ADA is not proportionate or congruent to preventing or
remedying constitutional violations.
Court says that legislative history of ADA fails to show that Congress identified a pattern of irrational state
discrimination in employment against the disabled.
Also an 11th amendment issue here, Court says that the state cannot be sued by individuals for violations.
However, the federal government can sue the state and suits against individual government officers are
still permitted.
Nevada Department of Human Resources v. Hibbs (2003)
 Family and Medical Leave Act requires that employers, including the government, provide employees with
unpaid leave time for family and medical care.
 Court holds that the State’s record of unconstitutional participation in and fostering of gender-based
discrimination in administering leave benefits is enough to justify the enactment of this Section 5
legislation.
 Because Congress is addressing state gender discrimination, a higher level of scrutiny is triggered than in
Garrett (rational basis). There is discrimination here because employers often denied men the same
accommodations as women for family leaves.
 Court says that the FMLA, by setting a minimum standard of family leave for ALL employees, is congruent
and proportional to the targeted violation.
 Court says unlike the statute in City of Boerne and Garrett, the FMLA is narrowly targeted rather than
applied broadly to every aspect of state employee’s operations.
 DISSENT says that in some states there is no evidence of gender stereotyping. This is not a narrow
intrusion by the federal government into the states. Under this view though, you’d have to have evidence
from all the states and apply the statute only to those where there is evidence of gender stereotyping.
 They also say it’s just a benefits statute, like social security almost. It’s not about gender at all.
They focus on the text of the statute. In contrast, majority looks at the statute more broadly.
 Thus, since this is an appropriate exercise of Congress’s Section 5 powers, abrogation of State sovereign
immunity is valid and individuals may sue State employers under the FMLA.