JUSTICIABILITY
I.
STANDING The Standing requirement emanates from Article III which extends federal judicial
power to “cases” and “controversies.”
a. Injury-in-fact
i. Injury needs to be concrete and particularized, not generalized or hypothetical (Lujan)
ii. Injury needs to be actual and imminent
1. Ex: Lost aesthetic and recreational values of the area (FOE v. Laidlaw)
iii. Procedural injury: no notice and opportunity to be heard
b. Causation (“Causal Nexus”)
i. Harm needs to be fairly traceable to challenged conduct, not the result of third-party
intervention
c. Redressability
i. Is there a remedy for the harm?
d. “No better plaintiff” theory of standing: MA v. EPA
i. Taxpayers do not have standing (simply on the basis of their status as taxpayers): Hein v.
Freedom of Religion Foundation
1. Frothingham v. Mehon (1923): granting standing to a federal taxpayer would
allow anyone to challenge ANY federal act if the administration requires the
outlay of money
2. Flast v. Cohen: taxpayer standing to challenge expenditures in violation of
establishment clause
ii. Associations: can establish standing (even if no injury to themselves) as representative to
the injury to their members  MUST still allege injury-in-fact that satisfies standing
requirement to individual members
iii. State standing  MA v. EPA
**If a statute gives standing, must prove that the plaintiff is within the zone covered by the statute**
II.
POLITICAL QUESTION
a. Baker v. Carr (1962)  6-Point Test for an Issue to be considered a non-justiciable political
question (so the Court won’t review it)
i. Textually demonstrable constitutional commitment to another department: Does the
Constitution empower another branch to deal w/ the issue?
ii. Lack of discoverable or judicially manageable standards
iii. Impossibility of deciding about an initial policy determination of the kind for judicial
discretion
iv. Impossibility of a court’s undertaking independent resolution without expressing lack of
respect due to coordinate branches of government
v. An unusual need for unquestioning adherence to a political decision already made
vi. Potentiality of embarrassment
b. Political Question?
i. Vieth v. Jubelirer: political gerrymandering claims are non-justiciable political questions
c. Impeachment?
i. Nixon v. US: Senate shall have sole power to try all impeachments this is a political
question and the Senate (not the Court) should have the power
III.
MOOTNESS
a. MOOT = a case has become irrelevant because the dispute between the parties has ended
b. Actual controversy MUST exist at all stages of federal proceedings
c. D has the burden to show that it is not moot: that activity will re-occur
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i. FOE v. Laidlaw: Case was not moot because voluntary changes in behavior by a D are
not sufficient to make a case moot because the D would be free to resume the behavior
once the case is dismissed
RIPENESS: A court will not listen to cases that are not “ripe” for adjudication
a. Need a present controversy, not just a remote possibility of future conflict. P must show actual
present harm or immediate threat of harm
b. Court will not accept controversial litigation prematurely—will look at:
i. Hardship of parties if court consideration withheld
ii. Fitness of the issue for judicial decision
V.
ADVISORY OPINION
If an Advisory OpinionNo standing, need a case and a live controversy. This is outside the context of a
litigated case because it only gives advice about particular legislative and executive action.
IV.
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SEPARATION OF POWERS
I.
CONGRESS V. JUDICIARY
a. Constitutional Authority to Limit JD
i. Congress can make exceptions to limit the jurisdiction of the Supreme Court: Art. III,
section 2: “The supreme court shall have appellate jurisdiction both as to law and fact
with such exceptions and under such regulations as congress shall make.”
ii. Congress has the authority to create lower courts and can determine their jurisdiction
b. Historical Basis for Modern Supreme Court Power
i. Marbury v. Madison: 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 POWER OF JD REVIEW
ii. Martin v. Hunter’s Lessee: Supreme Court has the jurisdiction and the authority to review
all state acts under the Constitution, laws, and treaties of the US
c. Congressional Attempts to Limit SC JD
i. Ex Parte McCardle: Congress can limit the Court’s appellate jurisdiction (can’t disturb
the Court’s original jurisdiction without an amendment) Used by advocates of broad
power of Congress to limit JD
ii. INS v. St. Cyr: Statute not specific enough to preclude habeas corpus review in a
deportation case; Congress must articulate specific and unambiguous statutory directives
to repeal the availability of habeas jurisdiction
iii. Rasul v. Bush: Over-turned by MCA; Federal courts have JD to consider habeas petitions
from foreign nationals captured in another country and held in detention at the US
military base in G-Bay
iv. Miller v. French: Judicial decisions are final—but injunctions are final only until the
point where Congress wants to reverse or change the law (prison case)
1. Hayburn’s Case: stands for the principle that Congress cannot vest review of the
decisions of Art. III courts in officials of the Executive Branch.” (quoting Plaut)
2. Plaut v. Spendthrift Farm (1995): Stands for principle that Congress cannot vest
review of decisions of Article III courts in officials of the executive branch
a. Such an effort of a co-equal branch to “annual a final judgment” is an
assumption of judicial power and is therefore forbidden
3. United States v. Klein (1872): Congress may not enact legislation to eliminate an
area of JD in order to control the results in a particular case
II.
CONGRESS V. PRESIDENT
a. DOMESTIC
i. Unconstitutional delegation of Congress’s power
1. Until New Deal era, it was generally presumed that Congress could not delegate
lawmaking functions other than by establishing an intelligible principle by which
others administering the law would therefore be guided
2. A.L.A. Schechter Poultry Corporation v. United States (1935)
a. Marks the last time the SC invalidated a legislative decision of authority; it
has approved statutes commanding agencies to act “in the public interest,
to outlaw “unreasonable risks,” and so forth
b. Cases since Schecter have given much more leeway on delegation
3. Congress CAN delegate powers, as long as it does not delegate them to itself
(Bowsher v. Synar)
ii. Has Congress delegated EXECUTIVE or LEGISLATIVE powers to itself? ARGUE
BOTH!
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1. Look at whether
a. The act seems legislative given the presumption of legislation when
Congress is acting
b. The exercise of authority will affect the legal rights of individuals (e.g.
deportation in Chadha)
c. An alternative means for achieving the result exists (e.g. a private bill)
d. Act overrules the decision of a Member of the Executive Branch (e.g.
Attorney General in Chadha)
e. ALWAYS INVOKE YOUNGSTOWN ANALYSIS
i. Black Majority: Formalist; president may act only with express
constitutional authority
ii. Jackson Concurrence: Functionalist; 3 situations for Congress v.
President
 Strongest power: President with Congress authority
 Twilight: unclear who has authority
 Weakest power: President against Congress authority
iii. Vinson Opinion: Historical analogs by showing “strong presidents”
and what they have done
2. Chadha and Bowsher
a. In Chadha, believed Congress over-ruling executive acts and overstepping
legislative authority
i. Highly formalistic: emphasized the formal structure in Constitution
ii. Powell Concurrence: Congress over-stepping judiciary’s role
because this looks like adjudication
b. In Bowsher, act unconstitutional because it violated the rule that Congress
can play no direct role in the execution of laws (charging CG with
execution of laws but Congress retains removal authority)
i. WHITE DISSENT IN BOWSHER: “The role of this Court should
be limited to determining whether the Act so alters the balance of
authority among the branches of government as to pose a
genuine threat to the basic division between the lawmaking power
and the power to execute the law.”
iii. Is there bicameralism or presentment present?
1. Constitutional Authority
a. When Congress acts, it must meet 2 requirements to avoid violating
separation of powers and tyranny (INS v. Chadha)
i. Bicameralism: passage of bill by both houses
ii. Presentment: bill must be presented to President for it to be signed
or vetoed
b. Examples:
i. Legislative Veto is unconstitutional
 INS v. Chadha stands for the proposition that a
Congressional reservation of a one-house veto is
unconstitutional because Congressional action requires
bicameralism and presentment
ii. Line Item Veto is unconstitutional
 Clinton v. NY: Line item veto is unconstitutional because
President is taking over a “historically congressional
function” (only Congress can repeal statutes)
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
Field v. Clark (1892): Tariff Act that allowed President to
suspend exemptions from import duties on certain items
constitutional—distinguished from Clinton
a. Conditions behind line-item did not exist when TA
passed in 1890
b. President under TA acting under Congressional
policy—with Line Item Veto, rejecting policy
judgment of Congress and putting in own policy
c. If we cannot find these 2 things VIOLATION OF SOP
i. Exceptions:
 Impeachment
 Executive Appointments
 Treaties
iv. Appointment and Removal of Executive Personnel
1. President alone may appoint “principal/superior” or high-level federal officers
a. Congress cannot appoint “inferior” or lower-level federal officials, but it
may say which of the 3 other entities may (President, Cabinet, or Court)
2. Congress has no power to appoint federal executive officers (Buckley v. Valeo)
3. Removal: President has the power to remove federal executive officers
a. President may remove any executive appointee without cause
(Ambassador)
4. Congress may NOT remove an executive officers (Bowsher) no matter if the
officer is a principal or inferior one
a. Congress may limit the power of the President to remove an officer, if
Congress specifies a term of office and say removal is allowable only for
cause (Humphries)
i. Morrison v. Olsen: special prosecutor only removal for cause of
inability
5. IMPEACHMENT by Congress
b. FOREIGN AFFAIRS
i. Congressional infringement on Congress’s authority in foreign affairs
1. McCulloch v. Maryland: broadly construed necessary and proper clause
ii. Broad presidential authority
1. Curtiss-Wright: president is the sole organ of the federal government in the field
of IR  Embargo case
a. Can avoid embarrassment if President is given discretion and freedom
from statutory restriction speaking in national voice
b. President has a better opportunity of knowing the conditions which prevail
in foreign countries (true in time of war)
i. Agents in the form of diplomatic, consular, and other officials
c. Need for expeditious action
2. Dames & Moore, Hamdan v. Rumsfeld: later cases are not nearly so categorical
about executive authority
a. Dames: The settlement of claims has been determined to be a necessary
incident to the resolution of a major foreign policy dispute between our
country and another, AND we can conclude that Congress “acquiesced in
the President’s action”—not prepared to say President lacks power to
settle such claims
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i. “The enactment of legislation closely related to the question of the
President’s authority in a particular case which evinces legislative
intent to accord the President broad discretion may be considered
to “invite” ‘measures on independent presidential responsibility.”
(Youngstown Jackson Concurrence)
b. Hamdan: Congress did NOT give President authority to try enemy
combatants in military commissions
III.
EXECUTIVE PRIVILEGE
a. The so-called executive privilege is a President’s qualified right to w/hold confidential
information from the other branches of government relating to the performance of her duties.
i. It is qualified, because it is justiciable (subject to judicial review).
ii. It is the province of the Court, not of the President, to decide the scope of the privilege,
Marbury v. Madison.
b. Examples:
i. US v. Nixon – the need for information in a criminal prosecution outweigh Presidential
desire to keep that info private by invoking executive privilege.
ii. Cheney – the need for info in a civil prosecution does not carry the same urgency, and
doesn’t trump the privilege of the executive to withhold info. Especially where the nature
of the suit, itself is a fishing expedition for possible violations of law (as opposed to
requests to substantiate actual claims of violation)
c. Note: Presidents try to invoke the privilege as minimally as possible, and the Courts uphold
invocation minimally.
i. Clinton v. Jones: A private citizen can sue President for alleged illegal acts that were not
part of his official duties and were committed in his personal capacity before he became
President no one, not even the President, is above the law
IV.
SEPARATION OF POWERS IN THE POST 9/11 WORLD
a. Analysis
i. Is the President acting on an express power from Congress?
ii. Does the war situation justify it?
1. If YES to either of the 2 questions presumptively constitutional
b. Military Tribunals
i. Ex Parte Quirin: Offers very robust support of presidential authority to conduct war
including the trial of enemy combatants
1. When war declared, no due process for citizens or non-citizens
a. “Citizenship in US of an enemy belligerent does not relieve him from the
consequences of a belligerency which is unlawful because in violation of
the law of war.”
2. Citizenship doesn’t matter; soldiers don’t have these rights
ii. Hamdan v. Rumsfeld: invoking Youngstown analysis—could not try enemy combatants
in military commission because Congress did not give the President authority to try
people in this way
iii. Military Commissions Act of 2006
1. Authorizes military commissions and places various jurisdictional limitations on
the access of detainees in federal court
2. Takes habeas corpus away from enemy combatants
iv. Recent MCA Cases
1. Boumediene v. Bush (2007): President has the support of Congress unlike
Hamdan so military tribunals are OK; Dissent argues that Founders could have
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given President plenary powers in war time but it didn’t (so military tribunals are
not ok)
2. Bismullah v. Gates (2007): DC opinion put confidential information into hands
of lawyers for enemy combatants
3. Padilla v. Hanft (2005): US citizen being detained for work with al Qaeda in
connection with 9/11; Court held he was an enemy combatant even though he was
captured in Chicago Airport because he still fought on battleground in war
4. Al-Marri v. Wright (2007): Court held that MCA was never designed to hold
people like al-Marri since he never fought on the battleground in Afghanistan;
dissent argues that the war on terror is not a traditional war and should defer to
executive
a. Padilla case and al-Marri dissent are deferential to Executive branch
c. Detention and Habeas Corpus
i. Ex Parte McCardle: Removed JD over lower courts to hear case
ii. Ex Parte Quirin: Approved the use of court martial proceedings to try persons (including
the one who claimed US citizenship) who allegedly entered the country illegally for the
purpose of sabotage DEBATE OVER WHETHER THIS IS PRECEDENT FOR
CURRENT ATTEMPT TO USE MILITARY TRIBUNALS FOR SUSPECTED
ENEMY COMBATANTS
iii. INS v. St. Cyr: Congress must articulate specific and unambiguous statutory directives to
repeal habeas JD
iv. Rasul v. Bush: Court held that federal judges have jurisdiction to consider habeas
petitions from Guantanamo detainees who argue that they are being held unlawfully
because the US exercises plenary and exclusive jurisdiction over the territory.
v. Hamdi v. Rumsfeld: Court held that “a citizen-detainee seeking to challenge his
classification as an enemy combatant must receive notice of the factual basis for his
classification, and a fair opportunity to rebut the Government’s factual assertions before a
neutral decision-maker.”
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COMMERCE CLAUSE
I.
Source of Congress’s power to regulate interstate commerce
a. ARTICLE I, SECTION 8
i. Power includes the power to regulate interstate commerce itself as well as the power to
regulate LOCAL commerce if it has a substantial effect on interstate commerce
b. Necessary and Proper Clause: Is this an area of national necessity?
i. Not necessarily important (ex: Morrison not part of the analysis of constitutionality of
the Act)
II.
Scope of Power: WHAT CONGRESS CAN DO
a. Power to Regulate Interstate Commerce Itself: Giving deference to Congress
i. The power to regulate interstate commerce itself is unrestricted
ii. Various powers (ex: Gibbons v. Ogden, Ames)
1. Can regulate interstate shipment of goods
2. Regulate methods of transportation to accomplish this shipment
3. Can prohibit shipment of goods (Ames)
4. Lopez factors:
a. Regulate the use of channels of interstate commerce
i. Ex: interstate highways, waterways, bridges, railroads
b. Regulate and protect the instrumentalities of interstate commerce
i. Ex: buses, trucks, airplanes, boats
c. Regulate those activities having a substantial relation to interstate
commerce (see #b)
iii. When regulating interstate commerce itself, the congressional motive is IRRELEVANT
even if the regulation is designed to achieve non-economic objectives so as to promote
morality (ex: Heart of Atlanta, Katzenburg)
b. Power to Regulate Intrastate Commerce if it Substantially Affects Interstate Commerce
i. COMMERCIAL ACTIVITY: When Congress regulates an intrastate commercial
activity (ex: Wickard, Heart of Atlanta), the test the court uses is whether Congress could
have rationally concluded that the regulated activity has a SUBSTANTIAL ECONOMIC
EFFECT on interstate commerce
1. Shows deference to Congress, findings, hearings, committee reports
2. Look to the aggregate: question is not whether an individual instance of the
regulated activity affects commerce (the what grown by farmer Filburn or the
guests who stay at Heart of Atlanta), but whether the regulated activity in its
ENTIRETY (added together the impact of each individual instance of the
regulated activity) has a substantial economic effect on interstate commerce
a. Ex: ALL the wheat farmers who grow wheat for home consumption or
ALL the travelers who stay at hotels and motels that discriminate based on
race
3. If a statute is involved: may also regulate aspects of the activity that are intrastate
in character (ex: Wickard, Raich)
a. The intrastate aspect of the activity (even if it is an agricultural product
grown for home or personal consumption) may be regulated in order to
make the entire regulatory scheme effective
b. This is true where the characteristics of the product are the same, whether
intended for interstate shipment or local use (like the wheat in Wickard or
marijuana in Raich)
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i. Failure to regulate this local production would leave a significant
gap in the regulatory scheme
ii. NON-COMMERCIAL ACTIVITY: When Congress regulates an intra-state noncommercial, non-economic activity (as in Lopez and Morrison), the court is LESS
deferential to Congress and requires that the activity have a DIRECT AND
SUBSTANTIAL economic effect on interstate commerce
1. When Congress regulates a non-commercial, non-economic local activity, the
Court will UPHOLD the regulation if: (part of the substantial effects test)
a. Statute contains a jurisdictional element that requires a connection to
interstate commerce be shown in each individual case where the statute is
applied
i. What was missing in Lopez and Morrison
b. Presence or absence of Congressional findings are not determinative
(present in Morrison, absent in Lopez), but such findings may help to
demonstrate the existence of a substantial economic effect
c. The substantial effect on interstate commerce needs to be based on more
than limitless arguments that would be available whenever Congress
regulates violent crime and can show a connection between the crime
and a reduction in economic productivity (Morrison).
i. Without such a limit, Congress would have the equivalent of a
federal police power
1. Lopez: do not want to “pile inference upon inference”
ii. Needs to be direct connection and not based on an attenuated
series of links that may connect an activity to economic
productivity (Lopez)
d. Whether the regulated activity (ex: education or family relationships) is
one that as traditionally been the province of the states and not the
federal government
e. NOTE: MORRISON
i. In the case of non-economic, violent crime, the Court will not
allow Congress to regulate “based solely on that conduct’s
aggregate effect on interstate commerce”
ii. Not clear whether a similar restriction will be applied to
congressional regulation of all non-economic, non-commercial
activities
NOTE: Distinction between commercial and non-commercial may be hard to make—have to do it on a
case-by-case basis. This depends on the scope of the congressional regulation—if it generally regulates a
commercial activity, the Court may be willing to characterize all of the applications of the statute as the
regulation of commercial activity even those that reach activity, which viewed in isolation, may be noncommercial
EX: Medical marijuana grown for personal consumption in Raich which was regulated as part of a
comprehensive regulation of the illegal drug market
III.
Is the federal act commandeering a state function?  10th AMENDMENT
a. Congress cannot commandeer the state legislative process to adopt a federal regulatory program
via the Commerce Clause--> GO TO TENTH AMENDMENT SECTION
i. NOTE: Garcia generally applicable law that applies to states as well as individuals is
OK and does not violate the 10th Amendment
ii. Not commandeering if just applying federal law
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IV.
Other Considerations
a. Would it threaten federalism and political accountability?
i. If legislation blurs the line of political responsibility, then it may result in confusion as to
whether to lay blame on the state or the federal government
b. STARE DECISIS: Judge COULD make the argument that Lopez cannot be overruled
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THE SPENDING POWER OF CONGRESS




Congress has broad power to spend funds to advance the general welfare
The spending power, however, CANNOT be used to regulate in an area where Congress has no
regulatory power (GO TO SOUTH DAKOTA V. DOLE)
ISSUE arises when Congress attaches conditions to money that it offers to states and local governments
As long as the entity that is offered the money has the theoretical right to turn down the funds and
therefore reject the condition, such conditions are legitimate exercises of the spending power and are not
considered unconstitutional regulations if they satisfy a 4-part test:
(1) GENERAL WELFARE: Exercise of the spending power must be in pursuit of the general
welfare
(2) UNAMBIGUOUS: The condition needs to be unambiguously stated so that the states can
make a knowing choice
(3) REASONABLY RELATED: There needs to exist some relationship between the condition
imposed and the federal interest in particular national projects or programs
(4) NO VIOLATION OF INDEPENDENT BAR: The condition may not induce the states to
engage in activities that would themselves be unconstitutional under other provisions of the
Constitution, and therefore, be independently barred
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DORMANT COMMERCE CLAUSE
I.
WHAT IS THE DORMANT COMMERCE CLAUSE?
a. Legal doctrine that courts in the United States have implied from the Commerce Clause in the
Constitution
b. The Commerce Clause expressly grants Congress the power to enact legislation that affects
interstate commerce
c. The idea behind the Dormant Commerce Clause is that this grant of power implies a negative
converse: a restriction prohibiting a state form passing legislation that improperly burdens or
discriminates against interstate commerce
i. In challenging a law because it violates the DCC, the challenger argues that while the
federal government has been silent in the area, the state law (or municipal ordinance)
places an unreasonable burden on interstate commerce and therefore violates the
Commerce Clause
WRITE THIS: THE STATUTE VIOLATES THE DCC IF IT 1) REGULATES
COMMERCE AND EITHER (A) DISCRIMINATES AGAINST OUT-OF-STATE
BUSINESS, WHICH PRESENTS ISSUES OF PROTECTIONAISM AND
BALKINIZATION, OR (B) UNDULY BURDENS INTERSTATE COMMERCE.
II.
MODERN APPROACH
a. Does the statute REGULATE COMMERCE?
b. Is the state statute discriminatory on its face? (Are out-of-staters and in-staters being treated
differently = stop the flow of commerce at the state’s border?)
i. If the statute discriminates against interstate commerce on its face (ex: Philadelphia v.
NJ), the presumption of validity normally afforded to state statutes disappears: STRICT
SCRUTINY TEST
1. The burden of proof shifts to the state to:
a. Demonstrate is has a legitimate objective AND
b. It cannot accomplish that objective by any less burdensome alternative
means
i. No other means exception: means that discriminate against
interstate commerce may only be used if there are no other means
available to achieve the state’s purpose (ex: Maine v. Taylor)
2. Under Carbone, facially discriminatory laws are invalid unless the state can show
“under rigorous scrutiny, that it has no other means to advance a legitimate local
interest”
a. United Haulers relaxes this standard a bit
ii. If NO discrimination but the statute pursues legitimate objectives with only an incidental
impact on commerce, it is assessed under a more lenient balancing test that weighs the
State’s interest against the burden the law imposes on interstate commerce (Pike v. Bruce
Church)
1. Whereas a discriminatory statute is presumptively invalid, a non-discriminatory
law is likely to be upheld unless the burden on commerce greatly outweighs some
legitimate state benefit
2. Go to step (b)
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c. If the state statute does not discriminate (facially neutral), does it pose a significant burden on
interstate commerce? BALANCING TEST
i. If the law is justified by a legitimate government purpose such as health, safety, or
environmental protection, the Court will weigh the burdens on interstate commerce
against the local benefits
1. In this balancing, a strong presumption of validity attaches to the state statute
2. It will be upheld even though it burdens interstate commerce so long as its value
as a health or safety or environmental protection measure is more than illusory,
slight, or problematical
ii. To win, the challenger must show that the law burdens interstate commerce in a
significant way and the benefits are only slight or illusory (Ex: Kassel v. Consolidated
Freightways Corporation)
d. Is the state statute designed to achieve an economic benefit for the state?
i. ECONOMIC PROTECTIONISM: If the statute is designed to achieve some economic
benefit for the state in the form of hoarding resources or avoiding economic burdens, the
purpose of the law will be viewed as economic protectionism and this purpose is
illegitimate under the Commerce Clause (South-Central Timber v. Wunnicke)
1. State laws that seek to accomplish such a simple economic protectionism are pro
se invalid (Carbone v. Clarkstown)
2. Balkanizing effect: do not want to separate the state from the rest of the union
ii. QUARANTINE: The States retain some power to enact reasonable quarantine laws
1. They may prevent introduction of disease even if it has an impact on interstate
commerce (ex: Maine v. Taylor)
2. Laws that regulate noxious articles, whatever their origin, are not always
impermissible protectionist measures (ex: Philly v. NJ)
a. Note: State cannot discriminate from outside articles without a reason
b. Kassel: Principle that under the commerce clause, a state may not reduce
the risks posed to its own citizens by the stream of commerce by diverting
that stream out-of-state
iii. Note: Granholm v. Heald: 21st Amendment does not allow states to discriminate against
out-of-staters; shows strong ANTI-DISCRIMINATION policy Court will read into CC
III.
EXCEPTIONS TO THE DORMANT COMMERCE CLAUSE
a. Market Participant Exception
i. A defense that may be available to the state in a limited number of cases—state may
defend by arguing that it is permitted to engage in protectionist behavior or discriminate
against interstate commerce because it is acting as a MARKET participant by directly
engaging in commercial activities rather than regulating activities of private participants
in the market
1. If MARKET PARTICIPANT: can use MPE
2. If REGULATOR: cannot use MPE (ex: South-Central) go to DCC analysis
above
a. The state may not impose conditions, whether by statute, regulation, or
contract that have a substantial regulatory effect outside of that particular
market (South-Central v. Wunnicke)
b. White v. MA Council of Construction Employers: MPE permits a State to
influence a “discrete, identifiable class of economic activity in which it is
a major participant” (note: all those affected worked for the city)
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c. Hughes v. Alexandria Scrap Corp: nothing in the purposes animating the
CC prohibits a state, in the absence of congressional action, from
participating in the market and exercising the right to favor its own
citizens over others
ii. Defense is not limitless and may NOT be available if:
1. The state is controlling access to a natural resource
2. The state is controlling a market in which it is not a direct participant
(downstream activity) OR
3. The state is interfering with international commerce
IV.
DON’T FORGET PRIVILEGES AND IMMUNITIES FROM ARTICLE IV,
SECTION 2
a. To show that a state law (or a municipal ordinance) violates the P&I Clause, the challenger must
show:
i. The state law treats differently residents and non-residents of the state and discriminates
against non-residents; and
ii. The discrimination affects the exercise of rights essential to interstate harmony
1. The discriminatory treatment must affect the exercise of basic rights and essential
activities
2. Activities that involve access to employment opportunities have been found to be
fundamental or essential activities protected by Article IV, Section 2 while
recreational activities have been found not to be protected and
iii. The state law does not satisfy the Court 2-part test:
1. Does the state have a substantial reason for treating non-residents differently?
2. Does the degree of discrimination against non-residents bear a substantial relation
to the state’s objective?
a. Includes consideration of the availability of less restrictive means
iv. THERE IS NO EXCEPTION WHEN THE STATE IS ACTING LIKE A MARKET
PARTICIPANT
1. Note: while the DCC is available to both individuals and corporations, the
protection of the P&I is only available to individuals and NOT to corporations
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FEDERALISM
TENTH AMENDMENT CHALLENGES:
The powers not delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.
IF THE FEDERAL GOVERNMENT IS FORCING THE STATES TO DO SOMETHING, ALWAYS BRING IN
10TH AMENDMENT ARGUMENT:
1) What is a 10th Amendment Challenge?
a. Is the act “commandeering” the states?
b. In recent years, after abandoning the National League of Cities approach, the Court’s 10th
amendment focus has SHIFTED to protecting the states from being forced to adopt or
administer federal regulatory programs
i. While the federal government is free to regulate areas falling within the scope of the
Commerce Clause, including to apply those federal laws to the state’s own activities, or
to provide incentives to encourage the states to cooperate it CANNOT force the states
to participate in the administration of those laws.
c. THUS:
i. When a congressional act CONFLICTS with the 10th Amendment: Go to 2(b)
1. Federal government can’t require the states to ENACT legislation (NY v. US)
2. Federal government can’t require the state to enforce and administer federal
regulatory programs (Printz v. US)
a. Federal government cannot force state law officials to assist in the
administration of a federal regulatory scheme (Printz v. US)
i. Cannot compel state executive officials
ii. When a congressional act DOES NOT conflict with the 10th Amendment: Go to 2(a)
1. WHAT is being regulated is being regulated in a “generally applicable way” (to
states and individuals) (Garcia)
2. Congress is regulating state activities rather than seeking to control or influence
the manner in which states regulate private parties
2) Through what lens is the Court looking at the regulation?
a. Who is being benefited or burdened by the regulation?
When the Court looks at the regulation’s application—usually finds it is not violating the 10th Amendment as it
looks at who is being benefited by the regulation and the greater public interest
i. If Congress passes a generally applicable law, the fact that the regulation affects the
states has virtually no practical significance, and the 10th Amendment never comes into
play. If the regulation would be valid if applied to a private party, it is also valid as to the
state.
1. Garcia: Congress passes minimum-wage and overtime provisions, which are
made applicable to ALL business of a certain size. THUS, not forbidden!
b. How is it being regulated?
If the Court looks at the how the regulation is being enforced/enacted, usually finds that it IS violating the 10th
Amendment
i. Commandeering the States?
1. NY v. US: This is coercion because there is no alternative—can choose which
method to take, but there is no way to reject federal authority
15
a. Compelling states to legislate—in essence, the federal government is
forcing the states to legislate
i. Congress may not simply “commandeer” the legislative processes
of the States by directly compelling them to enact and enforce a
federal regulatory program.
2. Printz: Congress cannot circumvent prohibition by conscripting the State’s
officers directly
3. Reno: Court upheld Driver’s Privacy Protection Act because the states were
properly regulated under CC; the statute commandeered neither legislative nor
executive components of state governments
ii. Going through states or private parties?
1. Accountability: Acting through state officials or direct relationship?
a. NY v. US: Where federal government compels States to regulate, the
accountability of both state and federal officials is diminished
i. There is a DIRECT relationship between the Congress and the
people—no need to go through the states
b. Garcia: By forcing state governments to absorb the financial burden of
implementing a federal regulatory program, members of Congress can
take credit for “solving” problems without having to ask their constituents
to pay for the solutions with higher federal taxes.
i. Going through individuals as state officials
iii. Negative Prohibitions vs. Affirmative Obligations
1. Negative prohibitions Reno: Regulation constitutional under 10th Amendment;
telling the state what it CANNOT do as opposed to telling the state what it CAN
do
a. First time in the last decade that the Court has rejected a federalism
challenge to state law
2. Affirmative Obligations Printz, Garcia, and NY struck down laws
c. Other Considerations:
i. Political Process
1. The political process ensures that the laws that unduly burden the States will not
be promulgated (Garcia)
ii. Historical Role of Federalism
1. “In short, the Framers chose to rely on a federal system in which special restraints
on federal power over the States inhered principally in the workings of the
National Government itself, rather than in discrete limitations on the objects of
federal authority.” (Garcia)
2. “In providing for a stronger central government, the Framers explicitly chose a
Constitution that confers upon Congress the power to regulate individuals, not
States.” (NY v. US)
3. “It is incontestable that the Constitution established a system of dual
sovereignty.”(Printz)
iii. Functionalist v. Formalist  Refer to Scalia opinion from Printz
16
11TH AMENDMENT CHALLENGES: STATE IMMUNITY FROM SUIT
The judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against any of the states by citizens of another state, or by citizens or subjects of any foreign state.
(1) What is an 11th Amendment challenge?
a. Textually, the 11th Amendment CLEARLY bars suits against a state brought by citizens of a
different state or by foreigners
b. The 11th Amendment has been INTERPRETED to apply also to bar a damage suit where the
plaintiff is a citizen of the D’s state this is true even if the suit is based on a congressionallygranted federal right
c. Purpose of the 11th Amendment:
i. Prevention of obligation of state treasury to pay out federal judgments AND
ii. Avoid indignity to the state of being subjected to judicial proceedings at the hands of
private individuals
(2) Is this an exception to the 11th Amendment?
--Can sue a state official for an injunction but not damages when violates federal law or P’s constitutional
rights
--Can sue a state official for money damages if paid out of official’s pocket
--Federal government can sue a state
--No SI for localities- Individual can sue a city or county. Look to the source of funding to see if it is local.
Must see if a judgment against that entity will operate largely as a suit against the state treasury. Other relevant
factors: extent of state control over the entity, the type of functions the entity performs, and how the state has
designated the entity.
--State can consent to suit in federal court
--Conditional spending- consent to waive SI for money.
--Only time a citizen can sue a state in federal court without consent is when Congress passes statute pursuant
to its power (Section 5 of 14th) to enforce the Civil War amendments (Equal Protection cases) see Seminole
Tribe of Florida v. Florida
--States cannot be named as defendants in federal administrative agency proceedings FMC v. SCPA
(3) Is P a citizen of a different state or the same state than the defendant state?
--States have a constitutionally-guaranteed sovereign immunity from private damage suits brought against the
state in the state’s own courts, Alden v. Maine
(4) Is this a suit by the states or the federal government?
--11th Amend does NOT bar federal suits brought against one State by (1) another state, or (2) Feds.
(5) Has Congress abrogated the state’s sovereign immunity?
1) Has Congress has unequivocally expressed its intent to abrogate the immunity AND
 Congress must provided an "unmistakably clear" statement of its intent to abrogate
2) Has Congress has acted pursuant to a valid exercise of power.
 Congress is acting properly pursuant to a valid exercise of power if Congress employs its remedial
powers under Section 5 of the 14th amendment. Thus, Congress may ONLY abrogate the states’ 11th
amendment immunity via § 5 of 14th amendment, Katzenbach v. Morgan.
o Congress can no longer abrogate State sovereign immunity via the Commerce Clause, but it can
condition $ (spending power) on the waiver of sovereign immunity, S.D. v. Dole.
(6) Always mention where there is A RIGHT THERE IS A REMEDY
17
--Cite Marbury v. Madison. Citizens are not powerless, have redress against state action for grievances
because Congress can abrogate (take away) sovereign immunity through Sec 5 of 14th amendment.
18
FEDERAL PREEMPTION OF STATE LAW
Are state law and federal law in conflict?
I.
II.
What is a preemption challenge?
a. Challenger is claiming that a state law is unconstitutional because it has been preempted by a
valid federal law
b. State is violating the SUPREMACY CLAUSE of Article VI because the federal government has
enacted a federal law that prohibits the state from acting in a certain way and the state law being
challenged in one in which the state is acting in the prohibited manner
What type of preemption?
a. Express preemption: Congress has declared its intent to preempt state law
b. Conflict preemption: occurs when courts determine there is an actual conflict between state and
federal law
i. Actual conflict: whenever it is impossible to comply with both federal and state law or
the state law stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress (Pacific Gas & Electric v. State Energy)
ii. Geier v. American Honda: Allowing state liability for cars made in compliance with
federal safety standard was in CONFLICT with federal law
c. Field preemption: occurs when Congress impliedly intended to “occupy the field” so fully that
it left no room for the States to supplement it
i. Does not need to be a conflict between state and federal law—state law may even further
purpose of federal law
1. May still be preemption if the federal regulatory scheme is sufficiently
comprehensible to make reasonable the inference that Congress left NO ROOM
for supplemental state regulation
ii. When the Court is uncertain as to whether Congress intended to preempt the field, it will
look to the NATURE of the regulated area:
1. If the area regulated by Congress is an area in which the federal interest is
dominant: Court will be more inclined to presume that Congress intended to
occupy the field
a. Ex: areas of immigration or foreign affairs (American Insurance
Association v. Garamendi)
b. US Term Limits v. Thornton: it is unconstitutional for states to impose
term limits on federal legislators direct relationship between people and
federal government
2. If the area regulated by Congress is an area that has traditionally been regulated
by the states: Court will be less likely to presume that Congress intended to
occupy the field
a. Ex: regulating electric utilities, education
19
14th AMENDMENT VIOLATIONS:
STATE ACTORS
STEP ONE: IS STATE ACTION INVOLVED?
A. THE STATE ACTION REQUIREMENT
a. Constitutional Basis
i. 14th Amendment, Section 1:”…No STATE shall make or enforce any law which shall
abridge the privileges or immunities of the citizens of the US, nor shall any State deprive
any person of life, liberty, or property, without due process of law, nor deny to any
person within its JD the equal protection of the laws.”
ii. 14th amendment says that NO STATE shall deny DP and EPC.
b. Thus, there is a condition that the state actor must be doing the violation to make the claim
i. BUT, what happens when private actors do the violation—are there any circumstances in
which private action can be seen as state action?
B. PRIVATE PARTIES AND STATE ACTION
a. There are different ways that private parties’ actions can be attributed to the state:
i. Judicial intervention: Calling on the courts to settle a dispute
1. Civil Rights Cases: If a private person or a corporation refuses to allow blacks to
use public accommodations or public conveyances, they are engaging in private
wrongs that have no relationship to a deprivation of rights that the 14th
Amendment protects STATE ACTION REQUIREMENT
ii. ENTWINEMENT: Did state actors get entangled in a manner that makes a private
party’s action STATE action?
1. May not hold due to addition of Roberts/Alito this is very expansive
2. Brentwood Academy v. TSSAA: “The nominally private character of the
Association is overborne by the pervasive ENTWINMENT of public institutions
and public officials in its composition and workings, and there is no substantial
reason to claim unfairness in applying constitutional standards to it”
iii. Public function: Does the private party perform a public function that makes it a state
actor?
1. Edmonson v. Leesville Concrete Company: There is a state action when private
parties exercise peremptory challenges in a civil case in a racially discriminatory
manner
iv. State officials acting in official capacity:
1. Shelley v. Kraemer: Action of state courts and judicial officers in their official
capacities is to be regarded as action of the State within the meaning of the 14th
Amendment
2. Deshaney v. Winnebago County: The government generally has NO DUTY to
protect individuals from privately inflicted harms Note Castlerock extension
3. Lewis v. Sacramento: Police officers in high-speed car chase—Court did not even
question state action; given
Court finds State Actor
Private selector of government officials
(white crime area cases)
Private physician who contracts to give
medical services in a state facility
Court says NOT State Actor
Public defender
Private debt collection (even though the
state provides that debt can be collected if
done by a private state entity)
20
Peremptory challenges in a civil court
Government profit on government property
No money BUT government function
Party exercising choice by state/individual
choices (private choice to exercise option A
or option B)
Regulated industry by virtue of being a
regulated industry (ex: liquor distributors,
etc)
State giving money with a private
contractor is not enough
 IF NO STATE ACTOR OR RELATIONSHIP TO STATE ACTIONANALYSIS OVER
 IF STATE ACTION FOUND GO TO EITHER DPC OR EPC
21
PROCEDURAL DUE PROCESS
I.
What is Procedural Due Process?
a. Refers to the PROCEDURES that the government must follow before it deprives a person of life,
liberty, or property
i. Concern what kind of notice and what form of hearing the government must provide
when it takes a particular action
b. Contrast with Substantive Due Process:
i. Substantive due process: asks whether the government has adequate reason for taking
away a person’s life, liberty, or property—looks to whether there is sufficient justification
for the government’s action
ii. Contrast through remedy sought:
1. If the P is seeking to have a government action declared unconstitutional as
violating a constitutional right  substantive due process
2. But, when a person or group is seeking to have a government action declared
unconstitutional because of the lack of adequate safeguards, such as notice and a
hearing  procedural due process
II.
The Procedural Due Process Analysis
a. Is there a liberty or property interest involved?
b. IF YES: If so, what procedure is due before that interest is taken away?
i. Cleveland Board of Education v. Loudermill: 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
1. “Minimum procedural requirements are a matter of federal law, they are not
diminished by the fact that the State may have specified its own procedures that it
may deem adequate for determining the preconditions to adverse official action”
2. NEED ADEQUATE PROCEDURES
ii. How do you determine what procedures are adequate?
iii. Matthews v. Eldridge: Balancing test for deciding what procedures are required when
there has been deprivation of life, liberty, or property and due process is required
1. INTEREST OF INDIVIDUAL: Private interest that will be affected by the official
actionE
2. ACCURACY OF FACT-FINDING: Risk of an erroneous deprivation of such
interest through the procedures used and the probable value, if any, of additional
or substitute procedural safeguards
3. BURDEN’S IMPOSED ON THE GOVERNMENT: The Government’s interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would entail
iv. Hamdi v. Rumsfeld: American citizen, apprehended in a foreign county, and held as an
enemy combatant is entitled to due process
1. Minimum due process necessitates notice of charges, a meaningful factual
hearing, and representation by counsel
c. What are specific examples of adequate notice?
i. Goldberg v. Kelly: government must provide notice and a hearing before terminating a
person’s welfare benefits
ii. Matthews v. Eldridge: when a government terminates Social Security benefits, it need
provide only a post-termination hearing
22
iii. Cleveland Board of Education v, Loudermill: Due process satisfied if the government
provided a fired employee an informal pre-termination proceeding where it was possible
to respond to the charges and then a later post-termination hearing
iv. Arnett v. Kennedy: Government can fire a public employee for misconduct without a full
hearing prior to termination (pre-termination review and post-termination hearing
sufficient)
23
SUBSTANTIVE DUE PROCESS:
ECONOMIC REGULATIONS







I.
Is the law regulating business and employment practices?
II.
What is Economic Substantive Due Process?
Court has made it clear that economic regulations (laws regulating business and employment practices)
will be UPHELD when challenged under the due process clause SO LONG AS they are rationally
related to serve a legitimate government purpose
Since 1937, not ONE law has been declared unconstitutional by the SC as violating economic
substantive due process
STATE ONLY NEEDS TO SHOW RATIONAL BASIS for the law (differs from personal liberty test)
III.
What Test to Apply? The Rational Basis Test
Lochner v. NY:
o Freedom of Contract is a basic right protected as liberty and property rights
o Government could interfere with freedom of contract only if it served a valid police purpose
o It is the role of the judiciary to scrutinize legislation from interfering with the freedom of K
o Holmes Dissent: This is a court of law, not a court of economic theory
o Harlan Dissent: Need for judicial deferences for legislative choices
West Coast Hotel Company v. Parris
o Court no longer protects freedom of K as a fundamental right—ENDED substantive due process
o Look to real and legitimate state interests
US v. Carolene Products: Minimum rationality coupled with presumption of constitutionality
Revival of Economic Substantive Due Process: PUNITIVE DAMAGES
State Farm v. Campbell and Phillip Morris: Excessive punitive damage awards violation of economic
substantive due process rights
o Imposition of grossly excessive damages violates the due process clause b/c it constitutes an
unconstitutional deprivation of property (Campbell).
o State Farm v. Campbell & Philip Morris restrict ability of states to use punitive damages to
punish individuals.
 Campbell – states can’t punish a defendant based on a defendant’s conduct in other
states, considering that w/out litigation the defendant’s out of state conduct is technically
lawful.
24
SUBSTANTIVE DUE PROCESS:
PERSONAL LIBERTY RIGHTS
I.
DUE PROCESS CHALLENGE: What is it?
a. Due Process Clause of the 14th Amendment is used to challenge state laws that interfere with
personal liberty rights
b. Such personal rights may receive only minimum protection because they are non-fundamental or
they may be viewed as fundamental and receive the benefits of a more rigorous review
c. FIRST: IDENTIFY IF THERE IS A CONSTITUTIONAL TEXTUAL PROVISION THAT
GIVES A RIGHT
II.
DEFINE THE LIBERTY INTEREST INVOLVED: BROAD OR NARROW
a. Breadth in which you define that liberty interest may have a lot to do with what happens in later
parts of the analysis
b. Seen cases in which the SC is broader or narrower in definition
i. Bowers: narrowly defined liberty interest of one being homosexual sodomy—had a lot to
do with the fact that it was not unconstitutional for the state to criminalize homosexual
sodomy
ii. Lawrence: broader approach to defining liberty interest; liberty interest in engaging in
private consensual sexual activity—had a lot to do with outcome of case
III.
ARE WE DEALING WITH A FUNDAMENTAL RIGHT?
a. What are fundamental rights?
i. Fundamental Rights:
1. Rights specifically enumerated in the Bill of Rights (ex: freedom of speech)
2. Non-enumerated fundamental privacy rights:
a. Abortion rights (Griswold, Roe, and Casey)
b. Right of an extended family to live together (Moore)
i. Concentric Circles test from Moore (fundamental liberty interest
with married, heterosexual couple to have children)
c. Right to marry (Zablocki)
d. Right to raise one’s children (Troxel v. Granville)
e. Right to gay marriage (MA SC in Goodridge)
f. Right to private consensual sexual conduct (Lawrence)
g. Right to die (Glucksburg, Cruzan)
 If one of these rights or can analogize—go to FUNDAMENTAL RIGHTS section
ii. Non-fundamental rights:
1. Would not get 14th Amendment protection
b. How do you distinguish between fundamental and non-fundamental rights within the zone of
privacy?
i. In deciding whether a right is a fundamental right within the zone of privacy, the Court
uses several different approaches:
1. Reasoning by Analogy: Here, the Court compares the right at issue to rights
already declared to be within the zone of privacy as well as those declared to be
non-fundamental and not within the zone of privacy
2. History and Tradition: Court also looks to history and tradition to see if the right
is deeply rooted in the fabric of American Society OR modern approaches
25
a. Two methods:
i. Look to the past: Has America ALWAYS done it this way?
1. Harlan’s opinion from Griswold: look at history and
statutes that existed at the time the 14th Amendment was
ratified, looking at surrounding culture of American culture
(is this fundamental in American way)
2. Lawrence v. Texas: majority downplayed the importance of
history and traditional in overturning Bowers v. Hardwick
ii. Look at modern times: Is America doing it this way now?
1. Lawrence: tendency to say whether there is an emerging
consciousness—is American population coming to accept
something that it didn’t accept as fundamental that it didn’t
150 years ago
2. Court seems to be much more willing to look to foreign or
comparative law—not just historically oriented
fundamental notions
a. Ex: Lawrence “law of nations”—countries in
Europe do not criminalize homosexuality (although
Scalia dissents on these grounds)
 DEFINE HISTORICAL ANALYSIS THROUGH BROAD AND NARROW DEFINITIONS
3. Personal Identity: Court looks at whether the activity is central to personal
identity (Casey)
a. Casey: These matters, involving the most intimate and personal choices a
person may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the 14th Amendment
c. If the right is fundamental: STRICT SCRUTINY
i. Review under strict scrutiny to make sure that the state has chosen a narrowly tailored
means to achieve a compelling state interest
ii. Go to IV
d. If the right is non-fundamental: RATIONAL BASIS TEST
i. Go to V
IV.
IF FUNDAMENTAL:
a. STRICT SCRUTINY: The traditional test used to review intrusions on fundamental privacy
rights is strict scrutiny as seen in Griswold
i. Under this test, the government must show that it is employing narrowly tailored means
to accomplish a compelling end
1. A means is not narrowly tailored if there are less restrictive alternative means
available
2. Will not be narrowly tailored if there is lots of uncertainty
ii. Examples
1. Roe: Court characterized the state’s interest in promoting the potential life of the
fetus as compelling only after the fetus becomes viable state’s interest in
maternal health became compelling only after first trimester
2. Casey: Trimester approach rejected in Casey and state interests were viewed as
compelling throughout the pregnancy
b. UNDUE BURDEN ALTERNATIVE: Only seen this with abortion (but argue nonetheless!)
26
i. The right to abortion—since Casey—has been considered by some to be a qualified
fundamental right since it is unconstitutionally infringed only when the state imposes an
undue burden on the exercise of the right to abortion
ii. Test divides regulations of fundamental rights into 2 categories:
1. Regulations that are relatively minor intrusions on the right, those that do not
impose an undue burden on the right rational basis
2. Regulations that are significant interferences with the exercise of the right, either
outright bans or the imposition of significant obstacles strict scrutiny
iii. The undue burden test operates as a threshold inquiry to determine the appropriate level
of scrutiny: STRICT VS. RATIONAL BASIS
1. Abortion: Casey
a. In applying the undue burden or substantial obstacle test in Casey, the
Court found the spousal notification provision to be an undue burden and
therefore struck down the requirement
b. By contrast, the Court found that the 24-hour waiting period requirement
was not an undue burden and therefore upheld that provision of the law
c. “An undue burden is a shorthand for the conclusion that a state regulation
has the purpose on effect of placing a substantial obstacle in the path of a
woman seeking an abortion of a non-viable fetus”
i. Court will uphold laws that are designed to promote the state’s
interest in potential life by attempting to persuade women to
choose childbirth over abortion so long as the laws do not create an
undue burden on the exercise of the right
2. Other Areas
a. Impossible to know how widely the Court will employ the undue burden
test as compared to the traditional strict scrutiny test in future fundamental
right cases
b. Plurality opinion in Griswold: other areas that are left open
V.
IF NON-FUNDAMENTAL: RATIONAL BASIS TEST
a. Requires that the right be rationally related to a legitimate governmental justification
i. Under strict scrutiny, it is not enough for the government to prove a compelling purpose
behind a law; the government must also show that the law is necessary to achieve the
objective
ii. Under a rational basis view, the means only has to be a reasonable way to achieve the
goal and the government is not required to use the least restrictive alternative
b. Only question is that the interest of the government must be legitimate (usually just about saving
money)
i. Most of the time when you have deference to legislative policy-making bodies, the
answer to that is YES
ii. If the court is passive about looking to things, then we say no rational basis
iii. MORALITY is a legitimate governmental purpose under a rational basis test
c. Two differing views on rationality:
i. Hernandez v. Robels: institutional competence look at rationality
1. How does the legislature look at these things when in the policy-making position?
2. Ex: In Hernandez, legislature could rationally decide for the welfare of children
and to avoid stability, could rationally believe it is better to grow up with mom
and dad DENIED gay marriage
ii. Goodridge: deeper analysis of rationality
1. Is this rational in the grand scheme of things?
27
2. Ex: In Goodridge, the court asked: is it rational to deny funds to people simply
because they are homosexual?
VI.
HAS THE STATE INFRINGED ON THE FUNDAMENTAL LIBERTY
INTEREST? (Usually obvious!)
28
FUNDAMENTAL RIGHTS:
SUMMARY OF THE LAW
FUNDAMENTAL RIGHTS
RIGHT TO PRIVACY:
Right to marital privacy (birth
control)
Right to abortion
Right to privacy in intimate
relationships
Right to die
Right to marry
Right to gay marriage
Right to procreate
Right of extended family to live
together
Right to raise one’s children
NOT FUNDAMENTAL RIGHTS
Right to contract
Right to welfare
Right to education
Economic rights generally
Voting for president
CASE
Griswold
Roe, Casey, Stenberg
Einsenstadt, Lawrence, Bowers
Cruzan, Glucksberg**
Zablocki, Loving
MA SC in Goodridge
Skinner
Moore
Troxel
CASE
Slaughterhouse cases
Saenz
San Antonio
Lochner
Bush v. Gore
** = See RIGHT TO DIE cases
Right to an Abortion
 Griswold, Eisenstadt, Roe, and Casey: right to sexual autonomy as a means of self-definition.
Contraceptives:


Griswold v. CT: Right to privacy is a fundamental right that is implicit in the penumbra of rights; it is
unconstitutional to prohibit use of contraceptives as a result. Marital privacy is a fundamental right, deeply
rooted in history and tradition.
o Goldberg Concurrence: 9th Amendment
o Harlan Concurrence: Right to privacy should be protected under the liberty of the DPC
Eisenstadt: Unconstitutional to prohibit sale of contraceptives to unmarried persons. Right to reproductive
autonomy now exists even in non-private situations (outside of the bedroom)


Abortion:
Roe: A woman’s right to have an abortion is part of her fundamental constitutional right to privacy—found
through the liberty in the due process clause articulates strict scrutiny test
29



Casey: Recognized a woman’s fundamental right to choose to abort a non-viable fetus articulates undue
burden test
Sternberg: Partial-birth abortion (post-viability) bans must include an exception for the health of the
mother lest it serves as an undue burden.
o Statute banning partial birth abortion struck down b/c did not contain exception for health of the
mother
Gonzales: A law regulating abortion procedures will 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 does not impose an UNDUE BURDEN on the ability of a pregnant
woman to have a safe abortion
Right to Marry
 Zablocki v. Redhail: Right to marry is a fundamental right—Court strikes down statute preventing people
with outstanding child support obligations get married
 Gay Marriage
o Goodridge v. MA (MA SC): Ban on same-sex marriage struck down under RR for EPC and
DPC, no need to use SS
 State interests: providing a favorable setting for procreation; ensuring the optimal setting
for child rearing; preserving scarce state and private financial resources
 Full faith and credit clause: judgments and decrees given full faith and credit b/t states,
but if it violates the state’s public policy, the state does not have to recognize it
 NOTE: Hernandez v. Robels (NY case)  denied gay marriage
Rights of Families
 Moore v. City of East Cleveland: fundamental right to keep the family together (extended family)
 Troxel v. Granville: Parents have a fundamental right in the upbringing of their children
Right to Sexual Intimacy
 Lawrence v. TX: overruled Bowers. Right to autonomy & privacy are fundamental. Bowers asked too
narrow a question- if there was a right to homosexual sodomy.
o TX statute criminalizing only homosexual sodomy unconstitutional b/c it furthers no legitimate
governmental interest..
Right to Die:
 Court has made a conscious decision to stay out of right-to-die cases. Exact opposite approach to
abortion debate.
 SUMMARY:
o A competent adult has a 14th Am “liberty interest” in not being forced to undergo unwanted
medical procedures including artificial life sustaining measures.
1. Right to die, right to NOT receive medical treatment (Cruzan v Directory, MS Dept. of Health &
Washington v. Glucksberg),
HOWEVER:
2. NO right to affirmatively act to take life (Glucksberg).
3. NO right for others to speak on behalf of incompetent – one has a right to give/deny informed
consent – but in cases of incompetent individuals procedural safeguard to ensure that surrogates are
exercising the wishes of that individual are ok (Cruzan).
4. The state has an important countervailing interest in preserving life. At the very least, this interest
entitles the state to require, b/f it allows pulling the plug, clear and convincing evidence that a nowincompetent patient would have voluntarily declined life-sustaining measures (Cruzan).
30
5. Terminally-ill patients do not have a general liberty interest in committing suicide. Nor do they have
a right to recruit a 3d person to help them. (Glucksberg).
31
EQUAL PROTECTION VIOLATIONS:
PERSONAL LIBERTY RIGHTS
STEP TWO: IS THERE A SUSPECT CLASS?
A. Who is being discriminated against?
a. Suspect Class (Race/national origin): STRICT SCRUTINY
b. Quasi-Suspect Class (Gender): INTERMEDIATE
c. Non-Suspect Class (All others): RATIONAL BASIS
B. Whether the class is suspect depends on:
a. History of the 14th Amendment:
i. EX: Framers had race in mind—purpose of the 14th Amendment was to protect AfricanAmericans (race) by striking down explicit racial discrimination
1. Nation’s history plagued with invidious racial discrimination
b. Problem of stigmatizing or creating a “caste system” because the characteristic about which the
classification is made is (1) immutable and (2) readily identifiable
i. Immutable traits require protection because those with those characteristics can’t change
it
ii. Identifiable minority characteristics create a “class”
iii. Government action dividing use by race is inherently suspect because such classifications
promote notions of racial inferiority and lead to politics of racial hostility (Parents
Involved)
c. Concerns about the political process
i. Where other groups have historically refused to form coalitions with a given group
because of their common characteristics, that group needs protection in the political
process, lest their minority voices fall silent
d. Ex: City of Cleburne v. Cleburne Living Center mentally handicapped are NOT a suspect class
i. Court looked at:
1. History of discrimination
2. Political powerlessness of group
3. Immutability of characteristic/no relation to ability to perform
C. NOTE 4 from Carolene Products: Prejudice against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of those political processes ordinarily to be
relied upon to protect minorities and thus “may call for a correspondingly more searching” judicial
inquiry
ARTICULATE REASONS WHY ALL 3 LEVELS OF SCRUTINY ARE APPLICABLE OR NOT APPLICABLE—
IF NOT CLEAR IF THIS IS A SUSPECT CLASS
STEP THREE: WHAT TYPE OF DISCRIMINATION IS THIS?
D. What TYPE of discrimination is this: Benign v. Invidious Discrimination
a. Invidious Discrimination v. Benign
i. Invidious Discrimination: group is being discriminated against
ii. Benign Discrimination (Affirmative Action): race or some other status is actually taken
into account but for compensatory action rather than mistreatment  GO BELOW
b. Looking to facial discrimination:
i. Race: Strict Scrutiny (Korematsu)
ii. Sex: Middle-Tier usually (Craig, Michael M, US v. VA)
iii. Poverty: Rational Basis (San Antonio, Plyler)
iv. Disability: Rational Basis (Cleburne)
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v. Sexual Orientation: Rational Basis (Goodridge, Romer to an extent)
vi. New Classification? Argue for heightened scrutiny.
1. Three step inquiry:
a. History of discrimination
b. Political powerlessness
c. Immutability/no relation to ability to perform
d. If necessary, Carolene Products “discrete and insular minority”
IF INVIDIOUS DISCRIMINATION:
c. Is there a discriminatory purpose or intent?
i. EPC only violated by purposeful discrimination
ii. Usually obvious because:
1. Discrimination is apparent on the face of the statute (Strauder v. WV)
2. Discrimination is admitted
iii. In cases where the challenger asserts that invidious discrimination is covert, challenger
must introduce evidence of a discriminatory purpose:
1. Statistical proof of a disproportionate impact (Yick Wo)
2. Evidence of irregularities in substance or procedure
3. Statements by decision-makers
iv. Government can introduce evidence to overcome the prima facie case established by such
evidence by showing an ABSENCE of a discriminatory purpose (Washington v. Davis)
d. What standard of review do we use?
i. Strict Scrutiny:
1. When do we use this standard?
a. Used for suspect classifications: those based on race or ethnicity
2. What is required?
a. Whether the use of the classification is NARROWLY TAILORED to
achieve a COMPELLING GOVERNMENT OBJECTIVE
i. Compelling interest: What is the real purpose? Legislative intent
ii. Narrow tailoring: cannot be over or under inclusive/
discuss other alternatives (Korematsu)
1. Over-inclusive: must specify who within the group is to be
included
2. Under-inclusive: must include outside groups that need
protection
b. When the government employs a racial classification, it must prove that no
race neutral means would achieve its objective and that no less
discriminatory race-based solution is available either
Racial Laws that are Evaluated under Equal Protection Clause Analysis
 Separate but equal is unconstitutional (Plessy; Brown; Loving)*
 Facially Racially discriminatory (Strauder, Korematsu)*
 Race-neutral but discriminatory in application (Yick Wo)*
 Equal in the law, but race categories (Loving)*
 Equal as to race, but disparate impact (Washington v. Davis)
* = Strict scrutiny
Does the statute contain an element that is…:
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SEPARATE BUT EQUAL:
 Brown v. Board of Education: Separate but equal is unconstitutional
o State mandated segregation inherently stamps black children as inferior SUPREME COURT
ACCEPTED BROAD FINDINGS HERE
o Court looks at: Educational context, subordination (social context), international context
o Harlan Dissent: Constitution is colorblind
 Loving v. VA State argues because it treats blacks and whites equally, it does not constitute “invidious
discrimination”
RACIALLY DISCRIMINATORY ON ITS FACE:
 Strauder v. WV: Law giving blacks all white juries and no all black alternative unconstitutional
o Easy case: facially unconstitutional jury duty
 Korematsu v. WV: Upheld evacuation of Japanese-Americans; First articulation of STRICT SCRUTINY
o Compelling interest: national security
o Narrow tailoring: court doesn’t look to over-inclusiveness
RACE NEUTRAL BUT DISCRIMINATORY IN ENFORCEMENT:
 Yick Wo v. US: Cannot enforce racially discriminatory practices even if law racially neutral
o First 14th Amendment case expanded to non-citizens
o “…They are applied by the public authorities charged with the administration, and thus
representing the State itself, with a mind so unequal and oppressive as to amount to a practical
denial by the State of EPC
EQUAL IN THE LAW BUT USE OF RACIAL CLASSIFICATIONS
 Loving v. Virginia: Facially neutral statute but using race as a category is unconstitutional
o Reject notion that mere application of a statute concerning racial classifications is enough to
remove the classifications from the 14th Amendment’s proscription of all invidious racial
discriminations”
 Johnson v. California: Remanded under STRICT scrutiny
o All racial classifications must meet strict scrutiny
EQUAL AS TO RACE, BUT DISPARATE IMPACT: IMPACT ALONE IS NOT ENOUGH
 Washington v. Davis: Proof of a discriminatory purpose = racial classifications—impact alone is not
enough
 Arlington Heights v. Metropolitan: Absent discrimination as stark as Yick Wo, impact is not enough
 Personnel Administration v. Feeney: To render a statute unconstitutional, the legislature must have acted
“at least in part because of” not merely “in spite of” its adverse effects on females
ii. Intermediate Scrutiny
1. When do we use this standard?
a. Seen for ALL instances of GENDER discrimination, whether men or
women are discriminated against
2. What is required? IMPORTANT INTEREST + SUBSTANTIAL RELATION
a. Requires that the use of the classification be SUBSTANTIALLY
RELATED to an IMPORTANT government justification
b. Burden of proof is on the government to show an important objective and
that the use of the classification is substantially related to that objective
i. Exceedingly persuasive justification (US v. VA)
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1. Challenger can present less discriminatory alternatives to
the Court and argue that the government does not have to
use the challenged classification to achieve its objective
because gender-neutral means are available
2. Can argue that the state’s objective is not important
because it would reinforce archaic stereotypes or overbroad
generalizations about the proper roles of men and women
ii. Government can defend by showing that the less discriminatory
alternatives would be less effective or that it does not have to
choose the least discriminatory classification—only a classification
that is substantially related to the objective
3. In gender cases, Court is more sympathetic to different treatment rooted in
BIOLOGICAL differences than SOCIALLY CONSTRUCTED differences
a. Craig v. Boren: To withstand constitutional challenge, previous cases
establish that classifications by gender must serve important governmental
objectives and must be substantially related to those objectives (problem
here with traffic safety and gender)
b. Michael M: Example since Craig v. Boren where gender classifications
have been upheld WITHOUT the Court expressly using intermediate
scrutiny or mentioning a level of scrutiny (statutory rape case)
c. US v. Virginia: EXCEEDINGLY PERSUASIVE JUSTIFICATION
i. Gender-discrimination is traditionally middle-tier, court making it
higher
ii. Parties who seek to defend gender-based government action must
demonstrate an exceedingly persuasive justification for that action:
burden is on the State
iii. Rational Basis Test (Minimal Rationality of Review)
1. When do we use this standard?
a. Used to examine laws that discriminate against non-suspect classes
including age, wealth, mental retardation, or economic classifications
2. What is required?
a. Requires that the use of the classification be RATIONALLY RELATED
to a legitimate government justification
i. If NO legitimate purpose for the law:
1. Ex: Romer v. Evans Court found the purpose of the law,
the desire to harm a politically unpopular group, to be
illegitimate
ii. If legitimate purpose of the law: Teenage pregnancy in Michael M
(Court doesn’t articulate level of scrutiny)
IF BENIGN DISCRIMINATION AFFIRMATIVE ACTION CASES
 In cases of benign gender or racial discrimination or affirmative action, the Court applies the same
standard of review (strict scrutiny for race and intermediate scrutiny for gender) it would use to
evaluate invidious discrimination

GENDER and AFFIRMATIVE ACTION:
Intermediate scrutiny and gender discrimination
o Court will make sure that the actual purpose and effect of the law is to HELP and not hurt
women, that the law does not reinforce stereotypes and that the important purpose cannot be
achieved by means that do not employ gender classification such as individualized review
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



RACE AND AFFIRMATIVE ACTION:
Strict Scrutiny in the context of benign racial discrimination:
o Croson: All affirmative action programs that classify on the basis of race are subject to strict
scrutiny, even if they are designed to remedy this nation’s discrimination against minorities,
namely African-Americans
o Need a compelling interest and must be narrowly tailored (least discriminatory)
o STILL NEED A DISCUSSION OF DISCRIMINATORY PURPOSE AND
INTENT—DISTINGUISH RACE CASES ABOVE (go to beginning analysis about purpose
and intent) why we have strict scrutiny
 Affirmative action statutes are no different than statutes that discriminate by depriving a
race or group of benefits Adarand extended this to the federal government
What is a compelling interest? Court finds few compelling
o Classroom diversity if a factor of many (Grutter v. Bollinger)
o Past discrimination is not enough without evidence (Croson)
What is narrowly tailored?
o Even if the government demonstrates that it is necessary that it use race conscious means to
achieve its compelling purpose, it will be required to use the most NARROWLY TAILORED
(least discriminatory) race conscious means available to achieve its purpose
 Croson: Look at non-discriminatory alternatives
 Grutter: Court accepted MI’s argument that no race neutral means would achieve
the university’s educational objective
o To be narrowly tailored, a race-conscious admissions program cannot use
a quota system—it cannot insulate each category of applicants with certain
desired qualifications from competition with other applicants
CRITICAL MASS ok (Grutter)
o While other less drastic race-conscious remedies may be necessary before upholding such a
measure, the court will require the government to consider available race neutral means and find
that race neutral means will not be effective in achieving the government’s compelling purpose
o CANNOT BE OVER AND UNDER-INCLUSIVE DISCUSS ALWAYS
Two-Way Street Affirmative Action: Parents Involved in Community Schools
o When the government distributes BENEFITS or BURDENS on the basis of individual racial
classifications, that action is reviewed under STRICT SCRUTINY
IF POLITICAL PROCESS EQUAL PROTECTION IS INVOLVED:
 Is there a re-structuring of the political process with a RACIAL focus?
o Making it harder for one party (usually local) to do integration usually
 Coalition for Economic Equity v. Wilson (9th Circuit): not expressly PP EPC
o Prop 209 does not violate EPC; works because of majority rather than minority
 Hunter v. Erickson: Unconstitutional use of racial classification for housing amendment
o Political process cannot make things more difficult for advocates of integration
 Washington v. Seattle School District: Can’t take something that deals with busing/integration and move
it to a more difficult level (roadblock to local authorities)
 Crawford v. LA Board of Education: Can’t just use busing as a means to accomplish racial balance and
integration absent the finding of some prior discrimination
FUNDAMENTAL INTERESTS UNDER THE EPC: RIGHT TO PUBLIC EDUCATION
 San Antonio v. Rodriguez: Poverty is not a suspect class and education is not a fundamental right
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
o State only has to show that it bears some rational relationship to a legitimate state purpose
Plyler v. Doe:
o Aliens, even aliens whose presence in this country is unlawful, have long been recognized as
persons guaranteed due process of law
o Education is not a fundamental right BUT using a more rational basis review: heightened
scrutiny
IF SEMI-SUSPECT CLASS + SEMI-SUSPECT RIGHT ARE INVOLVED:
RATIONAL BASIS AND HYBRID REVIEW
 NY City Transit Authority v. Beazer: Semi-suspect right + semi-fundamental right
o Policy of prohibiting methadone workers is unconstitutional
o Exemplifies constitutional state action notwithstanding both over and under-inclusiveness
 City of Cleburne: ANIMUS Court saying rational basis but using stricter scrutiny than that
o Mentally handicapped are not a suspect class
o Court strikes down law because of “irrational prejudice” of mentally disabled
o Court looks to actual interest and will not accept the hypothetical reasons
 Romer v. Evans: ANIMUS
o Homosexuals are not a suspect class
o Prejudice is the motive behind the law and the law is too broad
o Scalia Dissent: majority taking sides in a “cultural war”
DETERMINING SUSPECT CLASS:
Gender
STEP 1:
Sex-based classifications receive intermediate scrutiny, Craig v. Boren. Intermediate scrutiny requires that
the intentional classification is substantially related to an important governmental interest.
1) History: 14th Amendment-there is nothing in the text or context. Purpose was to address race. But past
discrimination of women does exist.
2) Stigma: there are both immutable and identifiable characteristics. Lesser treatment was based on physical
differences and perceived physical inadequacies, which led to a caste system. Well, gender might not be so
immutable these days, but it is outside the State’s authority to demand one change her gender.
3) Political Process: technically women are not a minority in the electorate and women are not a minority and
they are not discrete and insular.
4) Benign as well as invidious: The same standard of review is used whether the sex-based classification is
"invidious" (intended to harm women) or "benign" (intended to help women, or even intended to redress past
discrimination against them), Michael M
5) Stereotypes: Legislatures are permitted to pass laws if real differences b/w genders are involved, but not
based on stereotypes alone, Craig v. Boren (either gender can attack classification)
STEP 2: Apply Intermediate Scrutiny
 US v. VA – VMI can’t exclude women on the theory of building a citizen soldier when (1) gender-neutral
alternatives exist to achieve the same goal, (2) the State doesn’t provide an equal alternative for women. The
governmental interest is building a citizen-soldier, not using the tactic that was effective in a male-only
environment.
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

Craig v. Boren – Statute prohibiting men under the age of 21 from purchasing 3.2% beer, but not women in
the same age bracket was passed to ensure traffic safety b/c 10x more men than women in that age bracket
were involved in traffic accidents. Court said that the statute was not substantially related b/c (1) it was
over-inclusive, (2) the amount of accidents of that age group compared to all accidents was de minimis, (3)
the DUI stats may have been unreliable due to evidence suggesting women were convicted less just for
being women.
Michael M. – Statutory rape law applied only to men who had sex w/ women under the age of 18. Court
upheld the statute b/c true differences existed b/w the genders: (1) women, not men are the ones who get
pregnant, (2) women have a natural disincentive, State can create an artificial one for men, (3) wanted to fix
teenage pregnancy and the subsequent taxation on the State welfare system.
Note: Non-marital children get intermediate scrutiny also (children whose parents are not married to
eachother)
14th Amend, so apply Boerne (p.15-6)
Sexual Orientation
STEP 1: Should homosexuality be a suspect classification?
1)Text – nothing in text of 14th amendment that says no discrimination based on sexual orientation
2) History – it was not a special concern of the 14th amendment like race, there is a history of discrimination
against homosexuals though it makes it more likely to get heightened scrutiny.
3)Immutable – immutable b/c one can’t change one’s sexual orientation. Even if one could change, the
government wholly lacks the authority to impose such a onerous burden on a citizen.
4) Identifiable – Notwithstanding the “sixth sense” that many homosexuals and allies coin “gaydar” (the
intuition to know when another is gay or lesbian), sexual orientation is not per se identifiable. Indeed, many
homosexuals are “in the closet” and share their sexual orientation w/ no one. Nonetheless, a group’s lack of
ready identifiableness should not exempt it from governmental protection, especially when the government
acknowledges that such a group does in fact exist.
4)Stigma/Caste – While the ability to hide one’s sexual orientation may reduce the likelihood of stigmatization,
the discovery of the same could reject one to second class citizenship (e.g. known homosexuals are barred from
adopting children and FL, and homosexuals generally are barred from marrying in all States save
Massachusetts).
5) Political Process Issues – Although they aren’t a a discrete and insular minority, homosexuals are
susceptible to alienation in the political process due to refusal of others (read narrow-minded heterosexuals) to
coalition build. On the other hand, this might be fallacious argument considering (1) best estimates place the
homosexual population at 10% of the total, and (2) despite this significant minority, many State governments
afford homosexuals some rights and protections.
Say that arguably, discrimination against gays and lesbians should receive strict scrutiny b/c of
discrimination, representative-reinforcement argument (they might be a discrete and insular minority).
Nonetheless, the supreme court has not extended the suspect categorization to homosexuals.
STEP 2: Rational Basis Review
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Although Bowers ruled out suspect classification when it upheld a GA law that outlawed homosexual sodomy,
Lawrence overruled that decision stating that the privacy right includes the ability to engage in intimate
consensual acts, even homosexual ones, w/o the stigma of State condemnation.
Romer v. Evans stands for the proposition that classifications concerning homosexuals are subject to rational
basis review. But the standard appears to be stricter in application—“rational basis w/ bite,” if you will (Scalia,
J. dissenting)
 It affords homosexuals a good deal of protection – purpose cannot be arbitrary, unreasonable or pre-textual
 A bare animus to harm a politically unpopular group is not a legitimate State interest.
 Mere moral antipathy to a particular conduct is not a legitimate State interest b/c morality, alone, is not a
legitimate State interest.
 The people cannot subject the rights of a politically unpopular group to a vote
 Maybe if the CO referendum were a result of a Kulturkampf and not, in fact a fit of spite, then the
Goodrigde: Massachusetts decision that stands for the proposition that a ban on same-sex marriage does not
further a legitimate governmental interest.
STEP 3: Would it pass strict scrutiny if it were applied?
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CONGRESS’S 14TH AMENDMENT POWERS:
ENFORCING THE RECONSTRUCTION AMENDMENTS
§ 5 of 14th Amendment Power
Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Is Congress trying to create a cause of action against the state’s enforcement of EPC?
IF YES: Proceed with analysis
IF NO: If against private individual Some other Article I power
Is the statute appropriate legislation to enforce the EPC under the McCulloch v. MD standard—can it be
regarded as an enactment to enforce the EPC that is “plainly adapted to that end,” and not prohibited by but
is consistent with the letter and spirit of the Constitution?
WRITE THIS: Congress may abrogate a state’s sovereign immunity if it is a valid piece of legislation
enforcing a Reconstruction act (13th, 14th, or 15th Amendment). Under Boerne, Congress does not have the
power to redefine the scope of the rights protected by the Civil Rights amendments in a way that is different
from the way the SC would define their scope. However, Congress can seek to remedy or to prevent
constitutional violations. Thus, the SC accepts remedial or permissive authority by Congress—Congress has the
power to adopt remedies and preventative measures to prevent future unconstitutional conduct. Such legislation,
however, must be congruent and proportional to the constitutional violation as defined by the courts.
1. SCOPE OF THE CONSTITUTIONAL RIGHT: Is Congress enforcing a 14th Am. Right?
a. Describe the RIGHT and INTEREST
b. Courts employ a rational standard to determine unconstitutional discrimination—only irrational
discrimination is unconstitutional
i. Discuss narrowly tailored to achieve compelling government interest—if not,
unconstitutional
ii. Discuss undue burden if abortion—if not, unconstitutional
2.
3. CONGRUENCE & PROPORTIONALITY ANALYSIS (Boerne)
Must be C&P between the injury to be prevented or remedied and the means adopted to that end.
a. Does the law directly act on the obstruction?
i. Is it overbroad? MUST NOT BE OVERBROAD
1. Nevada v. Hibbs: Law that required men receive the same benefits normally
reserved to women—congruent and proportional because it was limited to unpaid
leave, limited to certain enumerated circumstances, and short 2-year SOL
ii. National solution to a regional problem? (Usually OK; See Katzenbach)
1. Katzenbach: uphold no English requirement for PR migrants as constitutional
a. Adopts a nationalist perspective according Congress the power to use its §
5 authority to expand the scope of its rights
b. Accords Congress the authority to define the meaning of the 14th
Amendment
b. Is the law remedial or substantive in nature? (Boerne) REMEDY CONGRUENT AND
PROPORTIONAL
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i. Is Congress asking the State to recognize a fundamental right that already exists in the
Constitution? Is Congress trying to DEFINE a new right?
1. Yes = remedial = OK
a. Nevada Department of Human Resources v. Hibbs: Family leave
provision of the FMLA fits within scope Congress clearly intended the
law to prevent gender discrimination in employment
2. No = creating new right = substantive = struck down
a. Boerne: Congress is limited to laws that prevent or remedy violations of
rights recognized by the SC—must be narrowly tailored (proportionate
and congruent to constitutional violation)
ii. If Remedy, is there congruence & proportionality between the injury to be
prevented/remedied and the means adopted to that end?
1. Solution must be in proportion to the problem
2. Intrusion into government should be as limited as possible—sovereign immunity
cases
3. State law should not be so burdened with judicial scrutiny that they cannot
regulate health and welfare
c. Is there a pattern of discrimination?  Fact-Finding to support congruence and
proportionality?
i. Is there enough fact finding to support Congress’ view of the harm? (Boerne, Katzenbach
dissent)
1. University of Alabama v. Garret: must show pattern of discrimination for
individuals to be able to sue states in violation of 14th Amendment
a. State governments may not be sued for violations under ADA
b. Congress did not identify a pattern of irrational state discrimination in
employment against disabled
2. Harlan Dissent in Katzenbach: No factual data provided by Congress stating that
Spanish-speaking citizens are fully capable of making informed decisions in a NY
election as are English speaking citizens
ii. Animus?
1. IF YES: struck down because never passes rational basis test
4. Eleventh Amendment Considerations: University of Alabama v. Garrett suit is barred by 11th
Amendment
a. ADA not unconstitutional as applied to state governments, but rather only holding that state
governments could not be sued by individuals for violations
b. Federal government still could sue the states to enforce the law and that suits against individual
government officers for injunctive relief were also permissible—damages actions BARRED by
11th Amendment
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PRIVILEGES AND IMMUNITIES OF THE FOURTEENTH AMENDMENT
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States (14th Amendment, § 1)


Slaughterhouse Cases: Court held that the 14th Amendment’s P&I clause affected only rights of the US
citizens and not state citizenship
o Makes the P&I clause a nullity because it does not add to state rights
o States cannot infringe on national citizenship rights, only state citizenship rights
The RIGHT TO TRAVEL: Use of the P&I clause
o Saenz v. Roe: P&I Clause of the 14th Amendment protected the right of the newly arrived citizen
to the same P&I enjoyed by other citizens of the state
 Viewed by some to open up the channel that was closed by the Slaughterhouse cases
 “Despite fundamentally differing views concerning the coverage of the P&I clause of the
14th Amendment, it has always been common ground that this Clause protects the third
component of the right to travel.” (= right to be treated like other citizens)
 Right to travel:
 Protects rights of citizens to enter and leave the state
 Right to be treated as welcome visitors in a new state
 Right to be treated like other citizens
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