Marbury v. Madison​ (1803)
1. Hold​ - Executive actions are reviewable by the Judiciary
a. RF​ - Here, John Adams - on the last day of his presidency - appointed Marbury to
head an executive department. When Thomas Jefferson took office he directed
Madison to withhold the commission.
b. Reason​ ■ Rule​ - The court said that a Presidency has complete immunity for all
political decisions within executive discretionary powers.
■ Yet there needs to be redressability when a government official violates a
person’s rights
2. Hold​ - Congressional Acts are reviewable
a. RF​ - Congress passed the judiciary act of 1789 which gave the Supreme Court
original jurisdiction to head a writ of mandamus.
b. Reason
■ Article III of the constitution limits Federal Judiciary power and does not
allow Congress to expand it.
3. Hold​ - There are judicial limitations on what can be heard. (Justiciability doctrine).
a. Reason
■ The Court may interpret what is a “case” and “controversy” under Article
III. Litigants must have standing.
Allen v Wright​ (1984) - NO STANDING
1. Injury
a. Actual or Imminent
■ Here the plaintiffs sued the IRS due to tax exemptions given to
discriminatory private schools. These litigants had no actual or imminent
injury because they proffered no evidence showing that they had once or
ever tried to enroll in the private schools.
b. Concrete and particularized
■ Here there was no standing because the plaintiffs did not show
individualized discrimination but rather general discrimination.
2. Causation
a. Here, there was not a strong link between the IRS’ tax exemptions and the
negative effects caused by not having access to desegregated schools.
3. Remedy
a. Denying the private schools a tax exemption would not change the discriminatory
behavior.
Mass v. EPA​ (2007) - STANDING
1. Injury
a. Actual or Imminent - Here Mass sued to mandate the EPA to enforce certain
environmental regulations. The court found that the threat posed by global
warming did constitute an actual injury.
b. Concrete and Particularized - Here, the court found that Mass would be
particularly affected by global warming due to its long coastline.
2. Causation
a. The court ruled that Mass may bring an action to enforce a regulation which
would prevent even a minor role of climate change.
3. Remedy
a. The court has he authority to enforce EPA regulations which would have even
slight remedial effects.
City of LA v Lyons​ (1983) - NO STANDING
1. Injury
a. Not actual and imminent. Here, the plaintiff sought an injunction against a city
policy that allowed police to use chokeholds even if confronted by non-deadly
force. The court reasoned that because the plaintiff had already been put in a
chokehold and would not be put in another one unless he resisted arrest in the
future, he could not show an imminent or particularized injury.
Lujan v Defenders of Wildlife​ (1992) - NO STANDING
1. Injury
a. Actual or Imminent - Here the plaintiffs sued due to a policy which would
endanger big cats in India and Sri Lanka. The court found the injury was not
actual or imminent because the plaintiffs had never seen one of the big cats in
question, and lacked evidence of even a future plane ticket to show that they
might see a big cat in the future.
b. Concrete and Particularized - Not concrete and particularized because those
litigants were not personally suffering from this policy.
Gill v. Whitford​ (2018) - NO STANDING
1. Injury
a. Redistricting plan which caused democrats to be underrepresented in their state
legislature is not sufficient standing.
EXECUTIVE POWER
ARTICLE II §1 Executive power is vested in the President.
ARTICLE II §2 Commander in Chief
ARTICLE II §3 Faithfully execute the laws
Youngstown​ (1952)
● LI​ - Under Federalist principles of the US constitution, did the President act within his
authority when he seized steel mills to prevent a strike while at time of war?
● Hold​ - The seizure of the steel mills does not fall under the Commander and Chief power
because seizing factories to ensure the army has enough supplies for warfare is akin to
taxes which is the purview of the legislature.
● Jackson’s Three Categories of Executive Authority
1. Presidential Authority at its Maximum: Congress has expressly or implicitly
authorized Executive action.
2. The Twilight Zone: Congress has been silent.
○ Check to See if Congress has expressed a willingness or unwillingness to take
certain actions.
3. Lowest Ebb of Presidential Authority: When the President takes steps opposed to the
express or implicit will of Congress.
US v Nixon​ (1974)
● LI​ - Does Presidential privilege, implied in Article II §3, allow the President not to
comply with a subpoena demanding recordings relevant to an ongoing criminal
investigation?
● Hold​ - The court held that the President does not have absolute privilege under Article II
§3, only General Privilege. GP for military, diplomatic, or national security.
○ Here, the President’s general privilege was outweighed by the needs of justice
which demanded the production of evidence in an ongoing criminal investigation.
Clinton v NY​ (1998)
● Hold​: The Line Item Veto is unconstitutional.
● Rule​: Decisions that affect Federal Spending is a legislative issue and requires:
1. Bicameralism - approval by both houses
2. Presentment - Presentation of an entire bill to the President who can either sign or
veto the legislation.
● Reason​: The Line Item Veto - which gave the President the power to cross out a line of
spending in a Federal budget - is unconstitutional because it circumvents the
constitutionally required process.
CONGRESSIONAL POWER
McCulloch v Maryland​ (1819)
● RF​: Congress established a Federal Bank. Maryland imposed a tax on that bank. When
the Bank’s president, McCulloch refused to pay, Maryland brought this suit.
● Hold​:
a. The creation of a Federal Bank is Constitutional - Under Article I §8, the
Necessary and Proper Clause Congress has implied powers to take “appropriate”
and “legitimate” measures to further their enumerated powers. Here, the court
found the creation of the bank was reasonably in furtherance of Congressional
power to mint coin.
b. Maryland may not tax the bank - Under Article VI, the laws of the United States
are Supreme. Giving the power to a state to tax a bank gives it the power to
destroy a Federal imperative and thus can not be sustained.
Interstate Commerce Clause
1. “The foreign commerce clause”
2. “The interstate commerce clause”
3. “The Indian commerce clause”
Gibbons v Ogden​ (1824)
● RF​: Ogden was authorized by New York State to have a monopoly on the Ferry Service
for the East River. Gibbons was given a license by the Federal Government to run a ferry
service.
● Hold​: Commerce is broadly interpreted as even the preparatory stages of commerce.
Four Eras of the Commerce Clause
● Founding through the 1890s:
○ The court rarely applied the commerce clause
● 1890’s through 1937:
○ Commerce was interpreted narrowly
● 1937 through 1995:
○ Commerce was interpreted broadly and decisions on what was appropriate under
the Commerce Clause were referred to Congress.
● 1995 through Present:
○ Narrow interpretation on the Commerce Clause. 10th Amendment is a check.
Standards of Commerce Clause Powers
1. Channels of interstate commerce
2. Instrumentalities of interstate commerce
3. Activities that substantially affect interstate commerce.
Wickard v. Filburn​ (1942)
● RF​: Congress passed a law limiting the amount of wheat that could be grown on a farm in
order to maintain wheat price controls. The defendant grew and excess amount of wheat
but only for self consumption
● Hold​: Under the Commerce Clause Congress had the authority to pass a law which limits
the defendants wheat production even though that wheat was for personal use only.
● Reasons​:
○ Aggregate Effects (for the substantial effects test) - Though the effect of the
defendant’s actions had minimal effects on Congress’ wheat regulating scheme, if
every citizen took such an action, the aggregate result would be to undermine
Congress.
○ Regulation which stimulates commerce is an authorized use of regulatory powers.
Heart of Atlanta Motel Inc v. US​ ​(1964)
● Hold​: Under the commerce clause, Congress has the power to prevent discrimination in
hotels when it impedes the smooth flow of commerce.
● Reason​:
○ The court, relying on the Motel’s positioning relevant to the Interstate highways,
and its national advertising, stated the hotel falls within an area which can be
regulated as interstate commerce. Especially since discrimination against
African-Americans repressed travel ability and thus repressed commerce.
○ The court defers to Congress as to whether this is a reasonable method of
regulating interstate commerce.
Katzenbach v. McClung Sr. & McClung Jr.​ ​(1964)
● Hold​: Congress has the authority under the Commerce Clause to regulate discrimination
in restaurants
● Reasons​:
○ The court relying on the restaurant’s out-of-state purchases of food and its general
relation within the state system stated the restaurant’s discriminatory actions fell
within interstate commerce
○ The court stated that because discrimination prevents African-Americans from
stimulating the economy with their money,
Perez v US​ ​(1971)
● Hold​: Under the Commerce Clause Congress may pass a law imposing Federal Criminal
Penalties for Loan Sharks because their activities costs the US millions of dollars.
National League of Cities v. Usery​ ​(1976)
● Hold (Overturned by ​Garcia​)​: The Commerce Clause does not give Congress the
authority to impose a minimum wage because the X Amendment has reserved that power
to the states.
Garcia v. San Antonio Metropolitan Transit Authority​ ​(1985)
● Hold​: The Commerce Clause does allow for the creation of a Federal Minimum Wage.
Overturned ​Usery
● Rule​: Passing a law of general applicability to both individuals and states is not an
impediment on state’s rights
● Reasons​:
○ Usery​ which used the X Amendment to limit Congressional Authority did not
establish a clear rule for what is a state power and what is a Federal power.
○ Though States have an interest in establishing a minimum wage, giving this
power to Congress does not impede Federalism because state’s have a check on
this power through elections.
______________________________________________________________________________
FOURTH ERA OF THE COMMERCE CLAUSE: 1995 - PRESENT
Reviving the ​X Amendment​ as a check on the Commerce Clause.
United States v. Lopez​ ​(1995)
● Hold​ - The Gun Free School Act is unconstitutional as an exercise of the commerce
clause because it “neither regulates a commercial activity nor contains a requirement that
the possession be connected in any way to interstate commerce
● RF​:
○ Congress passed the Gun Free School Act making it unlawful to possess a gun,
that has traveled through interstate commerce, within a school zone.
○ This Act contained no jurisdictional element establishing the federal cause of
action in pursuance of Congress’ ability to regulate commerce
● Reasons​:
○ This regulation is not necessary for some larger regulatory scheme.
○ The legislation impedes on traditional state powers to regulate education.
○ Despite the argument that school gun deaths affect the economy, on the same
argument one would allow the government to handle all murders as well, and to
generally impede on traditional state powers.
United States v. Morrison​ (2000)
● Hold​ - The Violence Against Women Act is an unconstitutional exercise of the
Commerce Clause because violence against women is not purely economic
● Reason​ ○ These activities do not substantially affect commerce
○ Contains no jurisdictional element that links the cause of action to commerce
○ The effect on commerce here is the same as could be argued for any violent crime
so the Act would expand Federal power - under the commerce clause - into the
general policing powers of the state
Gonzalez v. Raich​ ​(2005)
● Hold​ - Under the commerce clause, Congress may regulate the local cultivation and use
of marijuana that is in compliance with California law.
● RF​ ○ CA passed a law allowing marijuana to be grown for use by the seriously ill
○ Raich was growing marijuana for medical use but Federal DEA agents seized and
destroyed the plants.
● Reason​ ○ The ability to regulate interstate commerce allows for the ability to regulate both
legal and illegal trades.
■ Unlike ​Lopez​ and ​Morrison​, where Congress’ Acts targeted a whole class
of activities that were not economic, here Congress was targeting a
specific market.
○ Despite the local nature of the cultivation, in aggregate, allowing local cultivation
could impede the government’s attempt to stop the drug flow
■ The link between local cultivation and sale on the black market is to
strong to ignore
○ RATIONAL BASIS TEST​ - to assess whether the Act to regulate local marijuana
is a valid exercise of the commerce clause, the court asks whether Congress had a
reasonable basis to believe taken such an action would further their commerce
related goals.
TENTH AMENDMENT CHECK ON COMMERCE CLAUSE
Tenth Amendment - “The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.
NY v US​ ​(1992)
● Hold​: The Tenth Amendment prevents a Federal law which compels rather than merely
encourages a state to provide for the disposal of radioactive material
● RF​: A provision (the take title provision) of Federal law mandated that New York, if it
could not come up with an adequate means of disposal for radioactive material by a
certain deadline would have to become responsible for the radioactive material of
producers within that state.
● Two Step Process​:
1. Is the act of Congress authorized by its enumerated powers?​ ​Perez
2. Does an act of Congress invade the province of state sovereignty reserved by the
Tenth Amendment? ​Garcia v. Metropolitan Transit Authority
● Reason​: Here, the provision mandating NY to become responsible for
certain radioactive material, unjustly COMMANDEERS state
governments into the purposes of federal legislation
● Commandeering Principle
○ Our System of Government
Fed Gov’t → Individuals
State Gov’t → Individuals
○ An Example of Commandeering
Fed Gov’t → State Gov’t → Individuals
Printz v US​ ​(1997)
● Hold​: The provision of the Brady Act which requires local officials to collect gun data to
give to Federal officials for collation into a Federal Firearm registration
● Reasons​: Scalia argued that the Brady Act by using state officials to act as an arm of
Federal power is antithetical to the division of power inherent within Federalism
Murphy v NCAA​ ​(2018)
● Hold​: A Federal Law which makes it illegal for states to authorize gambling schemes
violates the anti-commandeering doctrine of the Tenth Amendment
● Reason​:
○ The Act does not regulate private conduct but regulates state legislatures
○ It is immaterial that the act prohibits the repeal of certain laws rather than directs
the legislature to enact laws. Both are Federal impositions on state legislatures.
Reno v Condon​ ​(2000)
● Hold​: The Tenth Amendment does not check a Federal Law which protects against the
disclosure of driver’s license information
● Reasons​:
● The Act is a valid exercise of the Commerce power because a Driver’s Licence is
an ​Instrumentality of Interstate Commerce
● The Tenth Amendment does not prohibit this Act because the act is not
commandeering in nature
■ The Act does not commandeer because it applies to anyone who will
disclose driver’s license information - including both states and
individuals.
■ Using ​Garcia​ ​as precedent the court said that a law which applies equally
to both states and individuals can be a valid exercise of power
● Not Commandeering
Federal Gov’t → All entities that have drivers license data
______________________________________________________________________________
TAXING AND SPENDING POWER
Article 1 §8 states that “Congress shall have Power to lay and collect Taxes, Duties,
Imposts, and Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States.”
US v Butler​ ​(1936)
● Hold​: Under the Constitution, the powers to tax and spend does not need to be justified as
in furtherance of Federally enumerated powers, but instead, as in Hamilton’s
interpretation, the taxing and spending power is only limited by the needs “for the general
welfare.”
● RF​: The Agricultural Authorization Act gave the Secretary of Agriculture the power to
impose crop limits and tax crop production due to an ongoing agricultural crisis
ANTI-COERCION PRINCIPLE WITHIN THE TENTH AMENDMENT
South Dakota v. Dole​ ​(1987)
● Hold​: Congress may use its Taxing and Spending power to incentivize states to raise their
minimum drinking age because the government’s actions were not coercive.
● Rule​: Taxing power is valid if:
1. the taxing is for the general welfare;
2. the conditions on grants are ambiguous;
3. the conditions on the grant relate to the grant’s purpose
4. other constitutional principles, eg the anti-coercion principle of the tenth
amendment, do not bar the granting of conditional funds.
● Reason​:
○ Here, all of these conditions are met, including no. 4
○ No. 4 is met because there was no coercion. The grants threatened to be withheld
here were only 5% of all Federal highway grants
National Federation of Independent Business v. Sebelius​ ​(2012)
1. Hold​: The individual mandate of Obamacare may be upheld as a Tax
○ RF​:
■ Under the Affordable Care Act, individuals who earned a certain income
but lacked health insurance where required to pay a penalty
○ Reasons​:
■ Rule​: The court must must not overturn an act of the legislature unless it
can not be construed in any way as constitutional. Here, while the mandate
may not be upheld as a valid exercise of the commerce clause, it may be
upheld as a tax
■ Although the mandate was described as a penalty, it is in fact paid to the
IRS, creates revenue, and is based on a condition (having a certain income
but no insurance)
2. Hold​: The Act’s expansion of Medicaid, which threatened to withhold medicaid funds
from states that don’t comply with certain provisions, is unconstitutional because it
violates Federalist and anti-coercive principles within the Tenth Amendment
○ Reasons​:
■ Rule​: When Federal pressure disallows a state to make a free-willed
choice, then there is coercion
■ Here, states could lose existing Medicaid funding and potentially all
Federal medicaid funding
■ Medicaid grants are among the largest grants that states receive from
Federal Governments and constitute a significant portion of the budget
THE NECESSARY AND PROPER CLAUSE
In ​McCulloch v. Maryland​ ​(1819) the Court interpreted the Necessary and Proper Clause
in Article 1 §8 as a grant of power to Congress, not a limitation.
United States v. Comstock​ (2010)
● Hold​: A provision within the Child Protection and Safety Act which allows the Federal
Government to detain convicted sexual abusers who are within Federal prisons and are
mentally deficient, is a valid exercise of Congress’ powers through the Necessary and
Proper Clause
● Reason​:
○ Article 1 §8 powers → Implied power to create prisons and custodial power over
Federal prisoners → regulation of incarceration
○ Rule​: does the statute constitute a means that is rationally related to the
implementation of a constitutionally enumerated power?
■ Here, the court ruled the statute was reasonably adapted to Congress’
custodial role for Federal prisoners
● Five Considerations for the Necessary and Proper Clause
1. Breadth of Necessary and Proper Clause; “necessary” as “convenient or useful” or
“conducive”
2. History / past practices
3. Reasonableness
4. State interests
5. Link to an enumerated Article 1 power
______________________________________________________________________________
ENUMERATED POWERS AND THE RECONSTRUCTION AMENDMENTS
Congress’ enumerated powers are found in Article 1 §8 and it may enforce the 13th, 14th,
and 15th amendment.
United States v. Morrison​ (cont…) (2000)
● Hold​: Under the Due Process and Equal Protection Clause of the 14th amendment,
Congress may only regulate the behavior of state run actors so it does not apply here
Katzenbach v. Morgan & Morgan​ (1966)
● Hold​: The Voting Rights Act of 1965, which pro tanto prohibited NY from passing a
statute requiring voters to pass an English literacy test, was a valid exercise of Congress’
power to pass legislation which enforces the 14th Amendment.
● RF​:
○ NY argued that literacy tests were not unconstitutional as shown by the North
Carolina case of ​Lassiter​ ​which held literacy tests did not necessarily violate the
constitution
● Reason​:
○ Test​ - The test to determine what is a valid exercise of Congress’ 14th
Amendment enforcement power is whether there is a reasonable basis for
imposing that legislation to further 14th Amendment aims
○ This legislation can be readily interpreted as in furtherance of 14th amendment
aims because it protects the right which protects all others and that is voting
○ Limiting Congress’ legislative abilities to only those laws which do not prohibit a
constitutional law would burden Congress to heavily in its task of enforcing equal
protection
● Remedial Theory​ - Congress may pass laws that it deems necessary to remedy violations
of certain rights, but Congress does not have the ability to expand and interpret which
rights are protected, that is the duty of the court
Oregon v. Smith​ (1990)
● Hold​: Laws of general applicability may not be challenged by the Free Exercise Clause
● RF​:
○ The government passed a law banning the use of Peyote
○ A Navajo tribe sued claiming the law infringed on their religious practices
Religious Freedom Reform Act ​(1993) - Congress passed this Act (RFRA) which prohibits the
government from passing a law which substantially burdens a religious community
City of Boerne v. Flores​ (1997)
● Hold​: RFRA is unconstitutional
● Two Step Process​:
1. When determining what is a valid exercise of the 14th Amendment, the question
is whether Congress is acting to remedy a right that is recognized by the court
2. Next is the Act of Congress CONGRUENT AND PROPORTIONAL to the ends?
● Remedial Theory​ - Courts, not Congress, define the substance of constitutional rights
● Reason​: Here, the court found that RFRA was not Congruent and Proportional to the
goals of Equal Protection. While the existence of Religious persecution is minimal, this
act would allow anyone who could make a Religious Freedom claim to challenge any law
passed by Congress. In that way it is overly burdensome.
Shelby County v. Holder​ ​(2013)
● Hold​: The provisions of the Voting Rights Act, which mandates select Southern states to
get Federal approval before passing any voting laws is no longer a valid exercise of the
14th Amendment
● RF​:
○ While this provision treats a few states very differently and looks antithetical to
principles of Federalism, it was deemed constitutional upon passing in the 1960s
and 1970s because “exceptional conditions can justify legislative powers
otherwise not appropriate.”
○ Back in 1975 the black vote in these states was highly repressed but in modern
times the black vote was healthy
● Reasons​:
○ The conditions on the ground in those states, in regard to voter discrimination,
was not so bad as to continue to justify a law which outside of exceptional
circumstances, is antithetical to principles of Federalism
○ The remedy, the preclearance requirements were not “Congruent and
Proportional” to the injury which was voter discrimination
14TH AMENDMENT AND 11TH AMENDMENT IMMUNITY
The 11th Amendment states “​The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.”
● This gives states immunity from suits from citizens within their own state and in other
states.
● The only Amendment that may abrogate state immunity to suits is the Fourteenth
Amendment (​Fitzpatrick v. Bitzer​) because this Amendment is directed at the states.
Seminole Tribe v. Florida​ (1996)
● Hold​: Only 14th Amendment cases may abrogate a state’s immunity from suit. Not
Federal Jurisdiction cases
● RF​:
○ Congress passed a law requiring states to negotiate in “good faith” with Indian
tribes for casino deals under its powers to regulate “indian commerce”
○ When Florida did not comply, the suit was brought.
● Test for when an Act may Abrogate State Immunity
1. Does Congress’ power derive from the 14th Amendment?
2. Has Congress unequivocally express its intent to abrogate?
3. Is the Act “Congruent and Proportional” to the governmental interest?
● Reasons​: The 11th Amendment was meant to provide immunity for both Federal
Question Jurisdiction and Diversity jurisdiction, so by allowing Congress to abrogate the
state’s immunity, it is a grant of jurisdiction that is expanded past the Article III limits,
and thus unconstitutional. ​McCulloch v. Maryland
Board of Trustees v Garrett​ (2001)
● Hold​: The abrogation of state’s immunity in the American with Disability Act was
outside of the scope of Congress’ power under the 14th Amendment.
● Reasons​:
1. Under the ​Remedial Theory​ (​Boerne​) the Court held that it was not for Congress but instead for the court - to define what rights are protected by XIV Amend.
2. Abrogation is not ​Congruent and Proportional​ to Congress’ XIV aims because
the evidence was lacking that states engage in wide scale disability discrimination
Nevada Department of Resources v. Hibbs​ (2003)
● Hold​: The abrogation of state’s 11th Amend. immunity is valid due to the enforcement
clause of the 14th Amend. where a worker sues a state organization to enforce the Family
and Medical Leave Act
● Reason​:
1. The power derives from the 14th amendment. The ​remedial theory​ is satisfied
because the law targets gender discrimination.
2. Congress stated their intent to abrogate
3. The Act is ​Congruent and Proportional c​ onsidering how family leave issues
disproportionately affect women
Tennessee v. Lane​ ​(2004)
● Hold​: Enough evidence shown that sueing to enforce state buildings to have sufficient
handicap access was a ​Congruent and Proportional m
​ eans to XIV Amend. Ends.
U.S. v Georgia​ ​(2006) ❗❗❗❗
● Hold​: A claim that raises an 8th Amendment claim and applies to the states through the
14th Amendment, may abrogate a state’s 11th Amendment immunity
○ RF​: A disabled prisoner sued a state prison for violating the Amer Disability Act
______________________________________________________________________________
PREEMPTION
ARTICLE VI - Paragraph Two the ​Supremacy Clause ​“This Constitution, and the laws of the
United States which shall be made in pursuance thereof; and all treaties made, or which shall be
made, under the authority of the United States, shall be the supreme law of the land; and the
judges in every state shall be bound thereby, anything in the Constitution or laws of any State to
the contrary notwithstanding.”
“Any state law, however clearly within a State’s acknowledged power, which interferes
with or is contrary to federal law, must yield.” ​Gade v. National Solid Wastes​ ​(1992)
Supremacy Clause -​ establishes that Federal laws trump state laws
Preemption ​- due to the ​Supremacy clause F
​ ederal laws may ​preempt s​ tate laws
● Express Preemption​ - When Congress expresses intent to ​preempt ​state law
● Implied Preemption​ ○ Field ​- Fed Gov’t occupies entire legislative field
○ Conflict -​ state and Fed laws conflict
○ Obstacle/Interference​ - state law acts as an obstacle to Fed law
Express Preemption
Lorillard Tobacco Co. v Riley​ ​(2000)
● Hold​: Federal Tobacco legislation preempted MA passing zoning requirements for
cigarette advertising
● RF​: This is a case of ​Express Preemption ​where the argument is to what the legislation
expresses its intent to preempt, the content of advertising of the location?
● Args​:
○ State - Zoning is typically a local concern
○ Fed - preemption is necessary for the Federal regulatory scheme
● Reason​: The Federal Act preempted internet ads showing Congress’ willingness to
regulate the location of cigarette advertising also
Conflict Preemption
Florida Lime and Avocado Growers v. Paul​ ​(1963)
● Hold​: Federal Law which mandated certain oil levels for avocados preempted state law
which prescribed different requirements
● Reason​: J. Brennan stated there is ​Conflict Preemption​ if it is impossible to comply with
both Fed and state law
Obstacle Preemption
Pacific Gas & Electric Co. v. State Energy Resources​ ​(1983)
● Hold​: CA’s law which required developers of nuclear material to get state approval
before building any additional facilities was not preempted by the Fed Atomic Energy
Act
● Reason​: The fact that past precedent recognizes that CA has the power to decide whether
or not to develop nuclear facilities shows that the Fed Act doesn’t preempt CA from
making a law which dealt with the establishment of nuclear facilities
Field Preemption
Arizona v. United States​ ​(2012)
● Hold​:
1. ✅ ​Field Preemption ​- Section 3 of AZ immigration law - which made it a
misdemeanor for an alien to fail to register with the Fed gov’t - was preempted
because Fed law already required registration and did not impose criminal penalty
○ Reason​: Federal reasons, like foreign affairs, demand the Fed Gov’t to
occupy the entire field of immigration registration
○ Arg​:
■ Fed​: Fed law should occupy the entire field because alien
registration has effect on the nation’s foreign affairs
■ State​: State law should occupy this part of the field because Fed
law is insufficiently covering the state’s needs
2. ✅​ Conflict Preemption -​ Section 5 of AZ immigration law imposing criminal
penalties on aliens who apply for work is preempted because it conflicts with
Federal law. The Federal law expresses the intent not to punish the illegal aliens
but the business owners who hire them.
3. ✅ ​Obstacle Preemption -​ Section 6 of AZ immigration law which allows state
police to arrest suspected illegal aliens is an obstacle, even though it helps,
because it circumvents the Fed gov’t’s removal plan
4. ❌ ​No Preemption -​ Section 2(b) of AZ immigration law which requires state law
enforcement to transmit info to Fed law enforcement because states may
determine how their officials communicate with the Fed Gov’t
______________________________________________________________________________
DORMANT COMMERCE CLAUSE
Art 1 ​§8
- Congress can…
Art 1 §10
States cannot…
Dormant Commerce Clause -​ state laws violate the dormant commerce clause if they are
discriminatory against citizens of different states or if they substantially burden interstate
commerce
● If the law is not discriminatory and imposes only incidental effects on interstate
commerce, the law is presumed to be valid, and it will be upheld “unless the burden
imposed on [interstate] commerce is clearly excessive in relation to the putative local
benefits.” (Pike v. Bruce Church)
State Discrimination
● Facially Discriminatory ​- ​City of Philadelphia v. New Jersey
● Facially Neutral but Discriminatory in Purpose ​● Facially Neutral but Discriminatory in Effect
**If the law is discriminatory in any of these ways, the law is presumed invalid and will be
subject to strict scrutiny: it will be upheld only if the state shows that the law is necessary to
achieve an important purpose.
City of Philadelphia v. New Jersey​ ​(1971)
● Hold​: The dormant commerce clause bars NJ from passing a protectionist law, which is
on its face discriminatory against the importation of out of state garbage
● Reason​: The evidence showed that NJ’s law passed this law for reasons of economic
protectionism and not as a means to achieve “putative health benefits
● Arg​:
○ State​ - Alleviating health issues is a local concern necessitating this action
○ Fed​ - By giving NJ an economic advantage other states do not have, this law is
protectionist and disrupts interstate commerce
NON-DISCRIMINATORY BUT BURDENSOME ON INTERSTATE COMMERCE
State + Local Concerns ←→ Burden on Interstate Commerce
If the law “imposes only incidental effects on interstate commerce, the law is presumed to be
valid, and it will be upheld “unless the burden imposed on [interstate] commerce is clearly
excessive in relation to the putative local benefits.” (​Pike v. Bruce Church​)
Consolidated Freightways of DE v. Raymond Kassel​ ​(1981)
● Hold​: An Iowa statute which prohibits 65 foot trucks on its highways was found
unconstitutional because it overly burdened interstate commerce
● Args​:
○ State - it is a state prerogative to prevent the danger from large trucks
○ Fed - by requiring large trucks to have to unhinge to go through the interstate in
Iowa, burdens interstate commerce
● Reason​: The State failed to show the trucks were that dangerous showing that the benefit
did not outweigh the burden
MARKET PARTICIPANT EXCEPTION
Market Participant Exception -​ when the state owns a business, or is a participant in the market,
it may favor its own citizens even though that is discriminatory
South-Central Timber Development v. Department of Natural Resources Alaska​ ​(1984)
● Hold​: “the state may not avail itself of the market-participation doctrine to immunize its
downstream regulation of the timber-processing market in which it is not a participant.”
● RF​:
○ Alaska sold a bunch of state owned timber to in state companies.
○ With the sale, Alaska mandated that the buyer have the timber processed in-state
● Rule​: Alaska may discriminate as a ​Market Participant​ but not as a state regulator. So the
legal question is if Alaska here was acting as a ​Market Participant
● Reason​: The court found the downstream nature of the transaction being regulated,
Alaska was no longer a ​Market Participant i​ n that transaction
PRIVILEGES AND IMMUNITIES CLAUSE
Article IV, § 2 The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.
● Analysis:
1. Has the state (or sub-state entity, like a city) discriminated against out-of-state
residents with regard to “privileges and immunities”?)
2. If so, is there a “substantial reason” for the discrimination?
EXECUTIVE POWER
Youngstown Sheet & Tube Co. v. Sawyer​ (1952)
“The President’s power...that the laws are faithfully executed refutes the idea” he is lawmaker
● Justice Jackson’s three categories​: ◦
1. Presidential authority at its maximum: Congress has expressly or implicitly
authorized the President’s action.
2. The twilight zone: Congress has been silent; Congress has neither granted nor
denied Presidential authority over the matter at issue.
3. The lowest ebb: the executive action is inconsistent with the express or implicit
will of Congress.
THE NON-DELEGATION PRINCIPLE AND ITS DEMISE
Nondelegation doctrine:​ Congress must specify an “intelligible principle” to ensure that agency
rule-making doesn’t become lawmaking.
● Congress can control Executive administrative agencies by passing laws directing them
to take certain action, or by restricting their power in other areas
A.L.A. Schechter Poultry Corp. v. United State​ ​(1935)
● Hold​: The National Industrial Recovery Act which allows a non-gov’t group to set up
poultry codes is unconstitutional
● Crux​: This case is here to demonstrate how the United States used to follow the
non-delegation principle
THE LEGISLATIVE VETO AND ITS DEMISE
Immigration + Naturalization Service v. Chadha​ ​(1982)
● Hold​: A section of the Naturalization and immigration Act which allows one chamber
Congress to pass a resolution which vetoes a portion an executive action is
unconstitutional
● RF​:
○ An immigration judge (Executive Branch?) suspended Chadha’s deportation
○ The House passed a resolution reversing the suspension
● Reason​: The Original Principles of the constitution state that the Legislature may only
take certain actions is through ​Presentment a​ nd ​Bicameralism​. Because this act allowed
one chamber to circumvent the other chamber and executive veto, it is unconstitutional
○ (Later espoused in ​Clinton v. NY​ (1992) President can “return” bill with total
veto, but a line-item veto constitutes amendment and thus is law-making)
APPOINTMENT AND REMOVAL
● Article II, § 2(2): ​The Appointments Clause:​ the President shall appoint various “Officers
of the United States” with advice and consent of the Senate, “but the Congress may by
Law vest the Appointment of such inferior Officers, as they think proper, in the
President, to the Courts of Law, or in the Heads of Departments.”
● Article I, § 2(5): the House shall have the sole power of impeachment.
● Article I, § 3(6): the Senate shall have the power to try all impeachments.
Alexa Morrison, Independent Counsel v. Theodore B. Olson​ ​(1988) (​Appointment s​ ection)
● Hold​: The provision of the Ethics in Gov’t Act (EGA) which creates a Special Court (SC)
and a Independent Counsel (IC) to investigate unethical behaviors does not violate the
Appointment Clause​ (Article II §2(2) of the Const.)
● RF​:
○ The EGA created a Special Court (SC) for unethical behavior
○ The EGA required the Attorney General (AG) to, with probable cause, conduct an
investigation of unethical behavior and submit findings to the SC. ***The SC the
decides whether or not to ​Appoint ​an IC****
■ EGA vests the IC with all necessary and prosecutorial powers of the AG
○ The EGA allows the AG to remove IC on a showing of good cause
● CJ Rehnquist, Majority​:
○ Rule​: The ​Appointment Clause ​(​AC​) divides appointed officers into two classes
1. Principal​ - Needs Senate confirmation.
○ If the IC is a principal officer, the act violates the ​AC w
​ hich gives
President power to appoint “Officers of the United States”
2. Inferior​ - May be appointed by the President, Courts of Law, +
Department Heads
○ If the IC is inferior officer, the ​Appointment Clause a​ llows
legislature to reserve certain appointment powers
○ Reason​: Appointment by SC was permissible because IC was an inferior officer
■ The office was subject to removal from higher executive office
■ Limited, not broad ranging, duties
■ Jurisdiction is limited by the AG
● Scalia Dissent​:
○ Hold​: The Appointment power should lie with the Executive not the Court set up
by the legislature because:
1. The IC’s power serves a purely executive function
2. The statute deprives the Executive of that fundamentally executive power
because the President’s control over the AG is limited
REMOVAL POWER
Myers v. United States​ (1926)
● Hold​: President has the removal power of Executive officers “the power of removal is
incident to the power of appointment”
● RF​: The President dismissed the Postmaster of Portland, Oregon, a post where Senate
confirmation is needed
● Reason​: The Executive is best to judge whether an Executive Officer is performing his
duty, so the Executive has sole removal power
Humphrey’s Executor v. United States​ (1935)
● Hold​: The FTC Act, which allows for Executive Removal of Federal Trade
Commissioners only on a showing of good cause, is does not impede on the Executive’s
Removal Power
● Rule​: Congress can limit by statute the President’s power to remove an officer who
performs “quasi-legislative” or “quasi-judicial” functions.
● Reason​: The Federal Trade Commissioner had the power to enact certain codes and
decide certain matters, therefore the office was not purely Executive
Wiener v. United States​ (1958)
● Hold​: The President did not have the authority to ​remove​ at will individuals from the War
Claims Commission, which adjudicated claims from war prisoners and internees because
Congress intended the WCC to have a level of independence
● Rule​: Congress may limit (implicitly) the President’s power to remove an officer whose
functions require a measure of independence
● Reason​: ​Congress intended for the "intrinsic judicial character" of the WCC's duties
required that it be able to adjudicate claims solely on the merits of each claim free of
external Executive pressure
Bowsher v. Synar​ (1986)
● Hold​: The Balanced Budget + Deficit Act appointed a Comptroller the power to slash the
budgets of admin agencies, if the budget is not balanced by a certain time
● Rule​: Congress may not claim for itself the power to remove a truly executive officer
● Reason​: The Comptroller may only be removed by Congress yet it has the power to
remove a “truly executive officer”. Therefore, Congress is usurping the Executive’s
Removal Power
Morrison v. Olson​ (1988) (continued…)
● Hold​: The restriction within the Ethics in Gov’t Act (EGA) limiting the Attorney
General’s power of ​removal i​ s constitutional
● Rule​: “the real question is whether the removal restrictions are of such a nature that they
impede the President’s ability to perform his constitutional duty”
● Reason​: The court stated the ​removal​ provision does not burden “the President’s power to
control or supervise the independent counsel, as an executive official, in the execution of
his or her duties under the Act
● SV Crux​: The limit on the executive ​removal ​power does not limit the Executive’s ability
to execute the law
REMOVAL
Office with a Purely Executive Function ←→ Intent for Independence from Executive
REMOVAL RESTRICTIONS
Burden on the Pres. to “faithfully execute laws” ←→ Restrictions do not Burden Exec. Function
APPOINTMENTS AND REMOVALS
● Power to appoint is power to remove, but with qualifications (​Myers​ + ​Humphrey’s​)
● Congress may limit removal by statute, as with a good cause requirement, when the role
of the officer requires some independence from the President (​Weiner​)
● Congress may not claim for itself the power to remove executive officers (​Bowsher​)
● Two (or more) layers of “good cause” job protection may violate Article II (​Morrison​)
______________________________________________________________________________
SEPARATION OF POWERS AND FOREIGN POLICY
Article 1, §8: ​Congress​ has the power to regulate commerce with foreign nations “to declare
War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and
Water,” to raise and support armies, and to “define and punish Piracies and Felonies committed
on the high Seas, and Offenses against the law of Nations.
Article II stated the “​President​ shall be Commander of Chief of the Army and Navy” and militia
Article II states the ​President​ “shall have Power, by and with ​Advice and Consent of the Senate
to make Treaties, provided two thirds of the Senators present concur.
United States v. Curtiss-Wright Export Corp.​ ​(1936)
● Hold​: A Congressional resolution which authorized the President to stop the sale of arms
to South American countries involved in a border dispute, despite the nondelegation
doctrine, was constitutional because it was a purely external affair
● Rule​: For foreign matters, the President may make policy decisions which exceed the
enumerated powers of the Executive. Congress may provide the President with a special
degree of in external manners which would not be afforded domestically
TREATIES AND EXECUTIVE AGREEMENTS
Article II, ​§2 states the president “shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present concur.”
Treaty​ - an agreement between the United States and a foreign country that is negotiated by the
President and is effective when ratified by the Senate
Executive Agreement​ - an agreement between the United States and a foreign country that is
effective when signed by the President and the head of the other gov’t.
● The Supreme Court has never declared an executive agreement unconstitutional for
violating Congress’ Article II §2 power.
● United States v. Pink​ ​(1942): ​Hold​: Just as States must comply with a Treaty ( Art. VI,
Supremacy Clause)​ they must comply with the terms of an Executive agreement
Dames & Moore v. Regan, Secretary of the Treasury​ ​(1981)
● Hold​:
1. The International Economic Emergency Protect Act authorized the seizure of
Iran’s assets
2. The IEEPA does not give the power to suspend all legal claims but here prec.
shows Congressional intent for executive management of claim settlement
● RF​:
○ During the Iran Hostage Crisis, Pres. Carter used IEEPA to freeze Iranian assets
○ The Reagan Administration affirmed an agreement made by Pres. Carter with the
Iranian government to unfreeze Iranian assets, and to remove all legal proceedings
in US courts against Iran to an independent claims tribunal. The agreement was
made effective by ​Executive Order
○ Dames & Moore, attempting to collect the $3 million debt owed to it by the
Shah’s gov’t, argued that the agreement was beyond the President’s power
● Reason:
○ Jackson’s categories in ​Youngstown​: Pres. authority at its max: Congress
expressly or implicitly authorized Pres. action.
PRESIDENTIAL POWER AND DETENTION IN THE WAR ON TERRORISM
● Article I, Section 9: “The privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it.”
● Amendment V: “[…nor shall any person be] deprived of life, liberty, or property, without
due process of law…”
● Amendment XIV: “[nor shall any State] deprive any person of life, liberty, or property,
without due process of law…”
Hamdi v. Rumsfeld​ ​(2004)
● Hold​:
1. The Authorization for Use of Military Force which allowed the Pres. use “all
necessary and appropriate force against those nations, organizations, or persons he
determines planned, authorized, committed, or aided the terrorist attacks…” gave
him the power to detain enemy combatants
2. The ​Due Process Clause​ of the V Amend. gives a citizen a right to contest his or
her categorization as an enemy combatant.
● RF​:
○ After September 11, Hamdi, a US citizen, was captured fighting against the US in
Afghanistan
○ Fourth Circuit held enemy combatants may be indefinitely detained without due
process. ​Separation of Powers ​requires deferment to Executive Judgment
● Evaluating Detention​:
○ Citizenship of detainee: US or foreign
○ Status of detainee as combatant or civilian
○ Location of initial capture (US soil or abroad; “theater of war” or not)
○ Location of detention •Location of proposed tribunal (US territory or not)
○ Nature of the charge against the detainee: detained for an ordinary criminal
offense, or an offense against the laws of war
Korematsu v. United States​ ​(1944)
● 🚫 ​Hold​: The XIV Amend. does not bar the facially discriminatory military order during
WWII that ordered all Japanese-American citizens out of the West Coast and into
internment camps. (**​OVERTURNED​ by ​Trump v. Hawaii​ ​2018)
● Reason:
○ “the power to protect must be commensurate with the threatened danger. - Black
○ the order was not motivated by discrimination but instead by the threatened
danger of war with the Japanese Empire
● ✅ ​Rule​: A law that is facially discriminatory is subject to the strictest scrutiny
Nixon v. Fitzgerald​ ​(1982)
● Hold​: The President is entitled to absolute immunity from liability “predicated on his
official acts” except in highly unusual circumstances
● RF​:
○ Fitzgerald, a civilian analyst for the US Navy testified against the airforce
○ The next year Fitzgerald was fired and Nixon took responsibility
○ Fitzgerald sued after the Civil Service Commission found his firing was unjust
Clinton v. Jones​ ​(1997)
● Hold​: A president is not entitled to absolute immunity for civil litigation regarding events
that occured before his presidency
● RF​:
○ An Arkansas Employee was sexually harassed by a President before he assumed
office and while he was governor of Arkansas.
○ The employee was retaliated against by state employees in retaliation for
reporting the incidents
● Reason​:
○ Neither separation of powers or the implied constitutional need for confidentiality
can justify absolute immunity
______________________________________________________________________________
PROTECTION FOR INDIVIDUAL RIGHTS
The State Action Doctrine​: Individual invasion of individual rights is not the subject matter of
the constitution. - ​United States v. Stanley​ ​(1883)
Barron v. Mayor of Baltimore​ (1833)
● 🚫 ​Hold​: The Fifth Amendment Due Process clause only applies to the Federal
Government and not the States
● RF​:
○ City construction diverted water from plaintiff’s wharf who alleged because less
ships were coming his direction that he was deprived him of profits
● Outcome​: The wharf owner was not allowed to recover damages
Slaughter-House Cases​ (1872)
● Hold​:
1. 🚫 The Due Process Clause does not apply to a right to practice one’s trade
2. 🚫 The Equal Protection Clause only applies to African Americans
3. 🚦 The Privileges and Immunities Clause was not meant to provide a basis for
invalidating state laws. ​*** ​The Court has practically gutted the Privileges and
Immunities clause until ​Saenz v. Roe​ (1999)
Saenz v. Roe​ ​(1999)
(​Privileges and Immunities Clause)​
● Hold​: The Privileges and Immunities Clause of the Fourteenth Amendment protects a
citizen's right to travel freely between states and guarantees the right to equal treatment in
that state
● RF​: A California statute limited the amount of welfare benefits paid to newly arrived
citizens to the amount paid by their former state for a period of 12 months
● Reasoning​:
○ Part of the traditional protection afforded by the Privileges and Immunities clause
has been that a citizen of one state can become a “citizen of another State of the
Union by a bona fide residence therein, with the same rights as other citizens of
that state”
○ “The right to travel embraces the citizen’s right to be treated equally in her new
State of residence.”
INCORPORATION
Duncan v. Lewis​ (1968)
● Hold​: The Sixth Amendment’s guarantee of a right to trial in criminal cases is applied to
the States via the Due Process Clause of the Fourteenth Amendment
● RF​: After being accused of a crime in Louisiana the defendant’s request for a trial by jury
was denied. ​Caveat: Petty crimes defined as those punishable by no more than 6 months
in prison or a $500 fine are not subject to jury trial provision.
McDonald v. City of Chicago​ ​(2010)
● Hold​: Second Amendment right to keep and bear arms applies to the states via the Due
Process Clause of the Fourteenth Amendment
● Rule​: Whether a right is one that is incorporated in the concept of Due Process, courts
analyze whether that right is fundamental to our scheme of ordered liberty or whether that
rights is “deeply rooted in this Nation’s history and tradition.”
● RF​:
○ In ​District of Columbia v. Heller​ ​(2008) the Court held that the Second
Amendment protects an individual’s right to have guns, at least for self-protection
in the home, and therefore a DC gun ban, which is under Federal law, is barred by
the Second Amendment
● Reason​:
○ The Right to Bear arms is a Fundamental Right because it has been traditionally
protected by the US government
○ J. Alito​ rejected ​J. Clarence’s​ contention that the Right should be incorporated via
the Privileges and Immunities Clause
THE APPLICATION OF THE BILL OF RIGHTS TO PRIVATE CONDUCT
The Civil Rights Cases: United States v. Stanley​ ​(1883)
● Hold​: The blanket rule is that the Constitution only applies to the government
● Caveats:​
1. The Thirteenth Amendment applies to private individuals
2. Both Federal and State statutes can apply constitutional norms to private conduct
3. There are certain exceptions requiring private conduct to comply with the
Constitution
THE PUBLIC FUNCTIONS EXCEPTION
Marsh v. Alabama​ ​(1946)
● Rule​: “The more an owner, for his advantage, opens up his property for use by the public
in general, the more do his rights become circumscribed by the statutory and
constitutional rights of those who use it.”
● Hold​: A Jehovah’s Witness’ right to Free Speech triumphed over a property owner’s right
to exclude where the property owner was the owner of a town which was
● This case uses ​The Balancing Test ​which looks to whether the private property is used for
a public purpose
Jackson v. Metropolitan Edison Co.​ ​(1974)
● Hold​: Metropolitan Edison Company’s termination of Jackson’s electrical power did not
qualify as state action covered by the Fourteenth Amendment
● Reason​:
○ Private action is not limited by restrictions within the Fourteenth Amendment
○ Despite a business being “subject to extensive state regulation does not by itself
convery its action into that of the State for the purpose of the Fourteenth
Amendment”
● Test​: “the inquiry must be whether there is a sufficient close nexus between the State and
the challenged action of the regulated entity so that the action of the latter may be fairly
treated as that of the state itself.”
○ Three Factors which affirm this test
1. State-sanctioned monopoly
2. An extensive pattern of cooperation between the private entity and the
state
3. A service uniquely public in nature
Burton v. Wilmington Parking Authority​ ​(1961)
● Hold​: A private restaurant, as a recipient of assistance by the parking authority and
because the rent paid by it was integral in furthering the city’s interest in providing
affordable parking, was not allowed to discriminate because its actions were so
intertwined with the government as to be imputed to the government
● Reason​:
○ By its lease agreement the government could have mandated the restaurant to
comply with the constitution and by its inaction, made itself party to the
discriminatory refusal of service
Moose Lodge No. 107 v. Irvis​ ​(1972)
● Hold​: The State’s grant of a liquor license to a private club does not qualify that private
club’s discriminatory action as imputable to the government for the purposes of the
Fourteenth Amendment
● Rule​: The government regulation may not work to encourage racial discrimination
● RF​:
○ The Moose Lodge had a policy of not serving African Americans
○ The Moose Lodge had a liquor license provided by the state
● Reason​:
○ “Here there is nothing approaching the symbiotic relationship” between
government and private entity that was present in ​Bruton
○ Moose Lodge had “quite ostentatiously proclaimed the fact that it is not open to
the public”
Norwood v. Harrison​ ​(1973)
● Hold​: The state cannot provide aid to a private school which discriminates on the basis of
race
● RF​:
○ Mississippi had a policy of lending textbooks to both public schools and private
schools
○ Parents of schoolchildren brought suit claiming that by funding textbook
programs for private schools, which were enlarged in reaction to the
desegregation of public schools, constituted state action
● Reason​: A state’s constitutional obligation disallows it to run racially segregated schools
as well as to give substantial aid to institutions that practice racial or other invidious
discrimination
Rendell-Baker v. Kohn​ ​(1982)
● Hold​: A private school, with income derived primarily from public sources and regulated
by public authorities, may discharge certain employees without regard to the First and
Fourteenth Amendments
● RF​:A private school which received over 90 percent of its funds from Massachusetts
discharged a number of employees for picketing
● Reason​: The legislative policy to fund the school in no way makes the services provided
to be the exclusive province of the state
SUBSTANTIVE DUE PROCESS AND ECONOMIC INTERESTS; RATIONAL BASIS REVIEW
Lochner v. New York​ ​(1905)
● 🚫 ​Hold​: A New York law, which makes it illegal for employees to work over 60 hours a
week or over 10 hours a day, violated the liberty to contract which is protected by the
Due Process Clause
● Rational Basis Review​: The party challenging a law must show there is no rational basis
for that law
West Coast Hotel Co. v. Parrish​ ​(1937) THIS ENDED THE LOCHNER ERA
● Hold​:
○ A Washington law which set a minimum wage for women for a work week, was
constitutional and did not violate the Fourteenth Amendment by curtailing the
freedom to contract
○ This overturned ​Adkins v. Children’s Hospital​ ​(1923) where the court struck
down a minimum wage for working women
● Reason​: A state may use its police powers to limit an individual’s right to contract
United States v. Carolene Products​ ​(1938)
● Hold​: An Act which outlawed the shipment of “filled milk” did not violate Due Process
within the Fourteenth Amendment
● Rule​:
○ Judicial deference is needed towards government regulation with more aggressive
judicial review reserved for cases involving fundamental rights and discrete and
insular minorities
○ Rational Basis Review​:
■ Minimum level of scrutiny for challenging gov’t actions
■ The law must be ​rationally related to a legitimate government purpose
■ The challenge has the burden of proof
● Reason​: Congress had held many hearings about the law and it was reasonable to
conclude Congress had a legitimate purpose regarding public welfare
● Possible Reasons For Greater Judicial Scrutiny​:
○ Government action on its face violates an enumerated constitutional right
○ Government action restricts access to the political process
○ Government action reflects prejudice against “discrete and insular minorities”
Rational Basis Review​ Analysis for Equal Protection Clause
Step 1: Is there a legal classification?
Step 2: Is there a rational purpose for the classification? (Actual/conceivable)
Carolene Products​ ​Footnote 4​: What Constitutes a Suspect Class?
● Heightened Scrutiny if:
○ Discrete and Insular minority
○ History of discrimination
○ Political powerlessness
○ Immutability of the trait
○ Likely legal relevance of the trait
Williamson v. Lee Optical of Oklahoma​ ​(1955)
● Hold​: A law that banned non-optometrists from fitting eyeglasses did not violate Due
Process of the Fourteenth Amendment
● Reason​: Though the law may have been “wasteful” and “needless” the court recognized
that it is for the legislative branch and not the judiciary to balance economic interests
Railway Express Agency Inc. v. New York​ ​(1949)
● Hold​: Using ​Rational Basis Review​ the court found a law which prohibited vehicle
owners from advertising businesses on the side of their vehicles, unless it was their own
business, did not violate the Equal Protection Clause because the classification functioned
to limit distraction to motorist
○ The law was underinclusive but it sought to solve the problem one step at a time
Underinclusive v. Overinclusive
● Underinclusive - The law only addresses part of the problem
● Overinclusive - The law affects people who are not part of the problem
McGowan v. Maryland​ ​(1961) Under ​Rational Basis Review​ the actual purpose behind a law is
irrelevant “if any state of facts reasonably may be conceived to justify its discrimination”
NY Transit Authority v. Beazer​ ​(1979) An example of over inclusiveness passing Rational Basis
Review
● Hold​: A NY transit authority policy not to hire methadone users was upheld because the
state’s purported purpose to provide a more stable work environment was held to be
reasonably related to the policy of not hiring methadone users
● Reason​: Although the rule was overinclusive, general rules of even handed applicability
satisfies the principle in the Equal Protection Clause that the government must govern
impartially
RATIONAL BASIS REVIEW WITH BITE
Romer v. Evans​ ​(1996)
● Hold​: Colorado’s Amendment 2, which prohibited any branch of the state government to
take actions for protecting homosexuals, was permanently enjoined because there was no
Rational Basis for upholding the law
● Rational Basis Test​: Search for the relation between the classification adopted and the
objective to be obtained
● Reason​: Amendment 2, which was predicated on preserving moral norms and freedom of
association, was wrong because:
1. Closing off the legislative process to a specific group denies Equal Protection
2. Restring the legislative process to gays and lesbian denies Equal Protection
3. Accommodating private moral disapproval is an impermissible state purpose
4. Animus towards gays is an impermissible state purpose
U.S. Department of Agriculture v. Moreno​ ​(1973)
● Hold​: Section 3 of the Food Stamp Act of 1964, which prohibited people living in a
household with unrelated people from receiving food stamps was found unconstitutional
under the Due Process Clause of the Fifth Amendment
● Reason​:
○ The law did not further Congress’ goal of preventing hippies or hippy communes
from enrolling in Food Stamps
○ The classification created between those living with people related to them
against people living with unrelated other people did not “operate so as rationally
to further the prevention of fraud”
■ Two parts of the Food Stamp Act already works to prevent fraud, so the
main purpose here seemed to be animus against hippies
City of Cleburne Texas v. Cleburne Living Center Inc.​ ​(1985)
● Hold​: The denial of a special use permit for a group home for the mentally retarded
violated the Equal Protection Clause of the Fourteenth Amendment because it was
predicated solely on animus against the mentally retarded
● Reason​: The court showed that all the state’s purposes for denying the application were
unfounded and that the law was premised on an irrational prejudice against the mentally
retarded
○ While the court did not hold the Mentally Retarded was a suspect class, it found
that there was no rational basis for the law
RACIAL AND NATIONAL ORIGIN DISCRIMINATION; STRICT SCRUTINY
Amendment XIV Section 1​. (1868) All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor [shall any State] deny to any person within its
jurisdiction the equal protection of the laws.
McLaughlin v. Florida​ ​(1967) - A Florida law that prohibited cohabitation of a room at night
between unmarried interracial couples as an unconstitutional violation of Equal Protection
Clause because it was based on a theory that whites are superior to blacks
Loving v. Virginia​ ​(1967)
● Hold​: Virginia’s anti-miscegenation law violates the Equal Protection Clause
● Strict Scrutiny​: For laws that are racially discriminatory the court applies Strict Scrutiny
which requires the government to show that a law or policy is Narrowly Tailored and the
Least Restrictive means to further a Compelling State Interest
○ The law may only be upheld if it is “necessary to the accomplishment of some
permissible state objective”
● Reason​: Anti-miscegenation laws only have the purpose of promoting white supremacy
Palmore v. Sidoti​ ​(1984)
● Hold​: The removal of a child from the custody of a mother for the sole reason that she
was cohabiting with a black man violated the Equal Protection Clause because courts
may not directly or indirectly give racial prejudices legal effect
● Reason​:
○ The court applied Strict Scrutiny
○ The lower court had based its decision to remove the child from the mother’s
custody was motivated based on a conception that the child would not be best
served from being in a mixed-raced household
Plessy v. Ferguson​ ​(1882) - 🚫 In ​J. Brown’s​ opinion, the Equal Protection Clause is satisfied by
Separate but Equal treatment. ​✅ ​In ​J. Harlan’s​ dissent he contended that the constitution is color
blind.
● Initial attack on Separate but Equal in ​Missouri Ex Rel Gaines v. Canada​ ​when the court
found that a law paying for black students to attend law school out of state violated the
Equal Protection Clause because the test is whether the state furnishes separate but equal
accommodation
Brown v. Board of Education​ ​(1954)
● Hold​: Separate but Equal as applied to education is inherently unequal, therefore racially
segregated public schools violated the Equal Protection Clause
● Reason​:
○ Laws requiring racial separation are subject to Strict Scrutiny
○ The right to education is essential to the well-being of a citizen and that right
when provided by the state must be furnished equally
PROVING AN EQUAL PROTECTION VIOLATION: DO WE EVER USE STRICT SCRUTINY
WITHOUT A FACIAL CLASSIFICATION?
● Proof of disparate impact (discriminatory effects) alone, without a showing of
discriminatory intent, is insufficient to trigger strict scrutiny. ​Washington v. Davis​ (1976)
● Proof of discriminatory intent alone, without a showing of discriminatory effects, is
insufficient to establish an equal protection violation. ​Palmer v. Thompson ​(1971)
WAYS TO PROVE DISCRIMINATORY INTENT
● A pattern of disparate impact so overwhelming it is “unexplainable on grounds other than
race”
● Historical record, especially a record of procedural irregularities
● Statements by members of the decision making body
WHAT MIGHT SERVE AS A “COMPELLING STATE INTEREST” TO JUSTIFY A RACIAL
CLASSIFICATION?
● Need to remedy past discrimination
● Diversity
● “Racial balancing”
● “Avoiding racial isolation”
Johnson v. California​ ​(2005) **An example of permissible segregation**
● Hold​: A state’s practice of temporary racial segregation of state prisoner’s is justified an
permissible to prevent racial prison riots
DISCRIMINATORY IMPACT AND INTENT; REMEDIES
City of Mobile v. Bolden​ ​(1980)
● Rule​: To prove an Equal Protection violation for a voting pattern at large a challenger
must prove the plan was conceived or operated to further racial discrimination.
○ This burden of proof belongs to the principle from ​Washington v. Davis​ ​(1976)
that only if there is purposeful discrimination can there be an equal protection
clause violation
Village of Arlington Heights v. Metropolitan Authority​ ​(1977)
● Rule​: Once racial discrimination is shown to be a substantial or motivating factor behind
the enactment of a law, the burden shifts to the law’s defenders to demonstrate that the
law would have been enacted without this factor.”
Grutter v. Bollinger​ ​(2005)
● Hold​: The Equal Protection Clause of the Fourteenth Amendment does not prohibit the
narrowly tailored use of race to achieve the educational benefits which derive from a
diverse student body
● Reason​: ​Strict Scrutiny a​ pplied
○ Narrowly Tailored​ - Only one factor in achieving multi-varied version of
diversity and miniscule harm non-minority students
○ Compelling State Interest -​ Leadership opportunities provided to a diverse body
of people
Parents Involved v. Seattle School District No. 1​ ​(2006)
● Hold​: A school policy which makes a student’s race a tiebreaker factor for matriculation
into a particular high school within the Seattle School District may not be upheld.
● Rule​:
1. The rule in ​Grutter v. Bollinger​ ​does not hold for high schools
2. Racial Diversity is not a compelling interest that can justify the use of race in
selecting for highschool student
○ Strict Scrutiny a​ pplied
3. A school district which uses race to deny a high school student admission into a
chosen school violates the Equal Protection Clause
Richmond v. J.A. Croson Co.​ ​(1989)
● Rule​: Strict scrutiny is the correct standard to use in evaluating government affirmative
action programs
○ Strict Scrutiny​ - A law must be narrowly tailored or use the least restrictive means
to further a compelling state interest
● Hold​: “Generalized assertions” of past discrimination can not justify rigid racial quotas
for awarding government contracts
● RF​:
○ Richmond construction industry is one where a vast majority of the contracts went
to non-minority companies
○ The city council approved ‘The Plan’ which set aside 30% of all government
construction contracts for minority run business enterprises
● Reasons​:
○ Not Narrowly Tailored
■ The law was overly broad by including groups like Eskimos and Aleuts
despite no evidence of discrimination against those groups
■ There were other methods the city could have taken to increase the
participation of minority businesses in the construction industry
○ Compelling State Interest​:
■ The constitution allows Richmond to remedy discrimination that it was a
participant in, but there was not sufficient evidence that it was involved
■ It was “sheer speculation” that minorities have generally been damaged by
discrimination, but there was no specific proof
RACIAL DISPARITIES IN CRIMINAL JUSTICE
Pena-Rodriguez v. Colorado​ ​(2017)
● Hold​: There may be an exception to Colorado’s no impeachment rule, which prohibits the
use of evidence of juror’s statement in trial, in the “gravest and most important cases”
when it is clear a juror convicted a defendant on the basis of race
○ The exception in cases of clear racial animus is necessary to preserve the Sixth
Amendment rights to an impartial jury
○ Not every offhand comment by a juror will be enough to set aside the no
impeachment rule
● RF​: A Mexican defendant was convicted of a crime and afterwards members of the jury
approached the defense counsel to inform him/her that there was clear evidence by one
jurors statement that he had based the conviction on racial prejudice against Mexicans
McCleskey v. Kemp​ ​(1987)
● Hold​: Statistical evidence which shows that capital punishment is used disproportionately
against African-Americans is not enough to hold that capital punishment is
unconstitutional
● Reason​: The evidence was best presented to the Legislature and not the Judiciary
THREE TIERS OF CONSTITUTIONAL SCRUTINY
Means
Ends
Rational Basis Review
Rationally Related
Legitimate State Purpose
Intermediate Scrutiny
Substantially Related
Important Governmental
Objectives
Strict Scrutiny
Narrowly tailored/Least Restrictive
Means
Compelling State Interest
Intermediate Scrutiny​ ● Reed v. Reed​ (1971) for discrimination against women, “a classification must be
reasonable, not arbitrary, and must rest upon some ground of difference having a fair and
substantial relation to the object of the legislation, so that all persons similarly
circumstanced shall be treated alike.”
Frontiero v. Richardson​ (1973) - ​No Decision Made on the Level of Scrutiny for Gender
● Hold​: A Federal law which automatically deemed the wives of military members as
dependents but only allowed the husbands of military members to be dependents if their
wives made over half the household income is a violation of the Equal Protection Clause
● Reasons​: The law was discriminatory because it provided for different treatment between
men and women
Craig v. Boren​ ​(1976) - ​Intermediate Scrutiny Adopted
● Hold​: An Oklahoma law that prohibited the sale of 3.2% alcohol to males under the age
of 21 and to females under the age of 21 violated the Equal Protection Clause of the
Fourteenth Amendment
● Reasons​: The scanty evidence that males were involved in more drunk driving accidents
was not large enough to overcome ​Intermediate Scrutiny
○ “If maleness is to serve as a proxy for drinking and driving, a correlation of 2%
must be considered unduly tenuous.”
United States v. Virginia​ ​(1996)
● Hold​: The policy of not allowing women admission into Virginia’s preeminent military
institution violated the Equal Protection Clause does not pass the ​Intermediate Scrutiny
standard
● Reasoning​: ​J. Ginsburg
○ The benefit of single-sex education was not found to be an “exceedingly
persuasive justification”
○ Generalizations about what women are capable of do not justify the exclusion of
women who may qualify for admissions
○ The remedy provided by Virginia, by establishing a separate all girls school,
failed to put women at as equal of a position as if there had been no
discrimination
Orr v. Orr​ ​(1979) - ​Role Stereotype Argument
● Hold​: A law which required men to pay alimony but not women violated the Equal
Protection Clause because it was motivated by an generalized notion that gender is an
accurate proxy for financial need
● Reasoning​: Gender classifications must serve an important governmental function and
not motivated by general notions of a woman’s place in society
Geduldig v. Aiello​ (1974)
● Hold​: A policy which makes women ineligible for disability payments resulting from
pregnancy does not violate the Equal Protection Clause
● Reasoning​:
○ The court applied Rational Basis Review because the classification was not
between sexes but between pregnant and non-pregnant persons
○ This policy was rationally related to a government interest because the state has
an interest in keeping costs low and keeping the disability program running
○ Insuring disability would make the program to costly and impossible to maintain
● Notes​: After this case Congress passed a law saying Pregnancy discrimination is in fact
discrimination