The Early Years (1824 – 1936)

Gibbons v. Ogden (1824) –Congr. power is broad
NOT Commerce



Trademark Cases (1879)—not legit
E.C. Knight (1895) – Sugar monopoly
o Production/Manuf. v. Commerce
o Direct v. Indirect
o National v. Local
Labor
o Carter Coal (1936)
… Not Interstate


Shreveport Rate Case (1914)
o Intrastate BUT subst. economic effects test
+ instrumentality of commerce
Schechter (1935)
State Sovereignty Limiting Congress

Hammer v. Dagenhart (1918) products made by child
labor too atten.
National Police Power




Champion v. Ames (1903)—lottery tix move in interstate
Hipolite Egg (1911)—contaminated eggs
Hoke v. US (1913) –women for immoral purposes
Caminetti (1917) –underage women
Unstoppable Commerce Power (1937-1994)



NLRB v Jones (1937) –FLSA, lumber shipped interstate
US v. Darby (1941) –FLSA, regulated intrastate with
subst. effect on interstate is enough (Overrules Hammer)
Wickard v. Filburn (1941) –aggregation approach
Regulatory


Hodel v. VA Surface Mining (1981) –strip mining (local)
Scarborough v. US (1977) –guns owned by felons
Civil Rights
 Heart of Atlanta Motel (1964)
 Katzenbach v. McClung (1964) Ollie’s BBQ
 Title VI of Civil Rights Act
Criminal

US v. Perez (1971)—loan sharking
Reining in the Commerce Power (1995-Present)
 US v. Lopez (1995) –guns in school zones
Limits
 US v. Morrison (2000) –Violence Against Women Act
 Gonzales v. Oregon (2006) –CSA/commerce can’t
impede OR’s Death With Dignity Act
But see…

Gonzales v. Raich (2005) –med marijuana
Spending Power
In contrast, Congress can regulate indirectly under the Spending
Clause by attaching certain conditions to its appropriations.
Congress thus "regulates" via conditions on federal funds; but
federal fund recipients can always reject the funds and thus avoid
the regulation. (Read the Spending Clause here.) Note that
Congress's authority under the Spending Clause may reach farther
than its authority under the Commerce Clause, because spending
conditions need not relate only to interstate commerce.
Congress's authority to regulate under the Spending Clause is
nevertheless always indirect--as a condition on its spending-whereas its regulatory authority under the Interstate Commerce
Clause is always direct.
The Early Years (18XX – 1905)



Munn v. Illinois (1887)—grain elevators, public interest
Mugler v. Kansas (1887)—can outlaw booze
Allegeyer v. Louisiana (1897)—insurance K ax state lines
o legitimate interest in the public health, safety,
morality, or welfare
o real and substantial relation from means to public
interest
LOCHNER (1905)


The right to purchase or to sell labor (“freedom of
contract”) is part of the liberty protected by the 14th
Amendment
economic regulations need to
(a) have a legitimate end,
+ (b) direct relationship between means chosen and
that end in order to satisfy substantive DP.
Lochner Era [Non-deferential]
1905-1934
Bodily Integrity Cases




Jacobson (1905)- mandatory vaccinations
Mental Institutions
o Buck v. Bell (1927)—sterilization
Bailey (1911) Services rendered for payment of debt
Selective Draft Cases (1918)
Labor

Muller (1908)—women in factories
Bunting (1917) —all factory workers
Adkins (1923)—min wage for women
West Coast Hotel—overrules Adkins
Unions
o
o
o
Adair (1908)—railroad workers
Coppage v. Kansas (1915)
New State Ice (1932)
the Supreme Court did not distinguish between “fundamental” and “nonfundamental”
rights.
…..it had not yet discerned an “equal protection component” in the Fifth
Amendment.
“due process of law” required that deprivations of life, liberty or property not be
“unreasonable, unnecessary, arbitrary”, which brought the correlative requirement
that there be a reasonable relationship between the regulation and some public goal
of health, safety or morals.
New Deal/Warren Court Era [Deferential]
1934-?
Economic Issues
 Nebbia v. NY (1934) –state minimum milk price
 West Coast hotel (1937)—overrules Adkins
 Carolene Products (1938)


o Minimum hypothetical rationality
Williamson v. Lee Optical (1955)
Katzenbach v. McClung
Minimum hypothetical rationality (Carolene Products)
Challenges are to the
substance of the law…SDP
applies when a right is
taken from everyone
4 Step Analysis (Chemerinsky)
1. Is there a fundamental right?
2. Is that right infringed?
3. Is the government action justified by sufficient
purpose?
4. Are the means sufficiently related to the goal sought?
Fundamental Rights
Two tests: Strict scrutiny (Rochin) and
Balancing test (minor impositions like vaccines)
1.Balancing: balance the state interest against the magnitude of the right infringed to
discern due process
a.4th Amendment: Winston v. Lee
b.8th Amendment: Youngsberg v. Romeo
Bodily Integrity Cases



Minimum Wage
o
o

Whether the
government’s
interference is justified
by sufficient purpose
Maximum hours
o
o

ISSUE:
Rochin (1952)- stomach pumped for evidence
Mental Institutions
o Donaldson (1972) comm. w/o evidence
o Youngberg v. Romero (1982)—reasonable care
Euthanasia
o Cruzan (1990)—height. std for fd tube rem
o Glucksberg (1997)—WA state asst. su. Ban
Family

Educating Children
o
o
o

Marriage
o
o
o
o

Meyer v. NE (1923) teaching non-English
Pierce Sisters (1925) man. public school
Plyler v. Doe (1982) Edu in itself is not a fund right
Loving v. VA (1967) interracial
Zablocki v. Redhail (1978) m. when paying child sup.
Turner v. Safley (1987) m. while in prison
Obergefell v. Hodges (2015) gay marriage
Who is Family?
o
o
o
Moore v. East Cleve (1977) zoning, gma
Michael H v. Gerald D (1989) prsm prod of marriage
Troxel v. Granville (2000) no gparent vis rights
Privacy – Contraception
 Skinner v. OK (1942)- can’t sterilize hab. Criminals
 Griswold v. CT (1965) –married couples get contrac
o Privacy in the penumbras of 14
 Eisenstadt v. Baird (1972)—everyone gets contrac
 Carey v. Popula. Servcs (1977) –minors get contrac
o Strict scr to all things re: childbearing
Privacy – Abortion
 Roe v. Wade (1973) –no rest. 1st tri, 2nd: reg mom health
 PP v. Casey (1992)—no undue burden
 Stenberg v. Carhart (I) (2000) –no partial ban
 Ayotte v. PP (2006) need exception for mom health
 Gonzales v. Carhart (II) (2007) fed par. birth ban upheld
Sexual Freedom
 Bowers v. Hardwick (1986) –sodomy law upheld
 Lawrence v. TX (2003) sodomy law unconst.
Race
(Facially neutral)


Yick Wo (1886) EPC covers non-citizens
Plessy (1896) separate but equal


Strict Scrutiny
Does the law further a compelling government interest
Is it narrowly tailored to achieving that purpose?
Voting Rights
 Guinn and Beal (1915) grandfather clause


Lane v. Wilson (1939) registration, 3-day window
Gomillion (1960) gerrymandering
---Voting Rights Act of 1965--
Hunter v. Underwood (1985) disenfranch. when crimes
of moral turpitude (not inclu white collar crimes)
Juries


Strauder (1880) black men must be includable
Batson v. KY (1986) can’t strike bc of race
Justice System

MN v. Russel (1991) crack cocaine
 Johnson v. CA (2005) prison cell assignments
Employment/Contracts
 Griggs v. Duke Power (1971) Title VII, proof of

intentional discrim not required for violation
Wash. v. Davis (1976) need racial hostility motivation,
not just disparate impact (th impact can indicate intent)
War Powers
 Hirabayashi (1943) curfew../ odious but necc.
 Korematsu (1944) internment camps
 Ex parte Endo (1944) detainment
Families/Housing
 McLaughlin v. FL (1964) interracial cohabitation
 Loving v. VA (1967) interracial marriage
 Hunter v. Erickson (1969) fair housing ordinance
 Arlington Heights (1977) refusal to rezone
 Palmore v. Sidoti (1984) mom custody, remarried to
black man, law cannot give effect to private bias
 TX v. Inclusive Comm (2015) disp impact bc of FHA
Education



Brown (1954) desegregating schools
Bolling v. Sharpe (1954) DC segregated school
o EPC applies to federal government through DPC
Lau v. Nichols (1974) ESL classes for Chinese speakers
Heightened scrutiny is warranted when a classification is based on
a person’s immutable characteristics (race, gender,
(married/immigrant) status of parents. Traits that a person did not
choose and that the individual cannot change, as well as a history
of discrimination and the class’s ability to protect themselves
using the political process may all be considered.
EPC Analysis (Chemerinksy)
1. What is the classification
2. What level of scrutiny applied
3. Does the gov’t action meet the level of scrutiny?
Affirmative Action
Employment/Contracts




Fulilove (1980) upheld minority % gov’t contractors
Wygant v. Jackson BOE (1986) can’t say no reduc in
divers w/layoffs, role models not compel, not narrowly t
Richmond v. J.A. Croson (1989) history of discrim not
enough to justify minority set aside
Adarand (1995) overrules Fulilove, strict scrutiny
Education
 Lau v. Nichols (1974) ESL classes for Chinese speakers
 Bakke (1978)
 Grutter (2003)
 Gratz (2003)
 Ricci v. DeStefano (2009)
 Schuette (2014)
 Fisher v. TX (2013, 2016)
Citizenship

Federal action
state action
Yick Wo (1886) EPC covers non-citizens
Education



Ambach v. Norwick (1979) public school teacher, low scr
Plyler v. Doe (1982) Undoc. pub sch tuition, undoc status
is chosen, interm scru, but no underclass
Toll v. Moreno (1982) undoc can have in-stat tuition
Justice System



Wong Wing v. US (1896) –due process, Const. applies
Wong Kim Ark (1898)—citizen=born in US, 14th Amd
Sing Tuck (1904) Chinese need witnesses
Employment/Contracting






Sugarman v. Dougall (1973) policy functs, lower scru
Mow Sun Wong (1976) civil service< policy, high scru
Foley v. Cannelle (1978) state trooper, rat. Relationship
Ambach v. Norwick (1979) public school teacher, low scr
Bernal v. Fainter (1983) notaries are not policy maker
Probation officer
Benefits



Graham v. Richardson (1971) welfare, aliens discrete ins
Mathews v. Diaz (1976)—can limit Medicaid to perm 5+
Cabell v. Chavez-Salido (1982) political classification ok
when narrowly tailored and heart of repres. gov’t
Strict Scrutiny when state gov’t discrim against non-citizens
Intermed Scru: undocumented children
Rational basis: federal goven’t.... Cong has plen power to reg
immigration
Rational basis: gov’t discrim non-cit, democratic process/policy
Intermediate Scrutiny
Is the use of sex-based criteria substantially related to
the achievement of an important governmental interest?

Gender
Voting Rights

Minor v. Hapersett (1874) state can limit voting to men
Juries

J.E.B. v. AL (1994) unconst. to challenge jurors on gend.
Education

MS Univ. for Women v. Hogan (1982) can’t exclu males
w/o “exceedingly persuasive justification”

US v. VA (1996) VMI
Employment/Contracting

Bradwell (1873) women can’t be adm to IL bar

Goesaert v. Cleary (1948) bartenders lic
Real Differences




Geduldig (1974) CA insur can exclude pregnancy [RB]
Feeney (1979) veterans pref trmt, no discrm intent
o Foreseeable disparate impact is OK as long as it is in
spite of not bc of sex
Michael M (1981) males punished for stat rape [Int Sc]
Rostker (1981) selective service
Boerne.
How is purpose inferred? (Arlington Heights).
o It may be inferred by:
o specific sequence of events leading up to the challenged
decision,
o departure from normal procedure,
o history,
o testimony of legislatures, and sometimes
o statistics
What is the virtue of equal protection?

To deny arbitrary actions and distinctions among groups.

To deny distinctions that treat one group as less valuable
than another.

To allow some distinctions that are justifiable to achieve
a legitimate end; differentiation made on the basis of
relevant criteria.

To make sure that similarly situated individuals are
treated in a similar fashion.
Demonstrating that there is a classification:
1. Classification exists of the face of the law OR
2. Facially neutral law w/ discriminatory impact and
discriminatory purpose
(Or… neutral statute being administered in a discriminatory way)
How to determine “suspect” classifications?
o One approach that was rejected considers the Carolene
Factors. (Marshall in San Antonio). Provides limited
guidance for legislatures.
o INSTEAD  A class is suspect if it does not pertain to
legitimate political aims. (White in Cleberne).
o In other words, when a classification so rarely
has a rational relationship to legitimate state
interests that there is a presumption of
prejudice (ex. race).
EPC Analysis (Chemerinksy)
1. What is the classification
2. What level of scrutiny applied
3. Does the gov’t action meet the level of scrutiny?
Other Classifications [rational basis]
Wealth, Disability, Sexual Orientation, Age, Classes of One,
Economic


City of Cleburne (1985)
B
With animous = BITE
Illegitimate children

intermediate scrutiny
State Sovereignty
There are some limits. Like the right to decide where your capital is
(Coyle)
Generally all good. Except: NLC, Butler.
Time periods:
1936-1976: Just a truism. (US v. CA; Darby; Wirtz)
1976-1985: Definitional (Usery)
1985 - Back to Garcia and political process as only check
Three Approaches
Definitional (Usery 1976)
See if it is a traditional areas of state function
See in Federalist 39 – Limited enumerated objects of authority.
However, still a question of what fits here?
Political Process (Garcia 1985)
Modern approach. As long as not in conflict with an enumerated
power, courts should let the political process deal with it
Some states will lose out but that’s okay. Bonds (S. Carolina v. Baker)
Two questions:
Commandeering (need to add case about
paying public employees as part of larger
federal regulation)
Affirmative obligation (not okay) but a
negative prohibition on conduct is (Reno v.
Condon)
Can’t force a state to regulate people (Printz
1992)
Compel them to pass a law (NY v. US)
You can use spending or commerce to push
them to comply (SD v. Dole) but not over the
limit (NFIB)
Worry of accountability here. Will people be
able to hold the right people accountable? (NY
v. US)
Commandeering doctrine doesn’t apply to
the reconstruction amendments
Who should be regulating this? Congress or Judges.
Whether 10th is its own substantive limit?
Taxing and Spending
Independent Power (Butler)
Condition pursues general welfare (substantial deference) (SD v. Dole)
Condition is unambiguous and meetable (SD v. Dole)
Condition is related to the federal interest of the grant (SD v. Dole)
Must be constitutional (SD v. Dole)
Must not too coercive (SD v. Dole)
Can be too coercive if they terminate current grants (NFIB v. Sebelius II)
What if it regulates both private and public: Because this law regulates both public and private sector it is
unclear how that will be viewed under NFIB. If we follow the logic of Justice Roberts in the majority then
because this is applying to both private and public schools it is not commandeering. Additionally, there was
some indication that Medicare was a special issue because of the amount of money involved, so that will also
weigh against finding this law to be a violation of the 10th amendment. However, based on the Scalia
concurrence it seems the issue is more that the federal government was trying to use spending to infringe into
areas that should be reserved to the states. If this is the reading the court takes moving forward, than this law
violates the 10th amendment.
End result
o
o
o
o
Can’t require states to make laws (NY v. US).
Can’t require state officials to regulate people outside the state (Printz).
However, allows the state to keep house in particular kind of order (Reno v. Condon) and
allows Congress to provide incentives that are likely to persuade most states to go along (SD
v. Dole).
Garcia has not been overruled, Usery has not been reinstated, and the FLSA still applies to
state employees (subject to Alden v. Maine which held that sovereign immunity precludes
suits against state govs to enforce the FLSA).