Contents
The Constitution: Background .................................................................................................................. 4
Outline of The Constitution ................................................................................................................... 4
Federalist No. 40 .................................................................................................................................... 6
Federalist No. 39 .................................................................................................................................... 6
Type of Constitutional Arguments ....................................................................................................... 6
Youngstown Sheet & Tube Co. v. Sawyer ......................................................................................... 6
Separation of Powers ................................................................................................................................ 7
Judiciary Powers .................................................................................................................................... 7
Brutus No. 11 ...................................................................................................................................... 7
Federalist No. 78 ................................................................................................................................ 8
Judicial Review ................................................................................................................................... 8
Marbury v. Madison ........................................................................................................................... 8
Lincoln and Douglas Speeches........................................................................................................ 9
Ex Parte Merryman ............................................................................................................................ 9
The Correspondence of the Justices .............................................................................................. 9
Standing ................................................................................................................................................... 9
Justiciability Doctrines ....................................................................................................................... 9
Ex Parte Levitt................................................................................................................................... 10
Massachusetts v. Mellon; Frothingham ........................................................................................ 10
Summers v. Earth Island ................................................................................................................. 10
Nixon v. U.S. ..................................................................................................................................... 11
Political Questions ............................................................................................................................ 11
Legislative Powers ............................................................................................................................... 12
Delegation ......................................................................................................................................... 12
Post Roads Debate .......................................................................................................................... 12
Bicameralism and Presentment ..................................................................................................... 13
Appointment Powers ........................................................................................................................ 15
Removal Power ................................................................................................................................ 16
War Powers ....................................................................................................................................... 18
Impeachment .......................................................................................................................................... 19
Federalism ................................................................................................................................................. 20
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Federalist No. 10 .................................................................................................................................. 21
McCulloch v. Maryland (1819)............................................................................................................ 21
The Commerce Clause ....................................................................................................................... 22
Gibbons v. Ogden ............................................................................................................................ 22
Subsequent Applications of the Commerce Clause ................................................................... 22
Wickard v. Filburn (1942) ................................................................................................................ 23
Heart of Atlanta Motel v. United States (1964) ............................................................................ 23
U.S. v. Lopez (1995) ........................................................................................................................ 24
Types of Commerce Clause Cases (from Lopez) ....................................................................... 25
Gonzales v. Raich (2005) ............................................................................................................... 25
Printz v. United States ..................................................................................................................... 25
Sovereign Immunity ............................................................................................................................. 26
Chisholm v. Georgia (1793) ............................................................................................................ 26
Hans v. Louisiana ............................................................................................................................. 27
Taxation and Spending ....................................................................................................................... 27
Limits on Taxation ............................................................................................................................ 27
Assumption Controversy ................................................................................................................. 28
United States v. Butler (1936) ........................................................................................................ 28
Helvering v. Davis (1936) ................................................................................................................ 29
South Dakota v. Dole (1987) .......................................................................................................... 29
National Federation of Independent Business v. Sebelius (2012) ........................................... 30
Individual Rights ....................................................................................................................................... 32
Calder v. Bull (1798) ............................................................................................................................ 32
Barron v. Baltimore (1833) .................................................................................................................. 32
Incorporation of the Bill of Rights ....................................................................................................... 32
Slavery ................................................................................................................................................... 33
Dred Scott v. Stanford (1857) ......................................................................................................... 33
13th and 14th Amendments .................................................................................................................. 33
The Civil Rights Cases (1883)........................................................................................................ 33
United States v. Morrison (2000) ................................................................................................... 34
City of Boerne v. Flores (1997) ...................................................................................................... 34
Fitzpatrick v. Bitzer (1976) .............................................................................................................. 35
Segregation and Desegregation ........................................................................................................ 35
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Plessy v. Ferguson (1896) .............................................................................................................. 35
Brown v. Board of Education (1954) ............................................................................................. 36
Bolling v. Sharpe (1954) .................................................................................................................. 36
Brown II (1955) ................................................................................................................................. 37
Loving v. Virginia (1967) ................................................................................................................. 37
Equality and Affirmative Action .......................................................................................................... 37
Washington v. David (1976) ........................................................................................................... 37
Regents of University of California v. Bakke (1978) ................................................................... 38
Grutter v. Bollinger (2003) ............................................................................................................... 38
Rational Basis, Intermediate Scrutiny, and Strict Scrutiny............................................................. 39
Railway Express Agency Inc. v. New York (1949) ...................................................................... 39
Williamson v. Lee ............................................................................................................................. 39
Goesaert v. Clearly (1948) .............................................................................................................. 39
Frontiero v. Richardson (1973) ...................................................................................................... 40
City v. Boren (1976) ......................................................................................................................... 40
City of Cleburne v. Cleburne Living Center (1985) ..................................................................... 41
Other Classifications ........................................................................................................................ 41
Privileges and Immunities ................................................................................................................... 42
Slaughter-House Case (1873)........................................................................................................ 42
Substantial Due Process ..................................................................................................................... 43
Buck v. Bell (1927) ........................................................................................................................... 43
Lochner v. New York (1905) ........................................................................................................... 43
Griswold v. Connecticut (1965) ...................................................................................................... 43
Eisenstadt v. Baird (1972) ............................................................................................................... 44
Roe v. Wade (1972) ......................................................................................................................... 44
Stare Decisis ..................................................................................................................................... 45
Planned Parenthood v. Casey........................................................................................................ 45
Washington v. Glucksberg (1997) ................................................................................................. 47
Bowers v. Hardwick (1986) ............................................................................................................. 47
Lawrence v. Texas (2003) .............................................................................................................. 47
3
The Constitution: Background
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First written document to:
o Create a national government
o Deliberately considered and adopted by the people
o Designed to be binding and supreme law on all who would exercise government
power under it
Broad Themes
o A written document, Supreme Law of the Land
o Republicanism and Popular Sovereignty
 All government proceeds though the people (either directly or indirectly)
o Separation of Powers
 Checks and balances of three independent branches
 Differing roles between branches
o Federalism
 Division of power between national government and government of the
states
o Representative, republic government (federal gov. with limited enumerated
powers, state gov. controlling all else, more equipped to handle local problems)
o Individual Rights
 Protection of life, liberty, property, reflected in later amendments (direct
rep. of senate, income taxation) which expanded national gov. to protect
essential rights
o Imperfect Document
History:
o Articles of Confederation preceded Constitution, but due to inability to raise taxes
and rigorous Amendment procedure (requiring unanimity), document was unable
to form strong and central government, could be held hostage by minority
opinion, thus ultimately a weak document
o Did not regulate commerce between states
o Unless clearly given to Congress, state maintains that power
o Court for interstate disputes and piracy matters, but nothing else
Outline of The Constitution
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Article I: Legislative
1. Senate and House granted limited powers
2. House of Rep. chosen by people, amount of representation determined by size of
state
3. Senate chosen by legislature of each state (changed by 17th Amendment) , equal
representation per state
4. Regulate time, places, manner of holding elections
5. Congressional procedure (i.e. tabulating votes)
6. Compensation for Representatives
7. Procedure for enacting laws
8. Necessary and Proper Clause, power to make laws regulating any branch
a. Powers:
i. Lay and collect taxes
ii. Regulation of commerce (between states, nations, Indian tribes)
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iii. Constitute tribunals (any subject-matter below SCOTUS)
iv. Declare war
v. Raise and support armies, maintain navies, provide and call for
militia
9. Limits of legislature
i. Limit slave import before 1808
ii. Suspend habeas corpus (except in cases of invasion or rebellion)
iii. Pass laws against specific individuals (bill of attainder) or making
something retroactively illegal (ex post facto)
iv. Preference to one state court over another
v. Grant title of nobility
10. Limit States Rights
i. Entering into treaties
ii. Pass laws against specific individuals (bill of attainder) or making
something retroactively illegal (ex post facto)
iii. Coin money
iv. Grant titles of nobility
Article II: Executive
1. Manner of elections, eligibility, compensation, oath
2. Commander in chief of Army and Navy, pardon power, treaty power (with 2/3
approval of Senate), appointment power
3. Presidential duties (i.e. ensure faithful execution of the law)
4. Removal by impeachment
Article III: Judicial Power
1. Only SCOUTS specified in the Constitution
i. Inferior courts are discretionary
ii. SC judges hold offices for life during “good behavior” and
compensation should not be diminished
a. Insulates judges from political pressure
2. Jurisdiction of Courts and Jury Trials
i. Cases arising under Constitution
ii. Cases affecting ambassadors, public officials
iii. Maritime law
iv. Cases in which U.S. is a party
v. Cases between two or more states (original jurisdiction)
vi. Cases between citizens of two or more states
vii. Cases between foreign state/citizens and U.S. states/citizens
Article IV: Interstate Relationships
1. Full faith and credit (recognizing the legal proceedings
of other states), prohibit discrimination against
members of certain states
2. Admit new states
3. Guarantee “Republican form of Government)
Article V: Amendment
o Method One: 2/3 approval of both houses, ratification of ¾ legislatures of states
or conventions of states
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Method Two: Constitutional convention of 2/3 of states and ratification as
described above (never used)
o Limits:
 No deprivation of equal suffrage in Senate without consent
 No revision of Article I, Section 9 (slave trade protection)
Article VI:
o Validity of debt
o Supremacy of federal law
o Oath for anyone exercising power under Constitution
Article VIII: Ratification
o 9/13 states, eliminates unanimity in favor of super majority
Federalist No. 40
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Articles of Confederation alone not enough to achieve national and adequate
government
Articles themselves formed by convention not explicitly authorized to do so
Constitution ought to be judged on merits, not technicality of whether convention was
proper
Federalist No. 39
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Neither federal (citizen of the states) or national (citizens of the country) document (both)
More than a majority of individual votes need to ratify Constitution makes it federal,
rendering the agreement of less than whole number of states to ratify makes it national
Type of Constitutional Arguments
1. Textualist
a. Words themselves as it was meant to be read when enacted
2. Historical
a. Emphasis not on words, but historical intentions in context
3. Structuralist
a. Arguments draw inferences from relationship of provisions to each other
4. Precedent and Practice
a. Previous interpretations and the given rationale
5. Policy
a. Interpretation producing best results for what is best for the nation
Two Views of the Constitution
1.
Meaning does not change (David Josiah Brewer)
a. Framers were deliberate in choosing general language which could apply to
different circumstances, but the meaning of the document itself does not change
2. Meaning does change (Oliver Wendell Holmes)
a. Constitution is like an organism; the meaning evolves as the nation evolves
Youngstown Sheet & Tube Co. v. Sawyer (1952)
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Facts: President Truman seized control of the country’s steel mills after workers
threatened to strike, fearing strike would hurt war effort (during Korean war); Congress
passes bill opposing this measure
Holding:
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Black (textual): No clear constitutional language granting this power to executive,
president is engaging in legislative activity through his actions
o Frankfurter (precedent and practice): In the past government has seized for
defined emergency, only during times of war when granted by congress, stresses
how you cannot use text alone, you must use the “gloss” of history
o Douglas:
 Structure: 5th Amendment requires government pay for any condemned
property, executive cannot raise revenues to pay, this illegal because only
legislature has the ability to pay (president taking their role)
 Policy: Want to prevent future executives from abusing this power
Jackson: Three Zones (presidential power depends on the relationship with congress)
1. President acts pursuant to express or implied authorization from Congress
a. “When the President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum, for it
includes all that he possesses in his own rights plus all that Congress
can delegate”
2. President acts in absence of either congressional grant of denial of authority
(i.e. Congress says nothing, "zone of twilight")
a. “He can rely upon his own independent powers, but there is a zone
which he and Congress may have concurrent authority or which its
distribution is uncertain”
3. President takes measures incompatible with express or implied will of
Congress
a. Executive can only rely on own Constitutional powers in this situation,
which do not allow seizure
b. “His power is at its lowest ebb, for he can only rely upon his own
constitutional powers minus any powers of congress over the matter”
o Historical: Constitution made in reaction to monarchy and tyranny, presidential
power not meant to be excessive
Separation of Powers
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Separation of powers was an idea inspired by Montesquieu
There is no single “provision” which shows separation of powers, instead the structure of
the articles shows this
Mixed Powers:
o Veto Power – Legislative and Executive
o Senate Appointments – Legislative and Executive
o Impeachment – Legislative and Judicial
o Appointment of federal judiciary – Legislative, Judicial and Executive
Judiciary Powers
Brutus No. 11
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Concerns with judicial review – courts have latitude to widely interpret laws an extend
power as a result
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No proper check – Congress cannot control judiciary by decreasing salary or tenure, no
further appeal past Supreme Court
Concerns that states will lose power if the judiciary acts in ways that enhance federal
power
Federalist No. 78 (Publius/Hamilton)
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Lifetime tenure is necessary
o Judiciary should be insulated from outside pressures of other branches
o Very few people in society can hold this role and need someone to gain
knowledge over time to truly honor this position
o Promotes judicial review - any valid acts Congress performs must be consistent
with Constitution because congress gets power from Constitution; judiciary's role
is to adjudicate when law and Constitution conflict, Supreme Law (aka
Constitution) rules
Judiciary is the least dangerous of branches as it lacks powers like the “sword”
(executive) or the “purse” (congress)
Judiciary has no way to enforce its judgments without the other branches
Judicial Review
Marbury v. Madison (1803)
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Facts:
o Marbury was appointed justice of the peace by lame duck president, Adams.
When Jefferson took office, instructed his Secretary of State, Madison, to not
serve Marbury with his commission
o Commission never gets delivered to Marbury
Holding (authored by John Marshall):
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3 essential questions:
 Does Marbury have the right to appointment? (1)
 If right has been violated, is he entitled to a remedy? (2)
 If he is afforded a remedy, is it a writ of mandamus? (also, can the court
provide the mandamus?) (3.1 & 3.2)
 (1) Marbury has right to commission - Once executive nominates judge, Senate
gives advice and consent, and executive signs commission, Marbury is a
justice, receiving physical commission just formal exercise
 (2) Law affords remedy – individual injured has right to resort to law for remedy
 (3.1) Remedy is a writ of mandamus - SC has power to issue writs of
mandamus to any persons holding office under the authority of the U.S. (not
under Constitution but Judiciary Act of 1789)
 (3.2) Mandamus cannot be issued by Supreme Court - because law allowing
issue of writ is incompatible with constitution (Article III limits cases where SC
has jurisdiction and law grants new form of appellate jurisdiction) and would
expand judicial power, rule against Marbury
 Seeming “conspiracy theory” about Marshall’s “grand statesman theory” (set up
the opinion to extend power)
Two Views of Judicial Review
1. Judicial Supremacy Rule - Those who apply rules must interpret that rule - it is
necessary for the judicial branch to interpret law to fulfill role in judicial branch
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2. Departmental Rule - Each of the branches has the power to interpret Constitution
(Congress in passing law, Executive in executing law)
Lincoln and Douglas Speeches
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In reference to the Dredd Scott decision which declared no black person, slave or free,
could ever be considered a citizen, the two were campaigning each other for a Senate
seat
Lincoln - Departmentalism View - Court's decision only bind the parties to the case, other
branches can follow own independent Constitutional interpretations
Douglas - Judicial Supremacy View - judicial decisions should be respected by other
branches
Ex Parte Merryman (1861)
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Facts:
o Lincoln suspended Habeas Corpus during Civil War
o Merryman was charged with sabotaging bridges and railroads; Merryman taken
into custody without due process because HC was suspended
Holding:
o SC declared Lincoln's suspension of the writ of habeas corpus was
unconstitutional and that the detention of a suspected rebel was illegal, only
Congress has power to suspend HC
Reasoning:
o Violation of due process (charged without hearing), search and seizure (seized in
the middle of the night without warrant), no speedy trial in the court of justice, all
unconstitutional
Significance:
o As Hamilton articulated in Federalist 78, the judiciary was essentially powerless
when the executive did not comply
The Correspondence of the Justices
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Secretary of State Thomas Jefferson wrote to Chief Justice John Jay asking legal
questions regarding America's relationship with France (during French-British war) wanted interpretation of treaty obligations
Jay refused to respond, claiming judicial power was constitutionally limited to deciding
"cases and controversies" between actual parties in litigation
Established practical precedent of how judicial power is to be constructed
Standing
Justiciability Doctrines
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Standing (Bouncer at the door)
Ripeness – must bring claim when injury has manifested or sufficiently imminent
Mootness – injury cannot be too late and law can no longer have effect; if not, matter
has been deprived of practical significance
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Ex Parte Levitt (1937)
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Facts:
o Citizen filed petition for order requiring Justice Hugo Black to show why he
should be permitted to serve as justice of the SC (bringing up issue of the
Emoluments clause which was not addressed)
o Levitt claimed he had a “general interest” in making sure that the law is being
followed
Holding:
o In response, standing developed a three-part test in which plaintiffs must show or
allege
1. They have or will suffer a concrete injury
2. Injury is fairly traceable to defendant
3. Injury is redressable by favorable ruling
Massachusetts v. Mellon; Frothingham (1923)
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Facts:
o Two cases challenge the unconstitutionality of the Maternity Acts which provides
appropriations through taxes to reduce infant protect health of mothers and
infants; creates bureaus to administer goals
 Two cases (1) state (2) individual
o Claiming injury through taxation
Holding:
o The enactment of a federal law that applies tax funds to programs in which state
participation is optional does not give rise to a justiciable controversy between
the United States government and a state or an individual taxpayer
Reasoning
o State (failure to show harm)
 Taxation is burden that falls on citizens, not states
 State participation merely optional
o Individual (failure to show harm)
 Effect on taxation is speculative and minimal (dispersed across millions of
citizens); injury must be particularized (even though injury was actual, it
was not particular)
Summers v. Earth Island (2009)
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Facts:
o Environmentalists sue US Forest Services for burning portion of timber without
filing proper notice, comment, and appeals process
Holding (Scalia):
o Environmentalists failed to show particularized threat of injury (claim was not
“ripe” enough)
o Low chance that plaintiffs (member of an environmental group) would be unable
to enjoy the park due to harm caused by regulations to a park they may visit (too
speculative)
o Gives standing test:
 Plaintiff must have or will suffer concrete injury
 Injury is fairly traceable to defendant
 Likely that a favorable decision will redress or prevent the injury
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(procedural injuries do not count)
Dissent:
o Member will visit and be harm in all statistical likelihood
o Forest Service admits intention to conduct thousands of future timber sales in
near future, constituting realistic threat
Nixon v. U.S. (1993) (Judge Nixon, not President)
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Facts:
o House ruled to impeach, Nixon, former district judge who had made false
statements to protect 3rd parties. Senate voted to impeach and collected
evidence through committee hearing, transcript was presented to full senate.
o Nixon argues impeachment was not proper because he was not tried by the
whole senate.
o Focuses on the word “try” to mean whole jury trial
Holding (Rehnquist):
o Claim is not justiciable because it is a political question, cannot be resolved by
courts
Reasoning:
o Senate must “try” all proceedings does not mean before the judiciary, word lacks
sufficient precision; very other specific requirements follow (members must be
under oath, two-thirds votes), framers would have specified
o “Sole” Power of impeachment limits role to Senate, to try by any means deemed
appropriate (such as through special committee)
o Framers anticipated two trials - impeachment (by legislature) and criminal (by
judiciary); dividing between branches to ensure independent proceedings
o Impeachment designed to be only check on judicial branch by legislature;
removing this check would be counterintuitive to balance of powers
Doctrine Standard:
o “A controversy is nonjusticiable (political question) where there is a “textually
demonstrable constitutional commitment to a political department; or a lack of
judicially discoverable and manageable standards for resolving it”
Concurrence (White):
o The court should decide the case on the merits, should not just determine if there
is a political question
o Senate acted ok, but court should determine if they did or not
Political Questions
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Beyond the court to adjudicate
Elements:
1. If Constitution itself confines authority to a different branch
2. If there is a lack of judicially discoverable and manageable standard
a. Do courts know what rule means and can they apply the rule?
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Legislative Powers
Delegation
Post Roads Debate
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Issue – delegating who should establish post office route
o Stems from Article 1. Section 8. Clause 7. – “Congress shall have power to
establish post offices and roads”
In Favor of Executive
o Expertise: President more knowledgeable of national needs
o Impartiality: Congress has inherent bias in favor of their district
o Expediency Concentration of power within one person will make decisions
quicker and easier
o Inevitability: Eventually Congress will have to delegate to executive to enforce
the law
Against the Executive
o Intent of Constitution – Congress has express “to establish post office and post
roads”
o Knowledge: no individual could possess equal share of info on U.S. geography
than House of Representatives
o Power and Accountability
 Too similar to monarchy, power could be abused
Mix
o Give the power to the executive, but have the ability to take it back later
Mistretta v. United States (1989)
- Facts:
o Sentencing Reform Act of 1984 consisted of seven voting members appointed by
President with advice and consent from Senate to create uniform sentencing
guidelines
- Holding (Blackmun):
o Congress can delegate some power because Separation of Powers and nondelegation doctrine do not prevent Congress from obtaining assistance of its
coordinate branches as long as extent and character of assistance is fixed
according to common sense and inherent necessities of government coordination
o Meet the non-delegation test, the intelligible standard, in that Congress gave
clear and concrete instructions in delegating duties
- Reasoning:
o In modern complex society Congress cannot do job absent ability to delegate
power
o Developing proportional penalties for hundreds of different crimes is the sort of
intricate, labor-intensive work that calls for delegation
o In the case at hand, there were 11 factors for sentencing guidelines with specific
goals articulated (pointing towards intelligible principle)
- Dissent (Scalia):
o Guidelines have the force and effect of laws and only Congress has the power to
create law
 Decisions were made with value judgements and policy assessments; Ex:
influenced by the fact probation was inappropriately used against a high
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percentage of offenders guilty of certain economic crimes), a role
reserved to legislative branch ("junior varsity congress")
Exercise of pure legislative power by the executive branch
United States v. Lovett (1946)
- Facts:
o Urgent Deficiency Appropriation Act (Section 304) provided that after certain date
no salary out of appropriated funds would be paid to the plaintiffs, government
workers, unless president, with advice and consent of Senate, reappointed them
o Committee formed to identify "subversive" employees (anyone belonging to a
political group with intentions to overthrow current constitutional system) who
were occupying influential government positions
o Group of suspected communists continued to fulfill positions without being
officially reappointed, sued for compensation
- Holding (Black):
o Bill functions as a bill of attainder and is thus unconstitutional
- Reasoning:
o Meets definition of bill of attainder - a legislative act which inflicts punishment
(loss of job) without a judicial trial, targeted at specific individuals or easily
ascertainable members of a group (suspected communists)
- Concurrence (Frankfurter):
o Should use constitutional avoidance doctrine to read this as something else as a
bill of attainder
- Dissent:
o Law is not bill of attainder because it does not contain a finding of guilt nor
punishment in the way typically contemplated by bill of attainder (ex: death)
Bicameralism and Presentment
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Bicameralism – separation of the two houses of Congress, need both houses together to
act
Presentment – all bills must be approved by the President
o President must approve or veto any bill presented
o Presidential veto may be overridden, but only by a two-thirds majority of both
houses (supermajority)
 Legislative veto (by one house only) is unconstitutional
Immigration and Naturalization Service v. Chada (1983) (He likes this Case)
- Facts:
o Because of strange circumstances an Indian British subject living in Kenya who
is in the US has no country to go back to if he is deported
o Congress passed Immigration and Nationality Act authorizing one house of
Congress to invalidate an executive determination that allowed a deportable
person to remain in the United States
o Attorney General agreed to suspend Chada’s deportation, however House
passed a resolution vetoing the suspension, immigration judge forced to order
deportation
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Holding (Burger):
o Limit on delegation, Congress cannot delegate power to itself, veto does not
pass the bicameralism and presentment test
Reasoning:
o Emphasized the text and the history of the constitution
o Constitution includes specific enumerated instances granting one house of
Congress unilateral power to act (i.e. power of House to initiate impeachment
proceedings), this is not an enumerated power
o Allowing House to make determinations for immigration deportation matters
would create an unchecked power for Congress
o Congress is essentially using the executive power
o Emphasized that convenience does not matter when working with the framework
of the constitution
Dissent:
o Judiciary cannot prohibit legislative vetoes because they are necessary tools in
the passage of legislation in a modern government (policy, functional, precedent
and practice argument) (White)
o Legislative veto is a constitutionally acceptable way for Congress to override a
decision made by the executive branch (important check on executive) (White)
o Congress would not pass this legislation without veto power; thus whole bill
should be rendered unconstitutional (Rehnquist)
Severability
- Provision can be severed and law in whole can stay intact according to text of bill
Clinton v. New York (1998)
- Facts:
o Congress passed the Line Item Veto Act to permit President to strike down single
items of Congressional spending in appropriations bills; President struck down
two provisions in congressional acts relating to Medicaid funding and capital
gains tax elimination for a farmer’s cooperative
- Holding (Stevens):
o Congress may grant legislative powers to the executive, but all executive power
must be derived from Articles I and II, including the limitations
o This act improperly permits the President to engage in legislative activity without
receiving the approval of both houses, and thus is unconstitutional
- Reasoning:
o President was effectively vetoing individual lines in a bill rather than the bill as a
whole, thus changing the text of a bill without securing a majority by both houses,
oversteps balance of powers
o The framers did not intend for the President to ever deviate from procedures
when performing lawmaking functions
o This is different than past bills which talked about “spending up to” as the text of
the bill is being changed
- Concurrence (Kennedy)
o Separation of powers is important to protect liberty
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Dissent:
o Constitutionally proper for the President to have some, but not all, authority over
spending provisions in a massive appropriates bill because scope of info
contained in these bills has greatly expanded since the time the Framers granted
executive powers
o Purely executive form of power of authorizing or declining appropriations
spending which President has been granted in the past (no functional difference
between delegation or cancelation) (Scalia)
 Within scope of President’s power to “faithfully execute the law”
Appointment Powers
Federalist No. 76 (Hamilton)
- Hamilton describes three potential ways to appoint someone
o Single man decides
o Congress decides
o Single man decides with congress as an added check
- Appointment power should be vested in an individual rather than body of men
o Strong obligations to choose appropriate candidate
o More impartial than body of men
o More efficient process
o Cannot be distracted by diversity of views
- Senate approval acts as check to prevent President from playing favorites or nominating
unfit persons (would act as a “silent check”)
Buckley v. Valeo (1976)
- Facts:
o Federal Election Committee created to administer public funding of Presidential
campaigns
o Committee consisted of two members appointed by President of Senate, two
members appointed by the Speaker of the House, two members appointed by
the President of the Senate, two members appointed by congress
 Gov. claims this appointment is appropriate under Necessary and Proper
Clause
o Not all who are being appointed by the commission are by the president (not
following Article II)
- Holding:
o Congress cannot appoint commission members, violates Separation of Powers
as appointment powers clearly left to President under Article II
o Cannot use broad sweeping powers of Necessary and Proper Clause to attempt
to override specific constitutional text
- Reasoning:
o FEC violates the Appointments Clause to the extent that it has primary
responsibility for conducting civil litigation, rulemaking authority, and power to
determine eligibility for funds and federal elective office and thus Senate cannot
appoint members to fulfill those roles
 Senate may only nominate those to agencies that exercise powers of
investigative and informative nature
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National Labor Relations Board v. Noel Canning (2004)
- Facts:
o Canning lost a case before the National Labor Relations Board, challenged
verdict because three members were recess appointments
o Debate on “recess of the senate”
- Holding:
o The President lacked power to make intra-session recess appointments because
the recess was too short, only three days (limit: 10 days); however, president
does have power to make inter-session and intra-sessions nominations for all
vacancies that arise both before and during recess
- Reasoning:
o Using textual interpretation, majority inferred recess broadly (refers to both intra
and inter session recess i.e. formal and informal breaks), and inferred vacancies
broadly
o Purpose of executive is to ensure vacancies are filled so the government is
running
o Early history does not tell much, but later history points to frequent intra-session
appointments
- Dissent:
o Recess appointments should be fall back provision because it circumvents
Senate approval (functional concern)
o Ultimate goal of separation of powers is to protect individual liberties of the
people (especially from unchecked executive, not keep government running)
o Historical practice does not count if they were just doing this wrong for a long
time
Removal Power
Decision of 1789
- Dealt with 4 competing theories of how removal was to function
o Presidential power alone (Madisonian view)
o Advice and consent of the senate and the president
o Congressional only (necessary and proper, congress creates and has power to
remove)
o Only test to use is impeachment
- Determined the decision is left to the president
Myers v. United States (1926)
- Facts:
o Myers was appointed by President with advice and consent of Senate to be
postmaster, President later demanded his resignation prior to the expiration of
his term
o Statute required congressional approval for president to exercise removal
- Holding (Taft):
o President has power to remove appointees and those in the executive without
advice and consent of Senate (text, history, precedent)
- Reasoning:
16
o
-
After appointment, President, not the Senate, is best equipped to determine
continued fitness of appointees
o Removal power is within executive powers of faithful execution of the laws
Dissent:
o No express removal power in faithful execution of the law
o President derives removal powers from Congress; otherwise, would deprive
Congress of right to fix tenures of officers as vested in Constitution, contrary to
Separation of Powers
o Congress creates offices and should decide staffing decisions
Humphrey’s Executor v. United States (1935)
- Facts:
o Plaintiff sued U.S. to recover money due for salary at Federal Trade
Commissioner’s Office when President Roosevelt removed him prior to expiration
of term
- Holding:
o President cannot remove appointees without advice and consent of Congress for
positions under Legislative branch; Myers is limited to executive branch officers
- Reasoning:
o Federal Trade Commission is a Congressional body which carries out legislative
policies, free from executive control
o Presidential power of removal for quasi-judicial or quasi-legislative agencies
threatens their independence which are purposefully disconnected from
executive branch
Morrison v. Olson (1998)
- Facts:
o Congress passed Ethics in Government Act permitting Special Division (under
the judiciary) to appoint independent counsel to investigate and prosecute highranking officials for violations of federal criminal law at request of Attorney
General
o Defendant refused to produce documentation for investigator upon request
claiming law violated Separation of Powers
- Holding (Rehnquist):
o If limitation on removal power unduly impedes Presidential or executive authority,
it is unconstitutional (gets rid of the Myers/Executor standard)
o This law was not unconstitutional because it did not interfere with Presidential
powers
- Reasoning:
o Powers limited to investigation and prosecution (do not impact policy)
o Investigators have limited jurisdiction and tenure, subject to removal by executive
officer (executive officer is member of the executive)
o Congress not encroaching on executive powers
o President still has control through the Attorney General
 AG can still launch the investigation and have good cause removal power
o Framework:
 “Real question is whether the removal restrictions are of such a nature
that they impede the President’s ability to perform his constitutional duty”
17
-
Dissent (Scalia):
o The Act divests the president of substantial control over the prosecutorial
functions of the independent counsel and upsets the balance of power among
the branches of government
 All executive powers vested in the president, cannot be delegated - The
Unitary Executive (textual)
 Executive branch officials are going to fear the other branches going after
them
o Problem of self-interest cannot be eradicated, checks are already built into
system to limit this issue such as (1) impeachment (2) political process
(answering to the electorate) (3) judiciary chooses which cases to hear
o The case “comes as a wolf”
o Separation of powers is more important than concerns of efficiency
War Powers
-
-
-
Constitution vests both Congress and President with share of war powers
o Congress
 Spending powers (to fund military)
 Necessary and proper clause
o President
 Vesting clause
 Commander in Chief
However, President's broad powers have formed claimed authority of president to send
nation's armed forces into combat even when Congress has not declared or authorized
war
In practice
o Formal declarations of war are rare (WWII), while some major military actions are
authorized by congress (9/11), most are not authorized (Korea)
War Powers Bill of 1973
- Congress believed that President has completely surpassed the Gulf of Tonkin
resolution and wants to limit presidential power to act without declaration
- Presidential war powers can be exercised only pursuant to (1) a declaration of war, (2)
specific statutory authorization, or (3) a national emergency created by an attacked upon
the United States
- Within sixty days, President shall terminate use of U.S. Armed Forces unless Congress
has (1) declared war or issued specific authorization, or (2) has legally extended the 60day period, or (3) cannot meet as a result of an armed attack on the U.S.
- If congress does not act, troops must be removed
- Congress can always remove troops if they decide by joint resolution
- President may not use treaties or apportionments by congress as congressional war
authorization
Veto
-
Constitutional objection:
o Takes away Constitutional powers through mere legislation, only way to legally
do so is through amendment procedure
o Impedes on executive as Commander in Chief
18
-
-
o Concurrent resolution would not require presidential approval
Policy objection:
o Would undermine ability to decisively and convincingly in time of war, leading to
dangerous elements of unpredictability
Automatic termination after 60-days is attempt by Congress to increase policy-making
role through a provision which requires it to take no action at all (lacking rigorous debate)
Korematsu v. United States (1944)
- Facts:
o Plaintiff, Japanese-American citizen during World War II was found guilty of
being in a restricted area as dictated by military ordinance; other travel
restrictions made it illegal for the citizen to travel elsewhere; only option was turn
himself into the internment camp
o President is acting in the highest zone of authority here (zone 1)
- Holding (Black):
o Cannot say that war-making branches of government did not have grounds for
believing such persons were a threat to national security which demanded
prompt and adequate measures (including confinement)
- Reasoning:
o Hardships are part of war – Government does not have resources to make
individualized assessments
o Acknowledges that measures that affect racial populations require high scrutiny
- Concurrence (Frankfurter):
o Judicial deference should be applied
- Dissent:
o Imprisonment without assessment of loyalty of acts of due process
o Military discretion to deny constitutional rights may only be deployed if public
danger is immediate, imminent, and impending, and this test is not met
o Should not let military order to gain more power because it disregards the
individual and acts as threat to liberty (Jackson)
o Defendant was found in violation of two contradictory laws; denial of due process
because labeled criminal regardless of action (Roberts)
o Facts are not persuasive, this is simply racism (Murphy)
o Court may not be able to do anything to affect what has happened, but they
should not give blessing and leave a “loaded gun” for other cases (similar to ExParte Merryman) (Jackson)
Impeachment
The Impeachment of Andrew Johnson
- Facts:
o President removed Secretary of War without advice and consent of Senate in
violation of Tenure Office Act
- Failure in House:
o Impeachment would impinge on executive authority of removal and would render
President too weak, thus no cause for impeachment
- Failure in Senate:
19
o
o
Veto should not turn on abuse of Presidential, but rather the nature of the
impeachable act
Impeachment would uphold partisan views, eroding purpose of impeachment
United States v. Nixon (1974)
- Facts:
o Subpoena directed President to produce certain tape recordings and documents
relating to conversations with aides and advisors
o Nixon resists saying the action is beyond the scope of the courts
- Holding:
o Fact that both parties are member of same branch is not barrier to justiciability
 AG delegated power to Special Prosecutor in constitutional manner, AG
failed to amend or revoke powers, case has jurisdiction under judicial
branch
o Neither the doctrine of separation of powers nor need for confidentiality of highlevel communications, without more, can sustain absolute and unqualified
Presidential privilege or immunity from the judicial process
 Confidentiality is important, but privilege must be considered in light of
commitment to the rule of law (thus during criminal trial, privilege is
secondary to justice and fact-finding)
o When executive privilege is a valid defense
 Confidential communications regarding executive decisions
 National security/foreign relations concerns
Law Professor’s Letter on Clinton Impeachment
- President’s action does not constitute “treason or high crimes and misdemeanors, not
including felony or strictly immoral actions (such as this)
- Impeachment is discretionary, but power must not be used for partisan advantage
because it is detrimental to the country to subject President to long, public, and
voyeuristic trial, if unnecessary
- President should only be impeached if official executive powers have been abused (or if
there is another grave crime such as murder)
- Alternative view:
o If president engaged in obstruction of justice, committed multiple acts of lying
under oath, must look at consequences and precedent of that conduct just as
House would look at conduct of CEO of a large corporation in a civil rights case
o Canady: House should be able to launch impeachments if they believe they have
merit, senate can always defeat them if they do not agree
Federalism
-
Division of sovereignty within one single entity
o State sovereignty is preserved but limited
 States continue to exist and function as states with our powers and
authority as a subordinate administrative districts of the national
government
o Must look outside the Constitution; any power not granted to national government
in Constitution, which is not prohibited, is reserved to states (10th Amendment)
20
o
Within Constitution
 Admission of new states (Art. IV, Sec. 3)
 Supremacy of federal law (Art. VI)
 Powers of states in constituting the federal government
 Role in Senate (Art. 1, Sec. 2)
 Role in House (Art. 1, Sec. 3)
 Selection of President (Art. II, Sec. 1)
 Amendment process and conventions (Art. V)
Federalist No. 10
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-
Constitution should aim to reduce “factions of people” (groups, minorities or majorities,
with interests adverse to the interest of other members of society)
A representative republic, unlike a direct democracy, is immune to the passions of
factions
o Filters impulse of the people, dilutes factions (in large republic), cannot spread to
entire national government, gives equal voice to both strong and weak factions
o Bigger republic is seen as better, better odds of good people, federalism still
addresses local concerns
Factions cannot be eliminated completely without extinguishing liberty or ensuring
everyone has the same views (not practical)
McCulloch v. Maryland (1819)
-
-
Facts:
o Congress attempted to open first federally-chartered bank, state attempted to tax
it
Holding (Marshall):
o Congress has constitutional power to charter a bank
 The power of creating corporations is not expressly conferred on
Congress in the Constitution because it appertains to sovereignty and
government powers are both enumerated and limited - however, unlike
declaring war or collecting taxes, the power of creating a corporation is
not a great substantive or independent power which cannot be implied
 Derived from taxation and spending power – need money to carry out
enumerated duties, powers should be read broadly
 Necessary and Proper - Necessary and Proper clause expands, not limits
Congressional power, because found within the enumerated powers (if
they are constitutional)
 Congress may choose any means not prohibited in the
Constitution to carry out its lawful authority
o States do not have right to tax the bank
 Federal bank serves entire nation, thus inappropriate for it to be
controlled by one part of nation through tax
 States would tax all federal things excessively, would not trust
another state with federal taxation powers
 State taxation subordinate to state taxation power
o Test: Legitimate, within constitution, and not prohibited
o Standard:
21

o
1. Clause is placed among the powers of Congress 2. Its terms purport to
enlarge, not diminish the powers vested
 “We think the sound construction must allow the legislature discretion,
with respect to the means by which the powers it confers are to be carried
into execution”
Other notable takeaways:
 States have protection from the federal government, but the federal
government does not have any similar protections
 “The power to tax is the power to destroy”
The Commerce Clause
-
Commerce Clause: “To regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes” (Art. I, Sec. 8)
Necessary and Proper Clause: “The Congress shall have Power ... To make all Laws
which shall be necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Government of the United States,
or in any Department or Officer thereof” (Art. I, Sec. 8)
Gibbons v. Ogden (1824)
-
-
Facts:
o NY gave monopoly to operate steamboats in state waters to two individuals, third
party started competing service
o Gibbons, third party, claimed his vessels were enrolled and licensed to be
employed in carrying on the coasting trade under the commerce clause of the
Constitution, and this act preempted state law
Holding:
o Plain meaning of commerce includes navigation because this describes the
central commercial relations between nations at this time and when the
Constitution was framed
o Congress has power to regulate all activities occurring between state borders
o As long as navigation is connected with commerce in any manner, Congress
may regulate
o Outlines specific limits for the commerce clause:
 Intrastate activities
o If two laws conflict, federal law preempts state law
o Dormant Commerce Clause
 States may not regulate commerce that falls within the scope of
congressional power to regulate interstate commerce
Subsequent Applications of the Commerce Clause
1. Wilson v. Black-Bird Creek Marsh Co. (1829) - State allowed to regulate navigable rivers
in Delaware because no federal congressional act preempted it
2. New York v. Miln (1837) - state law to require any ship captain arriving in New York from
out of state to provide a written report was permissible exercise of state's police powers,
not commerce
3. Cooley v. Port of Philadelphia (1851) - PA required ships arriving and leaving port to use
local captains, not considered commerce, covered under police-power which state can
regulate
22
4. United States v. E.C. Knight (1895) - restrictive reading of commerce, "manufacturing"
not included within the meaning of commerce
5. Champion v. Ames (1903) - Congress has broad power to regulate "channels" of
interstate commerce, even for reasons reminiscent of states' police power (can exclude
things from commerce which it disapproves)
6. Shreveport Rate Cases (1914) – Congress was given the power to regulate intrastate
commerce as the intrastate rates affecting the interstate rates of trains going to Texas
from Louisiana
7. Caminetti v. United States (1917) - broad interpretation (transportation of passengers
[women for "purposes of debauchery"] in interstate commerce, is within regulatory
power, and authority of Congress to keep channels of interstate commerce free from
immoral or injurious uses)
8. Hammer v. Dagenhart (1918) - restrictive view, shipments produced in violation of child
labor laws were not under Congressional regulation, because regulation of interstate
transportation was not necessary to abate harmful results (goods themselves harmless)
9. Bailey v. Drexel (1922) – use of tax power to try to burden factories using child labor is
beyond Congressional regulation power
10. A.L.A Schechter Poultry Corp. v. United States - court struck down regulations fixing
hours and wages of individuals employed because where the effect of intrastate
transaction is merely indirect, such transactions remain within the domain of state power
11. Carter v. Carter Coal Co. - mining, like manufacturing, is not commerce - the effect of the
labor provisions falls upon production and not upon commerce
12. National Labor Relations v. Jones & Laughlin Steel (1937) - expansive interpretation - it
is the effect upon commerce, not the source of injury (allows regulation of production
industries); rejected direct v. indirect approach
a. Note: shift to more liberal view likely due to threat of FDR’s court packing plan
Wickard v. Filburn (1942)
-
-
-
Facts:
o Defendant farmed over the allotted amount of wheat for personal use and
refused to pay penalty from Agriculture Adjustment Act
o Purpose of act was to avoid surpluses and shortages; those states with
surpluses must provide wheat to those with shortages and farmers should not
store personal surplus
Holding:
o Congress may regulate local activity if that activity exerts substantial effect on
interstate commerce (aggregate test)
Reasoning:
o Even if activity is local, it still may be reached by Congress it the activity exerts a
substantial economic effect on interstate commerce, irrespective of whether such
effect is "direct" or "indirect"
o Defendant's own contribution to the demand for wheat may be trivial by itself, but
everyone's contribution, taken together, is far from trivial
Heart of Atlanta Motel v. United States (1964)
-
Facts:
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o
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-
-
Plaintiff owns motel which is readily accessible to interstate highways, solicits
patronage from outside the state through advertising within state and nationally,
refused to rent room to African Americans
Holding:
o Congress may regulate local activity if that activity exerts substantial effect on
interstate commerce
Reasoning:
o Congress has the power to remove obstructions and restraints to interstate
commerce, and the unavailability of African Americans to have adequate
accommodations interferes significantly with interstate travel
o Racial discrimination has disruptive effect on commercial intercourse on the
whole
Companion Case – Katzenbach (BBQ case)
o Restaurant refusing to serve African Americans
o Court reaches the restaurant because the products used traveled in interstate
commerce
U.S. v. Lopez (1995)
-
-
-
-
-
Facts:
o Gun-Free School Zones Act criminalized having a gun in a school zone;
defendant violated the act, sued over constitutionality under the commerce
clause
 Gun does not have to cross state lines or bought in commerce,
possession alone is the violating conduct
Holding (Rehnquist):
o This act is unrelated to economic enterprise, and not part of larger economic
activity
o Key dividing line: economic v. noneconomic activity
o Government theories are too broad, would allow Congress to classify almost any
activity as “commerce” (i.e. gun control related to improved classroom outcomes,
affecting future trade and commerce)
Concurrence (Thomas):
o Commerce clause has swallowed the other enumerated powers, court needs to
be more mindful to reel this back in the future
Dissent (Breyer):
o Congress had a rational basis for finding connection between act and
commerce (rational person could see some connection between legislation
passed and substantial effect on commerce)
 Reports and hearings indicate the prevalence and serious threats of guns
on campus which negatively impact education
 Connection between education and economic well-being is welldocumented
 Constitution does not distinguish between commercial and noncommercial issues which have similar effects on the local scale
o Past cases would indicate that the DOJ did enough to fulfill the standard set
Note: US v. Morrison represents the high-water mark for a stringent commerce clause
standard
24
Types of Commerce Clause Cases (from Lopez)
1. Regulation over the use of channels of interstate commerce (highways, rivers, etc.,
where commerce occurs)
2. Regulation of instrumentalities of interstate commerce (trucks, planes, internet, facilitate
commerce)
3. Regulation of activities having substantial relation to interstate commerce
Gonzales v. Raich (2005)
-
-
-
-
-
-
Facts:
o Californian woman with illness was legally using marijuana for medicinal
purposes in her home under state law, yet federal agents searched her home
and destroyed the marijuana
o Under Federal Law, The Controlled Substances Act, cultivation and possession
of classified illegal drugs made strictly illegal
Holding (Stevens):
o Congress had a rational basis for believing failure to regulate intrastate
manufacture and possession of marijuana would leave a gaping hole in
enforcement of CSA, and thus regulation under the Commerce clause was
proper
o Marijuana, like wheat, bought and sold in commerce and thus effects the
aggregate (economic argument)
Reasoning:
o Altogether, growth of marijuana on the individual level effects commerce on the
whole by frustrating Congress’s attempt to eliminate it from the market
o If Congress cannot regulate personal cultivation and possession, would be
unable to regulate recreational uses of any homegrown drug
Concurring (Scalia):
o Congressional power to regulate activities substantially affecting commerce
derives from Commerce and Necessary and Proper clause
 Congress may regulate intrastate activities that do not substantially affect
intrastate commerce under the far-reaching NP clause to eliminate
market for marijuana
o Medical Marijuana is too fungible and it is very easy for it to enter the federal
stream of commerce
Dissent (O’Connor):
o Government has failed to show possession and use of homegrown marijuana
has a substantial effect on interstate commerce or drug trafficking
o Oversteps state police powers, which are not covered under Commerce
o Lopez is not being treated as more than a drafting guide
o States should be able to act as “laboratories” (federalism) and test out policies
that the entire country does not have to be part of
Dissent (Thomas):
o Government should allow states to have some latitude (throw em’ a freakin bone)
Printz v. United States (1997)
-
Facts:
o Gun Control Act required AG to establish national background check system for
the purchase of all firearms
25

-
-
-
If chief law enforcement officer notifies a gun dealer that prospective
purchaser is ineligible to buy a gun, must do so a written statement for
reasons of determination
o While the database was being established, local law officials were used
Holding (Scalia):
o Necessary and Proper and Commerce Clause does not authorize Congress to
regulate state governments regulation of interstate commerce, but commerce
itself
o Federal government may not compel state to implement federal regulatory
programs
Reasoning:
o History: Although early statutes allowed state officers to carry out federal duties,
no explicit Constitutional authorization that Congress could impose duties without
consent of the states
o Structure: Dual sovereignty inherent in structure (ex: reference to citizens of the
states, enumerated powers for state and federal government)
o Separation of Powers: President has duty to faithfully execute the law, not
CLEOs
 Represents a policy decision, which state should not carry out
o Recognition of this power will undermine dual sovereignty as federal government
will be able to force the states to carry out federal plans while the feds don’t
spend money
Dissent (Stevens):
o Text: Falls under the Necessary and Proper/Commerce Clause, 10th
Amendment does not limit federal power
o History: States have carried out federal duties (state agents as federal tax
collectors)
o Structure: Imposition of modest burden on state officials reflect judgement that
people in each state will benefit, rule would lead to National Government
aggrandizing itself, ignoring state power
Sovereign Immunity
-
Intent is to enable States to recover claims of individuals residing in other States through
the federal system
Limitations:
1. Waiver – state may voluntarily subject themselves to suit
2. Enforcement – Congress may strip states of sovereign immunity to enforce
Amendment requirements (like Due Process)
3. Injunctive Action Against State Officers - state officials may be sued to conduct taken
on behalf of the states
Chisholm v. Georgia (1793)
-
-
Facts:
o Citizen of South Carolina brought suit against the State of Georgia seeking to
recover payment for goods stolen in Georgia during revolutionary war
Holding:
o State can be liable for a suit against a private individual
Reasoning:
26
o
-
-
Article III states power of judiciary extends to controversies between states and
citizens of other states; all citizens are equal, and states are just representatives
of citizens
o Just as principles of fairness require private citizens to answer for debts, state
governments must answer to lawsuits
o States ratified Constitution, and they are bound to it
Dissent (Iredell):
o British common law has not been altered by statute and should apply here British Crown immune to suits, and thus states should be immune from suits by
private citizens
Result:
o 11th Amendment enacted to correct holding of this case
 "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"
Hans v. Louisiana (1890)
-
-
-
Facts:
o Citizen of Louisiana sued state to recover interest from bonds issued under state
law
o Essentially Chisholm, but citizen is suing their own state
Holding:
o The 11th Amendment prohibits states from being sued by own citizens or citizens
of another state or foreign country, even if not written expressly in the
amendment
Reasoning:
o Congress did not intend to create a new cause of action at the time it was
rejecting the holding of Chisholm; Congress would have included this provision
had they considered it, only were responding to the specific issues raised in
Chisolm case; court calls for broad interpretation
o Founders believe that it is not within the power of any citizen to call a state into
court, which extends to individual suing home state
Taxation and Spending
-
-
“The 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; but all Duties, Imposts and Excises shall be uniform throughout the United
States” (Art. 1., Sec. 8)
No tax on items exported from states (Art. 1., Sec. 9)
Direct taxes must be proportional to census
Federal income tax (16th Amendment) – Pollock Farmers Loan (income tax originally
was ruled to be apportioned before amendment was passed)
Broad power to tax for “the general welfare”
Limits on Taxation
1. License Tax Cases (1866) – Congress can impose license requirements as a tax (i.e.
license to sell lotto cares)
27
2.
3.
4.
5.
6.
a. Congress may consider nature of activity in setting tax and regulate things they
could not regulate under Commerce Clause alone
b. Congress cannot use the tax power to authorize things the state has a law against
Veazie Bank v. Fenno (1869) - federal tax on state bank notes excessive; however
judiciary is not going to take the role of drawing the line
a. In dicta court says limits of taxation may arise from constitution itself
McCray v. United States (1904) - tax on margarine to benefit butter producers
Constitutional; Court did not have power to invalidate tax simply because of policy
motivations, would violate separation of powers
a. Potential abuse of taxation power can be solved through the process of voting
Note: Cases 1-3 all recognize “hand’s off” view
Bailey v. Drexel Furniture (1922) - imposition of tax on profits of businesses using child
labor unconstitutional because taxes cannot act as a penalty (distinct from merely trying
to obtain revenue because act as a punishment of certain behavior)
a. Penalty acts as indirect regulation, unconstitutional under taxation clause
b. Reasonable to tax activities congress does not approve of, but unconstitutional
to use tax to create a regulatory regime
Steward Machine Company v. Davis (1937) - unemployment compensation tax provisions
designed to induce states to adopt their own unemployment compensation law
Constitutional, despite clear social policy goals because states were not coerced
a. Represents a shift to expand congressional powers
United States v. Kahriger (1953) - federal tax on bookies Constitutional - although the tax
has a regulatory effect of punishment, it also produces revenue; tax is not invalid because
it discourages activities taxed
a. Taxes that generate revenue are permitted, does not matter how small the amount
Assumption Controversy
-
-
Hamilton - wanted to take over the war debts from the Revolutionary War and paid back
through taxation (plan was eventually enacted in exchange for giving Virginia the capital)
– expansive reading of “general welfare”
o Would free states of debts, establish a national system of credit and public
finance, and would circulate federal notes as currency
o If not broad, many demands of the nation would be left out of the provision which
is not what the founders intended
o General, not local question meant to apply throughout the Union
Madison – states should pay debts themselves, would consolidate too much power in
the national government – narrow reading of “general welfare”
o Would result in Congressional law superseding the Constitution and State laws
o Would strip power from judiciary because they cannot decide on questions of
policy
o Offers alternative where congress may spend money only in support of other
enumerated powers
United States v. Butler (1936)
-
Facts:
o New Deal measure allowed Secretary of Agriculture to make contract with
farmers to reduce production of agricultural production and prices during the
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-
-
Great Depression, through exchange of agricultural commodities for direct
payment financed by tax on that commodity
Holding:
o Bill is unconstitutional because it is invading state’s rights to regulate and control
their own agricultural production
o Since Congress has no power to regulate and control agricultural production,
Congress may not indirectly accomplish that end through its taxing and spending
powers
Dissent:
o Only limit on Constitutional spending power is that public funds should be spent
for a defined purpose, the promotion of general welfare
Helvering v. Davis (1936)
-
Spending for payment of Old Age Benefits under Social Security Act constitutional
because national in nature and therefore fits within general welfare
Congress can condition states through spending of federal funds
South Dakota v. Dole (1987)
-
-
-
-
Facts:
o Under South Dakota State law, persons under 19 years old can purchase alcohol
o A 1984 federal law directed the Secretary of Transportation to withhold a
percentage of federal highway funds from states in which the drinking age is
under 21
o SD sues, contends that 21st Amendment grants states virtually complete control
over importation and sale of liquor
Holding (Rehnquist):
o Act is constitutional even if Congress may not regulate drinking ages directly
because it is within the general welfare
o Requirements (4-part test):
1. The exercise of the spending power must be for the “general welfare"
2. The conditions on the receipt of funds must be unambiguous (no hidden
conditions)
3. Conditions must be related to a federal interest in a particular national project
or program
4. Conditions must not violate any other constitutional provision
5. Additional factor: conditions cannot be coercive (must offer states a genuine
choice, however the exact line is unclear)
Reasoning:
o It is within the general welfare to heighten the drinking age to reduce drunk
driving (unambiguously related to safe interstate travel, and thus highway
funding)
o Does not represent coercion of states, SD only using 5% of otherwise attainable
highway funding, thus not in violation of the 10th Amendment
o Does not violate 21st Amendment - Only applies if condition would be
independently unconstitutional - power to raise drinking age does not violate the
Constitution
Dissent (O’Connor):
29
o
o
o
o
Establishment of a minimum drinking age is not sufficiently related to interstate
highway construction to justify conditioning funds appropriated for that purpose
 Highway appropriations meant to ensure highway is safe, not that states
make social or economic changes because of tangential relationship to
highway safety
Highway appropriations meant to ensure highway is safe, not that states make
social or economic changes because of tangential relationship to highway safety
Proper test for relatedness is whether the condition relates to the funds
themselves (money must be spent on highway safety here)
21st amendment is what should govern
National Federation of Independent Business v. Sebelius (2012)
-
Facts:
o Challenges to Affordable Care Act
 Individual Mandate – requires individuals to purchase health insurance
providing at least minimum coverage; if individuals do not must pay a
penalty
 Medicaid Expansion - gives funds to the states on the condition they
provide specified health care to all citizens whose income falls below a
certain economic threshold; ACA would expand to include wider range of
people from higher socio-economic classes
 ACA would restrict Medicaid funding for states who do not allow
the expansion
o Holding (Roberts):
 While individual mandate is not covered under the commerce clause or
necessary and proper clause, but it is a permissible tax
 Medicaid expansion represents coercion of federal government on the
states and is thus unconstitutional
 Unconstitutional provisions are severable from the rest of the act
o Tax/Penalty Distinction (Page 639)
 Burden
 Scienter Requirements (lack of)
 Collection agency
o Reasoning:
 Individual Mandates
 Commerce Clause
o Do not regulate an existing commercial activity but
compels individuals to become active in commerce
o Not incidental to any enumerated power, would represent
too much of an expansion in which Congress could bring
things into regulatory scope that might otherwise be
outside the scope
 Necessary and Proper
o Not an incidental power used to carry out an enumerated
power
 Taxation
30
o
o
o
(1) Mandate does not recognize any new federal power
(taxes for inactivity, i.e. "person tax" are constitutional (2)
Congress can use tax to influence conduct (see Lotto
Case) (3) gives individuals lawful choice to either pay or
not pay, therefore permissible
o Bailey case consulted to determine
 Nature of exaction, scienter requirement, and
revenue collection all point to tax
o Permissible to tax inactivity (already been done before –
head tax)
 Medicaid
o Congressional threat to withhold States' existing Medicaid
funding (as opposed to refusing to grant new funds) is
coercive because state lose all funding, not just a small
percentage
 Severability
o Individual mandate is severable
Dissent (Ginsburg)
 Individual Mandate
 Commerce
o Congress had rational basis for concluding that the
uninsured substantially affect interstate commerce consume billions of health-care products and services
each year in interstate commerce either because the
products or themselves have traveled across state lines
o Everyone will consume health care products at some point,
even if not actively doing so
 Medicaid
o Not coercive, because Congress has not threatened to
withhold funds earmarked for any other program nor does
the ACA use Medicaid funding to induce states to take
action Congress itself could not undertake (i.e. Federal
health-care program)
Dissent (Scalia)
 Individual Mandate
 Commerce
o Rational basis test only applies to activities affecting
commerce, not the failure to engage in activities
 Taxing
o Not found in Act's Revenue Provisions (where a tax would
be found), requires a certain action that if not met a penalty
results, some are exempt from tax who are not exempt
from mandate - distinction would not exist if mandate was
not a penalty
o Attempt to regulate commerce beyond taxing power
o Congress called this a penalty and that is what it is,
therefore not valid
31


Medicaid
 Total cut-off from Medicaid is coercive
Severability
 Bill is not severable, whole thing is unconstitutional
Individual Rights
Intro
-
Rights given need structures to enforce them (North Korea has many rights, Australia
has almost none – only difference is the structures which enforce)
Madison’s letter to Jefferson: Bill of rights is already violated in Virginia; constitutional bill
of rights will just act as a “parchment barrier”
Calder v. Bull (1798)
-
-
Facts:
o Connecticut legislature passed a law ordering a new trial in state court about the
validity of a will, court reversed initial ruling, losing part challenged
constitutionality of the law, claimed it was retroactive and violated ex post facto
provision
Holding:
o Ex post facto law only applies to criminal cases
Reasoning:
o Two views:
 Legislature has powers to make the laws but must meet certain end and
objective, not an arbitrary authority aimed at punishing individuals (ex: law
punishing action was legal at time of conduct
 Court should enforce Constitution as written, not abstract first principles
Barron v. Baltimore (1833)
-
-
-
Facts:
o Plaintiff owned a commercial wharf in Baltimore harbor, City of Baltimore made
water near wharf too shallow for most ships, hurt plaintiff’s business
o Plaintiff sued the state, claimed they illegally took property without just
compensation, in violation of the 5th Amendment Takings Clause
Holding (Marshall):
o Bill of Rights does not apply to state government
Reasoning:
o Constitution binds the people, not the government of individual states
o If Bill of Rights were to apply to states, it would say so expressly (ex: 10th Amend:
“No State shall”
Note: 14th amendment overturns this case
Incorporation of the Bill of Rights
-
Supreme Court decides whether each right ought to apply against the state on a caseby-case basis, not all amendments are incorporated (all major rights have been)
32
Slavery
In the constitution:
-
Taxation provision (3/5s)
Provision saying slavery must remain until at least 1808
Return of fugitive slaves outlined
Dred Scott v. Stanford (1857)
-
-
-
Facts:
o Plaintiff, free slave, sued for freedom after traveling to a free state and returning
to a slave state
o Claimed owned voluntarily brought him across state lines into a free state, and
thus he was free
Holding (Tawney):
o African-Americans (free or not) are not citizens and cannot claim the rights and
privileges under the Constitution
o Goes further are says slavery cannot be prohibited by Congress
Reasoning:
o African-Americans ae subordinate and inferior class, evidenced by how framers
historically thought and acted at conception of Constitution
o Slave class incorporated into the Constitution
13th and 14th Amendments
-
-
13th: Prohibits slavery
o Section 1: "Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction"
o Section 2: "Congress shall have power to enforce this article by appropriate
legislation” (gives explicit power to enforce)
14th: Prohibits states to intrude on rights
o Section 1: Defines citizenship, expands to all persons born in the United States
 No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
 This section directly goes after Dred Scott
o Section 2: Abolishes 3/5 compromise, proportional reduction for any state
refusing to give voting rights to African-Americans
o Section 3: Prevented anyone who participated in Civil War for confederates from
serving as elected representatives
o Section 4: No slave-owner can be repaid for loss or emancipation of any slave
o Section 5: Enforcement power through appropriate legislation
The Civil Rights Cases (1883)
-
-
Facts:
o Civil Rights Act of 1875 granted that in all public spaces, people of all races could
use and enjoy the same accommodations
Holding:
33
Law is unconstitutional – until some state law has been passed which adversely
effects the rights of citizens, federal law does not have authority
o Amendments apply to public and government entities, but not private entities like
inns, places of public conveyance or places of amusement
Reasoning:
o This legislation supersedes and displaces State legislation on the same
subjection - Congress cannot adopt direct and primary state law, only corrective;
must be correcting some state misconduct, not pre-regulatory
 Must apply to states in violation, does not appropriately target state
misconduct (thus overbroad)
o 13th Amendment only applies to enforcement of law preventing slavery, not
privileges of life, liberty, and property (due process/equal protection)
Dissent (Harlan):
o 13th Amendment goes beyond mere institution of slavery, extends to deprivation
of civil rights based on race
o These are public instrumentalities representing legal, not social rights, similar to
using a public road
 Presumption these institutions will serve all guests, denial is affirmative
state misconduct
o
-
-
United States v. Morrison (2000)
-
-
-
Facts:
o Violence Against Woman Act provided a federal civil remedy for victims of
gender-motivated violence
Holding:
o Law is not aimed at proscribing discrimination generally or of state/public actors
but regulates conduct of individuals who have committed criminal action; 14th
Amendment can only be enforced against public officials or entities, not private
actors
Reasoning:
o Fails congruence and proportionality test
 Not specifically targeted at states with a record of failure
 Not established that this issue is pervasive throughout all states
City of Boerne v. Flores (1997)
-
-
Facts:
o Challenged Constitutionality of Religious Restoration Act which prohibits
government from substantially burdening a person's exercise of religion unless
(1) it represents a compelling government interest and (2) is the least restrictive
means of furthering that interest
Holding:
o There must be congruence and proportionality between the means Congress
uses and the preventive or remedial ends it hopes to achieve
 RFA is overly broad in scope and reach for the ends of promoting
religious freedoms because it would impose a burden of litigation costs on
states
34
“Stringent test RFRA demands of state laws reflects a lack of
proportionality or congruence between the means adopted and the
legitimate end to be achieved”
 Cannot create new rights or expand scope of rights, can only legislate or prevent
violation of rights already remedied by the courts
Reasoning:
o Law does not legislate some widespread pattern of religious discrimination, just
adverse effect on religious organizations incidental to some zoning laws
o Remedial in that it changes constitutional protections because of its sweeping
coverage over all levels of government
 Blanket requirement protecting religious freedom would make a huge
class of permissible conduct impermissible
o Congress cannot alter or determine the meaning of the Constitution - would
make the Constitution similar to other laws, not supreme, while granting
Congress limitless power

-
Fitzpatrick v. Bitzer (1976)
-
-
Facts:
o Amendments to the Civil Rights Act authorized federal courts to award money
damages for private individuals against a state found to have committed
employment discrimination
o Group of men sue for retirement discrimination under the Connecticut State
Employees Retirement Act, seek monetary damages
Holding:
o Congress may, in determining what is “appropriate legislation” for the purpose of
enforcing the provisions of the Fourteenth Amendment, provide for private suits
against States or state officials which are constitutionally impermissible in other
instances
o Allows state sovereign immunity to be stripped
Segregation and Desegregation
Plessy v. Ferguson (1896)
-
-
Facts:
o Law mandates segregation in rail cars
Holding (Brown):
o Segregation laws are Constitutional as long as they are separate but equal
 A statute which implies merely a legal distinction between races does not
reestablish slavery and thus is not in violation of the 13th Amendment
 Does not violate 14th Amendment because separation does not
necessarily imply inferiority of one race
Reasoning:
o If civil and political rights of both races are equal, one cannot be inferior to the
other civilly or politically
o Constitution cannot make one class inferior or superior, must come from
voluntary consent of individuals
o Law is reasonable because it is consistent with social custom and promotes
comfort, public peace, and good order
35
-
o Civil rights (ex: voting rights) differ from social rights (ex: using a restaurant)
Dissent (Harlan):
o It is a fundamental right to allow people to sit where they desire, government
cannot prevent this action without infringing on personal liberties; Arbitrary
separation is a badge of servitude, violation of 13th Amendment
o Constitution is color-blind, categorically prohibits race-based distinctions and
enforce formal legal equality
o Creates an inferior class - law was meant to prevent black people from going into
white coaches
o Talks about Chinese people never becoming citizens
Early Desegregation Cases
-
-
-
Missouri Ex-Rel Gaines (1939)
o Court rules unconstitutional for Mizzou to pay for a law student to go to an out of
state law school instead of go to theirs
Sweatt v. Painter (1950)
o Court rules unconstitutional for UT to make a new law school for only black
people as it lacks the same prestige and renown as the original
McLaurin v. OSU Regents (1950)
o Court says equal protection is violated when Oklahoma State admitted a black
student, but made him eat alone and sit in class alone
Brown v. Board of Education (1954)
-
-
-
Facts:
o African-American students seek admission to non-segregated public schools
where they were denied, challenge constitutionality of state law
Holding:
o Separate but Equal unconstitutional
 Separate schools are inherently unequal, represents deprivation of equal
protection under 14th Amendment
 Plessy is no longer good law
Reasoning:
o Cannot look just in terms of "equal" things (ex: buildings) but must look at effect
of segregation itself on public education in the modern day
o To separate students based on race alone generates a feeling of inferiority which
effects learning outcomes
 Focus on effects of segregation like psychological self-conception
Bolling v. Sharpe (1954)
-
-
Facts:
o Case challenging validity of segregation in D.C. public schools as violation of
Due Process under 5th Amendment
Holding:
o Racial segregation in public school on the federal level represents denial of due
process of law under the 5th Amendment
o Deprives students of liberty because liberty extends to full range of conduct
which the individual is free to pursue, including which school to attend
36
o
-
Classification based solely upon race must be scrutinized with particular care not limited to education
Reasoning:
o Lack of Due Process alone based on discrimination may be unconstitutional
because segregation based on race alone does not serve a compelling
government interest
o Unthinkable to think that a lesser duty would fall on federal government as
opposed to states
Brown II (1955)
-
-
Remands to lower courts to determine good faith implementation of desegregation,
defendants must prompt reasonable start toward full compliance with ruling with “all
deliberate speed”
Important to note that this did not help much and it was not until other branches took
action that desegregation was meaningfully effected
Loving v. Virginia (1967)
-
-
-
Facts:
o Interracial couple were married in D.C. and returned to Virginia where it as illegal
for interracial couples to marry
Holding:
o Legislation denying marriage based on race alone is unconstitutional
o Mere “equal application” of law to both black and white people does not fulfill
equal protection provision
o Violation of 14th amendment due process
Reasoning:
o Equal Protection clause requires consideration if classifications drawn by any
statute constitute an arbitrary discrimination, with purpose of eliminating such
discrimination
o Miscegenation statutes rest solely upon arbitrary racial distinctions, not a
compelling government interest
o Outlines strict scrutiny for race
 Compelling state interest
 Narrowly tailored law
Palmore v. Sidoti (1984)
-
Unacceptable for child to remove from one parent’s care for concerns of societal
attitudes towards mixed race households
Overrules Plessy’s notion of examining societal attitudes
Equality and Affirmative Action
-
To make equal: either (1) level up disadvantaged group or, (2) level down previous advantaged
group
Washington v. Davis (1976)
-
Facts:
37
o
-
-
-
Plaintiffs challenged constitutional validity of test administered to applicants of
police department, claim it disproportionately excluded a high number of AfricanAmerican applicants
o Tested verbal and reading comprehension, not related to police work
Holding:
o A law that is neutral on its face and serving ends otherwise within the power of
the government to pursue, is not invalid under the Equal Protection Clause
simply because it may affect a greater proportion of one race than another
o Disproportionate impact alone is not equivalent to racial discrimination, must be
coupled with discriminatory intent to prove lack of equal protection
Reasoning:
o No unconstitutionality in Government giving a neutral test based on verbal
abilities, especially in a job that requires successful communications
Dissent (Brennan):
o Test should be proven to be related to job-related skills or performance, shift
burden of proof to employer administering the test
Regents of University of California v. Bakke (1978)
-
-
Facts:
o White student applied to medical school but was denied, claimed he would have
been admitted but-for quota set for historically disadvantaged racial groups
Holding (not majority, but most important holding) (Powell):
o Race-conscious admissions should be subject to strict scrutiny
 No racial balancing for own sake
 Cannot remedy past societal discrimination (but can be applied on an
individual level)
 Must be narrowly tailored action
 Diversity is a compelling government interest, although not compelling
enough to mandate a quota
Grutter v. Bollinger (2003)
-
-
-
Facts:
o Michigan Law School had factors for admissions that included diversity with a
goal to bring in student who had been historically discriminated against to
promote general learning outcomes
o White student with high scores was denied, sued over constitutionality of
Affirmative Action
Holding (O’Connor):
o Strict scrutiny is appropriate standard of review; deference to universities as to
what will or won’t contribute towards educational mission
Reasoning:
o School had a compelling state interest
 Helps people understand others of different background, promotes overall
working outcomes, prepares students for increasingly diverse workforce
and society
o Means were specifically tailored to accomplish that purpose
38

-
Cannot be a quota, but can be a critical mass of underrepresented
minority students through an individualized and holistic review, must
weigh other meaningful factors in addition to race
Dissent (Thomas):
o State interest is not an "educational benefit" that comes from the diverse student
body, but the school's interest in maintaining a "prestige" classification whose
normal admissions standards disproportionately exclude minorities
 Could have achieved same goals through race-neutral mechanisms (no
LSAT requirement, which disproportionately hurts minorities, expand
scope of admissions, lottery system)
o There is no compelling state interest as there is no pressing public necessity to
maintain a public law school, especially an elite law school and in a state with
other public law schools
Rational Basis, Intermediate Scrutiny, and Strict Scrutiny
Strict Scrutiny
Applies to:
State interest
required:
Laws relation to
asserted interest:
Suspect
classifications (race
and national origin)
Must be compelling
Must be both
necessary and
narrowly tailored
Intermediate
Scrutiny
Quasi-suspect
classifications (sex,
alienage, illegitimacy)
Must be important
and genuine (not a
post-hoc
rationalization)
Must be substantially
related
Rational Basis
Non-suspect
classifications
Only needs to be
legitimate; can be
hypothesized, need
not be actual
Need only be
rationally related
Railway Express Agency Inc. v. New York (1949)
-
-
Facts:
o To prevent distractions on road NY passed law limiting branding on trucks to only
those promote ads owned by truck company
Holding:
o If Congress could plausibly believe legislation would promote the public interest,
this is a not a constitutional question to be answered by the Court
Williamson v. Lee (1955)
-
Facts:
o OK law prohibited non-medical professionals from making eye glasses
Holding:
o As long as legislature can articulate a legitimate purpose for a law and a rational
connection between the mechanism to combat that issue, it is a matter for
legislative judgment
Goesaert v. Clearly (1948)
-
Facts:
39
o
-
-
-
Michigan law required bartenders to be licensed in all cities having a population
of 50,000 or more, but no female may be licensed unless she is the wife or
daughter of the male owner
Holding (Frankfurter):
o Does not violate equal protection of the law because line was drawn with specific
rationale
Reasoning:
o Michigan could rationally believe that this law may reduce moral or social
problems, oversight from husband or father may be necessary to protect female
bartenders (social/physical protections)
o Public health, safety, and morality all fall under police power, and thus legitimate
state enforcement
o Rational basis standard used for sex-based discrimination
Dissent (Rutledge):
o The law does not accomplish its goal as it would allow some bars to be run
without any men at all (arbitrary in nature)
Frontiero v. Richardson (1973)
-
-
-
-
Facts:
o Under statute, servicemen may claim wife as "dependent" whether she is in fact
dependent upon him for any support, but a servicewoman may not unless
spouse is actually dependent
Holding:
o Statute is unconstitutional
o Administrative convenience alone is not a sufficient government interest
o Note that the court did not agree on a standard here
Reasoning:
o Court directly posits that Reed was insufficient
o Since sex, like race or national origin, is an immutable characteristic determined
by birth alone, imposition of disadvantage to one group on this basis violated
concept that legal burdens should bear a relationship with individual
responsibility
o Government fails to offer evidence as to how this classification saves money
(and thus offer a compelling state interest)
Dissent (Powell):
o Classifications based on sex not inherently suspect requiring strict scrutiny – no
evidence to expand sex to narrowly limited group of classifications
o Court should not make this distinction, protection can be expanded through the
legislature, who are already contemplating an Equal Rights Amendment
Craig v. Boren (1976)
-
-
Facts:
o OK statute prohibited sale of beer to males under 21, females under 18
o State claimed distinction was meant to serve objection of promoting traffic safety,
backed up with statistics showing differences between the two genders in
relevant categories like alcohol consumption and car accident rates
Holding (Brennan):
40
o
-
Statistics cannot support the conclusion that gender-based distinction closely
achieves state objective; fails to meet intermediate (heightened) scrutiny test
Concurring:
o Court should use strict scrutiny, not intermediate, for gender-based issues
Dissent (Rehnquist):
o No language in Equal Protection clause or case law mandating gender-based
distinctions must meet important government objectives, test seemingly came
from nowhere
 Even if this is correct test, should not be applied because law burdens
men, not women
o Rational basis test appropriate, legislature, using the statistics in question, may
have reasonably determined gender-based distinction was appropriate
o Standards that target men should not have a higher standard, should only apply
for those that target women
City of Cleburne v. Cleburne Living Center (1985)
-
-
-
-
Facts:
o A Texas city denied a special use permit for the operation of a group home for
the mentally retarded because it did not conform with a local zoning ordinance
Holding (White):
o Lesser standard of scrutiny is appropriate for mentally-retarded, but standard
ordinance invalid as applied to this case
o No rational basis for believing this home would pose any threat to city’s legitimate
interest, therefore ordinance is invalid (ex: negative attitudes of nearby property
owners are not legitimate, would not negatively impact nearby school, etc.)
Reasoning:
o Mentally-retarded are not quasi-suspect classification
 Disabilities range and have reduced ability to function in daily life, thus
immutably different and thus State has legitimate interest in dealing with
and providing for them
 Not political powerless (evidenced by a number of legislative proposals
aimed at protecting this group)
 Task best left for legislature guided by medical professionals, not judiciary
 No application of equal protection because not similarly situated
individuals
o Applying the heightened standard will force the court to extend it to other groups
Concurring (Marshall):
o Ordinary rational-basis standard should be applied – majority’s test represents a
higher standard ("rational basis with bite")
Other Classifications
Classifications
Suspect (standard to use)
Age
N
Alienability
Y (intermediate)
41
Illegitimacy
Y (intermediate)
National Origin
Y (strict, analogous to race)
Religion
Y (free exercise and establishments
clause)
Sexual Orientation
Court has not determined
Wealth
N
Factors to determine:



History of invidious discrimination
Whether the affected class share an immutable characteristic
Whether the affected class is a “discrete and insular minority” that is excluded from the
political process
Fundamental Interests court has upheld
-
Procreation (Skinner v. Oklahoma – also protected under substantive due process)
Marriage (Zablocki – also protected under substantive due process)
Voting (Harper v. Virginia)
Privileges and Immunities
-
Fundamental rights belonging to citizens of all free governments which have been
enjoyed by citizens of the several state
Include protection by the government with the right to acquire and possess property of
every kind and to pursue and obtain happiness and safety, subject to restraints as
government may prescribe for the general good of the whole
Slaughter-House Case (1873)
-
-
-
-
Facts:
o Louisiana passed an act which granted one company exclusive rights to
slaughter-house business, mandated that other businesses shut down
Holding (Miller):
o Law is constitutional; privileges and immunities clause of the 14th Amendment
also extends to the federal government, no to the states (two separate
citizenships)
Reasoning:
o 13th and 14th Amendments were meant to address the remedy racial
discrimination
 Monopoly of a slaughter house does not fall within fundamental rights
outlined in privileges and immunities clause, does not have to do with
racial issues
Dissent:
o Upholds due process challenge
Result:
42
o
After Slaughter-house privileges and immunities has little effect because only
applies to national citizenship rights
Substantial Due Process
Buck v. Bell (1927)
-
-
-
Facts:
o Plaintiff was a feeble-minded woman committed to a state institution
o VA law compelled sterilization for those with mental handicaps if performed
without substantial due process
o Plaintiff argues 14th amendment due process and equal protection
Holding (Holmes):
o Plaintiff had due process of law, coupled with fact that right to reproduce is not a
fundamental liberty, marked law as constitutional
Reasoning (different ways to protect rights):
1. Procedural DP – notice, appearance, neutral decision-maker (etc.)
a. Plaintiff had adjudicative process, given notice, can appeal, present
evidence in a hearing establishing competence
2. Equality – law applies to all people displaying similar or the same
characteristics equally
3. Substantial DP – minimum baseline of rights
a. Right to reproduce is not a fundamental liberty interest
Lochner v. New York (1905)
-
-
-
Facts:
o Defendant violated labor law, required employee to work for him for more than 60
hours a week at a bakery
Holding:
o Statute goes beyond state police power because no reasonable foundation for
holding this law acts as a safeguard to public health
o Not a health law, illegal interference on individual's rights to freely enter contracts
Dissent (Harlan):
 Contracts may freely be entered into but subject to regulations as State
may reasonably prescribe for the common good of society
 Courts could rationally find this law to be in the wellbeing of society, not
courts role to determine if the legislation is wise or not
o Holmes
 Constitution is not intended to embody any particular economic theory
 Economic theory (freedom of contract) of las a faire capitalism is not
embedded in the 14th Amendment
Griswold v. Connecticut (1965)
-
-
Facts:
o Connecticut state made it illegal to take any drugs or use any medical device
preventing conception
Holding (Majority):
o A government purpose to control or prevent activities constitutionally subject to
state regulation may not be achieved by means which sweep unnecessarily
43
-
-
-
-
-
broadly and thereby invade the area of protected freedoms – marital rights are an
implied protected privacy right
Reasoning:
o Decides not to follow Lochner
o Right to express one's attitudes or philosophies by membership in a group or by
affiliation with it or by other lawful means, acts a form of expression of opinion;
protected under Freedom of Speech, Religion, and Association (penumbra
theory – NAACP v. Alabama)
o To be effective, Constitutional guarantees protect more than what is expressly
enumerated
Concurring (Goldburg):
o To hold that a right so basic and fundamental, the right of privacy in marriage,
may be infringed because right is not expressly enumerated in first eight
amendments ignores the 9th Amendment
Concurring (Harlan):
o Due Process Clause of the 14th Amendment covers right to marital to use
contraception in marriage (liberty right), not a new privacy right implied from the
Bill of Rights (this represents overbroad judicial activism)
Concurring (White)
o Deprivation of contraception violates “liberty” without Due Process (14th Amend.)
Dissent (Black):
o Judiciary does not have constitutional power to strike down state court laws
because they believe they are arbitrary or unreasonable or serve no justifiable
purpose, role of legislature
o Responding:
 Judicial preference happens in all issues, not unique here
 Constitution that is limited to text is not enough in complex modern world
Dissent (Stewart):
o It is not the duty of the court to strike down laws it disagrees with, only
Constitutionality of law; this law does not present any clear constitutional
violations
Eisenstadt v. Baird (1972)
-
Holding:
o Extend rights in Griswold beyond married couples to unmarried couples, invoking
equal protection of the two classifications
Roe v. Wade (1972)
-
-
-
Facts:
o Defendant seeking an abortion challenged constitutionality of Texas law
challenging abortion
Holding:
o The right to an abortion is a constitutionally protected privacy right
o No compelling state interest (strict scrutiny standard), fetus is not a “person”
protected under the Constitution
Reasoning:
o Note that the court relaxed the mootness requirement here in order to hear the
case
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o
o
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Constitutional language does not reach to the unborn
Trimester Structure
 Mother can get an abortion at any point prior to the first trimester
(mortality rate same as at birth at this point) – medical professionals may
determine, without intervention from government, how pregnancy is to be
treated
 Second trimester, fetus could be viable outside womb, abortions
permissible, but there is growing state interest
 Third trimester, compelling state interest to regulate and prohibit, but must
permit abortion for reasons related to mother’s health
Concurring:
o The asserted state interests of protection of health and safety of pregnant
women, and their unborn children, are legitimate objectives, but cannot
constitutionally support broad abridgement of personal liberty of the Texas law
Dissent (Rehnquist):
o Law has a rational relation to a valid state objective, should be upheld (rational
basis test)
o No longstanding history (most state have banned abortions), not a fundamentally
protected right
Dissent (White):
o Majority invented a constitutional right for pregnant women without reason or
authority, incorrectly overrides most existing state abortion statutes
o No constitutional warrant to value convenience of pregnant women more than the
continued existence and development of life or potential life
Stare Decisis (1579)
1. Practical Workability of the rule – is there a judicially manageable standard – do courts
know what it means and can they apply the rule?
2. Reliance
3. Has the rule been weakened over time (by other doctrinal principles)
4. Changes in facts or factual assumptions since initial ruling
Undue Burden Standard: (1587)

“State regulation has the purpose or effect of placing a substantial obstacle in the path of
a woman seeking an abortion of a nonviable fetus”
Planned Parenthood v. Casey (1992)
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Facts:
o PA Abortion Control Act requires (1) women seeking an abortion give informed
consent prior to procedure (2) wait 24-hours between information and consent (3)
if a minor, consent from a parent needed (or can opt out through judicial
procedure) (4) if married, must sign statement that husband has been notified
o Abortion had become a highly politicized issue by this period
Holding:
o Holding of Roe v. Wade should be retained and reaffirmed under stare decisis,
abortion constitutional
o Shift from trimester framework to undue burden test
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

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An undue burden exists, and therefore a provisions of law is invalid, if its
purpose or effect is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability
State may take measures to ensure woman's choice is informed, as long
as their purpose is to persuade woman to choose childbirth over abortion
Better balances state interests and women’s protected liberty interests

Reasoning:
o Stare Decisis
 Workability – no issue, rule can be applied with relative ease
 Reliance – women have historically relied on Roe for family planning
 Weakness over time – Roe’s and Griswold’s legal footing as strong as it
was he day it was ruled on
 Changes in facts – despite advances in healthcare affecting viability, no
change in Roe’s factual underpinning, core holding remains intact
o Political Pressure – court does not want to succumb to political pressure for stare
decisis cases so defer to prior ruling, would threaten institutional legitimacy
o Informed Consent and Minor Requirements constitutional
 Informed consent improves psychological wellbeing, would be provided
for other operations, does not override right to make health/family
decisions
 24-hour period reasonable, does not present health risks
 Minor requirement okay if provided with judicial bypass procedure
o Married Women Consent Requirement unconstitutional
 Represents substantial obstacle – millions of women are victims of
regular physical and psychological abuse at hands of husbands, notifying
them may provoke further abuse
Concurring:
o Restrictions on abortions should be looked at with strict scrutiny
o State restrictions on abortion violate a woman’s right to privacy by (1) requiring
her to carry a fetus in spite of severe physical intrusion and risk of bodily harm
and (2) depriving her of the right to make her own decision about reproduction
and family planning
Dissent (Rehnquist):
o Abortion is not a fundamental privacy right because it involves purposeful
termination of a potential life
 No history supporting abortion as fundamental right (banned in many
places)
 No true reliance – majority changes rule significantly anyway
o Cannot pick and choose elements of case to preserve or change when applying
stare decisis
o Unfounded principle to end national division by resolving divisive cases by not
looking like they are giving into the political pressure of one side – adhering to
decision could represent giving into political pressure
o Rational-basis test appropriate
Dissent (Scalia):
o Court is not going to solve a controversy as divisive as this with their ruling
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Washington v. Glucksberg (1997)
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Facts:
o Washington passed a law prohibiting conduct of individuals causing or aiding in
the suicide of another
Holding (Rehnquist):
o State law prohibition against causing or aiding in suicide is not in violation of due
process
o Fundamental Rights Test:
1. Protects those fundamental rights and liberties "deeply rooted" in
Nation's history and traditions - neither liberty nor justice would exist if
they were sacrificed
2. “Careful description” of these fundamental liberties must derive from
nation’s history, legal traditions, and practices
Reasoning:
o Historically states have outlawed and prohibited suicide, therefore not a “deeply
rooted” fundamental interest
o Casey did not suggest that all rights and liberties regarding personal autonomy
are protected
o Distinguished Cruzan as that case involved a well-known medical tort,
Concurring (Souter):
o Balancing test to determine fundamental rights:
1. Values expressly enumerated in the Constitution or exemplified by the
traditions from which the Nation developed (common law)
2. Court should be only be performing Constitutional review, not judicial
lawmaking – state court best equipped to determine the laws unless
law is in blatant violation of individual interests
o Here, state has put forward sufficient interests (ex: protecting life generally,
discouraging suicide)
Bowers v. Hardwick (1986)
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Facts:
o Criminal statute outlawed sodomy
Holding (White):
o Homosexual sodomy is not a fundamental right, privacy is distinct between rights
such as family, marriage, and procreation
o Rational basis of legislating morality is acceptable, many laws based on moral
principles
Reasoning:
o Traditionally and historically sodomy has been a criminal offense
o Not outlined in Constitution, cannot grant new rights
Dissent (Blackmun):
o Focus should on right to be left alone/autonomy from invasive government
intrusion which is a fundamental right
Lawrence v. Texas (2003)
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Facts:
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o
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Police found two homosexual men engaging in a sexual act, which is against law,
were arrested and charged criminally
o Similar to Bowers, except the statute only went against homosexuals
Holding (Kennedy):
o Liberty rights and interests of two consenting adults under Due Process extends
to intimate/sexual acts without intervention from the government
o Rational basis test was not met – morality alone not legitimate interest
Reasoning:
o Historically, only in the 1970s did laws begin to criminalize sexual acts between
people of the same sex, only 9 states have done so ; general movement towards
acceptance of homosexuals
 No “deeply rooted” tradition against this act
o Stare Decisis
 No issue with workability applying new ruling, no individual or societal
reliance
 Not correctly decided at time, not correct today
 Changes in legal landscape since Bowers
 Casey reaffirms personal liberty interests
 Romer strikes down law, animosity towards homosexuals
Concurring:
o Violates Equal Protection Clause – illegal for same-sex couples but legal for
heterosexual couples
o Moral disapproval alone is not a legitimate state interest
Dissent (Scalia):
o Majority fails to say homosexual sex is a fundamental right that needs protection
under Due Process
o Rational basis – immoral conduct was a rational basis in Bowers but rejected
here without justification
o Stare Decisis
 No change in legal landscape since Bowers
 Glucksberg – same method for determining fundamental rights as
in Bowers, did not meet “deeply-rooted” test
 Court has seemingly given into political pressures which were
rejected in Casey
 Reliance – countless judicial and legislative decisions relied on facts that
certain sexual behavior being immoral and unaccepted constitute a
rational basis for regulation
o Equal Protection:
 Denial of equal protection to homosexual only needs to be supported by
rational basis, and morality is enough of a rational basis
 Not a denial of equal protection - men and women alike cannot perform
this conduct with the same sex, same distinction drawn in state laws
prohibiting same-sex marriage
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