Con Law Outline
Adler 2019
Brendan LeMay
I.
CREATING THE CONSTITUTION
a. Declaration of Independence
i. Explains why the actions might be justified
ii. Discusses something beyond the sovereign British Gov’t that matters
iii. NOT law, but is informative
b. Articles of Confederation
i. Why do we care?
1. It was our first attempt at establishing a sovereign gov’t and there
were several aspects we did not like, may help with constitutional
meaning and interpretation.
ii. Looks like a Treaty
1. No executive branch
2. No federal courts
3. Congress structured differently
4. Election of congress was by state legislatures
iii. Supposed to be amended only by unanimous state vote… how is the
constitution enforceable?
1. Constitution only needed 9 of 13 states
2. Articles were something that the states agreed to as states, but the
constitution was something the People agreed to
3. Constitution ratification not unlawful because People took power
and gave it to the federal gov’t
c. Dead Hand Problem
i. Why are we following the rule of law of people who are long gone?
1. Expresses principles of political morality that continue to
command our assent and agreement?
2. Implied ratification?
a. Gets continued authority from implicit consent of people in
each generation
b. We could always have amended constitution through
Article V
ii. Example of Dead Hand Problem: District of Columbia v. Heller
1. Issue: Whether the District of Columbia prohibition on the
possession of usable handguns in the home violates the Second
Amendment to the Constitution?
2. Scalia: the language is to be understood by the votes, its words and
phrases were used in their normal and ordinary meaning – as to the
founding generation.
a. Operative clause (looks at historical definitions)
i. Right of the people = individual rights, not
collective
ii. Keep and bear arms = have weapons
II.
iii. Overall: it guarantees “the individual right to
possess and carry weapons in case of confrontation”
1. Second Amendment codified a pre-existing
right (not to be infringed)
b. Prefatory Clause
i. Well-regulated militia = all males physically
capable of acting in concert for the common defense
ii. Security of free state = free country
3. Dissenters: Framers did not intend to enshrine the common law
right of self-defense in the constitution, the Second amendment is
in conjunction with service in a militia (use prefatory clause to
help define).
JUDICIAL POWER
a. The authority invested in the courts and judges to hear and decide cases and
controversies and to make binding judgments on them; the power to construe and
apply the law when controversies arise over what has been done or not done under
it.
b. Judicial Review: A court’s power to review the actions of the other branches of
gov’t, especially the power to invalidate legislative and executive actions as being
unconstitutional.
i. Article III, Section 1: The judicial power of the United States shall be
vested in one Supreme Court, and in inferior courts as the congress may
from time to time ordain and establish.
ii. Marbury v. Madison
1. Marbury was granted a commission by Adams to become a Justice
of Peace, but before commission is delivered Jefferson becomes
president and does not deliver it. Marbury brings claim straight to
SCOTUS for his commission on writ of mandamus (which orders a
person to perform a statutory duty).
2. Court: The Judiciary Act allows for writ directly from SCOTUS,
however, the Judiciary Act itself is unconstitutional because
Congress does not have to power to modify SCOTUS original
jurisdiction.
a. Political Examination v. Judicial
i. “merely to execute the will of the President…cases
in which the executive possesses discretion”
ii. “where a specific duty is assigned by law, and
individual rights depend on that duty…the one
considered injured has a right to resort to the laws”
b. Even if Judiciary Act is unconstitutional can they deliver
the remedy?
i. No, because then any ordinary act of the legislature
can alter the constitution, and then constitution
would no longer be “supreme law of the land”.
ii. It must follow that an act of the legislature that is
repugnant to the constitution is void
1. “This theory is essentially attached to a
written constitution… fundamental
principles of our society”.
iii. How far does Judicial Review extend?
1. Martin v. Hunter’s Lessee
a. Virginia enacts a law allowing the confiscation of Loyalist
(loyal to British crown) property, but treaty that is in place
with Britain says Loyalists will not be bothered.
b. Martin’s property is seized, VA court says yeah that’s
okay, SCOTUS says nope not okay.
c. Can a case starting in State court be under the authority of
SCOTUS?
i. Article III says suits arising from treaties are under
SCOTUS purview
ii. Congress has duty to vest judicial power, and must
vest all of the judicial power that is enumerated in
Constitution
iii. Not original jurisdiction here, do we have appellate?
1. Article III says all cases and controversies,
treaties fall under this, so yes.
2. “appellate power would extend to state
courts; for the constitution is peremptory
that is shall extend to certain enumerated
cases…which could exist in no other courts”
iv. The purpose of Article III is that we need
uniformity in constitutional interpretation across all
states.
c. Limitations of the Judiciary
i. Cases and controversies: Article III Section 2 Clause 1
1. Judicial power shall extend to all cases in law and equity arising
under this constitution, the laws of the US, and Treaties (made or
shall be made); all cases affecting ambassadors, other public
ministers and consuls; all cases of admiralty and maritime; US is
party; two or more states are a party; between state and citizens of
another state; between citizens of different states.
ii. Advisory Opinions
1. Federal courts CANNOT give advisory opinions (state courts can)
a. Justice Jay: no “extrajudicial decision making”
iii. Standing
1. Injury in fact (to the party, imminent and actual, concrete and
particularized)
2. Causation (link between injury and conduct of defendant)
3. Redressability (relief from court can alleviate injury)
a. Lujan v. Defenders of Wildlife
i. Rule promulgated by Sec. of Interior interpreting
the Endangered Species Act as to render it only
applicable to actions within US or on high seas.
ii. Defenders of wildlife bring action claiming people
are injured by an agency-funded project in another
country because they won’t get to visit the alligators
there anymore.
iii. Court: Plaintiffs do not have standing because they
did not show the injury was imminent and actual.
Threatened injury may have sufficed if it was less
speculative – if plaintiffs had purchased plane ticket
to return with definite arrangements to see the
alligators.
b. Note: Third parties – when the plaintiff is not himself the
object of the government action or inaction he challenges,
standing is not precluded, but is “substantially more
difficult” to establish.
iv. Ripeness
1. Action is brought too soon
v. Mootness
1. Courts will not hear cases where there is no longer any actual
controversy
a. Exception: capable of repetition, yet evading review
vi. Political Questions
1. Courts will not hear because it is an exercise of discretion by the
executive or legislative branch
2. Factors (unless 1 is inextricable from the case, cannot dismiss for
political question):
a. 1) textual commitment to coordinate branch
b. 2) lack of judicially manageable standard to resolve case
(court has no clear principled way to identify a relevant test
or standard that would be easy for courts to apply
consistently)
c. 3) impossible that there would be a non-policy decision
d. 4) impossible for court to undertake without disrespecting
coordinate branch
e. 5) need for finality in prior political decisions
f. 6) potential for embarrassment by various departments on
one question
3. Justiciable Political Question:
a. Baker v. Carr
i. Plaintiff wanted Tennessee to redistrict
ii. Court: The question is whether the state’s action is
consistent with the constitution, therefore, it is
justiciable. It has not been committed to another
branch of government. No risk of embarrassment of
III.
our gov’t abroad, and we have manageable
standards.
iii. Political question comes from relationship between
judiciary and the rest of the federal gov’t… NOT
the judiciary relationship with the states
4. Non-justiciable Political Question:
a. Nixon v. US
i. Court focuses on the first two factors. Text says that
authority for impeachment is “sole” authority given
to the Senate, so judiciary may not interfere.
Impeachment of judges is only check on judicial
branch… cannot let judiciary review this itself.
ii. The word “try” doesn’t give a judicially
manageable standard.
LEGISLATIVE POWER OF CONGRESS
a. Necessary and Proper Clause: Article I Section 8
i. Power to make all laws which shall be necessary and proper for carrying
into execution the foregoing powers and all other powers vested by the
constitution.
ii. McCulloch v. Maryland
1. Congress passed an act that incorporated a Bank of the US – this is
actually the 2nd time national bank been incorporated. Maryland
doesn’t want it and decided to tax the local branch in Baltimore.
2. Does Congress have power to incorporate a bank? Yes.
a. Historical argument: yes, because there has been a national
bank incorporated before
b. Constitutional arguments:
i. Power comes from the people directly, constitution
is a complete obligation and bound the state
sovereignties.
ii. Necessary and Proper Clause – Congress has broad
discretion in choosing the means through which it
exercises its grant of power. There is nothing in
constitution to establish a bank, but congress is
allowed to do what is conducive (calculated to
produce an end) to things related to their powers.
iii. Test: “Let the end be legitimate, let it be within the
scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional.”
3. Can Maryland tax the bank? No.
a. Structural arguments:
i. Power to tax is the power to destroy, would give
Maryland power over the federal gov’t.
ii. People gave the constitution its power, it is the
supreme law.
iii. State is acting upon institutions created by people
over which the state has no control, taxing fed bank
essentially taxes other states citizens.
iv. States have no power to burden the operations of
constitutional laws enacted by congress – “it is a
constitution we are expounding.”
iii. Prigg v. Pennsylvania
1. Penn “Personal Liberty Law” required that a certificate of removal
be obtained from a state judge before seizing an alleged fugitive
slave, conflicts with the Fugitive Slave Act.
2. Is the Fugitive Slave Act constitutional?
a. Yes, Article IV Section 2 purpose was to secure to
slaveholding states their right and title in their slaves in
every state they might escape to. Congress can enact
whatever is necessary and proper to achieve this.
3. Is this power of legislature exclusive to Fed gov’t or concurrent
with states until exercised by congress? (is the PA law
constitutional)
a. No. The power to take slaves from any state gets its entire
validity form the constitution – so unless there is a positive
delegation to a state legislature, it is exclusive to fed gov’t.
b. Commerce Clause: Article I Section 8 Clause 3
i. To regulate commerce with foreign nations, by and among the several
states, and with Indian Tribes (expanded through case law).
ii. Congress can regulate:
1. The channels of interstate commerce
2. The instrumentalities of interstate commerce (includes regulating
intrastate instrumentalities that may harm)
3. Economic activities substantially affecting interstate commerce:
a. Activity itself is economic
b. Regulation of activity is itself a part of a larger regulation
of economic activity (wheat/marijuana)
iii. Older Cases
1. Gibbons v. Ogden
a. Ogden has state license, thinks he is the only one allowed
to navigate the waters in NY, Gibbons has been licensed by
the fed gov’t to do the same.
b. Commerce and Supremacy clause? Who wins?
i. Congress has the power to regulate interstate
commerce. Commerce is the intercourse between
nations and ports, has been understood to include
navigation. Gibbons wins.
c. What is out of commerce clause reach?
2.
3.
4.
5.
i. Inspection laws – acting upon an object before it
becomes an article of commerce.
Wilson v. Black Bird Creek Marsh Co.
a. State law authorized construction of a dam. Defendant
busted through it, and argues the dam violates the
commerce clause.
b. State can obstruct a navigable waterway so long as it is not
preempted by a federal statute.
c. The dam is intrastate, state can do what it wants so long as
Congress has not exercised its power.
US v. E.C. Knight
a. (aggressively limits federal power, eventually overturned
by NLRB v. Jones and Laughlin)
b. Monopoly on sugar refinery not commerce because they
are manufacturing. Congress cannot regulate manufacture,
congress could regulate every branch of human industry if
this was the case.
c. Harlan Dissent: power to regulate commerce, with Nec and
Proper clause, could reach manufacture.
Champion v. Ames
a. Lottery tickets are subjects of traffic and therefore subjects
of commerce, and the regulation of transport of them from
state to state is a regulation of commerce among the several
states.
b. Court argues it is helping states who wished to protect
certain morals.
c. “Commerce clause is subject to no limitations except those
that may be found in the constitution.”
d. Shiras and Peckham Dissent: to hold that congress has a
general police power would defeat the 10th amendment, the
determination by congress that an article is the subject of
commerce must be included in judicial inquiry, the scope of
the commerce clause cannot be expanded to encompass
current views of the public.
Hamer v. Dagenhart
a. Congress passed an act that prohibited goods made by
children from being sold in interstate commerce.
b. Court held that the manufacture of cotton did not in itself
constitute interstate commerce, and congress cannot
regulate manufacture intrastate.
c. NOTE: distinction from Champion, where lottery tickets
were “inherently evil” so as to be able to shut down access
to interstate commerce of them, but cotton as an article is
not itself inherently evil.
d. Dissent: as soon as you want to cross state lines you
become subject to the commerce clause.
6. NLRB v. Jones & Laughlin Steel Corporation
a. Big steel company fired members of a labor union and
Congress passed a law that said you could not do that.
b. Court holds that the power to regulate commerce is the
power to enact all legislation for its protection and
advancement. Manufacture strike in an interstate enterprise
threatens interstate commerce.
c. Test is now what affects interstate commerce.
7. Wickard v. Filburn
a. Congress passed a law that set a limit on wheat production.
Filburn was growing excess wheat to feed his own cows.
b. Congress can reach this activity, although Filburn’s excess
wheat will not be put into interstate commerce, his actions
will affect interstate commerce by lowering demand (he
won’t have to buy wheat on market if he grows excess)
court afraid this would have an aggregate effect.
iv. Modern Cases
1. Heart of Atlanta Motel v. US
a. Congress acted well within its authority under the
commerce clause in passing the civil rights act of 1964.
b. Having observed that 75% of the motels clientele came
from out-of-state and that it was strategically located near
interstate highways the court found that the business clearly
affected interstate commerce.
2. US v. Lopez
a. Congress Gun Act says no guns are allowed within school
zones. Lopez brings gun to school, its discovered, he
challenges the act that congress does not have power under
commerce clause.
b. Court holds the act is unconstitutional. It is a criminal
statute. Gun possession is not itself economic, and the Gun
Act is not part of some larger regulation scheme.
c. Court says we want to protect the states Police Power and
that the effects on commerce must be substantial, not
incidental, for congress to regulate.
3. US v. Morrison
a. Violence against Women Act is also unconstitutional, it is
not an economic endeavor.
4. Gonzalez v. Raich
a. California allows medical weed, but Federal Controlled
Substances Act makes selling, purchase, or possession
illegal.
b. Court holds that CSA is constitutional. Wickard and this
case are fairly similar. Regulation of home
consumption/production substantially affects supply and
demand in national market. The high demand for weed in
the market could draw medical weed into that market.
c. NOTE: this is distinct from Morrison and Lopez because
those statutes did not regulate economic activity whereas
here the CSA regulated production, distribution,
consumption of commodities that are established in
interstate markets.
d. The individual non-economic activity is part of a larger
broader regulatory scheme that embraced what is clearly an
economic activity.
e. Scalia: Nec and Proper clause is what allows congress to do
this, get rid of weed in interstate commerce.
c. Tax and Spending:
i. Article I Section 8 Clause: Spending Clause
1. Congress shall have the power to lay and collect taxes, duties,
impost, and excises, to pay debts and provide for the common
defense and general welfare of the US, but all duties, imposts, and
excises shall be uniform throughout the US.
ii. 16th Amendment: Tax Power
1. The Congress shall have the power to lay and collect taxes on
incomes from whatever source derived, without apportionment
among the several states, and without regard to any census or
enumeration.
iii. South Dakota v. Dole (Spending)
1. Fed withholds 5% of highway funds from states if they allow
people under 21 to drink.
2. Court holds this is constitutional. Objectives not within congress’s
enumerated powers can be attained through its spending power.
Mild encouragement, not coercion, small amount, not
unconstitutional.
3. There are limits, Test:
a. It must promote the general welfare
b. The condition must be unambiguous
c. The condition should relate to the federal interest in a
national project or program
d. The condition must not be coercive
e. Condition itself must not be unconstitutional
4. NOTE: this is a condition on old money
5. Dissent: Condition that states raise the drinking age is not related
to highway construction funds. Majority counters by saying that
we want the roads the state builds to be used safely, and people
driving over state lines to drink will threaten this.
iv. NFIB v. Sebelius (Spending)
1. The ACA expands the scope of Medicaid program and increases
the number of individuals the states must cover. If the state does
not comply, it may lose ALL of its federal Medicaid funding.
2. Court holds this expansion is unconstitutional.
a. Promote general welfare? Yes
b. Unambiguous? Yes
c. Related? Yes
d. Not Coercive? No – states losing 20% of their budget
doesn’t give them much of an option. This is a condition on
new money.
v. NFIB v. Sebelius (Tax)
1. The individual mandate that every citizen purchase health
insurance is constitutional. This is not commerce power because
the Fed cannot mandate an activity. The penalty for not buying
insurance can properly be categorized as a tax. It goes to IRS, and
is a function of your income with exceptions.
2. When a tax is a penalty: 1) heavy burden; 2) exaction is on those
who knowingly violate; and 3) enforced by the department of
labor, not the IRS.
3. Tax cannot be primarily to disguise a regulation, cannot be
punitive.
a. Should congress have to label a tax as a tax? Wolf must
come dressed as a wolf? Or do we try to adopt cannon of
interpretation that construes it as constitutional?
vi. NOTE: Sebelius is different from the Raich marijuana case because in
Raich they are regulating a class of activity, whereas here they are
regulating a class of individuals.
d. Section 5 Powers: 14th Amendment Section 5
i. Congress shall have power to enforce by appropriate legislation the
provisions of this article.
ii. Test for whether congress has exceeded its power under Section 5:
1. The means adopted to prevent or remedy and injury are congruent
and proportional to the injury itself.
a. Congruent – the statutory right must be truly designed to
protect a judicially recognized constitutional right.
b. Proportional – remedy is in proportion to the scope of the
violation.
iii. Katzenbach v. Morgan
1. Congress passed the Voting Rights Act that says states cannot deny
people from Puerto Rico who didn’t pass 6th grade the right to
vote. New York State had a law that required reading/writing
English to be able to vote. Congress created a new right to be free
from literacy tests under specified circumstances. The 14th
amendment did not contain this “right”.
2. Court held that VRA is constitutional. This act is a remedy for
unconstitutional discrimination (equal protection under 14th
amendment) by state governments. Congruent satisfied.
3. Court held remedy is directed only at jurisdictions where literacy
tests given. Proportion satisfied.
IV.
4. VRA is within the Section 5 power of congress to prohibit states
from enacting laws requiring literacy proficiency. This act was
plainly adopted to enforce equal protection clause.
iv. City Boerne v. Flores
1. May Congress use their Section 5 power to prohibit state conduct
that does not itself violate the 14th amendment?
a. Yes, some can be reached, as long as it is congruent and
proportional to the underlying violations.
2. Religious Freedom Restoration Act (RFRA) is enacted by congress
to protect religious exercise. Is this in their Section 5 power?
3. Court holds this is unconstitutional. Congress could not
constitutionally enact the RFRA because the law was not designed
to have “congruence and proportionality” between injury to be
prevented and means adopted.
4. Court found that the RFRA was seen to remedy generally
applicable laws passed because of religious bigotry. There was no
showing that these laws were passed because of bigotry. The court
found that the RFRA was not designed to vindicated a judicially
recognized right (free religious exercise) but instead was designed
to create a new right (freedom from neutral laws that adversely
affected religious practice). Not congruent.
5. The law was sweeping, intruding into every level of government.
Not proportional.
6. NOTE: the more generalized the perceived violation is, and the
more generalized and intrusive congress’s response is, the more
likely it will not be congruent and proportional. CANNOT let
congress interpret its own power under Section 5, need judicially
enforceable limits on congress power.
SEPARATION OF POWER AND THE EXECUTIVE
a. Horizontal Separation of Power
i. Legislative v. Executive v. Judicial
ii. Checks and Balances
iii. No encroachment of one branch into the other
b. Executive Branch
i. Youngstown Sheet and Steel Co. v. Sawyer
1. Steel workers go on strike. President wants to make sure this
doesn’t happen because it could jeopardize national security.
President issues executive order to seize steel mills.
2. Court holds that when you take someone’s property it is considered
law making authority. The president cannot do this.
3. Concurrence: congress decided not to give power to the president,
but here are some things that are important to look at:
a. Congress’s continued acquiescence
b. Congress being aware of the action – done in secret then
the president will get less deference
c. Historical practice – not determinative
4. Justice Jackson Framework:
a. 1) President has the MOST power when congress
authorizes it
b. 2) Congress hasn’t said anything – We don’t know.
c. 3) President has LEAST power when congress says no.
ii. Zivotofsky v. Kerry
1. May Congress direct executive to recognize territory of a foreign
sovereign? No, because it infringes upon exclusive power of the
president.
2. Court held that the president is given authority by Article II
Section 3. The power to receive includes the power to recognize
nations because the ambassador has to be representative for some
nation.
3. We want foreign policy spoken with one voice, so recognition of
authority is exclusively in the executive.
iii. Hamdi v. Rumsfeld (Executive power and procedural due process)
1. Hamdi, a US citizen, was captured in Afghanistan and accused of
being an enemy combatant. He was brought back to the US.
2. Court held that the AUMF passed by congress authorizes the
executive to use “all necessary and appropriate force… against all
persons… he determines… aided terrorist attacks”. The president
DOES have to authority to detain.
a. Detainment can last as long as there is US involvement in
active combat in Afghanistan
b. Indefinite detention for purposes of interrogation are not
authorized
3. Court applies the Matthews Framework – Citizen detainees must
get:
a. Notice of factual basis for his classification, and
b. An opportunity to be heard in a meaningful and timely
manner by a neutral decision maker
4. NOTE: procedural due process, amount of process you get depends
on:
a. The private interest at stake (your job, money, etc.)
b. Governments interest (national security, etc.)
c. To what extent does amounting greater or less deference
process give us the right result
i. Ex: disability benefits only need due process by
paper hearing
5. Scalia Dissent: Give him a criminal trial or let him go.
iv. US v. Nixon (Executive Privilege)
1. Are claims of executive privilege justiciable? Yes. Nothing in the
constitution giving executive privilege but it is read in as being
important to the execution of his duties
2. Court seeks to get materials from Nixon, he tries to quash the
subpoena by claiming executive privilege.
3. Court holds that the president has a legitimate interest in
confidentiality and that the court owes a high degree of deference
to how the executive interprets the constitution. But to win a
privilege case, the president would have to say WHAT is being
privileged and WHY it is privileged (military stuff, national
security, etc.)
4. Court employs a balancing TEST:
a. General privilege of confidentiality hindering the
president’s duties vs. due process need for relevant
information in criminal proceedings.
v. Clinton v. Jones (Suing President for non-official acts)
1. May a sitting US president be sued for money damages for nonofficial acts? Yes
2. Claims against president Clinton that arose before Clinton became
president
3. President can be sued for something not related to presidential
duties or something that occurred before becoming president.
vi. Korematsu v. United States
1. Executive order moving Japanese-Americans into relocation camps
just after pearl harbor.
2. Did president go beyond his war powers by discriminating against
the rights of Japanese Americans?
3. Court found this did not show racial prejudice but was an
appropriate response during war time, and the validation of the
military decision by congress means it is owed more deference.
4. Dissent: this violates the equal protection clause
vii. Ex Parte Garland (Pardon Power)
1. Court held that the pardon power is unlimited
a. No charges are needed to be in existence
b. Applies to someone’s guilt or the punishment
2. Limitations
a. Does not extend to impeachment of himself or anyone else
b. This power only applies to federal crimes
c. Limit on Executive Through Impeachment
i. “treason, bribery, other high crimes and misdemeanors”
ii. House has sole power of impeachment
iii. Senate has sole power to “try” impeachment
d. Vertical Separation of Power
i. Federalism: the legal relationship and distribution of power between the
national and regional government within a federal system of government.
ii. Internal limits on the Federal gov’t
1. Commerce clause
2. Spending power
iii. National League of Cities v. Usery
iv.
v.
vi.
vii.
viii.
1. The Federal Labor Standards Act required states to adhere to
maximum and minimum wage provisions.
2. Court held this is unconstitutional, it invades the realm of state
sovereignty.
3. Congress CANNOT act upon the states as states performing
traditional state functions
Garcia v. SAMTA (Overrules National League of Cities)
1. Fed law can be applied to state when state acting as an employer.
2. Court held that the principle of federalism was to be protected, if at
all, through the POLITICAL rather than the judicial process.
3. Federalism will not trump a valid exercise of federal power. Here,
congress can directly regulate states as part of a broader federal
regulatory scheme that also regulates similar private conduct – thus
congress can also extend wage and hour limits to state employees.
Anti-Commandeering: Cannot commandeer state legislative or executive
branches and require them to create regulations or execute federal law
(10th Amendment)
Prigg v. Pennsylvania
1. Pennsylvania law conflicts with federal law
2. Court holds that congress has the power to enact whatever is
necessary and proper to the constitutional fugitive slave act. It has
exclusive authority, so states can’t do anything.
New York v. US
1. Congress enacts a statute to get rid of waste. There were only three
disposals, and states didn’t allow people to open other ones.
Congress enacts act to solve this. Congress gave three sets of
incentives to comply. The third set of incentives required a noncompliant state to “take title” to the waste generated within its
borders and to accept liability for any damages caused by that
waste.
2. Court held that the first two incentives were okay. The third one is
not okay. You cannot regulate states as states, the federal gov’t
cannot tell the state to do something in its sovereign capacity. This
is commandeering. “You must spend money on a waste system
because we are telling you to”.
3. Congress does not have to power to tell the states to regulate
something no matter how compelling the federal interest is.
4. NOTE: congress regulating individuals is okay, but this is not that.
This was federal law transferring ownership of waste to a state and
then telling them to regulate it. Commandeering is NOT necessary
and proper.
Printz v. US
1. Federal law required state officers to do background checks before
allowing a gun purchase.
2. Court held this is unconstitutional. It forces states to administer a
federal regulatory scheme.
a. History shows that congress does not have control over
state officials
b. Court held the 10th amendment categorically forbids the
federal gov’t from commanding a state official directly.
3. Commerce Clause + Nec Proper argument does not work because
when a federal law carrying commerce clause into effect violates
state sovereignty it is NOT proper.
4. NOTE: states have to abide by federal law but DO NOT have to
enforce it.
ix. State Limits: Dormant Commerce Clause
1. Prevents state regulation of interstate commercial activity even
when congress has not acted under the commerce clause power to
regulate that activity.
a. The commerce clause was enacted to prevent states from
isolating themselves from one another
b. Test:
i. Purpose was protectionist measures (strict scrutiny
test – per se invalid)
ii. Regulation is barred where burden on interstate
commerce is “excessive in relation to putative local
benefits”
2. Philadelphia v. New Jersey
a. New Jersey prohibited other states waste from entering the
state. This protected citizens from the waste sites jacking
up the prices, because had very few waste sites.
b. Court held that NJ law is unconstitutional and places
burden on interstate commerce. Where a state’s simple
economic protectionism is effected by state regulation it is
per se invalid.
c. The state can regulate to make the waste import less of a
risk, but cannot discriminate against other states waste
which proposes the exact same risks as their own waste.
d. Dissent: maintained that the law was constitutional on the
basis of the validity of quarantine laws. Reasoned that the
toxic trash New Jersey handled from out of state was no
different from diseased meat that was legally prohibited.
3. Exceptions to the Dormant Commerce Test
a. South Central Timber Development Inc. v. Wunnicke
i. Alaska required that all timber be processed within
Alaska before being shipped outside the state.
ii. Exception #1: Congress may permit states to
regulate commerce in a manner that would
otherwise not be permissible. Congress’s consent
must be express.
iii. Exception #2: A state can burden the market that it
is a participant of. Here, Alaska is a participant of
the timber market, not the timber processing market
1. Timber company not a market participant
here because purchasers of timber not given
a choice, control follows after the sale and
restricts private activity.
V.
x. Preemption
xi. Express
1. fed gov’t says that a state cannot do something (but they CANNOT
tell the state that they MUST do something)
xii. Implied
1. Field – congress has preempted a field/area
2. Conflict – when a federal and state law are incompatible, federal
law wins
3. Obstacle – the state law discourages what the federal law seeks to
encourage or otherwise frustrates the purpose of the federal statute.
xiii. Pacific Gas & Electric Co. v. State Energy Resources
1. State law regulated the sites of nuclear power whereas a federal
law regulated the nuclear power itself.
2. No preemption because federal law only dealt with economic
issues of the nuclear power, state law dealt with safety.
FUNDAMENTAL RIGHTS
a. A significant component of liberty, encroachment of which are rigorously tested
by courts to ascertain the soundness of purported governmental justifications.
b. Privileges and Immunities: 14th Amendment P&I Clause
i. Prohibits state laws that abridge the P&I of US citizens.
ii. Slaughterhouse Cases
1. Louisiana legislature centralized all slaughterhouses in the city,
forcing some butchers to close.
2. Court held that P&I of the citizen of the US are different than P&I
of state citizens. P&I clause of the 14th amendment affects only the
rights of US citizens (which were few), not state citizenship, so the
butchers 14th amendment rights have not been violated. Police
power of the state is not restricted.
3. NOTE: no scholars today believes this is the correct reading of the
14th amendment
a. Federeal P&I include:
i. Right to be citizen of the country
ii. Demand care and protection of the fed over life
liberty and property on the high seas or in foreign
jurisdiction
iii. Bradwell v. Illinois
1. A woman sued because Illinois denied her a license to practice
law.
2. Court held that being able to practice law in a state is not a right of
a US citizen, therefore the state can deny her a license. The right to
a profession is not a P&I according to slaughterhouse.
c. Incorporation: process of applying the provisions of the bill of rights to the states
by interpreting the 14th amendment due process clause as encompassing those
provisions.
i. Most of the Bill of Rights apply against the states, except:
1. 3rd: right to have soldiers quartered in home
2. 5th: right to grand jury indictment
3. 7th: right to civil jury trial
4. 8th: prohibition of excessive fines
ii. Barron v. Baltimore
1. City during construction was dumping dirt near a man’s wharf and
man considered it a taking.
2. Reconstruction era, no incorporation at this time. 5th amendment
does not apply to the state governments.
iii. McDonald v. City of Chicago
1. Chicago prohibited residents from possessing handguns. Does the
2nd amendment apply equally to the federal gov’t as it does to the
states? Yes.
2. Court holds that 14th amendment due process clause incorporates
the 2nd amendment. Enumerated rights may be highly suggestive
that they are fundamental, but this is not guaranteed.
3. Does NOT overturn Slaughterhouse because there is a long line of
cases using incorporation method, some form of heightened
scrutiny, more than rational basis.
d. Substantive Due Process: Gov’t impedes a fundamental right
i. Lochner Era Economic Regulation
1. Lochner v. New York
a. New York had a law limited the hours an employee could
work to 10- hours per day and 60-hours per week. Plaintiff
allowed workers to work 60 hour weeks.
b. Court held this law is a violation of the freedom to contract.
It does not affect health or welfare of workers and cannot
be reached through police power, state cannot interfere.
c. Holmes Dissent: not are job to say a law is stupid
d. Harlan Dissent: give deference to legislature unless it is
clear it is outside of legislatures power
2. Nebbia v. New York (Overturns Lochner)
a. New York law fixed price of milk at 9 cents. Nebbia sold
milk for 6 cents.
b. Court holds that due process means that the state law must
have a legitimate end, and it must not be “unreasonable,
arbitrary, or capricious” and must have a reasonable
relation to a proper purpose.
c. The state is allowed to fix the price of milk, contract and
property rights are not absolute. State has power to promote
general welfare and the law is reasonable (milk been
regulated for long time). It pertains to the health and safety
and therefore has a legitimate end that is in reasonable
relation to its purpose.
d. Narrow Reading of Nebbia: strong evidence of importance
of milk, legislative finding that market was not sufficient.
e. Broad Reading of Nebbia: court does not need to
aggressively review laws to assure that there is a valid
police purpose.
3. Adkins v. Childrens Hospital
a. Court held a DC law setting minimum wage for women
was a violation of 5th amendment due process because of
freedom to contract.
4. West Coast Hotel Co. v. Parrish (Overturns Lochner and Adkins)
a. Washington state regulated wages paid to women and
minors
b. Court held this did not violate due process, protection of
women and children is a legitimate end and minimum wage
is a reasonable means to achieve it.
c. Deference given to legislature, interference with economic
liberty is presumptively valid.
e. Right to Privacy
i. Griswold v. Connecticut
1. Connecticut prohibits the use or assistance in using contraception
2. Court holds that this state law is unconstitutional. The rights in the
Bill of Rights have “penumbras” (derivable from the text of the
constitution). This case is a penumbra of the fundamental right of
privacy – something special about marriage and the right to
privacy that are deep in our history and traditions.
3. Language and history of the 9th amendment helps this argument
4. Dissent: there is no right to privacy, the court should not impose
their preferences on laws they think are stupid.
f. Right to Abortion
i. Roe v. Wade
1. What part of the constitution protects the right of privacy? Due
Process.
2. Texas statute restricts legal abortions only to those for the purpose
of saving the mother’s life.
3. Court holds that when fundamental rights are involved the state
law should be analyzed under strict scrutiny. The right of privacy
is broad enough to encompass a woman’s decision whether or not
to terminate her pregnancy – but this right is not absolute.
4. Trimester Framework: 1st Trimester – state has no compelling
reason to regulate. 2nd Trimester – state can narrowly tailor
regulation to protect the mother. 3rd Trimester – state can regulate
however it likes to protect the fetus. Viability concerns with
advancement in technology.
5. Dissent: this is not a fundamental right, this is not a right to
privacy, this should be under rational basis.
ii. Planned Parenthood v. Casey
1. Pennsylvania statute placed restrictions on abortions
2. The “essential holding” of Roe is preserved:
a. Women have fundamental right to abortion
b. State has an interest at fetal viability and can regulate once
this occurs
c. State has an interest in the health of the mother
3. BUT state can now regulate abortion at any time during the
pregnancy so long as it does not create a “substantial obstacle”
4. New Test (Undue Burden):
a. State regulation 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.
b. Things that are NOT a substantial obstacle:
i. Be given notification about the abortion
ii. 24-hour waiting period requirement
iii. parental consent for a minor
c. Spousal notification of an abortion IS substantial obstacle
5. Balancing Test between substantial obstacle v. interest of state
6. Stare Decisis Test:
a. Whether the precedent is now unworkable
b. Whether there would be hardship from reliance on the rule
c. Whether precedent is undermined or suspended
d. Facts have changed so as to rob the old rule of application
or justification.
7. Justice Thomas: loyalty is to the Constitution, not to precedent.
g. Right to Die
i. Washington v. Glucksberg
1. Washington law made it a crime to cause or aid someone in suicide
2. Court held this law is constitutional. The suicide right is NOT a
fundamental right protected by due process. Rational basis applies
to state regulation in this area.
3. TEST for Fundamental Right:
a. Objectively deeply rooted in our nation’s history and
tradition (had this particular thing been an issue would
prior generations have addressed it?)
i. Do we look at traditions of what people DID, or
what states PROHIBITED?
b. Implicit in the concept of ordered liberty such that neither
liberty nor justice would exist if they were sacrificed
VI.
c. A “careful description” of the asserted fundamental liberty
interest
h. Sexual Orientation
i. Lawrence v. Texas
1. Two men were arrested for violating Texas sodomy law
2. Court strikes down the law on due process grounds. Privacy
penumbra from Griswold applies outside of marriage too.
a. No level of scrutiny is defined by the court here, it feels
like heightened scrutiny but not sure. Court said law was
“illegitimate” which would suggest rational basis scrutiny.
b. Court did NOT say that private sexual conduct was a
fundamental right
c. There is no state interest here: Moral disapproval is not
valid.
3. NOTE: seems like majority totally ignored the Glucksberg test
4. Moral disapproval v. law enacted with animosity towards a group
ii. Obergefell v. Hodges
1. Court holds that state laws against same sex marriage are
unconstitutional. Analyzed under due process, even though under
equal protection would have been easier. The right to marriage is a
fundamental right, same sex couples should be allowed under
equal protection.
a. Court identifying a right for the first time
2. Privileges and immunities
3. Some form of heightened scrutiny here but not sure.
i. Procedural Due Process
i. The minimal requirements of notice and a hearing guaranteed by the due
process clauses of the 5th and 14th amendments especially if the
deprivation is of a significant life, liberty, or property interest.
1. Notice
2. Opportunity to be heard (Hamdi relies on Matthews test to require
that there be notice of the factual basis of the claim and a fair
opportunity to be heard).
EQUAL PROTECTION
a. 14th amendment equal protection clause must treat persons or classes of persons
the same as it treats persons or classes of persons in like circumstances.
b. Today’s jurisprudence requires legislation to have a rational basis BUT if it
involves a fundamental right (voting, race, etc.) then it must withstand strict
scrutiny.
c. Dred Scott v. Sandford
i. Court held that free slaves are not US citizens because they were
historically thought to be unequal, and naturalization resides exclusively
with the federal gov’t.
ii. The Missouri compromise was unconstitutional because it violates the 5th
amendment due process by taking of slaves as property.
VII.
iii. Dissent: blacks were included as citizens and allowed to vote to ratify
constitution they are included in the “people”.
d. Strauder v. West Virginia
i. Black man convicted of murder by an all-white jury, says he wants equal
protection from the law.
ii. Court held that this is a state action that conflicts with the equal protection
clause and is therefore unconstitutional. This is about the enactment of a
state law that is based on race, needs to withstand strict scrutiny.
e. Reconstruction Cases (Warren Court)
i. Civil Rights Cases
1. Black men sued theaters, hotels, ect. For refusing to admit them.
The civil rights act of 1875 has been passed to allow equal access
regardless of race.
2. Court held that the civil rights act was unconstitutional. The power
given to congress in the 14th amendment section 5 is action to
remedy bad state conduct. These entities are owned by
individuals, so congress doesn’t have the power to act.
3. This is not about slavery, and refusing to admit does not constitute
involuntary servitude.
4. Dissent: these businesses are quasi-public and should be able to be
regulated. The 13th and 14th amendments give congress to
eliminate the “badges of slavery”.
ii. Plessy v. Ferguson
1. State law to require separate but equal train cars for whites and
blacks
2. Court held the state law is constitutional, it does not violate 13th or
14th because blacks are not being excluded, just separated.
3. Dissent: everyone knows this is about excluding blacks from white
cars, the law interferes with the liberty of blacks.
LEVELS OF SCRUTINY
a. Due Process – freedom from the gov’t doing something to you
b. Equal Protection – the gov’t has to treat you the same as it treats others in
important interests
c. Prima Facie Equal Protection Test
i. To show that a law involves a suspect class and discriminates towards a
fundamental right to get heightened scrutiny, the plaintiff must show
1. The law has a disproportionate impact on a particular group; and
2. The laws purpose was to have that impact.
d. Strict Scrutiny
i. Equal protection analysis it is applied to suspect class (race)
ii. Due process analysis it is applied to fundamental rights (marriage)
iii. **Standing in race based cases can be “the ability to compete equally”
iv. **Facially discriminatory statute is one that uses race as a relevant factor
for government action
v. Test:
1. Can only withstand strict scrutiny IF:
a. Compelling State Interest
b. Narrowly Tailored (best means available to achieve
asserted goal)
vi. Brown v. Board of Education (Equal Protection)
1. Segregated schools, brown had to walk 21 blocks to get to her
black school.
2. Court held that the separate educational facilities were inherently
unequal. Separate but equal in public education violates the 14th
amendment, but this DOES NOT overturn Plessy.
vii. Bolling v. Sharpe
1. Segregated public schools in DC and whether or not this violates
the due process clause of the 5th amendment (5th amendment has
no equal protection clause)
2. Court held that segregation in public schools is not reasonably
related to any proper government objective, so the burden is an
arbitrary deprivation of liberty under the due process clause.
a. Classification based solely on race must be highly
scrutinized
3. Compare this with Korematsu – race based classification upheld
giving deference to military.
viii. Loving v. Virginia
1. Statute that bans interracial marriage where one person is white
2. Court holds that this violates DP and EP of 14th because a state
objective of discrimination is not permissible.
3. NOTE: Equal application of the law does not immunize it from the
equal protection clause.
ix. Washington v. Davis
1. DC police department gave a written test to become an officer.
Plaintiff claims racially discriminatory based on disparate impact.
2. Court holds that the fact that police test produces disparity does not
mean that strict scrutiny is applied. To use strict scrutiny the law
must be traced to a racially discriminatory purpose.
x. Grutter v. Bollinger
1. Michigan law school sought to achieve diversity by giving weight
to the race of each applicant.
2. Court holds that strict scrutiny requires a compelling state interest
and for that interest to be narrowly tailored.
a. A diverse student body is a compelling state interest,
Michigan presumed to have good faith.
b. Race as a “plus” in an applicant’s profile just cannot be the
defining factor.
c. Admission policy has to be limited in time
3. Thomas Dissent: there are only two justifications for using race as
a compelling state interest, 1) Korematsu and 2) remedying past
discrimination.
e. Intermediate Scrutiny
i. Quasi-suspect classifications (sex/gender). If a statute contains a quasisuspect classification it must be substantially related to the achievement of
an important governmental objective.
ii. Test:
1. Specific important state objective
2. Exceedingly persuasive justification for the law??
3. Law is substantially related to achievement of that objective
iii. Rationale for not using strict scrutiny is that while sex and gender are
immutable characteristics there are meaningful differences between them
that are likely to be legitimately considered in governmental objectives.
iv. U.S. v. Virginia
1. VMI a military academy doesn’t admit women. They are sued,
during litigation they establish that VWIL for women, but it is not
the exact same as the boy’s academy.
2. Court holds that VMI exclusion of women violates equal
protection. There is no evidence that VMI exclusion of women
furthers a state objective of diversity in schools. VMI has not
shown an “exceedingly persuasive justification” for the exclusion.
3. Concurrence: separate but equal would have been okay
4. Scalia Dissent: diversity of schools of Virginia is a valid objective,
and having a single-sex school is substantially related to achieving
that.
f. Rational Basis Scrutiny
i. This is the default level of scrutiny. Used when a statute does not
implicate a fundamental right or suspect class under the Due Process
Clause or Equal protection. The court will uphold a law if it bears a
reasonable relationship to attainment of a legitimate governmental
objective.
ii. Test:
1. Legitimate State Interest
2. Rationally Related
iii. “Rational basis with teeth” may occur when the target of a law is a
politically unpopular group
iv. U.S. v. Carolene Products
1. Congress passed the Filled Milk Act which criminalized shipment
in interstate commerce skimmed milk compound. Carolene
accused.
2. Court holds that the FMA is constitutional.
a. The power to regulate interstate commerce is the power to
prohibit certain items
b. We presume constitutionality as long as there is a rational
basis for the law, fake milk is rationally related to public
health.
3. NOTE: Footnote 4 Important
a. There are only three situations where stricter scrutiny
should apply: 1) constitutionally enumerated rights, 2)
legislation that restricts the political process, and 3) in
instances where discrete insular minorities cannot protect
themselves.
b. This would mean that rights that are not enumerated such
as the right to contract only deserve rational basis – this
view rejects that of Meyers, but those cases have been
credited by Griswold’s “penumbras”
v. Williamson v. Lee Optical
1. Oklahoma state law made it unlawful for a non-licenses person to
fit a lens to a face without a prescription
2. Court held that this policy is constitutional. If there is no evil to be
remedied, and the state legislature could have though this was a
rational remedy, then law will be upheld. (Legislature can be
wrong and that is OKAY as long as they COULD have thought it
was rational).
vi. NYC Transit v. Beazer
1. NYC TA promulgated a policy that would not hire people in a
methadone maintenance program.
2. Court held that this was constitutional. Being aware of a racial
disparity is not enough to invoke strict scrutiny. TA was motivated
by a legitimate interest in operating a safe transportation system,
not animosity towards any specific group of people. Its policy is
rationally related to serving that purpose.
3. NOTE: policy here wasn’t directed at a specific group of people, it
was applied generally to all applicants.
vii. City of Cleburne v. Cleburne (Rational basis with teeth)
1. A city center denied a permit to build a resident house for the
mentally disabled.
2. Court held that the correct response to this problem is not to make
a new quasi-suspect group. Analyze under rational basis. Under
that, there is no legitimate state interest for denying the permit.
3. Court seems to be applying rational basis WITH TEETH here.
Under rational basis if legislature thought this could have been
rational way to remedy than it would have passed.