CONSTITUTIONAL LAW
Professor Coenan, Fall 2019
Topic
Page #
Federalism and Congressional Power (Unit I)
Judicial Review
Enumerated & Implied Powers
Commerce Clause
Federalism Based Limits on Congressional Power
Commandeering & Preemption
Tax & Spending Powers
2
3
5
6
11
12
13
Federalism-Based Limits on State Power (Unit II)
Type of Preemption
Dormant Commerce Clause (analysis/market participant exception)
Privileges and Immunities Clause of Art. IV
15
15
17
22
Separation of Powers (Unit III)
Emergency Constitutionalism
Appointments and Removal
Limits on Judicial Power/Art. III Standing
23
25
26
28
Fourteenth Amendment & Incorporation Debate (Unit IV)
Substantive Due Process Arguments
SDP and Privacy
SDP and Familial Relationships/Right to Die
SDP and Equal Protection of Sexual Intimacy/Privacy
Fundamental Right to Vote
29
31
33
35
37
39
Equal Protection (Unit V)
Raced Based Classifications & Intentional Discrimination
Racially Neutral Laws
Affirmative Action & Racial Preferences in Education
Sex Discrimination & Equal Protection
Fundamental Rights Prong of Equal Protection
40
42
43
44
47
50
First Amendment Rights to Free Speech & Religion (Unit VI)
Content Discrimination Principle
Forum Analysis
Free Exercise & Establishment Clauses
51
55
58
61
Congress’s Power to Enforce Reconstruction Amendments (Unit VII)
State Action Possibilities
62
65
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FEDERALISM AND CONGRESSIONAL POWER
(Unit I)
Articles of Confederation
- Article III establishes a “League of Friendship” among the individual states. Each state
retains its own sovereignty, freedom, and independence.
o Confederation Congress consisted of each state sending 2 to 7 delegates. Each
state would only get one vote in Congress though.
o Splits among state delegates prior to votes on Congressional issues slowed down
the process of accomplishing legislative activity.
- No power of the federal government to tax. Congress had to requisition the states for
money...states not obligated to pay as they struggled to raise funds themselves.
- No federal court system, state courts resolved all matters.
- Confederation Congress would only settle disputes amongst the states over boundary
issues, no other legal matters  home cookin in state courts.
- No official leader of the Confederation, states could make treaties with whomever.
- Drafters went out of their way to limit national power  no ability to enforce federal law,
no ability to regulate interstate commerce.
o If interstate trade wars arose, no government entity could step in and referee.
o Economic, foreign policy, military issues all arise from limited federal power and
state autonomy.
1787 Philadelphia Convention
- Called originally to propose changes to the Articles of Confederation, delegates quickly
realize (and some had intention to) need to draft an entirely new Constitution.
o James Madison  pioneers effort to create new constitution. Proposes new found
charter to displace the Articles.
- Thematic Differences Between Constitution and Articles
o Constitution is intended to produce a strong national government with means to
enforce laws and check state actions.
o Bi-Cameral Legislature  House based on population, Senate based on equal
representation.
 New Congress can tax the people directly.
 New federal court system can enforce laws against the people.
 Independent Executive branch will conduct diplomacy and appoint
officials.
o Supremacy Clause  Federal law trumps state law when laws conflict.
o 3/5 Compromise – Slaves count as 3/5 of a person for purposes of assessing
population in number of representatives in the house.
- Reconciliation of Article XIII of Confederation (not allowing for changes to Articles
unless vote is unanimous amongst state legislatures) with Art. VII of Constitution (9/13
of states conventions must ratify) – Conventions do not ask state legislatures to vote,
Ratification Conventions are comprised of delegates aka “the people” ratified the
Constitution, not the state legislatures.
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Judicial Review
How does the Supreme Court get the power to strike down unconstitutional laws? No express
statement in the Constitution grants the courts the power of judicial review.
Marbury v. Madison (1803)  Power of Judicial Review
- Background facts: Election of 1800, Thomas Jefferson defeats John Adams. Jeffersonian
Republicans take over against Federalists. Federalists pass Circuit Court Act in an effort
to retain power, Adams issues last minute commissions to fellow federalists appointing
them government jobs. New Secretary of State James Madison never gets the
commissions to the men appointed by Adams. John Marshall has become the Chief
Justice of the Supreme Court after his time as Secretary of State for John Adams.
-
-
William Marbury seeks writ of mandamus (judicial order to a public official to exercise
power in a particular way)
o Marbury files his complaint with the Supreme Court as opposed to lower court.
o At the time of the opinion, court had yet to strike down a law. Stuck in a power
struggle because simply saying the writ should be issued would clearly be ignored
by Madison.
Three (3) Issues presented to the Court that Marbury must prevail on to obtain his writ.
o 1) Under the law, is Marbury entitled to the commission?
 Marshall quickly concludes that Marbury has a right to the commission
under common law.
o 2) Is the writ of mandamus an appropriate remedy?
 Court treads lightly to avoid intruding upon the executive branch and
disavowing the decision to issue commission to a qualified person.
 Court draws distinction between a political act and a legal act of not
delivering the commission (essentially property) to Marbury.
 Only thing that separates a political act and legal act is whether or not a
legal right to a remedy exists.
o 3) Does the Supreme Court have the power to issue the remedy? Is it within its
jurisdiction to issue a writ of mandamus in this instance?
 Original Jurisdiction must be established by both statute and Art. III in
federal courts.
 Judiciary Act of 1789 §13  Marshall construes broadly. Creates a
conflict between the Judiciary Act and Constitution as to whether a writ of
mandamus can be issued as the Constitution only grants Supreme Court
original jurisdiction in certain express cases. The Judiciary Act states the
court has OJ in some cases and Appellate Jurisdiction in others.
 In this case, there’s no appellate review. According to Judiciary Act, writ
of Mandamus can be issued when court has Appellate Jurisdiction.
 **Opportunity for Judicial Review now established**
 Marshall must decide which law is superior in this instance, the
Constitution or the Judiciary Act?  Marshall establishes that all laws
repugnant to the Constitution are therefore unconstitutional.
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
-
Marshall construes §13 of the Judiciary Act of 1789 broadly and Art. III,
§2 of the Constitution narrowly to discover the constitutional conflict.
Judicial Power is extended to all cases arising under the Constitution of the United
States.
Martin v. Hunter’s Lesee (1816)  Supreme Court’s Authority to review State Court judgments
- Issue: What happens if a state court renders a judgment on federal law? Does Art. III
grant appellate jurisdiction to review state court decisions?
o State judges claim they should have final say on federal law questions.
- Supreme Court establishes three ideologies:
o 1) It is a misunderstanding to suggest that states are entitled to absolute deference
on questions of federal law...Con. design centralized national power.
o 2) Supreme Court needs to be able to review state court judgments of federal law.
o Review of state court judgments are more important than reviewing acts of
Congress because state court judges may be subject to local election by citizens.
 State judges may bring biases that undermine federal law...judges may be
susceptible to outside influences.
o 3) Even if Supreme Court is wrong about state judges being biased, review of
state decisions is crucial for UNIFORMITY in interpreting the constitution.
 Can’t have each state interpreting ambiguities differently, federal law
cannot mean 50 different things in each state. Need a final say on issues.
Federalist No 78
- No legislative act contrary to the Constitution can be valid. “To deny this would be
to affirm that the deputy is greater than his principal.”
- It is far more rational to suppose that the courts were designed to be an intermediate body
between the people and the legislature.
o The courts must declare the sense of law; and if they should be disposed to
exercise WILL instead of JUDGMENT, they would be acting as a legislative
body.
Vertical Federalism – balance of power between the federal government and states. To what
extent can the federal government do things that encroach upon sovereignty of the states?
Fundamental Principle of Con Law #1
- Federal power is limited in scope, but supreme in operation. To the extent the federal
government has a power to do certain things, its exercise of that power will displace any
state laws or policies that conflict with it.
o Where federal government is empowered to act, federal government is supreme.
But it is not always in power to act and may only pass laws or regulate for certain
types of activities.
o Before passing any conflicting laws, it must be verified that Congress has the
power to pass the law in the first place. IF CONGRESS DID NOT HAVE THE
POWER, LAW IS NULL AND VOID.
o Look to Article I, §8  finite set of enumerated powers. (express powers)
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
Default rule in Art. I, §I, Congress has no power unless provided by the
Constitution. (can be express or implied).
Enumerated and Implied Powers
Article I, §8 = enumerated powers granted to Congress  Powers to tax, provide for the
common defense, borrow and regulate money, regulate commerce, establish post offices etc.
- Article I, §10 – “All powers not delegated to the United States by the Constitution, nor
prohibited by it to the states, are reserved to the States respectively or to the people.”
McCulloch v. Maryland  Implied powers of Congress/ability to tax federal government
- 2nd Bank of the United State chartered by Congress. Largest branch found in Baltimore,
MD. MD state legislature passes law placing heavy tax on 2nd Bank for issuing notes and
currency in MD.
- Issue: Two parts. Can Congress create a national Bank? Does MD have the power to tax
the Bank?
- Part I
o Two subparts: Nothing in Constitution prohibits states tax on bank. Assuming
MD can’t validly tax the bank, MD argues the bank is unconstitutional because
Congress does not have the express power to charter a national bank.
- Looking to Art. I, §8, Congress does not have enumerated power to create a national
bank. BUT Congress has implied power to carry out enumerate powers.
o Enumerated powers are to be construed broadly. Implied powers allow for the
proper administration of enumerated powers.
- MD argues the federal government only has the power because the states granted those
powers to the federal government.
o Marshall rejects this argument...the ratification process of the Constitution
included the people, not the states who ratified the Constitution. Idea of “popular
sovereignty is born.”
o People ceded some of their sovereignty to the federal government and residual
sovereignty went to the states.  federal gov. not dependent upon the states.
 (Food in fridge while house-sitting example...I say have anything in my
fridge, this implies you can use the microwave and stove to warm it up.)
- **If the federal gov. is given power to tax, borrow money, and regulate commerce,
national bank charter will help to carry out these powers**
- Each enumerated power in Art. I, §8 comes with it implied powers associated with
effective operation. Enumerated powers = goals. Each goal allows for actions to help
achieve those goals.
- Three Counter Arguments from MD
o 1) Necessary and Proper Clause actual does not help support implied powers.
However, because absolutely necessary (as seen in Art. I, §10) and necessary and
proper mean two different things, framers purposely used necessary and proper to
envision implied powers.
o 2) Congress could potentially abuse power to make any act an implied power.
 Marshall says there is a test for implied powers Is there a legitimate
end? Is the power appropriate/plainly adapted to that end?
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
Pretext Principle – sometimes an implied power satisfies the test, but the
true goal is effectuated by an enumerated power.
o 3) If framers meant to grant implied powers, why not place them in §8?
 Marshall states that listing all subsidiary powers is not reasonable because
the Constitution is meant to live on forever and must be adaptable. Must
have built in flexibility and a strict list of powers limits opportunity for
change in the future.
Part II  Is the tax imposed by MD illegal?
- Can MD pass state laws that frustrate the operation of federal law? MD has not directed
contradicted any federal laws, but the law can impede the Bank’s ability.
- Two Takeaways from Part II:
o 1) If federal government taxes all state banks, financial burden is spread out
amongst the states. Meaningful political redress will occur if tax is too high.
 Can’t allow heavy state tax on federal government, all states are burdened
while MD makes significant money.
o 2) Marshall says MD could still tax the Bank on other basis (could tax the
property the bank sits on because a property tax is universal among all citizens in
the state).  Uniform neutral rule of taxation on federal entity is appropriate.
Commerce Clause
Article I, §8, clause 3 – Congress has the power to regulate commerce w/ foreign nations, and
among the several states.
Gibbons v. Ogden – first commerce clause interpretation
- NY law grants monopoly to operate ferries in NY waters to Ogden. Gibbons starts
running a competing ferry service because he is given a license under federal law.
- Issue: Is a state law valid if the law infringes on Congress’ authority to regulate interstate
commerce?
-NO!
o Simply driving a boat, not commerce. Transporting goods from one state to
another = commerce.
o Marshall views commerce as broad interactions between people, places, goods,
and services. “Among the States” should mean any mingling between states.
o “Commerce among the states cannot stop at the external boundary line of each
state, but may be introduced into the interior.
- Commerce Clause interpretation remains dormant for much of US history.
- **Progressive Era calls for more federal regulations to safeguard health and wealth of
laborers during Great Depression**
- “The power to regulate commerce is vested in Congress as absolutely as it would be in a
single government, having it its constitution the same restrictions on the exercise of
power as are found in the Constitution.”
o New Deal legislation envisions increased role of federal government.
- “Cooley Doctrine” – Cooley v. Board of Wardens of the Port of Phila. – court upheld the
state law using a test they called the subject matter regulation test.
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o The approach tried to figure out whether states were exceeding their authority by
looking at the statute. If an area of local concern that doesn’t touch upon a
subject of national concern, then history tells us that the state can do that.
o Problem with this approach because there is no bright line rule between what is a
national and local concern. But hasn’t been explicitly overruled.
 Direct v. Indirect – is the regulation directly or indirectly affecting
interstate commerce?
 If the regulation is only indirectly affecting, then it’s ok.
This approach has been rejected too because it’s not clear enough
COMMERCE POWER DOCTRINE
Pre
1937
Post
1937
“Channels of commerce” or “in
commerce” ideology
“stream of commerce”
“affects commerce”
“Commerce prohibiting technique
to achieve non-commercial aims”
Court holds laws that are masked
as regulating commerce but really
aim to regulate other activities
unconstitutional
Product --------|--------Market
Made
state line sold
Court looks to distinguish
between “direct/indirect”
activities.
NO aggregation determinations
made by court.
US v. Darby overrules Hammer v.
Dagenhart. No pretext principle
or motive inquiry as to why
Congress passed legislation.
Stream of commerce does not
include production and sale.
Congress cannot regulate
production and sale issues.
--------------“affects commerce” renders
stream of commerce doctrine
moot for determine
constitutionality of laws .
“Substantial affects on
commerce + aggregation of
events” may now deem
legislation by Congress
constitutional as affecting
interstate commerce.
Hammer v. Dagenhart – channels of commerce ideology (distinguish Congress’ intent)
- ISSUE: may congress regulate the sale of goods created by child labor once theyre placed
in the stream of interstate commerce?
- NO, because only states may regulate purely local production
- Commerce does not equal production
- Congress attempts to regulate interstate shipping of goods manufactured by child
labor...goal of the legislation does not pertain to commerce, rather to end child labor.
- By aiming to change interstate commerce regulations, Congress hopes the social evils of
child labor will change  attempts to change intrastate activity.
- Court draws a distinction between the motive of the law and the power granted by the
Constitution. – dissent disagrees with majority, Congress should be warranted to achieve
other goals outside the interstate sale of goods by enacting laws under Commerce clause.
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-
-
PRODUCTION IS A PURELY INTERNAL AFFAIR; DISTINGUISHABLE FROM
LOTTERYS AND BOOZE BECAUSE IT IS THE CONSUMPTION OF THOSE THAT
CREATE THE HARM ACROSS STATE LINES; LATER OVERRULED.
o Pre-1937, court attempts to define a narrow idea of commerce.
o Pre-1937 manufacture/production of items are not yet in the stream of interstate
commerce. Sale of items at retail level also not within stream of commerce
Schechter case (regulation of wages for employees at local poultry shop not within
Congress’ power to regulate commerce)
Carter v. Carter Coal – Bituminous Coal Conservation Act rejected by the court as the
labor provisions of wages and hours fell upon production and not commerce.
“Affects Commerce Theory”
- Activities may not leave state (intrastate activities) or fall within stream of commerce, but
the activities affect interstate commerce. Ex: retaliation law against those involved in
interstate commerce.
- Pre-1937 – courts distinguish between direct/indirect effects of Congress...similar to
proximate cause test of torts.
o Any laws determine to be indirect to regulating commerce are not enforceable by
the courts.
o Court does not allow for aggregation of all the individual small activities to show
their effect on interstate commerce as a whole.
- Post 1937 – Courts don’t care what the motive is behind laws regulating interstate
commerce. No need to determine what Congress intended with the law.
- In order for intrastate activity to fall within Congress’ power, the activity must
substantially affect interstate commerce.
o Look to the magnitude of activity + aggregation is now allowed to measure the
substantiality of affects.
NLRB v. Jones & Laughlin Steel Corp. – 1937 affects commerce
- J+L is the fourth largest producer of steel in the country. NLRB ordered the company to
end discrimination and coercion towards any employees engaging in union activity.
When the company failed to comply, the NLRB sought judicial enforcement of their
regulations on labor.
- Although activities may be intrastate in character when separately considered (i.e. wages
and hours of local workers), if the activities have such a close and substantial relation
to interstate commerce their regulation is essential and appropriate to prevent burdens and
obstructions on commerce.
o This case is distinguishable from Schechter and Carter because the effect of the
labor practice involved in NLRB would reach a much larger scale.
o The labor strife at J+L would not be indirect and remote, but rather immediate and
catastrophic on interstate commerce.
- Court holds the labor dispute at what appears to be the local level is not so far remote and
indirect that violations of the National Labor Relations Act would not affect interstate
commerce.
United States v. Darby 1941
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-
-
Defendant is Georgia lumber manufacturer alleged to violate the Fair Labor Standards
Act of 1938.
Two Issues: 1) can Congress prohibit the shipment in interstate commerce of lumber
manufactured by employees whose wages/hours are less than or more than the prescribed
minimum and maximum; 2) can Congress prohibit the employment of workers in the
production of goods for interstate commerce at other than prescribed wages; IN OTHER
WORDS, DOES CONGRESS HAVE THE ABILITY TO REGULATE THE
WORKING CONDITIONS OF WORKERS WHO MAKE GOODS TO BE SOLD IN
INTERSTATE COMMERCE?
o Motive and purpose of a regulation of interstate commerce are matters left to the
Legislature to decide.
Court overrules Hammer v. Dagenhart***
o The act aims to diminish substandard labor conditions and is directed to regulate
commerce by eliminating unfair competition by requiring all manufacturers to pay
their workers a certain minimum and ensure they may only work a certain max.
o Goal is to suppress the nationwide competition in interstate commerce by goods
produced under substandard labor conditions.  does not matter how much a
company produces or where they ship the goods.
Wickard v. Filburn – post 1937 aggregation of activities.
- Filburn is growing wheat in excess of the statutory limits prescribed for the time period.
He will not place the corn in to the market, rather wants to use it for his own personal
benefit.
- In order for intrastate activity to fall within Congress’ power to regulate, the activity must
substantially affect interstate commerce.
o Court looks to the magnitude and aggregation in order to measure the substantial
effects of intrastate activity.
- If many people were allowed to do as Filburn did (grow wheat to sell and for
themselves above the regulated limit), the desire for wheat on the market would
severely decrease.
- Filburn = classic aggregation case to allow Congress to regulate activities going on
in each individual state, rather than among multiple states.
Notes on cases:
- The first holding in Darby, overruling Dagenhart, permitted Congress to regulate the
literal shipment of goods across state lines even if the motive of the regulation was to
control aspects of local production.  “in commerce” rationale.
- Jones & Laughlin, Darby, and Wickard all relied on the substantial effects of local
economic activity on interstate commerce as a basis for congressional authority.
 “substantially affecting commerce” rationale.
- Wickard set forth the principle of “aggregation,” which allows Congress to regulate
activity that, taken in isolation, does not substantially affect interstate commerce. But,
multiple iterations of that same activity would substantially affect interstate commerce.
o Morrison and Lopez will limit the aggregation principle to cases of “economic” or
“commercial” activity.
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Commerce Power Today (Post 1937 Doctrine)
Heart of Atlanta Motel v. United States (1964) – Civil Rights Act and Commerce Clause
- Motel located in downtown Atlanta challenged the Civil Rights Act as violating private
economic conduct that Congress lacked power over to regulate.
- Motel wished to continue its practice of denying African Americans the ability to rent
rooms.
- Court unanimously upholds Title II of the law which covers “inns, hotels, motels” etc. on
the finding that African Americans were severely burdened by such discrimination,
causing them travel inconvenience amongst the state and discouraging travel in general
for people of color.
o “The determinative test of the exercise of power by Congress under the
Commerce Clause is simply whether the activity sought to be regulated is
‘commerce which concerns more States than one’ and has a real and
substantial relation to a national interest.”
o Although Title II dealt with a moral problem, it does not detract from the fact that
racial discrimination is disruptive on commercial intercourse.
- Civil Rights Acts = moral foundation with a Commerce Clause cloaking.
o Keep in mind, Congress can only pass laws that prohibit discrimination by State
actors, not private actors.***
-
Katzenbach v. McClung (Ollie’s BBQ case) – similar to Heart of Atlanta in that it was a
local business. The restaurant buys food in interstate commerce which they eventually
sell to their customers.
o Does a commercial enterprise serving the public fall within the reach of
Congress’s commerce authority when it sells goods a substantial portion of which
have moved in interstate commerce? Yes.
United States v. Lopez (1995) – intrastate activity does NOT affect interstate commerce
- Congress passed the Gun-Free School Zone Act of 1990. Lopez, a 12th grader in San
Antonio, was convicted of knowingly possessing a concealed handgun at his school.
- Court says that unlimited powers of Congress to regulate commerce is unconstitutional,
lays out the three categories of activity that Congress may regulate under the
commerce power.
o 1) Congress may regulate the use of the channels of interstate commerce.
o 2) Congress may regulate and protect instrumentalities of interstate commerce, or
persons or things in interstate commerce even though a threat may come from
only intrastate activities.
o 3) Congress may regulate activities having a substantial relation to interstate
commerce.
- In order for the Gun-Free School Zone Act to be sustained, it must be found to be an
extension of Congress’ power to regulate under category 3.
o Government argues that possession of firearms in local school districts may
cause violent crimes, which increase costs spread amongst population; violent
crimes decrease desires to travel; guns in schools diminishes education process.
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o Lopez’s defense to his conviction is the assertion that Congress DID NOT HAVE
power to pass the act.
Court says that under the theories presented by the Government, Congress would
have nearly unlimited power under the commerce clause.
Piling inference upon inference in order to show that a law is regulating interstate
commerce does not suffice to pass the “substantially affects” test.
o Dissent argues that aggregation could be used to show that the effect on education
and interstate commerce from school shootings does in fact have a substantial
relation.
United States v. Morrison (2000) – aggregation of violent acts against women.
- VAWA states person who commits a crime of violence motivated by gender . . . shall be
liable to that party in an action to recover damages.
- Defendants challenge the constitutional power of Congress to enact the law.
- Court does not purport to overturn precedent, finds that Congress has gone too far past its
authority and past the holding in Wickard allowing for aggregation.
o Court establishes “substantial effect” on interstate commerce as the standard
for future cases. Not just any effect on commerce will suffice.
o Court says Lopez + Morrison activities are NOT economic in nature to
qualify as applicable under the Commerce Clause***
 Activities do not include buying or selling anything. Court has never
allowed Congress to regulate non-economic activities (conflicts with
Wickard).
o Wickard = the foregoing of entering the marketplace by growing own wheat.
Congress was enforcing legislation pertaining to a regulatory scheme.
- Holding: Congress may not aggregate non-economic activity to a substantial effect on
Interstate Commerce.
Gonzalez v. Reich (2005) – Controlled Substances Act and Commerce Clause.
- Respondents are residents of California who suffer from a variety of medical conditions
and cultivate their own medical marijuana . . . seeking declaratory relief prohibiting the
enforcement of the CSA.
- Issue: Does Commerce Clause, and congress’s ability to regulate commerce, allow
Congress to regulate personal cultivation and consumption of medicinal marijuana
WITHIN A SINGLE STATE?
o Court holds yes. Court finds that CSA is a comprehensive regulatory scheme that
covers a class of economic activity, namely the buying and selling of weed.
o Court uses Wickard to decrease activity in the market for marijuana because it is
illegal. Court pre-supposes that those who grow their own weed will
ultimately grow excess amounts which can then be sold to other people, thus
an economic and interstate aspect is prevalent.
 Essentially the opposite of Wickard in that the Court aims to stop growing
wheat because it will help increase activity in the wheat market. By
decreasing marijuana cultivation court hopes to prevent a market from
appearing, thus decreasing the market.
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
-
Raich seen as the exception to the exception when dealing with regulating
non-economic activity.
Some activities are non-economic in nature but because it is regulated in compliance with
a large statutory scheme, class of activities regulated is seen as economic and Congress’
Commerce Power applies.
National Federation of Independent Business v. Sebelius (2012) – Obamacare and CC.
- Affordable Care Act challenged for requiring individuals to purchase health insurance or
be subjected to a penalty.  intrastate decisions by individuals whether or not to
participate in the market place that will have interstate commerce effects.
o Because most people paying into health insurance pool are healthy, by only
having people purchase health insurance when they become sick the industry
would collapse for lack of money to pay out on claims.
o Lopez + Morrison  regulated activity must be economic. Decision not to
participate in the purchase of health insurance seems economic.
o Respondent argues that the individual mandate compels rather than regulates, the
individual mandate is an attempt to regulate inactivity.
o Congress cannot regulate inactivity, cannot compel someone to participate in a
market (can’t force me to purchase broccoli if I don’t want to).
- Court holds the individual mandate is not enforceable under a Commerce Clause or
Necessary and Proper Clause theory because it forces action; the individual
mandate forces someone to become a market participant to get them within the
commerce clause, but such a compelling is unconstitutional.
- “The individual mandate does not regulate existing commercial activity. It instead
compels individuals to become active in commerce by purchasing a product.”
Federalism-Based Limits on Congress’ Enumerated Powers
Internal vs. External Restraints on Power
- Lopez, Morrison and NFIB all developed internal restraints on the commerce power
through heightened review of the scope of Congress’s authority under Art. I §8.
- Court also developed external restraints on Commerce Power rooted in the 10th and 11th
Amendments.
o 10th Amendment  “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.”
- There must be some outer limits on federal power to interfere with the core
functions implicit in state sovereignty.
- National League of Cities v. Usery (1976)  state autonomy defense to federal
regulations of minimum wage and maximum hours for state and local government
employees. Court holds that Congress cannot mandate how the individual states’
traditional government functions will be ran and that States are free to develop
their own employer-employee structure and relationships.
- Garcia v. San Antonio Metro. Transit Authority 1985  overturns state immunity
from federal regulation...States cannot establish their own minimum wages and
hours contrary to federal laws.
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o Previous attempts to distinguish traditional and non-traditional government
functions create too much confusion.
o Litigation and uncertainty creates need for simplify. Any contention that Congress
would use power to intrude upon interest of states is debunked by the “Political
Safeguards and Federalism” in that states elect representatives who can lobby for
individuals at federal level if Congress oversteps boundaries regulating states
Anti-Commandeering Principle
- Federal government cannot commandeer the states to employ regulatory powers the
federal government wishes to see enacted.
- States retain the right to regulate all matters which Congress does not have the express or
implied authority to regulate on a federal level.  Way to avoid Commandeering is the
promulgate a federal regulation that will trump any state regulation of the activity.
New York v. United States (1992) – Anti-Commandeering Principle & Nuclear Waste.
- Federal Act required states to provide for the disposal of nuclear waste generated within
their borders by providing three “incentives:” 1) “monetary” incentives; 2) “access:
incentives; 3) “take title” sanctions.
o NY challenges the take title provision which provided that a state that failed to
provide for disposal of waste by a certain date was liable for all damages
generated by the waste’s generator or owner.
o Strongly incentivizes states to dispose of waste properly and on time.
- Act falls within the Commerce Power in isolation, however external check declares the
law unconstitutional  impermissible to commandeer the states to employ their own
regulatory schemes over the waste.
o “Allocation of power contained in the CC authorizes Congress to regulate
interstate commerce directly; it does not authorize Congress to regulate
government’s regulation of interstate commerce.”
o “Where Congress encourages state regulation rather than compelling it, state
governments remain responsive to the local electorate’s preferences; state
officials remain accountable to the people.”
o Congress would be insulated from blowback from local electorate.
- Court holds the “take title” provision crosses the line distinguishing encouragement from
coercion...provision offers state a choice to either accept ownership or regulate according
to instructions from Congress.
- The Federal Government may not compel the states to enact or administer a federal
regulatory program.
Prinz v. United States (1997) – Anti-commandeering principle extends to state executive
officials and executive powers.
- Can’t require State’s officers or political subdivisions to administer or enforce a
federal regulatory program (in this case, can’t force local gov. to conduct
background checks on handgun purchasers).
Court Justifies Prohibition on Commandeering by:
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1. State dignity + state autonomy. Dignity of states is offended by being told how to
regulate something, especially is state knows what/how to regulate something specific.
2. Concerns of accountability  Congress is insulated from decisions to regulate. States
face backlash from common voters or the decision on who to reprimand for poor
regulatory systems becomes ambiguous.
3. Unfunded Mandates  If the federal gov. can effect regulations, then it can direct
states to use money on its behalf and not give the state any funding for the
regulations.
a. Fed. Gov. would get to dictate policy w/o bearing any costs of enforcement.
Commandeering v. Preemption - Congress may preempt state authority, but may not
commandeer the states to act in a certain regulatory manner.
- Commandeering occurs when Congress passes a law, telling the states how to regulate
the people of the state. Laws places pressure on citizens. Congress  States  People.
- Preemption occurs when Congress passes a law that regulates the citizens directly,
skipping over having the states perform the regulations.
o Any state law that conflicts the federal law would be preempted. Constitution says
federal law is Supreme to state law.
- Murphy v. NCAA  identifies key feature of commandeering as being the state’s ability
or inability to act in a certain way.
o If Congress when back to PASPA and said, “All sports betting is illegal in the
United States.” The law is now a preemption and constitutional.***
- A law is more likely to run afoul if it makes the states bear the cost of a federal policy.
Murphy creates costs by not allowing the states to collect tax revenue on gambling.
National Taxing and Spending Powers
Apart from the Commerce Power, Congress’ power to tax and spend have also had
significant impact on the allocation of the authority within the federal system.
- Art. I, §8 states: “Congress shall have power to lay and collect taxes, duties, Imposts, and
excises and pay the debts and provide for the common defense and general welfare of the
United States.”
- ***Constitutional questions come into pay when taxation is used as a way to enforce and
influence various forms of individual behavior.***
- Federal tax does not cease to be valid merely because it discourages or deters the
activities taxed. Unless there are penalty provisions extraneous to any tax need, Courts
are without authority to limit the exercise of the taxing power.
Bailey v. Drexel Furniture Company (1922) – Power to Tax
- Follows Hammer v. Dagenhart, Congress passes taxes on child labor manufacturers.
- 10% of net income is taxed. Does not matter where the goods are shipped, no commerce
power issues involved. If company uses child labor = taxable.
o Heavy tax will disincentivize use of child labor in factories.
- Companies argue that Congress is attempting to regulate intrastate activities.
- Court distinguishes a Tax vs. Penalty  some monetary obligations can be readily
identified as taxes. Others, even if labelled as taxes, are penalties.
o **Congress cannot penalize for regulating**
-
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Tax is viewed as a penalty on those companies who use child labor in the production of
goods for interstate commerce.
NFIB v. Sebelius (Part II) – Individual mandate as a tax, not a penalty.
- Government argues that the mandate imposes a tax on those who do not buy health
insurance, rather than a penalty.
- Court recognizes the Taxing Power as the source of Congressional authority rather than
the Commerce Clause or Necessary and Proper Clause.
- Although Congress labelled the tax a “penalty” when the payment is made to the
IRS, labels are not conducive for Constitutional purposes.
o Three (3) distinctions from Bailey Penalty:
o Severity of burden in relation to behavior being affected.
 In NFIB, tax was proportional to the cost of health insurance, no moral
implications behind imposition of the tax.
o Bailey taxed only those who knowingly employed child labor, tax under the ACA
was equal across the board. Individual mandate had no scienter requirement.
o In NFIB, the money was going to the IRS as opposed to the Department of Labor
in Bailey. Money to the IRS is good for the general welfare.
- United States v. Butler – essentially taxing is defined very broadly.
o Focus on the Hamiltonian vision – the clause “confers a power separate and
distinct from those later enumerated is not restricted in meaning by the grant of
them, and Congress consequently has a substantive power to tax and to
appropriate, limited only by the requirement that it shall be exercised to provide
for the general welfare of the U.S.”
 The only restriction we will see is if the tax is so onerous that it becomes a
penalty and requires the giving up of another right.
Spending Power
- Relevant questions = What are uses of spending power that look like prohibitions on
certain government functions?
- Fed. Gov. conditions certain funding granted to the states.
- States are free to accept money, but the conditions can be coercive.
South Dakota v. Dole 1987 – Reduction in state funding to SD for not raising drinking age.
- Congress withholds federal funding for SD highways (5%) if the state does not raise the
minimum drinking age to 21.
- Issue: Is the conditional spending constitutional?
- 4 Factor Test Developed by the Court
o 1) The condition must be for the general welfare  very broad standard.
o 2) Condition must satisfy independent constitutional limits – can’t violate other
provisions.
o 3) Terms of the condition must be stated unambiguously.
o 4) Germaneness – must be thematic relatedness between spending program and
condition. No germaneness could make it appear as though the fed. Gov. is
buying off the states.
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o 5) Coercion- the amount of money involved cannot be coercive. If the state cannot
effectively say no to an offer then the commandeering principle may come into
play. (see NFIB part 3)
NFIB v. Sebelius (Part III) – Medicaid Expansion Section and Conditional Spending.
- Under the ACA, states had to increase coverage for low-income individuals or risk losing
all their Medicaid funding from the federal government.
- People making above the previous minimum now became eligible for state coverage for
health insurance.
- States essentially could not say no to the offer, had to rely on the funding from the
government in order to operate; coercive.
o Conditional spending programs cannot be coercive in nature to the point
where the state has no other choice but to agree to the condition to get the
funding.
o States had developed administrative systems and reliance upon already
established federal Medicaid funding.
o Congress was not free to penalize States that choose not to participate in the new
program by taking away their existing Medicaid funding.
o Conditional spending does allow for some regulation of activity as long as it is not
in a coercive manner.
FEDERALISM-BASED LIMITS ON STATE POWER
(Unit II)
-
There are certain things States cannot do by virtue of their place in the federal system.
o McCulloch for example, sets forth that States cannot tax National Banks.
If States could undermine federal law, fed. Entities become powerless. In these cases, the
Court is preventing state law from undermining the ability of the country to operate.
Supremacy Clause – Laws passed pursuant to Constitution by Congress are superior to state
laws. If Congress decides to regulate a field, federal law is Supreme.
- Example: Federal law says wear a seatbelt. TX law says you can’t wear a seatbelt.
Individuals cannot comply with both laws. Adhering to one law violates another.
Preemption Clause/Cases – Most straight forward example of what a state cannot do. Congress
passes a law that says X and any state laws that attempt to do X are now preempted.
- States would have to show preemption clause is unconstitutional in order to invalidate a
law made under the clause.
- Three Types of Preemption
o Express preemption – only issue is whether a state statute falls within the are
expressly preempted by federal statute.
o Field preemption – The court requires a clear showing that Congress meant to
occupy a field and so displace the states from regulating the subject matter.
 Initial question = what was the purpose of Congress’ legislature?
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
The federal scheme under field preemption is likely so pervasive as to
make it a reasonable inference that Congress left no room for the States to
supplement the regulation.
o Conflict Preemption – Where the federal government, in the exercise of its
superior authority in the field has enacted a complete scheme of regulation, states
cannot conflict with or curtail the federal law or enforce auxiliary regulations.
 Another type of conflict preemption applies where “compliance with both
federal and state regulations is a physical impossibility.”
Pacific Gas & Elec. Co. v. State (1983) – Field Preemption/Conflict Preemption arguments
- CA state law suspends private nuclear power plants from being built. Federal law related
to the same activity  Atomic Energy Act of 1954
- AEA relinquishes governmental monopoly on nuclear power, allows for private
production under federal regulations.
- AEA also creates the Nuclear Regulatory Commission (NRC).
- Pacific Gas and Electric argues that CA law is preempted by federal law, PG+E wants to
build new power plants but CA has halted production. (field preemption theory)
o Since the AEA regulates nuclear power, Congress must have intended to occupy
the field of nuclear power production.
o AEA left the generation of nuclear power to the States, to the extent Congress
occupies the field, it must be narrower than just “nuclear power” in general.
- Conflict Preemption theory – even if the AEA doesn’t regulate creation of nuclear waste,
laws still conflict.
o PG+E argues the law is attempting to interfere with federal law and safety
measures  federal law has established the balance between and economics and
CA is attempting to recreate that balance under the AEA.
o CA argues the law does no deal with safety measures but economic concerns.
Law manages the electricity grid, without permanent storage solution for
destruction of nuclear waste, plants will have to shut down to due lack of space
for temporary disposal.
 Plant shut downs = increase in electricity costs for all citizens of state.
- Holding: AEA focuses on safety while the CA statute deals with economics. The law
must objectively ascribe the purposes and goals to ensure that state laws do not conflict
with federal laws.
Crosby v. National Foreign Trade Council (2000) – Implied Conflict Preemption
- Mass. Passes a law placing sanctions on the country of Burma. No state entities are
permitted to do business with Burmese companies.
- Law is challenged on preemption grounds because Congress passed separate laws placing
sanctions on Burma.
- Even in the absence of a federal statute, the MA law would look like the state is
attempting to conduct foreign diplomacy.
- Because the fed. Gov. is responsible for diplomacy, no federal law against Burma implies
that MA. is prohibited from attempting to influence foreign affairs.
- Any state law towards regulation is preempted if there is an implied reason as to why
there is no federal law.
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Supreme Court rejects the State’s argument that it should be free to act given Congress’
failure to preempt the state law expressly.  President has flexible discretion to conduct
diplomacy and states cannot pass laws which conflict with the decisions of the President.
Dormant Commerce Clause
-
DCC limits state regulatory power in the absence of congressional action. The Commerce
Clause is not “dormant” when Congress affirmatively exercises regulatory power.
When Congress exercises a granted power, the federal law may supersede a contrary state
law because of the operation of the Supremacy Clause of Article VI.
Three Modern Categories of DCC Challenges
- State laws that facially discriminate against out-of-state commerce are almost always
struck down under a virtually per-se rule of invalidity.
- State laws that are facially neutral as between in-state and out-of-state interests but have
an impermissibly protectionist purpose or effect are also typically invalidated on the
ground that they in fact favor local economic interests at the expense of out-of-state
competitors.
- State laws that are facially neutral but have a disproportionate adverse effect on interstate
commerce may also be struck down under the balancing approach set forth in Pike v.
Bruce Church
o Pike Test  “Where the statute regulates evenhandedly to effectuate a legitimate
local public interest, and its effect on interstate commerce are only incidental, it
will be upheld unless the burden imposed on such commerce is clearly excessive
in relation to the putative local benefits.”
Dormant Commerce Clause Analysis
1. Is the law facially discriminatory?  two separate analysis begin based on the answer of
yes or no to the initial question.
2. If yes, is there an exception? (is the law a state subsidy, quarantine law, or market
participant law?) If there is an exception, the exception applies and LAW OK.
a. If there is no exception, the “virtually per se rule of invalidity” will likely apply
unless there is a legitimate local interest + no non-discriminatory alternatives are
available. Legit local interest + no alternatives = LAW OK.
b. No local interests/alternatives = LAW NOT OK.
3. If no, ask does the law discriminate in purpose or effect?
a. If yes, is there an exception? (is the law a state subsidy, quarantine law, or market
participant law?) If there is an exception, the exception applies and LAW OK.
b. If the law does not discriminate in purpose or effect, apply Pike Balancing Test –
legit local interests vs. burdens on interstate commerce.
c. If the law passes Pike Test = LAW OK.
d. If law does not pass Pike Test = LAW NOT OK.
Notes on DCC
- No express text in the Constitution that states the Dormant Commerce Clause prevents
states from passing laws that effect interstate commerce.
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-
-
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DCC doctrine is incorporated by case law- broad interpretation of Constitution viewing
the Constitution as flexible and malleable.
o States passing laws that effect interstate commerce undermines the goal of the
Constitution.
DCC doctrine assumes that there are certain things states can and can’t do when
regulating  DCC is a structural argument to support the overall goal + relationship
between the federal and state governments.
Must ask what system is trying to be established by the state law and does a certain rule
effect that system?
o If arguing to refute a structural argument for commerce clause, argue for a
preemption clause argument. If state is preempted from passing the law because
the federal gov. has a statute in place, law is moot.
DCC does not always per se invalidate laws that states pass dealing with commerce;
exceptions and Pike Balancing may allow law to survive discriminatory aspects.
Philadelphia v. New Jersey (1978) – Facially discriminatory law against trash brought to NJ.
- NJ passes law that prohibits all landfills in the state from collecting trash from out of
state. NJ landfills are designated for NJ trash only under the law.
- NJ argues the law promotes health and environment benefits, however the law also tries
to artificially reduce competition for land fill services in NJ.
- Law is facially discriminatory because it treats in state trash better and superior to out of
state trash from say PA, NY, DE etc.
o Because law is facially discriminatory, next question to ask in the analysis of the
law is whether or not there is an exception?
o NJ argues that because quarantine laws are constitutional, this law acts as a
quarantine from preventing trash from outside states harming NJ environment.
o Court says that quarantine laws only apply to the importation of articles that are
immediately harmful (example = diseased livestock).
o Because the trash is not immediately harmful, the only way the law would stand is
if it serves both a local interest + there is no non-discriminatory alternative.
o In this case, NJ could place a cap on how much trash is accepted by landfills if it
wants to protect environment, the cap would apply to trash both in-state and outof-state. This law would be constitutional for purposes of DCC because it is
facially neutral, and would pass Pike balancing test.
- The Court assumes that a patchwork of mutually protectionist state laws will decrease the
national welfare because each state will then have an incentive to hoard benefits and
export costs, leading to mutually destructive self-dealing by the states.
o Courts often emphasize the importance of long-term considerations, suggesting
that in the long run mutual retaliation among the states will decrease national
prosperity even if net social welfare is not decreased in the short run.
- Maine v. Taylor – regulation by state regarding the shiner minnow. Case similar to
Hughes where the court says let’s look at the end and the means – here they said the
means were appropriate. There was no other way to protect the state interest here.
o This was the one case in which the court used strict scrutiny (ends/means test) and
actually upheld the law.
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o The only way to handle the infection of baitfish is to block other fish from coming
in. (Borders drawn around the state for a quarantine-type situation, not to be
economic protectionists.)
West Lynn Creamery, Inc. v. Healy – Massachusetts law imposed a tax on in-state milk
sales (whether it was produced in-state or out-of-state) and the proceeds went to local
dairy farmers. Court said this was invalid because the challenger has made a good case
in showing discriminatory impact in purpose or effect – emphasis on making this
showing.
Dean Milk Co. v. Madison (1951) – local vs. non-local discrimination
- Madison law requires all sellers of milk in the city to pasteurize their milk within 5 miles
of the city  argued that the local goals include milk quality and safety. The law allows
Madison officials to inspect and monitor pasteurization at local plants.
- Madison is clearly favoring local pasteurizers over out-of-state. MN or IL milk farmers
must now pasteurize in Madison rather than in their local states if they wish to sell milk
in the city of Madison.
o Turning away milk from out of state producers effects interstate commerce,
cannot shield local pasteurizers and farmers – no protectionist regulations.
- Dormant CC Analysis
o (1) Is the law facially discriminatory?  Madison could argue no because it
applies to both in state and out of state sellers of milk.
 Unlike Philadelphia v. New Jersey where all trash collectors out of state
were disadvantaged, this law in Dean discriminates equally against in state
and out of state.
 Could also argue yes that the law discriminates, this law would create a
fragmented market where all cities pass similar laws, restricting the flow
of commerce in the milk market.
o As long there are a significant amount of in-state interested actors, the state
political process would correct any issues with the law.
o Local vs. non-local distinction will trigger the virtually per-se rule of invalidity
even though the law isn’t burdening state vs. out of state.
o (2) Does the facially discriminatory law pass the virtually per se rule of
invalidity?
 Is there a legitimate local interest at hand here?  could argue safety for
local milk drinkers of Madison.
 Are there any non-discriminatory alternatives?  yes, Madison can easily
pass a law that requires the milk sold in the town to meet certain
standards. This way out of state producers just need to meet the standards
set forth and not worry about pasteurizing within 5 miles of the city.
 No reason to believe that Madison is the only city that can properly
pasteurize milk to a certain standard.
- Holding: To allow Madison to adopt a regulation not essential for the protection of local
health interests and placing a discriminatory burden on interstate commerce would invite
a multiplication of preferential trade areas destructive to interstate commerce.
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C& A Carbone, Inc. v. Clarkstown (1994) – discrim. in favor of one business over all others.
- Clarkstown law requires all Clarkstown waste to be processed at new transfer facility to
help pay off the private contractor who build the new facility.
o Immediate effect of the law directs waste to a designated cite within a local
jurisdiction, however, the economic effects of the law are interstate in reach.
- The flow control ordinance is a financing measure. Revenue generation is not a local
interest that can justify discrimination against interstate commerce.
- Allowing this law to be upheld could cause other municipalities to pass similar
protectionist laws to protect their local interests pertaining to trash collection.
o Because Clarkstown has many alternatives to any alleged local interests in the
health and environmental problems caused by trash, the law cannot be upheld.
United Haulers Ass’n v. Oneida-Herkimer Solid Waste Management Authority (2007)
- Similar to Carbone, but now the waste transfer facility is owned by the City, not by a
private builder.
- All out of state competition is cut out of the loop to compete for interstate trash.
- Difference is that the city has decided to take over trash collection, trash collection is
viewed as a traditional government function.
- Cities can enact facially discriminatory laws as long as there is a legitimate interest and
the law is a typical government function.
o A single city-owned facility to process trash is certainly within the traditional role
of government exception to a facially discriminatory law.
o ***“Laws that favor the government in certain areas, but treat all private business
whether in-state or out-of-state exactly the same do not discriminate against
interstate commerce for purposes of the Commerce Clause”***
o The citizens bear the cost of the law in this case, if they do not agree that the town
should take over and control the collection of trash, the local political process will
allow citizens to voice their opinions and change the law.
Market Participant Exception
- Generally, a state may treat in state and out of state citizens and entities differently if the
state is participating in the market.
- When a state acts as a market participant, typically it is using public funds anyway.
o Example: State of LA creates a state owned and operated crawfish restaurant and
will offer discounted prices to residents of LA.
o LA is not exercising any regulatory power, the state is acting in its own capacity
as a market participant in the crawfish market.
o When the government acts as a buyer or seller of goods or services, facial
discrimination is acceptable.
South-Central Timber Development, Inc. v. Wunnicke (1984) – market participant limits...no
downstream control of over markets allowed.
- Alaska proposed to sell state-owned timber subject to a condition that the purchaser of
the timber had to process the timber before shipping it out of the State of Alaska.
o AK argued that its restriction on the export of unprocessed timber was exempt
from the Commerce Clause because the state was acting as a market participant.
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The restrictions do not allow a purchaser to choose where he or she will process the
timber, the payment of timber does not end the obligations of the purchaser.**
Court holds that a State may not avail itself to the market-participant exception to
immunize its downstream regulation of a certain interstate activity.
AK cannot leverage control of another market while participating in a different one.
Discriminatory Purpose/Effect with Facially Neutral Laws
- Laws that appear to be facially neutral but have a protectionist effect or disproportionate
adverse effect may be struck down by Courts under the Dormant Commerce Clause.
Hunt v. Washington State Apple Advertising Comm’n (1977) – discriminatory effect on apples
- NC law ONLY allows for certification sticker on apples that shows the USDA grades and
nothing superior to that.
- WA apples have higher grades than the USDA requirements, WA wishes to show off
these grades in order to promote the product.
- NC wants to keep its apple playing field level by preventing WA from showing off its
superior product.  law is facially neutral to all importers of apples but discriminates
against apples from WA.
- The Court held the law could not stand as it had a discriminatory effect because it
required WA to market under the inferior USDA labels.
o Such downgrading offers the NC apple industry protection against out of state
products.
Bacchus Imports, Ltd. V. Dias (1984) – facially neutral tax with discriminatory effect.
- Hawaii statute exempted from the state’s 20% wholesale liquor tax a brandy distilled
from the root of a plant indigenous only to the islands of Hawaii.
- Court found the tax to violate the Commerce Clause because it had both purpose
and effect of discriminating in favor of local products.
Exxon Corp. v. Governor of Maryland (1978) – facially neutral law upheld.
- MD law prevents refiners of petroleum from operating service stations in the state of
MD.  law prevents vertical integration of fuel in MD.
- Prevents refiners from charging any price they want to other independent gas stations.
- MD does not have oil refiners within the state that would benefit from the law.
- All independent gas stations not associated with refiners benefit from the law both in MD
and those in other states. Parties don’t have to compete as much with gas moguls.
o MD statute has no impact on the relative proportions of local and out-of-state
goods sold in MD and does not affect interstate flow of goods.
- State of Minnesota v. Clover Leaf Creamery Co. – Minnesota law banning the sale of
milk in plastic nonreturnable, nonrefillable containers was challenged on the ground that
it had a discriminatory purpose.
Black letter rule: A facially neutral state law will violate interstate commerce if the
incidental burden imposed on interstate commerce is clearly excessive in relation to the
putative local benefits
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Pike Balancing Test
- Where the statute regulates even-handedly (facially neutral) to effectuate a
legitimate local public interest, and its effects on interstate commerce are only
incidental, the law will be upheld unless the burden imposed on such commerce is
clearly excessive.
o The extent to which the burden is tolerated will depend upon the nature of the
local interest involved, and whether it could be promoted as well with a lesser
impact on interstate activities.
Kassel v. Consolidated Freightways Corp. (1981) – Pike balancing applied to Iowa state law.
- Iowa law prohibits trucks over 65 feet long from operating on Iowa highways.
- Law is not facially discriminatory as it effects all trucks in state and out of state.
o Governor states on the record the goal is to reduce the amount of out of state
trucks causing traffic on highways  argued that the main goal of the statute is
safety on the highways.
o The Court finds very little local benefits that can outweigh the enormous
burdens on interstate commerce.
o Trucks travelling across country would have to reroute around the state of Iowa,
double trailers would have to unhitch and get a second cab to drive the trailer
actually causing more volume on the highways
o Local benefits were also not discussed by the Legislature when the law was
enacted, local benefits argument was created by the lawyers in the case.
o ***Purpose of a law matters in analyzing neutrally discriminatory laws.***
- Majority finds no local interest and safety benefits in the law and therefore strikes the law
down as unconstitutional.
Bibb v. Navajo Freight Lines, Inc. (1959) – conflicting laws creating massive burden.
- IL state required certain mud flaps on all trucks  facially neutral regulation.
o IL record showed no aims of discriminatory intent in creation of the law.
- The IL laws conflicts with Arkansas laws that required straight, standard mud flaps which
were also authorized in 46 other states.
- Drivers could not satisfy both IL and other state laws.
- When two sets of laws make it impossible to comply with both, burden on interstate
commerce will be found.
Privileges and Immunities Clause
PIC – Art. IV, §2 states, “The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.”
- Privileges and Immunities clause differs from DCC in that:
o Corporations enjoy no protection under the PIC.
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o Congress may authorize, through affirmative exercise of its commerce power,
state practices that would otherwise be impermissible under DCC.
o PIC is a rights provision that Congress may not waive.
o PIC does not extend to all commercial activity  ONLY extends to the exercise
of “fundamental rights.”
o Interests must be fundamental – such as the ability to work in another state.
Interests must be essential to the preservation of the Union.
United Building & Construction Trades Council v. Camden (1984) –PIC challenge.
- Camden laws states that to the extent that city construction projects are necessary,
builders must hire at least 40% Camden residents to work on the projects.
- Law applies to both contractors and subcontractors.
o Law is aimed at the local interests of the city to employ residents. People were not
living in Camden, simply coming from other cities/PA to work then go home.
o Workers from out of the city impose costs on the city by using roads, not paying
taxes to the city of Camden. More residents living and working in the city would
help to offset costs.
- Camden argues the Market Participant Exception  states that the condition of who can
be employed is a term in the employment of construction market in the city.
o Could argue the subcontractor provision is directly analogous to South Central
Timber  can’t regulate downstream commerce
- The purpose of the DCC is to prevent states from regulating in a way that disrupts
interstate marketplaces, the purpose of the PIC is not merely to regulate, but to ensure
that national citizens have their status respected among the states.***
- The court narrows down the issue in this case as being the fundamental right to be
employed by the government.
- Court also finds that if a right fundamental and violated by state law, the law can still be
salvaged by invoking a “substantial justification” of the law.
o States must show the law furthers a substantial government interest and the law is
closely related to that interest.

What justifications are sufficient to permit discrimination?
o Supreme Court of New Hampshire v. Piper – challenge by Vermont resident to
NH statute that you had to be a resident of that state to be a member of that bar.
Court said this was a P&I issue because it deal with a right to earn a living.
McBurnely v. Young – PIC challenge of Virginia Freedom of Information Act
- Plaintiffs challenge the Virginia FOIA because it allows only citizens of the state to ask
VA government for information.
- Challengers are non-residents of VA, thus prohibited from obtaining information.
- Court rejects their DCC claim because the VA FOIA does not affect commerce – the
flow of information is not a commercial market.
- Because the statute is relatively new, the court finds not PIC violation because rights
violated under PIC must be “fundamental rights” which are well established and hold
tradition in the eyes of the court.
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SEPARATION OF POWERS
(Unit III)
Myers v. United Sates (1926)  “The doctrine of separation of powers was adopted not to
promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid
friction, but, by means of inevitable friction incident to the distribution of the governmental
powers . . . save the people from autocracy.”
Separation of Power Examples:
- Federal government consists of Legislative, Executive, and Judicial Powers.
- Powers of each branch of government can be used to check/impede operations of others.
o Congress may pass laws  president has veto power.
o Judicial Review over actions of Congress + President.
o Congress has impeachment power over executive and judicial officials.
o Congress may override a Presidential veto with 2/3 in each house.
o Congress has power to appointed Presidential nominees to the Supreme Court.
o Congress has implicit power to investigate Executive Branch officials.
- “Take Care Clause” – grants Executive the power to enforce and pass laws of
Congress.
Youngstown Sheet & Tube Co. v. Sawyer (1952) – President seizure of steel mills violates SoP.
- United States is involved in the Korean War, President Truman is informed of a potential
labor conflict/strike by United Steel Workers Union.
- Truman seizes control of the steel mills to keep ensure production of steel continues.
o Does not invite Congress to pass legislation to correct the potential strike.
o Taft-Hartley Act would have allowed Truman to obtain an injunction to against
the union in order to prevent the labor strike.
o Executive Order bypasses Congress and the Courts, UNILATERALLY seizing
the steel mills.
- Argument: President lacks the authority to unilaterally act in this manner, had Congress
passed legislation pursuant to the Commerce Clause, Truman’s actions would be justified
- Government argues that Truman was acting pursuant to his Commander in Chief Powers,
seizure was necessary for the continuation of military.
- Court find the right to seize private property at home in the US is too far a stretch from
the theatre of war.
o There is a big difference between the President “executing the law” when
Congress has granted the authority to do so vs. the President acting in a manner in
which he thinks Congress wants him to act.
o Truman was essentially law making, not enforcing, law making = Congress.
- Justice Jackson Concurrence  Assigning categories to Presidential action.
o Zone 1 – If Presidential action is authorized by Congress, the President’s power is
at its zenith. Actions of President are presumptively valid and courts will not
scrutinize the actions too closely.
25
o Zone 2 – “Twilight Zone” – President is neither authorized nor prohibited by
Congress to action in the manner in which he did. Courts may look to historical
practice and policy reasons to issue a judgment on the matter.
o Zone 3 – If President’s actions are prohibited by Congress, President power is at
its lowest. If President is in Zone 3, and acts unilaterally, typically the action is
unlawful. However, if the law itself that prohibits the Presidential action is
unconstitutional (contradicts Executive Power) the President has authority.
Zivotofsky v. Kerry
Holding: Because the power to recognize foreign states resides in the president alone,
Section 214(d) of the Foreign Relations Authorization Act of 2003 – which directs the Secretary
of State, upon request, to designate “Israel” as the place of birth on the passport of a U.S. citizen
who is born in Jerusalem – infringes on the executive’s consistent decision to withhold
recognition with respect to Jerusalem.
Dames & Moore v. Regan – Zone 1 case example.
- President signs an executive order which channels all litigation claims against Iran or
entities of the country to an International Claims Tribunal.
- President is acting pursuant to the International Emergency Economic Powers Act.
o Although the act did not mention the claims tribunal as a solution for claims
which arise during a hostage crisis, the Court says that the statute reflects a
general attitude of flexibility which allows the President to negotiate as needed.
- **Scope of executive authority correlates with whether Congress has expressly or
impliedly granted authority to the President OR has remained silent.**
o if Congress has remained silent on a matter  Zone 2 case, look to history and
policy to determine if actions are allowed.
Emergency Constitutionalism/War Powers Resolution
- Executive Power  Art. II, President is Commander in Chief of the military, has the
power to act unilaterally in response to imminent threats.
- Congress’ Power  Spending power, power to call forth state militias to suppress
insurrections, power to declare war, power to raise and regulate armed forces.
- Rights Based Limits  Due Process Clause of 5th Amendment, right to a trial by jury,
right to confront evidence, right against self-incrimination.
- Suspension Clause – Art. I, §9 privilege of the writ of habeas corpus shall not be
suspended unless during times of Invasion and Rebellion.
o Writ of Habeas Corpus – allows detainee to demand review of whether the
government has the right to hold him in detention in the first place.
- Constitutional default = meaningful judicial review unless suspended during
war...Congress must first pass law to suspend habeas corpus.
- Even under congressional action, the accused must be charged under the laws of
war.
I. War Powers
1. Article I, sec 8, cl 11 – gives Congress the power to declare war (SC has never said
what “declare war” is.)
2. Article II, sec 2 – gives Pres the power as commander in chief.
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3.
War Powers Resolution – imperfect solution that came out of a bunch of lawsuits
and political debates re Vietnam.
a.
Purpose, policy, and structure are to elucidate what the test says. Reporting
requirements meet the middle ground.
b.
Some members of Congress think this gives Pres too much authority.
c.
Still not sure about constitutionality – one case that arose regarding it was
dismissed for lack of justiciability.
Ex Parte Milligan – Congress has now suspended writ of habeas corpus and military
commissions are being used as a means of trying cases under martial law.
- Milligan is a resident of the territory of Indiana and is accused of aiding and abetting
rebel forces against the union.
- Military commission tries and convicts him. Sentenced to death.
- Milligan seeks writ in federal court, Milligan was a civilian not actively in service and at
the time, the courts were open in Indiana  no need for military commission.
- Milligan was not charged with a crime under the laws of war, he should have been
granted a jury trial and tried in federal court in Indiana.
Ex Parte Quinn (1942) – Military trial on conspiracy charges of German nationals who snuck
into US territory charged with attempting to destroy US war production factories.
- Captured on US soil, Congress had no suspended the writ of habeas corpus at the time.
- Court holds that the President had the authority to conduct a trial by military commission
in this circumstance  the charges were offenses against the law of war, the actors were
clearly war belligerents. President had Congressional authority
- Holding: The detention of petitioners for trial by military commission does not violate the
Constitution of the United States. Congress and President, under the Articles of War and
Executive Orders, may constitutionally place unlawful combatants on trial before a
military commission for offenses against the law of war.
Hamdan v. Rumsfeld (2006) – Violations on the limits of executive power during times of war.
- Hamdan is captured and held in custody at Guantanamo Bay.
- After one year, Hamdan was deemed eligible for trial by a United States military
commission. After two years in custody, Hamdan was charged with one count of
“conspiracy to commit offenses connected with the attacks of September 11, 2001.”
Hamdan petitioned for a writ of habeas corpus, challenging the authority of the military
commissions to try him.
- At the time Hamdan was being held and then tried by the military commission, the
statutes on the books included:
o Uniform Code of Military Justice (UCMJ) – Art. 21 authorized use of military
commissions, Art. 36 stated that commissions must use procedures uniform
with those used by courts-martial to the extent such procedures are
practicable.
o Geneva Conventions – imposed procedure restrictions on military commissions.
- Hamdan = Zone 3 case. Commissions must use procedures in line with the courts martial.
Because the military commission that tried Hamdan did not follow the procedures, the
president abused his executive power. Commission was unconstitutional.
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Congressional Authority to Restrain or Enable Executive
- One way for Congress to retain control over executive action is to be very specific in
limiting the delegation power to agencies.
o Congress has two options when looking to restrain or enable executive, retain
control over executive officer’s actions, or retain control over executive officer’s
jobs.
- -Delegation Principle: So long as Congress shall lay down by legislative act an
intelligible principle to which the person or body authorized is directed to conform, such
legislative action is not forbidden. Constitutionally sufficient if Congress clearly
delineates the general policy, the public agency which is to apply it, and the boundaries
of this delegated authority.
INS v. Chadha (1983) – Presentment Clauses, one house veto unconstitutional.
-one house veto over deportation orders
- Legislation providing Congress with a one-house veto over an action of the executive
branch does not meet the constitutional requirements of presentment and
bicameralism.
- Article I of the Constitution requires that all legislation be presented to the President
before becoming law. The Framers carefully crafted this requirement into the
Constitution. Additionally, the Framers also required bicameralism in the enactment of
any law—a law could not be passed without gaining support from a majority of both
houses.
- A unilateral veto of executive action is not included in these powers. The
Constitution’s silence in this area means that the House of Representatives cannot
unilaterally act to defeat an executive decision.
Clinton v. New York (1998) – line item veto
- The Line Item Veto Act (Act) gave the President the power to “cancel in whole” three
types of provisions signed into law. Specifically, the Act allowed for the cancellation of
(1) any dollar amount of discretionary budget authority; (2) any item of new direct
spending; or (3) any limited tax benefit.
- There is no provision in the United States Constitution that authorizes the President to
enact, amend, or repeal statutes.
- Article I, § 7 of the Constitution requires that legislation originate in Congress and only
be presented to the President upon passage in both the House and the Senate.
- The Constitution further provides that if the President does not approve the bill, he shall
return it to the house where it originated.
- This “return,” which is also known as a “veto”, is subject to being overridden by a twothirds vote in each house of Congress. Here, the President’s cancellation power under the
Act differs significantly from his power to “return” a bill under the Constitution.
- Holding: If Congress seeks to create a new procedure for creating laws, it must amend the
Constitution. Accordingly, the Act is unconstitutional and the district court is affirmed.
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Bowsher v. Synar – question was whether Congress could create a creature called the
comptroller general to oversee functions of the budget and then still have the power to
remove. Court said even though there can be a blending of Article I and II powers, if it
appears that an official is carrying out an executive branch function, the most Congress
can do is limit the functions but can’t remove.
-Chief Justice Burger used a two-step process; first, he examined the statute, where it was
clear to him that the comptroller was subservient to the legislative branch. Next, after
examining the functions of the officer, it was clear that he was executing the laws; i.e. taking
executive branch power; Congress cannot give itself the power to remove executive
officials, except by impeachment.
Appointments and Removal
Appointments Clause – Art. II, §2
- Officers of the United States = Executive Branch Officials.
- Senate has the power to confirm the selection of Officials by the President. At times,
“inferior officers” may be appointed by the President alone, heads of departments or
other methods expressed by laws passed by Congress.
- Congress cannot declare principal officers inferior in order to vest the appointment power
outside the default rule.
o Certain executive branch officials must be appointed with Senate involvement due
to the nature and importance of the position.
- Employees (below inferior officials) do not have to be appointed by a department head
and are not treated as inferior officers.
o Employees may be hired or appointed in any way Congress identifies.
Recess Appointments – President has the power fill vacancies of Congress during recess by
commissions that expire at the start of the next session.
- If vacancies arise when Senate is on break, President may unilaterally appoint officers.
- Recess appointments may be duly appointed by the Senate when back in session.
- Noel Canning v. NLRB  Senate was blocking appointments by Obama, Obama tried to
appoint officials during recess.
o Court holds Senate can decide when it is and is not in session. A 3-day recess was
determined not to be long enough to trigger the application of recess
appointments.
Removal Power – Nothing in the Constitution directly states the President can unilaterally
remove a member of the Executive Branch.
- Proper Constitutional possibilities for removal include:
- 1) impeachment and removal by Congress  exclusive avenue of removal (via
impeachment clause).
- 2) Impeach or removal can be achieved by Congress OR by “at will” removal performed
by the President.
- 3) Impeachment and removal Congress or “at will” removal by President except as
limited by Congress.
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o 3rd position confers on Congress a limiting factor, some officers may only be
removed for good cause and/or certain misconduct.
o 2nd position could lead to too much presidential power, 3rd position could lead to
too much Congressional power.
Humphrey’s Executive  court upholds a set of removal restrictions as applied to
commissioners of the FTC.
- Court found the FTC members had quasi-legislative or quasi-judicial aspects of their
positions. Because of the nature of their power being exercised, Congress could play a
role in dictating the circumstances of their removal from office.
- Compare with Myers  purely executive officer removal allows for President to have
plenary power to remove.
o No legislative or judicial aspect of an executive officer’s power allows for at will
removal by the President.
- Removal Restrictions Test – quasi legislative or quasi-judicial allows Congress more
leeway to protect the officials from removal. Purely executive official allows for
unilateral removal by the President.
- NOT overruled by Morrison
Morrison v. Olson (1988) – removal restrictions that apply to Independent Counsel.
- Congress passed a statute to deny the removal of independent counsel to occur “at-will”
by the President.
- Independent Counsel is protected from removal, AG needs good cause to remove.
- Can’t have I.C. fired at will by President, ensures meaningful investigations.
- Court creates a new test  “Unduly trammel/impede upon executive power.” Because
the IC’s job does not impede upon executive power, IC cannot be removed unilaterally.
Limits on Judicial Power/Article III Standing
Doctrine of Standing
- Article III, §2, cl. 1 of the Constitution provides that the “judicial power shall extend” to
a list of enumerated “cases and controversies.”
- To qualify as a cases or controversy, a matter must be concrete and on-hypothetical.
- Dispute must arise neither too late nor too soon for judicial resolution.
- Injury alleged cannot be political in nature, cannot say you’re injured because you
disagree with a law passed  cannot argue abstracts of law.
- A “justiciable” controversy only exists if the parties genuinely disagree about what the
outcome of the lawsuit should be; parties cannot obtain advisory opinions by colluding to
bring a lawsuit over a certain matter.
o Element to Prove justiciability:
o 1. Injury-in-fact  no abstract legal or political objection to government policy.
o 2. Fairly traceable to the alleged conduct  causation requirement.
o 3. Redressable by the court  must be particularized in some manner, the more
widely felt an injury is, the less likely a court will find an injury-in-fact.
 Injury cannot be speculative or conjectural.
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Lujan v. Defenders of Wildlife (1992) – Do plaintiffs have standing to seek judicial review?
- Plaintiffs are seeking to sue Secretary of the Interior for violating the Endangered Species
Act. Act has a “citizen suit” provision allowing anyone to sue for violation of the
provisions in the Act.
- Plaintiffs seek declaratory judgment and injunction requiring the Secretary of the Interior
to promulgate a new regulation that would affect people in foreign nations.
o Plaintiff’s argue they will suffer injury because the United States’ role in
international development projects will destroy natural habitats of animals the
plaintiffs intend to visit again for observations.
o Court finds the complaint purely speculative, no injury in fact.
- Court also finds there is no redressability  Congress’ citizen suit provision only
confers a procedural right to sue, the plaintiffs fail to meet the Constitutional
requirements for standing.
- The more substantive the deprivation of the legal right, the more likely a plaintiff will
have standing.
Massachusetts v. EPA (2007)
(1) Two issues before the Court:
#1. Do the plaintiffs have standing to sue?
#2. Did the EPA err in failing to regulate greenhouse gas emissions by new motor
vehicles?
(2) Two preliminary considerations:
(a) “Special solicitude” for Massachusetts. “It is of considerable relevance that the party
seeking review here is a sovereign State and not, as it was in Lujan, a private individual;”
(b) Procedural right under Section 7607(b)(1). States can challenge in court the failure of
the EPA to implement environmental quality standards.
(c) “Given that procedural right and Massachusetts’ stake in protecting its quasisovereign interests, the Commonwealth is entitled to special solicitude in our standing
analysis.
(3) Preliminary Questions
(a) What is the injuryinfact?
(i) The loss of Massachusetts’s coastal land.
(b) What is the action/inaction being challenged?
(i) The EPA’s failure to promulgate emissions standards for new motor vehicles.
(c) What is the requested relief?
(i) An injunction requiring EPA to issue emission standards for new motor
vehicles.
(4) Injury in fact
(a) Is the injury-in-fact—loss of coastal land—sufficiently particularized and imminent?
(b) The majority
(i) “Because the Commonwealth owns a substantial portion of the state’s coastal
property, it has alleged a particularized injury in its capacity as a landowner.”
(ii) “That these climate change risks are ‘widely shared’ does not minimize
Massachusetts’ interest in the outcome of this litigation.”
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(6) Redressbility
(a) Is Massachusetts’ loss of coastal land redressable by the EPA’s issuance of emission
standards for new motor vehicles?
b) The majority
(i) “A reduction in domestic emissions would slow the pace of global emissions
increases, no matter what happens elsewhere.”
I. Wright v. Allen – Ps were parents alleging that their kids were being denied a desegregated
education because IRS was exempting segregated schools from taxes. Court said there was
no actual injury here. According to the court, if they had taken affirmative steps (like
actually have their kids try to attend the schools) then there would be an actual injury;
but as is, there was not.
Political Question Doctrine – subcategory of case or controversy requirement.
- Court does not decide political questions. Plaintiff might meet Article III standing
requirements, but the political implications are too severe for justification of judicial
intervention.
- Two Ideologies of PQD – 1) question could be political if expressly entrusted to another
branch...example: House can impeach officials, officials cannot in turn seek an injunction
form the court. 2) Prudential concerns about the consequences of a decision...some cases
cannot be heard because uniformity of a political voice is necessary.
o Gerrymandering claims = non-justiciable political questions. Drawing the
districts are impossible to achieve by judicial guidelines.
Baker v. Carr (1962) -redistricting claims are justiciable; DIFFERENT FROM RUCHO
BECAUSE THIS IS ABOUT EQUAL APPORTIONMENT, NOT GERRYMANDERING
- Voters in TN claimed that the apportionment of the Tennessee General Assembly
violated their equal protection rights.
- Plaintiffs sought an injunction against further elections under the 1901 system and the
federal court to either direct the elections at large or order a reapportionment.
- For an issue to be a non-justiciable political question, one of six tests must be
satisfied:
o (1) a textually demonstrable constitutional commitment of that issue to another
political branch;
o (2) a lack of judicially discoverable and manageable standards for resolving the
issue;
o (3) an impossibility of deciding the issue without making an initial policy
determination of a kind not suitable for judicial discretion;
o (4) a lack of respect for the other branches of government in undertaking
independent resolution of the case;
o (5) an unusual need for unquestioning adherence to a political decision already
made; or
o (6) the potential for embarrassment for differing pronouncements of the issue by
different branches of government.
- Court holds that because Baker is an individual suing the government, there is no
separation of powers concern and the claim does fall under one of the above tests.
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Bush v. Gore (2000). Under 3 USC 5, “Legislature has the last word.” Under Art II sec 1
cl 2: “Electors are chosen in a manner as Legislature may direct.” Under FL Constitution,
Judicial Review of such “manner.” HOLDING: 3 USC 5 wins over FL Constitution. This
is a Federalism case, Federal Govt steps on State’s toes here.
Rucho v. Common Clause (2019):
Facts of the case: A three-judge district court struck down North Carolina’s 2016
congressional map, ruling that the plaintiffs had standing to challenge the map and that the
map was the product of partisan gerrymandering. The district court then enjoined the state
from using the map after November 2018. North Carolina Republicans, led by Robert
Rucho, head of the senate redistricting committee, appealed the decision to the Supreme
Court.
Question
1. Do the plaintiffs in this case have standing to pursue their partisan gerrymandering
claims?
2. Are the plaintiffs’ partisan gerrymandering claims justiciable?
3. Is North Carolina’s 2016 congressional map an unconstitutional partisan gerrymander?
Holding: Partisan gerrymandering claims are not justiciable because they present a
political question beyond the reach of the federal courts.
Majority: Federal courts are charged with resolving cases and controversies of a judicial
nature. In contrast, questions of a political nature are “nonjusticiable,” and the courts
cannot resolve such questions. Partisan gerrymandering has existed since prior to the
independence of the United States, and, aware of this occurrence, the Framers chose to empower
state legislatures, “expressly checked and balanced by the Federal Congress” to handle these
matters. While federal courts can resolve “a variety of questions surrounding districting,”
including racial gerrymandering, it is beyond their power to decide the central question:
when has political gerrymandering gone too far. In the absence of any “limited and precise
standard” for evaluating partisan gerrymandering, federal courts cannot resolve such
issues.
Executive Privilege/Presidential Immunities
- To what extent should the President be immune from criminal prosecution?
- To what extent should the President be immune from civil suit?
- To what extent should the President be able to invoke executive privilege to a subpoena
or demand for information?
o President can be held liable in civil suit for injuries caused when not acting
within his capacity  Jones v. Clinton
o President can be ordered to turn over information in criminal proceedings if
the prosecutor can show the value of the information outweighs the
competing concerns of secrecy and candor  Nixon v. United States.
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FOURTEENTH AMENDMENT & INCORPORATION DEBATE
(Unit IV)
Fundamental right? Strict scrutiny
Non-fundamental? Rational basis; even a non-fundamental right
can be wrongfully abridged when the government lacks a rational
basis.
Background Notes:
- Supreme Court remains relatively weak in the time period following in the Civil War.
o In Dred Scott v. Sandford, the Court rules the Missouri Compromise violates the
5th Amendment due process clause – slaveholders cannot be deprived of property.
o Baron v. Baltimore, the Court holds that the Bill of Rights does not apply against
the states. All freedoms in Bill of Rights only applies to federal law/government.
- Key theme of the Reconstruction Congress = new birth of freedom that must be
guaranteed by the federal government.
- Left to their own devices and unchecked by the federal government, the State’s actually
pose a threat to human freedom.
o Need for more power, rather than less power, required by federal government.
- 13th, 14th, 15th, Amendments confer new individual rights against the States.
o 13th  “neither slavery nor involuntary servitude. . . shall exists within the United
States” except as punishment for a crime.
o 14th  No state shall deprive anyone of the privileges and immunities, due
process, and equal protection of the law.
o 15th  Right to vote shall not be abridged on account of race, color, or previous
condition of servitude.
14th Amendment
- Section 1 – promises to be the most sweeping in scope of the Ratification Amendments.
- Equal Protection clause seeks to prevent race based discrimination.
- Due Process clause seeks to guarantee procedural protections to individuals that apply to
governmental deprivation of freedoms.
- Privileges or Immunities clause appears to supplement the Due Process clause by
granting substantive rights and preventing states from abridging citizens’ rights.
POST SLAUGHTERHOUSE, WHICH GUTTED PIC, DUE PROCESS BEGAN DOING
THE HEAVY LIFTING
Slaughterhouse Cases (1873) – Application of 14th Amendment P or I clause.
- In an effort to combat disease, LA law establishes a centralized butcher for slaughter and
gives the Crescent City Livestock Landing & Slaughter House Co. a monopoly over
entire slaughter house business in New Orleans.
o All independent butchers must work at the Crescent City building.
- New Orleans butchers bring a Constitutional challenge under the 14h Amendment
privileges and immunities clause  argument is that the right to apply their trade is
violated by the New Orleans monopoly.
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-
-
-
o Court could have said that the 14th Amendment does grant certain rights, but the
right to slaughter anywhere in the city is not protected by the amendment.
Court holds that butchers’ argument fails because the privileges and immunities clause is
not meant to be as broad as the butchers argue.
Court holds the States cannot abridge specific freedoms that are necessary to those rights
of a U.S. citizen  rights to travel interstate, petition Congress, and interact with
representatives are examples of the rights protected by 14th Amendment.
Court reasons that the drafters would not have wanted to burden the courts with checking
state laws against a broad array of freedoms.
o ** Court’s holding fails reasons for 14th Amendment...entire purpose of the 14th
Amendment was to empower the courts to check state laws that restrict freedoms
and rights of citizens. **
o Drafters and ratifiers of Privileges or Immunities cause believed they were
incorporating the Bill of Rights to apply against the states.
Slaughterhouse Cases sever the connection between the Bill of Rights and the Privileges
or Immunities clause of the 14th Amendment.
Need for new argument to protect substantive rights against states laws is now created.
Substantive Due Process Argument; THE MAIN ONE. BOTH FOR FUNDAMENTAL
AND NON-FUNDAMENTAL RIGHTS/
- Given the need to guarantee substantive rights against the states, could a substantive due
process argument succeed?  Could argue the Due Process clause does not just protect
against a fair procedure, but also protects some level of substantive rights through the
notion of substantive due process.
o Sub. Due Process argument could be seen as picking up slack from the privileges
and immunities clause which, as expressed in Slaughterhouse, protects only a
narrow amount of privileges and immunities.
- 3 Approaches to determine substantive due process
o Total incorporation of the Bill of Rights – All freedoms guaranteed by the Bill of
Rights are guaranteed against state laws.
 Justice Black’s dissent in Adamson v. California: “History conclusively
demonstrates that the language of the 14th Amendment, taken as a whole,
guarantees that no state could deprive its citizens of the privileges and
protections of the Bill of Rights.
o Selective Incorporation – only certain provisions of the Bill of Rights warrant
inclusion under substantive due process. (7th and 8th Amendments yet to be
incorporated against the states.)
 Palko v. Connecticut – Justice Cardozo – no such general rule that all
provisions of the Bill of Rights are incorporated against the States,
however, certain rights must be protected.
o Fundamental Fairness Approach – does not look to the Bill of Rights, instead a
case by case analysis is applied to determine if a grave injustice would occur.
- Fundamental Fairness would likely absorb many of the liberties of the Bill of Rights
AND may recognize unenumerated rights protected by substantive due process.
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-
9th Amendment argument - allows for protection of unenumerated rights not mentioned in
the Bill of Rights.
Duncan v. Louisiana (1968). HOLDING, WHITE: Due Process Cl in 14th Amendment
incorporates the right to a jury trial in criminal cases; right is fundamental to American scheme
of justice.
McDonald v. City of Chicago – Is 2nd Amendment incorporated in concept of due process?
- City of Chicago banned possession of handguns in homes. City argues the law is
constitutional because the 2nd Amendment is not incorporated against the States under
14th Amendment substantive due process.
- Must determine if the right to bear arms is fundamental to our scheme of liberty or
whether the right is “deeply rooted in the Nation’s history and tradition.”
- Under the Court’s precedents, if a Bill of Rights guarantee is fundamental from an
American Perspective, unless stare decisis suggests otherwise, that guarantee is fully
binding on the States.
- The Court holds that the Due Process Clause of the 14th Amendment incorporates
the Second Amendment right to bear arms.
Substantive Due Process and Economic Liberties
- Liberty/Freedom to contract is intrinsically valuable to individuals, government
curtailments prohibits such freedom.
- However, states must at some point restrict the rights to contract for the benefit of
society.  Minimum wage laws – abridge the rights of employers to pay employees less
than a certain amount.
o Prevents disparity in bargaining power and abuse by employers. Government
restrictions on wage freedom ensures workers are making free, non-dictated
decisions.
- During the Progressive Era and years after, Supreme Court strikes down various state and
local regulations that limit freedoms to contract.
Lochner v. New York (1905) – NY law sets maximum hours bakers may work.
- Lochner was convicted and fined for permitting an employee to work more than 60 hours
in one week, or more than 10 hours in one day. Lochner appealed, arguing the law was
unconstitutional for burdening his right to contract with employees.
- States may regulate safety and health conditions for the general welfare of the public via
police powers. – must be a limit to the exercise of police power otherwise 14th
Amendment would have no efficacy and States would have unbounded power.
- Court states, “there is no reasonable foundation for holding this law to be necessary or
appropriate as a health law to safeguard the public health or the health of the individual
bakers.
o The freedom of master and employee to contract with each other in relation to
their employment cannot be prohibited or interfered with without violating the
Constitution.
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Nebbia v. New York (1934) – application of rational basis test to NY law on milk price.
- NY legislature established a Milk Control Board with the power to fix minimum and
maximum retail prices.
- Nebbia, owner of a Rochester grocery store, was convicted of selling milk below the
minimum prices established by the Control Board.
- Issue: Does the Constitution prohibit the state from setting standard prices?
- The guaranty of due process demands only that the law shall not be unreasonable,
arbitrary, or capricious, and that the means selected shall have a real and
substantial relation to the object sought to be attained.
o Court holds a state is free to adopt whatever economic may policy may
reasonably be deemed to promote public welfare and the state may enforce that
policy with appropriate legislation.
o **If the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and the laws are not arbitrary or discriminatory, due process
requirements will be satisfied.
- Nebbia = reduced judicial role in scrutinizing the means employed in economic
regulations.
- Rational Basis Test – court will ask if the law is reasonably related to a legitimate
government interest. Law will be valid if it passes the rational basis test.
-
West Coast Hotel Co. v. Parrish (OVERRULES ADKINS) – employee sued employer to
recover difference between her actual wages and the state minimum wage requirement.
a.
Is a state law setting the min wage for women a valid and reasonable exercise
of the state’s police powers? Yes.
b.
Black letter rule: Regulation that is reasonable in relation to its subject and is
adopted in the interests of the community satisfies the due process clause of the
14th Amendment.
c.
The legislature has wide discretion in determining what is necessary to protect
public health, safety, morals, and general welfare.
United States v. Carolene Products Co. (1938)
- If rights-based claim is textually supported by the Constitution, court has ample
grounds to strictly review the law that is denying the right.
- Courts may review claims of unenumerated rights more aggressively when the right
affects the healthy political process and function.
- May be instances when someone invokes a right abridged by a law and the effect is felt
by a certain minority (i.e. religious, racial, etc.)
o Those most adversely affected will be constantly outvoted when trying to evaluate
the law democratically  courts will aggressive review laws under this category.
Williamson v. Lee Optical Co. (1955) - A state may regulate a business if its legislature
determines there is a particular health and safety problem at hand and that the regulation in
question is a rational way to correct the problem.
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-
-
Although the Oklahoma law may exact a needless, wasteful requirement in many cases, it
is for the legislature, not the courts, to balance the advantages and disadvantages of the
new requirements.
Law just needs to pass rational basis test to be justified, does not matter if it appears
unnecessary or wasteful.
Substantive Due Process and Privacy; 3rd, 4th, 9th, 14th ammendments
- No right to privacy expressed in the Constitution; 3rd and 4th Amendments hint at a right
to privacy for citizens (by preventing quartering of soldiers and unlawful searches and
seizures).
- The concept of privacy referred to in Due Process Clause cases encompasses some
aspects of individual decision making deemed too intimate to be regulated by the state.
o Myers v. Nebraska (1923) – freedom to acquire knowledge and teach foreign
languages found to overturn state law which forbid the teaching of foreign
languages to young children.
o Skinner v. Oklahoma (1942) – Oklahoma law requiring sterilization after third
conviction of felony involving “moral turpitude” found to violate the right of man
to procreate. Court found basic liberty existed under the Equal Protection Clause.
 Court used heightened standard of scrutiny to protect a court-defined
“fundamental right” – arguably helped pave way for Griswold and Roe.
Griswold v. Connecticut (1965) – Privacy and Due Process clause
- CT law prevents anyone from using contraceptives. Married couple brings forth the
argument that the law abridges the privacy of the couple.
o Lochner type laws (liberty of contract) effect ones “public life.”
o Griswold argues that the right to use contraceptives and decide when a couple
wishes to procreate is a right that affects their “private life.”
- Court does not apply a rational basis test – the law cannot stand as is because the
right to privacy invoked is such a distinguishing characteristic that the state cannot
regulate it.
- **Control over bodily decisions are a special zone of rights worth higher
protections**
- Right to privacy demands greater than normal judicial scrutiny when courts look to
assess the validity of a state law which hinders citizens’ privacy.
Roe v. Wade (1973) – woman’s right to an abortion.
- Issue: Is the right to an abortion a right conferred upon to a woman’s zone of privacy and
right to make decisions about her body.
- Liberty interests of the pregnant female include: 1) bodily autonomy –woman must bear
the effects of 9 months of pregnancy, economic loss, social loss etc.; 2) life choices –
woman may face financial, professional and psychological sacrifices; 3) gender equality.
- Government interests include: 1) women’s health (at the time of the case); 2) interest in
safeguarding human life.
- Court finds the right to privacy in the liberty protected by the 14th Amendment Due
Process Clause, without invoking the approaches of Griswold (Penumbras & 9th
Amendment right to privacy).
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-
Court establishes a rule of law based on trimesters of a pregnancy:
o During the first trimester, any state restriction on a mother’s right to an abortion is
unconstitutional.
o During the second trimester, state may regulate abortions insofar as doing so is
necessary to protect the health of the mother.
o During the third trimester, state may proscribe abortion for interests in
safeguarding potential life, except when abortion is necessary to save the life of
the mother.
o Threshold between the 2nd and 3rd trimesters deals with “viability” – when the
fetus becomes capable of survival outside the womb with medical services.
Planned Parenthood of Southeastern Pa v. Casey (1992) – 24 hour law after decision to abort.
- PA law requires a woman to wait 24 hours after deciding to get an abortion. The idea
being that the woman will have a chance to reflect before proceeding with procedure.
- Court decides to reaffirm decision of Roe as good law, holds the PA law unconstitutional.
- Justices are emphatic about the decision not to overrule Roe because of its correctness,
but rather because of the precedent.
- Court holds that the PA statute is invalid because the means chosen by the State to further
the interest in potential life must be calculated to inform a woman’s free choice, not
hinder it.
o Law cannot create a substantial obstacle to the woman’s exercise of her right to
choose whether or not to have an abortion.
o 24 hour waiting period is particularly burdensome to women who must travel long
distances, have few financial resources, or face violence from a partner or spouse
in having to try and explain the situation.
- Court abandons the trimester test established in Roe, and evaluates the
Constitutionality of abortions based on the “undue burden standard.”
o Pre-viability – state may restrict access to abortions so long as it does not impose
a substantial obstacle to the decision of an abortion.
o Post-viability – Test remains the same as in Roe. Proscription of abortion is
allowed unless to save the life of the mother.
Substantive Due Process and Family Relationships/Right to Die/Marriage
- All privacy rights cases stem from Griswold  other deeply personal interests that
are in line with autonomy include familial rights, marriages, right to die cases.
- When the court faces a substantive due process claim today, the framework consists
of:
o Plaintiff asserts a law violates substantive due process for abridging a right,
court must ask, “Is the right asserted fundamental or not?”
o If NO  court applies a rational basis test to determine if there is a
connection between the law and the interests of the state.
 Law will be upheld as long as the law is rationally related to a
legitimate government interest. (interest should be health, safety or
well-being related)
o If YES  court will evaluate the law under strict scrutiny. Given the law
infringes upon a fundamental interest, the presumption is opposite of
39
rational basis. Law will only be upheld if the law is narrowly tailored to a
compelling government interest.
Moore v. East Cleveland (1977) – Familial rights, right to live with relatives.
- Constitutional challenge is brought against a city provision to residential dwellings that
states occupants may only live with immediate family members and not extended family.
o City argues they have an interest in minimizing traffic, prevent overcrowding.
- In Belle Terre, the court upheld a similar co-habitation restriction with respect to living
with non-family members. Court found no fundamental right exists to live with people
from outside your family.
- Court finds Ms. Moore’s right to live with her grandchildren is more essential and
intimate than living with non-family members.
- Court points to tradition of family as a fundamental right, constitution protects families.
- While definition of family might change over time, family is always treated throughout
history as a special institutional arrangement.
o The difficulty in evaluating a claim of a fundamental right rests in
characterizing the right asserted and identifying the level of generality in
which the right is asserted...in this case, is the right asserted a right to live with
grandchildren or a general right to live with family members?  court
characterizes right generally.
- If there is an alternative to the law that could be imposed without abridging the
fundamental right, the law at issue will likely be found unconstitutional.
- In Moore, the city could limit traffic and overcrowding by ordinances w/o referring to
family members that can or cannot live together. Law could be over-inclusive or underinclusive with respect the city interest.
o Over-inclusive  law in Moore would prevent even one person from living with
their extended family and therefore sweeps too broadly to forward a goal of
overcrowding.
o Under-inclusive  Law could allow too many nuclear family members to live
together and thus go against the overcrowding initiative.
Michael H. v. Gerald D. (1989) – right of father to raise his child.
- CA state law applies the presumption that the father a of a child is the husband in a
marriage when the child is born.
- Plaintiff Michael H. claims the child at issue is his (product of an affair) and has DNA
testing evidence that shows the child is 98% likely to be his.
- Plaintiff asserts a fundamental right to have a relationship with his son...court must assess
the nature of the right asserted.
- Court narrowly defines the right asserted by the Plaintiff say the rights asserted is the
“right of an adulterous father to intervene in a married couples’ right to raise their child.”
- Under this narrow tailoring, the court finds there is no fundamental right asserted, there is
no traditional right as such under the Constitution.
o Had the court characterized the right as a more general right of a child to know his
father, or father to know his child, outcome would be different.
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-
Court determines the issue is that the courts traditionally protect the marital family
against claims asserted such has the Plaintiff’s.
The difference between broad and narrow asserted rights can alter the outcome of the
case.
Cruzan v. Director, Missouri Dept. of Health (1990) – right to die.
- Nancy Cruzan winds up in a vegetative state after a car accident in 1983. Her parents
apply to the state to remove her feeding tube and let her die.
- Cruzan has no living will, Missouri law requires that if a 3rd party wishes to terminate the
life support of another, clear and convincing evidence is required to show the sick
individual would have wanted to die.
o Parents offer evidence such as past conversations, but they don’t meet the legal
threshold required.
- Missouri Supreme Court finds there is no clear and convincing evidence, denies petition
to pull life support.
- Parents appeal to the Supreme Court arguing there is no constitutional right for Missouri
to require clear and convincing evidentiary standard.
- **With a competent individual, right to refuse treatment is constitutionally protected.
Issue here is Cruzan is not mentally competent in here current state.
o It could be argued that Nancy would more likely than not desire not to live in her
state if she could talk.
- Court says there is a compelling government interest to protect people from being
killed against their will.  death is irreversible, when the evidence is unclear as to
whether or not a person would want to continue to live on life support, the court will
decide in the favor of having the incompetent person live.
Washington v. Gluckberg (1997) – right to physician assisted suicide.
- WA law prohibits physician assisted suicide...issue is whether or not the WA law violates
a fundamental right to end one’s life?
- Different from Cruzan in that patients are not seeking medical treatment to kill them as
opposed to refusing lifesaving treatment. Plaintiffs are mentally competent individuals
but have terminal illnesses.
- Does the “liberty” specially protected by the Due Process Clause include a right to
commit suicide which itself includes the right to assistance?
o Court mentions the longstanding tradition that states and common law have
frowned upon suicide, criminalizing it in some places.
- WA has a compelling interest to protect life and is worried about slippery slope  family
members could pressure others to commit suicide because burdens brought about by
illness. Forms of coercion from doctors could kill people who wish not to die.
o Mentally ill patients who could easily be cured with treatment may pressure
doctors to allow them to kill themselves.
- Court holds there is no constitutionally protected right to commit suicide, concurring
judges do hint at possibility that in some cases, a patient can seek palliative care that will,
in essence, accelerate a patient’s death.
o Death as a Fundamental Right Under Due Process
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
There is a liberty interest in refusing unwanted medical treatment
(Cruzan v. Director, Missouri Dept. of Health (1990; 614) though finding state
could require clear and convincing evidence)
 BUT: A State’s interest in protecting life allows it to apply a clear and
convincing evidence standard in proceeding where a guardian seeks to
discontinue nutrition and hydration of a person diagnosed to be in a
persistent vegetative state
 BUT: Upheld ban on assisted suicide because there was no history of
fundamentality, thus substantive due process analysis was not
applicable. Moreover, the court found legitimate state interests in
preventing suicide, promoting ethics, and protecting vulnerable groups
 Further: Permitting refusal of life support while banning assisted
suicide is not a violation of equal protection (Vacco v. Quill (1997;
627))
Substantive Due Process/Equal Protection of Sexual Intimacy and Privacy
- Draws from the Griswold case, right to privacy in the bedroom.
- What rights to homosexual couples have?
- Same sex marriage laws often cause litigation that argues discrimination under Equal
Protection clause as well as Substantive Due Process rights to liberty.
o Equal Protection Clause – courts distinguish between suspect laws of
classification (race) which are subject to strict scrutiny and non-classification
(age, economic status, etc.) which are subject to rational basis.
o Threshold matter = what level of scrutiny is applied to the law being challenged?
o
Family Relationships
 Marriage is a fundamental right under the Due Process clause (Loving v.
Virginia (1967; 591) striking down ban on interracial marriage since race was not
sufficient state interest; was also found unconstitutional on equal protection
grounds)
 Right to marry is part of the fundamental right of privacy implicit in
Due Process Clause (Zablocki v. Redhail (1978; 591) striking down law
requiring residents to prove they did not have non-custodial children not
being supported on equal protection grounds, but influenced by
substantive due process)
o BUT: Reasonable regulations that do not significantly
interfere with decisions to enter into the marital relationship
may legitimately be imposed
o Stuck down regulation restricting prison inmates’ right to marry
on the prison superintendent’s approval for compelling reasons
(Turner v. Safley (1987; 593))
 When the government intrudes on choices concerning family living
arrangements, the Court must examine carefully the importance of the
governmental interests advanced and the extent to which they are served
by the challenged regulation (Moore v. East Cleveland (1977; 593) striking
down a zoning ordinance that defined families as only nuclear units)
 Extended relevant family interest to extended family members
o BUT: Not to unrelated groups (Belle Terre v. Boraas (1974)
upholding zoning ordinance that excluded non-relatives)
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o
o
BUT: Parents decisions have more weight (Troxel v. Granville
(2000; 596) overturning judicial permission to visit grandchildren
against will of mother)
 BUT: Sometime even parents desires regarding their
children are not protected by due process (Michael H v.
Gerald D (1989) (upholding a denial of biological father’s
right to see child born to wife married to another man
because of presumption of paternity to her husband)
 Tradition: Scalia argued that Due process
protection requires not merely that the interest
denominated as a liberty be fundamental, but
also that it be an interest traditionally protected
by our society
 Due process clause protects the fundamental right of parents to
make decisions concerning the care, custody and control of their
children (Troxel v. Granville (2000; 596) overturning judicial permission
to visit grandchildren against will of mother)
Sexuality as a Fundamental Right under Due Process
 Court held that homosexual sodomy is not a fundamental right (Bowers v.
Hardwick (1986; 600) OVERTURNED BY LAWRENCE)
 Right to intimate association is protected by substantive due process
(Lawrence v. Texas (2003; 602) overruling anti-sodomy law because it lacked no
legitimate state interest which can justify such an intrusion)
 Court refers to foreign laws decriminalizing homosexual sex as a
supporting fact for the idea that it is a universal human right
 Does not extend to adoption context (Lofton v. Secretary of
Department of Children and Family Services (2004; 613) upholding
adoption ban on ground that State could have rational interest in placing
adoptive children in homes that will provide them with optimal
developmental conditions)
Bowers v. Hardwick (1986) – GA sodomy law.
- GA law is neutral on its face but clearly burdensome to same sex couples by
criminalizing sodomy  Sub. Due Process challenge brought.
- Court begins by assessing whether the law abridges a fundamental right, court is very
narrow in categorizing the right asserted by the plaintiffs.
o As opposed to saying the right asserted is a general right to intimacy or privacy,
court says the right asserted is a right to engage in homosexual relations.
o Court looks to tradition and history of United States – many states criminalized
sodomy and have laws on the books.
- Because the court finds no fundamental right is prevalent, the state just has to show
there is a rational basis between the law and the state’s interests.
- State argues people of GA find sodomy condemnable and the overall well-being of the
state is promoted by outlawing sodomy.
- Court upholds the law as it applies to homosexual sodomy.
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Romer v. Evans (1996) – CO amendment to state constitution bans special protections under the
law for LGBT community. Equal Protection Clause argument more applicable than SDP privacy
- During the 1990s, many cities banned discriminating against others based on sexual
orientation....State of CO proposes Amendment to State Constitution that would ban the
passing of these ordinances.
- Case falls squarely into an EPC challenge  Does CO Amendment 2 deprive the LGBT
community of the ability to obtain equal protection?
- Court chooses to apply a rational basis review, does not hold that sexual orientation is a
classification that would trigger strict scrutiny.
o “A law declaring that in general it shall be more difficult for one group of citizens
than for all others to seek aid from the government is itself a denial of equal
protection of the laws in the most literal sense.”
- Court holds that Amendment 2 and the principles it offends bear no rational relationship
to a legitimate government purpose.
- **Court has essentially developed a new standard of review  rational basis with
bite is applied to the CO Amendment.**
o When it comes to laws that target LGBT community, animus is likely a
lurking reason for its enactment. Sexual orientation may not justify a
classification triggering strict scrutiny, but it warrants more than rational
basis.
Lawrence v. Texas (2003) – TX anti-sodomy law aimed at same sex behavior.
- Houston police officers respond to a call about a reported weapons disturbance. Police
enter apartment where petitioner and another man are engaged in consensual sexual
activity. Petitioners are found guilty under statute.
- Court comments, “To say that the issue in Bowers was simply the right to engage in
certain sexual conduct demeans the claim the individual put forward, just as it would
demean a married couple were it to be said marriage is simply about the right to have
sexual intercourse.”
o Court takes issue with the fact that sodomy laws in the United States do not have
a tradition of being enforced against same sex couples, more or less just used a
blanket to ensure prosecution of sex offenders.
- **Issue in this case is whether the majority may use the power of the State to enforce
societal views on homosexual behavior through the criminal law**
- The right asserted by Lawrence is the right private sexual intimacy, court must apply
strict scrutiny as this fundamental right has a long tradition  consensual, private sexual
behavior does not harm other individuals nor impose a risk to third parties.
- Insofar as TX argues that it may condemn behavior on a moral ground, the court states
more reasoning is needed to survive strict scrutiny  regulation of morale alone is not a
legitimate government interest to sustain a law challenged by strict scrutiny.
- Tough to find a law that could be upheld on a moral ground alone without the state also
arguing to show a concrete harm as well.
o “The TX statute furthers no legitimate state interest which can justify its intrusion
into the personal and private life of the individual.”
Obergefell v. Hodges (2015) – Right to same sex marriage.
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-
-
Justice Kennedy determines the right asserted by the petitioners is the broad right to
marriage, not a narrow right to gay marriage.
o In Loving v. Virginia the court held marriage is “one of the vital personal rights
essential to the orderly pursuit of happiness by free men.”
Court points out four (4) principles and traditions of marriage: 1) concept of individual
autonomy; 2) protects intimate relationships and two person unions; 3) safeguards child
raising and family institution; 4) protects key social benefits such as taxation, property
inheritance, spousal privilege under the law of evidence, medical care access, etc.
“The right of same-sex couples to marry that is part of the liberty promised by the
14th Amendment is derived from the Amendment’s equal protection clause and
substantive due process doctrine.”
Fundamental Right to Vote
- Right to vote is often decided on the basis of Equal Protection Clause. Courts have held
that a law can be subject to strict scrutiny because of classification and unequal
treatment with respect to an interest or right.
- EPC doctrine and Substantial Due Process doctrine overlap  reviews laws strictly
because of implications of voting as a fundamental right.
o Constitution does not expressly enumerate a right to vote, there are no provisions
that require democratic elections.
o Certain provisions protect voting rights: Art. IV guarantees a republican form of
government, 15th Amendment prohibits race discrimination in voting; 19th
Amendment prohibits gender discrimination in voting; 24th Amendment abolishes
poll taxes in federal elections.
 Court has used 14th Amendment as a supplemental provision to protect
voting rights of individuals.
- Right to vote is fundamental as a safeguard to all other rights and laws that have been
previously established. Right to vote must guarantee the political process be carried out.
Three (3) Categories of Right to Vote Issues
- Direct burdens on the right to vote. (Harper compare with Marion County)
- State practices that involved malapportionment of districts which dilute the vote.
o Can’t have district with 10 voters = district with 1000 voters for power purposes.
- Gerrymandering  drawing district maps for enhancing one party’s political power by
allocating districts that result in large number of representative for one party in state
where populous is evenly split amongst political ideology.
Harper v. Virginia State Board of Elections (1966) – Poll tax is state elections
- Virginia law allows for $1.50 poll tax with respect to elections for state officials (24th
amendment not applicable to state elections.)
- Law is facially neutral in that it theoretically applies to all voters, but has racial
undertones to prevent blacks from voting in state elections.
- Court reviews the law under strict scrutiny because it involves the fundamental right to
vote  imposes a burden and must be justified to some substantial government interest in
order to survive judicial review.
o State argues the legitimate interest in the poll tax is to raise revenue.
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-
Court states that wealth, similar to race, creed, gender is not germane to one’s
ability to participate intelligently in the electoral process.
Court holds that equal protection prevents States from fixing voter qualifications which
invidiously discriminate  right to vote is too precious and too fundamental to be
discriminated against based on wealth.
Kramer v. Union Free School District No. 15 (1969) – right to vote in local school elections.
- Petitioner is a 31-year-old single male who lives at home with his parents and has no
children that attend the local school.
- New York State education law only allows for individuals who own or lease property
within the school district or have children enrolled in the district to vote in school board
elections.
- Petitioner does not meet the qualifications to vote, however, the court states that, “Any
unjustified discrimination in determining who may participate in political affairs or in the
selection of public officials undermines the legitimacy of representative government.”
o State argues that the district has an interest in limiting the election to only those
who are taxpayers or have children in the school district as they are “primarily
interested in such selection.”
- Court holds the classification of who can and can’t vote does not survive strict
scrutiny  one could argue everyone has an interest in public schools to ensure that
future generations of students are educated adequately.
Crawford v. Marion County Election Board  court upholds Indiana voter ID law. State
requires an ID in order to vote in state elections.
- Petitioner argues the voter ID law is similar to an informal poll tax as it costs $ to obtain
an ID. Petitioner argues there should be no preconditions necessary to vote.
- State rebuts that IN offers free IDs (although this could impose opportunity costs as
someone may need to miss work or may not be able to feasibly obtain the ID).
- **Court holds that Harper does not mean that all burdens on the right to vote
automatically trigger strict scrutiny  strict scrutiny does not apply if the burden is
minimal or solely a slight inconvenience.**
EQUAL PROTECTION
APPLIES WHEN IT IS NOT A FUNDAMENTAL RIGHT IMPLICATED BY
THE PREVIOUS UNIT.
(Unit V)


No State shall deny to any person within its jurisdiction the equal protection of the laws
o Applies to the federal government through the due process clause of the Fifth Amendment
(Bolling v. Sharpe (1975; 640/676)
Clear and central purpose of the 14th amendment was to eliminate all official state sources of
invidious racial discrimination in the States (Loving v. Virginia (1967; 681)) Though it has now
been applied to many other areas
46


Background: Equal protection demands that there be some rational connection between
classification and objectives
o Idea of underinclusive and overinclusive.
 In general, underinclusive laws are ones that are aimed at a problem that fail to
address all causes of it. Overinclusive laws are aimed at a problem and in
addressing it also include non-causes.
 Tussman-tenBroek analysis [645] refers to the defining characteristic of the
legislative classification as the trait – T. It refers to the purpose of a law as being
aimed at eliminating a mischief – M. It envisions five potential situations:
 All Ts are Ms, and all Ms are Ts.
o Perfectly Reasonable
 No Ts are Ms (and no Ms are Ts)
o Perfectly Unreasonable
 All T’s are M’s, but some Ms are not Ts.
o Underinclusive
 All M’s are T’s, but some Ts are not Ms.
o Overinclusive
 Some T’s are M’s, Some T’s are not M’s, and Some M’s are not T’s.
o Underinclusive and overinclusive
Rational Basis
o At First, Court was very Deferential in applying Rational Basis
 It is not a requirement of equal protection that a rational law be perfectly rational,
rather, a degree of under- or over-inclusiveness is (Railway Express Agency v. New
York (1949; 647) upheld ban on advertising on vehicles not primarily engaged in
transportation)
 Rational Basis Scrutiny upholds legislation where the legislature had a rational
basis for enacting the legislation (Williamson v. Lee Optical (1955; 650) rejected
equal protection challenge, held that there was sufficient basis to discriminate
between opticians and sellers to read-to-wear glasses)
 Minimal scrutiny in theory and virtually none in fact (Gunther)
 The constitutional safeguard is offended only if the classification rests on
grounds wholly irrelevant to the achievement of the State’s objective. A
statutory discrimination will not be set aside if any state of facts reasonably
may be conceived to justify it (McGowan v. Maryland (1961; 650) Denied
equal protection challenge to Sunday Closing law exceptions)
 Legislature can pursue equality one step at a time and is not constitutionally
infirm for failing to address every evil (McDonald v. Board of Election Commissioners
(1969) Rejected challenge by qualified voters in jail awaiting trial desiring access to
absentee ballots)
o With few exception, court stayed very deferential
 Exceptions
 Striking down limitation of federal food stamp program giving assistance only
to households limited to groups of related persons (U.S. Dept of Agriculture
v. Moreno (1973; 651) finding classification to be wholly without any rational
basis)
 Struck down provision of Social Security Act denying disability benefits to
some but not all illegitimate children born after the onset of their wagerearner parent’s disability
 BUT: Though court said it was applying rational basis, in both cases grounds
for heightened scrutiny arguably existed
 Deferential Review
 Especially with economic regulation (New Orleans v. Dukes (1976; 652)
sustained provision grandfathering in long-time pushcart venders to
restrictions on vendors in the French Quarter)
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
Upheld a mandatory retirement law for state police – though the justice
concerns may be grave, when there is no suspect class or fundamental right,
there is no constitutional remedy (Massachusetts Bd. of Retirement v. Murgia
(1976; 653)
Plessy v. Ferguson (1896) – separate but equal facilities are constitutional.
- LA law insisted upon segregated railcars for all trains travelling through the state. Plessy
stages an arrest (test case brought by Citizens Committee of New Orleans in the hope that
the Supreme Court will comment on Reconstruction ideas of 14th Amendment.)
- At the time, many southern states have public facilities that are segregated by race in
order to perpetuate the idea of white supremacy.
- Instead of jeopardizing segregation in the South, the court validates segregation through
the fallacy of “separate but equal.”
o Court holds segregated facilities must be equal in material sense, violation of EPC
would only be found if all the white facilities have better quality as compared to
the colored facilities.
o Court rejects idea that segregation is purported to demonstrate inferiority of
colored races.
Legal Strategy Leading to Brown v. Board of Education (Equal Protection and Education)
- In the 1930s, Thurgood Marshall and NAACP begin strategizing legal theories.
- String of cases is brought in order to chip away at Plessy’s foundation, the cases are
focused largely on education to operate within the Plessy framework.
- NAACP sends lawyers throughout the South to bring cases in federal court arguing that
segregated education institutions are not equal  do not meet Plessy standards.
- Gaines v. Canada – black applicant refused admission to Missouri Law School. State
argues that it would pay for the student to attend out of state school while in the process
of building an all-black law school. Court strikes down argument and requires admission
of student to in-state school.
- Sweatt v. Painter – Texas Law School cannot deny education to black students because
of the existence of an all black school. The two facilities are clearly not equal, UT has
better resources, extracurricular opportunities and the UT degree holds far more prestige
than an alternative option  strong UT alumni network and connections made outside
school upon graduation.
- McLaurin v. Oklahoma – Black student is admitted to the State law school but every
effort is made to keep him separate from while students. Court declares the practices of
the school unconstitutional.
Brown v. Board of Education (1954)
- NAACP puts for a straight forward argument that students in segregated school districts
are not afforded equal protection under the law.
- Oral argument is first heard in 1952, at the time it appeared to be a 5-4 decision amongst
the judges to uphold Plessy and allow the continuance of segregation. Justices wanting to
overturn Plessy need to time to persuade the other judges and set a date for subsequent
oral argument the following term.
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In the interim, Chief Justice Vinson dies and is replaced by Chief Justice Earl Warren and
Warren persuades the court to rule in favor of overturning Plessy.
“We conclude that in the field of public education the doctrine of separate but equal has
no place. Separate education facilities are inherently unequal. . . Plaintiffs have been, by
reason of segregation, deprived of equal protection.”
o Brown II  court requires that remedies for the school districts to comply with
the decision shall proceed with “all deliberate speed.”
o De facto segregation of the time period made it almost impossible to integrate the
school districts as blacks tended to live with blacks and whites lived with whites.
o Residential segregation resulted from housing policies, residential zoning laws,
redlining practices by lenders, etc.
o Simply telling school districts not to segregate does not end segregation.
Milliken v. Bradley (1974) – busing between districts in an effort to integrate.
- Lower court had directed busing across district lines between the city of Detroit, where
de jure segregation had been found and suburban areas where it had not.
- Court found that absent any inter-district violation, there is no basis for an interdistrict remedy  “The notion that school district lines may be casually ignored or
treated as a mere administrative convenience is contrary to the history of public
education.
- Unless it can be shown that the district intentionally segregated itself, no remedy.
- Court holds that school districts cannot bus students from one district to another in an
effort to achieve an integrated school system.
Race Based Classifications and Intentional Discrimination
- Race based classifications or racially discriminatory laws will trigger the reviewing
court to apply strict scrutiny.
- Some laws may not facially discriminate based on race, however there may be racial
undertones and the law will nonetheless be found unconstitutional.
Korematsu v. United States (1944) – facially discriminatory law against minorities in WWII.
- **First case to trigger strict scrutiny in reviewing laws involving race based
classifications.** (very rare case where race based classification survives strict scrutiny)
- Post Pearl Harbor attack, executive order places citizens and non-citizens of Japanese
descent under curfews. If persons are non-compliant, offenders are placed in internment
camps.
o “All legal restrictions which curtail the civil rights of a single racial group are
immediately suspect. That is not to say that all restrictions are unconstitutional.
Pressing public necessity may sometimes justify the existence of restrictions.
o Court sides with the Military officials providing information to the court,
government may have litigated fraudulently to uphold the executive order.
- Justice Jackson Dissent:
o Jackson believes the Court is not qualified to determine if a true military necessity
is required of the curfew.
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o Does state that the presumption of invalidity of the law should apply regardless of
emergency if civil liberties are violated and court decides the military is acting
unconstitutional. (likely though the military will not comply with a court order).
Loving v. Virginia (1967) –VA state law criminalizes the interracial marriage of couples.
- Issue: Does a state statutory scheme to prevent marriages between persons solely on the
basis of racial classifications violate the 14th Amendment?
- State of VA argues that because the law applies to both black and white spouses and
punishes both classes equally, there should be no violation of the EPC.
- Court notes the issue with the law is that it classifies races and defines a form of
prohibited conduct by race itself.
o Race based classifications are always subject to strict scrutiny. Laws that use race
as a sorting mechanism trigger strict judicial review.
o **To know how you are treated under the law, if race is facially present, there is a
race classification strict scrutiny.
o Court finds no legitimate, permissible state objective based on the law.
o “NO legitimate overriding purpose independent of invidious racial discrimination
which justifies the law.”
Yick Wo v. Hopkins (1886) – facially neutral law with discriminatory purpose and effect.
- **Facially neutral laws may still impose purposeful discrimination because of the
manner in which the law is administered**
- A San Francisco ordinance prohibited operating a laundry (except in buildings made of
stone or brick) without the consent of the Board of Supervisors.
- Of the 320 laundries in the city, 310 were operated in wood buildings. 240 Chinese
applicants applied for consent and all were denied.
- Although the law was facially neutral in simply requiring all laundry owners to apply for
a permit, the application of the law clearly discriminated against Chinese laundry owners.
- Facially neutral laws with discriminatory purpose and effect trigger strict scrutiny.
Washington v. Davis (1976) – Facially neutral law with discriminatory effect (not purpose)
- Washington DC Metropolitan Police require that all applicants take a written exam
measuring the applicants verbal, vocabulary, reading, and comprehension.
- Results of the tests produce more white recruits passing than black recruits.
- ISSUE: Does a law violate the EPC due to disproportionate results?
o Court holds that the Police Department’s hiring practice does not violate the equal
protection clause.
o **Laws that are facially neutral do not trigger strict scrutiny on the basis of
discriminatory effects alone . . . EPC requires only equal treatment under the
law, it does not require equal results.**
- Court justifies the law based on two principles:
o 1) The government with respect to race  if the government is not intending to
discriminate, any inequalities that result are not attributed to the government but
rather broader societal and historical factors.
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o 2) Court’s concerns with implications of EPC theory with respect to court’s
institutional role  The problem of entrenched inequality in American society is
too difficult for the court alone to solve.
If every facially neutral law that created inequalities triggered strict scrutiny, court would
be overwhelmed with arguments about constitutional violations.
Judicial role becomes too broad in preventing discrimination.
**Touchstone of a racially discriminatory law is the intent/design of the law.**
Notes on Facially Neutral Laws
- In order for a facially neutral law to trigger strict scrutiny, the petitioner must show
there was discriminatory intent in the enactment of the law. Way to show
discriminatory intent:
o 1) look to the legislative record, if challenger of a law can show the law was
supported because of its discriminatory effect, strict scrutiny may be applied.
o 2) Racial discrimination may be inferred by the discriminatory effects, applies
only in a limited number of cases.
 In this instance, the discrimination is so obvious that the Court can only
conclude that it must have been the intention of the legislature to enact the
law with discriminatory intent.
 Example: Gomillion v. Lightfoot – redrawing of legislative district so
egregious that there was clearly discriminatory intent even though there is
no direct evidence to prove such intent.
- Mixed Motives  How should the court respond when lots of considerations go into the
enactment of a law and racial classification/bias is one of the factors?
o Does strict scrutiny still apply if one legislator votes for a law that passes based
on his own personal intention that the law will discriminate and go hand in hand
with his racists beliefs?
o Courts tend to remain on high alert for race and gender based biases in a law.
Arlington Heights v. Metropolitan Housing Corp (1977) – elaborates on the “subjects of proper
inquiry” with regard to official action that causes racially disproportionate impacts.
- Nonprofit developer planned to build federally subsidized townhouse units in a
predominantly white neighborhood so that low and moderate-income tenants, including
racial minorities, could live there.
- Court of Appeals held the denial of a re-zoning request unconstitutional because its
“ultimate effect” was racially discriminatory.
- Supreme Court reversed  Determining whether invidious discriminatory purpose
was a motivating factor demands a sensitive inquiry into circumstantial and direct
evidence of intent.
o Absent a pattern of discriminatory intent as stark as Yick Wo or Gormillion,
impact alone is not determinative of racially discriminatory intent.
o Evidence such as the departure from normal procedures could shed light on
discriminatory intent  for example had the area always been zoned for multifamily dwellings then all of a sudden it was changed to single family only, this
could indicate an intention to deny the federally subsidized townhouses.
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o ***IF enough factors tend to point towards a finding of racially discriminatory
intent, the burden shifts to the government to prove otherwise**
o Because the area had always been zoned single family and there was little
suspicion in the handling of the zoning request procedures, the court found there
was no racially discriminatory intent worthy of an EPC claim.
Trump v. Hawaii (2018)- TRAVEL BAN CASE
1. Are the plaintiffs’ claims challenging the president’s authority to issue the
Proclamation reviewable (“justiciable”) in federal court?
2. Does the president have the statutory authority to issue the Proclamation?
3. Is the global injunction barring enforcement of parts of the Proclamation
impermissibly overbroad?
4. Does the Proclamation violate the Establishment Clause of the Constitution?
-The Court assumed without deciding that the plaintiffs' claims are justiciable and
held that the Proclamation does not violate the president's statutory authority or the
Establishment Clause. The Court did not resolve the question whether the district
court's global injunction is impermissibly overbroad. Chief Justice John Roberts
authored the opinion for the 5–4 majority. The majority first considered Hawaii's
argument that the September 2017 order exceeds the president’s authority under
federal immigration laws. Under Section 1182(f) of the Immigration and Nationality
Act (INA), the president has "broad discretion" to suspend the entry of non-citizens
into the United States. The Proclamation was the result of a “worldwide, multiagency review” that determined that entry by certain non-citizens would be
detrimental to the interests of the United States. Thus, the Proclamation does not
exceed any statutory power of the president.
-Nor does the Proclamation violate another statute, Section 1152(a)(1)(A), which
bars discrimination based on nationality in the issuance of visas. While that section
prohibits discrimination, it does not limit the president's authority to block the entry of
nationals of some countries, just as several other presidents have done before
President Trump.
-Finally, the majority considered the plaintiffs' Establishment Clause claim. On its
face, the majority found the Proclamation did not favor or disfavor any particular religion.
But even looking behind the face of the Proclamation, the majority found that the facts
that many majority-Muslim countries were not subject to restrictions and that some nonmajority-Muslim countries were subject to the restrictions supported the government's
contention that the Proclamation was not based on anti-Muslim animus and was instead
based on "a sufficient national security justification."
Affirmative Action and Racial Preferences in School Admissions
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To the extent the government passes a law in an effort to ameliorate because of racial
discrimination, how does the EPC respond to race conscious action that is not intended to
subordinate a racial group, but rather tries to correct marginalization?
Two EPC viewpoints with affirmative action type laws:
o 1) Anticlassification/Colorblind Perspective  Justice Harlon’s dissent in Plessy.
 Constitution neither knows nor tolerates racial classifications. Under this
viewpoint, any time the government racially classifies, strict scrutiny is a
possibility regardless if the intent of the law is good or bad.
 Conservative wing of the court – any use of race based categories in a law
triggers strict scrutiny.
o 2) Anti-subordination/anti-caste view  Racial categories are not inherently
suspect, but rather are suspect to the extent they are used to marginalize
certain groups of people.
 Any laws used to create a hierarchy or perpetuate racial inequality should
trigger strict scrutiny.
Regents of Univ. of California V. Bakke (1978) – Special Admissions Program
- UC Davis Med. School sets aside a certain number of seats in its incoming class for
minorities only.
- Special Admissions Program establishes a certain quota for minority students that will be
met regardless of credentials.
- Court states that racial and ethnic classifications of any sort call for the application of
strict scrutiny in reviewing the law.
- The Special Admissions Program purports to serve the purposes of: 1) reducing the
historic deficit of traditionally disfavored minorities in medical professions; 2) counter
the effects of societal discrimination; 3) increase number of physicians who will practice
in underserved communities; 4) obtain the educational benefits that flow from an
ethnically diverse student body.
- The Court strikes down the first three of these purposes but finds merit in the 4th purpose,
acknowledging that diversity amongst a student population is clearly a constitutionally
permissible goal.
o Court looks to other admissions programs that do not ascribe a fixed number of
places to minority groups but rather deem it a “plus” if an applicant is of a racial
minority.
- Court finds a facial intent to discriminate in the preference program and that
programs where race or ethnic background are simply a factor to be considered are
the more appropriate way to admit students.
- ***When it comes to race conscious measures designed for non-malicious purposes,
strict scrutiny does not automatically declare a law unconstitutional if the law is narrowly
tailored to a legitimate government purpose.***
Richmond v. JA. Croson Co (1989) – Race preference in public contracting
- City ordinance requires at least 30% of city’s subcontract projects must be awarded to
businesses that are at least 50% minority owned.
- In Richmond, there is a large presence of racial minorities...could argue the local
government is attempted to remediate for past racial inequalities.
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Under ordinance, the only eligible groups were people of color  could argue the policy
discriminates against European or Asian minority groups.
Court acknowledges that if there were racial subordination within the Richmond
construction industry, this ordinance would be narrowly tailored and valid.
o However, the record does not demonstrate that racial subordination played a
factor in the lack of business on city projects being awarded to minority owned
businesses.
There can only be a compelling government interest to remediate racial
discrimination if the problem is actively identifiable.
“While there is no doubt that the sorry history of both private and public discrimination
has contributed to a lack of opportunities for black entrepreneurs, this observation,
standing alone, cannot justify a rigid social quota in the awarding of public contracts.”
o “To accept Richmond’s claim that past societal discrimination alone can serve as
a basis for rigid social preferences would be to open the door to competing claims
for remedial relief for every disadvantaged group.”
Grutter v. Bollinger (2003) – narrowly tailored admissions program that is constitutional.
- ISSUE: Can race be used as a factor in student admissions at the University of Michigan
Law School?
- School’s admission policy aspires to “achieve that diversity which has the potential to
enrich everyone’s education and thus make a law school class stronger than the sum of its
parts.”
- Policy does not restrict the types of diversity which are eligible for “substantial weight”
in the admissions process, but does state the school’s commitment to racial and ethnic
diversity with special reference to inclusion of students from historically discriminated
against groups.
- Court states that, “Student body diversity promotes learning outcomes and better
prepares students for an increasingly diverse workforce and society.”
o Court finds the admissions program is similar to the Harvard Program and does
not transform the program into a racial quota.
- Using race as a “plus factor” ensures that each and every applicant is evaluated as an
individual and does not simply make an applicant’s race the defining feature of the
application as whole.
- Admissions program also makes clear that there are many possible bases for diversity
such as individuals who are fluent in multiple languages, have traveled abroad, overcome
personal and family hardships, had successful careers in other fields, etc.
- HOLDING: the Equal Protection Clause does not prohibit the school’s narrowly
tailored use of race in admissions decisions to further a compelling interest in
obtaining the educational benefits that flow from a diverse student body.
Gratz v. Bollinger (2003) – unconstitutional use of race in admissions program.
- ISSUE: Is an arbitrary award for race in an admissions program acceptable? (i.e.
applicant received 20 points towards number required for admission into Michigan
undergrad simply because he/she is a minority).
- Mechanically awarding students for their race is not acceptable, even though an
individualized admissions program may be more difficult administration wise.
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Parents Involved in Community Schools v. Seattle School District (2007) – Racial diversity in
school assignments.
- School district adopts a student assignment place in which the school relies as race as a
factor in assigning students to schools so that there is a racial balance in the district.
- Plan allows incoming 9th graders to choose from among the districts high schools, if too
many students list the same school as their top choice, race may act as a “tiebreaker” in
determining where the student attends.
o ***School district must demonstrate that the use of race as an individual
classification in the assignment plans is “narrowly tailored” to a achieve a
“compelling” government interest.***
o Court states that, “Like the University of Michigan undergraduate plan
struck down in Gratz, the plans here do not provide for a meaningful
individualized review of applicants, but rather rely on racial classifications in
a non- individualized way.”
- The plans in this case are directed only to racial balance, an objective the Court has
repeatedly condemned as illegitimate.
- **Narrowly tailoring requires “serious, good faith consideration of available race-neutral
alternatives.**
Sex Discrimination and Equal Protection
- From a historical prospective, Reconstruction Congress proposed that EPC be aimed at
racial equality, not sex equality.
- Section II of 14th Amendment suggests drafters did not understand the provision to
prevent discrimination on the basis of sex.
- Textual argument could be made that EPC uses gender neutral language and speaks more
broadly to equal protection of laws to all.
o 19th Amendment gives women the right to vote, but changes the values of society
and could be argued at add to EPC arguments.
o Courts continue to apply rational basis from 1920s to 1970s and government
actions continued to perpetuate unjust sex discrimination.
- Equal Rights Amendment  Proposed Amendment which would have expressly forbid
sex discrimination throughout the US. Proposed in 1971, ratified by 35 states...needed
only 3 more to pass.
o While country debates whether or not to ratify the ERA, courts realize societal
views are shifting in regard to sex discrimination. ERA values are informally
embraced by the court and invoked in jurisprudence.
NOTES ON CLASSIFICATION
- Classifications = the basis on which a law discriminates. To determine the level of
scrutiny applied, one must first analyze the classification of the law.
- The law must discriminate on its face or discriminate in intent . . . facially neutral law
that can be shown to have passed because of legislative intent to discriminate.
(Washington v. Davis)
- Laws that create a disproportionate effect do not automatically trigger scrutiny
from the court . . . must show intent to discriminate (Arlington Heights)
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If law discriminates with respect to a fundamental interest, court may apply strict
scrutiny
o If answer is “no” with respect to discrimination against a fundamental interest,
court must then decide whether or not to apply intermediate or rational basis.
Suspect classifications such as race, religion  strict scrutiny.
o Strict scrutiny = compelling government interest narrowly tailored.
Quasi suspect classifications such as gender  intermediate scrutiny.
o Intermediate scrutiny = substantial government interest with “exceedingly
persuasive justification.”
Non-suspect classifications = age, socioeconomic status  rational basis review.
o Rational basis = substantive government interest rationally related to the law.
NOTES ON SUBSTANTIVE DUE PROCESS v. EPC
- Substantive due process violations of fundamental rights mean the government cannot
impose restrictions at all.
- If a law unconstitutionally discriminates under EPC, government can remedy the
discrimination against a fundamental right by creating a neutral alternative OR denying
the right to all persons as opposed to only certain groups of individuals.
- Under Substantive Due Process, government cannot deny the right to individuals because
the Constitution guarantees the right to all persons.
o For example, Government cannot get rid of the “right to privacy” in the bedroom
because right to privacy is guaranteed under Constitution.
- Enumerated and Unenumerated rights trigger Substantive Due Process, Fundamental
Rights trigger Equal Protection Clause arguments.
o SDP guarantee means the challenge will automatically trigger strict scrutiny.
o EPC challenges require the threshold question of, “Does the law treat people in a
manner that is unconstitutional?”
 Does not matter how important this right is, if the law treats people
differently based on classification, government will have to meet its
burden for the law to be upheld.
Reed v. Reed (1971) – Heightened scrutiny under rational basis review for state law with sex
based classification.
- State courts had sustained a preference for men over women in the appointment of
administrators of estates as a rational method “to resolve an issue that would otherwise
require a hearing as to the merits” of petitioning relatives.
- Court finds this unacceptable  applies a “rational basis with bite” level of scrutiny.
- “Giving a mandatory preference to members of either sex over member of the other,
merely to accomplish the elimination of hearings on the merits, is to make the very
kind of arbitrary legislative choice forbidden by equal protection.”
Craig v. Boren (1976) – Intermediate scrutiny applied to OK beer purchase law.
- OK statute prohibits the sale of 3.2% beer to males under the age of 21 and to females
under the age of 18.
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ISSUE: Whether the gender-based differential constitutes a denial to males age 18-20 of
equal protection under OK law.
Court suggests that a new standard of scrutiny in between strict and rational basis
 The government’s interest associated with the law must be important and the
degree of fit must be “substantial.”
o Rational basis = legitimate government interest and rational degree of fit.
o Strict scrutiny = compelling government interest narrowly tailored degree of fit.
OK law on its face discriminates on the basis of sex by establishing different ages at
which men and women can purchase 3.2% beer.
o OK argues the state interest is preventing drunk driving because substantial
analysis shows men ages 18-20 are more likely to drink and drive.
Court says there is a clear non-discriminatory alternative to achieve state interest of
preventing drunk driving  make the age of both men and women 21 to buy beer.
“The relationship between gender and traffic safety becomes far too tenuous to satisfy
Reed’s requirement that the gender-based difference be substantially related to
achievement of the statutory objective.”
Court finds the law unconstitutional, suggests it might even have been struck down under
only a rational basis review as well.
Mississippi University for Women v. Hogan (1982) – Male applicant to all woman’s nursing
school.
- Hogan, a male registered nurse in Columbus, MS, where MUW is located, was denied
admission to the School’s BA program.
- Was told he had to attend one of the state’s coeducational nursing schools elsewhere in
MS to get the degree.
- Court finds that “this statute discriminates against males rather than females does not
exempt it from scrutiny or reduce the standard of review.”
o **The party seeking to uphold the statute that classifies individuals on the bases
of their gender must carry the burden of showing an “exceedingly persuasive
justification for the classification.”**
o Sex-based classifications can be justified if the law intentionally and directly
assists members of the sex that is disproportionately burdened.
o “compensatory justification may be found only if members of the gender
benefitted by the classification actually suffer a disadvantage.
- In this case, the state made no showing that women lacked the opportunities to
obtain training in the field of nursing . . . rather than compensate for discriminatory
barriers, MUW’s policy of excluding males perpetuates the stereotype of nursing as
exclusively a woman’s occupation.
- Court concludes State falls short of establishing a substantial justification needed to
sustain the gender based classification.
United States v. Virginia (1996) – Woman applicant for all-male VMI.
- VMI = publicly funded State university that only offered education through the
adversative method to male students  curriculum is rigorous, physically demanding,
promotes community/bonding among students.
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On remand from Court of Appeals, VA attempts to create an all-woman school similar to
that of VMI in educational approach.
State agues its interests are that single-sex education actually creates diversifies the state
wide university system...VMI is one component within the system such as all woman
colleges within the state for girls.
o However, key difference is that females cannot participate in adversative
education under the VA state-wide system.
State also argues that men are more likely to succeed under the adversative method.
Court finds argument erroneous. There is a non-discriminatory alternative . . . admit only
those students (male and female) who can meet the physically demanding rigors of the
school. Policy would be facially neutral and non-discriminatory.
o Any additional costs required to build infrastructure for females is only viewed as
an “administrative inconvenience” and any argument along those lines does not
survive intermediate scrutiny.  if operating under rational basis, VA might win
the financial argument as a means of accomplishing state interest.
The court finds that the analogous school for women, VWIL, is inherently unequal as it
was not operated the same way as VMI, had no alumni network, unequal facilities 
court makes Sweatt v. Painter connection.
SCALIA DISSENT – Change is forced upon Virginia and reversion of single-sex
education is prohibited nationwide not by the democratic process, but by court order.
o VA has important state interest in providing effective college education and the
single-sex approach is substantially related to the interest.
Fundamental Rights Prong of Equal Protection Analysis
- 5th and 6th Amendments are incorporated against the state by the 14th amendment. (Due
Process and equal protection as incorporated)
o If a law discriminates against a “fundamental right,” court may apply strict
scrutiny as the level of review.
Griffin v. Illinois (1956) – Access to trial transcripts for indigent parties during criminal appeal.
- Griffin attacked the failure to provide free trial transcripts and claimed that the resulting
refusal to afford appellate review solely because of poverty was unconstitutional.
- “Due process and equal protection both call for procedures in criminal trials which all no
invidious discriminations . . . the ability to pay costs in advance bear no rational
relationship to a defendant’s guilt or innocence and could not be used as an excuse to
deprive a defendant of a fair trial.”
o Right to appeal a conviction is no expressly stated in the Constitution, but the
appeals process is fundamentally sound enough to triggers strict scrutiny if the
law treats people differently. (in this case, those who are poor are treated
differently compared to those who could afford to pay for trial transcripts)
o Court finds requiring defendants to pay for transcripts is unconstitutional.
- Although the state is not obligated to grant appeals of criminal convictions, the right
to appeal is so fundamental that providing the right to only some individuals rather
than all individuals triggers strict scrutiny.
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o Court could in theory deny appeals to everyone, but then wealthy citizens would
seek recourse through the democratic process and appeals would likely return
anyone.
Expanded upon in Douglas v. California (1963) – state appointed counsel granted for
first appeal to indigent defendants.
Economic barriers in the civil context.
o Fee requirements in the civil context are ordinarily examined only for rationality (Ortwein
v. Schwab (1973))
 BUT: Access to judicial processes in cases criminal or “quasi criminal in
nature” cannot turn on ability to pay (MLV v. SLJ (1996; 866)
 Decrees terminating parental rights fall in the category of quasi-criminal
cases
o Factors that may lead to quasi-criminal nature:
 When people are forced to settle their claims of
right through the judicial process (Boddie v.
Connecticut (1971; 864) struck down fee
requirement for divorce for indigent)
 When issue is fundamental (Bodie) reasoning
marriage is fundamental right, and since state
controls means to ending one it is akin to
criminal context)
San Antonio Independent School Dist. v. Rodriguez (1973) – No fundamental right to a
certain quality of education implicit in the United States Constitution.
- TX imposes property taxes on property owners within a school district to fund the school.
- Districts with higher property values = more money for school districts.
- Plaintiffs argue that the TX funding system impinges upon a fundamental right explicitly
or implicitly protected by the Constitution, thus requiring judicial scrutiny.
- There is no implicit basis for holding education is so protected. Rodriguez’s argument
that education is essential to the effective exercise of First Amendment freedoms and to
intelligent utilization of the right to vote also is rejected.
- No evidence has been offered that the present levels of educational expenditures in Texas
provide an education falling short of fulfilling these purposes.
- The Texas funding system should not be subjected to strict scrutiny, but rather should be
analyzed in terms of whether it bears a rational relationship to a legitimate state purpose.
o Because there is no reasonable, less discriminatory alternative to the TX funding
system, the system is constitutional.
o Any discrepancies in the TX education system are not so irrational as to be
invidiously discriminatory.
- **Court states that no suspect classification is applicable based on wealth. Plaintiffs
would need to show the intent of the financing system was discriminatory OR that
education is a fundamental interest in order to trigger strict scrutiny.**
Plyer v. Doe  TX requires undocumented immigrants to pay a tuition fee in order to receive an
education...Court holds that excluding children from free public education violates EPC.
- Children have little control over their status as legal immigrants, by combining the
fundamental interest of education for children and status of citizen/non-citizen
classifications, court may then apply intermediate scrutiny rather than rational basis.
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Court reiterates that public education is not a “right” granted to individuals by the
Constitution. But neither is it merely some governmental benefit indistinguishable
from other forms of social welfare. Education provides basic tools, denial of education
to an isolated group of children poses an affront to goals of equal protection.
o If state is to deny free public education to one group of children, state must show
a substantial interest in doing so.
FIRST AMENDMENT RIGHTS TO SPEECH AND RELIGION
Unit VI
First Amendment Notes
- Why do we value freedom of speech?
1) Promotes democracy and the further facilitation of democracy  prevention of
censorship by government helps ensure free elections.
- Protects both political speech, nonpolitical speech, freedom of expression. Non-political
censorship would lead to a censoring of morality, emotions, etc.
2) Marketplace of Ideas  Just as too much government regulation in commerce stifles an
economy, government regulation in speech will stifle enlightened, productive, and
innovative ideas. Bad ideas will be weeded out by the populous, compelling ideology will
grow in popularity and even allow for dismantling government norms (i.e. rights for
blacks during civil rights movement, rights for women, rights for marriage for gays, etc.)
3) Autonomy  free human beings need the ability to find identity and shape their place is
society. Even if bad consequences occur from this freedom, government must allow for
individuals to express themselves (obviously to an extent).
- First Amendment protections are not absolute. Cannot allow for every expressive act to
be protected by the Constitution. (example: fraud, can’t communicate w/ false info).
- To the extent the 1st Amendment protects a type of speech, expressions that have value
and further ideology are protected.
Unprotected Speech
- Harm to be created from speech can be restricted by the government (example: child
pornography carries no 1st Amendment protections, government may criminalize).
- Three main types of unprotected speech: Incitement, Defamation, Fighting Words.
Incitement
- 1st Amendment does not protect all speech and expression, government may regulate
speech based on its content.
- Incitement speech is regulated based on its high degree of risk, speech that incites
unlawful activity is similar to the activity itself.
- Brandenburg Factors used to determine if speech can be regulated as incitement.
- If speaker does not intend to incite unlawful activity, constitution will protect against
prosecution. Speaker will also be protected if speaker projects broad message that is
intended to cause violence.
o Arguing in the abstract makes it difficult to show an imminent threat of violence
unless the speaker is in a situation such as in front of an angry mob.
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Abrams v. United States (1919) – early 1st Amend. Test for protected speech. Clear and Present
Danger Test
- Abrams printed many copies of leaflets, written both in English and Yiddish, denouncing
the United States’ decision to send troops to Russia as part of World War I.
- Other leaflets denounced the United States’ general involvement in World War I and
United States’ efforts to curtail the Russian Revolution.
- The distribution of these leaflets was found unlawful by the federal district court because
it involved the spreading of language meant to incite resistance to the war effort and to
urge the curtailment of production of essential war materials.
- Court applies the clear and present danger test  allows for prosecution of conduct
that tends to cause action.
o Court believes the action of the defendants was to incite those persons working in
factories to ensure that munitions of war would not be produced.
- DISSENT: the government does not present any evidence that the pamphlets were
actually made and distributed with intent to cripple the United States in its production of
essential war materials. Without proving intent, the conduct could not be considered
criminal under the Espionage Act.
Brandenburg v. Ohio (1969) – New test permitting the prosecution of incitement speech
- Defendant was a KKK leader in Ohio. Was arrested after inviting news reporters to
attend a KKK rally. The report filmed defendant burning crosses and uttering derogatory
speech towards African Americans and Jews.
- Defendant was convicted under Ohio state law for “advocating the duty, necessity, or
propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means
achieving political reform and advocating criminal syndicalism.
- ISSUE: Does the Ohio statute that criminalizes syndicalism violate the First
Amendment?
o A state may only forbid speech that advocates violence or the use of force if
that speech is directed and likely to incite imminent illegal activity without
abridging the freedoms of speech and the press.
o Three elements needed to criminalize speech: 1) intended to produce
unlawful activity; 2) likely to do so; 3) activity is imminent to occur.
Fighting Words
- Personally abusive epithets which, when addressed to the ordinary citizen, are, as a
matter of common knowledge, inherently likely to provoke a violent reaction.
Cohen v. California (1971) – protection of profanity and fighting words.
- Defendant was convicted of violating a CA law which prohibits “maliciously and
willfully disturbing the peace . . . by offensive conduct.”
o State court held that “offensive conduct” means behavior which has a tendency to
provoke others to acts of violence or in turn disturb the peace.
- Defendant was seen inside LA County Courthouse wearing a jacket with the words “Fuck
the Draft.” There were women and children present in the courthouse.
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Court makes clear that profanity will sometimes be protected speech and that the
“Fighting Words” exception is limited to statements “directed to the person of the
hearer” not directed at the world at large.
o No individual in the courtroom could take Cohen’s jacket as being directed at that
one person to the point where they would be inclined to resort to violence.
Outside of the private home, people may be subjected to objectionable speech, just
because the speech may be offensive in some manner does not automatically mean it may
be criminalized and is not protected by the 1st Amendment.
Defamation
- Different analysis applies between private and public individuals . . . public individuals
(politicians) expose themselves to criticism from others.
- Not feasible to require news writers, reporters, etc. to check into every single fact
necessary before writing a story.
- Over regulation of speech will prevent people from publishing stories for fear the authors
will be held liable if the story is not 100% accurate.
New York Times v. Sullivan (1964) – defamation suit brought by public official
- Sullivan, Montgomery AL Police Commissioner, brings suit against NYT for printing a
full-page advertisement defending Dr. MLK and alleging that police used tear gas and
that Dr. King had been arrested seven times when in fact it was four.
- Sullivan offered no proof that he had suffered actual pecuniary loss, but recovered a
judgment for $500,000 under Alabama tort law.
o Under Alabama tort law, a publication was “per se libelous” if the words tended
to injure a person in his reputation.
- Court realizes that powerful public officials could threaten and intimidate the press into
squashing potential stories for fear of facing fiscally damaging defamation suits.
- Court holds that there is no liability for defamation for those speaking out against public
officials unless the public official can satisfy the actual malice test.
o “Actual Malice Test” is satisfied is the defendant knew of the statements falsity or
acted with reckless disregard when publishing a story.
- “Criticism of official conduct does not lose its constitutional protection merely because it
is effective criticism and hence diminishes official reputations.”
Defamation Hypo: Private figure sues for defamation but the speech itself is a matter of
public concern.
- Professor is accused of plotting a government takeover.
- Public has an interest in knowing about the issue. Does New York Times principle extend
to private figures?
o NO  Court does not apply actual malice test in event of private figure being
accused.
o Public figures have a mechanism of self-help (i.e. could hold a press conference)
to correct false reports.
o Private figure does not have a platform to correct a false statement, does not
expose himself to public spotlight like the public figure.
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Gertz v. Robert Welsh, Inc. (1974) – defamation suit brought by nonpublic individual.
- During the course of litigation, Gertz was featured in a magazine called American
Opinion.
- Gertz had little to do with the police officer’s criminal prosecution, but the article
accused him of masterminding the whole thing.
- The magazine claimed it was a frame-up of the police officer, as part of a vast conspiracy
to discredit law enforcement.
- Many of these statements were blatantly false, and the magazine’s managing editor
published the material without attempting to verify its truth.
- ISSUE: Does the Actual Malice Test apply?
o NO  if seeking compensatory damages, the plaintiff must show fault on
behalf of the defendant.
o BUT if the plaintiff is seeking punitive damages, plaintiff must satisfy the
New York Times Actual Malice Test.
- Private individuals do not have to meet the actual-malice standard to recover damages for
the publication of injurious falsehoods, even if the defamatory statement relates to a
matter of public interest. Awarding presumptive and punitive damages, as typically
applied at common law, requires a showing of actual malice.
IIED  Court has suggested that recovery for intentional infliction of emotional distress may be
limited on First Amendment grounds for both public and private individuals.
Hustler Magazine v. Falwell (1988) – IIED claim brought by public figure over advertisement.
- Jerry Falwell (plaintiff) was a nationally known minister who had been an active
commentator on political and public affairs. Hustler printed a parody article that
suggested Falwell and his mother were drunk and immoral. Falwell sued Hustler
Magazine and its publisher, Larry Flynt (defendants) in federal district court to recover
damages for invasion of privacy, libel, and intentional infliction of emotional distress.
- Court holds that private and public figures may not recover for the tort of intentional
infliction of emotional distress by reason of publications without showing in addition that
the publication contains a false statement of fact which was made with “actual
malice” – knowledge that the statement was false or with reckless disregard as to
whether or not it was true.
Snyder v. Phelps (2011) – IIED claim brought by private figure over protesting death of soldier.
- Phelps and several members of the Westboro Baptist Church stood holding signs outside
the Maryland State House, U.S. Naval Academy, and the church where the Snyder
funeral took place. The signs stated phrases such as “Thank God for 9/11,” “America is
Doomed,” “Thank God for IEDs,” and “Thank God for Dead Soldiers.”
- At trial, it was shown that Phelps had notified local authorities in advance of the protest
and had complied with police instructions in staging the demonstration. The protestors
occupied a 10- by 25-foot plot of public land approximately 1,000 feet from the church
where the funeral was held. There was no evidence of violence, yelling, or other
disruptive behavior during the 30-minute protest period before the funeral.
- Court says that plaintiffs must show the protestors acted with actual malice in order
to receive punitive damages on IIED claim with regard to matters of public concern.
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“Westboro’s choice of where and when to conduct its picketing is not beyond the
Government’s regulatory reach – it is subject to reasonable time, place, or manner
restrictions.”
Protected Speech Notes
-Protected speech is speech the government cannot regulate based on content. But, in
some circumstances, government may regulate certain forms of speech based on content
because of a substantial government interest.
- If in Synder, the law prevented picketing within 500 feet of a funeral, law would be legal
because of its neutrality in regard to content.
- If the government is attempting to suppress speech because of its content-based message,
the law that suppresses would be presumably unconstitutional.
Content Discrimination Principle (Standard of Review)
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Example of content based law: “No government picketing in this area on the streets of
Newark.”
Content Discrimination Analysis (see also Flowchart)
Is the government action content-based or content neutral? Is the speech singled out
because of what it communicates or manifests or is the regulation content-neutral?
If content-based, ask “Are we dealing with protected or unprotected speech?
o If the speech is protected by the 1st Amendment, is the law restricting the speech
narrowly tailored to a compelling government interest? (application of strict
scrutiny?
o If speech is unprotected, must ask is there an overbreadth/under breadth
RAV issue?  If a law criminalizes both unprotected and protected
speech/draws a sub-distinction of unprotected speech, law is unconstitutional
if not narrowly tailored.
o If speech is unprotected and there is no RAV issue present, as if the law prevents
all forms of incitement, law is ok.
If content neutral, court will apply intermediate scrutiny of the O’Brien test.
O’Brien Test:
o Does the regulation further substantial interests?
o Is the interest unrelated to the suppression of ideas?
o Is incidental restriction on speech no greater than necessary to further the
substantial interest?
Part of the O’Brien test (Texas v. Lawrence) related to suppression of ideas may be pulled
out and used as part of our initial analysis when determining if a government action is
content based or content neutral  Is the government’s related to the suppression of
ideas although it present itself as content neutral?
United States v. O’Brien (1968) – content-neutral regulation aimed at burning of draft cards.
- Defendant is convicted of burning his draft card, defendant is expressing opposition to
the war in Vietnam by publicly lighting the card on fire.
o Act of burning card is considered speech because of its expressive conduct.
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Issue: Is the law regulating the destruction of draft cards content based or content neutral?
Court applies O’Brien Test based on its findings that the statute at issue is content
neutral, United States argues the government has a substantial interest of tracking citizens
and administering the selective service system.
o O’Brien Test for Review of Content Neutral laws:
 Regulation must “further an important or substantial government interest
and involve an incidental restriction on alleged First Amendment
freedoms that is no greater than is essential to furtherance of that interest.
 Test also sets forth an influential definition for distinguishing contentbased from content-neutral laws: for a law to be content-neutral, the
government interest behind the law must be unrelated to the
suppression of free expression.
 BETTER SAID: (1) FURTHERS IMPORTANT OR SUBSTANTIAL
GOVERNMENT INTEREST; (2) GOVERNMENT INTEREST
UNRELATED TO SUPPRESSION OF FREE SPEECH; (3)
NARROWLY TAILORED TO MEET THAT GOAL
As such, legislation to insure the continued availability of issued certifications (such as
the UMTSA) serves a legitimate and substantial purpose in the system’s administration.
The destruction or mutilation of these certificates would defeat these purposes in several
ways. Court finds the regulation to be constitutional.
Reed v. Town of Gilbert (2015) – content based regulation (formalistic approach)
- Town ordinance only allows for certain types of signs to be displayed in the town. Based
on the content of the sign, the sign may range in different sizes.
o If the size of the signs were the only restriction, ordinance would be content
neutral and constitutional.
- Court finds the ordinance to be content-based  The town allows for three types of
signs; 1) ideological signs; 2) political signs; 3) temporary directional signs relating to
qualifying event. Based on content, the type of sign may be limited in size or the length
of time in which it may be displayed; WAS UNFRIENDLY TO RELIGIOUS SIGNS.
- ***“Content-based laws – those that target speech based on its communicative content –
are presumptively unconstitutional and may be justified only if the government proves
that they are narrowly tailored to serve a compelling government interest.”***
o A law that is content based on its face is subject to strict scrutiny regardless of the
government’s benign motive, content-neutral justification, or lack of animus
toward the ideas contained in the regulated speech.
o Town bears the burden to demonstrate the differentiation among the signs furthers
a compelling government interest and is narrowly tailored to that end.
- The ordinance is content-based on its face because the level of the regulation a sign
receives is entirely dependent on the message the sign contains. The ordinance is
thus subject to strict scrutiny regardless of any benign motive or justification on the
part of the town. The ordinance does not pass strict-scrutiny review.
Texas v. Johnson (1989) – State regulation related to suppression of free ideas
(functional/purposefulist approach to determining is regulation suppresses free ideas)
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Defendant was convicted of desecrating a flag in violation of TX state law when he
burned a flag outside the Republican National Convention.
- Charged and found guilty of “desecration of a venerated object.” Court of Appeals
overturn conviction and Supreme Court affirmed.
- Threshold question: Is Johnson’s case even within the 1st Amendment?
o Court finds that certain conduct can be found as “symbolic”  would be
objectively reasonably to understand that a flag stands for certain messages and
burning the flag is an expression of opposition to those messages.
- Court pulls out part of the O’Brien test and asks it in the initial inquiry:
- “We must first determine if Johnson’s flag burning constituted expressive conduct,
permitting him to invoke the First Amendment. If his conduct was expressive, we next
decide whether the State’s regulation is related to suppression of free expression.”
o TX law clearly exists to suppress the unpopular message of flag burning, TX does
not want flag burning to occur because it is contrary to the messages the flag
portrays.
o Court centers its finding that the law does suppress free expression on the
legislative reasons and history for enacting the law.
- TX claims its interests in enacting the flag burning statute are to prevent breaches of the
peace and preserve the flag as a symbol of nationhood and national unity.
- Court holds that because TX law is not aimed at protecting the physical integrity of
the flag, but instead the message, this triggers a content based prohibition analysis.
- Only if someone is burning the flag to incite an angry crowd could that person possibly
be prosecuted for flag burning.
- Nothing in the Court’s precedents suggest that a state can promote its own view of
the flag by prohibiting related expressive conduct. The enduring principle that the
government cannot prohibit expression it disagrees with does not depend on the
particular method by which one seeks to express an idea. It would thus be
inconsistent to hold that an individual can constitutionally express disagreement
with a political viewpoint in any way except flag burning.
- Thus, Johnson’s conviction for burning the flag as a means of political expression cannot
be supported by the First Amendment.
o A state’s interest in unity and honoring the flag can be practiced by flying the
flag, singing national anthem, celebrating holidays.  a ban on flag burning is not
the only plausible method to promote national unity.
R.A.V. v. City of St. Paul (1992) – fighting words statute with under/overbreadth problem.
- Defendant is arrested for burning a cross in front of a black family’s home. Individual
could have been prosecuted under trespass/harassment laws, but this case becomes a 1st
Amendment issue when he is tried under a Minnesota law which states essentially
“whoever places on public or private property a symbol or object, including a burning
cross, and who knows or has reason to know the object arouses anger or resentment in
others on the basis of race commits disorderly conduct.”  fighting words law.
o Fighting words = forms of speech including but not limited to hateful symbols,
epithets that so offend or unsettle the receiving party and so directed at the
receiving party so as to cause a violent reaction.
o Must offend on an individualized basis, not general sense.
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Defendant argues the ordinance is an overbroad, unconstitutional, content-based
regulation of speech.
Majority Opinion:
o 1) rejects the overbroad claim against the ordinance because the MN Supreme
Court interprets the statute as fighting words. Supreme Court defers to MN
interpretation even though statue is written to encompass more than just FW.
o 2) Although it is true the statute does not have an overbreadth problem, the
statute suffers under breath problem. Statute does not prevent ALL fighting
words. Statute draws a sub-distinction which is, of itself, a content-based
discrimination.
Insofar as someone in MN aroused another with fighting words based on age, sex,
etc., the statute would not cover the person . . . statute only covers fighting words
based on race, color, creed, religion.
Once in the vast realm of fighting words, the statute requires a determination of whether
or not the fighting words are aimed at race/creed/religion or something else.
Court states there cannot be a content-based inquiry within the fighting words
determination  trouble arises when trying to police certain speech that is already
unprotected by the 1st Amendment.***
Court makes notes of exceptions to the RAV Principle:
o Not all regulations of sub-categories of unprotected speech is
unconstitutional.
o State can meaningfully sub-categorize unprotected speech on content neutral
basis.
o Not all content based discrimination within category of unprotected speech is
unconstitutional if the gov. declares exactly what obscenity or what is most
serious.
Law is therefore unconstitutional because of the underbreath of the law  in order to
know if some articulation of fighting words falls within the ordinance, a content based
discrimination must first be made...content based discriminations trigger strict scrutiny.
Forum Analysis
Forums & Government Speech
- Government actors may act in a more managerial manner to prevent content based speech
in some places. Example: City of Newark builds a sports complex and bans the
discussion of politics from the complex.
- When gov. acts in its proprietary capacity, gov. is afforded some constitutional leeway in
restricting speech. (States built sports complex is for sports, not debating politics.
Because the state is the manager of the complex, it may restrict some forms of speech).
- **Government Speech is not limited by the First Amendment at all.**
o Government chooses who it is, or isn’t going to align itself with.
Forum Analysis  similar to 1st Amendment analysis. Three (3) categories of Forums.
- Traditional Public Forum  subject to O’Brien Test and time, place and manner
restrictions. Standard First Amendment Analysis
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Designated Public Forum  Government designates a location/platform for persons to
express 1st Amendment rights.
o Designated public forums are very rare, subject to how a state presents it and can
be de-designated easily. Also, subject to Standard First Amendment Analysis.
Limited Public Forum  Government opens up for a specified purpose or reason (like
the Newark Sports Park).
o Government may restrict speech as long as restrictions are reasonable in the light
of the purpose and function of the forum and restrictions are viewpoint neutral.
Christian Legal Society of Univ. of Cal v. Martinez –Limited public forum provided to law
students by University.
- CLS wants to be recognized as a registered student organization (RSO), but requires its
members to sign a “statement of faith” renouncing homosexual conduct.
- UC Hastings promotes organizations under an “all-comers” policy in which no RSO can
deny others entrance into the RSO.
o School denies CLS a designation as an RSO within the law school because of the
CLS’s policy. School believes CLS does not comport with school policy.
- CLS brings suit alleging the all-comers policy impaired the CLS’s First Amendment
rights to free speech and expressive association  sought injunctive and declaratory
relief.
- Court concludes that the all-comers is constitutionally reasonable and viewpoint
neutral. RSO’s receive many benefits from the school.
- Hastings’ policy, which incorporates state law prohibiting discrimination, conveys the
school’s decision not to fund groups that engage in activities and conduct to which the
people of California disapprove. Hastings’ policy does not prevent the CLS from
engaging in speech or accepting members on its own terms, it just may not enjoy the
benefits afforded by being an RSO.
- Justice Ginsburg Footnote on Forum Analysis:
o “In conducting forum analysis, our decisions have sorted government
property into three categories. First, in traditional public forum, such as public
streets and parks, any restriction based on content of . . . speech must satisfy strict
scrutiny, be narrowly tailored to serve a compelling government interest. Second,
governmental entities create designated public forums when ‘government
property that has not traditionally been regarded as a public forum is intentionally
opened up for that purpose. . . . Third, governmental entities establish limited
public forums by opening property ‘limited to use by certain groups or dedicated
solely to the discussion of certain subjects.
o Limited Public Forum  gov. may impose restrictions on speech that are
viewpoint neutral.
Pleasant Grove City v. Summum – Government speech
- City refused to erect a permanent stone monument that contained the Seven Aphorisms of
Summum in a public park. The religious group claimed the City’s refusal violated
Summum’s First Amendment rights.
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ISSUE: Is the placement of a permanent monument in a public park a form of
government speech and therefore not subject to strict scrutiny?
o First, the Court must determine whether the public display of the monument in
question is private or government speech. Generally, permanent monuments
displayed on public property represent government speech.
If the government is involved enough in regulating and endorsing the speech being
articulated, government is essentially speaking for itself.
Monuments differ from temporary signs in that they are permanent, and the government
is seen to be in support of the message the monument proclaims.
“The City has selected those monuments that is wants to display for the purpose of
presenting the image of City that is wishes to project to all who visit the Park.”
Public forum principles are inapplicable to government speech.
Walker v. Texas Division, Sons of Confederate Veterans –Government Speech
- TX gave individuals the chance to design a particular “specialty license plate” by
proposing a plate design and graphic.
- Motor Vehicle board rejected the Sons of C.V.’s proposal and the party subsequently
challenged the decision as viewpoint discrimination in a limited public forum.
o “When the government speaks, it is not barred by the Free Speech clause from
determining the content of what it says....In our view, specialty license plates
issued pursuant to TX’s scheme convey government speech.”
o Texas is not acting in a proprietary manner and the license plates are
therefore not a limited public forum which must abide by viewpoint neutral
restrictions.
Clark v. Community for Creative Non-Violence – Traditional Public Forum limitations.
- A National Park Service regulation prohibited camping and sleeping overnight in areas of
certain national parks in order to promote the conservation of park property. The National
Park Service did, however, issue permits for certain groups to use the park for
demonstrations involving the airing of views or grievances.
- The National Park Service prohibited the Plaintiff’s planned sleeping demonstration
pursuant to its regulations and Plaintiff brought suit challenging this decision on the
ground that it violated the First Amendment.
- The National Park Service regulation that prohibits sleeping in areas of certain national
parks does not violate the First Amendment’s protection of freedom of expression.
- Reasonable, content-neutral regulations of the time, place, and manner of expressive
speech or conduct do not violate the First Amendment as long as they are narrowlytailored to further a substantial government interest, and as long as the regulation leaves
open ample alternative avenues of expression. The First Amendment does not provide
unlimited protection for oral or written expression, and the same principle applies to
conduct that is intended to be expressive.
o Government’s regulation of sleeping is narrowly related to its substantial interest
in conserving and maintaining the condition of its national parks, as sleeping and
camping can degrade the condition of parks.
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First Amendment Clauses for Religion
Free Exercise Clause – Protects individuals against negative government action restricting
religious beliefs.
Establishment Clause – Prevents government from promoting or favoring a certain set of
religious beliefs.
- Overall, clauses must work together to form a constitutional neutrality...government may
not discriminate or favor one set of beliefs over another.
- Framers and drafters set forth a Bill of Rights which looks to monitor and prevent
burdens on religious exercise.
- Religious beliefs must be sincere, individuals cannot be exempt from legal obligations
simply because they say their religion or moral beliefs do not allow them to act in a
certain manner.
Free Exercise Doctrine
- Individuals should not be required to engage in conduct that violates or obstructs
religious beliefs based on imposed laws.
- Sherbert Test/Compelling Government Interest = strict scrutiny
o If an individual feels violated by a generally applicable neutral law, person may
request a religious exemption  Government must show a compelling
government interest narrowly tailored to uphold the law.
o Laws involving school exemptions, taxes, unemployment benefits typically
implicate the Sherbert v. Verner Test.
- Smith breaks away from the Sherbert Test.
BETTER PUT:
COURT FIRST DETERMINES:
1. whether the person has a claim involving a sincere religious belief, and
2. whether the government action is a substantial burden on the person’s
ability to act on that belief.
Secondly, the government must prove that:
1. it is acting in furtherance of a "compelling state interest"; and
2. it has pursued that interest in the manner least restrictive, or least
burdensome, to religion.
Employment Division v. Smith – Free Exercise Clause challenge; START HERE.
Think of it this way; does the law discriminate, or not discriminate?
IF IT DOES, THEN GO TO SHERBERT.
- Plaintiffs are dismissed from their jobs because of religious use of peyote, a drug
criminalized by OR state law.
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Under OR law, individuals cannot receive unemployment benefits if they are fired from
their job due to a criminal offense.
o Smith seeks exemption from OR law because of religious practices.
Court does not apply Sherbert v. Verner Test, Court asks if the state law that violates
the interest is generally applicable with regard to religion or target religions.
o IF the law targets religion  strict scrutiny is applied. If the law does not target
religion, and merely incidentally burdens the religion, no exemption is afforded.
Court recognizes two exemptions:
o 1) hybrid claims in which a free exercise and another constitutionally
protected right are infringed upon (most cases of religion involve free speech
as well).
o 2) Open ended laws which allow for discretion by the government agency
enforcing the law. Law that affords so much discretion to enforcing agency
needs to checked to ensure that religion is not the basis for any
burden/discrimination.
o If law fits into one of these exceptions, Sherbert v. Verner test is applied.
Church of the Lukumi Babalu Aye v. City of Hialeah (1993) (Court invalidated animal sacrifice
ban, finding that it was not neutral for allowing exceptions, and that it was motivated by animus
to a particular religious group. To be valid, a law burdening religious practice must be
neutral, or of general application, or else it will be subjected to the most exacting scrutiny)
-THIS LEAVES OPEN THE POSSIBILITY THAT A FACIALLY NEUTRAL LAW MAY
BE FOUND TO BE DISCRIMINATORY. THEN, SHERBERT.
Masterpiece Cakeshop – Administrative proceedings must remain neutral to religious beliefs
- Colorado Civil Rights Commission applies generally neutral anti-discrimination law to
reprimand cake shop owner, Jack Phillips, for refusing to make a wedding for
homosexual couple celebrating a recent marriage.
- Court rules in favor of Phillips based on exercise of free religion, court found that the
CCRC decided to penalize Phillips, it did so without a neutral approach.
o Record showed animus towards Phillips during the proceedings.
o Commissioners stated that religious views did not matter and do not allow him to
choose who he serves.
- **Free exercise claim or challenge to neutral law of general applicability can succeed if
shown that an enforcement action taken was not neutral in conducting proceedings.**
-BOTH A FREE SPEECH CLAIM, AND A FREE EXERCISE CLAIM.
Establishment Clause Doctrine
- Congress shall make no law that establishes a religion. Through the 14th Amendment,
state and local governments cannot establish a religion either.
- Court overtime has found violations of the establishment clause when governments favor
or endorse a particular religion.
o Ex: If LA establishes a Catholic University that admits only Catholics and the
state funds the university, this would be seen as elevating Catholicism above other
religions.
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When assessing establishment clause issues, existence of certain historical aspects of life
(pledge of allegiance, monetary coins) are de minimus religious aspects of everyday life.
Aid to parochial school cases  Everson, Zelman, Weisman
Financial Aid from government can only indirectly benefit religious schools. Everson v.
Board of Education (1947) [1581] (Court upheld taxes going to bus service for children
attending religious schools. Noted though that no tax can directly support religious
activities or institutions); Board of Education v. Allen (1968) (state can lend books on
secular subjects to parochial schools); Mitchell v. Helms (2000) (textbooks and other
instructional supplies can be lent to religious schools); Zelman v. Simmons-Harris (2002)
[1599] (upheld state voucher system, finding that the goal was educational choice. Where
aid program is religiously neutral, and provides aid to religious schools only through
citizen choice, little basis for establishment clause attack)
Zelman v. Simmons-Harris  Establishment clause claim for state tuition to parochial schools.
- State of Ohio gives tax dollars in the form of tuition to students in Cleveland to attend
private schools in the city.
- **Government support for private education does not violate the Establishment
Clause insofar as there is neutrality and free choice for potential students looking to
take advantage of the tuition program.**
o Court does not feel that Cleveland should be hamstrung just because so many of
the private schools in the city happen to be religiously affiliated.
o As long as the program is nominally neutral and free choice is present,
establishment clause is satisfied.
Official school prayer is not permitted, as it often involves coercion. Lee v. Weisman (1992)
[1553] (Struck down nonsectarian prayer at non-compulsory graduation ceremony, finding that in
practice, attendance was required, and that those that disagreed had little option but to hear the
prayer – thus there was coercion)

Legislative Prayer is constitutional on account of its unique history. Marsh v. Chambers
(1983) (court upheld state practice of opening each legislative day with a prayer from a
state paid chaplain. Relied largely on the historical nature of the practice.)
CONGRESS’S POWER TO ENFORCE RESCONSTRUCTION AMENDMENTS
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Unit VII
Reconstruction Amendments have separate clauses that state Congress may enforce the
amendments by appropriate legislation...What is Congress’s power to enforce 13,14,15?
Issues with Enforcement/State Action Doctrine
- Prevalent issues deal with the scope of substantive rights and the extent to which
Congress can interpret the scope.
- Congress has an institutional role vis-à-vis the Court in effectuating individual rights.
- Problems arise with “state action” under the 14th Amendment....”No state shall” only
means that State Actors can violate the rights based provisions of the 14th Amendment.
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o State actor vs. non-state actor issues.
Civil Rights Cases (1883)
- Civil Rights Acts of 1866, 1875 are passed by Congress. 1875 Act brings within its scope
private businesses not owned and operated by the State.
- Owners of theaters, inns, restaurants are prohibited from discriminating under the Act.
o As of 1875, Commerce Clause doctrine was still narrowly interpreted 
expansive view of Commerce Clause prohibits discrimination because of its
effects on interstate commerce.
 Gov. relied on Commerce Clause to defend Civil Rights Act of 1964.
o Civil Rights Act of 1875 is defended by the government on the theory of 14th
Amendment’s Enforcement Power.
o **NOTE: In order for Congress to pass a law, Congress must find a source of
power in the Constitution in order to act.**
- In this case, respondents claim that Congress never had the power to pass the 1875 Act.
- 14th Amendment §1 begins with “No State Shall”...private businesses are not
considered state actors. Respondents argue private businesses are therefore not
covered by the Act.
- “The abrogation and denial of rights, for which the States alone were or could be
responsible, was the great seminal and fundamental wrong which was intended to be
remedied....it is clear that the law in question cannot be sustained by any grant of
legislative power made to Congress by the 14th Amendment.”
HOLDING: Congress does not have the power to pass the 1875 Civil Rights Act. Court views
the 14th Amendment narrowly in which only state lawmaking may not discriminate against
others based on race. Private actors do not fall under the category of state actors.
JUSTICE HARLAN DISSENT:
- 13th Amendment does not target only state actors; private individuals shall not be allowed
to enslave others.
- 1875 Act is a means of enforcing substantive rights and also a means of dismantling the
lingering feelings of the institution of slavery and the power structure it created.
- “I am of the opinion that racial discrimination practiced by corporations and individuals in
the exercise of their public or quasi-public functions is a badge of servitude the imposition
of which Congress may prevent under its power, by appropriate legislation, to enforce the
13th Amendment.
o The denial of services by private owners is a result of the State’s own failure to
police discrimination on its own...the 1875 Act solves this problem of under
enforcement occurring within the states.
o The harm Congress is attempting to cure is not the harm of private actors
themselves, but the State’s failure to deal with discrimination in an adequate
manner.
Shelley v. Kraemer (1948) – judicial enforcement of racially restrictive covenant is state action.
- Two private parties involved; African American family attempted to purchase a home
from willing sellers. The property had a restrictive covenant running with the land that
prevents blacks from living on the property.
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Restrictions on the right of occupancy created by private agreements do not involve
action by state legislatures of city councils.
BUT, participation by the State courts to enforce these actions qualifies as state action
which brings the case within the Equal Protection Clause of the 14th Amendment.
o Shelley is seen as being on middle ground between purely state action (i.e.
enforcement of tort law, establishing duties and rules of causation, and
purely private action, private contracts between two parties.)
o Covenant running with the land is distinctive in that future parties 3rd
parties are bound by the agreement  no say in negotiating initial
agreement.
“That the action of state courts and judicial officers in their official capacities is to be
regarded as action of the State within the meaning of the 14th Amendment is a proposition
that has long been established by decisions of the Court.”
o In granting judicial enforcement of the restrictive covenant agreement, the States
have denied petitioners the equal protection of the laws and that state action of the
courts cannot stand.
Burton v. Wilmington Parking Authority (1961) – sufficient state involvement in racially
discriminatory action.
- Wilmington Parking Authority operated parking garage as an agent of the State of
Delaware. The parking authority entered into a long-term lease with a private coffee shop
that operated inside the parking garage.
- the coffee shop refused to serve an African American man  Court found that this
exclusion constituted discriminatory state action.
- “An entity dedicated to public uses, the building was used to perform “essential
government functions.”
o By its inaction, the Authority and through it the State, has not only made itself a
party to the refusal of service, but has elected to place its power, property and
prestige behind the admitted racial discrimination.”
o When the state leases public property in the manner and for the purpose shown to
have been the case here, the proscriptions of the 14th Amendment must be
complied with by the lessee as if they were binding convents written into the
agreement.
Moose Lodge No. 107 v. Irvis (1972) – state involvement through licensing.
- Court rejects a claim that a private club’s racial discrimination was unconstitutional
because the club held a state liquor license.
- Court found the operation of the state liquor regulation scheme did not “sufficiently
implicate the State in the discriminatory guest policies of Moose Lodge so as to
make the discrimination ‘state action.’”
o “To find unconstitutional state action in situations where ‘the impetus for the
discrimination is private, the State must have significantly involved itself
with invidious discriminations.’”
State Action Possibilities
1) Degree of state action/involvement may determine if state action occurs.
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a. Think Shelley  recording a racially restrictive private covenant and
subsequently enforcing its discriminatory intent equates to state action.
2) Issues of appearance and imputation.
a. Think Burton  What would a reasonable 3rd person think of an act that the
person perceives?
b. Fact that the Eagle Coffee Shop is operated in a state owned and operated parking
garage, the close proximity makes it feel like sanctioned state discrimination.
c. However, a reasonable observer would see the liquor license in Moose Lodge and
not automatically associate the discrimination with state action.
3) Control. How does the state insist on certain terms and ensure the parties are acting
constitutionally?
a. One could argue that the state could condition liquor licenses on the basis the
establishment, such as Moose Lodge, does not discriminate. State has control over
who it issues licenses to.
b. *The more points in which a state may intervene, the state should be held
responsible for the actions of the parties.*
4) What is the function being pursued by the private actor? Is the function a traditionally
public function?
a. Example: privately owned prisons, political party primaries which discriminate
violate equal protection because of the close nexus between the traditional
function and the private actor.
Jackson Metropolitan Edison Co (1974) – Traditional government function & state action.
- Metro Ed cuts off Jackson’s electricity without warning her. Jackson sues under violation
of procedural due process as she received no notice and opportunity to be heard prior to
the disconnect.
- Issue is the state does not own the electric company, the company is privately owned.
o Jackson argues that state action is present because of the monopoly status
conferred upon Metro Ed.
o Also argues that Metro Ed’s termination is state action because the State “has
specifically authorized and approved” the termination practice of the company.
o However, governmental regulations often require private actors to obtain
approval for practices within the business.
o Just because the state approved of Metro Ed’s practices, without weighing in
on the subject or ordering Metro Ed to behave certain practices, this does not
equate to state action.
- Court also finds no symbolic relationship that was present in Burton. All of Jackson’s
arguments show that Metro Ed was just a heavily regulated private utility.
- No sufficient connection between the action of Metro Ed to make its conduct attributable
to the State for the purposes of the 14th Amendment.
JUSTICE MARSHALL DISSENT:
- “State Action cases have repeatedly relied on several factors clearly presented by this
case: a state-sanctioned monopoly, an extensive pattern of cooperation between the
private entity and the state; and a service uniquely public in nature.”
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Flagg Bros., Inc. v. Brooks (1978) (wearhouseman’s arbitration practice did not meet the
standard of exclusive reservation to the states, thus public function not found)
Issues with Utilities
- Could argue that everything Metro Ed. Does is state action because of the positive rights
conferred upon it by the state.
- If the electricity market were “healthy,” other companies could offer guarantees that it
won’t cut off power without providing notice and opportunities to be heard.
- However, startup costs for utility companies are so much that having multiple utility
companies ready to compete in a certain field is difficult to achieve.
- Any “degree of state involvement” argument could be debunked because the State has to
regulate Metro Ed. Heavily in order to keep costs down and ensure quality of the product.
o If the state were liable simply because of its involvement in regulating, this
might deter a state from regulating at all. In which case the private company
then has a monopoly with no supervising authority.
o By deferring to the private party (Metro Ed) on how to terminate electricity
services, the State is actually severing its connection to the act of providing
electricity.
- **Existence of a monopoly is not in and of itself enough to show state action.**
- **State action would arise if the State mandated that private entitites must act a certain
way.**
Deshaney v. Winnebago County Social Services (1989)
- Father is awarded custody of his child and physically and mentally abuses the child.
Social services received reports of abuse, but did not intervene upon the reports.
- The court rejects the argument that had the state intervened, the child would not be
permanently disabled today.
- “Nothing in the language of the Due Process Clause itself requires the State to protect the
life, liberty and property of its citizens against invasions by private actors.”
o Due Process clause is phrased as a limitation on the State’s power to act, not
as aa guarantee of certain minimal levels of safety and security.”
o Cannot impose duties upon the state  Constitution only imposes negative
restrictions on a state’s power and ability to act.
th
14 Amendment rights can be protected against private action. United States v. Guest (1966)
[928, read 88-9] (upholding indictments under 18 USC § 241 for interference with enjoyment of
public accommodations, and the right to interstate travel. Court notes that state action is
required, and can be found in the participation of the police. Court finds that private interference
with constitutional rights can be reached. Brennan concurrence/dissent notes that a majority of
the justices find that § 5 of the 14th Amendment reaches rights violations without state
action).
Blum v. Yaretsky: privately owned nursing home receiving Medicaid reimbursements were not
state actors for purposes of a claim by a class of patients transferred from “skilled nursing
facilities” to “health related facilities;” turns on “medical judgements made by private parties
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according to professional standards, not established by the state. Constitional standards are
invoked only when it can be said that the state is responsible for the specific conduct.”
1990s Rhenquist Court Notes
- Beginning in the 1990s, the Court begins to shift towards the revival of federal based
limits on Congressional Power  Lopez and Morrison curtail the Commerce Power
which had been grown expansively broader since the New Deal decisions of 1930s and
1940s.
- Court starts to depart from rational basis in reviewing statutes and their
goals...stricter scrutiny starts to be required.
City of Boerne v. Flores (1997) – confining Congress’s civil rights enforcement power.
- Religious Freedom Restoration Act is enacted in response to the court’s decision in
Smith. Act seeks to restore the compelling interest test set forth in Sherbet v. Verner
and provides a claim or defense to persons whose religion is substantially burdened.
- Congress does not amend the Constitution in order to achieve these goals, rather passes
federal legislation  Congress wants to supplement Constitutional Free Exercise rights.
o Government argues the §5 of the 14th Amendment grants enumerated power to
enforce the 14th Amendment (which incorporates 1st Amendment against the
states.)
- ISSUE: Can Congress alter rights based protections of Constitution and adopt a broader
interpretation of Constitutional Rights that have been established by the Court?
- **NO. Congress’s power to enforce the 14th Amendment is remedial, Congress cannot
adopt different definitions of judicially recognized rights.**
- The distinction between a rule that redefines a right or enforces a right is tough to
distinguish  How should it be determined if Congress is passing a statute that enforces
or redefines a right?
o Court says a statute is a valid enforcement measure as long as its guarantees are
“congruent and proportional” to the constitutional right.
- A test that asks whether the means adopted to prevent or remedy an injury
are congruent and proportional to the injury itself, used to determine
whether Congress has exceeded its enforcement powers derived from
Section 5 of the Fourteenth Amendment. This test was introduced in the
case City of Boerne v. Flores, 521 U.S. 507 (1997), in which the Court
concluded that Section 5 provides Congress only with remedial powers,
and when upholding a constitutional right, Congress may only enforce
legislation that uses means proportional to achieving that legislative
purpose.
-
o
The RFRA brings under its authority far more laws that do not necessarily abridge the
Free Exercise Clause  state and local authority becomes severely handicapped.
o RFRA essentially “kills mouse with a missile.” Legislative record accompanying
RFRA does not support the passing of a multitude of generally applicable laws
that have been challenged as violating the free exercise clause.
o RFRA would cerate many federalism encroachments on a state’s ability to
enforce its own laws.
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United States v. Morrison – “congruent and proportionality” requirement not met.
- VAWA creates a federal cause of action for victims of gender based assaults.
Government defends the Act under the Commerce Clause and 14th Amendment’s
Enforcement Power.
- Congress cannot argue there is no law preventing gender violence because the 14th
Amendment requires state action to be the result of the violated right.
o Congress could argue that they have the right to pass the Act because of the
state’s inadequacy to prevent gender based violence  legislative record suggests
state officials often fail to effectively prosecute offenders.
o This may solve the underlying state action issue by showing discrimination in the
enforcement of gender equality. BUT “congruent and proportionality” issue arises
because the evidence shows that only 21 states fail to adequately prosecute
violators of gender based rights.
o While there is a more supportive record of the problem in Morrison as compared
to Boerne the court again feels this is killing a mouse with a missile.
- Could argue that Morrison places no burden on the states because the cause of action
would be brought in federal court. However, state tort law would be the applicable source
of law state’s rights to determine causes of tort actions would be undermined.
Shelby County v. Holder
- In 2006, Congress extended for another 25 years the preclearance provision of §5 of the
Voting Rights Act, which required certain covered jurisdictions to obtain federal approval
for changes in election procedures in order to ensure that those procedures do not
discriminate on the basis of race.
- VRA was aimed at remedying discrimination in voting  statutorily prohibits multiple
burdens on the right to vote.
- Until 2013, the Court never ruled any of the provisions of the VRA were problematic.
Court finds that the coverage formula used to determine which jurisdictions are
subject to preclearance requirements is invalid and Congress could not enact the 25
year extension because the formula offends principles of “equal sovereignty.”
o Originally, equal sovereignty was applicable to admission of states into the union,
not used to determine whether or not laws passed by Congress must treat all states
equally.
o Court takes an opposition position form Morrison  In Morrison the
VAWA was unconstitutional because the issues of gender based violence and
the lack of prosecution was prevalent in only 21 states.
o Now, there is apparently an issue because the VRA coverage formula treats
certain jurisdictions differently.
- Court suggests that Congress cannot target certain states in creating remedial legislation,
that all legislation must apply to the states equally.
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