Powell-Con Law Outline
Constitutional Law
Introduction
I.
What is Con Law
(1) A written constitution in a common law tradition
(2) The Internal Logic of the Constitution
The two questions of constitutional law.
Is the federal governmental action authorized under the Constitution?
Is the governmental action prohibited by the Constitution?
Pg. 87: Constitutional law is not an exclusive prerogative of the judiciary. It creates the framework of
American government and much of what the government does will not end up in court.
Three perspectives on constitutional law
Marshall: Setting out the mainstream understanding of what constitutional law is.
Jefferson: Bank opinion is the seminal statement of the narrow construction, suspicious view of federal
powers.
One similarity between Marshall and Jefferson was that they did not think courts court deal in matters of
degree. Regarding whether Maryland could tax the bank, the answer was either yes or no.
Holmes: Thought that questions of law are matters of degree and that resolving the conflict between
legitimate opposing interests.
John Marshall
McCulloch v. Maryland
1. Questions addressed:
a. Does Congress have the authority to create the Bank of the United States?
b. Is the state tax on the bank constitutional?
2. Technically only question before the Court was the second one. But, Marshall used it as a chance
to articulate a broad vision of federal power.
3. MAJOR TAKEWAYS
a. Rejects Compact Federalism
i. States have no authority to negate federal actions
b. Expansive view of Congress’s powers
c. States cannot interfere with federal activities through taxes or regulations.
1. Does Congress have the power?
a. Historical Practice (invoked history of the first bank of US)
i. “Great deal of debate went into this decision and by great talent and even those who first
opposed it came to endorse it.” (i.e. James Madison)
b. Refutes compact federalism (that states retain ultimate sovereignty)
i. It was the people who ratified the Constitution. Thus, the people are sovereign, not the
states. Government is a government of the people. The states do not retain ultimate
sovereignty under the Constitution.
c. Scope of Congressional powers under Article 1.
i. Constitution, to contain every sub-detail of power, could not be embraced by human mind.
ii. It is a constitution that we are expounding.
iii. Congress may choose any means not prohibited to carry out its lawful authority.
d. Constitution provides for third argument with the Necessary and Proper Clause
i. Rejects restrictive view as being logically necessary.
1. Provision is made in constitution intended to endure for ages
2. N&P clause is placed in Article 1, Sec. 8 which expands Congresses power, not
Article 1, Sec. 9 which limits them.
3. Also, term “absolutely necessary” is used elsewhere in the constitution.
2. Constitutionality of Maryland Tax
a. The power to tax is the power to destroy, and the power to destroy may render useless the
power to create.
b. State tax on Bank of US was essentially a state tax on people in other states, and those people
were not represented in the state imposing the tax.
Rejects originalism: John Marshall not persuaded by the argument that a constitutional provision cannot
mean X because no one at the founding thought it did. Trustees of Darmouth College v. Woodward.
Thomas Jefferson
Bank Opinion
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“To take a single step beyond the boundaries thus specially drawn around the powers of congress,
is to take possession of a boundless field of power, no longer susceptible of any definition.”
Goes through the enumerated powers to what might be relevant
o Lay and collect taxes
o Borrow money
o Regulate commerce
Goes through the general powers
o General welfare
▪ Enumerated powers are for the general welfare. To read general welfare broadly
would “reduce instrument to single phrase”
o Necessary and proper
▪ Thinks this is logical necessity.
▪ “If such latitude be allowed to this phrase as to give any non-enumerated power,
it will go to every one….It would swallow up the delegated powers and reduce
the whole to one power.”
Opinion on whether Senate can negative the grade of appointments
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Business with foreign nations is executive altogether
o This notion is taken from English understandings of executive power.
Exceptions are to be strictly construed
Breaks up the appointment process into five steps, says the Constitution only contemplates the
Senates role for the fourth.
o Destination,
o grade,
o nomination,
o appointment,
o commission
Note: Page 74, notes 3-4
Oliver Wendell Holmes
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‘We must think things not words, or at least we must constantly translate our words into the facts
for which they stand, if we are to keep to the real and the true.’
“Courts are apt to err by sticking too closely to the words of a law where those words import a
policy that goes beyond them”
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Modern tax like the one in McCulloch would be unconstitutional as discriminatory. Authorization
is still controlling.
Court developed doctrine of intergovernmental tax immunity
o National bank immune from state taxation in the supremacy of national government
o Collector v. Day, Court held that state instrumentalities were equally immune from
federal taxation.
o Holmes thought these were in error for two reasons
▪ Believed too many lawyers were captive to legal concepts and rules that were
divorced from purpose and policies that they were expressed.
● Purpose of law is to bring about desirable social ends.
▪ In difficult cases, the judicial task is to draw an appropriate line based on the
weight of the interests at stake.
Pennsylvania Coal v. Mahon
o Holmes creates the regulatory takings doctrine.
II. Power of the Federal Judiciary
1. Judicial Review
a. Marbury v. Madison did not establish judicial review.
i. English common law judges addressed lawfulness of claims to authority by many
institutions. English courts reviewed the conformity to higher law of the laws
enacted by American provincial assemblies.
1. Didn’t review acts of Parliament b/c Parliament was the highest court.
2. American Constitution was enacted by the sovereign people and
provided a written law to gauge the lawfulness of legislative action.
3. Marbury was not the first opinion to examine the constitutionality of
legislation. Ex. Hylton v. US 1796. (page 88)
4. Marshall borrowed from Federalist 78 and Kamper v. Hawkins.
b. Marbury Context
i. Adams nominates Marbury as justice of peace. Marshall signs commission, but
doesn’t delivery it before Jefferson takes over. Jefferson gets his Sec. of State
(Madison) to withhold commission. Marbury sues for mandamus.
ii. Marshall saw case as opportunity to claim power of judiciary, but in context
unlikely to draw opposition.
c. Issues/Analysis
i. Does Marbury have right to commission?
1. Yes, all appropriate procedures for commission had been followed.
Delivery is not essential; commission is complete when it seal is fixed.
ii. Do laws of the country afford him a remedy?
1. “Very essence of civil liberty certainly consists in right of every
individual to claim protection of the laws”
2. But, Judiciary could provide remedy against executive when there is a
specific duty to a particular person, but not a matter of political
discretion.
iii. Can Supreme Court issue a remedy? Is Mandamus Appropriate Remedy?
1. Court can provide remedy when executive has a legal duty to act.
a. Ex. US v. Nixon, Nixon had to comply with subpoena
2. Yes, Sec. 13 of Judiciary Act of 1789 authorized mandamus on original
jurisdiction.
3. BUT, Marshall argued that Article III enumerated the Supreme Court’s
original jurisdiction and that Congress could not enlarge the Court’s
original jurisdiction. Allowing Congress to enlarge would render the
Constitution’s provisions on original jurisdiction as surplusage?
iv. Can the Supreme Court declare laws unconstitutional?
1. Yes
a. Constitution’s limits on government’s powers are meaningless
without judicial enforcement
b. “It is emphatically the province and duty of the judicial
department to say what the law is.”
c. It’s the Court’s job to resolve cases and controversies in front
of it. The courts have to decide between conflicting laws, it
must use the superior law.
d. Thoughts from Powell:
i. A judge must act on conscientious judgement about which conclusion in a given
case is best supported by the relevant arguments.
ii. Weinreb: It’s not permissible to conclude that there is no law that disposes of the
controversy before the court.
iii. Note 3, Page 95: Two points about textual arguments
1. (referring to the courts original vs. appellate jurisdiction) Affirmative
words are often negative of other objects than those affirmed. This must
be the case here.
2. It cannot be presumed that any clause in the constitution is intended to be
without effect.
2. Executive Enforcement of Judicial Order
a. Long settled ruled that executive branch enforces court orders without regard to whether
executive’s lawyers think they are legally correct.
b. One exception was in 1861, Lincoln ordered US army to disregard a write of habeas
corpus issued by Taney.
3. Authority of Judicial Decisions: Stare decisis
a. Stare Decisis: “That doctrine imparts authority to a decision, depending on the court that
rendered it, merely by virtue of the authority of rendering court and independently of the
quality of its reasoning. The essence of stare decisis is that the mere existence of certain
decisions becomes a reason for adhering to their holdings in subsequent cases.” -Posner
i. Doctrine of precedent was a bulwark of judicial of judicial independence
ii. Judge Arnold argued that stare decisis was more than just good judicial policy,
but underpinned the founding-era concept of judicial power in Article III.
iii. Judge Kozinski thinks stare decisis is just a matter of good judicial policy
iv. Modern Justice Department believes that constitutional structure obligates the
executive branch to adhere to settled judicial doctrine.
v. James Madison: “exposition of the Constitution is frequently a copious source,
and must continue until its meaning on all great points shall have been settled by
precedents.”
b. Judge made rules
i. Court has been making constitutional rules since beginning. Ex. Calder v. Bull
which held that ex post facto clause only applies to criminal, not civil cases.
ii. Ex. Dickerson: Court declared unconstitutional a federal law that sought to
overrule Miranda. Miranda was a constitutional rule and Congress cannot
overturn constitutional rules by statute.
1. Remedies that are themselves deemed unconstitutional cannot be
modified by Congress.
2. A suspect's confession had always been inadmissible if it had been the
result of coercion or otherwise given involuntarily
3. 5th Amendment has two protections, Due Process and rule against
self-incrimination
a. Totality of circumstances protects due process
b. Miranda rights protect self-incrimination
4. Supreme Court cannot be overruled by Congress.
5. Debate between Rehnquist and Scalia over the creation of doctrine.
Majority opinion assumes that to enforcement. (Marshall v. Jefferson).
a. Scalia disputed the notion that Miranda was a constitutional rule,
pointing to several cases in which the Court had declined to
exclude evidence despite the absence of warnings.
4. Limits to Judicial Power – The justiciability doctrines
a. Normative Reasons Why?
i. Separation of Power, make sure federal courts don’t intrude on political branch
territory
ii. Conserve judicial resources
iii. Improve judicial decision making by providing courts concrete controversies that
are suited for resolution. Make sure there are zealous advocates on both sides of
the case.
iv. Fairness, prevent courts from adjudicating rights of people who are not party to
the lawsuit.
b. Constitutional vs. Prudential requirements
i. Congress can overrule the prudential requirements, not the Constitutional ones.
c. Doctrines
i. Prohibition against advisory opinions
1. Declaratory Judgements are not considered advisory opinions because
the matter would have been justiciable had there been a request for an
injunction.
2. Fed courts can issue declaratory judgements if there is an actual dispute
between adverse litigants and if there is a substantial likelihood that the
court decision will bring about a change.
ii. Standing
1. Black Letter Law (Powell):
a. Personal, individualized injury in fact
b. Must be to a legally protected interest
c. Injury must be fairly traceable to conduct of person being
sued
d. Injury must be likely to be redressed by the courts
2. Constitutional Requirements (Chemerinksy)
a. Plaintiff must allege that he or she has suffered or imminently
will suffer an injury.
i. Ex. Sierra Club: Club members had to actually visit and
use the disrupted park for standing. Ex. Perry, supporters
of gay marriage couldn’t continue a law suit just for
ideological reasons.
ii. Ex. Clapper, suit of journalists against government did
not have standing against law allowing interception
because they couldn’t show that their communications
were intercepted or likely to be intercepted. Ex. Lyons
challenging police tactics of choking blacks. Court said
that P could not show that he personally was likely to be
choked.
b. Must allege that the injury is fairly traceable to the defendant’s
conduct. Ex. Wright: P wanted IRS to stop giving tax exempt
status to racially discriminatory private schools. Court said IRS
did not cause the discrimination, no standing.
c. P must allege that a favorable federal court decision will provide
redress.
3. Prudential Requirements (Chemerinsky)
a. Party generally may assert only his or her own rights and not
those of a third party.
b. Plaintiff may not sue as a taxpayer who shares a grievance
common to all other taxpayers.
c. Party must raise a claim within the zone of interests protected by
the statute.
4. Legislative Standing (Raines v. Byrd)
a. No standing because
i. No personal injury (all members equally injured; Real
injury is to constituents aka all Americans
ii. is wholly abstract, no legally protected interest violated
(having vote heard is constituents’ legal interest not
members’)
iii. Separation of Powers keeps SCOTUS out of conflicts
between Legislative and Executive unless absolutely
necessary
b. Potential for Standings:
i. Member of Cong has standing to sue over his exclusion
from House and loss of salary (Powell v. McCormack)
ii. No decision on whether Cong can piggy-back on another
suit v. Exec
iii. FN7. A senate procedure or law that said, for example,
that on matters of hog-farming, Iowa senators only get
one half a vote.
iv. Authorized to represent their respective houses of
Congress. Court punts on this issue.
iii. Ripeness
1. Seeks to separate matters that are too premature for review because
injury is to speculative or may never occur.
iv. Mootness
1. If events subsequent to the case resolve the dispute, it will be dismissed
as moot.
v. Political question doctrine
1. Subject matter that is inappropriate for judicial review.
2. First mentioned in Marbury v. Madison
3. Luther v. Borden: Issue was which Rhode Island government was the
rightful one. Court didn’t rule on it.
4. Is best understood when it is invoked it: foreign affairs, political
questions in the electoral process, Congress’ ability to regulate its
internal processes.
5. Black Letter (Powell) A properly framed question of constitutional
law will not be heard if
a. Answering it is textually committed to another branch
i. Nixon v. US (judge Nixon) senate tried him by taking
evidence by committee not whole Congress. Supreme
Court says Constitution says Senate tries via
impeachment.
b. If there are no judicially manageable standards to resolve the
conflict.
III. Congressional Power
1. Commerce Power Before Regulation
a. Gibbons v. Ogden (1824): NY Legislature gave monopoly to Ogden exclusive navigation
privileges. Gibbons starts operating a steamship pursuant a federal licensing law. Ogden sues
Gibbons in NY state court for injunction.
i. Court has to decide whether Licensing Act is within the scope of the commerce clause. It
is. Gibbons has a license to move freely from Congress, state law is preempted.
ii. What is Commerce? Intercourse, all phases of the business including navigation.
iii. What is Among the States? Court chose middle definition of commerce which concerns
more states than one, instead of “in midst of” or “interstate activities”
1. But could regulate intrastate activities with impacts on interstate
iv. Does state sovereignty limit Congressional powers? No.
b. US v. Coombs: D indicted for stealing goods from a shipwreck above the high water mark.
Judge Story doesn’t think admiralty clause extends beyond the high water mark. So, uses the
commerce clause.
i. KEY: If there are two readings of an act of Congress and only one is constitutional, use
that reading.
ii. Holding: Congress has the power to regulate purely intrastate activity that impacts
interstate commerce.
c. Gibbons gives the commerce power a broad definition. Coombs holds that Congress can
regulate activities that are not commerce.
2. Fuller Boundaries
a. Cases:
i. EC Knight (Sugar Trust Case):
1. Monopoly had control of 98% the sugar refining industry.
2. Court held that Congress could not regulate this as commerce because it was
production.
ii. Hammer v. Dagenhart (Child Labor Case)
1. Federal law that goods created by children couldn’t enter interstate commerce.
2. Court held that the goods weren’t inherently immoral (unlike lottery (Champion)
and, therefore, Congress couldn’t use its commerce power as an end around to
regulate production.
3. Holmes has strong dissent
b. Cases in this period embodied a Dual Federalism view, that states and feds were separate
sovereigns with separate zones of authority.
c. Fuller limits
i. Commerce was one phase of the business
ii. Direct vs. indirect effect on commerce (unworkable)
iii. Do a pre-textual inquiry of the law when it’s an implied power.
d. Court applied these inconsistently. Court invalidated economic laws that dealt with anti-trust
concern and employment regulations, but upheld laws regulating lottery.
3. Commerce Clause After New Deal (Court turns in 1937)
a. NLRB v. Jones Steel: Constitutional challenge to National Labor Relations Act, which created a
right to collective bargaining. Court said that labor relations had direct impact on commerce.
b. US v. Darby (1941) overrules Hammer. Law prevented interstate shipment of goods that did not
meet that wage and hour standards prescribed by Fair Labor Standards Act.
c. Wickard v. Fillburn: Distinctions between commerce and not commerce and indirect/direct
were not going to be followed anymore.
i. Even though Filburn’s wheat had a negligible effect on interstate commerce, Congress
could regulate because the cumulative effect of homegrown wheat would have a dramatic
effect. WICKARD AGGREGATION.
d. Heart of Atlanta v. US: Law prevented racial discrimination by public accommodations.
i. Whether Congress had a rational basis for finding that racial discrimination affected
commerce?
ii. Whether means chosen to eliminate evil are reasonable.
4. Modern Commerce Clause (After Lopez and Morrison)
a. Lopez:
i. Holding
1. Cong cannot regulate exclusively internal ST commerce w/ no substantial
connection to IC
2. Knowing possession of firearm in school zone is not a channel of commerce,
protection of commerce, or subst. affecting IC
a. Act didn’t address commerce in any way, purely criminal
b. Regulatory scheme protecting IC not substantially affected by guns in
schools
i. Can’t aggregate bc gun possession not economic in nature. Made it
federal crime to have gun within 1,000 feet of a school
ii. Cong’s “cost of crime” arguments about insurance, tourism, and
productivity of students fails bc accepting them would allow Cong
plenary police power that violates principles of federalism / system
of enumerated powers
b. Morrison:
i. Application of Lopez.
c. Modern Commerce Clause Doctrine. Black Letter Law:
i. Congress may regulate the channels of interstate commerce (Gibbons)
ii. Congress may regulate the instrumentalities (the things that actually move Congress
from one to another) of interstate commerce, even if threat comes from intrastate
activities. (planes, ships, persons moving through commerce) (Coombs)
iii. Congress may regulate those activities that have a substantial effect
1. But, can only use Wickard aggregation, must be economic activity. (Morrison)
a. Can’t just use a ‘cost of crime’ argument
2. If Congress needs to regulate something to preserve a regulatory scheme, it
can, even if it’s not economic activity. (Gonzalez)
3. Or, Government must prove the economic interstate effect in that specific case.
(jurisdictional element in statute) (Lopez, Gonzalez)
iv. Congress may not regulate inactivity (Sebelius)
d. Significance
i. Cuts off traditional criminal law for federalism.
e. Rehnquist’s on state sovereignty
i. Anti-Commandeering Principle: Federal Government may not compel states to enact or
administer a federal regulatory program. (New York v. United States).
1. Cannot treat ST like political subdivision
2. Law was unconstitutional because it forced one of two options on the state, neither
of which Congress could command on its own
3. Congress CAN regulate private power companies directly
ii. State sovereign immunity: Federal and state governments cannot be sued without their
consent.
1. Unless otherwise authorized, STs (and Fed fyi) cannot be sued in Fed court without
their consent
a. 11th Amend ensures this
b. Broadly waved for Takings cases
iii. Clear statement rule, -- Congress must be clear if it tends to alter the balance of power
between federal and state governments. (Gregory)
iv. Pg. 193: Fair Labor Standards example
1. Congress can enact FLSA- Darby
2. Congress can regulate states when they act like employers – Garcia
3. Congress can’t force states to enact little FLSAs – NY v. US
4. Congress can’t force states to regulate private parties under fed law. – Printz
5. Congress can’t force states to enact or administer a federal regulatory program. Printz
6. Can’t require states to respond to lawsuits when regulated as employers - Alden
7. Can sue state officials in their individual capacities for violations of the
Constitution. – Ex parte Young.
8. But, can sue state officials to compel them to obey FLSA in future – Ex parte
Young
9. Congress can compel states to fill out FLSA paperwork that the state-as-employer
must handle just as if it were a private employer, even if it commandeers the state’s
time. Reno v. Condon
a. “It does not require the South Carolina Legislature to enact any laws or
regulations, and it does not require state officials to assist in the enforcement
of federal statutes regulating private individuals.”
10. Congress can abrogate state sovereign immunity pursuant to 14th Amendment
Enforcement power (Fitzpatrick), but not when legislating via commerce clause.
(Seminole Tribe).
11. Congress usually can request information from the states.
5. Contemporary Commerce Clause Issues
a. Gonzalez v. Raich (2005): Congress can prohibit cultivation and possession of small amounts of
weed, even if it was totally intrastate because it’s economic activity and used Wickard
aggregation. And, it also used the regulatory hole argument.
i. Taylor (2016): Hobbs Act made it a federal crime to commit a robbery that affects
commerce.
1. If Gov proves beyond reasonable doubt that robber targeted a marijuana dealer’s
drugs or illegal proceeds, the Government has proved beyond a reasonable doubt
that commerce over which US has jurisdiction was affected.
2. “Where target of robbery is a drug dealer [ALREADY IMPACT ON INTERSTATE
COMMERCE] proof that the defendant’s conduct in and of itself affected or
threatened commerce is not needed.”
a. Tries to cabin this holding to drugs.
3. Dissent: Thomas wants to limit Hobbs Act to make government prove that specific
Defendant’s activity impacted interstate commerce.
b. NFIB v. Sebelius: Five Justices indicated an additional limit: Congress may not regulate
economic inactivity.
i. ***The distinction between activity and inactivity is not clear
c. Bollinger – D charged under 18 USC 2423 says that any US citizen who engages in illicit
sexual conduct in a foreign country shall be x,y,z.
i. This looks more like police power, can Fed government legislate?
ii. With foreign commerce, there is not the huge backdrop of federalism concerns. The
commerce with foreign nations doctrine is very different, don’t need to apply Lopez and
Morrison.
1. Fourth Circuit judge Gregory uses the Demonstrable Effects test, instead of
substantial effects test.
2. Additionally, in Int’l law that you can regulate citizens extra-territorially
6. The Dormant Commerce Clause
a. Principle that state and local laws are unconstitutional if they place an undue burden on
interstate commerce.
i. Inferred from Congressional grant to regulate commerce among the states.
ii. Briefly discussed by Marshall in Gibbons about the state steamship monopoly.
b. When to use analysis?
i. Triggered only when Congress is silent. When Congress acts, you’re no longer in Dormant
Clause analysis.
ii. Only when Congress could have regulated the issue?
iii. Congress can overrule Supreme Court about Dormant commerce clause.
c. When Dormant Commerce Clause Analysis doesn’t apply
i. State as a market participant. (Wunnicke)
1. Ex. State sets up camp exclusively for in-state resident (providing a service)
ii. State subsidies
1. Explicit Dicta but can be assumed true
2. Fine to offer only to in-ST residents
3. Different from tax exemptions, which are restricted by Dormant Commerce Clause
a. Taxes can penalize, subsidies don’t
4. Even if subsidy accomplishes same effect as other forms of ST action that would be
prohibited, SCOTUS will not review for facial discrimination
iii. State laws that address a subject that Congress is not authorized to deal with
d. Cases
i. Camp Newfound:
1. ST property tax provides exemption for charitable institutions but excludes orgs
operated principally for benefit of non-residents
a. ST statute provides benefit to in-ST camper camps not available to
out-of-ST camper camps 🡪Tax is essentially a discriminatory tariff🡪
Discriminatory tariffs forbidden by Dormant Commerce Clause
2. Holding:
a. Services provided are economic. Wickard.
b. Facially distinguish between states. Per se illegal.
c. Subsidies are generally allowed, but not taxes or tax exemptions (Hard to
make sense of this distinction).
3. Doesn’t have to be for-profit to be economic
ii. Kassel:
1. IA statute prohibits use of certain large trucks within ST, No real safety difference
between banned and allowed trucks, burdens out-of-Staters, provides some
exceptions for corps in IA to manufacture/ship
2. Plurality
a. Focuses on the factual record from trial
b. Statute invalid because safety concerns are merely illusory
c. Substantially burdens interstate commerce
3. Brennan Concurrence
a. Thinks court should focus on the legislative purpose, not the factual record.
4. Rehnquist Dissent
a. Thinks should be a rational basis look
b. Heavy presumption of legislative deference
e. Black Letter Law: Two Types of Dormant Commerce clause analysis
i. State law that discriminates on its face.
1. Subject to virtual per se rule of invalidity. (United Haulers)
2. State has to be protecting an extremely important interest.
a. Ex. Camp Newfound: Court found Maine law that gave tax exemptions
for charitable property to be discriminatory clause because it singled
out institutions that served mostly state residents for beneficial tax
treatment.
ii. State law that does not discriminate
1. Court balances the law’s burden on interstate commerce against the benefits
to the state. (Pike balancing)
a. Where the statute regulates even-handedly to effectuate a legitimate
local interest, and its effects 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 interest.” Pike
b. Huge problem for court to weigh interest and second guess legislatures
so be weary to strike down.
c. Scalia criticism: Comparing the benefits vs. burdens are often two very
different measures.
f.
Policy - Justifications for the Dormant Commerce Clause:
i. Historical Argument: Key impetus of the Constitutional convention was absence of federal
commerce power in Articles of Confederation. Commerce among states was obstructed.
Framers wanted to prevent protectionist legislation.
ii. Economic Argument: Economy is better off without protectionism.
iii. Political justification: Citizens in other states should not be harmed by laws in states in
which they are not represented. Ex. Tax in McCulloch would be borne by people in other
states.
g. Arguments against:
i. Textual argument: No explicit prohibition against states, despite state restrictions being
outlined in Article 1, Sec 10.
ii. Congress could speak and invalidate state laws that unduly burden commerce.
1. Counter to this argument: Unrealistic for Congress to always have to swat away
petty state laws that burden commerce.
iii. Big Problem: Because we focus on the factual record and not intent, The same statute
could be constitutional in one state but not in another based on how interconnected
the state is.
7. Congress and the Treaty Power
a. Missouri v. Holland: US and Britain entered into treaty to protect migratory birds. Holmes
rejected any 10th Amendment limit on treaty power.
i. Said that treaty power is broader than Congressional authority to enact statutes.
ii. Says that in all matters that could need to be addressed, there must be a power to address it
somewhere in civilized government.
1. Holmes emphasizes that the key thing about the case at hand is that it can be solved
‘only by national action in concert with that of another power.’
2. This could be viewed as a limiting principle. International collection action
problems must be met by treaty.
3. Also pays respect to explicit constitutional prohibitions that would limit the issue.
(de Geofroy)
iii. Holmes thought it was obvious that if a treaty is valid, there can be no dispute that the
statute implementing it is valid. Could draw on the Necessary and Proper clause to
implement treaty legislation that wouldn’t lie within Congress’ power.
b. Bond v. US: Court was asked to reconsider Miss v. Holland, but it refused.
i. Bond was prosecuted under federal law that implemented the federal chemical weapon
treaty for using household chemicals to cause rash on husband.
ii. Majority read statute narrowly to not apply to Bond. Assume that Congress does not mean
to upset Fed-State balance unless it says so.
iii. Dissents:
1. Scalia thinks statutory language is clear and would limit the treaty powers.
a. Thinks N&P clause here is N&P to make treaties, not to implement them.
b. Congress cannot use the treaty power as a loophole to legislate outside of
Article 1.
c. Treaty Black Letter
i. Treaty power extends to all topics that are proper for negotiation. (De Geofroy v.
Riggs, Missouri v. Holland)
1. ‘Here a national interest of very nearly the first magnitude is involved. It can
be protected. Only by national action in concert with that of another power.’
(Miss v. Holland)
ii. Congress may enact legislation as long it is reasonable to the treaty. (Missouri v.
Holland)
iii. Doesn’t mean that prohibitions still apply, just that Congress can enact things that
are beyond the enumerated powers. (De Geofroy v. Riggs) f(Missouri v. Holland).
iv. A treaty could force people to compel activity, Sebelius doesn’t say otherwise.
8. Money as Regulation
a. Congress has WIDE authority to tax and spend. Article 1, Sec. 8, Cl.
i. Can spend to achieve non-enumerated goals Must not violate other constitutional
provisions
ii. Steward Machine v. Davis: Upheld Social Security Act
b. Taxing Power:
i. Veazie Bank (1869): Court upheld constitutionality of a federal tax on state bank notes.
Court concluded it was indirect tax. Direct taxes have been limited to taxes on land and
appurtenances. Point of tax was to eliminate state bank notes.
ii. Bailey v. Drexel Furniture (Child Labor Tax Case): Court declared unconstitutional a tax
on companies that shipped in interstate commerce goods made by child labor, a regulation
which it already addressed in Hammer.
1. Based its reasoning in distinction between a true tax and a penalty.
a. Taxes can have incidental regulatory effects, but it’s unconstitutional when
“in the extension of penalizing features of the so-called tax…it loses its
character and becomes a mere penalty with the characteristics of regulation
and punishment.”
b. This reasoning ran contrary to precedent of Veazie and Doremus, which
penalized state bank notes and narcotics, respectively.
2. The reasoning was affirmed. There is a limit on the authority of Congress to
regulate by taxation where it cannot regulate directly.
iii. Sonzinsky v. US
1. Court upheld tax on firearms dealers.
iv. United States v. Kahriger
1. Court articulated conceptual limit of taxing power.
2. “When federal power to regulate is found, its exercise is a matter for Congress”
3. When it is a matter of state regulation, penalty provisions (provisions that are
extraneous to any tax need) will be unconstitutional.
v. Sebelius: Individual mandate is upheld as a tax.
1. Calculated as 1% of income, collected by IRS, funds go into Federal Treasury, will
generate $4 billion.
2. Dissent says they are engaging in activism and rewriting statutes. “Our cases
establish a clear line between a tax and a penalty.
vi. Black Letter on Tax
1. Congress may place tax on something beyond its regulatory power unless it’s
excessive or has provisions beyond the taxing need.
c. Spending Power as Regulation; Federal Grants
i. South Dakota v. Dole: Federal law sought to create drinking age of 21 by withholding
portion of highway funds from state governments who failed to make change.
1. Purpose of condition and money were tied closely together. At some point,
inducement might be so corercive as to pass the point at which pressure turns into
compulsion.
ii. Sebelius: Court found law to be unduly coercive.
1. Any state that failed to comply with condition would lose all of its Medicaid funds.
Threatens more than 10% of a state’s overall budged.
2. Dissent: Majority wrongly treats Medicaid as two programs, and old one and a new
one. If state doesn’t comply, Congress is not threatening funds earmarked for
another program, nor do funds induce states to take actionit couldn’t have done by
itself.
d. Spending Power
i. Power to lay and collect taxes to provide for common defense and general welfare is
very, very broad (Charles).
ii. Congress may spend in any way it believes would serve the general welfare so long as
it does not violate another constitutional provision. Does not have to be in pursuit of
another enumerated power. (Butler).
e. Black Letter to Spend as Regulation:
i. If beyond regulatory domain for the federal government
ii. Congress may place conditions on grants if they are
1. Spending must be in pursuit of the general welfare
2. Expressly Stated
3. Have some relationship to the purpose of the spending program
4. Are not unduly coercive
IV. Constitutional Separation of Powers
1. Making Laws: Congress trying to expand its power
a. INS v. Chadha (1983): Declared the legislative veto unconstitutional. Law gave Congress
authority to overturn an INS decision to suspend deportation.
i. Premise 1: Congress may legislate only if there is bicameralism (both houses) and
presentment (to President).
1. 4 Exceptions (that allow House/Senate to act alone not subject to Prez veto):
a. House impeachment power
b. Senate power to try impeachments
c. Senate advice and consent for Exec appointees/treaties
d. Subpoena power of committees
ii. Premise 2: Legislative veto was legislation w/o bicameralism or presentment.
iii. Says that these two processes may seem clumsy and formalistic, but they form a “finely
wrought and exhaustively considered procedure.”
iv. White Dissent: Emphasized need for legislative veto as check on the huge delegation of
legislative powers to administrative agencies, which also were not contemplated by the
framers. Without veto Congress has to choose between refraining to delegate necessary
authority and have to laws with requisite specificity to cover that of the modern
government OR abdicate its lawmaking function.
v. Congress cannot legislatively veto agency rules. If must use its formal process to
overturn an executive action.
b. Bowsher v. Synar (1986): Congress trying to limit, control Executive Power
i. Congress adopted law that set maximum allowable deficit for each of the following five
years. If spending excesses, the comptroller general, head of GAO (a legislative agency,
basically, Congresses accountant), was instructed to impose spending cuts as prescribed
in the Act.
ii. Court assumes that the ability to remove is control. Congress cannot give itself the
power to remove executive officials, except through impeachment process.
iii. The decision to use either the CBO or OMB plan about what programs to put spending
freezes on is executive in function.
iv. Unconstitutional, Congress cannot delegate the executive power to itself.
v. “Once Congress makes its choice for legislation, its participation ends.” Comptroller
general is removable by Congress, and therefore, Congress has taken the executive
power away from the President.
vi. “Constitution does not contemplate an active role for Congress in the supervision of
officers charged with execution of laws it enacts.
c. Anti-Aggrandizement principle (Chadha): Congress can’t enlarge its role.
2. Making Laws: Congress trying to expand Presidential Power.
a. Congress has greatly expanded presidential power and discretion with the use of administrative
agencies who write rules.
i. Limiting factor is the Intelligible Principles Doctrine: As long as executive is left w/ an
intelligible principle for agencies, is valid law.
1. Rather, when it instructs agencies to regulate, it must give them an "intelligible
principle” on which to base their regulations. Whitman v. American Trucking
Associations, Inc., 531 U.S. 457 (2001). This standard is viewed as quite lenient,
and has rarely, if ever, been used to strike down legislation.
b. Clinton v. New York (1998)
i. Act of Congress empowered president to veto particular parts of appropriation bills
while allowing the rest to go into effect. Was a way to control pork.
ii. Unconstitutional because President is changing the text of the bill. The version of the
law after veto is different than the one that went through Congress. Procedures for
passing laws must be strictly adhered to.
1. President doesn’t get to pick and choose parts of bill
iii. Distinguishes Field v. Clark
1. In Field, exercise of suspension power based on condition that didn’t exist at
time of the passage. This is a temporal argument.
2. Second, all president was doing was ascertaining a factual reality, which he was
then under a legal duty to suspend.
3. Was executing a policy that Congress was enacting in the same statute.
iv. Dissent: Practical consideration is that a modern spending bills could not be separated.
Each spending authorization was a separate bill at time of founding.
1. Congress legislates against backdrop of its other laws. So, by using the act,
president is following the law.
2. Intelligible Principles Doctrine is satisfied based on guidance from the Line Item
Veto Act.
3. Executing Laws: President’s authority over executive branch
a. Appointment Power: Art II, Sec 2
i. Removal power is so important because of the volume of decisions that need to be made.
President simply doesn’t have time to execute all the laws himself.
1. James Madison wanted unlimited removal power.
ii. Executive Branch BLL: Congress can define office as long as it doesn’t interfere with
removal power.
iii. Myers court reaffirmed President’s ability to fire executive branch officers, which was
recognized by Madison.
1. Myers invalidated provision that removal power requires advice and consent of
senate.
iv. Free Enterprise v. PCAOB (2010): SOX created the PCAOB. Members of PCAOB are
appointed by the SEC and removable by Commission only for good cause. Is vesting
appointment in SEC constitutional?
1. Problem: President could not remove PCOAB members, can only remove SEC
members only for good cause. Two layers of separation intrudes too much on
executive’s power.
v. Dept. of Transportation v. Am Association of RR
1. Holding: For purpose of determining validity of metrics and standards, Amtrak is
a governmental entity.
a. Secretary of Transport owns all of Amtrak’s preferred stock and most of
its common stock.
b. Lots of statutorily mandated supervision over Amtrak’s priorities
i. Must submit numerous additional goals defined by statute.
ii. Lots of federal reporting
iii. Dependent of federal financial support
2. Alito Concurrence:
a. Many constitutional problems arise.
b. Amtrak officials don’t take oath that all other officers take
c. Arbitrator must be read as “Public Arbitrator” because a private
arbitrator has no constitutional authority to set regulations.
d. Congress cannot delegate ANY legislative power to private bodies.
b. Principle that Emerges:
i. Unitary executive theory: one person as the executive allows for a decisive, vigorous,
and accountable branch
ii. President has power to remove executive officials, but Congress may limit the removal
if independence from president is desirable.
iii. Congress cannot prohibit all removal or give itself removable power outside of
impeachment. Cannot create double layer of protection.
iv. Question 1: Is office one in which independence is desirable?
1. If yes, removal power can be limited.
2. Humphrey’s, distinction between purely executive and quasi-judicial or
quasi-legislative tasks is hard to employ.
v. Question 2: Are Congress’ limits on removal constitutional?
1. Can limit when good cause
vi. Functionalist lose out again and again in issues of making laws to the formalists.
4. Executing Laws: Asymmetry of Congressional and Presidential Powers: How to analyze executive
action?
a. Youngstown v. Sawyer (1952): Steelworkers announce a strike. Truman announces an executive
order for Sec. of Commerce to seize steel mills and keep them running. Argues that steel strike
could endanger the Korean war effort. Unconstitutional.
i. Approach 1 (GOT A MAJORITY) - Huge Black: President has no inherent power and
may only act if there is express constitutional or statutory authority.
1. “There is no undefined residuum of power which he can exercise because it
seems to him to be in the public interest.”
a. Law making power entrusted to the “Congress alone in both good and
bad times.”
2. Commander and Chief Power?
a. No, theater of war is all the way in Korea.
b. Can’t expand the idea of the theater of war using CaC power to mean
taking domestic private property when the war is all the way in Korea.
3. Other executive power?
ii. Approach 2 –Douglas, – President has inherent authority unless he interferes with the
function of another branch of government or usurps the powers of another branch.
1. Douglas – President was forcing expenditure of federal funds to seize and operate
steel, therefore, usurping the spending power.
iii. Approach 3 – President may exercise powers not mentioned in the Constitution so long
as the president does not violate a statute or Constitution.
1. Frankfurter: Congress had expressly rejected giving power for Pres to take
industries
a. Congress has specifically provided for takings 16 times since 1916.
b. Thinks Black’s view is too narrow because it disregards the ‘gloss’
that real life his put on the constitution.
c. “gloss of history” similar to Missouri v. Holland
2. Jackson:
a. Tier 1: Acts pursuant a Congressional authorization,
i. President’s acts are presumptively valid. “When President acts
pursuant to an express or implied authorization from
Congress, his authority is at its maximum, for it includes all
that he possesses in his own right plus all that Congress can
delegate.”
ii. If unconstitutional, it’s because the Federal Government as a
whole cannot do it
b. Tier 2: President acts in absence of Congressional grant of
authority,
i. “Zone of twilight in which he and Congress may have
concurrent authority, or in which its distribution is uncertain.”
Under these circumstances, Jackson said that it is impossible
to formulate a general rule
ii. Will depend on “imperatives of events and contemporary
imponderables rather than abstract theories of law.”
1. Presidential authority can derive support from
“congressional inertia, indifference, or quiescence”
c. Tier 3: President Acts in a measure that is incompatible with
Congress. Because president is disobeying a federal law, his
actions will be unconstitutional unless the LAW unconstitutional.
i. Presumed unconstitutionality of his actions
d. Analysis
i. Tiers 1 and 3, the issue becomes the constitutionality of the federal
laws
ii. “Congress has not left the seizure of private property an open field
but has covered it by three statutory policies
iii. Commander and Chief power grants the president the power of a
top military officer in a constitutional republic, nothing more.
iv. LAST PARGRAPH Courts need to be the last branch to give up the
structure of the constitution, but the political reality will
iv. Approach 4: Broad Inherent Authorities
1. President has inherent authority, at least in some areas.
2. Invokes President Teddy Roosevelt’s ‘Stewardship Theory’ that the President is
bound to serve the people affirmatively in cases where the Constitution does not
explicitly forbid him to render service.
3. US v. Curtis Wright (Expression of this approach)
a. Class of powers (foreign v. domestic) “are different, both in respect to
their origin and their nature. The broad statement that the federal
government can exercise no powers expect those specifically enumerated
in the Constitution…is categorically true only in respect of our internal
affairs.”
b. Power to conduct foreign policy is not from the Constitution, but is
inherent in the nation state
4. Key: There have been broad claims to inherent powers since 9/11. Fourth
approach would prohibit many federal statutes that would prohibit powers.
5. President’s authority over foreign affairs
a. President Washington and Broad Presidential Authority over foreign affairs
i. Jefferson’s view was that business of foreign affairs is executive all together. Except
those roles specifically given to Senate.
ii. View was that Constitution vests president with authority to make substantive foreign
policy choices, Senate possesses only a negative check on president’s ability to make
treaties.
1. View was held by Washington, Adams, Jefferson, Jay, Marshall, Madison
iii. Two Exceptions to President’s power
1. Power to make treaties and appoint ambassadors, ministers, and public consuls
with advice and consent of Senate
a. Interpreted Senate’s role as a strictly limited up or down vote on
nominees (1790 Jefferson Opinion and 18th Century Oxford dictionary)
2. Declare war, regulate international commerce, immigration
iv. From beginning, clear that President did not need to consult Congress on issues of
foreign policy.
1. Ex. Jay in England in 1794, did not consult w/ Congress
2. Issue: Court has never squarely addressed question of who’s view prevails in a
direct conflict between Congress and President.
v. Ex. Curtis Wright
1. “President alone has power to speak or listen to a representative of the nation”
2. “President is the sole organ of the nation in its external relations”
3. But, in Curtis Wright, Congress and President were in an agreement. So, doesn’t
answer question of what happens when they disagree.
b. Medellin v. Texas
i. Facts: Treaty that allowed for review of domestic convictions of foreigners. Men
convicted in Texas. President Bush issued a Memorandum that said that the treaty was to
have effect in state courts. US would “discharge its international obligations…by having
State courts give effect to the decision.”
ii. Issue:
1. Is ICJ’s judgement in Avena directly enforceable as a domestic law in Texas
state court?
2. Does President’s memo require states to provide review of claims without regard
to state procedural default rules?
iii. Rule & Analysis
1. Difference between self-executing and not self-executing treaties. Court finds
that this treaty is non-self-executing.
a. Self-executing: treaty has automatic domestic effect as federal law upon
ratification
b. Non-self-executing: requires implementing legislation to be passed by
Congress.
2. We are in the third prong of Youngstown.
a. Law making authority (Senate + President) said it was not self-executing.
b. President cannot execute a treaty alone and cannot unilaterally execute a
non-self-executing treaty by giving it domestic effect.
iv. Medellin adds that you don’t need the whole Congress to get you to Prong 3. Senate +
President can get you to prong three?
c. Zivotofsky v. Kerry
i. Issues:
1. Does President have exclusive power to grant formal recognition to foreign
sovereign?
2. It yes, Can Congress command the President and Sec. of State to issue a formal
statement that contradicts earlier recognition?
ii. Rule and Application (Youngstown tier three)
1. Court finds that the recognition power is the President’s.
a. Recognition power from the 18th Century
i. Receive Ambassadors
ii. Send Ambassadors
iii. Make Treaties
b. Passports are statements to foreign nations by the Secretary of State
c. Practical implications of the ‘one voice’ argument weight heavily
2. Therefore, Congress cannot insert itself into the recognition power
iii. But, Zivotofsky also expands Congressional authority for foreign affairs
1. Refutes Curtis Wrights ‘sole organ’ language
2. “Whether realm is foreign or domestic, it is still Legislature that makes the
law”
3. It is not for the President alone to determine the whole content of the Nation’s
foreign policy.
iv. Scalia’s Dissent
1. History
a. Says that the traditional view of recognition should not control, because
it was thrown out with the revolution.
b. Points to history of Congressional involvement in recognition.
2. Says that the functional considerations are dangerous
a. “functionalism” will systematically favor a unitary president over a
plural congress
6. War Powers
a. Uncertainty:
i. Challenges likely to be dismissed as political question
1. Vietnam, dozens of cases were filed in the federal court arguing that the war was
unconstitutional because there was no declaration of war. Most of the courts
considered these non-justiciable political questions.
a. Same with Reagans activities in El Salvador, Persian Gulf,
ii. Unresolved as to what constitutes a ‘Declaration of War’
iii. Uncertainty about how Congress would limit the powers
1. Is the War Powers Resolution unconstitutional?
iv. Unresolved about the role of the Necessary and Proper Clause of the ‘War Powers’
1. Congress can create some domestic regulation using the necessary and proper
clause in conjunction with its power to wage war, even after the hostilities have
ended. (Woods)
2. Justice Jackson expressed serious concerns about how far this would stretch.
(Woods).
v. President is vested with power as Command in Chief
vi. Congress is vested with: Declare War, raise and support armies, make rules concerning
captures of land and water, make rules for government and regulation of the land and
naval forces. (Hamdan)
1. Framers vested C in C power in President to make sure that armies were
controlled by civilians, not other way around. (Jackson¸Youngstown)
vii. One Congress cannot bind future Congress’. Later Congress can authorize military force
without future
viii. But they have said ‘authorization’ in every instance. Would have to have a very strong
language to think we have authorization without actually saying ‘authorization’.
b. Little v. Barreme (1804) (Has been cited only a handful of time)
i. Facts:
1. Congress passed a law that prohibited commerce with the French. Captain Little
detained the Flying Fish, which was coming from France.
a. Congress had limited the scope of the act. It prohibited ships sailing to,
not
ii. Analysis
1. Government did not claim statutory authority. It claimed that the President had
preclusive/conclusive power over these actions and that Congress had no right to
pass the law.
2. Court upheld award of damages against ship captain
iii. Conclusion
1. Court stated that while the president might have the inherent authority to order
seizure of ships, Congress, by the Noninterourse Act, had expressly limited the
president’s authority
c. Black Letter Law
i. Declaration of war is not an all or nothing proposition. It’s not a binary on/off
switch. Congress can authorize force for a limited purpose, scope, and time. But,
Congress cannot micromanage the campaign.
1. Commander and Chief power, go back to Jackson in Youngstown
ii. This is reinforced by Zivotofsky that Congress creates the law and by Jackson’s
argument in Youngstown that the Commander and Chief Power should be thought
of that as the highest general.
d. War Powers Resolution
i. President as commander-in-chief may introduce US Armed Forces into hostilities where
hostilities appear imminent only with
1. Declaration of War
2. Specific Statutory Authorizations
3. National emergency created by attack upon the US, its territories or possessions,
or its armed forces.
ii. Requires president consult Congress where possible and report to Congress within 48
hours after troops are introduced
iii. Most Importantly
1. President shall withdraw troops after 60 days, unless
a. Congress has declared war or
b. Authorized a 60-day extension or
c. Is physically unable to meet
2. President can extend this by 40 days if he certifies to Congress in writing
7. Executive Branch Precedents (read these again)
a. Legal Significance of Presidential Signing Statements (Dellinger)
i. Signing Statements: A signing statement is a written pronouncement issued by the
President of the United States upon the signing of a bill into law.
ii. Three Functions
1. Explain to public what President believes likely effects of its adoption
a. Uncontroversial
2. Direction subordinate officers within the executive branch how to interpret or
administer an enactment
a. Often used to save an enactment from unconstitutionality by
administering it in a certain way.
3. Informing Congress and the public that the Executive believes particular
provision would be unconstitutional in certain applications or on its face and it
won’t be given effect. (Most Controversial)
a. One view is that Constitution provides her this authority
b. But, why sign it? Does he have constitutional duty to veto?
i. No constitutional duty to veto
iii. Fourth Function (Very controversial)
1. Use to create legislative history for courts to use.
a. Support: Presidential is now a de facto participant in the legislative
process
b. Against: Congress passes the bills, President gets an up or down vote.
i. Legislative record is closed
2. Dellinger did not reach a conclusion on this question.
b. Presidential Power to Decline to Execute Unconstitutional Statutes
i. If President believes that the Court would sustain a particular provision as constitutional,
President should execute statute, notwithstanding his own views about its
constitutionality.
ii. If President believes its unconstitutional and the Court would agree with him, has
authority to decline to execute.
c. Cambodian Sanctuaries
i. The Framers divided the war powers, 2 competing interests
1. Rejected the powers of king to commit unwilling nations to king’s objectives
2. Need for quick response to executive situations
ii. President’s ability to engage in armed hostilities outside of ‘war’
1. History
a. Role of Congress has changed depending on the objectives and scope of
the war
i. WWII vs. Korea
1. In World Wars, the goal was an unconditional surrender.
In Vietnam, goal is more limited to territorial integrity
and self-determination.
iii. Scope of President’s Power as Commander-in-Chief
1. Commitment of Forces without Congressional Authorization.
a. There has been a history of use without Congressional authorization and
also a history of Congressional acquiescence
b. Jefferson in Tripoli
c. Korean War
i. Congress acquiesced about US troops in Korea
2. Deployment of Troops throughout the world with no Congressional authorization
a. We keep troops around the world
3. Authority to conduct or carry once it’s been lawfully instituted
iv. Constitutional Practice Requires Executive to Obtain Congressional sanction for major
hostilities
1. Rehnquist defines ‘declare war’ as an effective blank check to bring about the
subjugation of a nation.
2. Korean War was high water mark.
a. Repeated authorizations and appropriations aren’t equivalent to
congressional approval.
v. Congress’ ability to restrict
1. Yes, up to a point.
2. Commitment to combat vs. Tactical decision
d. OLC binds the executive branch, but no the attorney general. The AG binds the Justice
Department except the President. AG can speak the law for the entire executive branch.
e. Question: How to reconcile the Black Letter Law of War Powers when scale is sufficiently
small and the holding in Little?
i. Think: Justice Jackson in Youngstown
8. Individual Liberty and National Security
a. New York Times v. United States
i. Facts: NYT sought to publish Pentagon Papers. Government tried to stop it under the
guise of national security
ii. Gov’s reasoning
1. President relies on his Article II powers
a. Authority as commander and chief
b. Foreign policy, protection of state secrets
iii. Court’s reasoning
1. Per Curiam is that a restraint on speech is presumptively unconstitutional
2. Factual claim by government doesn’t allege immediate, direct, and irreparable
damage.
3. Justice White’s Opinion is the narrowest
a. Doesn’t say that there is no circumstance where gov might prohibit
publication
b. Says US hasn’t satisfied burden, at least in absence of congressional
authorization for prior restraints
i. Issue? Why would Congressional authorization make a difference
about a Constitutional prohibition.
b. Hamdi v. Rumsfeld
i. Issue 1: Does the gov. have authority to hold American citizen apprehended in a foreign
country as an enemy combatant?
1. Hamdi argued that his detention violated the Non-Detention Act. Which said that
no citizen should be imprisoned unless pursuant to an act of congress
2. Plurality Reasoning: Detention authorized through AUMF and it permits
detaining of citizen apprehended in a foreign country.
a. Government tried to argue that President did not need explicit authority
to detain from Congress because President had his own power under
Article II.
b. Court does not reach issue of inherent authority. Says it was authorized in
the AUMF.
c. Puts a lot of stake in the fact that Hamdi was captured abroad in battle
zone.
3. Scalia Dissent: No authority to hold a citizen as enemy combatant without trial
unless Congress suspends the writ.
ii. Issue 2: What process, if any, must be accorded?
1. Government argued
a. For lower due process standard because of the ex
i. Relied on Mobb affidavit that testified that Hamdi was what gov
claimed he was.
b. Court’s should look at Constitutionality of the system of process and not
look at individual cases.
2. Court rejects these arguments.
a. Deprivation of liberty. Government must follow Matthews, balance
i. Importance of interest to the individual
ii. Ability of additional procedures to reduce risk of erroneous
deprivation
iii. Government’s interest
b. Didn’t specify what process required, but must be
i. Notice of charges, right to respond, Right to attorney, right to be
heard by a neutral decision maker.
ii. Procedural Due Process is always about this case and this person
V. THE SCOPE OF CONSTITUTIONAL LIBERTY
1. Overview:
a. Equal Protection: Government cannot treat A and B differently if they are similarly
situated unless it has adequate reason for doing so. A law that is valid on its face can be
administered in such an arbitrary or discriminatory fashion that it violates equal
protection.
b. Procedural Due Process: What procedures are required before government can deprive
anyone of life, liberty or property.
c. Substantive Due Process: Legislature cannot deprive anyone of the general liberty to do
anything that is no malum in se unless it has adequate reason for doing so.
1. Default Rule: Rational basis for the deprivation of liberty.
a. When deciding whether a law achieves its asserted end, judges ask whether a
rational legislature could have thought so. US v. Carolene Products. Williamson
v. Lee Optical.
2. Fundamental rights/protected liberty interests: strict scrutiny
3. Rule as to executive action: “shocks the conscience’
2. Fundamental rights equal protection (DON’T CONFUSE)
a. Has been limited to right to vote, right to be a candidate,
b. Voting
i. Harper: said that because voting was a fundamental right, voting regulations receive strict
scrutiny.
ii. Rodriquez (1973) made clear the Court's desire to confine strict scrutiny to cases involving
rights that are either explicitly or implicitly guaranteed by the Constitution.
iii. Crawford:
1. IN voter ID law makes voting more difficult (inconvenient) for some, but Crawford failed
to show who and how badly; Can still vote without ID but only counted if affidavit
recorded at clerk’s office within ten days
2. Plurality Opinion
a. Balances burden on Right vs. burden on ST interest
i. ST: Modernization, prevent voter fraud (though no evidence it had occurred),
confidence in election results
ii. Didn’t explicitly reject Harper, but employs a balancing test that does not
resemble strict scrutiny.
3. Equal Protection
a. Generally (Carolene footnote)
i. Default: Rational basis for the different treatment
ii. Suspect (and quasi-suspect) class: heightened scrutiny
iii. Fundamental rights: Strict scrutiny
b. Have been a string of cases where laws have been struck down because the court has determined
the actual purpose of the legislative discrimination was to harm a targeted group. Invalid even
under rational basis.
a. “If constitutional conception of equal protection means anything, it must at the very least
mean that a bare congressional desire a politically unpopular group is not a legitimate
government interest.” See e.g. USDA v. Moreno, Strauder, Romer v. Evans.
ii. Equal protection clause applies to the federal government through the 5th amendment.
Bollinger v. Sharpe
c. Tests
i. Question 1: What is the classification?
1. Discriminatory on its face?
2. Discriminatory in its impact?
a. Washington v. Davis: Laws that have a racially-discriminatory effect but were not
adopted to advance a racially-discriminatory purpose are valid.
i. Invidious intent doctrine: Need to show because-of discriminatory intent.
ii. Widened further in Lesage. “Even if gov has considered an impermissible
criterion…it can defeat liability by demonstrating that it would have made the
same decision absent the forbidden consideration.
ii. Question 2: What is the appropriate level of scrutiny?
1. Default: Rational basis
a. Legitimate government interest?
i. Health, safety, public morals, wealth
1. Romer v. Evans failed morals legislation under rational basis
ii. Doesn’t have to be actual reason. Look for conceivable reasons.
b. Reasonable Relationship
i. There is lots of tolerance between over and under-inclusivity
ii. Allegheny: Court struck down a tax assessors arbitrary, irrational scheme
2. Strict Scrutiny
a. Used for: race, ethnicity, national origin, aliens (unless Congress is legislating), and
exercise of fundamental rights
i. Test: Government must prove
1. Compelling interest. Actual purpose of the law.
2. Cannot achieve interest without discriminating. No alternatives
3. Narrowly tailored
3. Intermediate Scrutiny:
a. Used for: Gender (but see US v. Virginia, heighted further) and discrimination
against non-marital children
b. Test: Government must prove
i. “Classifications by gener must serve important governmental interest and
must be substantially related to achievement of that objective.
ii. Actual Purpose of the law
iii. Question 3: Does the government action meet the level of scrutiny
1. Under-inclusive? Most laws are under-inclusive. Under rational basis, government can
proceed ‘one step at a time’
2. Over-inclusive?
d. Cases:
i. Race
1. Strauder: Judicial notice of social realities: “Everyone knows the point of the law is to
tell blacks that they are inferior.
2. Brown v. Board
a. Can’t use history to decide.
i. Proponents of amendments wanted broad application.
ii. Opponents wanted as limited application as possible.
iii. Public Education, if there was any, was extremely different at the time of the
passage.
b. Looks at EFFECT of segregation on public education
i. To separate generates a feeling of inferiority as to status
ii. Retards black student’s education and mental development.
3. JA Croson:
a. Adds strict scrutiny to be used in evaluating state and local affirmative action
programs.
i. O’Connor: “Classifications based in race carry a danger of stigmatic harm.
Unless reserved for remedial settings, they may in fact promote notions of
racial inferiority.”
4. Parents Involved:
a. Roberts plurality: Achieving racial diversity is not an allowable government interest.
b. “The school districts in these cases have not carried the heavy burden of
demonstrating that we should allow this once again—even if for very different
reasons.”
c. Kennedy: Keep desegregation of schools as a interest, but need to find another way
to achieve desegregation
5. Gratz: Policy of automatically distributing by race is unconstitutional
6. Fisher II: Race can be loosely considered in the context of higher education to achieve
diversity. Diversity is a goal in and of itself.
a. ‘Top 10-Percent’ Texas policy fills about 75% of the spots.
b. Part of a year-long study with a 39-page report. Final 25% of spots are filled by the
PAI score, which has several components
i. Average score on essays (1-6 score)
ii. Full file review by separate reader that includes another (1-6) score. Includes
review off letters of recs, resumes, writing samples, leadership experience, and
other ‘special circumstances’.
1. This ‘special circumstances’ include socioeconomic status, single parent
household, SAT score relative to their high school average SAT score, and
finally, some race.
7. Black Letter Law on affirmative Actions
a. Non-Higher Education
i. Affirmative Action will be allowable if directed at entities that have history
of illegal discrimination to remedy damages to proven victims of
discrimination. (JA Croson)
ii. Will not be allowed to remedy long history of racism throughout society.
(JA Croson)
iii. Fullilove hasn’t been expressly overruled, but it is hard to see the Court
accepting it.
iv. Uncertain: Directed at specific entities where discrimination has been
proven, but where beneficiaries themselves haven’t been proven to be the
victims.
b. Higher Education
i. Diversity is an end in and of itself. (Contrast this with Parents Involved)
ii. Strict scrutiny applies. Burden of proof flips. Grutter.
iii. If university has explained its reasoning for race to achieve diversity and
has shown that this is the point of the policy itself, the Court will take it at
its word and be deferential. Grutter.
iv. Still must be narrowly tailored.
v. Can’t plan to do policy in perpetuity.
ii. Gender Discrimination
1. Reed v. Reed: Court claims its doing rational basis, but it’s hard to see how.
2. Frontiero: Established sex as a heightened scrutiny basis.
3. US v. Virginia: Reaffirms intermediate scrutiny for gender differences, maybe raises the
bar a bit.
a. “Exceedingly persuasive justification.”
b. Reasoning
i. “Virginia has not shown that VMI was established, or has been maintained,
with a view to diversifying, by its categorical exclusion of women, education
opportunities.”
ii. “Generalizations about ‘the way women are’ estimates of what is appropriate
for most women, no longer justify denying opportunity to women whose talent
and capacity place them outside the average description.”
1. Look at the actual individuals who are being discriminated against,
not ‘most women’
4. Nguyen: Court uphold law making it easier for children born out of wedlock to an
American mother to get citizenship. Law made it more difficult for children of American
men.
iii. Sexual Orientation
1. Romer v. Evans: Failed rational basis review. Desire to harm a particular group is not a
legitimate government interest.
2. Lawrence: Switches
3. Windsor: Reaffirms Romer, desire to harm gays and lesbians is not a legitimate
government interest. Congress massively intruding into family law, a domain of the
states.
a. Windsor shows that all your trying to do is protect traditional marriage is a nice way
of saying that you want to treat same sex couples as subordinate, less equal, and out
of animus.
4. Obergefell
a. Constitution promises liberty and liberty includes certain specific rights that allow
persons to define and express their identity.
i. ‘Marriage is essential to hopes and aspirations’
b. Mention’s Harlan’s dissent in Poe,
i. ‘History and tradition guide and discipline this inquiry, but do not set its outer
boundaries.’
c. Much of the marriage precedent (Loving, Zablocki,) was substantive due process so
maybe he is trying to keep with the precedent.
d. Four Substantive Due Process Considerations
i. First premise of precedents is that the right to personal choice regarding
marriage is inherent in the concept of individual autonomy.
1. Ties to first amendment ‘people find freedoms, such as expression,
intimacy, and spirituality’
ii. Second Principle of precedent is that right to marry is fundamental because it
supports a two-person union.
1. Offers hope of companionship
iii. Third Basis of protecting right to marry is it safeguards children and families.
1. Permanency and stability in children’s interests
iv. Fourth basis is that marriage is keystone of social order
1. We’ve structured many of our legal institutions, around marriage
a. Ex. Hospital access, taxes, rights of survivorship, custody, etc.
e. Touches Equal Protection
i. ‘No difference between same and opposite sex couples with respect to this
principle’
ii. Laws against ‘demean gays and lesbians’ (Strauder)
f. Refutes Glucksberg that the rights have to be carefully described
i. ‘Loving did not ask about a right to interracial marriage’
g. Kennedy sees a convergence/connection between Equal Protection and Substantive
Due Process.
4. Substantive Due Process
i. Is the government’s interference justified by a sufficient purpose?
ii. Procedural reading of the due process clause is most natural reading. Has its roots in the
Magna Carta.
iii. History of Doctrine:
1. A central theme in our legal tradition is its rejection of governmental tyranny. If Due
Process clause is only procedural, there is a huge hole in safeguards against tyranny.
a. As long as correct procedures are followed, it can interfere with liberty as much as it
chooses
b. Justice Chase’s opinion in Calder v. Bull. Pg. 464.
2. Doctrine slowly gathered steam throughout the late 1800s. Ended in Allgeyer and Locher
iv. Lochner
1. Court declared NY laws that set maximum hours that bakers could work. Court
articulated 3 principles
a. Freedom to contract is a basic right
b. Government could interfere with freedom of contract only to serve a valid police
purpose
c. Judicial role to scrutinize legislation that interferes with freedom of contracts.
2. Holmes Dissent: “14th Amendment does not enact Mr. Herbert Spencer’s Social
Statistics… [A] constitution is not intended to embody a particular economic theory,
whether of paternalism and the organic relation of the citizen to the State or of
laissez-faire.” “Our finding certain opinions natural and familiar, or novel, and even
shocking, ought not to conclude our judgement upon the question whether statutes
embodying them conflict with the Constitution.”
3. Harlan Dissent: Need to defer to legislatures. Ninth and tenth amendments are about
limiting Congress, not creating new rights for the people.
v. Before Harlan’s Dissent in Poe
1. Skinner v. Oklahoma (1942)
a. In the wake of Buck v. Bell (1927) in which a woman was sterilized because the state
said she was mentally handicap. Found that 60,000 forced eugenic sterilizations had
been performed in the US by 1935.
b. Court found that law violated equal protection clause.
c. Found a fundamental right to procreate.
vi. Poe v. Ullman (Harlan’s Dissent)
1. Section 1
a. Power of judicial review comes from the Constitution
i. Constitution is not approached in a literalistic way, but as the basic charter for
our society, setting out in spare but meaningful terms the principles of govern.
ii. ‘Due Process’ has never been viewed only as a procedural protection by the
court.
1. Problem with this approach is it could give fairest possible procedure and
nevertheless utterly destroy protections for life, liberty, and property. (See
Skinner)
iii. ‘Due Process’ has never been so inflexible as to only protect governmental
restraints merely applicable to federal action.
iv. That an identical provision is found in the Bill of Rights suggests that due
process is a discrete concept which subsists as an independent guaranty of
liberty.
v. Liberty operates on a rational continuum, restrained judgement of judges will
be able to figure out what counts and what doesn’t.
b. Doing the same thing with the word ‘Liberty’ as Marshall did to Article 1, Sec. 8 in
McCulloch.
i. Liberty: Protects all unreasonable/arbitrary restrictions
ii. Constitution has a broad contextual purpose to protect against the invasions of
liberty.
2. Section 2
a. ‘mere assertion that the action of the State finds justification in the realm of morals
cannot justify alone any and every restriction it imposes.’
i. Here, birth control has no direct impact on other people.
b. Describes how not to do sub due process
c. Secular state is not an examiner of consciences, but must operate in the overt realm
of behavior.
3. Section 3 – How to properly do substantive due process.
a. State asserting a general objection to contraceptives, but then using the most liberty
destroying policy to accomplish its objective.
b. DON’T PUT FORM OVER SUBSTANCE
c. Infringing on marital privacy?
i. Is privacy a constitutional concern? Yes
ii. Is privacy of the home a concern? Yes
iii. Does it make sense if the fourth amendment was only concerned with the
physical invasion of the home? No
1. Is it really better to have cops come kicking in door with a valid warrant
to check if you’re using contraception? No
d. The fact that Conn. Doesn’t prosecute the crime, but nevertheless persists in
asserting its rights to do so at any time is both arbitrary and presents a constant
threat to privacy of households.
vii. After Poe
1. Griswold
a. Right to privacy is a fundamental right.
i. References to NAACP and Alabama’s laws.
1. “We protected the ‘freedom to associate and privacy in one's
associations,’ noting that freedom of association was a peripheral First
Amendment right.”
ii. Not protected under the fourteenth amendment.
iii. Privacy implicit in the specific provisions of the first, third, fourth, and fifth
amendments. Privacy found in the ‘penumbra’ of the Bill of Rights.
b. “Penumbras” of various Bill of Rights amends create a “Zone of Privacy” that
cannot be invaded by Gov (implied in 1st, 3rd, 4th, 5th).
i. Although, the privacy that comes from the Griswold line Roe, Casey, Lawrence
seem more to do with the right to make choices for oneself and not with
keeping things secret.
c. Dissent:
i. There’s no way to objectively determine which liberties are “fundamental” so
must stick to the text
ii. Such loose/flexible standards for judic are dangerous threat to sep of powers
and could lead to a slippery slope
iii. If a liberty is so fundamental, amend the const
iv. Maj is not using Marshallian reasoning; That enables Legis power, this expands
Judic power
2. Eisenstadt: Law prohibited distributing contraceptives to unmarried persons.
a. Privacy means fundamental right to be free from unwarranted governmental
intrusion into matters fundamentally affecting a person’s decision to have a child.
i. No state interest in punishing unmarried couples by causing them to have
children.
b. Takes aim at Morals legislation
i. “To say that contraceptives are immoral as such, and are forbidden to
unmarried persons who will nevertheless persist in having intercourse…In the
absence of demonstrated harm, we hold it is beyond the competency of the
state.”
3. Roe v. Wade (1973)
a. Trimester Framework established, but “adjusted” by Casey
b. Fetuses are not Persons
c. Right to choose is not absolute
i. ST has legitimate interest in protecting viable fetuses
ii. At certain point (here 3rd trimester, later viability) ST interest in protecting
viable fetus outweighs mother’s interest in termination
d. Analysis fits with Liberty as a “Rational Continuum” logic
4. Casey
a. Pennsylvania law regulated abortion in a number of ways, one requirement was
spousal notification.
b. Abortion is constitutionally protected because of the importance of choice (First
Amendment) and freedom from physical constraints.
c. Also reaffirmed the state’s right to protect life after viability and protect potential
life.
d. Black Letter Law for abortion Undue Burden Test
i. Undue Burden
ii. State my exercise its right to protect life and potential life
iii. State may not prohibit abortion
iv. State law is unconstitutional if its purpose or effect is to place a substantial
burden on a women’s right. Look at the people actually burdened.
v. Court must expressly take account of the medical benefits of the laws
e. Reasons for overruling Stare Decisis:
i. Evolution of principles that undermined doctrinal foundation of present
ii. Change in factual predicate for decision
iii. If older decisions were unworkable.
5. Hellerstedt (Application of Casey) (pg. 555)
a. Texas law would cut number of providers from 40 to 8
i. Each of these facilities would have to serve 7,500-10,000 annually
ii. Number of women living more than 200 miles away from facility would
increase from 10,000 to 750,000
b. Court of Appeals erred by applying rational basis scrutiny to law and by not
considering the medical benefits.
c. “Court retains independent duty to review factual findings where constitutional
rights are at stake”
d. Surgical center requirement provides no benefit
i. Childbirth is 14 times more likely to result in death than abortion, but is
allowed to go on in patient’s own home
ii. Colonoscopy’s are 10 times more likely to result in death, but takes place
outside hospital or surgical center.
6. Glucksberg
a. Court held that prohibitions against physician assisted suicide were constitutional.
b. Rehnquist changes due process analysis
i. Right is protected as fundamental under the due process clause when it is
supported by history or (substantive) tradition.
ii. Look carefully at the intrusion of the liberty interest.
c. Obergefell seems to have confined Glucksberg to its facts.
d. Key
i. For Harlan in Poe, the ‘tradition’ was the common law tradition of analogy and
reasoned judgement. For Rehnquist, tradition is the history of the substantive
law of the US.
ii. Rule in Graham: When specific provisions of the Bill of Rights apply in
particular situations, it was through those provisions that the Framers south to
restrict liberty infringements by government.
7. Lawrence
a. States may not prohibit private consensual sexual activity between adults of the
same sex. Expressly overruled Bowers.
i. Bowers court framed the issue incorrectly as a right to homosexual activity.
ii. It’s a right to be free from state interference in the most private of human
conduct.
iii. Statutes often are the basis for discrimination, born out of animosity towards
gays (see Romer v. Evans)
b. Reaffirmed the constitutional protection for privacy
i. “In our tradition the state is not omnipresent in the home”
c. Recognizes that sexual activity is a fundamental aspect of personhood.
d. Scalia Dissent
i. Says that they aren’t throwing out precedent under the criteria laid out in Casey
ii. Powell: Know Scalia’s attacks on Kennedy’s reasoning.
8. Obergefell
a. Marriage is a fundamental right (4 rationales – NOT a test)
b. (1) Profoundly intimate decision
1. Like pregnancy (Casey)
ii. “Zone of Conscience/Belief” (defining our own beliefs)
c. (2) Involves a unique relationship (association)
i. Uniquely important to the individuals involved (Griswold)
d. (3) Uniquely important to protection of families
i. Especially welfare of children
ii. Not allowing parents to get married harms children, make them feel
inferior/subordinate (Brown)
e. (4) Keystone to social order, essential to our system
i. Defining as M-F excludes a classification from a societal institution, treats
them like second class citizens (Strauder)
viii. Fundamental Rights (Receive strict scrutiny, Carolene Products, n4)
1. List: family autonomy, procreation, sexual activity, sexual orientation, marriage,
decisions over medical care
ix. Substantive Due process and the executive branch (Rochin v. California, stomach pumping
case)
1. Due process clause imposes standards of decency and fairness by executive actions. Only
going to find such a problem when it is the ‘most egregious conduct’. (County of
Sacramento v. Lewis).
a. ‘imposes upon this Court an exercise of judgement upon the whole course of the
proceedings in order to ascertain whether they offend those canons of decency and
fairness which express notions of justice of English-speaking peoples”
b. Forced stomach pumping ‘shocks the conscience’
2. State action can be constitutional, but state inaction is generally not. (DeShaney).
ENFORCEMENT POWERS
1. Thirteenth Amendment
a. Civil Rights Cases (1883):
i. Enforcement power of 13th Amendment, Congress could “abolish badges and incidents of
slavery”
ii. But not to “adjust what may be called the social rights of men and races in the community.”
iii. Prevented Congress from regulating private discrimination.
iv. Overruled in Jones in defining what a badge or incident of slavery is.
b. Jones v. Alfred Mayer Co (1968)
i. Congress could prohibit private discrimination in the selling and leasing of property.
ii. Reaffirmed in Runyon and Patterson
1. Runyon also raised the question of racial discrimination in private schools
c. Court hasn’t addressed 13th Amendment in a long time. Might change its view, especially
considering current make up of court.
d. Black Letter Law
i. Congress has power address badges and incidents of slavery
ii. Use rational basis scrutiny to determine what badges and incidents
2. Section 5 of the Fourteenth Amendment
a. Section 5 allows Congress to remedy constitutional violations.
b. Congress cannot regulate private conduct.
i. Civil Rights Cases (1883)
1. Section 5 of the Fourteenth Amendment could not regulate private conduct.
a. Reaffirmed in Morrison.
i. Civil damages provision of VAWA is unconstitutional. Was not aimed at
the behavior of government officials.
ii. Rather, it was aimed at individuals who had committed criminal acts
motivated by gender violence.
iii. Criticism of Morrison: VAWA was adopted because of perceived
inadequacies of state courts and laws actions (in this case, inaction) of
addressing gender violence.
ii. Rationales for State Action Requirement
1. Text:
a. Fourteenth Amendment: “No state shall”
b. First Amendment: Congress shall make no
2. Historical:
a. Private individuals have the common law/civil courts for remedy
3. Policy
a. Preserves a zone of autonomy by limiting the reach of federal law.
i. But, also sacrifices some freedoms because it permits private violations of
rights.
b. Enhances Federalism by reserving a zone of state sovereignty.
c. Congress cannot make new rights or expand the scope of the rights
i. Nationalist perspective. Congress may independently interpret the Constitution.
1. Katzenbach v. Morgan
a. Congress, through Voting Rights Act, sought to overturn Lassiter, by providing
that failing literacy test could not bar person from voting if person educated
through 6th grade in Puerto Rico.
i. Congress could have thought that tight to vote for Puerto Ricans would
eliminate discrimination against them
ii. Congress could find that literacy tests deny equal protection (contrary to
court’s holding in Lassiter).
iii. Section 5 meant to grant Congress… “same broad powers expressed in the
Necessary and Proper Clause.”
ii. Federalist Perspective
1. City of Boerne:
a. RFRA Adopted to overturn Smith. Smith held that Free Exercise clause cannot
be used to challenge neutral laws of general applicability.
i. RFRA said that government had to prove the burden
1. Is in furtherance of a compelling government interest
2. Least restrictive means
ii. Court held that Congress may not create new rights or expand scope of
rights. Section 5 gives Congress the power to enforce the provisions of the
14th Amendment (??? Which includes all the bill of rights?)
b. Court held that 14th Amendment gives power of Congress to enforce, not to
alter the Amendments.
i. Shifting democratic majorities could shift the meaning of the Constitution,
which circumvents the amendment process.
ii. Dissenters didn’t challenge the scope of the Section 5 powers, they just
challenged the interpretation of the free exercise clause in Smith.
c. Congress is limited to preventing or remedying violations of rights
recognized/in the scope of the Supreme Court.
i. Congruence: Must address an actual constitutional violation
ii. Proportionality: Must be tailored to address the facts on the grounds
2. Impact:
a. Prevents Congress from eroding Constitutional Rights
b. Bolsters federalism
c. Now, use of Section 5 must be to enforce rights as interpreted by the Court.
Any other ‘enforcement’ must find a way through any clause.
d. Problems
i. Constitution often thought of as the ‘floor’ of rights, which Congress
could raise.
ii. Incompatible with McCulloch and Marbury.
e. Principle:
i. Congress can authorize suits against states for unconstitutional actions.
1. But, Congress cannot authorize suits using other Congressional
Powers. Must be the 14th Amendment.
ii. Congress has broad authority to legislate if it is a type of discrimination
that receives heighted scrutiny.
iii. But if it’s a type that is rational basis, ability to legislate is narrow.
3. Morrison:
a. VAWA private cause of action not valid under Section 5.
b. Goal was to use Sec. 5 to create private COA to allow lawsuits for gender
violence as a way to uphold equal protection.
c. Enforcement power can’t be used because the private COA would be used to
address behavior of the defendants, not the state.
3. Fifteenth Amendment
a. South Carolina v. Katzenbach
i. Holding: Court upheld preclearance law.
ii. Voting Rights Act was providing a remedy for proven violations of 15 th Amendment.
1. Court rules Cong may use any rational means to effectuate the constitutional
prohibition on race discrimination in voting
2. ST does not have standing to bring arguments against the Fed gov on behalf of its
citizens (claiming Act violates its citizens rights)
3. Equal Sovereignty Principle only applies to STs joining the union
4. Legislation doesn’t have to deal with all phases of a problem in the same way or at
the same time
5. Exceptional conditions can justify legislative measures not otherwise appropriate
b. Shelby County (2013)
i. Court strikes down preclearance law
1. Robert’s reasoning
a. Data: Voter turnout and registration rates approach parity. Minority candidates
hold office.
b. Treated states unequally, violating equal sovereignty
c. Made states get permission. Intrusive, violates federalism
d. If trying to address new problem of second generation laws, then should use
new law.
e. Ends may be legitimate, but Court says the means are not appropriate
f. Court claims evaluation of means is consistent with McCulloch (certainly it’s
not consistent w/ how it’s been followed before) with focus on “letter and
spirit”, postulates that limit and control=
2. Ginsburg Dissent
a. Voter discrimination remains.
b. Law has been incredibly successful
i. Covered jurisdictions had 4 times more violations than non-covered juris
c. Overwhelming support in Congress
d. This is supposed to be Rational Basis Scrutiny (Katzenback)
i. Act is a rationale means to address an authorized end
ii. Pre-clearance is still catching bad laws, people are still reporting
violations in the covered districts
e.
c. Ex. 15th Amendment would have to navigate McCulloch, SC v. Katzenbach, and Shelby
i. Criticisms
1. Hard to square the ‘proportional and congruent’ test in the 14 th amendment analysis
with the Shelby county emphasis that a major problem is that it treats states
differently.
a. Lots and lots and lots of laws treat states differently.
b. Doesn’t treat states differently, there is a formula and if you fall into it you’re
in trouble, applies to everyone.