Constitutional Law Attack Outline
Judicial Function
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Scope of Judicial Review
o Law repugnant to Const. is void; statute cannot create original jurisdiction in Supreme Court
(Marbury v. Madison (1803))
o Supreme Court has authority to review judgements of state courts; state courts must obey (Martin v.
Hunter’s Lessee (1816))
o Congress cannot overrule SCOTUS decision if decision creates constitutional rule
 Congress can tweak a statute based on SCOTUS interpretation
o SCOTUS interpretations bind exec branch, admin agencies, cabinet level officials, and military
 Exec can bypass or limit SCOTUS decisions with which it disagrees via Executive Orders
o State legislator or exec cannot violate Supreme Court ruling (Cooper v. Aaron (1958))
Justiciability
o Case or controversy requirement: Requires those challenging gov’t action have particular legal
grievance, rather than abstract policy dispute
 Requires – Standing, cannot be moot or not ripe, must be justiciable (no advisory opinions)
o Constitutional standing – Lujan standard
 Injury in fact – Concrete and particularized; actual or imminent, not conjectural or hypo
 Injury is fairly traceable to D’s action (causation) – Fairly traceable to challenged action of D
and not result of independent action of some third party not before court
 Redressable by judicial action – Likely, as opposed to merely speculative, that injury will be
redressed by favorable decision
o Prudential standing limits (can be negated by Congress by statute)
 Claims on behalf of third parties
 Exception – (a) Necessary participant, and (b) close relationship, org, or inability
 Generalized grievances shared by all citizens or taxpayers alike
 Claims of Ps outside “zone of interests” protected by constitution or statute
 Requires claims to fall within ZoI to be protected/regulated by statute/Constitution
o Standing cases – Lujan v. Defenders of Wildlife; Massachusetts v. Environmental Protection Agency;
Clapper v. Amnesty International USA; Spokeo Inc. v. Robins; TransUnion LLC v. Ramirez
Mootness and Ripeness
o Mootness: Changes in law or fact after suit is filed depriving litigant of standing
 Exceptions – Capable of repetition but evading review (Roe v. Wade); voluntary cessation
(where challenged practice cannot reasonably be expected to reoccur)
o Ripeness doctrine: Dispute is insufficiently developed, too remote/speculative for judicial action
Political Question Doctrine
o Main strands of PQ doctrine
 Textual or structural commitment to the political branches – Idea that Constitution’s text or
structure commits some matters to unreviewable discretion of political branches
 Prudential – Decline constitutionally reviewable questions based on practical consideration
o Balancing factors govern PQ inquiry (Baker v. Carr) (factor 1 textual strand, others prudential)
 Textually demonstrable constitutional commitment of issue to coordinate political dept
 Lack of judicially discoverable and manageable standards
 Impossible to decide without initial policy determination of kind
 Impossible for court to undertake independent resolution without expressing lack of respect
due coordinate branches of gov’t
 Unusual need for unquestioning adherence to political decision already made
 Potential embarrassment from multifarious pronouncements by various depts on one question
o PQ cases – Coleman v. Miller; Goldwater v. Carter; Nixon v. U.S.; Powell v. McCormack;
Zivotofsky v. Clinton; Baker v. Carr
Scope of Federal Powers
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Power of Congress
o Art. I, § 8 – Enumerated list of granted powers and increased range of Congress’s powers
 Includes – Taxing and spending, commerce, N&P, etc.
o 10th Amendment – Powers not delegated by Constitution, nor prohibited by States, are reserved to
states respectively, or to the people
o Art. I, § 10 – Bars states from certain acts that might interfere with nat’l interests
o Power to incorporate national bank without states imposing taxes (McCulloch v. Maryland (1819))
Commerce Clause (Art. I, § 8, cl. 3)
o Rational basis test (Raich) – Reasonably adapted to broader economic regulatory scheme under N&P
o Broad categories of permissible commerce power regulation (Lopez)
 Use of channels of interstate commerce (e.g., highways, rivers, airways)
 Instrumentalities of interstate commerce, or persons or things in interstate commerce, even if
threat may come only from intrastate activities (e.g., trucks, trains, planes)
 Activities having substantial relation to interstate commerce (substantially affects interstate
commerce) – Factors –
 Whether regulated activity is economic in nature
 Whether statute contains “express jurisdictional element” linking scope in some way
to interstate commerce
 Whether Congress has made express findings regarding effects of regulated activity
on interstate commerce
 Attenuation of link between regulated activity and interstate commerce
o Prohibition on regulating inactivity vs. regulating activity under commerce clause (NFIB)
 Unclear is this rejects rational Raich
o Pre-New Deal tests – Direct vs. indirect effects; substantial economic effects; stream of commerce
o Post-New Deal – Substantially affecting commerce rationale – Substantial effects of local economic
activity on interstate commerce as basis for congressional authority
o Pre-New Deal cases – Gibbons v. Ogden; U.S. v. E.C. Knight Co.; Houston, East & West TX
Railway Co. v. U.S.; Swift & Co. v. U.S.; Champion v. Ames; Hoke v. U.S.; Hammer v. Dagenhart
o Post-New Deal cases – NLRB v. Jones & Laughlin Steel Corp.; United States v. Darby; Wickard v.
Filburn; United States v. Lopez; United States v. Morrison; Gonzales v. Raich; NFIB v. Sebelius
Necessary and Proper Clause (Art. I, § 8, cl. 18)
o Broad construction – Broad doctrine of implied federal powers
o Narrow (strict) construction – Limit N&P as closely as possible to enumerated powers
o Rational basis test
o Comstock factor test
 Is enactment rationally related to implementation of Constitutionally enumerated power?
 Is enactment more than “modest addition” to existing federal law?
 Is enactment reasonably adapted to Congress’ power to act?
 Does enactment properly account for state interests?
 Are links between enactment and enumerated power attenuated? (How close are links
between enactment and enumerated power?)
o Defining N&P and distinction (NFIB)
 Necessary: Broadly construed; conducive to, useful
 Proper: Relates to “letter and spirit” of Constitution’s structure
 Note – ACA not “proper” because enumerated powers of Congress do not include regulating
healthcare
o N&P cases – United States v. Comstock; Nat’l Federation of Independent Bus. v. Sebelius; Fannie
Mae and Freddie Mac; U.S. Term Limits, Inc. v. Thornton
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Tenth Amendment
o 10th Amendment – Powers not delegated to U.S. by Constitution, nor prohibited by it to states,
reserved to states respectively, or to people
 Police power
o Commandeering – Fed gov’t cannot require states to adopt or enforce law; cannot tell states how to
regulate citizens, but can impose obligations on states
o Congress can (New York v. U.S.) –
 Use spending power as incentive
 Offer state option of reg according to fed standards or have state law preempted by fed law
 Alts. for fed gov’t to commandeering – Spending, commerce, preemption
 Cannot – Issue order directly requiring states to regulate
o Purposes of anti-commandeering doctrine (Murphy v. NCAA) –
 Serves as one of Constitution’s structural protections of liberty
 Promotes political accountability because if state imposes regs only because commanded to
do so by Congress, responsibility is blurred
 Prevents Congress from shifting costs of reg to states
o Additional examples –
 Congress cannot transfer radioactive waste to state gov’t (New York v. U.S.)
 Congress cannot require state law enforcement officers implement handgun background
checks (Printz v. U.S.)
 Fed statute restricting state DMVs from disclosing motor vehicle records without consent not
violating 10th Amendment; only regulated states as owners of data bases (Reno v. Condon)
 Fed law prohibiting states from authorizing sports betting invalid (Murphy v. NCAA)
o Cases – New York v. United States; National League of Cities v. Usery; Garcia v. San Antonio
Metropolitan Transit Authority; Printz v. U.S.; Reno v. Condon; Murphy v. NCAA
State Sovereign Immunity and the Eleventh Amendment
o 11th Amendment – Judicial power of US shall not be construed to extend to any suit commenced or
prosecuted against states by citizens of another state, or by citizens or subjects of any foreign states
 Absent exception, cannot sue state (sovereign immunity, but can be waived)
o Cases – Hans v. Louisiana; Ex parte Young; Edelman v. Jordan; Fitzpatrick v. Bitzer; Seminole
Tribe of Florida v. FL; Alden v. ME; Federal Maritime Commission v. SC State Ports Authority;
Central VA Community College v. Katz
Taxing Power (Art. I, § 8, cl. 1)
o Tax vs. penalty (NFIB)
 Note – Penalty can be valid if exercised under another Constitutional grant of power
o Cases – Veazie Bank v. Fenno; McCray v. U.S.; U.S. v. Doremus; Bailey v. Drexel Furniture; U.S. v.
Constantine; Sozinski v. U.S.; U.S. v. Kahriger; NFIB v. Sebelius; Charles C. Steward Machine Co.
v. Dais; Helvering v. Davis
Spending Power (Art. I, § 8, cl. 1)
o Test for permissible exercise of spending power (SD v. Dole) –
 Congress has purpose to serve general welfare
 Congress has made clear statement of funding condition; conditions stated unambiguously so
states can exercise knowing choice
 Whether federal grants to states are unrelated to spending program; must be related to federal
interest in particular national projects or programs
 Other constitutional provisions provide independent bar to conditional grant of federal funds
o Gun to the head standard (NFIB v. Sebelius) – Distinguishes permissible spending clause
encouragement from impermissible gun to the head coercion, which exists where states lack real
choice as to whether to accept federal funding and corresponding conditions
o Cases – United States v. Butler; South Dakota v. Dole; NFIB v. Sebelius
Limits on State Powers
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o States have police power (10th Amendment)
Dormant Commerce Clause
o Art. I, § 8, cl. 3 – Gives Congress authority to regulate interstate commerce
 Implied that states do not have this authority (negative inference)
o Earlier interpretations of dormant commerce clause – Police vs. commerce powers; local and
national subject matters; direct-indirect distinction
o Framework for DCC analysis
 State laws that facially discriminate against out of state commerce – per se invalid
 Exception – Certain quarantine laws
 If state is market participant, law favoring state upheld, but market definition crucial
o Market participation exception: Exception when gov’t acts as buyer or seller
of goods or services or engages in program of subsidies or other economic
incentives to aid in state businesses (also for facially neutral)
 State laws that are facially neutral struck down if –
 Impermissibly protectionist purpose or effect
 Residual balance test (Pike) – Whether burden imposed on interstate commerce is
clearly excessive in relation to putative local benefits
o Cases – Gibbons v. Ogden; Phila. v. NJ; Dean Milk v. Madison; C&A Carbone v. Clarkstown;
United Haulers v. Oneida-Herkimer; South-Central Timber v. Wunnicke; Baldwin v. G.A.F. Seelig;
H.P. Hood & Sons v. Du Mond; Hunt v. WA State Apple; Bacchus Imports v. Dias; Exxon v. Gov. of
MD; Minn. v. Clover Leafe Creamery; Pike v. Bruce Church; Kassel v. Consolidated Freightways
Privileges and Immunities Clause (Art. IV, § 2)
o Differences from dormant commerce clause
 Applies only to citizens, not corporations
 Congress can regulate in ways states cannot under dormant commerce clause, but P&I Clause
may confer affirmative rights Congress cannot waive
 Applies only to fundamental rights, not to all economic activity
 No market participant exception
o Two-part test (intermediate scrutiny) (United Building)
 Does law burden one of these P&Is protected by clause (fundamental right)?
 Corfield v. Coryell – Protection by gov’t, enjoyment of life and liberty, right to
acquire and possess property of every kind, to pursue happiness and safety
 Paul v. Virginia – “Right of free ingress into other States, and egress from them”
 UB – Right to seek employment with private contractors working for city/state
 Is restriction closely related to advancement of substantial state interest?
o Case – United Building & Construction Trades Council v. Mayor and Council of Camden
Federal Preemption of State Regulation (Art. VI, cl. 2 – Supremacy Clause)
o Express preemption: Congressional intent to preempt stated in statute; only issue is whether state law
falls within preempted area
o Field preemption: Clear showing that Congress meant to “occupy the field” and displace states from
regulating subject matter
 Scheme of fed reg may be so pervasive for reasonable inference that Congress left no room
for state to supplement it; act of Congress may touch field in which fed interest is so
dominant that fed system will be assumed to preclude state laws on same subject
o Conflict preemption: Physical impossibility of complying with both
 Whether, under circumstances, state law stands as obstacle to accomplishment and execution
of full purposes of Congress; whether fed standards are meant to be uniform or only min.
o Cases – Rice v. Santa Fe Elevator Corp.; Hines v. Davidowitz; Florida Lime & Avocado Growers,
Inc. v. Paul; Pacific Gas & Elec. Co. v. State Energy Res. Conservation & Development Comm’n
Separation of Powers
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Executive Power
o Vesting Clause (Art. II, § 1)
o Commander in Chief; treaty power with 2/3 of Senate (Art. II, § 2)
o Other various powers (Art. II, § 3)
o Limits – Impeachment Clause (Art. II, § 4)
 Impeachment Clause – Impeachment for treason, bribery, and other high crimes
o Analysis – Is President acting within scope of authority?
 Youngstown Jackson concurrence framework
 1. When Pres acts pursuant to express or implied authorization of Congress, authority
is at max; if action held unconstitutional, because federal gov’t as whole lacks power
 2. Zone of twilight – When Pres acts in absence of either congressional grant or
denial of authority; depends on imperatives of events and contemporary
imponderables rather than on abstract theories of law
 3. Lowest ebb – When Pres takes measures incompatible with expressed or implied
will of Congress; Pres must rely on his own constitutional powers minus any
constitutional powers of Congress over the matter
 Art. II Vesting Clause (broad authority, but never adopted by Court)
 If question regarding war powers or force, framework of emergency statute (War Powers
Resolution, Stafford Act, Posse Comitatus Act)
Executive Authority over Foreign and Military Affairs
o Treaty power – Requires consent of 2/3 of Senate
o Executive power and immigration
o Cases – Youngstown Sheet & Tube Co. v. Sawyer; Zivotofsky v. Kerry; U.S. v. Belmont; Dames &
Moore v. Regan; Medellin v. Texas; Trump v. Hawaii
Congressional War, Treaty, and Foreign Affairs Powers
o Congressional power to declare war (Art. I, § 8, cl. 11)
o Congressional power to raise and support armies and navies (Art. I, § 8, cl. 12-13)
o Power to remedy problem created by war after hostilities terminated (Woods v. Cloyd W. Miller)
o Via treaty exercise power of states that 10th Amendment might otherwise constrain (MO v. Holland)
o Cannot via treaty exercise power to assert authority Constitution otherwise does not confer or that
violates Constitution (Reid v. Covert)
o War Powers Resolution (1973): Congressional reporting and approval requirements for troops
introduced into hostilities in foreign territory; Constitutionality questionable
o Other cases – Bond v. U.S.
Emergency Constitutionalism
o Suspension Clause (of habeas corpus) (Art. I, § 9, cl. 2)
o Habeas corpus: Protection of personal liberty, right for someone arrested and detained by gov’t to
have court direct gov’t off. holding in custody to produce and provide good reason for detainment
o Posse Comitatus Act (prohibiting use of armed forces in domestic law enforcement)
 Exception – Insurrection Act (Pres ability to deploy military for insurrections)
 Exception – Stafford Act (declaring state of emergency for where fed assistance is required)
 Exception – Statutes regarding chemical and bio weapons, med quarantine, nuclear materials
o Authorization for Use of Military Force (AUMF) (Pres authorized to use all necessary and
appropriate force in response to 9/11)
o Military Commissions Act (Pres authority to try enemy combatants by military commission)
o Executive detention
 U.S. citizen who is noncombatant cannot be tried by military tribunal (Milligan)
 Unlawful combatants subject to detention, trial, and punishment by military tribunal (Quirin)
 Habeas corpus not available to enemy combatants captured on field of combat and detained
outside U.S. (Eisentrager)
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Fed habeas statute applies to prisoners held at Gitmo as territory over which U.S. exercise
plenary and exclusive jurisdiction, but not ultimate sovereignty (Rasul)
 U.S. citizen combatant in foreign country as enemy combatant may be detained as authorized
by AUMF despite Non-Detention Act (Hamdi)
 Plurality – Habeas procedures if granted – Citizen-detainee seeking to challenge
classification as enemy combatant must receive notice of factual basis for
classification, and fair opportunity to rebut gov’t’s factual assertions before neutral
decisionmaker
 AUMF or DTA does not expand or alter existing power to establish military commissions;
procedures in DTA do not satisfy UCMJ or Geneva Conventions (Hamdan)
 Suspension Clause has full effect at Gitmo; MCA does not provide adequate alt procedures to
habeas (Boumediene)
o Obama ExOrd – Planned to close Gitmo; suspended military commission trials
 Trump ExOrd – Revoked Obama ExOrd
o Detaining enemy combatants cases – Ex parte Milligan; Ex parte Quirin; Johnson v. Einstrager;
Rasul v. Bush; Hamdi v. Rumsfeld; Hamdan v. Rumsfeld; Boumediene v. Bush
Congressional Control of the Executive
o Bicameralism of Senate and House (See Art. I, § 1)
o Presentment of bills to Pres to sign and approve or return (Art. I, § 7, cls. 2-3)
o Delegation – Congress can be very specific and limiting in delegation of powers to agencies
o Non-delegation doctrine – Congress may not delegate legislative power per se
 Intelligible principle test – Congress may delegate power to executive to construct details of
legislation, so long as Congress provides some intelligible principle that constrains executive
(Touby v. U.S. (1991))
 Acceptable delegation – Congress develops legislative scheme and gives administrative
agency authority to develop regs as to specifics of how statute applies
o Legislative veto (one House veto) – Unconstitutional (INS)
 Bicameralism/Presentment Clauses require legislative acts follow Constitutional procedures
 Whether acts of one House are legislative acts depends on whether they contain matter which
is properly to be regarded as legislative in character and effect
o Line-item veto unconstitutional (Clinton)
o Cases – INS v. Chadha; Clinton v. New York
Appointment and Removal
o Appointments Clause (Art. II, § 2, cl. 2) – Principal vs. inferior officers
o Pres power to fill vacancies (Art. II § 2, cl. 3)
o Independent counsel – Ethics in Government Act of 1978 – AG investigates, reports to 3-judge
panel, panel appoints Special Counsel and defines jurisdiction
 New law – Appointment and termination provisions for Special Counsel; AG decides
appointment and termination (for cause), no independent review by court
o Appointments and removal case rules
 Congress cannot retain removal authority over exec officer consistent with AC (Bowsher)
 Congressional officers not heads of depts who can appoint inferior officers (Buckley)
 ALJs “officers” and must be appointed by heads of depts (Lucia)
 Independent counsel is inferior officer for appointments clause purposes; requirement of
removal only for cause does not violate exec appoint/removal power (Morrison v. Olson)
 Good cause removal requirement for U.S. Sentencing Commission members upheld
 Good cause removal requirement for PCAOB members who can be removed by SEC, where
SEC members can be removed by Pres for cause struck down
 Recess appointments – Recess should be at least 10 days long to qualify (NLRB)
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o Cases – Bowsher v. Synar; Myers v. U.S.; Humphrey’s Executor v. U.S.; Lucia v. SEC; Morrison v.
Olson; Mistretta v. U.S.; Free Enterprise Fund v. Public Co. Accounting Oversight Board; NLRB v.
Noel Canning; Buckley v. Valeo; Morrison v. Olson
Executive Privileges and Immunities
o Pres can invoke exec privilege; material then treated as presumptively privileged; court must
determine whether material is essential to justice of pending criminal case (U.S. v. Nixon)
o Impeachments – Treason, bribery, or other high crimes and misdemeanors (Johnson, Nixon, Clinton)
o Immunity for civil damages – Pres is immune from civil liability for official acts, unless Congress
says otherwise (Nixon v. Fitzgerald)
 Not immune from civil liability for unofficial acts (Clinton v. Jones)
o Cases – United States v. Nixon; Clinton v. Jones
Liberty
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Bill of Rights and Post-Civil War Amendments
o Pre-Civil War cases – Barron v. Mayor and City Council of Baltimore; Dred Scott v. Sandford
o 13th Amendment – Banning slavery
o 14th Amendment – Citizenship Clause, P&Is Clause, DPC, EPC, Enforcement Clause, etc.
o 15th Amendment – Right to vote notwithstanding race
o Case – Slaughter-House Cases
Incorporation
o Right to travel – Right of free egress and ingress includes (Saenz) –
 Right to cross state borders
 Right to be treated as welcome visitor
 Right to be treated like other citizens of second state
o Selective incorporation through substantive DPC, but court has almost always incorporated
 When right is incorporated, all details of right under fed law are included
o Incorporated
 All of Bill of Rights’ criminal procedure guarantees, except – Grand jury indictment
provision of 5th Amendment; possibly excessive bail provision of 8th Amendment
 1st Amendment (including religion, speech, assembly, petition clauses)
 2nd Amendment right to bear firearms
 5th Amendment takings clause
 8th Amendment prohibition on excessive fines
o Not held incorporated (or not addressed)
 3rd Amendment (regarding quartering troops)
 5th Amendment grand jury indictment provision
 6th Amendment right to unanimous verdict as to state criminal trials
 7th Amendment right to jury trial in civil cases
 8th Amendment excessive bail provision (possibly)
o Right to travel cases – Crandall v. Nevada; Saenz v. Roe
o 14th Amendment DPC cases – Twinning v. New Jersey; Palko v. Connecticut; Adamson v. California
Right to Bear Arms (Second Amendment)
o Distinction between prefatory and operative clauses – Protects individual right to bear arms (Heller)
 Does not protect weapons not typically possessed by law-abiding citizens for lawful
purposes, such as short barrel shotguns
 Does not remove prohibitions on sales to mentally ill, carrying in sensitive places such as
schools, or laws imposes conditions and qualification on commercial sale or arms
o Incorporated against states (McDonald)
o Heller did not determine scope of 2nd Amendment rights beyond home or standards for how right
can be regulated by gov’t – Many lower courts apply 2-step test –
 Does challenged law burden conduct that falls within scope of 2nd Amendment guarantee?
 If not, law is upheld
 If so, what level of scrutiny should be applied, and does law survive that level of scrutiny?
 Closer to “core” of 2nd Amendment right – Strict scrutiny
 Outside “core” – Less demanding (intermediate) scrutiny
o Cases – D.C. v. Heller; McDonald v. City of Chicago
Substantive Due Process and Economic Liberties
o 5th and 14th Amendment Due Process Clauses
o Lochner freedom to K as fundamental right abrogated
o Current framework – Minimum rationality review of economic legislation (rational basis)
o Pre- and Lochner Era (economic liberties) cases – Calder v. Bull; Lochner v. NY; Mugler v. KS;
Allgeyer v. LA; Nebbia v. NY; Adkins v. Children’s Hospital; Morehead v. NY ex rel. Tipaldo
o Modern cases – West Coast Hotel v. Parrish; U.S. v. Carolene Products; Williamson v. Lee Optical
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Substantive Due Process and Privacy
o Heightened judicial scrutiny (strict scrutiny) applied to laws threatening certain rights to “privacy”
o Carolene Products FN 4 – Political process rationale extended through EPC cases
o Contraception – Strict scrutiny analysis
o Privacy under Griswold – Specific guarantees in Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and substance
 Zone of privacy suggested from 3rd Amend (no quartering), 4th (search and seizure), 5th (selfincrimination), and 9th (retention of rights)
o Cases – Meyer v. Neb.; Pierce v. Society of Sis.; Skinner v. OK; Eisenstatd v. Baird; Griswold v. CT
Abortion
o Strict scrutiny analysis
 Right of privacy under DPC of 5th and 14th Amendments (Roe – Trimester framework)
 Pre-viability, gov’t cannot deprive woman of access to abortion outright
 Balancing potential life with health of mother
 Casey reaffirms central holding of Roe (to what extent for trimester framework though?),
with undue burden as standard for analysis after viability
o Casey undue burden test – Whether state regulation has purpose or effect of placing substantial
obstacle in path of woman seeking abortion of nonviable fetus
 Means chosen by state to further interest in potential life must be calculated to inform
woman’s free choice, not to hinder it
o Case law interpretations
 Waiting period, parental notice, facility reporting upheld; spousal notice rejected (Casey)
 D&X ban rejected (Sternberg) / D&X ban upheld (different facts) (Gonzales)
 Admitting privileges and surgical center requirements rejected where half of state’s abortion
clinics closed as result (Hellerstedt)
o Cases – Roe v. Wade; Planned Parenthood of SE Pa. v. Casey; Stenberg v. Carhart; Gonzales v.
Carhart; Whole Woman’s Health et al. v. Hellerstedt, et al.; June Medical Servs. v. Russo
Marriage and Sexuality
o Strict scrutiny – Substantive due process and equal protection
o Obergefell four principles
 Right to personal choice regarding marriage is inherent in concept of individual autonomy
 Right to marry is fundamental because it supports 2-person union unlike any other in its
importance to committed individuals
 Safeguards children and families
 Marriage is keystone of social order, including legal benefits
o Same-sex marriage right protected under DPC and EPC (Obergefell)
o Cases – Loving v. VA; Bowers v. Hardwick; Romer v. Evans; Lawrence v. TX; US v. Windsor;
Obergefell v. Hodges
New Rights
o Glucksberg analysis – Two primary features of due process analysis
 Whether right is fundamental – Deeply rooted in nation’s history and tradition; implicit in
concept of ordered liberty such that neither liberty nor justice would exist if it were sacrificed
 Whether there is careful description of asserted fundamental liberty interest
o End of life principles (Cruzan) –
 Competent person has constitutionally protected liberty interest in refusing unwanted med
treatment; could include refusing lifesaving nutrition and hydration
 State can include procedural safeguard that surrogate establish wishes of patient by
clear/convincing evidence
 Right to assisted suicide not fundamental, state has interest in preserving right; rational basis
 No right to assisted suicide on facial challenge; open to possible as-applied challenge
o Cases – Cruzan v. Director, Missouri Dept. Health; Washington v. Glucksberg; Vacco v. Quill
Equal Protection
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Equal Protection Scrutiny
o 14th Amendment – Equal Protection Clause – No state shall deny to any person within its jurisdiction
equal protection of laws
o Carolene Products FN 4 – Political process – Develops equal protection doctrine – Level of scrutiny
for legislation which restricts those political processes which can ordinarily be expected to bring
about repeal of undesirable legislation; discrete and insular minority
o Strict scrutiny – Race discrimination and other inherently suspect classifications – Compelling gov’t
interest, least restrictive means (narrowly tailored)
 Relaxed strict scrutiny – Affirmative action
o Intermediate scrutiny – Sex discrimination – Important gov’t interest, substantially related
(exceedingly persuasive justification)
o Rational basis scrutiny – Socioeconomic laws, classifications not deemed inherently suspect (age,
disability) – Rational relationship to legitimate ends; courts will often find ex post justification
 Heightened rational basis scrutiny – If “animus”
Minimum Rationality Review of Economic Regulation
o Rational basis scrutiny
o Cases – Railway Express Agency v. New York; U.S. Dept. of Agriculture v. Moreno; New York City
Transit Authority v. Beazer
Race Discrimination and Equal Protection in General
o Current standard to apply – Strict scrutiny
o Cases – Plessy v. Ferguson; Korematsu v. United States; Loving v. Virginia
Laws with Disproportionate Racial Effect
o De jure vs. de facto segregation (WA v. Davis)
 Invidious quality of law claimed to be racially discriminatory must ultimately be traced to
racially discriminatory purpose
 De jure seg. requires current condition of segregation resulting from intentional state action
 Intent distinguishes de jure from de facto segregation
 Facially neutral laws with racially disproportionate effect generally not violating EPC
 But possible to infer discriminatory intent from discriminatory effect
 Racial animus might not be enough; animus must be connected to improper effect
o Factors for determining discriminatory purpose as motivating factor (shifting burden to gov’t to
show compelling interest under strict scrutiny; must show same decision would have resulted even
had impermissible purpose not been considered) (Arlington)
 Disparate impact (relevant, but usually not determinative)
 Historical background of decision
 Departures from normal procedures
 Departures from typical substantive results
o Discriminatory purpose and effect cases – Yick Wo v. Hopkins; Washington v. Davis; Arlington
Heights v. Metropolitan Housing Corp.
Race and Schools under EPC
o Separate educational facilities inherently unequal (Brown)
 Remedial issues after Brown – Extent of time remedy remains in place; districtwide remedies
for only part of district engaged in intentional discrimination
o Plans for racial diversity in schools – Strict scrutiny, narrow tailoring (Parents Involved)
 Two possible compelling state interests (not here) – Remedying past intentional
discrimination; diversity in higher education (not K-12)
 Student assignment plans using race to allocate slots in oversubscribed high schools or to
make elementary school assignments or transfer requests not narrowly tailroed
 Kennedy concurrence – Permissible to consider racial makeup of schools and adopt general
policies to encourage diverse student body
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Possibilities – Strategic site selection of new schools; gerrymandering attendance
zones; allocating resources for special programs; targeted recruiting of students and
faculty; tracking racial statistics (these might not even require strict scrutiny)
o May not even require strict scrutiny
o Race discrimination in schools cases – Brown v. BoE; Brown II; Green v. Cnty School Board; Swann
v. Charlotte-Mecklenburg BoE.; Missouri v. Jenkins; Okla. City v. Dowell; MO v. Jenkins II; Keyes
v. School Dist.; Milliken v. Bradley; Parents Involved in Community Schools v. Seattle School Dist.
Racial Preferences in Higher Education
o Affirmative action/racial preferences must be narrowly tailored with compelling interest (Grutter)
 Not allowed – Quotas; insulating minorities from competition of admission
 Allowed – Considering race or ethnicity more flexibly as “plus” factor in context of
individualized consideration of each application
 Race cannot be defining features of application, but narrow tailoring does not require
exhaustion of every conceivable race neutral alternative
 Race conscious admissions policies limited in time
 Remedying past discrimination and attaining diverse student body as compelling interests;
but cannot merely prefer one race over another (Bakke)
o More examples –
 Awarding 20/100 points needed for admission to minorities not narrowly tailored (Gratz)
 Top 10% of grad class plan filled 75% incoming students; other 25% based on academic and
personal (including race) achievement – Upheld, but must continually assess (Fisher)
 State constitutional amendment prohibiting use of race-conscious affirmative action upheld
against EPC challenge (Schuette)
o Cases – Regents of UC v. Bakke; Grutter v. Bollinger; Gratz v. Bollinger; Schuette v. Coalition to
Defend Affirmative Action; Fisher v. UT Austin et al.
Racial Preferences and Public Contracting
o Strict scrutiny – Compelling interest and narrowly tailored
 Compelling interest – Remedying past discrimination; need evidence of past discrimination
o Racial preferences in public contracting – If compelling gov’t interest is established for set-aside,
determine if narrowly tailored to achieve that interest – Paradise factors (U.S. v. Paradise (1987))
 Necessity for relief and efficacy of alternative (race-neutral) remedies
 Flexibility and duration of relief, including availability of waiver provisions
 Relationship of numerical goals to relevant labor market
 Impact of relief on rights of third parties
o Racial preferences in public contracting cases – Fullilove v. Klutznick; Richmond v. J.A. Croson Co.;
Adarand Constructors, Inc. v. Pena
Racial Preferences in Electoral Districting
o Deferential review of racial preferences in redistricting (UJO v. Carey)
o Strict scrutiny, narrowly tailored requirement if redistricting race-neutral on its face is so bizarre that
is unexplainable on grounds other than race (Shaw I)
 Effort to comply with VRA does not shield from strict scrutiny
 Even if state is trying to comply with VRA, must be narrowly tailored (Abbott v. Perez)
o P must show legislature subordinated traditional race-neutral districting principles, including but not
limited to compactness, contiguity, respect for political subdivisions or communities defined by
actual shared interests, to racial considerations (Miller v. Johnson)
 Shape of district is relevant, but showing of bizarreness not threshold requirement
o Kinds of evidence to determine whether strict scrutiny applies under subordinated to race standard
 Race was predominant factor (Lawyer v. Dep’t of Justice)
 Unexplainable on grounds other than race; subordinated to race – predominating factor (court
should use extraordinary caution in overturning leg determination) (Easley v. Cromartie)
o Cases – Shaw v. Reno [Shaw I]; Miller v. Johnson; Shaw v. Hunt [Shaw II]; Bush v. Vera
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Sex Discrimination
o 19th Amendment – Voting for women
o Intermediate scrutiny to gender-based classifications – Must serve important/substantial government
objectives and must be substantially related to achievement of those objectives
 Exceedingly persuasive justification (Hogan)
o Early cases – Bradwell v. State; Minor v. Happersett
o More recent cases – Frontiero v. Richardson; Kahn v. Shevin; Geduldig v. Aiello; Weinberger v.
Wiesenfeld; Schlesinger v. Ballard; Craig v. Boren; Califano v. Goldfarb; Or v. Orr; Caban v.
Mohammed; Personnel Administrator of Mass. v. Feeney; Wengler v. Druggists Mutual; Rostker v.
Goldberg; Michael M. v. Superior Court; Miss. Univ. for Women v. Hogan; U.S. v. VA; Nguyen v.
INS; Sessions v. Morales-Santana
Other Classifications
o Sexual orientation – Court has not said whether this is suspect class warranting strict scrutiny
o Alienage
 Legally resident aliens – Generally strict scrutiny
 Undocumented aliens – Rational basis review
 Exception for children of undocumented aliens
 Governmental function exception – Greater deference to alienage classifications for public
policy functions that go to heart of representative gov’t
 Alienage cases – Graham v. Richardson; In re Griffiths; Sugarman v. Dougall; Foley v.
Connelie; Ambach v. Norwick; Bernal v. Fainter
o Disability – Rational basis review
 Disability cases – Cleburne v. Cleburne Living Center
o Age – Rational basis review
 Age case – Massachusetts Bd. of Retirement v. Murgia
o Poverty – Not suspect class
Fundamental Interests Strand of Equal Protection
o Classification that would normally be subject to rational basis review receives heightened scrutiny
when fundamental interest is affected
o Voting rights
 State poll tax – Unconstitutional (Harper v. VA)
 Limited purpose elections – Sometimes upheld
 Dilution – Right of suffrage is fundamental matter in free and democratic society (Reynolds)
 One person-one vote – Basic constitutional standard for apportionment
 Right to vote unconstitutionally impaired when weight substantially diluted compared
with votes of citizens in other parts of state
 Requires honest and good faith effort, not mathematical exactness or precision
 Partisan gerrymandering – No EP violation if no dilution (Rucho v. Common Cause)
 Cases – Harper v. VA State Bd. of Elections; Kramer v. Union Free Sch. Dist. No. 15;
Cipriano v. Houma; Phoenix v. Kolodzeijski; Salyer Land Co. v. Tulare; Richardson v.
Ramiez; Crawford v. Marion County Election Bd.; Bush v. Gore; Reynolds v. Sims; Davis v.
Bandemer; Vieth v. Jubelirer; League of United Latin Am. Citizens v. Perry; AZ State Leg. v.
AZ Ind. Redistricting Comm’n; Evenwel v. Abbot; Gill v. Whitford; Rucho v. Common Cause
o Fundamental right of access to courts – Depends on type of proceeding
 Example – Counsel for indigent crim D for first appeal as of right vs. discretionary appeals
 Example – Court fees for divorce vs. bankruptcy
 Cases – Griffon v. Ill.; Douglas v. CA; Boddie v. CT; U.S. v. Kras; Ortwein v. Schwab; Ross
v. Moffitt; Little v. Streater; Lassiter v. Dep’t of Social Servs.; M.L.B. v. S.L.J.; Halbert v. MI
o No fundamental interest in food, shelter, or education
 Cases – Dandrige v. Williams; Lindsey v. Normet; San Antonio Independent School Dist. v.
Rodriguez; Pyler v. Doe (1982)
Civil Rights
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State Action and Public Function
o 14th Amendment does not invest Congress with power to legislate upon subjects within domain of
state legislation, but to provide relief against state legislation or state action (Civil Rights Cases)
 State action cannot violate 14th Amendment (does not apply to individuals)
o Generally need state action to raise constitutional case, but public function exception
 Public function (“symbiotic relationship”) – Company towns (Marsh), white primaries
(Allwright; Adams), enforcement by state courts of racially restrictive covenants (Kraemer)
 No state action – Private club with state liquor license (Moose Lodge), public utility
cutoff of power (Jackson), sale of goods under warehousemen’s lien (Flagg Bros.)
o Test for state action – Manhattan Cmty. Access Corp. v. Halleck (2019)
 Actions of private corp. only constitute state action – When private entity performs
traditional, exclusive public function; when gov’t compels private entity to take particular
action; or when gov’t acts jointly with private entity
o Cases – Civil Rights Cases; Marsh v. Alabama; Smith v. Allwright; Terry v. Adams; Shelley v.
Kraemer; Burton v. Wilmington Parking; Reitman v. Mulkey; Evans v. Newton; Evans v. Abney;
Moose Lodge v. Irvis; Jackson v. Metropolitan Edison Co.; Flagg Bros., Inc. v. Brooks
Congressional Power to Enforce Civil Rights
o Enforcement Clauses for Congressional power – 13th Amendment, § 2; 14th Amendment, § 5 (to
enforce DCP and ECP); 15th Amendment, § 2
 Alternative to invalidating state laws individually
 Conspiracy charge cases – U.S. v. Guest; U.S. v. Price; Griffin v. Breckenridge; United
Brotherhood of Carpenters v. Scott; Bray v. Alexandria Women’s Health Clinic
 13th Amendment and fed civil rights cases – Jones v. Alfred H. Mayer Co.; Sullivan v. Little
Hunting Park, Inc.; Runyon v. McCrary
o N&P test with one-way ratchet (Katzenbach v. Morgan; FN, § 5 VRA) – Whether statute is
appropriate leg to enforce 14th Amend; whether leg is plainly adapted to that end; and whether leg is
consistent with letter and spirit of Constitution
o Requirement of predicate – Evidence that states are violating Constitution (then assess C&P test)
o Congruence and proportionality test (City of Boerne) – Must be congruence and proportionality
between injury to be prevented or remedied and means adopted to that end; lacking such connection,
legislation may become substantive (rather than remedial or prophylactic) in operation and effect
o Additional example - § 4(b) coverage formula of VRA unconstitutional (did not apply Katzenbach
N&P test) (Shelby County v. Holder)
o Voting rights cases – SC v. Katzenbach; Katzenbach v. Morgan; City of Boerne v. Flores; Shelby
County v. Holder
Eleventh Amendment Sovereign Immunity
o 11th Amend. interpreted broadly to preclude any suits in federal court against state by individuals
(not just based in diversity jurisdiction) unless properly abrogated under Congress’ enforcement
powers and in state court unless state waives sovereign immunity
o Does not bar suits against state by – Fed gov’t; another state; individuals against municipalities or
political subdivisions of state; or claims against state officer for injunctive relief (Ex parte Young)
o Under 14th Amendment §5, Congress can abrogate sovereign immunity if (Fitzpatrick v. Blitzer) –
 Congress makes intention to abrogate sovereign immunity unmistakably clear, and
 Congress validly exercised power under 14th Amendment § 5 (congruence/proportionality)
o If statute fails congruence/proportionality test, Congress lacks power to abrogate state sovereign
immunity
o Cases – US v. Morrison; Kimel v. FL Board of Regents; Board of Trustees of Univ. of AL v. Garrett;
TN v. Lane; U.S. v. GA; NV Dep’t of Human Res. v. Hibbs; Coleman v. Court of Appeals of MD
o See 11th Amendment section