1
Judicial Function
What can the judiciary review? What makes it so that the Court can hear the case?


Article III establishes judicial function.
Does not include term limits, number of justices on the court, what qualifies someone to be a justice
o
Section 1

Judicial power is vested in SCOTUS and other courts in the system that the legislative branch creates.

Justices of SCOTUS will hold their offices in good behavior
o
Section 2

Judicial power is limited to cases and controversies
Marbury v.
Judiciary can deem/review executive acts and federal legislation to be unconstitutional.
Madison

Judicial branch is impowered to determine whether other sources of legal authority violate the Constitution.

Held for the first time that federal courts had the power to overturn an act of Congress on the ground that it violated the U.S. Constitution (Judicial review)
(Establishes

A law repugnant is void
principle of

The judiciary is the sole interpreter of the Constitution. Some people believe Marshall overstepped, and that the role of the judiciary is to apply the law in the given factual contexts.
Judicial

Court claims power to review both executive and legislative acts
Review)
The norm based on Marbury is that the other two branches answers to the Supreme Court’s interpretation (but it is not a clear black-letter rule)
Martin v.
To ensure that Constitutional laws are applied uniformly across all states, the Supreme Court can review state court judgments involving federal law (they have appellate jurisdiction)—
Hunter’s
including federal constitutional law.
Lessee
What if the state refuses to enforce SCOTUS’s ruling anyway?

The Executive branch has to come down and enforce SCOTUS’ ruling.
Cohens v.
Supreme Court can review state criminal cases.
Virginia

State judges are less reliable than federal judges- State judges depend on the legislature for jobs, so they are more easily influenced by the legislature. Federal Judges are bound to
Constitution.
Cooper v.
Even jurisdictions that weren’t party to this case must follow the Supreme Court’s interpretation of the law.
Aaron

Confirmed that a governor and legislator of a state must abide by SCOTUS decisions
Dickerson v.

Supreme Court interpretations are binding on Congress
US

Acts of Congress may not overrule a constitutional decision of the Supreme Court
Ex parte

McCardle
Political restraints on the Supreme Court (Checking the Supreme Court’s Power)
Judicial selection

President may nominate Justices to the Supreme Court, but Art. II requires advice and consent of the Senate
Impeachment

Justices hold their position during good behavior, which implies that they may be removed for treason, bribery or other high crimes and misdemeanors
Structural interference

Congress sets size of and budget for Supreme Court

This can be used as a source of political checking power
Jurisdiction-stripping

Art. III gives Congress power to make exceptions to the Supreme Court’s appellate jurisdictions

Not used very much
Constitutional Amendment

An amendment changing the text of the Constitution to reject a Supreme Court ruling binds the Court and supersedes its prior decision.

Article V allows two methods for proposing amendment for ratification:
o
Congress, by 2/3 vote
2
o
¾ of the states (never been used)
Case or Controversy Requirements
Article III limits the judicial power to cases or controversies  At the outset of a case, you need to determine constitutional standing, prudential standing, mootness and ripeness
Advisory Opinions: Not case or controversy

Court refuses to issue advisory opinions on the legality of executive or legislative actions that do not involve an actual case

There is a bar against non-adversary (“friendly”) suits

Because advisory opinions are not cases or controversies
Constitutional Standing
Prudential standing

Article III requirement- federal courts lack jurisdiction

Not a direct Article III requirement
cannot hear a case that does not meet constitutional standing

Can be modified by Congress
requirements

Cannot be negated of waived by Congress
Constitutional Standing
This defendant caused this specific harm to me through these actions, for which the court can provide this remedy.
Injury in fact

Concrete and particularized/ and
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Actual or imminent, not conjectural or hypothetical

A state as a whole can meet the particularized injury requirement. (Lujan)

Cannot be hypothetical conjecture or based on a chain of possibilities. (Clapper)

Simple violation of statutory rights is not sufficient to demonstrate injury-in-fact. They must demonstrate concrete harm, even in the context of a statutory violation. (Spokeo)
Injury is fairly traceable to the defendant’s action (causation)

Fairly traceable to the challenged action of the defendant and not the result of the independent action of third party not before the court

Relief cannot depend upon choices of actors not before the court. (Lujan)
Redressable by judicial action

Likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision

Incremental progress is sufficient as redressability. (Mass)
Lujan v.
Environmental; Citizens Suit
Injury in Fact: Injury is too speculative and not imminent enough.
Defenders of 

Hypothetical vacation is not imminent enough and failure to see animals is not concrete enough.
Environmental groups sued Sec of Interior after the
Wildlife

Standing is not “an ingenious exercise in the conceivable” (Scalia majority)
reversal/ reinterpretation of an ESA regulations limited
Causation: [Not addressed]
the geographical scope of endangered species protection.
Ps based injury on their intent to visit habitats that would Redressability: Relief cannot depend upon choices of actors not before the court.
not be threatened by this rule.

US agencies only supply a small fraction of the funding these projects need to solve the problem

*Even when there’s a citizens suit – 3 standing

Unclear whether funding agencies would even be bound by the regulation.
requirements must still be met
Mass v. EPA Mass. Alleged that the EPA’s failure to regulate greenhouse
Injury in fact- A state as a whole can meet the particularized injury requirement.

Mass owns a substantial portion of the state’s coastal property, which is beginning and will continue to be swallowed by global
gas emissions would result in loss of coastal lands due to
warming’s rising sea levels. This meets the threshold of the particularized injury. The fact that the climate change risks are widely
climate change.
shared doesn’t minimize Mass’ interest in the outcome of this litigation

The risk of catastrophic harm, though remote, is still real.
Causation- The accused party’s actions do not have the be the sole cause of the problem—just needs to meaningfully contribute to the
injury. (Incremental step)
3

Clapper v.
Amnesty
International
Spokeo v.
Robins
Transunion
At a minimum, EPA’s refusal to regulate emissions contributes to Mass’ injury. Even though the damage caused by China and
India are greater than that caused by the US, the failure of the EPA to regulate allows US to make a meaningful contribution to
greenhouse gas emissions.
Redressability- Incremental progress is sufficient.

The actions of the EPA will not completely solve the issue of climate change, but it is an incremental step toward a solution.
Injury in fact- No proof of concrete harm because P could not prove they were being investigated (NSA invest. Confidential)

This harm is too speculative (not certainly imminent)

Cannot be hypothetical conjecture or based on a chain of possibilities

This was just a speculative fear that the government will target communications
The PATRIOT Act allowed federal government (NSA) to
gather large amounts of information about all of our cell
phone calls and internet interactions. Amnesty International
said that they were probably a target of this act and that their
information would be used in ways that was unconstitutional.
NSA investigations under PATRIOT were confidential.
Plaintiff (Robins) filed suit, alleged that company Spokeo, a
Injury in Fact: Harm was particularized but not concrete. Not all credit report errors cause harm – Judge gives example of an incorrect
zip-code.
data mining/ aggregation site, violated the Fair Credit
Reporting Act (FCRA) by providing incorrect information
Simple violation of statutory rights is not sufficient to demonstrate injury-in-fact. They must demonstrate concrete harm, even in the
about him on their website. Profile said he was in his 50s and
context of a statutory violation.
married, whereas Robins was in his 20s and single.
o
Concreteness of injury: (1) types of tangible harms commonly recognized in common law: physical, monetary; (2) intangible that bear close relationship to harms traditionally recognized as
provided basis for suits: reputation, disclosure of private information, intrusion upon seclusion
o
The class members that were actually affected have concrete injury and standing
o
Remaining members that did not have their information sent out have no concrete injury

Information was sitting in database
o
Risk of future harm could give standing for injunctive relief, but not retrospective monetary relief

Driving recklessly without causing accident
o
Claims of incorrect formatted disclosures, omission of summary of rights: no concrete harm, no standing
o
Thomas Dissent: Injury in law historically was enough to create a case or controversy
o
Kagan Dissent: Court should defer to Congress’ view of where there is concrete harm

Risk of future harm is obvious
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Disagrees with Thomas - thinks there must be injury in fact
Prudential standing
The Court is not able to hear the following:
Claims on behalf of third parties: Court restricts standing to the parties directly injured rather than allowing third parties, no matter how sympathetic, to assert their claims vicariously unless:

If there is a very close relationship between the interests of the injured party and the third party (Craig v. Boren- seller of beer was permitted to challenge a sex discrimination a state law imposing higher age
threshold on men than women because the buyer and sellers had related economic interests)

First Amendment Overbreadth Doctrine- permits speakers who own speech is unprotected to challenge laws that sweep in too much protected speech of others, because protected speakers might be inhibited
from challenging such laws.

Ones that are specifically allowed by statute
Generalized grievances shared by all citizens or taxpayers alike: Courts will not adjudicate constitutional claims at the behest of a plaintiff if the injury is widely shared in an undifferentiated way with millions of
people, and is merely one of those millions interest in resolving constitutional doubts about government action.

Flast exception- limited to challenges brought under the Establishment Clause against expenditures made pursuant to an express congressional mandate and a specific congressional appropriation (but it is
inapplicable to expenditures of the executive branch funds on faith-based initiatives)
Claims by plaintiffs who are outside the “zone of interest” protected by a constitution or statute: Courts will not adjudicate claims by plaintiffs who are outside the “zone of interests” protected by a constitution or
statute
Mootness
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
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Occurs when a litigant who has standing at the start of the litigation no longer has a concrete stake in the outcome due to changes in fact or law
One remedy in a claim may become moot while the other can still be pursued (ex. A claim may only be moot for injunctive relief, but could not be moot for monetary damages)
Mootness may be decided differently for different issues in a case
Exceptions:
o
Cases that are capable of repetition but evading review
4
o
 When there is an important claim at stake but the event the claim is based on is likely going to already have happened by the time the litigation matures (Ex. Roe v. Wade)
Voluntary cession (where the challenged practice cannot reasonably be expected to re-occur)
 A party has wronged another and has promised not to do it again, but there is still a viable claim for damages from the wronging.
 A court will not dismiss as moot a case in which the defendant voluntarily ceases its illegal or wrongful action once litigation has commenced. The court must be assured that “there is no
reasonable expectation that the wrong will be repeated.)
Ripeness


A claim is not yet ripe if a party seeks only anticipatory relief
o
Ex. Suit for federal breach of contract before actual breach of contract occurs. To consider such a claim would be premature and any potential injury would be speculative.
Prohibits federal courts from exercising jurisdiction over a case until an actual case or controversy is presented involving a threat of real and immediate injury (avoid premature adjudication)
Political Question
Doctrine invoked when the issue is so politically charged that they are best resolved by the politically accountable branches of government (Executive and legislative branch), rather than federal court
Carr Factors  Only one of factors needs to met for the issue to be a political question)

1. Textually demonstrable constitutional commitment of the issue to a coordinate political department (textual factor)
o
It is a political question when the Constitution explicitly delegates the resolution for the issue to another branch.

2. Lack of judicially discoverable and manageable standards (prudential factor)
o
It is a political question when the judicial standards do not exist for adjudicating this type of claim.

3. Impossibility of deciding without an initial policy determination for a kind of clearly nonjudicial discretion (prudential factor)
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4. Impossibility of a court to undertake independent resolution without expressing lack of respect due to coordinate branches of government (prudential factor)

5. An unusual need for unquestioning adherence to a political decision already made (prudential factor)

6. The potentiality of embarrassment from multifarious pronouncements by various departments on one question (prudential factor)
o
It is a political question when there is a risk of disrespecting the other branches of federal government)
Equal protection challenging apportionment (Baker v. Carr)
Impeachment (Nixon v. United States)
Reasonable time period for ratification (Coleman v. Miller)
Congressional qualification (Powell v. McCormick)
Bush v. Gore
Recognition of foreign sovereigns (Zivotofsky v. Clinton)
Baker v.
Equal Protection Case that Challenged
Carr
Apportionment of Legislative Districts. The
court held it was a judiciable issue.
Nixon v.
United
States
Nixon, federal judge, challenged the
constitutionality of his impeachment trial.
House of Representatives impeached,
committee of Senators (rather than full Senate)
heard evidence and presented briefs/arguments.
Nixon removed.
Coleman v.
Miller
Powell v.
McCormick
Justiciable (Factor 1; Factor 2; Factor 3; Factor 6)
Nonjusticiable (Factor 1; Factor 4)
Nonjusticiable
Justiciable
1.
2.
3.
6.
1.
4.
Justiciable
There are no textually demonstrable equal protection clause commitments in any other branch of government.
Judicial standards exist for adjudication equal protection claims
The Court could decide the case without making a nonjudicial policy determination of a kind involving nonjudicial discretion because determining
the constitutionality of a state action is the judiciary’s job.
Did not embarrass federal government branch because this case was against a state branch.
Art 1. § 2 states that the Senate as the sole power to trial and impeachments.
a.
“Sole” in the “sole power of impeachment” text in the Constitution means that the Senate is the only federal branch who has the power
to impeach.
b. Only Senate can impeach; not Supreme Court
Judicial review of Senate’s chosen impeachment procedures would be inconsistent with the system of checks and balances
a.
Impeachment is the only check on the judicial branch by the legislature and it would be inconsistent to give the judicial branch final
reviewing authority over legislature’s use of the impeachment process.
Definition of reasonable period of time for ratification by states of constitutional amendment proposed by Congress under Article V
Challenge to the refusal of the House of
Representatives to seat Rep. Adam Clayton
1.There was a textually demonstrable commitment of determining the qualifications of its member to the House
6. Judicial resolution would result In a potentially embarrassing confrontation between coordinate branches.
5
Powell. Claim is not a political question and
was justiciable
Bush v.
Gore
Zivotofsky
v. Clinton
Challenge to State Department for not
enforcing Jerusalem as birthplace on passports
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Necessary & Proper
Article I § 8: Enumerated Powers
Necessary and Proper Clause:
The specific powers granted to Congress may be enlarged by the necessary and proper clause.

Rationale: The Constitution cannot contain an accurate detail of all subdivisions of means and ends of government powers. Otherwise, the Constitution would become nothing more than a legal code. Therefore, it
must be allowed that the government has ample means to execute the powers to which it has been entrusted and that it be allowed to select the best means to achieve the end sought.

Congress has the power to make all laws which shall be necessary and proper for the federal government to carry out other federal powers.

Federal Government is supreme over the states and the states cannot negate federal actions if the federal actions are properly executed. States cannot make laws that interfere with federal government’s exercise of
its Constitutional Powers (McCulloch)

Nothing in the Constitution excludes incidental or implied powers or requires that every federal power be expressly and minutely described (McCulloch)

Necessary does not only mean “absolutely necessary”: can mean “needful, requisite, essential, conducive to”: Example of Post Office (McCulloch)

A state cannot impose qualifications for members of Congress that exceed what is delineated in the Constitution (US Term Limits)

Historical test to determine whether action meets N&P requirements: If the end is legitimate and within the Constitution, then the means selected to execute the end is constitutional if it is appropriate to the end and
not prohibited by the Constitution. (McCulloch)
Modern approach to the test: It is unclear whether the majority in this case wanted a rational basis test or a five-factor test. (Comstock)

5-factor test
o
Is the enactment rationally related to the implementation of a Constitutionally enumerated power?
 Rational basis test: “In determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular statute, we look to see whether the statute constitutes a
means that is rationally related to the implementation of a Constitutionally enumerated power”
 Usually lowest standard of review for a constitutional issue
o
Is the enactment more than a “modest addition” to existing federal law?
o
Is the enactment “reasonably adapted” to Congress’ power to act?
o
Does the enactment properly account for state interests?
o
Are the links between the enactment and the enumerated power attenuated? (How close are the links between the enactment and an enumerated power?)
o
** This test is relatively unclear, but it seems to have a stricter standard than just the rational basis test alone.
McCulloch v.
Maryland imposes a tax on out-of- N&P Clause allows the federal government to exercise incidental or implied powers to carry into execution some other federal power. (under the Doctrine of
Maryland
state banks operating in the state
Implied Powers)
knowing that the only out of state

Nothing in the Constitution excludes incidental or implied powers or requires that every federal power be expressly and minutely described
bank was the National Bank, in

Necessary does not only mean “absolutely necessary”: can mean “needful, requisite, essential, conducive to”: Example of Post Office
order to try to exclude the national
o
There are no enumerated powers that give Federal government power to create a national post office, but it is used as a means to an end to
bank from operating within the
carry out enumerated powers
state. MuCulloch (cashier of the

This case establishes implied powers.
Baltimore Branch US Bank)

TEST: If the end is legitimate and within the Constitution, then the means selected to execute the end is constitutional if it is appropriate to the
refused to pay the tax.
end and not prohibited by the Constitution.

If a means is a direct mode of executing a power enumerated in the Constitution, then those means can be considered incidental to the enumerated power.
“The states have no power, by taxation or otherwise, to retard, impede, burden or in any manner control, the operations of the constitutional laws enacted by
congress to carry into execution the powers vested in the general government”
Federal Government is supreme over the states and the states cannot negate federal actions if the federal actions are properly executed. States cannot make
laws that interfere with federal government’s exercise of its Constitutional Powers
Specific case holdings:
Marshall took a broad view of Congress’ implied powers in order to hold that Congress did have the power to charter a national bank.

The creation of a corporation is one of those powers that can be implied as incidental to other powers or used as a means of executing them.

He believed a broad view would allow the Constitution to endure

He held that Congress’ own judgment deserved deference so long as it adopted means “which tended directly to the execution” of general powers
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U.S Term Limits
v. Thornton
Exemplifies
States’ Prohibition
on Acting when
Requirements are
Detailed in
Constitution
United States v.
Comstock
Illustrates
Congress’
Permissible
Exercise of Power
under Necessary
and Proper Clause
NIB v. Sebelius
Illustrates a nonpermissible action
of Congress,
illustrating a
regulation that
even if necessary
is not proper
under N&P
clause.
Arkansas wants to add a
requirement to the Constitution
(beyond the existing age,
citizenship, and residency
requirements) to prevent an
otherwise-eligible candidate from
running for Congress if they had
served for a certain amount of
time in the house or senate (three
terms in House of Rep. or two
terms in Senate)
** Federal government requires
the state to take on some
budgetary/ resource commitment
Comstock was in federal prison
for sex violence. He was about to
finish his sentence when the
United States government moved
to have him committed for more
time under a new act extending
the sentences of sexually violent
and mentally ill patients beyond
their release date. Congress
enacted the Adam Walsh Child
Protection Act, which authorized
federal courts to order the
indefinite confinement of people
who are deemed to be sexually
dangerous.
Addressed the requirement under
Obamacare that required citizens
to buy health insurance.
Held that Maryland lacked the power to tax the national bank

He infers this from the structures and relationships between state and federal governments created by the Constitution

There could be destructive consequences of the power of taxation and the potentially self-interested motives of legislators to hoard benefits for their
own constituents and export the costs to others
Even though there was no enumerated power allowing Congress to establish a national bank

Sovereignty in the federal government originates in the people; therefore, States cannot restrict who the people represent in federal government beyond
the restrictions stated in the Constitution.

States don’t have the ability to regulate the federal government structure by setting term limits with regard to their representatives in the federal system

A state cannot impose qualifications for members of Congress that exceed what is delineated in the Constitution
Issue whether the Federal Government has the authority under Article I of the Constitution to enact a federal civil-commitment program.
Congress may authorize federal courts to order the civil commitment of mentally ill, sexually dangerous federal prisoners beyond the dates they would
otherwise be released because:

The Necessary and Proper Clause gives Congress power to enact legislation that is convenient, useful, or conducive to implementation of the enumerated
powers, so long as the statute is a means that is rationally related to such implementation. Even though there is no enumerated power to criminalize
conduct, it has broad authority to do so to carry into execution the enumerated powers.
It is unclear whether the majority in this case wanted a rational basis test or a five-factor test.

5-factor test
o
Is the enactment rationally related to the implementation of a Constitutionally enumerated power?
 Rational basis test: “In determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a
particular statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a
Constitutionally enumerated power”
 Usually lowest standard of review for a constitutional issue
o
Is the enactment more than a “modest addition” to existing federal law?
o
Is the enactment “reasonably adapted” to Congress’ power to act?
o
Does the enactment properly account for state interests?
o
Are the links between the enactment and the enumerated power attenuated? (How close are the links between the enactment and an
enumerated power?)

** This test is relatively unclear, but it seems to have a stricter standard than just the rational basis test alone.
Issue: Whether the Federal Government could impose a mandate as part of the Affordable Care Act (“Obamacare”) that required citizens to buy health
insurance. Government argued it was necessary to regulate the ACA under the Commerce Clause. (E.g. people having health insurance saves government
money).
The Court held that even if the mandate was “necessary” as determined by Congress, it was not “proper” because the law itself created the mandate.

Necessary= broadly construed—conducive to, useful

Proper= relates to the “letter and spirit of the Constitution’s structure

Did not apply the Comstock test
Not proper because the enumerated powers of Congress do not include regulating healthcare.
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Commerce Power (Commerce Clause, Taxing, Spending, Dormant)
Commerce Clause (cl. 3):


“To regulate commerce with foreign nations, and among several states, and with the Indian Tribes”. However, this must be read in conjunction with N&P.
Commerce power has become the justification for the expansion of federal powers into many areas other than that which formed the basis for its inclusion in the Constitution. However, the Court has recognized
that there are still limits on this power.

A state’s laws, even laws that only apply within its particular state, cannot infringe on interstate commerce laws passed by the Federal government. (Can’t infringe on enumerated powers)

Interstate commerce includes commerce that runs into the interior of the state- it just has to cross state borders (Gibbons)
Gibbons
Odgen held an exclusive license
Held: New York’s law giving plaintiff exclusive rights of navigation between two states is trumped by the federal Coastal Act, because federal government (under the
v. Ogden (monopoly) in NY to operate
commerce clause) controls interstate commerce- not states. Federal licensing statute authorized by the Commerce Clause preempted the state monopoly, answering:
steamboats in NY. Gibbons

Interstate commerce includes commerce that runs into the interior of the state- it just has to cross state borders
received a license to operate boats

Commerce does include navigation
in NY waters through a federal

Marshall definition of commerce: “Every species of commercial intercourse . . . which concerns more states than one.” (aka commercial intercourse affecting
statute. Ogden sues for an
2 or more states)
injunction for his exclusivity.
o
The meaning of commerce is not limited to interchange of commodities: it is intercourse.
Interstate commerce pre-New Deal
Three main tests are employed to limit congressional authority over commerce (plus morality tests):

Direct v. indirect effects test- Commerce Clause power only applies to matters that have a direct effect on interstate commerce. (E.C Knight)
o
“Manufacturing” and “production” are not a part of interstate commerce because it only affects interstate commerce incidentally and indirectly.

Substantial economic effects test (Schreveport Rate cases)
o
When intrastate (state and local government) commerce substantially impacts interstate commerce, the Commerce Clause authorizes Congress to regulate that local commerce as necessary to regulate
interstate commerce.
o
Whenever the interstate and intrastate transactions of carriers are so related that the government of one involves the control of the other, Congress, and not the state, must regulate the transactions.

Stream of commerce test (Swift & Co. v. US)
o
If the activity touches the stream of commerce, the activity can be regulated by Congress.
o
When cattle sent for sale with the expectation that they will end up being sold in the state, with only interruption necessary to find a purchaser at the stockyard, the current thus existing is a current of
commerce among the States. Simply sending the cattle for sale in this case is considered to be in the current of commerce.

Vice/ moral case law (Lottery Case, Hipolite Egg Co., Hoke, Child Labor)
o
Congress began using national legislation to deal with “police” problems; i.e., national legislation was directed at “bad” local activities such as gambling, prostitution, theft, etc.
o
Regulatory power includes prohibition of commerce- The government has a duty to suppress the things that are injurious to public health and morality. Therefore, the Court may take into view the evils
when regulating interstate commerce and has the ability to ban carrying lottery tickets from one state to another. (Lottery Case)
o
Exclusion of “harmful goods”- Congress could bar a company’s adulterated eggs from interstate commerce and had the right to confiscate the interstate trafficked eggs from stores. (Hippolite Egg)
o
This police power is limited in Child Labor Case (but is later overruled by Darby).
U.S v. E.C. Knight
Sherman Act (barring contracts/ conspiracies

Under Direct vs. Indirect Effects, manufacture is not part of commerce.
in restraint of interstate trade) case involving

Court essentially limited interstate commerce to transportation across state lines
acquisition/ consolidation of sugar refineries.

Contracts, etc. that restrain domestic (intrastate) trade but have only an indirect effect on external (interstate) trade are matters for State
Invalidates exercise of federal power under
regulation only.
the Sherman Anti-Trust Act based on a

Court did not believe that this was considered infringing on the ability to regulate interstate commerce because it only involves
distinction of manufacturing and commerce.
manufacturing sugar, which only affects interstate commerce incidentally and indirectly.
Houston, East & West
Upholds exercise of federal power to regulate 
When intrastate (state and local government) commerce substantially impacts interstate commerce, the Commerce Clause authorizes
Texas Railway Co v. US
intrastate railroad rates that discriminated
Congress to regulate that local commerce as necessary to regulate interstate commerce. This power includes regulation of the intrastate
against interstate railway traffic.
rates of an interstate carrier that discriminated against interstate railroad traffic.

“Whenever the interstate and intrastate transactions of carriers are so related that the government of the one involves the control of the
other, it is Congress . . . that is entitled to prescribe the final and dominant . . .”
Swift & Co v. US
The US sued Swift for violating the Sherman

Regulation of local stockyards was upheld on the theory that they were a throat through which the stream of beef production flowed
Antitrust Act of 1890. US alleged that the
from one part of the country to another.
9
defendants colluded in several ways to
manipulate pricing. US contended that the
defendants agreed among themselves to
coordinate the livestock market at
slaughterhouses. The defendants argued that any
such agreements did not affect interstate
commerce and thus were not subject to the act.


Lottery Case


Hippolite egg Co v. US


Hoke v. US

Child Labor Case
(Hammer v. Dagenhart)
Father of two children employed in a cotton mill
brought an action to enjoin the enforcement of an
act that prohibited the shipment in interstate
commerce of goods manufactured at factories
using child labor.
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


When cattle are sent to be sold in another state (as part of a business’ typical recurring practice), with the expectation that they will end
up being sold in that state, simply sending the cattle for sale is considered to be in the current of commerce.
When cattle sent for sale [one state to another] . . . with only interruption necessary to find a purchaser at the stockyard . . . the current
thus existing is a current of commerce among the States.”
Court upheld the Federal Lottery Act
The government has a duty to suppress the things that are injurious to public health and morality. Therefore, the Court may take into
view the evils when regulating interstate commerce and has the ability to ban carrying lottery tickets from one state to another.
Based on the precedent from Lottery Case
Congress could bar a company’s adulterated eggs from interstate commerce and had the right to confiscate the interstate trafficked eggs
from stores.
Court upheld Mann Act prohibiting transportation of women in interstate commerce for immoral purposes. Congress again has the
power under Commerce Clause to prohibit immoral interstate commerce.
Congress does not have general police power. Unlike the Lottery Case, this case involves goods that are themselves harmless.
Congress does not have power to prohibit movement or ordinary commodities.
Manufacturing is a purely local activity, not subject to the congressional commerce power. Only the state may regulate purely local
matters.
Even though this result leaves those states without their own child labor laws with an advantage in interstate competition, Congress
simply has no power to force states to exercise their police power or to equalize conditions among the states.
Dissent: The Child Labor Act does not meddle with state rights. When products are sent across state lines, the states are no longer
within their rights. Under the Constitution, control of such commerce belongs to Congress and not the states. Congress may carry out
its views of public policy, whatever the indirect effect on the states.
Commerce Power & The New Deal

Relationship or nexus to interstate commerce test (Railroad Retirement Board)
o
The legislation has to actually relate to interstate commerce of goods, not just touch companies/ workers who are involved in interstate commerce.

Indirect effect theory (Schecter Poultry Corp., Carter Coal)
o
Congress cannot regulate local activity that only indirectly affects interstate commerce. If Congress had the ability to regulate local commercial activity that only indirectly affected state commerce, it
would be allowed to regulate virtually every commercial activity.
Railroad Retirement
The Railroad Retirement Act established a

Invalidated the Railroad Retirement Act
Board v. Alton Railroad
compulsory retirement and pension plan for all

The legislation actually has to relate to interstate commerce of goods, not just touch companies/ workers who are involved in interstate
carriers subject to the Interstate Commerce Act.
commerce.

The legislation only had to do with the workers themselves, not the actual interstate commerce of goods.
Schecter Poultry Corp v.
Plaintiffs attacked the Industrial Recovery Act,

Congress cannot regulate local activity that only indirectly affects interstate commerce. If Congress had the ability to regulate local
US
which promulgated codes of fair competition for
commercial activity that only indirectly affected state commerce, it would be allowed to regulate virtually every commercial activity.
trade and industry, the violation of which were

Act was unconstitutional because the plaintiffs’ activity, the sale of poultry only to local retailers, was not in the stream of commerce
misdemeanors.
and because the wages and hours of the plaintiffs’ employees would only indirectly affect the price structure of the industry.
Carter v. Carter Coal
Plaintiffs challenged the Bituminous Coal

Invalidated the Act
Conservation Act, which attempted to regulate

Although nearly all production has some indirect effect on interstate commerce, regulations affecting employee’ working conditions
hours and wage of coal miners by assessing a
relate, not to commerce, but to production, which is a purely local affair.
penalty tax on noncomplying companies.

Congress may not regulate the mining or production of coal until the coal is introduced into interstate commerce. Therefore, Congress
cannot regulate working conditions for miners, nor could it impose tax on mines that didn’t comply.
Commerce Clause Post-New Deal


Court abandoned the “geographical” (e.g., manufacturing is local) and “direct v. indirect” concepts.
Court’s position became the Affectation Doctrine. Congress has the power to regulate any activity, whether it be interstate or intrastate in nature, as long as it has any appreciable effect on interstate commerce.
o
Labor Relations Affecting Commerce- A labor strife, even with 10/10,000 employees being fired as a result of attempting to organize a union, could conceivably cripple the entire interstate operation of the
company; thus, interstate commerce was affected. (NLRB v. Jones & Laughlin Steel Corp.)
10
o
Regulation by Prohibiting Commerce- Prohibition of interstate shipment of goods (even those not deleterious) covered by the Act is constitutional so long as the labor standards involved are properly within
the scope of federal power. (Darby)
o
Determining what substantially affects commerce- Home consumption of the wheat does not detract from the economic effect of the excess crop because it substitutes for purchases on the open market. That
P’s effect is trivial is irrelevant because, taken together with many others similarly situated, it is far from trivial. (Wickard)

Judicial deference toward exercise of the Commerce Power
o
Commerce power and civil rights

Motels- Congress may prohibit racial discrimination by private motels that accept-out-of-town state business because it makes it difficult for black people to move through states, which affects
interstate commerce. (Heart of Atlanta)

Restaurants- Congress could use its commerce power to forbid discrimination by a restaurant on the ground that slightly under one-half of the food it served originated from outside the state and
because refusing to serve a subset of the population the rule discouraged travel and obstructed interstate goods by directly restricting interstate travelers who needed to stop and eat. (Katzenbach)
o
Commerce power and crime

Congress has relied on the commerce power to enact criminal laws and generally the Court has upheld this use of the Commerce Clause. Even though the criminal transaction might be purely
intrastate, it might affect interstate commerce if it provides revenue for organizations like organized crime.

Organized crime- Even when activities of organized crime like loan sharking are purely intrastate in character, they direct affect interstate commerce. Loan sharking provides substantial revenue
that can be used to affect interstate commerce in many forms to organized crime. (Perez)
NLRB v. Jones &
NLRA provided for union-employer collective

Congress may regulate a manufacturer if the manufacturer’s activity significantly affects interstate commerce.
Laughlin Steel Corp.
bargaining in all industries affecting interstate

The term “affecting commerce” means burdening or obstructing commerce or the free flow of commerce, or leading or tending to lead
commerce. In violation of NLRA, defendant
to a labor despite burdening or obstructing commerce or the free flow of commerce.
fired 10 employees (out of 10,000) trying to

Labor strife at this plant could conceivably cripple the entire interstate operation of the company; thus, interstate commerce was
organize union. Plaintiff claimed that Congress
affected, and Congress may regulate D’s activity.
had no power to regulate its industry. Defendant

Dissent: Discharge of 10/10,000 employees is extremely indirect/ remote to affect interstate commerce. Almost anything—marriage,
was an integrated company, owning subsidiaries
birth, death—may in some fashion affect commerce.
all over the US; 75% of its material was shipped
out of state and it got its raw materials from out
of state.
United States v. Darby
Fair Labor Standards Act prescribed min. and

Congress may establish and enforce wage and hour standards for the manufacture of goods for interstate commerce.
(overturns Hammer v.
max wages for workers who manufactured goods 
Prohibition of interstate shipment of goods covered by the Act is constitutional so long as the labor standards involved are properly
Dagenhart)
for interstate commerce and prohibited interstate
within the scope of federal power.
shipment of goods made by workers not in

Overrules Hammer v. Dagenhart (by saying that Congress does have the power to prohibit movement of ordinary commodities)
compliance with the Act. Darby, a lumber

Congress may choose means “reasonably adopted to the attainment of the permitted end, even though they involve control of intrastate
manufacturer, was charged with violating the
activities.” Also, the Act is directed at the suppression of “unfair” competition in interstate commerce, a valid purpose.
Act.
Wickard v. Filburn
Wickard imposed a marketing penalty upon the

Congress can control a farmer’s production of wheat for home consumption based on the substantial effect of the aggregate of such
portion of Filburn’s crop grown in excess of his
activity.
allotment under the Agricultural Adjustment Act

The cumulative effect of many instances of such production could be felt on the supply and demand of interstate commodity market.
of 1938, even though the excess wheat was for

Home consumption of the wheat does not detract from the economic effect of the excess crop because it substitutes for purchases on
at-home consumption.
the open market. That P’s effect is trivial is irrelevant because, taken together with many others similarly situated, it is far from trivial.
Heart of Atlanta Motel v.
Heart of Atlanta motel challenged a law under

Congress may prohibit racial discrimination by private motels that accept-out-of-town state business.
US
the Commerce Clause because it wanted to

The legislative history of the Civil Rights Act contains numerous examples of how racial discrimination placed burdens upon interstate
continue its practice of refusing to offer rooms to
commerce, which covers the movement of persons through more than one state.
African Americans.

Test used: Congress may act under Commerce Clause if the activity regulated is commerce that concerns more than one state and has a
real and substantial relation to the national interest (including moral problems).
Katzenbach v. McClung
Restaurant near an interstate highway provided

Congress could use its commerce power to forbid discrimination by a restaurant on the ground that slightly under one-half of the food
in-service dining to whites and only takeout to
it served originated from outside the state.
blacks. The restaurant purchased 46% of its food

The rule discouraged travel and obstructed interstate goods because it had a direct and highly restrictive effect on black people
from local supplier who had purchased it out oftraveling on interstate highway across state lines who needed to stop and eat.
state.

The restaurant and others with the same practice in the area sold less interstate goods because they refused to serve a whole subject of
the population in their restaurant.

Many new businesses refrained from establishing there as a result of the rule.
11
Perez v. United States
Perez had lent money to a butcher shop owner
and threatened violence when the butcher
insisted that he could not repay the loan in the
amount of agreed-upon weekly installments.




Court added that there was testimony that discrimination in restaurants had a direct and restrictive effect upon interstate travel.
Upheld a federal prohibition of “extortionate credit transactions” (loansharking enforced by threats of violence)
Even when activities of organized crime like loan sharking are purely intrastate in character, they direct affect interstate commerce.
Loan sharking provides substantial revenue that can be used to affect interstate commerce in many forms to organized crime.
Reaches the outer limits of “affecting commerce”
Contemporary Commerce Clause Power
Lopez test

Three broad categories of permissible regulation:
o
1. Congress may regulate the use of channels of interstate commerce

Boats, cars, trains across state lines.

People crossing state lines (if the crime involves crossing state lines, this can be a federal crime)

Internet
o
2. Congress may regulate and protect the instrumentalities of interstate commerce or persons or things in interstate commerce, even though the treat may come only from intrastate activities.

Ex. Train car

Tools used to cross state lines

Protect instrumentalities or shipments in interstate commerce (ex. Outlaw theft from interstate shipments, destruction of aircraft in interstate flights)
o
3. Congress may regulate those activities having substantial relation to interstate commerce (substantially affects interstate commerce- more than rational basis, but not strict or intermediate scrutiny)

(a) Whether the regulated activity is economic in nature

(b) Whether the statute contains an express jurisdictional element linking its scope in some way to interstate commerce

(c) Whether congress made express finding regarding the effects of the regulated activity on interstate commerce; and

(d) How attenuated (or close) the link is between regulated activity and interstate commerce

Congress has no authority to regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect in interstate commerce. (Morrison)

Limits of Lopez & Morrison (Gonzales)- In determining whether an economic activity can be regulated, Congress must have a rational basis for concluding that at-home consumption of the economic product
outside of federal control would price and market conditions in interstate commerce. Congress can regulate purely intrastate activity that is not itself “commercial” (in that it is not produced for sale”, if it concludes
that failure to regulate that class of activity would undercut the regulation of interstate market in that commodity.

Commerce Clause Restraint on Congress- Congress does not have the authority to require people to purchase a product.
U.S v. Lopez
In the Gun-Free School Zones Act, Congress

Court invalidates a congressional gun control act because it did not substantially affect interstate commerce (3rd category of test)
made it a federal offense for any person

Stricter construction of the Commerce Clause
knowingly to possess a firearm at a place that the

Lopez test
person knows or reasonably has cause to believe
o
The Act in this case is a criminal statute that has nothing to do with commerce.
is a school zone. Lopez was convicted for
o
Possessing a gun in a school zone does not arise out of a commercial transaction that substantially affects interstate commerce.
knowingly possessing a handgun and bullets at
o
The Act does not contain a requirement that the possession be connected in any way to interstate commerce.
his high school.
o
The government claims that possession of a firearm in a local school zone substantially affects interstate commerce because it
might result in violent crime. This in turn imposes costs on society, which are borne throughout the country through insurance
rates. The government also claims that guns disrupt the educational process, which leads to a less productive society, which
ultimately affects interstate commerce. If either of these propositions were adopted, there would be no limitation on federal
power.
o
The only way to find an effect on interstate commerce in this case is to pile inference upon inference, and the result would be to
uphold a general police power for Congress.

Congress cannot prohibit the possession firearms in a school zone. The rationale was that possessing a firearm is a criminal act, not an
economic one. Congress has authority to regulate interstate commerce, but it must show a substantial impact on interstate commerce of
actions it seeks to regulate.
United States v. Morrison A female student filed a rape charge against two

Court struck down remedies under Violence Against Women Act
football players at her former university and

Congress cannot regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate
against Virginia Tech under Violence Against
commerce.
Women Act, which provided a damages remedy

Congress made findings regarding the serious impact of gender-motivated violence on victim and their families, but used a but-for
for a victim of gender-motivated violence. D
causal chain to show an impact on interstate commerce from these crimes.
claimed that the civil remedy was

The Court rejected the but-for causal chain of reasoning, since it would allow Congress to regulate any crime if the aggregated impact
has substantial effects on any aspect of interstate commerce.
12
Gonzales v. Raich
National Federation of
Independent Business v.
Sebelius
unconstitutional (that Congress lacked
Congressional authority to enact the remedy)
CA created a statutory exemption for criminal
prosecution for physicians, patients and primary
caregivers who possess or cultivate marijuana for
medical purposes with the recommendation or
approval of a physical. Ps wanted to use
marijuana to treat illness pursuant to the
Compassionate Use Act, so they brought an
action seeking relief from the enforcement of the
federal Controlled Substances Act.

Individual mandate of Obamacare requires most
Americans to maintain minimum essential health
insurance coverage.









The Constitution distinguishes between national and local issues, and the police power is one that was clearly left to the states and
denied to the federal government.
Court upheld CSA
Federal commerce power includes the power to prohibit local cultivation and use of marijuana in compliance with state law.
Uses Wickard standard: Congress can regulate purely intrastate activity that is not itself “commercial” (in that it is not produced for
sale”, if it concludes that failure to regulate that class of activity would undercut the regulation of interstate market in that commodity.
Congress has a rational basis for concluding that home-consumed marijuana can affect price and market conditions in the national
market. Quantities intended for use under the CA statute might be diverted into illegal uses, which would affect the interstate market.
Raich’s activity of growing marijuana for home use can be seen rationally as affecting interstate commerce because there is an
established, albeit illegal, interstate market for marijuana.
Federal government can aggregate the effects of homegrown marijuana, even though the cultivation of marijuana at home for personal
consumption is a noneconomic activity in itself, because the activities regulated by the CSA as a whole are quintessentially economic
(the production, distribution and consumption of commodities)
Congress does not have the authority to require people to purchase a product.
Although the lack of a mandate would worsen the cost-shifting problem, Congress has never relied on its commerce power to compel
individuals not engaged in commerce to purchase an unwanted problem.
Wickard is the most far-reaching example of the commerce power, but even in that case, the farmer was actively engaged in producing
wheat. To allow Congress to solve problems by forcing people to purchase things they don’t want could change the nature of
government.
10th Amendment as an External Constraint on Federal Commerce Power





All power not surrendered to the federal government is retained by the states.
No matter how great the federal interest, the Constitution does not give Congress the authority to require states to regulate. Congress must legislate directly, not by conscripting state governments. (New York)
State officials cannot give Congress the authority to require states to regulate by consenting to the federal statute. (New York)
Congress cannot directly compel states to enact and enforce a federal regulatory program (it can only encourage). (New York)
Congress may create incentives for states to adopt legislative programs consistent with federal interests by: (New York)
o
Attaching conditions on the receipt of federal fund
o
Offering states the option of regulating private activity in interstate commerce according to federal standards or having state law preempted by federal regulation.

Congressional alternatives to commandeering (New York)
o
Spending power- Congress may condition payment of relevant federal funds on a state’s agreement to regulate.
o
Commerce Power- Congress may pass federal legislation directly regulating private companies/ individuals if the act burdens interstate commerce under Commerce Clause.
o
Conditional Preemption- Congress may threaten to pass federal legislation under the Commerce Clause unless states choose to regulate according to federal standards. This is not impermissibly coercive
because any burden caused by a state’s refusal to regulate will fall on those private orgs who act, rather than on the state as a sovereign.

Congress may not compel state officers directly to enforce a federal regulatory program. (Printz)

Congress may regulate states’ activities using its Commerce Clause powers, provided that the regulation does not require ethe state to enact any laws or regulations and does not require state officials to assist in
the enforcement of federal statutes regulating private individuals. (Reno)
National League of Cities
Fair Labor Standards Act extended minimum

Congress, in exercising its power under the Commerce Clause, had impermissibly interfered with integral government functions of the
v. Usery
wage and hour requirements to states (if state is
states because the amendments would have displaced state policies regarding the manner in which states chose to deliver the services
employer, it must abide by this). Although
their citizens required.
federal government may be able to regulate
private companies under the Commerce Clause,
the argument is whether the federal government
can regulate the state itself.
Garcia v. San Antonio
FLSA applicability to municipal transit authority. 
Congress may enforce minimum wage and overtime requirements against a local government’s mass transit authority.
Metro Transit Authority
[overruled National
League of Cities v.
Usery]
New York v. United
Low-Level Radioactive Waste Policy Act (US

Congress Clause authorizes Congress to regulate interstate commerce directly. It does not authorize Congress to regulate state
States
federal legislation) forced states to comply with
government’s regulation of interstate commerce.
13
the waste disposal laws (amongst other things)
take title of the waste and be liable for all its
damages. New York says that it violates 10th Am.
And exceeds Congress’ power.
Printz v. US

Reno v. Condon






A choice of 2 coercive regulatory techniques is no choice at all.
o
In this case, the states had to either regulate according to federal standards or the waste within their borders gets transferred to the
states (in ownership).
o
The Constitution would not permit Congress to transfer radioactive waste from generators to state governments, or force states to
become liable for the generators’ damages, either of which would “commandeer” state governments into the service of federal
regulatory purposes. Since neither of these “options” are constitution, a choice between them is not permissible either.

Falls short of reviving National League of Cities it merely limits the method by which the federal government may act upon the
states, as opposed to exempting subject matter areas from any form of federal control.

The federal government can exercise its legislative authority directly over individuals, but not over states.

Congressional alternatives to commandeering
o
Spending power- Congress may condition payment of relevant federal funds on a state’s agreement to take title to waste, if it has
not already provided a waste disposal facility under the Spending Clause.
o
Commerce Power- Congress may pass federal legislation directly regulating the private producers of low-level radioactive waste
to limit their production of any more of its if disposal is unavailable under the Commerce Clause. This would presumably induce
them to pressure the states to act.
o
Conditional Preemption- Congress may threaten to pass federal legislation under the Commerce Clause unless states choose to
regulate according to federal standards. This is not impermissibly coercive because any burden caused by a state’s refusal to
regulate will fall on those who generate waste and find no outlet for its disposal, rather than on the state as a sovereign.
The federal government may neither issue directives requiring the states to address particular problems, nor command the states’ officers to administer/ enforce a federal regulatory
program.
Congress cannot circumvent prohibitions of New York by conscripting state officers directly.
Allowing the federal government to force its rule on state officers violates the “two systems of government working concurrently over the people” principle of the Constitution.
Drivers’ personal information gathered by state motor vehicle departments is a thing in interstate commerce because it is used by insurers, manufacturers, marketers and others engaged
in interstate commerce to contact drivers with customized solicitations.
Congress had authority to limit disclosure of this information by state authorities.
Congress may regulate states’ activities using its Commerce Clause powers, provided that the regulation does not require ethe state to enact any laws or regulations and does not require
state officials to assist in the enforcement of federal statutes regulating private individuals.
State Sovereign Immunity and Eleventh Amendment
o
o
11th Amendment- federal judicial power does not extend to a suit against a state brought by citizens of another state or by subjects of a foreign state
Congress’ power to abrogate 11th Am. Immunity exists only under Reconstruction Amendments. SCOTUS has held that other sources of Congressional power, such as the Commerce Clause, do not allow Congress
to abrogate state immunity.
Seminole Tribe of FL v.
Indian Gaming Regulatory Act allowed certain
o
Commerce Clause does not allow Congress to abrogate state immunity
FL
gambling activities in confirming with a compact o
11th Amendment prevented Congress from authorizing suits by Indian tribes against states to enforce the Act
between the tribe and the state where gaming
activities were located.
14
Taxing Power & Spending Power




Taxing Power- Art. I, § 8, cl. 1- Congress has the power to collect and lay taxes, duties, imposts, and excuses to collect debts and provide for common defense of general welfare
Spending Power- Congress as the power to spend money in order to pay the debits and provide for the common defense and the general welfare of the US
The General Welfare Clause of Art. I § 8 is a limitation on the power to tax and spend (i.e., that Congress may spend only for the general welfare) and is not an independent source of power for Congress.
Congress must tax for revenue and not merely regulatory purposes and then it must spend for the general welfare.
Taxing power as a regulatory device: A tax cannot be used as a pretext to control state policy (cannot have a primarily regulatory effect).

When a tax is not supportable under some other specific constitutional power, then its validity depends on whether it is intended as a revenue-raising measure. However, since every tax also has a regulatory
effect, the test for validity is whether the tax is primarily “fiscal” (valid) or “regulatory” (invalid).

The Court must presume the validity of congressional statutes unless a tax is invalid on its face. An example of a tax being facially invalid is one that taxes only knowing departures from the business activity
prescribed in the tax and is clearly regulatory in purpose and effect. (Bailey)

A federal tax that discourages specific activity and produces little revenue may be valid. (Kahriger).

The Court has yet to decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. (Obamacare)

Drexel Furniture Analysis
o
What is the burden placed on the target population for an infraction?

The Court has yet to decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. (Obamacare)

Ex. Drexel: It imposed an exceedingly heavy burden on target population, no matter how small the infraction really was.

Ex. Obamacare: Because the tax will always be less than the cost of insurance, it may be a reasonable financial decision to pay the tax (unlike prohibitory financial punishment in Drexel). The
payment is small.
o
Scienter requirement: Person must have knowledge of the wrongness of an act or event prior to committing it.

Ex. Imposed tax only on those who knowingly employed children (violates scienter requirement, as used in criminal law)

Ex. Obamacare: No scienter requirement: requires knowledge of wrongdoing
o
The body enforcing the tax should be one that collects revenue rather than enforces/ punishes violation of laws.

Ex. Drexel: Tax was enforced by Dept. of Labor, the agency responsible for punishing violation of labor laws, not collecting revenue.

Ex. Obamacare: Payment collected solely by IRS through normal means of taxation.
Child Labor

A federal law imposed tax of 10% of annual

The presence of extensive penalizing features indicating a primary purpose to regulate may render a tax statute constitutionally invalid.
Tax Case
profits against employers of child laborers. P

When a tax is clearly meant to regulate activity (rather than to generate revenue), the law is entitled to the significant deference [a
(Bailey v.
argues that the child-labor “tax” is really
presumption of validity] provided to federal tax laws.
Drexel
regulation of the employment of child labor

Federal tax laws with a purpose of penalizing an activity do not have a presumption of validity.
Furniture)
in the states, an exclusively state function.

Three characteristics of the child labor tax that made it unconstitutional

Tried to work around Dagenhart by putting
o
It imposed an exceedingly heavy burden on target population, no matter how small the infraction really was.
significant obstacles in the way of employers
o
Imposed tax only on those who knowingly employed children (scienter requirement, as used in criminal law)
hiring child laborer through tax.
o
Tax was enforced by Dept. of Labor, the agency responsible for punishing violation of labor laws, not collecting revenue.

Congress may properly impose excise taxes on commodities or other things of value, even where the mere results are an incidental restraint
or regulation. However, in this case, the excuse burdens only the departure from a detailed and specified course of conduct in business.

This tax’s revenue-raising effects were merely incidental.
US v.
There was a federal tax levied on each wager made

Court upheld a federal tax on gambling
Kahriger
and on gambling employees. The tax also required

A federal tax that discourages specific activity and produces little revenue may be valid.
registration for those gambling.

Imposed a federal tax on gambling
Taxation of

Held: This is a valid exercise of Congress’s taxing power. The motives behind it do not matter, specifically, it doesn’t matter that it
gambling
discourages specific activity and produces little revenue.
NFIB v.
Obamacare included a mandate for citizens and

The mandate can be read not as an order to buy insurance but as the imposition of a tax on those who do not buy insurance.
Sebelius
legal residents to maintain health insurance

The “shared responsibility payment” (the penalty on those who do not adhere to the mandate) is called a “penalty” but is actually a tax on
coverage. As an alternative to its Commerce
those who go without insurance.
Clause argument, the government claimed the

The ACA refers to the payment as. “penalty” and not a “tax” but the label is not controlling.
mandate imposed a tax on those who do not buy

Used Drexel Furniture Analysis
insurance.
o
Because the tax will always be less than the cost of insurance, it may be a reasonable financial decision to pay the tax (unlike
prohibitory financial punishment in Drexel). The payment is small.
o
No scienter requirement
15


o
Payment collected solely by IRS through normal means of taxation.
The payment in this case does affect individual conduct, but so do many taxes. Unlike taxes, penalties are punishment for unlawful acts or
omissions, but the ACA does not make failure to buy health insurance unlawful.
The only negative legal consequence is a required payment to the IRS. Because the payment required by the ACA is relatively small, the
Court does not need to determine at what point an exaction is so punitive that it constitutes a penalty instead of a tax.
Spending Power as a regulatory device


Congress’ power to tax and spend is a separate power not confined by Congress’ Article I enumerated powers, but by the general welfare of US citizens. (Butler)
Congress may condition spending within a state on requirements related to federal policy goals, but not if the extent or nature of the goals infringes on the state’s authority to regulate in areas of traditional state
concern. (Restrictive view) (Butler)

Congress is essentially the arbiter of what is considered to be for the “general welfare” (More deferential view) (Social Security Cases)

The spending program must be reasonably adapted to the attainment of an end that will justify the expenditure. Four-part test for assessing the constitutionality of federal spending conditions: (South Dakota)
o
Spending must be in purpose of general welfare (broad deference to Congress to decide what that is)
o
Spending conditions must be stated unambiguously so States can exercise knowing choice
o
Spending conditions must be related to the federal interest in particular national projects or programs; and
o
Spending must satisfy any other applicable Constitutional provision (not induce the states to do anything unconstitutional).
 The spending cannot directly violate another Constitutional provision, but it may indirectly achieve objectives that it could not achieve directly.

While Congress may establish conditions on grants of federal funds to states to ensure the states are compliant, the amount of federal funds offered (or the amount the federal government threatens to take away)
cannot be too much that it leaves the States with no choice but to comply. (Encourage compliance, no compulsion) (Obamacare)
o
Ex. Threatening to take away all federal Medicaid funds, rather than simply refusing to grant new funds, to states that don’t comply to Medicaid expansion rules, is a gun to the head for the states.
(Obamacare)
o
Ex. Taking away 5% of federal funding for road maintenance in exchange for federal government’s recommendation of drinking age is “relatively mild encouragement” for compliance. (South Dakota)
o
Gun-to-the-head coercion (unconstitutional) - When states a lack real choice as to whether to accept the federal funding and the corresponding conditions (the states are heavily dependent on the funds to
accomplish objectives, so they realistically can’t say no) (Obamacare)
US v. Butler
The AAA extended benefit payments to farmers

Court struck down the Act because Congress infringed on state regulatory power.
who agreed to reduce their planted acreage in an

Power to tax and spend is not confined by the enumerated powers in Article 1, but by the general welfare of US citizens.
Local (state)
attempt to regulate farm prices. It allowed the

Congress’ power to tax and spend is a separate power not confined by Congress’ other enumerated powers in Article I. However, regulation
v. General
Secretary of Agriculture set limits on crop
of agricultural production infringes on the state’s regulatory power. Majority said power to regulate and control agricultural production
Welfare
production and tax farmers that produced in excess.
belongs to the states
(federal)
Butler challenged, saying it was an unconstitutional 
The taxing power may not be used to raise funds to purchase compliance in an area that Congress is powerless to command.
control of agricultural production.

The scheme, purportedly voluntary, in reality involves purchasing, with federal funds, submission to federal regulation of a subject
reserved to the states. Because the end is invalid, it may not be accomplished indirectly through the taxing and spending power.

Congress may condition spending within a state on requirements related to federal policy goals, but not if the extent or nature of the goals
denied the state’s authority to regulate in areas of traditional state concern.

Congress may attach conditions to the receipt of federal spending (thereby making it voluntary).
Social
Social Security Act taxed employers of 8+ persons

Court upheld tax on employers under Social Security Act for unemployment compensation.
Security
a certain percent of the salaries of their employees;

No coercion, just inducement. Purpose is not to coerce states, but to place states in a position of equal opportunity and safeguard its
Case
the funds went to the Treasury. If an employer
treasury.
Charles C.
contributed to a state unemployment plan, it

There was no showing that the tax and credit in combination were weapons of coercion, destroying or impairing the autonomy of the states.
Steward
received a 90% credit toward the contribution of its 
Congress must define the difference between general (federal) and local (state) welfare, unless their decision is a clearly wrong, arbitrary
Machine v.
federal responsibility. Steward Machine paid the
display of power.
Davis
tax and then sought a refund of taxes paid to the
federal government.
Social
Congress enacted a tax on employers and

Court upheld old age benefits provision of the Social Security Act
Security
employees to provide old age benefits.

Highly deferential approach: Court said the line between general (federal) and local (state) welfare must be drawn, but discretion belongs to
Case
Congress unless the choice is clearly wrong arbitrary display of power.
Helvering v.
Davis
16
South
Dakota v.
Dole


National Minimum Drinking Act withholds
5% of federal highway funds if state permits
drinking below age 21.
P claims that the fourth part of 4-part test has
been violated, i.e., it is barred by the 21st
Amendment (repealing prohibition).






NFIB v.
Sebelius
ACA increased federal funding to cover the States’
costs in expanding Medicaid coverage, but
provided that if a state did not comply with the
Act’s new coverage requirements, it might lose all
of its federal Medicaid funds.








Court upheld Act
Congress may refuse to provide federal highway funds to states that do not adopt federal age standards for the sale of alcohol.
Congress may attach conditions on receipt of federal funds, subject to four limitations.
Four-part test for assessing the constitutionality of federal spending conditions:
o
Spending must be in purpose of general welfare (broad deference to Congress to decide what that is)
o
Spending conditions must be stated unambiguously so States can exercise knowing choice
o
Spending conditions must be related to the federal interest in particular national projects or programs; and
o
Spending must satisfy any other applicable Constitutional provision (not induce the states to do anything unconstitutional).
The statute is consistent with the first three limitations, as it is intended to promote safe interstate travel.
The fourth prong challenge is rejected because limits on drinking age are not another way of enacting prohibition. The statute encourages
uniformity in state drinking ages indirectly without directly imposing a national drinking age.
Court struck down the ACA Medicaid Expansion Clause under the Spending Power
Congress may not require states to expand Medicaid by threatening to cut off all Medicaid funding if they don’t agree to the ACA’s
Medicaid expansion.
Congress exceeded its spending power by providing that a state loses all Medicaid funding as the penalty for noncompliance with new
conditions.
Federal government cannot withhold existing Medicaid funding from states that choose not to participate.
Congress cannot use financial inducements to exert power akin to undue influence. Although may it establish conditions on grants of
federal funds to ensure state compliance, the pressure exerted cannot turn into compulsion.
States must still be free to voluntarily and knowingly accept the terms Congress establishes. In this case, the financial inducement is really
a gun to the head.
Uses the severability clause to cut this out of the act.
The only remedy necessary is to restrict the federal government from withdrawing existing Medicaid funds from any state that does not
comply with the expansion requirements is to change the law to take away only the additional funds of the new version of the law.
Dormant Commerce Clause

Restricts the state’s ability to enact economic regulations that interfere with interstate commerce when Congress has not otherwise acted
Early Approach Dormant Commerce Clause
Gibbons v.
Ogden
Modern Approach: Dormant Commerce Clause
State laws that facially discriminate against out-of-state commerce= nearly per se invalid unless the state can show that there is no other means to advance a legitimate public purpose





When Congress has not acted, the states have power to regulate any phase of local business (production, marketing, sales, etc.), even though such regulations may have some effect on interstate commerce, as
long as they neither discriminate against, nor impose any unreasonable burden upon, interstate commerce.
A law is facially discriminatory and per se invalid if the protectionist measures (Philly)
o
Reside in the ends (meaning that the legitimate interest is being accomplished by discriminating against out of state commerce) unless there is a good reason, apart from geographical origin, to do so;
or
o
Reside in the means (the purpose of the law is to discriminate against out of state commerce)
If the legitimate public purpose of a facially discriminatory law can be accomplished by reasonably available nondiscriminatory means, the law is invalid. (Dean Milk)
o
Ex. Home processing requirement for milk facially discriminated against out of state commerce, with the purpose being that home processing ensures that the product is safe. However, having an
inspection requirement is a reasonably available alternative to home-processing adequate to achieve this purpose. Therefore, law is invalid. (Dean Milk)
o
Ex. An ordinance forcing waste facilities to reroute trash to a certain trash processing center in order to raise enough money to pay for that processing center is per se invalid, because there are several
reasonable nondiscriminatory alternatives that would allow the town to generate revenue to pay for the plant. (Carbone)
Dormant Commerce Clause protects other States from efforts by one state to isolate itself in the stream of interstate commerce from a problem shared by all. (Philly)
A health and safety ordinance that discriminates against interstate commerce will be invalid if reasonable and adequate non-discriminatory alternatives are available. (Dean Milk)
17

Law that favors the government in business or investment activities but treat all private enterprises, whether local or non-local, the same do not discriminate against interstate commerce under Commerce
Clause. (United Haulers)

Facially discriminatory taxes
o
Facially discriminatory fees (and taxes) levied on out-of-state products but not on the same in-state products violate the dormant Commerce Clause. (Chemical Waste)
o
Also, giving rebates (subsidies) to the in-state places engaging in the same behavior as out-of-state places is not a constitutional workaround (West Lynn)

Exceptions to facially discriminating laws being per se invalid:
o
Certain quarantine laws that restrict potentially tainted products from shipping across state lines (Maine v. Taylor)
 Quarantine laws cannot discriminate based on origin of the noxious item. The laws prevent traffic of noxious articles, regardless of their origin. (Philly)
 Quarantine laws apply to things that spread direct contagion or evils- not waste. (Philly)
o
Market participant exception
 If State is a market participant, law favoring state will be upheld
 A state/ city may discriminate in favor of its own residents when it functions not as a “regulator” of the market but as a market participant, even in the case of overt, facial discrimination
 Market participant= government acts as a buyer or seller of goods or services or engages in a program of subsidies or other economic incentives to aid in-state businesses
 If the state is acting as a market participant, the dormant commerce clause does not apply.
 When participating in the market, the state cannot use its leverage in that market to exert a regulatory effect in a market in which it is not a participant. (State used its leverage in the timber market
to control what happened in the timber processing market) (South Central)
Philadelphia
NJ law prohibited importation of out-of-state waste

Court invalidated the waste import ban. State cannot prohibit importation of environmentally destructive substances solely because of their
v. NJ
to protect public health, safety, and welfare from the
source of origin.
consequences of excessive landfill developments.

Although management of landfills is a legitimate end, one state cannot “isolate from a problem common to many by erecting a barrier
Challenged by potential importers—cities and other
against the movement of interstate trade.”
states the needed places to dispose waste—and by

Court rejects that this is a quarantine measure, because quarantine laws merely prevent traffic of noxious articles, regardless of their origin.
private landfill operators in NH.

Protectionism can reside in legislative means (intent) and legislative ends (meaning that you cannot accomplish your legitimate purpose/
intent without discriminating against out-of-state commerce), unless there is some good reason, apart from geographical origin, to do so.

NJ may have had a legitimate interest in limiting the waste in its landfills, but it cannot accomplish those ends by discriminating against
out-of-state commerce unless there is some good reason, apart from geographical origin, to do so.
Maine v.

Court upheld a state ban on the importation of certain baitfish into Maine because of the adverse biological consequences of nonnative species and parasites
Taylor

Court upheld express discrimination against interstate commerce where the statute services a legitimate local purpose that cannot be served as well by an available nondiscriminatory means
Dean Milk v.
Challenged a home-processing requirement for milk

Court struck down the health and safety regulation because less discriminatory alternatives are available.
Madison
sales. Madison passed an ordinance making it

Health and safety regulation cannot discriminate against interstate commerce “if reasonable nondiscriminatory alternatives adequate to
unlawful to sell milk in the town unless it was
conserve legitimate local interests are available.
Regulation of
pasteurized and bottled at a plant within a 5-mile

Madison tried to justify the ordinance by saying processing the commodity in close proximity to where it was harvested/ produced ensures
outgoing
radius. Home processing cases involve a perishable
that the product was safe for market (both in and out of state). However, court suggested there was reasonable nondiscriminatory
commerce
commodity that must be pasteurized, graded or
alternatives to serve that interest, such as having an inspection requirement.
specially bottled or packaged before it is ready for
retail sale.
C&A Carbone To ensure enough trash was going to its trash

Court struck down solid waste control ordinance
v. Clarkstown
processing center (in order to accrue enough

Discrimination against interstate commerce in favor of local business or investment is per se invalid unless the municipality has no other
revenue to pay for the new plant), Clarkstown
means to advance a legitimate local interest (which is evaluated under rigorous scrutiny). D has a variety of nondiscriminatory means to
passed an ordinance stating that all nonhazardous
address its local waste disposal problems.
trash originating in Clarkstown or passing through

The objective of fundraising is not adequate to justify discrimination against out-of-state business.
Clarkstown facilities must be processed at the new

This ordinance involves interstate commerce. Although the ordinance has the effect of directing local waste to a local facility, the economic
facility (this is called a flow-control ordinance).
effects reach interstate commerce. P’s facility received waste from out of state. D’s ordinance required P to send the nonrecycled portion of
Carbone was a recycling plant in town and was now
the waste to D’s local facility, which increased P’s costs and hence the costs to out-of-state sources of waste. The ordinance also deprives
required to send all nonrecyclable trash to the new
out-of-state businesses access to D’s local market.
center.
United
Government created a waste authority and the waste

Court upheld favorable public treatment of waste regulation, when treating all private (in-state and out-of-state enterprises) the same
Haulers Ass’n
authority had sole ability to process and dispatch

The Commerce Clause does not prevent states from favoring government facilities if in-state private businesses are treated the same as outv. Oneidagarbage for disposal. To cover operational costs, the
of-state businesses.
Herkimer
authority charged trash hauler fees called tipping
18
South-Central
Timber v.
Wunnicke
fees for delivering waste to the facilities at a rate
much higher than open market rate. Counties passed
flow-control ordinances to say that all solid waste
generated within the counties must be delivered to
the authority’s facilities.

Alaska government proposed to sell state-owned
timber at a substantially reduced price. To buy the
timber, buyer had to agree to process the timer in
state facilities prior to export.





Law that favors the government in waste management activities but treat all private enterprises, whether local or non-local, the same do not
discriminate against interstate commerce under Commerce Clause.
Trash disposal is a traditional government activity. States may favor the government in this area. The ordinances in this case benefit a
public facility and disfavor all private companies the same.
If states could not treat public and private entities differently under the Dormant Commerce Clause, courts would have to continually
interfere with state and local government actions.
State may impose burdens on commercial transactions within the market in which it is a participant, but may not go further and impose
conditions that have substantial regulatory effect outside of that particular market.
Market participant exception does not apply if the state imposes conditions, whether by statute, regulation, or contract, that have substantial
regulatory effect outside of that particular market.
When participating in the market, the state cannot use its leverage in that market to exert a regulatory effect in a market in which it is not a
participant. (State used its leverage in the timber market to control what happened in the timber processing market)
State laws that are facially neutral are struck down if the law has an impermissibly protectionist purpose or effect or Residual Balance test.
Impermissible protectionist purpose or effect

A state cannot place itself in a “position of economic isolation” (aka restrict interstate commerce), even if it claims that the limitation is just a consequence of increasing in-state economic welfare with the goal
of improving citizens’ health and welfare (Baldwin)

A state may not use its admitted powers to protect the health and safety of its people as a basis for suppressing competition. (H.P Hood)
Under Residual Balance test (Pike balance test), whether burden imposed on interstate commerce is clearly excessive in relation to putative local benefits

A state law that furthers a legitimate local public interest and only incidentally affects interstate commerce will be upheld unless the burden imposed on such commerce is clearly excessive in relation to putative
local benefits. AKA

If statute that regulates even-handedly (applying equally to in-state and out-of-state companies) and does not facially discriminate against interstate commerce, a balancing test will determine whether the burden
on interstate commerce outweighs the local benefits to the state.
The extent of the burden to be tolerated is dependent on the nature of the local interest involved and on whether it could be promoted with lesser impact on interstate activities (Pike)
Baldwin v.
New York Milk Control Act prohibited the sale of

Struck down law because its purpose was to prevent foreign producers from. undercutting in-state producers
G.A.F. Selig
milk imported from another state by third parties,

This law technically applied to both in-state and out-of-state milk producers, but its purpose was to prevent out-of-state producers from
unless the price paid to the producer in the other
undercutting in-state producers. Therefore, the law is unconstitutional.
state reached at least the minimum amount required

A state cannot place itself in a “position of economic isolation” (aka restrict interstate commerce), even if it claims that the limitation is just
to be laid to local New York milk producers.
a consequence of increasing in-state economic welfare with the goal of improving citizens’ health and welfare
H.P Hood v.
Hood was a milk producer based out-of-state. Mass.

Struck down a NY restriction on licenses to produce milk if Commissioner determines license would create “destructive competition” as
Du Mond
Denied Hood a license to opening receiving depots
applied to an out-of-state application
in-state in order to promote the sale of milk by in
A state may not suppress interstate commerce as a means of protecting the health and safety of its people.
state milk producers. State bases its denial on the

Although states may impose even burdensome regulations in the interests of local health and safety, their attempts to advance their own
grounds that limitation upon interstate business will
purely commercial interests under the guise of public health and safety by curtailing the movements of articles of interstate commerce are
protect and advance local economic interests.
permissible.

Baccus
Decision invalidated a Hawaii statute that exempted

Struck down a Hawaii exemption from state liquor tax for a brandy/ wine made from local producers (indigenous plants and pineapples)
Imports v.
from State’s 20% wholesale liquor tax a brandy that

The law had a purpose and effect of discriminating against local products
Dias
used plants indigenous to Hawaii and had a tax

Although the exemption was general in nature and did not specify an indigenous product, there was evidence that it was enacted to promote
exemption for fruit wine.
the local pineapple wine industry
Exxon Corp v. Maryland passed a statute prohibiting out-of-state

Court upheld an MD prohibition on ownership of retail service stations by petroleum producers or refiners, where there are no local
Governor of
producers or refiners from operating retail service
producers or refiners.
Maryland
stations within the state. No oil is refined or

The law does not discriminate against interstate goods, nor does it favor local producers and refiners. Since there are no local producers/
produced in the state of Maryland. Issue is whether a
refiners, out-of-state producers and refiners cannot claim disparate treatment between interstate and local commerce.
law can be considered protectionist if there is no

The law also does not protect in-state retail gas stations from competition by forcing out-of-state oil companies to divest themselves of gas
equivalent economic actors on either side of the
stations, because there are many out-of-state owners of in-state gas stations who will not be affected by this law.
state border.
19
Minnesota v.
Clover Leaf
Creamary
Hunt v.
Washington
State Apple
Advertising
Pike v. Bruce
Church
Kassel v.
Consolidated
Freightways
Corp.
Bibb v.
Navajo
Freight Lines
Southern
Pacific Co. v.
Arizona
MN banned retail sale of milk in plastic,
nonreturnable containers but permitted sales in other
types of nonreturnable containers, such as
paperboard. Legislature argued that the statute was
passed to address environmental concerns. Clover
Leaf said actual purpose was to promote the
interests of certain segments of local dairy and
pulpwood industries at the expense of economic
interests of other segments in dairy and plastics
industry.

NC passed a law stating that applies could only have
US grade on them, which prevented one of the
largest apple producers (from WA) from using its
superior in-state standard
Under AZ law, Bruce Church was ordered by state
to stop shipping their uncrated cantaloupes to CA to
be packed and instead pack them in AZ and identify
them as coming from AZ. Compliance would have
been very expensive.


IA passed a statute prohibiting the use of most
trucks longer than 55ft within the IA borders for
purpose of public safety. Con. Freight. Used 65ft
twin trucks on a route that went through IA.
Consolidated could either use other sized trailer
operations, detach its trailers at IA border, or divert
trucks around the state.


IL passed a law requiring all commercial trucks
passing through borders to have curved mudguards
on rear wheels. Other states required straight
mudguards. Navajo challenged the law because
changing mudguards according to state law
constituted an excessive burden on interstate
commerce.
Southern Pacific, operator of large trains, sued AZ
for a statute limiting the size and number of
passengers on the train. So. Pa. had to spend a lot of
time, money and energy adopting to the law.


















Court upheld MN law banning retail sale of milk in plastic nonreturnable containers but permitting sale in nonreturnable containers made
of pulpwood.
Key inquiry is whether the incidental burden that the statute imposes on interstate commerce is clearly excessive in relation to local benefits
it confers 
o
burden imposed on interstate commerce is relatively minor because the statute permits all milk products to freely move across
state lines and most milk manufacturers already produce both plastic and paperboard containers.
o
The little amount of money that would need to be invested as a whole by the industry does not outweigh benefit that MN
businesses would receive and substantial state interests in environmental protection.
No apparent approaches with a lesser impact on interstate activities that satisfy the state interests at stake
Statute prohibits all producers—both in and out of state—from the activity. Therefore, no discriminatory cause or effect.
Struck down NC requirement that Apples bear only US/ standard grade, not state (Washington) grade
Even though it was neutral on its face, the State raised the costs of doing business in the market for Washing apple growers and dealers
while leaving in-state growers unaffected.
Would have Forced Washington to downgrade
Court invalidated the law, BUT it is unclear if balancing test was really applied.
Court found that AZ had a legitimate state interest in having all cantaloupes shipped form its borders packed uniformly and labeled with
their point of origin, but that that cannot constitutionally justify the requirement that Bruce Church build and operate an unneeded $200K
packing plant in the state. Financial burden is excessive in relation to local benefits.
Unsure whether balancing test applied because portions of the opinion suggest that AZ’s order was invalid because it was facially
discriminatory
Struck down
Purported safety benefits of using 55ft long trucks (singles) was insufficient to outweigh significant costs to interstate commerce caused by
increased fuel and operating costs of diverting trucks around IA.
No evidence that bigger trucks cause more accidents, weak reasoning for passing the law
IA’s law makes it out of step with the laws of all other midwestern and western states, which substantially burdens the interstate flow of
goods by truck. This causes the companies more money to adjust and makes transportation more inefficient as a whole
Balancing test: If a state’s safety interest is found to be illusory and its regulations are found to significantly impair federal interest in
efficient and safe interstate transportation, the state law is invalid.
Struck down
Installing curved mudguards on all Navajo trucks would be burdensome to its interstate commerce.
Any safety benefit derived from using curved mudguards would be insignificant relative to installation costs.
Other states requiring straight mudguards, meaning that trucking companies passing through IL would be required to switch out its
mudguards before crossing state borders.
More akin to Kassel
Struck down
“We think, as the trial court found, that the Arizona Train Limit Law, viewed as a safety measure, affords at most slight and dubious
advantage, if any, over unregulated train lengths and passes beyond what is plainly essential for safety”
Financial hardship in compliance outweighs the slight and dubious safety advantages
P&I- Law does not have protectionist purpose and applies equally to residents and non-residents, but protects the rights of
citizens from state laws that violate fundamental rights
Interstate Privilege and Immunities Clause of Article IV

Art. IV, § 2- The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in several states
20


Protects fundamental rights of individual citizens and restrains state efforts to discriminate against out-of-state citizens (discrimination by states against citizens)
What are privileges and immunities?
o
Fundamental rights that each citizen has as part of the union
o
Applies only to citizens, not corporations (not government, for same reason as corp.)  If a corp. discriminates against a person, it cannot be challenged under P&I (because P&I cannot be asserted
against a corp.)
o
Congress can regulate in ways that States cannot under Dormant Commerce Clause, but P&I may confer affirmative rights on individuals that Congress cannot waive
o
Applies only to “fundamental rights” not to all economic activity
o
No market participation exception

Two-step test: The P&I clause does not preclude discrimination against nonresidents when: (intermediate scrutiny- closely related means to closely related ends) (United
Building)
o The ordinance burdens one of the privileges or immunities protected by the clause (a fundamental right); and

o
The clause protects activities such as pursuit of a livelihood, the transfer of property, right to possess property of any kind, access to state’s courts, right to travel between states
The municipality has a substantial reason for the difference in treatment of in-state and out-of-state citizens (the restrictions must be closely related to the
advancement of a substantial state interest)

A municipal ordinance favoring its in-municipality residents over non-municipal citizens for employment is subject to the same standards of review as a state law adversely impacting out-of-state citizens
(United)
United
Construction company challenged a Camden

Case remanded because of second prong of test
Building &
ordinance requiring that at least 40% of the

Rejects market participant exception in P&I  Whether a state is a market participant or not is irrelevant
Construction
employees of contractors and subcontractors

Two-step test
Trades
working on city construction projects be Camden
o
Burdens a fundamental right  Camden’s ordinance burdens right of travel [to work] and right to possess property [money not being
Council v.
residents. Challenged based on Dormant commerce
earned that could be used to obtain property]
Camden
clause and Privileges and Immunities.
o
Municipality substantial reason  Not enough evidence to determine, so case is remanded.
Schoenfeld v.
NY Law regarded state bar requirements of

Law violates P&I Clause (does not fall under exception)
Schneiderman maintaining a local office. Person admitted to NY

Two-step test
(in-class ex.)
Bar but not living in NY cannot practice in NY
o
Burdens a fundamental right  Yes. The restriction on lawyer’s ability to work violates the fundamental right of out-of-state citizen to
unless the law practice has an office in the state
work in the state.
OR you fulfill requirements of being accessible,
o
Municipality substantial reason  No. The restriction is not closely related to the advancement of a substantial state interest.
communicative with client, etc. (can be a virtual

Substantial state interest: Expediency (clients need to have ready access to the attorney, attorney needs to be close to courthouse to
presence this way)
show up, file papers, attorney needs to talk to witnesses, etc.)

This is not closely related to advancement of a state interest because physical office is not very important anymore in
accomplishing the state interest.
New
Woman lived in Vermont and passed the New

A state violates P&I Clause when it limits bar admission to state residents.
Hampshire v.
Hampshire bar but was denied admission to the bar 
Two-step test
Piper
because she was a nonresident. She challenged
o
Burdens a fundamental right  Yes. Burdens fundamental right to work.
based on Privileges and Immunities Clause

Court also states that, like occupations considered in earlier cases, the practice of law is important to the national economy and the
legal profession has an important role in representing people who raise unpopular federal claims.

State substantial reason  In this case, Court held that the State’s argument that nonresident bar members would be less likely to
become and remain familiar with local rules, behave ethically, and be available for court proceedings did not meet the test of
substantiality and that the means chosen do not bear the necessary relationship to the state’s objectives.
Federal Preemption of State Authority

Supremacy Clause, Art. 9- Federal Laws are the supreme laws of the land

Congress may preempt state power by:
o Express statement (express preemption);


Congress states its intent to preempt state law in the statute
Only issue is whether the state statute falls within the preempted area
21
o
Implied preemption
 Implied occupation of the regulatory field (field preemption); or



Implied preclusion of conflicting state regulations (conflict preemption)


Rice v. Santa
Fe Elevator
Corp.
Hines v.
Davidowitz
Florida Lime
& Avocado
Growers v.
Paul
PSE&G v.
State Energy
Resources
Conservation
&
Development
Comm’n
(field
preemption)
Gade v.
National
Solid Waste
Management
(Conflict
preemption)





Requires a clear showing that Congress meant to occupy the field and displace states from regulating the subject matter.
Two ways to demonstrate field preemption: (Rice)
o
When the scheme of federal regulation is so pervasive that a reasonable inference can be made that Congress left no room for the States to supplement it
o
When the Act of Congress touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of the state laws on
the same subject.
The primary purpose of the Court in evaluating existence of conflict preemption is whether, under the circumstances of the case, the state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress (Hines)
No clear formula, but Courts often look for the following to rule that federal rule preempts a state’s:
o
Need for a uniform national policy (Hines)
o
Physical impossibility of complying with the federal and state law (Hines)
o
Health and safety issue (Florida Lime)
Supreme Court invalidated the Pennsylvania Alien Registration Act, holding that it was preempted by the federal Alien Registration Act
Although the two laws did not seem to conflict in anyway, the Court cited the broad national power over aliens and the fact that the Constitution permitted only one uniform system (the federal
one)
Court upheld a CA law barring avocados that did not meet the state’s minimum oil content standard, even though the avocados that could not meet the standard might meet the federal standard.
This did not seem a likely area for exclusive federal regulation because the federal law was simply setting a minimum standard.
Federal standards are supposed to be minimum??
CA passed the Warren-Alquist Act to help regulate
the storage and disposal of nuclear waste. Section
25524.1(b) provided that before a nuclear power
plant could be built, the State Energy Resources
Conversation and Development Commission had
to determine on a case-by-case basis that there
would be “adequate capacity” for interim storage
of the plant’s spent fuel at the time the plant
required that storage. There would be a.
moratorium on certification of new plants until the
State commission found that there was a
demonstrated technology approved by the US for
permanently disposing of high-level nuclear waste.
PSE&G alleged that the regulations were
preempted under the Supremacy Clause of the
Constitution by the Atomic Energy Act of 1954.
US Atomic Energy Act addressed nuclear waste in
war, and creation of weapons.








State law upheld.
A state may impose restrictions on an industry even when the federal government also regulates that industry, as long as the state acts for a
purpose not preempted by Congress.
Test for preemption: Whether the matter onwhich the state asserts the right to act is in any way regulated by the federal government.
The state law does not frustrate the purposes and objectives of Congress. Congress clearly intended to promote nuclear power plants but it
has allowed the states to determine, as a matter of economics, what types of power plants should be built.
NRC has control over the safety aspects of nuclear energy generation, but no authority over the economic question of whether a particular
plant should be built. Thus, a state moratorium on nuclear power plants is preempted if based on safety concerns, but not if based on
economic concerns.
Because there was a valid economic rationale, not safety-related, for D’s moratorium, the state is not preempted.
Struck down licensing provisions for hazardous waste workers, even though the relevant OSHA regulations concerned only worker safety
and the state regulations were aimed at both worker safety and public health
Conflict preemption: federal scheme was interpreted to forbid duplicative regulation
22
Separation of Powers
Lens through which courts view the scope of the President’s inherent powers.
Tripartite Analysis- President’s power to take executive action (Youngstown)
 Congressional authority (Max power)o
o
o

Congressional silence (Zone of twilight)o
o

When the President acts pursuant to express or implied authorization of Congress, he can rely on both his own powers and Congress’ (most common variety of executive action)
This is supported by the “strongest of presumptions and the widest latitude of judicial interpretation”
Burden of persuasion would rest heavily upon any who might attack it
When the President acts in the absence of an express grant or denial of Congress’ powers, he acts under the aggregate of his own independent powers.
In areas where President and Congress may have concurrent authority or in situations where distribution of power is uncertain, any actual test of power is likely to depend on the imperatives of the
events and contemporary imponderables rather than on the abstract theories of the law.
Incompatible with Congress (Lowest ebb)o

Still
Youngstown
v. Sawyer
(Steel
Seizure
Case)
When the President acts in a way that is incompatible with the express or implied will of Congress, he may rely only on the powers expressly granted to him by the Constitution.
Steelworkers
went on a
nationwide
strike during
Korean War.
Citing the
serious national
interest in steel
production,
Pres. Truman
ordered Sawyer
(Commerce
Secretary) to
seize the steel
mills and keep
them running.




Order struck down.
Originalist/ formalist
The President’s power to issue an order must stem either from an act of Congress or from the Constitution
The President didn’t rely on any statutory authority to seize real property  Congress didn’t grant seizure powers to the President in labor disputes, so the President’s
authority must come from the Constitution.

There is no express authority in the Constitution that justifies the President’s actions. Article II vests “[t]he executive power” in the President without qualification. Sawyer/
government uses this to justify that the implied powers granted from Article II give President power to do this. Court rejects this.
o
President’s actions cannot be supported by his general executive power, as the Constitution charges the Executive branch with “faithfully executing the laws,” not making
the laws themselves.
o
In response to defendant saying President was exercising his war powers, Court said that the power to make war decisions and the power to seize private property for the
resolution of labor disputes is attenuated.

Court also states that Congress expressly rejected the use of seizure to solve labor disputes as unconstitutional when it considered the drafting of the Taft-Harley Act.
Jackson concurrence (most influential opinion of Steel Seizure Case)

Congress denied power to the President in the present case under the Taft-Hartley Act, so the third scenario is implicated.
o
This means he is limited to only his own branch’s power, which is to “faithfully execute the laws,” not make them.
President is checked by 5th Amendment’s prohibition on depriving citizens of life, liberty or property without due process.
Enumerated Powers & Non-War
Executive Function Components within the Constitution
Executive Function is established in Article II of the Constitution

Art. II, § 1- Vesting clause- executive power shall be vested in the President

Art. II, § 2o
Commander in Chief of Army, Navy & Militia when called into actual service of United States (with opinions from executive department officers)
o
Reprieves and pardons, except in cases of impeachment
o
Treaties, with consent of 2/3 of Senate
o
Appointments (with advice and consent of Senate)
o
Recess Appointments

Art II, § 3
o
“Shall from time to time” give state of the union to Congress
o
Convene both houses “on extraordinary occasions”
23
Receive ambassadors and other public ministers (“reception” clause)

Reception Clause implies power to recognize other nations (Zivotofsky)
o
“Shall take care that the laws be faithfully executed”

To faithfully execute the power, The President’s power to issue an order must stem either from an act of Congress or from the Constitution (Youngstown)
o
Commission all US officers
Art. II, § 3
o
Impeachment for “treason, bribery, or other high crimes and misdemeanors”
Art. I, § 7- President has power to veto any act of Congress, but Congress may override a presidential veto by 2/3
o


Executive Orders in Non-War
Mandal standard: (Trump)  Executive Orders for immigration bans (for reasons other than religion)

When the executive exercises the delegated power over immigration negatively on the basis of a facially legitimate and bona fide reason, the court will not examine it further AND applies a rational basis
review.

The Court does not consider derogatory statements made outside the four corners of the documents and only considers whether there are rational and valid grounds for the ban.

The basis of the EO cannot solely be based on animus
Exam Tip: Must ensure the policy is constitutional too, in addition to whether the EO is a valid exercise of executive power AND note if classification is based on religion, then Court must employ strict scrutiny.
Dames &
Because of the hostage crisis in Iran, the US government had cases

Executive Order is upheld
Moore v.
against the Iranian government go through a special tribunal that

Broad view of implied powers from Youngstown
Reagan
prohibited final judgment, but allowed prejudgment attachment. Dames

The president has the power to suspend pending claims against foreign governments where such action is necessary to
had received Iranian US property as part of a prejudgment attachment
the resolution of a major foreign policy dispute and where Congress acquiesced.
after suing the Iran Atomic Energy Organization. Once the hostages

If the President determines that settlement is a necessary to resolve a foreign policy dispute between the US and another
were released, US conceded to terminate all pending litigation against
country and Congress has acquiesced in the executive order, the exercise of the executive power is constitutional. The
the Iranian government and refred all the cases to settlement through
Court specifically says it does not condone broad use of presidential power to settle judicial claims against foreign
binding arbitration. Regan issued the concession through an executive
governments
order. In the executive order, the US government seized all Iranian

The International Emergency Economic Powers Act permits President to regulate and nullify property in which a
assets. Even though a judge had already entered final judgement in
foreign nation has interest. The exercise of executive power is closely related to the congressional act, which means that
favor of Dames and Moore, the executive order caused the judge to stay
executive is at its greatest. (Youngstown Bucket 1)
the judgement.

Executive order—Not a treaty
Trump v.
Placed entry restrictions on certain nationals of Chad, Iran, Iraq, Libya,

Travel ban upheld
Hawaii
North Korea, Syria, Yemen and Venezuela on the ground that those

Mandal standard: When the executive exercises the delegated power over immigration negatively on the basis of a
countries had inadequate systems in place for managing and sharing
facially legitimate and bona fide reason, the court will not examine it further AND applies a rational basis review.
information about their nationals to the US. Trump had publicly stated

A court reviewing an executive order restricting entry into the US of persons from specified nations on national-security
on multiple occasions his intentions to ban immigration of Muslims to
grounds must employ rational-basis review.
the United States. Plaintiff alleges that this was the purpose of the

President’s actions are authorized by Immigration and Naturalization Act: Whenever the President finds that the entry of
executive order, and that the official objective was used just to make
aliens would be detrimental to US interests, he may suspend the entry of all aliens or any class of aliens or
the executive order legal.
nonimmigrants or nonimmigrants or impose entry restrictions that he feels are necessary and appropriate.

The Court did not consider Trump’s derogatory statements made outside the four corners of the documents and chose
only to consider the rational and valid grounds for the ban.

Does not discuss Youngstown but would fall under Category 1: Explicit Congressional Authoirty

Takeaway: A presidential proclamation placing entry restrictions on foreign nationals is sufficiently justified by
national-security concerns to survive rational basis review
o
Court finds this is not motivated by animus; based on evidence that the suspension has a legitimate
grounding in national security (despite all the anti-Muslim statements as part of the campaign)
Congress Infringing on Infringing in Inherent Powers of the Executive
Zivotofsky
v. Kerry
When Mrs. Zivotofsky requested a birth certificate and passport for her son, who was a US citizen living
in Jerusalem, she requested that her son’s birthplace be listed as “Jerusalem, Israel.” The US federal
government, because of its attempt to stay neutral in Israeli-Palestinian territorial conflict, said it could
only say “Jerusalem”

Executive stance: Maintain neutrality by only listing “Jerusalem,”



Foreign Relations Authorization Act unconstitutionally interferes with the President’s
power to recognize foreign nations. Congress infringed on executive’s power.
President has exclusive power to recognize foreign nations.
Court struck down the Congressional law in favor of Executive Power
24
Congressional stance: Foreign Relations Authorization act said that documents could list birthplaces as
“Jerusalem, Israel” upon the request of the applicant.


Art II reception clause (of ambassadors) implies power to recognize other nations
Other foreign relations powers in Art. II (treaties, appointing ambassadors) support this
view
Foreign Military Affairs (Post-Hostility) and Treaty Power
Presidential Power to Make Treaties

President has the power to make treaties, with consent of 2/3 of Senate
o
An international treaty signed by the President is not binding to states unless the treaty is “self-executing” (i.e., treaties that do not require subsequent legislation to take effect) (Medellin v. Texas)
o
To enforce an international obligation as “self-executing” the President must be authorized by Constitution or an act of Congress. (Medellin v. Texas)
Congressional War and Treaty Powers

Congress’ war powers include the power to remedy problems created by war even after hostilities are terminated (Woods v. Cloyd Miller)

Congress can use its treaty power in a way that might infringe on states rights granted by the 10 th Amendment, but the treaty cannot violate the Constitution or be based on constitutional power that executive
branch doesn’t have.
o
Congress can through a treaty exercise power of the States that the Tenth Amendment might otherwise constraint (Missouri v. Holland)
o
But Congress cannot through a treaty exercise power to assert authority the Constitution does not confer or that otherwise violates the Constitution (Reid v. Covert)

President cannot force international treaty obligations upon a state unless the treaty is self-executing. (Medellin)
o
Self-executing- treaties that do not require subsequent legislation to take effect
o
Self-executing treaties immediately become federal domestic law.

State must adhere to self-executing international treaties. (Medellin)

If a treaty is not self-executing, Congress must make domestic laws that carry out the treaty obligations to bind the states to its terms. (Medellin)

Congress can implement a valid treaty by statute using (Missouri)
o
Supremacy Clause- Treaties made under authority of the US are the supreme law of the land
o
Necessary and Proper Clause- Statutes passed to implement a valid treaty are constitutional.
Congressional Foreign Affairs Powers

No specific grant to Congress regarding foreign affairs, but Courts recognize that Congress has this power.

However, Congress cannot usurp the President’s authority over foreign affairs, i.e., recognition power in Zivotofsky
Medellin v.
President Bush committed to complying with the treaty obligations of the
Unless a treaty is “self executing” only Congress can make domestic laws that carry out state treaty obligations.
Texas
Vienna Convention, which meant that the US would respect the judgements
Absent Congress making a statute, a treaty is not binding on states or private parties unless it is self executing
of the International Court of Justice. The International Court of Justice

If a treaty is a “self executing” it automatically becomes federal domestic law – which means claims can arise
ordered the United States to re-review a death penalty case in Texas because
under companies
it believed that the case violated the Vienna Convention. Texas was not

Checks and balances: If a President wants a self executing treat, he/she must negotiate that and present it to the
willing to re-review the case.
Senate for approval in the first instance

Since this treaty is not self-executing, it is not binding domestic law.

Only “self-executing” international law (i.e., treaties that do not require subsequent legislation to take effect)
immediately becomes federal law. To enforce an international obligation as “self-executing” the President must be
authorized by Constitution or an act of Congress. This prevents the President from turning a non self-executing
treaty into a self-executing one.
Missouri v.
Congress tried to pass an act that would protect migratory birds. The act was

Migratory Bird Treaty Act was a valid exercise of the federal government’s treaty powers.
Holland
struck down. The executive branch then tried to achieve the same result by

Congress can use its treaty power to implement measures that wouldn’t be constitutional under its other
passing the Migratory Bird Treaty Act through a treaty with Great Britain.
authorities.
This would bypass the system that had originally struck the migratory birds

This does not violate states’ rights under 10th Amendment. 10th Amendment reserves to the states only those
act down. Missouri filed a lawsuit, saying that the Treaty was an
governmental powers that haven’t been delegated to the federal government. Treaty power is delegated to federal
unconstitutional interference with the powers reserved for to the states by the
government.
th
10 Amendment.
Reid v.
While at a US military base abroad, as wives of military members, Covert

Treaty struck down because it violated 5th and 6th Amendment rights.
Covert
and Smith were accused of murdering their husbands. Pursuant to the executive

A treaty or executive agreement may not authorize a civilian citizen to be prosecuted by a military tribunal abroad.
agreements, both women were tried and convicted without a jury trial or the

Because Bill of Rights applies to civilian citizens abroad, citizens have a right to 5th and 6th Amendment. A treaty
traditional protections of the Bill of Rights by U.S. court-martial under the Uniform
that violates the Constitution by not allowing citizens their 5th and 6th Amendment rights is therefore invalid.
Code of Military Justice (UCMJ) in Great Britain and Japan, respectively. Covert
25
petitioned for a writ of habeas corpus, arguing that her conviction violated her Fifth
and Sixth Amendment rights to trial by jury.
War, Terrorism, Emergency
Legislative and Constitutional Constraints/Powers During War/ Terrorism/ Emergency
The President, Congress & War Powers Resolution (1973)

War Powers Resolution was adopted in response to the Vietnam War over President Nixon’s veto

Seeks to prevent the President alone, or the President and Congress acting together, from instituting war covertly or inadvertently

Allows president to deploy armed forces in certain circumstances and to notify Congress in a formal way. Then Congress can ratify or not.

Key Provisions:
o
§ 3 Consultation: Presidential consultation with Congress when hostilities are imminent
o
§ 4 Reporting:

Presidential reporting to Congress within 48 hours when troops are “introduced” into hostilities, the territory, airspace or waters of a foreign nation or in numbers which substantially enlarge United
States Armed Forces equipped for combat already located in a foreign nation.
o
§ 5: Within sixty days after a report is submitted or required to be submitted, the President “shall terminate any use of the United States Armed Forces with respect to which such report was submitted”
unless Congress

Has declared war or has enacted a specific authorization for such use of the United States Armed Force

Has extended by law any such sixty-day period, or

Is physically unable to meet as a result of an armed attack on the United States

Prof says War Powers Act is probably unconstitutional
Constitution: Emergency Provisions

If there’s a declaration of a state of emergency, the ordinary rule of law is suspended

Article I, § 9, cl. 2: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

Article I, § 8, cl. 15 and Article II, § 2, cl 1: calling forth and governing militas

Article I, § 10: “No state shall, without consent of Congress, lay any duty of tonnage, keep troops or shops of war in time of please... or engage in war, unless actually invaded, or in such imminent danger as will
not admit of delay.

Article IV, Section 4: “The United States shall guarantee to every state in this union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of
the Executive (when the legislature cannot be convened) against domestic violence” [Guarantee Clause – if state government is experiencing a democratic assault, Federal Government can step in]

Third Amendment: [Quartering Provision] No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Fifth Amendment: [Fifth Amendment] Capital and other serious crimes require the presentment or indictment of a grand jury “except in cases arising in the land or naval forces, or in the militia, when in actual
service in time of war or public danger.
Emergency Statutes:

Posse Comitatus Act: “Whoever... willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under title or imprisoned

Exceptions to Posse Comitatus
o
Insurrection Act: President may deploy military forces to counter insurrections, domestic violence and unlawful conspiracies, if “the constituted authorities of [a] state are unable, fail, or refuse to protect
their citizens’ rights [right called on this for looting during BLM, left called on this for capital riots]
o
Stafford Act: State of emergency can be declared to include events such as natural disasters where federal assistance is required to “save lives and to protect property, public health and safety”
Authorization for Use of Military Force (AUMF) – 2001: Authorizes President to take “all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized,
committed or aided the terrorist attacks that occurred on 9/11 or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the U.S. by such nations, organizations, or
persons.”

It also comprised a congressional authorization to enter into hostilities under the War Powers Resolution

Gave President broad authority to use force against nations, organizations or persons that President determines aided terrorist attacks (no particular enemy was defined)

Bush used AUMF to wage war in Afghanistan. Many asserted to be against the US were brought to Guantanamo Bay, Cuba, and treated them as unlawful combatants, which meant they could be subject to trial
by military tribunal and were not entitled to habeas corpus.
Military Commissions Act (passed after Hamdan)

Provides legislative authorization for GB military commissions SC said was lacking

Authorizes military commission jurisdiction over a range of offenses, including conspiracy and material support for terrorism

Eliminates habeas corpus jurisdiction over noncitizen enemy combatants at Guantanamo (and elsewhere)

Defines unlawful combatant as
26
“A person who has engaged in hostilities against the US or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, Al Qaeda or associated forces)” ; or
A person who, before, on, or after the date of the enactment of the MCA, has been determined to be an unlawful enemy combatant by CSRT or another competent tribunal established under the authority of
the president or the secretary of defense

MCA provides the President with authority to try such alien unlawful combatants by military commissions, for any offense made punishable by the law of war
MCA expended DTA’s removal of habeas jurisdiction to all overseas enemy combatant detainees, regardless of where they were being held.
o
o
Case Law
Constraints on the Executive Branch that exist even during times of war

Constitutional protections apply even in time of war or public danger (Executive branch is constrained by it) (Youngstown)
o
President cannot suspend the writ of habeas corpus (Ex Parte Milligan) (only Congress can) (Merryman)
o
Cannot try civilians in military tribunals (Ex Parte Milligan)

But Fifth Amendment relaxes the requirement for a grand jury indictment for military cases in actual service in time of war or public danger.

Non-Detention Act- no citizen shall be imprisoned or otherwise detained by the US except pursuant to an act of Congress
Executive Detention and Trial of Enemy Combatants

Habeas Corpus: a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention [prevents people
from being thrown into jail indefinitely] but under Article I, Habeas Corpus can be suspended during rebellion, invasion, or public safety
Habeas corpus for Lawful and unlawful combatants

Both lawful and unlawful combatants are subject to capture and detention as prisoners of war, but unlawful combatants are additionally subject to trial and punishment by military tribunals for violations of the
law or war. (Quirin)

Lawful combatants (Quirin)
o
Subject to capture and detention as prisoners of war with prisoners of war status
o
Wearing a country’s military uniform is an indicator of a lawful combatant

Unlawful combatants (Quirin)
o
Unlawful combatants may be tried by a military tribunal without the right to habeas corpus
o
Subject to capture and detention as prisoners of war, but are not afforded prisoners of war status
o
The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy or an enemy combatant who
without unform comes secretly through the lines for the purpose of waging war by destruction of life or property are familiar examples of belligerents who are generally deemed” unlawful combatants
o
Ex of unlawful combatants: secret spies (Quirin), terrorists

US citizenship is irrelevant in determining lawful and unlawful combatant status (Quirin)
Habeas corpus for enemy combatants

There is no reason that the government cannot hold one of its own citizens as an enemy combatant. Quirin held that citizenship does not preclude detention for the duration of hostilities. (Quirin)
o
Regardless of whether a person is a US citizen, they cannot be detained indefinitely for purposes of interrogation (Hamdi)
o
The government may detain citizens as enemy combatants but due process demands that they be afforded a meaningful opportunity to contest the factual basis for the detention before a neutral
decisionmaker (Hamdi)

Habeas corpus is not available to enemy combatants on the field of combat and detained outside the US (Eisentrager)
o
US Constitution does not give alien enemy combatants a right of personal security or immunity from military trial or punishment
o
BUT Federal Courts do have jurisdiction to consider habeas corpus petitions from Guantanamo detainees because Guantanamo is, in every practical respect, a territory of the US (Rasul)

Habeas corpus extends to foreign nationals detained at Guantanamo. Suspension clause applies (aka if habeas corpus is denied, it must comply with the suspension clause) (Boumediene)

Factors in determining whether Suspension Clause applies: (Boumediene)
o
(1) the citizenship and status of the detainee and the adequacy of the process through which the status determination was made;
o
(2) the nature of the sites where apprehension and then detention took place; and
o
(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ

DTA and MCA unconstitutionally suspend the writ of habeas corpus (Boumediene)

If Congress wanted to deny habeas review to detainees, Congress must formally suspend the writ in accordance with the suspension clause. However, the Suspension Clause states that the writ of habeas corpus
may not be suspended “unless when in cases of rebellion or invasion the public safety may require it.” (Boumediene)
Ex Parte
Lincoln suspended writ of habeas corpus during Civil War so

Only Congress can suspend the Writ of Habeaus Corpus
Merryman
you don’t have to have a civilian trial against confederates.

Lincoln suspended writ of habeas corpus during Civil War so you don’t have to have a civilian trial against confederates. “King
Lincoln”

Holding: Court held Lincoln’s suspension unlawful, only Congress can suspend the writ
27
Ex Parte
Milligan
Ex Parte
Quirin

German military personnel attempted to sabotage the
American government by secretly landing German
submarines on American shores. The saboteurs were captured
and held in detention for trial by military commission, which
was appointed by an executive order of the President to try
them for violations of the law of war and Articles of War.
Saboteurs petitioned for habeas corpus.






Johnson v.
Einstrager
Rasul v.
Bush
Hamdi v.
Rumsfeld
Hamdan v.
Rumsfeld
Court held that Lincoln could not suspend the writ of habeas corpus during Civil War and could not try civilians in military
tribunals when civilian courts are open and functioning
Congress and President, under Articles of War and executive orders, may constitutionally place unlawful combatants on trial
before a military commission for offenses against the law of war.
Both lawful and unlawful combatants are subject to capture and detention as prisoners of war, but unlawful combatants are
additionally subject to trial and punishment by military tribunals for violations of the law or war.
Lawful combatants are subject to capture and detention as prisoners of war.
o
Unlawful combatants are not entitled to status as prisoners of war. They may be subject to trial and punishment by
military tribunals.
It does not matter whether an enemy belligerent is a United States citizen.
Lawful combatant- Wearing a country’s military uniform is an indicator of a lawful combatant
Unlawful combatant- The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking
to gather military information and communicate it to the enemy or an enemy combatant who without unform comes secretly
through the lines for the purpose of waging war by destruction of life or property are familiar examples of belligerents who are
generally deemed” unlawful combatants
If the person is armed, he should be imprisoned under the laws of war.
Habeas corpus is not available to enemy combatants on the field of combat and detained outside the US
US Constitution does not give alien enemy combatants a right of personal security or immunity from military trial or punishment
Eisentrager enemy combatants were (1) not citizens of nations with which US was at war; (2) denied they had engaged or plotted
in acts of aggression against the US; (3) had never been tried by any tribunal; (4) are held more than 2 years in territory which US
exercises total and exclusive control.

German radio men were captured after Germany’s surrender

in WWII and designated as “enemy aliens” were accused of

the war crime of continuing to fight after surrender (because

they were assisting Japanese forces, who were still at war).
Prisoners were repatriated from Japan, where they were
captured, to Germany for a US trial and they petitioned for
writs of habeas corpus

Federal Courts do have jurisdiction to consider habeas corpus petitions from Guantanamo detainees

Guantanamo is in every practical respect a territory of US  Although technically Cuba has sovereignty over the territory under the lease, the US exercises “complete jurisdiction and control”
over the base and may continue to exercise such control permanently if it chooses.

Court also considered the indefinite status of the detention and the lack of any legal procedure to determine detainees’ status

Federal Courts do have jurisdiction to consider habeas corpus petitions from Guantanamo detainees (and, based on this holding, in areas where the United States is effectively completely in
control of the land- ex. Leased and completely in control)
US Citizen (born in Louisiana, but grew up in Saudi Arabia)

President does not have the authority to detain citizens who qualify as enemy combatants for an indefinite period of time with no
captured by U.S. military in Afghanistan. He was initially
opportunity for an impartial hearing.
detained in Afghanistan, then transferred to GITMO. After

Hamdi treated the President’s actions as authorized by Congress, and thus within Justice Jackson’s Youngstown Category 1 but
learning he was a U.S. citizen he was held in U.S. naval brigs
was invalidated due to violation of Due Process
in Virginia and South Carolina as an enemy combatant. Filed

The government must provide a citizen detainee challenging his classification as an enemy combatant with notice of the factual
habeas corpus. Government argued Hamdi’s status as an
basis and a fair opportunity to rebut the government’s factual assertions before a neutral decision-maker
enemy combatant justified holding him indefinitely w/o

While indefinite detention is not authorized by Congress, there are active combat operations in Afghanistan against Taliban
formal proceedings per Authorization Use of Military Force
combatants, and the United States may lawfully detain Taliban combatants during these hostilities.
(AUMF).

To satisfy the minimum requirements for such a hearing, the citizen-detainee must receive notice of the factual basis for his
classification and a fair opportunity to rebut the government’s factual assertions before a neutral decisionmaker. Evidentiary
standards may be relaxed so that the government may use hearsay to support the classification. There may be a rebuttable
presumption in favor of the government’s evidence.

Balancing Test: Process due is determined by weighing “the private interest that will be affected by the official action” against
the Government’s asserted interest, ‘including the function involved’ and the burdens the Government would face in providing
greater process
Hamdan was a Yemeni national who was captured by militia

A President exceeds his authority by establishing a military commission absent congressional approval.
forces, turned over to US, who designated him as an enemy

Neither AUMF nor DTA expands the President’s authority to convene a military commission.
combatant, and transported him to Guantanamo Bay. Hamdan
was charged with one count of conspiracy to commit
“offenses triable by military commission.” Hamdan filed for a
28
writ of habeas corpus, challenging the legality of his military
prosecution.


Boumedien
e v. Bush
Boumediene was seized by the US military and sent to
Guantanamo Bay. A tribunal determined him to be an enemy
combatant and he sought a writ of habeas corpus.






Exigency (an urgent need or demand) alone will not justify the establishment and use of penal tribunals not contemplated by Art.
§ 8 and Article III § 1 of the Constitution unless some other part of that document authorizes a response to the need. And the
authority, if it exists, can derive only from the powers granted jointly to the President and Congress in time of war.
Hamdan found the President’s actions within Justice Jackson’s Category 3 because not only unauthorized by Congress but also in
violation of affirmative limits that Congress had placed upon the President in the UCMJ.
Boumediene treated the President’s actions as authorized by Congress, and thus within Justice Jackson’s Youngstown Category 1
but was invalidated due to violation of Suspension Clause
Stripping the Courts of habeas corpus jurisdiction for Guantanamo prisoners is unconstitutional because (1) Congress did not
formally suspend the writ; (2) Congress could not have constitutionally suspended the writ; and (3) procedures provided by the
DTA were an insufficient substitute for habeas corpus.
Habeas corpus extends to foreign nationals detained at Guantanamo.
If Congress wanted to deny habeas review to detainees, Congress must formally suspend the writ in accordance with the
suspension clause. However, the Suspension Clause states that the writ of habeas corpus may not be suspended “unless when in
cases of rebellion or invasion the public safety may require it.”
Habeas corpus cannot be suspended by Congress in this case because the government didn’t establish that rebellion or invasion
warranted total suspension
Applying Suspension Clause test: (Boumediene)
o
(1) the citizenship and status of the detainee and the adequacy of the process through which the status determination was
made;

Detainee denied he was an enemy combatant. Although detainee was afforded some process in Combatant
Status Review trial proceedings, there has been no trial by military commission for violations of the laws of
war. The CRST proceedings alone are far more limited, and therefore fall short of the procedures and
adversarial mechanisms that would eliminate need for habeas corpus review.
o
(2) the nature of the sites where apprehension and then detention took place; and

Even though GB is in effect a US territory, this still weighs against finding that Suspension Clause applies.
o
(3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ

The Government presents no credible arguments that the military mission at Guantanamo would be
compromised if habeas corpus courts had jurisdiction to hear the detainees' claims.

The fact that it will cost more money to implement is not dispositive.
Congressional Control Over the Actions of the Executive Branch
Nondelegation Doctrine





Nondelegation doctrine provides that Congress may not constitutionally delegate its legislative power to another government branch. In reality, the doctrine does not prevent Congress from seeking assistance,
within proper limits, from the coordinate branches.
o
As a result, nondelegation doctrine has done little to prevent the executive or judicial branch from exercising powers that belong to the legislature by fleshing out broad laws passed by Congress (using
sub-rules, filling in the blanks)
o
Congress must establish intelligible principles to guide the delegatee body.
Congress does not violate the Non-Delegation Doctrine merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors. (Touby)
There are only two cases in which the Court found a violation of the nondelegation doctrine: Schechter Poultry and Panama Ref. Aside from those two decisions, the Court has consistently found that even the
broadest congressional delegations are constitutionally permissible.
Congress may delegate to an independent commission the power to create binding sentencing guidelines without violating the separation of powers. (Mistretta)
o
Even if the duties/ powers delegated to the branch by Congress are not duties/ powers normally within that branch’s scope, the legislation is still constitutional so long as: (Mistretta)

The duties are not more appropriately performed by other branches; and

The duties do not undermine the integrity of the branch
Domestic
o
Executive/ judicial branch does not violate the Non-Delegation Doctrine if the clarifications to the law pass the intelligible principle test (Touby)
29

Foreign
o
Intelligible principle doctrine
o
A delegation of legislative power that violates the non-delegation doctrine may be sustained on the ground that its exclusive goal is to provide relief in a foreign conflict (Curtiss-Wright)
Touby v.

Congress does not violate the Non-Delegation Doctrine merely because it legislates in broad terms, leaving a certain degree of discretion to executive or judicial actors.
United

Intelligible principle test- Authorizes executive branch to flesh out the details of a law Congress has already put in place
States
o
The executive/ judicial clarifications to a law must conform to the law’s intelligible principle
o
Intelligible principle is exceedingly broad
US v.
Curtiss-Wright tried to sell arms to Bolivia.

President’s order upheld. A delegation of legislative power that violates the non-delegation doctrine may be sustained on the ground that its
CurtissPresident, under the Joint Resolution of Congress
exclusive goal is to provide relief in a foreign conflict
Wright
in 1934, had the power to prohibit the sale of arms

The President is the sole organ of the federal government in the field of international relations.
Export Corp. and munitions to Bolivia and Paraguay. Roosevelt

Any exercise of power by the President must be exercised within the constitutional parameters granted to him, but the scope of the President’s
declared an embargo on Bolivia. Curtiss-Wright
powers in international affairs is broad.
sued.

In order to effectively maintain international relations, congressional legislation concerning foreign affairs must accord the President a degree of
discretion and freedom from statutory restriction that would not be admissible if domestic affairs alone were involved.
Bicameralism & Presentment


Art 1 § 1- All legislative powers are granted to Congress (Senate & House of Representatives)
Art. 1, § 7, cl. 2-3-Congress and the Senate agree on the legislation, they present it to the executive, and it is the President who has the ability to veto or sign into law what Congress has presented
o
Bicameral requirement: - Legislation must pass by a majority of both the House of Representatives and the Senate.
o
Presentment requirement - All legislation must be presented to the president for approval before becoming law. If the President vetoes legislation, it must be sent back to Congress for possible override by
a vote of 2/3 of both houses.

Simply because something is called a “resolution” doesn’t mean that it’s not a legislative act (statute). If it a statute in character and effect, it is considered a legislative act and is therefore subject to bicameralism
and presentment.
Legislative vetoes- Not constitutional

Congress may not employ a legislative veto device to oversee delegations of its constitutional authority to the executive branch. (INS)

Although legislative veto may be efficient, the Separation of powers as set up by the Constitution cannot be ignored in favor of convenience/ efficiency. (INS)

Despite Chadha, Congress continued to enact legislative veto provisions in a number of statutes. Congress apparently assumed that fear of budgetary retaliation would assure that the executive branch would
honor these provisions.
Line item veto- Not constitutional

The Line Item Veto Act gave the President the power to “cancel in whole” three types of provisions signed into law. The Act allowed for the cancellation of:
o
Any dollar amount of discretionary budget authority
o
Any item of new direct spending
o
Any limited tax benefit

Congress cannot grant the President a line item veto that allows the President to cancel legislation after it becomes a law. (Clinton)
INS v.
House of Rep. exercised a legislative veto in an

Bans all legislative vetos and says in this case that Legislation providing Congress with a one-house veto over an action of the executive
Chadha
immigration case involving Chadha. The Attorney
branch is unconstitutional because it did not meet the constitutional requirements of presentment and bicameralism.
General recommended that Chadha not be deported 
This is a statute, even though it was called a resolution on paper. It was a legislative act in character and effect because the actions affected
because he met statutory requirements to stay (even
the legal rights, duties and relations of persons outside the legislative branch.
though his visa expired). The Immigration and

By not getting majority vote from the Senate (and only requiring majority by one house), the legislation violated bicameralism.
Nationality Act authorized one house of Congress,

Only four provisions in the Constitution permit one house to act alone. None authorized the one-house legislative veto. This is proof that
by resolution, to invalidate an executive
the framers did not intend for the one-house legislative veto.
determination that allowed a deportable person to

remain in the United States. The House of
Representatives exercised this veto to overrule the
attorney general’s recommendation and order
Chadha to be deported, without showing the Senate
or President.
Clinton v.
Federal Line Item Veto Act of 1996 was

Congress cannot grant the President a line item veto that allows the President to cancel legislation after it is enacted and signed (becomes a
New York
challenged when Pres. Clinton canceled a budget
law).
provision under Medicaid and a separate tax
30
provision that allowed deferred payment of capital
gains of certain stick sales of food refiners to
processors to farmer’s coops


Art. 1, § 7 allows President to return a Bill to Congress, but the cancellation effectively allowed the President to amend a law.
Presidents may either approve all parts of a bill or reject it completely.
Appointment and Removal Powers (based on Art II, § 2)

Art. II, § 2o
Clause 2- President, with consent of Senate, may appoint ambassadors, consuls, justices of Supreme Court, and all other officers of the US whose appointments are not otherwise provided for.
Additionally, Congress may vest the power to appoint “inferior officers” in the President alone, in the courts of law, or in the heads of departments as they think proper

President appoints officers with consent of Senate

President, Courts, and Heads of Departments may appoint inferior officers alone (without advice and consent of Senate) if Congress vests that power in them.

Clause 3- President shall have power to fill up all vacancies that may happen during the recess of the Senate by granting Commissions which shall expire at the end of their next session

Judges
o
President cannot remove either Supreme Court or lower court judges.
o
Article III, § 1- Judges will remain in office during good behavior and can only be removed by impeachment process

Officers
o
President, with consent of Senate, can appoint officers. President does not need Senate approval to remove officers.
o
Congress may not retain removal power over officials charged with executing the laws except my impeachment. (Bowsher)
o
If Congress wants to remove an official short of impeachment, that official cannot be performing executive branch functions. (Bowsher)
o
Congress cannot retain removal authority over executive officer consistent with the Appointments Clause (Bowsher)
o
The Appointments Clause gives the President authority to appoint, which means that the President is the executive officer who is administering the function of that person. (Bowsher)
o
“[O]nce Congress makes its choice in enacting legislation, its participation ends.” (Bowsher)
o
If Congress does not like how a law is being administered, it can pass a new legislation. The ability to remove a person is within the purview of the executive branch. (Bowsher)
o
What traits make someone an “officer?” Not a test- just comparison (Lucia)

Continuing appointment (no real term ends)

Exercising significant discretion when carrying out important functions

Authority to make findings of fact

Have powerful enforcement mechanisms at their disposal.

Inferior officers
o
Only President, Court, and heads of departments can appoint inferior officers
o
Congressional officers are not “heads of departments” who can appoint “inferior officers” (Buckley)
o
Requirements for an inferior officer (Morrison)

Can be removed by a higher executive branch official, despite having independent powers

Authority is limited to performing specified, limited duties

Office is limited in jurisdiction to the terms of the appointment and also is limited in tenure  it does not extend beyond the completion of the specific task given
o
Independent counsels are inferior officers for the purposes of Appointments Clause if counsel is removable by “good cause”, duties were limited under the Act and her tenure of office was temporary.
(Morrison)

Requirement that Independent Counsel be removed only for cause does not violate executive appointment/ removal power

Recess appointments
o
Art. II, § 2 provides that “the President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next
sessions.”
o
In light of historical practices, recess should be at least 10 days long to qualify [for President to have the power to fill up the vacancies without Senate approval] (NLRB)
o
President cannot fill up vacancies without Senate approval during pro forma sessions, because Senate still has capacity to make business transactions during those times (NLRB)
The words “vacancies that may happen” included both vacancies created before and during that recess. (NLRB)
Bowsher v.
Statute allowed Congress to remove Comptroller

Congress may not retain removal power over officials charged with executing the laws except by impeachment.
Synar
General for inefficiency, neglect, or malfeasance.

The comptroller general is a member of the legislative branch to whom congress had delegated the authority to exercise a function of the
Congress passed the Gramm-Rudman-Hollings
executive branch.
acted, which permitted the comptroller general to

The act included a budget-controlling mechanism that gave comptroller general meaningful discretion to make budget cuts with respect to
reduce the federal budget deficit above a minimum
federal programs. Exercise of that discretion amounted to the execution of laws enacted by Congress, a function normally preserved within
acceptance amount. A statute allowed Congress to
the executive branch of government.
31
Buckley v.
Valeo
Lucia v.
SEC
Humphrey’s
Executor v.
US
Myers v. US
Weiner v.
US
NLRB v.
Noel
Canning
Morrison v.
Olson
remove the comptroller general by joint resolution
based on neglect of duty, inefficiency or
malfeasance. Impeachment was not required.
Under the Federal Election Campaign Act, the
President pro tempore, speaker of the House and
President each appointed 2 members to the Federal
Elections Committee. The appointees would be
them confirmed by both houses of Congress. .The
FEC was given “direct and wide-ranging”
enforcement power such as instituting civil actions
against violations of the Act as well as “extensive
rulemaking and adjudicative powers.”

Obama, during a Senate recess, appointed people to
the NLRB. “The Senate was in recess pursuant to
a Dec. 17, 2011, resolution providing for a series of
brief recesses punctuated by ‘pro forma
sessions[s]’ with ‘no business… transacted,’ every
Tuesday and Friday through Jan 20, 2012. This
was a series of short recesses between holidays, but
the Senate would meet at different times
throughout
Congress passed Ethics in Government Act, which
permitted a court called the Special Division to
appoint an independent counsel to investigate and
prosecute certain high-ranking government
officials for violations of federal criminal laws
upon request by the Attorney General. Morrison
was appointed to investigate possible obstruction
of congressional investigations regarding future

This case technically does not violate bicameralism and presentment, but it is unconstitutional because you can’t change basic
constitutional design. The only way to change basic constitutional design would be to change the constitution.





Federal Election Commission established by the Federal Election Campaign Act was unconstitutional.
Congressional officers are not “heads of departments” who can appoint “inferior officers” (Buckley)
However, the heads of the Federal Election Commissioner can appoint the inferior officers
Members of Congress cannot make appointments to the FEC because it violated the Appointments Clause.
The Act allowed members of Federal Election Commission to be appointed in part by Congress. But Appointments Clause says only the
President, not Congress, can appoint officers of the US.

Because of the enforcement powers of the commissioners, who were appointed by Congress, the Court held that they exercised executive
powers, this making them officers of the US whose appointment was subject to the Appointments Clause.

Congress cured the separation of powers problem by constituting FEC with a majority of Presidential appointees.
SEC’s administrative law judges were appointed

ALJs are officers and must be appointed by the Commissioners, not the staff
by staff decision rather than by SEC

Reasoning- Prior precent- Freytag v. Commissioner- Supreme Court held that special trial judges of the US Tax Court were officers subject
Commissioners (heads of departments).
to the Appointments Clause, even if those judges’ decisions were not final.
o
Administrative law judges are similar to the Tax Court judges because

Both types of judges hold a continuing appointment

Both exercise significant discretion when carrying out important functions.

Like Tax Court’s special judges, administrative-law judges have powerful enforcement mechanisms at their disposal.

Both judges are given the authority to make findings of fact. However, administrative-law judges hold even more independent authority
than do Tax Court judges. In major cases, regular Tax Court judges must review the special trial judge’s opinion. The SEC, however, can
decide against reviewing an administrative-law judge’s decision at all, so administrative-law judges’ decision becomes final. This,
administrative law judges qualify as officers

Congress could limit the President’s power of removal of Federal Trade Commissioners to removal for cause and limited Myers to “purely executive officers.”

Officers of administrative bodies created by Congress, where the statute specifies the term and causes for removal, may be removed by the President only for those causes that have been specified

Limited Myers

Congress can require that FTC Commissioners be removed only for cause, because they are not “purely executive officers”

Court held invalid a statute that said the President could not remove postmasters without Senate approval.

President can removal all executive appointees at will even though the appointments originally required the “advice and consent” of the Senate.

Congress cannot require consent of the Senate for President’s removal of postmasters






Short recesses pursuant to resolution over holidays when Senate preserved capacity to transact business during intervening pro forma
session is not a “recess” for purposes of Art 11 § 2
Struck down the appointments because the recess was too short and the Senate preserved the capacity to transact business during the pro
forma sessions.
The Court suggested that a recess must be at least 10 days long to qualify, because there are very few historical examples of recess
appointments made during inter-session recesses shorter than 10 days.
The words “vacancies that may happen” included both vacancies created before and during that recess.
Act upheld under the Appointments Clause because independent counsel is an inferior officer; therefore, President does not need to consult
Senate
Independent counsels are inferior officers for the purposes of Appointments Clause if counsel is removable by “good cause”, duties were
limited under the Act and her tenure of office was temporary.
32
Mistretta v.
US
Solicitor General Ted Olson, who moved to quash
the subpoenas on the ground that the Act was
unconstitutional
Sentencing Commission was established by the
Sentencing Reform Act to address disparity in
sentencing for similar crimes. The Sentencing
Commission:

Was An independent part of the judicial
branch

Was Made up of 7 voting members, with at
least 3 federal judges appointed by the
President

Judges could only be removed by the
president for neglect, wrongdoing, or good
cause
Mistretta argued that the Sentencing Commission
violated the separation of powers by giving
federally appointed judges rule-making powers
(akin to legislative branch). Says it is located
within judicial branch but does not exercise judicial
powers, which makes it unconstitutional.




Congress may delegate to an independent commission the power to create binding sentencing guidelines without violating separation of
powers.
The act didn’t violate the separation of powers doctrine to place the commission within judiciary. The hybrid structure (federal judges
working with other appointees) is constitutional.
o
Congress doesn’t jeopardize the judicial branches integrity by requiring three federal judges.
o
Separation of powers doctrine doesn’t wholly bar federally appointed judges from serving on the commission.
The Commission is located in the judicial branch, but it does not exercise judicial power. The novelty of the Commission does not
necessarily make it unconstitutional because Congress has not vested in the Commission powers that are
o
(i) more appropriately performed by other branches; or
o
(ii) undermine the integrity of the judiciary
Congress may delegate to the judicial branch nonadjudicatory functions that do not trench upon the prerogatives of another branch and that
are appropriate to the central mission of the judiciary.
Executive Privileges and Immunity

Official actions
o
President is absolutely immune from civil liability for official acts, unless Congress says otherwise. (Nixon v. Fitzgerald)
o
However, executive immunity does not give the President an absolute, unqualified general privilege of immunity from judicial processes. (US v. Nixon)

Not always executive immunity in criminal cases regarding President’s official acts

Courts balance interest in confidentiality against interests in due process of law in administration of justice

President can invoke an executive privilege. Material is then treated as presumptively privileged. However, that presumption may be rebutted due to the constitutional need to produce all
relevant evidence in a criminal case. Court must determine whether the material is essential to the justice of the pending criminal case.

Ex. Although there is a presumptive presidential privilege for his confidential communications, when the communications do not concern military, diplomatic, or sensitive national security
secrets, that presumption may be rebutted due to the constitutional need to produce all relevant evidence in a criminal case. (US v. Nixon)
o
Sitting and former presidents have absolute immunity from lawsuits seeking damages for official acts

No presidential immunity for unofficial conduct
o
Separation of powers principles between the executive and the judiciary aren’t violated by allowing litigation arising out of allegations having nothing to do with official acts to proceed. (Clinton)
o
A sitting president can be sued for conduct unrelated to the president’s official actions and can be cited/ tried during his term in office. (Clinton)
Impeachment of President

Art II § 2- President has the power to grant reprieves and pardons for offenses against the US, except in cases of impeachment

Art. II, § 4: “The President, vice president, and all civil officers of the United States, shall be removed from Office on impeachment for, and conviction of, treason, bribery, or other high crimes and
misdemeanors”

Andrew Johnson
o
Impeached for his unilateral dismissal of Secretary of War Edwin Stanton in violation of the Tenure of Office Act
o
Johnson was impeached un the House. Johnson escaped conviction and removal by only one vote in the Senate.

Richard Nixon
o
Three articles of impeachment

He acted in a manner contrary to his trust as President and subversive of Constitutional government

Repeatedly engaged in conduct violating constitutional rights of citizens, impairing the due and proper administration of justice or contravening the laws governing the agencies of the executive
branch

Willfully disobeyed subpoenas issued by Impeachment committee

Nixon resigned before further proceedings occurred
33

Bill Clinton
o
Two articles of impeachment
o
He prevented, obstructed, and impeded the administration of justice in the course of discovery during Clinton v. Jones
o
Willfully provided perjurious, false, and misleading testimony to a grand jury
o
Not convicted
Nixon v.

Absent explicit affirmative action by Congress, the President is absolutely, rather than qualifiedly, immune from civil liability for his official actions.
Fitzgerald

Reasoning
o
To protect President from these suits would avoid rendering him “unduly cautious in the discharge of his official duties”
o
Because of the singular importance of President’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government

If President was not immune from civil liability damages when acting under official duties, he would be an easily identifiable target for these types of suits, it would distract the president from his
duties, and it would influence his decision-making

Even though the president would have absolute immunity against civil liabilities damages, the country can protect itself from presidential misconduct with the impeachment clause.

Reelection and desire for prestige is also a deterrent.
United
President Nixon (defendant) was named as a co
President does not assert an absolute claim of privilege over all confidential communications.
States v.
conspirator in various charges including conspiracy to 
Although there is a presumptive presidential privilege for his confidential communications, when the communications do not concern
Nixon
defraud the United States. The United States District
military, diplomatic, or sensitive national security secrets, that presumption may be rebutted due to the constitutional need to produce all
Court for the District of Columbia subpoenaed
relevant evidence in a criminal case.
various tapes and documents relating to specific

The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
meetings in which Nixon was a participant. Nixon

A generalized claim of presidential privilege based on a claim of public interest in confidentiality does not overcome the interest in
filed a formal claim of privilege and a motion to
producing all relevant evidence consistent with the fair administration of justice.
quash the subpoenas.

President Nixon does not base his claim of privilege on military, diplomatic, or sensitive national security secrets. The President’s claim is
of a generalized presidential privilege of confidentiality, which cannot be upheld in a criminal proceeding, as the interests of justice
outweigh Nixon’s general need for confidentiality.
Clinton v.
Jones, a former government employee, sued

Separation of powers doctrine does not require federal courts to stay all private actions against the President until he leaves office.
Jones
Clinton, who was President at the time, for

The fact that a federal court’s actions in this case may significantly burden the President’s time and attention does not establish a
allegedly making unwanted sexual advances and
constitutional violation.
sexually harassing her while he was Governor of

The district court did not grant immunity, but it did grant a stay until after D leaves office. This was an abuse of discretion because it did
Arkansas. Trial court ordered trial stay until end of
not take into account P’s interest in bringing the case to trial. Such a long delay would increase the risk of prejudice to P resulting from the
Clinton’s presidency on the ground that the public
loss of evidence, impaired memory, or perhaps even the death of a party. If greater protection of the President becomes necessary, Congress
interest in avoiding litigation.
can provide appropriate legislation.

Here, Jones alleged that Clinton propositioned and sexually harassed her before becoming president. The district court abused its discretion
in staying the trial of the case until Clinton was no longer president.
34
Liberty
Pre-Civil War Approach

Bill of Rights applied only to federal government (not states) (Barron)

People of African descent brought to the United States and held as slaves, as well as their descendants (either slave or free), are not considered citizens of the United States are not entitled to the protections
and rights of the Constitution. (Dred Scott)
Post-Civil War Amendments and Incorporation
Reconstruction Amendments

13th Amendment:
o
“Neither slavery nor involuntary servitude . . . shall exist within the United States . . . except as punishment for a crime.”
o
This was exploited by the Southern states and led to them passing the Black Codes.
o
In response to the black codes, Congress passed the Civil Rights Act

Same penalties for black and white people

Not viewed as entirely effective

Was meant to overrule Dred Scott and end Black Codes
o
“Servitude” is a broader concept than “slavery,” but the inclusion of this term in the Thirteenth Amendment was solely for the purpose of forbidding any and all forms of African slavery in the future.
(Slaughterhouse)

14th Amendment
o
Used more broad, sweeping language than the Civil Rights Act it was designed to sustain
o
Amendment’s language was not limited to the problems of race, color or previous condition of servitude.
o
Overruled Dred Scott, granting American citizenship to all persons born in the US and subject to the jurisdiction thereof, although it did so without making explicit mention of race.
o
Section 1: Four operative clauses

Citizenship clause: All persons born or naturalized in the US and subject to the jurisdiction thereof, are citizens of the US and of the state wherein they reside

P&I clause: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the US

P&I clause protects applicable rights of national citizenship, but not state citizenships. National citizenship rights include the right to travel among the states, to vote for national
officers, to petition Congress, and to enter public lands. (Slaughterhouse)

Privileges and immunities covers only laws that owe their existence to the federal government, its national character, its Constitution, or its laws (Slaughterhouse)

Privileges and Immunities Clause protects a citizen’s right to: (Saenz)
o
Travel between states;
o
Receive equal treatment in all states; and
o
Access the same benefits as the long-term residents of that state

Due Process Clause: States shall not deprive any person of life, liberty or property, without due process of law

Equal Protection Clause: States shall not deny to any person within its jurisdiction the equal protection of the laws
o
Section 2: Apportionment

Effectively eliminates 3/5 clause

Penalizes (but does not explicitly prohibit) disenfranchisement of free slaves
o
Section 3- Restricts former Confederate supporters (and all persons participating in rebellion) from holding certain federal offices
o
Section 4- Repudiated any obligation to pay confederate war debts or the cost of lost slaves
o
Section 5- Gave Congress the power to enforce the Amendment through legislation

15th Amendment
o
Section 1- The right of US citizens to vote shall not be denied or abridged by US or by any state on account of race, color, or previous condition of servitude
o
Section 2- Congress shall have power to enforce this article by appropriate legislation
o
But construed narrowly by the Courts, which allowed states to restrict voting based on race, color and former slavery based on things like literacy tests
Barron v.
Barron sued city of Baltimore for

The Bill of Rights, specifically the Fifth Amendment’s guarantee that government takings for public use require just compensation, are only
Baltimore
permitting street construction that had the
restrictions on the federal government and do not apply to state or local governments.
effect of depositing silt in front of his

The limitations on government power expressed in the federal Constitution are applicable only to the government created by that instrument. Had
wharf, making it inaccessible. Barron
the farmers intended them to be limitations on the powers of state governments, they would have expressed that intention.
claimed that the state’s action violated the

Any limits on state powers can be found only in the respective state constitutions. Federal court therefore has no jurisdiction.
Fifth Amendment’s guarantee that private
property shall not be “taken for public use,
35
Dred Scott v.
Sanford
SlaughterHouse Cases
Crandall v.
Nevada
Saenz v. Roe
Twinning v.
NJ
Palko v.
Connecticut
Adamson v.
California
Duncan v.
Louisiana
without just compensation.” He argued
that this provision “ought to be so
construed as to restrain the legislative
power of a state, as well as that of the
United States.”
Dred Scott was Emerson’s slave. Emerson
brought Scott to Illinois and the Wisconsin
Territory, which both banned slavery.
Emerson’s widow refused to accept
Scott’s offer when he tried to buy his and
his wife’s freedom upon Emerson’s death.
Scott sued, claiming that his two-year
residence in the Wisconsin territory had
rendered him free.
New Orleans law granted a state
corporation the exclusive rights to operate
facilities in New Orleans for landing,
keeping and slaughter of livestock. P’s
only means of practicing their trade was to
pay fees to the state corporation and work
at the corporation’s plant.
Right to travel from state to state (cited in
Slaughterhouse)
California passed a new statute stating that
welfare benefits for first-year residents
would be limited to the amount the new
residents would have received in the state
from which they moved.





People of African descent brought to the United States and held as slaves, as well as their descendants (either slave or free), are not considered
citizens of the United States are not entitled to the protections and rights of the Constitution.
The Framers could not have intended “all men are created equal” to apply to African Americans because the framers viewed them as property.
The slave trade and fugitive slave clauses in the Constitution point directly and specifically to the African race as a separate class of persons and
show clearly that they were not regarded as a portion of the people or citizens of Government then formed.
Held the Missouri Compromise unconstitutional
This was not considered “servitude” under 13th Amendment. “Servitude” is a broader concept than “slavery,” but the inclusion of this term in the
Thirteenth Amendment was solely for the purpose of forbidding any and all forms of African slavery in the future. This case was unrelated to freedom or
slavery/ servitude of a slave race.

Privileges and immunities clause of 14th Amendment refers to “privileges and immunities” of the US, not those traditionally within the domain of
State police powers.
o
Privileges and immunities covers only laws that owe their existence to the federal government, its national character, its Constitution,
or its laws
In this case, the Court invalidated a tax on passengers leaving the state via common carriers and emphasized the citizen’s basic “right to come to the seat
of the [the national] government.”

California’s statute imposing a durational residency requirement that limits welfare benefits for new residents is unconstitutional.

Privileges and Immunities Clause protects a citizen’s right to:
o
Travel between states;
o
Receive equal treatment in all states; and
o
Access the same benefits as the long-term residents of that state

California discriminated against new citizens by limiting new citizens’ right to benefits, simply because they were first year residents.
o
Because the law was discriminatory, the court applied strict scrutiny.

Under strict scrutiny, California had to show that the law was necessary to promote a compelling government interest.

California had a legitimate interest in passing the law because the state would save several million dollars if it implemented the
law. But the state failed to demonstrate why discriminating based on the duration of residency was necessary to achieve that
goal, because alternative methods for saving money on benefits are available.

Congressional approval of the state law makes no difference. Congress cannot authorize a state to violate the Constitution.

Bill of Rights not incorporated as such; only those rights that “are of such a nature that they are included in the conception of due process”

Privilege against self-incrimination was not a necessary part of due process.

Some of the personal rights safeguarded in the Bill of Rights were also safeguarded against state action because of a denial of those rights would be a denial of due process itself.

Selective incorporation: Bill of Rights afforded in state cases are the ones that are considered for purposes of fundamental: the principle of justice is so rooted in the traditions and conscience of
our people, that they are fundamental.

Only rights that are fundamental to liberty are incorporated

Black’s dissent- argument for total incorporation

History of the 14th Amendment shows that it was meant to totally incorporate the guarantees of the Bill of Rights against the States

Failure to incorporate the specific guarantees would leave citizens without assured rights and would at the same time grant the Court an unauthorized broad power to expand or contract the
scope of due process virtually at will.
Duncan requested a jury trial. Judge

Statute struck down
denied the request because Louisiana

Test for determining whether a right extended by the Bill of Rights is also protected against state action by the 14th Amendment  Whether a right
Constitution does not provide jury trials
is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. (aka whether it is a
under the circumstances. Duncan argued
fundamental right, essential to a fair trial.)
36
that the 14 Amendment’s Due Process
Clause incorporates the right to a jury trial
in state criminal prosecutions where a
sentence as long as two years may be
imposed.


Because the Court believes that a trial by jury in criminal cases is fundamental to the American scheme of justice, the court held that the 14th
Amendment guarantees a right of jury trial in all criminal cases which—were they tried in federal court—would come within the Sixth
Amendment’s guarantee.
There are many petty crimes or offenses that are not subject to the 6th Amendment (right to trial by jury) and should not be subject to 14th
Amendment incorporation. However, the authorized penalty is of major relevance in determining whether a particular crime is serious; the
possibility of two years’ imprisonment clearly indicates a serious offense, so it is within due process. Because it is so serious, 6th Amendment must
be granted through 14th Amendment.
37
Due Process: States shall not deprive any person of life, liberty or property, without due process of law
Incorporating Bill of Rights into Due Process Clause (= constitutional doctrine through which first 10 amendments (Bill of Rights) are made applicable to the states through Due Process Clause)

Currently incorporated rights
o
All of the Rights’ criminal procedure guarantees, except for

The grand jury indictment provision of Fifth Amendment and

Possibly the excessive bail provision of 8th Amendment
st
o
1 Amendment (including religion, speech, assembly and petition clauses)
o
2nd Amendment right to bear arms
o
5th Amendment takings clause
o
8th Amendment prohibition on excessive fines

Current approach of which Bill of Rights are incorporated : Selective incorporation
o
Provisions of the Bill of Rights (through the 14th Amendment) restrict the states only on a selective basis.
o
Under selective incorporation basis, the Court has held that most of the provisions of the Bill of Rights (although not all) apply to the states just as they do to the federal government.
o
Court hasn’t ruled on all of the Bill of Rights in incorporation, so it may be that “selective incorporation may have proceeded to the point where it is total incorporation”
o
Test for determining whether a right extended by the Bill of Rights is also protected against state action by the 14 th Amendment (Duncan)

Whether a right is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions. (aka whether it is a fundamental right, essential to
a fair trial.) (Duncan)

Every detail of the federal (Bill of Rights) guarantee is incorporated and applied to the states. (Mapp)

2nd Amendment Incorporation
o
Prefatory clause: A well regulated militia, being necessary to the security of a free state,
o
Operative clause: the right of the people to keep and bear Arms, shall not be infringed
o
There is a private right [Heller] and that right is incorporated to the States (McDonald)
o
Subject to certain safety limitations, the Second Amendment to the US Constitution creates an individual right to keep and bear arms apart from any military purpose (D.C.)
o
Second Amendment test (falls under Second Amendment and is incorporated under 14 th  applies to state IF)

(1) Does the challenged law burden conduct that falls within the scope of the Second Amendment guarantee? [if not, law is upheld]

(2) If so, (a) what level of scrutiny be applied and (b) does the challenged law survive that scrutiny?

If it is closer to the core of the Second Amendment right, courts use strict scrutiny

If it is outside the “core:, the courts use a less demanding (intermediate?) scrutiny

Don’t really use rational basis scrutiny

Usually somewhere in intermediate scrutiny

Analysis/ constitutionality hinges on what level of scrutiny court uses, so the “core” question is the key to the analysis

“Core” is a vague term with a vague definition

“Core” is a slippery term
Wolf v.

Only core of the right is incorporated (overruled in Mapp)
Colorado
Mapp v. CO

Every detail of the guarantee is incorporated.
D.C. v. Heller

Court invalidated a law that effectively banned the possession of handguns.

Although the Second Amendment appears to have been created for the purpose of ensuring the creation of a future militia, this purpose ultimately does not change the fact that the Second Amendment
was designed to create an individual right to keep and bear arms. Nothing suggests that the individual right to keep and bear arms is conditional on being for a strictly military purpose.

Recognizes self-defense as a basic right and that self-defense is the central component of the Second Amendment right.

Second Amendment right is deeply rooted in this Nation’s history and tradition, based on historical practice

HOWEVER,
o
The Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

Reasonable restrictions on firearm ownership could still be constitutional, because, like most rights, the Second Amendment is not unlimited. Ex. This opinion still supports longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools, government buildings, or imposing
conditions and qualifications on the commercial sale of firearms.
McDonald v.

Second Amendment right is fully applicable to the states
Chicago
38


The Second Amendment is incorporated in the concept of due process if the right to keep and bear arms is fundamental to our scheme of ordered liberty or is deeply rooted in this Nation’s
history and tradition.
o
Heller recognized that self-defense is a basic right and that individual self-defense is the central component of the Second Amendment right.
o
Right to bear arms is deeply rooted in the Nation’s history and tradition
The fact that other countries ban/ limit handgun ownership is irrelevant to determining which rights are incorporated as part of Due process.
Substantive Due Process and Economic Liberties
Lochner Era (1897-1937)

Court used a broad interpretation of substantive due process that protected economic rights, tended to strike down economic regulations of working conditions

Steps of Court’s application of due process.
o
1. The ends/ purposes of the legislation must be legitimate, appropriate, or necessary.

Ex. Promotes health, safety, welfare, or morals of the people

Based on language of the statute, legislative record, and history behind the passage of the statute
o
2. The means used to accomplish the legislation’s purpose must be reasonable and appropriate. There must be a real and substantial relationship between the means used and the legitimate ends.
o
3. What is the effect of the law on the liberty of the parties involved, on their property and on their lives? If the effect is too drastic, the law might violate due process.

Applied these steps to:
o
Upheld maximum work hours for women (state interest in healthy women)
o
Invalidate a state law prohibiting employers from requiring employees not to agree to join a labor union (yellow dog contracts) (interfered with the right to make contracts)
o
Invalidate a federal minimum wage law applicable only to District of Columbia (interfered with right to make a contract)
o
Invalidated restraints on competition that curtailed entry into a particular type of business
New Deal Era

As long as the Court finds the law to have a reasonable/ rational relationship to a proper legislative purpose to be not arbitrary or discriminatory, and to have means chosen that have a real and substantial
relationship to the ends sought, due process is not offended (Nebbia)

All asserted liberty interests are ultimately restrained by the health, safety, and general welfare interests that comprise due process. (West Hotel)

Courts must pay great deference to legislation that is principally aimed at economic affairs. Standard is rational basis for economic legislation, including legislation of common commercial products. (Carolene)

Although some commercial laws may seem undesirable or unnecessary to a particular judge, the judicial branch may not overturn them unless they fail to serve a rational or legitimate purpose. (Carolene)

Footnote 4: (opens the door to substantive due process and privacy) (Carolene)
o
Although rational basis is the standard for economic legislation, it is not necessarily the standard for certain categories of non-economic legislation.
o
Legislation that restricts political processes, discriminates against minorities, or contravenes a specifically enumerated constitutional liberty may be subject to “more searching judicial scrutiny

The Court will not strike down state laws regulating business and industrial conditions merely because they may be unwise, improvident, or out of harmony with a particular school of thoughts. The people as
voters, not the courts, are the protection against legislative abuse.  Rational basis is an extremely low bar (Williamson)
Lochner v.
NY
In 1896, the New York legislature
enacted the Bakershop Act which
limited the hours bakers were permitted
to work to no more than ten per day.
Joseph Lochner (defendant) owned a
bakery in New York (plaintiff) and was
fined twice under the law for
overworking an employee.
Coopage v.
Kansas
Nebbia v.
NY



Act struck down.
State police power is not absolute and must be balanced against individual liberty concerns protected by the Fourteenth Amendment.
o
Factors to consider include:

The fact that states may impose reasonable conditions to protect health, safety and general welfare of their citizens  The fact that states
may regulate certain types of employment when the nature of the work or the character of the industry warrants it (ex. Smelting, mining)

The fact that States may prohibit contracts that violate federal or state statute

BUT
o
In the present case, the baking profession does not present any of the concerns justifying the states’ regulation of hours in some other professions (ex.
Mining).
o
The regulation in question was not a health law, but was an arbitrary interference into the individual right of employers and employees to contract
The general right of an employer to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment. This
includes right of employee to labor “for such time as he may choose.”
Court upheld a law fixing maximum work hours for women, distinguishing Lochner by the special state interest in healthy women.
New York (plaintiff) established a Milk
Control Board through statute which
had the power to fix the prices of milk
sold by New York stores. Purpose was


Upheld the regulation
As long as the Court finds the law to have a reasonable/ rational relationship to a proper legislative purpose to be not arbitrary or discriminatory, and to
have means chosen that have a real and substantial relationship to the ends sought, due process is not offended
39
West Coast
Hotel v.
Parrish
U.S. v.
Carolene
Products
Williamson
v. Lee
Optical
to aid the dairy industry, which was in
desperate situation during Great
Depression. Nebbia (defendant) owned
a grocery store in Rochester, New York
and was convicted of selling milk at a
price below the fixed price.

If the law passes the rational relation test, the courts are without authority either to declare such policy, or, when it is declared by the legislature, to
override it.
The State of Washington passed a law
which regulated the minimum wages
paid to female and minor employees.


Washington’s minimum wage law for female workers does not violate due process. Law upheld.
A state may regulate the minimum wage paid to female employees when that regulation is for the purpose of promoting employees’ health, safety and
general welfare
All asserted liberty interests are ultimately restrained by the health, safety, and general welfare interests that comprise due process.
Legislature had the right to consider minimum wage requirements as an important means of implementing its policy of protecting abused workers
Court found the only issue for consideration was whether the legislative act was arbitrary or capricious
Economic stream of substantive due process dries up with West Coast Hotel
Upheld Filled Milk Act
Courts must pay great deference to legislation that is principally aimed at economic affairs. Standard is rational basis for economic legislation, including
legislation of common commercial products.
Although some commercial laws may seem undesirable or unnecessary to a particular judge, the judicial branch may not overturn them unless they fail
to serve a rational or legitimate purpose.
Footnote 4:
o
Although rational basis is the standard for economic legislation, it is not necessarily the standard for certain categories of non-economic
legislation.
o
Legislation that restricts political processes, discriminates against minorities, or contravenes a specifically enumerated constitutional liberty
may be subject to “more searching judicial scrutiny”
Filled Milk Act the shipment in interstate
commerce of skimmed milk
compounded with any fat or oil other
than milk fat, so as to resemble milk or
cream. U.S government indicted
Carolene Products in district court for
violating the FMA. Carolene was
accused of shipping a product called
“Milnut” that consisted of a compound of
skim milk and coconut oil. Carolene
argued that the FMA was
unconstitutional
An Oklahoma state law made it
unlawful for any person not licensed as
an optometrist or ophthalmologist in the
state to fit lenses to a face or fashion
existing lenses into a frame unless given
a prescription by a state-licensed
optometrist or ophthalmologist. Lee
Optical (plaintiff) of Oklahoma brought
suit on the grounds that it violated the
Due Process and Equal Protection
Clauses of the Fourteenth Amendment












Upheld the law, holding that state business regulation does not need to be essential and directly related to the harm it intends to cure.
Although the law may exact a needless, wasteful requirement in many cases, the legislature, not the courts, must balance the advantages and
disadvantages of a new requirement. There is ample reason for the legislative means adopted to correct an actual evil
The law need not be logically consistent with its aims in every respect to be Constitutional.
The Court will not strike down state laws regulating business and industrial conditions merely because they may be unwise, improvident, or out of
harmony with a particular school of thoughts. The people as voters, not the courts, are the protection against legislative abuse.
Substantive Due Process and Privacy

Although substantive due process no longer imposes any serious restraints on economic regulations, the Court has revived the notion as a means of protecting certain fundamental personal rights not specifically
enumerated in the Constitution, including the right of privacy.
Family autonomy precents lead to decisions recognizing substantive due process liberty and privacy rights in areas of contraception, abortion, and sexual conduct.
Meyer v.

Reverses conviction for teaching German in school
Nebraska

Court recognized the rights to marry, raise children and acquire useful knowledge as essential the liberty protected by due process

interferes with rights of teachers to pursue a calling, children to learn, and parents to control the education of their children. Liberty involves a freedom regarding personal choice within home
and respect to religion.
Pierce v.

Sustained challenge to Oregon law requiring children to attend public schools instead of parochial or private schools
Society of

Court invalidated a state law requiring attendance at public school as violative of parents’ liberty to direct the education of their children
Sisters
Law cannot interfere with the fundamental liberty of parents to direct the upbringing and education of their children.
40
Skinner v. OK


Invalidated a state compulsory sterilization law for felons on third conviction
Court held that mandatory sterilization of certain felonious habitual criminals violated due process because it included relatively minor offenders and excluded major offenders, and because it
involved a basic familial right
Applies strict scrutiny applies, because otherwise invidious discriminations are made against groups or types of individuals in violation of the constitutional guarantee of just and equal laws
Substantive Due Process and Contraceptives

A Constitutional right to privacy exists that prohibits states from making use of contraceptives by a married couple a crime. (Griswold)
o
The zone of privacy created by penumbras and emanations should extend to intimacies between married people, which includes the use of contraceptives. Those relations should be protected from
governmental intrusion.

The right to privacy is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget
a child. (Eisenstadt)

Strict scrutiny was required for restrictions on access to contraceptives “because such access is essential to exercise of the constitutionally protected right of decision in matters of childbearing that is underlying
the foundation of the holdings in Griswold, Eisenstadt, and Roe” (Carey)
Griswold v.
Griswold and Buxton were charged

Found the law to be unconstitutional
CT
under a Connecticut law for providing

A Constitutional right to privacy exists that prohibits states from making use of contraceptives by a married couple a crime.
contraceptives under a statute that

There is a right to privacy implied throughout the Bill of Rights, even in the absence of specific language addressing privacy.
forbade the use contraceptives and

The intimate relationship between husband, wife and their physician is outside of the state’s traditional police powers.
penalized those who provided

Reaffirms the principles of Pierce and Meyer.
information on contraceptives.

Penumbras and emanations of constitutional protections (penumbras, formed by emanations, which creates a zone of privacy):
o
1st Amendment: Right to assemble
o
3rd Amendment: Consent before quartering soldiers in private citizens’ homes
o
4th Amendment: The right to be “secure in persons, houses, papers and effects, against unreasonable searches and seizures.
o
5th Amendment: Right against self-incrimination
o
9th Amendment: The enumerations in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the
people.

The zone of privacy created by these amendments should extend to intimacies between married people, which includes the use of contraceptives. Those
relations should be protected from governmental intrusion.
Eisenstadt v.
Baird gave contraceptives to an

Law struck down
Baird
unmarried woman, which violated a

The right to privacy is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally
law banning the distribution of
affecting a person as the decision whether to bear or beget a child.
contraceptives.

Decision was justified through equal protection (right of privacy), so Court avoided determining whether the fundamental right recognized in Griswold
applied to unmarried couples.
Carey v.
New York law prohibited (1)

Struck down law prohibiting sale or distribution of contraceptives to minors under age 16
Population
advertising or displaying or

Strict scrutiny was required for restrictions on access to contraceptives “because such access is essential to exercise of the constitutionally protected
contraceptives; (2) distributing
right of decision in matters of childbearing that is underlying the foundation of the holdings in Griswold, Eisenstadt, and Roe”
contraceptives other than by licensed

Law introduced on the right to decide whether to bear children
pharmacists; and (3) distribution of

The ban on distribution was not clearly relevant to the state’s interest in discouraging premarital sexual activity among minors.
contraceptives to persons under 16.
Substantial Due Process and Abortion

Trimester framework (overruled)
Until First Trimester
Decision is left to the medical judgement of woman’s doctor

Women have right to an abortion before viability without undue state interference
After First Trimester
State may regulate the abortion procedure in ways that are reasonably related to maternal health

The state’s interest in the health of the mother becomes compelling at the end of the first trimester, because that is when the mother’s mortality during premature childbirth becomes
just as or more likely than mortality during normal childbirth.
41
After Viability (Start
of Third Trimester)

May regulate or forbid abortion except for preservation of life or health of the mother
o
The state’s interest in the protecting potential life becomes compelling at viability, or whenever the fetus is capable of meaningful life outside the mother’s womb.
Abortion restrictions are analyzed according to an undue-burden standard (overrules trimester framework) (Casey)
o
An abortion restriction places undue burden on a woman seeking to abort a non-viable fetus if the regulation has the purpose or effect of placing a substantial obstacle in her path.
o
(1) Information disclosure- state may pass legislation encouraging a “mature and informed” decision, even if in doing so the state expresses a preference for childbirth over abortion (Court does not
determine whether it is undue burden as applied, only that it is constitutional on its face)
o
(2) 24 hour waiting period- close call, but not an undue burden (allowed) (Court does not determine whether it is undue burden as applied, only that it is constitutional on its face)
o
(3) Spousal notification- invalid
o
(4) Parental consent- Upheld so long as an adequate judicial bypass procedure exists
o
(5) Facility reporting requirements- upheld

How Casey changes Roe:
o
Before Casey, all abortion regulations (no matter how burdensome) were subject to SS review under Roe (Always requires compelling interest, Court’s trimester approach just tells you when and
what state interest are compelling)
o
After Casey, only a regulation that is an “undue burden,” defined as a “substantial obstacle” in a women’s path to choose abortion, will be struck down when addressed to pre-viability restrictions
o
Post viability, the state can continue to regulate and even prohibit a woman’s right to choose an abortion so long as it includes an exception for the health of the mother.

Despite its strict scrutiny of regulation of abortion, the Court has held that the government may choose not to fund abortions (Maher, Harris, Rust, Webster)
o
Court upheld a CT regulation granting Medicaid benefits for childbirth but not for medically unnecessary abortions because Roe v. Wade did not preclude the states from favoring childbirth over
abortion, as long as they did not unduly interfere with the woman’s freedom to choose an abortion. (Maher)
o
Congress, may, consistent with Due Process Clause, deny public funding for certain medically necessary abortions while funding substantially all other medical costs because although the
government may not place obstacles in the path of a woman’s exercise of her freedom of choice to terminate her pregnancy, it need not remove those not of its own creation, such as indigency.
(Harris)
o
A federal law may, as a condition of receiving federal funds, constitutionally restrict fund recipients from engaging in abortion-related activities. (Rust)
o
A state’s prohibitions on the use of public facilities and employees are constitutional since the Due Process Clause generally confers no affirmative right to the government aid. Because under this
provision, an indigent woman seeking an abortion has at least the same range of choices she would have if the state had chosen not to operate public hospitals at all. (Weber)

Congress may ban a specific type of partial-birth abortion provided its restrictions on the practice are narrow and clear and the ban does not constitute an undue burden on a woman’s right to an abortion.
o
Court has struck down laws preventing all DXE abortions. Statute imposed an undue burden on woman’s right to make an abortion decision, because those who perform abortion procedures using
D&E method would fear prosecution, conviction and imprisonment (Sternberg)
o
Court upheld prohibition on D&E because The fetus is delivered for the purpose of performing an overt act to kill the fetus and the Act leaves open the alternatives of other abortion procedures
(Gonzales)
Roe v. Wade
Roe, unmarried and

Law making it a crime to procure an abortion except to save the mother’s life is struck down.
pregnant, sought

The state’s interest in the health of the mother becomes compelling at the end of the first trimester, because that is when the mother’s mortality during premature
declaratory and
childbirth becomes just as or more likely than mortality during normal childbirth.
injunctive relief

The state’s interest in the protecting potential life becomes compelling at viability, or whenever the fetus is capable of meaningful life outside the mother’s womb.
against Wade, a
o
A state can prohibit abortion after viability, except when it is necessary to protect the life of the mother.
county district

The “zone of privacy” implied in the Constitution is broad enough to encompass a woman’s right to choose to terminate her pregnancy. However, this holding is qualified by
attorney, to prevent
noting that the right is not unlimited and must be considered against important state interests in regulation.
enforcement of

Regulation limiting a “fundamental right” of privacy must be justified by a compelling state interest, and legislative enactments must be narrowly tailored to further that interest.
Texas criminal

The constitutional right to privacy protects a woman’s right to choose to have an abortion. However, abortions may be regulated by a state after the first trimester of
abortion statutes.
pregnancy and may be completely prohibited after the point of “viability” of a fetus unless necessary to preserve the health of the mother.
Planned
MO law required husband’s written

A women’s decision whether to terminate her pregnancy is within her constitutionally protected right to privacy and cannot be made subject to parental
Parenthood
consent for an abortion during the first
or spousal consent.
v. Danforth
12 weeks of pregnancy

However, it did uphold a requirement that the woman give written, informed consent to the abortion and that she be of certain age or maturity in order
to consent.
Doe v.

Court invalidated portions of a GA law requiring that abortions be performed in an accredited hospital, requiring prior approval of abortions by a hospital staff committee, and requiring the
Bolton
additional approval of an abortion by two doctors in addition to the attending doctor

Court concluded that the attending physician’s best clinical judgment should be sufficient
42
Akron I
Bellotti II
Maher v.
Roe
Harris v.
McRae
Rust v.
Sullivan
Webster v.
Reproductive
Health
Services
Planned
Parenthood
v. Casey


Court invalidated a requirement that abortions performed after the first trimester be performed rather than in outpatient facilities
Court struck down a mandatory 24 hour waiting period after the pregnant woman signed a consent form, a provision that increased the cost of obtaining an abortion by requiring two separate
trips to a facility

A state could involve a parent in a minor’s abortion decision only if it also provided an alternative judicial bypass procedure so that the parent involvement would not amount to an “absolute, and
possibly arbitrary, veto”

Court upheld a CT regulation granting Medicaid benefits for childbirth but not for medically unnecessary abortions

Court applied rationality standard of review (not strict scrutiny)

Roe v. Wade did not preclude the states from favoring childbirth over abortion, as long as they did not unduly interfere with the woman’s freedom to choose an abortion.
Rejected constitutional challenges to

Court held that Congress, may, consistent with Due Process Clause, deny public funding for certain medically necessary abortions while funding
federal funding limitations in the sosubstantially all other medical costs
called Hyde Amendment, which

The government may not place obstacles in the path of a woman’s exercise of her freedom of choice to terminate her pregnancy, but it need not remove
barred payments even for most
those not of its own creation, such as indigency.
medically necessary abortions (except

A women’s freedom of choice does not confer an entitlement to such funds as may be necessary to realize all advantage of that freedom
for victims of rape or incest or where
the mother’s life was threatened)
Federal statute provided that federal

Law upheld
funds could not be used for family

A federal law may, as a condition of receiving federal funds, constitutionally restrict fund recipients from engaging in abortion-related activities.
service programs in which abortion
was a method of family planning.

Court held a state’s prohibitions on the use of public facilities and employees for abortion are constitutional since the Due Process Clause generally confers no affirmative right to the government
aid.

Under this provision, an indigent woman seeking an abortion has at least the same range of choices she would have if the state had chosen not to operate public hospitals at all.

Noted that “our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid”
Planned Parenthood (plaintiff) brought

The three central parts of the Roe holding are reaffirmed:
suit against Casey, the Governor of
o
The women’s right to have an abortion before viability without undue state interference
Pennsylvania, in federal district court
o
The state’s power to restrict abortions after fetal viability, so long as there are exceptions to protect a woman’s life or health
for the purpose of challenging five
o
The state’s legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may
restrictions on abortion under
become a child.
Pennsylvania law. The Pennsylvania

Specific holdings
Abortion Control Act required (1) that a
o
(1) Information disclosure- state may pass legislation encouraging a “mature and informed” decision, even if in doing so the state expresses a
woman seeking an abortion be given
reference for childbirth over abortion (Court does not determine whether it is undue burden as applied, only that it is constitutional on its
certain information at least 24 hours
face)
before the abortion; (2) that the woman

Overrules cases to the contrary on providing pre-abortion “truthful, nonmisleading information”
give informed consent prior to the

It is not per se unconstitutional
abortion; (3) that, if a minor, the woman

Depends on what the information actually is/ says
obtain the informed consent of her

Furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating
parents unless a judicial bypass option is
psychological consequences, that her decision as not fully informed.
followed; (4) that, if married, the
o
(2) 24 hour waiting period- close call, but not an undue burden (allowed) (Court does not determine whether it is undue burden as applied,
woman certify she informed her
only that it is constitutional on its face)
husband; and (5) that facilities

Does not impose substantial obstacles and it is not unreasonable to conclude that important decisions will be more informed and
providing abortion services must make
deliberate if they follow some period of reflection.
certain reports about each abortion,
o
(3) Spousal notification- invalid
including the woman’s age, gestational

Imposes an undue burden
age, type of abortion procedure, medical

The husband’s interest in the life of the child his wife is carrying does not permit the state to empower hum with a veto over the
conditions and results, and the weight of
abortion decision.
the aborted fetus. Compliance not

Creates a situation where men have dominion over their wives.
required in certain medical emergencies.
o
(4) Parental consent- Upheld so long as an adequate judicial bypass procedure exists
o
(5) Facility reporting requirements- upheld

Abortion restrictions are analyzed according to an undue-burden standard (overrules trimester framework)
43
o
Sternberg v.
Carhart
Gonzales v.
Carhart
Whole
Women’s
Health v.
Hellerstedt
An abortion restriction places undue burden on a woman seeking to abort a non-viable fetus if the regulation has the purpose or effect of
placing a substantial obstacle in her path.
o
The line is only drawn have viability
o
Under this approach, a law that services a valid purpose not designed to strike at the right of the abortion itself may be sustained even if it
makes it more difficult/ expensive to obtain an abortion, unless the law imposes an undue burden on woman’s ability to make an abortion
decision.
o
The state may further its interest in potential life but cannot place a substantial obstacle in the path of a woman’s choice.

State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

Nebraska law prohibits late-term dilation and extraction abortions without providing for exceptions to preserve the mother’s health

Struck down a Nebraska law prohibiting late-term dilation and extraction (D&X) abortions without providing for exceptions to preserve the mother’s health

Struck down because:
o
D&X significantly prevents health risks in certain circumstances
o
A statute forbidding D&X could endanger women’s health.
o
Statute did not distinguish between D&X and D&E, the most commonly used method for performing pre-viability second trimester abortions

Statute imposed an undue burden on woman’s right to make an abortion decision, because those who perform abortion procedures using D&E method would fear prosecution, conviction and
imprisonment
Challenged Partial-Birth Abortion Ban Act (PBABA). The

Act upheld prohibiting D&E
PBABA prohibited “intact dilation and evacuation” (Intact

Congress may ban a specific type of partial-birth abortion provided its restrictions on the practice are narrow and clear and the ban does
D&E). Carhart argued that the PBABA was unconstitutionally
not constitute an undue burden on a woman’s right to an abortion.
overbroad and lacked a health exception for partial-birth

D&E abortion requires the mother to deliver a living fetus, which is then killed when at least partially outside the mother. The fetus
is delivered for the purpose of performing an overt act to kill the fetus
abortions necessary to protect the health of the mother.

Leaves open the alternatives of other abortion procedures

Because the act only prohibited intact D&E and not other second trimester abortion procedures,
o
The act didn’t impose a substantial obstacle; and
o
The act’s purposes are legitimate under Casey

In addressing the lack of exception for an abortion where necessary for the mother’s health
o
A health exception would be constitutionally necessary only if medical evidence demonstrated that intact D&E was the
safer choice for some women compared to other forms of abortion.

The evidence on this question was inconclusive. Because of that medical uncertainty, the court deferred to Congress’s judgment
that no health exception was necessary.
Challenged the Admitting-Privileges Requirement, which

Law struck down
stated that that a doctor performing an abortion have admitting 
Admitting privileges and surgical center requirements rejected where half of state’s abortion clinics closed
privileges at a hospital no more than 30 miles from where the

Both provisions struck down. Court found the medical benefits were not sufficient to justify the burdens that each regulation
abortion was being performed. This provision was adopted to
imposes. The admitting privileges requirement led to closings of half of Texas’ abortion clinics.
ensure that women had easy access to a hospital in the event

Neither provision confers medical benefits sufficient to justify the burdens that imposes
that complications from the abortion arose. Also challenged

The majority opinion seems to adopt a benefit/ burden test that is unrelated to the “undue burden” test in Casey- more like strict scrutiny
the Surgical-Center Requirement, which required that the
standards for each abortion facility meet the minimum
standards for ambulatory surgical centers. The district court
determined that the laws would reduce the number of abortion
facilities in Texas from 40 to seven or eight.
Substantive Due Process and Marriage and Family Relationships
Marriage

The right to marry is a fundamental right and strict scrutiny is appropriate for evaluating the constitutionality of any state statutes limiting the right to marry. (Zablocki)
o
A ban on interracial marriage is unconstitutional (Loving)
o
Requiring proof of fulfillment of child support obligations to receive marriage license is unconstitutional (Zablocki)

Right to marry a person of another race cannot be infringed upon by the States under the Constitution (Loving)

*”Closely tailored” element not satisfied if other less intrusive means exist (Zablocki)
Family Relationships
44


The right of related family members to live together is fundamental and protected by the Due Process Clause, and necessarily encompasses a broader definition of “family” than just members of the nuclear family. (Moore)
Under the Due Process Clause, a state court may not grant visitation rights to a person, even when doing so would be in a child’s best interest, if those visitation rights are opposed by the child’s parent because doing so
interferes with the parent’s fundamental liberty interest in rearing his or her child. (Troxel)

The right of a potential natural father to assert parental rights over a child born into a woman’s existing marriage with another man is not traditionally recognized in historical jurisprudence and is not a fundamental
right protected by the Due Process Clause of the Fourteenth Amendment. (Michael H)
Loving v.

Struck down VA’s ban on interracial marriage
Virginia

Right to marry a person of another race cannot be infringed upon by the States under the Constitution

To deny this fundamental freedom to marry on so unsupportable basis as the racial classifications embodied in these statutes . . . is surely to deprive all State’s citizens of liberty without due
process of law.
Zablocki v.

Invalidated a Wisconsin law requiring that a marriage-license applicant with a child support obligation for a child not in his custody was not a public charge and that he complied with the child
Redhail
support obligations to receive the license.

The right to marry is a fundamental right and strict scrutiny is appropriate for evaluating the constitutionality of any state statutes limiting the right to marry.

A law that interferes directly and substantially with the right to marry cannot be upheld unless it is closely tailored to effectuate important state interests.

The right to marry is a fundamental right, and any legislative attempts by a state to limit that right are unconstitutional unless they are narrowly-tailored to the accomplishment of an important governmental
purpose.

Assuming that state’s interests in protecting out-of-custody children and motivating applicants to fulfill prior support obligations are valid, the state has numerous other effective means for
exacting compliance with support obligations that do not restrict the right to marry.
Turner v.

Extended Zablocki to prison inmates’ right to marry
Safley
Moore v.

Court invalidated a zoning ordinance limiting occupancy of a dwelling to members of a single “family,” narrowly defined to a couple and their dependent children.
East

The right of related family members to live together is fundamental and protected by the Due Process Clause, and necessarily encompasses a broader definition of “family” than just members of the nuclear
Cleveland
family.

Although the articulated city interests, such as preventing overcrowding and minimizing traffic and parking congestion, are legitimate, the ordinance serves them marginally at best.
Village of

Court allowed a Zoning restriction excluded most unrelated groups from living together in a village
Belle Terre

Majority found no privacy rights involved in this family-oriented zoning restriction because it only affected unrelated individuals
Troxel v.

Statute granted “any person” the right to petition for a child visitation rights “at any time”
Granville

Under the Due Process Clause, a state court may not grant visitation rights to a person, even when doing so would be in a child’s best interest, if those visitation rights are opposed by the child’s parent because
doing so interferes with the parent’s fundamental liberty interest in rearing his or her child.
Michael H v.
Carole conceived a child with Michael, but

Upheld the law
Gerald D.
Carole was married to Gerald at the time. She

The right of a potential natural father to assert parental rights over a child born into a woman’s existing marriage with another man is not traditionally
did not allow Michael visitation rights with the
recognized in historical jurisprudence and is not a fundamental right protected by the Due Process Clause of the Fourteenth Amendment.
baby. The law stated that a child born to the

Substantive due process requires the fundamental interest to be protected and traditionally protected by American society.
wife is legitimately a child of marriage, even if

Historically, the family relationship was protected against the type of claims asserted in this case.
the child was born out of an affair (with some
limited exceptions to rebut the presumption).
Substantive Due Process and Sexuality



Right to liberty under due process clause gives homosexuals full right to engage in their intimate conduct without government intervention. (Lawrence)
Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples. (Obergefell)
Same-sex couples have a constitutional right to marry protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Marriage is a fundamental right protected by the Due Process Clause.
(Obergefell)
Bowers v.
A Georgia statute criminalized oral and anal sex.

Constitution does not provide a fundamental right to engage in homosexual sodomy.
Hardwick

The Court defined the issue narrowly, as applying only to homosexuals.

OVERRULED IN LAWRENCE
Romer v.
Several Colorado municipalities passed

Struck down Amendment 2 using Equal Protection Clause
Evans
ordinances banning discrimination based on

A law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual community violates the Equal Protection Clause of the Fourteenth
sexual orientation in housing, employment,
Amendment.
education, public accommodations, health and

The law targets a specific class and the burden is far-reaching (but notice no discussion of whether homosexuality is a suspect class)
welfare services, and other transactions and
45
Lawrence v.
Texas
US v.
Windsor
Obergefell v.
Hodges
activities. In response to these ordinances,
Colorado voters passed Amendment 2, which
prohibited all governmental intervention designed
to protect the status of persons based on their
sexual orientation, conduct, practices, or
relationships.
Texas law criminalized same sex conduct.

DOMA (Defense of Marriage Act) stated
definition of marriage to a “union between one
man and one woman” and defines spouse as an
opposite-sex husband or wife
In response to some states legalizing same-sex
marriage, various states enacted laws and
constitutional amendments defining marriage as
between one man and one woman.








The Amendment does treat homosexual persons differently from the population as a whole because it withdraws from them, but no other persons,
specific legal protection from discrimination, and it forbids the reinstatement of laws and policies that would protect their interests.
Amendment 2 selects an entire group of people based on a single trait (i.e., sexual orientation) and discriminates against them across the board. As a
result, a whole class of people is unable to seek the protection of the laws.
Right to liberty under due process clause gives homosexuals full right to engage in their intimate conduct without government intervention.
The private, consensual activity at issue in this case is within the realm of personal liberty which the government may not enter
The fact that the governing majority in a state has traditionally viewed a particular practice is immoral is not a sufficient reason for upholding
a law prohibiting the practice
Under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states must issue marriage licenses and recognize lawful out-ofstate marriages for same-sex couples.
Same-sex couples have a constitutional right to marry protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Marriage is a fundamental right protected by the Due Process Clause.
Ultimately, the four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples:
o
(1) the right to person choice regarding marriage is “inherent in the concept of individual autonomy”;
o
(2) The right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed
individuals.
o
(3) assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation and
childrearing; and
o
(4) lastly, marriage is the very “keystone of our social order” and foundation of the family unit.
Substantive Due Process and Unwanted Medical Procedures/ Physician Assisted Suicide
Removing Life-Sustaining Medical Treatment

A surrogate may take action to have incompetent patient’s life-sustaining medical treatment removed, but a state may require by clear and convincing evidence proof of a patient’s wish to have life-sustaining medical
treatment removed. (Cruzan)

A state may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy and simply assert an unqualified interest in the preservation of human life to be weighed against
the constitutionally protected interests of the individual. (Cruzan)
Physician-Assisted Suicide

The right to physician-assisted suicide is not a constitutionally-protected liberty interest under the Due Process clause of the 14 th Amendment. (Glucksberg)

Distinguishes physician assisted suicide from withdrawing life-sustaining treatment (Vacco)
o
When a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication.
o
A physician who withdraws or honors a patient’s refusal to begin life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes and ‘to cease doing
useless and futile or degrading things to the patient when [the patient] no longer stands to benefit from them.’ This also applies to doctor providing aggressive care that may hasten a patient’s death: the
physician’s purpose and is to ease the patient’s pain; however, a doctor who assists a suicide must necessarily and indubitably intend that the patient die.
Cruzan v.
Cruzan suffered severe injuries in a car

Court granted parents’ petition to remove artificial nutrition and hydration.
Director
accident, and she was in a persistent vegetive

A state may require proof by clear and convincing evidence of an incompetent patient’s wishes as to withdrawal of life-sustaining medical treatment,
Dept of
state (a state in which she exhibited some motor
which can include removal of artificial nutrition and hydration.
Health
reflexes but no indications of significant
o
This is a procedural safeguard to insure that the surrogate’s request confirms to the patient’s wishes when the patient was competent.
cognitive functions). Her parents sought to
o
The State may use this heightened standard of evidence because the State has an interested in protecting life (through the Due
discontinue tubal feeding when it became clear
Process Clause)
that she had virtually no chance of regaining her
o
Court must balance the liberty interests of the now-incompetent person (which includes the fact that a competent person has a
cognitive faculties. She did not have advance
constitutionally protected liberty interest under 14th Amendment to refuse unwanted medical treatment) against the state’s interest
direction. Parents petition to remove artificial
in preserving life.
nutrition and hydration.
46

Washington
v.
Glucksberg
Vacco v.
Quill
A state may properly decline to make judgments about the ‘quality’ of life that a particular individual may enjoy and simply assert an
unqualified interest in the preservation of human life to be weighed against the constitutionally protected interests of the individual.
A Washington state law made it a crime to

Upheld a statute banning physician-assisted suicide
knowingly cause or aid another person to

The right to physician-assisted suicide is not a constitutionally-protected liberty interest under the Due Process clause of the 14 th Amendment.
attempt suicide. Glucksberg claimed that the

Two “primary features” of due process analysis
law violated a liberty interest protected by the
o
(1) Whether the right is objectively, deeply rooted in US history and tradition and implicit in the concept of ordered liberty such
Fourteenth Amendment.
that neither liberty nor justice would exist if the right is sacrificed.

US history and tradition has almost uniformly rejected the existence of the right and most states continue to explicitly
reject it to this day
o
(2) Whether a careful description exists of the fundamental liberty interest.

The right to assisted suicide is distinguishable from the right of competent persons to remove unwanted life-sustaining
treatment recognized in Cruzan v. Director, Missouri Dept. of Health

In Cruzan, the Court reasoned that the right to be free from unwanted medical procedures is long established in national
traditions upholding bodily integrity and protecting against battery, even by physicians. In contrast, the right to assisted
suicide shares no such historical support in national traditions.

Washington’s ban on the practice is subject to rational basis review and may be upheld if it is rationally related to legitimate state interests.

Washington has several legitimate interests in the ban: the preservation of human life; the protection of vulnerable groups, including the poor,
elderly, and disabled from abuse, neglect, and mistakes; and the discouragement of state policy from following a path that might eventually lead to
involuntary euthanasia.

Court held that New York did not violate the Equal Protection Clause by prohibiting assisted suicide while permitting patients to refuse live-saving medical treatment

Companion case to Washington

Distinguishes physician assisted suicide from withdrawing life-sustaining treatment
o
When a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease; but if a patient ingests lethal medication prescribed by a physician, he is killed by that
medication.
o
A physician who withdraws or honors a patient’s refusal to begin life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes and ‘to cease
doing useless and futile or degrading things to the patient when [the patient] no longer stands to benefit from them.’ This also applies to doctor providing aggressive care that may hasten a
patient’s death: the physician’s purpose and is to ease the patient’s pain; however, a doctor who assists a suicide must necessarily and indubitably intend that the patient die.
Procedural Due Process and the right to a Hearing
Goldberg v.
Kelly


Board of
Regents v.
Roth



Perry v.
Sinderman



Bishop v.
Wood



Cleveland
Board of Ed

Due process required that a welfare recipient be afforded “an evidentiary hearing before the termination of benefits”
When a state seeks to terminate welfare benefits, procedural due process requires the state to provide the recipient with a pre-termination evidentiary hearing for the purpose of determining the validity of
discontinuing public assistance in order to protect the recipient against an erroneous termination of his benefits.
Cut back on Goldberg’s extension of due process hearing rights to all manner of government entitlements
The range of interests protected by procedural due process is not infinite. The 14 th Amendment procedural protection of property is a safeguard of the security of interests that a person has
already acquired in specific benefits.
The terms of the respondent’s appointment secured specific benefits, but did not secure interest in re-employment for the next year. Nor was there any state statute or University rule or policy
that secured his interest in re-employment or that created any legitimate claim to it. The respondent surely had an abstract concern in being rehired, but he did not have a property interest
sufficient to require the University authorities to give him a hearing when they declined to renew his contract.
Showed that judicial attentiveness to background state law in evaluating claimed constitutional entitlements was not always fatal to due process claims
Held that Sindermann’s lack of formal tenure right to reemployment, taken alone, did not defeat his claim that the non-renewal of his contract violated due process.
A person’s interest in a benefit is a property interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that
he may invoke at a hearing.
The termination of an at-will city employee without a hearing does not violate due process.
The determination of a person’s entitlement to continued employment must be made on the basis of the applicable state employment law.
Though such a law could guarantee the employee an explicit property or liberty interest in his or her employment, the law in this case does not. Therefore, the former officer was not entitled to any dueprocess protections beyond those already provided by the relevant state law. To hold otherwise would potentially make any number of local personnel decisions subject to judicial review on constitutional
due-process grounds.
The Due Process Clause of the Fourteenth Amendment requires a limited pre-termination hearing before the discharge of an employee who has a constitutionally protected property interest in his
employment, followed by a more elaborate post-termination hearing to challenge the discharge.
47
v.
Loudermill


Town of
Castle Rock


The Due Process Clause provides that certain substantive rights—life, liberty, and property—cannot be deprived except pursuant to constitutionally adequate procedures.
The Constitution does not create or define property interests. Rather, a property interest is created and defined by other sources, such as state law. However, the minimum procedural requirements
necessary to protect the interest are a matter of federal law, even if the state has specified its own procedures that it deems sufficient.
Citizen of a state does not have an enforceable property interest for due process purpose in police enforcement
An estranged husband, in violation of a restraining order, abducted and killed his three children before being shot and killed by police upon whom he had opened fire.
48
Equal Protection
Fourteenth Amendment: No State shall “deny to any person within its jurisdiction the equal protection of the laws”

State Application: Applies to the State via explicit text

Federal Application: Applies to Federal Government as an aspect of Fifth Amendment Due Process (Bolling)
Historically the Equal Protection Clause was directed at racial discrimination against African Americans but over time expanded to other categories
Identifies factors to consider in assessing whether discriminating purpose was a motivating factor (factors for finding evidence of discriminatory purpose --> Whether strict scrutiny is used for facially
neutral law with disproportionate impact on minorities):

(1) -- Impact so clearly discriminatory as to allow no other explanation than adopted for impermissible purpose; Clear pattern that cannot be explained on grounds other than race (Yick Wo; Gomillion)

(2) – Historical background/sequence of events (e.g. change from multiple family to single use abruptly)

(3) – Departures from the normal procedural sequence or substantive departures: particularly if the factors usually considered important by the decision-maker strongly favor a decision contrary to the one
reached

(4) – legislative or administrative history, contemporary statements by members of the decision-making body reveal impermissible purpose (meeting minutes or reports)

Once there’s evidence of discriminatory purpose, burden shifts to gov’t to show it would have taken the same action without the discriminatory motivation
Sexual orientation

Court has not definitively said whether other distinctions based on sexual orientation require strict scrutiny under traditional equal protection analysis

We don’t know whether Obergefell is actually suggesting whether LGBT is a suspect class

While classifications based on sexual orientation have not formally been acknowledged as suspect, the Court has struck down state sodomy laws, a state constitutional amendment excluding sexual orientation from the reach of
antidiscrimination laws, and laws defining marriage so as to preclude official recognition of both federal and state laws
Transgender rights/ other sexual identities

Not addressed by court
EQUAL PROTECTION AS APPLIED TO CLASSES
Strict Scrutiny
When a suspect class (e.g., race, gender, alienage) or a fundamental interest (e.g., voting or criminal appeals) is involved, the
legislative means must be “necessary” (narrowly tailored) to achieve “compelling” state interests.

Requires that regulation serve compelling governmental interests and be essential to those interest
Strict scrutiny and Race discrimination- Education

Separate educational facilities based on racial classifications are inherently unequal and violate the Equal Protection Clause of the
Fourteenth Amendment. (Brown I)

Separate but equal also violates 5th Amendment Due Process (along with 14th) (Bolling)

The ultimate date of compliance by schools to desegregate is up to the discretion of individual courts, which should require schools to
desegregate “with all deliberate speed.” (Brown II)
o
A school board’s adoption of a plan that allows students to choose their own public schools does not constitute sufficient
compliance with the board’s responsibility to establish a nonracial system for determining public-school admission.
(Green)
o
Districts can drastically gerrymander for the purposes of achieving integration (Swann)
o
Federal courts cannot achieve desegregation of urban schools by ordering the children bused to suburban school
districts (and vice versa), as long as the suburban school districts had nothing to do with causing the segregation that
exists in the city school district (Milliken)
o
Federal court’s regulatory control of schools does not extend beyond time required to remedy the effects of past
intentional discrimination [once intentional discrimination is done, federal courts not no longer have control) (Board
of Ed OKC)

A finding that school authorities intentionally segregated any significant portion of the school district creates a presumption
that the entire school district is being operated on a segregation basis. (Keyes)
Eliminating Other Vestiges of Segregation

Interracial marriage (Loving)
Intermediate Scrutiny
For quasi-suspect classes
Requires that a regulation
serve important governmental
objectives and be
substantially related to
achievement of those
objectives

Also for suspect
classifications
Sex discrimination: important
government interest, substantially
related

A governmental regulation
involving gender
discrimination is constitutional
if it is substantially related to
the achievement of an
important government purpose.
(Craig)

Defenders of genderclassifying law must carry the
burden of showing an
exceedingly persuasive


Rationality review/ rational basis
For non-suspect classes
Laws creating economic classifications
require only a rational relationship to
legitimate ends (Railway Express,
Railroad Retirement, Williamson, New
Orleans)

However, if the law is on its face
irrational and arbitrary, there is no
need to look to animus in order to
state a claim for relief. (Villege of
Willowbrook)

Court may determine how the law is
rationally related ex post
o
Explicitly mentioned in
Railway Express
o
Explicitly mentioned in
Railway Retirement

Court gives deference to legislature’s
judgment (accepted their reasoning
unless discriminating based on
suspect class or fundamental
interest) (Railway Express)
49

Child custody and interracial marriage (Palmore)
**Race is ALWAYS evaluated using strict scrutiny UNLESS the law is facially neutral and, although it may have a
disproportionate impact on a minority, there is no evidence that racial discrimination was a motivating factor.***(Yick Wo,
Washington v. Davis , Rodgers v. Lodge, Hunter v. Underwood, Arlington Heights)
Relaxed strict scrutiny: affirmative action

There is a compelling government interest in remedying past discrimination

Hallmarks of a narrowly tailored, constitutional affirmative action admissions policy (Grutter)
o
Not allowed:

Quotas

Insulating minorities from the competition of admission
o
Allowed: considering “race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration
of each and every applicant

Although Race cannot be the “defining feature” of the application, “narrow tailoring does not require
exhaustion of every conceivable race-neutral alternative.”

Race cannot sole basis for admission (Bakke)

A university’s admissions policy that automatically gives preference to minority students on the basis of
race, without additional individualized consideration, violates the Equal Protection Clause of the Fourteenth
Amendment. (Gratz)
o
Race conscious admission policies must be limited in time.

Majority said that this is because “We expect that 25 years from now, the use of racial preferences will
no longer be necessary to further the interest approved today.” (Grutter)

A court cannot invalidate a state’s decision to allow voters to determine whether the state’s policy of race-based preferences should
be continued. (Schuette)
Racial Preferences in Employment and Contracting

If a compelling government interest is established for a set-aside (e.g. remedying past discrimination), how to determine if
the government action is narrowly tailored to achieve that interest
o
(1) The Necessity for relief and the efficacy of alternative [race-neutral] remedies
o
(2) The flexibility and duration of the relief, including the availability of waiver provisions
o
(3) The relationship of the numerical goals to the relevant labor market
o
(4) The Impact of the Relief on the Rights of Third Parties

14th Am. requires strict scrutiny of all race-based action by state and local governments. Thus, any person, of whatever race,
has the right to demand that the government justify any racial classification subjecting that person to unequal treatment under
the strictest judicial scrutiny. (Croson)

Congress may affirmatively require a minimum minority participation as a condition of the expenditure of federal funds so
long as it is narrowly tailored to remedy the effects of prior discrimination (meaning that there must be prior discrimination in
that area in the first place) (Fullilove)

Federal minority set-aside programs are subject to strict scrutiny (Adarand)

State minority set-aside programs are subject to strict scrutiny (Croson)
Racial Discrimination in K-12 Public Education
o
Strict scrutiny applies (maybe  Kennedy concurrence)
o
Kennedy Concurrence: It is permissible to consider the racial makeup of schools and to adopt general policies to
encourage a diverse student body, one aspect of which is its racial competition
o
Might include:

Strategic site selection of new schools

Gerrymandering attendance zones

Allocating resources for special programs

Targeted recruiting of student and faculty

Tracking racial statistics





justification for the
classification (stronger form of
intermediate scrutiny) (Missi.
Univ. for Women)
o
Outdated
misconceptions of
gender roles do not
provide valid
justifications
o
Gender cannot be used
as an inaccurate proxy
for other, more
germane basis of
classification.
In limited circumstances, a
gender-based classification
favoring one sex can be
justified if it intentionally and
directly assists members of
the sex that is
disproportionately burdened.
(Missi. Univ. for Women)
Simply because a statute
discriminates against males
rather than females does not
exempt it from scrutiny or
reduce the standard of review
(Missi. Univ. for Women) (also
US v. VA)
Pregnancy is not a protected
class under intermediate
scrutiny (Geduldig)
Although legislature may not
make overboard
generalizations based on sex
that are based on personality
and emotional stereotype,
legislation may realistically
reflect that fact that sexes are
not similarly situated in
certain circumstances.
(Michael M for statutory rape
laws, but seen in VA as well
for military academies,
Rostker for draft, Nguyen,
Caban)
Congress has authority over
national defense and military
affairs and is accorded broad
deference in this area (applies

Court gives deference to government
ends (accepts government’s
reasoning unless discriminating
based on suspect class or
fundamental interest) (Railroad
Retirement)

Court gives means-end deference
(Accepts the means and ends as valid
unless there is invidious
discrimination) (Williamson, Dukes,
Nordlinger)

Exception: There are rare case in
which Court could find no real
connection between a classification
and its purposes under rational-basis
review (Alleghany)
Exception: Heightened rational basis
scrutiny if “animus” (rational basis with
bite) (US Dept Agri v. Moreno, NYC
Transit)
Socioeconomic laws, classifications not
deemed inherently suspect (age, disability)
Undocumented aliens generally get rational
basis scrutiny

Exception: education for children

Undocumented children in public
education are provided education on
same basis as documented kids
Government function exception for lawful
aliens
Disability (mental retardation)

Because. given the wide variation of
abilities and needs of the mentally
disabled, governmental bodies must
have a certain amount of flexibility
and freedom from judicial oversight
in shaping and limiting their
remedial efforts (Cleburne)
Age

Age is not a suspect class nor is a right
to continued public employment a
fundamental right. (Mass Retirement
Board)
Poverty

Poverty, standing alone, is not a
suspect class
50
o
These might not even require strict scrutiny—note that lower courts have reached different results in different cases
to gender-specific laws).
about whether strict scrutiny applies
(Rostker)
o
Only compelling interest is remedying past intention (de jure) discrimination (interest in fostering diversity is unique to
higher education)
o
Student assignment plans using race to allocate slots in oversubscribed high schools or to make elementary school
assignments or consider transfer requests not narrowly tailored
Race Preferences in Electoral Districting

A state legislature cannot create a voting district that is so irrational on its face that it can be understood only as an effort to
segregate voters into separate voting districts because of their race alone. (Shaw)

A bizarrely shaped district is not a necessary pre-requisite for finding of unconstitutionality but that shape may be
circumstantial evidence of intent to use race for its own sake (Miller)

The plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more
direct evidence going to legislative purposes, that race was the predominant factor motivating the legislature’s decision to
place a significant number of voters within or without a particular district. (Miller)
Lawful Alienage and classifications by states
Alienage laws apply to legally resident aliens, not undocumented aliens.

Alienage is a protected class

Doesn’t mean that there is strict scrutiny for the US government in deciding how many visas it can issue
o
Starts once they are classified as a legally resident alien

Graham: strict scrutiny, struck down denial of welfare benefits to legal aliens

In re Griffiths: strict scrutiny, struck down limitation on bar admission for legal aliens

Sugarman: strict scrutiny invalidating NY law providing only American citizens can hold permanent positions in civil service

Exception: Governmental function exceptions (STILL EXPLAIN SITUATIONS BOTH RATIONAL BASIS AND STRICT
SCRUTINY)
o
Police officers- directly interface on behalf of government; directly enforce law (Foley)
o
Elementary school teachers- Have a unique opportunity to influence the attitudes of students toward government, the
political process and a citizen’s social responsibilities (Ambach)
o
BUT cannot justify barriers for lawful aliens becoming notary publics- duties essentially clerical and ministerial. (Bernal)
Federal restrictions on aliens: broader than limitations on States. Nearly plenary authority

Congress can make distinctions between different classes of resident aliens, classifications based on resident aliens’ home countries
to be a legal resident in this country, terms in which they enter US, purpose and lengths of visas, can make distinctions on benefits,
what’s provided to them, etc.

There are still separation of powers issues because it is Congress that establishes a uniform rule of naturalization under Art I § 8
ECONOMIC- RATIONAL BASIS
Railway
NY statute prohibited vehicles devoted solely to 
Regulation upheld because it satisfied rational basis review (with extreme deference given to legislature’s judgment)
Express v. NY displaying advertisements, but permitted

Reflects extreme deference to the legislature’s judgement
business vehicles to display signs related to

A state regulation does not violate Equal Protection Clause by regulating only some types of conduct but not all similar conduct, even if the
their business as long as the business vehicles
similar conduct being allowed is worse than the one prohibited.
were not solely used for advertising. Goal was

The New York City regulation didn’t violate equal protection despite the underinclusive nature of its regulation and its differing treatment of
to eliminate distractions and reduce number of
similarly situated businesses.
accidents. Railway Express sold the space on

The Equal Protection clause does not require a state to regulate all types of the same conduct or none at all.
the exterior sides of its trucks for advertising

The Equal Protection Clause doesn’t prevent discriminatory laws that seek to achieve a legitimate government purpose if they do not
that was primarily unrelated to its business.
discriminate in ways prohibited by the Clause. (Ex. On the basis of race)

Allows for ex post justification, where the court can reverse engineer and determine the legitimate end of a statute, even if it wasn’t what the
legislatures intended when passing the law.
US Railroad
Challenged Railroad Retirement Act. Person

Railroad Retirement Act is upheld
Retirement v.
could keep claiming windfall benefits if they

Reflects deference to governmental ends
Fritz
were retired and already were receiving dual

Under rational basis review, Congress’s actual purpose behind a law is irrelevant and the law must be upheld as not violating the Fifth Amendment if any
benefits before 1975. Individuals who had not
statement of facts may reasonably be conceived to justify its discrimination.
51
Williamson v.
Lee Optical
Co.
New Orleans
v. Dukes
US Dept of
Agriculture v.
Moreno
NYC Transit
Authority v.
Beazer
Alleghany
Pittsburgh
Coal v.
Webster
County
Nordlinger v.
Hahn
yet retired but qualified for dual benefits before
1975 and met one of three conditions were also
entitled to windfall benefits. Petitioners claimed
it was arbitrary and irrational to classify certain
railroad employees eligible while denying
others the same benefits.
An Oklahoma state law made it unlawful for
any person not licensed as an optometrist or
ophthalmologist in the state to fit lenses to a
face or fashion existing lenses into a frame
unless given a prescription by a state-licensed
optometrist or ophthalmologist. The law
discriminated against opticians, and eyeglass
retailers, but not sellers of ready-to-wear
glasses.
Law prohibited pushcart food vendors in the
French Quarter with the exception of vendors
operating there for at least 8 years.
Court struck down a provision of the federal
food stamp program limiting assistance to
“households” defined as groups of related
persons. Court concluded that the provision
was meant to block hippie communes from
getting food stamps.




















A law may classify people as eligible or ineligible to receive certain social or economic benefits if there is some reasonable basis to justify the
classification
Court relied on the fact that “plausible reasons” for the distinction existed, based on the relative equities for the workers (not irrational or
arbitrary). Also, preventing the Railroad Retirement Board from going bankrupt was a legitimate end.
Ex post justification- To the Court, it was “constitutionally irrelevant whether this reasoning in fact underlay the legislative decision.”
A law doesn’t violate Equal Protection simply because the classification isn’t made with mathematical nicety or results in some inequality.
State law upheld
Reflects means-ends deference
The court won’t strike down state legislation unless there is invidious discrimination
A state can regulate the health and safety of its citizens so long as it has a rational basis for doing so and the law doesn’t result in discrimination
Law upheld
Defers to the judgment of local legislatures when reviewing Equal Protection Clause challenges to local economic regulations.
Court presumes the statutory classification is valid and will upheld it so long as it doesn’t harm a fundamental personal right and doesn’t
purport to draw lines based on suspect distinctions (and is rationally related to a legitimate state interest)
Purpose of preserving French Quarter’s unique character was a legitimate state interest.
Law struck down because no valid legitimate government interest
A bare congressional desire to harm a politically unpopular group cannot constitute a legitimate government interest
There were no other legitimate governmental interests that the classification rationally furthered (could not come up with an ex post
justification)
Classification excluding households with nonrelatives was clearly irrelevant to the statute’s purpose
Animus found in this case
Upheld a law that excluded all methadone users from any Transit Authority employment
No animus found
Even though this could exclude methadone users who were actually qualified to work, the Court found that the classification served the general objectives of safety and efficiency and did not
define a class based on an unpopular trait or affiliation.
A WV Constitution established a general

Property tax scheme law struck down
principle of uniform taxation so that all

Rare case in which Court could find no real connection between a classification and its purposes under rational-basis review
property would be taxed in proportion to its

It was unconstitutional, in light of West Virginia’s requirement that property be taxed in proportion to its value, to assess one owner’s property
value. A statute led to the reassessment of
on the basis of a recent purchase price without also updating the assessment on neighboring property. The disparity caused the plaintiff to bear
certain property values and not of others,
an unreasonably unequal burden.
leading to disparities in the assessed values of 
The inconsistent treatment was not rationally related to a legitimate purpose, and it resulted in increasing property values 35x greater than those
comparable properties.
that had not been sold. (directly contrasting state Constitutional requirement)

Court upheld a statute imposing property taxation rates based on the price of the property at the time of the acquisition.

Legitimate state interests and rationally related means
o
There was a legitimate state interest in local neighborhood preservation, continuity and stability  the tax system accomplished this by discoursing rapid turnover in ownership of
homes and businesses
o
There was a second legitimate interest in protection the reliance interest and expectations of existing owners who have vested expectations in their property

Court concluded that, unlike Alleghany, California had an adequate factual basis for its acquisition-value taxation scheme.

The Equal Protection Clause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale
supporting its classification.

Said that Alleghany Pittsburgh was a rare case where the facts precluded any plausible inference that the reason for the unequal assessment practice was to achieve the benefits of an acquisition
value-tax scheme.
52
Village of
Willowbrook
v. Olech
Plessy v.
Ferguson
Gaines v.
Canada
Sweat v.
Painter
Brown I
Bolling v.
Sharpe
Brown II




Permitted equal protection challenge to proceed under rationality review
Village demanded a 33-foot easement on Olech’s property when the Village had only required a 15 foot easement from other property-owners seeking similar access.
Court addressed the actions simply as an instance of irrationality, without regard to motive or animus
The allegations that the demand was irrational and wholly arbitrary were enough to state a claim for relief. No need to determine motivation.
RACE- STRICT SCRUTINY
Plessy, an African

Law upheld
American, challenged a

Public accommodations that are segregated according to racial classifications do not violate the Equal Protection Clause of the Fourteenth Amendment as long as such
law providing separated
accommodations are “separate but equal.”
rail cars based on race by

While the object of the Fourteenth Amendment is to promote the equality of all races before the law, it cannot have been intended to abolish all distinctions based on
taking a seat in the White
color, or to enforce social (as opposed to political) equality when African Americans and Caucasians do not actually want to be commingled.
railcar and refusing to

Legislative judgments forcing commingling cannot be used to improve race relations, and if the two races are to meet upon terms of social equality, it has to be the result
move.
of an organic process.
Missouri was creating a law mandating separate school for Black students, but no school currently available. Court held the State was obligated to provide Gaines, a black applicant, a legal education
within the state’s borders equal to what white students received and in the absence of that opportunity, was entitled to be admitted to the existing state law school.
Required the admission of blacks to the University of Texas Law School even though the state had recently established a law school for Blacks because there was no equality given the disparate
number of faculty, opportunities for specialization, size of library, reputation of faculty, and general prestige.
African American minors

Law struck down; separate but equal repudiated
sought the aid of their state

Separate educational facilities based on racial classifications are inherently unequal and violate the Equal Protection Clause of the Fourteenth Amendment.
courts in gaining admission

Even if black and white schools are substantially “equal” in tangible factors, there exists an invidious discriminatory effect when black and white children are segregated.
to public schools on a non
To determine whether the segregated schools violate 14th Amendment, Court says must look at effect of segregation on public education as a whole, not just a de
segregated basis. In all
facto list of factors
instances, Brown and other
o
Public education has, over the years, become one of the most valued and important public services performed by state and local governments. Children can hardly
minor African American
be expected to succeed in life if they are not educated. Thus, when an opportunity for education exists and the state has undertaken to provide it, that opportunity
children had been denied
must then be made available to all students on equal terms.
admission to public schools

Must look at then modern-day education – society realized its importance, emphasizing school attendance laws and proportion of expenses and says education is
attended by white children
the most important function of state and local governments
under laws requiring or
o
In the present case, the opportunity for education is not equally provided to minority students, as the existence of segregation has a profound and detrimental effect
permitting segregation
on their hearts and minds. Modern studies confirm that the children experiencing segregation feel inferior, become less motivated, and perform at a lower standard
according to race
than children that do not experience segregation.

Turned to Sweatt, which relied on qualities incapable of objective measurement

Turned also to the sociological and psychological effects of development – that segregation impairs education and mental development  Segregation creates a
feeling of inferiority, which may significantly affect a child’s motivation to learn

Brown prohibits de jure segregation (segregation encoded in law). It does not prohibit de facto segregation.

Racial segregation in the District of Columbia public schools violated the Due Process Clause of the Fifth Amendment

Due Process of 5th Amendment and Equal Protection of 14th Amendment are closely related.

Equal protection affords a somewhat higher level of protection against impermissible discrimination than due process guarantees, but invidious discrimination may rise to the level of a due process violation.

Liberty may not be restricted except to serve a legitimate government interest. Public school segregation serves no legitimate government interest. Differential treatment of African-American children deprives
them of liberty in violation of the Due Process Clause. Having already concluded that the Constitution prohibits the states from discriminating in public education, we cannot rationally exempt the federal
government from the same prohibition.
While most public

Recognizing the possibility of resistance, the court allowed the remedies to proceed “with all deliberate speed”
facilities were ordered to

The Court stated that the full implementation of the constitutional principles required solution of various local school problems to be solved by school authorities
integrate at once, the Court
and reviewed by courts to assure good faith compliance.
initially permitted gradual

The ultimate date of compliance by schools to desegregate is up to the discretion of individual courts, which should require schools to desegregate “with all deliberate speed.”
desegregation of public
schools in recognition of
the difficulties inherent in
school desegregation.
53
Green v.
County
School Board
Swann v.
CharlotteMeckenburg
Board of Ed
Keyes v.
School
District
Milliken v.
Bradley
Board of Ed
OKC v.
Dowell
McLaughlin
v. FL
Loving v. VA
Local governments
dragged their feet.
A public school district

A school board’s adoption of a plan that allows students to choose their own public schools does not constitute sufficient compliance with the board’s responsibility to
argued that food faith
establish a nonracial system for determining public-school admission.
“freedom of choice” plans

The Brown decisions placed an affirmative duty on school boards to take all necessary steps to abolish segregation in their schools and begin operating integrated school
adequately complied with
systems
the Brown mandate, even

Here, although the board claims that its freedom-of-choice plan satisfies its obligations under Brown, the board’s mere opening of the New Kent and Watkins Schools to
though, after three years of
students of either race is only the first step in achieving a racially integrated school system. It has now been three years since the plan was adopted. No White students
operation, no white
have enrolled in the Watkins School, and 85 percent of the Black students have chosen to remain at the Watkins School. These enrollment figures demonstrate that the
children had chosen to
board is still operating a racially segregated school system.
attend the former black

The board has done nothing more than attempt to transfer its responsibility for desegregating the school system to the students and parents. The board must be required to
school and about 85% of
create a new plan with further steps that will realistically abolish segregation and achieve racial integration in the county’s schools.
black children remained in
the all-black school

Court affirmed District Court’s order to make the school prepare a more effective plan, more than zoning and free transfers.

At least where there is a finding that the segregation is deliberate (de jure) the Court has held that federal district courts are empowered to fashion whatever remedies are necessary to desegregate local
schools

Courts had broad discretion to use “frank and sometimes drastic gerrymandering of school districts and attendance zones.”
o
There is a legal presumption that the segregation is de jure but evidence can be brought forth to prove that it is de facto.
o
Districts can drastically gerrymander for the purposes of achieving integration .
Desegregation outside the
A finding that school authorities intentionally segregated any significant portion of the school district creates a presumption that the entire school district is being
South. In the northern
operated on a segregation basis.
states, claims of
segregation normally were
based on the de facto
approach.

Federal court may not order busing of students between school districts to remedy de jure segregation in only one of the districts unless discriminatory acts of one school district have been a
substantial cause of inter-district segregation

E.g., the district boundaries were drawn so as to foster such segregation, or one district had engaged in racial discrimination that caused the segregation to exist in the other district

Absent an inter-district violation, there is no basis for an inter-district remedy

Federal courts cannot achieve desegregation of urban schools by ordering the children bused to suburban school districts (and vice versa), as long as the suburban school districts had nothing to
do with causing the segregation that exists in the city school district

Federal court’s regulatory control of schools does not extend beyond time required to remedy the effects of past intentional discrimination [once intentional discrimination is done, federal courts
not no longer have control)

Federal supervision was intended to be a temporary measure that was no longer necessary after local authorities had complied with once the decree and vestiges of past discrimination had been
eliminated.

Court invalidated a criminal adultery statute that prohibited cohabitation by interracial unmarried couples

This is a classification based on Race that must be viewed in light of the 14th Amendment, which was to eliminate racial discrimination emanating from official sources in states.

This policy renders classifications ‘constitutionally suspect’ and subject to the “most rigid scrutiny” and in “most circumstances irrelevant to any constitutionally acceptable legislative
purpose.” There was no justification why conduct was proscribed between mixed races but not otherwise and as such this is discrimination forbidden by equal protection

Statute is not upheld because the state has failed to show any legitimate overriding purpose for the distinction between one-race and interracial marriages other than invidious discrimination.

State argues the statute falls within the realms of the 14th Amendment because the statute applies equally to Whites and Blacks but this is rejected because equal protection means more than
mere “equal application”

Strict Scrutiny – Equal Protection demands racial classifications especially suspect in criminal statutes be subjected to the “most rigid scrutiny” and if ever upheld, they must be shown to be
necessary to the accomplishment of some permissible state objective, independent of the racial discrimination.

Court makes point Virginia only prohibits interracial marriages involving white people and the Act’s Title and purpose was “An Act to Preserve Racial Integrity”. This particularized application
(aka not restricting interracial marriages between different minority groups) makes the statute arbitrary.
54
Palmore v.
Sidoti
Korematsu v.
US (overruled
by Trump v.
Hawaii)
Yick Wo v.
Hopkins
Washington v.
Davis
Arlington
Heights v.
Metropolitan
Housing Corp.
Rodgers v.
Lodge
Court faced question whether “the best

Even if the child may suffer from social stigmatization because of the racially mixed household, such private biases are not permissible
considerations under the Constitution
interests of the child” standard could permit

Private biases may be beyond the reach f the law, but the law cannot give them effect
a custody allocation to prefer a safe-race

While child custody and protection is a substantial governmental interest for purposes of equal protection, the Court said private biases cannot be
remarriage over an interracial remarriage.
given effect directly or indirectly.
Two white people divorced, both remarried
– one into interracial marriage, another into
same race. Court granted custody to samerace remarriage as was in child’s best
interest not to suffer from social
stigmatization “that is sure to come” Court
unanimously reversed that ruling.

Strict Scrutiny was first announced in Korematsu v. United States (1944) (which was overt discrimination, unlike cases: Brown, Loving and Palmer – which were facially symmetrical /
neutral). This was case arose because of the internment of Japanese Americans during WWII following Pearl Harbor. This was one of the few cases that survived an equal protection challenge
strict scrutiny despite the classification imposing a disadvantage by race.

Although the law would have been clearly invalid under normal circumstances, the Court upheld it because of the exigencies of war and the need for quick action. Classification was reasonable
un light of the circumstances.
Wo operates a laundry but is then refused a

Discriminatory application of a statute that is fair and impartial on its face constitutions denial of equal protection under 14th Amendment, so
permit. Granted permits to operate laundries
long as there is evidence of de jure discriminatory purpose in applying the law or discriminatory intent can be inferred from discriminatory
in wooden buildings to all but one noneffect.
Chinese applicants, no Chinese laundry

Racial animus may not be enough- racial animus must be connected to an improper effect.
operators (~200) granted permit. Ordinance

*** Check for a facially discriminatory purpose against race. Then check for de jure discrimination in the administration of the law.
prohibited operating a laundry (except in
brick or stone bldg.) w/o consent of Board.
Yick Wo imprisoned
DC Police Department utilized consisting of 
Qualifications test is constitutional.
a written test measuring verbal ability,

A disproportionate impact on different races resulting from a general qualification test does not, by itself and independent of any discriminatory
purpose, establish a constitutional violation.
vocabulary, reading and comprehension.

Case solidified that laws w/ racially discriminatory effect but were not adopted for a racially discriminatory purpose are valid
African American applicants brought the

The purpose need not be express, but it must be exist, whether on the face of the statute or in its application.
challenge who were rejected from the

Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution
department due to an unsatisfactory score

Rejected heightened scrutiny of a civil service exam not adopted for discriminatory purpose, this retreated from earlier cases that discriminatory
on this exam.
purpose can be “smoked out from behind apparently racially neutral laws”. Decisions after confirmed that racially discriminatory purpose can
still be inferred even absent stark statistical disparities
Plaintiff applied for rezoning in order to

Without proof of improper intent, a mere showing of disproportionate impact on a racial minority is inadequate alone to demonstrate
constitutional violation. – Reaffirmed Washington
build units for low-income tenants, many of

When disproportionate racial impact is proved, the government must show that the is law on its face and serves proper governmental ends, but
whom would be racial minorities.
burden is not high.

The challenged action need not rest solely on such a racially discriminatory purpose; it is enough to show that a purpose was a motivating factor
in decision
Black citizens of Burke County, Georgia,

The election system was racially neutral when adopted but was being maintained for invidious purposes and ordered that the county be divided
into five districts for purposes of electing commissioners.
brought suit challenging the county’s

Court struck down at-large election system as Blacks were majority of population of county, but had diluted voting power and had never elected
system of at-large elections. Over 53% of
a black candidate
the county population was black, but only

Evidence of bloc voting along racial lines, and the fact that no black person had ever been elected to the commission, was insufficient by itself to
about 38% of the registered voters were
prove purposeful discrimination. BUT court also considered the impact of past discrimination, which resulted in low black voter registration and
black. The Burke County Board of
the absence of blacks in various governmental positions; the voting scheme has served to maintain the status quo
Commissioners governed the county and
consisted of five members elected at large.
55
Hunter v.
Underwood
Regent of
Univ. of CA v.
Bakke
Grutter v.
Bollinger
Gratz v.
Bollinger
Schuette v.
Coalition to
Defend
Affirmative
Action
No black person had ever been elected to
the commission.

The Court held that the disenfranchisement of persons convicted of any crime “involving moral turpitude” was unconstitutional because it had produced disproportionate effects along racial
lines.

The evidence clearly showed that the motivation for the provision in the Alabama Constitution was to discriminate against blacks.

Court finds a discriminatory purpose based on disparate impact & circumstantial historical evidence from which discriminatory intent can be inferred.

Court finds law based on racially discriminatory purpose citing starkly disparate impact (disenfranchised ten times as many African Americans as whites) and inference of intent from historical
evidence of white supremacy at the Alabama Constitutional Convention

Rejects claim that legislators’ purpose to also discriminate against poor whites rendered the racially discriminatory purpose nugatory
The University of California, Davis

UC Davis’ program was unconstitutional and Bakke should be readmitted, but it is untrue that race can never be a factor in admissions.
Medical School practiced a policy

Strict scrutiny applies because ethnic and racial distinctions of any sort are inherently suspect and thus call for exacting judicial scrutiny
whereby it reserved 16 out of 100

The characteristics discussed in Carolene Products Footnote 4 may be relevant in deciding whether or not to add new types of classifications to the list of
places in its entering class for
suspect categories. But, racial and ethnic categories are subject to stringent examination without regard to these additional characteristics.
members of racial minority groups. A 
However, race or ethnic background may be deemed as a plus in a particular applicants file (instead of admission being solely based on race/ ethnicity)
special committee was appointed to
because the goal of attaining a diverse student body is Constitutionally permissible and also serves First Amendment interests.
administer this admissions policy.
o
Interest in diversity is compelling.
o
Promoting diversity solely by race is not necessary to this interest and in fact may hinder it.
UMich followed an unofficial policy

Upheld the admissions program because student body diversity is still a compelling state interest that can justify the use of race in university of
that sought to achieve student body
admissions without being the sole factor in determining admission
diversity by giving substantial weight 
Strict scrutiny applied
to the race of each applicant in

Michigan’s program “bears the hallmarks of a narrowly tailored plan”
making admissions decisions, in
o
Not allowed
addition to its consideration of other

Quotas
academic and non-academic

Insulating minorities from the competition of admission
variables
o
Allowed: considering “race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant

Although Race cannot be the “defining feature” of the application, “narrow tailoring does not require exhaustion of every conceivable
race-neutral alternative.”
o
Race conscious admission policies must be limited in time.

Majority said that this is because “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further
the interest approved today.”
UMich admissions program involved 
Program unconstitutional.
a point system based on factors such

This program is not narrowly tailored. Does not satisfy Grutter’s requirement of individual consideration.
as high school grades, standardized

A university’s admissions policy that automatically gives preference to minority students on the basis of race, without additional individualized consideration,
test scores, curriculum strength,
violates the Equal Protection Clause of the Fourteenth Amendment.
leadership, alumni relationships, etc.

All policies that involve racial classifications must pass strict scrutiny.
Applicants in underrepresented racial 
Giving 20 bonus points to all members of a minority group simply because of their membership in that group was too broad, especially when only 5
or ethnic groups were awarded 20
points were awarded for extraordinary talent. Although the policy allowed for individualized consideration, it would only occur for those not
points of 100 needed for admission.
automatically admitted based on their ranking point system.

The policy effectively made race a decisive factor for virtually all minimally qualified minority applicants, and was therefore not narrowly tailored.
Challenged MI Constitutional

Upheld the amendment
amendment prohibiting use of race
A court cannot invalidate a state’s decision to allow voters to determine whether the state’s policy of race-based preferences should be continued.
conscious affirmative action (in
public schools/ institutions, public
employment and in public
contracting, or in government)
56
Fullilove v.
Klutznick
Richmond v.
JA Croson
Adarand
Constructors v.
Pena
Parents
Involved in
Community
Schools v.
Seattle
Statute required that federal grants
to local governments for local
public work projects be awarded
only to applicants who assured that
at least 10% of the grant would be
spent for minority business
enterprises.
Statute required contractors on city
projects to set aside at least 30% of
their subcontracts to minority
business enterprises. Rationale was
that minority businesses had received
significantly lower percentage of
contracts (.67%) than the percentage
of minorities living in the city (50%).


Challenge to a federal
government’s practice of giving
general contractors on government
projects a financial incentive to hire
minority businesses as
subcontractors. The incentive was
to hire subcontractors controlled by
“socially and economically
disadvantaged individuals”, but the
Master K said the contractor shall
presume that socially and
economically disadvantaged
individuals include Black
Americans, Hispanic Americans,
Native Americans, Asian Pacific
Americans and other minorities.
Suit brought by lower bidder who
lost to a SEDI sub-contractor
Seattle & Louisville districts
voluntarily adopted student
assignment plans that relied on race
to determine which public schools
certain children could attend. In each
case, the schools used this system to
ensure that the racial balance in any
given public school fell within a
predetermined range based on the
racial composition of the school
district as a whole. Parents Involved
in Community Schools (PICS) were
parents of students denied
assignment to particular schools
under these plans solely because of
their race. Seattle has no history of




Court remanded the case to be evaluated by strict scrutiny. Federal set asides must also meet strict scrutiny.
Set asides created by federal laws must also meet strict scrutiny.
Federal government’s use of race-based classifications is subject to strict scrutiny even for affirmative action

A public school that has not operated legally segregated schools cannot choose to classify students by race and rely upon that classifications in making
school assignments.
A public school that has been found to have achieved unitary status cannot choose to classify its students by race and rely upon that classification in
making school assignments.
There are two potential compelling interests, and neither of them apply to this case.
o
1. Compelling interest in remedying the effects of past intentional discrimination.

Seattle has no history of racial segregation.

Louisville schools already achieved unitary status.
o
2. Compelling interest in diversity in higher education, as in Grutter

Grutter approved the used of racial classifications as part of a broader assessment of diversity, not merely as an effort to achieve racial
balance.

Neither of these cases apply to higher education; only K-12.
Regardless, these plans are not narrowly tailored to those goals.
In this case, Ds’ plans are directed only to racial balance and are not narrowly tailored to achieve educational and social benefits that allegedly flow from
racial diversity. The plans are tied solely to racial demographics. Racial balancing is unconstitutional and may not be sought for its own sake. If racial
balancing was a compelling state interest, it could be imposed throughout American society.












Congress may affirmatively require a minimum minority participation as a condition of the expenditure of federal funds
The objective of the legislation—to prohibit traditional procurement practices that perpetuate the effects of prior discrimination—was within
constitutional scope of congressional power
Court upheld a federal law that required that 10% of federal public works monies to local governments be set aside for minority-owned businesses
o
Rationale: Was adopted to remedy a long history of discrimination to construction industry
Federal law- strict scrutiny applies
Court invalidated an affirmative action plan that set aside 30% of public works monies for minority owned businesses
Court applied strict scrutiny and found no remedial purpose to this plan
The set aside was not narrowly tailored in that it included groups of minorities that may have never suffered from discrimination in the construction
industry in Richmond, VA
Court also notes there did not appear to have been any consideration in the use of race-neutral means to increase minority business participating in city
contracting.
Marshall Dissent: Remedial set-asides should not receive strict scrutiny
State law- strict scrutiny applies
57
racial segregation, but Louisville
does.
United Jewish
Orgs v. Carey
Shaw v. Reno
[Shaw 1]
Miller v.
Johnson
New York had redrawn districts in
Brooklyn in order to maintain black
representation in the state
legislature, in an attempt to comply
with the Voting Rights Act. In
order to create substantial nonwhite
majorities in a few districts, New
York’s revision split the Hasidic
community into several districts.
NC became entitled to 12th
Congressional Seat. Blacks made up
20% of state’s population and were
the majority in five of the counties.
Legislature submitted a redistricting
plan that included two majority-black
districts. To include sufficient
percentage of black citizens to fill the
district, the second district was 160
miles long and was only as wide as
the freeway corridor it followed from
black neighborhood to black
neighborhood. Shaw sued for
unconstitutional gerrymandering.


A suit was filed by white voters
after Georgia created three
majority-black districts, claiming
the existence of racially
gerrymandered district.












Bradwell v.
State
Minor v.
Happersett




19th
Amendment



Reed v. Reed




Court was willing to apply deferential review to racial preferences in electoral districting
Regardless of whether the plan was authorized by the Voting Rights Act, New York was entitled to consider racial factors in redistricting under the
Constitution.
o
New York’s plan represented no racial slur or stigma with respect to whites or any other race
Although black representatives were more likely to be elected in redrawn districts, as long as whites, as a group, were provided with fair representation,
we cannot conclude that there was a cognizable discrimination against white.
A state legislature cannot create a voting district that is so irrational on its face that it can be understood only as an effort to segregate voters into separate
voting districts because of their race alone.
A reapportionment plan violates the Equal Protection Clause if it cannot rationally be understood as anything other than an attempt to separate voters based on
race and there is not sufficient justification for the separation.
A reapportionment plan that includes groups who have little or nothing in common other than their race has the appearance of political apartheid.
Additionally, the same strict scrutiny that applies to all racial classifications similarly applies to racial gerrymanders. The country’s history of racial
discrimination in voting supports this conclusion.
Racial gerrymandering cannot be classified as a benign racial discrimination to be afforded the same scrutiny as non-racial gerrymandering. The Equal
Protection Clause requires strict scrutiny of all racial classifications because without that level of heightened scrutiny there is no way to determine whether
discrimination is indeed benign.
Redistricting plan was unconstitutional
A bizarrely shaped district is not a necessary pre-requisite for finding of unconstitutionality but that shape may be circumstantial evidence of intent to use
race for its own sake
The plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to
legislative purposes, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a
particular district.
To make this showing, a plaintiff must prove that the 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 .
SEX DISCRIMINATION- INTERMEDIATE
Guarantees of the 14th Amendment did not apply to sex discrimination, even when the sex discrimination was explicit
Court denied that federal privileges and immunities included the right of a woman to practice law in a state because the privileges and immunities clause only applied to men.
Court denied that federal privileges and immunities included the right of women to vote in state elections
Suggested that women may be persons within the meaning of the 14 th Amendment, and even citizens, but that they were not entitled to participate in a political/ professional realm reserved to
men
Only amendment that addresses expressly any aspect of women’s equality
“the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex”
The provision has been construed narrowly to apply only to the formal franchise
o
Ex. Court failed to find in it any implied right against sex discrimination in jury service or state-licensed occupations
Only interpreted to apply to voting
Establishes the use of heightened scrutiny under rationality review (heightened rational basis)
Court decided to find sex a suspect class, but invalidated the challenged law under the traditional “rationality” standard
Test: Whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to the state objective
58
Frontiero v.
Richardson
Craig v. Boren
Mississippi
University for
Women v.
Hogan
US v. Virginia
Geduldig v.
Aiello
o
Giving a mandatory preference based is not rationally related to the goal of eliminating hearings on the merits.
Fails to adopt strict scrutiny in sex discrimination (because only plurality, not majority, supports treating gender as suspect class)
Sustained an equal protection challenge to a federal law affording male members of the armed forces an automatic dependency allowance for their wives, but requiring servicewomen to prove
that their husbands were dependent.

Advocated treating gender as a suspect class (wanting to depart from Reed’s traditional rational-basis analysis for sex discrimination) because:
o
The laws limit women’s potential
o
Sex, like race and national origin, is an immutable characteristic
o
History of sex discrimination
o
Women are not a discrete and insular minority, but there is a history of underrepresentation
An Oklahoma statute

Statute violates equal protection
prohibited the sale of

Settles on using intermediate scrutiny (requires important ends and substantially related means) for sex discrimination issues
“non-intoxicating” 3.2

A governmental regulation involving gender discrimination is constitutional if it is substantially related to the achievement of an important government purpose.
percent alcoholic beer

Outdated misconceptions of gender roles do not provide valid justifications
to males under the age

Gender cannot be used as an inaccurate proxy for other, more germane basis of classification.
of twenty-one, but

The state objective—the enhancement of traffic safety—is clearly important. However, the relation between this objective and the challenged statute is based on
permitted the sale of
statistical evidence fraught with shortcomings and is inadequate to show that sex represents a legitimate, accurate proxy for the regulation of drinking and driving.
such beer to females

Failure to show a substantial relation between the gender-based classification and achievement of the state’s objectives requires that the statute be invalidated as
over the age of
unconstitutional.
eighteen.

Data on gender differences in DWI stops is insufficient because statistical fit was tenuous

Moved to a stronger form of intermediate scrutiny- Added “exceedingly persuasive justification” to the Craig standard

Defenders of gender-classifying law must carry the burden of showing an exceedingly persuasive justification for the classification

Sustained a male applicant challenge to the State’s policy of excluding men from the Mississippi University for Women School of Nursing.
o
That this statute discriminates against males rather than females does not exempt it from scrutiny or reduce the standard of review
o
The party seeking to upheld a statute that classifies individuals on basis of gender must carry the burden of showing exceedingly persuasive justification for the classification

This burden can only be met by showing that the classification services important governmental objectives and that discriminatory means employed are substantially related to the
achievement of those objectives

In this case, the state did not show that women lacked opportunity to obtain training in the area of nursing or to attain leadership positions in that field
o
In limited circumstances, a gender-based classification favoring one sex can be justified if it intentionally and directly assists members of the sex that is disproportionately burdened.
o
School made no showing that the gender-based classification is substantially and directly related to its proposed compensatory objective
The Virginia Military Institute (VMI)

Violated equal protection under intermediate scrutiny with persuasive justification
was the only single-sex public higher

Court rejects VA’s two asserted justifications:
education institution in the State of
o
Rejects that single sex education provides important education benefits and contributes to diversity in educational approaches Court does not
Virginia. It functioned to train men for
question state’s interest to further evenhandedly diverse learning opportunities, but notes opportunity here is unique
leadership in civilian life and military

VMI has never existed for the purpose of promoting diversity, evidenced by its policy of excluding women
service using an “adversative” method.
o
Rejects that the unique VMI method of character development and leadership training (the adversative method) would have to be modified if
VMI refused to admit women. VMI
VMI admitted women
created an alternative program for

There is no reason that Virginia’s stated goal of training competent future leaders cannot be extended to include women.
women known as the Virginia Women’s 
The standard of review for any governmental gender classification is intermediate scrutiny. This standard requires the government to provide an exceedingly
Institute for Leadership (VWIL). VWIL
persuasive justification for policies that discriminate against women. Inherent differences exist between men and women, but these differences can be used
differed from VMI in its academic
only for purposes such as remedying the history of sex discrimination against women, or promoting equal employment opportunities, not for denigration of
offerings, methods of education, and
the members of either sex or for artificial constraints on an individual’s opportunity.
financial resources.

Court also rejects proposed remedy of creating a separate all-women’s institution, because it did not provide an equal program or equal opportunities.
o
VWIL is different and substandard when compared to VMI on many levels.
o
The creation of this school does not provide a meaningful educational alternative for women seeking to attend VMI.

Exclusion of disability that accompanies normal pregnancy and childbirth from CA’s disability insurance system did not constitute “invidious discrimination” under Equal Protection Clause

Court finds the exclusion does not discriminate based on gender (program divides potential recipients into two groups: pregnant women and nonpregnant persons)

Normal pregnancy is an objectively identifiable physical condition with unique characteristics.

This provision did not violate equal protection because it furthered the state policy of making the disability insurance program self-supporting by excluding certain physical conditions from
coverage thereunder.


59
Michael M v.
Superior Court






Rostker v.
Goldberg



Caban v.
Mohammed


Nguyen v. INS


Sessions v.
MoralesSantana






Foley v.
Connelie
Ambach v.
Norwick
Bernal v.
Fenter











The fact that a particular condition (pregnancy) happens to apply to only one sex does not render the exclusion invalid.
Upheld statutory rape law that punished the male, but not the female, participant in sexual intercourse when the female was under 18 and not the male’s wife.
Gender classification is not invidious but reflects the fact that sexes are not similarly situated (e.g., natural deterrent effect for women since the significant harm falls on women via unwanted
pregnancy)
Although legislature may not make overboard generalizations based on sex that are based on personality and emotional stereotype, legislation may realistically reflect that fact that sexes are not
similarly situated in certain circumstances.
The asserted purpose of the statute is to prevent illegitimate pregnancy and its attendant social harms, which is valid state purpose.
Court rejected the claim that the statute was underinclusive because a gender-neutral statute would serve the state’s goal equally well. Court explained that it did not redraw constitutionally
permissible lines and that even if it were so included, it could not say that a gender-neutral statute, attended by increased enforcement difficulities, would be equally effective.
Court rejects challenge to exclusion of women from required registration for the draft- law upheld
Cites deference to Congress in the area of military affairs- Congress has authority over national defense and military affairs and is accorded broad deference in this area.
Also notes statutory exclusion of women from combat positions (later eliminated)
o
Purpose of registration was to prepare for draft of combat troops. Because women were not eligible for combat, the Court found that the exemption of women from registration was not
only sufficiently justified but closely related to Congress’ purpose in authorizing registration.
o
Eliminated because that “disability” of women was the product not of biological factors but rather of legal construct, the congressionally imposed barrier to women’s combat service
Invalidated a state law granting the mother but not the father of an illegitimate child the right to block the child’s adoption by withholding consent
This law is an example of overbroad generalizations in gender-based classifications, and no showing had been made that the distinctions bear a substantial relationship to the proclaimed
interests of the state in promoting the adopting of an illegitimate child.
Upheld a law providing that if an unmarried American woman gives birth abroad, her child is automatically granted US citizenship, but when the child of an unmarried American male is born
abroad, the man must take specific steps to establish his paternity in order to make his child a US citizen.
This discrimination based on the gender of the parent was held permissible because it promotes the important governmental interest of avoiding proof of parentage problems, which is more
difficult to resolve for fathers than mothers.
Applied intermediate scrutiny to invalidate, under equal protection principle implicit in 5 th Amendment, a federal statutory immigration scheme that differentiated between mothers and fathers.
In this case, the statute requiring a citizen father to live in the United States for longer than a citizen mother to confer citizenship on a child is unconstitutional.
Here, the governmental purpose in adopting the statute is to ensure a connection between the child and American ideals and principles. There is no basis for a claim that it takes longer for a father to assimilate
his child to American culture than a mother.
In addressing the discrepancy to ensure equal protection, the Court must choose, based on congressional intent, whether to extend the benefit at issue to the disfavored class or eliminate the benefit to the
favored class
Here, Congress’s intent was to ensure a meaningful connection between the child and American values.
As a result, the Court modifies the residency requirement for mothers and holds that to confer citizenship on the child, citizen mothers, like citizen fathers, must live continuously in the United States for 10
years prior to the child’s birth, at least five of which are after the parent turns 14.
ALIENAGE
Held that New York could bar employment of aliens as state troopers
To require every statutory exclusion of aliens to clear the high hurdle of strict scrutiny would obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.
Uses rational basis scrutiny instead
States may require government officers involved in the making of state policy to be United States citizens. Although police officers do not formulate policy, they are endowed with a great amount of
discretionary judgment for carrying out state policies.
Directly interfacing on behalf of the government; directly enforcing the law
Applied public function exception to hold that a state may refuse to employ as elementary or secondary school teachers aliens who are eligible for citizens but who refuse to seek naturalization
Public schools are very important in preparing people for participation as citizens and in the preservation of US values on which our society rests. Teachers have a unique opportunity to influence the
attitudes of students toward government, the political process and a citizen’s social responsibilities. This means that public school teachers come well within the governmental function recognized in
Dougall and Foley.
Applied strict scrutiny
Political function exception must be narrowly construed
A notary public’s duty, although important, were essentially clerical and ministerial. In the absence of either policymaking responsibilities or broad discretion of the type exercised by teachers and other
public employees, the duties would not be deemed to be within the governmental function exception.
DISABILITY
60
Cleburne v.
Cleburne
Living Center
Mass Board of
Retirement v.
Murgia
Under a city zoning ordinance, group homes for the mentally retarded could operate only with a special permit that required the

The mentally disabled are not a quasi-suspect class and thus
signatures of property owners within 200 feet of the property to be used. The applicants were unable to obtain the required signatures in
any legislative regulations affecting their rights are subject to
a residential neighborhood.
rational basis review and not intermediate scrutiny.
Town says they won’t grant the permit because

However, there is no rational basis for the zoning distinction

There was a junior high school nearby (fear students would harass residents)
o
The Court discerned that all the reasons the board

Effect on nearby property owners (believe that it will devalue the surrounding property values)
gave for the zoning ordinance were just pretext
o
Mere negative attitudes or fear is not enough

Fears of elderly residents

Nothing in the record explains how permit requirement for only

Flood plain (Need special construction/ insurance)
facilities for mentally retarded is rationally related to any

Legal responsibility for actions of the home might take (if the residents hurt someone, the charity running the group home/ group
government purpose
home residents probably don’t have good insurance)

Size of the home and number of occupants

Police officier challenged the mandatory retirement age of 50

Strict scrutiny is required only when a classification impermissibly interferes with the exercise of fundamental rights or operates to disadvantage a suspect class

Age is not a suspect class nor is a right to continued public employment a fundamental right.

A violate does not violate equal protection merely because its classifications are imperfect
EQUAL PROTECTION AS APPLIED TO FUNDAMENTAL INTEREST



Fundamental interests are classifications that would normally only receive rational basis review because they don’t involve a suspect but receive heightened review nonetheless because they involve a fundamental right
or interest
Interests that the Court has recognized under equal protection fundamental interest branch
o
Voting (denial or dilution of right to vote)
o
Access to courts/ judicial process
o
Interstate migration (but not viewed under 14th Amendment PIC)
Interests that the Court has not recognized under equal protection fundamental interest branch (therefore, rational basis)
o
Education (BUT SEE Plyor IN RATIONAL BASIS/ STRICT SCRUTINY EQ)
o
Welfare benefits- there is no constitutional right to receive public welfare
o
Housing- right to housing is not guaranteed in the Constitution

State classifications in housing laws are subject only to the traditional test of reasonableness; e.g., a state may permit landlords to bring summary actions to evict tenant from rented premises but
cannot require posting of a bond for twice the amount of rent in order to appeal
Fundamental Interest in Voting
Constitutional Provisions

14th Am. §§ 1, 5: No state shall deny to any person within its jurisdiction the equal protection of its laws and Congress shall have power to enforce by appropriate legislation, the provisions of this article

15th Am. §§ 1,2: The right of US citizens to vote shall not be denied or abridged by US or any state on account of race, color, or previous condition of servitude and Congress shall have power to enforce by
appropriate legislation, the provisions of this article

19th Am.: Right of citizens of US to vote shall not be denied or abridged by the US or by any state on account of sex

24th Am.: Right of US citizens to vote in any primary or other election for Pres or VP, for electors for Pres or VP, or for Senate or Representatives of Congress, shall not be denied or abridged by the US or any
state by reason of failure to pay any poll tax or other tax

26th Am: Right of citizens of US who are 18+ to vote shall not be denied or abridged by US or any state on account of age
Case law on denial of the right to vote

Voter qualification in general state elections:
o
States violate equal protection whenever its legislation makes the affluence/ wealth of the voter or payment of any fees an election standard. (Harper)
o
State may impose reasonable voter qualifications but these must pass careful scrutiny since the franchise is a fundamental political right. (Harper)

Limited purpose elections (ex. School board) :
o
To limit exercise of franchise to those “primarily affected” or “primarily interest”, the exclusions must be necessary to promote a compelling state interest and the statute must be narrowly drawn to
effectuate that purpose. (Kramer)
o
Unclear what standard applies, unclear whether or not special purpose elections are going to be upheld or not (see difference between Cipriano and Salyer)

States may disenfranchise convicted felons because section 2 of the 14th Amendment specifically permits such a limitation on the right to vote (Richardson)
61
Case law on gerrymandering

Because EQ Clause guarantees the opportunity for equal participation by all voters in election of state legislators, votes cannot be weighed differently on the basis of where the voters happen to reside. This applies
whether state legislature is unicameral or bicameral. (Reynolds)

Each state district must contain as nearly an equal population as possible (precision, being impossible, is not required)  Substantial equality of population is the overriding objective (Reynolds)

States need not perpetually update their apportionment plans, but there must be a reasonable plan for periodic adjustment. (Reynolds)

The test is whether the weight of the vote is substantially diluted relative to other parts of the state (this is called the dilution rule) (Reynolds)

Constitution does not require proportional representation, nor does it require a plan that draws lines as near as possible to allocating seats to the contending parties in proportion to what their anticipate statewide vote will
be. (Davis)

Winner-take-all district-based elections inherently present the potential for disproportionate party representation; therefore, challenges to multi-member districts require a showing much greater than a mere lack of
proportional representation (Davis)
Harper v. VA
Virginia’s annual $1.50 poll

States violate equal protection whenever its legislation makes the affluence/ wealth of the voter or payment of any fees an election standard.
Board of
tax on all residents over

Majority appears to apply heightened or strict scrutiny
Elections
21for state election was

State may impose reasonable voter qualifications but these must pass careful scrutiny since the franchise is a fundamental political right.
challenged under equal
protection.
Kramer v.
School District
No. 15
Cipriano v.
City of Houma
Salyer Land v.
Tulane Storage
Richardson v.
Ramirez
Crawford v.
Marion County
Elec. Board
Colegrove v.
Green
Reynolds v.
Sims
Law provided that school

A state statute that denies the right to vote in school-district elections to some district residents who are otherwise qualified to vote by age and citizenship violates the Equal
district residents may vote
Protection Clause of the Fourteenth Amendment unless the exclusion of these residents is necessary to further compelling state interests.
in school district elections

The exclusion of population groups from voting in school-district elections must promote a compelling state interest. Limiting voting to those who are primarily interested
only if they own/ lease real
in school affairs does not meet this standard.
property in the district or
have children enrolled at
the local schools. A thirtyyear old bachelor living in
his parents’ house wants to
vote.
State law granted only

Statute was unconstitutional even though only those who paid property taxes would pay for the improvements because all residents were said to have a substantial interest in
property taxpayers the
municipal improvements to be made.
right to vote in elections to
approve municipal utility
bonds

Upheld an election scheme in which only landowners could vote for the members of the district board, because costs were assessed against land benefitted.

The board and a special limited purpose and its activities disproportionately affected landowners as a group.

States may disenfranchise convicted felons because section 2 of the 14th Amendment specifically permits such a limitation on the right to vote

Upholds bar on felons, including those who have served sentences


Court’s early attitude regarding state districting disputes

Refused to consider the merits of an equal protection challenge to a state’s congressional districting plan on the grounds that the issue was nonjusticiable
Sims challenged

A state must apportion its legislative district on the basis of population.
apportionment of Alabama

The right to vote is denied by abasement or dilution of a citizen’s vote just as effectively as by wholly prohibiting free exercise of the franchise.
legislature, which was based

Because EQ Clause guarantees the opportunity for equal participation by all voters in election of state legislators, votes cannot be weighed differently on the basis of where
on 1900 federal census and
the voters happen to reside. This applies whether state legislature is unicameral or bicameral.
thus seriously discriminated

Each state district must contain as nearly an equal population as possible (precision, being impossible, is not required)
against voters who lived in

Substantial equality of population is the overriding objective
areas whose population had

States need not perpetually update their apportionment plans, but there must be a reasonable plan for periodic adjustment.
grown disproportionately in

No scrutiny is actually applied- when the court strikes something down it is basically just announcing a constitutional rule
the intervening years.

The test is whether the weight of the vote is substantially diluted relative to other parts of the state (this is called the dilution rule)
62
Gaffney v.
Cummings
Davis v.
Bandemer







Gill v.
Whitford



Rucho v.
Common
Cause

State may consider political factors as well as census data in creating its legislative districts
The essence of districting is to produce a more “politically fair” result than elections are large
Political considerations are inseparable from districting and apportionment
The danger arises from manipulation intended to minimize or eliminate the political strength of any group or party
Reapportionment plan of Indiana legislature does not violate EQ Clause
Constitution does not require proportional representation, nor does it require a plan that draws lines as near as possible to allocating seats to the contending parties in proportion to what their anticipate
statewide vote will be.
Winner-take-all district-based elections inherently present the potential for disproportionate party representation; therefore, challenges to multi-member districts require a showing much greater than a mere
lack of proportional representation
o
One consideration is the responsiveness of elected officials to the concerns of the groups involved, because even defeated parties have influence on a winning candidate
o
Test is whether the electoral system is arranged so as to consistently degrade a voter’s or a group’s influence on the political process as a whole.
The district court relied primarily on the results of the 1982 election. One election is not enough to prove unconstitutional discrimination.
Dem voters in Wisconsin alleged that a state

Courts held that the voters lacked standing because they had not demonstrated particularized injury: “To the extent the plaintiffs’ alleged
redistricting plan harmed their party’s ability to
harm is the dilution of their votes, that injury is district specific. The boundaries of the district, and the composition of its voters, determine
convert Dem votes into Dem seats in the
whether and to what extent a particular voter is packed or cracked.
legislature through “cracking” Dem voters

Court punts in this case
among different districts in which those voters
fail to achieve electoral majorities and “packing”
other Dem voters in a few districts in which Dem
candidates win by large margins.
To address justiciability, they offered the theory
of an “efficiency gap” that compares each party’s
respective “wasted” votes—i.e., votes cast for a
losing candidate or for a winning candidate in
excess of what that candidate needs to win—
across all legislative districts.

Fundamental Right of Access to the Courts
Economic Barriers and Criminal Cases

Although the Constitution does not require the states to provide an appellate court system, those states that do provide appellate review cannot limit access on the basis of poverty. (Griffin)

A state may not make access to appellate processes dependent on the convicted defendant’s ability to pay. (Griffin)
Economic Barriers and Civil Litigation

The Due Process Clause of the Fourteenth Amendment prohibits a state from denying, solely on the basis of inability to pay, access to its courts to indigent individuals who seek in good faith judicial dissolution of their
marriages. (Boddie)

A fee filing requirement does not deny an indigent person equal protection of the laws as there is no constitutional right to obtain a discharge of one’s bankruptcy, and does not violate the Due Process Clause as the right to a
bankruptcy discharge is not fundamental. (Kras)

There are some civil cases, such as divorce and parental termination cases, where the state must provide access to its judicial processes regardless of the party’s ability pay fees. This is the exception not the rule. (MLB)
Griffin v.
Law was that no appeal

Denying an indigent criminal defendant access to adequate appellate review violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The
Illinois
was possible without
Constitution demands equal treatment of any person charged with a crime.
transcript from the trial

A statute that denies access to appellate review to those who cannot afford it while allowing appellate review to those who can afford it amounts to unconstitutional
court, but getting the
discrimination.
transcript cost money.

There is no rational relationship between a defendant’s ability to pay the costs of an appeal and the defendant’s guilt or innocence.
Douglas v.

Extended Griffin holding to include an indigent’s right to appointed counsel in a first appeal when the right to a has been granted by the state.
CA
Ross v.

Court refused to extend Douglas approach to discretionary appeals
Moffit
63
Halbert v.
Michigan
Boddie v. CT
United States
v. Kras
Ortwein v.
Schwab
Little v.
Streater
MLB v. SLJ
Appellants were indigent
welfare recipients who
sought to file divorce
actions in the state courts
but were unable to pay the
required court fees and
costs for the services of
process




The Due Process Clause of the Fourteenth Amendment prohibits a state from denying, solely on the basis of inability to pay, access to its courts to indigent individuals who
seek in good faith judicial dissolution of their marriages.
No other jurisdiction permits citizens to divorce and mutually liberate themselves from the legal constraints of marriage without state involvement. However, since Boddie is
unable to pay the fees, she is excluded from the only forum available to her to effectuate her divorce.
Connecticut asserts that it imposed the fee structure to prevent frivolous litigation. Connecticut argues that its use of court fees and process costs to allocate scarce resources is
rational, and its balance between the defendant’s right to notice and the plaintiff’s right to access is reasonable. However, none of these considerations are sufficient to
override Boddie’s interest in having access to the only avenue available for dissolving allegedly untenable marriages.
No reasonable relationship exists between Boddie’s ability to pay fees and the seriousness of Boddie’s motives in bringing suit. Hence the Connecticut law violates the Due
Process Clause of the Fourteenth Amendment. This holding is limited to the facts of the present case in which Boddie’s indigent status and good faith in seeking a divorce
undisputed.
Indigent challenged a $50
A fee filing requirement does not deny an indigent person equal protection of the laws as there is no constitutional right to obtain a discharge of one’s bankruptcy, and does not
filing fee requirement in
violate the Due Process Clause as the right to a bankruptcy discharge is not fundamental.
voluntary bankruptcy
proceedings
Found Kras rather than Boddie applicable in rejecting an attack by indigents on Oregon’s $25 filing fee prerequisite to judicial review of administrative denials of welfare benefits

Held that due process entitled an indigent defendant in a paternity action to state-subsidized blood grouping tests.

The tests can be exculpatory and the proceedings have quasi-criminal aspects
MLB had her parental

A state may not require payment of fees for a party to appeal the termination by the state of her parental right.
rights to her 2 young

A state may not make access to appellate processes dependent on the convicted defendant’s ability to pay.
children terminated by MS

Parental status termination decrees are unlike other civil actions, even those involving divorce, paternity, and child custody. Termination decrees work a unique
court. D tried to appeal, but
kind of deprivation because through them, the state permanently destroys all legal recognition of the parental relationship. For that reason, Mississippi may not
the state tried to appeal,
withhold from D “a record of sufficient completeness” to permit proper appellate consideration of D’s claims.
but state required payment
of $2300. She could not
afford it and case
dismissed.
Education
San Antonio
School
District v.
Rodriguez
Texas system of financing
public education was
operated such that state
and local expenditures per
pupil varied according to
the market value of taxable
property per pupil within
the various districts. P
claims system denies EQ
by invidiously
discriminating against the
poor.



P claims education is a fundamental right, which court says is incorrect.
Although education is an important state service, the importance is not determinative of equal protection examination.
Only those rights explicitly or implicitly guaranteed by the Constitution are fundamental for purposes of EQ, and education is neither explicitly nor implicitly
guaranteed.
64
Civil Rights
13th Amendment
14th Amendment
15th Amendment

Section 1
Section 1: Four operative clauses

Section 1
o
Neither slavery nor involuntary servitude, except as a
o
Citizenship clause: All persons born or naturalized in the
o
The right of citizens of US to vote shall not be denied or
punishment from crime whereof the party shall have
US and subject to the jurisdiction thereof, are citizens of
abridged by the US or by any state on account of race,
been duly convicted, shall exist within the US or any
the US and of the state wherein they reside
color, or previous condition of servitude
place subject to its jurisdiction
o
P&I clause: No state shall make or enforce any law

Section 2
o
Not specifically limited to the action of states (applicable
which shall abridge the privileges or immunities of
o
Congress shall have power to enforce this article by
to individuals as well)
citizens of the US
appropriate legislation
o
P&I clause protects applicable rights of national

Section 2

§5 of VRA is a proper exercise of 15th Am. § 2
citizenship, but not state citizenships
o
Congress shall have power to enforce this article by

Section 5 of Voting Rights Act required states to obtain federal
o
Due Process Clause: States shall not deprive any person
appropriate
permission before enacting any law related to voting
of life, liberty or property, without due process of law
o
Can be enforced against individuals

Section 4 of the Act applied that requirement to only some of
o
Equal Protection Clause: States shall not deny to any

13th Amendment enforcement clause permits Congress to
the states
person within its jurisdiction the equal protection of the
outlaw entirely private conspiracies, at least based on race

In a practice problem, test first under rational basis and then
laws
(Griffin)
under balanced and proportionality test

§ 5- Enforcement Clause

When 13th Am has been used
o
Congress shall have power to enforce by appropriate
o
Race-based refusal of residents’ association to allow
legislation the provisions of this article
assignment of right to use park as black tenant

Conspiracies involving public and private actors working in
o
Protection of right to make and enforce contracts as
concert
related to private segregation academies

Congress cannot use its enforcement powers under the 14th Amendments to prohibit race discrimination by private individuals in public accommodations UNLESS the private company has functions as if it is
public. But Congress can enforce 13th Am. Against private individuals only in situations where someone is enslaved.

Public function analysis
o
Mere licensure, state authorization, or state regulation does turn a private entity into public function (Moose Lodge)

However, something more pervasive, like a symbiotic relationship in Burton or state court involvement in Shelley can be enough to constitute public function.
o
Court has, under certain circumstances, said that an entity’s performance of traditionally public functions can constitute state action

Company towns (Marsh)

Party primaries (“white primaries”), whether by political parties or private clubs (Smith v. Allwright; Terry v. Adams)

Since the conduct of elections is an exclusively public function, the Court has consistently invalidated state attempts to vest in private boards or political parties any effective control
over the selection of candidates or the exercise of voting rights, as by:
o
1) Giving authority to a political party to determine who can vote in primary elections from which the party nominee for the general election is chosen [see Smith v.
Allwright, 321 U.S. 649 (1944)]; or
o
2) Structuring the state’s electoral apparatus to vest in a political party the power to hold a primary from which blacks are excluded, or to determine who shall run in the
party primary in which blacks are permitted to participate [see Terry v. Adams, 345 U.S. 461 (1953)]."

Public parks (Evans)
o
Court, however, has found no state action in operation of a private shopping center or in public utility’s cut-off of services

Public function cases generally limited to the company town and white primary cases— functions generally reserved exclusively to the states

Manahattan Comty. Access Corp. v. Halleck Test (test more recently by lower courts)
o
The actions of a private corporation only constitute state action:

(i) When the private entity performs a traditional, exclusive public function (ex. Company towns)

(ii) when the government compels the private entity to take a particular action (heavily regulated industry and the regulation itself is compelling the company to do what it’s doing- regulation
is unconstitutional); or

(iii) when the government acts jointly with the private entity (Ex. Government facility with private restaurant)

Conspiracy charged enforced under civil rights amendments do not go beyond race
Voting Rights Act

Created a rebuttable presumption that literacy tests in certain states were used to perpetrate racial discrimination
65
Civil Rights
Cases
This decision involved five cases, from
Kansas, Cali, Missouri, New York and
Tennessee. Four of the cases were criminal
indictments; the fifth, an action for the civil
penalty. The cases grew out of exclusions of
African Americans from hotels, theaters and
railroads.




Marsh v.
Alabama
Private corporation owned a town and posted
signs prohibiting peddlers. Marsh violated the
trespass law when distributing literature.





Shelley v.
Kramer
Evans v.
Newton
Evans v.
Abney
Burton v.
Wilmington
Parking
A black person purchased property that was
unencumbered by a restrictive agreement
preventing ownership/ occupancy of the
property by non-Caucasians.


Will left property to Macon, GA, to be used as
park for white people.



Burton, a black person, was denied service as
a private restaurant, the Eagle, located within
a building owned and operated by Wilmington
Park Authority, a state agency.
Moose
Lodge v.
Irvis
Irvis, a black person, had been refused service
by Moose Lodge. Irvis claimed Lodge’s
refusal was state action because Lodge had a
state liquor license.
US v. Guest
Guest was indicated for criminal conspiracy to
deprive black citizens of the right to equal











Congress could not use its enforcement powers under the 13th and 14th Amendments to prohibit race discrimination by private individuals in
public accommodations. (invalidated Congress’s regulation of private parties—railroads, innkeepers, theater operators, and the like—for the
purpose of preventing race discrimination)
Congress cannot invade the states’ police powers using 14th Amendment by using Section 5 against private individuals.
The Fourteenth Amendment prohibits only state action, and the Thirteenth Amendment term “slavery” does not include the kind of
discrimination involved here.
o
14th Am. §5- Authorizes Congress to pass legislation to enforce its provision, but majority said that this enforcement power extends
only to actions by state government (not individuals)
o
13th Am.- However, Congress can enforce the 13th Am. Narrowly against instances of slavery by private individuals

authorized Congress to outlaw all a badges and incidents of slavery, but majority said that the denial of public
accommodations (like hotel rooms and theater seats) wasn’t a badge or incident of slavery

Majority defined badges and incidents of slavery as physical and legal restraints (including inability to own property, to
travel, or to assert standing)
Congress had no power to pass the Civil Rights Act of 1875, and Ps must seek their remedy in state law for any cause of action against private
individuals or corporations who are discriminating.
The town’s streets, although privately owned, were in effect a public place
Since a private corporation-owned town’s facilities are built and operated primarily to benefit the public and since the operation is essentially a
public function, the private corporation-owned is considered a public function and therefore is subject to state regulation.
An ordinary town could not have constitutionally prohibited her activities under the First Amendment.
“Ownership does not always mean absolute dominion. The more an owner opens up his property for use by the public in general, the more do his
rights become circumscribed by the statutory and constitutional rights of those who use it.”
This case shows that state action includes not only any action taken directly by the state executive, legislative, or judicial branches, but also any
such action taken indirectly by delegating public functions to private organizations or by controlling, affirming, or to some extent becoming
involved in that private action.
14th Amendment EQ Clause prohibits judicial enforcement by state courts of restrictive covenants based on race/ color.
A private act of discrimination may become illegal state action if somehow the state or its officers are in any way involved in carrying out the
private action. Possibly any private action that gets into court may then amount to state action.
Covenants are privately agreed to among individuals (and thus not themselves unlawful). However, enforcement by state courts and judicial
officers is state action (using coercive power to prohibit willing buyers and sellers from reaching agreements)
Court held that park could not be operated on racially discriminatory basis (park within public function exception because it traditionally serves
the community)
In Evans v. Newton, Court had previously held that a park could not be operated on racially discriminatory basis (park within public function
exception because it traditionally serves the community)
Since it couldn’t be operated as a park in the way the decedent wanted, the property could be returned to heirs
Court then upholds state court ruling that resulted in state retuning property to heirs (finding that state court ruling did not constitute state action)
Upheld equal protection claim
A private lessee of state property is required to comply with 14th Amendment if the lease further state interests and forms an integral part of state
operation.
Entity dedicated to public use and performed essential government functions
Cites mutual benefits to government and private entity (symbiotic relationship) to demonstrate state involvement
Stretches 14th Amendment EQ Clause to private action to its limit
State alcoholic licensing of a private club does not constitute sufficient state action to require that the club observe 14 th Amendment prohibitions
against discrimination.
"The Court reasoned that a private entity is not covered by the Fourteenth Amendment when it merely receives any sort of benefit or service at
all from the state, or is subject to any state regulation. Otherwise, the distinction between private and public would be meaningless.
Mere licensure or state authorization does not constitute public function
Private individuals can be charged with conspiring with public officials to deprive a person of equal protection of the laws, as form of “state
action”
66
US v. Price
Griffin v.
Breckenridge
Jackson v.
Metro
Edison Co.
SC v.
Katzenbach
Katzenbach
v. Morgan
City of
Boerne v.
Flores
Shelby
County v.
Holder
utilization of public facilities and of the right to
travel.
Civil rights activists were murdered. Police
brought them to a place where police worked in
concert with Klansmen to kill them.
Metropolitian Edison, a private utility
regulated by the state, terminated Jackson’s
electric service for nonpayment before
affording P notice, hearing and opportunity to
pay.


Because this is a conspiracy charge, it meets the threshold of involving a state actor, which in turn allows the private individual to be charged
under 14th Amendment. (they acted in concert)
When private individuals willfully engage in “joint activity” with state officials to infringe the civil rights of others, the private individuals as
well as the state officers are subject to sanctions under federal law passed pursuant to the enabling provisions of 14th Amendment

13th Amendment enforcement clause permits Congress to outlaw entirely private conspiracies, at least based on race


The termination of service by a heavily regulated private utility, using procedures permitted by state law, does not constitute state action.
No state action even though company was a natural monopoly and was regulated under state law  state’s authorization and approval of the
termination practice not sufficient.

State regulation of private business, even if extensive and detailed, does not by itself convert private action to state action for 14th Amendment
purposes.

There must be a close nexus between the state and the actual activity of the regulated entity.
o
D’s monopoly status by itself fails to show a nexus to regulated activity.
o
D’s service is not a public function since the state has no obligation to furnish such service.

Upholds section 5 of VRA as proper exercise of power under Section 2 of 15 th Amendment using rational basis test

Provisions of VRA are a valid remedy for past voting discrimination

Congress justified in finding that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting.
Challenged 4(e) of VRA, which provided that

English literacy requirement prohibited
any person who successfully completed 6th

Applied McCulloch N&P test
grade in Puerto Rico cannot be denied right to
o
(1) Whether the statute is “appropriate legislation” to enforce 14 th Amendment
vote because of lack of English proficiency.
o
(2) Whether the legislation is “plainly adopted to that end”; and
o
(3) Whether the legislation is consistent with the letter and spirit of the Constitution

VRA easily passed this test.
City denied a building permit to enlarge a

Religious Freedom Restoration Act seeks to restore the compelling interest test where government substantially burdens free exercise of religion,
church based on an ordinance governing
a test the Supreme Court had ruled did not apply to neutral laws of general applicability
historic preservation in the area.
o
1st Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
o
Sherbert v. Verner: State cannot condition unemployment benefits on requirement that applicant be available to work on Saturdays
if that interferes with religious observance; strict scrutiny applied
o
Smith (peyote case): neutral laws of general applicability that incidentally burden not religion not subject to strict scrutiny;
declining to apply Sherbert

As applied to states, Court invalidates RFRA, as applied to the states, because Congress exceeded its authority under Section 5 of 14 th Am.

Under 14th Am., Congress can enact legislation to remedy or prevent violations of constitutional rights but cannot alter the scope or meaning of
those rights
o
The power to interpret the Constitution in a case or controversy remains in the Judiciary
o
If Congress could define its own powers by altering the 14th Amendment’s meaning,

Court adopted congruence and proportionality test to assess whether a congressional enactment under Section 5 of 14 th Amendment is proper
o
There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.
o
Lacking such a connection, legislation may become substantive [rather than remedial or prophylactic] in operation and effect
VRA of 1965 prohibits standards, practices, or 
Invalidated § 4(b) of the Voting Rights Act—the coverage formula used to determine which state and local governments had to adhere to § 5’s
procedures abridging right to vote on account
preclearance requirement—but not § 5 itself. 4(b) formula for covered jurisdictions exceeded Congress’ power under Enforcement Clause of 15th
of race or color. VRA contains additional
AM.
requirements for jurisdictions with a history of 
Court cites progress since VRA was enacted and critiques Congress’ findings regarding covered jurisdictions as out of date. (15th Am. Not
denying voting rights. Covered jurisdictions
designed to punish the past, but to ensure a better future)
had to seek federal preclearance before

Requiring only some states to get preclearance violates principle of equal state sovereignty
changing any voting procedure.

While Congress could, in theory, enact new VRA, with new section, Section 5 in this iteration is inoperable.

Section 5 of Voting Rights Act required
states to obtain federal permission
before enacting any law related to voting
67

US v.
Morrison
Section 4 of the Act applied that
requirement to only some of the states
A female student filed a rape charge against two
football players at her former university and
against Virginia Tech under Violence Against
Women Act, which provided a damages remedy
for a victim of gender-motivated violence. D
claimed that the civil remedy was unconstitutional
(that Congress lacked Congressional authority to
enact the remedy)





Congress may not provide a federal civil remedy for a violent crime under Section 5 of 14 th Amendment.
Section 5 allows Congress to enforce the guarantee that no state shall deprive any person of life, liberty or property without due process or deny
any person equal protection of the laws, but this only applies to state actions, not private conduct.
Congruence and proportionality test:
o
Civil remedies provision fails because it is directed at individuals, not at any state officials or other state actors
** Since this case, Courts have been inconsistent in test and scrutiny application in determining Congress’ power to enact legislation**
o
Sometimes, it applies rational basis
o
Sometimes it applies heightened scrutiny
o
Sometimes it applies a balancing & proportionality test
In a practice problem, test first under rational basis and then under balanced and proportionality test