Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
-Course Organization
 Judicial Power
o Interpretative methods
o Judicial Review
o Limits on Judicial Power
 Separation of Powers
o Executive
o Congress
 Federalism
 Individual Rights
o Fundamental Rights
o Substantive Due Process
 Individual Rights
o Equal protection
-The Constitution
 Powers provided
o Art I.
 § 1 All leg powers in Congress
 § 2 House and Members
 § 3 Senate and Members
 § 4 State handles elections
 § 5 Administrative rules
 § 6 Compensation, no other office, no arrests
 § 7 House = Revenue, but laws require both and Presidential approval
in 10 days
 § 8 Power of purse, Army, Navy Regulation... So much more, also all
laws which shall be necessary and proper
 § 10 Limit state powers?
 Obstacles to ratification
o Representation
 Resolved via Connecticut compromise (Art. I, §2-3)
 Big states v. small states
 Bicameral solution
o Slavery
 Art. I, §2  3/5s compromise
 Art. I, §9  Permit international slave trade until 1808
 Art IV, §2  Rendition of fugitive slave
o Weak protection for individual rights
 Resolved by the subsequent ratification of the Bill of Rights
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Only mentioned specifically in the original in Art. I
 Bill of retainer and expost factor prohibiting
Striking a balance
o Create a national gov’t that is powerful but not too much, horizontal, and vertical,
power between states too
What does it do?
o Enumerates and allocates power
 Art. I
 Legislative power allocated to congress
o Power to enact laws
 Largest because Parliament was the fear, so really listed out and
limited all the powers to §8
 Art. II
 Executive Power allocated to President
o Power to enforce the laws
 Shorter than Art. I because Congress was the concern
 Art III
 Judicial Power vest in Supreme court and any others that Congress
chooses to create
o Power to interpret the laws
 Very little fear in the judiciary, so barely anything
Most of Constitution does not apply to private actors
o 13th prohibition of slavery
o 18th prohibition (now repealed)
-Schools of Interpretation
 Textualism
o Meaning of Constitution from the words within document
 Text was ratified by the people
o Advantages
 Clear interpretative answers
 Constrains judicial discretion
o Disadvantages
 Approach is difficult to apply
 Constitution’s text is vague and ambiguous
 Structuralism/Intratextualism
o When meaning of term is contested judge should derive evidence of its meaning
in other parts of the Constitution
 Advantages
 Clear interpretive answers, and thus imposes clear limits on judges
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Disadvantages
 Assumes that the Constitution is a coherent document
Originalism
o Three kinds:
 Original intent  Looks to Framers’ intent
 Original Understanding  Looks to ratifiers’ understanding and how they
expected the constitution to apply
 Original Meaning  public meaning of a term at the time adopted
o Advantages
 Limits judicial discretion
 Leaves change for amendment process
o Disadvantages
 Intent of original actors hard to discern
 Incoherence of “group intent”
 Democratic deficit  White men
 “Dead hand” problem
Pragmatism/Living Constitution
o Interpret to promote evolving national values
o The constitution is rooted in and responsive to the specific context at hand
o Advantages
 Eliminates Dead Hand problem
 Resolves issues not contemplated
o Disadvantages
 Unpredictable and inconsistent results
 No clear consensus on “national values”
 Vests lots of power in courts
Precedentalism/Traditionalism
o Court should follow established precedents and traditions
o Stare Decisis et non quieta movere
 Stand by decisions and do not disturb the undisturbed
o Advantages
 Continuity and predictability
o Disadvantages
 Precedent can be wrong
 Precedent vs. Dicta
-Application of Interpretation DC v. Heller
 DC v. Heller (Scalia)
o Holds that individual right to bear arms for self-defense and other reasons
o Second Amendment in consideration
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Two competing interpretations:
 DC  Only right for firearm in context of militia service
 Heller  Individual right to possess a firearm unconnected to
militia service
o like for self-defense within home
Scalia uses textualism, originalism, intertextualism, and pragmatism
Prefatory clause does not limit or expand operative clause
 Its explanatory or additional
Pragmatism
 Not unfettered right, state can regulate it, like for those convicted of a
felony
Textualism
 What does it mean to bear arms?
Traditionalism
 He uses Miller to support individual right
 But Miller upheld gun law and would be a huge impediment
o He uses it to his support
Steven’s Dissent
 Finds prefatory clause to have more meaning than just extra
 There by virtue of establishing bounds
 Originalism
 Argues that people are deeply anxious about having a standing
army
o View state militias as only defense against the federal
standing army
 Precedentalism
 Miller states that guns are unlawful because they had nothing to do
with Militia
 Pragmatism
 DC trying to solve a massive problem and should have all its tools
Breyer’s Dissent
 Wants there to be a balancing test
 Precedentalism
 We have never had interpreted other rights unfettered so we don’t
want an unfettered right
o Scalia does not believe it to be unfettered
o Steven’s suggests rational basis review
o Scalia feels it takes more to supersede an important right
Using the same interpretative tools, but attacking each other
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
-Judicial Review and Constitutional Interpretation
 “It is emphatically the province and duty of the judiciary department to say what
the law is.” (Marbury)
 Art III enumerates the ceiling of federal court Jx (Marbury)
 Judicial review and invalidation of legislative acts (Marbury)
 Court pronouncements of interpretation of Constitution = Supreme Law of the land
(Cooper)
 Public Legitimacy is the only way to keep its power (Cooper)
o Use powers sparingly
-Judicial Review and Constitutional Interpretation Cases
 Marbury v. Madison (CJ Marshall)
o Marshall interprets judiciary act to expand court’s original Jx
 Problem is Congress can’t write a law doing so
o Views constitution as setting a ceiling over what original Jx is
 Writ of mandamus Jx is beyond constitution
o He says courts role to interpret
 Congress can’t change the constitution and it exceeds whatever court
permits
o He makes the judiciary a coequal branch
 Equates judicial review with the existence of a written constitution
o “It is emphatically the province and duty of the judiciary department to say
what the law is.”
o Establishes Art III enumerates the ceiling of federal court Jx
o Establishes authority for judicial review and invalidation of legislative acts
 Martin v. Hunter’s Lessee
o Relying heavily on Marbury, Supreme Court can review constitutionality of state
court judgement on matters of federal law
 Cooper v. Aaron
o Brown v. Board mandates integration
 Court reminds South in Brown v. Board II that it must be with all speed
possible
o Arkansas and its officials are expressly defying court’s madidate to integrate
 State actors inconsistent with decision of Supreme Court
 So must go further than Marbury
o Constitution is Supreme Law of the Land
 Marbury said Court is arbiter of Constitution and meaning
 Court suggests when it interprets it decision becomes Supreme
Law of the land
o Establishes Judicial Supremacy
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Idea that court pronouncements of the interpretation is equivocally
supreme as the written constitution
 Other branches must obey
o Full entrenchment of judicial review
 Authority to review and ensure consistency with Const.
 Decisions take on the force of the text itself
o Not just in
o Public Legitimacy is the only way to keep its power
 It rarely wields this power in order to keep respect of its authority
-Justiciability Limits Overview
 Judicially Created limits on what court can hear
o Limits on courts jurisdictions
 5 Major Justiciability doctrines
o Prohibition or advisory opinions
o Standing
o Ripeness
o Mootness
o Political Question Doctrine
 Constitutional vs. Prudential Limits
o Constitutional
 Constitutionally required specifically by Art. III’s case or controversy
o Prudential
 Limits fed courts impose on themselves because conservative judicial
resources
-Prohibition on advisory opinions
 Advisory opinion
o does not have the effect of adjudicating a specific legal case
o merely advises on the constitutionality or interpretation of a law
 Rationales
o Constitutional
 Upholds case and controversy requirement
 Upholds separation of powers
 Would essentially being doing the work of another branch
o Prudential
 Preserve Judicial resources
 Preserve Judicial capital
 Preserve Judicial decision making
 Enhances judicial legitimacy
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Declaratory judgement vs. Advisory
o Legally binding decision
o Requires that there could be a clear case/controversy
 Actual adversarial dispute between two parties
 Judicial decision will have effect/change in circumstances
-Prohibition on advisory opinions cases
 Muskrat v. US
o Statute permitted certain Native American Tribes to bring suits against US to
determine constitutionality of law allocating tribal lands
 Court determined that such suits are non-justiciable
o Advisory opinion is an opinion issued by a court that does not have the effect of
adjudicating a specific legal case but merely advises on the constitutionality or
interpretation of a law
o Seems to have parties in adversity, but no
 They are paid from same source
 Boundaries aren’t actively in dispute
-Standing Doctrine
 Determination of whether the litigants are the proper parties to present the matter to the
court for adjudication
 Rationales
o Ensures case and controversy
 Adversarial dispute
 Not hypothetical question
 Ensures vigorous advocacy
o Ensures separation of powers principle
 Objections of policies should go through other avenues
 Requirements
o 1. Actual or imminent injury (Lyons)
 Allege that P has or imminently will suffer injury
 Government not enforcing the law is not a cognizable injury
(Allen)
 Statutory authorization of suit and injury (MA v. EPA)
 Litigation is a state instead of parent (MA v. EPA)
 Injury CANNOT BE GENERALIZED (Allen v. Wright)
 Injury cannot be factually speculative
 Injunctive relief (Lyons)
o 2. Traceability (Allen)
 P injury is fairly traceable to D’s Conduct
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
 Injury must be fairly traceable, not attenuated (Allen v. Wright)
o 3. Redressability (Allen, MA v. EPA)
 P must allege federal court will likely redress injury
 Incremental steps, any steps are a start to redressing (MA v.
EPA)
-Standing Doctrine Cases
 Allen v. Wright
o Alleged injury:
 1. Subsidies to racially discriminatory private schools
 2. Frustrates process of integration
o First injury
 Government not enforcing the law is not a cognizable injury
 Injury CANNOT BE GENERALIZED
 Must be specific and particularized
o Second injury
 IRS is not preventing integration process of the schools
 Instead, they are just giving subsidies
 Not fairly traceable
o O’Connor fears if this is fairly traceable then open to all kinds of action
 Interfering with Executives ability to implement policy
o Steven’s dissent
 A right to integrated schools that’s not being observed
 Link  subsidies = cheaper private schools = avoid integration
 When Executive violates law, they should be brought to court
o IRS is sued instead of the schools because IRS is a public entity
 Constitution only serves as a restrain on gov’t actions
 Massachusetts v. EPA
o MA suing EPA for failing to apply regulations for clean air act
o Distinct from Allen
 Notes that Congress specifically allowed this kind of lawsuit
 They defined injury when agency fails to do its work
o Statutory authorization of suit and injury
 Litigation is a state instead of parent
 States get special treatment because they gave up sovereignty for
protection, so when US fails it isn’t upholding bargain
o Concrete Injury present
o Incremental steps, any steps are a start to redressing
o Roberts Dissent
 Not obvious EPA caused loss of MA coastline
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
 Redressability ruling in favor of MA won’t fix coastline problem
 Lyons v. City of Los Angeles
o Lyons detained by LAPD and put in chokehold
 Filed for injunctive relief to prevent further use of chokehold
o Injury is factually speculative
 Injunctive relief would require him to establish he would be placed in
chokehold in the future
 Linda R.S. v. Richard D.
o Linda wants state to prosecute Ryan for not paying child support even though he
is a nonmarital father
 Linda fails to satisfy redressability
 Private citizen lacks judicially cognizable interest in
prosecution or no prosecution of another
-Ripeness
 When review by federal court is appropriate
o Not ripe if it rests upon contingent future events that may not occur as
anticipated
 Rationales
o Prevent entanglement in abstract disagreements
o Ensure that issues are sufficiently developed for litigation
o Separation of powers
 Prevent judicial interference until other branches have possibility to make
decision
 Formalize decisions and effects are felt in a concrete way
 Prevent interference in decision making process
 Ripeness is when, Standing is who
 traditionally for pre-enforcement review of some kind of claim
o Injunctive relief of declaratory judgements
 Analysis
o 1. Probability that predicted harm is likely to occur (Poe)
o 2. Fitness of issues for judicial decision (Abbott Laboratories)
o 3. Evaluate the hardship to parties of withholding court consideration (Abbott
Laboratories)
-Ripeness Cases
 Poe v. Ullman
o Criminal prohibition of the distribution of contraception and information about
contraception
 Only prosecution was 20 yrs ago
 Group of married couples and their physician challenge the law
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o Court cannot be umpire to debates concerning harmless empty shadows,
 This isn’t ripe until violated
 No enforcement in this case
o Douglas Dissent
 What else are they supposed to do, violate it secretly
 They are in a predicament and need an answer now
Abbott Laboratories v. Gardner
o FDA changed labeling requirements for drugs, and in order to change would be
greatly expensive
o For petitioners to comply, they’d have to change all their labels
 Very present and expensive injury
o First, evaluated fitness of the issues for judicial decision
o Then evaluate the hardship to the parties of withholding court consideration
o Distinct from Poe how?
 Doesn’t Poe have a clear hardship?
 Clear legal question  Does state have power to regulate contraception?
 Judicial Avoidance
 They really don’t want to deal with contraception, so they don’t
-Justiciability Timeline
Concerns about
Facts giving rise to the controversy are
contingent and not yet fully developed
Justiciable
Concerns about Mootness
The facts have been developed such
that there is no longer a live controversy
between the parties
-Mootness Doctrine
 P must present a live controversy at all stages of federal court litigation
o If anything ends P’s injury  case dismissed as moot
 P dies in criminal action
 P dies in Civil Action and claim doesn’t survive
 Parties settle matter
 Rationales
o Art III  live case and controversy
o Prevent waste of judicial resources
o Separation of powers
 Preserves the court’s role as institutions that remedy injuries
 Exceptions:
o Exception
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Criminal Convictions have collateral consequences
 Prohibitions on employment/voting rights
Capable of repetition but evading review (Roe, Ogilvie)
 P must make reasonable showing that she will again be subjected
to the alleged illegality (Roe)
o Not the case in Ogilvie
 Don’t want to waste resources
o More flexible justiciability doctrine
Voluntary Cessation Doctrine (Laidlaw)
 D’s voluntary decision to stop doing challenged conduct once
litigation is threatened is not sufficient
o Only if clear that wrongful behavior could not reasonably
be expected to occur again
Class actions
 Certified Class may continue (Sosna and Gerstein)
o Even if Named P claims expire
 Class certification appeals are NOT moot upon expiration of
named P’s claim (Geraghty)
-Mootness Cases
 Roe v. Wade
o Challenge to abortion law, as litigated P gave birth to daughter
 Making question of terminating her pregnancy moot
o Court held exception for situations capable of repetition but evading review
 Acknowledges that some disputes or injuries may arise in short-term and
have potential for recurrence, failing to last long enough
 Moore v. Ogilvie
o Illinois’s election laws, as case was litigation election was held
 Did not moot the issue because subsequent elections would have same
issue
 Capable of repetition, but evading review
 DeFunis v. Odegaard
o Challenge to law school admissions Policy
 Provisionally admitted, but slated to graduate in few months of S. Ct.
decision
 Moot, this was judicial avoidance
o Fisher was decided not to be moot
 Friends of the Earth v. Laidlaw
o Challenge to Laidlaw discharging Mercury into the environment at bad levels
 Laidlaw responded by saying they stopped the practice
 Thus, voluntarily ceased violating conduct
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o Voluntary Cessation Doctrine
 D’s voluntary decision to stop doing challenged conduct once litigation is
threatened is not sufficient
 Only if clear that wrongful behavior could not reasonably be
expected to occur again
o Concern is if you voluntarily stop when someone sues, then start again, then stop
when someone sues, you could always win
 Also sunk cost, almost more wasteful to abandon these already started
suits
Sosna v. Iowa
o If class certified and representative P’s claims resolved, entire class will NOT be
moot
o If class properly certified, case is ripe for review regardless of rep. P absence
Gerstein v. Pugh
o If certified and named rep claim becomes moot, action will NOT be moot if live
controversy between any members of class and D
United States Parole Commission v. Geraghty
o Federal inmate brought suit challenging validity of Parole Board’s Release
Guidelines
 Fed. Dist. Court denies certification of class
 P challenges
o While pending he is released on parole
o Class certification appeals are NOT moot upon expiration of named P’s
claim, even though class certification has been denied
 Named P was proper representative for purposes of appealing the denial of
the class certification
 Named P has personal stake and claim is still “in form capable
of judicial resolution”
-Political Questions Doctrine
 Rationales
o Separation of powers
 Avoid inserting itself into conflicts between branches of federal
government
 Things best resolved through political process
o Cases and Controversy
 Political question not actual case
 All claims arising under Guarantee Clause of Article IV are non-justiciable political
questions (Luther)
 Analysis
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o Textually shows constitutional commitment to another branch
o Lack of judicially discoverable and manageable standards resolving it
o Impossibility of deciding without an initial policy determination of a kind clearly
for nonjudicial discretion
o Unquestioning adherence to a political decision already made
o Potentiality of embarrassment from multifarious pronouncements by various
departments on one question
Common implications
o Gerrymandering
o Congressional Membership
o Foreign Affairs and war making powers
o Constitutional amendments
o Guarantee Clause
o Impeachment Process
-Political Questions Doctrine Cases
 Luther v. Borden
o Attempt to overthrow charter gov’t that would expand voting rights in Rhode
Island?
 Luther argued that the charter gov’t was not republican and violated
Guaranty Clause of Article IV
o All claims arising under Guarantee Clause of Article IV are non-justiciable
political questions
 Baker v. Carr
o Redistricting case, with issues at how they are drawn
 Article 4 guarantee clause = always political
o Baker is claiming rural vote becomes worth more than urban vote since they
haven’t been redrawn
 Typically guarantee clause
 Baker argues 14th amendment
o Dilution of vote
o State is the problem, they have shown no interest in a resolution
o This is about individual person’s right being violated not the republican form
of government
o Frankfurter Dissent
 This is still guarantee clause and reframing is dangerous
o Encapsulates the main tension in federal law
 What is the point of federal courts
 Adjudicators of rights vs. neutral arbiters of text
 Partisan Gerrymandering cases
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o Davis v. Bandemer (1986)
 partisan gerrymandering claims are justiciable
 cannot identify a workable standard for determining the
constitutionality
o Vieth v. Jubelirer (2004)
 A plurality of the Court held that partisan gerrymandering claims were
nonjusticiable for lack of a clear standard.
o Whitford v. Gill (2018)
 Court remanded the case back to lower courts,
 plaintiffs had not alleged an injury sufficient for standing
Miller v. Johnson
o Racial gerrymandering is justiciable
o struck down a reapportionment plan
 “so highly irregular and bizarre in shape that it rationally cannot be
understood as anything other than an effort to segregate voters based on
race.”
Rucho v. Common Cause
o Map gerrymandered, with architect conceding it was drawn to give Governor’s
party the advantage
o CJ Roberts, failure to exercise workable standard makes in non-justiciable
o Argues already committed to state legislatures and Congress to resolve Elections
clause
o Political remedies available
 Independent state judiciary commissions
 State courts can strike down/figure out standard
 Congress can do something about it
o Kagan Dissent
 this focuses on right to vote, and Court need to be able to address it
 No democracy with no right to vote
o Gerrymandering limits this
o Can’t use political process to fix it, if it breaks the process
 Gerrymandering today much more different
 technology can make it precise
o A lot of this action has since moved to the state level as a result
Impeachment
o Art. II, §4
 Establishes impeachment
o Art. I, §2, Cl. 5
 House of rep has sole power of impeachment
o Art. I, §3, Cl. 6
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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 The senate shall have the sole power to try all impeachments
Nixon v. United States
o Impeachment is non-justiciable political question
 Senate has “sole power to try all impeachments”
-Executive Power
 Hamiltonian Position
o Unlike Art. I that expressly limits Congress to those listed
 Art. II exec. Powers not delineated
 Implied powers
 Madisonian Position
o No such thing as unenumerated authority
o No inherent or implied powers
 Only what is written
 Constitutional Sources
o Art. II §1, Vesting Clause
 Vesting executive power in the President
 Not an executive action
o Art. II §2, cl. 1, Commander in Chief
o Art. II §3, Takings clause
 “Take care that the laws be faithfully executed”
 Categorization (Youngstown, Jackson’s Concurrence)
o Congress confers power = Maximum Authority
o Prez acts without authorization or opposition from Congress = Middle Position
 “Zone of Twilight,”
 Relies on solely his own power
 Does not reject idea of inherent presidential powers, but suggests
context must be considered
o Prez acts contrary to laws passed by Congress = Lowest ebb
 His own constitutional powers minus any powers Congress has
 Foreign Affairs (Curtiss-Wright Export Co.)
o President does not need delegation from Congress for foreign affairs
 Congress has “no” foreign affairs powers to give him
o President alone has power to speak to nations
 He is the sole representative on foreign stage
 Suggest broader authority
o We want one voice, one person to avoid international
embarrassment
 An executive Agreement is an agreement the President works out with their
counterparts (Dames & Moore)
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o Only difference from a treaty is the requirement of senate supermajority
o This is not a broad plenary power, but it is okay to use procedure and process
already set in motion
Immune from civil suit from official acts (Nixon v. Fitzgerald)
o When not official:
 Not immune, but burdens minimized (Clinton v. Jones)
 Importance of P to correctly map her case
 Recollections of witnesses very over time, die or evidence gets lost
-Executive Power Cases
 Youngstown Sheet and Tube Co. v. Sawyer
o Korean war, steel mill threatening strike, everything failed
 President took control of steel mills
o Legal question: Is the President vested with authority to take the Steel Mills
o There is no law, maybe even to the contrary
 (Taft-Hartley act amendment on this topic failed)
 Justice Black said taking is like eminent domain, like a legislative function
 So not Art. II §3, Takings clause
 “Take care that the laws be faithfully executed”
o Art. II §1, Vesting Clause
 Vesting executive power in the President
 Not an executive action
o Art. II §2, cl. 1, Commander in Chief
 Not within commander of chief powers, not directing military
o Justice Black does a formalistic/categorical approach
 Everyone has a bucket, no one can steal others
o Justice Jackson’s Concurrence
 Power is at its maximum when Congress confers power to Prez
 Prez power is middle position when Prez acts without authorization or
opposition from Congress
 “Zone of Twilight,”
 Relies on solely his own power
 Does not reject idea of inherent presidential powers, but
suggests context must be considered
 Prez power at “lowest ebb” when the President acts contrary to laws
passed by Congress.
 President must rely only upon his own constitutional powers minus
any powers Congress has
 United States v. Curtiss-Wright Export Co.
o Congress passed resolution allowing Prez to stop sale of arms in armed conflict
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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 Company ignores this and sells arms arguing non-delegation doctrine
o Court finds issue to be what matters between domestic and foreign affairs
 President does not need delegation from Congress for foreign affairs
 Congress has no foreign affairs powers to give him
o Bad Constitutional founding argument
 states when combining powers to give to Congress never had foreign
powers  wrong!
 That was for the King  so now president
o Unequivocality
 President alone has power to speak to nations
 He is the sole representative on foreign stage
o Suggest broader authority
 We want one voice, one person to avoid
international embarrassment
o Foreign affairs give President Broad Authority
Dames & Moore v. Reagan
o To get release of hostages this was an executive agreement to bring all claims
against Iranian Nationals to an international tribunal
o An executive Agreement is an agreement the President works out with their
counterparts
 Only difference from a treaty is the requirement of senate
supermajority
o Has happened many times in past, and Congress has acquiesced
 Congress played a large role to create this process
o This is not a broad plenary power, but it is okay to use procedure and process
already set in motion
Trump v. Hawaii
o Does INA provide Prez authority to suspend entry of foreign nationals to US?
 If it does, do independent constitutional limits prevent Prez’s actions?
o Congress has delegated preference authority for entry to the President
 Huge delegation of authority on who can enter the country
 Statement neckless
o External limits like 14th and 1st amendments don’t apply because facially neutral
 Earlier comments don’t play a role, not inclined to push hard
 Refused to look under the hood
o Dissent Sotomayor
 She says no legitimate security concern
 We must look under the hood
 She says role of court to protect the injured not just ratify other decisions
Nixon v. Fitzgerald
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell

o Does President enjoy immunity for civil liability for acts that happen during his
official tenure?
 President has absolute immunity for official acts
 We want him to be able to do what he needs to do
 Plenty of adequate checks otherwise
Clinton v. Jones
o Prez is asking for qualified immunity that would allow him to defer from
testifying
 Embarrassment, political harassment, distraction from duties
o Importance of P to correctly map her case
 Recollections of witnesses very over time, die or evidence gets lost
o These aren’t official acts so no preference
o Burdens should be minimized
-Executive Privilege
 There are inherent Presidential Powers (Nixon, Youngstown)
o Art. II does not exhaust Presidential Powers
 Executive Privilege is inherent (Nixon)
 Not absolute (Nixon)
o Important for military/diplomatic
 Must be balanced against other branch’s needs (Nixon)
 General executive privilege may be more permissible in civil matter where need for
info is less profound (Cheney)
o No constitutional rights in question
 Analysis for Legislative Subpoena (Trump v. Mazars)
o Warrant involvement of Prez? (Trump v. Mazars)
 Other sources reasonably provide same info? (Mazars)
o NO broader than reasonably necessary for objective? (“)
o Nature of it advances valid legislative purpose? (“)
o Does it burden Prez and result from partisan politics? (Mazars)
 State Subpoena/Criminal actions
o Prez does not have absolute immunity from Criminal Process (Trump v.
Vance)
 Heightened standard would hobble state courts facing crime
 Prejudice the innocent by depriving grand jury of exculpatory
evidence
 President has protections of any other citizen
 Executive power may include an executive privilege regarding executive
communications (Nixon).
o executive privilege is not absolute. (Nixon)
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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 Mainly for diplomacy, the military
o unlikely a generalized privilege to any request
absolute privilege = separation of powers issues in criminal justice, (Nixon)
o impedes the courts’ ability to conduct criminal proceedings.
o Less so in civil (Cheney)
No absolute immunity from Congressional subpoenas for information (Trump v.
Mazars)
o even private information
o to balance the separation of powers interests of both branches.
No absolute immunity from subpoenas of grand jury investigation
o Must use standard defenses available in that context. (Trump v. Vance)
-Executive Privilege Cases
 United States v. Nixon
o Watergate break in, burglars take info from DNC headquarters
 Multiple resignations in DOJ, but eventually grand jury subpoena the
tapes
o Separation of powers precludes judicial review?
 Separation of powers is important
 But judiciary power to consider and interpreted and Executive is
breaking separation of power
 “We goin’ to check you boo”
o Is there inherent executive privilege from President’s enumerated powers?
 If yes, is it absolute? Does it apply here
 There is executive privilege to promote candor with advisors
 But not absolute because this would put President above the
law
 Not as broad when it has nothing to do with military, secrets,
diplomacy
 Executive Privilege can only be deployed limitingly
 This would not serve public interest
o Judicial Branch has interests at stake here too
 Consequences for other types of evidence
 Rights for defendants to confront accuser, right to plead the fifth
 Cheney v. US District Court
o FIOA requests, VP invokes executive privilege and SOP
o Civil suit so only branch involved is Judicial Branch
 Criminal Context invokes constitutional rights
 General executive privilege may be more permissible in civil matter
where need for info is less profound
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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
Trump v. Mazars, CJ Roberts
o Congressional Committees issued subpoenas for Prez’s financial records
 Explained that these would help guide legislative reform
o Do Legislative Requests warrant involvement of Prez?
 Can other sources reasonably provide Congress same info?
o NO broader than reasonably necessary to provide legislative objective?
o Nature of evidence requested would advance valid legislative purpose?
o Does it burden Prez and result from partisan politics?
Trump v. Vance, CJ Roberts
o DANY subpoenas several years’ worth of tax returns from Prez
 Prez argues that sitting prez has “absolute immunity from criminal process
of any kind”
 Argues fear of harassment, stigma, and distraction
o Guardrails in place to prevent that
 Ultimately no different than any other person
o Heightened standard would hobble state courts facing crime
 Prejudice the innocent by depriving grand jury of exculpatory evidence
o President has protections of any other citizen
o Kavanaugh Concurrence
 Takes issue with balancing state needs with President’s
 Heightened need
 State must show this is sufficiently important
o Alito Dissent
 Heightened standard
 1. General Description
 2. Outline how subpoena relates to these offenses
 3. Explain why it is important that records while Prez in office
-Non-Delegation Doctrine
 Intelligible Principle (Schechter Poultry)
o No guard rails, no guide looks like unfettered discretion
o Vesting President with legislative authority
o You need clear guidelines for how that power is used (Panama Refining)

-Non-Delegation Doctrine Cases
 ALA Schechter Poultry Corp. v. US
o National Industrial Recovery Act
 Allowed President power to create codes of fair trade
o Unconstitutional because the act creates no standards
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o CJ Hughes said that it’s not that they can’t delegate, but more about what is the
limiting principal
 No guard rails, no guide looks like unfettered discretion
 Vesting President with legislative authority
o Unfettered discretion is the problem
 This broad grant of authority deeply concerning and Unconstitutional
o Intelligible Principle
Panama Refining Co. v. Ryan
o Prez passes order to prevent transport of “hot” oil
 Power to do so comes from delegation from Congress
o Delegation might be necessary and administrative state might be necessary
 But you need clear guidelines for how that power is used
Whitman v. American Trucking Association
o Even though Scalia is originalist, administrative state is essential
 Only struck down two statutes because no guidelines and broad power
with large effect
Gundy v. United States
o Making a claim that guidelines that have been issued an uncommon amount of
discretion to a political appointee
 Wide discretion that changes each year
o Kagan argues that statute lets AG know what he’s supposed to do on a microlevel
 Macro level
 Real consequences for determining this is not enough
 We would essentially destroy our working government
o SORNA punted harder questions
 She is writing to Congress to essentially warn them to be crisper about
intelligible principles
 Alito is inviting to heavily regulated industries to bring a case
without sex offenders
o Dissent, Justice Gorsuch
 AG is a hybrid entity that has lawmaking, judicial and executive
 They are unelected, unaccountable
 Huge issues of separation of powers
 Maybe issue is predictability
NFIB v. OSHA
o Invalidates mandate for vax/testing requirement
 Gorsuch’s concurrence
 Concerned about non-delegation doctrine
o Admin state is imposition on American liberty
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
-Legislative Veto
 Legislative veto unconstitutional (Chadha)
o It skips bicameralism/presentment
-Legislative Veto Case
 INS v. Chadha
o AG can suspend deportation proceeds if they would result in a hardship
 House itself vetoes AG decision, they find no extreme hardship
o In doing veto, they engaged in legislative action
 But skipped bicameralism/presentment through one house veto
 Both houses must participate, president can veto
 Legislative veto unconstitutional
o Dissent
 Legislative veto absolutely necessary
 Admin agencies are unaccountable, and Congress is
-Necessary and Proper Clause
 Art 1. Section 8
o “Congress has additional powers to make all laws necessary and proper”
 Best understood as an enabling cause
 Must have an enumerated power and this implied power is necessary
to make it work (McCulloch)
o N & P clause must simply be related in a broad way to an enumerated power
(McCulloch)
 Implied power creating an implied power? (McCulloch)
 Grants powers to enact laws that are “rationally related” and “reasonably adapted”
to executing other enumerated powers (Comstock)
-Federalism Cases
 McCulloch v. Maryland
o Did Congress have the power to create a national bank?
o Source of authority
 Article 1: enumerated power
 Necessary and Proper Clause
 Reconstruction Amendments (enabling clause)
o External limits
 10th amendment
 Equal Protections
 Due Process
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell

o Marshall says power is nowhere expressly enumerated, but he says Congress has
done it before
 Historical argument
o Constitution is not meant to be accurate/detailed and exhaustive
 It’s an outline, where people must make inferences
o No enumerated powers in Constitution for this
 BUT, no words banning implied powers
 Art 1. Section 8
o Congress has additional powers to make all laws
necessary and proper
 Best understood as an enabling cause
 Must have an enumerated power and this
implied power is necessary to make it work
o N & P clause must simply be related in a broad way to an enumerated power
o Can Maryland tax the bank?
o Maryland’s imposition on the bank not only affects Congress, but other states
 States together gave up shared authority to Congress, so why does
Maryland get to control
 N&P clause gives power to congress to create
 Implies they have authority to protect
 Implied power creating an implied power
US v. Comstock
o Congress has authority to create federal crimes and related to that authority they
have created Bureau of Federal Prisons
 Fact they have this authority to create federal crimes/take care of them
 So now they have power through N&P Clause to commit mentally
ill people
o Grants powers to enact laws that are “rationally related” and “reasonably
adapted” to executing other enumerated powers
 The coat is civil commitment and hook is three or four closets down
 McCulloch was simply coat is bank and hook is first one, power to tax
-Commerce Clause
 Art. I, §8, cl. 3
o Allows Congress to regulate commerce with foreign nations, among several states
and Indian nations
 Commerce Clause allows: (Lopez)
o 1. Regulates Channels of interstate commerce
o 2. Regulates instrumentalities of interstate commerce
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o 3. Regulates intrastate activity that has a substantial effect on interstate
commerce
Substantial effect test activity must be commercial or economic in nature
o Congressional findings can shed light, but not dispositive (Morrison)
o Court can consider aggregate impact (Raich (Wickard for Weed))
o Unclear whether Congress may properly regulate inactivity (Sebelius)
History
o Starts in virtually unfettered commerce clause (Gibbons)
 Only check is political process, all intercourse is covered
o Gilded age court (E.C. Knight) (Dagenhart) (Carter Coal)
 used idea of police power, dual federalism, and 10th to police divide
between Congress and the states
 Commerce ≠ production and trade (E.C. Knight)
 Even if it is interstate, 10th amend. means can’t impinge on police powers
o Great Depression
 Asks if it is likely that intrastate activities will have an effect on interstate
commerce (Jones and Laughlin)
 Even intrastate commerce can apply to interstate (Darby)
 This seems to overrule Dagenhart
Aggregate principle (Wickard)
o May have minimal effect in interstate commerce, but if allowed it will add up
to affect interstate commerce
Congress can regulate under commerce powers: (Lopez)
o 1) Channels of commerce
 Roads/highways
o 2) Instrumentalities of commerce
o 3) Activities, including intrastate activities, that have a substantive effect on
interstate commerce
 Substantial effect must be commercial/financial/economic in nature
(Lopez)
Federalism allows the laboratories of Democracy (Lopez, Kennedy Concurrence)
Anti-commandeering principle (Printz)
o Prohibits federal gov’t from commandeering state gov’t and local officials
 No targeted, affirmatives, coercive duties
o Violates 10th amendment
Guidelines for constitutionality of conditions on federal funds: (South Dakota v. Dole)
o Spending must promote “general welfare”
o Condition must be unambiguous
o Condition relates to “federal interest in particular national projects or programs”
o Imposed on state must not, by itself, be unconstitutional
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
o Cannot be coercive
-Commerce Clause Cases
 Gibbons v. Ogden
o Gibbons says license that gives Ogden monopoly is impermissible because NY
does not have authority
 Congress has the power
o What is commerce?
 Court does not agree that narrow vision of buying and selling
 Commerce is undoubtedly the traffic between the nation, but it is
more
 It is intercourse
 All laws including navigation, rules of employment, buying and
selling, how goods get to market, taxes, excises, duties, customs,
who we let it and why
 Reflects foreign trade, must be more than just buying and selling
o It does not refer to intrastate commerce, whatever is within the border of a
state
o Commerce power is to the fullest extent with no limits other than those in
constitution
 Only check is political process
 Early Commerce Clause (1890-1937)
o US v. Dewitt
 Struck down federal law prohibiting sale of something
 “Police regulation” relegated exclusively to intrastate trade
 Can’t allow commerce clause to swallow state police power
o Trademark cases
 Invalidated federal law concerning trademark registration on ground that it
applied to intrastate business
o Laissez Faire Economic Theory and Social Darwinism
o Dual Federalism
 Separate zones of authority, role of courts to protect states from fed
intrusion
 “commerce” narrowly interpretated
 “Among several states” narrowly to activities with direct affect
 10th amendment as limit to commerce clause
 United States v. E.C. Knight Co (1895)
 Challenge to Sherman Anti-Trust act
o “Commerce” distinguished from production and
manufacturing of goods
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Carter v. Carter Coal Co (1936)
 “Commerce” is the equivalent of the phrase “intercourse for the
purpose of trade” (not production)
o Incidents leading up the culminating in the mining of coal
do not constitute such intercourse
 Employment, wages, hours = intercourse for production, not trade
 Hamer v. Dagenhart (1911)
 Direct rebuttal to swift and Co.
 Congress can’t prohibit shipment of goods made by child labor
o 10th amendment operates as restraint on commerce power
 Even when within commerce clause
 Direct effect, it is an interstate commerce
o But health and welfare of children is regulated to states
and 10th amendment
o Can’t impinge on the state’s police powers
 Lottery Case
 Gambling a vice so court more open to legislation on moral
grounds
Commerce Clause After the Great Depression
o NLRB v. Jones and Laughlin Steel Corp.
 NRLB allows creation of unions
 J&L refuse to comply, argues labor practices are not directly
upstream interstate commerce
 Court doesn’t overrule categorical approach of EC Knight and Carter Coal
 Distinguishes the facts
o Business is vertically integrated
 Asks if it is likely that intrastate activities will have an effect on
interstate commerce
o US v. Darby
 Like Dagenhart in facts
 Discredits idea that categories are meaningful
 Manufactured goods sent out of state is enough to apply commerce
clause
th
 10 amendment is a truism, not limiting Congress?
 Even intrastate commerce can apply to interstate
 This seems to overrule Dagenhart
o Wickard v. Filburn
 Agricultural Adjustment Act of 1938 attempts to regulate economy by
controlling how much farmers can grow
 Farmer grows too much for only his use
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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 Can Congress regulate wheat that never leaves the state
 Aggregate principle
 May have minimal effect in interstate commerce, but if allowed
it will add up to affect interstate commerce
Modern Commerce Cases
o United States v. Lopez
 Gun Free School Zone Act
 Makes federal offense to knowingly possess a gun in a school zone
 Defended by effect on commerce = cost of crime
 Children can’t learn and get good jobs
 Congress can regulate under commerce powers:
 1) Channels of commerce
o Roads/highways
 2) Instrumentalities of commerce
 3) Activities, including intrastate activities, that have a
substantive effect on interstate commerce
 Brings in line with existing cases, not overruling others
 Substantial effect must be commercial/financial/economic in nature
o United States v. Morrison
 Federal civil remedy for victims of gender motivated violence
 Defended by gender motivated violence has a huge effect on
interstate commerce
o Affects decision making on jobs/life
 Majority says that gender-motivated crimes are not economic activity
 No need to get into any effects
o Gonzales v. Raich (Stevens)
 Use of marijuana is lawful in California, but not federally
 Raich produces for herself and local commerce
 Wickard for weed
 Gov’t argues controlled substances act,
o commercial activity regulated any single exception will
make it harder to control it
o Creates substantial effect
 This is economic, it is a commodity
 Scalia Concurrence
 Large omnibus law and allowing people to get out of part of it will
make it hard to enforce
o Necessary and proper clause
o Not substantial effects
 O’Connor Dissent
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell

N&P is inappropriate here
o No enumerated power to latch on
 Thomas Dissent
 Overrule Wickard, alarmed substantial effects test
 Enlarging N&P here
o NFIB v. Sebelius (CJ Roberts)
 Individual mandate, Medicaid expansion, giving states funds to expand
coverage
 Requires individuals to have health insurance, failure to do so
would raise costs a lot
 Concerned the commerce clause would force people to engage in
commerce
 Not regulated activity but regulating an inactivity
 Ignores aggregate principal
 Substantial effects test is about activity, NOT inactivity
 Without commerce clause can’t use N&P
 He does allow it through because Individual mandate is like a tax
 Permissible under taxing power
 Scalia
 No N&P, even though similar to Gonzales
 Ginsburg
 rejects CJ rule of inactivity and accepts N&P
 Also question over Medicaid expansion permissible use of spending
power?
 Congress cannot act coercively with spending power
o Threat of pulling funding severely
o Also conscripting state agents to accomplish goals
 Printz v US
 Anti-commandeering principle
o Prohibits federal gov’t from commandeering state gov’t
and local officials
 No targeted, affirmatives, coercive duties
o Violates 10th amendment
 South Dakota v. Dole
 Guidelines for constitutionality of conditions on federal funds:
o Spending must promote “general welfare”
o Condition must be unambiguous
o Condition relates to “federal interest in particular national
projects or programs”
o Imposed on state must not, by itself, be unconstitutional
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
o Cannot be coercive
-Congress’s Enforcement Powers under the Reconstruction Amendments
 13th amendment, §2
o “Congress shall have the power to enforce this article by appropriate legislation”
o (Abolishes slavery)
 14th amendment, §5
o “Congress shall have the power to enforce, by appropriate legislation the
provisions of this article”
o (Citizenship) + (Due Process Clause) + (Equal Protection)
o Limited to state and local actions, NO PRIVATE ACTORS (Morrison)
o Privileges and immunities clause not for protecting rights (The
Slaughterhouse Cases)
o Narrow Reading
 Enforcement power limited to remedying violations that S. Ct. has
recognized
o Broad Reading
 Not limited to remedying existing violations, can create rights not yet
recognized by court
 Cannot dilute or diminish constitutional rights
o “The Ratchet theory” (Katzenbach) (Brought within City of Boerne)
 Congress could ratchet up civil rights beyond what court had recognized
 Judicially recognized rights are one on which Congress can expand
o Test (City of Boerne v. Flores)
 1) Is this a remedial or prophylactic measure?
 2) If so, is it congruent and proportional
 Congruent and proportional is a way to determine if remedial
or prophylactic
o They do not overrule Katzenbach
 Same thing they did with commerce clause
 Distinguish on facts, and apply a test using a narrowing view that
brings Katzenbach into alignment
th
 15 amendment, §2
o Congress shall have power to enforce this article by appropriate legislation
o (Right to vote)
-Reconstruction Amendments Cases
 The Slaughterhouse Cases
o Court interprets privileges and immunities Clause of 14th amend. narrowly
 Limits its role in protecting individual rights
 The Civil Rights Cases
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
o
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Court struck down Civil Rights Act of 1875
 Congress lacked authority under §5 of 14th to outlaw private acts of racial
discrimination
 Limits 14th amendment to state and local actions
Katzenbach v. Morgan
o Voting Rights Act of 1965
o Lassiter v. Northampton County... = literacy tests are okay by the court
 Court has not recognized right to vote without literacy tests
o Later Congress VRA prohibits literacy tests
 So, this is a new right
o §5 is similar to N&P
 “Plainly adopted to that end” and whether prohibited by other parts of
constitution
o “The Ratchet theory”
 Congress could ratchet up civil rights beyond what court had recognized
 Judicially recognized rights are one on which Congress can expand
Employment Division Dept. of Human Resources of Oregon v. Smith
o Court lowered standard of review for free exercise challenges involving neutral laws
of general application
o Congress responded by enacting RFRA
 Uses 14th amend. §5
 This incorporates it
City of Boerne v. Flores
o Is RFRA permissible exercise of Congress’s authority under §5
o Kennedy takes a narrower approach
 Views this as an enlargement of right and not merely recognition of an
existing right
o Test
 1) Is this a remedial or prophylactic measure?
 2) If so, is it congruent and proportional
o Here it is not remedial, but even if it was, it is clearly way too sweeping to be
proportional
 Changed way too many things and only changed one
o They do not overrule Katzenbach
 Same thing they did with commerce clause
 Distinguish on facts, and apply a test using a narrowing view that brings
Katzenbach into alignment
Nevada Dept. of Human Resources v. Hibbs
o Upheld FMLA because remedying gender discrimination
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Congruent and proportional to judicially recognized right to be free from
gender discrimination
Shelby County v. Holder
o Voting Rights Act §2
 Prohibits state and local gov’ts from having election practices that
discriminate against minority voters
 Authorizes litigation to enforce this prohibition
o VRA §5
 “preclearance” requirement
 Requires certain states to get approval for changes
o VRA §4(a)
 Sufficient progress = “bail out” of preclearance requirement
o VRA §4(b)
 Formula that determines which states must do preclearance
o CJ Roberts strikes down §4(b), not all of §5, but basically invalidates it
 Biggest issues it 10th amendment
 Equal sovereignty
 States shouldn’t be treated differently on decades old data
Fundamental Rights
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All in Bill of Rights
Right to interstate and intrastate travel
Right to privacy
o Marriage
o Procreation
o Abortion before viability
o Right to contraception (right to use)
o Right of family relations
-Substantive Due Process Analytical framework
 Strict scrutiny
o Requires a Compelling governmental interest that is narrowly tailored to
achieve that interest
 No less restrictive way available
 Rational Basis
o Is it rationally related to a legitimate government purpose?
 States do not need to proffer rationale (Williamson)
o the court can make assumptions and provide its own
justification
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
-Economic Liberties
 Economic rights are not fundamental rights (Carolene Products FN 4)
o Freedom of Contract is not a fundamental right (West Coast Hotel)
 Legislature can consider broader circumstances
 Improving general welfare
 Combating Great Depression
 Lochner Era (OUTDATED)
o Freedom of contract is natural right, limiting states right to legislate (Lochner)
 BUT you can impose on it for really good reasons
 Like protecting women (Muller)
-Economic Liberties Cases
 Lochner v. New York
o Law limited number of hours a baker could work, dangerous job because flour like
coal dust
 NY argues for police powers to focus on general health and welfare
o Holden v. Hardy
 Coal miners limited hours okay because dangerous
o Court says miners not dangerous enough
o Freedom of contract is natural right, limiting states right to legislate
o Establishes freedom of contract as protected right by Fifth and Fourteenth
o Government
 Can only be interfered with use of police power for public safety, health and
morals
 Muller v. Oregon
o Law limiting hours for women in a laundry
o Freedom of contract is protected and applies to women
 BUT you can impose on it for really good reasons
o Must “protect her from greed, as well as the passion of man”
 Female workers are object of state protection
 From economic predation and sexual predation
o Limits hours for women health, motherhood, and possibility of sexual exploitation
and economic exploitation
o Women are a special classification as needing protection of the state
 West Coast Hotel Co. v. Parrish
o Minimum wage law
 Earlier court decided Adkins
 Women have freedom of contract so no min. wage
 Departs from Adkins
o Overrules freedom of contract
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Says this is nowhere in Constitution
Redefining of liberty in a way that reupdates entire Lochner era
Legislature can consider broader circumstances
 Improving general welfare
 Combating Great Depression
United States v. Carolene Products Co.
o 5th amendment due process liberty = Federal
o 14th amendment due process liberty = State
o Footnote 4
 Suggests that court is deferential to legislature, EXCEPT
 Due Process
o Fundamental rights are at issue
 1-10 amendments and maybe more
 Political infrastructure
 Equal protection
o Discrete and insular minorities
 Solidifies that all economic rights are rational basis baseline
 Economic rights are not fundamental rights
Williamson v. Lee Optical of Oklahoma, Inc.
o Oklahoma gave monopoly to licensed professionals by preventing opticians from
giving glasses
o Claim is right to a trade is infringed on
 And Equal Protections claim that it relies on irrational distinctions between
people
o First, we ask if this involves a fundamental right
 Economic right so NO, only rational basis
o Then, is it rationally related to a legitimate government purpose
 Oklahoma doesn’t offer justification
 But court can fill it in
 So deferential to the state, the court can make assumptions and
provide its own justification
 States do not need to proffer rationale
Right of Privacy – Procreation
 Right to raise children as seen fit (Meyers)
o Family is a bullwork against homogenization that does not serve democracy
 Parents are responsible for rearing children, not the state (Pierce)
o NO RIGHT IS UNFETTERED
 State as Parens Patriae power (Prince)
 Sterilization still okay through police powers? (Buck v. Bell)
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Meyers and Prince established Marriage is fundamental right (Skinner)
o Right to Procreation is essential to future marriage (Skinner)
o Decided on EP grounds but first to bring up right to marriage and procreate
Right of Privacy (RoP)– Procreation Cases
 Meyers v. Nebraska
o Ban on use of teaching German language
o Meyers arguing right of contract as teacher, but more
 Right to raise children
 Police power was inhibiting parental rights
o Family is a bullwork against homogenization that does not serve democracy
 Allows cultivation of good citizens to question and challenge the gov’t
 Pierce v. Society of Sisters
o Parents are responsible for rearing children, not the state
 Parents know best for their children in most circumstances
 Prince v. Massachusetts
o Courts uphold child labor law
 Parenthood nor religion are beyond regulation
o State as Parens Patriae power
 Power of state to act on behalf of any child in need of protection
o NO RIGHT IS UNFETTERED
 Buck v. Bell
o Eugenics, Virginia sterilized cognitively disabled
 Court justified through police powers
o Still has lingering impact
 Skinner v. Oklahoma
o Reference Meyer and Prince
 Marriage and procreation are fundamental
o Procreation is important of marriage and children in the future
o Equal Protections
 No way to distinguish between crimes deserving of sterilization and those
not
RoP – Contraception
 Right to privacy (Griswold)
o Unenumerated but so is right to marriage and procreation
o Bill of Rights doesn’t make sense unless right of privacy
 Marriage requires privacy because only place sex/procreation can legally occur
(Griswold)
 For both married and unmarried  Equal protection grounds (Eisenstadt)
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
o Decided on EP grounds
 Distinction between them little sense, consequence = same
o Untethers privacy from marriage
RoP – Contraception Cases
 Griswold v. Connecticut
o Law preventing sale of contraception
o J. Douglas
 Right to privacy
 Unenumerated but so is right to marriage and procreation
 Bill of Rights doesn’t make sense unless right of privacy
 Marriage requires privacy because only place sex/procreation can
legally occur
 Eisenstadt v. Baird
o Massachusetts prohibits contraception for unmarried
o Equal protection grounds
 Distinction between married and unmarried makes little sense
RoP – Abortion
 Right to abortion up to viability
 Construction of fundamental right to abortion (Roe)
o History component
o How it affects personhood
o Connection to other rights/Right of privacy
 Right to privacy to come to this decision in consultation with doctor
o Uses Strict Scrutiny and Trimester system (Roe)
 Plurality allows state to prohibit use of government funds (Webster)
 UNDUE BURDEN TEST, not strict scrutiny (Casey)
 IF THE LAW’S PURPOSE OR EFFECT IS TO PLACE A
SUBSTANTIAL OBSTACLE IN THE PATH OF A WOMAN
SEEKING AN ABORTION PRE-VIABILITY IT IS AN UNDUE
BURDEN AND UNCONSTITUTIONAL
 Overturning precedent (Casey)
o Rule prior precedent establishes has proven unworkable
o Can be removed without “serious inequity to those who relied on it” or
“damage to the stability of society”
o Makes it an ill-fitting anachronism
o Facts have changed so much that rule is no “irrelevant or unjustifiable”
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
o OLD LAW: Weigh benefits and burdens against each other (Whole Woman’s
Health)
 Undue burdens test is more than rational basis
 Overruled by CJ Robert’s Concurrence (June Medical Services)
RoP – Abortion Cases
 Roe v. Wade
o Historically abortion was not illegal
 Before civil war focus on voluntary motherhood
 After civil war, immigration increases and white families have less
children, so concern over demographics
 OBGYN practices modernize
 1960s sexual revolution and concerns about over population
o Abortion can now be way safer and not clear blanket prohibition is done in name
of safety
o Potential life
 Court cannot make distinction of when life begins
o State’s interest does not outweigh what is at stake
 Unaffordability of more children
 Financial harm
 Stigma of unwed motherhood
o He is making this distinction based on a woman and her doctor
 Right to privacy to come to this decision in consultation with doctor
o Construction of fundamental right
 History component
 How it affects personhood
 Connection to other rights
o Uses Strict Scrutiny and Trimester system
 Prior to viability up to woman and doctor
 2nd trimester
 States interests of maternal health and regulation
o But no blanket prohibition
rd
 3 trimester
 States interests are perfected and at height
o Can prohibit fully
o Dissents, J. Rehnquist
 Health and welfare within state’s police power
 Williamson, no fundamental right here
 Nowhere in the constitution
 We criminalize it, so how can it be an abortion
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Webster v. Reproductive Health Services
o Plurality allows state to prohibit use of government funds
Planned Parenthood v. Casey
o PA requires:
 24 hour waiting period
 “Informed consent” from minors parents
 Spousal notifications
 Reporting requirement for facilities
o Court recognizes Roe’s “essential holding”
 1. Right to terminate pregnancy before viability
 2. State interest in protecting after viability
 3. State interest protecting health and regulating before viability
o State can’t compel an identity that transforms entire life
 Decision like these shapes you as a person
 So, state can’t make it for you
o UNDUE BURDEN TEST
 IF THE LAW’S PURPOSE OR EFFECT IS TO PLACE A
SUBSTANTIAL OBSTACLE IN THE PATH OF A WOMAN
SEEKING AN ABORTION PRE-VIABILITY IT IS AN UNDUE
BURDEN AND UNCONSTITUTIONAL
o Overturning precedent
 Rule prior precedent establishes has proven unworkable
 Can be removed without “serious inequity to those who relied on it”
or “damage to the stability of society”
 Makes it an ill-fitting anachronism
 Facts have changed so much that rule is no “irrelevant or
unjustifiable”
Whole Woman’s Health v. Hellerstedt
o Texas requires abortion providers to have admitting privileges
o Court puts teeth into the weighing benefits and burdens
 Greater burdens than benefits
 Undue burdens is not rational basis
June Medical Services v. Russo
o Texas requires abortion providers to have admitting privileges
o Plurality
 Same as Whole Woman’s Health
o CJ Roberts Concurrence
 Stare decisis holds vote here
 Takes issue with benefits and burden test
 Says Casey is better standard
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell

Casey Standard seems to be the way to go
RoP – Sex and Marriage
 Marriage is a fundamental right (Loving)
o And in Skinner
o Not unfettered (Zablocki)
 So long as it does not completely burden individuals right
 Sexual acts are so profound of personhood, they cannot be imposed on by the state
(Lawrence)
o The state cannot impose heterosexuality
o Strikes down on rational basis, does not designate as a fundamental right
 Griswold and Loving reflects marriage crime binary
o Eisenstadt and Lawrence suggest possibility of sex outside either
 Fundamental right to marriage expanded gay marriage (Obergefell)
RoP – Marriage Cases
 Loving v. Virginia
o Act prevents interracial marriage
 Specifically white people marrying out of the race
o Marriage is a fundamental right
 Maynard v. Hill
o Marriage privatizes dependency now state does not have to take care of them too.
 Zablocki v. Redhail
o Redhail not allowed to get married because he is delinquent on child support
 Though child would still be dependent on the state even with his support
o Wisconsin does not want people to have more children if they can’t support
current
 Incoherent goal is to prevent children from becoming charges of state
 So why force them to be illegitimate but not allowing marriage
o Strict scrutiny required
 Compelling interests
 But not narrowly tailored
 Not stopping him from buying a car when he does not have the
financials
 Also not thinking of fiancé’s financials
 Lawrence v. Texas
o Criminal laws against same sex acts
o Bowers v. Hardwick
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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 Sodomy was not in fundamental right to privacy
o He brings up Casey factors on when to follow precedent
 Factual basis was wrong,
 history did not care about same sex until 1970s
 Defined too narrowly
 This is more about dignity and autonomy
o All fights are about how to characterize fundamental rights
 Not about same sex sodomy but about a right that is defining to the person
o Overrules Bowers
o Sexual acts are so profound of personhood, they cannot be imposed on by the
state
 The state cannot impose heterosexuality
o Strikes down on rational basis, does not designate as a fundamental right
Obergefell v. Hodges
o Fundamental right to marriage, no good reason to exclude gay marriage
o Dissent themes
 Interrupts democratic debate
 Not historically and traditionally founded nor within constitution
 Procreation is linked to marriage, and cannot transfer to gay
marriage
-Equal Protection:
 How do we know when a law aims to discriminate against a particular group?
o Think about contrast between Jim Crow seen in Brown and race neutral in Davis
and McKelsky
 How do we know when something has an intent aimed at discrimination?
o DI cases tell us there must be an intent
 It can’t just be I know it’s likely to stick it to women, but I know it is and
that’s what I want to happen
 Feeney standard, reiterated in McKlesky
 How do we know when a group rises to the level of suspect or quasi-suspect class?
o The gender cases, Fronterio in particular
 What does it mean to discriminate against women?
 Is it benign, protective, or paternalistic?
o US v. Virginia is another.
 Should we be skeptical of expanding suspect groups?
o Cleburne struggles with this clear discrimination against the mentally disabled
 They don’t want to give it to everyone
 Bare desire of harm, animus, so no rational reason
o
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
-Equal Protection (EP): Nontraditional Families
 Marital Presumption (Michael H. v. Gerald D)
o Wife living with husband who is not sterile, presumed to be child of marriage
 Fundamental right to family relations (Moore)
 Marriage is a proxy for engaged fatherhood
o Parental rights jurisprudence informed by marriage and marital family
o Unmarried fathers may depend on approximating norms of married father
-Equal Protection (EP): Nontraditional Families Cases
 Stanley v. Illinois
o Unwed fathers can’t keep their children and have no right to hearing
 State’s interest in preventing neglect
o Fundamental right of parents
 Compelling interest  Child neglect
 Narrowly tailored  NO, AUTOMATIC PRESUMPTION
 Quilloin v. Walcott
o Biology alone was insufficient to perfect rights of an unmarried father
 Recognizing this parental right, would inhibit that of the involved
stepfather
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Michael H. v. Gerald D
o Marital Presumption
 Wife living with husband who is not sterile, presumed to be child of
marriage
o This is upheld, as marriage and unitary family are essential, and there are
conflicting rights here
 True protecting is not acting like fathers but like husbands
Moore v. City of East Cleveland
o Cousin not allowed to live with grandmother and uncle because city law
o Deep history of extended families living together
 So fundamental right to family relations
-EP Analytical Framework
 What is the nature of the classification?
 What is the corresponding standard of review?
 Do the government’s actions meet the level of scrutiny?
-EP Analytical Framework Classifications
 Suspect Class  Strict Scrutiny
o Race
o Alienage
 Quasi-Suspect  Intermediate Scrutiny
o Gender
o Illegitimacy
-EP Level of Scrutiny
 Strict
o Compelling governmental interest, narrowly tailored to achieve that interest,
with no less restrict ways to achieve it
 Intermediate
o Important government interest in a way that is substantially related to that
interest
 Rational
o Action must be rationally related to a legitimate government interest
-EP Cases
 USDA v. Moreno
o Household to include only related individuals
 USDA made food stamps only for households related to each other
o Court supposed to apply rational basis
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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No suspect class
But court looks into, because seem less about preventing fraud and more
about sticking it to the Hippies
o “Rational Basis with Bite”
 BARE DESIRE TO HARM A POLITICALLY UNPOPULAR
GROUP
 ACTING WITH ANIMUS
o Poverty is not a suspect classification (Harris v. McRae)
City of Cleburne v. Cleburne Living Center
o Cognitive disabilities are not a suspect class
o Determining a suspect and quasi-suspect class
 Immutable characteristics (i.e. race and alienage)
 Characteristics over which the individual has no control
 (i.e. illegitimate birth)
 Group’s ability to protect itself in the political process/political power
 History of discrimination against the group
o Used rationale basis with bite
 Bare desire to harm a politically unpopular group
Dred Scott v. Sanford
o Judge Taney writes that diversity jurisdiction
o Constitution offers no protection for African Americans, and scant for racial
minorities
o Invalidates the Missouri Compromise
Strauder v. West Virginia
o 14th Amendment protects racial minorities, giving same protections as white
people
o Struck down law preventing Black citizens from serving on a jury
 A civic right/political right
 Which can be protected, unlike a social equity (as seen in Plessy)
Plessy v. Ferguson
o 14th Amendment only addresses equality between races before the law
 NOT SOCIAL EQUALITY, BUT LEGAL EQUALITY
o Harlan’s Dissent
 This restricts personal liberty to associate as well
 Railroad doesn’t even want it
 So impeding on economic liberty too
Civil Rights Cases
o Limit 14th to state and local actions
Missouri ex rel. Gaines v. Canada
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o Lloyd Gaines challenges Missouri practice of providing Black students funds to
attend law schools in other states
 Missouri was obliged to provide a separate but equal law school for Black
students
Sweatt v. Painter
o Supreme Court held Texas’s law school for Black students was not equal in
prestige, faculty, and amenities to the flagship school
 Ordered Texas to admit Sweatt to UT Law School
McLaurin v. Oklahoma State Regents
o Although permitted to attend, was required to be segregated
 They could not force him to remain segregated
Brown v. Board of Education
o Plessy considered education social right
o Importance of education in American society has changed
o Segregation disadvantages all children
 Creates a stigma and sense of inferiority in black children
o Segregation is inherently unequal
o Segregation results in educational disadvantages
o Not traditional Strict Scrutiny
Korematsu v. United States
o Racial classification on its face
 Strict Scrutiny  Compelling interest, narrowly tailored
 Compelling  National security
 President is better knowing in war so some deference
 Narrowly tailored  Dissents say no, think about Italians
 Majority says yes
o Later repudiated in Trump v. Hawaii
Loving v. Virginia
o Racial classification doesn’t matter on equal application
 Always strict scrutiny
 White Supremacy is not a compelling governmental interest
-EP – Facially Neutral Laws
 Disproportionate impact (DI) itself is not enough for strict scrutiny (Washington v.
Davis)
 DI is an important starting point
o Circumstantial and direct evidence alongside DI can establish discriminatory
intent (Arlington Heights)
 Historical background
 Departures from normal procedures/patterns
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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 Smoking gun statements
 Patterns of behaviors overtime
Impact evidence only relevant when decision-maker acted because of anticipated
impact on minorities (Feeney)
o because of” not merely “in spite of”
 Must show DI and an intent for it to be discriminatory (McCleskey)
 Can still use Arlington Heights but almost pointless
 Knowing it will be DI is not enough, must show purposeful intent
Must have proof of DI and Discriminatory Intent (Palmer)
o Can’t have one or the other alone
o Multi-member bodies are hard to prove intent
-EP – Facially Neutral Laws Cases
 Washington v. Davis
o Certain test for employment as a police officer in DC’s MPD disproportionately
impacted Black applicants
o Disproportionate impact (DI) itself is not enough for strict scrutiny
 Absent facially racial you need more than DI
 Not irrelevant, just not enough alone
o Rational Basis applied
 Village of Arlington Heights v. Metropolitan Housing Development Corp.
o Disproportionate impact itself is not enough
 DI is an important starting point
o Clear pattern, unexplainable on grounds other than race
 Yick Wo v. Hopkins
 Ordinance banning wooden laundry building without permit
 Did not grant any to Chinese owners, but all non-Chinese
 Facially neutral, but administered in prejudicial manner
 Gomillion v. Lightfoot
 Alabama redistricting, 28-sided figure
 Driven by discriminatory intent
o The circumstances/pattern fail to show discriminatory intent
 Personnel Administrator of Mass. v. Feeney
o Impact evidence only relevant when decision-maker acted because of
anticipated impact on minorities
 McCleskey v. Kemp
o Baldus Study showed DI for Black convicts for death sentence
 “because of” not merely “in spite of”
 Must show DI and an intent for it to be discriminatory
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Closes the door to systematic discrimination issues
o NO MORE CONTEXT ANALYSIS from Arlington
 Can use factors but super hard to prove
Palmer v. Thompson
o City closes pools instead of integrating
o Difficult to put intent to a multi-member body
o Everyone is equally disadvantaged
 So, no DI even if there was one because YMCA policies
o MUST BE PROOF OF DI AND Discriminatory Intent
-Affirmative Action
 ALL race-based classifications, even those aimed at benefiting minorities (Croson)
o SUBJECT TO STRICT SCRUTINY
o Generalized efforts to remedy past discrimination are not compelling
interests (Croson)
 Set-aside programs/quotas are impermissible (Bakke)
o But race could be considered in admissions process (Bakke)
 Strict Scrutiny for race-concious admissions policies (Grutter)
o Diversity is a compelling governmental interest in education
o Flexible and holistic, relying on variety of diversity factors, not just race
 Strict Scrutiny (Fisher)
o Requires courts undertake own analysis of whether race-conscious measures
served compelling state interest and are narrowly tailored
-Affirmative Action Cases
 Defunis v. Odegard
o Challenge to law schools affirmative action program
 Determined case was moot because by time it reached Supreme Court he
was about to graduate
 Bakke v. Regents of University of California
o Medical school set aside spots for minority medical students violating equal
protections
o Fractured opinion
 Majority  Diversity is a compelling state interest
 Majority  overrule the quota as unconstitutional
 But no majority on what grounds, statutory or constitutional
 Fullilove v. Klutznick
o Set aside public funding for minority businesses
 Plurality holds that this is legitimate exercise of Constitutional power
 Remedial context is okay if it is not racially blind
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Richmond v. J.A. Croson Co.
o Program that gave money to minority businesses
o Use strict scrutiny
 Smoke out illegitimate uses of race
o Benign or remedial classification is meaningless
o Must be a specific claim of past discrimination in a particular industry
Grutter v. Bollinger
o Law school tried to attain a critical mass of underrepresented students
o Strict Scrutiny Used
 Diversity is a compelling governmental interest in education
 Critical mass is more narrowly tailored than quota system
 Flexible and holistic
 Race is not the only factor here
Gratz v. Bollinger
o UM’s undergraduate admissions relied on point system awarded points to
minorities
o Unconstitutional because did not allow diversity of contributions to be
 Individually assessed
Fisher v. University of Texas
o Top 10% of high schoolers get admissions to UT, fill up 75% this way
 The other 25% is holistic that considers race
o Diversity is a compelling government interest/academic preference that
requires deference
o Narrow tailoring, no deference owed
 There was no way to do this in a race neutral way
Schuette v. Coalition to Defend Affirmative Action
o Proposition 2 Ballot initiative, voters voted to prohibit use of affirmative action
 Upheld use of voter initiative process for prohibiting affirmative
action programs
-Gender Classifications
 Early cases:
o emphasized women’s role as mothers and defers to state’s interest in protecting
(Bradwell, Muller, Radice, and West Coast Hotel)
 Changing:
o Rational Basis but far less deferential (Reed)
o Plurality, but no majority for strict scrutiny (Frontiero)
 Gender is immutable, leads to stereotyping and does not affect ability to
contribute.
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Due Process applies here THERE IS NO EQUAL PROTECTIONS CLAUSE IN
THE 5TH AMENDMENT (Ex: Frontiero)
Today:
o Intermediate scrutiny for gender-based classifications (Craig)
 Challenge unconstitutional stereotyping but allow benign
o “Exceeding persuasive justification” (Virginia) (Mississippi University for
Women v. Hogan)
 No longer just accept benign rationales
 Stereotype v. “real” biological differences
“TENDER YEAR PRESUMPTION”
o Women in divorce would be presumed to get children under 10
 No because reflects stereotype that women are more caring
 BUT negative effects, a hallow equality?
Gender-Based Classifications based on stereotypes fail intermediate scrutiny
o (Mississippi University for Women v. Hogan), (Orr)
Biological differences can justify gender classifications (Michael M.) (Nguyen)
IT IS NOT EXCEEDINGLY PERSAUSIVE THAT THIS GENDER
CLASSIFICATION IS TO ACHIEVE THE IMPORTANT GOVERNMENT
INTERESTS BUT INSTEAD REFLECTS A STEREOTYPE THAT WOMEN
ARE....
-Gender Classifications Cases
 Bradwell v. Illinois
o Bradwell (a woman) wanted to become an attorney
 Court said no  coverture meant she had no right of contract
o Justice Bradley’s concurrence
 Vision of separate spheres
 Men are public facing, women are internal facing
 Constitution of the family predates that of the constitution
o Even though there are single women, as a general rule most will get married
 Must look to the general rule
 Reed v. Reed
o Men were prioritized as executors for reasons that they are better at math
 Court overturns on rational basis review
 Toothier than rational basis, but not strict scrutiny
 Frontiero v. Richardson
o Female service members must establish husband’s as dependent for more than ½
of support
 Male services members do not
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o Due Process applies here THERE IS NO EQUAL PROTECTIONS CLAUSE
IN THE 5TH AMENDMENT
o She is the exception to the general rule, so it’ll be expensive for the military to
implement
 Like Stanley v. Illinois, general assumptions are not narrowly tailored
o Majority agrees this is against due process
o Split on standard of review
o Powell wants beefed up rational basis
 Wants legitimate classifications based on gender
 All female/male institutions
Craig v. Boren
o This is a gender-based classification, men can’t buy this beer until 21
 Different by a little bit because this is a man
o Intermediate Scrutiny
 Important government interest, substantially related to achieving that goal
o Important interest is traffic safety
o State uses studies to show it is substantially related
 Nexus between study/traffic safety NOT substantially related to sale of
3.2% beer
o J. Rehnquist Dissent
 How can you tell the difference between important and compelling?
 Substantial and narrowly tailored?
 Allows judges to impose their own judgement
United States v. Virginia
o VMI was men only and argued necessary for adversative method
 4th circuit found separate institution for women as appropriate remedy
o She flips Bradwell on its face and says that the general rule doesn’t matter
 As long as there are some women who could and would go
o “Exceedingly Persuasive Institution”
 Pushes intermediate scrutiny more towards strict scrutiny
o Fails to meet intermediate scrutiny
 Some women can do this
 Diversity of education-types argument fails
 Military style education meets this, not male only
o Remedy
 Separate woman’s institution not the same, different prestige and
education was inferior
o J. Scalia Dissent
 This is more than substantial relation, but more like strict
Orr v. Orr
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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o Statute invalidated because based on stereotypes
o State trying to help women with severe economic disadvantage
 Court agrees important government interests
o But use of gender-based classification isn’t substantially related
 Why are women always presumed to be indigent when you already have
case by case analysis
o IT IS NOT EXCEEDINGLY PERSAUSIVE THAT THIS GENDER
CLASSIFICATION IS TO ACHIEVE THE IMPORTANT GOVERNMENT
INTERESTS BUT INSTEAD REFLECTS A STEREOTYPE THAT
WOMEN ARE....
o Over-inclusivity and under-inclusivity
 Allows rich women to get away with more
 Excludes men who need it because they have housework
Mississippi University for Women v. Hogan
o Man wants to go to all women’s nursing school
o Miss. Says its affirmative action for women to compensate previous
discrimination
 But men can audit classes
 Nursing has always been a pink-collar profession
o This is not Exceedingly persuasive because they have not been discriminated
against in the past in this field
o J. Powell Dissent
 Concern this will eliminate all single-sex institutions
 benefits of diverse education options
Michael M. v Superior Court of Sonoma County
o Statutory rape law that only charged man
o State’s goal is stopping teen pregnancies
 Viewed as important
o Substantially related
 Women bare all the costs, while men escape them
 Men need the deterrent
o About a real biological difference that justifies different treatment
 This is what prompted the exceedingly persuasive
o Biological differences can justify gender classifications
o J. Powell Dissent
 37 other Jx do not use gender-based classification and are fine
Nguyen v. Immigration and Naturalization Service
o One parent that is a citizen, child’s citizenship depends on marriage or which
parent
 Marriage = doesn’t matter who
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell
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Unwed = Depends
 Mother citizen
o As long as met easy residency requirement
 Father citizen
o All these steps
o Must prove paternity
o Must prove relationship
o Trying to prove paternity
 Not clear if he is father at birth
 Mother it is clear
o Blood test is not enough
 Prove relationship
 Father’s presence = financial support
 Not ward of the state
 Mother’s relationship is formed from birthing baby
 A biological distinction
o This was fine because of biological difference
Sessions v. Morales-Santana
o Invalidated gendered residency requirement
 Based on overbroad disfavored generalizations about gender
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-Illegitimacy
 Classification on the basis of nonmarital birth are quasi-suspect
o Subjected to intermediate scrutiny (Clark).
o Generally, distinguish marital and nonmarital children will not be upheld
o impose minimal burdens on illegitimate children will be upheld where they serve
the state’s interests (i.e. in preventing fraud, etc.).
-Illegitimacy Cases
 Common Law
o Illegitimacy were legally child of no one
 Filius nullius
o In practice mother was responsible
 US codified this
 States used them as new ways to regulate minorities after Civil
Rights Movement
 Levy v. Louisiana
o Petitioners were pushing strict scrutiny
 Illegitimacy = social construct imposed by law
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell


Mainly effects Black citizens
 DI argument
 Not within control of child
 Somewhat immutable
 Can be changed through adoption or marriage of parents
o They use neither rational basis nor strict scrutiny
 Seems wrong to punish the children to achieve the goal of deterring the
parents
o Fundamental rights at stake and wary of the disparate impact
Clark v. Jeter
o Six-year statute of limitations on mothers to assert a claim of financial support on
behalf of illegitimate child
 Court uses intermediate scrutiny
 Immutable characteristics and history of discrimination
 Good reasons to classify people as illegitimate, but need searching
to some degree
o Six-years is not substantially related, one year wasn’t
 Not clear how this cuts back on fraud
 Also, a mother might belatedly come across these issues
-Sexual Orientation
 The more flexible Rational Basis with Bite used in sexual orientation (Romer)
o animus, a bare desire to harm a politically unpopular group
 But flexibility comes at a cost sometimes (Masterpiece Cakeshop)
-Sexual Orientation
 Romer v. Evans
o Colorado amendment repeals accommodation statute that prohibited
discrimination based on sexual orientation
 Also impossible to seek remedy
o State argues liberty vs. equality
 Within equality intergroup and intragroup
 Fights over limited resources
 Analog to form of affirmative action
o Kennedy:
o This is too broad and too narrow
 Forbids protections, only remedy is to pass another amendment
o Never nominates sexual orientation as a suspect classification
o These interests are inexplicable by any other means than by:
 animus, a bare desire to harm a politically unpopular group
Con Law Outline, Spring 2022, Professor Murray, Jared Bedell


o Rational Basis with bite!
 Although there are legitimate concerns from the state
 The vast breadth of the amendment is only explainable by animus
o J. Scalia Dissent
 How can they be politically unpopular 46% of voters voted against the
amendment?
 This is just a cultural thing, no desire to harm
 Worried that expressing any kind of objecting in the future will be tied
with racism, sexism, homophobia
United States v. Windsor
o Defense of Marriage Act
 Offends federalism, states historical control marriage
 Denies fundamental right because voiding legal state marriage
o Animus
 Bare desire to harm a politically unpopular
 Treats civil unions as second class to heterosexual marriage
o J. Scalia Dissent
 Plenty of plausible reasons beyond animus
Masterpiece Cakeshop
o Commissioners had animus towards his religion
 Compared his denial of baking a cake to the holocaust
 How is historical acknowledgement animus?
 Seems to be use of rhetoric
o Scalia’s dissent in Romer may place a role
o Clearly a punt
o Shows the negatives of using a flexible standard like animus