CONSTITUTIONAL LAW
STRUCTURE OF THE CONSTITUTION
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Fall 2016 – Jacobs
REPLACING THE ARTICLES OF CONFEDERATION
Preamble
Article I – Legislative Powers & Enumerated Powers
Article II – Executive Powers
Article III – Judiciary Powers
Article IV – States
Article V – Amendments
Article VI – Supremacy Clause
Article VII – Ratification
27 Amendments
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Constitution provides for a stronger national
government
Weaknesses of Articles of Confederation
o Single House of Congress
o No independent executive
o No judicial branch
o Inability to regulate trade and levy taxes
(paralyzing interstate commerce)
o Poor foreign affairs
PART I – THE JUDICIAL POWER
“It is emphatically the province and duty of the judiciary to say what the law is. If two laws conflict with
each other, the court must decide on the operation of each. The constitution must govern the case
to which two laws apply.” - Marbury v. Madison (Marshall, C.J.)
WHAT IS JUDICIAL REVIEW?
RULE: Judicial review is the authority to review the actions of the legislative and executive
branches to determine the constitutionality of their actions. Judicial review requires Courts to
interpret and apply the Constitution acts to determine their validity.
CONSTITUTIONAL LIMITS ON JUDICIAL REVIEW
RULE: The Court’s jurisdiction for judicial review does not extend to:
1. Advisory opinions (advice to other branches on potential constitutional violations)
2. Moot issues (challenged issues are over and decision will not provide relief)
3. Unripe issues (not clear on whether rights have been threatened)
a. Ripeness occurs when the controversy is fully defined with conduct that has occurred
or is sufficiently likely for a court to hear the case.
4. Political questions (deferring to political branches on policy decisions)
a. Legal Question – courts provide remedy if available
FEDERALISM LIMITS ON JUDICIAL REVIEW
1. Abstention – federal court declines to hear a case when a state court should hear
2. Adequate and Independent State Ground – federal court will not hear case on federal
question if a state court addresses the question fully with a state question
CONSTITUTIONAL INTERPRETATION
• RULE: To interpret the constitution, we look to (1) Words, (2) Structure, (3) History &
Context, and (4) Policy Implications.
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PART II – THE NECESSARY & PROPER CLAUSE
“The Congress shall have Power to make all Laws which shall be necessary and proper for carrying
into Execution the foregoing powers, and all other Powers vested by this Constitution.” - Art. I,
Sec. 8 (Necessary & Proper Clause)
NATURE OF “NECESSARY & PROPER”
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NECESSARY & PROPER CLAUSE REPLACES “IMPLIED POWERS”
o RULE: A constitution need not contain in accurate detail all of the subdivisions of
great powers in its enumerated powers. Its nature requires only its great outlines
should be marked, its important objects designated, and minor ingredients which
composed those objects deduced from the nature of the objects themselves. “We must
never forget that it is a constitution we are expounding.” - McCulloch v. Maryland
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WHAT DOES “NECESSARY & PROPER” MEAN?
o RULE: “Necessary” is defined as convenient, useful, or essential in carrying out the
enumerated powers. Necessary does not mean “absolutely necessary” or has any
restrictive meaning to it. Such an interpretation is proper so Congress may “adapt to
various crises of human affairs.” (McCulloch v. Maryland)
§ Note: Chief Justice Marshall makes a “textual” argument finding that the
Constitution does not expressly deny Congress the power to form a bank, so it
left the power with Congress to create a bank that is convenient, useful and
essential in carrying out the taxing duties of the federal government under the
necessary and proper clause.
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MODERN INTERPRETATION OF “NECESSARY & PROPER”
o RULE: To determine whether a statute is necessary and proper under the
Constitution, we look at whether the statute is rationally related to the
implementation of a constitutional enumerated power. United States v. Comstock
§ DISSENTING (THOMAS, J.) – The end must be legitimate, according to
McCulloch
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PART III – SUPREMACY CLAUSE & PREEMPTION
“This Constitution, and the Laws of the United States … shall be supreme Law of the Land, and …
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
- Art. VI, Cl. 2 (Supremacy Clause)
THREE COROLLARIES OF THE SUPREMACY CLAUSE (McCulloch):
• The power to create implies the power to preserve
• The power to destroy by another hand threatens the power to create and preserve
• Where a repugnancy exists, the authority which is supreme controls the situation
o Note: The state power to tax the national bank in McCulloch conflicted with the
federal government to tax. Allowing the state power to tax a federal institution
would be taxing the American citizens and its government, which is something that
has not been approved. Taxing a federal institution threatens the preservation and
wellbeing of the federal government. Thus, the state tax on the national bank is
unconstitutional.
MODERN PREEMPTION RULES
RULE: A federal enactment may preempt a state law either through (1) express statutory
preemption, or (2) implied preemption.
• EXPRESS STATUTORY PREEMPTION
• IMPLIED PREEMPTION
o FIELD PREEMPTION - intent of federal law is to exclusively occupied the field
§ Field preemption is rare
§ Language usually is broad – over-inclusive to stop state laws
§ Example: immigration laws
o CONFLICT PREEMPTION – where state and federal law actually conflict either through
(1) frustration of purpose or (2) physical impossibility
§ FRUSTRATION OF PURPOSE – where the state law is standing as an obstacle to
the accomplishment and execution of the full purposes and objectives of
Congress
§ PHYSICAL IMPOSSIBILITY – where there is an inevitable collision between the
state and federal schemes of regulation
• Note: A federal law can set a minimum flooring of some requirement,
and a state law can set a maximum and can still be considered
physically possible. Think carefully as whether or not it is physically
impossible for the laws to co-exist.
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INTERGOVERNMENTAL IMMUNITIES
TAXES
Federal Immunity – federal entities are immune
to state taxes
• Federal Government Employees – State
may impose non-discriminatory taxes on
federal government employees, such as
income, sales, and property taxes
• Independent Contractors –State may
impose non-discriminatory taxes on
federal government independent
contractors even though taxes may
increase the amount of money federal
government must pay
REGULATIONS
Federal Immunity – federal entities are immune
from state regulation, absent Congress’s consent
• Federal Government
Employees/Independent Contractors –
Immunity extends to prevent states from
interfering with how employees and
independent contractors perform tasks
for the federal government, e.g. requiring
to obtain state licenses and standards
while working on federal projects
State Immunity
• Applicable federal regulations of state
entities are generally valid, perhaps
unless it violates the Tenth Amendment
State Immunity
• States are immune to federal taxation of
property used or income received from
state’s performance of essential
government functions
• States not immune from taxes when they
engage in proprietary activities that
private individuals can do as well
POWERS RESERVED TO THE STATES
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the
states, are reserved to the states respectively, or to the People.” – 10th Amendment
RULE: States have all powers not granted to the federal government by the Constitution. These
powers are generally referred to as “police powers” including the power to promote health, safety,
and welfare of citizens.
• Ownership of property
• Education of inhabitants
• Implementation of welfare and other benefit programs
• Protection from local threats
• Maintaining a justice system
• Setting up local governments such as counties
• Maintaining state highways
• Regulation of industry
• Raising funds to support their activities
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PART IV – THE COMMERCE CLAUSE
Congress shall have the power “to regulate commerce with foreign states, and among the several states,
and with the Indian tribes.” - Art. I, Sec. 8, Clause 3 (Commerce Clause)
THE LOPEZ CATEGORIES
RULE: In United States v. Lopez, the Supreme Court articulates three categories of activities that
Congress may regulate under the Commerce Clause: (i) the use of the channels of interstate
commerce, (2) the instrumentalities, persons, or things in interstate commerce, and (3) activities
that have a substantial effect on interstate commerce.
CATEGORIES
RULE
RULE: Under the first Lopez category, Congress may regulate the “use
of the channels in interstate commerce” when Congress is regulating
USE OF THE CHANNELS the media for which the movement of goods or persons take place in
IN INTERSTATE
interstate commerce. Congress’s power extends through the protective
COMMERCE
principle to the “use” of channels by having authority to regulate the
quality, the means, and the packaging and labeling of the goods
entering into the channel.
RULE: Under the second Lopez category, Congress may regulate the
instrumentalities, persons, and things involved in interstate
INSTRUMENTALITIES,
PERSONS OR THINGS IN commerce being transported. This may extend to intrastate activities
INTERSTATE COMMERCE that threaten the instrumentalities, persons, and things when they are
moving. Congress can regulate what happens after interstate commerce
has taken place all the way to the ultimate consumer.
RULE: Under the third Lopez category, Congress may regulate
activities that have a substantial effect on interstate commerce. We
analyze with the Morrison factors to see whether Congress could
rationally form a basis to find a substantial effect on interstate
commerce. These include
i. Is the regulated activity ECONOMIC OR NON-ECONOMIC?
a) Buying and selling means activity is economic;
b) But regulate if Congress rationally finds it necessary to regulate
an activity to stabilize or eliminate a market (Compare Wickard
ACTIVITIES WITH A
wheat / Gonzales marijuana and Lopez guns / Morrison violence
SUBSTANTIAL EFFECT
against women)
ON INTERSTATE
ii. Is there a JURISDICTIONAL ELEMENT in the statute that limits it
COMMERCE
reach to discrete instances of the conduct?
iii. Are there LEGISLATIVE FINDINGS reporting the effect of
interstate commerce? Helpful but not dispositive.
iv. Is the link between the conduct a substantial effect on interstate
commerce DIRECT OR ATTENUATED?
a) Activities and commodities that are offered for sale that may
cause a secondary harm to the national economy (Compare
Wickard wheat / Gonzales marijuana with Morrison sex assault
law and Lopez guns)
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PART V – TAXING, SPENDING & TREATY POWER
Congress shall have the power “to lay and collect taxes, duties, and imposts and excises, to pay the debts
and provide for the common defense and the general welfare of the United States.” - Article I, Section 8,
Clause 1 (Taxing and Spending Clause)
CONGRESS’S TAXING POWER
• Taxing to fulfill an enumerated power is constitutional.
• RULE: Congress may impose taxes to achieve regulatory purposes/conduct for the general
welfare without pointing to an enumerated power, and it is likely a tax if:
o The amount due is less than the cost to allow choice,
o There is no scienter (mens rea) requirement,
o The IRS collects the tax.
• A tax cannot seem like a covert penalty for criminal wrongdoing or punishment – a criminal
law must point to an enumerated power!
CONGRESS’S SPENDING POWER
• Spending to fulfill an enumerated power is constitutional.
• RULE: Congress may spend or withhold federal funds to achieve regulatory
purposes/conduct for the general welfare without pointing to an enumerated power. This
helps to induce cooperation by states in areas Congress cannot regulate directly. The
spending power cannot turn into compulsion – any pressure that is relatively mild and not
compulsory by the spending power is likely constitutional. Congress may rationally
withhold funds under four limits:
1) Spending / withholding for the general welfare (defer to Congress)
2) Unambiguously letting States know of the consequences
3) Relationship between condition imposed and federal interest to prevent backdoor
regulating
4) Not violating of other constitutional provisions
CONGRESS’S TREATY POWER
• RULE: When a treaty is valid and enforceable, it is the Supreme law because treaty power
is delegated by the Constitution and the law enforcing treaty becomes necessary and proper.
Treaties take precedent over conflicting state and federal law but does not equal the
authority of the Constitution.
o Is the treaty self-executing?
o Treaties expand Congress’ power to regulate
§ Not gauged by general welfare
§ Limits commerce power
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PART VI – FEDERALISM LIMITS ON THE COMMERCE
CLAUSE
STATE IMMUNITY AS “INDIVIDUALS” (GARCIA v. SAN ANTONIO)
RULE: Congress has the power to regulate the individual states as if they are individuals and
private entities, (for example, as employers), as long as they make a clear statement about its
intentions in a generally applicable law. (Gregory v. Ashcroft)
1. Garcia Court overruling the idea that federal regulations are restricting the state governments
are discharging their functions (National League of Cities holding)
2. Policy Rationales:
a. Taking a step back to not impose congressional limit
b. Court does not want to determine what are traditional government functions or to
take a political stance
3. There are sufficient restraints on the exercise of the commerce power to protect the state’s
sovereign interest are provided by procedural safeguards inherent in the structure of the
federal system established by the Constitution and should not be provided by judicially
created limitations on federal power.
a. Procedural safeguards including checks and balances, political process, electoral
college, representatives
STATE IMMUNITY TO FEDERAL REGULATIONS (NEW YORK & PRINTZ)
A. CONGRESS COMMANDEERING STATE LEGISLATURES
RULE: In New York v. United States, the Court held it is unconstitutional for Congress to
“commandeer” state legislatures to adopt laws or state agencies to adopt regulations. Although
Congress has the power to regulate individual states in a particular way and offer incentives for
“cooperative federalism,” the States must retain the ultimate decision as to whether or not the State
will comply.
POLICY RATIONALES:
a. Accountability diminished when Congress runs the states program without giving
the States the choice
b. Federalism is meant to protect the individual
B. CONGRESS MANDATING STATE EXECUTIVES
RULE: In Printz v. United States, the Court reaffirmed New York v. United States and held that
Congress cannot compel state executive officials to implement a federal mandate or program.
States are autonomous, sovereign entities, not mere instrumentalities of the federal government.
POLICY RATIONALES:
a. Separation of Powers gives President the power
b. Congress vests executive power to another state powers
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PART VII – STANDING
What is STANDING?
1. Standing is an Article III requirement for a Court to decide a claim.
2. The standing requirement arises from “case and controversy” in Article III
ESTABLISHING STANDING
RULE: A person has standing only if the plaintiff shows that she has (1) an injury-in-fact, (2) a
causal relationship between the injury and the conduct, and (3) redressability.
1. INJURY-IN-FACT
a. Concrete / Particularized
b. Actual / Imminent (the “plane ticket”/timing issue)
c. Not Hypothetical or Conjectural
d. Not a shared / general grievance
2. CASAUL RELATIONSHIP
a. Fairly traceable to conduct complained about to have caused the injury
3. REDRESSABILITY
a. Remedy available?
ASSOCIATIONAL STANDING
RULE: An association has standing to bring suit on behalf of its members when:
1. Its members would have standing to sue in their own right
2. The interests it seeks to advance are germane to the organization’s purpose
3. Neither the claim asserted nor the relief requested requires the participation of individual
members of the lawsuit
CAN CONGRESS CREATE STANDING?
RULE: Congress may create standing only within certain limits. It has the power to define injuries
and article causal relationships to give rise to cases and controversies. A person with a concrete
stake in an outcome may have standing to bring a claim.
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PART VIII – APPOINTMENTS, REMOVALS, & AGENCIES
APPOINTMENT & REMOVAL CLAUSE
• Appointment Clause provides Executive branch the power to appoint federal officials as
“principal officers” such as federal judges, ambassadors, and Cabinet members
• Congress cannot limit or eliminate the power to make such appointments
• Congress can vest the power to appoint inferior officers to the judiciary or in Cabinet
members
• Except said by statute, the president may remove any executive officer
o Congress cannot take away removal powers but may require good cause
CONGRESSIONAL ACTIONS AFFECTIVE PRESIDENTIAL POWERS
• DELEGATING RULE MAKING - (Yakus v. United States)
o Constitution does not require Congress to find every fact to base legislation on
§ Congress may delegate to the agencies to make rules and regulations
§ Congress can delegate by passing an “organic statute” that has an
“intelligible principle” giving limits to the executive
§ An agency interpretation of any gaps is usually given deference if it is
reasonable unless it is arbitrary and capricious or contrary to the statute
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PART IX – DORMANT COMMERCE CLAUSE
WHAT IS THE DORMANT COMERCE CLAUSE?
The dormant or negative commerce clause is the Supreme Court’s negative guarantee within the
affirmative commerce clause authority. It is an implied notion that the states cannot pass laws that
burden or discriminate against the commerce clause. The general idea is if there is a direct burden,
then the state law is impermissible; if it is an indirect burden, then the state law is permissible.
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POLICY RATIONALES of the DORMANT COMMERCE CLAUSE
Discrimination of the states is injurious to the country like Articles of Confederation
Political division caused by the states
Lack of foreign respect
STATE ACTIONS DISCRIMINATING AGAINST INTERSTATE COMMERCE
1. IDENTIFY THE STATE ACTION / LAW.
2. IS THERE PREEMPTION BY FEDERAL LAW? (the easy resolution)
3. IS THE STATE LAW DISCRIMINATORY/PROTECTIONIST?
a. YES – If a state law is clearly discriminatory and/or protectionist on its face against
interstate commerce, than the law is “virtually per se” invalid under the Dormant
Commerce Clause. (Philadelphia v. New York)
i. The state law is discriminatory and protectionist if the state law draws an instate out-of-state line to promote a legitimate purpose.
ii. The state law must have a real difference in the activity it regulates.
iii. The burdens on interstate commerce are only permissible unless there are no
reasonable, non-discriminatory alternative means adequate to conserve
legitimate local interests.
b. YES – If a state law is practically discriminatory in effect, it will only be upheld if
there is a legitimate state interest with no other nondiscriminatory alternatives. (Hunt
v. Washington Apples)
c. NO – If a state law is not discriminatory and non-protectionist, then the burdens and
benefits of the state law must be assessed. Where the burden of the state law is
clearly excessive on interstate commerce and there are no reasonable/practical,
non-discriminatory alternatives, than the state law is unconstitutional. If the
burdens are merely incidental to interstate commerce, than the state law is
constitutional.
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EXCEPTIONS TO THE DORMANT COMMERCE CLAUSE
1. CONGRESSIONAL APPROVAL
a. RULE: Where Congress has expressly authorized state regulation to burden or
discriminate against interstate commerce via a clear statement rule, the state law or
action is permitted under the Commerce Clause. (Prudential v. Benjamin)
2. VALID SUBSIDIES
a. RULE: Direct subsidization of domestic industry does not ordinarily run afoul of the
Commerce Clause. Discriminatory taxation of out-of-state manufacturers for a state
subsidy does violate the Commerce Clause.
3. MARKET-PARTICIPANT DOCTRINE
a. RULE: Where the state is the buyer, trader, or manufacturer in the business like an
ordinary citizen, then their state actions cannot offend the Commerce Clause.
However, the market place doctrine permits a state to only influence “a discrete,
identifiable class of economic activity in which it is a major participant” and cannot
impose conditions that have a substantial regulatory effect outside of that particular
market. (South-Central v. Wunnicke)
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PART X – PRIVILEGES & IMMUNITIES
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several
States.” - Article IV, Section 2 (Privileges & Immunities Clause)
DOES STATE ACTION VIOLATE A CITIZENS’ PRIVILEGES & IMMUNITIES?
1. IDENTIFY THE STATE OR LOCAL ACTION.
a. The Privileges and Immunities Clause applies to actions taken at the municipal and
local government, not just the individual States.
2. DOES THE STATE ACTION BURDEN A PRIVILEGE OR IMMUNITIY /
FUNDAMENTAL RIGHT?
a. Fundamental rights include:
i. Owning and possessing property
ii. Employment
iii. Conducting business
iv. Travelling across state lines
v. Access to Courts and the justice system
vi. Emergency medical attention
b. Does not include recreational non-fundamental rights
3. IS STATE ACTION BURDENING A CITIZEN OF ANOTHER STATE?
a. Corporations excluded
If it violates the privileges and immunities clause of the Fourth Amendment, the state or local
action must meet intermediate scrutiny – government action must be substantially related to
serving an important or exceedingly persuasive government purpose.
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PART XI – PRESIDENTIAL POWERS
CONSTITUTIONAL POWERS OF THE PRESIDENT
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CHIEF EXECUTIVE
Appointment
Removal Power
Budgeting
Law Enforcement
Clemency
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LEGISLATIVE
Veto
Legislative Proposals
Executive Orders
Emergency Powers
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FOREIGN AFFAIRS
Treaty Powers
Executive Agreements
Recognition
Appointment Powers
PRESIDENTIAL ACTING AFFECTING CONGRESSIONAL POWERS
The President cannot rely on its inherent powers as Commander-in-Chief to make an order, which
usurps the lawmaking authority of Congress on the basis of a compelling need to protect national
security. (Youngstown, holding the President cannot monopolize an entire industry even for national
security during war)
JUSTICE JACKSON’S YOUNGSTOWN CONCURRENCE
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CONGRESS
Make laws / enumerated powers
Support military and navy
Senate ratifies treaties
Art. I
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Unclear/Shared
PRESIDENT
Execute Congress’s laws
Commander-in-Chief
Make Treaties
Appointment & Removal
Powers
Art. II
CONGRESS SAYS… Yes
Silence
No
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YOUNGSTOWN ANALYSIS:
1. Did Congress limit or expand President’s power?
2. What is the President’s scope of power?
a. Congress said something – Congress can delegate with intelligible principles
b. Congress said nothing – unclear
c. Congress said nothing – President can act within its constitutionally enumerated
powers and inherent presidential powers
i. Based on the constitutional structures and balance of interest
ii. Based on custom – long history of congressional acquiescence to presidential
power (i.e. executive orders in Dames & Moore)
EXECUTIVE AGREEMENTS (Dames & Moore v. Regan)
Congressional authorization under IEEPA allowed the President to enter into an executive
agreement with Iran to secure the release of American hostages
EXECUTIVE ORDERS (Medellin v. Texas)
Presidential executive orders are unconstitutional if they demand people to do something outside of
his sphere of control.
• Example: Invalidating President Bush’s memorandum ordering state courts to adhere to the
International Court of Justice’s decision that the Vienna Convention on Consular Relations
requirements
PRESIDENTIAL POWERS: FOREIGN AFFAIRS AND WAR
The constitutional powers of the federal government regarding foreign affairs are more expansive
than those regarding domestic affairs. The president’s powers over international relations are not
restricted by the Constitution to the same extent as domestic affairs. The president has exclusive
and plenary power as the sole organ of the federal government in international relations.
• Foreign affair powers are not enumerated by the Constitution
• Inherently a national power and do not need to be spelled out
• President is the sole representative in the nations
• Separation of Powers – Shared War Powers
o Art. I, Sec. 8 – Congress can declare war and raise money
o Art. II, Sec. 2 – President is Commander-in-Chief
• Policy: Federalism – prevent weak nation by giving states the power of foreign powers
• Example:
o CONGRESS AUTHORIZING PRESIDENTIAL POWER:
§ Upholding joint resolution authorizing President to prohibit the sale of arms
to Bolivia and Paraguay and President declaration of an embargo (United
States v. Curtiss-Wright Export Corp.)
o CONGRESS LIMITING PRESIDENTIAL POWER:
§ Invalidating congressional act requiring the Secretary of State to allow
citizens born in Jerusalem to list their place of birth as Israel on passports
(Zivotovsky v. Kerry)
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EXECUTIVE PRIVILEGE & IMMUNITY
PRESIDENTIAL IMMUNITY
UNOFFICIAL /
OUT OF OFFICE
IN OFFICE
ACTIONS (DAMAGES)
COMMUNICATIONS
QUALIFIED
PRIVILEGE
United States v. Nixon
ABSOLUTE
PRIVILEGE
Nixon v. Fitzgerald
NO
PRIVILEGE
Clinton v. Jones
Balancing Test between
Presidential Interest and
Public Disclosure
Interest (criminal trial
interests)
Absolute privilege
from damages
liability predicated
from his official acts
Damages liability
from out of official
or unofficial duties
do not “engulf the
Presidency”
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PART XII – EQUAL PROTECTION
No State shall make or enforce any law that shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws. – Fourteenth
Amendment
HISTORY OF RACIAL DISCRIMINATION
1857
1865-70
African Americans do not have standing under diversity of citizenship; Congress has no
power to violate due process of property owners (Dred Scott v. Sanford)
Civil War Amendments
o 13th – Abolishing slavery
o 14th – Citizenship, Equal Protection, Due Process (overturning Dred Scott)
o 15th – Right to vote
1880
Invalidating law prohibiting African Americans on juries (Strauder v. West Virginia)
o Race lines deemed unconstitutional
1896
Upholding “separate, but equal” doctrine (Plessy v. Ferguson)
o Majority: urging ‘rational basis’ review; race line upheld if there is a relationship for
line drawn and purpose
o Dissent: urging ‘strict scrutiny’ review because racial lines are inherently suspicious;
Constitution is color blind
1944
Denying “equal protection” to Japanese Americans during WWII (Korematsu v. U.S.)
o Majority: “persons” means former slaves; race line is immediately suspect, but public
necessity justifies race line
o Dissent: Unreasonable, inheritable trait does not equal guilt
Road to Brown cases (Charles Hamilton Hughes)
1954
“Separate, but equal” doctrine in public education violates the Equal Protection Clause;
decision assumed all schools were equal but still unconstitutional (Brown I)
o “Separate, but equal” unconstitutional in the District of Columbia under the Due
Process Clause of the Fifth Amendment (Note: the Due Process Clause and the
Equal Protection Clause are not mutually exclusive) [Bolling v. Sharpe]
1955
School desegregation must be prompt and reasonable to start toward full racial integration
in public schools (Brown II)
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1954-91
Massive Resistance
o Cooper v. Allen, 1958 – affirming Brown decision
o Griffin v. Cty. Sch. Bd., 1964 – closing public schools to avoid desegregation is
unconstitutional
o Green v. Cty. Sch. Bd., 1968 – “freedom of choice” unconstitutional if they are not
realistically leading to desegregation
o Swann v. Charlotte-Mecklenburg Bd. of Educ., 1971 – mathematical targets for
permissible racial balances to achieve goals constitutional
o Oklahoma v. Dowdell, 1991 – desegregation decrees are invalid if school boards made
a good faith effort to desegregate and past discrimination has been eliminated to the
extent practicable
1967
Invalidating anti-miscegenation Virginia law for violating Equal Protection and Due
Process Clauses (Virginia v. Loving)
o Racial classifications are subjected to the most rigid scrutiny. If they are upheld, they
must be necessary to accomplish some legitimate state objective.
1984
Invalidating statute that denied a mother custody for having a black husband for violating
the Equal Protection Clause (Palmore v. Sidoti)
o Racial line drawn for removing infant from natural mother is arbitrary and a “naked
preference” in a custody dispute
o Lines cannot be drawn based on society’s prejudice and bias
2005
Holding that strict scrutiny is applied in a racial classification in the prison context and is
only upheld if the classification is narrowly tailored to serve a compelling government
interest (Johnson v. California)
o Rejecting “rational basis” in prison context
AFFIRMATIVE ACTION
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Two Compelling Interests:
o Remedying past discrimination by government
o Achieving diverse learning environments in higher education, jobs
Narrowly Tailored
o Real Difference
§ Show that discrimination of minority
§ Minorities are not adequately represented without preference
o Over/Under-inclusion
§ No rigid quotas; flexible plans are okay
o No Alternative Non-Discriminatory Means
§ Non-race factors are not adequate to achieve purpose
§ Non-race factors that correlate to race are okay – income level, segregation
housing pattern
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HISTORY OF GENDER DISCRIMINATION
1971
Invalidating law preferring males to females to become administrators of estates under
something like rational basis review (Reed v. Reed)
1973
Invalidating federal statute giving wives of service automatic dependency status, but
requiring servicewomen to prove dependency of husbands for same allowance under a
heightened scrutiny test because women have a history of invidious discrimination, and
gender is an immutable trait (Frontiero v. Richardson)
1974
Upholding the exclusion of pregnancy and childbirth as disabilities from disability insurance
system because this is not a gender line, triggering rational basis (Gedulig v. Aiello)
1976
Invalidating law that prohibited the sale of 3.2% alcoholic beer to males under the age of 21
and to females under the age of 18 under intermediate scrutiny (Craig v. Boren)
1996
Finding a male-only admissions policy at VMI unconstitutional because its diversity,
pedagogical benefits and adversative methods did not serve an important government
interest (United States v. Virginia)
• Attempted Compelling Purposes:
o Diversity in Type of Schools – Pretext
o Maintaining Adversative Pedagogy – Yes, but it is over/underinclusive
o Maintaining School Prestige – Hypothetical & a societal bias
EQUAL PROTECTION CLASSIFICATIONS
STRICT SCRUTINY
Race & Nat. Origin
Aliens
Religion
INTERMEDIATE
SCRUTINY
Gender
Illegitimacy
Compelling State Interests:
Remedying Past Discrimination
Diverse Learning in Higher Ed.
National Security (Korematsu)
Protecting Children (Palmore)
Prison Safety (Johnson)
Mother’s Health (Roe)
Fetal Life after viability (Casey)
Right to Marry (Loving, Obergefell)
RATIONAL BASIS
WITH A BITE
Hippies
Mentally Disabled
Sexual Orientation
Important State Purpose:
Traffic Safety (Boren)
Prison Safety
Not Important State Purpose:
Administrative Efficiency (Reed, Frontiero)
Preserving pedagogical methods (VMI)
Not Compelling Interests
Racial Integrity (Loving)
Fetal Life pre-Viability (Roe)
18
RATIONAL BASIS
Age
Wealth
Other Classifications
Legitimate State Interests:
Traffic Safety (Railway Express)
Aesthetics & Tourism (Dukes)
EQUAL PROTECTION ANALYSIS
Note on Disparate Impact
Plaintiff carries the burden to prove that
government action has a purpose of
discriminating and their action was taken
because of, not in spite of, their intent to
discriminate. Knowledge of disparate
impact is not enough to prove intent for
equal protection analysis.
Raise Level of Scrutiny?
1. History of Invidious
Discrimination
2. Protections from
Political Process
3. Immutable
Characteristics
GOVERNMENT ACTION
DRAWS A LINE
(Discriminatory Purpose & Effect?)
SUSPECT
Race, National Origin
Alienage
QUASI-SUSPECT
Gender
Illegitimacy
STRICT
SCRUTINY
INTERMEDIATE
SCRUTINY
Government action must be Government action must be
narrowly tailored to serve a substantially related to an
compelling state interest.
important or exceedingly
persuasive state interest.
Compelling Interests:
Remedy Discrimination
Diversity - Higher Educ.
National Security (Korematsu)
Prison Safety (Johnson)
Protecting Children (Palmore)
Mother’s Health
Important Interests:
Traffic Safety
Prison Safety
Narrowly Tailored:
þ Real Difference
Substantially Related:
þ Real Difference
(prove, no societal bias or preferences)
þ Over-Inclusive?
þ Under-Inclusive?
þ No Alternate Means
Yick Wo v. Hopkins (1886)
Invalidating city ordinance when a facially
neutral statute applied in an objectively
discriminatory purpose against the Chinese
Washington v. Davis (1976)
Upholding Test 21 even when it has a disparate
impact because there is no strong statistical
evidence for discriminatory purpose.
NON-SUSPECT
Age, Wealth
Other
RATIONAL
BASIS
Government action must be
rationally related to serve a
legitimate state interest.
Legitimate Interests:
Traffic Safety (Railway)
Town Aesthetics (Dukes)
Consumer Safety (Optical)
Administrative Efficiency
(Reed, Frontiero)
(prove, no societal bias or preferences)
þ Over-Inclusive?
þ Under-Inclusive?
þ No Alternate Means
Rationally Related:
þ Real Difference
(plausible, no naked preferences, deferential, and
step-by-step difference is constitutional)
Over-Inclusion: Are there people that represent the same “danger” but are not included?
Under-Inclusion: Are there people that are included that do not present the same danger?
19
PART XIII – SUBSTANTIVE DUE PROCESS
No State shall make or enforce any law that shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws. –
Fourteenth Amendment
SUMMARY of PROCEDURAL DUE PROCESS
If the government takes a protected liberty or property right, the Court applies a balancing test to
determine what level of procedures is required. The factors include:
1. The severity of the harm to the private interest without better procedures
2. The risk of error through the current procedures
3. The difficulty and expense of providing better procedures
LOCHNER v. NEW YORK – HISTORICAL CONTEXT
• LOCHNER ERA (1905) – Supreme Court upholds the right to contract as a “liberty” within
the meaning of the Fourteenth Amendment, creating a substantive individual right in which
the State cannot regulate
o Justice Holmes’ Dissent
§ Cannot write preferences into the law (i.e. cannot embody an economic
theory into the law)
§ Still the role of the Court to determine liberty
• West Coast Hotel v. Parrish (1937) – END OF LOCHNER ERA
o Upholding state minimum wage law for women
o Constitution only prevents the deprivation of liberty without due process
o No constitutional liberty in freedom of contract
= Strict Scrutiny
ROE FRAMEWORK
First Trimester
Second Trimester
Third Trimester
Mother’s Health
Fetal Life
Due Process
No Compelling Purpose
Significant Burden = Invalid
CASEY FRAMEWORK
Undue Burden Analysis
Fetal Life = Compelling Interest
20
HISTORY OF PRIVACY, CONTRACEPTION, & ABORTION
1942
Invalidating the Habitual Criminal Sterilization Act which authorized the sterilization of
felons under the Due Process Clause, finding that procreation is a fundamental right
(Skinner v. Oklahoma)
1965
Finding a right to marital privacy when a state statute prohibited the use of contraceptives
between married couples is an unjustified intrusion by the State (Griswold v. Connecticut)
o Finding the right under the penumbra of explicit constitutional guarantees
1973
Extending the right of privacy to encompass a woman’s decision for abortion and statutes
regulating abortion must meet strict scrutiny; however fetal life can be a compelling state
interest like the mother’s health (Roe v. Wade)
1977
Invalidating state law which only permitting licensed pharmacists from distributing
contraceptives to individuals (Carey v. Population Services)
1992
Planned Parenthood v. Casey – Reaffirming Roe v. Wade
o A woman has the right to choose an abortion before viability and to obtain it without
undue interference with the State. Before viability, the State’s interests are not strong
enough to support a prohibition of an abortion or imposition of a substantial obstacle
to the woman’s right for the procedure. However, the State has the power to restrict
abortions after fetal viability if the law contains exceptions for pregnancies that
endanger the woman’s health. The State may have a legitimate interest in protecting
the health of the mother and the fetus that may become a child.
o ‘Undue Burden’ Standard – Reconcile State’s interest with woman’s liberty
An undue burden exists when the state regulation has the purpose or effect of placing
a substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus. The state regulation cannot hinder the woman’s free choice in electing
abortion.
2016
Whole Woman’s Health v. Hellerstedt – Clarifying ‘Undue Burden’ Standard
o Undue burden exists based on balancing the benefits and burdens.
ABORTION FUNDING
There is no right to entitlement funds from the state government for an abortion. The State only
has to provide the right to an abortion, but it can choose not to provide Medicaid funds for
childbirth or withhold funding for abortions. (See Maher v. Roe and Harris v. McRae)
DUE PROCESS ANALYSIS – ABORTION
In Hellerstadt, the Supreme Court clarifies the Casey framework to assess whether a state abortion
law violates the fundamental right to get an abortion prior to fetal viability. If the burdens of the
law outweigh the necessity and benefits of the health law, then the burden is undue and unjustified.
When we look at burdens, we look to see if they are prohibiting/limiting access to abortion. When
we look at the benefits, we look to see if there is a real problem and how well the law serves that
purpose.
21
DUE PROCESS ANALYSIS
Fundamental Liberties:
Marriage & Childrearing
Family Living
Right to Refuse Life Support
Right to Travel
Right to Vote
GOVERNMENT ACTION
IMPACTS LIBERTY
Determining
Fundamental Liberties:
I. History
II. Tradition
III. Other constitutional
liberties
SIGNIFICANT BURDEN ON A
FUNDAMENTAL LIBERTY?
NO
YES
STRICT SCRUTINY
RATIONAL BASIS
Government action must be narrowly Government action must be rationally
tailored to serve a compelling state interest. related to serve a legitimate state interest.
Narrowly Tailored:
þ Real Problem (prove, no bias)
þ Over-Burdensome?
þ Under-Burdensome?
þ No Alternate Means
Rationally Related:
þ Plausible Difference
(no naked preferences, deferential)
DISCRIMINATION ON SEXUAL ORIENTATION
•
•
Romer v. Evans (1996)
o Invalidating Colorado’s Amendment 2 removing all laws securing protection against
discrimination for the LGBT community under rational basis review
§ Purpose of harming a unpopular group – not legitimate
§ Identifies persons by a single trait and denies protections across board
Obergefell v. Hodges (2015)
o Finding an individual right to marry between the same sex
o Due Process Analysis:
§ Significant Burden
• Institution of marriage provides for benefits
• Marriage is a liberty that has evolved in a string of cases
§ State Arguments
• Democratic discourse is harmed (no need for legislative action)
• Religions will be effected (dismissed)
o Dissents
§ Rights of the States
§ Judicial restraint to prevent Lochner creation of substantive right
§ Institution of cases has always been a man and a woman
§ Marriage is not a government entitlement
22
PART XIII – FREEDOM OF SPEECH
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances. – First Amendment
CONGRESS SHALL MAKE NO LAW ABRIDGING THE FREEDOM OF SPEECH.
Any Government
As Applied Thru 14th Am.
Due Process Clause
Force of Law At Any Level of Abridgment
Words
Writing
Music
Symbols (flags)
Costume
Burning Draft Cards
Principles Behind the First Amendment
• Marketplace of ideas
• Fundamental to democracy and law-making process
• Protecting political democratic speech
• Concerned about government censorship
Free Speech – Per Se Categories
1. Incitement – the First Amendment protects advocacy so long as that advocacy is not
directed to inciting imminent lawless action and likely to produce the lawless action.
(Brandenburg v. Ohio)
a. Directed = Intent, persuasion to “do it!”
i. Hess v. Indiana (1973) – anti-war protest is protected because the speech was
not louder than anyone else, and not directed to any one individual
b. Inciting is not the same as advocating
c. Imminent = Present/Timing
d. Lawless Action = Not Valuable Speech
2. True Threats – the First Amendment protects advocacy for violence, but threatening a
specific person is not protected. A true threat is a statement, which taken in the entire
context and all circumstances, a reasonable person would interpret it as a serious expression
of intent to inflict bodily harm upon that person. (Planned Parenthood v. American Coalition of
Life Activists)
3. Aiding & Abetting – the First Amendment protects speech that aids and abets a crime such
as the hitman manual in Rice v. Paladin (2004), but leaves room for civil actions for aiding
and abetting (compare with driving a getaway car)
4. Fighting Words – the First Amendment does not protect speech by its very utterance inflict
injury or tend to incite an immediate breach of the peace because such speech is not
essential to the expression of ideas and of very little social value (Chaplinsky v. New
Hampshire). Whether words are considered “fighting words” is based on whether a person of
common intelligence would be led into a fight and offended.
23
a. Hostile Audiences – the First Amendment protects speech that is inviting dispute
even if audiences react to the speech in a violent manner. Suppression of such speech
would be suppressing ideas. (Terminiello v. Chicago)
b. Racist Speech – the First Amendment protects speech that is directed towards group
even if it is offensive to some of the hearers because there is political value; there is
no political value when such speech is directed towards an individual (Collin v. Smith)
Distinction Between Content and Non-Content Based Speech
SIMON & SCHUSTER v. CRIME VICTIMS BOARD: (Content Based)
A statute is presumptively unconstitutional under the First Amendment if it places a
financial burden on speakers because of the content on their speech. Such financial burdens
drive away ideas from the market place. A state may only impose a financial burden if it
survives strict scrutiny.
WARD v. ROCK AGAINST RACISM: (Non-Content Based)
The government may impose reasonable restrictions on the time, place, manner of the
protected speech if the restrictions are justified and narrowly tailored to serve a significant
governmental purpose that leaves open ample alternatives for communicating the
information.
24
MODERN FREE SPEECH ANALYSIS
GOVERNMENT ACTION
ABRIDGES SPEECH
Spence Test
IS CONDUCT SPEECH?
Conduct is considered speech if (1)
there is intent to convey a
particularized message, and (2) if the
likelihood was great the message
would be understood by those who
viewed the conduct
CONTENT BASED?
Yes
PER SE CATEGORIES:
Incitement
True Threat
Fighting Words
Aiding & Abetting?
STRICT SCRUTINY
Government action must be
narrowly tailored to serve a
compelling state interest.
Compelling Interest:
Compensation for Victims
Criminals do not profit
National Security
Not Compelling Interests:
Protecting Sensibilities of
Public (Simon & Schuster)
Protecting a Pure Symbol
(Eichman – flag)
Narrowly Tailored:
þ Real Problem / Means
þ Over-breadth?
þ Under-breadth?
þ No Alternate Means
No
Speech
Expressive Conduct
TIME, PLACE & MANNER
(Intermediate Scrutiny)
Government action must be
narrowly tailored (well-tailored)
to serve a significant purpose
with open adequate alternative
channels of communication.
O’BRIEN TEST
Government may regulate the
conduct that is intended as
speech if it is:
1. Within constitutional
power
Significant Interest:
2. Furthers an important or
substantial government
Restricting noise in parks
(Ward v. Rock Against Racism)
interest (purpose)
Administrative Convenience 3. A government interest
(United States v. O’Brien)
unrelated to suppression of
speech (content-based?)
Well Tailored/Reasonable Fit: 4. An incidental restriction no
þ Real Problem / Means
greater than necessary or
þ Over-breadth/under-breadth?
essential for purpose
þ Alternative Means (focus on
(consider overbreadth,
government’s means to control)
underbreadth, and
alternate means)
Open Adequate Alternative
Channels of Communication
25
PART XIV – ESTABLISHMENT CLAUSE
Establishment Clause
Says No
(less government
discretion)
O’Connor’s
Endorsement Test
(more government
discretion)
Kennedy’s
Coercion Test
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances. – First Amendment
Government
Discretion
Government Cannot Aid Religion
Free Exercise Clause
Says No
Government Cannot Hurt Religion
GENERAL MEANING OF THE ESTABLISHMENT CLAUSE (Everson v. Bd. of Educ.)
“Neither a state nor the federal government may set up a church. Neither can pass laws that aid
one religion, aid all religions, or prefer one religion over another. Neither can force a person to go
to or remain away from church against his will or force him to profess a belief or disbelief in any
religion. Neither may openly or secretly participate in the affairs of any religious organization. …
The Establishment Clause was intended to erect a wall of separation between church and state.”
VARIOUS INTERPRETATIONS OF THE ESTABLISHMENT CLAUSE
THE LEMON TEST (Lemon v. Kurtzman)
The Lemon Test is remains the “go-to” analysis for Establishment Clause violations, subsuming the
other tests for coercion, endorsement, and neutrality. Government action violates the
Establishment Clause if the government action does not serve a valid secular purpose, if the
government action has a primary effect of advancing or inhibiting religion, and if there is excessive
entanglement with religion and government.
THE COERCION TEST (Allegheny County v. ACLU)
Government action violates the Establishment Clause if it provides direct aid to religion in a way
that would tend to establish a state church, and (2) coerces people to support or participate in
religion against their will
THE ENDORSEMENT TEST (Lynch v. Donnelly)
Government action violates the Establishment Clause if it creates the perception in the mind of a
reasonable observer that the government is endorsing or disapproving of religion, and nonadherents are viewed less favorably
THE NEUTRALITY TEST (Zelman v. Simmons-Harris)
Government action that treats religious groups as the same as other similar situated religious
groups are constitutionally valid
26
GOVERNMENT ACTION
AIDS RELIGION
THE LEMON TEST
Government action violates the establishment clause of the First Amendment if (1)
the government action does not serve a valid secular purpose; (2) the government
action has the primary effect of advancing or inhibiting religion, or (3) the
government action excessively entangles religion with government.
(1) A VALID SECULAR PURPOSE – Government action serves a valid secular purpose if it does not
engage in religious practice, proselytization, or indoctrination.
a. Examples of Secular Purposes:
i. Aiding school educational programs of public and private schools (Everson)
ii. Allowing the formation of religious student groups (Bd. of Educ. v. Mergens)
iii. Providing groups with spaces to pray (Good News Club v. Mifford)
iv. Solemnizing events such as town hall meetings (Greece v. Galloway)
b. Examples of Non-Secular Purposes:
i. Posting Ten Commandments in public school classrooms (Stone v. Graham)
ii. Forbidding the teaching of evolution in public schools (Epperson v. Arkansas)
iii. Requiring teaching creation science with evolution (Edwards v. Aguillard)
(2) NO PRIMARY EFFECT OF ADVANCING RELIGION
a. Examples of Not-Advancing Religion
i. Financing school busses for public and private schools (Everson v. Bd. of Educ.)
ii. Tax exemptions for property used exclusively for religion purposes among
other non-religious groups (Walz v. Tax Comm’n)
AID
iii. Federal program that lend secular educational materials to public and private
Indirect, Neutral
schools (Mitchell v. Helms)
iv. True private choice vis-à-vis a third party who ultimately controls the
distribution of the funds such as a parent (Zelman v. Simmons-Harris)
v. Menorah as a symbol of winter holiday season along other winter symbols
SYMBOLS
(Alleghany County v. ACLU)
No Endorsement/
vi. Opening prayers of any religious faiths of lay persons at town hall meetings
Coercion
because adults are not coerced or pressured (Greece v. Galloway)
b. Examples of Advancing Religion
i. Tax exemption for books published by a religious faith, finding no secular
objective (Texas Monthly, Inc. v. Bullock)
ii. Crèche displayed alone in front of county seat (Alleghany County v. ACLU)
a. Justice Kennedy disagrees under the coercion test – any person can
just ignore it by turning their back; latitude given to government for
recognizing religion as a vital role (Concurring & Dissenting in part)
iii. Prayers by members of clergy at graduation ceremonies (Lee v. Weisman)
a. Justice Scalia dissents because children can ignore and coercion must
have the coercive effect of law and threat of penalty
iv. Student selection of graduation prayer based on vote (Santa Fe v. Doe)
(3) EXCESSIVE ENTANGLEMENT – Government action cannot “power share” with religion
27
PART XV – FREE EXERCISE CLAUSE
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances. – First Amendment
HISTORY OF THE FREE EXERCISE CLAUSE
Mormon right to polygamy not violated by outlawing polygamy (Reynolds v. United States)
Statute compelling saluting the flag violated Free Exercise Clause (W. Virginia v. Barnette)
Compulsory education laws violated Amish’s right to not send children to school (Wisconsin v. Yoder)
Denial of unemployment benefits to plaintiff who was fired for religious practices violated the Free
Exercise Clause (Sherbert v. Verner)
o Substantially burdensome choice to choose between worship and financial benefits
o Law must past strict scrutiny
REJECTION OF FREE EXERCISE CLAIMS
Taxation – taxes do not violate the free exercise clause when a religion forbids taxation (Jimmy
Swaggart v. Board of Equalization)
Conscription – conscription does not violate the free exercise clause when religion opposes war and
conscription (Gillette v. United States)
Tax Exemption – denial of tax exempt status for religiously based racial discrimination did not
violate the free exercise clause because of national public policy of ending racial discrimination (Bob
Jones University v. United States)
Internal Governmental Affairs – building a road on sacred land for Native Americans did not
violate the Free Exercise Clause (Lyng v. Northwest Indian Cemetery Protective Ass’n)
MODERN FREE EXERCISE ANALYSIS (SMITH TEST)
GOVERNMENT ACTION
IMPACTS RELIGION
PURPOSE TO TARGET RELIGION?
A law of general applicability, which does not single out a religion on its face, may
not be disobeyed on the grounds that it violates a religious belief. Employment Division
v. Smith. However, even if a law is of general applicability, if the intent is to
discriminate, then the law must survive strict scrutiny. Church of Lukumi Babalu Aye,
Inc. v. City of Hialeah.
No
Yes
RATIONAL BASIS
STRICT SCRUTINY
Government action must be rationally related to
serve a legitimate state interest.
Government action must be narrowly tailored to
serve a compelling state interest.
***Note: exemptions are lifting a burden, tax
exemptions are conferring a benefit (like in Bullock);
exemptions are not mandatory, and are not
constitutionally required (political process)
Narrowly Tailored:
þ Real Difference (prove, no societal bias or preferences)
þ Over-breadth/Under-breadth
þ No Alternate Means
28
CONFLICT BETWEEN THE RELIGION CLAUSES
Establishment Clause
Says No
Government
Discretion
Government Cannot Aid Religion
Free Exercise Clause
Says No
Government Cannot Hurt Religion
RELIGIOUS FREEDOM RESTORATION ACT (RFRA)
• Congress enacted RFRA in response to Smith
• RFRA required laws of general applicability that burden religion to serve a compelling state
interest to be constitutional (strict scrutiny)
• Court held federal RFRA is unconstitutional because it expands First Amendment
protections further than what Smith holds
o First Amendment constitutional analysis + federal RFRA statutory violations
o States can have their own RFRAs, but it just a statutory violation
29