Constitutional Law Case Chart
Case Name
Cite
Constitutional /
Unconstitutional
Facts
Holding
CONSTITUTIONAL INTERPRETATION OF THE 8TH AMENDMENT: DEATH PENALTY CASES
Judicial review of state action that determines whether certain forms of the death penalty constitute cruel and unusual punishment.
Black man raped a white woman in LA in No – 5, 4 split, upholding 2nd execution.
the 1950s, and he is given the death
Court went back to English common law and
penalty. LA attempts to electrocute him;
found cases where criminals were unsuccessfully
he survives due to a mechanical problem. hung and allowed to be hung again. The fact that
LA succeeds in electrocuting him the
an unforeseeable accident prevented the first
Resweber v.
329 U.S. 459
Constitutional
second time.
attempt at execution did not add an element of
Louisiana
cruelty to the subsequent execution.
ISSUE: Is it cruel and unusual
punishment to put man in the electric
Can repeat after a failed execution.
chair for the 2nd time?
VA gave the death penalty to a mentally
retarded man.
Atkins v. Virginia
536 U.S. 304
Unconstitutional
ISSUE: Is it cruel and unusual
punishment to execute a mentally
retarded person?
Boy committed murder at 17. After he
turned 18, he was then convicted for 1st
degree murder and sentenced to death.
Roper v. Simmons
543 U.S. 591
Unconstitutional
ISSUE: Is it cruel and unusual
punishment to give a minor the death
penalty?
Yes – 5, 4 split. Court concluded that death
penalty for mentally retarded person was
excessive b/c their mental deficiencies diminish
their personal culpability.
Applied test of: current prevailing standards of
decency to mark standards of evolving society.
Yes. The Court held that American society
viewed juveniles as less culpable than the average
criminal. Executing individuals who were under
18 at the time that the capital crime was
committed is prohibited by the 8th Amendment.
**Test: use evolving standard of decency, mark
progress of evolving society, alter test as time
goes one & society changes.
1
Death penalty for stepfather who
forcefully raped his 8-year-old
stepdaughter
Kennedy v.
Louisiana
128 S.Ct. 2641
Unconstitutional
ISSUE: Is it cruel and unusual
punishment to give the death penalty to a
child rapist?
Man convicted of possessing more than
650 grams of cocaine and sentenced to
mandatory life term in prison w/out
possibility of parole. State did not
consider that he had no prior felony
convictions.
Harmelin v.
Michigan
501 U.S. 957
Constitutional
ISSUE: Is it cruel and unusual
punishment to give mandatory life
sentence for drug possession without
prior criminal record?
Yes. The Court held that 8th amend. prohibits
death penalty for rape of a child where the crime
did not result, and was not intended to result, in
the death of the victim. Court considered
evolving standards of decency test and
proportionality test. There was a national
consensus against capital punishment for the
crime of child rape and Court concluded that the
death penalty was not a proportional punishment
for the crime of child rape.
No. Court held that severe, mandatory penalties
may be cruel, but they are not unusual in the
constitutional sense. No “proportionality
guarantee” is given to determine what is cruel &
unusual without reference to the particular
offense. 8th Amend. refers to forms of
punishment, not lengths of punishment. Justice
Scalia said that sentencing doesn’t relate to cruel
and unusual punishment.
Cruel and unusual punishment doesn’t apply to
sentencing, only the death penalty.
For sentencing… 3 part test:
Is the sentence grossly disproportionate to:
1. Gravity of offense
Rochin v.
California
342 U.S. 165
Unconstitutional
Police officers entered man’s home,
tackled him to the ground, and then made
a doctor pump his stomach against his
will. This procedure produced the
evidence of illegal drugs used to convict.
ISSUE: May a state pump a guy’s
stomach for drugs in violation of his
privacy rights? Does this violate the 4th
2.
Sentences for same offense in state.
3.
Sentences for same offense in other
states.
No, can’t pump stomach… Yes, violates 4th
amendment. Court found that the police officers'
conduct, by illegally violating defendant's
privacy, struggling to open his mouth, and
forcibly extracting his stomach's contents,
shocked the conscience
If gov’t shocks conscience, then hold it
unconstitutional
2
Amendment (privacy)?
JUDICIAL REVIEW
At the end of Pres. Adam’s term in office,
he appointed “midnight judges.” Pres.
Jefferson refused to uphold the
appointments. Secretary of State,
Madison, was then sued by one of the
appointed judges (Marbury) for enforcing
Jefferson's refusal.
Marbury v.
Madison
5 U.S. 137
No ruling; Court
didn’t have
jurisdiction b/c writ of
mandamus was for
appellate court
jurisdiction
Test of Impeachment (Art. 2, § 4):
Treason, bribery, or other high crimes &
misdemeanors. (More based on party
lines; it can’t be that Congress doesn’t
like the way the judge decides or makes
his decisions b/c that isn't a sufficient
reason to impeach judge).
Marbury doesn’t get the writ of mandamus.
Although the Constitution does not explicitly give
the Supreme Court the right to review legislative
acts, Justice John Marshall establishes the
doctrine of judicial review.
The Court will not, however, review matters of
executive discretion (no confrontation b/w
Supreme Court and Executive branch). This is
known as the political question doctrine.
Supreme Court is the final authority in deciding
the constitutionality of federal laws.
It is emphatically the province and duty of the
judicial department to say what the law is.
- If a law conflicts with the Constitution, it is the
duty of the SC to strike it down.
IMPORTANT: Notice that Marbury is suing the
Secretary of State, not the President. When can
you sue the President or a State Governor for
damages and/or injunctive relief? (See Executive
Immunity below).
Can sue the president for equity (mandamus).
POLITICAL QUESTION DOCTRINE:
Bars U.S. Supreme Court from hearing/deciding certain cases b/c answering the question will do more harm than good and b/c Court realizes that it is powerless
to enforce some situations (why Marshall decided Marbury the way he did)
The Dorr Rebellion arose in RI b/c only
Yes. The Court refused to choose between the
landowners could vote, leaving 40% of
two governments, holding that whether a state
the citizenry unable to vote. A 2nd form of government is a legitimate republican form as
gov’t arose, attempting to overthrow the
guaranteed by the Constitution in Article 4, § 4 is
48 U.S. 1
No ruling
Luther v. Borden
chartered gov’t. US governor wants the
a political question to be resolved by the
Court to say English Charter governor is
President and Congress. Court recognized it had
unconstitutional
no power to stop this rebellion.
ISSUE: Does the political question
doctrine bar the Court from deciding
Too much of a political question: can’t enforce
3
Massachusetts v.
Laird
400 U.S. 886
Denied Cert.
which of the two competing governments
in RI is the “true” gov’t of the state?
Mass. passed a law stating that none of its
resident would be required to serve in the
Vietnam War abroad b/c Congress had
not officially declared war before fighting
began. Mass. asked the Court to declare
the U.S.’s participation in the Vietnam
War as unconstitutional.
ISSUE: Does the political question
doctrine bar the Court from declaring a
U.S. war that has not been declared by
Congress unconstitutional?
Maryland attempted to tax banks that
were not chartered by the state
legislature. Maryland was attempting to
nail the national bank with fees.
Justice Marshall wrote the opinion; he is
a Federalist, who supports a centralized
gov’t and national bank.
#1: Marshall does not believe that
Maryland’s behavior is an example of a
Bill of Attainder; Cochran says it is.
McCulloch v.
Maryland
17 U.S. 316
Unconstitutional
#2: Does Congress have the power to
establish a national bank?
#3: Constitution is a compact b/t the
people and the federal gov’t; it is not one
b/t the states and the federal gov’t.
(First sentence of US Const.: we the
PEOPLE – not we the states! Fed. gov’t
is not subservient to the states!)
#4: Is there a limit to Congressional
power? Yes; they can’t interfere with
other parts of the Constitution. Pretext
section.
anything – too hot to handle – won’t decide on it.
Yes. The Court refused to hear the case b/c it
would be likely to degrade the governments
relationships b/t the branches.
Political questions are not justiciable, which is
one of the elements required in order for the U.S.
Supreme Court to hear a case.
SC will NOT decide cases of political questions
that are likely to degrade the gov’t and the
relationship b/w the branches.
Yes. Court held that Congress had the authority
to create a national bank through the Necessary
and Proper Clause. Although the Constitution
does not specifically give Congress the power to
establish a bank, it does delegate the ability to tax
and spend, and a bank is a proper and suitable
instrument to assist the operations of the
government in the collection and disbursement of
the revenue. However, there is a limit to this
Congressional power.
Because federal laws have supremacy over state
laws, Maryland had no power to interfere with
the bank’s operation by taxing it.
***Marshall’s opinion put forth idea that
Constitution is a living document.
TEST for powers connected to expressly given
powers (Necessary and Proper Clause): let the
end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate,
which are plainly adapted to that end, which are
not prohibited, but consist with the letter and
spirit of the constitution, are constitutional.
Pretext power as stated by Marshall: “Should
Congress, in the execution of its powers, adopt
measures which are prohibited by the
constitution; or should Congress under the pretext
of executing its powers, pass laws for the
4
accomplishment of objects not entrusted to the
gov’t; it is the duty of SC to declare it uncon.”
EXECUTIVE IMMUNITY:
Scheuer v. Rhodes
Cooper v. Aaron
416 U.S. 232
358 U.S. 1
Unconstitutional
Constitutional
The Ohio Gov. ordered troops into Kent
State Univ. during civil rights protests
against Vietnam War. Students were
killed. Parents sued the Gov. for damages
for gross negligence.
ISSUE: Can you sue a state Governor for
damages for acts done while in office?
Little Rock School District chose to
desegregate the schools, attempting to
“save the educations of the white
children.” Gov. of Ark. refused to
integrate schools and ignore federal
government’s instructions to do so. Gov.
is then sued for injunctive relief.
ISSUE: Can you sue a state Governor for
injunctive relief for acts done while in
office?
National Treasury
Employees Union
v. Nixon
492 F.2d 587
Constitutional
Pursuant to federal statute, Nixon was
suppose to give P a pay increase. Nixon
refuses. P sought declaratory judgment to
get Nixon to give pay increase.
ISSUE: Can you sue the President while
in office with an equity-based suit?
Former Pentagon employee sued
President Nixon for damages.
Nixon v.
Fitzgerald
457 U.S. 731
Unconstitutional
ISSUE: Can you sue the President for
damages for an act done while in office?
Yes. The Court held that when a state officer acts
under a state law in a manner that violates the
U.S. Constitution, he is then stripped of his
general executive immunity.
Yes. 9-0 ruling. Contrast with Marbury v.
Madison: Here President Eisenhower supports
Supreme Court by sending troops to Arkansas.
The states are bound by the Court’s decisions,
and cannot choose to ignore them. Judicial branch
exercises power and executive branch backs them
up by enforcing the school integration.
Governors & states are subject to federal law &
federal opinions.
The Constitution is the “supreme” law of the land
and NO elected official can “war against” it w/o
subverting his duty to it.
Yes. Like Marshall, can sue the president b/c it is
equity based.
No. The president is not liable for damages for
acting within the scope of his presidency; he has
executive immunity.
President can’t be sued on damages suit while in
office.
You can sue the President for equitable relief for
a tort that he has committed while in office.
5
Clinton v. Jones
Plame v. Cheney
(Wilson v. Libby)
520 U.S. 681
498 F.Supp.2d
74
Constitutional
Constitutional
Former state employee sued Pres. Clinton
for sexual harassment which occurred
while he was Attorney General for
Arkansas.
ISSUE: Can you sue the President for
damages for acts prior to taking office?
Plame sues Cheney for “outing” her from
the CIA stemming from President Bush
criticisms.
When it’s a suit of equity or mandamus, then you
can file a suit against the president.
Yes. The president is liable for damages for
events that happened prior to his presidency and
outside the scope of his presidency (Jones
harassment happened prior to presidency). Nixon
case did not apply here.
Can be sued for damages, b/c wasn’t president at
the time the act occurred.
Yes.
ISSUE: May the Vice President be sued
for damages?
RECUSAL:
Refers to the act of a judge abstaining from participation in an official action such as a legal proceeding due to a conflict of interest.
28 USC 455 – judges shouldn’t be involved in proceedings where they’re impartiality might be of consequence.
During the Vietnam war, the Pentagon
No. Rehnquist did not recuse himself, even
had a surveillance program, which had
though he had already taken a position on the
gov’t people join groups that were against issue. The Court stated that recusal is only
the war to act as informants. A 1st amend. appropriate when judge has personal
issue was raised. As an officer in the
involvement; Rehnquist’s pre-expression was
Dept. of Justice, Rehnquist had
okay.
409 U.S. 824
No recusal
previously expressed his view that it was
Laird v. Tatum
constitutional to place surveillance on
civilian groups.
ISSUE: Does a Supreme Court Justice
have to recuse himself from a case when
he has already expressed his opinion and
taken a position on the issue before the
case comes before the Court?
Justice Scalia and Vice President Cheney Not in this case. Friendship is normally a ground
are good friends. They went duck hunting for recusal of a justice where the personal fortune
one weekend prior to the Court's hearing
or the personal freedom of the friend is at issue in
of a case involving Cheney. Scalia did
the case. Recusal is only required when is his
Cheney v. U.S.
541 U.S. 913
No recusal
not recuse himself. Scalia argued: “If you impartiality might reasonably be questioned. But
District Court
can't trust a Supreme Court Justice to be
here, Justice Scalia did not have to recuse
impartial, then who can you trust?”
himself. Cheney was representing the gov’t, not
ISSUE: Does a Supreme Court Justice’s
himself.
friendship with a party to a case before
6
the Court provide enough reason for the
justice to recuse himself?
BILLS OF ATTAINDER: (Article I, §§ 9 & 10)
Legislated punishment for past conduct identifying those to be punished; not allowed for either state or federal government.
A bill of attainder: (1) Identifies a subject individual or class, (2) Punishes the subject for past conduct, (3) Without judicial trial.
Elements: legislative determination of guilt; law applies to specific or readily identifiable persons; law amounts to “actual punishment”; law applies retroactively.
Exam Tip: look for intent of legislature.
Note: doesn’t apply to corporations.
Like Dean Milk & Camden: municipal ordinance discriminating against in-state and out-of-state residents can be a bill of attainder case (but, before you can have
a bill of attainder case, you have to have a statute that discriminates against non-residents on its face).
Test:
1. Has to be a statute where you can know the affected person with specificity.
2. Has to inflict punishment.
3. Without trial.
4. No non-punitive purpose (must be punitive in nature, not one non-punitive purpose).
5. Has to relate to past conduct.
Current Possible
Bill of Attainer
McCreary v. State
of Mississippi
Ex Parte Garland
U.S. v. Lovett
- Obama came up with revenge tax to tax the banks – designed to repay and in retaliation of the bonuses that the banks are giving their
employees; is that tax constitutional? Obama says it’s to recoop bailout; it is a retaliation – is it a bill of attainder? Easily identifiable
people, Is there a non-punitive purpose? To refund TARP monies and return fed’l revenue.
Guy commits rape. Part of his sentence
No.
was banishment from MS.
*Against a policy, or against the constitution, to
582 So.2d 425
Unconstitutional
banish their criminals and send to another state
ISSUE: May a state ban a criminal?
(cannot banish criminals from state).
Can’t practice law if you are a member of Yes.
an organization hostile to the gov’t of the Have to take an oath, which basically says you
US – basically if you were a member of
aren’t a member of the confederacy, so there is no
confederate army.
trial & the person is specified.
18 L. Ed. 366
Unconstitutional
Exclusion from any of the professions or any of
ISSUE: Is a federal law prohibiting
the ordinary avocations of life for past conduct
members of the confederate army a Bill
can be regarded in no other light than as
of Attainder?
punishment for such conduct.
Congress passed appropriations bill
Yes. Court held that legislative acts, no matter
which did not allow paying 3 federal
what their form, that apply either to named
328 U.S. 303
Unconstitutional
employees and prohibited them from
individuals or to easily ascertainable members of
future gov’t work b/c they were once
a group in such a way as to inflict punishment on
Communists. (Statute cutting off pay of
them for past conduct without a judicial trial, are
7
Sea River
Maritime v.
Minetta
Selective Service
Board v. MPIG
Elgin v. U.S.
309 F.3d 662
Constitutional
employees who were suspected
communists).
ISSUE: Is a federal law prohibiting gov’t
workers from being associated with the
Communist party a Bill of Attainder?
The Exxon Valdez was responsible for
the great Alaskan oil spill. After the spill,
a Federal Oil Pollution Act was passed
that prohibited any vessel that had spilled
more than 1 million gallons of oil from
entering the Prince Williams Sound. The
Exxon Valdez was the only vessel this
law applied to.
ISSUE: Is the act prohibiting the Exxon
ship from entering the Sound a Bill of
Attainder?
Federal statute that denied financial
assistance to students who did not register
for the draft.
468 U.S. 841
594 F. Supp. 2d
133
Constitutional
Unconstitutional
ISSUE: Is this statute a Bill of Attainder
targeting draft dodgers?
Selected Service Act – must register for
the draft between the ages of 18 & 26.
Failing to register results in penalty: no
federal job for lifetime.
Male Plaintiff did not register for the
draft. At 25, he was hired by the FBI but
was fired at 41 when the IRS discovered
he had never registered.
ISSUE: Is this statute a Bill of Attainder
targeting draft dodgers?
United States v.
Brown
381 U.S. 437
Unconstitutional
Congress passed a statute that said you
couldn’t be a Labor Union leader if you
have been a member of the Communist
party, criminalizing membership of the
“bills of attainder” prohibited by the Constitution.
No. Court said that the law was for a non-punitive
purpose and was meant to protect sea vessels
from causing damages to the extent that boat had.
An Ex Post Facto Law is a law prohibiting
conduct applied retroactively to people who
broke the law before it was passed.
No. The Court held that because the statute
provided 30 days for students to register for the
draft and then qualify for assistance, the statute
was not a Bill of Attainder (easy to fix, so nonpunitive purpose).
Punishment for a past act? No, b/c you have 30
days to fix it.
Anything non-punitive? Help enforce the draft.
Yes. Brought on by over 26 year olds, so can’t fix
it (difference b/w Elgin & MPIG). Also, can only
have the job based on past conduct, showing a
relation to past conduct.
Equal Protection Claim:
Citing Rostker (male-only draft), the
governmental objective has not changed: To
prepare a pool of potential combat troops.
Women are still ineligible for assignment to
direct combat units on the ground. Women are
permitted to serve in certain positions related to
combat settings, but the scope of their combat
participation does not approach the level
permitted for male military personnel.
Yes. Court held that this was a Bill of Attainder
b/c it was a punishment for a past act.
Note: If the statute had said “If you are…” then it
8
Dehainaut v. Pena
32 F.3rd 1066
Constitutional
Communist party.
ISSUE: Is a statute targeting previous
members of the Communist party and not
allowing them to be a Labor Union leader
a Bill of Attainder?
Federal air traffic controllers went on
strike. Prohibit federal employees from
going on strike against the U.S. & were
banned from being air traffic controllers
again.
ISSUE: is a ban on strikers from being air
traffic controllers a Bill of Attainder?
would not have been a Bill of Attainder b/c you
could stop being a member if you wanted to be a
Labor Union leader.
No. Non-punitive purpose is trying to protect the
air traffic. You can still work for federal
government; they just couldn’t be an air traffic
controller anymore.
The question is whether the challenged enactment
inflicts punishment is whether the legislative (or,
here, administrative) record as a whole evinces an
intent to punish.
CONSTITUTION IS A COMPACT B/T PEOPLE AND FEDERAL GOVERNMENT (Not State and Federal Government, or State and people)
McCulloch Holding: States cannot tax a federal bank.
Texas sold U.S. bonds from the
No. Court held that Texas (and hence the rest of
Confederate Gov’t. After Civil War was
the Confederacy) never left the Union during the
over and Confederate Gov’t was no
Civil War and that a state cannot secede from the
longer, people came to Texas wanting to
United States. There is no right to secede.
cash in their bonds. Texas claimed that it
74 U.S. 700
Unconstitutional
Texas v. White
wasn’t liable for the bonds b/c it had
No state is capable of succeeding; it was a
seceded from the Union.
rebellion, not a war, not a different government.
ISSUE: Is the federal government a
compact b/t the states?
Civil War an act or rebellion?
Necessary and Proper Clause – you can imply special powers that are connected to powers that are expressly given.
TEST:
1) End is legitimate;
9
2) Appropriate means which are plainly adapted to that end;
3) Not expressly prohibited;
4) Within the scope of the Constitution (not a pretext).
Article I, Section 8: Congress has power to tax, establish post offices…to make all laws which shall be necessary and proper for carrying into execution the
foregoing powers.
Veteran dies intestate in a veteran’s
Yes & No. Funds go to U.S., instead of Oregon.
hospital. If veteran dies in veteran
Not against the 10th Amendment.
hospital intestate, his funds go to the state
(Oregon Statute). A federal statute says
Congress undoubtedly has the power - under its
his funds would go to the U.S.
constitutional powers to raise armies and navies
and to conduct wars - to pay pensions, and to
ISSUE: Is the U.S. law a valid exercise of build hospitals and homes for veterans. The same
the Necessary and Proper Clause? Does
sources of power authorize Congress to require
the U.S. law violate the 10th Amendment, that the personal property left by its veterans
making the OR statute applicable?
when they die in government facilities shall be
U.S. v. Oregon
366 U.S. 643
Constitutional
devoted to other ex-service people who must
depend upon the Government for care.
Note: Rostker v.
Goldberg
Does Congress have this power to interpret delegated powers in constitution; to make
its own determination as to Constitutionality?
Although devolution of property was normally
left to the states, it was not immune under the 10th
Amendment from laws passed by Congress which
were necessary and proper to the exercise of a
delegated power.
A law otherwise within the power of Congress is
not rendered invalid by the fact that it pertains to
the devolution of property.
Yes. Give deference to Congress
PRETEXT: What’s the real motive?  Pretext – Something under the pretext of executing powers (bullshit/different reason), pass laws for the accomplishment of
objects not entrusted to the government (basically doing something that they don’t have the power to do (against constitution) – real motive – but say you are doing
something else – false pretext).
Is there a limit to Congressional power? Yes; they can’t interfere with other parts of the Constitution.
McCulloch Holding: Congress’ own judgment deserved deference so long as it was not adopted as a pretext.
Recent MD Statute: Private co.’s with more than 10,000 employees must set aside at least 8% of their payrolls for employee health benefit (affects
co.’s such as Wal-Mart);
Example Statutes:
TN Statute: Prohibiting optometrists from practicing in cooperation with any retail store. (anti-Lenscrafters, so they can’t check your eyes; pro
optometrists b/c they can sell frames)
Palmer v.
403 U.S. 217
MS Jackson city council, in 1960s, closed Yes. Court ruled that the closures were a valid exercise
Constitutional
Thompson
public pools. Blacks argued it was raceof city’s police power to maintain peace and order and
10
Memphis v.
Greene
Grosjean v.
American Press
Co.
451 U.S. 100
Constitutional
based (to prevent integration). City
argued it was economical.
ISSUE: May Jackson close public
swimming pools even though some
people think that it is racially motivated?
A shopping center was built, placing a
rich white neighborhood in between the
shopping center and a low income
housing area. The white neighborhood
had their road blocked off saying that
there was too much traffic coming
through and children might get hurt.
ISSUE: May Memphis close a street that
separates a white and black
neighborhood, even though some people
think that it is racially motivated?
LA statute imposing 2% gross receipts
tax on all newspapers of over a 20,000 a
week circulation. All newspapers are
controlled by Huey Long & designed to
punish. Anti-Huey Long.
297 U.S. 233
Unconstitutional
ISSUE: May LA impose a tax on
newspapers, when it was motivated to
curtail circulation of large newspapers?
did not violate 13th or 14th amendments. There was no
indication that the city was involved in maintaining
private, segregated pools.
Note: It’s not good law anymore; however, it was
constitutional at the time.
Yes. Stevens’ opinion held the effect was merely a
“slight inconvenience.” Court held that there was no way
to tell whether it was racially charged or not.
No. Against the 1st Amendment (Freedom of Speech).
Newspaper publishers are corporations and are “persons”
under the Equal Protection Clause (14th Amend.).
The Court noted that the tax was a deliberate and
calculated devise in the guise of a tax to limit the
circulation of information to which the public was
entitled under the constitutional guarantees. The Court
determined that the tax was unconstitutional because it
penalized the newspaper publishers and curtailed
newspaper circulation.
TAXING POWER AND MOTIVE
Graves v. New
York
McCray v. U.S.
306 U.S. 466
195 U.S. 27
Constitutional
Constitutional
States taxing federal employees. P
worked for US Gov’t and his federal
salary was subject to state tax. P wants it
returned b/c he was a part of the federal
gov’t and thought unconstitutional.
ISSUE: may a state tax a federal
employee?
Federal statute placing a tax on yellow
margarine. Dairy lobby got it through,
make margarine more expensive. Motive
to hurt the margarine industry.
Yes. As long as it is a uniform tax.
Survives McColloch b/c tax was not exclusive (specific)
tax on the banks, but taxes everyone.
Not a Bill of Attainder, for lack of specificity.
Yes. As long as revenue is going to be generated, then
you don’t have to look at the motive.
The non-punitive purpose was to raise revenue.
11
ISSUE: May Congress selectively tax an
industry with a destructive motive?
Federal tax on guns.
Sonzinsky v. U.S.
City of Pittsburgh
v. Alco Parking
300 U.S. 506
417 U.S. 369
Constitutional
Constitutional
ISSUE: May Congress tax guns?
Pitt (city) places a 20% gross receipt tax
on privately owned parking lots (not city
parking lots). Alco says b/c of tax they
are going to go out of business. Pitt is
using its taxing power to eliminate
competition.
ISSUE: May a city lay a tax that would
destroy a particular business?
Yes. Revenue generated, don’t look at motive.
The tax was productive of some revenue, that the Court
could not look into congressional motives for imposing
the tax, that the tax was not attended by an offensive
regulation, and that the tax was within the national taxing
power.
Yes. Commerce power can be used and abused
(Gibbons).
-If revenue is generated, don’t look at intent.
-Even if an unreasonably high tax could have inferred a
forbidden taking, the argument in this case that the
competition from lots owned by the city prevented
respondents from raising prices was not a convincing
basis for concluding that the parking tax effected an
unconstitutional taking of their property.
DETERMINING CONGRESS’ REACH UNDER THE CC (ARTICLE I; §8):
Art. I, § 8, “The Congress shall have power to regulate Commerce…among the several states.”
The Commerce Power has proved to be a central basis for the assertion of national regulatory authority.
THE COMMERCE POWER BEFORE THE NEW DEAL:
Court frequently will strike down national regulatory laws as exceeding the proper scope of the commerce power.
Three Tests for “Among the Several States”: (1) Going across states lines, (2) Affection Doctrine, (3) Stream of Commerce
NY law granted monopoly on
Yes. Court held that Congress has the power to
steamboats to X. Gibbons was later
regulate IC and can regulate intrastate
licensed under federal law to run
commerce when it affects other states.
steamboats on same waterway. State law -Marshall used Gibbons to establish a broad
prohibited Gibbons from using
view about Commerce Power of Federal Gov’t.
22 U.S. 1
Unconstitutional
waterway.
Commerce – congress has power to regulate;
Gibbons v. Ogden
article 1 section 8.
ISSUE: Is a state statute preserving a
1. Congress can regulate all commerce that
monopoly on navigable waters
affects more than one state, even if action is
unconstitutional?
completely intrastate. (Affection Doctrine)
2. Commerce power is delegated to Congress
and (if trample State’s rights) limited by the
12
Federal gov’t sought to bar a monopoly
on sugar manufacturing by claiming that
it was a violation of the Sherman Act.
(The Sherman Antitrust Act prohibited
any contract, combination or conspiracy
“in restraint of trade or commerce
among the several states.”)
U.C. v. E.C. Knight
156 U.S. 1
(Sugar Trust Case)
Houston RR v. U.S.
234 U.S. 342
(Shreveport Rate Case)
Swift v. U.S.
196 U.S. 375
Unconstitutional /
Overruled by
Shreveport Rate
Constitutional /
Overrules E.C.
Knight.
Constitutional
ISSUE: May the Sherman Act reach
four sugar refineries whose production
is wholly intrastate?
A Louisiana company is selling goods to
Dallas and shipping it via railroad
system. The IC Commission sets rates,
but the Texas Railroad Commission sets
their own lower rates for those within
the state (intrastate).
ISSUE: May the Sherman Act reach the
intrastate rates of trains in Texas if they
affect IC with Louisiana?
Dealt with Chicago stock yards / meat
packing industry. Cattle are sent for sale
in one state at a stockyard (get
slaughtered) and end up in another state.
political process (elected officials)
3. States can regulate, so long as it does not
conflict w/ an act of Congress.
-Also: Art. VI, § 2: Supremacy Clause federal law preempts state law.
No. Court affirmed the dismissal of action.
Sherman Act did not apply and the Court
refused to apply the Affection Test (direct
rejection of Gibbons). The Court used this test:
whether the regulated activity had “direct” or
“indirect” effect on IC.
Those that have a direct effect on IC, can
regulate; if indirect effect, cannot regulate.
Court held that Congress cannot, under the CC
regulate manufacturing. Manufacturing had
only an incidental and indirect effect on
commerce – need direct and logical
relationship. Court found no formal and logical
nexus b/t manufacturing and IC. Manufacturing
was left to states.
Yes. Congress has the power to control
intrastate railroad rates b/c it affects all states
(Affection Doctrine). Congress has power “to
foster and protect IC and to take all measures
necessary and appropriate to that end” although
that may mean controlling intrastate activities
that have a substantial affect on IC.
Substantial Affect Test: if intrastate commerce
has substantial economic effect of interstate
commerce (ex: out of state business trying to
compete); then can regulate intrastate.
Example of Congress’ power to regulate “the
use of channels of IC” from Lopez.
Yes. Court held that federal meat price fixing
regulations which affected meat bought and sold
in one state w/ the expectation that it would go
to another state are constitutional. The Court
13
Sherman Act injunction entered b/c of
price fixing by meatpackers.
ISSUE: May the Sherman Act reach
meat dealers who fix prices in a wholly
intrastate market?
said that the sale of cattle “is a current of
commerce,” establishing the “stream of
commerce” test.
Things in the Stream of Commerce can be
regulated.
COMMERCE POWER IS “PLENARY” WHEN REGULATING THE USE OF CHANNELS AND INSTRUMENTALITIES OF IC:
Cases below include  lottery tickets, people, goods, and interstate insurance transactions.
Federal Lottery Act prohibited
Yes. 5-4 decision upheld Lottery Act. Court
importing, mailing, or interstate
held that Congress can regulate morals when
transporting of lottery tickets.
excluding things that cross state lines.
Champion v. Ames
188 U.S. 321
Constitutional
(The Lottery Case)
U.S. v. Simpson
252 US 465
Constitutional
ISSUE: Can Congress exercise its
Commerce Power through policing
things that cross state lines even though
10th Amendment says that states retain
police power over health, safety, and
morals?
Federal crime to transport more than
five quarts of liquor across state lines
into a state that prohibits alcohol.
Simpson privately got liquor to take
home to get drunk.
ISSUE: Can Congress exercise it CC
Power to police liquor?
The Mann Act criminalizes the
transportation of women across state
lines for immoral purposes (commercial
prostitution).
Hoke v. U.S.
Caminetti v. U.S.
227 U.S. 308
242 U.S. 470
Constitutional
Constitutional
Channels of commerce - Congress can exclude
anything from channels.
Yes. Immaterial whether it was for personal use
or not, he was not granted an exception.
Yes. Court held that Congress’s commerce
power includes means that “have the quality of
police regulation.” Court upheld the act.
Congress has power over IC, and people are
commerce.
ISSUE: Is the Mann Act a constitutional
use of commerce power in covering
commercial prostitution?
Example of Congress’ power to regulate “the
use of channels of IC” from Lopez
Men from California travel to Nevada
with underage waitresses they had met
to have sex with them. Their wives
found out and reported them to the U.S.
Attorney General.
See also Caminetti
Yes. Court held that this behavior was covered
by the Mann Act even though the behavior of
parties was non-commercial. This case makes it
clear that a commercial element is not required
when legislation is enacted involving crossing
14
over state lines.
Hipolite Egg v. U.S.
U.S. v. Hawkins
U.S. v. Bredimus
220 U.S. 45
513 F.3d 59
352 F.3d 200
Constitutional
Constitutional
Constitutional
ISSUE: Does the Mann Act
constitutionally cover private
consensual sex when parties cross state
lines to do the act & no commerce is
involved?
Shipment of “adulterated” eggs
confiscated b/c improperly labeled.
Eggs were seized after they arrived at
destination and were technically no
longer in IC.
ISSUE: Is it “necessary and proper” to
extend the Commerce Power to a good
that has completed its interstate
journey?
A federal statute was passed that made it
a felony to cross state lines with
intent/purpose to have sex with someone
under 18.
Man emailing 13 year old and wants to
have sex with her. Man traveled in IC
with the intent to have sex with her
(really cop posed as girl). Police
apprehend him at the meeting place he
had directed.
ISSUE: Is traveling in IC with the intent
of violating a federal statute covered by
the CC? May federal authorities
prosecute a man who has intent to have
sex with a minor when he meets her on
the internet and crosses state lines to
reach her?
Federal statute prohibits travel to a
foreign country w/ intent to engage in
sexual acts w/ minors. D traveled abroad
for business, then later traveled to
Thailand and became involved with
child porn.
Says his purpose was to do business in
Tokyo & just thought about going after
little boys when he got there (difficult to
Commerce clause can be used to regulate the
use of channels of IC even though there is no
commercial element.
Yes. Court held that legitimate and appropriate
means were used, and that outlawed articles can
be seized wherever they are found.
Not immune when at point of destination.
Yes. Court held this statute was a proper
regulation of the channels of interstate under the
CC.
The statute does not criminalize mere thoughts
to have sex with minors. It criminalizes
intentions. Man had clear intention to have sex
with minor – he crossed state lines and left for
the purpose to engage in illicit sex (by emails).
Yes. Proper exercise of CC power to keep
channels of IC free from immoral and injurious
uses.
Congress changed statute to read: “and
engaged…” No intent is required now, just the
act.
15
prove intent).
ISSUE: Does the Commerce Power
reach an American citizen who did not
travel in IC for the sole purpose of
engaging in sexual acts with minors?
Felony to travel in foreign commerce
and engage in sex w/ minors. D goes to
Cambodia and engages in illicit sexual
conduct two months after being there.
U.S. v. Clark
U.S. v. Sullivan
435 F.3d 1100
332 U.S. 689
Constitutional
Constitutional
ISSUE: Does the Commerce Power only
apply while the defendant is literally
traveling in IC?
Federal FDA Act criminalized the sale
of mislabeled drugs. Pharmacist sold
mislabeled pills. Drugs were
manufactured in Chicago, sold to ATL
wholesaler, then distributed to pharmacy
in Columbus, GA. Gov’t charged
pharmacist.
ISSUE: Can you extend Congress’s
Commerce Power to reach an unlabeled
pillbox in Georgia whose contents have
completed their interstate journey?
U.S. v. S.E. Underwriters
Association
322 U.S. 533
Constitutional
No. Court held that it was proper exercise of CC
power. The government was not required to
prove that the illicit sexual conduct took place
while the defendant was still traveling. Dealing
w/ foreign countries does not interfere w/ states’
rights.
Under the new statute (and engaged in illicit
sex), don’t have to show intent… This case says
the new construction of the statute is
constitutional b/c involves foreign commerce
and doesn’t involve state at all & congress
power is broader when dealing with foreign
affairs.
Yes. Court cited Darby and found this to be a
proper exercise of commerce power. Court says
even though product has stopped, it “at one time
or another” passed through IC, and can be
regulated.
Items put in regulatory power of congress
(shipped across state lines) are still under
commerce power at its point of destination.
Insurance companies conspired to set
rates to halt efforts of out-of-state
companies
Yes. Court more broadly construed Commerce
Power to include interstate insurance
transactions regulated under Sherman Act.
ISSUE: May the Sherman Act reach
insurance transactions (can Congress
use CC power to regulate the insurance
companies)?
Sherman act can be held against insurance
companies. (Applied to conspiracies to restrain
trade by the insurance companies).
16
Note: McCarren Act – exempts insurance
industry from Sherman anti-trust act (now only
states regulate them).
U.S. v. RX Depot
290 F. Supp. 2d
1238
Constitutional
Federal statute that prohibits the
importation of foreign drugs into
America. Rx Depot helps consumers
obtain FDA-approved prescription drugs
from Canada @ reduced prices (imports
drugs from Canada from places that
already imported drugs from U.S. –
basically re-importing them).
Yes. Drugs entered IC.
Two reasons why federal gov’t prohibits: (1)
doesn’t want unsafe drugs in U.S. market and
(2) to protect U.S. pharmaceutical companies
ISSUE: May the federal government
enjoin a company from importing
prescription drugs from Canada?
FEDERAL GOVERNMENT CAN EXEMPT COMMERCE POWER:
Cases below seem to show that Congress can’t regulate wages, hours, or retirement/pension plans
Congressional act of 1916 excludes
products of child labor from IC.
ISSUE: May Congress prohibit the
transport of goods made by child labor?
Hammer v. Dagenhart
247 U.S. 251
(Child Labor case)
No. Interstate transportation cannot be used to
achieve harmful results. This was the
proposition pushed via Lottery Case, Egg Case,
and Hoke.
Majority: “There is no power vested in
Congress to require the states to exercise their
police power so as to prevent possible unfair
competition.” Would put states’ business at a
disadvantage b/c there was no federal law about
child labor.
Unconstitutional /
Overruled by Darby
Congress exceeds its power w/ commerce
clause b/c of state’s rights.
Railroad Retirement Board
v. Alton Railroad
295 U.S. 330
Unconstitutional
Congress attempts to establish
compulsory retirement and pension plan
The act does not regulate transportation among
the states; the act tries to standardize ages of
children employed in mining and
manufacturing.
No. The Court held in a 5-4 vote that Congress
lacked this power. Court said that the nexus to
17
Schechter Poultry v. United
States
295 U.S. 495
(Sick Chicken case)
Carter v. Carter Coal
298 U.S. 238
Unconstitutional /
Overruled by J&L
Steel
Unconstitutional /
Overruled by J&L
Steel
for all carriers subject to the IC Act.
IC was too remote.
ISSUE: May Congress do this?
This was outside the power of Congress b/c
pensions are not related to the efficiency of
transportation.
Convictions for violating wage, hour,
and trade practice provisions of the
“Code of Fair Competition for the Live
Poultry Industry of the Metropolitan
Area.”
No. 9-0 opinion. Wages and hours of a
slaughterhouse that only sold to local retailers
not subject to federal control b/c only have an
“indirect” effect on IC. The Act
unconstitutionally delegates legislative power
and application of the act to intrastate activities
exceeds the commerce power
ISSUE: May Congress regulate the
wages and hours of poultry plant
workers?
Coal Act regulated maximum hours and
minimum wages of coal miners.
ISSUE: May Congress regulate the
wages and hours of coal miners?
Rejection of “stream of commerce” and
“affection” doctrine.
Schechter was simply too small of an entity.
Both parts of act are unconstitutional. It’s
unconstitutional for the gov’t to delegate and
it’s unconstitutional to prohibit them from
selling chickens @ lesser prices than their
competitors.
No. The federal gov’t does not have the power
to regulate employee/employer relationships
whether the bargaining is before IC has begun
or to sale and distribution and after it has ended.
COMMERCE POWER AFTER THE NEW DEAL:
The Court showed a great deference to congressional action under the commerce power; no law was struck down as exceeding the reach of the commerce power for
nearly six decades.
J&L Steel is a very large & integrated
Yes. Big case: Overruled Hammer line of cases
steel company.
and started using Affection Doctrine. Court
Factory accused of violating National
upheld NLRB.
Labors Relation Act by discriminating
NLRB v. Jones & Laughlin
301 U.S. 1
Constitutional
against workers who were involved in
Test: Does it affect IC? Yes b/c a strike in one
Steel Corp.
union activity.
place affects goods going elsewhere.
NLRA: prevent unfair labor practices
“Intrastate activities that have such a close
affecting commerce.
and substantial relation to IC that their
control is essential to protect commerce are
18
ISSUE: May the National Labor
Relations Act reach labor disputes at a
single steel plant?
Darby, a lumber company, was indicted
for violation of federal labor standards
act, which said you can’t ship goods if
you are not paying workers minimum
wage. Darby challenged the statute as
being beyond Congress’ commerce
power.
w/in congress’ power to regulate.”
Indirect/Direct distinction is not used.
Overruled Dagenhart, Schecter, & Carter.
-Not affected by Lopez: is commercial in nature
Yes. 9-0 Opinion. Court upheld statute b/c
regulations of commerce which do not infringe
some Constitutional prohibition are w/in
plenary power conferred on Congress by CC.
Hours and wages of manufacturing employees
have substantial effect on IC.
Overrules Hammer.
U.S. v. Darby
ISSUE: May Congress prohibit the
transport of goods if not paying workers
minimum wage?
312 U.S. 100
Constitutional
Yes, b/c plenary right to regulate channels
(Lottery Case). Similar to lottery case &
Simpson (liquor).
The Power of Congress over interstate
commerce extends to activities intrastate which
have substantial effect on the commerce or the
exercise of the Congressional power over it
Jones dissent—“Almost anything…may in some
fashion “affect” [interstate] commerce [and
thereby be subject to CC regulation].”
Wickard v. Filburn
317 U.S. 111
Constitutional
Congress enacted the Agricultural
Adjustment Act, which covered all
wheat farmers, to stabilize wheat prices
by limiting production in the market (b/c
of overproduction). Wheat farmer farms
an extra 239 acres, claiming it is for his
personal consumption and use only.
ISSUE: May Congress regulate the
individual home production of wheat?
Not affected by Lopez: is commercial in nature
Yes. 9-0 unanimous opinion.
Aggregate Effects theory used: although
individual’s act may have been trivial, if
taken collectively (all farmers) there would be
a substantial effect on IC.
Enforces Affection Doctrine.
Thus, don’t look at it as an isolated event,
aggregate it together.
Requires a substantial economic effect on
interstate commerce.
19
Determinative Test: Whether the activity
sought to be regulated is commerce which
concerns more States than one and has a real
and substantial relation to the national interest.
Not affected by Lopez: is commercial in nature
ILLUSTRATING AGGREGATION TEST FROM WICKARD:
Mandeville Island Farms v.
American Crystal Sugar
Co.
Goldfarb v. Virginia State
Bar
McClain v. Real Estate
Board
Hammes v. AAMCO
Transmission
334 U.S. 219
Constitutional
In northern California, three sugar
manufacturers decided to fix the price
involved in buying beets from the
neighboring beet farmers.
ISSUE: May the Sherman Act reach
sugar companies who fixed prices with
intrastate sugar beet farmers?
421 U.S. 773
444 U.S. 232
33 F.3d 774
Constitutional
Constitutional
Constitutional
A local bar association fixed attorney
fee prices for searching titles (for
closing home). State bar argued lawyers
were a profession, not a business.
Yes. Although intrastate, price fixing did
restrain trade.
Price of sugar in other states affected (affection
doctrine) and sugar is in stream of commerce
(Stream of Commerce), so Congress can
regulate.
Yes. Court held that the blatant price fixing
restrained competition and harmed consumers.
Although intrastate, this affected other states
(interstate real estate transactions). Aggregation
Theory used.
ISSUE: May the Sherman Act reach a
state bar that fixes prices for attorney
services?
No profession exception.
Real estate firms in New Orleans were
fixing prices for selling homes (by
fixing commission prices).
Yes. Although intrastate, this practice had a
substantial effect on IC. Aggregation Theory
used.
ISSUE: May the Sherman Act reach
New Orleans real estate firms that fix
prices for their services?
AAMCO franchisees in Indianapolis
alleged that conduct of franchisor
restrained IC (conspiracy to keep
AAMCO out of yellow pages).
ISSUE: May Congress regulate an “all
local” Sherman Act violation?
Yes. The Sherman Act forbids conspiracies in
restraint of trade or commerce among the states.
Congress’ power over IC is understood not to be
limited to activities that substantially involve or
affect such commerce. The power of Commerce
is plenary and extends to all such commerce be
it great or small.
20
Congress can go as far as they want to with
coverage of Sherman Act (b/c it is plenary).
Judge Posner defined “close and substantial”:
Excludes coverage to 2 girls with competing
lemonade stands who fix prices.
COMMERCE POWER AND CIVIL RIGHTS:
U.S. v. Stanley
109 U.S. 3
Constitutional
(Civil Rights Cases)
Heart of Atlanta Motel v.
U.S.
Katzenbach v. McClung
379 U.S. 241
379 U.S. 294
Constitutional
Constitutional
Civil Rights Act of 1875 sought to
proscribe individual acts of
discrimination.
ISSUE: Can Congress prohibit private
discrimination through the CC?
A hotel in Atlanta refused to rent rooms
to African Americans.
ISSUE: Can Congress prohibit hotels
from racial discrimination?
Ollie’s BBQ in Birmingham, Alabama,
refused to serve African Americans
food. Restaurant was found in violation
of Civil Rights Act.
ISSUE: Can Congress prohibit
restaurants from racial discrimination?
Lake Nixon Club in Arkansas (some
little recreational facility on a dirt road)
said they could do what they wanted and
Daniel v. Paul
395 U.S. 298
Constitutional
denied entry to blacks.
ISSUE: Can Congress prohibit
recreational facilities from racial
discrimination?
COMMERCE CLAUSE COVERING ALL MEMBERS OF THE CLASS:
Federal statute prohibited all
extortionate transactions (loan
sharking), even though sometimes the
Perez v. U.S.
402 U.S. 146
Constitutional
transactions were entirely local. D, a
small time criminal w/ no mob ties, was
convicted under statute.
Yes. Court held that 14th amend. did not prohibit
individuals from discrimination, only prohibited
the state governments from doing so.
Because of this, Congress began to use the CC
power to prohibit private discrimination.
Yes. Court upheld the application of the Civil
Rights Act to public accommodations.
Concluded that discrimination by hotels
impeded interstate travel. Congress has the
power to regulate local activities which have a
substantial & harmful effect on commerce.
People are commerce.
Aggregate Effects Theory.
Yes. Court upheld act by applying Aggregate
Effects Theory.
You just have to show that restaurant purchased
a substantial amount of food from out-of-state.
Only a rational basis needed to be shown to
uphold the regulation.
Yes. Used the Aggregation theory.
The operations of the club affected IC.
Aggregated all the operations of the club.
Yes. Court appeared to reach outer limits of the
“affecting commerce” rationale for federal
criminal laws.
Applied Aggregate Effects Theory: collectively,
loan sharks pose threats to IC, thus substantially
21
ISSUE: Is an intrastate loan sharking
guy within the members of the class of
“extortionate credit transactions” that
statute is prohibiting?
Hodel v. Virginia Surface
Mining and Reclamation
Association
452 U.S. 264
Constitutional
Federal mining regulations regulated
private strip-mining businesses to set
requirements of restoring land, etc. b/c
strip-mining has adverse affects on IC.
VA Surface claimed that it was a state
right to regulate the land, not a federal
one.
ISSUE: Can Congress regulate stripmining even if it is on private land?
affecting IC. Court applied Darby. Regardless
of the motive or purpose behind the act, it is
w/in Congress’ plenary power to regulate
commerce.
Once congress makes the coverage, can’t say
you’re not part of group not covered.
Yes. Court found strip mining affects more than
one state, thus regulation falls into third
category: substantially affecting IC (strip
mining pollutes the streams and crosses state
lines). This case says that is a state’s right to
regulate land, not a federal one. However, the
statute didn’t regulate states, only mining
operators.
Note: Once court finds rational basis for what
congress is doing, can’t get out of it for
intrastate activity.
INTERNAL LIMITS ON COMMERCE POWER BY REHNQUIST COURT:
The Court’s 1995 decision in Lopez and 2000’s Morrison decision marked a partial return to judicial intervention to prevent the CC from becoming an unlimited
national police power.
D convicted for violating the Gun Free
No. Act was struck down b/c it exceeded the
School Zones Act (having gun w/in
authority of Congress under the commerce
1,000 ft of a school zone)
power. This was a non-economic activity. No
substantial relationship to IC (i.e., doesn’t
ISSUE: May Congress prohibit the
substantially affect IC). For Congress to
possession of a gun in a school zone?
regulate w/ commerce power, the activity must
Unconstitutional
be economic (mere possession isn’t economic).
U.S. v. Lopez
514 U.S. 549
Note: This was the
first time since J&L
Steele that the Court
found Congress
unconstitutionally
exercised commerce
power
New Test: Do not aggregate if it is noneconomic in nature.
Court identified 3 broad categories of activities
that Congress can regulate under the CC:
1. The use of channels of IC.*
2. The instrumentalities of IC; & persons or
things in IC.*
3. Activities that substantially affect IC (must
be economic).
*Plenary = unlimited (don’t worry about
economic/noneconomic distinctions).
Kennedy concurs: be careful to let Congress
22
2 Virginia Tech football players are
convicted of raping a young woman
under Violence Against Women Act,
which prohibited gender motivated
crimes (civil remedies for rape victims).
ISSUE: May Congress provide a federal
civil remedy for a violent crime against
women under the Violence Against
Women Act?
regulate a traditional state function (schools).
Thomas concurs: substantial effects test has
gone too far; CC interpretation should be
original intent of the drafters  (would be
overruling all cases up to E.C. Knight)
Dissent: education effects commerce, education
is the key to a strong economy (rational basis).
No. The Court held that under Lopez, Congress
may not regulate a crime simply because its
aggregated impact affects IC. Rehnquist
distinguished between national and local issues,
and held that the police power is one clearly left
to the states.
Non economic in nature. Therefore, under
Lopez, can’t aggregate, which makes this an
isolated incident
Congress did make findings about the adverse
economic impact, but they were not sufficient.
In Lopez, no findings were made.
U.S. v. Morrison
529 U.S. 598
Unconstitutional
Congress can properly regulate intrastate
activity that affects IC only where that
activity is economic in nature. If the activity
is not economic in nature, it must have a
“jurisdictional nexus” (Scarborough –
minimal jurisdictional nexus = reasonable
chance that the thing had at one time or
another been in IC).
Where the regulated activity is not commercial
in nature, Congress may regulate it only where
there are "substantial" and not "attenuated"
effects on other states, on the national economy,
or on the ability of Congress to regulate
interstate commerce.
Rehnquist: Court will uphold CC regulation of
intrastate activity only where that activity is
economic in nature. VAWA had little to do w/
commerce. Aggregation could not be used b/c
crime was non-economic. Not enough that
23
congress had a rational basis for act, they must
meet Court’s independent satisfaction.
Controlled Substances Act used to
prevent California citizens from
possessing, obtaining, manufacturing, or
providing marijuana for medical use.
California allows medicinal marijuana
though. Users and growers sued
Attorney General Ashcroft challenging
the constitutionality of the CSA
ISSUE: May Congress regulate the
individual home production of
medicinal marijuana where the state
allows it?
Gonzales v. Raich
545 U.S. 1
Constitutional
NOTE… Article:
LA approved an ordinance that would
close the majority of the nearly 1,000
medical marijuana dispensaries and
make the use of marijuana in the
remaining outlets illegal. The
community complained of the
proliferation of dispensaries & wanted
the dispensaries away from schools and
parks.
The measure imposes strict rules on the
location of the dispensaries —
essentially moving them to more
densely industrial zones — and restricts
their hours. It will limit the number of
dispensaries to 70, but its language
suggests that even fewer will be
permitted if there is not ample space
under the new parameters to
accommodate them.
It limits hours of operation to 10 a.m. to
8 p.m., imposes several regulatory
Yes. Same as Wickard but with marijuana
instead of wheat – its commercial in nature so
you can aggregate.
This case extends the economic-non-economic
distinction. Interstate marijuana is economic but
home grown is non-economic. However, statute
was drafted so broadly as to encompass both
types.
Class of activities, not just the use of marijuana
(not just one specific act). The activities are
determined to be economic in nature (drug
market), therefore Congress can regulate.
Thus, when regulating something noneconomic
& intrastate, but part of class that is economic in
nature, you can aggregate.
Test:
1) Does the federal statute regulate a class or
isolated incident?
*Isolated Incident – noneconomic?
Unconstitutional (Morrison)
2) Is the class economic in nature?
Wickard – can regulate noneconomic intrastate
activity (not produced for sale) if failure to
regulate that class of activity would undercut
the regulation of the interstate market in that
commodity.
Scalia concurring: necessary and proper
analysis b/c problem with distinguishing b/w
home grown and interstate marijuana, so federal
gov’t needs to regulate both.
Possession of a good is related to the market for
that good, and Congress may regulate
24
requirements and limits each patient to
one dispensary.
Health Care  individual
mandates to purchase
insurance.
possession as a necessary and proper means of
controlling its supply or demand.
O’Conner dissenting: claims that California can
adequately regulate marijuana; don’t need the
federal gov’t to do it. (But that’s not correct!)
New State Ice Co. v. Liebmann – states should
be laboratories to experiment.
Lopez  The Supreme Court has stated Congress’s power to regulate commerce, granted to it by the Commerce Clause, is plenary when
it comes to those activities that substantially affect interstate commerce. Thirty million persons lacking health insurance surely has a
substantial effect on interstate commerce.
COMMERCE CLAUSE AND THE SPENDING & TAXING POWER:
Congress has broad power to spend funds to advance the “general welfare” (so long as does not violate another constitutional provision).
Taxing (Art.I, § 8) – Congress shall have the power to lay and collect taxes… [and] to pay the debts and provide for the… general welfare of the U.S.
Spending Power: Conditions on Grants to State & Local Governments so long as the condition relates to purpose of spending & are clearly stated.
Federal Interest to Stop Bribes: To have honest councilman.
Federal regulation saying that any state
that receives federal highway funds
must have a legal drinking age of 21.
Penalty of 5% reduction in funds for
non-compliance.
ISSUE: May Congress provide
incentives for states to adopt federal
standards?
South Dakota v. Dole
Sabri v. U.S.
483 U.S. 203
541 U.S. 600
Constitutional
Constitutional
Federal statute prohibiting bribing a
State official or local gov’t that receives
money from the federal gov’t.
Yes. 8-1 opinion upholds incentives. Congress
may impose conditions on the receipt of federal
funds.
Four-part test for Spending Power exercise
(grant) constitutionality:
(1) It is to be used for the General Welfare
(national public purpose).
(2) Condition/Restriction has Unambiguous
Purpose.
(3) Grant’s Conditions/Restrictions must be
reasonably related to the purpose (of the
Fed Act / to the federal interest)
(plausible reason).
(4) Condition cannot be coercive (cannot
coerce the states).
This is the only big case by the Court regarding
the spending power.
Yes. Congress has authority under the Spending
Clause to appropriate federal monies for the
general welfare and it has corresponding
25
Contractor takes bribes to build a
subdivision. He says money went to
parks, not housing construction.
School districts and education
associations receiving federal funding
under the No Child Left Behind Act
(NCLB) in exchange for complying
with the NCLB's various educational
requirements and accountability
measures. School district challenged
NCLB under the spending clause.
School says federal funding wasn’t
enough to cover costs.
authority under the Necessary and Proper
Clause to make sure monies are spent for the
general welfare. (Art II).
-Purpose: don’t want corrupt officials.
-Although the statute does not contain an
explicit jurisdiction hook, the statute is not
unconstitutional as it relates to federal funds in
commerce.
Yes (& No).
Unambiguous requirement not met:
It does not provide clear notice to states that
they must incur the costs of compliance when
Congress could not cover them. Thus, this is
ambiguous and doesn’t provide clear notice to
states accepting NCLB.
But, this only deals with ongoing spending
duties, not the conditions of NCLB (conditions
are not ambiguous).
ISSUE: May Congress provide
incentives in order to have educational
requirements on public schools
(NCLB)?
NCLB is constitutional b/c states accepted it
under other clear conditions spelled out in it.
Thus, if state accepted funds, must comply to
the extent states are given funds.
ISSUE: May Congress prohibit bribery
of local officials of entities that receive
federal funds?
School District of the City
of Pontiac v. Department of
Education
Note: Article
584 F.3d 253
Constitutional
A Rhode Island school board’s decision to fire the entire faculty of a poorly performing school, and President Obama’s endorsement of
the action, has stirred a storm of reaction nationwide, with teachers condemning it as an insult and conservatives hailing it as a watershed
moment of school accountability.
To get a share of the $3.5 billion in what are known as School Improvement Grants, school officials can choose to transform the learning
environments in failing schools by extending instructional hours and making other changes, converting them to charter schools, closing
them entirely or replacing the principal and at least half the staff.
The Central Falls superintendent, Frances Gallo, initially chose the first option this year, but after a dispute arose with the union over
extra pay for adding 25 minutes to the school day, she broke off negotiations. Backed by the local school board, she announced the firings
DRAFTING FEDERAL REGULATORY STATUTE BROADLY TO COVER LOCAL / INTRASTATE: Is it a large regulatory scheme?
Endangered Species Act—gives dept.
Yes. Protection of AL sturgeon did not violate
power to determine the endangered
CC. USFWS could list purely intrastate species
Alabama-Tombigbee
species. Suit against U.S. Fish &
of fish with little commercial value as
477 F.3d 1250
Rivers Coalition v.
Constitutional
Wildlife Service arguing that AL
endangered species; comprehensive scheme of
Kempthorne
sturgeon was unlawfully listed as
Endangered Species Act had substantial effect
endangered species.
on IC, and Congress had rational basis for
including intrastate species within scope of that
26
U.S. v. McCalla
U.S. v. Malloy
U.S. v. Comstock
545 F.3d 750
568 F.3d 166
2009 WL 42476
Constitutional
Constitutional
Unconstitutional
ISSUE: May the federal act cover an
intrastate species that does not have a
large commercial impact?
larger regulatory scheme.
Federal statute that prohibits possession
of child pornography. Ds charged under
act for producing and possessing child
pornography used for their personal
interest (homegrown child porn).
Yes. Court held that applying statute
criminalizing the production and possession of
child pornography to noncommercial intrastate
production did not exceed Congress’s power
under the CC. Statute sought to prohibit the
entire child pornography market; Congress had
broad interest in preventing sexual exploitation
of children, and it was rational that Congress
would seek to regulate intrastate production.
ISSUE: May Congress regulate
intrastate child pornography that was
not created for a commercial purpose?
Felony to engage in sexual exploitation
of minor under 18 for purposes for
producing a video of conduct. JV
football coach brings 14 year old girl to
Malloy’s & both have sex with the
young girl & taped it.
ISSUE: Is the law prohibiting a class
activity or a isolated activity?
Federal Child Safety Act (Adam Walsh
Child Protection Act): Congress
authorized the federal gov’t to civilly
commit any sexually dangerous person
in prison, even after that person has
completed his prison sentence. To
initiate commitment, Attn. Gen. need
only certify that a person within federal
custody is “sexually dangerous,” which
will prolong that person’s release from
prison well past the end of any prison
Act covered all species, so even though it is
intrastate & noneconomic, it is still part of a
class that is economic in nature (Aggregate Raich).
Prohibition of child pornography is a class of
activities & economic in nature. Federal statute
applies (Aggregate – Raich).
Class activity under Raich and is Constitutional.
15 year sentence cruel and unusual (8th
Amendment)? No.
No. Court held that Congress could not use its
Commerce Power to give federal gov’t broad
civil commitment authority. States have
normally held this power to civil commit the
mentally ill. To give this power to federal gov’t
would encroach upon state’s police power.
CC:
Economic? NO, not a close nexus in committing
sex crimes and committing sex crimes in
interstate commerce.
27
term. It empowers the Attn. Gen. to
prolong federal detention without
presenting evidence or making any
preliminary showing.
P brings case trying to get out of prison
after serving time.
ISSUE: Does Congress have the power
to grant to the federal gov’t a broad civil
commitment authority?
Omnibus Crime Control and Safe
Streets Act sought to prohibit felons
from receiving, possessing, or
transporting a gun in commerce or
affecting commerce (has a jurisdictional
element – must have passed state lines).
D was found in possession of gun.
U.S. v. Bass
404 U.S. 336
Unconstitutional
ISSUE: May Congress prohibit a felon
from possessing a gun in IC?
Members of a whole class? NO
Not a proper exercise of CC.
Necessary and Proper? NO
Not a proper exercise of Necessary and Proper
clause.
No. The Gov’t failed to prove the requisite
nexus w/ IC. There was NO evidence of a
substantial effect on IC. D was only in
possession. The conviction would stand only if
the gov’t could prove the gun crossed state
lines.
The Court refused to adopt a broad reading of
the statute absent a clear statement of
Congressional intent. Moreover, crime is “a
domain traditionally left to the states.”
Did not pass jurisdictional nexus test.
See Scarborough
Scarborough v. U.S.
431 U.S. 563
Constitutional
Convicted felon caught owning guns in
violation of statute that prohibited felons
from owning guns that have traveled in
IC. Ex-felon had a gun that was made in
Massachusetts but was found in TN.
However, guns traveled in IC before he
was a convicted felon.
Yes. The Supreme Court held that under the
statute making it a crime for a convicted felon
to possess “in commerce or affecting
commerce” any firearm, proof that the
possessed firearm previously traveled at some
time in IC was sufficient to satisfy the required
nexus between possession and commerce.
ISSUE: May Congress prohibit the
possession of a gun by a felon who
crosses state lines?
Proof that a firearm traveled in interstate
commerce satisfied the required nexus between
possession of the firearm and commerce.
Jurisdiction Nexus Test: Where a prohibited
item has passed state lines at some point
(traveled in IC), may regulate it under the
Commerce Clause.
28
DC v. Heller
128 S. Ct. 2783
Unconstitutional
Man denied application to purchase a
firearm. Man challenged DC’s ban on
handguns in the home.
No. Against the 2nd Amendment. Not allowing a
gun at home makes the core purpose of selfdefense impossible.
ISSUE: Is the DC ban on handguns in
the home constitutional?
Is there a right to possess a firearm? Yes. Under
the second Amendment, there is a right to
possess a firearm.
Absolute ban in the city violates the 2nd Amend.
Note: McDonald v. City of
Chicago (gun case)
When 14th Am. was passed,
owning a gun was a
fundamental right. Arguing
under substantive due
process; not privileges and
immunities.
Whether the Second Amendment applies to cities and states as it does to the federal government. The Bill of Rights applies only against
actions of the federal government. Most of the Bill of Rights has since been applied to the states (or "incorporated," to use the legal term)
by the Fourteenth Amendment. The question in McDonald is whether the right to keep and bear arms is incorporated against the states.
However, the team representing McDonald is pushing the court to consider a new route and incorporate the right through another
provision, called the Privileges or Immunities Clause.
The Privileges or Immunities Clause says states cannot enforce any law that abridges the rights of U.S. citizenship. In 1873, just five
years after the Fourteenth Amendment was adopted, the Supreme Court held in a landmark case called the Slaughterhouse Cases that
this clause only extends to the states the rights of federal citizenship and strongly suggested that such rights must be found in the
Constitution's text. The high court thus rejected a claim brought by some Louisiana butchers asking it to strike down a state law regulating
the slaughtering of animals around New Orleans.
What's so important about that ruling is that there's nothing in the Constitution about such an economic right. Had the court accepted the
butchers' argument and struck down the Louisiana law, federal courts would have the power to declare anything they want to be a right of
U.S. citizenship and strike down any state or local law they don't like.
McDonald acknowledges that their goal is to persuade the court to overrule the Slaughterhouse Cases. Then federal judges could use the
Privileges or Immunities Clause to challenge state and local labor laws, commercial laws, employment laws and business regulations
across the country.
That would destroy federalism as we know it in this country; life-appointed federal judges could override the decisions made by elected
leaders that we, the voters, choose. The people ultimately making those decisions would no longer answer to us.
If the court overrules the Slaughterhouse Cases, the Privileges or Immunities Clause can mean anything courts say it means. The Supreme
Court could declare a constitutional right to government-provided health care or "decent" housing, a free college education, a "living
wage" or a clean environment, resulting in a court-ordered cap-and-trade system.
It also could completely change American culture, with the court having a new basis upon which to declare constitutional rights to
abortion, same-sex marriage, obscene material or a child's "right" to a public-school education over his parents' objections.
Although it should be about the Second Amendment, this gun rights case is, instead, a Trojan horse for everything except guns. It could
remake America's economy and culture. That's why several conservative groups have weighed in with a brief asking the court to
incorporate the Second Amendment through the Privileges or Immunities Clause but to do so w/o overruling the Slaughterhouse Cases.
Q&A:
Q: Am I right in thinking that to keep and bear arms would be included even if we had no Second Amendment, as you envision
privileges and immunities? What unenumerated rights would we be declaring privileges and immunities under your conception of it?
Your definition is limited to rights not basic to any free society.
A: Yes. The framers clearly used language that to them meant rights beyond those guaranteed in the first eight amendments.
If a right is, for example, the sort of right that was mentioned in the Civil Rights Act of 1866, where the Congress said, here are the rights
29
of American citizenship, and they are -- they listed: the right to contract, the right to sue and be sued, the right to hold property. This
Court in Benton v. Maryland decided that henceforth American history and tradition are important to consider what rights are protected in
this country. It's not a free-flowing license, necessarily, for judges to announce unenumerated rights.
Q: (Scalia) Your argument is contrary to 140 years of our jurisprudence (Slaughterhouse Cases). Why do you want to undertake that
burden instead of just arguing substantive due process, which as much as I think it's wrong, I have -- even I have acquiesced in it? what
about rights rooted in the traditions and conscience of our people? Would that do the job? B/c that happens to be the test under SDP!
A: We would like it either way.
U.S. v. Patton
451 F.3d 615
Constitutional
Federal statute that makes it a felony to
sell body armor to ex-felons in interstate
commerce. Ex-felon bought body armor
b/c his ex-gang wanted to kill him.
Indicted under federal statute.
ISSUE: May Congress prohibit the sale
of body armor that was sold prior to
possession in IC?
U.S. v. Alderman
565 F.3d 641
583 F.3d 8
Is body armor economic in nature? Enacted b/c
of LA bank robbery… however…
Body armor vests (as a class) are not economic
in nature, & don’t substantially affect IC (fails
Lopez).
Same statute and issue as above (Patton)
However, used Scarborough to uphold law.
Same holding as above (Patton)
Crime for a juvenile to possess a
handgun.
The congressional findings, the nature of the
body armor statute, and the express requirement
of a sale in interstate commerce, considered in
combination, provided a sufficient nexus to and
effect on interstate commerce to uphold the law.
Yes, b/c commit crimes that wreak havoc on
economic.
Constitutional
ISSUE: May Congress prohibit
juveniles from possessing a handgun.
U.S. v. Rene
Yes. Passes the jurisdictional nexus test b/c it
was sold before his possession across state lines.
Constitutional
Ok under the CC b/c the prohibition statute
suppressed demand and was an essential part of
regulating the national market in firearms
(Raich).
Different from Lopez b/c didn’t say not in a
school zone.
Monson v. DEA
589 F.3d 952
Guy is growing industrial hemp (made
of marijuana); legal in North Dakota.
So, DEA close down b/c violates CSA
(same law as in Raich).
Yes. Economic in nature and ration basis for
regulating all product of Cannibus (Raich).
Note: Obama says they won’t enfore the CSA
in cali and other states – fed’l gov’t has backed
30
Marshall v. Rose
Jones v. U.S.
616 F.2d 102
529 U.S. 848
Constitutional
Unconstitutional
ISSUE: May Congress prohibit hemp
making, when its intended use is not to
consume or sell as drugs?
off
Employer held in violation of Fair Labor
Standards Act for not paying domestic
(household) workers minimum wage.
Yes. Constitutional under CC through 3rd
category, affecting IC. This is economic in
nature, so you can aggregate. Looking at all
domestic workers, there is an effect on IC.
**If the intrastate activity is economic, it can
be aggregated.
No. The Court refused to interpret the statute as
intending to reach private residences – statutory
language didn’t make clear Congress wanted to
use the full commerce power.
Arson of a home does not “affect” IC.
Private home is different from commercial
building; so not covered.
Judge says if it did cover private homes, then
every building in the nation would be covered.
ISSUE: May Congress regulate
household employees?
Federal arson statute makes it a felony
to destroy by fire a building used in IC
or that houses an activity affecting IC.
In this case, D firebombs his cousin’s
home.
ISSUE: May Congress prohibit the
destruction of any structure used in IC?
Owner of a diner is doing renovations
and his competitor burns the diner
down.
U.S. v. Iodice
U.S. v. Giordano
U.S. v. Whaley
525 F.3d 179
442 F.3d 30
577 F.3d 254
Constitutional
Constitutional
Constitutional
ISSUE: May Congress prohibit the
destruction of a temporarily vacant diner
that is going to be re-opened
Former city mayor in Connecticut was
hooking up with a prostitute and tried to
get her to bring along her underage
daughter and niece for sex. It is a felony
to entice an underage person for sex by
using a facility or means of IC.
ISSUE: Can Congress prohibit the use
of facilities of IC even though it is an
intrastate activity?
If you sex offender & move to another
state and fail to register as a sex
offender, federal crime.
ISSUE: Can Congress control sex
See Iodice.
Yes. Federal Arson Act applies to temporarily
vacant buildings so long as the owner is
definitely planning to place the diner back in the
stream of commerce.
Empty building different from private home.
Yes. The mayor’s mere use of a telephone
satisfied statute prohibiting the knowing
transmission of minors’ names by use of
facilities and means of IC with intent to entice,
encourage, and solicit them to engage in sexual
activity.
Even though it was only an intrastate
transmission, the national telephone network
was a “facility of IC.”
Yes.
Under Lopez: person going across State lines,
and are plenary (doesn’t matter if economic) so
it is covered
31
offenders moving though IC?
Law was “reasonably adapted” (for the purposes
of the CC) to the goal of ensuring that sex
offenders registered and updated previous
registrations when moving among jurisdictions
COMMERCE POWER FOR TAXATION:
To what extent may the congressional taxing power be used as a means of national regulation of arguably local affairs? Congress has sometimes invoked the taxing
power where the commerce power seemed unusable.
Federal Tax that taxed businesses with
No. Congress’s power to tax is plenary;
Bailey v. Drexel Furniture
child labor.
however, it cannot be used for a prohibitory or
Co.
259 U.S. 20
Unconstitutional
regulatory effect or purpose.
ISSUE: Can Congress use its Tax Power - If a statute on its face clearly not a tax law (to
(Child Labor Tax Case)
for a punitive purpose?
generate revenue), but is merely a penalty – U
Tax on oleo margarine, a substitute for
Yes. Congress, in selecting its subjects for
butter.
taxation, might impose the burden where and as
it would and that a motive disclosed in its
ISSUE: May Congress prohibit the sale
selection to discourage sale or manufacture of
McCray v. U.S.
195 U.S. 27
Constitutional
of margarine with artificial coloring by
an article by a higher tax than on some other did
taxing it?
not invalidate the tax.
As long as revenue is being generated, don’t
look at motive.
COMMERCE POWER & PROPERTY CLAUSE: Art. 4, § 3, cl. 2 –property clause, federal gov’t can do anything with respect to regulations of property
LIMITING THE COMMERCE POWER: STATE AUTONOMY AND THE 10 th AMENDMENT
10th Amendment  Powers not delegated to the United States by the Constitution, nor prohibited to the States, are reserved for the States, or to the people.
Oklahoma was admitted into the Union, No. Court held that this was a state power
but the federal gov’t tried to tell the state beyond the control of Congress.
where to put its capital.
Coyle v. Oklahoma
221 U.S. 559
Unconstitutional
Violates 10th Amendment.
ISSUE: May Congress tell a new state
-Congress can’t tell state where state gov’t
where to locate its state capital?
should be.
CA has railroad that doesn’t use the
Yes. Sovereign power of states is necessarily
right couplings (violates safety statute).
diminished to the extent of the grants of power
Penalty imposed on state-owned railroad to the federal gov’t in the Constitution.
for violation of Federal Safety
States can’t claim immunity from federal
U.S. v. California
297 U.S. 175
Constitutional
Appliance Act.
regulation for activities that they have
traditionally engaged b/c there is no limitation
ISSUE: May Congress penalize a stateon the plenary power to regulate commerce.
owned railroad for violations of a
-Constitutional b/c it’s through interstate
32
Constitutional
New York v. U.S.
Slingluff v. OSHA
326 U.S. 572
425 F.3d 861
Constitutional
federal safety act?
N.Y. claims immunity from federal tax
on sale of bottled mineral water from
state-owned springs (federal tax on
mineral water).
ISSUE: May Congress tax the sale of
mineral water from a state-owned
spring?
Guy owns a stuccoing business
(stucco’s homes) & has one employee.
OSHA inspector comes by and says that
they are in violation (platform they
stucco from is unsafe).
ISSUE: May the Federal Government
regulate a small, intrastate business?
Amendments to Fair Labor Standards
Act (FLSA) extends minimum wage and
maximum hour provision to employees
of state & local gov’t. California says
with its budget can’t not employ the
FLSA rule for highway police (can’t
adequately perform police functions).
National League of Cities
v. Usery
426 U.S. 833
Unconstitutional /
Overruled by Garcia
ISSUE: Can Congress set a minimum
wage and maximum hour provision for
state gov’t employees?
FLSA extended wages and hours
regulations to city transit workers.
Garcia v. San Antonio
469 U.S. 528
Constitutional
ISSUE: May the Fair Labor Standards
Act reach employees of a local transit
authority?
channels.
Yes. 6-2 opinion. The tax is constitutional so
long as Congress taps a source of revenue by
whomsoever earns it & not uniquely capable of
being earned only by a state, even if it falls on
the state.
CC: Part of class. Regulate a commercial
activity & can aggregate. Constitutional.
Yes. Under Lopez, stucco is part of class of
construction (economic in nature), so can
aggregate it, and construction has a substantial
affect on IC.
Note: Go to Lopez and three things when
talking about regulating a business.
No. 5-4. First time the State autonomy defense
invalidated a federal regulation. The Court held
the amendments within Congress’s commerce
authority, but nonetheless unconstitutional.
10th amend. bars an “exercise of congressional
authority directed…to the States as States. We
have repeatedly recognized that there are
attributes of sovereignty attaching to every state
government which may not be impaired by
Congress.”
Police function are activities that engage in a
traditional & integral state function
State not covered under 10th amendment (can’t
impair a traditional & integral state function).
-Will be overruled by Garcia.
Yes. 5-4. Blackmun, who voted with Rehnquist
in National League of Cities, changes his mind:
The Hodel test is unworkable. There is no
“sacred province of state autonomy.”
If regulation is valid against a private party, it is
valid against a State. BUT the make-up and
structure of the Federal gov’t in the political
33
process ensures that laws that unduly burden
the States will not be promulgated, so it’s up
to the political process (Gibbons) to limit
Federal power that interferes w/ state functions.
South Carolina v. Baker
485 U.S. 505
Constitutional
Congress passed a law that forced states
to switch to issuing tax-exempt
registered bonds in order to raise debt
capital. South Carolina argues that the
political process failed here b/c the law
was imposed by a vote of an uninformed
Congress relying upon incomplete
information.
ISSUE: May an “uninformed” Congress
tax state bearer bonds?
Federal Nuclear Disposal Act of 2009:
regulation on state disposal of
radioactive waste provided 3 incentives
to states to comply w/ the obligation.
The 3rd incentive required states to “take
title” and be responsible (liable) for
related disposal damages.
New York v. U.S.
505 U.S. 144
Unconstitutional
ISSUE: May Congress compel states to
enact a federal regulatory program by
forcing them to comply or else “take
title” of radioactive waste?
What is a traditional state function in a state is
not a traditional state function in another cause
states are labs of experiments. This sort of thing
is a political process, not a judicial process.
*Overrules National League of Cities
Yes. It is not a constitutional issue to say
Congress was uninformed. Where the national
political process did not overstep its
constitutional bounds, the Tenth Amendment is
not implicated.
Political process not defective. Uninformed
Congress is constitutional.
Doesn’t affect the relationship b/w the State’s
and the people.
No. Congress had available alternatives for
states to comply.
Unfunded Mandate
Violates 10th amendment when Congress passes
a law that commanders the state legislature.
O’Connor: The federal gov’t cannot
commandeer the state legislature by directly
compelling them to enact and enforce federal
legislature. Congress cannot assume the role of
the state legislature. However, Congress can
encourage states w/ incentives, but cannot
compel or coerce.
Stevens dissent: if Fed. Gov’t can’t use State
employees to carry out their laws, a bigger
federal bureaucracy is created and States’
Rights will suffer (Catch 22)
Breyer dissent: “other countries allow the Fed.
34
gov’t to use local gov’ts.”
Thomas dissent: Congress has no power to
regulate any of this stuff under the CC b/c the
real meaning of “commerce” is the old original
meaning .
Brady act requires state & local law
enforcement to do background checks
on prospective handgun purchasers.
Printz v. U.S.
521 U.S. 898
Unconstitutional
ISSUE: May the Brady Act require local
law enforcement officers to conduct
background checks on handgun
purchasers?
No. This provision violated the 10th
Amendment.
Cannot conscript state officials to perform or
carry out federal laws. Only federal employees
can carry out federal laws.
Scalia: Congress cannot “conscript” State
officials to carry out Fed laws.
Stevens dissent: If you can’t get state officials to
do it, then you will need more federal
employees; would empower the federal gov’t.
Reno v. Condon
528 U.S. 141
Constitutional
Drivers Privacy Protection Act: limits
commercial vending of personal data by
states. DMV’s can’t disclose
information without consent.
Breyer dissent: used foreign law
Yes. 9-0 opinion. Applies South Carolina v.
Baker, the 4th Circuit found the act did not
implicate the 10th amend. b/c it does not affect
the relationship b/t state and its citizens.
ISSUE: May Congress regulate the
disclosure of personal information
collected by state motor vehicle
agencies?
This is a proper CC regulation: regulating a
“thing” in channels of IC. Marketing
information is an article in IC (Lopez). Also,
economic in nature.
Doesn’t violate 10th amendment because doesn’t
deal with the relationship with its own citizens
but deals with independent databases (states) –
not a “conscript.”
It doesn’t violate 10th amendment when the
35
New York City v. U.S.
179 F.3d 29
Constitutional
NYC has ordinance that city employees
can’t voluntarily cooperate with
immigration service (INS) b/c of the
terrible economy. Two federal statutes
that says that employees can offer this
information.
ISSUE: Can Congress pass a statute that
encourages employees to give them
info?
fed’l gov’t regulates the state as to how certain
entities will operate
Yes. The statute was not compelling or
commandeering gov’t employees (different
from Printz). State official is not required to
carry out the federal law.
Different from Printz b/c it is not mandatory; it
is discretionary; so constitutional.
DORMANT COMMERCE CLAUSE: LIMITS ON STATE REGULATIONS OF INTERSTATE COMMERCE
State laws operating that interferes with interstate commerce; NO federal law on matter.
When the commerce power is unexercised by Congress, it is considered dormant.
Under the Dormant Commerce Clause, the Court invalidates some “protectionist” state legislation, even in the absence of a federal law / congressional preemption.
State gov’t have a power of taxation b/c it is indispensable to their existence. Inspection laws, quarantine laws, health
Gibbons v. Ogden
22 U.S. 1
laws of every description, as well as laws for regulating the internal commerce of a state are not directly given to
Congress, therefore, remain subject to state legislation (as long as it doesn’t offend an act of Congress).
Delaware law authorizing the
Yes. Marshall relied on the distinction b/t police
construction of a dam on the Delaware
and commerce regulations to reject a Dormant
river. Federally-licensed ship broke
CC challenge.
through, destroying the dam. Black-Bird
sued ship owners for damages and were
“States can stop IC in its tracks if it is done for
successful.
a valid police power” (health, safety, welfare)
reason, UNLESS they come into collision with
ISSUE: May a state authorize the
another Constitutional provision.
Wilson v. Black-Bird
27 U.S. 245
Constitutional
construction
of
a
dam
across
navigable
Reaffirms holding in Gibbons; limited holding.
Creek Marsh Co.
waters, interfering with IC?
Regulation of police power (health; safety; &
welfare) / valid health reason is ok for states to
stop interstate commerce.
The dam made the health of the people improve.
Police power - laws enacted for health / safety /
welfare of citizens.
NYC ordinance required vessels entering Yes. Court held that people are commerce, but
port of NY to report names of passengers. this was not a regulation of commerce. This was a
Mayor of New York v.
valid exercise of police power. If Congress is
36 U.S. 102
Constitutional
Miln
ISSUE: May New York require vessels
silent, state can regulate. If a valid health reason,
arriving in state ports to report the names
state can exercise police power, even if regulating
of passengers?
commerce. The purpose of the statute was to keep
36
If giving out leaflets, have to put your
name on it to indicate who is involved
with the leaflet.
Talley v. California
362 U.S. 60
Unconstitutional
ISSUE: May California ban anonymous
leaflets?
During the Depression, California passed
a law preventing travelers from bringing
indigents into the state.
Edwards v. California
314 U.S. 160
Unconstitutional
out undesirables.
-No impact on IC.
No. Not a valid exercise of police power.
“Reason” was to prevent fraud… however…
Anonymous pamphlets will give more freedom of
speech & expression. An identification
requirement for leaflets tends to restrict freedom
to distribute information and thereby freedom of
expression.
Furthermore, against the 14th Amendment
Freedom of speech and press is secured against
state invasion)
No. No majority opinion. Some justices mention
a “right to travel.” However, there is NO
constitutional provision securing this right.
ISSUE: May California prohibit persons
from bringing indigents into the state?
Unconstitutional barrier to IC b/c the CC has
been interpreted to include the transportation of
persons. (Mann Act – Hoke; Caminetti)
Discriminatory on its face (prohibiting persons in
IC), per se invalid (Brown-Forman).
STATES IMPLEMENTING USER FEE TAX ON INTERSTATE COMMERCE: Does it violate the Dormant Commerce Clause?
The “User Fee” Tax money goes to that specific account, not the general revenue fund.
New York & Massachusetts statutes
No. Court held the tax to be an unconstitutional
imposing a tax for each passenger on
regulation of commerce, but this would likely be
masters of ships coming from other ports. sustained today under Evansville Airport.
Tax was to defray costs of examining
Unconstitutional /
passengers for contagious diseases and to User fees.
Passenger Cases
48 U.S. 283
Overruled by
maintain a hospital for the treatment of
Evansville
those found to be diseased.
ISSUE: May New York fine masters of
ships who do not report names of
passengers?
City Airport charges a dollar before deYes. The Supreme Court upheld User Fee tax b/c
planeing passengers, but the money goes
it was related to reasonable expenses of upkeep.
to the upkeep of the airport
Three part test to determine when states can
impose a User Fee:
Evansville Airport v.
405 U.S. 707
Constitutional
ISSUE: May a state collect a fee from
Delta Airlines
each passenger who deplanes at the state
1. Is there a fair approximation to use
airport, if the revenues will maintain the
assessment?
airport facilities?
37
Every time you use them, have to pay.
2.
Not excessive in relation to the benefits.
Determining whether cost is excessive is
showing evidence as to: amount of money
collected vs. cost expended in maintaining
the terminal. If states start going wild, they
will run into the problem of constitutionality.
Thus, if $ collected > maintenance costs
(costs to run it), unconstitutional (& vice
versa).
3.
Government ferry owned by state of
Conn.; passenger fee of $2.75. A part of
the fees collected were used for other
things.
Bridgeport and Port
Jefferson Steamboat
Co. v. Bridgeport Port
Authority
User fee cannot discriminate against IC.
Fee must apply to both interstate and
intrastate customers (imposed on all
users, both in or out of state).
No, fails part two of Evansville test… look to
income generated vs. costs to upkeep the
Bridgeport port authority… fees were excessive
b/c they were using money for other things.
Passenger fee revenue collected by the port
authority substantially exceeded the amount of
money spent by the port authority for those
activities that benefitted the ferry passengers.
Although there did not need to be a perfect fit
between the use of the facilities and the support
of those facilities by the fee, the discrepancy
exceeded permissible bounds.
Nevada law imposing $1 tax on
No. Crandall has been interpreted to protect the
passengers leaving the state via common
“right of travel.” This was not taxing for the
Crandall v. Nevada
73 U.S. 35
Unconstitutional
carriers.
“use” of IC.
ISSUE: May Nevada tax persons who
-Right to leave the state. Can’t put a general tax
leave the state?
on someone leaving the state
STATE’S GENERAL TAXATION OF THE USE OF INTERSTATE COMMERCE (General Use Tax): Does it violate the Dormant Commerce Clause?
In contrast to the above cases “user fee tax,” this general use tax money goes into that state’s general revenue fund.
Mississippi tax on privilege of doing
Yes. A General Use Tax on the use of IC that
Complete Auto Transit
business in State placed on out-of-state
goes into the general State fund is valid if the tax:
430 U.S. 274
Constitutional
v. Brady
car producers who carry cars into MS.
(1) Has a “substantial nexus” to the State,
Something going on within the state to
567 F.3d 79
Unconstitutional
ISSUE: May a state collect a user fee for
ferries when the fees collected were used
for other non-ferry matters?
38
ISSUE: May a state tax an interstate
motor carrier in order to compensate for
out-of-state sales taxes?
Commonwealth
Edison v. Montana
Owner-Operator
Independent Drivers
Association v. Urbach
453 U.S. 609
718 N.Y. Supp. 2d
282
Constitutional
Constitutional
Montana imposed a 30% severance tax
(extraction tax – when taken out of coal
mine) on low sulfur coal from state
mines. The taxable event is when its
taken out of the mine.
ISSUE: is the extraction tax fairly related
to the services provided?
Fuel tax imposed on commercial vehicles
calculated on the mileage driven on NY
highways ($.30/gallon). Commercial
vehicles must also pay toll for use of NY
State Thruway. Suits brought saying that
the use tax is duplicative of toll tax
(double taxation) – because already paid
a toll that is equated to the upkeep of the
road, then it’s excessive in the context of
the upkeep of the road.
be able to tax.
(2) Is fairly apportioned,
Ex: if you travel from NY to MS only
the tax would apply to the mileage that
occurred w/in the state.
(3) Does not discriminate against IC (imposed
on all users), and
(4) The amount is fairly related to the Stateprovided services.
Ex: if a truck is driving through they are
getting the highway patrol, fire dept, etc.
Yes. Supreme Court upheld tax b/c it passed the
Complete Auto Transit 4-part test. However, the
court couldn’t agree on the last factor (fair
relation). Shows tax must only be in the ballpark.
Thus, (4) – fair relation to services provided –
only has to be close.
No. Court held the fuel tax was not a user fee –
was a general use tax. Other services were
provided to constitute the tax. A general revenue
tax is not a User Fee. It passed the 4-part test for
general tax, especially # 4 (Complete Auto).
(4) Fair relation to service provided – use it for
police and fire protection and exit road for
interstate.
ISSUE: Does the use and general tax
impose an undue burden on IC in
violation of CC?
Quill Corp. v. North
Dakota
504 U.S. 298
Unconstitutional
North Dakota taxed in-state mail order
catalog sales. D, an out-of-state
corporation, challenged the tax. The only
contact D had w/ State was through
catalog sales.
No. Court found tax to fail the “substantial
nexus” test. Catalog sales do not provide
sufficient minimum contacts when company has
no physical presence in the state. This issue is
arising in internet sales today.
ISSUE: Does the general tax pass the 4part test to put the money the state’s
general revenue fund?
It is only a contact (only out-of-state sales), not a
substantial nexus.
39
St. Tammany Parish
Tax Collector v.
BarnesandNoble.com
Scripto, Inc. v. Carson
481 F. Supp. 2d
575
362 U.S. 207
Unconstitutional
LA wants to tax internet sales of Barnes
and Noble online, saying that they have a
presence in LA sufficient for taxation.
Their only physical presence was the use
of common carriers to distribute sales.
No, Internet retailer did not have a “substantial
nexus” to LA. Furthermore, the retailer store and
the internet retailer (although are both Barnes and
Noble) are separate entities, and the store doesn’t
count towards any “substantial nexus.”
ISSUE: May a state tax the internet sales
of a company not located in that state?
Applied Quill saying that the mere internet sales
were insufficient.
Scripto was not located in the state (only
sold through the mail), but had
independent contractors located in the
state to solicit sales.
Yes. The use of the independent contractors to
solicit sales provided a “substantial nexus” to the
state to put a general use tax on Scripto.
Constitutional
ISSUE: does an independent contractor
soliciting sales located in the state
provide a “substantial nexus”?
Dell Catalog Sales v.
Taxation and Revenue
Dept. of New Mexico
Amazon.com v. New
York Treasury Dept.
199 P.3d 863
877 N.Y.S.2d 842
Constitutional
Constitutional
Dell (located in TX) sold computers to
customers in NM through internet, mail,
or telephone. However, they had a K with
an independent company that services
dell computer.
ISSUE: does an independent servicer
located in the state provide a “substantial
nexus”?
Amazon sold books online. They made
an associates program: some other
websites in NY that have links to
Amazon; when you link they get a certain
percentage of the book sale.
The acceptance of orders solicited by ind-K
salesman provided a substantial connection.
Yes. The independent company that serviced
computers provided a “substantial nexus” to NM
to put a general use tax on Dell.
Yes. The NY websites that linked Amazon (&
referred customers to Amazon) provided a
presence in the state sufficient to have a
“substantial nexus” between Amazon and NY.
ISSUE: does a connection between an
out-of-state website and NY websites
provide a “substantial nexus” between the
out-of-state website and NY?
STATE LICENSING REGULATIONS: Does the state police power violate the Dormant Commerce Clause?
Laws requiring licenses for the sale of
Yes. A state may “for the safety of trade and
intoxicating liquors.
health of its citizens” regulate commerce within
License Cases
46 U.S. 504
Constitutional
its territory.
ISSUE: May a state require a license to
40
sell liquor?
Pennsylvania law requiring ships entering
or leaving the port to hire a local pilot.
Fee went to retired/decayed pilots’
families fund.
Cooley v. Board of
Wardens
ISSUE: May Pennsylvania require that
ships in the Philadelphia port engage a
local pilot to guide them?
53 U.S. 299
Constitutional
Washington state prohibits tankers from
coming in the Pugent sound. Trying to
prevent oil spills. Certain parts of the
state law are also covered by federal law.
Ray v. Atlantic
Richfield
Southern Railway v.
King & Seaboard
Airline
Di Santo v.
Pennsylvania
California v.
Thompson
435 U.S. 151
217 U.S. 524
273 U.S. 34
313 U.S. 109
Unconstitutional
Constitutional
Unconstitutional /
Overruled by
California v.
Thompson
Constitutional
ISSUE: May a state regulate tankers
entering in its own waters, when tankers
are covered by federal law?
Georgia law requires railroad trains to
slow down and blow whistles at set
intervals.
ISSUE: May Georgia require trains to
slow and blow their whistles at all
crossings?
Pennsylvania law imposing $50 license
fee on travel agents selling foreign travel
tickets.
ISSUE: May Pennsylvania impose a
licensing fee for the sale of tickets for
foreign travels?
California statute requiring every
transportation agent to procure a license
Yes. CC by its own force bars some, but not all,
state regulation. Regulating pilots is a local
matter b/c of difference b/t ports.
Supreme Court upheld under Pike but noted two
kinds of issues in State CC cases:
(1) Those of national concern that imperatively
demand a uniform national rule operating
equally on all of the States, AND
(2) Those that are local and not national and best
provided for by each State according to its
own local peculiarities.
Test was national v. local, focusing on the
“subject” of the regulation.
No longer good law: When Congress is silent,
states may regulate aspects of IC that are of a
local nature.
No. Preemption by federal law – Supremacy
Clause. Pugent sound & oil tankers were
controlled in major respects by federal law (need
for a uniform national rule).
Gibbons – states can regulate, as long as it
doesn’t offend an act of Congress.
There was also a requirement in the law you had
to have a tug to escort, which is ok b/c of Cooley.
Yes. Court upholds on the grounds that it imposes
no direct burden on IC.
Direct v. Indirect Test used.
No direct burden on interstate commerce
No. It is a direct burden on IC. The purpose of
the regulation was irrelevant. Interest in having
honest travel agents.
The dissent’s balancing formula anticipates the
modern Court’s approach.
Yes. Statute does not discriminate b/c it applies to
all those involved w/ intrastate & IC evenly.
41
from the state railroad commission for $1
& file a bond in the sum of $1,000.
ISSUE: May California impose a
licensing fee on transportation agents?
Florida Dept. of
Banking and Finance
v. Credicorp
684 So.2d 746
Constitutional
Florida law imposing licensing
requirements and annual fees on retail
installment sellers (to stop Texas
company from sending mass telegrams
that scam Florida residents by promising
$10,000 gold card for $30). State sues
company to require company to get a
license, but company argues state can’t
do that b/c of Quill
ISSUE: Can state exercise police power
to prevent fraud by taxing the scam co.?
License fee is okay as long as it is used to
regulate the profession; protecting the general
welfare b/c fraud is a local public concern.
Charge must be related to the cost incurred in
regulation.
-Can assess fees for licenses when the state is
regulating industries for the public interest.
*Overrules Di Santo.
Yes. Court upheld that it was not violation of CC.
The regulatory statute involved a local concern of
preventing fraud. The fee was meant to recoup
administrative costs, not to raise general revenue
for the state.
- Quill says you can’t tax when your only
presence is catalog sales, however, Quill doesn’t
apply b/c it’s a tax case and here using police
power trying to stop fraudulent credit transaction.
- California v. Thompson – there is full power to
regulate and protect against fraud.
THREE MODERN CATEGORIES OF DORMANT COMMERCE CLAUSE CHALLENGES:
(1) The Court has generally invalidated state laws that facially discriminate (on its face) against out-of-state commerce. (Welton v. Missouri)
(2) The Court has likewise invalidated even apparently facially neutral laws that in fact favor local economic interests at the expense of out-of-state competitors. The
Court invalidates facially neutral laws if they have an impermissibly protectionist purpose or effect.
(1) & (2) = Brown-Forman Two-Part Test
(3) The Court sometimes strikes down facially neutral laws that have a disproportionate adverse effect on IC, applying a balancing approach. (Pike v. Bruce Church)
Pike Balancing Test:
(1) Does the state have a legitimate local purpose? (State interests)
(2) Are the effects on IC merely incidental? (Effects on IC)
(3) Does the burden on IC exceed local benefits? (Balancing: effects on IC > state interests = unconstitutional; & vice versa).
* If you have a uniform law (meaning, it doesn’t discriminate against out-of-state companies) and the law interferes w/ IC, then you balance the legitimate
state interests with the effects on IC.
Threshold Issue:
Is the law discriminatory? If so, Brown-Forman test applies.
Uniform on its face, both in-state and out? Go to Pike and balance.
STATE LAWS THAT FACIALLY DISCRIMINATE AGAINST OUT-OF-STATE COMMERCE:
42
Buck v. Kuykendall
267 U.S. 307
Unconstitutional
Washington denies certificate of
convenience and necessity to applicant
seeking to operate an “auto stage line” to
carry passengers and freight b/w Portland
and Seattle
No. Court invalidates the denial b/c state’s purpose
was not safety; it was for the prohibition of out-ofstate competition. This is another example of
Gibbons v. Ogden (monopolies involving
transportation).
ISSUE: May the state deny business entry
of an auto stage line operator on the
grounds that the route is already served?
Can go either way:
Brown-Forman – favoring instate over out-of-state.
Pike – no legit state purpose.
Contrast with Bradley v. Public Utilities Commission
below.
Bradley v. Public
Utilities Commission
Welton v. Missouri
18-wheelers not allowed on certain roads.
State argued roads were too crowded
already and can’t allow another trucking
line in.
289 U.S. 92
Constitutional
ISSUE: May a state deny an auto line
service from use of their highways on the
grounds that state highways were overcongested?
State law required a license for peddlers
that sold merchandise made out-of-state
where no similar requirements are made
for in-state peddlers.
91 U.S. 275
Unconstitutional
ISSUE: May Missouri require that
peddlers of out-of-state merchandise
obtain licenses?
Yes. The judgment was affirmed because the CC
was not violated by the denial as long as there was
adequate evidence that the denial was deemed
necessary to promote the public safety. The effect of
the denial upon IC was merely an incident (Pike).
Cross reference to Kassel, where a law similar to this
one was found unconstitutional about 50 years later.
Case rarely cited.
No. Supreme Court found 9-0 that law was
discriminatory on its face against out-of-state
peddlers.
This case shows if a state law is subject to a virtually
per se rule of invalidity, it will virtually always be
struck down. Part (1) of Brown-Forman test.
THE MODERN APPROACH FOR EVALUATING DISCRIMINATORY STATE REGULATIONS:
Look at the nature of the regulation  its purpose, means, and/or effect. There are two tests: use Pike Test or Brown Forman Test
Arizona law required all state-grown
No. The Pike balancing test remains a valid test of
cantaloupes to be packed w/in state prior
challenged state actions:
to export.
(1) Does the state have a legitimate local purpose?
(2) Are the effects on IC merely incidental?
Pike v. Bruce Church
397 U.S. 137
Unconstitutional ISSUE: May Arizona require that
(3) Does the burden on IC exceed local benefits?
Arizona-grown cantaloupes are stamped
with an Arizona logo?
If you have a uniform law (meaning, it doesn’t
discriminate against out-of-state companies) and the
law interferes w/ IC, then you balance the legitimate
43
state interests with the effects on IC.
State law regulates the price of alcoholic
beverages. Once a distiller posted prices
in state, it was not free to change its
prices elsewhere during the relevant
month.
Brown-Forman
Distillers v. New York
State Liquor Authority
ISSUE: May New York impose a price
floor on the sale of out-of-state liquors?
476 U.S. 573
Unconstitutional
Threshold issue: Is law discriminatory? If so,
Brown-Forman test (see below) applies.
No. Court held that all facially discriminatory laws
will be struck down as per se invalid. This is an
example of Welton.
Brown-Forman 2-part test:
(1)(a) Facial discrimination – when a state statute
directly regulates or discriminates against IC or
(1)(b) Protectionist – when its effect is to favor instate economic interests over out-of-state
economic interests, it will be struck down w/out
further inquiry.”
(2) Extraterritorial Law – If a state law operates to
regulate activities outside the state, it is likely to be
found discriminatory and subjected to more stringent
judicial review.
Note: In 95% of the decisions we will be covering
with respect to state regulation of interstate
commerce, either or both of the tests will prove
determinative.
APPLYING PIKE OR BROWN-FORMAN TEST:
Remember: Threshold Issue:
Is the law discriminatory? If so, Brown-Forman test applies.
Uniform on its face, both in-state and out? Go to Pike and balance.
Philadelphia v. New
Jersey
437 U.S. 617
Unconstitutional
NJ state law prohibits the importation of
waste which originated or was collected
outside the state. In effect, landfills are
kept for exclusive use by the state to
conserve landfill space and to protect
state health. Philadelphia has agreement
with private landfills in NJ.
ISSUE: May NJ prohibit the importation
of solid waste from out-of-state?
No. This law is facially discriminatory, thus invalid
per se. Apply Brown-Forman test.
The harms caused by waste disposal arise after its
disposal in landfill sites; there is no basis to
distinguish out-of-state waste from domestic waste.
If one is inherently harmful, so is the other. This is
just really giving in-state business an advantage over
out-of-state competition.
There are alternatives for the state: inspect garbage
and/or place poundage quota.
Hannibal Railroad v.
Husen
95 U.S. 465
Unconstitutional
Missouri state statute prohibiting
transportation of cattle in Missouri
between March and December. B/c TX
No. Court found Missouri to have no valid health
and safety reason. They enacted this law with the
pretext of preventing cattle from coming through
44
people bring their cows to market then,
this prohibited Texas & Mexican cattle
from entering state.
ISSUE: Can a state regulate IC without a
valid health or safety reason?
Foster-Fountain
Packing v. Haydel
Louisiana law banning shrimp from being
exported unless heads removed by their
state processor. State claimed “fertilizer
crisis” as their health and safety reason.
278 U.S. 1
Unconstitutional
ISSUE: Can a state regulate IC to
promote their industry by claiming an
inadequate health reason?
Atlantic Prince v.
Jorling
710 F. Supp. 893
Unconstitutional
Wyoming v. Oklahoma
502 U.S. 437
Unconstitutional
Pelican Chapter v.
Edwards
128 F.3d 910
Unconstitutional
Maine v. Taylor
477 U.S. 131
Constitutional
NY statute prohibits fishing off shore in
state w/ boats in excess of 90 feet. No NY
boats are over 90 feet.
ISSUE: May NY prohibit boats longer
than 90 feet from fishing in its waters?
OK statute requires in-state public utility
companies to use 10% of state’s coal.
WY sues b/c prior to law, 100% of the
coal used by OK came from WY. OK
argues it’s a conservation and safety
measure.
ISSUE: Can OK limit the amount of WY
coal its state uses?
LA statute giving property tax
exemptions to new business that
primarily use state products or state labor.
ISSUE: May a state exempt all new
businesses from certain taxes if a
percentage of the labor and production
derive from w/in that state?
Maine law banned the importation of out-
Missouri on the way to Chicago. This
unconstitutionally regulated IC. A state’s police
power cannot invade the domain of the national
gov’t.
This is protecting instate cattle herders over out of
state competition. Apply Brown-Forman.
No. Supreme Court found no valid state interest.
Louisiana is promoting their business over out-ofstate business.
Applying Brown-Forman, it’s facially neutral but
favors local interests.
No. NY claims the law is an attempt to conserve
fish. However, all NY fishing boats are less than 90
ft. while only out-of-state boats extend beyond 90 ft.
-Apply Brown-Forman, fails b/c favors local over
outside.
No. Applied Brown-Forman. Facially
discriminatory, favoring in-state over out-of-state
interests.
You should ask whether or not this legislation favors
one state over another. There is a wrong suffered by
one state at the hand of another. This is inexcusable
under the CC (interferes with IC).
No. The Court held this law invalid under BrownForman b/c it favors in-state over out-of-state.
It is discriminatory b/c it inhibits the ability of
contractors to offer employment to out-of-state
workers and to utilize supplies and other resources
produced by other states. Compliance imposes
additional administrative and operating costs on
contractors who choose to take advantage of
resources of out-of-state sources relative to the costs
incurred by contractors utilizing only local labor,
contractors, and supplies
Yes. Court upheld this law as a legitimate
45
of-state baitfish because of the possible
ecological effects if out-of-state baitfish
have parasites and other non-native
species.
environmental purpose. Although the statute facially
discriminates, Maine has a legitimate interest that
could not be accomplished in a non-discriminatory
manner (no alternatives exist to protect local fish).
ISSUE: May Maine prohibit the
importation of bait fish that threaten to
infect a local species?
Exception to Brown-Forman; this is permissible
facial discrimination!
Ag board of TX edict – ban importation
of LA cattle b/c potential anthrax
breakout (quarantine law).
Smith v. St. Louis &
Southwestern Railway
Co.
American Can Co. v.
Oregon Liquor Control
Comm.
Proctor and Gamble v.
Chicago
National Paint and
Coatings Assoc. v.
Chicago
181 U.S. 248
517 P.2d 691
509 F.2d 69
45 F.3d 1124
Constitutional
Constitutional
Constitutional
Constitutional
ISSUE: Can TX ban cattle from moving
in IC by means trying to quarantine
diseased animals?
Oregon passes law that can’t sell
beverages in non-returnable bottles &
can’t sell “pull top” cans. State interest:
reducing litter and solid waste in Oregon
and reducing the injuries to people and
animals due to discarded pull tops.
ISSUE: May OR prohibit non-returnable
bottles that threaten pollution?
Chicago ordinance: can’t sell detergents
that have phosphates in them, cause go
into lake and causes red tide (overnutrition in lake causes over growth in
algae – bad odor and bad tasting drinking
water). P&G sells phosphate products.
ISSUE: May Chicago ban phosphate
products b/c of its environmental effect?
Chicago enacts an ordinance in response
to the proliferation of graffiti within the
city. The ordinance forbids the sale of
Constitutional to facially discriminate as long as
there is a legitimate environmental issue with no
available nondiscriminatory alternatives.
Yes. Valid exercise of state police power.
Nothing in the record about TX’s determination.
Can restrict animals from importation into state if
there is a danger of disease (can stop IC for heatlh
reasons).
-Remember, Black-Bird Creek & Gibbons: States
can stop IC in its tracks if it is done for a valid police
power” (health, safety, welfare) reason, UNLESS
they come into collision with another Constitutional
provision.
Yes. Looks uniformly applied in-state and out-ofstate; environmental interests high? Yes (Pike).
The Act did not impede the flow of interstate
commerce and did not discriminate against nonOregon interests; it constituted valid legislation
under the Commerce Clause.
Yes. Uniform law, Apply Pike.
Interference on IC (increased costs and burden on
phosphate companies) vs. Red tide (environmental
damage).
Court holds burden on IC minimal compared to
environmental local concerns.
Yes. The ordinance affects interstate shipments, but
it does not discriminate against IC in either terms or
effect (not facially discriminatory & not an issue of
46
spray paint within the city limits. A
consortium of makers, wholesalers, and
retailers of paint and markers, contend
that it violates the dormant CC.
Sherwin Williams v.
San Francisco
Brown and Williams
Tobacco Co. v. Pataki
Waste Management
Holdings v. Gilmore
Hughes v. Oklahoma
857 F. Supp. 1355
Constitutional
ISSUE: May Chicago ban spray paint
from being sold within the city limits to
stop vandalism?
San Francisco graffiti control program:
can’t sell spray paint to people under the
age of 18 (age discrimination); & could
only sell spray paint in store where
accessible only to employees.
ISSUE: May San Francisco limit the
purchase of spray paint to only with the
assistance of an employee?
NY law – no shipment of cigarettes to
NY consumers.
320 F.3d 200
252 F.3d 316
441 U.S. 322
Constitutional
Unconstitutional
Unconstitutional
Waste Mgmt invests $20M in a landfill
on the James river in VA, and has a K
with NYC to take their garbage (NY
previously had trash on barges). VA law
prohibiting its landfills from receiving:
(1) over 2000 tons of trash per day
(capping provision), (2) trash from barges
stacked over 2 containers high (stacking
provision), (3) trash from any “solid
waste” barge (barge provision), and (4)
trash from any truck w/ over 4 axles
(namely New York trash trucks) (truck
provision).
ISSUE: May VA set limits on how outof-state garbage comes into its landfills?
Texan, engaged in the commercial
minnow business, is charged with
violating an OK law which forbids any
person to “transport or ship minnows for
sale outside the state which were
procured within the waters of the state.”
protecting instate interests). No disparate treatment
and no disparate impact, so no problem under the
dormant CC (Pike).
Pike balancing approach applied: City’s aesthetic
interest prevails. The benefits of spray paint are not
worth the costs in defacement of property by
vandals.
Yes. Apply Pike test b/c uniform.
State Interest: stop shoplifting of spray paint by
under 18 year olds which would reduce graffiti vs.
interference with IC (less accessible).
City wins. IC burdens only incidental.
Yes. Apply Pike b/c uniform.
Interference w/ interstate commerce – is there a high
state interest?
State Interest: so minors can’t get cigs shipped to
them. High state interest, NY wins.
No.
Apply Pike:
(1) Capping Provision – State interest: Health
concern (quarantine laws?); state has right to inspect.
However, state had alternative (hire more
inspectors), so, no adequate reason.
(2) Stacking Provision – State interest: Storm may
blow them over. Legit, overrides CC problem.
(3) Barge Provision – State interest: Garbage barges
leak trash juice into river. Can’t justify total ban on
barges. Remanded.
(4) Truck Provision – State interest: They are trying
to stop big trucks, no adequate reason.
No. Apply Brown-Forman. Like Brown-Forman,
Philadelphia v. New Jersey, OK statute is facially
discriminatory, and it could not survive strict
scrutiny nor provide proof of a nondiscriminatory
alternative to preserve local interest at stake – such
as: (1) OK places no limits on the number of
47
He transported from OK to TX a load of
natural minnows purchased from an OK
minnow dealer.
ISSUE: May a state prohibit the
exportation of minnows to protect wild
animals and promote conservation of
resources?
Cavel International v.
Madigan
500 F.3d 551
Constitutional
R & M Oil Supply v.
Saunders
307 F.3d 731
Unconstitutional
Pennsylvania v. West
Virginia
262 U.S. 553
Unconstitutional
Huron Portland Cement
Co. v. Detroit
362 U.S. 440
Constitutional
IL Horse Meat Act makes it “Unlawful
for any person in the state either to
slaughter a horse for human consumption,
or to import into or export from Illinois
horse meat to be used for human
consumption.” Challenged by
slaughterhouse owner in Chicago, who
ships meat overseas, saying that it
interferes with foreign commerce.
ISSUE: May a state pass a statute
prohibiting horse slaughtering for human
consumption preventing these businesses
from operating w/in the state?
After a cold winter, many propane
suppliers ran out of propane. Missouri
passes statute requiring sellers of propane
to have at least one storage tank with
18,000-gallon capacity in Missouri. R &
M Oil is an Illinois company w/ two
30,000 tanks; can’t sell in Missouri
though b/c of statute.
ISSUE: May a state require all propane
distributors own a storage tank w/in state
WV has pipelines running to both Penn.
& Ohio. WV Act prevents shipment of
natural gas outside of the state until the
in-state consumers needs have been met.
ISSUE: Does the state’s hoarding of
natural gas interfere with IC in spite of
state’s interest of conservation?
Detroit statute requires certain type of
boiler on boat that emitted less smoke.
P’s boat emitted too much smoke, and
would require a new boiler.
minnows that can be taken by licensed minnow
dealers, (2) Does not limit the number of minnows
that may be disposed of within the State. The law
was not really an attempt at conservation. States
cannot hoard their national resources. “It overtly
blocks the flow of IC at the State's borders.” =
“REPUGNANT TO THE COMMERCE CLAUSE.”
Note: Contrast with Maine v. Taylor (baitfish)
Yes. This was a uniform law that applied to both instate and out-of-state businesses. Apply Pike.
The court held that the curtailment of foreign
commerce by the amendment was slight and the
court was reluctant to condemn a state law,
supported by a legitimate state interest – that being
the humane treatment of animals in Illinois.
Pike: (1) It’s uniform on its face. (2) Affect on IC:
yes. (3) High state interest: yes; protecting animal
life.
Constitutional; state interest high enough to
overcome IC interference.
No. This was a uniform in nature law, applying to
both in-state and out-of-state companies. Apply Pike.
-Now balance the state’s interest against the burden
on IC.
-State Interest: to make sure everyone gets through
the winter.
-IC Burden: To comply with the statute, the
company would have to put a new facility in
Missouri, which is too high of a burden on IC;
therefore, it is unconstitutional.
Yes. Withholding natural gas is a regulation of IC
and a prohibited interference. Provisions of Act
necessarily and directly will divert a large portion of
gas currently going to consumers in other states to
in-state consumers, which would be a serious
interference with commerce.
Brown-Foreman applied -- favoring in over out-state
Yes. Uniform on its fact and applies to all
(nondiscriminatory) so you balance (Pike). High
state interest b/c it’s environmental.
48
Jones v. Gale
SPGGC v. Blumenthal
470 F.3d 1261
505 F.3d 183
Unconstitutional
Constitutional
State Interest: to curtail smoke pollution.
ISSUE: May a city require a new boiler
to emit less smoke?
Nebraska statute prohibiting farming by
corporations that were not family-owned
or had family member on the board.
ISSUE: Can Nebraska prohibit
corporations from farming in the state?
CT Gift Card Law prohibits the sale of
any “gift certificate” subject to inactivity
or dormancy fees or to an expiration date.
ISSUE: May the State prohibit the sale of
gift cards with expiration dates to benefit
Connecticut consumers at the expense of
consumers in other states?
STATE EQUALIZING TAXES: DISCRMINATORY OR NON-DISCRIMINATORY?
Alabama charges higher dumping fee for
out of state than in state.
Chemical Waste
504 U.S. 334
Unconstitutional
Management v. Hunt
ISSUE: May AL charge higher dumping
fees for out-of-state than in-state?
OR law imposes a 2.25 per ton surcharge
on the disposal of out of state solid waste
and .85 per ton surcharge on the disposal
of identical solid waste generated in state.
Oregon Waste v.
State claims it equalizes the tax burden
Department of
511 U.S. 93
Unconstitutional
(reason was to equalize competition).
Environmental Quality
Henneford v. Silas
Mason
300 U.S. 577
Constitutional
ISSUE: May a state impose higher taxes
on out-of-state waste than on in-state
waste?
WA places a use tax on goods bought in
other states designed to compensate for
the loss of the 2% tax on retail sales
within WA.
Note: If another city required another type boiler, the
court would have to decide which boiler.
No. State sought to stop corporate buyout of local
farms.
Brown Forman applies. It was facially
discriminatory, favoring Nebraska residents over
out-of-state competition.
Yes. There is a valid public interest – being
consumer protection. Gift Card Law applies only to
the sale of gift cards in Connecticut, not their use,
and thus permits cards purchased out-of-state to be
used in Connecticut despite any restrictions or fees
such cards may carry. It does not affect or burden IC
(the law is not an attempt to regulate out-of-state
activities). Neither Pike or Brown-Forman Tests are
applicable here.
--The intent of the Law, the court suggests, is to
protect Connecticut consumers from being deprived
unwittingly of the value of gift cards they have
purchased in the State.
No. Apply Brown-Forman. Discriminatory on its
face against out-of-state.
--The state could not properly tax a transaction or
incident more heavily when it crossed state lines
than when it occurred entirely within the state.
No. The additional fee charged to waste generated
out-of-state was discriminatory on its face. Subject
to per se rule of invalidity (Brown-Forman).
-Can’t counter a higher general revenue tax on instate with a specific discriminatory fee on out-ofstate. (B/c they are not substantially equivalent).
*The Court acknowledged that a differential tax
would be permissible if it merely compensated for
costs charged in other ways, such as by taxation, to
in-state waste producers.
No. This tax served as a compensatory taxation.
Local retail sellers can compete equally with retail
dealers in other states who are exempt from the WA
sales tax. Local buyers will no longer be tempted to
place orders in other states.
49
ISSUE: Does compensatory taxation
offend the negative Commerce Clause?
TAX EQUALIZES COMPETITION.
Tax Equalization Test:
(1) Specifically identify the intrastate tax
burden that the out of state corporation
doesn’t have. (ID specific intrastate tax
state is trying to compensate for).
(2) Tax imposed on the out-of-state corp. has
to roughly approximate to the in-state
tax. (In terms of value, or benefit).
(3) Events must be substantially equivalent.
(Events on which the intrastate & interstate
taxes are substantially equivalent in
substance so as they substitute each other).
Homier Distrib. Co. v.
City of Albany
659 N.Y.S.2d 223
Unconstitutional
Taxpayer challenged the city’s ordinance,
which imposed a special tax on
“transient” retailers who operated at
temporary business sites. The taxpayer
claimed that the tax discriminated in
favor of local retail businesses.
ISSUE: Is the tax a compensatory tax?
Igoe v. Pataki
696 N.Y.S.2d 355
Unconstitutional
NY Commuter Tax – nonresident of NY
state (and not residents of NY state) who
commute to NYC must pay a commuter
tax. NY saying it’s trying to equalize
taxes in NYC for in-state residents to
further their careers, who have to pay
higher general taxes.
Contrast with Oregon Waste: “A regulation or tax
that discriminates in favor of local economic
interests is invalid unless it is narrowly tailored to
accomplish a compelling local purpose or, in the
case of a tax, can meet the stringent standards of the
‘compensatory tax’ doctrine.”
No. This was a facially discriminatory tax. The
Court recognized that the tax burden on “transient”
retailers was not imposed on retailers who operated
from fixed locations within the city. Consequently,
the tax conferred an economic advantage on a
particular class of local businesses, i.e., those that
work from fixed locations. Since, by definition, the
class of favored business included only locals, the
ordinance was not considered “even-handed” and
was per se invalid as a violation of the CC (BrownForman).
-Tax didn’t equalize competition, only favored locals
No. It fails the 3-part test:
(1) No specific intrastate tax is named to compensate
for, only general revenue tax.
(2) Doesn’t approximate, intrastate taxes benefit
infrastructure, which out-of-state don’t directly
benefit from.
50
ISSUE: Is this a compensatory tax?
(3) Not substantially related, general taxes are more
general than narrow commuter tax. Intrastate taxes
don’t burden equivalent activities as the commuter
tax.
Note: fails P&I clause test.
STATE SUBSIDIES: DISCRIMINATORY ONES CAN BE FOUND IMPERMISSIBLE
West Lynn Creamery: Was a Use Tax can violate the Dormant CC:
 A discriminatory tax on the industry (taxing out-of-state members higher than in-state competitors)

A uniform tax that has exemption or credit for only in-state members

A uniform tax where the funds are used for rebates or subsidies for only in-state members.

A uniform tax with a subsidy for only in-state members funded from the state’s general revenues.
West Lynn Creamery v.
Healy
Camps
Newfound/Owatonna v.
Town of Harrison
Mass. law imposes a tax on all sales of
milk to Mass. retailers. All proceeds are
rebated to Mass. Dairy farmers (Mass.
dealers). 2/3 of milk sales in Mass.
involve sale of milk from out-of-state.
512 U.S. 186
Unconstitutional
ISSUE: May a state tax all producers of a
product and rebate part of the proceeds to
in-state producers?
520 U.S. 564
Unconstitutional
Maine statute provides a property tax
exemption to non-profit organization, but
denies the full exemption to any
institution “conducted or operated
principally for the benefit of out-of-state
residents.” 95% of people at Camps
Newfound are from out of state, so
they’re not getting the tax exemption.
ISSUE: Should a discriminatory tax
exemption be considered a permissible
subsidy?
No. States may not benefit in-state economic
interests by burdening out-of-state competitors. The
premium payments are in effect a tax which makes
milk produced out-of-state more expensive.
Subsidies from special fund are not
constitutional.
-A state may provide subsidies to in-state producers
from general revenues without being required to
provide them to out-of-state producers too; this
would not ordinarily be a burden on IC. (Not what
occurred here).
No. The Maine statute functionally served as an
export tariff and targeted out-of-state consumers by
taxing the businesses that serve them. Even though it
would be a permissible subsidy, it is not a
compensatory tax so it would be held
unconstitutional. This would be a Pike balancing
approach.
If you have an interference with IC b/c of a property
tax exemption that has an impact that less people are
crossing state lines to use the facility in question,
then it’s unconstitutional under Commerce Clause.
A direct subsidy to non-profits benefitting Maine
residents would be valid.
51
*Footnote 15: if it’s a reasonable conclusion that
IC is being interfered with, then no need for
excess evidence.
Dissent: Not facial discrimination. Summer camps
provide a vital state function that the state would
have to otherwise provide.
OH statute awarded sales tax credit for
each gallon of ethanol sold by dealers, if
produced in OH or another state with a
similar provision. This tax credit was not
given to ethanol coming from states that
did not grant tax advantages to OHproduced ethanol.
New Energy Co. of
Indiana v. Limbach
486 U.S. 269
Unconstitutional
ISSUE: May a state solely give a tax
credit to in-state ethanol produces and
those who give the state the same
benefit?
Similar to Philadelphia v. NJ: giving an advantage to
in-state business.
No. Court held that (1) OH statute imposed an
economic disadvantage upon out-of-state sellers; (2)
the promise to remove that disadvantage if
reciprocity was accepted no more justified disparity
of treatment than it would justify categorical
exclusion; (3) the market-participant doctrine did not
apply; (4) health and commerce justifications did not
validate the discrimination.
At the same time, the Court distinguished as
permissible an Indiana subsidy for in-state ethanol.
Thus, discriminatory subsidies are lawful even
though discriminatory tax breaks are not.
Under Brown-Forman, held invalid – discriminates
against IC.
Great Atlantic &
Pacific Tea Co. v.
Cottrell
Wiesmueller v.
Kosobucki
424 U.S. 366
Unconstitutional
571 F.3d 699
Constitutional /
Remanded
Section 11 of MS’s regulation provided
that milk and milk products from another
state could not be sold in MS unless that
state accepted MS Grade A milk and milk
products on a reciprocal basis. LA milk
processing plant did not have reciprocal
contract w/ MS.
ISSUE: May a state pass a regulation for
the benefit of in-state producers and those
states who give MS the same benefit?
Wisconsin has a rule if you go to 1 of the
2 Wisconsin law school you’re
automatically admitted to the bar.
Lawsuit brought by out-of-state law
graduates that wanted to practice in
Wisconsin.
No. This was economic coercion by the state, which
is not allowed.
Ct. held that (1) regulation unduly burdened
interstate commerce, (2) regulation was not based on
interest in the quality of milk entering the state b/c
section 11 allowed a lesser degree of inspection
when there was a reciprocal agreement in place; (3)
not necessary to protect trade and other alternative
available.
Maybe. Discriminatory, so apply Brown-Forman.
Are people commerce? Yes.
This could influence a student’s choice in law
schools. However, this effect on IC could be small.
State Interest: regulate practice of law (teach state
law for better Wisconsin lawyers).
52
ISSUE: May Wisconsin have a “graduate
preference” and automatically admit instate law students to the state bar?
Remanded for further hearing to determine how
much state law was being taught.
HOME PROCESSING REQUIREMENTS:
Madison ordinance, claiming sanitary
regulation of milk for health and safety of
people, excluded distribution of milk
produced & pasteurized outside of
Madison, Wisconsin (can only be
processed and bottled at approved
locations within 5 miles of city square).
Dean Milk plants were located in IL, 65
and 85 miles from Madison (& denied
license).
Dean Milk Co. v.
Madison
Unconstitutional
ISSUE: May city ban milk not produced
and pasteurized in the city?
MN statute says you can’t sell meat in the
state unless it’s been inspected within 24
hours of slaughter.
Minnesota v. Barber
Ewing Citizens Rights
v. Ewing
136 U.S. 313
2007 WL
2065832
Unconstitutional
ISSUE: May MN prohibit meat that
hasn’t been inspected within 24 hours of
slaughter?
College of NJ located in Ewing (town).
Ewing passes ordinance saying if you
rent in Ewing, you have to have an agent
with 25 miles of house.
Constitutional
ISSUE: May a town require rental owners
to have an agent within 25 miles of unit?
No. Ct. held that
(1) City had erected an economic barrier protecting a
major local industry against competition from
outside the state of WI;
(May not favor local industries by depriving out-ofstate industries access to local market).
(2) Regulation not essential for protection of local
health interest b/c safe alternatives of milk are
available (reasonable alternative available: send
more inspectors in).
- Pike balancing approach applied: there were
alternatives to protect the state’s interest in
regulating out-of-state milk, i.e., send inspectors.
- The ordinance is no less discriminatory because instate or in-town processors are equally covered by
the prohibition (Brown-Foreman).
If other reasonable alternatives are available,
statute will not be upheld, even if the stated
purpose of the regulation is health/safety.
-Evidence of less restrictive alternatives can balance
against state interest.
No. Substantially burdens IC.
Statute not a proper exercise of state police power
b/c Statute effectively barred MN markets from
selling out-of-state meat b/c of the 24 hour
requirement.
Yes. Uniform, so apply Pike.
State Interest: college kids making noise. Tenants
need agents nearby to contact in case of emergency.
Burden on IC: out-of-state investors (buying rental
property) have to hire an agent within 25 miles,
whereas in-town investors don’t have to.
State wins. Only incidental expense to all investors
53
located in NJ or out of NJ.
Linmark Associates v.
Willingboro
C & A Carbone v.
Clarkstown
Town says you can’t put for sale signs in
your front yard. State interest is to
prevent “tacky” signs.
431 U.S. 85
Unconstitutional
ISSUE: May a town forbid for sale sings
in front yards?
511 U.S. 383
Unconstitutional
NY city adopted ordinance which
required all non-recyclable nonhazardous waste w/in town to be
deposited at the transfer facility which the
city had an interest in and would
eventually own (town needs to make $1.4
million off this before it can eventually
take title of the transfer station). Facility
charged fees exceeding the market rate in
other states (tipping fees of $81).
Carbone sought to ship its waste to
cheaper facility and files suit.
ISSUE: May a town’s “flow control”
ordinance require that all waste be
deposited at one privately-owned transfer
station?
United Haulers Assoc.
v. Oneida-Herkimer
Solid Waste
Management Authority
127 S. Ct. 1786
Constitutional
Similar to C & A Carbone case, but now
dealing with a state-owned facility. “Flow
Control” ordinance requiring trash
haulers to deliver waste to a particular
waste-processing facility (owned and
operated by a state-created public benefit
corporation – different from C&A
Carbone).
ISSUE: May a town’s “flow control”
ordinance require that all waste be
deposited at a one state-owned facility?
Department of Revenue
128 S. Ct. 1801
Constitutional
KY law is passed exempting interest on
No. Violated the First Amendment b/c the ordinance
impaired the truthful flow of legitimate commercial
information that was of vital interest to homeowners
and homebuyers, the ordinance was unconstitutional.
Also, the ordinance prohibited the content of speech.
No. Court, citing Dean Milk, invalidated law for
depriving out of state businesses access to local
markets.
The majority opinion applies Brown-Forman, law
favors in-state over out-of-state.
State and local governments may not use their
regulatory power to favor local enterprise by
prohibiting patronage of out-of-state competitors or
their facilities.
O’Conner’s concurrence: applies Pike, it
discriminates both local and non-local competitors
(Cochran disagrees).
Yes. Disposing of trash has been a traditional gov’t
activity for years, and laws that favor the gov’t in
such areas – but treat every private business, whether
in-state or out-of-state, exactly the same – do not
discriminate against IC for purposes of the CC.
Dissent: Only difference b/w this case and Carbone
is that title had not yet transferred to privately-owned
city to make it a municipal one.
Note: The gov’t-owned facility is a market regulator
and not a market participant; the exemption would
not have applied if there had been a violation of the
dormant CC.
Yes. Citing United Haulers, Court held that a gov’t
54
of Kentucky v. Davis
bonds issued by the state from state
income tax, but taxing interest income on
bonds from other states. Suits are brought
alleging a violation of dormant CC.
ISSUE: May a state offer tax exemption
for state-purchased bonds for its
residents?
function is not susceptible to standard dormant CC
scrutiny (b/c bonds were what funded United
Haulers Ass’n; often fund government activity).
The issuance of debt securities to pay for public
projects is a public function to promote legitimate
state interests, and it does not favor local entities
over out-of-state ones. This type of law does not
discriminate against IC for purposes of the dormant
CC.
Note: Brown-Forman – discriminates.
MARKET PARTICIPANT EXCEPTION TO DORMANT COMMERCE CLAUSE VIOLATIONS:
When a gov’t acts as a market participant in the goods/services or give economic incentives to in-state businesses, the gov’t can discriminate or favor its own
residents. Market Participator v. Market Regulator.
MD state program to reduce number of
Maryland held to be a “market participant” rather
junk cars (MD Statute pays bounties to
than a “market regulator.” When state is acting as a
pick up scrap metal and discarded cars
market participant, instead of a market regulator,
and taking them to the metal processors). commerce clause does NOT apply.
Statute favors cars taken to in-state
processors (imposed more stringent
If you’re participating in the market, the Commerce
Hughes v. Alexandria
426 U.S. 794
Constitutional
documentation requirements on out-ofClause doesn’t apply.
Scrap
state scrap processors than on in-state
ones). State was a purchaser of the metal
scrap.
Reeves, Inc. v. Stake
447 U.S. 429
White v. Massachusetts
Council of Construction
Employers
460 U.S. 204
South Central Timber
Development v.
467 U.S. 82
Constitutional
Constitutional
Unconstitutional
ISSUE: Is Maryland acting as a market
participant or a market regulator?
SD owns cement plant and only sells
cement to its citizens (SD policy
restricting sale of cement from a stateowned plant to state residents).
SD held to be a market participant. The Court
recognized the principle that the Commerce Clause
places no limitations on a State’s refusal to deal with
particular parties when it is participating in the
interstate market in goods.
ISSUE: Is South Dakota acting as a
market participant or a market regulator?
Boston city ordinance requires all
construction projects funded by the city
to employ half local residents.
Boston is a market participant, and may favor local
interest b/c the employees were “working for the
city.”
ISSUE: Is Boston acting as a market
participant or market regulator?
Alaska law required timber sold by State
to be partially processed in-state before
Alaska was a market regulator. Court found state
was doing more than being merely a seller of timber
55
Wunnicke
its shipped out-of-state.
ISSUE: Is Alaska a market participant or
a market regulator?
b/c payment for the timber did not end the
purchaser’s obligations with the state. State was
regulating aspects of market in which it was not a
participant.
Market participant doctrine only applies where the
effects of the state’s terms are limited to the
particular market in which the state is participating –
NOT a broader one.
State market participant should only be interested in
immediate transactions, not with what its purchaser
does with the goods after the transaction.
A State may not use the market-participant doctrine
to immunize a downstream regulation of the timberprocessing market in which it is not a participant.
This holding limits Alexandria Scrap:
 If raw natural resources, market participant
less likely to apply.
 Market-participant doctrine may not be used
when you’re trying to regulate things outside the
market (States cannot regulate outside the
market in which it is a participant – can’t
participate in one market which results in
regulation of another market).
All state owned and operated liquor
stores in VA will only sell VA wine.
Brooks v. Vassar
462 F.3d 341
Endsley v. Chicago
230 F.3d 276
Selevan v. New York
584 F.3d 82
Constitutional
Constitutional
Constitutional
ISSUE: is Virginia a market participant
within the wine market?
Chicago freeway you have to pay a toll if
you get on it. Motorists who used
Chicago toll bridge alleged that they were
overcharged so that the city could fund
other city transportation projects (costs
excessive).
ISSUE: Is the city a market participant to
exempt the law from a dormant CC
violation?
Toll bridge to Grande Island. NY charges
Yes. Virginia is a market participant. VA competes
with the thousands of private retailors that sell both
in-state and out-of-state liquor & wine. The fact that
it regulates the market of which it is a participant is
insufficient to deem a market regulator.
Yes. Court held that the city did not violate Sherman
Act b/c at least two alternative routes were available
Also, city’s operation of bridge did not violate
dormant CC because the city was acting as a market
participant, not a market regulator, by operating
bridge as a proprietary enterprise.
No. It was a use fee.
56
Thruway Authority
a toll for non-residents of $.75 and $.09 if
you’re a resident. CC suit brought.
ISSUE: Is the state a market participant?
-Selevan was not a market participator, but acted in
its governmental capacity (as opposed to acting in a
proprietary manner). Nor did it try to compete with
private entities in the highway system.
Also, it is not discriminatory b/c there is not an instate that is favored and there is no out-of-state
competitor that is harmed.
-Remanded to employ the three-part use fee test
(Evansville): (1) fair approximation of use; (2) not
excessive; & (3) discriminate against IC.
THE MODERN APPROACH FOR EVALUATING FACIALLY NEUTRAL LAWS WITH PROTECTIONIST PURPOSE OR EFFECT:
NY Milk Act set a minimum price to be
No. Court held that statute was facially neutral and
paid by milk dealers to producers in NY
placed undue burden on IC.
and prohibited sale of out-of-state milk if
- State may not use its taxing power or police power
the milk had been purchased below the
with aim and effect of establishing economic barrier
price minimum for similar purchases
against competition with products of another state or
within NY. Milk dealer bought its milk in labor of its residents.
VT at prices lower than NY minimum
- NY was trying to apply its law extra-territoriality
Baldwin v. G.A.F.
294 U.S. 511
Unconstitutional and refused to agree to conform to NY
by placing a tariff on VT milk.
Seeling
statute in sale of imported product.
- State argues its health related, not finance.
Though health and economic success are related, the
ISSUE: May New York prohibit the sale
Constitution was framed upon idea that prosperity
of out-of-state milk if the milk had been
and salvation are in union and not division; a state
purchased below New York's statewide
cannot place itself in a position of economic
price floor?
isolation.
- State’s must sink or swim together.
Indiana Statute saying when a resident of
No. It’s applying laws extraterritorial (BrownIndiana enters a loan agreement with a
Forman – third way CC can be violated).
creditor of another state, the creditor must
secure a license from Indiana if it
advertises its business in Indiana. Illinois
has no such restriction.
Midwest Title Loans v.
593 F.3d 660
Unconsitutional
Mills
ISSUE: Is it constitutional to make outof-state creditors comply with Indiana
law?
Cities Serv. Gas Co. v.
Peerless Oil & Gas
340 U.S. 179
Constitutional
State regulation of natural gas prices
designed to conserve an important local
Yes. Court held that statute and orders did not violate
CC because it was a reasonable regulation to prevent
57
resource.
ISSUE: May the state require pipeline
companies to pay more for natural gas
than prevailing out-of-state rates?
H.P. Hood & Sons v.
Du Mond
336 U.S. 525
Unconstitutional
Mass. milk distributor (Hood) had 3
receiving stations in NY, and it sought a
license for a 4th station, which was denied
on the basis that the market was already
adequately served ( NY law stating that
licenses for new plants couldn’t be issued
unless the Commissioner believed that it
would not be a destructive competition in
the market). But really because it would
result in destructive competition with
milk processing facilities in Troy, NY.
economic and physical waste of natural gas. A pricefixing order is lawful if substantially related to a
legitimate end sought to be attained.
SEE CONTACTS CLAUSE.
No. Court held that denial of license (and licensing
statute) violated CC b/c it attempted to protect NY’s
commercial interests by restricting the export of milk
to milk processors in other states that competed with
NY milk processors. Statute’s primary purpose was
not safety regulation but prohibition of competition.
Brown-Forman: shielded economic interests of the
state over IC b/c they are trying to prevent their milk
from leaving NY (protectionist).
ISSUE: May NY deny a license to an outof-state milk handler wishing to operate
in NY?
Hunt v. Washington
State Apple
Advertising
Commission
432 U.S. 333
Unconstitutional
NC law requires closed containers of
apples offered for sale or shipped into
state have to be USDA approved
(Effectively prohibited the display of any
state grades, i.e., Washington state
grades). Washington state, the nation’s
largest apple producer, was the source of
half of all apples shipped in closed
containers. Washington’s grades were
equivalent or superior to the US grade.
ISSUE: May NC require that the apples
sold in the state only bear the U.S. grade?
No. While neutral on its face, the NC law has the
practical effect of not only burdening interstate sales
of Washington apples, but also discriminating
against them and favoring local growers.
State law requiring labeling on products is found to
directly regulate IC and is invalid.
Pike: Uniform (facially neutral)? Yes. Balance:
Interference with interstate commerce – reasonable
conclusion if interstate commerce is going to be
interfered with then don’t have to put on evidence
(Camp Newfoundland). Is it reasonable to say that
Washington apples interstate commerce will be
58
affected? Yes there is going to be interference.
Legitimate state interest – no valid health reason, so
it was only curtailing competition; fails under Pike
(the undue burden on IC outweighs the purported
state goal of protecting consumers against fraud in
labeling).
National Electric
Manufacturers Ass’n
v. Sorrell
272 F.3d 104
New York State
Restaurant Association
v. New York City
Board of Health
556 F.3d 114
Beard v. City of
Alexandria
Constitutional
Constitutional
State requirement that to sell fluorescent
lights with mercury, must have a label
that it contains mercury and should be
disposed of as hazardous waste.
ISSUE: Can the state require a label
indicating mercury on all fluorescent
bulbs sold in the state?
NYC Health Code Section adopted by the
city Board of Health in January 2008. It
requires fast food chain restaurants to
post caloric content information in their
menus and on their menu boards.
Legit state interest: requiring the manufacturers to
disclose accurate factual information was rationally
related to the state's goal of protecting human health
and the environment from mercury poisoning.
Unduly burdensome? No: Can only label bulbs in
that state, or not sell in state at all (alternatives).
Yes. City’s interest in reducing obesity is a
legitimate public health interest despite its possible
effects on IC.
Pike Balancing approach applied.
ISSUE: Does NYC’s interest in fighting
obesity outweigh the burden on IC?
341 U.S. 622
Constitutional
City ordinance says that you can’t solicit
or sale door-to-door w/o getting prior
permission of the owner of the house (no
peddlers). Beard is an out-of-state doorto-door peddler of books.
ISSUE: May the right of privacy override
a CC violation?
Exxon Corp. v.
Governor of Maryland
Also, local economic interest, so fails under BrownForman.
Yes. Uniform, apply Pike.
437 U.S. 117
Constitutional
MD passes a law prohibiting producers or
refiners of petroleum products from
operating retail service stations in
Maryland. Filling stations in MD cannot
be owned by their oil company (divesting
Yes. Although it stops IC at the doorstep, Supreme
Court held that this did not interfere w/ IC. Apply
Pike test. There was a compelling state interest in
protecting the privacy of people in their homes.
**Significant state interest – protects people’s
privacy in the home.
Cochran: Seems like an old Griswold.
Note: SEE RIGHT TO PRIVACY
Yes. 8-1 opinion (i.e. screw you oil company). Law
affects only interstate companies, but that doesn’t
mean it discriminates against IC. The Court seemed
to want to punish big oil companies, rather than
follow CC law.
59
ownership of gas stations owned by
refineries). MD passes this law in
response to evidence that gas stations
owned by oil companies are able to
undercut prices of locally-owned ones
during a gas shortage. State sought to
stabilize the market.
ISSUE: May Maryland prohibit the
operation of gas stations owned by
producers of petroleum (oil companies)?
Under Pike: uniform? Yes. State interest? Stabilize
market. Degree of interference with interstate
commerce? Apparently not, b/c of (2) & (3).
Under Brown: favor local interests? Apparently not,
b/c of (1) & (4).
4 Holding:
(1) No discrimination against interstate
refineries in favor of local refineries (b/c
there are no local refineries).
(2) Not all interstate service stations are
banned, only those owned by the
companies. Have not banned the entire
interstate market – only have to
discriminate against certain segments of the
market.
(3) The flow of gas into Maryland hasn’t been
affected (same amount of gas will be
coming across state lines).
(4) Unsubstantiated argument that the statute
was designed to protect independent dealers
from out of state competition.
Wal-Mart v. City of
Turlock
483 F. Supp. 2d
987
Constitutional
CA city zoning ordinance that prohibited
the development of discount superstores.
It banned store exceeding 100,000 sq. ft.
of which 5% was grocery section
(apparently after Wal-Mart). City claimed
it wanted better air quality, less traffic,
and no urban blight.
ISSUE: Can city ban stores exceeding
size requirements to protect against traffic
and economic interests?
Blackmun’s dissent here is an exact replica of his
majority opinion in Lewis v. BT Investment (which
overrules Exxon, sort of, but Exxon is still good law)
Yes. Valid exercise of police power. State was
protecting small business. City argued that Wal-Mart
already had one store there. In order to strike down a
facially neutral state law under the dormant CC, the
burdens on IC must outweigh the benefits to make
law unreasonable.
Pike:
Interference: Wal-Mart can’t come in.
Legit state interest: traffic & pollution
(alternatives?). Constitutional; Relied on Exxon v.
Governor of Maryland.
60
Island Silver & Spice
v. Islamorada
475 F. Supp. 2d
1281
Unconstitutional
A city in the Florida Keys (Islamorada)
has an ordinance the prohibits retail chain
stores from opening in the city if they do
not have a street level business frontage
exceeding 50 ft. and cannot have more
than 2,000 sq. ft. of floor area. ISS is
trying to sell their store to Walgreens, but
Walgreens doesn’t meet the criteria.
ISSUE: Can city pass a law that requires
stores to stay within certain size
requirements that national chain stores
can never be able to do?
Owns small store and wants to sell it to
Starbucks. Islamorada has a similar
ordinance (formula) to restaurants that it
had to retail stores. Same state interest:
preserve small town environment.
Cachia v. Islamorada
Construction Industry
Association of Sonoma
County v. Petaluma
542 F.3d 839
522 F. 2d 897
Unconstitutional
Constitutional
ISSUE: Can city pass a law that states a
formula for restaurants that national
restaurants can never be able to do?
City in CA puts a quota on home
construction for a 5 year period (can only
build certain amount of residential homes
a year). The Plan is meant to correct the
imbalance between single-family and
multi-family dwellings, and curb City
sprawl. Quota is not to exceed 500
dwelling units per year. Construction
industry brings suit alleging a violation of
the CC.
Dean milk doesn’t work here because there is already
a small Wal-Mart there (wasn’t prevented access).
No. Even though on its face the ordinance allows
formula retail stores, in actuality, the ordinance
eliminates national retain chain stores b/c they can’t
operate within the strict size constraints while local
businesses can choose to downsize their stores. It
discriminates in its purpose and effect.
-Brown-Forman: protectionist.
Effect: discriminates b/w local and national business
Purpose: keep out national retail chain stores from
putting mom and pop stores out of business
-Pike: uniform.
The local interest to reserve the small town
environment is different then what the town actually
looks like (crappy town). Contrary to Wal-Mart v.
Turlock.
No. Court held it imposed more than indirect burden
on IC & had the effect of discriminating against IC.
Remanded to consider:
(1) Whether the ordinance's stated interests
constituted a legitimate local purpose;
(2) Whether the prohibition of formula restaurants
adequately served such purpose; or
(3) Whether defendant could demonstrate the
unavailability of nondiscriminatory alternatives, such
as zoning ordinances or building codes, to fulfill the
same needs. (Islamorada probably won’t win).
Yes. Apply Pike:
The Petaluma Plan represents a reasonable and
legitimate exercise of the police power and does not
impermissibly burden interstate commerce.
Valid social and environmental protection (high state
interest).
SEE REGULATORY TAKINGS
ISSUE: May a city place a quota on the
61
number of homes you can construct?
Walgreen v. Rullan
405 F.3d 50
Unconstitutional
Statute requires all pharmacies seeking to
open or relocate within Puerto Rico
obtain a certificate of necessity and
convenience if within one mile of an
existing pharmacy. Puerto Rico argues
that area is already being served
adequately by Puerto Rican pharmacies.
No. Although on its face, the statute applied
neutrally, the Act discriminated against IC by
attempting to stop competition.
Held invalid under Brown-Forman (protecting instate over out-of-state).
ISSUE: May Puerto Rico stop
competition by limiting foreign
competitors from entering the market?
Minnesota v. Clover
Leaf Creamery
State law bans retail sale of milk in
plastic nonreturnable containers, but
permits sales in nonreturnable containers
made of pulpwood (cardboard). Just so
happens that state is a large producer of
pulpwood (and out-of-state plastic
industry is getting screwed).
449 U.S. 456
Constitutional
ISSUE: Can a state require milk to be
sold only be in pulpwood containers
when that resource is a major state
product?
Yes. Statute upheld b/c state had a valid
environmental reason – dealing with solid waste
management. The law was not discriminatory in its
purpose or effect, treating all milk producers
evenhandedly. No milk producer (in-state or out-ofstate) could sell milk in plastic container.
Pike: Balance environment (state) v. interstate
commerce. Environment wins.
Once Court finds the state interest is legitimate, then
it can’t look at the motive behind it.
(CC only protects the interstate market, not particular
interstate firms).
WINE CASES
Granholm v. Heald
544 U.S. 460
Unconstitutional
MI statute allowed in-state wineries to
make direct sales (shipping) to MI
customers but doesn’t allow this for outof-state wineries, except if they build a
warehouse in-state, & only allows out-ofstate wineries make sales through
wholesalers and retailers at greater price.
Claimed statute was to prevent underage
kids from buying wine.
No. Court held that state laws allowing in-state
wineries to sell wine directly to in-state consumer
but barred out-of-state wineries from doing so – or
made such sales economically impractical – violated
dormant commerce clause.
ISSUE: May state provide different rules
Not a valid state interest – prevent kids from buying
Applied Brown-Forman – favoring in-state over outof-state (protecting local interests – in-state
wineries).
62
for direct shipment of wines b/w in-state
and out-of-state wineries?
National Railroad
Passenger Corp. v.
Miller
Cherry Hill Vineyards
v. Lilly
Family Wine Makers
of California v. Jenkins
358 F. Supp 1321
553 F.3d 423
210 WL 118387
Constitutional
Unconstitutional
Unconstitutional
Kansas puts agents on Amtrak train.
When train is going through Kansas,
arrest those that sell booze (Kansas was
dry at the time).
ISSUE: May a state prohibit the transfer
and sale of liquor while passing through?
KY statute prohibits direct shipment of
wine to consumers from out-of-state
small farm wineries unless wine was
purchased in person from small farm
wineries. State claims it was to stop sells
to minors. Oregon winery sues.
ISSUE: Can state prohibit direct shipment
of wine to consumers from out-of-state
unless it was purchased in person at
winery?
MA statute that says small wineries
producing less than 30,000 gallons a year
gets shipped directly to consumers, can
use wholesalers, and can use retailers. If
over 30,000 gallons, have to choose b/w
selling to wholesalers or shipping directly
to consumers.
ISSUE: May MA give more options of
sale to smaller wineries than to larger
wineries?
wine isn’t good, no evidence that it is a problem.
Also, age verification upon delivery of wine is a
reasonable nondiscriminatory means
Yes, b/c of the 21st Amendment, which repealed
national prohibition, but allowed States to prohibit
transportation or use of liquor if they had the law –
concurrent rights to states to regulate alcohol.
No. Court held in-person purchase requirement for
direct shipments discriminated against interstate
commerce. Since consumer had to purchase wine at
the winery, why would they not just buy from an instate winery when they don’t have to go in-person to
make purchase.
Brown-Forman applied – favoring in-state over outof-state.
Same state interest analysis as Granholm.
No. Apply Brown-Forman: favors in-state over outof-state (protectionist).
Jorling – Not a MA winery that sells over 30,000
gallons.
THE MODERN APPROACH FOR EVALUATING FACIALLY NEUTRAL LAWS WITH A DISPROPORTIONATE ADVERSE EFFECT ON
COMMERCE:
Iowa statute prohibits the use of 65 ft.
Yes. Court struck it down b/c safety reasons are
double trailer trucks on state highways.
minimal in light of discrimination against IC. NO
Large common carrier brings suit. State
majority opinion (4-2-3).
claims statute is meant to protect highway
Kassel v. Consolidated
Freightways Corp.
450 U.S. 662
Unconstitutional safety.
 4 Justices: apply Pike balancing and rule in
favor of trucking company b/c of burden on IC.
ISSUE: Does a State statute that prohibits
State interest – safety, but no clear evidence that
the use of certain large trucks within the
statute makes highway safer (no deference).
State unconstitutionally burden IC?
 2 Justices (Brennan): require that regulation be
63

“more than illusory” to be valid.
3 Justices dissent (Rehnquist): safety benefits
must be “slight indeed.” Ok if the state interest
is more than illusory.
5 justices do NOT follow Pike in this decision, thus
not giving the state deference.
Kassel test (“more than illusory”) only applies
when state safety laws interfere w/ modes of
transport (must be more than illusory) (and always
involve a high interest in traffic and RR safety).
Most recent decision in this area.
American Trucking
Ass’n. v. Larson
683 F.2d 787
Constitutional
Trucking companies brought action
against state transportation officials
seeking to have a statute, which required
all trucks passing through PA to be
inspected for safety by PA or another
state declared unconstitutional. State
statute requires truck to display safety
inspection sticker.
Yes. Court held that the statute was constitutional
because it was reasonably related to public safety
and was not unduly burdensome.
ISSUE: May PA require trucks to display
safety sticker?
Note: Would pass Kassel “more than illusory” test,
b/c it is a much lower standard. States will always
win (may be some health benefits).
Non-discriminatory highway safety statutes must be
given a more deferential treatment, and may not be
overturned absent a showing that the safety benefits
are slight, problematic, or illusory.
Compare with Whitman.
American Truck Ass’n
v. Whitman
CC Extras…
NJ’s requires out-of-state truckers to use
No. favors local interests. Discriminatory against IC
the interstate system (not NJ highways).
on its face and its effects.
Also, if you are coming through NJ from
another state, you can only get off
B/c it is discriminatory, highway safety statute is not
interstate for food, rest, and fuel. Doesn’t
given deferential treatment. Thus, subject to strict
437 F.3d 313
Unconstitutional apply to in-state trucks. NJ says it’s a
scrutiny.
safety issue.
ISSUE: May NJ require out-of-state
trucker to only exit the interstate for food,
rest, and fuel, and not require this of instate truckers?
 Maine is thinking about putting labels warning cell phones may cause brain power.
64

o Interstate Commerce interference? Yes; b/c of labeling (Hunt)
o Under Pike: Is there a state interest? Only if ME can show evidence that cell phones actually cause cancer.
There's some law requiring dairy products to label products where the cow was injected with steroid. Hypothetical: could a state require
a law forcing all milk products show the county of origin? Constitutional?
o If passed by federal gov’t: They unhealthy milk is coming in from other countries (local dairy farmers are pushing this
through).
 Lopez test: economic in nature? Yes. Probably be ok
o If passed by state gov’t, probably be unconstitutional.
PRIVILEGES AND IMMUNITIES CLAUSE OF ART. IV:
Art. IV § 2 states: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Like the DCC, it serves as a restraint
on state efforts to bar out-of-staters from access to local resources. This clause protects citizens against discrimination on the basis of state residency.
Standard of Review: Intermediate Scrutiny
Differences b/t PIC of Art. IV and the DCC:
1. Corporations enjoy no protection under the PIC.
2. Congress may authorize, through affirmative exercise of its commerce power, state practices that would otherwise be impermissible under the DCC; the PIC
is arguably a rights provision that Congress may not waive.
3. The PIC does not extend to all commercial activity but only to the exercise of “fundamental rights.”
4. The Court has declined to recognize any “market participant” exception under the PIC as it has under DCC review.
PIC of Art. IV is different from PIC of 14 th Amendment:
 PIC of Art. IV protects out of state citizens from unreasonable discrimination in regard to their fundamental national rights, interests which concern the
Nation’s vitality as a single entity. THE STATE LAW FACIALLY FAVORS IN STATE OVER OUT OF STATE.
 It requires that when a state confers a benefit on its own citizens, it cannot deny that same benefit to out-of-state citizens unless it demonstrates a
substantial justification. This means that a state must establish that non-residents are a particular source of the problem that the state is seeking to remedy
and that the law bears a substantial relationship to the eradication of the problem.
 THRESHOLD ISSUE: PIC Art. IV requires that there be a fundamental interest at stake.
****EXAM TRIGGER: facts that could be resolved through a CC analysis may be equally responsive to resolution under PIC of Art. IV
- Fundamental Rights discussed in some cases below  right to travel, right to work, and right to use land
Note: like Dean Milk & Camden: municipal ordinance discriminating against in-state and out-of-state residents can be a bill of attainder case (but, before you can have
a bill of attainder case, you have to have a statute that discriminates against non-residents on its face).
Paul v. Virginia
VA law prohibiting out-of-state insurance Art. IV PIC does NOT apply to corporations. And, it
75 U.S. 168
Constitutional
companies from operating in VA.
only protects fundamental rights.
NJ town ordinance required 40% of
No. Analysis for PIC violations:
employees of construction company
 First, the state law must discriminate,
United Building and
working on city projects to be residents of
favoring in-state residents over out-of-state.
465 U.S. 208
Construction Trades v.
Unconstitutional city.
 Then, use the test to see if the privileges
Camden
and immunities bear upon the vitality of
ISSUE: May the city take advantage of
the Nation as a single entity.
the market participant exception to
65
exempt itself from the PIC violation?
o If so, then it will be struck down.
Right: the right to work – the right protected in this
case is the fundamental right to have a job.
Rights of employment are protected (Toomer)
-Reason: the city is attempting to increase
employment rates of their residents (unemployment).
Corfield v. Coryell
4 Wash. C. C. 371
Constitutional
NJ law prohibiting any vessel from raking
the oyster beds from May to Sept. and the
rest of the time it can only be done using
a vessel owned by a citizen of the state.
Out-of-state P dredged the beds and his
vessel was confiscated by the magistrates
of the county as punishment.
ISSUE: What rights are protected by the
Privileges and Immunities Clause of Art.
IV?
NH law limited bar admissions to state
residents. An attorney who lived 400
yards from state border was denied
admission.
Supreme Court of New
Hampshire v. Piper
470 U.S. 274
Unconstitutional
ISSUE: May NH restrict state bar
admission to only in-state residents under
the PIC of Art. IV?
Camden’s privileges and immunities (preference of
town employees) bearing upon the vitality of the
nation as a single entity.
**Market Participant Exception does not apply to
violations of P&I Clause of Art. IV.
Camden Footnote 1: dissent says non-residents of
Camden who can’t get a job b/c of hiring limitation
has enough political strength in state to change it to
protect out of state residents.
-Camden could be a commerce clause case b/c less
people from out of state were going to Camden.
Bushrod Washington (George Washington’s cousin);
Art. IV PIC: Privileges and Immunities protected are
those that are fundamental rights (rights of free men
– liberal approach – natural rights).
 Protection by the gov’t
 The right to possess & acquire property
 To pursue & obtain happiness & safety
This is reading rights into the Constitution that aren’t
explicitly there – a liberal view.
Art. IV PIC: prevents states from denying rights of
national citizenship; wanting national unity.
No. The threshold issue for determining whether
there is a PIC violation or not  must involve a
fundamental right that the state is trying to regulate.
Private employment is sufficiently “fundamental” to
constitute such a privilege.
- A state rule limiting bar admission to in-state
residents violated the P&I Clause.
-Practice of law is important to the national economy
Steps:
(1) Discriminatory Law: the state law must
discriminate, favoring in-state residents over out-of-
66
Alaska law required residents be
preferred over non-residents for oil & gas
pipeline-related jobs.
ISSUE: May Alaska implement a state
hiring plan that prefers in-state residents?
Hicklin v. Orbeck
S.C. State Highway
Department v.
Barnwell Bros
437 U.S. 518
303 U.S. 177
Unconstitutional
Constitutional /
no longer good
law, modified by
Kassel
State law prohibits use of state highway
of motor trucks and semi-trailer motor
trucks whose width exceeds 90 ft. and
whose weight exceeds 20,000 lbs. Law
excludes 85-90 % of motor trucks used in
interstate transport. State law is passed to
protect roads, and promote highway
safety since width obstructs driver’s view.
ISSUE: May South Carolina regulate
width and weight of interstate carriers on
state
(2) Fundamental Right/Activity  privileges of
interstate citizenship – important to the national
economy.
(3) Substantial State Interest – justification:
P&I Clause does not preclude discrimination
against nonresidents where:
(3)(a) There is a substantial reason for the
difference in treatment; AND
(3)(b) The discrimination practiced against
nonresidents bears a substantial relationship to
the State’s objective, AND
(3)(c)There are no less discriminatory alternatives
*If you have fundamental right: test  substantial
reason.
*Scope and Limits of Interstate Privileges and
Immunities: Only fundamental activities are
“privileges” of interstate citizenship.
No. This involves the fundamental right to work.
Law may still be valid if passes Piper 3-part test.
Court found no sub. reason for differential treatment
b/c the state’s unemployment problem was not due
to out-of-state citizens, but to a lack of training.
Rehnquist Test:
(1) Statute must be discriminating;
(2) Right that bears on vitality of nation as whole.
(One of those rights is employment).
(3) State must prove there’s a substantial reason for
what they’re doing or the out of state presence must
be an evil.
*You can’t carry over this right to work to other
parts of the Const. – only applied to Art. IV PIC.
Yes. State may impose non-discriminatory
restrictions with respect to the character of motor
vehicles moving in IC as a safety measure and as a
means of securing the economical use of its
highways; so statute falls into the category of health
and safety even though statute materially affects IC.
SC provided a rational basis for the statute.
Footnote: the political process isn’t sufficient to
protect the plaintiffs (out of state trucking
companies) b/c they don’t have voting power within
67
its highways?
SC law imposes license fee of $25 for instate commercial fisherman & $2,500 for
out-of-state commercial fisherman.
Toomer v. Witsell
Baldwin v. Montana
Fish and Game
Commission
Mullaney v. Anderson
Bach v. Pataki
Reitz v. Kipper
334 U.S. 385
Unconstitutional
ISSUE: May SC charge a substantially
different amount for license fees for instate people compared to out-of-state
people?
MT statute regulating elk hunting. $30
license fee for in-state residents; $225 fee
for out-of-state residents.
436 U.S. 371
Constitutional
ISSUE: May Montana demand higher
prices of out-of-state residents for an elkhunting license?
Alaska statute distinguishing between in
and out of state commercial fishermen for
licensing fees (higher fees for out-of-state
- $50 as opposed to $5).
191 F.2d 123
408 F.3d 75
674 F. Supp. 2d
1194
Unconstitutional
Constitutional
Unconstitutional
ISSUE: May AK charge a higher fee for
out-of-state commercial fishermen?
Bach’s parents live in NYC. He has a
license to carry a gun in VA (he’s a
Special Forces guy) but in NY nonresidents cannot have gun (residents can
have gun).
ISSUE: Does NYC have a substantial
reason to prohibit non-residents from
having a gun?
NV law prohibiting out of state insurance
adjusters to adjust claims in NV unless
state. (Compare this with Camden – 6 mo.’s after
this decision upholding regulation, SC changed its
law b/c out of state truckers were boycotting SC).
No. The law is struck down b/c it discriminated
against out-of-state citizens through license fee.
Violated PIC of Art. IV – dealt w/ the fundamental
right to work – everyone has this right, therefore
unconstitutional.
Recognize a fundamental Right to Work
Yes. There is no fundamental right to recreation elk
hunting by nonresidents in the state. Contrast w/
Toomer, which involved commercial fishing), not
recreational fishing.
Recreational hunting/fishing is not a fundamental
right.
No. Court held fee invalid under the CC. The
movement of fishermen into AK constituted IC., and
the effect of the fee burdens interstate movement.
Also, the disparity in fees is not justified by the cost
of enforcement.
Said it violates the commerce clause. Didn’t employ
a P&I test.
P&I clause is a different test: fundamental right, the
state has to show substantial reason
Note: most lower courts use both commerce clause
and P&I clause tests.
Yes.
Substantial Reason: Obligation to monitor & report
who has guns and if you’re from out of state you
can’t monitor.
No.
68
the out of state insurance adjuster lives
within 50 miles of the NV border.
ISSUE: Does Nevada have a substantial
state interest?
VA statute that allows lawyers admitted
to the bar in other states to be admitted to
the Virginia bar without taking the bar
VA if they were a permanent resident of
VA.
Supreme Court of
Virginia v. Friedman
Lundling v. New York
Tax Appeals Tribunal
Markham v. Comstock
ISSUE: Does Virginia have a substantial
state interest?
487 U.S. 59
522 U.S. 287
708 N.Y.S. 2d 674
Unconstitutional
Unconstitutional
Constitutional
NY tax statute discriminated against nonresidents by not allowing them a pro rata
tax deduction for alimony expenses. CT
citizen is liable for NY tax, he got a
divorce, but his alimony payments aren’t
deductible.
ISSUE: Do state taxes bear on the vitality
of the nation as a whole?
Tax exemption for primary residence.
Can’t get it for your second home.
Piper:
- The ability to work as insurance adjuster in another
state had to be considered a fundamental right or
privilege protected under the Privileges and
Immunities Clause. Moreover, insurance and
occupations on the industry are important to the
national economy.
Substantial state interest: Claims it’s for protection
of people of state (want geographic proximity: if you
want an insurance adjuster, you want him to arrive
quickly).
- geographic proximity not sufficiently substantial.
- law not closely related to state interest (what’s the
difference b/w living 51 miles from border and 400
miles away in-state?).
No. practice of law is fundamental right, with no
substantial state interest to discriminate.
The practice of law was sufficiently basic to the
national economy under the P&I clause, and that the
residency requirement burdened that privilege by
discriminating among otherwise equally qualified
applicants solely on the basis of citizenship or
residency.
Substantial state interest: the requirement ensured
that admitted attorneys were committed to the
community,
Rejected… there was no reason to assume that
nonresident attorneys would lack adequate incentives
to remain abreast of changes in Virginia law or to
fulfill their civic duties
Yes. Court held that NY tax statute violated the PIC
of Art. IV b/c it denied citizens of other states the
privileges and immunities enjoyed by the citizens of
New York.
Fundamental Right: tax liability – to be free from tax
discrimination
No. Not facially discriminatory b/c it applied to
property that was not the owner's primary residence
69
Nonresident wants the tax exemption for
his summer house.
Igoe v. Pataki
Salem Blue Collar
Workers v. Salem
Note:
N.J. Lawyer's Action
Claiming N.Y.
Discriminates Against
Out-of-State Attorneys
whether the owner was a New York resident or not.
Because residents and nonresidents were treated
alike, P&I Clause was not implicated.
ISSUE: Is this law facially
discriminatory?
NY Commuter Tax – nonresident of NY
No.
state (and not residents of NY state) who
commute to NYC must pay a commuter
P&I Clause: substantial reason, must show
tax. NY saying it’s trying to equalize
commuter tax was equitable to NYC residents tax,
696 N.Y.S.2d 355
Unconstitutional taxes in NYC for in-state residents to
which it wasn’t.
further their careers, who have to pay
higher general taxes.
Note: under the CC, It fails the 3-part test for
ISSUE: For P&I clause, is this a
compensatory/ equalization taxes.
substantial state reason?
City ordinance required city employees to No. Court held that ordinance did not violate PIC of
live in the city; otherwise, they can’t
Art. IV b/c there was not a privilege or fundamental
33 F. 3d 265
Constitutional
work for the city (fire, police dept.).
right to municipal employment protected by the
ISSUE: Does PIC of Art. IV protect the
Constitution.
right to municipal employment?
-No fundamental right to public employment.
May move forward with her claim that New York law unconstitutionally discriminates against out-of-state lawyers by requiring them to
maintain an office in New York if they want to practice law here. Allowed to present arguments about whether New York's office rule for
out-of-state attorneys violates her rights under the P&I Clause because the state imposes no similar office-maintenance requirement on
attorneys who are New York residents. The judge held that while the U.S. Supreme Court has given wide latitude to states to set rules
regulating the practice of law, it has not held that discretion to be absolute. The Judge cited Supreme Court of New Hampshire v. Piper, and
Supreme Court of Virginia v. Friedman, as two examples where the U.S. Supreme Court found privileges and immunities clause violations
by state-established residency requirements for attorneys. He held that NJ Lawyer is equating New York's office-maintenance requirement,
to the residency requirements criticized in Piper and other cases.
Opinion:"A nonresident attorney, who passes a state's bar exam and otherwise qualifies to practice law within that state, has an interest in
practicing law that is protected by the privileges and immunities clause… Plaintiff has alleged sufficient facts to assert a protected interest in
practicing law in New York… Plaintiff correctly notes that she need not violate and be prosecuted for the violation of a statute in order to
maintain an action challenging the statute's constitutionality… She has alleged sufficient facts for the Court to find a 'substantial controversy
admitting of special relief' exists."
PRIVLEGES AND IMMUNITIES CLAUSE OF THE 14TH AMENDMENT:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens in 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.”
IMPORTANT: PIC of 14th Amendment failed as a vehicle for expanded federal constitutional limitations on the states (by applying the Bill of Rights to the states)
due to the Court’s decision in the Slaughterhouse Cases. Instead, the 14th amendment Due Process Clause became the tool whereby various fundamental guarantees of
the Bill of Rights were “incorporated” and made applicable to the states. More than a century after the Slaughterhouse Cases, the Court resurrected the PIC of the 14 th
amendment in Saenz v. Roe.
Barron v. Mayor and
32 U.S. 243
Unconstitutional Barron brought suit against city for
Ct. found the just compensation provision in 5th
City Council of
today
ruining the use of his wharf in Baltimore
Amend. was intended solely as limitation on the
70
Baltimore
Slaughterhouse Cases
83 U.S. 36
Constitutional
harbor; city had deposited large masses of
earth and sand near the wharf making
water too shallow for boats. Barron
claimed that the state’s action violated the
5th Amendment guarantee that private
property shall not be taken for public use
without just compensation.
LA law passed to “protect health of the
city” forbade the slaughtering of animals
for food within the city of New Orleans
and gave one company sole privilege of
slaughtering animals. Law was created
b/c typhus was spreading throughout city
& there were over 1000 butchers
throughout city and blood was all in
streets; wanted to decrease number of
butchers and attempted increased health
in city.
Butchers of New Orleans argued that
statute created a monopoly and deprived
butchers of the city the right to exercise
their trade.
ISSUE: Does the state’s giving a
corporation exclusive rights to operate
butcher facilities in New Orleans
independent butchers of their livelihood?
State law denied all welfare benefits to
new state residents during the first year of
residence.
Shapiro v. Thompson
394 U.S. 618
Unconstitutional
ISSUE: May a state deny welfare benefits
to all new residents until they live in state
for more than a year?
exercise of power by U.S. gov’t & is not applicable
to the legislation of the states.
Bill of Rights restricted only the national gov’t, not
the states.
-This is no longer good law b/c Bill of Rights has
been incorporated into the Constitution; therefore it
applies to ALL states.
No. Supreme Court sustained the law finding that the
state had the exclusive right under its police power to
determine the localities where slaughtering for the
city could be conducted to protect the health, safety
and welfare of the public. Court said that the PIC of
the 14th amendment was not meant to extend all the
fundamental rights traditionally associated w/ the
state citizenship to the national citizenship. Congress
and the Court were not to become the perpetual
censors of state legislation.
**14th Amendment PIC – the rights are already in the
Constitution. Strict approach – doesn’t recognize
fundamental rights under the PIC that are not in the
constitution (Rights are specifically enumerated)
**14th Am. applies to citizens of the United States,
not citizens of the state.
**Privileges and immunities of citizens of the
state are protected by the State (via 4 th Am.), not
the P&I clause of 14th Am.
-The 13th amendment is not violated b/c butchers are
not required to be butchers; they can seek other jobs.
-The slaughterhouse monopoly violated neither the
due process nor the equal protection clauses of the
14th Amendment.
Dissent: Bushrod Washington fundamental rights.
No. There is a right to travel which is infringed when
the state denies a necessity of life. A state is only
allowed to interfere w/ this right if it can show that
there it is necessary to promote a compelling
governmental interest.
There is a right to travel. Denial of welfare is a
denial of one of the necessities of life.
Seminal Decision: Durational Residency
Requirements discourage interstate travel, especially
71
migration.
NON-PORTABLE BENEFIT.
AZ required one year residency in a
county for indigents to receive free
nonemergency hospitalization or medical
care. Here, P had not lived in AZ for one
year and was thus not eligible for the free
medical care.
Memorial Hospital v.
Maricopa County
415 U.S. 250
Unconstitutional
ISSUE: May a state deny those having
not lived in state for a year free medical
service?
CA law limits a new resident in CA, for
the first year in the state, to receiving
welfare benefits at the level of their
previous state of residence.
Saenz v. Roe
526 U.S. 489
Unconstitutional
ISSUE: May states limit welfare
payments to a first-year resident to that
received in his previous state of
residence?
No. Like welfare benefits in Shapiro, medical care is
a necessity of life. To not provide P with a necessity
of life simply because she had not lived in AZ for
one year is unconstitutional. This infringes on the
fundamental right to travel.
Denial of emergency medical care is like denying
welfare (necessities of life).
NON-PORTABLE BENEFIT.
No. 7-2 decision.
There is a Right to Travel (which is a fundamental
right, triggering strict scrutiny).
3 Ways the Right to Travel Guarantees Rights
(1) The right of a citizen of one State to enter and
to leave another State
o Edwards v. California (enter)
o Crandall v. Nevada (leave)
(2) The right to be treated as a welcome visitor
rather than an unfriendly alien when
temporarily present in the second State, and
72
o Art. IV P&I Clause.
(3) For those travelers who elect to become a
permanent resident, the right to be treated
like other citizens of that State.
o Saenz v. Roe – 14th Am. PIC
Citizens of one state should be treated the same way
as citizens of that state. (The only right that is added
to PIC not in the constitution!)
Just have to show domiciled with intent to remain…
therefore should give the same amount of welfare in
state and other states
MODERN TEST: State can constitutionally
discriminate against portable benefits under PIC of
14th amend, but not against non-portable benefits.
If the benefit is portable  doesn’t apply
Ex: Divorce (Sosna) and college education are
portable (you can get it and leave).
NON-PORTABLE BENEFITS PROTECTED BY
PIC OF 14TH AMEND.
Sosna v. Iowa
Starns v. Malkerson
419 U.S. 393
401 U.S. 985
Constitutional
Constitutional
Law refusing divorce to residents until
they’d lived there a year
ISSUE: May a state deny those not
having lived in state for a year access to a
divorce?
Residency requirements of colleges –
must live in state 1 year before you can
obtain in-state residency status. Women
were paying out-of-state tuition, but they
had lived in-state but never transferred
their residency to the state.
ISSUE: May a state require a one year
waiting period to obtain in-state tuition?
Note: Article IV does not apply because the State
was not discriminating against in-state and out of
staters, but instead to new vs. long term residents.
The requirement is permissible because a divorce is
not a necessity of life like medical care. The denial is
upheld. The law just delayed her access to the courts.
PORTABLE BENEFIT.
Yes. One-year waiting period for resident status for
tuition purposes at state university did not have
specific objective of excluding or deterring out-ofstate students from attending university nor did it
affect their constitutional right to travel.
Rights bearing on vitality of nation as whole. Does
it? Could argue college education does bear on
vitality of nation as whole, but Supreme Court
doesn’t buy it, so No.
73
A state sex offender law was passed that
stated a convicted sex offender could not
live within 2,000 ft. of any school or child
care facility. A man brings suit claiming
that he can’t find anywhere to live in
some cities due to those restrictions.
Doe v. Miller
405 F.3d 700
Constitutional
ISSUE: Has the state violated the man’s
right to travel b/c they have set these
harsh restrictions on him?
Didn’t affect right to travel… College education is
not a necessity of life.
PORTABLE BENEFIT
No. The Court held that the restrictions did not
interfere with a sex offenders right to travel b/c:
(1) the statute did not impose any obstacle to his
entry into state
(2) it did not erect actual barrier to interstate
movement
(3) and it did not treat nonresidents who visited
Iowa any differently than current residents or
discriminate against citizens of other states who
wished to establish residence in Iowa
The state’s interest in protecting children from sex
offenders overrides his right to travel.
SEE SUBSTANTIVE DUE PROCESS (under
Moore v. East Cleveland).
CONSTITUTIONAL INTERPRETATION OF THE 13th AMENDMENT: INVOLUNTARY SERVITUDE
13th Amendment – neither slavery or involuntary servitude will exist in the U.S.
Two mentally retarded men were held in
Not sure. Case was remanded. Court held that for
involuntary servitude working 17
purposes of criminal prosecution, “involuntary
hours/day, 7 days/week with no pay on a
servitude” meant a condition of servitude in which
Michigan dairy farm.
the victim was forced to work by (requires either):
(1) The use or threat of physical restraint or
487 U.S. 931
U.S. v. Kozminski
Constitutional
ISSUE: Is it involuntary servitude to
physical injury, or
work mentally retarded men 24/7 without (2) By the use or threat of coercion through law
pay?
or legal process.
Example of threat of law: paying illegal immigrant
house maid low wages, or nothing; if she complains,
threaten to turn her in to the immigration services.
DUE PROCESS:
The Due Process Clauses of the 5th and 14th Amendments restrict the substance as well as the procedures of governmental regulation.
14th Am. (applies to states) and 5th Am. (applies to federal government) both have PROCEDURAL due process clauses.
- Procedural Due Process – Can’t be deprived of life, liberty, or property without due process.
-
Substantive Due Process – doing things under the 14th & 5th amendment that they refused to do under Slaughterhouse Cases. Dreaming up a right and
ramming it down your throat.
74
SUBSTANTIVE DUE PROCESS AND ECONOMIC LIBERTIES:
The Court has withdrawn from careful scrutiny of most economic regulations but has increased intervention as to laws infringing privacy and other noneconomic
personal interests not explicitly protected by the Constitution.
Modern Rule: These types of cases will be given the minimum rational basis standard from Carolene Products. (Low, low scrutiny)
Modern Test: Guarantee of due process demands only that the law shall not be (1) unreasonable, (2) arbitrary, or (3) capricious, and that the means selected have a
real and substantial relation to the object sought to be attained.
PRE-LOCHNER ERA:
States can regulate through their police power if it is an industry affecting public interest, but still can’t deprive people of life, liberty, property, w/o due process of
law.
CT law set aside a probate court decree
Cochran: “Substantive Due Process is when the
that refused to enforce a will. Law
Supreme Court dreams up a right and rams it
required a new hearing where the will
down your throat.”
was approved. The heirs who would have
taken the property if the will had been
This case is like Corfield (b/c dealing with rights
found ineffective challenged the law.
not in the Constitution) and Budd v. New York
(gov’t regulation is defined as odious; limitation
and duty of gov’t is to give liberty to each person
and protect him and his property).
3 U.S. 386
Calder v. Bull
Constitutional
Court embraced natural law tradition – viewed
constitution as reaffirming preexisting
fundamental rights that were entitled to protection
whether or not they were explicitly stated in the
Constitution – rights known to all free men
(Bushrod Washington).
Laying aside specific constitutional provisions,
there is natural law that courts can use to say crazy
laws on their face are unconstitutional (“I know it
when I see it” – inherently bad laws).
Background: depression & Grainger
Yes. This was the first case to uphold a state’s
movement (farmers getting ripped off by
ability to limit corporate activity. The Court
RR’s). Grain elevators in Chicago right
upheld the regulation b/c the state’s police power
by the RR tracks & next to dock on the
included private use of property or corporate
lake where ships bring in grain. 6 people
activities when such regulation is necessary for
Munn v. Illinois
94 U.S. 113
Constitutional
own grain elevators for farmers to store
the public good (or the regulation is “clothed in
grain, so they can charge whatever they
the public interest”). Grain elevators were a
want to. State law regulates the price of
business “affected with a public interest.”
storage in grain elevators.
Storage monopolies fit into that category.
75
New State Ice Co. v.
Liebmann
285 U.S. 262
ISSUE: May the state regulate the rates of
grain elevators by imposing a maximum
rate?
Upheld, because it is a business affected with a
public interest. Can only regulate private property
when in the public interest.
OK law treated the manufacturer of ice
like a public utility, requiring a certificate
of convenience and necessity to enter the
business.
Could Congress have also regulated this? Yes,
according to Lopez  its economic, a facility of
IC, and in the stream of commerce.
No. The Court invalidated this restraint on
business entry due to SDP. The ice business was
not a “business affected with a public interest” as
in Munn v. Illinois.
Unconstitutional
ISSUE: May Illinois regulate business
entry of the ice-making business?
Can’t treat it as a public utility, you don’t know
what a public utility is! Court says what’s in the
public utility interest and what’s not.
State law prohibiting the manufacturing
of booze was challenged as violating
SDP.
Yes. The Court sustained the law but announced
that it was prepared to examine the substantive
reasonableness of the state legislation. The Court
said that not every statute that is passed for the
public good is passed for that sole reason. The
Court would no longer be misled by mere
pretenses.
ISSUE: May the state prohibit the
manufacturing of booze?
Mugler v. Kansas
123 U.S. 623
Constitutional
If a purported exercise of police power has no real
or substantial relation OR is a palpable invasion of
rights secured by fundamental law, it is the duty of
the courts to so judge.
Can find out real motive to see if proper exercise
of police power.
Santa Clara Co. v.
Southern Pacific
Railroad
Allgeyer v. Louisiana
118 U.S. 394
165 U.S. 578
Unconstitutional
Unconstitutional
Federal and State laws regulating a
specific railroad company to enable other
railroads to connect and costs railroad
money.
ISSUE: Are corporations covered under
the Equal Protection Clause of the 14th
Amendment?
LA law prohibiting citizens from
CC violation? Yes under Pike
Yes. Court held that the railroad corporations are
persons with the intent of the Equal Protection
Clause in the 14th amend.
Corporations are persons within the 14th
Amendment.
No. This was the first time the Court invalidated a
76
obtaining insurance on state property
from those that did not have a state
license.
ISSUE: May the state restrict its citizens’
right to contract?
state law on SDP grounds. Law violated the
liberties provision in the 14th amend., which states
that you cannot deprive a person of their liberty
w/o due process of law.
Defined liberty: The right of the citizen to be free
in the enjoyment of all his faculties….and enter
into all contracts which may be proper, necessary,
and essential to his carrying out to a successful
conclusion the purposes above mentioned.
Importance of this case: Court read a right into the
Constitution (the right to contract) and held a law
unconstitutional b/c it violated that right.
LOCHNER ERA:
SC under Lochner Era  most state law relating to businesses will be struck down. Will determine if legislature made correct judgment in regulating the business.
Issue: When a state exercises its police powers by enacting a statute limiting the right to labor or the right to contract, the court must determine whether the right of
the individual to labor for such time as he may choose or the right of the State to prevent the individual from laboring beyond a certain time prescribed by State
should prevail
NY statute made it illegal to work more
No. Supreme Court held that trade of a baker was
than 10 hour days, 60 hour weeks. A
not an unhealthy one to such a degree that would
bakery allowed one of its bakers to work
authorize the legislature to interfere with the right
more than 60 hours in one week in
to labor and the freedom to contract on part of the
violation of NY statute.
individual guaranteed by 14th Amend. It could not
Unconstitutional /
be sustained as a valid exercise of the police power
Overruled by
ISSUE: May the state regulate the hours
to protect the public health, safety, or general
Lochner v. New York
198 U.S. 45
Nebbia
worked by bakery employees?
welfare.
--Test they use to strike down the law is if the
police power is fair and reasonable. State doesn’t
have a sufficient interest to override this right to
contract (regarding labor upon such terms as they
may think best).
Note: pro business court.
OR law providing that no female shall be
Yes. Valid use of state police power. In the public
employed in any factory or laundry for
interest to care for the physical well-being of a
more than 10 hrs/day
woman (different from men, what with all the
Muller v. Oregon
208 U.S. 412
Constitutional
babies). Judicial notice of the historical belief that
ISSUE: May the state regulate the hours
women required protective legislation.
worked by females in a factory setting?
Unconstitutional / Minimum wages for females in any
No. Invalid use of State police power. The law
Adkins v. Children’s
261 U.S. 525
Overruled by
occupation, set by a board.
bears no relation to the capacity of women. This
Hospital
West Coast Hotel
act is an illegal interference with the rights of
77
ISSUE: May the state set minimum wage
laws for women?
individuals to make contracts regarding labor upon
such terms as they may think best.
NY statute established Milk Control
Board with power to fix min. and max.
retail sale prices of milk. D was a
storekeeper convicted of selling milk at
price below the price fixed by Milk
Control Board's order.
Yes. This was a turning point of the Court in 1934
where the Court sustained the price fixing b/c
industry is subject to regulation in the public
interest. A new standard of review is set: Low
Scrutiny Review. From now on, Court will stay
out of state’s economic regulations while giving
Congress more power under the CC.
POST-LOCHNER ERA:
Only involve State regulation of businesses.
Under Substantive Due Process: test is low scrutiny review.
ISSUE: May the state set minimum and
maximum prices for the sale of milk?
Nebbia v. New York
291 U.S. 502
Constitutional
WA statute set minimum wage for
women and minors.
West Coast Hotel Co.
v. Parrish
300 U.S. 379
U.S. v. Carolene
Products
304 U.S. 144
Constitutional
ISSUE: May a state set a minimum wage
law for working women?
Constitutional
Federal statute (Filled Milk Act)
prohibited the shipment of adulterated
TEST: Guarantee of due process demands only
that the law shall not be (1) unreasonable, (2)
arbitrary, or (3) capricious, and that the
selected means shall have a real and substantial
relation to the object sought to be attained.
*STATE MAY HAVE THOUGHT the law was
necessary.
No longer any due process problem, state is free to
adopt any reasonable regulation of business. New
approach: hands off, State is free to adopt any
economic policy they reasonably think to promote
public welfare (can do what they want to regulate
businesses).
--Actually was a misguided law: intent was to
protect dairy farmers during Depression but
actually helped grocers who kept the new profit
and didn’t pass it along to the farmers.
--Is there a CC problem? Out-of-state supplier
wouldn’t be able to compete.
Yes. Low Level Review: Court held WA
minimum wage law valid b/c it was reasonable and
was not arbitrary or capricious but necessary for
decent maintenance of women. It was a valid
exercise of state’s police power to protect the
health and safety of women. Constitution does not
speak of freedom of K.
Yes. Court held that Congress had the power under
the CC to prohibit the shipment of adulterated milk
78
milk in interstate commerce (filled milk –
skimmed milk mixed with non-milk fats).
Carolene products shipped filled milk.
ISSUE: Can Congress prohibit the
shipment of filled milk in IC?
in IC, and that exercise of such power did not
violate due process b/c congress had a rational
basis (public health and welfare) for enacting the
legislation.
Under SDP, the gov’t need not present evidence as
to why it passed the law b/c the Court can just
dream up a good reason (low scrutiny).
CC analysis: Lopez – 3 ways: channels of
commerce? Yes; so plenary.
Law prohibiting opticians from fitting or
duplicating lenses without prescriptions
from optometrists or ophthalmologists.
Another provision prevented retail stores
from renting space to optometrists.
Williamson v. Lee
Optical Co.
Ferguson v. Scrupa
348 U.S. 483
372 U.S. 726
Constitutional
Constitutional
ISSUE: May a state make it unlawful for
any persons (including opticians) who are
not licensed optometrists fit or replace
glasses lenses?
KS law prohibits anyone from engaging
“in the business of debt adjusting” except
as an incident to the lawful practice of
law. Basically, only lawyers can be debt
adjusters.
ISSUE: May the state provide a
monopoly to lawyers for debt adjusting?
Footnote 4: Court is not in the business of
reviewing legislatures through SDP. The Court is
in the business of protecting “personal” civil
rights and liberties of “discrete and insular
minorities,” etc. (individual rights and the
political process).Basically, we are still in the
business reviewing cases for the 10th amendment;
racial & religious cases.
Yes. Low level review: There was no violation of
SDP b/c Court gives deference to the legislature.
Although court might have exacted a needless,
wasteful requirement in many cases, it was for the
legislature, not the courts, to balance the
advantages and disadvantages of the new
requirement. You only need a rational basis.
Test: Low-Level Scrutiny – rational basis review –
“State may have thought…”
Basically, you presume the statute is constitutional
and requires only that statute is rationally related
to a legitimate state interest.
Defining Point for Equal Protection Clause; direct
opposite of Lochner.
Yes. This is an example of low level review/broad
deference to legislative judgments. KS was free to
decide for itself that legislation was needed to deal
with business of debt adjusting. We refuse to sit as
“super legislature to weigh the wisdom of
legislation.”
Now… crazy laws are constitutional, nothing to
hold states back… the state may have thought that
79
lawyers were more honest than others so statute
that only lawyers can be debt collectors is
constitutional… ridiculous!
Powers v. Harris
379 F.3d 1208
Constitutional
P wishes to sell caskets over the Internet
without obtaining a license required by
State law (only licensed undertakers can
sell caskets). P challenged licensing
scheme as a violation of PIC of 14th
Amend, Due Process, and Equal
Protection.
ISSUE: May a state only allow a licensed
director to sell caskets for consumer
protection?
312 F.3d 220
Craigmiles v. Giles
Unconstitutional
State statute only allows licensed funeral
directors to sell caskets. Licensing
requires 2 years of education & training.
37 of the 250 questions on the State
Funeral Exam concern funeral
merchandising.
ISSUE: May a state only allow a licensed
funeral director to sell caskets?
WMX Technologies v.
Gasconade County
105 F.3d 1195
Constitutional
Ordinance regulating garbage dumps
which also violated state law. WMX says
there’s no scientific basis for regulation
of garbage dumps and county officials
knew nothing about garbage (only
enacted b/c unreasonable citizens pissed
about garbage dump expansion). Said the
law was so bad, it violated Substantive
Due Process.
Ferguson shows that no longer did Court interpret
due process clause to protect a right to practice a
trade or profession or freedom of K. The KS law
was an anticompetitive measure to give lawyers a
monopoly in debt adjustments. Nonetheless, Court
proclaimed deference to the legislature and upheld
the law.
Yes. Any rational basis satisfies SDP. The purpose
claimed by the legislature was consumer
protection. Favoring one intrastate industry over
another is a legitimate state interest. Cites
Williamson v. Lee Optical of Oklahoma
(watershed case for Equal Protection Clause)
CC: Pike: uniform on its face; state interest: health
(spread of disease) vs. interstate interference.
Succeeds under Pike.
-Under Dean Milk: statute fails (economic barrier
– favoring local interest).
No. There was no rational relationship to any
legitimate purpose. The justifications here had “the
force of a five-week-old unrefrigerated dead fish.”
The statute meant only to protect economic
interests of licensed funeral directors from retail
price competition. Crazy law.
TEST: If law is so bad (smells worse than a 5
week old refrigerated fish) then is unconstitutional
under SDP.
Economic protectionism does not pass this low
scrutiny review!
Yes. Under rational basis, the purpose of the act is
irrelevant. Conceivable relationship to health
interests.
TEST: if ordinance only applies to persons that
have a first name in the alphabet, then
unconstitutional!!
80

SDP and P&I Clause
Extras…
ISSUE: May they regulate garbage dumps
McDonald v. Chicago (case before the Supreme Court right now about gun control – case Cochran keeps emailing us about)
o
When 14th Am. was passed, owning a gun was a fundamental right. Arguing under substantive due process; not privileges
and immunities. Corfield v. Corriel is mentioned all through gun-control case (liberal approach – reading rights into the
Constitution – Bushrod Washington).
Guarantees of Economic Liberties: The Takings Clause & the Contracts Clause
- Takings Clause of 5th Am.: Private Property shall not be taken for public use, without just compensation.
-
o
Physical Taking – occurs either when there is a condemnation or a physical appropriation of property.
o
Regulatory Taking – occurs when some significant restriction is placed upon an owner's use of his property for which 'justice and fairness' require
that compensation be given.
Contracts Clause of Article 1, S. 10 prohibits States from passing laws impairing K’s. ( No such limitation on federal government).
PROPERTY RIGHTS PROTECTED UNDER THE TAKINGS CLAUSE OF THE 5 TH AMENDMENT: THE PUBLIC USE REQUIREMENT
PHYSICAL TAKING
Takings Clause of the 5th Amendment: provides that private property shall not “be taken for public use, without just compensation.”
Extended to States through the Due Process Clause of 14th Amendment – The State can do this due to its eminent domain power to “take” private land for public use
(Public Use – need sufficient guarantee that private lands acquired by government will serve the public).
In this line of cases, the government is condemning property and formally transferring title. Are there any limits to this under the “public use” requirement?
DC authorized the taking of a nonYes. Low Scrutiny Review. Not a takings b/c the
blighted department store for
rights of the property owners were satisfied when
redevelopment of the surrounding
they received just compensation. Court defers to
blighted areas. City then sold it or leased
the states public purpose here – beauty and health
property to private developers who
of the city.
Berman v. Parker
348 U.S. 26
Constitutional
conformed it to the redevelopment plan.
Test: City only needs any rational basis or any
Suit challenged the “public use”
plausible explanation.
requirement of the takings clause.
Beautifying, sanitizing, etc. are all within local
ISSUE: May Congress use eminent
government’s right to eminent domain.
domain to redevelop a District of
Distinguish from Kelo: The law was not enacted to
Columbia slum?
benefit a specific group of people.
HI Land Reform Act used eminent
Yes. Low Scrutiny Review. Law is “rationally
domain to solve problem of concentrated
related” to a conceivable public purpose (passes
Hawaii Housing
467 U.S. 229
Constitutional
feudal land ownership. Tenants living on
the scrutiny of Public Use clause).
Authority v. Midkiff
single family residential lots could
request condemnation and be sold the lot. Public Use Clause Scrutiny: changes public use
81
There’s no identified person, whom the
government is giving the property to.
ISSUE: May the state use eminent
domain to take title of large estates of
land held by a concentrated group of
landowners?
into public purpose: Government does not itself
have to use property to legitimatize the taking; it is
only the taking’s purpose, and not its
mechanics, that must pass scrutiny under the
Public Use Clause.
Test for Just Compensation of whether there’s a
public use/purpose: not giving high scrutiny
review to whether it’s just compensation.
Distinguish from Kelo: The law was not enacted to
benefit a specific group of people.
Poletown
Neighborhood Council
v. Detroit
Southwestern IL
Development
Authority v. Nat'l City
Environmental
304 N.W. 2d 455
768 N.E. 2d. 1
Constitutional
Unconstitutional
City planned to acquire land held by
private (poor, black) owners to convey
the land to GM (private company) for the
creation of a new GM plant but would
result in the displacement of poor, black
neighborhoods.
Note: Regulating oligopoly and the evils
associated with it is a classic exercise of a State’s
police powers and eminent domain powers.
Court held that project was developed to promote
public health and welfare, which was authorized
by state constitution, and that the primary focus of
the project was the creation of jobs and the
promotion of public welfare, and the benefit
created for the GM was incidental.
ISSUE: May a city use its eminent
domain power to uproot poor residents
from their homes by building a GM plant
there?
What happened to protecting those civil liberties
of the “discrete and insular minorities” described
in Footnote 4 of Carolene Products????
Sports car training facility and racetrack
needed additional parking. Gov’t agency
had neighboring business’s property
condemned (b/c it refused to sale
property) so it could be obtained through
eminent domain.
No. Court found taking of the property
unconstitutional as the taking was to benefit a
private party in helping to solve its parking
problems and was not primarily for a public use or
public purpose.
ISSUE: May the state use eminent
domain to expand parking at a local
racetrack?
82
CT city wishes to condemn private
property (homes – good, valuable
property) in a section of town to build
luxury condos for nearby Pfizer plant.
Residents challenge under the “public
use” requirement.
Kelo v. City of New
London
545 U.S. 469
Constitutional
ISSUE: May the city use eminent
domain to rejuvenate an economically
distressed neighborhood?
Note: Article – Pfizer is leaving the City of New London!
“Look what they did… they stole our home for economic development. It was all for Pfizer, and now they get
up and walk away.”
Pfizer, the giant drug company, announced it would leave the city just eight years after its arrival led to a
debate about urban redevelopment that rumbled through the United States Supreme Court, and reset the
boundaries for governments to seize private land for commercial use.
Pfizer said it would pull 1,400 jobs out of New London within two years and move most of them a few miles
away to a campus it owns in Groton, Conn., as a cost-cutting measure. It would leave behind the city’s biggest
office complex and an adjacent swath of barren land that was cleared of dozens of homes to make room for a
hotel, stores and condominiums that were never built.
Ms. Kelo lived in a small pink house in the Fort Trumbull section that was square in the sights of city and state
officials who wanted to revitalize the area. The city had created the New London Development Corporation to
buy up the nine-acre neighborhood and find a developer to replace it with an “urban village” that would draw
shoppers and tourists to the area.
Economic development officials in Connecticut used that plan — and a package of financial incentives — to
lure Pfizer to build a headquarters for its research division on 26 acres nearby. With an agreement that it would
pay just one-fifth of its property taxes for the first 10 years, Pfizer spent $294 million on a 750,000-square-foot
complex that opened in 2001.
By then, Ms. Kelo, the Cristofaros and several neighbors had sued the city to stop it from using its power of
eminent domain to take their property. The lawsuit, Kelo v. New London, wound up at the Supreme Court in
2005 as one of the most scrutinized property-rights cases in years.
In a 5-to-4 decision, the high court ruled that it was permissible to take private property and turn it over to
developers as part of a plan to bolster the local economy. Conservative justices, including Clarence Thomas,
dissented. Justice Thomas called New London’s plan “a costly urban-renewal project whose stated purpose is a
vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer
Corporation.”
Yes. Court says that it was for “economic
development” and not to benefit Pfizer directly.
There was no suspicion of a private person afoot.
Court held 4-1-4 that:
4—OK b/c transfer from one private entity to
another for purpose of economic development is a
valid “public purpose”
1— Private motivation for development – OK as
long as transfer is not “primary motivation” of the
gov’t (psychoanalyzing the city); result would be
different if it was to benefit a private entity.
4—UC b/c transfer for economic improvement is
not at all a “public use” or “public purpose”;
Interpretations of “public use.” Broad = public
purpose; narrow = inadequacy of use by the
general public. This court has broad interpretation.
Public use requirement can be satisfied by a
valid public purpose.
**Economic development is now a legitimate
“public use,” so it has a low scrutiny review
O’Connor, J., Dissent: “Nothing is to prevent the
State from replacing any Motel 6 with a RitzCarlton, any home with a shopping mall, or any
farm with a factory.” Public purpose in Midkiff
was to eliminate social harms.
Kelo’s house was not a source of social harm, as in
Berman & Midkiff.
83
Atlantic Yards will be a 22 acre
No. Determined to benefit the economy (Kelo).
development owned by Ratner, the owner -When viewed objectively, the project bore at least
of NJ Nets. Ratner Group wants to tear
a rational relationship to several well-established
down old buildings to build shops,
categories of public uses, among them the redress
housing, new Nets stadium. Part of the
of blight, the creation of affordable housing, the
area is valuable land, which is taken by
creation of a public open space, and various massNY in eminent domain.
transit improvements.
ISSUE: Are the claims to public use made *Once we discern a valid public use (purpose) to
Goldstein v. Pataki
516 F.3d 50
Constitutional
under a “pretext,” in that the primary
which the project is rationally related, it makes no
benefit is to the Ratner Group?
difference that the property will be transferred to
Note: Article – A state judge ruled today
private developers, for the power of eminent
that the state can seize property from 12
domain is merely the means to the end (Applying
private landowners who refused to sell to
Midkiff & Kelo).
developer Ratner, so he can move
**A “pretext” argument will not work.
forward w/ his long-delayed, $4.9 bil plan Kelo does benefit a specific individual, but that
(NBA arena, housing & office towers).
fact alone will not make it invalid.
Note: MS legislature enacted bill saying condemnation proceedings in MS will not have economic development as a legitimate purpose. Governor vetoed it b/c it’ll
be difficult to bring more business and jobs in if you can’t condemn land to build plants, factories, etc.
THE TAKINGS CLAUSE OF THE 5TH AMENDMENT: REGULATORY “TAKINGS” [MODERN RULE: Penn Central]
This is where the gov’t has regulated the use of the private property and thus substantially diminishes its value. Should courts enforce compensation requirements for
so-called “regulatory takings” b/c the owner has suffered a loss in the value of the property?
ORIGINIAL APPROACH:
Kohler Act (Fed): cannot mine beneath
No. Holmes’ opinion: This was not a proper
homes in such a way that will destroy
exercise of state police power b/c it cannot justify
structure of land beneath the homes. PA
the law as a protection of public safety; you could
Coal has deeds to rights under those
just give homeowners notice. This statute went too
people’s homes. The deeds are from
far – making it commercially impracticable to
1878 though and were bad deeds.
mine certain coal was the same as destroying it.
Homeowners sought to enforce Act
Test is: While property may be regulated to a
against coal company.
certain extent, if regulation goes too far it will
be a recognized as a taking.
Pennsylvania Coal v.
ISSUE: May the state pass a statute that
**If a proper exercise of police power had been
260 U.S. 393
Unconstitutional
Mahon
destroys previously acquired contract
found, the gov’t need not compensate.
rights to mine under private residences?
-Holmes just looks at value of coal under houses,
which is 100% diminution for PA Coal.
Brandeis dissent: Any proper exercise of State’s
police power is valid (no matter the consequences)
therefore no just compensation required
-Compare to Munn v. IL (grain elevator case: SDP
to regulate businesses for the public interest;
diminished value of grain). There’s not a total
destruction in value in grain.
84
Keystone Bituminous
Coal Assoc. v.
Debenedictis
Customer Co. v.
Sacramento
U.S. v. Caltex
Citoli v. City of Seattle
U.S. v. Causby
Modern day counterpart to the Kohler
Act, which required 50% of coal to
remain in the ground to support
structures.
480 U.S. 470
895 P.2d 900
344 U.S. 149
114 Wash.App.
1047
328 U.S. 256
TEST: Now, the court must look at the parcel
“as a whole” to see what percentage of value
has been diminished by the regulation.
Constitutional
Unconstitutional
Constitutional
Constitutional
Unconstitutional
No takings, b/c Justice Stevens computes complete
value of all the coal owned by company, and found
the regulation only affected 2% of the coal.
Robbery of a 7/11 and cop was outside.
Cop calls in SWAT team and they do
$100,000 worth of damage. 7/11 owner
sues for just compensation.
ISSUE: May a store sue for just
compensation for damages done by
policemen during the course of duty?
During WWII, U.S. Army blew up oil
facilities in Philippines as the Japanese
[enemy] approached. Owner wants
compensation.
ISSUE: May the gov’t destroy its oil
tankers so that they won’t fall into enemy
hands?
P operates a business on the ground floor
of a building in Seattle; he is the only
tenant. On the night before the World
Trade Organization Conference, a group
of anarchists took over the upper floors to
protest. The police turn off the electricity
to the building (for a week) to get
protesters to leave. This causes P’s
business to go bankrupt.
ISSUE: Does the gov’t have to
compensate the P for his loss of business?
Military air crafts were flying over 83 ft.
of land and it was killing chickens on a
farm.
ISSUE: Is the taking clause confined to
only real property and tangible interests?
Distinguish from Pennsylvania Coal – it had a
zero diminution in value.
No. No just compensation for police power.
Incidental damage to private property by police
officers in the course of efforts to enforce the law
did not qualify as a basis for a just compensation
claim under the Takings Clause.
Yes. This was held to be a valid exercise of police
power b/c order came during imminent peril
during wartime.
No just compensation when there’s a reasonable
use of police power.
No. The police’s shutting down the power to the
building was a valid exercise of state police power.
Note: If it’s not “reasonable” use of police power,
then you get compensation.
No. Intangible property interests are also included.
Basically, the gov’t had taken an air easement
through inverse condemnation so the party will be
awarded just compensation.
85
Griggs v. Allegheny
County
Euclid v. Ambler
Realty Co.
369 U.S. 84
272 U.S. 183
Unconstitutional
Constitutional
Planes from the Pittsburgh airport were
going over homes and causing property
damage.
ISSUE: Is the taking clause confined to
only real property and tangible interests?
OH city re-zoning ordinance [commercial
to residential] reduced property owner’s
value by 75% [10K/acre to 2,500/acre].
Property owner sued to enjoin
enforcement of ordinance on basis of 14th
DP.
Property owner of railroad yard and
factory files suit challenging a city zoning
law that rezoned the area Residential.
Nectow v. Cambridge
Red Roof Inn v.
Ridgeland.
Miller v. Schoene
277 U.S. 183
797 So. 2d 898
276 U.S. 272
Unconstitutional
Constitutional
Constitutional
ISSUE: May a city rezone an area where
businesses are to residential w/o giving
just compensation?
Ridgeland, Ms, adopted a sign ordinance,
and gave a 5 year period for compliance.
At the end of 5 years, Red Roof Inn sign
is against city ordinance, would have to
be removed or conform to compliance.
ISSUE: May a city require the removal of
a sign against city ordinance?
VA law provided for the destruction as a
public nuisance of all ornamental red
cedar trees that were or might be the
source of a communicable plant disease
known as cedar rust and that were
growing w/in a prescribed radius of any
apple orchard. Owners of cedars were
paid only the cost of removing their trees
and were not compensated for their loss.
ISSUE: May a state call for the
destruction of red cedar trees that threaten
local apple orchards?
No. This was also taking so the party will get just
compensation.
Zoning ordinance is a valid exercise of police
power and would only be found unconstitutional if
the provisions are clearly arbitrary and
unreasonable w/ no substantial relation to the
public health, safety, morals, or general welfare.
Low Scrutiny Review – any plausible explanation.
Zoning gets low scrutiny.
Now, the proper analysis would be under Penn
Central.
No. (Old Case) Zoning ordinance was not a valid
exercise of police regulation.
Even under low scrutiny review, zoning law is so
outrageous.
Unconstitutional; it’s irrational/unreasonable to
zone this area as “residential.”
-Compare to Euclid, first case on zoning laws and
“takings claims.”
Yes. Valid exercise of police power.
-This was merely a zoning ordiance (as opposed to
a taking), which the court found this particular
zoning was a valid exercise of state police power.
-Implicit in the theory of the police power, as
differentiated from the power of eminent domain,
is the principle that incidental injury to an
individual will not prevent its operation.
Yes. This is in contrast to Pennsylvania Coal.
Court upheld the law, saying that the cedars could
be destroyed w/o just compensation. This was the
only practicable method of controlling the disease
and protecting the apple trees. Apple growing in
VA is one of the principal industries. When a state
decides to destroy one class of property in order to
save another one, the state has not exceeded its
constitutional powers.
Note: Not good law, b/c of Lucas (this was a
confiscatory taking by using police power, &
Lucas doesn’t allow the use of police power).
86
Goldblatt v.
Hempstead
369 U.S. 590
Constitutional
Safety regulation was passed by town that
banned some types of mining and
imposed a duty to refill some pits b/c
children were getting hurt. P owned a
sand and gravel pit in the town. He
claimed that ordinance was “not
regulatory” but rather amounted to
confiscation of property w/o
compensation.
Yes. The court agreed that the regulation
“completely prohibits a beneficial use to which the
property has previously been devoted,” but
nevertheless found it justified as a “reasonable,”
non-compensable exercise of the police power.
ISSUE: May a city regulate the mining of
pits within the city limits for a safety
concern?
Don’t get just compensation simply b/c client can’t
put property to best use.
Eagle Protection Act prohibits the sale
and purchase of bald and golden eagle
feathers.
Yes. But this was not a taking because it did not
eliminate all use of the property b/c possession or
transportation was still allowed. Regulation does
not require surrendering the bald eagle artifacts.
ISSUE: May the takings clause be applied
to private property?
Andrus v. Allard
444 U.S. 51
Has there been a total diminution in value? No,
the best use has been denied, but it’s still valuable.
This is an example of applying regulatory taking
concept to personal property vs. real property
interest.
CC Analysis: economic effect in nature, so you
can aggregate it. There’s a large market in eagle
feathers.
Constitutional
Takings: Is there a total diminution in value? No,
so it’s constitutional; it just takes away the “best
use” of making profit off feathers.
You can still charge people for viewing your eagle
feathers.
U.S. v. Pewee Coal
Co.
341 U.S. 114
Unconstitutional
Fed gov’t took possession of coal mine so
they could regulate it and use it.
No. This is an “actual” taking – just compensation
required.
ISSUE: May gov’t just takeover a coal
mine b/c it wants to?
Note: gov’t could have just regulated the coal mine
if it had any plausible basis.
Loretto: Actual permanent invasion by the
government + No just compensation = Taking.
87
MODERN TEST FOR DETERMINING REGULATORY TAKINGS:
Use Penn Central as your approach to cases involving clients who want just compensation unless it’s a Lucas or Loretta problem.
Note: Watch out for Substantial Relation language (CC approach) – Police power substantially related to public health, safety, morals, or general welfare.
NY City denied building permit to build
Yes. This was not a taking. THIS IS THE
skyscraper on top of train station b/c it
CONTROLLING LAW OF TODAY!
was a historical landmark.
New Test: To determine if a gov’t action is a
ISSUE: May a city restrict, as part of an
taking, the court will consider:
historical landmark preservation program, (1) Character of the Gov’t action – state interest
Penn Central
the development of a building w/o it
(2) (Extent to which the action interferes w/)
438 U.S. 104
Constitutional
Transportation v. NYC
being a taking?
Reasonable Investment-backed Expectations
(3) Economic impact—Diminution in value
using Keystone “as a whole” approach – how
much the value of the property has gone down.
Case by case analysis.
Monteray v. Del
Monney Dunes
Agins v. Tiburon
526 U.S. 682
447 U.S. 255
Unconstitutional
Constitutional /
Overruled by
Lingle
P purchased waterfront property zoned
for business to construct a housing
complex. Over a five year period, P the
developer, submitted 120 plans for
development project, and was rejected
repeatedly by zoning board. Suit is
brought.
No. Modern example of Nectow: Refusal of
development plan did not substantially advance
the city’s purpose. Did not apply Penn. Central
analysis, because P could show government action
was not reasonably related to a legitimate purpose.
The state was just trying to wear down the
developer b/c they didn’t want him to build there.
ISSUE: May a state keep rejecting plans
submitted by a developer when it is
properly zoned to build there?
Cochran: Evil is afoot.
P purchased 5 acres of land on a hill-top
overlooking San Fran. Bay for the
purpose of constructing high-rise
apartment complex. Town rezones the
property, and restricts development to
only five single family dwellings. P files
suit claiming a “taking.”
Yes. In Penn. Central, Brennan asks “Is the law
substantially related to the promotion of the
general welfare?” Or see Nectow (for contrast).
Note: This is an alternative to challenging “takings
claim” and Penn. Central Test. – Substantial
Relation!
Substantially advanced test used.
Under this bad test (which is more a CC violation
test): The zoning ordinance substantially advanced
legitimate governmental goals. The specific zoning
provisions are legitimate: to protect the residents
of Tiburon from the ill effects of urbanization.
88
State legislature passed three laws, one of
which limits the rent oil companies may
charge dealers leasing company-owned
service stations. P, one of the largest oil
companies in State, brought suit claiming
the rent cap is an unconstitutional taking
of its property.
ISSUE: May a state put a cap on rent in
order to prevent high rent abuse?
Linda Lingle v
Chevron
Palazzolo v. Rhode
Island
544 U.S. 528
533 U.S. 606
Supreme Court held “substantially advances”
formula of Agins is not appropriate test for
determining whether or not a regulation is in effect
a taking.
If P seeks to challenge a gov’t regulation as an
uncompensated taking of private property must
proceed under one of these theories:
1. Lucas type “total regulatory taking.”
2. Loretta permanent physical invasion
(“required to permit” / easements) – are
requirements, not regulations.
- A land-use exaction (unjust demand
by gov’t) set forth in Nollan and Dolan.
3. Penn Central Taking (this cases passes)
Constitutional
Constitutional
Yes. The District Court held, applying Agins v.
City of Tiburon, gov’t regulation of private
property was not a taking because the rent cap
“substantially advanced State’s asserted interest.”
(controlling retail gas prices)
P owns land on RI coast, which is 87%
marshland; sought permission to fill the
marsh and build a beach club.
Environmental Regulation was already in
effect saying he couldn’t mess w/ marsh.
P alleged that the regulation had taken his
property w/o compensation and had
specifically deprived him of all
economically beneficial use of the
property.
ISSUE: May a property owner challenge
state regulations effective prior to his
acquisition of the property?
Yes. Supreme Court reverses state’s ruling b/c
future generations too have a right to challenge
unreasonable limitations on the use and value of
land. Court remanded b/c there shouldn’t be a “per
se” taking here; needs consideration under Penn
Central. P will probably still lose under Penn
Central b/c, when looking at property as whole,
there isn’t total diminution.
Has he lost freedom to bring suit b/c of inactivity
of previous owner? NO
Claims based on pre-acquisition regulations aren’t
barred.
Problem under Lucas with marshland b/c
restriction inherent in title
89
CA city passes 32-month moratoria on
development in the Lake Tahoe Basin,
preventing developers from building.
Landowners sue as an unlawful taking
w/o just compensation.
Tahoe-Sierra
Preservation Council
v. Tahoe Regional
Planning Agency
Byrd v. City of
Hartsville
Massingill v.
Department of Food &
Agriculture
ISSUE: May even temporary land use
restrictions constitute a taking?
535 U.S. 302
620 S.E. 2d 76
125 Cal.Rptr.2d
561
Constitutional
Constitutional
Constitutional
Byrd had a buyer for his property. Wants
a zoning change to do it (zone from
agricultural use to commercial use).
Takes a year to get zoning change (b/c in
a historic district) and, by then, the buyer
is gone.
ISSUE: Was this delay in zoning
unreasonable?
CA passed a statute requiring filling
stations to give free water, free
compressed air, and provide pressure
gauges to customers. P is Mass Air, who
sells air compressors used by filling
stations for tires, claiming the regulation
is going to put him out of business b/c he
no longer receives quarters in machines.
ISSUE: Should the state pay company
just compensation for requiring parts of
the business to be offered for free?
Yes, but they are looked at on a case by case basis.
The delay here was for a legitimate reason (good
faith reason) – problem w/ water quality in the
lake.
Until regulatory delay become unreasonable, there
is no regulatory taking.
-To be unreasonable, under Penn Central (only in
the context of regulatory delay), consider: length,
reasons for delay (good faith v. bad faith), &
economic impact to P in relation to the whole
parcel.
-No Lucas Test b/c not 100% diminution in value
–a temporary loss of all economic use = partial
loss (once restriction is lifted, value will return).
Therefore, court uses Penn Central (and Keystone)
to say that 32 months is not enough to strike down
the action.
No. Length of time was warranted b/c of what had
to be done (all the bureaucratic reasons in a
historic site), & the delay was in good faith, so no
just compensation. Applied Penn Central.
No Lucas, b/c not deprived of all economic use
(used it before as a farm, and still could farm it).
No. Court said that P could rent or lease the
compressors, so they haven’t lost all value.
-Applying Penn. Central:
(1) Economic Impact: Although may have to
create new billing system to rent machines and
mint new coins so machine can vend free air,
inconvenience is not compensable as taking.
(2) Investment-Backed Expectations – no
evidence other than “economic doom’ feared.
* Can they sell the machines elsewhere? Yes.
(3) Character of Gov’t Action: It is a reasonable
deduction that motorists are more likely to keep
their tires properly inflated and coolant systems
filled with water if compressed air is offered at
service stations free of charge,
-This was a reasonable means to achieve the
State’s end: goal of public health and safety, of the
safe operation of motor vehicles.
90
Gangemi v. City of
New York
827 N.Y.Supp.2d
498
Constitutional
First English Evangelical Lutheran Church v. Los Angeles County
Permanent Physical Invasion = Per Se Invalid Taking
Loretto v.
Teleprompter
Manhattan CATV
458 U.S. 419
NYC required shop owners to purchase
liability insurance to cover accidents that
occur on the sidewalk abutting to their
stores.
Yes. This was not a taking. Apply Penn Central 3part test. Diminishes the value of the business and
there is economic impact. However, there was a
legitimate gov’t interest involved here. NYC had
12,750 miles of sidewalk and the city can’t be held
ISSUE: Can some “takings” be justifiable liable for accidents that occur on all of it. This is a
by a legitimate state interest?
high interest, quid pro quo for living in society.
If win just compensation case, then get damages.
NY city law required landlords to permit
the cable company to install cable
receivers on top of buildings.
No. “A permanent physical invasion, even if
minor, is a per se taking, no matter how great
the gov’t interest.” Physical Occupation.
ISSUE: Are permanent physical takings
of private property allowed under the
Takings Clause?
Two elements necessary for it to be a per se
(invalid) taking:
(1) Forced entry (occupation) into your
business or onto your land – Intent in
the actual permanent invasion by the
government (has a permanency) &
(2) You were not given compensation for it
Unconstitutional
Alexandre v. NYC
Taxi & Limousine
2007 WL
2826952
Constitutional
Yee v. City of
Esconido
503 U.S. 519
Constitutional
City law requires all taxi cabs to have
GPS systems and credit card machines.
Suit brought by taxi cab company
wanting just compensation for the per se
taking of taxi cabs b/c of physical
alteration.
ISSUE: Does Loretta apply – is this a per
se taking w/ no application of Penn Cent.
Rent control – LL’s could only charge a
certain amount (requires city approval for
rent increases & rolls back rent to rates of
2 years earlier).
ISSUE: Is this a forced entry by the govt?
Footnote 19: change facts – statute requiring LL
to install cable (all apt’s must install cable) – that
is regulation… not an actual permanent invasion
by the government.
**Note: when you see an easement, apply Loretto.
No application of Penn Central test needed for
these types of cases.
No. There was no forced entry here. So not a per
se taking.
This is a regulation (Footnote 19), not a permanent
invasion and has not reduced the profit of the
company. High government interest? Yes.
Note: Cochran also used a rent control example to
demonstrate that this was not a forced entry either
No. Not a forced entry to mean “per se” taking.
B/c renting is by invitation (No one forces you to
take the tenant, i.e., it doesn’t require the LL to
allow the physical occupation of T). Regulates LL
– T relationship. Not a forced occupation w/o just
compensation.
91
Maine requires all Maine hospitals to
provide free medical care for indigents –
can only opt out if you can show that by
taking indigent patients your economic
viability is jeopardized.
ISSUE: Is this a forced entry by the
government?
Franklin Memorial
Hospital v. Harvey
575 F.3d 121
Constitutional
No. Citing Yee, the hospital is not required to serve
low-income patients; it may choose to stop using
its property as a hospital, thereby not inviting
patients and not subject to law.
Use Penn Central:
(1) Econ. Impact – ok, b/c can opt out if
economic viability is jeopardized.
(2) Investment-Backed Expectations –
healthcare is already heavily regulated,
should expect this.
(3) Character of Gov’t Action – laws adjust
the benefits and burdens of economic life
but leave the core rights of property
ownership intact.
Tennessee Scrap
Recyclers v. Bredesen
556 F.3d 442
Constitutional
Scrap industry takes scrap metal, bales it
and then ships it to foreign countries to be
processed. In Memphis, there is a
skyrocket of scrap metal theft. Memphis
passes a tag and hold ordinance that the
scrap dealers in Memphis have to keep it
for 10 days and tag it, so that inspectors
can come in and have a way to check if
it’s legit (stolen or not). Suit brought for
commerce & just compensation.
ISSUE: does holding scrap for 10 days
constitute a permanent physical invasion?
Collins v. Town of
Carver
897 N.E. 2d 1281
Constitutional
Denial of permit to build a home; area is
in a historic district and the person wants
to build a home that is against zoning.
Lawyer argues, under Loretto, that it was
constructively a physical invasion by the
city (by the town not allowing Collins to
do with the property what they wanted to
do).
ISSUE: Can there be a “constructive”
No. only a limited, temporary intrusion. Not
permanent physical invasion.
Just Compensation – b/c inspectors go in and
check the metal… is there a physical invasion?
No, not permanent.
CC: Pike, b/c it applies uniformly regardless of
where it goes, balance against state interest and
interference.
IC: no showing of burden on national market, just
Memphis market (Exxon – CC protects IC, not
individual firms).
State Interest: Valid law enforcement too.
Not excessive to interference. Constitutional.
No. Not a physical invasion, only a restriction.
No such thing as constructive physical invasion.
92
physical invasion?
Confiscatory Regulations = Per Se Invalidity of Takings
SC enacted Beachfront Management Act:
barred people from erecting any
permanent habitable structures on beach
property. It was an anti-erosion law.
ISSUE: May a state prohibit the
development of coastal lands that would
deprive the owner of all economically
viable use?
Lucas v. South
Carolina Coastal
Council
505 U.S. 1003
No. Court set forth a virtually per se rule of
invalidity for “confiscatory regulations, i.e.,
regulations that prohibit all economically
beneficial use of land.” It requires just
compensation. So, Lucas gets his money, and the
State pays him.
Invalid for regulations that prohibit all
economically beneficial use of land, even for the
police power.
TEST:
1. Must have 100% diminution in value.
2. Regulation cannot be a restriction inherent
in the title (use interests deprived not part of
the reason bought land).
If it doesn’t pass the test, or is not regulation of
property, apply Penn Central.
Unconstitutional
Scalia opinion
Prohibition of all economically beneficial use of
land MUST be 100% to use Lucas.
Noghrey v. Town of
Brookhaven
852 N.Y.Supp.2d
220
Constitutional
P purchased property in Brookhaven,
with intention of building shopping
plazas. At the time of the purchases, the
properties were zoned commercial, which
permitted construction of shopping
plazas. Town changed the zoning on
parcel to residential.
ISSUE: Did the rezoning constitute an
unconstitutional taking of his property in
violation of the Constitution?
Note: Under above cases, this would have been a
valid police power and would afford no
compensation.
Miller v. Shoene is out now.
Trial Court found that P had established a partial
regulatory taking, not a total regulatory taking
pursuant to Lucas – Not 100% loss in value.
BUT: Erroneous Jury Instructions given w/ respect
to the first factor of Penn Central balancing test:
(1) Economic Impact of the Regulation.
-- Told them the standard to evaluate economic
impact was “a near total or substantial decrease or
significant reduction in value.” A PROPER charge
would have been, “one step short of complete” or
100% diminution in value….
Note: some cases say maybe around 95% you can
get compensation. MOST JURISDICTIONS SAY
93
Hadacheck v.
Sebastian
239 U.S. 394
Constitutional
Westside Quik Shop v.
Stewart
534 S.E. 2d 270
Constitutional
Rowlett/2000 v. City
of Rowlett
231 S.W. 3d 587
Constitutional
Hawkeye Commodity
v. Miller
Conti v. U.S.
432 F. Supp. 2d
822
291 F.3d 1334
Constitutional
Constitutional
CA city prohibited operation of a
brickyard w/in the city limits b/c of
smoke problems. P had a brick factory
that was zoned out b/c of the smoke it
produced. It was originally worth
$800,000 but now is worth $60,000 due
to re-zoning.
ISSUE: May a city prohibit operation of
brickyards within the city limits?
SC outlawed video gaming machines
(video gambling). Prior to outlaw, these
machines were legal & P had these
machines in his store.
ISSUE: Does prohibiting gaming
machines deprive the owner of all
economically beneficial use?
Guy wants to have a huge housing
development, he buys a bunch of land for
a lot of money; there is a restriction that
says that every home has to be on a
minimum of 1 acre. He brings suit saying
it violates just compensation b/c he says
he can’t make money if they restrict
building to 1 acre (he thought zoning
would change, but didn’t).
ISSUE: Can a known restriction in the
title count towards a diminution of value?
Iowa outlawed gambling machines. A
business that makes these machines sues
wanting just compensation.
ISSUE: Does prohibiting gambling
machines deprive the manufacturer of all
economically beneficial use?
Federal statute prohibits fishermen’s use
of gillnets in parts of the Atlantic Ocean
where swordfish are present. Fisherman
sue saying this is a taking of property w/o
just compensation.
ISSUE: Did the prohibition of gillnets for
fishermen deny all of the nets of
MUST HAVE 100% DIMINUTION IN VALUE.
Yes. Any rational basis test upheld city ordinance.
Also, was not complete deprivation of use of
property – could still be used for other things, just
not brick making.
92 % diminution of value – no compensation.
No. Not 100% diminution of value b/c can sell
video games somewhere else.
-Advances gov’t interest in prohibiting gambling.
-Where, as here, the regulatory climate renders an
owner's investment-backed expectations
unreasonable, no taking will be found.
No. Fails under part 2 of Lucas test (restriction
inherent in title). He bought property knowing of
restriction, therefore no just compensation.
Just because you made a bad investment doesn’t
allow for just compensation; the zoning board did
this before he bought the land
No. Court held that there was not a regulatory
taking b/c there was not a 100% diminution in
value according to Lucas.
No. Court held that this was not a taking b/c there
wasn’t a 100% diminution in value.
94
economically beneficial use?
Forced Easements (Interpretation of Loretto – the “Give Back”): Stricter Scrutiny
P wanted to build a bigger home on his
beachfront property and applied for
permit, but city required him to grant an
easement across their beach property in
return for permit (so “view of beach”
wouldn’t be obstructed – wants people to
see the water from the road).
ISSUE: When city is negotiating w/
property owner for a give back, is this
still an unlawful taking?
Yes. This is a taking. Court ups the standard of
review for these types of cases (Stricter Scrutiny).
Victories for property owners. Not case specific as
in Lucas.
Test: Must substantially advance a legitimate state
interest (State must prove it).
A valid Exaction requires the gov’t to show an
“essential nexus” b/w the goal of the regulation
and the means (conditions) chosen to achieve
the objective.
Here, an easement across private property had
nothing to do with the state's interest to preserve
sightlines to the beach and therefore FAILS as
justification for the condition.
Nollan v. California
Coastal Commission
483 U.S. 825
Unconstitutional
Apply Loretto (permanent physical occupation).
Loretto is black letter law – this is an
interpretation.
- Nollan & Dolan are different b/c this one
concerns only one piece of property.
Note: Government cannot give you a privilege
and in doing so make you waive a constitutional
right (takings clause for just compensation).
The state can’t require a property owner to give
back a gift if you waive a constitutional right.
95
P sought permit to increase size of store.
City says as condition of permit, requires
P to dedicate portion of property for flood
control, bike path, and green-space.
ISSUE: May a city condition a building
permit on a dedication of a portion of
property to public use?
Dolan v. City of
Tigard
512 U.S. 374
Unconstitutional
Amoco corner gas station wanted to
remodel. Grant of building permit
conditioned on giving 20% of its property
abutting the highway to the gov’t.
661 N.E.2d 380
Unconstitutional
Test: The condition (degree of the Exaction)
must be roughly proportional to the projected
impact of the landowner’s proposed
development (the end advanced must have a
rough proportionality with the restriction).
Test for the nexus of the restriction and the state
interest:
(1) Restriction & state interest must be reasonably
related &
(2) Rough proportionality – state must have some
evidentiary basis for the restriction furthering the
state interest.
The burden of proof is on the city to prove rough
proportionality.
Rehnquist opinion
Amoco Oil v.
Schaumburg
No. This is a taking. Ups standard of review;
victory for property owner.
ISSUE: May a city condition a building
permit on a giving up of some of the
property for public use?
1) Deed to city a portion of property for flood
control of creek Goal is flood control – people
walking on flood path is not sufficiently related to
flooding problems.
-Hold: all you have to do is regulate it instead of
making her deed it. There are other alternatives.
2) Bike path, to reduce auto traffic with more
biking.
-Hold: can’t show how this would reduce traffic.
No. Court held that the give back constituted a
taking b/c it had little or no relationship to the
anticipated impact of the proposed development. D
would have to prove that Amoco’s remodeling
would create such an influx of traffic that another
lane on the highway was necessary; failed to do so,
therefore, would constitute a taking.
Have to show that the restriction (adding a lane of
traffic) related to the gas station expanding;
couldn’t do that so it’s a taking.
96
THE CONTRACTS CLAUSE:
ARTICLE I, § 10, “No State shall… pass any… law impairing the Obligation of Contracts.”
1. Provision applies ONLY if (a) State or (b) Local Law interferes with Existing Contracts, not Future Contracts.
2. Does Not Apply to the Federal Government. Challenges to Federal interference with contracts must be brought as a Due Process Challenge (rational basis review,
i.e. “may have thought,”
This limitation operates on the federal gov’t through the Due Process Clause of the 5th Amendment.
A state may interfere with (a) existing (b) private contracts. Three part test is used:
1. Is there a substantial impairment of a contractual relationship? (Look for increase, decrease, or elimination an obligation of the contract)
2. If so, does it serve a significant and legitimate public purpose?
3. And, is it reasonably and narrowly tailored to achieving that goal?
Test is very similar to traditional rational basis review, low scrutiny. Difficult to establish a violation of the Contracts Clause.
** Trap: Do not confuse with due process concept of liberty to contract, (Freedom to Enter into a Contract), while Contracts Clause wards against unreasonable
State interference with the “terms” of a contract previously entered into.
Trigger: State (local) law changes and alters obligations established is a preexisting contract.
Standard of Review: If private contract, is it reasonable under the circumstances? If public (State or local government) is a contracting party, then must be both
“reasonable & necessary” which is heightened scrutiny.
Internal Revenue Code Estate Tax
No. The Court upholds retroactivity of the law. It
provision grants a deduction for half the
does not violate test for due process: a legitimate
proceeds of sale of employer securities by legislative purpose furthered by rational means.
an executor of an estate. Executor of an
(Purpose - Raising Revenues)
individual who died used estate funds to
Business regulation  substantive due process…
purchase stock and sold stock and
state may have thought… political process.
claimed a reduction on her tax return.
U.S. v. Carlton
512 U.S. 26
Constitutional
Deduction is denied because amendment
In a concurring opinion, Thomas & Scalia (like
has been repealed.
National Paint Association) said that SDP is not a
constitutional right, but rather an oxymoron.
ISSUE: Does the retroactive application
of the Amendment violate SDP?
**K Clause does not apply to the Federal Gov’t.
Northern Pacific
Railway Company v.
Minnesota
208 U.S. 583
City breaches contract with Railroad
Company.
Distinguish from Contracts Clause Analysis,
which does not apply to the federal gov’t.
Yes. Municipalities are included in definition of
“States” in Contracts Clause.
ISSUE: Can the Railroad challenge the
city’s breach as a violation of the
K clause applies to cities (municipalities) &
states.
Unconstitutional
97
Fletcher v. Peck
10 U.S. 87
Unconstitutional
Contract Clause?
GA state legislature annulled several land
grants given by previous legislature b/c
the previous legislature would deed land
to someone & gets bribed in doing it.
No. Statute struck down (violated the K clause).
The state cannot violate the contracts of people
even in the face of fraud. Contract Clause applies
to public contracts, as well as private contracts.
ISSUE: Can a state statute rescind an
earlier law granting land to certain
individuals?
State bankruptcy law is applied
No. Cochran says this is a “Biggie Case.”
retroactively to discharge debts incurred
It illustrates the original motivation of Contracts
Sturges v.
17 U.S. 122
Unconstitutional before the law was adopted.
Clause – to prevent states from adopting laws to
Crowninshield
ISSUE: May a state enact a statute to
help debtors at the expense of creditors.
discharge debtors?
Party is demanding payment on a
Yes. The Contracts Clause did not prohibit all state
contract. Other party claims Bankruptcy
insolvency laws. Such laws could be validly
Ogden v. Saunders
25 U.S. 213
Constitutional
as a defense
applied to contracts made after the law was
ISSUE: May a state law apply to
enacted.
contracts made after state law is enacted?
State gave a company a charter to
No. Contracts Clause does not apply. Provisions in
construct and operate a toll bridge. State
corporate charters are not contracts. First contract
allows a 2nd company to construct a toll
created authority to build a bridge, not an
free bridge. 1st company argues the
exclusive right to do so. Thus, second contract did
Charles River Bridge
36 U.S. 420
Constitutional
second charter decreased value of its
not “impair” the obligations of the first contract
v. Warren Bridge
contract and violated contracts clause.
because provision was not a contract.
ISSUE: Do provisions in corporate
charters fall within the scope of the
Started police power.
Contracts Clause?
EXAMPLES OF STATE VIOLATING CONTRACTS CLAUSE THROUGH A PROPER EXERCISE OF POLICE POWER:
MS granted a corporate charter for a
Yes. Police power overrides the contracts clause
lottery and then later passed a statute
violation.
prohibiting lotteries.
No K right to have a lottery.
Stone v. Mississippi
101 U.S. 814
Constitutional
ISSUE: May a state pass a statute that
violates a previous contract through its
police power?
RR Co. has a charter (K) from the state to Yes. This was a valid exercise of police power.
operate. RR Co. challenges a city
Atlantic Coast Line
ordinance that limits speed to 4 mph
Railroad Company v.
232 U.S. 548
Constitutional
(while going through city), has to be a
City of Goldsboro
flagman in front of train, no shifting cars
during certain times, and require RR to
level the tracks with asphalt.
98
Home Building &
Loan Assoc. v.
Blaisdell
290 U.S. 398
Constitutional
ISSUE:May the city interfere w/ RR’s K?
Economy in the dumps & people are
foreclosing on their mortgages. MN law
changes terms of loans made by banks to
private persons. Law permitted extensions
and period for redemption of mortgage
real estate loans (changes the terms of the
loans from the banks). So, we are only
dealing with an adjustment of the remedy
(adjusts the K), not taking away the
loaners rights.
ISSUE: May a state interfere w/ loan
contracts b/t banks and citizens?
TX law provided for forfeiture of
property for non-payment of taxes, but
allowed re-instatement of the property
once payment was made (State giving
away land for chump change, said pay for
El Paso v. Simmons
379 U.S. 497
Constitutional
it when you can). State modified law only
allowing re-instatement w/in five years of
time land was forfeited when state
discovered oil on land.
ISSUE: May a state modify its contract
w/ residents due to a state int. in the land?
EXAMPLES OF STATES VIOLATING THEIR OWN CONTRACTS:
NJ substantially alters terms of a K it has
with private citizens. Bonds are bought
from state on condition that bond
proceeds will not support RR passenger
services. The state violates the restriction
(screws over bondholders).
U.S. Trust v. New
431 U.S. 1
Unconstitutional
Jersey
ISSUE: May a state violate the rights of
bondholders subject to the Contracts
Clause?
Yes. This was a valid exercise of state police
power b/c the state was concerned about people
losing their homes.
-Hughes uses “living Constitution” approach.
-States can adjust the remedies b/w creditors and
debtors, but cannot go into the substance of it.
Dilutes the K clause.
Bottom Line: Temporary nature of contract
modification & emergency situation justified the
law as valid exercise of police power.
A State Law is a valid exercise of State’s Police
Power if it is: Appropriate to the Emergency;
Addressed to a Legitimate End; Employs
reasonable Means to that End; Of Temporary
Operation.
Yes. 8-1 opinion; Court says TX was reasonable in
trying to clearly “define” titles as a valid exercise
of police power.
This almost writes out the K clause.
Dissent: You have effectively “written out” the
Contracts Clause from the Constitution and put it
at the lowest level of review (rational basis of
SDP).
No. For the first time in years, Supreme Court
finds a contract clause violation. This is a Public
K—K’s b/w State (Gov’t) and private persons
will be treated differently.
Test When State Violates its Own K w/ Private
Person (Significant Impairment to Public K):
Reasonable and Necessary.
 Reasonable- induced by unforeseen
circumstances occurring after formation of
K.
 Necessary- no other alternative.
This case indicates that courts will closely
scrutinize a state’s attempt to get out of K
99
obligations.
STATES PASSING A LAW IMPAIRING AN EXISTING CONTRACT – for strict scrutiny, must be a significant impairment.
MN law requires employees who worked
No. This is an example of a state acting in its own
for a company over 10 years to receive
self-interest. This is the state’s interference w/
benefits upon termination or the closing
Private Ks. You apply this only to unique
of the plant. These employers must pay
circumstances cases only. This is NOT the general
into a “pension funding charge.” This law rule. Private K’s b/w Private Persons
only applied to Allied Structural Steel.
State law impairing a private K must be
Reasonable and Necessary 
Allied Structural Steel
ISSUE: May a state require employers to
Test: Reasonable and Necessary (US Trust),
428 U.S. 234
Unconstitutional
v. Spannaus
fund pensions for previously unqualified
considering:
employees b/c it is closing its office?
(1) The nature and purpose of the State
legislation, AND
(2) The severity of K impairment.
FROM NOW ON, specific laws targeting private
K obligations will be subjected to higher scrutiny
than general laws that affect broader economic and
social problems.
AL increase in severance tax on oil and
Yes. State law of general applicability (general
gas extracted w/in state is coupled w/ a
law) that incidentally impairs a private K, the
prohibition on passing increase on to
test used is Low Scrutiny Review – reasonable
purchaser through taxation.
basis / any plausible explanation (just like SDP).
Exxon v. Eagerton
462 U.S. 176
Constitutional
ISSUE: May a state increase severance
taxes for oil extracted from state wells but Test: General Law/Tax that is not Significant
prohibit an oil company from passing the
Impairment on K = Reasonable Basis.
costs to consumers?
State regulation of natural gas prices
Yes. This was a reasonable regulation to prevent
(price-fixing – said how much natural gas economic and physical waste of natural gas. A
can be) designed to conserve an important price-fixing order is lawful if substantially related
Cities Serv. Gas Co. v.
340 U.S. 179
local resource.
to a legitimate end sought to be attained.
Peerless Oil & Gas
Constitutional
Seltzer v. Cochrane
104 F.3d 234
Constitutional
ISSUE: May the state require pipeline
companies to pay more for natural gas
than prevailing rates?
State passes a law that exempts debtors
IRA’s from bankruptcy proceedings, and
applied retroactively. P was in
bankruptcy, and sought to exempt funds.
ISSUE: May the state exempt debtors’
IRA’s from bankruptcy proceedings?
General law w/o significant impairment, rational
basis.
Note: see DORMANT CC.
Yes. Doesn’t violate K clause.
The K relationship was significantly impaired –
reasonable and necessary.
Necessary: protection of retirement plans from
bankruptcy (want people to have retirement funds,
otherwise state would have to bail them out).
Reasonable: ceiling on what may be exempted.
100
University of Hawaii
Professional Assembly
v. Cayetano
183 F.3d 1096
Unconstitutional
Hawaii statute w/ respect to state
employees that imposes a delay of payroll
checks for one to three days, and can
happen six times a year. State can delay
check 6 times for teachers.
Passes test.
No. Violates the K clause.
Significant impairment? Yes. Reasonable &
Necessary… Reasonable? Budgetary reasons.
Necessary? No, there are alternatives (like raise
taxes or cut spending).
ISSUE: May a state delay payroll checks
at arbitrary times?
NON-ECONOMIC SUBSTANTIVE DUE PROCESS
 SDP for Economic Regulation  low scrutiny review
 SDP for Non-Economic Regulation  high scrutiny review
SUBSTANTIVE DUE PROCESS AND PRIVACY:
THE RIGHT TO BODILY INTEGRITY: Jacobson v. MA
Jacobson v.
Massachusetts
197 U.S. 11
Constitutional
Mass. law requires everyone in state to be
vaccinated for smallpox. P doesn’t want
to be; arguing that he has a liberty of
body integrity to not be invaded by the
state (argues liberty provision says he can
care for his own body).
ISSUE: May a state make smallpox
vaccination compulsory?
NY statute requires any person riding a
motorcycle to wear a helmet.
People v. Bennett
391 N.Y. Supp. 2d
506
Constitutional
ISSUE: May a state require you to wear a
helmet while riding a motorcycle?
NY statue that prohibits the use of a cell
phone while driving.
People v. Neville
737 N.Y. Supp 2d
251
Constitutional
ISSUE: May a state prohibit the use of
cell phones while driving?
Yes. High scrutiny review - compelling state
interest.
Body integrity is a fundamental right.
To override the liberty interest for your body, state
has to show: Compelling Gov’t Interest (in
health – police power) AND the law is Narrowly
Tailored to further the interest (meaning there
are no reasonable alternatives).
High state interest – public health… State’s
interest overrides fundamental right of bodily
integrity.
Yes. Court held that the right to operate a
motorcycle on the public highways was not such a
fundamental right as to require that regulation
could be justified only by a compelling state
interest. A person wrecking w/o a helmet would
suffer greater injuries than a biker wearing a
helmet. And there is a state interest in protecting
public safety.
Yes. State compelling interest: traffic problem.
It did not unreasonably infringe privacy rights
beyond what was necessary for the state to
exercise its police power to protect public safety,
because drivers could use headsets or pull off the
101
Judge making females make out with him
in chambers in order to get a favorable
decision. A federal statute makes it a
felony for a state officer to violate
constitutional rights.
U.S. v. Lanier
520 U.S. 259
Constitutional
ISSUE: May Congress make a judge’s
violation of the bodily integrity of a
woman a felony?
PARENT’S RIGHT TO DIRECT CHILD’S UPBRINGING: Piece v. Society Sisters
State law banned the teaching of German
by teachers and parents. P, a teacher, was
convicted for teaching it.
Meyer v. Nebraska
262 U.S. 390
Unconstitutional
ISSUE: May a state ban the teaching of
foreign languages to young children?
Oregon law required all children to attend
public schools.
Pierce v. Society
Sisters
Null v. Board of
Education
ISSUE: May a state require all children to
attend public school?
268 U.S. 510
915 F. Supp. 937
Unconstitutional
Constitutional
State allows home schooling, but requires
homeschooled children to take a
standardized test every year.
ISSUE: May a state require all
homeschooled children to take a
road during calls.
Yes. This right is protected by the Due Process
Clause of the 14th Amendment.
Is he involuntarily attacking females? No.
Included in 14th Am. Liberty provision is a
concept to personal bodily integrity that is free
from unlawful abuse to it by the state. The
physical abuse must be serious, of substantial
nature that involves physical force, mental
coercion, bodily injury or emotional damage that is
shocking to the conscience (compare to Jacobson).
No. Court reverses conviction – implying parents
can’t teach German.
List of Rights Recognized:
A right to marry,
Right to raise children w/out undue influence of
the state, and
Right to acquire useful knowledge.
Court interprets the liberty provision of 14th using
a natural law approach.
No. Court held law interfered with liberty of
parents and guardians to direct the upbringing and
education of their children. The state does not have
general power to force children to accept
instruction from public teachers only. State can
have mandatory schooling, but they can’t have
monopoly on school system.
FUNDAMENTAL RIGHT OF PARENTS TO
RAISE CHILDREN THE WAY PARENTS
SEE FIT (or direct education of your children)
w/o undue state interference. However, this right
is not absolute (it can be overridden).
Yes. State can override a fundamental right w/ a
compelling state interest. High Scrutiny Review:
state must show an important or compelling state
interest.
State meets this requirement.
High state interest in standardized test? State can
102
Wisconsin v. Yoder
406 U.S. 205
Unconstitutional
standardized test?
Amish want to take kids out of school
after 8th grade to center their lives around
an agrarian society. Amish feared if not
taken out, they would leave the Amish
community. State law had compulsory
attendance in public schools.
insure an adequate level of education.
No. Because of the history of the Amish is so
compelling, they can be excepted from mandatory
education.
Amish exception for this lifestyle.
Freedom of religion + Pierce case
ISSUE: May the state require the Amish
to mandatory schooling?
Stanley v. Illinois
Weigand v. Houghton
405 U.S. 645
730 So. 2d 581
Unconstitutional
Constitutional
IL statute declared unwed fathers
presumably unfit parents. Upon the death
of their mother, 3 children were placed in
state foster care instead of the custody of
their father.
No. Court held that the father was denied equal
protection of the law because all parents are
constitutionally entitled to a hearing on their
fitness before their children are removed from their
custody.
ISSUE: May the state mandate an
irrebutable presumption that unwed
fathers are unfit parents?
Do fathers have Pierce rights? YES.
No presumption that illegitimate fathers are bad
fathers.
Parents get divorced. Wife gets custody.
Wife lives with guy in trailer who beats
her. Husband moves to California and
lives in a nice home. Father brings suit to
get custody.
Wife won. Ct. held that child's best interest would
not have been served by awarding physical
custody to the father. While both parents exhibited
a great love for the child, which was reciprocal
from the child to both parents, ct. found that home,
school and community record of child was in favor
of the mother.
ISSUE: who gets custody?
DeBoer v. DeBoer
509 US 1301
Constitutional
Children get swapped at birth. Husband is
in Afghanistan. Some reason, mother
doesn’t want kid. Natural mother forges
adoption papers without natural father’s
knowledge or consent, and child ends up
in NY. Natural father brings suit against
adoptive parents to return the child to
him. Child with adoptive parents for 5
years.
ISSUE: May a state allow a child to stay
w/ an adoptive family when the natural
No. Court held that natural parents’ rights are
supreme and that unrelated person are not able to
retain custody of a child whose natural parents
have not been found to be unfit. Courts are not free
to take children from parents simply by deciding
another home appears more advantageous.
Adoptive parents now have emotional bond, so do
real parents lose their rights?
No, natural parents rights are always the highest.
Biological parents always has surmounting rights.
103
In Re Custody of
H.G.H.
father wants child?
Lesbian couple has a child through in
vitro fertilization. Couple breaks up and
the non-birth mother wants visitation
(previously denied visitation).
533 N.W. 2d 419
Unconstitutional
ISSUE: Does the non-birth mother have
rights after divorce?
Florida statute prohibits homosexuals
from adopting children.
Lofton v. Secretary of
Dept of Children and
Family Services
358 F.3d 804
Constitutional
ISSUE: Can the state prohibit
homosexuals from being parents (no
adoption rights)?
Florida statute prohibits homosexuals
from adopting children.
In Re Adoption of
John Doe
2008 WL
5070056
Unconstitutional
ISSUE: Can the state prohibit
homosexuals from being parents (no
adoption rights)?
Yes. To have rights, must be a “de facto parent.”
You can be a de facto parent if (1) with consent
of the natural parent, you have (2) helped with
the upbringing in the same household and (3)
there has been time for bonding with the child.
To get visitation, must prove that the birth
(natural) mother interfered with child’s
relationship with non-birth mother.
Yes. There is no created right to adoption for
homosexual persons. Only a rational basis
needed (states given deference) – logical for state
to assume that homos less able to be parents than
heterosexual couples.
NOTE: SEE EQUAL PROTECTION AND SEX
CLASSIFICATIONS
Dissent: In applying Lawrence, under a rational
basis analysis or, alternatively, an animusmotivated analysis, the Florida adoption statute
was constitutionally flawed
No. Florida state court direct rejection of Lofton,
saying there is no reason to think that homos are
less capable of being parents than heterosexuals.
Cannot presume a homosexual parent is not in the
“best interests of the child.” Cannot have a
categorical exclusion of homosexuals to prove
their fitness as parents.
This is the state court, banning the statute as
unconstitutional under the FL Constitution.
State wide referendum approved the statute that unmarried couples (includes homosexual
Note: Arkansas Supreme Court
couples b/c they can’t get married) cannot be foster parents or adopt a child.
Law overturned!
EXAMPLES OF JACOBSON  GOV’T INVADING YOUR BODILY INTEGRITY
MANDATORY DRUG TESTING: Must pass Four- Part Test: (High Scrutiny Review)
1. Important Government Interest (i.e., a timely prosecution)
2. It Must Significantly Further that Government Interest (i.e., makes D capable to stand trial and no side effects)
3. No Other Alternative Available (Less intrusive means such as non-drug therapy)
4. Must be Medically Appropriate (i.e. in patient’s best interest in light of his medical condition)
104
Note: Special needs exception – drug testing is a special need regardless of law enforcement.
Railroad Engineers are required to
undergo mandatory drug and alcohol
testing after they have been involved in
Skinner v. Railway
an accident.
Labor Executives’
489 U.S. 602
Constitutional
Ass’n
ISSUE: Does the gov’t have a high state
interest in making sure RR engineers
follow the rules?
GA Statute requires political candidates
seeking political office to submit to
mandatory drug testing and pass test
within thirty days prior to qualifying for
nomination or election and test result
must be negative.
Chandler v. Miller
520 US 305
Unconstitutional
ISSUE: Does the gov’t have a high state
interest in deterring political officials
from using drugs?
High School students, who participate in
extra-curricular activities, must take a
drug test.
Board of Education v.
Earl
Ferguson v. City of
Charleston
532 U.S. 622
532 U.S. 67
Constitutional
Unconstitutional
ISSUE: Are these students who are
involved in extracurricular activities more
likely to do drugs?
City police dept. partners with local
hospital. Women, who are admitted to the
hospital to give child-birth, have urine
sample taken as part of admittance. Urine
sample is sent to police for drug test, w/o
the mother’s approval. If the test proves
positive, mother is arrested for child
abuse. Woman comes in to give birth but
she’s high on cocaine.
ISSUE: Is the gov’t allowed to perform
drug test w/o your knowledge and subject
Yes. High Gov’t Interest of public safety to
prevent accidents and casualties on RR that result
from employees impaired by alcohol or drug;
protects the traveling public – Gov’t compelling
interest outweighs privacy and bodily integrity
concerns.
No. Scalia in Oral Argument asked “Does GA
have a problem with officials using drugs?” Gov’t
could not provide evidence of an important
government interest (drug free government). There
was no evidence on record of drug abuse by
elected officials (no problems with making sure
elected officials are drug free). Plus, there are
other alternatives.
Note: Reason for law is b/c teachers were mad
about being tested, so government officials said
they’d do it too.
Yes. Held: 5-4 Opinion. O’Connor dissented and
went crazy. Mandatory drug testing was a
reasonable means of preventing and deterring drug
use among schoolchildren. Consequence of failed
drug test was no longer able to participate in
extracurricular activities.
State has high government interest in ridding
schools of drugs.
No. Largely targeted African American women.
Unlike Earl, Miller, and Skinner line of cases, law
enforcement was involved from the onset, meant
to coerce patients into substance abuse programs.
Patients have a reasonable expectation that test
results will not be shared with nonmedical
personnel without her consent.
This was not a special need of the state.
“Special needs” drug tests aren’t for police dept.
(you don’t go to jail if you fail a drug test for your
job).
105
you to arrest?
Sell v. U.S.
539 U.S. 166
Unconstitutional
D is incompetent to stand trial and is
forced to take antipsychotic drugs, so he
will be able to stand trial.
ISSUE: Does the gov’t have a high
interest in getting D to stand trial?
DNA testing for convicted felons. P had
to DNA test while incarcerated, and was
linked to a sample from an unresolved
rape.
ISSUE: May the gov’t DNA test
convicted felons?
Ohio v. Steele
802 N.E. 2d 1127
Coyote (prostitutes
union)
Dunn v. White
Constitutional
Unconstitutional
880 F. 2d 1188
Constitutional
Major of NY wants AIDS testing for
prostitutes.
AIDs testing for prison inmates. P didn’t
want to do this.
ISSUE: May a prison test prisoners for
AIDS?
MI law requiring Mandatory Drug
Testing for Welfare Benefit Recipients. If
test positive, benefit are withheld.
Marchwinski v.
Howard
309 F. 3d 330
Constitutional
ISSUE: Does gov’t have a high state
interest in making sure welfare funds are
spent on drugs?
Depends. This was held Unconstitutional; on
grounds statute was overly broad.
*Gov’t interest in timely prosecution of criminal
defendants for murder would be constitutional.
Meets the special needs test, and is reasonable.
The special need is increased accuracy and the
database aids future crime solving. Also, it is
reasonable; b/c blood tests are minimally intrusive.
Special Needs: determine whether the statute
meets the special-needs threshold, closely
reviewing it to
(1) Special Needs: determine the search and
seizure's primary purpose and whether that
purpose goes beyond normal law enforcement
needs. If goes beyond, it is a special need. Next:
(2) Reasonable: balance privacy vs. special need.
--Special-needs searches that may ultimately be
used for law enforcement purposes are more likely
to pass if they are conducted in a uniform, nondiscretionary manner.
They have a right to bodily integrity and should
have a good reason for testing inmates for AIDS.
-Good reason b/c of sexual activity in prisons.
-Prison had a substantial interest in pursuing a
program to treat those infected with the disease
and that the prison's substantial interest
outweighed the inmate's expectation of privacy.
Yes. 6th Cir. panel upheld drug test under four part
balancing test. Case goes en banc and ct splits 6-6.
State interest in insuring welfare money being
spent properly.
Compulsory/Involuntary drug testing laws may
violate the right to bodily integrity UNLESS:
1. There is an important gov’t interest
2. The law significantly furthers that goal,
106
3. There are no reasonable alternatives, AND
4. The test is medically appropriate.
EXAMPLES OF HOW TO APPLY PIERCE ISSUES:
Interest Protected: Parent-Child Relationship  parent has a right to raise child as they see fit
State law requiring everyone to salute the
flag. Jehovah’s witnesses compelled to
Constitutional /
salute the flag (big belief against it). Kids
Minersville v. Gobitis
310 U.S. 586
Overruled by
got in trouble at school.
Barnette
ISSUE: May a state require everyone to
salute the flag?
WV Board of Education passed a
resolution requiring students to salute the
flag and recite the Pledge of Allegiance at
West Virginia v.
319 U.S. 624
Unconstitutional
school.
Barnette
Frazier v. Alexandre
Circle Schools v.
Pappert
Morrison v. Board of
Education
555 F.3d 1292
381 F.3d 172
419 F. Supp 2d
937
Constitutional
Unconstitutional
Constitutional
ISSUE: May a state require everyone to
salute the flag?
17 year old refuses to salute the flag.
Teacher tries to make him. FL has a
statute requiring all students to salute the
flag. The only way a student may get out
of this is to have parents request that
student be excused.
ISSUE: Does parental consent allow for
state statutes requiring students to salute
the flag?
State law required children to salute the
flag, but children could opt out on
personal grounds. However, it also
required a notification to the parent when
the student wouldn’t salute the flag.
ISSUE: May the state require a
notification when the child doesn’t salute
the flag?
Mandatory school program to openmindedness (diversity training) regarding
homosexuality (students trashing the
gays); some parents refuse to let their
students attend due to religious beliefs.
Yes. Nothing in the constitution about right not to
salute the flag. Concern over flag saluting, go to
the political process.
Note: Three years after this… Jehovah’s
witnesses were beat up because they wouldn’t
salute the flag.
No. No compulsory flag saluting. Infringed on the
student’s 1st Amendment rights.
“No official shall decide what will be orthodox in
matters in nationalism and religion.”
--New right to not salute the flag (uncon. to
make someone salute the flag).
Yes. The court held that this was constitutional,
allowing for parental consent to exempt a student
from not saluting the flag. School can require
permission.
Note: Court says it was the parent’s right to decide
whether their child should be required to salute the
flag – it was not up to what the student wanted.
-Compare w/ Carey v. Population Services where
juveniles were given the right to obtain
contraceptives.
No. Parental notification clause violated student’s
rights.
Thus, can require them to have permission from
parent to salute flag, but won’t allows schools to
notify parents if child won’t salute.
No. If you don’t like it, you can move!
They do not have a constitutional right to direct
how a public school teaches their child.
No fundamental right to direct the curriculum
of public schools.
The training was neutral, only targeted disruptive
107
ISSUE: Can parents control school
curriculum?
School has a mandatory community
service program.
ISSUE: Can schools require public
service?
Immediato v. Rye
Neck School Dist.
73 F.3d 454
Constitutional
& harassing behavior, and left religious
conclusions to the students and their families.
Yes.
The public service did not violate the parents'
rights to control the upbringing and education of
their son, because they had no right to provide
their child with education unfettered by reasonable
government regulation.
The community service wasn’t involuntary
servitude (not against 13th Amendment), the
service time was not burdensome, and the parents
had other choices in schools.
Prince v.
Massachusetts
Nicholson v. Scoppetta
321 U.S. 158
344 F.3d 154
Constitutional
Unconstitutional
Jehovah’s Witness mother was convicted
of violating state child labor laws when
she and her daughter were street
preaching.
Yes. State can override a fundamental right w/ a
compelling state interest. High scrutiny review test
for fundamental rights. This is an example of state
meeting the high scrutiny.
ISSUE: May a state override a
fundamental right of free speech and
practice of religion?
High state interest is child labor law.
Dept. of Social Services in NYC passes
regulation that removes children from the
custody of a parent who has been battered
by a spouse, based on the theory that the
parent’s failure to protect the child from
witnessing abuse is itself a form of child
neglect. Policy based on presumption that
battered women are bad mothers.
No. Court found that removals were unreasonable
seizures and against the interests of parents and
children in staying together as a family. There
were other alternatives that could have protected
the children.
Note: anti Jehovah’s Witness.
No nexus between domestic abuse (wife getting
beaten) and being a bad mother.
Wife isn’t a bad mother b/c husband beats her!
ISSUE: May a state remove a child from
mother’s care if mother is abused by
spouse?
Florida v. T.M.
761 So. 2d 1140
Constitutional
Curfew law: no kids can be on the street
from 11 PM to 6 AM. Law does provide
exceptions, such as when accompanied by
parents, emergencies, and religious or
school sponsored activities.
No. Gets low scrutiny b/c not a right.
Limitation on parents’ discretion (curfew) is
related to the purpose of the curfew law (reducing
juvenile crime).
Dissent: no evidence of a nexus of high crime and
108
ISSUE: Is there a parental right to impose
their own curfew?
Curfew for kids. Same exceptions as
above. Notable, there is no parental
consent exception.
Anonymous v. City of
Rochester
Parham v. J.R.
442 U.S. 584
Unconstitutional
Constitutional
Intermediate Scrutiny Review for curfews 
substantial relation (proven nexus b/w state
interest and ordinance).
Given higher scrutiny b/c children have some sort
of rights; not sure how much.
Yes. Under Pierce, parent has right to raise child
as they see fit. If given parental consent, trust the
parents (assumes parents act in the best interests of
child)… parents can make medical judgment better
than children.
State statute that permits parents to
commit their children to mental
institutions on the mere basis of a
signature of a parent (no formal
evaluation).
ISSUE: May a parent commit a child with
just a signature as their consent?
3 year old has cancer, wants to do a
radical chemo that gives a 40% chance of
survival. Parents don’t want the kid to
undergo the treatment (religious
objection). Child Services sought
temporary custody to authorize treatment.
Newmark v. Williams
588 A.2d 1108
No. Absent parental consent exception, it is
unconstitutional.
State Interest: reducing juvenile crime… 85% of
juvenile crime in Rochester was outside the curfew
hours, so there’s no evidentiary basis to say
juveniles were responsible for their crime.
ISSUE: May the state impose curfew
laws w/o a parental consent exception?
915 N.E. 2d 593
juveniles being out. Also, not a high state interest.
Unconstitutional
ISSUE: May the state undergo life
threatening treatment on a child without
the parent’s consent?
Note: this statute is subject to abuse. Thus, the
court also required an independent inquiry into the
facts of the child to see if satisfied admission.
No. Parents had the legal right to make important
decisions for their child. Also, child can’t make an
informed decision (too immature, so doesn’t get
his right to determine his best interests).
State interest compelling to override right? Health
and safety of child (child is neglected if not given
treatment) – Not enough evidence that medical
treatment will be successful (40%). The State's
interest in forcing a minor to undergo medical care
diminishes as the risks of treatment increase and
its benefits decrease.
Also, the objective “best interests of the child”
standard, when parents refuse medical care, points
in the favor of not undergoing treatment
(evaluating risk v. success).
However, if there is enough evidence the medical
treatment will be successful, then state interest
109
may override the parents lack of consent.
RIGHT TO PROCREATE:
Skinner v. Oklahoma
Buck v. Bell
Gerber v. Hickman
316 U.S. 535
274 U.S. 200
291 F.3d 617
OK State law that had compulsory
sterilization after third felony conviction.
No. Under strict scrutiny review, this violates the
right to procreate.
ISSUE: May a state sterilize habitual
criminals?
Test (for sterilization): state must have
compelling interest + other alternatives.
Unconstitutional
Constitutional
Constitutional
State law authorized the sterilization of
institutionalized mental patients.
ISSUE: May a state sterilize crazy
people?
Guy in prison, and is married. Inmate
wanted to artificially inseminate his wife
because he was ineligible for family
visits. He wants to ejaculate in a bottle
and the prison to mail it to his wife so
they can have her fertilized & get
pregnant. State says no way!
ISSUE: Does the inmate have a right to
artificially inseminate his wife?
Wisconsin v. Oakley
629 N.W.2d 200
Constitutional
D, who during the relevant time period
paid no child support and was in debt in
excess of $25K, challenged the
constitutionality of the condition of his
probation (parole restriction) that he not
father another child unless he could show
that he could support that child and his
current children. Defendant argued that
the condition violated his right to
procreate.
*“Fundamental right” to procreate (a liberty not
tied to a constitutional guarantee).
However, case avoided the question of due process
by relying on the equal protection clause instead,
and invalidated the law.
Yes. This was not held to violate the right to
procreate. Justice Holmes’s opinion says that
“three generations of imbeciles is enough.”
Ct. held that right to procreate was fundamentally
inconsistent with incarceration and thus inmate's
constitutional rights were not violated b/c loss of
marital rights to cohabitation, sexual intercourse,
and bearing/rearing children, were superseded by
the fact of confinement.
Held there’s a right to procreate; Test: does prison
have an important, compelling interest in
preventing this?
Legitimate interest found b/c press got pissed!
TEST: Legitimate penological concern? Yes.
*The court concluded that this was not a complete
denial of the right to procreate inasumuch as it
hinged upon the support qualification.
-The condition was reasonably related to the
probationary goal of rehabilitation because it
would assist defendant in conforming his conduct
to the law. The condition was narrowly tailored to
serve the compelling state interest of requiring
parents to support their children as well as
rehabilitating those convicted of crimes.
Compare with Zablocki – There must be a direct
and substantial interference (with the right to
marry) to get high scrutiny. There was in Zablocki,
110
b/c the state denied marriage license if delinquent
in child support.
RIGHT TO PRIVACY:
CT outlawed the use of contraception by
married couples.
ISSUE: Is there a fundamental right to
privacy for married couples in the
bedroom?
Griswold v.
Connecticut
381 U.S. 479
Unconstitutional
Yes. High Scrutiny Review. To enforce this law,
the police would have been able to go into married
couple’s bedrooms to check for birth control
(crazy!). Reasonable right to privacy.
There’s a right to privacy in the bedroom.
 Douglas’ majority opinion claims right to
privacy is found in penumbras from
Bill of Rights. Says you shouldn’t apply
Lochner.
*Right of privacy applies to the bedroom; there’s
no state interest.
 Goldberg opinion believes 9th
Amendment protects right to privacy.
Says the test is “whether or not the
interest of right is in the tradition and in
the collective conscience of the people.”
Marital privacy is in the traditions of the collective
conscience of the people.
 Harlan’s opinion says the law violates
basic values “implicit in the concept of
ordered liberty.” And this law “shocks the
conscience.” Can only enforce the CT
statute through police powers and
shouldn’t police the bedroom.
Concept of ordered liberty: Cannot let the
government engage in outrageous conduct (shocks
the conscious – Rochin)
 White, concurring: Purpose of this law is
to stop promiscuity/illicit sex; there’s no
nexus between this goal and the choice of
means of prohibiting contraceptives. It’s
so ridiculous it doesn’t even pass under
low scrutiny review.
 Black’s dissent: look to intent of drafters.
Note: If this has been about the manufacturing of
contraception, it would have fallen under
economic regulation of SDP – low level review.
The law would have been okay.
--Lottery cases: states can regulate on basis of
111
City ordinance says that you can’t solicit
or sale door-to-door w/o getting prior
permission of the owner of the house.
Beard v. City of
Alexandria
341 U.S. 622
Constitutional
ISSUE: May the right of privacy override
a CC violation?
morals, and has low scrutiny. However, this is
regulating morals (not on the basis of morals).
Yes. Supreme Court held that this did not interfere
w/ IC. Apply Pike test. There was a compelling
state interest in protecting the privacy of people in
their homes.
Right to privacy of the home overrode CC.
Cochran: Seems like an old Griswold.
Note: SEE CC.
Lovisi v. Slayton
539 F.2d 349
Constitutional
Lovisi (married couple) had threesomes
in their bedroom and their daughters take
Polaroid’s and take them to school to
show their friends. Couple charged with
crimes against nature. Couple argues
privacy in the bedroom.
ISSUE: Does the right to privacy in the
bedroom protect every act in the
bedroom?
Appellant convicted of distributing
contraceptive foam to an unmarried
woman in violation of Mass. statute.
Eisenstadt v. Baird
405 U.S. 438
Unconstitutional
ISSUE: Does right to privacy in bedroom
apply to unmarried people?
Carey v. Population
Service
NY statute prohibits sale or distribution
of contraceptives to minors under 16.
State argued the ban was justified as a
regulation of the morality of minors.
431 U.S. 678
Unconstitutional
ISSUE: Should children be given
constitutional rights?
No. Only protects reasonable acts. Ct. held that
married couple had waived their right to privacy
by exposing the photographs to the children.
Constitution protected the right of privacy in
circumstances in which it might reasonably be
expected, but that once a married couple admitted
strangers as onlookers, federal protection of
privacy dissolved.
Yes. Court held that state statute violated equal
protection and that there was no rational reason for
the different treatment of married and unmarried
people.
Extends Griswold Right of Privacy to
unmarried folks (single people).
Yes. Court held that juveniles have a fundamental
right to contraceptives and a constitutionally
protected right of decision making in matters of
childbearing. There was no high state interest for
the restriction.
Fundamental right of juveniles to have
contraceptives.
Pike Analysis: state interest?
Rational means for the accomplishment of some
112
significant state policy requires more than a base
assertion that the taking away of a right is
connected to such a policy.
Police Officer Invasion of Bodily Integrity  Excessive Force
4th Amendment – no unreasonable search and seizures.
8th Amendment – no cruel and unusual punishment.
Police officer makes diabetic get out of
his car who is having an attack. Officer
says he’s drunk and slams his head
against hood of car.
Graham v. Conner
Note: Article
Hudson v. McMillian
Wilkins v. Gaddy
490 US 386
Remanded
4th Amendment ISSUE: Could a
reasonable officer know he wasn’t drunk
and was having a diabetic attack?
Remanded to determine whether reasonable police
officer under circumstances would’ve done the
same thing.
All claims for excessive force during the course of
an arrest (or other seizure of a free citizen)
analyzed under the 4th Amendment’s objective
reasonableness standard, rather than under a
substantive due process standard or the 8th
Amendment analysis.
Objective 4th Amendment Analysis: objective
reasonableness under the circumstances.
The gun-toting 22-year-old shot dead by a rookie cop outside a Brooklyn elementary school was addicted to cough syrup and "acting like
Rambo," police said. George D'Amato was drinking in the hours before Monday's confrontation outside Public School 194.
Cops initially reported after Monday's incident that D'Amato may have been carrying a very realistic-looking imitation pistol. Tuesday, they
clarified that the weapon was a pellet gun.
The young man's father suggested Tuesday that the officer faced a tough call in either case, not knowing whether the weapon was real.
Inmate beaten up by a prison guard.
Yes. As long as there’s some injury that’s
Inmate suffers minor bruises, facial
noticeable of some sort there’s an 8th Amendment
swelling, loosened teeth after being
problem.
beaten.
--Held: No force was required and was objectively
unreasonable. The conduct of the prisoner guards
8th Amendment ISSUE: Can minor
was clearly excessive and occasioned unnecessary
injuries against a prisoner constitute cruel and wanton infliction of pain.
& unusual punishment?
8th Amendment Analysis: To prevail on a claim of
503 US 1
Unconstitutional
excessive force, a plaintiff must establish that the
force was not applied in good faith to restore or
maintain discipline but was “maliciously and
sadistically to cause harm” and caused minimal
injury.
-“Shocks the Conscious” of the Ct. under Ronchin.
Dissent: 8th Amendment only covers sentences, not
physical punishment.
Wilkins was a prisoner. Gaddy, prison
Remanded.
130 S. Ct. 1175
Remanded
guard, slammed Wilkins against the
To prevail, the prisoner would ultimately have to
concrete floor, punched & kicked him,
prove not only that the assault actually occurred
113
and choked him.
but also that it was carried out "maliciously and
sadistically" rather than as part of a good-faith
effort to maintain or restore discipline.
TX statute outlawed abortion except for
the single reason of saving the mother’s
life; pregnant single woman and a
married couple brought suit challenging
the constitutionality of the statute.
No. Court held that abortion was w/in the scope of
the personal liberty guaranteed by the Due Process
Clause of 14th Amend. But the right is NOT
absolute; could be regulated by narrow legislation
aimed at compelling state interest in mother’s
health and safety and the potentiality of human
life.
1st Trimester: there is an unregulated right to
an abortion. No state interest.
2nd Trimester: government can regulate
abortions “to preserve and protect mother’s life
or health.” State interest in to regulate that
reasonably relate to maternal health.
3rd Trimester: when the human life becomes
viable (baby can live outside of mother's womb),
Gov’t can stop abortion except to preserve the
mother’s life / health (also include mental health).
RIGHT TO CONTROL YOUR BODY:
ISSUE: May a state ban the right to an
abortion when a woman wants to do it?
Roe v. Wade
410 U.S. 113
Unconstitutional
Texas statute outlawed practice of
acupuncture without a license.
Andrews v. Ballard
Lambert v. Yellowley
498 F. Supp. 1038
272 U.S. 581
Unconstitutional
Constitutional
ISSUE: Do people have the right to
receive whatever medical care they want?
During prohibition. Federal statute
making it a felony for a doctor to
prescribe more than a pint of liquor to the
same person within a period of 10 days;
after that they can refill it only once.
Prohibition directors brought suit against
physician who prescribed alcohol for
medicinal purpose and use more than he
was supposed to.
Right of privacy is broad enough to encompass a
woman’s decision whether or not to terminate her
pregnancy.
*Privacy of Abortion.
Yes. Court held that decision to obtain
acupuncture was personal and important enough to
be encompassed by the right of privacy protected
by 14th amendment. Further, there’s no evidence
acupuncture is harmful.
Only case to hold that you have a right to choose
your own medical care.
Yes. Court held that restrictions against
prescribing alcohol for medicinal purposes were
constitutional b/c the legislation had substantial
relation to the appropriate enforcement Prohibition
and the right to practice medicine was subordinate
to the police power of the states.
114
ISSUE: May the gov’t limit access to
drugs that are banned/illegal being used
for medicinal purposes?
Patients terminally ill with cancer brought
action against Fed gov’t from interfering
with the interstate shipment and sale of
Laetrile, a drug not approved under FDA,
but that is used in other countries to
combat cancer.
U.S. v. Rutherford
442 U.S. 544
Constitutional
ISSUE: Does the gov’t have a compelling
state interest in not allowing cancer
patients access to drug they want?
Yes. Court held that for purposes of FDA’s
prohibition against the interstate distribution of
any “new drug” unless approved for health, safety
and effectiveness, there is no exemption for drugs
used by the terminally ill. Gov’t is worried those
cancer patients weren’t using other methods of
medicine and that taking Laetrile might expedite
cancer patients’ death. Court seems to value
human life more.
Constitutional ban b/c if you let patients take
Laetrile even if it doesn’t work, other people will
start taking it for miraculous results.
Abigail Alliance v.
Von Eschenback
495 F.3d 695
Constitutional
FDA refused to allow terminally ill
patients the right to access experimental
drugs determined by the FDA after Phase
1 trials to be sufficiently safe for
expanded human trials.
FDA has 4 level testing procedures for
drug to pass safety requirements: Phase 1
- drugs are safe for human testing; Phase
2 - drugs have limited human testing for
short-term side effects; Phase 3 - Full
clinical trials. If there’s any question
there’s a Phase 4; it not, it’s approved.
ISSUE: Does the gov’t have a compelling
state interest in now allowing cancer
patients access to drug they want?
Yes. Court held that there was no fundamental
substantive due process right of access to
experimental drugs for the terminally ill and that
FDA’s policy of limiting access to investigational
drugs was rationally related to legitimate state
interest in protecting patients from potentially
unsafe drugs with unknown effects.
No constitutional right to unapproved drugs.
Constitutional to prohibit drug use before
completing phases.
Fundamental right of terminally ill, mentally
competent adults to have access to potentially
life-saving experimental drugs IF:
1. They are sufficiently safe for human
use; AND
2.
There are NO alternative gov’t-
115
approved treatment options.
PA abortion statute challenged b/c of its
limitations on the availability of abortions
in the state. Suit brought saying SDP
violation.
ISSUE: May a state limit availability of
abortion in spite of Roe v. Wade?
Note: Article
Nebraska passes law to make it a felony
to abort a fetus 20 weeks after inception.
Planned Parenthood v.
Casey
505 U.S. 833
No. Roe now becomes more than just about
violation of right to privacy. There is a SDP
violation.
THIS IS THE MODERN LAW TEST – Undue
Burden Standard: A law is invalid if its purpose
or effect is to place a substantial obstacle in the
path of a woman seeking an abortion before
fetus attains viability.
 3rd trimester abortion still available. Must
show it is for the life and health of the mother
(includes mental & physical health).
 Viability now determined by doctors, not just
in the 3rd trimester.
st
1 & 2nd Trimester anti-abortion laws violate
the Right to Privacy if they impose an “undue
burden” on the woman’s right to control her
body.
Unconstitutional
The O’Connor opinion reaffirmed Roe: “Defining
one’s own concept of existence is at the heart of
liberty.”
(1) A state may not burden a woman’s right to
choose before the point of viability.
(2) A state may adopt health regulations but may
not unduly burden a woman’s choice.
(3) A mandatory 24-hour waiting period does not
unduly burden a woman's choice.
(4) Spousal notification unduly burdens a woman's
choice.
(5) Parental consent is not an undue burden if
judicial bypass procedures are available.
(Cochran asks: Should parents be involved here
even though they can’t be involved w/ child’s use
of contraception?)
-To overrule Roe would mean: Court would lose
its legitimacy and woman have relied on this right.
116
Gonzales v. Carhart
127 S. Ct. 1610
Constitutional
Statute made it a felony for a doctor in or
affecting IC to perform a partial birth
abortion (3rd Trimester Abortion).
Is this Constitutional?
Yes. 5-4 vote to uphold the ban. An exception is
made to allow for these types of abortion for the
life of the mother.
IS this a CC violation? No. Go to Lopez – it’s
economic so you can aggregate.
SDP: PIERCE RIGHTS (family, parenthood, and bodily integrity) & COERCION
In this line of cases, the question is: are the state’s actions passive (child’s action voluntary) – constitutional; or are the state’s actions coercive (child’s action
involuntary) – unconstitutional.
15-year-old girl takes Plan B issued by
No. This is voluntary, not coercion of taking the
public health clinic. Suit is brought by
pills. Counseling and testing will be interfering
parents against the clinic, claiming it
with parental rights if it is coercive, manipulative,
violated their rights as parental guardians
or restraining conduct.
Anspach v. City of
503 F. 3d 256
Constitutional
by the clinic not telling them that it gave
Philadelphia
her the pills.
-Passive failure on the part of a state agency and
ISSUE: If a parent isn’t notified by the
its employees cannot form the basis of a
clinic, does this interfere with their
constitutional claim.
parental rights?
-Hypothetical: High school gives away condoms.
Federal funding limitations barred
No. Court says you have the right to have an
payments even for most medically
abortion; however, the state is not required to
necessary abortions going beyond the law enable you to exercise that right.
Harris v. McRae
448 U.S. 297
Constitutional
in Maher.
ISSUE: Is the federal law in not granting
funding for abortions denying a
fundamental right?
Guidance Counselor in high school finds
Yes. Coercion to get abortion.
out student is pregnant; gives her a
These actions amounted to coercion of a minor to
pregnancy test and arranges for her to get obtain an abortion or to refrain from discussing the
Arnold v. Board of
an abortion, pays for it and tells her not to matter with her parents in violation of the latter's
880 F.2d 305
Unconstitutional
Education
tell her parents.
parental rights
ISSUE: Does advice to get an abortion
and not tell the parents amount to
coercive conduct?
Swim coach thinks one of his swimmers
Yes. Coercion to take pregnancy test. The school
is pregnant; tells her that if she doesn’t do overstepped its bounds by acting in a coercive
Gruenke v. Seip
225 F. 3d 290
Unconstitutional
a pregnancy test, she’s off the team.
manner to a course of actions she objected to
ISSUE: Does a forced pregnancy test
(without her invitation and against her wishes).
amount to coercive conduct?
This is against parental rights.
DARE program in high school in ME;
No.
girl involved is 12. DARE officer and
Grendell v. Gillway
974 F. Supp. 46
Unconstitutional
high school counselor talk to girl asking
The officer's coercive extraction of indicting
her about her parents at home, basically
information from an eleven-year-old girl about her
117
tell her that she must tell them what’s
going on at home b/c they want to “help”
her parents. She finally tells them there’s
marijuana at home; they raid her home;
arrest her parents. ISSUE: May a child be
coerced to rat her parents outs?
parents was shocking to the conscience and
unworthy of constitutional protection (Ronchin).
INFORMATIONAL PRIVACY
GATHERING DATA ABOUT INDIVIDUALS & BACKGROUND CHECKS
Is there a constitutionally-protected privacy interest in not having the government gather information about oneself, or in not having the government release this
information?
NY statute requires a centralized
Ct. upheld the law finding a constitutionally
computer filing system for all
protected zone of privacy that included an interest
prescriptions written for controlled
in avoiding disclosure of personal matters, but that
substances that have potential for abuse.
the law adequately protected privacy when it
Whalen v. Roe
429 US 589
Constitutional
limited access to the list and built in protection
ISSUE: whether the state could record in
from disclosures.
a centralized computer file the names and
addresses of all people who obtained
Right to privacy in medical records.
drugs via doctor's prescription without
***Right to privacy to avoid disclosure of
violating their privacy rights?
personal matters.
When you take the Bar exam, there’s an
Yes.
intense background check. P said this
Law Students Civil
violates right of privacy.
Need background checks to discern character of
Rights Council v.
401 U.S. 154
Constitutional
potential lawyers to prevent malpractice and abuse.
Wadmond
ISSUE: May the Bar do an intense
There was a nexus.
background check?
Doctor was giving physical examinations No.
of government employees but he had
Nexus? No. You can’t get AIDs from getting an
AIDS. Government found out. He was cut exam from someone infected
off from this clientele b/c he had AIDS.
John Doe v. Attorney
941 F. 2d 780
Unconstitutional
An individual's HIV-status is afforded
General of U.S.
ISSUE: May a doctor be cut off from
informational privacy protection and that the
examining government employees
government may seek and use such information
because he has AIDS?
only if its actions are narrowly tailored to meet
legitimate interests.
Woman seeking a position in the police
No. Not narrowly tailored.
dept. Given a polygraph examination and Nexus: Does being a good police officer have
was asked about past sexual relations and anything to do with having had an abortion? No.
Thorne v. City of El
726 F. 2d 459
Unconstitutional
whether she had an abortion.
Segundo
ISSUE: May a potential police officer be
asked about private matters not pertaining
to police work?
118
Neuberger v. Gordon
567 F. Supp.2d
622
Unconstitutional
Prosecutor is accused of (by county
officials in the newspaper) not
prosecuting the way he should have due
to a tumor. He is dying of a tumor.
ISSUE: Has there been a divulgence of
private information?
Yes. County divulged his medical records. Whalen
v. Roe establishes rights to privacy in medical
records. Violated his right to privacy under the 14th
Amendment.
- Ex. of taking state COA (tort) and making it a
federal COA (Constitutional tort).
THE RIGHT TO MARRY:
Cases Recognizing the Right to Marry as Fundamental: Government Interference is allowed only if strict scrutiny is met.
Look for: A prohibition/ban on marriage versus only a burden, infringement on marriage. Must be a direct & substantial interference with right to marry to be held
unconstitutional, and if so, the government must pass strict scrutiny before interfering with this liberty.
Modern Test: Compelling State Interest? Narrowly tailored?
*No direct and substantial interference (Zablocki) with the fundamental right to marry (Loving v. Virginia) – not a ban on marriage.
State statute makes it a crime for a white
Yes. First case to recognize the fundamental
person to marry outside the Caucasian
right to marry. Court declared: “The freedom to
race, i.e. bans interracial marriage.
marry has long been recognized as one of the vital
Interracial couple is prosecuted in
personal rights essential to the orderly pursuit of
violation of the statute.
happiness by free men. Marriage is one of the
Loving v. Virginia
388 U.S. 1
Unconstitutional
“basic civil rights of man,” fundamental to our
ISSUE: Is there a fundamental right to
existence and survival. Protected under liberty
marry?
provision of due process clause.
Fundamental right to marry: increase judicial
review; state must have a compelling
governmental interest (High Scrutiny)
State law prohibits an individual from
No. Court held violated equal protection clause.
obtaining a marriage license without court The law prevented individuals who were unable to
approval if the person is delinquent on
pay the owed child support from getting married,
child support payments. Court refused to
but no money was given to the applicant’s
grant permission to marry unless provide
children. Alternative ways of ensuring child
proof all child support payments are up to support was paid that were less restrictive than the
date.
right to marry, such as: garnishing wages, civil
contempt actions, and criminal prosecutions.
ISSUE: Does delinquent child support
Zablocki v. Redhail
434 U.S. 374
Unconstitutional
payments preclude a person’s right to
There must be a direct and substantial
marry?
interference with the right to marry (to get
higher scrutiny).
Compelling governmental interest: child support
payments; however, there are other alternatives
than denying marriage to another (Dean Milk).
Failed High-Scrutiny Review. Powell wrote
concurring opinions but thought case should have
119
Boddie v. U.S.
401 U.S. 371
Unconstitutional
Murillo v. Bambrick
681 F2d 898
Constitutional
Califano v. Jobst
Johnson v. Pomeroy
Parks v. City of
Warner Robbins
434 U.S. 47
294 Fed. Appx.
397
43 F.3d 609
Constitutional
Constitutional
Denying court access if unable to pay for
divorce filing fee. Indigent couple can’t
pay it, so can‘t get divorced.
ISSUE: is this a substantial interference
with the right to marry?
Filling fee for divorce.
ISSUE: is there a fundamental right for
divorce?
Provision of the Social Security Act
reduces benefits b/t marriages by disabled
beneficiaries covered under the Act.
ISSUE: is this a direct interference with
the right to get married?
Denial of extended workers compensation
benefits if your wife gets a certain
income.
ISSUE: is this a direct interference with
the right to get married?
Anti-nepotism in police dept. Couple
can’t work in same department. Suit
brought for interfering with fundamental
right to marriage.
Constitutional
ISSUE: is this a direct interference with
the right to get married?
JLN v. Alabama
894 So. 2d.738
Unconstitutional
Harbury v. Deutch
233 F 3rd 596
Constitutional
AL statute: If you’ve been convicted of a
sex crime, you can’t live within 1000’ of
your victim. JLN has done time for
statutory rape (he was 17 and made out
with a 14 year old). When he gets out, the
girl and her mother move in with him and
plan on getting married.
ISSUE: is this a direct interference with
the right to get married?
Widow claims the CIA tortured and
applied due process analysis.
Yes. The filing fee is no good, b/c state has a
monopoly on the means of dissolving marriages.
States can’t pre-empt the right to dissolve this
legal relationship without affording all citizens
access to the means it had prescribed for doing so.
No. low scrutiny… rationally related to help pay
for services done to do the divorce.
**Distinguish from Boddie: this statute allows an
exemption from paying the fee for indigents.
Therefore, it is not a direct interference with the
path to marriage.
No, only indirect interference, lower scrutiny.
Distinguish from Zablocki which Supreme Court
has said there must be a direct and substantial
interference with the right to marry to trigger
heightened scrutiny. In this case, it was only an
indirect interference w/ the right to marry.
No. To a direct interference with the path to
marriage. No indication the denial of the
husband’s claim was an attempt to interfere.
No. Indirect interference gives lower scrutiny.
Anti-nepotism policy does not deny city
employees the right to marry. It only prohibits
married persons from working in same
department.
Legit government interest: City’s desire to
promote the public good in civil service
employment by controlling possible conflicts.
Yes. Direct interference with fundamental right to
marry.
She could not provide proof of a direct and
120
murdered her husband, a Guatemalan
citizen, and alleges her husband was
murdered for the purpose of ending her
marriage.
ISSUE: is this a direct interference with
the right to get married?
Two homosexual males are denied a
marriage license.
Dean v. District of
Columbia
Cote-Whitacre v. Dept.
of Public Health
Kantaras v. Kantaras
Turner v. Safley
653 A.2d 307
844 N.E.2d 623
884 So. 2d 155
482 U.S. 78
Constitutional
Constitutional
Constitutional
Unconstitutional
ISSUE: is there a fundamental right for
homosexual marriage?
MA allows homosexual marriage. 8
nonresident same-sex couples brought
action challenging constitutionality of
statutes prohibiting marriage in cases
involving nonresident homosexuals
intending to continue living in jurisdiction
in which the marriage would be void or
prohibited if contracted in home
jurisdiction.
Sex change of female to male. The
transgender meets a female and wants to
marry her. The transgender puts “his”
gender as “male” when applying for
marriage. FL statute says no same-sex
marriage.
ISSUE: May a postoperative transgender
remarry in the reassigned sex?
State law prevents prisoners from getting
married unless the superintendent gave
permission. By law, he can only grant
permission if there is a “compelling
reason” – pregnancy or birth of child is
generally only considered compelling
reason.
substantial interference with her marriage, i.e. her
husband was killed for the purpose of denying her
companionship.
-Has her right to marry been infringed? Yes, but
the intent wasn’t to deprive her of marriage; the
intent was different.
-But can she even sue this CIA guy for this? YES.
No. Same-sex marriage is not a fundamental right
protected by the due process clause, b/c the
relationship is not “deeply rooted in the Nation’s
history and tradition.” All suits are losers under
this case.
-Upheld DC statute under STATE LAW – not
under federal constitution.
**There’s no federal case saying homosexual
marriage is a fundamental right.
Ct. held that those couples who did not reside or
plan to reside in Massachusetts could not obtain a
marriage license.
PIC VIOLATION? No, b/c the right is portable, so
don’t get the same privileges as the citizens of that
state (Saenz).
No. All cases except NJ, say you’re bound by your
birth certificate.
Male and female are immutable traits determined
at birth.
Prisoners retain the right to marry, but unlike the
usual strict scrutiny for fundamental rights, the
government may interfere with prisoners’ rights if
the action is related o penological objectives,
meaning they could regulate the time and
circumstances of the marriage ceremony and
prevent couple from cohabitating, but not forbid
all marriages.
TEST: Legitimate penological concern? No.
-Compare to Gerber v. Hickman – sperm donor in
121
Inmate was denied conjugal visits.
Hernandez v. Coughlin
18 F.3d 133
Constitutional
Reynolds v. United
States
98 US 145
Constitutional
Bronson v. Swenson
394 F. Supp. 2d
1329
Constitutional
ISSUE: Does denial of conjugal visits
while incarcerated violate the marital
rights of privacy?
UT statute outlaws polygamy. Man on
trial for polygamy in Utah b/c he married
a second wife while his first wife was still
living.
ISSUE: Is there a fundamental right to
polygamy?
Man denied marriage license to marry a
second wife, & his first wife consented.
jail.
No. This is a privilege, not a right!
The fact that New York State's penal system
allowed for inmates to take part in conjugal visits
with their spouses in no way established a
constitutional right of marital intimacy for those
privileges.
No. Court affirmed D’s conviction for polygamy.
The constitutional guaranty of religious freedom
was not intended to prohibit legislation in respect
to polygamy. Religious belief cannot be accepted
as a justification of an overt act made criminal by
law of the land.
United States Supreme Court holding in Reynolds
was still the law of the land on the issue of
polygamy and the free exercise of religion.
Also, Utah has a high state interest in
monogamous marriage.
IN VITRO FERTILIZATION CASES:
Ferguson v. McCurin
940 A.2d 1236
Constitutional
Woman has a child through in vitro
fertilization with a man she admires, upon
condition that she would never seek child
support, and father would not seek
visitation rights and his identity would
remain anonymous. The sperm donor
then marries and has two children.
Woman files suit for child support.
ISSUE: Is the K binding even though it
denies mother child support from father?
Yes. The contract is enforceable and binding.
Sperm donor prevails; to hold otherwise would
undermine the theory of in vitro fertilization.
Municipality's housing ordinance that
regulated what categories of relatives
might live together, categorized a second
grandchild living in his grandmother's
home as an illegal occupant.
Ct. held that the ordinance was a violation of due
process of 14th amendment because constitutional
right to live together as a family was not limited to
the nuclear family and that such intrusion into
family life was not constitutionally protected
-This is the modern test for determining
constitutional violations of rights that are not in the
constitution.
*Test: Fundamental rights can only be found if
they are deeply rooted in this nation’s history
and tradition (and solid recognition of the
fundamental rights that underlie our society).
Hypo: Can a man ever agree with a woman to not
pay child support? NO… it violates public policy.
The law (can’t enter an agreement saying you
don’t have to pay child support b/c the K is against
the public interest) doesn’t apply to sperm donors.
SDP: HISTORY AND TRADITION (Moore v. East Cleveland)
Moore v. East
Cleveland
431 US 494
Unconstitutional
COCHRAN: THIS WAS ONE OF THE
MOST IMPORTANT CASES IN THE
CASE BOOK.
122
Rice v. Sioux City
Memorial Park
Cemetery
Belle Terre v. Boraas
349 U.S. 70
416 U.S. 1
Unconstitutional
Constitutional
Mazurek v. Armstrong
520 U.S. 968
Constitutional
Sammon v. New
Jersey Board of
Medical Examiners
66 F.3d 639
Constitutional
Cemetery limits burial lots for whites
only. Against the wife’s request, the
cemetery refuses to bury her husband, an
Indian, in its cemetery.
NY village zoning ordinance restricts
community to single family dwellings.
No more than two unrelated persons
could live in a single family residence.
ISSUE: May the court draw the line at
marital or blood ties with person’s right to
privacy?
Montana midwife is the only one in the
state. MT passes a “doctors only” statute
for abortions. This effectively puts the
midwife out of business.
ISSUE: does a “doctors only” statute for
abortions = an undue burden for women?
Licensing requirements for NJ midwives.
Requires that midwifes have at least
1,800 hours of instruction within a 9
month period before granted a license. P
says this requirement unduly burdens
them from becoming midwives.
ISSUE: undue burden for women?
Castaneda v. Partida
430 US 482
Unconstitutional
Mexican-American Texas prisoner filed a
petition for writ of habeas corpus alleging
discrimination against MexicanAmericans in the selection of the grand
jury that had indicted him.
*Fundamental right established here is the right to
live with extended family. This extends the
Pierce right, which established a constitutional
link b/w parents and children, to grandparents and
grandchildren (right for grandparent to raise child).
State must have a significant state interest to
interfere w/ this right. High Scrutiny Review.
Case was of “special and important” consideration.
Yes. Unrelated person has no fundamental rights
to live together. Low Scrutiny Review – only
rational relationship.
Compare with Moore and Griswold, where these
cases draw the line with extended families and
marital relationships.
No.
Test is undue burden. As a midwife she only
works under doctors (doctors watch her anyway),
so won’t be a substantial obstacle to a woman
seeking an abortion (Casey).
--Also, not a bill of attainder.
No. This is a restriction on the right to practice a
profession, and receives rational basis (Lee
Optical).
-Statute does not foreclose the parents from
engaging the services of a midwife or from
electing birth at home, natural child birth, or any
particular procedure in the course of delivery.
-Court found that assuring that midwives are
qualified, in turn, was rationally related to the
state's valid interest in the health and safety of both
mother and child.
Ct. held that a showing that the population of the
county was 79% Mexican-American, but that, over
an 11 year period, only 39% of the persons
summoned for grand jury service were Mexican
American, established a prima facie case of
discrimination against Mexican-Americans in
grand jury selection, and the fact that Mexican-
123
Troxel v. Granville
Michael H. v.
Gerald D.
530 U.S. 57
491 US 110
Unconstitutional
Constitutional
WA law allows any person to bring suit
to get visitation rights to see someone’s
child. Suit brought by grandmother
saying that she should be allowed to see
her grandchild even though parents
objection.
ISSUE: May a state grant visitation rights
over a parent’s objections?
CA law said an illegitimate child born to
a wife who is fathered by another man
other than her husband is a legitimate
child of the marriage. Michael H.
Claimed and proved by a 98.7%
probability that he was the father, though
he was not the husband. Husband was
listed on child’s birth certificate and held
child out to the world to be his own. The
biological father sought visitation and
other rights with respect to the child.
ISSUE: What about visitation rights of
the biological father when woman
committed adultery?
Parker v. Parker
916 So .2d 926
Constitutional
Couple has a child. They get married. Get
a divorce when child is 3 ½ years old. Exhusband agrees to pay child support. A
year later, he finds out he is not the
Americans held a 'governing majority' in county
elective offices did no dispel the presumption of
intentional discrimination in that it could not be
presumed as a matter of law that human beings of
one definable group will not discriminate against
other members of their group.
*This shows that you can have an equal protection
race case.
No. Violates parent’s Pierce rights. Even though
grandparents may also have Pierce rights under
Moore, they are not as compelling as the parent’s.
There is presumption that the parent’s decision is
in the best interest of the child. But this
presumption can be overcome.
Test: give great weight to what the parents say and
then look at the best interests of the child.
Fathers of illegitimate children do NOT have
Pierce rights over the rights of the
marital/family unit. It is not a right in our history
and tradition (to give rights to illegitimate father
over those of the married couple). East Cleveland
-Scalia's opinion: “due process protection required
not merely that the interest denominated as a
liberty be fundamental but that it be an interest
traditionally protected by our society.” Court held
that biological father did not have a liberty interest
traditionally protected by society that would give
rise to SDP rights and that historically, society's
tradition has protected the marital family.
-With East Cleveland, look at the facts
specifically, not the broad rights, to see if there is
history or tradition.
-Cochran cited Stanley v. IL, which says that
fathers of illegitimate children have parental right
but distinguished this case to its facts (adultery
involved here). Therefore, he said this holding
would be narrowed to the specific facts of each
case. See Parker v. Parker.
Yes.
Look to the best interest of the child – it would not
be good for the child to feel not wanted (he treated
the child as his own) – he had to pay b/c of
124
biological father (kid isn’t his). Man
wants to stop paying child support.
emotional bond built when he was married to the
woman.
Father cannot disclaim parental rights if an
ISSUE: Is the husband liable for child
emotional bond with the child has been created.
support when the child isn’t biologically
--Parenting by estoppel: if husband holds
his?
himself out to be the child’s father, even if he is
not the biological father, then he is just as
responsible as the natural father.
SUBSTANTIVE DUE PROCESS: SMOKING CASES: PROHIBITION ON SMOKING IN PRIVATE PLACES BUT OPEN TO PUBLIC:
NYC Statute prohibited smoking in
No. Smokers as a class lack the typical
practically all indoor privately-owned
characteristics that traditionally have triggered
premises that were open to the public.
heightened scrutiny when the governmental action
Basically, no smoking in bars or
targets a group, characteristics such as an
restaurants.
immutable trait, the lack of political power, and a
"history of purposeful unequal treatment."
ISSUE: is smoking a fundamental right
Therefore, there is no basis to have heightened
rooted in history and tradition?
scrutiny
C.L.A.S.H. v. City of
New York
315 F. Supp. 2d
461
Rational basis – City had valid police powers over
welfare and health of citizens.
Constitutional
Doesn’t violate: 1st Amendment freedom to
association & assembly & speech (prohibiting
smoking doesn’t impair those rights); right to
travel (smoking ban doesn’t deter smokers); & 14 th
Amendment SDP or P & I Clause.
Miami v. Kurtz
653 So. 2d 1025
Constitutional
Can’t get a job with the gov’t unless you
sign an affidavit that you have not
smoked for a year. P was a smoker and
denied employment.
ISSUE: is there a reasonable expectation
of privacy for smoking?
SDP: RIGHT TO INTRASTATE TRAVEL (Mainly, Intermediate Scrutiny)
Man charged in violation of city’s gang
City of Chicago v.
loitering ordinance: ordinance requires a
527 US 41
Unconstitutional
Morales
police officer, on observing a person
whom he reasonably believed to be a
Note:
*Smokers are NOT a suspect class, thus fails
under Equal Protection Clause.
No. Privacy provision only extends to
circumstances where there is a legitimate
expectation of privacy. No reasonable right of
privacy for disclosure of smoking information.
Note: follows Griswold (right to privacy): Can do
what you want in your house? Yes. Doesn’t follow
Moore.
Yes. Mere loitering falls under East Cleveland.
There is a right to loiter.
Ordinance’s broad sweep is impermissibly vague
125
criminal street gang member loitering in
any public place with one or more
persons, to order all such persons to
disperse, and made failure to obey the
order a violation.
Lutz v. City of York
899 F.2d 255
Constitutional
ISSUE: is there a right to loiter in the
history and tradition of US?
City ordinance outlawed continual
cruising around a loop of certain major
public roads in the heart of the city.
Plaintiffs argued that their right to travel
was violated and that the ordinance was
overbroad.
ISSUE: is there a right to intrastate travel
in the history and tradition of the US?
Johnson v. Cincinnati
310 F.3d 484
Unconstitutional
City has a drug exclusion zones. City
reviews drug arrests and anytime there is
an increase in arrests, there is a drug
exclusion zone. If you go in there and get
arrested for drugs you are banned from
going in that zone for a year. Purpose of
the ordinance is to clean up the streets:
“Over the Rhine” low, middle-income
area. Trying to stop drug activity. P is a
grandmother who takes care of her
daughter’s children and her daughter
can’t come into the zone b/c of drug
arrest so grandmother can’t babysit.
ISSUE: does this infringe on their right to
travel?
on its face and arbitrarily restricts personal
liberties.
Cochran: Example of Moore v. City of East
Cleveland “history and tradition” test. There is a
history and tradition of being able to loiter.
This case is an example of using Moore test to find
a fundamental right.
Yes. Ct. held that a constitutional right to
intrastate travel existed and grew out of
substantive due process. In evaluating whether
the ordinance impinged on that right, the court
applied intermediate scrutiny by analogy to the
time, place and manner doctrine.
The court concluded that the ordinance constituted
a reasonable time, place, and manner restriction on
localized intrastate movement because the benefits
of the cruising ordinance were significant while
the burdens it imposed on interstate commerce
were negligible.
Yes.
The right to travel locally through public spaces
and roadways was constitutionally protected.
Although the city's interest in reducing drug abuse
and crime was compelling, the ordinance was not
narrowly enough tailored to survive intermediate
scrutiny.
Under Moore v. City of East Cleveland there is a
right to “intrastate” Here, specifically, the right to
travel locally through public space & highways.
Thus, Triggers: “Strict scrutiny,” so:
1. Is there a compelling interest (reducing drug
use) Yes.
2. Is the Ordinance narrowly tailored to achieve
the City's compelling interest in reducing drug
abuse and drug-related crime,? No.
Is the Ordinance is the least restrictive means
to accomplish the City's goal. i.e. are there other
alternative to enhancing the quality of life and
protecting the health, safety, and welfare of
citizens in high drug-crime neighborhoods. Yes.
-Alternative(s):
Instead of regulating the manner in which affected
126
In re A.G.
State v. Sims
Doe v. Miller
Standley v. Town of
Woodfin
2010 WL 378098
216 P.3d 470
405 F.3d 700
661 S.E. 2d 728
Unconstitutional
Unconstitutional
Constitutional
Constitutional
In San Diego: nobody on the streets under
18 from 10 P.M. to 6 A.M.; exceptions if
you are attending school, church,
accompanied by adult, etc.
ISSUE: Does this curfew violate the right
to intrastate travel?
Jack Sims is a next-door neighbor to a
family with an eleven year old daughter.
She is taking a shower & Jack goes over
next door and rubs her back while in the
shower. His is convicted for molestation.
He is barred from the county for life.
ISSUE: Does banishment from a county
violate the right to intrastate travel?
IA law – registered sex offender can’t live
within 2,000 ft. of schools or child care
facilities or park. Guy claims he can’t
find anywhere to live (there are only 8
towns he can live in) and has been
“banished” from the state.
ISSUE: Has P been banished, and been
denied his right to travel?
Standley is a sex offender. Since he was
released he had one parole violation for
soliciting a prostitute. The restriction
imposed he could not go into the park. He
had a stroke and lives with his mother &
can’t walk without his mother & they
want to walk through the park.
ISSUE: Does this infringe on his right to
travel & is there a fundamental right to
individuals access Over the Rhine (i.e., an anticruising ordinance), or the time of access (i.e., a
curfew), the Ordinance imposes a more severe
restriction, broadly prohibiting individuals to
access the entire neighborhood, which the City
advertises as the largest national historic district in
the nation, the City's fastest growing entertainment
district and home to nearly 10,000 City resident.
Yes. Gives activity exceptions, but no exception
traveling to and from activity.
Curfew violations get intermediate scrutiny.
Yes. This conviction is struck down, against right
to travel. Banishment orders encroach on an
individual’s right to intrastate travel.
With banishment, court employs strict scrutiny.
Purpose? To protect from child – too broad (not
narrowly tailored), they could have just said not to
get near the child (more narrowly-tailored
geographical restriction much better).
No. Court held that he had not been “banished”
and that this law did not interfere w/ his right to
travel. There were plenty of places where he could
live. Rational basis – related to interest in
protecting child welfare and safety.
-Not against right to travel b/c can go to other
places.
-BIG CASE!!!!
No & No.
Doesn’t infringe on right to travel b/c you can
walk other places.
No fundamental right to walk in the park, was not
deeply rooted in history and tradition (East
Cleveland).
Rational basis – related to interest in protecting
127
Ohio v. Heimlich
Smith v. Doe
2009 WL 840654
538 U.S. 84
Constitutional
Constitutional
walk in a park?
Statutory rape guy on offender list; state
law says you can’t live within a thousand
feet from a school. P says not to use a
straight line method to determine if his
house is within a thousand feet of school.
ISSUE: Does history and tradition impart
a right to live where you want to live?
Act requires sex offenders to register with
the state & was retroactive. P contended
that the Act was punitive in nature, and
thus constituted retroactive punishment in
violation of the Ex Post Facto Clause.
ISSUE: is sex offender registry an ex post
facto law?
SEXUALITY, INCLUDING HOMOSEXUALITY: ANTI-SODOMY LAWS:
GA statute criminalizes (hetero and
homo) sodomy. Homosexual male was
charged with violating statute by
committed sodomy with another
Overruled by
consenting adult male in the bedroom of
Bowers v. Hardwick
478 US 186
Lawrence v. Texas
his home. Challenged constitutionality of
statute insofar as it criminalized
consensual sodomy.
TX state law makes it a crime for
homosexuals to have gay sex. Police enter
a home for reported gun disturbance to
find two men having anal sex.
Lawrence v. Texas
539 US 558
Unconstitutional
child welfare and safety.
No. No fundamental right to live where you want
to b/c no history and tradition.
Rational basis employed. The ordinance was
rationally related to protecting children.
No. Sex registration laws that are retroactive are
not ex post facto laws.
5-4 decision; Ct. held that the Due Process Clause
did not confer any fundamental right on
homosexuals to engage in acts of consensual
sodomy even if the conduct occurred in the
privacy of their own homes. LOW SCRUTINY
REVIEW.
DISSENT: the “right to be left alone” should be
protected; sexual intimacy is a sensitive, key
relationship of human existence and that
individuals have the freedom to choose the form
and nature of these intensely personal bonds
Court overruled Bowers contending that Bowers
demeaned the lives of homosexual persons. Court
focused on the liberty provision of the 14th
amendment and interpreting the liberty
provision to protect privacy rights so as to keep
low scrutiny review. (Privacy right would up the
review.) Low scrutiny review b/c the statute does
not further a “legitimate state interest which can
justify its intrusion into the personal and private
life of the individual.”
People are entitled to respect for their private
lives and state cannot make private sexual
conduct a crime if it is between two consenting
adults performed in private. NO TEST GIVEN
128
(so must look at how other courts have interpreted
it)
**This case explicitly does not involve: minors,
persons who might be injured or coerced or who
are situated in relationships where consent might
not easily be refused, public conduct, prostitution,
or whether the gov’t must give formal recognition
to any relationship.
O'Connor's opinion: concurred in judgment but
based on equal protection clause of 14th
Amendment.
 “Bare Desire” Test is: “bare desire to harm
a politically unpopular group” is not a
legitimate state interest.
 These are not legit state interests and that the
TX statute makes homosexuals unequal in the
eyes of the law by making particular conduct-and only that conduct--subject to criminal
sanction.
DISSENT: Scalia says that low scrutiny review
allows for moral justification and that certain
sexual behavior is “immoral and unacceptable”
and constitutes a rational basis for regulation.
Furthermore, homosexuality is not a right “deeply
rooted in our Nation's history and tradition.”
Lawrence v. Texas – “Bare Desire” Test.
Griffin v. County School Board of Prince Edward County – public schools closed for one reason, and one reason only, to make sure white
kids didn’t go to school with black kids.
Itawamba County
School Board's
decision to cancel the
annual senior dance
because of a lesbian
student's decision to
bring her date 
Constance McMillen
A lesbian teen who successfully sued her Mississippi school for the right to bring her girlfriend to prom was left out and was instead directed
to a "fake prom" on Friday, according to The Advocate.
Constance McMillen, her date and just a handful of others, including two classmates with learning disabilities, attended the dance in Fulton,
Mississippi while most of her other classmates from Itawamba Agricultural High School reportedly partied at a separate prom that McMillen
was not invited to.
McMillen made headlines just a few weeks ago when, with the help of the ACLU, she fought the school's decision to cancel prom. The
school canceled the dance after McMillen sought to bring her girlfriend and to wear a tuxedo.
As part of a preliminary ruling, a judge decided that McMillen was allowed to bring a girl as a date. The judge did not order the school to
reinstate the prom because it was understood that McMillen would be invited to a prom being held by parents of her Itawamba classmates.
Instead, that prom was canceled and was replaced with the sparsely attended country club event.
129
Article: PA Judge
denies same-sex
couple divorce
Because Pennsylvania does not recognize same-sex marriages, a PA judge has ruled he cannot issue a divorce order for two women who
married in MA.
Carole Ann Kern and Robin Lynn Taney were married in MA. The two were unable to file for divorce there, however, because MA law
requires parties filing for divorce to live there for a year beforehand. As a result, Kern filed a divorce action in PA.
P acknowledged at a hearing that PA law didn't permit the divorce. She argued, though, that it was unconstitutional because it infringed on
the right of marriage (relying on SDP in making argument).
Described a "fundamental right" as "'inherent in man's nature,' among the 'basic rights of human beings,' and among the 'Hallmarks of
Western Civilization.'" The argument that a same-sex marriage passes such a test is "unsupportable… This is a plea for social change, which
plea implicitly recognizes that same-sex relationships cannot fall within the purview of a traditional marriage… If homosexuals had a
fundamental right to be married to each other, this plea would be unnecessary."
His analysis would be determined by whether a same-sex marriage is guaranteed under the state and federal constitutions as a "fundamental
right" and then balanced "between the government's interests against the level of infringement on the individual's interest."
Issue: first, whether the right of privacy bestowed on consenting adults, permitting them to engage in intimate activity without government
interference, also guarantees a right to marry; and secondly, whether the fundamental right of marriage contemplates same-sex marriages."
The answer to both was no.
To support his ruling on the first of the two questions he identified, Lash cited to four landmark U.S. Supreme Court cases -- the 2003
decision Lawrence v. Texas, the 1977 decision Carey v. Population Services International, the 1972 case Eisenstadt v. Baird and the 1965
case Griswold v. Connecticut. The rulings, he wrote, determined that there's no greater right to privacy for married couples, but that such
privacy does not require a government to recognize marriage.
In addressing the second question, described as "unsupportable" the argument that a same-sex marriage qualified as a fundamental right. In
support, he cited to the 1984 Superior Court case DeSanto v. Barnsley, which ruled that a homosexual couple could not contract a common
law marriage. The panel, in that case, ruled that though "marriage" was not defined in statutory law, there was a "strong inference" that
marriage was limited to two persons of the opposite sex, Lash ruled. Maintaining the institution of marriage as it is in Pennsylvania
"represents a reasonable protection and a proper and lawful exercise of the police power of the Commonwealth, which is available to preserve
the public health, safety, welfare, and morals of its citizens."
APPLYING LAWRENCE v. TEXAS:
 What level of review does Lawrence employ?
o Low level review.
 Significance: The opinion does not classify the interest in pursuing homosexual conduct as fundamental. It applies rational-basis review, and strikes down statute
on grounds that it “furthers NO legitimate state interest.”
 What right does Lawrence protect?
o Acknowledges the right to liberty under the due process clause protects “the full right to engage in sexual conduct without gov’t intervention.)
130


What types of sexual conduct does Lawrence not cover?
o Minors (statutory rape)
o Persons who might be injured or coerced
o Persons who are in relationships that can be coerced into consensual sex (teachers & students)
o Public conduct, prostitution.
o Whether Government must give formal recognition to any relationship that homosexuals seek to enter. (Reference to gay marriage)
Analysis of Sexual Behavior:
o Incest – is there a governmental interest? Yes; b/c incest creates birth defects.
o Prostitution – undecided.
 Petitioners are entitled to respect for their private lives. State cannot demean their existence or control their destiny by making their private
sexual conduct a crime. If you analyzed this under rational basis, there would be a ridiculous amount of litigation to follow.
o Masturbation – no statute to make it a criminal act to masturbate.
o Adultery – though immoral, government interest: there’s a third person injured, so yes.
o Fortification – bedroom privacy is protected and extends to married couples.
o Bestiality – still wrong.
o Teacher Student Sex – coercion.
“PARADE OF HORRIBLES”
Lawrence did not establish constitutional protection for ALL voluntary sexual conduct between consenting adults in the home, which would make it logically
impossible to protect the claimed right to homosexual conduct “while leaving exposed to prosecution adultery, incest, and other sexual crimes even though committed
in the home.” The majority was “unwilling to set down that road.”
TX statute criminalized the selling,
Yes. Unconstitutional under Lawrence. Despite
advertising, and giving or lending of any
low level review, the court held that the statute
device used for sexual gratification (i.e.,
impermissibly burdened customers’ SDP rights to
vibrators). TX claimed morality interest – engage in private intimate conduct of their
to stop sexual interests unrelated to
choosing. Public morality or children’s interests
Reliable Consultants v.
517 F.3d 738
Unconstitutional
procreation – and interest in protecting
could not justify the attempt to regulate a SDPEarle
children from this open advertising.
protected right.
Rainer v. Georgia
2010 WL 889783
Constitutional
ISSUE: Are laws criminalizing the sell
and promotion of sexual devices
unconstitutional?
700,000 sex offenders in the US.
Detrimental to your life if deemed a “sex
offender.” Rainer convicted of robbery
and false imprisonment. He’s 18 and
involved in a drug deal with a 17-year-old
girl. Rainer and friend take girl outside of
town, steal her purse and leave her there.
GA Statute: sex offender – any individual
No.
Rationally related to goal of protecting children
from those who would harm them.
131
convicted of a criminal offense against a
victim who is a minor. Rainer is then
placed on the sex offender list. Rainer
files suit, wants off the list.
ISSUE: is a law placing someone on the
sex offender list for nonsexual offenses
unconstitutional?
ANTI-HOMOSEXUAL STATUTES/ISSUES
Sterling v. Borough of
Minersville
Beall v. London City
School District
Stemler v. City of
Florence
232 F.3d 190
2006 WL 158
2447
126 F 3rd 856
Unconstitutional
Unconstitutional
Unconstitutional
Two teenagers are drinking and are
arrested; at police station they say they’re
homosexuals. Officer says it’s a sin
according to the Bible to be homosexual
and that he’s going to tell the kid’s
grandmother. One of the kids says he’s
going to kill himself then. Once released,
he committed suicide.
A lesbian teacher has a class on gay
rights. The principal attends & becomes
visibly agitated. After the class he calls
her in & her employment contract was not
recommended for renewal. She was told
it was because of uncertainty regarding
enrollment for the next school year.
Applies Whalen v. Roe:
Sexual preference is a right of privacy.
Black and her boyfriend, Kritis, arrived at
Willie's Saloon in the Ramada Inn in
Florence, Kentucky. Both Black and
Kritis had been drinking heavily. While
line dancing, Black met Susan Stemler.
Around 2:00 a.m., the two went to the
women's restroom and discussed
problems that each had with their
respective boyfriends. They left, and
Kritis chases them. They were eventually
stopped by the police.
Police Officers removed Black from the
car of Susan Stemler and placed her in the
truck of her drunk and violently abusive
Arrest:
6th circuit held that criminal prosecution should be
enjoined it was an unconstitutional arrest since
Black was arrested solely because she was a
lesbian. It was a bare to desire to harm a member
of politically unpopular group.”
The court concluded that plaintiff had established
a deprivation of a clearly established constitutional
right concerning the threat to disclose decedent's
suspected sexual orientation
Held:
Defendants arguments to the contrary, it appears that
Plaintiff's sexual orientation and/or her presentation on
the National Day of Silence were discussed when the
Board of Education met to vote on the renewal of
Plaintiff's teaching contract.
Plaintiff has submitted sufficient evidence to create a
genuine issue of material fact with respect to whether
Defendants stated reason for the non-renewal of
Plaintiff's teaching contract was actually a pretext for
discrimination and a “bare desire to harm a politically
unpopular group.”
If the gov’t makes an affirmative act that
increases the risk of harm to the child, they
have assumed a duty to protect and are liable
for a failure to do so.
Suit for Damages:
Suit was then brought against City – citing
132
boyfriend, Kritis. The girlfriend is then
sent with the man; she’s throwing up out
of the side of the boyfriend’s car while
they’re driving, hits her head on a
guardrail and dies.
Stemler sues, she alleges that the officers
arrested her solely b/c they believed her
to be a lesbian.
Christian Legal Society doesn’t allow
homosexuals.
Christian Legal
Society v. Martinez
In Re Levenson
Finstuen v.
Edmondson
2006 U.S. Dist.
LEXIS 27347
560 F.3d 1145
497 F. Supp 2d
1295
Unconstitutional
Unconstitutional
Unconstitutional
ISSUE: Does the right to association
override discrimination against
homosexuals?
Man worked as federal prosecutor, and
gets federal benefits. Man married
husband prior to CA constitution
amendment saying only heterosexuals can
marry. They want domestic benefits
under federal law. Federal Defense of
Marriage Act defines marriage as a man
and woman.
X and Y is a homosexual couple. They
adopt a kid (legally in one state) and then
move to OK.
OK prohibits same-sex couples from
adopting and won’t recognize adoptions
by them.
DeShaney – State created danger (2) – This Court
used the “state created danger”part of DeShaney
and held suit for damages.
No. Apply the “Bar Desire” Test.
Reinhardt said this shows a “bare desire to harm a
particular group.” Violates SDP.
No, violates Full Faith and Credit Clause (Article
4, § 1): Full Faith and Credit shall be given in each
state to the public acts, records, and judicial
proceedings of every other state.
State courts cannot refuse to recognize judgment
of another court.
ISSUE: May a state refuse to recognize a
valid adoption made out of state?
EMPLOYMENT, GAYS IN THE MILITARY: LAWRENCE APPLIED TO THE MILITARY: “DON’T ASK, DON’T TELL POLICY.”
Pentagon justifies its ban on grounds that “unit cohesion” will be weakened if openly gay soldiers are officially tolerated. Supreme Court has a long tradition of giving
great deference to the military.
Former members of military brought
Yes. The First Circuit rejects the Witt case, finding
action alleging that “Don't Ask, Don't
the policy constitutional. It said that no
Tell” statute requiring separation of
fundamental right was implicated by the policy;
Cook v. Gates
528 F.3d 42
Constitutional
openly homosexual members violated
therefore, it should be given the rational basis test.
Due Process.
“Don’t Ask, Don’t Tell” then only needs to be
rationally related to a legitimate state interest –
ISSUE: Is the military’s “Don’t Ask,
state may have thought – test.
133
Don’t Tell” policy constitutional?
STATES CANNOT PUNISH A PERSON FOR HIS STATUS:
Robinson v. California
Powell v. Texas
370 U.S. 660
392 U.S. 514
Unconstitutional
Constitutional
State statute criminalizing person for
being addicted to drugs. Note: you can be
born an addict.
Court held that you cannot criminalize a
person’s “status” (w/o indenting fault) –
violates SDP.
ISSUE: may a state criminalize a drug
addict?
Man charged w/ public intoxication. As a
defense, he claims alcoholism.
8th Am. violation to criminalize pure status.
ISSUE: is being an alcoholic a defense to
public drunk?
Court rejects his defense, saying that he doesn’t
have to be in public. He was not being punished
for an involuntary status. Being drunk in public
was voluntary.
Could say it’s involuntary to be an alcoholic, but
not a public drunk. **-It’s status + conduct.
RESTRICTIONS ON GAYS: FAMILY-LAW RULES:
Child custody awarded to grandmother, a
non-parent, over mother, who is a
practicing lesbian. Mother held in
violation of a statute prohibiting
consensual oral sexual contact between
any persons.
Although there is a strong presumption of parental
fitness, the child’s best interests were served by
awarding custody to the grandmother, after the
mother left child w/ grandmother for several days
w/o any means to contact her, changed her
residence, relied on others for support, spent
Bottoms v. Bottoms
457 S.E.2d 102
Constitutional
welfare funds on a manicure, had neglected child,
and cohabitated with a female partner.
--Her lesbian status was only a factor the Court
considered in placing the child with the
grandmother, in applying the “best interest of the
child” standard.
RIGHT TO DIE CASES: Should a terminally ill / comatose patient have the right to choose to “die with dignity?” Apply East Cleveland “deeply rooted test”
4-Part Test – State has the right to intervene if:
1) Recognize state has interest in preservation of life
2) Interest in prevention of suicide (Glucksberg)
3) Innocent third-parties (X is on life-support and he has 2 kids and a wife; there are interested third-parties in keeping him alive)
4) Integrity of medical profession: supposed to keep people alive.
Nancy Cruzan suffered severe brain
Yes. Held: 5-4 vote, Missouri’s continuation of the
damage in automobile accident. She lived life-sustaining procedure did not violate Nancy’s
in a “persistent vegetative state,” and had
Fourteenth Amendment rights.
no awareness or cognition but could
The Right Exists: A competent person has a
Cruzan v. Missouri
470 U.S. 261
Constitutional
breathe without a respirator. She was kept constitutional protected liberty interest in refusing
Department of Health
alive by feeding and hydration tubes
unwanted medical treatment. (Jacobson Right).
implanted in her stomach. She was cared -But the problem, was Clear & Convincing
for by the Missouri state hospital, and the Standard: Missouri’s interest in safeguarding
state paid for her care. Her parents sought human life was strong enough that the state was
134
to discontinue the nutrition procedure but
hospital refused w/o a court order. The
Missouri Supreme Court denied her claim
after interpreting the state “living will”
statute, as requiring clear and convincing
evidence that Nancy would not have
wanted life-sustaining procedure used.
ISSUE: Is there a right to die?
Washington banned “promoting a suicide
attempt.” The state defined the crime as
“knowingly causing or aiding another
person to attempt suicide,” and made it a
felony. A physician was charged after
assisting in a suicide.
Final Exit Network – pull head over your
head and allow helium to enter to kill
yourself. Position assistance suicide.
Criminal prosecution against it.
ISSUE: Does the right to die apply to
suicide?
Washington v.
Glucksburg
In Re Quinlan
117 S. Ct. 2258
(1997)
355 A.2d 647
Constitutional
Constitutional
Involves Karen Quilan. She has a
motorcycle accident and she was
terminally ill (comatose). He father is
seeking to take her off life support.
ISSUE: May the father request to take
daughter off life support?
entitled to guard against potential abuses by
imposing the clear and convincing standard.
-Standard Not Satisfied: only evidence was her
statements to a friend a yr. b/f the accident, said
she wouldn’t want to live as a vegetable.
*There’s a liberty interest involved, so it’s more
than low scrutiny review.
-Can’t define “terminally ill.”
No. Held: Rehnquist – There was no historical
right to assist one to commit suicide. Only rights
or interests that were “deeply rooted in this
Nation’s history and tradition” could be
fundamental. And in view of suicide or assisting
suicide, this did not come close to meeting this
“deeply rooted” test. (Moore v. City of East
Cleveland)
Rather there is:
1. Interest in preserving human life
2. Protecting the integrity of the medical
profession
3. Protecting the vulnerable.
Rehnquist: interest in state to protect vulnerable
groups in regards to assisted suicide (the poor,
elderly, and disabled persons).
-Don’t want to go down that road where people are
able to convince other, more vulnerable people
that it’s not worth living anymore.
O’Connor’s concurrence left open the possibility
that a terminally ill patient suffering great pain
might have a limited right to have a physician
prescribe medication to alleviate that suffering,
even where this would hasten death.
Distinguish from Cruzan: “fundamental interest in
declining unwanted life-sustaining treatment,” is
consistent with Nation’s history and constitutional
traditions.
Yes. Requires Clear and convincing evidence.
May remove Life support for an incompetent if:
1) Concurrence of the guardian & family of
terminally ill patient, AND
2) Attending physicians conclude that there
135
is no reasonable possibility of ever
emerging from comatose to a cognitive
state and the life-support should be
discontinued, AND
3) The hospital agrees
Matter of Gianelli
834 NY Supp 2d
623
Unconstitutional
Gianelli is 14-year-old and has a disease
with prognosis that he’ll die in 2 years.
He’s on and off life support. There’s no
cure for the disease. He’s a competent
person. Parents want to take him off a
ventilator, even though this would speed
up the boy’s death, but felt it was in his
best interests to stop the suffering.
Guy beats up wife; he’s sentenced for 5
years. He goes on a hunger strike b/c he
says he was wrongfully convicted and
that his wife has turned his kids against
him. He did weigh 250, now 160. Prison
wants a court order to force feed him.
Lantz v. Coleman
Thor v. Superior Court
978 A.2d. 164
855 P.2d 375
Constitutional
Unconstitutional
ISSUE: May a state force feed an inmate
engaged in a hunger strike?
Quadriplegic in prison. Goes on hunger
strike. Refused all medical treatment.
Prison wanted to force feed him.
-Then action shall be without any civil or criminal
liability therefore, on the part of any participant,
whether guardian, physician, hospital or others
Apply 4 part test: Interest to preserve his life;
You’re not preventing suicide; No innocent third
parties; Medical interest.
Conflicting views among the parents, the guardian
ad litem, the hospital, and the doctors, so they
don’t have clear and convincing evidence.
Can’t take off life support (unclear &
unconvincing evidence).
-The burdens of prolonged life were not so great
so as to outweigh any pleasure, emotional
enjoyment or other satisfaction that the patient
could yet be able to derive from life.
Yes. Held: Although a prisoner does not forfeit all
of his constitutional protections upon
incarceration, a certain amount of restriction &
limitation necessarily follows (restrict the right to
starve yourself to death)
You have a right to starve yourself to death.
4 part test: (1) prison has right to preserve life, (2)
suicide to not die a natural death, (3) there are
interested third parties (his kids), (4) medical
interest in keeping people alive.
There’s also the prison’s security interest –
testimony that by going on hunger strike there was
disruption amongst other prisons who were
disturbed.
A competent, informed adult such as inmate had a
fundamental right of self-determination to refuse
or demand the withdrawal of medical treatment of
any form, even at the risk of death, which
136
ordinarily outweighed any countervailing state
interest.
The court found that inmate's "informed refusal"
superseded and discharged prison’s obligation to
render further treatment.
In the absence of evidence demonstrating a threat
to institutional security or public safety, prison
officials had no affirmative duty to administer lifesustaining treatment and could not deny an
informed inmate the choice to refuse medical
treatment.
COURT’S CURRENT APPROACH TO SUBSTANTIVE DUE PROCESS:
 The Court uses more than “mere rationality” review to those legislative acts which materially impair a “fundamental right.”
 (a) Economic Rights – Not found to be “fundamental.”
 (b) Non-Economic Rights- Sex, Marriage, Child-Bearing, Child Rearing.
PROCEDURAL DUE PROCESS AND THE RIGHT TO A HEARING:
The government may not deprive any person of life, liberty, or property without due process of law.
Douglass – The history of liberty is the history of due process.
Welfare recipient is denied an
“evidentiary hearing,” prior to his welfare
benefits being terminated.
Goldberg v. Kelly
397 US 254
Unconstitutional
Plaintiff was given a non-tenured one –
year contract to teach at WSU. He was
not re-hired at the end of the year and
seeks a “name clearing hearing,” to know
reasons he was not rehired.
Board of Regents v.
Roth
408 U.S. 564
(1972)
Constitutional
Held: Welfare benefits for a person statutorily
entitled to receive them, were a right, not “mere
charity,” protected by the Constitution.
Entitlements were in fact interest in property.
Welfare is a property right. If it is a welfare
right, then you get a right to a hearing.
Whether or not claim of “entitlement existed,” was
determined by reference to State law.
Held: Plaintiff’s interest in being rehired was not
an interest in property or liberty and therefore
he had no right to PDP.
Must have a Liberty/Property interest for PDP
*** Cite as Government Employee Case
(had he been fired after 6 months, he would have
been entitled to a hearing)
It is the nature of the interest that counted:
1. Not a “liberty interest,” because the State’s
decision not to rehire him did not include a charge
of dishonesty or immorality (i.e. damage his
reputation), nor did it bar him from a broader class
of employment (e.g. all other jobs at the univ.).
137
Perry v. Sindermann
Morely’s Auto Body v.
Hunter
Bishop v. Wood
408 US 593
(1972)
70 F.3d 1209
Unconstitutional
Plaintiff was untenured. He had taught at
university for 10 years, and alleged the
college had a “de facto” tenure program,
and the college admin. had an
“understanding” that he had tenure under
the program.
Wrecker service has a rotation. Sherriff
set up a rotation scheme with wreckers.
One wrecker got pissed b/c they weren’t
getting preference by the Sherriff. They
say it was a de facto process. However,
say it was informal so doesn’t count
Constitutional
Constitutional
A policeman in Marion, North Carolina is
terminated from police force and files
suit. He does not have tenure. He refused
to follow orders, poor attendance, He
always displayed conduct un-befitting of
a Marion police officer. He had given a
ticket to the mayor’s son. He seeks a
“name clearing hearing.”
ISSUE: Applying Roth, Is it a property or
liberty interest at stake?
2. Not a “property interest.” He must have a
legitimate claim of entitlement to the benefit,
which is to be determined by reference to State
law. State law made it clear that rehiring decisions
in non-tenured cases was completely discretionary.
Held: He was entitled to a hearing on his “de
facto” tenure claim, if proven, gave him a property
interest.
Informal practices or customs may be sufficient to
create a legitimate claim to entitlement.
De facto process – just as good as a city ordinance.
It is a de facto process; however it is informal and
didn’t have the force of law so constitutional.
The wrecker services policy was not a regulation
having the force of law and reducing the policy to
writing did not create a legally enforceable
entitlement. Removal of plaintiffs from the
rotation list did not affect their right to operate
wrecker service businesses, and thus did not
impact upon their liberty to follow a chosen
profession and likewise did not violate due
process.
No. State statute doesn’t give a property interest,
more like an at-will employee.
It is the nature of the interest that counted:
1. Not a “liberty interest,” because the State’s
decision not to rehire him did not include a charge
of dishonesty or immorality (i.e. damage his
reputation)
2. Not a property interest because, a legitimate
claim of entitlement to the benefit, which is to be
determined by reference to State law. North
Carolina law characterized police officers as
“permanent employees” = arguing this is a
property interest, “Permanent does not mean
permanent.” His position was at-will, and he
worked at the pleasure of the city.
138
Captain in the military who is being
discharged for conduct unbecoming of an
officer. Captain says this is too vague.
Parker v. Levy
DeShaney v.
Winnebago County
Dept. of Social
Services
417 U.S. 733
489 U.S. 189
Constitutional
No, b/c there is history and tradition with the
standard in the military.
ISSUE: Does a vague military standard
violate due process?
Father has custody of 5 year old boy.
Dept. of Social Services gets complaints
about suspected abuse. Case workers go
and check during a period of time and
find that there is no abuse. The boy is
now brain dead from father’s abuse.
Mother brought suit against Social
Services for damages.
BIG CASE! The Court held that there was no
liability on the gov’t agency b/c there was no duty
on it to protect the boy, absent a special
relationship b/t the state and the young boy. “A
special relationship” language has been strictly
construed by courts to mean actual custody (such
as being in prison).
- No obligation of the gov’t to protect someone
from injury by another private person (No
violation of Pierce Rights), absent a special
relationship – under arrest, in prison, or some
sort of custody and then the govt has a
responsibility to protect.
**Only applies to private vs. private.
-Also in opinion: “state created danger” rule:
person is safe until gov’t does something that puts
them in a position of being unsafe(City of Florence
Woman has a temporary restraining order
against ex-husband. She calls the cops
after her ex-husband fails to bring the
kids back from being w/ him. Cops tell
her to wait until midnight and call them
back. Meanwhile, the dad flips out and
kills the kids. The restraining order
imposed mandatory obligation for police
to enforce it.
Kid at school, parents say don’t release
this kid to anyone after school except to
parents. Uncle Ernie comes and picks him
up.
Under DeShaney, there was no special relationship
so police have no constitutional duty to protect her
and her kids.
-Is there a property interest? No. Not a PDP
violation b/c even though the restraining order
statute had created an obligation to enforce it, the
order’s enforcement is at the discretion of the
police. Justice Scalia said there were all types of
mandatory duties for cops.
No. DeShaney doesn’t apply to public schools.
-School did not owe a constitutional duty to
protect the student from the misdeeds of private
actors because there was no special relationship
involved. The school compulsory attendance laws
Constitutional
SPECIAL RELATIONSHIP
Town of Castle Rock
v. Gonzales
545 U.S. 748
Constitutional
Doe v. Hillsboro
Independent School
District
113 F.3d 1412
Constitutional
139
ISSUE: Special relationship between
school and student?
Walton v. Alexander
44 F.3d 1297
Constitutional
Roventini v. Pasadena
Independent School
District
981 F. Supp. 1013
Unconstitutional
State school for the blind – one student is
sexually assaulted by another.
ISSUE: School responsible/special
relationship?
Football practice & kids are running
around strenuously. Kid passes out, coach
does nothing. Kid dies.
did not create such a special relationship because
the student was not in the school's custody.
-School’s constitutional duty was not triggered by
a state-created danger because defendant officials
placed the student in an environment that was not
known to be dangerous.
-School did not breach a constitutional duty in
failing to protect the student from the rape because
they did not exhibit deliberate indifference in their
allegedly inadequate background check of the
custodian.
No. They are voluntarily placed there (school) and
they are not responsible because they are not
falling under the strict special relationship.
Special relationship standard STRICT.
This either: shocks the conscious, or violates the
right to bodily integrity (Jacobson).
Distinguish: the alleged wrongful conduct was
committed by private actors, not by governmental
or school officials.
STATE CREATED DANGER
K.H. v. Morgan
S.S. v. McMullen
914 F.2d 846
225 F.3d 960
Unconstitutional
Constitutional
KH, aged 17 months, removed from her
home b/c had gonorrhea (vaginal
intercourse!). Social services take child
from home, shuttled from one foster
parent to another 9 times in 3 ½ years. In
one foster home she was beaten and
sexually abused & social services knew
about it.
ISSUE: State created danger?
Kid taken from home b/c father’s buddy
is a pedophile & believed the pedophile is
screwing around with the kid. 2 years
later, the kid is given back knowing the
pedophile buddy is still around. Sure
enough, the kid is injured again.
Yes.
The Due Process Clause required the responsible
state officials to take steps to prevent children in
state custody from deteriorating physically or
psychologically and that a state could not avoid its
responsibilities merely by delegating custodial
responsibility to irresponsible private persons.
No, b/c it was the same danger that was there
before. The environment was not altered.
By returning the child to her father social services
did not create a greater risk of abuse to appellant
minor child than had she never been removed from
her father.
ISSUE: State created danger?
LIBERTY – DEFAMATION: Stigma PLUS
Wisconsin v.
400 US 433
Unconstitutional
State law authorizes sheriffs, police chiefs
Held:
140
Constantineau
to post signs not to sell alcohol to “known
alcoholics.” Woman files suit and seeks a
hearing claiming liberty interest at issue
since reputation is infringed.
(1971)
After being arrested for shoplifting, P was
listed as an “active shoplifter” in a flyer
which the police circulated to hundreds of
local merchants.
Paul v. Davis
424 US 693
(1976)
Constitutional
Public employee is defamed and is
terminated.
ISSUE: Stigma Plus?
Hill v. Borough of
Kutztown
McCray v. Howard
455 F.3d 225
285 Fed. Appx.
689
Unconstitutional
Constitutional
Denise McCray is the courtroom deputy –
the Fulton county DA comes into the
courtroom and starts talking to the jury –
the judge tells him to get out and the DA
says no. Judge instructs courtroom
deputy to remove the DA – he resists then
hits her on the stomach and they have to
eventually put him in handcuff and drag
him out. He then has a press conference
and says that Denise McCray (who he just
beat up) is a disgrace to the uniform – she
is in hospital and out of work for 3
Where a person's good name, reputation, honor, or
integrity is at stake because of what the
government is doing to him, notice and an
opportunity to be heard are essential.
‘Posting’ under the Wisconsin Act may to some be
merely the mark of illness, to others it is a stigma,
an official branding of a person. The label is a
degrading one. Under the Wisconsin Act, a
resident of Hartford is given no process at all.
But see, Paul v. Davis (Not recognized)
Held: By a 5-3 vote, the plaintiff’s interest in his
reputation, by itself, was not a constitutionallyprotected “liberty” or “property” interest.
Defamation must be stigmatized PLUS –
Stigma PLUS test:
1) Must be stigmatized (defamed & must
be public); PLUS
2) A right or status recognized by state
law and has been altered.
Yes. Even though he lacks a property interest in
the job, you still have a stigma plus – loss of a job
and defamation.
-No property interest in his employment to require
due process protection since he could be
terminated at any time without cause, but the
employee had a liberty interest in his reputation
and properly alleged that such interest was
damaged by the mayor's defamation and
constructive discharge without a hearing.
No.
Stigmatized? Press conference DA said she
should be fired so yes.
Plus? No. The press conference wasn’t the reason
she was out of work – it was b/c she was beat up.
141
Siegert v. Gilley
Connecticut Dept. of
Public Safety
Humphries v. County
of L.A.
Behrens v. Regier
500 U.S. 226
538 US 1
554 F.3d 1170
422 F.3d 1255
Constitutional
Constitutional
Unconstitutional
Constitutional
months.
ISSUE: Stigma Plus?
Psychologist works for gov’t hospital.
Resigns and takes a job at a military
hospital. At new job, signs a form
authorizing to get information from
former boss about his previous
employment. Former boss says he is a
terrible person. Siegret gets fired and he
brings suit
ISSUE: Stigma Plus?
Guy is on sex offender registry and part
of the suit is that he has been stigmatized
as interfering w/ him getting a job.
ISSUE: Stigma Plus?
CA has a list of potential child abusers.
You are added to the list if the
investigator makes the determination that
the charge of child abuse is not
unfounded. Anonymous phone call comes
in saying X whipped up on his kid.
They send an investigator out and put on
the list b/c he thought the charge is not
“unfounded.” 800K ppl on list. Even after
doctor and the court said they were not
child abusers, they were still on the list.
Presumption of innocence is gone and
burden of proof has been shifted.
ISSUE: Stigma Plus?
P trips on a safety gate for his kid. He
has the kid in his arms and the kid hits his
head. Emergency room calls the
authorities claiming child abuse. P is
criminally charged w/ child abuse;
charges are eventually dropped. Still
placed on the central abuse hotline list. If
you’re on that list you cannot adopt
another child. He applies to adopt
another and can’t.
ISSUE: Right or status previously
recognized under state law he was
No. Doesn’t meet stigma plus b/c stigma occurred
later than when he left his first job.
Stigma must be correlated with the job your got
fired from.
Future jobs are not part of the “plus.”
No. Like Siegert, future jobs are not part of the
plus.
Yes.
California offered no procedure to remove their
listing on the database as suspected child abusers,
and thus no opportunity to clear their names. The
stigma of being listed in CACI plus the various
statutory consequences of being listed on the
CACI constituted a liberty interest.
The lack of any meaningful, guaranteed procedural
safeguards before the initial placement on CACI
combined with the lack of any effective process
for removal from CACI violated the parents' due
process rights.
No. Court says adoption is not a right, so the
adoption was precluded.
P did not meet the "plus" aspect of the test b/c he
did not show that he was deprived of a
constitutionally protected liberty or property
interest. Florida law did not grant prospective
adoptive parents the right to adopt an unrelated
child, and P did not establish that he had any legal
claim of entitlement to have his adoption
application approved. Under Florida law, each
adoption was a separate act that required
independent consideration, so the prior adoption of
142
denied?
his son did not provide P w/ a protectable legal
status.
LIBERTY – WHEN PRIOR HEARING SHOULD BE GRANTED?
3 Part Test – Hearing Should be Granted if:
1. High Private Interest
2.
Risk of Error – the higher the risk, the more need for a prior hearing.
3.
Burden to the Government – lower, the better. How burdensome is giving additional protection?
NOTE: to have a hearing, must have a property or liberty interest.
VA law grants disability benefits only for
certain injuries. Before a termination,
independent doctor must verify no longer
disabled. P was denied benefits and wants
a hearing.
Matthews v. Eldridge
Valmonte v. Bane
424 U.S. 319
18 F. 3d 992
Constitutional
Unconstitutional
Sutton v. City of
Milwaukee
672 F.2d 644
Constitutional
Bell v. Burson
402 U.S. 535
Unconstitutional
Mom slaps daughter b/c she stole purse.
Neighbors call social services and say she
is a child abuser. NY State Center of
Child Abuse Database has 2 million
names of child abuser if there is some
credible evidence you are a child abuser,
they will tell you you’re on the list. To
get off the list must show by
preponderance of evidence that you are
not child abuser (higher level of
evidence). 75% are taken off the list, so it
is proven that they are more likely wrong.
ISSUE: Should they get prior hearing?
Can tow car for any reason, just come on
down and get this car! – no notice, no
hearing.
ISSUE: Should they get prior hearing?
GA statute that says you have to notify
Three-part test given to determine when hearing
should be granted (before or after the action is
taken):
1) Private interest.
2) Risk of error
3) How burdensome is giving additional protection
(gov’t interest)?
High private interest in disability interest.
However, court found risk of error was low in this
case. Risk of error is minimal if have a
independent doctor.
Yes. Risk of error and private interest are high.
The procedures, which permitted inclusion on the
Register by virtue of "some credible evidence" of
abuse, created a high risk of error.
No. Post hearing is fine (also, if not, no one would
get towed!)
Risk of error is low.
Yes. High risk of error – what if you can prove
143
Dixon v. Love
431 U.S. 105
Constitutional
the dept. of motor vehicles 30 days after
wreck and your license is automatically
suspended until you can cover expenses.
ISSUE: Should they get prior hearing?
IL summarily revoked truck driver’s
license for being repeatedly convicted of
traffic offenses and only allowed a
hearing after the revocation.
License is auto suspended if you have 3
speeding convictions in ten years.
ISSUE: Should they get prior hearing?
Prison & mental institution are right next
door. Prison sent inmate to mental
institution for electric shock treatment b/c
he was acting up.
Vitek v. Jones
445 U.S. 480
Unconstitutional
ISSUE: Should they get prior hearing?
Wolff v. McDonnell
Memphis Light, Gas,
& Water Div. v. Craft
Goss v. Lopez
Board of Curators
from the University of
Missouri v. Horowitz
418 U.S. 539
436 U.S. 1
419 U.S. 565
435 U.S. 78
Unconstitutional
Unconstitutional
Unconstitutional
Constitutional
Prison has system: loss of goodtime
credits – you be nice the guards and you
get goodtime credits. When you don’t get
goodtime credits, placed in solitary
confinement.
ISSUE: Should they get prior hearing?
TN state-owned utility cut off water when
bill was not paid. It was a grandmother at
Christmas when it was really cold
outside.
ISSUE: Should they get prior hearing?
Students are expelled from school for
more than 10 days b/c they spiked the
punch at a school function.
ISSUE: Should they get prior hearing?
P is the only female student at the med
school at the University of Missouri. She
plans on going to graduate school to
you weren’t liable?
No. There is a property interest in having a drivers
license. Application of test from Matthews in
regarding to drivers license termination.
1) high private interest
2) risk of error was found to be zero
3) high gov’t interest
Yes. The stigmatizing consequences of a transfer
to a mental hospital for involuntary psychiatric
treatment, coupled with the subjection of the
inmate to mandatory behavior modification as a
treatment for mental illness, constituted the kind of
deprivations of liberty that required procedural
protection.
Prior Hearing – there should be one to find out if
inmate is mentally ill.
Yes. Loss of liberty, b/c of solitary confinement.
You should get prior hearing before placed in
solitary confinement.
Yes. There is a property interest in utilities. Use
Matthews test:
1) Nature of Private interest: high!
2) Risk of Error: High
3) Burden: Low.
Yes. Court held that procedural due process
requires a hearing if the temporary school
suspension exceeds 10 days b/c students have a
property interest in free public education.
No. Court held that there was not a property and
liberty interest involved so her procedural due
process rights had not been violated. Court found
144
Rodriquez v.
McLoughlin
North American Cold
Storage Co. v. City of
Chicago
Gilbert v. Homar
214 F 3rd 328
211 U.S. 306
Constitutional
become a psychiatrist upon graduation.
She flunks out of med school and she
wants a hearing.
ISSUE: Should they get prior hearing?
Foster parent brought suit against
authorized foster care agency, its
executive director and foster boarding
home director, and various city agencies,
seeking damages arising from temporary
removal of child from her home
following report of alleged child
endangerment.
ISSUE: Should they get prior hearing?
D is selling spoiled meat, so the meat is
taken w/out notice and hearing.
Constitutional
ISSUE: Should they get prior hearing?
520 U.S. 924
Constitutional
University cop at a PA university is
arrested for possession of drugs.
University suspends him w/out pay w/out
a hearing or anything. After all is over,
he brings suit for damages saying he
should have had a hearing.
that she was fully aware of her academic
deficiencies and that her record revealed no
showing of arbitrariness or capriciousness in the
grading to warrant remand of case.
No. Held: 1) Any protected liberty in the
preservation of a biologically unrelated foster
family arises under state law, and not under due
process clause itself, and (2) New York statutes
and regulations did not create protected liberty
interest on part of foster mother and child in
continuing to live together, or in post removal
visitation.
No. A hearing before seizure, condemnation, and
destruction of food which was unwholesome and
unfit for use, was not necessary. The power of the
legislature to enact laws relating to the public
health was within legislative discretion.
Private interest? Yes, high. Risk of error? Low
b/c of sufficient evidence.
Scalia said, “Nothing in the Constitution that gives
employee a right to pay w/out leave by a taxpayer
when charged w/ a felony.
ISSUE: Should they get prior hearing?
EQUAL PROTECTION – RACE DISCRIMINATION:
To have an equal protection problem you have to have people similarly situated treated differently.
WV law requires jurors to be white males
over 21 years old.
Strauder v. West
Virginia
First post-Civil War race discrimination case to
reach U.S. Supreme Court.
High Scrutiny Review - suspect class regarding
race. Race on the face of the law---always
unconstitutional.
100 U.S. 303
Unconstitutional
Equal Protection clause now has altered federalism
and the balance of power b/t the states and federal
gov’t. Federal power can now be placed b/t the
states and its citizens when the state has violated
the rights of its citizens.
145
Ex Parte Virginia
Giles v. Harris
100 U.S. 339
189 US 475
Constitutional
Political Question
Plessy v. Ferguson
163 US 537
Constitutional /
Overruled by Brown
v. Board of Ed.
Brown v. Board of
Education (1954)
347 US 483
Unconstitutional;
overrules Plessy v.
Ferguson
Bolling v. Sharpe
(1952)
Missouri v. Jenkins
347 US 497
495 U.S. 33
Unconstitutional
Unconstitutional
Can’t be on jury unless you have passed a
literacy exam
Alabama constitution contained many
provisions to qualify to vote, such as a
literacy test, a poll tax, land ownership, to
name a few. Black man brought suit
because he was denied the right to
register to vote in Alabama allegedly
based on his color. He alleges that whole
registration scheme of the Alabama
constitution is a fraud upon the US
constitution and asks court to declare it
void.
Louisiana law required "separate but
equal "accommodations for "white" and
"colored" railroad passengers. Plessy
alleged that he was 7/8th White and
entitled to every right of the white race.
He was arrested for refusing to leave a
seat in a coach for all whites.
Young African-American students sought
admission to the public schools of their
communities on a non-segregated basis
(from states of Kansas, South Carolina,
Virginia, and Delaware); in each instance,
the students had been denied admission to
schools attended by whites under laws
requiring or permitting segregation
according to race (relying on Plessy
"separate but equal" doctrine.)
Minority students brought an action
against the school district in DC alleging
that public school segregation deprived
them of due process of law under the 5th
Amendment.
“White flight”-whites leaving cities so
their kids don’t have to go to school w/
blacks.
Kansas City judge put in an order
requiring a $450 million expenditure by
On its face it applies evenly, but not really.
Ct. held that it could not provide a remedy to the
P; if bill intends to keep blacks from voting,
ordering P's name to be put on the voting registry
list would be an empty form of equity. Rather, the
proper form of relief must come from the people
of the state and the state itself through the
legislative and political departments of the federal
government.
Ct. held that statute that implied legal distinction
between different races did not destroy the legal
equality of the two races or reestablish a state of
involuntary servitude. Referenced the established
usages, customs, and traditions of the ppl. Ct.
rejected view that separation of the two races
stamped one race with a badge of inferiority.
Ct. held that segregation of children in public
schools solely on the basis of race, even though the
physical facilities and other tangible factors were
equal, deprived the children of the minority group
of equal educational opportunities. The court
overturned Plessy and the "separate but equal"
doctrine because segregation was a denial of the
equal protection of the laws under 14th
Amendment.
The Court held that segregation in public
education was not reasonably related to any proper
governmental objective, and therefore arbitrarily
deprived their liberty in violation of the due
process clause of the 5th Amendment and that
maintaining racially segregated public schools
violated equal protection clause of 14th
amendment.
Seemed to be excessive, and exceeded remedial
powers.
Court-imposed tax violated the principles of
comity because its equity powers were limited by
State’s readiness and ability to solve the
146
city for the purpose of making public
schools better. His theory was that if they
forced the city to make those
expenditures, they had to raise taxes.
desegregation problem itself.
State statute makes it a crime for a white
The court held that there was no overriding
person to marry outside the Caucasian
purpose which justified the ban on interracial
race, i.e. bans interracial marriage.
marriage and that restricting the freedom to marry
Loving v. Virginia
388 US 1 (1967)
Unconstitutional
Interracial couple is prosecuted in
solely b/c of racial classifications violated the
violation of the statute and take up
central meaning of the Equal Protection Clause
residence out-of-state. (basically
and deprived ppl of liberty w/o due process of law
interracial marriage in Virginia meant
in violation of Due Process Clause of 14th
banishment from the state)
amendment
When you have a statute that on its face is racially discriminatory, it gets high scrutiny review. This can be overcome by a compelling gov’t interest.
State court removed pre-school child
Ct. held that the 14th Amendment would not brook
from mother's custody after the mother
such governmentally-imposed discrimination
remarried a man of a different race and
based on race. While Florida had a substantial
the father alleged the child would be
interest for purposes of the Equal Protection
damaged by being raised in a racially
Clause in protecting the interest of children, such
mixed household. The mother brought
an interst could not support the State's toleration of
suit.
prejudices based on race; not permisble
Palmore v. Sidoti
466 US 429
Unconstitutional
consideration for removal of an infant child from
its mother.
Jarrett v. Jarrett
Johnson v. California
449 U.S. 927
125 S. Ct. 1141
(2005)
Constitutional
Unconstitutional
Divorced mother living w/ a guy she’s not
married to. Has custody of the kid,
husband brings suit saying he wants the
kid b/c of her behavior. Trial judge said
that women living w/ guys they’re not
married to are not good mothers.
California prison has an unwritten policy
under which, when prisoners enter a new
correctional facility, they are racially
segregated in double cells for up to sixty
days. After the initial 60 day period,
prisoners are allowed to choose their cell
mates. The segregate practice is meant to
**Any time you can correlate something to
race; it’s going to be Unconstitutional.
TEST: best interest of the child. Judge has made
up his mind, so all he has to do is change the
reason. He’s protected from the supreme court
This doesn’t work. Would be Unconstitutional
now, but I think it flew then.
Denied writ of certiorari.
Held: Justice O’Connor, the state’s policy must be
strictly scrutinized. Although the state policy
involved prisons, (Turner) the Court held that “all
racial classifications imposed by the government
must be analyzed by the reviewing court under
strict scrutiny.
-Compliance with the 14th Amendment ban on
147
prevent violence caused by racial gangs.
racial discrimination is consistent with proper
prison administration and bolsters the legitimacy
of the entire criminal justice system.
Dissent: The Constitution demands less within the
prison walls and believed should adopt a
deferential standard for reviewing prisoners’
constitutional claims, i.e. Turner v. Safley test.
Large riot in CA prison
The CA prison is trying to put into effect [Johnson v. California] that prohibits automatic and systematic racial segregation of prison inmates
Note: Article
after more than three decades of racial separation in the corrections system.
Lieutenant Hargrove said that inmates could now opt out of segregation and that a growing number of black, Latino and white prisoners
shared cells, increasing racial tensions in the prison.
After Pearl-Harbor a military order
Holding: Upheld: There was a compelling need to
excluded all persons of Japanese ancestry prevent espionage and sabotage, and that there was
from certain areas of the West Coast, and no practical and sufficient rapid way for the
resulted in their effective imprisonment.
military to distinguish the loyal from the disloyal.
Korematsu v. US
323 US 214
Constitutional
The order applied to both citizens and
non-citizens.
Good for one ticket only-it’s war time, watch out
 In times of war, military evidence (or fear) of
threat to public safety is a compelling gov’t
interest
Purposeful Discrimination: Neutral on Its Face – it’s discriminatory in administration
A San Francisco Ordinance bars the
Held: Although the ordinance is neutral on its face,
operation of hand laundries in wooden
there was discrimination in the administration. In
buildings, except with the consent of
effect, impacts a 100 % of the racial class.
Board of Supervisors. The Board gives
Yick Wo v. Hopkins
118 USC 356
Unconstitutional
permits to all but one of the non-Chinese
Discriminatory Effect: Where it’s neutral on its
applicants, but to none of nearly 200
face but there’s 100% impact (diminution in
Chinese applicants
value) on a race (has effect of discriminating
against a race of people)  Unconstitutional.
Alabama law redefines the city
Held: In effect, denies 100 % of the Negro citizens
boundaries of Tuskagee. The statute
of their preexisting municipal vote.
altered the shape of Tuskagee from a
364 US 339
square to a 28 sided figure removing 400
Discriminatory Purpose: An unconstitutional
Gomillion v. Lightfoot
Unconstitutional
(1960)
Negro voters while not removing from
discriminatory purpose can be inferred from the
the city a single white voter or resident.
extent of the (100%) adverse impact on a certain
class  Unconstitutional racial case.
Griffin v. County
School Board of Prince
Edward County
377 US 218
(1964)
Unconstitutional
Public schools are closed and private
schools were operated in their place with
state and county assistance.
Held: Closed for one reason and one reason only:
to ensure that white and colored children in Prince
Edward County would not, under any
148
U.S. v. MonteroCamargo
208 F.3d. 1122
Constitutional
Washington v. Davis
426 U.S. 229
Constitutional
Mexican American’s and there is a road
block – the car stops and turns around and
goes the other direction. They claim that
the reason they were arrested is b/c they
were Mexican – not b/c they turned
around.
A civil service exam was a qualifying test
used by the D.C. police department in
hiring police officers. More blacks flunk
the test than white people, saying it has a
racially disproportionate impact.
circumstances, go to the same school. Whatever
racial grounds might support a State’s allowing a
county to abandon public schools, the object must
be a constitutional one, and grounds of race &
opposition to desegregation do not qualify as
constitutional.
******Compare with Itawamba case!!!!!!!!!
Hispanic appearance was, in general, of such little
probative value that it may not be considered
where particularized or individualized suspicion
was required. However, the court concluded that
other factors, although not overwhelming, were
sufficient to constitute reasonable suspicion.
The Court rejected heightened scrutiny of a civil
service exam that had not been adopted for racially
discriminatory reasons.
TEST: Once you show an adverse impact, it
becomes an equal protection case (establish a
suspect class & get HSR), but you cannot win on
this alone. The burden then shifts to the employer
to show a justification for the qualifying exam
(i.e., not enough unless you have Yick Wo or
Lightfoot impact – 90%+). In this case, the Court
found that the test served a gov’t purpose.
Equal Protection is different from Title VII, where
you only need to show an adverse impact to win
the case.
Louisiana has a law that says you have to
have a license to be a florist
Sandy Meadows v.
Odom
360 F. Supp. 2d.
811
Constitutional
Substantive due process; low scrutiny review.
The law was rationally related to a legitimate
government purpose. The examination was
connected with an applicant's fitness to serve in the
trade. The state had rational and legitimate reasons
for testing. The examination tested an applicant's
fitness for the trade, and it was rationally related to
the government's interest of public welfare and
safety (state interest in public safety – so people
don’t get injured from floral arrangements). It was
not relevant that a licensed florist did not
individually supervise every particular
149
arrangement in his establishment. Enhancement of
the floral industry was a valid statutory goal.
Jackson v. Hickman
Arlington Heights v.
Metropolitan Housing
Corp.
Mt. Healthy City
School Dist. Bd. of
Educ. v. Doyle
Rogers v. Lodge
406 US 35
429 U.S. 252
429 U.S. 274
458 U.S. 613
Constitutional
Money from Government program that
benefits minorities – African Americans
and Mexicans is reallocated to
governmental program that benefits the
elderly. Challenged on Equal Protection
grounds.
Held: Under Yick Wo or Lightfoot, discriminatory
purpose close to 100 % must be shown to satisfy
“discriminatory purpose.” This is 87%,
Constitutional, not enough.
Non-profit wanted to develop a low
income housing development, but the city
denied the rezoning.
Racially discriminatory purpose may still be
inferred even absent stark statistical disparities.
Even though there was no evidence that the city
denied zoning due to racial hostility, the Court
found that the “ultimate effect” was racially
discriminatory.
Unconstitutional
Five-Factor Test for Discriminatory Purpose:
 Adverse impact (discriminatory)
 Historical background
 Specific sequence of events
 Departure from normal procedures
 Legislative and administrative intent
Teacher was making out with students in
the cafeteria. School administrators found
out, and he is fired. Teacher makes a
speech saying that the school board sucks.
Court said that even though his speech was
constitutionally protected by the First Amendment,
he would still have been fired due to his previous
conduct. REMEMBER, the time frame nexus must
be present. If he had done speech 2 years later and
then fired, that would be unconstitutional.
TEST: When there is a multipurpose
constitutional violation, if same decision would
be reached absent the protected conduct then
you still lose.
An at-large voting system was claimed to
have diluted the minority voting strength.
More than half the county’s population
was black, but no black person has ever
This case describes the role of circumstantial and
historical evidence from Arlington Heights. Atlarge voting schemes and multimember districts
tend to minimize the voting strength of minority
Constitutional
Unconstitutional
150
been elected.
Alabama constitution disenfranchises
those convicted of crimes. Wanted to get
rid of blacks and white trash.
Hunter v. Underwood
471 U.S. 222
Unconstitutional
Three individuals, who were prevented
from registering to vote because of their
past criminal records (felons), sued for a
writ of mandate to compel their
registration.
Richardson v. Ramirez
418 U.S. 24
Constitutional
City ordinance said that it was to allocate
30% of the city’s funds to construction
companies owned by minorities.
Richmond v. J.A.
Croson
488 U.S. 469
Unconstitutional
groups by permitting the political majority to elect
all representatives of the district. Evidence of
historical discrimination is relevant to drawing an
inference of purposeful discrimination.
The Court struck down this facially neutral law as
in fact reflecting racially discriminatory purpose. It
relied on evidence of starkly disparate impact and
on circumstantial historical evidence from which
discriminatory intent could be inferred. After
finding a discriminatory intent was a motivating
factor for the provision, the court concluded that it
would not have been enacted in the absence of the
racially discriminatory motivation.
A criminal record was a factor that a state could
lawfully take into consideration in determining the
qualifications of vote.
The 14th Amendment contained language
suggesting that the practice of depriving felons of
voting rights was acceptable, and because this
practice was historically viewed as valid,
respondents were not entitled to register as voters
under Equal Protection.
The Court said that the states and their political
subdivisions are not free to decide the remedies of
society-wide discrimination; that is up to
Congress.
TEST: You must show actual prejudice, not just
societal prejudice in order for a state of local entity
to take action to rectify the effects of identified
discrimination.
High Scrutiny Review when law is benefiting a
minority class.
Adarand Constructors
v. Pena
515 U.S. 200
Case was remanded
(Not sure if this is
con or uncon)
Federal Statute gives 5% of hwy funds to
contractors on gov’t projects who employ
minorities.
Sue under the 5th amendment due process clause.
High Scrutiny in Federal Contracting just like in
State Contracting. Must have compelling gov’t
interest and be narrowly tailored.
151
Grutter v. Bollinger
Ricci v. Destefano
539 US 306
129 S. Ct. 2658
Constitutional
Unconstitutional
University of Michigan law school was
committed to racial and ethnic diversity,
especially to the inclusion of students
from groups that historically had been
discriminated against. The school did not
impose quotas but considered diversity in
terms of race and ethnicity as "plus"
factors affecting diversity.
Fire department has "race-neutral" exam
for promotions (test to promote fireman
to higher rankings and it is 60% written
and 40% oral). Exam test results had a
disproportionate racial impact and
therefore the Board refused to validate the
exams for fear of being sued until Title
VII. 7 whites were at the top and 2
Hispanics; out of the blacks that took it,
none were at the top – Disparate Impact.
Ricci took the test, but the tests were
thrown out b/c city feared a lawsuit.
Ct. held that the equal protection clause did not
prohibit this narrowly tailored use of race in
admissions decisions to further the school's
compelling interest in obtaining the educational
benefits that flow from diversity. In other words,
the law school used race as one factor among
many in consideration for admissions and this was
valid because diversity is a compelling gov't
interest when it comes to education. Race was
NOT the decisive factor in determining admission
of a law student.
A good faith belief that you are going to be sued
under Title VII is not enough – you have to have
evidence that there was no other legit alternative to
the test – there was no such showing.
ISSUE: whether a municipality incurs
liability when, motivated only by a desire
to comply with federal antidiscrimination law, it takes race-neutral
actions that have racially significant
consequences.
Dean v. City of
Shreveport
438 F.3d 448
Unconstitutional
Shreveport hired an expert (statistician)
and had all the applicants to take a civil
service exam and he said the number of
blacks that passed w/ a 70 or above was
part of the qualified workforce (separates
whites & blacks, whites have to make one
score, blacks make another score –
different cutoff scores); you then go to
interviews and strength tests, etc. – you
don’t get into this phase unless you pass
Ct. held that while city had a compelling interest in
1980 to implement a race-conscious hiring
process, it failed to show that the race-conscious
remedy was still necessary between 2000-02,
when the applicants were rejected for employment.
Ct. of appeals could not determine whether the
city's hiring practices were still justified by a
compelling governmental interest or whether the
city's hiring practices were narrowly tailored to
further that interest.
152
the cut based on your race.
White male applicants who were denied
employment as city firefighters brought
civil rights action against city,
challenging city's race-conscious hiring
process that intended to remedy for actual
past discrimination of minorities and
women.
Gratz v. Bollinger
Fisher v. University of
Texas
U.S. v. Yonkers
539 US 244
645 F. Supp. 2d.
587
624 F. Supp. 1276
Unconstitutional
Constitutional
Unconstitutional
-No relation to the civil service test to being a
fireman.
Considerations for whether an AA program is
Narrowly Tailored:
 Necessity of the particular relief and

The efficacy of alternative remedies

The flexibility & duration of the relief

The relationship b/w the numerical goal of the
relief and the relevant labor market

The impact of relief on the rights of 3rd parties
University of Michigan undergrad
admissions policy was based on a point
system that automatically granted 20
points to applicants from
underrepresented minority groups. Suit
brought alleging racial discrimination.
Ct. held that the policy made race the decisive
factor for virtually every minimally qualified
underrepresented minority applicant. As the policy
was not narrowly tailored to achieve respondents'
asserted compelling interest in diversity, it violated
the Equal Protection Clause.
State leg in TX said that if you graduate
in the top 10% in high school you get
automatically entered into any school in
TX. Also, considers race as a factor.
Except for the automatic admissions, this is the
same program that MI had, so if Grutter is law,
then constitutional.
In the city, SW corner is predominately
black. Put more public schools in SW
corner & put public housing in the SW
corner. City put it to concentrate blacks.
Suit brought to ask for de-concentration.
Race-based decision, so get high scrutiny.
Use Arlington Heights: you don’t have 100%
discriminatory impact. Use five factors, and City
loses.
Note: Remedy to put public housing money in
other districts. Yonkers city council says go to hell
to the federal judge and doesn’t do it.
- Spallone v. U.S. – federal judge put them
in contempt until they voted the right
way.
153
School districts (Seattle and Kentucky
schools) assign pupils to different public
schools on basis of race to ensure that
schools were racially balanced.
Parents Involved in
Cmty. Sch. v. Seattle
Sch. Dist. No. 1
551 US 701
(2007)
Unconstitutional
Ct. held that school districts denied students equal
protection by classifying students by race and
relying upon the classification in school
assignments. The districts failed to establish a
compelling interest in racial diversity since their
plans relied on racial classification in a nonindividualized, mechanical way as a decisive
factor and racial imbalance in the schools was not
unconstitutional by itself. Other means would be
effective to achieve the districts' goals and that the
use of racial classifications was unnecessary.
This isn’t just one factor of many – it is racebased.
Police officers alleged that they were not
promoted b/c of their race--Police chief
was promoting/hiring more Black cops.
Police chief contended that its interest in
effective law enforcement justified the
use of a race-based promotion policy to
achieve diversity.
Hayes v. North State
Law Enforcement
Officers Ass'n
Lomack v. City of
Newark
10 F.3d 207
463 F.3d 303
Problem… not make up for historical
discrimination, it is just to make more diverse… so
have to reflect the races percentage of the
population.
Unconstitutional
Unconstitutional
Note: Signal to strike down Grutter.
Ct. held that opinion of the chief of police that
effective law enforcement required racial diversity
justifying race-based promotion policy was not,
alone, sufficient to support promotion of police
sergeants based on race and that city's race-based
promotion policy was not narrowly tailored ot
accomplish asserted purpose of achieving effective
law enforcement through diversity.
Under a city policy designed to eliminate
single-race fire companies within the city
fire department, firefighters were
involuntary transferred to different
companies solely on the basis of race.
COCHRAN SAYS THAT THERE IS A HIGH
INTEREST IN DIVERSITY IN LAW
ENFORCEMENT BUT THAT YOU NEED
COMPELLING EMPIRICAL DATA TO
DECIDE WHAT AND HOW TO MEET THAT
HIGH INTEREST; POLICE CHIEF'S OPINION
IS NOT ENOUGH. See below for the difference.
Ct. held that racial classification employed by the
city violated Equal Protection Clause. The
interests asserted by the city were not compelling
government interests for diversity in fire
departments, unlike compelling government
interest for diversity in police departments.
154
No compelling government interest, don’t deal
with the public, just put out fires
EQUAL PROTECTION – I’M GONNA PRESECUTE YOU B/C OF YOU’RE RACE/RELIGION
Two petitioners were sentenced in W.
Virginia state courts as habitual criminals.
They alleged a denial of equal protection
b/c the habitual criminal statute to only a
minority of those subject to its provisions.
Oyler v. Boles
368 U.S. 448
Constitutional
ISSUE: Is it an equal protection violation
to apply statute to some habitual
criminals?
African-American Ds claim that they
were singled out, based on race, for
prosecution for crack offenses. ISSUE:
What are the essential elements of a
selective-prosecution claim?
United States v.
Armstrong
517 US 456
Ah Sin v. Wittman
198 US 500
U.S. v. Bin Laden
126 F. Supp. 2d.
256
Constitutional
Constitutional
Constitutional
A Chinese man was arrested after he was
found in a house in which gambling items
were barricaded, in violation of a San
Francisco city ordinance. The arrestee
claimed that the ordinance was being
enforced only against Chinese people in
violation of the 14th amendment.
Blowing up the U.S. embassy in East
Africa. Charged with using WMD’s
against the U.S. P is found guilty and
No. Ct. held that petitioners did not show an equal
protection violation where alleged selectivity in
enforcement was not stated to be deliberately
based on an unjustifiable standard such as race or
religion. To be an equal protection claim,
petitioners would have to show the State was using
arbitrary classifications, such as race or religion.
There’s no equal protection violation unless the
prosecution is based on arbitrary classification
(race or religion).
Ct. held that: 1) to establish entitlement to
discovery on claim of selective prosecution based
on race, D must produce credible evidence that
similarly situated Ds of other races could have
been prosecuted, but were not; 2) to establish a
discriminatory effect of prosecution in a race case,
D must show that similarly situated individuals of
a different race were not prosecuted; Ct. held that
Ds failed to show that government declined to
prosecute similarly situated suspects of other
races.
-Must show that you have people of a different
race similarly situated who have not been
prosecuted
-For an EPC claim, one must show that
similarly situated people are treated differently.
Ct. held that b/c Chinese arrestee failed to provide
proof that the ordinance was enforced solely and
exclusively against Chinese persons, he was not
entitled to a writ of habeas corpus. See Armstrong
(above) for the elements of selective prosecution.
He must show that there is white terrorist blowing
stuff up who weren’t given the death penalty.
They failed to show any discriminatory effect.
155
given the death penalty
Flores v. Morgan Hill
School District
Note: Phoebe Prince
(suicide girl after
harassment)
They could not show that as capital-eligible
federal defendants, they had been treated
differently from persons of other races who are
comparably situated.
Damage suit brought by high school
students against certain teachers. Say that
they were homosexuals and were
harassed. One P is Flores. On her locker
was a sign saying something mean. She
goes to a teacher who does nothing about
it. School has a harassment and antidiscrimination policy.
Equal protection violation because they alleged
discrimination on the basis of sexual orientation,
there was sufficient evidence for a jury to
reasonably find that the students were treated
differently, and the record also contained sufficient
324 F.3d. 1130
Unconstitutional
evidence for a jury to find that defendants acted
with an unconstitutional motive. As early as 1990
the law was clearly established that state
employees who treated individuals differently on
the basis of their sexual orientation violated the
constitutional guarantee of equal protection.
Phoebe was a Irish immigrant. Was getting bullied and taunted by the other kids. Her harassment was common knowledge to the school.
After an entire day of harassment and taunting, followed by a final incident in which a student threw a can at her from a passing car as she
walked home from school, Prince committed suicide by hanging herself in the stairwell leading to the second floor of the family apartment.
Under Flores, could Princes parents have a lawsuit against the high school?
Can’t have arbitrary police power. There is a uniform policy of anti-harassment and if it is not to be applied to African Americans, jewish
people, or homosexuals – doesn’t think it’s going to work (Cochran) b/c they would have to show that Irish are arbitrary class.
Classifications Based on Sex:
Apply “Intermediate Standard of Review” Any gender based classification must be “substantially related” to an “important” governmental objective.
Court applies intermediate scrutiny in a rigorous way. As a result of US. v. Virginia, the defenders of gender-based scheme must show an “exceedingly persuasive
justification for the scheme, and the Court will apply “skeptical scrutiny.” (Therefore, the Government won’t often pass the test.)
Traditional Deference by the Court:
“Mere Rationality” (LSR) Rationally related to some legitimate state interest (usually the preservation of women’s “proper role.”
Myra Bradwell wants to practice law in
Held: The privileges and immunities clause of the
Illinois but is denied.
14th Amendment does not extend to women to
engage in any and every profession, occupation, or
REDUX: Bradwell v.
16 Wall (83 U.S.)
Constitutional
employment in civil life.
State
“The paramount destiny and mission of women are
to fulfill the noble and benign offices of wife and
mother.”
Goodell wants to become a lawyer.
Judge said women don’t have the intelligence or
In Re Goodell
39 Wis. 232
Constitutional
character to practice law. Same as Bradwell.
Michigan law provides that no woman
Held: Statute Upheld. The State could forbid
Goesaert v. Clearly
335 U.S. 464
Constitutional
may obtain a license to tend bar unless
ALL women from working in bars. It was not
she is the wife or daughter of the male
irrational for legislatures to conclude that the
156
owner of a licensed tavern. The State
argues that bartending by women may
cause “moral & social problems” but that
oversight of the barmaid by her husband
or father will minimize these problems.
Reed v. Reed
404 US 71
Unconstitutional
State Courts preferred men over women
in the appointment of administrators of
estates as a rational method to resolve an
issue that would otherwise require a
hearing as to the relative merits of the
petitioning relatives to reduce the
workload of probate Courts.
Male members of the armed forces are
automatically given a dependency
allowance for their wives, but service
women must prove that their husbands
are dependant to receive the allowance.
Frontiero v.
Richardson
social and moral problems posed by having
women tend bar would be less grave where the
barmaid’s husband or father was available to
supervise.
-It’s a business regulation, low scrutiny, so state
may have thought.
-Applying the “mere rationality” test Court has not
yet adopted intermediate review under Craig.
Held; Burger: Cochran says, Burger supposedly
applies the traditional “mere rationality test,” but
the Court is putting more bite into the traditional
standard. Like Lawrence, it is low scrutiny review
with a heightened review result. The Court is
sending a signal they are interested in protection of
women.
“Nature itself has made this decision.”
Held: Explicitly reject the low scrutiny review
standard for gender based classification. Plurality
holding (one vote shy of adoption) that
classification based on sex, “like race, alienage, or
national origin” are “inherently suspect and must
therefore be subject to strict judicial scrutiny.”
Brennan discusses American history and the
historical treatment of women, in practical effect,
put women in a cage, not on a pedestal. He urges
to adopt strict scrutiny.
4 Votes: review to high scrutiny. Women should
be classified into the same category as blacks and
other races.
--Administrative convenience is not an important
and therefore insufficient governmental interest.
Retreat to “ Intermediate Scrutiny”  MID LEVEL REVIEW (substantially related to important Gov’t objective)
Oklahoma statute forbids the sale of 3.2% Held: Classifications by gender must serve an
beer to males under the age of 21, and to
important governmental objective and must be
females under the age of 18. Challenged
substantially related to the achievement of those
the statute in denies equal protection to
objectives.
Craig v. Boren
429 US 190
Unconstitutional
males between the ages of 18 to 20.
This is a middle/intermediate level of review.
411 US 677
Unconstitutional
Oklahoma defended the statute claiming it
promoted traffic safety since statistically 18-20
year old males were arrested for drunken driving
157
more frequently than females in the same age
group. (2% of males and .18% of females in that
age group were arrested for drunken driving.)
Stanton v. Stanton
Mississippi University
for Women v. Hogan
JEB v. Alabama
United States v.
Virginia
(VMI Case)
421 U.S. 7
458 US 718
(1982)
511 U.S. 127
518 US
Unconstitutional
Unconstitutional
Unconstitutional
Unconstitutional
UT child support law: were liable for
child support up until the age of 21 if the
child was a male and only until the age of
18 if child was a female. Women mature
early and get married, so that was basis of
law, so stereotype.
State university has a single-sex
admissions policy. Men are not admitted
to the University’s School of Nursing. It
has enrolled women since its
establishment in 1884. The School of
Nursing was established in 1971. Men
may audit courses, but not take them for
credit. Man is denied admission to the
degree program. He lives and works in
town where school located.
During a paternity suit, the state used
most of its preemptory challenges to
strike male jurors during jury selection.
As a result, an all-women jury was
empaneled.
Virginia publicly-operated men-only
military academy, Virginia Military
Institute, VMI, has been a men only
institution since its adoption in 1839. The
school’s purpose is to develop “citizen
Majority held this statistically-based defense as
insufficient justification. Rationale: Maleness is
not a proxy for drinking and driving, Beverage
was non-intoxicating, and statute prohibited the
sale of beer not the drinking of it once they
acquired it.
The state claimed the basis for the law was that
women got married earlier. This fell under the
“archaic and overbroad” test from Craig v. Boren.
Important gov’t interest is to provide for the
kids… substantially related? No.
Held: O’Connor- (one of her first opinions on the
Supreme Court) Struck down the women-only
policy applying the intermediate level of scrutiny
from Craig v. Boren, adding that an “exceedingly
persuasive justification” must be shown for any
sex based classification. The statute could not
survive this scrutiny.
O’Connor rejected claim this was educational
affirmative action for women. This would have
required a showing that women were
disadvantaged in the field of nursing, not merely in
general sphere of education or employment.
Test from Craig:
 Important governmental interest
o Fair trial
 Substantially related
o Not substantially related to
administration of justice of
justice during trial
Did not pass the test.
Held: 7-1 Opinion. J. Ginsberg,
Virginia’s policy violated women’s equal
protection rights, and the program at Mary
Baldwin College was not sufficiently comparable
to the VMI program to redress the injury.
158
soldiers.” State defends policy on its
physical training, adversative approach
(students are hazed like in Marine Corps.
boot camp), technique of depriving
students privacy would have to be
materially changed if the school were
made co-ed.
The sex based classification would have to
undergo “skeptical scrutiny” and would be upheld
only if the state demonstrated an “exceedingly
persuasive justification” for any gender based
governmental action.
Court rejected claim the Virginia men-only policy
was to promote “diversity in education” since it
was not the “actual” purpose or real objective,
merely a pretext.
Can’t use broad generalizations and archaic
assumptions.
Buzzetti v. City of
New York
140 F.3d. 134
Constitutional
A study by NYC showed that adult
entertainment establishments such as
topless bars created numerous negative
secondary impacts, such as increased
crime and reduced property values. NYC
enacted a zoning amendment that
regulated the permissible locations of
such establishments. Also, stipulated that
Thomas recused himself b/c son was attending
VMI.
Lone Dissenter: Scalia – He said the standard
adopted by the court was an “unacknowledged
adoption of what amounts to (at least) strict
scrutiny.
S.Ct. held for U.S. TEST: in cases of genderbased government action, must demonstrate an
EXCEEDINGLY PERSUASIVE
JUSTIFICATION; THAT THE STATE MUST
SHOW AT LEAST THAT THE CHALLENGED
CLASSIFICATION SERVED IMPORTANT
GOVERNMENTAL OBJECTIVES (had an
ACTUAL REASON/JUSTIFICATION) AND
THAT THE DISCRIMINATORY MEANS
EMPLOYED WERE SUBSTANTIALLY
RELATED TO THE ACHIEVEMENT OF
THOSE OBJECTIVES. Since Virginia failed to
satisfy the burden, the policy of denying women
admission to VMI was unconstitutional
Use Craig v. Boren, and upheld the law.
Different treatment of the male and female breast
did not violate equal protection, because there was
no evidence that male topless bars created the type
of negative community impacts created by female
topless bars.
159
Communities for
Equity v. Michigan
High School Athletic
Association
State v. Vogt
Taxman v. Board of
Education of
Piscataway
Michael M. v. Superior
Court
459 F.3d 676
775 A.2d 551
91 F.3d 1547
450 US 464
Unconstitutional
Constitutional
Constitutional
Constitutional
you can have male strip clubs, but not
female strip clubs in Times Square.
Buzzetti, a topless cabaret owner and a
topless dancer, sought relief from the
ordinance on the basis that it violated the
equal protection clause.
State changes girls athletic schedules in
different seasons than what they would
be, boys are in regular season. This is b/c
they only have so many fields, that it
made sense logistically.
Woman was topless on a NJ beach and
was arrested. She argued that men can go
topless, so it is unfair.
School must lay off either the Jewish
teacher or the Black teacher that have
identical qualifications. There is nothing
in the record as to past discrimination at
this school against woman or minorities.
School lets Jewish woman go and she
sues.
CA statutory rape law punishes the male,
but not the female, participant in sexual
intercourse when the female was under 18
and not the male's wife. Man challenged
its constitutionality based on sex
discrimination against men. ISSUE: Does
a statutory rape law that only punishes
men violate the Equal Protection Clause?
No good… Law is not substantially related.
Could not justify its discriminatory scheduling.
Passes test from Craig: important governmental
interest and is substantially related. Court said that
women did not have a constitutional right to be
nude on a public beach. This was not a violation of
the equal protection clause.
-Interest is decency. Law related.
Diversity is a compelling governmental interest
according to Grutter v. Bollinger. This would pass
the test from Craig of “important governmental
interest” when Jewish woman sues them.
Who should they get rid of? Diversity is a
compelling justification. Get rid of Jewish woman.
No. Ct. held that state had a strong, legitimate
interest in preventing illegitimate teenage
pregnancies and that statute was sufficiently
related because the consequences of sex and
pregnancy fall more heavily on the female than the
male. Cochran asked if this was good law after
VMI? Is this justification real and not
hypothesized? This case has not been overruled.
Using Craig v. Boren, statutory rape constitutional
Note: Mississippi Law – Romeo and Juliet Law –
Minor sex is legal, as long as there is a 3 year diff.
Rostker v. Goldberg
453 US 57
Constitutional
Military Selective Service Act requires
Males but not females to register for the
draft.
Held: Rehnquist (6-3) Opinion. Rehnquist. Under
the test of Craig, the Government’s interest in
raising and supporting armies is an “important”
160
governmental interest. The exemption for women
was not only sufficiently related by closely related
to Congress’ purpose in authorizing the
registration.
Gives deference to Congress.
Rehnquist gave two reasons in upholding the law
in spite of intermediate level of scrutiny:
(1) Deference to Congress in Military Affairs
(2). Military Flexibility- Requires a quick rotation
of personnel and women cannot be rotated into
ground combat positions. Never know when
somebody in non-combat position will be called
into combat.
Parents of Illegitimate Children:
NY law grants the mother but not father
of illegitimate child the right to block or
veto the child’s adoption by withholding
consent. The father, mother, and child
lived together for several years as a
family.
Caban v. Mohammed
441 US 380
(1979)
Unconstitutional
Held:
Intermediate Scrutiny Applied:
“Important Gov’t Interest (Promoting the adoption
of illegitimate children) Here, there is a
presumption that father’s of illegitimate children
are bad parents or have less rights. (Stanley v.
Illinois deals with this) This is an “overbroad
generalization” in gender-based classifications.
There was no “universal difference” at every stage
of child’s development between the closeness of
the father-child relationship and that of motherchild one.
Nguyen v. I.N.S.
533 U.S. (2001)
Constitutional
Under 8 U.S.C. 1409 children with
citizen-mothers are automatically
considered citizens at birth. But children
with citizen fathers must meet three
conditions to be considered citizens at
birth: establishment of the blood
relationship by clear & convincing
evidence, the father’s written promise of
financial support, and fulfillment before
18 of formal recognition of paternity.
Held: Kennedy - Upheld based on significant
difference between mother and father’s
relationship to child-citizen at birth and
substantially related to government objectives of
ensuring a biological parent-child relationship
exists, and in turn have an opportunity to develop a
relationship with US.
Dissent: Accused the Majority of not following the
holding in VMI (United States v. Virginia)
161
State gives a preference to absolute
veterans’ for civil service jobs. A female
challenged the absolute hiring preference.
At the time 98% of veterans were men.
Personnel
Administrator of
Massachusetts v.
Feeney
422 US 256
Held: The statute was not intentionally genderbased. Awareness of consequences was NOT
sufficient to prove “discriminatory purpose.”
Test: Only if the legislature chose its course
“because of,” and not merely “in spite of” its
adverse effects upon women, could there have
been intentional discrimination.
Constitutional
A law has a discriminatory purpose if the
legislature selected or reaffirmed a particular
course of action at least in part because of, not
merely in spite of, its adverse effects upon an
identifiable group.
***Adds to Arlington Heights Test.
Sex Preferences: Affirmative Action for Women vs. Ladies:
Note: Remedying past social discrimination is an important governmental interest, but not compelling if race-based discrimination.
Affirmative Action: 2 Steps:
1. Craig v. Boren – is there any important government interest and is the law substantially related?
2.
VMI – Is the reason given by the state genuine and not hypothesized (reason to make up for past discrimination)?
Kahn v. Shevin
Orr. v. Orr
Weinberger v.
Wiesenfeld
416 US 351
(1974)
440 U.S. 268
420 U.S. 636
Constitutional
Unconstitutional
Unconstitutional
State property tax exemption for widows
but not widowers.
State law that authorized state courts to
impose alimony obligations on husbands,
but not on wives.
A social security provision applied when
a covered wage earner dies. In the case of
a deceased husband and father, benefits
were payable to both the widow and the
minor children. But in the case of a
deceased wife and mother, benefits were
payable only to the minor children and
not to the surviving husband.
Held: Douglas. Applied low scrutiny review
(decided two years before Craig) The state tax law
was reasonably designed to rectify the effects of
past discrimination against women.
Court applied the Craig v. Boren test that
classifications by gender must serve an important
governmental objective and must be substantially
related to the achievement of those objectives, an
intermediate review. This law did not meet the
test.
Applying the “archaic and overbroad” stereotypes
test from Craig, the court invalidated this law.
162
Califano v. Goldfarb
Califano v. Webster
430 U.S. 199
430 U.S. 313
Unconstitutional
Federal benefits program provided that
survivor’s benefits based on a deceased
husband were payable to his widow, but
benefits on the basis of the earnings of a
deceased wife were payable to the
widower only if he was receiving at least
one-half of his support from his deceased
wife.
Social Security Act’s formula for
computing old age benefits. Female wage
earners were given a better way to
calculate their wage earnings.
Constitutional
Navy has promotion system which gives
women a 13-year tenure program before
mandatory discharge where males had to
be discharged if they have been twice
passed over for promotion.
Schlesinger v. Ballard
Johnson v.
Transportation Agency
419 U.S. 498
480 U.S. 616
Constitutional
Constitutional
No history of past discrimination with
public works department. Public works
hadn’t discriminated against women, but
society as a whole discriminated against
women, so have a affirmative action
program  workforce of women
equivalent to qualified work force of
population. Public Works Department in
county only has 22% of female
employees, but the county has 36% of
Just like Frontiero, this was discriminatory to be
directed against female workers, whose social
securities taxes produced less protection for their
spouse than was produced by the efforts of men.
This passes Craig test. It was established in the
record that Congress clearly intended to make up
for past gender discrimination through the
differentiating formula for women. Past societal
discrimination meets the standard of “important
governmental interest.” It also satisfies VMI’s
“actual reason, not a hypothesized one” test.
Mere recitation of a beneficial purpose is not
enough to meet Medium Level Review.
Court applied the deferential rationality standard.
(Should court’s be giving deference to Congress?
Probably not due to SC v. Baker)
Brennan’s Dissent: argued for strict scrutiny
standard and says that the reason for
discrimination as an affirmative action for women
was hypothesized and “conjured up a legislative
purpose” for the discriminatory promotiondischarge rules. CANNOT DO THAT according
to VMI.
The purpose of the hiring was to remedy past
discrimination against woman to meet the Craig
test.
Prior to VMI, it was easier for women to get
affirmative action programs than it was for
minorities. Affirmative action for women only
need “important governmental interest” which can
be shown by societal prejudice while minorities
need “compelling governmental interest” which
163
employable females. It wants to hire more
women. For the position, a woman and
man take a test and go through an
interview process. On the test, the woman
got a 73 and the man got a 75. Woman is
hired and man sues.
Sex is one factor among many. Woman
wants to be radio dispatcher. She takes a
test a little below another guy, Johnson.
Woman gets hired
ILLEGAL ALIENS:
These rights are dictated by Preemption and the 4-part test from DeCanas. Most will be found constitutional.
14th Amendment – no person shall be deprived/denied equal protection. Aliens are persons.
Note: Most alien applies preemption. Federal law preempts state law. If not, 14 th amendment.
State law prohibits illegal aliens from
having a driver’s license.
John Doe. Georgia
147 F. Supp. 2d
1369
Constitutional
CA statute made it a crime for businesses
to employ illegal aliens.
De Canas v. Bica
424 U.S. 351
Constitutional
must be shown through actual prejudice
(Richmond v. J.A. Croson). BUT, some people
view that VMI equalizes woman and minority
affirmative action programs b/c you need a “real
not hypothesized” reason and “exceedingly
persuasive justification” for the different
treatment.
Remember: Societal discrimination is not a
compelling governmental compelling interest for
race discrimination… have to show the institution
discriminated in past.
Important governmental interest is making up for
societal woman discrimination & narrowly
tailored… so Woman wins.
* Easier to have affirmative action for women than
blacks.
Court held that the state’s law did not violate (1)
equal protection or (2) an illegal aliens right to
travel. Illegal Aliens go off preemption, not
constitutional issues. Illegal aliens were not denied
the right to travel b/c right does not give you
access to the most convenient form of travel.
 REMEMBER: right to interstate travel 
Saenz; right to intrastate travel  Moore
test “history and tradition”
 Cochran said that nine states do allow
illegal aliens to get a driver’s license as
long as they have insurance.
Illegal Aliens get Low Scrutiny Review.
Court says that most problems with illegal aliens
are dealt with through preemption (the federal
gov’t overrides a state) b/c of Congress’ plenary
power to regulate immigration.
164
Villas at Parkside v.
City of Farmers
Branch
496 F. Supp. 2d
757
Unconstitutional
City ordinance that if you are renting,
must have evidence of citizenship or
eligible alien status. Apt. owner doesn’t
know evidence of alienage. Federal
government determines evidence of
citizenship.
ISSUE: Preemption?
Felony to drive without lawful presence
in the US. History: 9/11, want to uncover
those from terroristic acts (want to get rid
of terrorists).
Louisiana v. Ramos
Note: Arizona
Immigration Law
993 So. 2d. 281
TEST FOR PREEMPTION:
1. Is the state regulation attempting to
regulation immigration?
2. Is the federal regulation an attempt to
preempt a field? – Congress attempted
to occupy the entire field w/ Federal law?
3. Are the state regulation and federal
regulation compatible independent of
one another? – Law conflict with
(immigration) objectives of Congress?
Preempted.
The city, rather than deferring to the federal
government's determination of immigration status,
created its own classification scheme for
determining which noncitizens could rent an
apartment in the city. Because the city attempted
to regulate immigration differently from the
federal government, the Ordinance was preempted
by the Supremacy Clause.
Constitutional, but crazy as hell b/c you need to
turn alien over to INS.
**Ramos unlike Framers Branch also required
arresting officers to use federal immigration
criteria (good luck) for the initial arrest before
turning the suspect over to immigration authorities
for a final decision
Constitutional
Means of the REAL ID Act, the federal
government encouraged states to preclude illegal
aliens from being issued drivers' licenses. The
state's efforts to identify illegal aliens and prohibit
them from driving in Louisiana were not
preempted by, but rather complemented and
assisted, relevant federal law.
Note what is happening in Arizona is totally divorced from Printz ( Cannot conscript state officials to perform or carry out federal laws –
federal legislation requiring state officials to enforce federal laws) and, laying aside the legal issues raised (preemption), is in direct conflict
with one reason for New York City’s decision to restrict city employees from ratting out one’s immigration status, i.e., setting up a comfort
zone with the police department that should lead to cooperation in criminal investigations.
Can the law stand up to scrutiny? "There are some things that states can do and some that states can't do, but this law threads the needle
perfectly," says Kris Kobach, a University of Missouri–Kansas City School of Law professor who helped write the legislation. He believes it
will withstand constitutional challenge. "In the bill, Arizona only penalizes what is already a crime under federal law," says Kobach, a Yale
Law School graduate and onetime counsel to former U.S. Attorney General John Ashcroft. "That constitutes concurrent enforcement in legal
165
Haig v. Agee
terms, which the courts have said is permissible." Says Mark Krikorian, executive director of the Center for Immigration Studies, a
conservative think tank in Washington: "The rhetoric that this bill will create a police state is ridiculous. What this does is give police officers
an extra tool in their tool kit."
Compare that analysis with the Supreme Court's holding in DeCanas v. Bica and the Farmers Branch line of cases.
Person’s passport is revoked by USA.
Court holds that there is NOT a fundamental right
to interstate travel; rather, it is a privilege,
453 U.S. 280
Constitutional
The right to travel doesn’t necessarily include
international travel.
LEGAL ALIENS:
Standard of review turns on whether it involves a government policy making function. If so, LSR (low scrutiny). If not, HSR (high scrutiny). (Sugarman)
State denies welfare benefits to aliens.
Court struck down the law under HIGH
Waiting period for aliens to get welfare.
SCRUITINY REVIEW b/c “Aliens as a class are a
prime example of a ‘discrete and insular’ minority
for whom such heightened judicial solicitude is
appropriate.” (Famous Footnote 4 from Carolene
Products.)
Legal Aliens = HSR
Graham v. Richardson
403 U.S. 365
Unconstitutional
Level of review: compelling governmental interest
HYPO: What about if statute had said  Welfare
benefits denied to aliens until one year of
residency.
 Go to Saenz  uncon.
 Under preemption test?  uncon.
CT law excluded resident aliens from law Court struck down using HSR.
In Re Grifiths
413 U.S. 717
Unconstitutional
practice.
Aliens can be lawyers.
NY law provided that only American
Exception for Gov’t Function –
citizens might hold permanent positions
MODERN TEST: 2-part test 
in the competitive classified civil service.
1. Is the position in state government
Sugarman v. Dougall
413 U.S. 634
Unconstitutional
involving a high policy making
position?  LSR
2. Administrative / Low Position  HSR
NY law barring employment of aliens as
Police officers involve those government officials
Foley v. Connelie
435 U.S. 291
Constitutional
state troopers.
that have a high policy making position. LSR,
under Sugarman.
State refused to employ aliens who are
Teachers were deemed to involve that
eligible for citizenship but refuse to seek
governmental positions that have a high policy
naturalization as elementary and
making position. Court said teachers have an
Ambach v. Norwick
441 U.S. 68
Constitutional
secondary teachers.
“opportunity to influence the attitudes of students
toward gov’t, the political process, and a citizen’s
social responsibilities.”
Texas barred aliens from becoming
This was not a governmental position that had a
Bernal v. Fainter
467 U.S. 216
Unconstitutional
notary publics.
high policy making ability. HSR.
166
Can Congress condition an alien’s
Held: Congress, under its broad power over
eligibility for participation in a federal
naturalization and immigration, regularly made
Matthews v. Dias
426 US 67 (1967)
Constitutional
Medicare program on (a) admission for
rules that would be unacceptable if applied to
permanent residence and (b) continuous
citizens. Scrutiny was very deferential.
residence in the United States for 5 years? *Gov’t have plenary power to immigration laws
Low Scrutiny (Non-Suspect Class) vs. High/Strict Scrutiny (Suspect Class)  REVIEW STANDARDS WITH THE EQUAL PROTECTION CLAUSE
The business owner was engaged in a
nation-wide express business and
operated about 1,900 trucks in NYC. It
***All discriminatory law get Low Scrutiny
sold the space on the exterior sides of the
Review, UNLESS: they deny a fundamental
trucks for advertising, which, for the most right OR discriminate against a suspect class.
Railway Express
part, was unconnected with its own
Equal Protection LSR = Due Process LSR
336 U.S. 106
Constitutional
Agency v. New York
business. The business state law, which
(rational basis).
prohibited the operation of an advertising
vehicle except where such vehicles were
engaged in the usual business of the
owner and not used mainly for
advertising
Texas city denied special use permit for
Held: The Court held that mental retardation is
operation of group home for the mentally NOT a quasi-suspect class and should use low
retarded pursuant to zoning ordinance
scrutiny review, but concluded that even under
requiring permits for such homes.
that standard the ordinance was invalid as applied
in the case. Refusal to grant the permit rested on
an irrational prejudice against the mentally
retarded.
Cleburne v. Cleburne
Living Center, Inc
473 US 432
Reasons Given to Justify denial of permit:
1. Nearby Property Owners
2. Located Near High School
3. Located on Flood Plain
4. Size of Home & # of people would occupy.
Unconstitutional
These reasons represent “undifferentiated fear.”
You cannot deny constitutional rights on basis of
undifferentiated fear.
Groom e Resources v.
Jefferson Parish
234 F 3rd 192
Constitutional
City Zoning board refuses to approve
home for Alzheimer’s patients. Fair
Housing Act prohibits the discrimination
Also recited that a bare desire to harm a politically
unpopular group was not a legitimate government
interest (Moreno).
Held: Under the Commerce Clause, this although
intrastate is economic in nature. Therefore, under
Wickard and the “aggregation” theory, Congress
167
Heller v. Doe
509 U.S. 312
Constitutional
of the sale or rental for the mentally
handicapped, race, religion sex disability.
Can the federal government require the
city to approve the home?
KY law that had different standards for
involuntary commitment for mentally ill
and the mentally retarded. To commit
someone who’s mentally retarded you
must prove with clear and convincing
evidence of mental retardation. To
commit for mentally ill, it’s beyond a
reasonable doubt.
Want to build a half-way home for nonviolent offenders. Zoning board denied
him.
Freedom Ranch v. City
of Tulsa
Massachusetts Bd. of
Retirement v. Murgia
James v. Valtierra
Romer v. Evans
878 P.2d. 380
427 US 397
402 US 137
517 U.S. 620
Constitutional
Constitutional
Constitutional
Unconstitutional
has the power to regulate.
The Court found that separate standards were
required because of the differing nature of
individuals in each category. The Court stated that
mental retardation existed from birth while mental
illness could appear at any time.
The Court applied a rational-basis review of the
statutes (Cleburne). Under that standard, the
burden was on the party attacking the statutes and
the State was not required to produce evidence to
show the rationality of its statutory classifications.
The Court also held that the involvement of
guardians and family members did not violate due
process because those persons normally had
valuable information to assist a factfinder in
determining whether commitment was required.
Low scrutiny (Cleburne).
City's zoning ordinance did not deny equal
protection. The ordinance did not deal with either
a suspect class or a fundamental right. Also, the
City's purpose of requiring the special zoning
exception was for the legitimate purpose of the
orderly development of the business district.
Mandatory retirement law for uniformed
state police officers once reaches age of
50.
Held: Age receives low scrutiny review.
Age is NOT a suspect class.
California Constitution requires that no
low rent housing project could be
developed by any state body without prior
approval in a local referendum. Low rent
housing project is defined as any
development for purposes of low income.
Holding: Poverty/ income classification, get low
scrutiny review. Discrimination on basis of
Wealth.
This did not discriminate on the basis of race.
Amendment to Colorado Constitution
adopted in 1992 passed in response to
ordinances that had been passed in
Colorado municipalities banning
discrimination in many transactions &
Held: Reconfirms that if a law neither burdens a
fundamental right nor targets a suspect class, Court
will uphold the legislation as long as it bears a
“rational relation to some legislative end.”
Wealth (or lack thereof) is NOT a suspect class.
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activities, including housing,
employment, education, public
accommodations, and health & welfare
services. The constitutional amendment
prevents the State or City from giving
protections to gays or lesbians.
Amendment fails this test. This law is too narrow
and too broad. It identifies persons by a single
trait and denies them protection across the board.
The resulting disqualification is unprecedented.
Amendment 2 denies gays and lesbians protection
by the law.
Significant Case:
Strike down as a “Bare desire to harm a
politically unpopular group” which cannot
constitute a legitimate government interest.
(But see Moreno)
Classifications based on homosexuality get
LSR.
Federal law limited food stamp assistance
to households which were made up of
related persons.
United States Dept. of
Agriculture v. Moreno
New York City Transit
Authority v. Beazer
Nordlinger v. Hahn
413 US 528
440 U.S. 568
505 US 1
Unconstitutional
Constitutional
Constitutional
Public employer denies employment if it
is found you have done methadone
maintenance treatment (to cure heroin
addiction). General policy against
narcotics, including meth. Employees
said this violated equal protection.
CA amendment to state constitution
imposed strict limits on rate at which real
property was taxed from year to year. A
landowner discovered that she was paying
higher taxes than some of her neighbors.
Dissent By Scalia – Accused Majority of “taking
sides in the culture wars.”
Ct. held that law had a “bare desire to harm a
politically unpopular group” (Hippies) b/c it
created an irrational classification in violation of
Due Process Clause of 5th Amendment. The law
was irrelevant to the stated purpose of the Food
Stamp Act and was not rationally related to
furthering any legitimate gov’t interest.
*Significance: A bare congressional desire to
harm a politically unpopular group is NOT a
legitimate gov’t interest, even for LSR
Low scrutiny. The rule was not motivated by racial
animus, there was no rebuttal claim that it was
merely a pretext for intentional discrimination, and
the findings did not support the conclusion that the
regulation prohibiting the use of narcotics violated
Eq. Prot. -Drug addicts are not a suspect class.
Note: there is no Robinson/status issue because the
government is penalizing a voluntary act (like
public drunkenness).
Yes. Ct. held that the amendment did not
discriminate but rather rationally furthered
legitimate purposes: rises in property taxes
disrupt/displace neighborhoods. This is a method
to keep people in their homes. Low scrutiny
169
Dandridge v. Williams
San Antonio Indep.
Sch. Dist v. Rodriguez
Plyler v. Doe
Village of
Willowbrook v. Olech
397 US 471
411 U.S. 1
457 U.S. 202
528 U.S. 562
Constitutional
Constitutional
Unconstitutional
Unconstitutional
ISSUE:is there a legit explanation to have
home tax discrepancies b/w neighbors?
Maryland's welfare statute granted funds
to eligible families but imposed a
maximum grant limit of
$250/month/family regardless of the
fmaily size. Welfare recipients sued
alleging violation of Equal Protection
Clause of 14th Amendment.
ISSUE: Is it a violation of Equal Protect.
if the cap of welfare funds doesn’t meet
the need in every family group?
Parents brought suit alleging that children
in poor school districts were denied equal
protection b/c the quality of their schools
was different/disparite based on the
amount of money collected through
property taxation.
Texas statute withheld from local school
districts any state funds for the education of
children who were not “legally admitted”
into the United States, and which authorizes
local school districts to deny enrollment to
such children. Undocumented school-aged
children challenged law on equal
protection grounds.
The city ordered only one homeowner to
have a 33-foot easement to connect her
property to the city water line, whereas
the city only required 15-foot easements
for everyone else. Homeowner sued for
violation of equal protection clause of
14th amendment, alleging city had
intentionally treated her differently from
others similarly situated and there was no
rational basis for the different treatment.
review.
No. Ct. held that if the classification has some
reasonable basis, it does not offend the
constitution. Here, the reasonable basis was the
State's legitimate interest in encouraging
employment and in avoiding discrimination b/w
welfare families and those of the working poor.
Ct. held that where wealth was involved, the Equal
Protection Clause did not require absolute equality
or precisely equal advantages; that wealth/income
level is not a suspect class, and that education was
not a fundamental right or liberty; LSR required
only that the State's system be shown to bear some
rational relation to legit govt purpose (satisfied)
Ct. held that protection of 14th Amendment
extends to anyone, citizen or stranger. Law was a
violation of equal protection.
Illegal aliens are not a suspect class.
Ct. held that the city's demand was irrational and
wholly arbitrary. The purpose of the equal
protection clause is to secure every person within
the State's jurisdiction against intentional and
arbitrary discrimination. The city eventually
hooked up water line with only a 15 foot easement.
-A law will fail under LSR if it is shown that it
was passed for an illicit purpose or out of a base
motive.
A class of one can bring an Equal Protection
Clause claim, but he must show that the gov’t
action was:
- Completely Illegitimate,
-
Irrational and Arbitrary
170
Former Oregon state employee filed a
"class of one" claim under the Equal
Protection Clause alleging that she had
been fired for arbitrary, vindictive, and
malicious reasons.
Engquist v. OR Dept
of Agriculture
128 S. Ct. 2146
Constitutional
-
Based on deep-seeded animosity or an
illicit motive; OR
-
Different than the treatment of
“similarly situated” parties.
Note: To prove a vindictive motive, one would
look to the 5-part test in Arlington Heights.
Ct. held that class-of-one theory of equal
protection does not apply in the public
employment context. Government offices could
not function if every employment decision became
a constitutional matter. Constitutional review of
state government's dealings with citizen employees
affords state greater leeway than constitutional
review of state in its exercise of regulatory or
licensing power. Therefore, when the Government
acts as an employer, there is much discretion, as
opposed to when the Government acts as a
regulator.
171