Constitutional Law Outline 1999
Professor Regan
I.
National Legislative Power
A. Sources and Nature of National Legislative PowerGovernment of vast, but limited legislative powers
that must find their source from the Constitution
itself.
 Powers listed to Congress in 18 enumerated clauses
in Article 1 § 8. 10th amendment provides that
“powers not delegated to the US by the
Constitution... are reserved to the States,
respectively or to the people”
 To the specified powers was added the “necessary
and proper clause”
 Federal government can do X if: (1)there is a
reason why they can and (2)there is no reason why
they can’t
 Federal government is a government of enumerated
powers
1. McCulloch v. Maryland (1819) 60 –(defines the scope
of fed leg power and the relationship to state
government)
FACTS: Maryland taxed any bank operating within
the state without state authority 2% of the face
value of the bank notes issued unless it paid in
advance a $15,000 tax. Baltimore Branch of Bank of
US cashier issued bank notes without payment of
required tax.
ISSUE: Whether Maryland could collect a tax from a
Bank of the US
RULE OF LAW: the Necessary and Proper Clause gives
Congress the power to make all laws which are
necessary and proper for carrying out the powers
vested in the US by the Constitution; the federal
Constitution is the supreme law of the land and the
states cannot impede Congress
MARSHALL’S ARGUMENTS: Structural argument appeals
to the whole constitution as opposed to relying on
one specific segment of the text (beginning of his
argument is w/o using necessary and proper clause).
Textual argument focuses on the specific text of
the clause. Noticeable how little Marshall appeals
to extra-textual materials like the Federalist
Papers.
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B. The National Commerce Power- Regan thinks we have a
collection of doctrinal rules that, if we take them
seriously, allow Congress to do anything it wants under
the commerce power. On the other hand, we continue to
pay lip service to the idea that Congress’ power is
limited.
 The Virginia Resolution of 1787: the delegation
prepared a series of resolutions as a basis for
discussion. The sixth was sent to a “Com. Of
detail to report to the constitution” and was
changed into the language of the enumeration of
powers of Congress closely resembling Article I,
§8 as it was finally adopted. The sixth Virginia
Resolution read that the national legislature
ought:
(1) to legislate in all cases for the general
interests of the union (interests belonging
to the nation as a whole)
(2) to legislate in cases which the states are
severally incompetent
(3) to legislate in cases where the harmony of
the US may be interrupted by the exercise of
individual legislation
1. Development of Basic Commerce Clause Concepts- when
asking ourselves whether some federal law or
program can be justified under the commerce power,
REGAN suggests asking the question: “is there some
reason the federal government must be able to do
this, some reason why we cannot leave the matter to
the states?
a. Gibbons v. Ogden 69
FACTS: A NY statute granted Livingston and
Fulton the exclusive right to navigate steamboats
in state waters; by assignment Ogden secured the
right to navigate between NYC and NJ. Ogden
secured an injunction in the state courts against
the violation of this right by Gibbons, who was
navigating two steamboats enrolled and licensed
in the coasting trade under an act of Congress.
HOLDING: The Commerce Clause gives Congress
plenary power to regulate interstate commerce
MARSHALL: Is it commerce? Yes
Is it among the several states? Yes
Is it a regulation? Yes
The justification for the decision is that there
was interstate discrimination and a need for an
efficient transportation network.
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* REGAN: existence of efficient transportation
networks for interstate transportation and
communication is one of the “general interests of
the union” – perhaps the most obvious and
preeminent. There are reasons why this interests
should not be left to the states (protectionist
legislation)
b. Paul v. Virginia (1869) 72
Upheld state regulation of interstate insurance
business on the ground that “issuing a policy of
insurance is not a transaction of commerce” and
insurance contracts “are not articles of
commerce.”
c. Kidd v. Pearson (1888) 72
Upheld Iowa’s ban on manufacture of liquor as
applied to an Iowa distillery that sold its
entire output in other states b/c manufacture and
production are not commerce.
d. The Daniel Ball (1871) 73
Sustained a federal safety regulation as applied
to a small ship navigating in shallow water on
the Grand River exclusively in the state of
Michigan. Ship was employed as an
instrumentality of interstate commerce, for
whenever a commodity has begun to move as an
article of trade from one state to another,
commerce in that commodity between the states has
commenced.
*REGAN: the system is one of national
transportation, the power to regulate one
particular element of the system should not
depend upon whether that element itself moves
across state lines or not
e. Foundations for Extending the Reach of
Congressional Power
i.
Champion v. Ames (the Lottery case) (1903)
74
FACTS: Congress passed the Federal Lottery
Act, which prohibited interstate carriage of
lottery tickets, as applied to shipping a
box of tickets from Texas to California
HOLDING: Under the power to regulate
commerce, Congress may, for the purpose of
guarding the morals of the people and
protecting interstate commerce, prohibit the
carrying of lottery tickets in interstate
commerce. The power of Congress to exclude
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ii.
iii.
from interstate commerce activities or goods
harmful to the national interest was
established. Congress trying to help states
enforce their desire to ban lotteries in
their own states.
HARLAN: marches through the same analysis
as Marshall in Gibbons, but says that he
doesn’t necessarily accept the mode of
reasoning he is using... he will decide as
the cases develop.
* current commerce clause thinking grants to
Congress a completely general
power to restrict movement across state
lines and allows Congress to use this means
to promote any policy it chooses.
* Regan thinks this tollgate power is a
mistake. Lotteries implicate no “general
interest of the Union” deciding whether
lotteries should be permitted is a state’s
job unless they are incompetent to make
their choices effective. States would face a
multi-person prisoner’s dilemma, but all
would be better off if they had limits to
production.
Houston, East & West Ry. v. U.S.(1914) 77
FACTS: after setting rates for transport of
goods btw. Shreveport and Texas, Interstate
commerce Commission sought to prevent RR
from setting rates for hauls totally within
Texas which were less per mile than
interstate rates
HOLDING: Congress can control the
intRAstate charges of an interstate carrier
to prevent injurious discrimination against
interstate traffic; Congress has the power
to protect interstate commerce and take all
means necessary to that end, even if
intrastate transaction carriers may be
thereby controlled.
REGAN: yet another case about regulation of
the instrumentalities of interstate
transportation (general interest of the
union)
Stafford v. Wallace (1922) 79
Upheld federal regulation of rates and
practices of commission men and dealers
engaged in local buying and selling
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stockyards. While activities were usually
lawful and affecting only intrastate
commerce, they were now, due to Shreveport,
subject to federal control when Congress
reasonably fears that such acts will
probably constitute a direct or undue burden
on interstate commerce.
2. Regulation of National Economic Problems Through
The Commerce Power
a. Limitations on the Commerce Power through 1936
i.
Hammer v. Dagenhart (1918) 80
FACTS: Federal Child Labor Act of 1916
forbade the shipment in interstate commerce
of goods produced in factories employing
children under the age of 14 and 16 to work
more than six days a week. Daggenhart, the
father of two minor sons who worked in a
cotton mill sought an injunction against
Hammer, the US attorney for enforcing the
act.
ISSUE: Does interstate commerce include
manufacturing?
HOLDING: The making of goods and mining are
not commerce, nor does the fact that they
are to be afterwards shipped or used in
interstate commerce make their production a
part of such commerce. Congress can’t
prohibit the transportation in interstate
commerce of production made by companies
that employ children as laborers in
violation of terms of the law.
* Distinguish from the Lottery Case where
the use of interstate commerce was necessary
to accomplish ridding the channels of
harmful goods and harmful results. Here,
the goods themselves are not inherently
evil.
* Seems to be about an attempt to rid
states from being able to use child labor as
a way of getting ahead of the competition.
* Overruled by U.S. v. Darby
ii.
Schechter Poultry Corp v. US (1935)
Struck down a code to regulate trade
practices, wages, hours in NY poultry
wholesale slaughtering market where 96% of
the poultry came form other states;
Schechter bought and sold poultry on the
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local market; the case lacked a “direct
effect”
iii. Carter v. Carter Coal (1936) 83
Ruled that commerce clause didn’t give
Congress the power to require coal code
members to observe hours and wages agreed
upon between the producers of most coal of
volume; effect of labor provisions falls
upon production and not commerce; production
is purely local. Holding epitomizes dual
federalism.
b. Expansion of Commerce Power After 1936
i.
NLRB v. Jones & Laughlin Steel Corp (1937)
86
FACTS: Congress passed the National Labor
Regulations Act after the National
Industrial Recovery Act was struck down in
Schechter to create a safety valve to
preserve industrial peace. NLRB was created
to prevent unfair labor practices. Jones
was charged before the NLRB for firing ten
workers for union activities. NLRB ordered
Jones to reinstate the workers and Jones
refused b/c the Act is unconstitutional.
HOLDING: Congress has the power to regulate
any activity, even intrastate production is
the activity has an appreciable effect,
either direct or indirect, on interstate
commerce; (companies being regulated were
totally manufacturing companies) Congress
can enforce the reinstatement of employees
who were fired for union activity.
* Court argues that Jones is interstate
commerce b/c steel is a basic national
industry and the size of the corporation
makes it too big for one state to regulate
effectively. Court puts the most weight on
the argument that work stoppages could
interrupt the flow of goods in interstate
commerce
*REGAN: the bare fact that some regulatory
scheme would increase the flow of commerce,
w/o reference to further context, is not an
adequate justification for Congress’
enacting that scheme.. “Interrupts the flow
of commerce” argument does not actually
depend on a multi-state organization. Same
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ii.
iii.
argument for federal power as in Darby...
states are incompetent.
NLRB v. Reliance Fuel Oil Corp (1963) 91
FACTS:
held the FLSA applicable to a NY
distributor of fuel oil whose customers were
all homeowners in NY, and who secured its
fuel oil from NY tanks of Gulf Oil Corp,
which shipped most of its oil into NY from
other states.
HOLDING: No matter how big or small,
Reliance's operations and related unfair
practices affected commerce.
* Regan disagrees with this case and thinks
it is different from Darby b/c Reliance is
not selling instate, so they are not
competing with foreign companies – thus
there is no undercutting of companies
U.S. v. Darby (1941) 91
FACTS: Congress passed the Fair Labor
Standards Act to exclude from interstate
commerce, all goods produced in the commerce
and to prevent their production for
interstate commerce, under conditions
detrimental to the maintenance of the
minimum standards of living; AND to prevent
the use of interstate commerce as the means
of competition in the distribution of goods
so produced, and as the means for spreading
and perpetrating such substantial labor
conditions among the workers of the several
states.
HOLDING: Congress can prohibit the shipment
of interstate goods made by workers in
substandard labor conditions; TOLLGATE
ARGUMENT (cross state lines). Congress can
prohibit the employment of workmen making
cheap goods; (argument similar to McCulloch
– means to an end) Employment of workers in
substandard conditions is a form of unfair
competition injurious to interstate commerce
since goods will be lower priced. Rules
says Congress can prohibit the interstate
commerce of anything(Regan hates this).
Court does not make the distinction between
the importance of regulation of lower wages
and their affect on competition.
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iv.
v.
vi.
STONE: argues that Congress may prohibit
the crossing of state lines by goods made
under any condition Congress disapproves.
Defends direct prohibition of employment
under such conditions as a necessary and
proper means of guaranteeing the prohibition
of state line crossing. (Regan thinks this
is not the proper approach to the commerce
power – no unrestricted power!)
*Stone: the 10th amendment is but a truism
(Regan agrees, but feels that while it
imposes no limitations on the scope of
federal power, it is a reminder that the
federal government was not endowed with all
powers of a government in a unitary nation)
REGAN: states are incompetent to regulate
wages on their own. RACE TO THE BOTTOM
ARGUMENT b/c so long as there are a
significant number of low-wage states, there
will be a significant disincentive for the
states preferring high wages, even if they
are numerous, b/c their goods must compete
against goods from low-wage states in every
state’s consumer market.
OVERRLUES HAMMER
Kentucky Whip v. Illinois Central RR (1937)
95
Upheld a ban on interstate transportation of
convict made goods into states forbidding
their sale.
Maryland v. Wirtz (1968) 96
Upheld Congress’ 1966 extensions of the FLSA
to include hospitals, nursing homes, and
educational institutions, whether private or
public. The “enterprise” extension was
justified b/c these institutions are major
users of goods imported from other states,
and work stoppages involving their employees
would interrupt this flow of goods across
state lines.
Wickard v. Filburn (1942) 96
FACTS: Under the Agricultural Adjustment
Act of 1938, Wickard was ordered to set
national acreage allotments for wheat to
stabilize agricultural production. The Act
required (1) apportioning allotments among
the states and (2) quotas for individual
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3.
farmers who were subject to penalties for
growing more wheat. Filburn allotted 11
acres for wheat, and planted 23 intending to
use it to feed his livestock. Wickard was
fined for the excess.
HOLDING: a farmer who grows wheat for home
consumption may have production regulated
under the commerce power since the more the
farmer produces, the less the farmer will
buy, thereby affecting the demand for wheat
and its interstate price. If Congress can
regulate the aggregate then it can regulate
the general entities. The level of
agricultural production affects the quantity
of crops that flow across state lines.
* Congress should regulate instead of
states b/c : (1) industries are bigger than
any one state (2) price of wheat is set in a
national market (3) Congress is a mechanism
for state coordination
* REGAN: the real reason federal
intervention is justified is that the
problem of agricultural overproduction and
consequent low prices is a problem that the
states are incompetent to deal with
separately.
vii. North American Co. v. SEC (1946) 99
Unanimously upheld an SEC order that North
American divest itself of security holdings
of geographically or economically unrelated
properties. Congress may impose the
relevant conditions and requirements on
those who use the channels of interstate
commerce in order that those channels will
not become the means of promoting or
spreading evil, whether of a physical,
moral, or economic nature. Once it is
established that the evil concerns or
affects commerce in more states than one,
Congress may act.
Regulation of Police Problems Through Commerce
Power –
a. Exclusion from Commerce- the Lottery Case and
its progeny encouraged widespread use by Congress
of its power to exclude from interstate commerce
commodities and activities thought harmful to the
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nation, though the harm itself occurred only at a
local level.
b. Local Activities Affecting Interstate CommerceIn addition to regulating interstate movement of
persons or commodities to achieve police-type
objectives, Congress has increasingly resorted to
direct regulation of the undesired local activity
when it “in any way obstructs, delays or adversely
affects [interstate] commerce.
i.
Perez v. U.S. (1971) 102
Upheld the federal Consumer Credit Protection
Act’s ban on “extortionate extension of
credit” in strictly local activities b/c of
the dependence of nationally organized crime
on revenue from this loan shark racket.
Loan sharking is a traditionally local
activity, but in a national setting that helps
organized interstate crime control national
operations, it is hard for any one state to
handle alone.
* Regan discussed that the class of activities
within federal power is a class of loan sharks
connected to organized crime, thus Congress
can regulate individual loan sharks. The key
missing link is that there is nothing to prove
Perez was connected with organized
crime...where it is hard to tell the
boundaries of a class, Congress can over
define.
ii. US v. Sullivan (1948) 103
Affirmed the conviction of a retail druggist
under the Federal Food, Drug, and Cosmetic Act
for misbranding two pill boxes by failing to
affix to the boxes the required warning label
that was printed on the large bottle of pills
bought from an in-state wholesaler who had
secured them through interstate commerce.
COURT: identifies consumer protection as the
purpose and says Congress must be able to
regulate drugs right up to their receipt by
the final consumer if the purpose is to be
fully achieved.
REGAN: this seems to be improper
bootstrapping. Even if Congress is entitled
to act to protect consumers when a state line
is crossed, it does not follow that Congress
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may do whatever else may be necessary to
achieve fully that purpose. It is an area that
requires significant scientific expertise and
it would be a waste of resources to duplicate
the FDA in every state
4. Protection of Other Interests Through the Commerce
Clause
a. Civil Rights- Court held that neither the 13th or
the 14th amendments empowered Congress to pass the
Civil Rights Acts making racial discrimination
unlawful in public accommodations b/c: (1) 14th
amendment forbids behavior only by the states and
(2) the last clause of the amendment authorizes
Congress to provide modes of redress against
operations of state laws, not to create a code of
law for the regulation of private rights
i.
Heart of Atlanta Motel, Inc. v. U.S. (1964)
105
FACTS: Owners of a downtown Atlanta hotel
only rented their 216 rooms to white people.
The hotel advertised in national magazines and
on billboards and 75% of their guests were
from out-of-state. The Civil Rights Act of
1964 forbid racial discrimination or
segregation in hotels, motels, restaurants,
and catering establishments.
HOLDING: Congress can regulate purely local
activities in the state of origin and
destination as along as these local incidents
have a harmful effect on interstate commerce.
Congress can prohibit racial discrimination by
motels serving travelers, no matter how
“local” their activity may seem b/c
discrimination burdens interstate commerce.
REGAN: justified by the national interest in
the transportation system. The argument works
under the Commerce Clause (instead of the 14th
amendment) b/c the motel is like a RR. The
motel never moved from its location, but it
made itself a part of the system by
advertising and serving interstate travelers.
Federal government may guarantee access to the
instrumentalities (standard analysis in
contrast, assumes Congress may guarantee or
deny as long as no principle of individual
rights is violated).
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REGAN: this case can also be justified by the
Reconstruction amendments.
ii. Katzenbach v. McClung (1964) 107
FACTS: the owner of Ollie’s BBQ, a local
restaurant in Alabama, practiced racial
discrimination.
HOLDING: The restaurant must serve everyone
b/c racial discrimination affects interstate
commerce.
* the opinion makes the following arguments:
(1) discrimination discourages travel
(2) discrim discourages in-migration to
Alabama
(3) suppresses influx of industry in
Alabama
(4) Ollie's sells less food b/c he
discriminates
 REGAN: good outcome, but a horrible opinion. If
Some part of the constitution had to be deformed
to get this result, it should have been the
doctrine of the Civil Rights Cases...Court should
have based its holding on the Reconstruction
amendments in some way or another. The commerce
clause is irrelevant.
*McClung is now relied on for its general
“affecting commerce” doctrine and the idea that
Congress can regulate whatever has crossed a state
line. Disaster!
b. The EnvironmentCourt links environment to interstate commerce by
the “crossing the state lines” argument.
REGAN: extensive federal environmental
legislation can be justified by the difficulty
states face, acting separately, in protecting
those several interests. All of this may ground
a “general interest in the Union” in the
treatment of our national heritage argument
i.
Hodel v. Virginia Surface Mining (1981) 110
Unanimously upheld the constitutionality of
the Surface Mining Control and Reclamation Act
of 1977. Court could not say that Congress
did not have a rational basis for concluding
that surface coal mining has substantial
effects on interstate commerce. Nation wide
surface mining and reclamation standards are
essential in order to insure that compliance
in interstate commerce among sellers of coal
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produced in different states will not be used
to undermine the ability of the several states
to improve and maintain adequate standards on
coal mining operations within their borders.
c. Recent Limitation
i.
U.S. v. Lopez (1995) 112
FACTS: 1990 Gun Free School Zones act made it
a federal crime to possess a firearm within
1000 feet of a public or private school. A
senior at a Texas high school was arrested for
carrying a .38 caliber handgun to school
HOLDING: for Congress to regulate pursuant to
its commerce authority, the activities
regulated must have a substantial relation to
interstate commerce; the possession of a gun
near a school zone does not fall into that
category.
* Rehnquist tries to distinguish btw.
commercial and non-commercial activities
affecting commerce.
* The court also offers: (1) this is a
criminal statute with nothing to do with
economic enterprise and (2) acts contain no
jurisdictional element
* REGAN: after this opinion there seems to be
two possible tests to see is something can be
regulated by the commerce clause: (1) either
it is not a stretch to say that the thing is
commerce OR there is a jurisdictional element
and (2) either there is a jurisdictional
element it’s a commercial activity
* REGAN: result is correct, but the opinion
is unsatisfactory. Commercial/non-commercial
distinction is unsupported. Focus in the
leading cases is on effect on commerce NOT
commercial/non-commercial. Not a case where
Congress and the states have different goals.
If they did, and Congress’ goal was in the
promotion of the general interests of the
Union, Congress would have good reason to
override the state.
* Kennedy dissent: goes further than court
has ever gone before in allowing regulation of
local commercial behavior. As long as the
behavior is commercial, he seems to be saying
we need not consider the effects on interstate
commerce. “We have a single market and a
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d.
unified purpose to build a stable national
economy.” If behavior is non-comm. we should
ask if regulation intrudes into areas of
traditional state concern.
* This case is different from Perez, Wickard,
and Katzenbach b/s the behavior in those cases
was actually commercial, and not this long
connection to commerce.
Current Commerce Clause Doctrine: REGAN
(1) Congress may prohibit the movement across
state lines of anything it pleases.
a. in the exercise of this prohibitory
power, Congress may describe the objects
in terms of their intrinsic properties
and relational properties
b. Congress may prohibit the creation of
such objects or the maintenance of
conditions necessary to their creation
c. The power includes the movement of people
(2) Congress may regulate local behavior with
regard to any object that can be regarded as
in transit or on a journey that will involve
the crossing of state lines
(3) Congress may regulate behavior involving
any object that has previously crossed a
state line.
(4) Congress may regulate behavior that affects
the quantity or identity of goods or people
moving across state lines.
a. This “affecting commerce” principle may
be limited by the requirement that the
behavior in question “substantially” or
“significantly” affect the quantity or
identity of goods or people moving across
state lines.
b. What must have the substantial effect is
the aggregate of all similar instances
c. even instances that have no effect
at all on commerce
(5) Congress may regulate any aspect of the
business or anything that impinges on any
aspect of the business, of instrumentalities
of transportation or communication across
state lines, including links in interstate
transportation or communication networks
that operate entirely within a single state.
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e. The National Taxing And Spending Power – Art.I,
§8, grants Congress power “to lay and collect taxes,
duties, imposts and excises, to pay debts and provide
for the common defense and general welfare of the
United States.” Its terms include both the power to
tax and the power to spend. The Court has long
recognized that Congress may use its taxing power
both to enforce its regulatory powers and to produce
“incidental” regulatory effects outside those powers.
1. Regulation through Taxing
a. Bailey v. Drexel Furniture Co. (1922) 121
After Hammer when first Child Labor regulatory
statute was struck down, Congress put a tax on
child labor and the Supreme Court struck it down
as beyond Congress’ power. Court thought it was
formally a tax, but really a regulation in
disguise. This distinction is very hard to make
b/c most taxes actually have a regulatory aspect.
* court does this distinction making b/c as long
as the court is trying to distinguish, there have
to be taxes that are regulatory and taxes that
are just taxes. Court is enforcing the limits on
the regulatory power.
2. Regulation through Spending
b. U.S. v. Butler (1936) 124
FACTS: Struck down the Agricultural Adjustment
Act of 1933 enacted to raise farm prices by
contract with farmers to reduce the acreage
planted of certain commodities. In exchange, the
producers of the commodities would be taxed and
the money would go back to the farmers as a
subsidy.
HOLDING: Rules that the tax and benefit payments
were beyond the powers of Congress b/c the
government cannot contract with farmers to reduce
acreage in exchange for benefits.
* the issue was over the power in the general
welfare clause as distinguished from the power to
tax and other enumerated powers
* the general welfare clause is distinct, but
this Act is not for the general welfare.
* the court argues that this regulation is not
voluntary, coercion by economic pressure AND this
is a subject reserved for the states
c. Steward Machine Co. v. Davis (1937) 128
FACTS: Title IX of the SS Act relating to
unemployment compensation under which the
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proceeds of a federal payroll tax on employment
went into the general federal treasury, not an
ear-marked fund. Taxpayers were entitled to 90%
credit on federal tax for payments to a state
unemployment compensation fund under a state law
that met federal requirements.
HOLDING: this act is constitutional b/c it is
directed at an end for which Congress and the
states may lawfully cooperate. States are unable
to handle the problem on their own. This is not
coercion b/c the states have a choice and the
purpose is to safeguard the fed. govt. treasury.
* Regan argues that it is much more coercive than
Butler: in this case it seems clear that the
state will lose if it stays out of the federal
program whereas in Butler, chance of loss is not
that great.
d. South Dakota v. Dole ((1987) 131
FACTS: a federal law required that 5% of
allocable highway funds be withheld from any
state where persons under 21 could legally
purchase or possess alcoholic beverages
HOLDING: court upheld the law’s validity b/c (1)
it is not coercive- 5% of highway funds is not a
disproportionate amount (2) it is not including
unconstitutional behavior (3) the conditions
imposed are related to its purpose – to regulate
travel on interstate highways and keep highways
of interstate commerce safe from drunk drivers.
f.
Foreign Affairs Power – the reliance on war
powers as the source for congressional regulation
to cope with economic problems arising out of
war-related activities
1. Treaties as a Source of Legislative Power
a. Missouri v. Holland (1920) 135
Upheld the Migratory Bird Treaty Act that
regulated the taking of migratory birds in the US
in fulfillment of a treaty with Canada. The
treaty obliged both countries to seek legislation
protecting migratory birds that traversed both
countries and were valued highly both for food
and as destroyers of insects harmful to
vegetation
* this is national interest of the highest
degree and the subject matter is only
transitorily within the state
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* the power to make treaties is a free power,
whether or not those laws would otherwise be
justified (it is not about the subject matter, it
is about the context)
2. Other Bases for Legislative Power Over Foreign
Affairs
a. Perez v. Brownell (1958) 137
Upheld a federal statute mandating the loss of
US citizenship for “voting in a political
election of a foreign state” under the “power to
regulate foreign affairs”
b. Afroyim v. Rusk
Overrules Perez and says that the government
can’t mandate the loss of citizenship for voting
in a political election of a foreign state b/c
it is inconsistent with §1 of the 14th amendment
* 14th amendment is a power-limiting clause
telling Congress they cannot take right away
(w/o it they would have the power) but Congress
can make it a crime b/c of positive power to
regulate foreign affairs
c. U.S. v. Curtiss-Wright (1936) 204
FACTS: Joint Resolution of Congress authorized
the President to prohibit the sale of arms to
Bolivia and Paraguay which were engaged in an
armed conflict in Chaco. If the President found
that such a prohibition would contribute to the
reestablishment of peace between those
countries. President proclaimed an embargo &
Curtiss-Wright was indicted for violating its
terms.
HOLDING: Constitutional b/c the broad statement
that the federal government can exercise no
powers except those specifically enumerated in
the Constitution, and such implied powers are
necessary and proper to carry into effect the
enumerated powers, is categorically true only in
respect of our internal affairs
g. Applying National Powers to State Governments:
Intergovernmental Immunities
1. Origins of Immunities
a. McCulloch v. Maryland (1918) 139
Started intergovernmental immunity as a
constitutional limit on state and federal power with
the immunity of the federal government from state
taxation under the supremacy clause
2. State Immunity from Federal Taxes
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a.
N.Y. v. U.S.(1992) 155
FACTS: 1995 Low Level Radioactive Waste
Amendment Act required all states w/o own
disposal sites to create them or contract w/
other states. States which failed to do so were
required to take title to and possession of any
waste generated w/in the state and assume
liability.
HOLDING: Congress cannot compel states to enact
and enforce a federal regulatory program;
Congress can govern the nation directly but can’t
require the states to govern according to
Congress' instruction; lose system of
accountability when you force the states to adopt
certain measures
*REGAN: not sure whether this case was correct
in its result, but the idea that it represents –
that the federal government can not commandeer
the political institutions of the states – seems
indisputable. No one doubts Congress can
regulate radioactive waste, the only issue was
about the means which Congress chose (necessary
and proper clause?)
3. State Immunity from Federal Regulation
Guiding principles (1) Congress can govern
directly, but can not require states to govern
according to Congress’ instructions (2) federal
government may not impose federal responsibilities
on state officers
a. Maryland v. Wirtz (1968) 145
(see above)
b. National League of Cities v. Usery (1976) 145
Expressly overruled Maryland v. Wirtz b/c
Commerce clause does not empower Congress to
enforce the minimum wage and overtime provisions
of the FLSA against the states in areas of
traditional governmental functions. This
threatens the separate and independent existence
of states as sovereign political entities
* Court relied on 10th amendment argument that
powers not granted to the federal government are
reserved for the states.
* during the next seven years the principle was
applied w/o success and eventually declared not
applicable b/c it is hard to tell what are
“traditional government functions?”
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*REGAN: There is not much room to doubt that the
commerce power extends this far if we rely on the
standard doctrine. But not sure why there is any
special need for federal intervention anyway.
Barring some special provision such as the 14th
amendment, it cannot be an adequate reason for
federal intervention that it would help
particular interests in the states to achieve
their goals. This would make federal power
limitless.
c. Garcia v. San Antonio Metro Transit Authority
(1985) 146
FACTS: Congress applied the FLSA to a
municipally owned and operated mass transit
system
HOLDING: Sufficient restraints on the exercise
of commerce power to protect the states’
sovereign interests are provided by procedural
safeguards inherent in the structure of the
federal system established by the Constitution
and shouldn’t be provided by judicially created
limits
 Court argues that states are represented in the
federal government, thus their voice is heard.
This is flawed, according to Regan, b/c states do
not elect representatives, the people do.
 REGAN: modern analogue of The Daniel Ball,
correct b/c even the municipal transportation
system of San Antonio is a part of the national
system. The court was wrong to rely on the more
general “affecting commerce” rationale.
d. Prinz v. US (1997) supp.
FACTS: Brady Handgun Violence Prevention Act
detailed a federal scheme governing the
distribution of firearms commanding state and
local law enforcement officers to conduct
background checks on prospective handgun
purchasers and to perform certain related tasks
HOLDING: the federal government may not impose
federal responsibilities on state officers w/o
state’s consent; Congress can’t govern states,
thus federal government can’t compel states to
enact a federal regulatory program for handgun
purchasing
*rests on the structure of the Constitution, the
separation into two spheres is the protection of
liberty; rests on jurisprudence of the court in
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that preservation of the states as independent
political entities is less undermined by
requiring them to make policy than reducing them
to puppets of congress.
e. NY V. US (1992) 155
(see above)
II. State Power to Regulate
A. Congressional Authorization of State Regulation
1. Prudential Insurance Co. v. Benjamin (1946) 227
Upheld Congress’ power to authorize state taxes
that discriminate against interstate commerce,
authorized favoring local insurance company in a
local market
B. The Quest for An Adequate Standard/ Dormant Commerce
Clause- doctrine about the limits on state’s economic
regulatory power; federal power, even in its dormant
state, supercedes state’s power. Protectionism is
forbidden b/c it is a political problem that creates
resentment between the states and it is economically
inefficient (its purpose is to get rid of low-cost,
out-of-state business and gain local business at a high
cost for consumers.) Where simple economic
protectionism is affected by state legislation, a
virtually per se rule of invalidity is erected.
1. Pike v. Bruce Church (1970) HO
FACTS: Bruce Church was growing cantaloupes of
superior quality in Parker, AZ, but had no packing
sheds in AZ. Cantaloupes were transported to
nearby facilities in CA, sorted, inspected, packed,
and shipped in containers that had the CA name of
them. Acting under the Arizona Fruit and Vegetable
Standardization Act, designed to prevent deceptive
packaging, and order was entered against Bruce
Church.
HOLDING: Order is unconstitutional b/c it does not
impose rigidity on entire industry, but just puts a
straightjacket on Bruce Church when state interest
is minimal.
*PIKE TEST
(1) Does the statute regulate evenhandedly with only incidental effects on
interstate commerce, or does it
discriminate against interstate commerce
either on its face or in practical effect?
Look for purpose:
a. discriminatory purpose- most closely
related to economic inefficiency, most
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likely to cause resentment (Hunt is an
example b/c it sought to improve the
position of NC growers vis-à-vis
Washington growers.
b. Explicitly discriminatory- may be
slightly resented, not bad in itself,
but bad b/c it is usually accompanied
by purpose (a 10% tax on all shoes from
outside of Maine would be an example
b/c it mentions other states by name
and will probably also have a purpose
and effect)
c. Discriminatory effects- usually
important evidence of purpose
(Minnesota v. Cloverleaf Creamery is an
example b/c there was a discriminatory
effect on out-of-state plastic
industry.)
(2) Does the statute serve a legitimate
local purpose?
(3) If so, are there alternative means
that the state could use to promote
this local purpose without
discriminating against interstate
commerce?
THEN:
(4) If it does regulate even-handedly, must
use the balancing test (Pike, Hunt):
balance the burden on commerce against the
local benefits:
a. open ended balancing- not triggered by
a discriminatory effect (cost to
foreigners and benefit to locals)
examples are Hunt, Maine, Cig. Hypo.
Not usually a task for which courts are
suited, violation of consequences
should be left to legislature
b. discriminatory effect balancingcompromise position, but it makes no
sense (just look at purpose or do open
ended balancing) no way discriminatory
effect is in itself problematic, but it
matters as evidence of purpose
* standard view of what the court is doing
is looking for bad purpose then balancing.
Regan thinks that the second stage doesn’t
exist- court talks about balancing but only
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looks at purpose and doesn’t actually
balance
C. Regulations that burden Out-Of-State Suppliers
Seeking In-State Markets
1. Hunt v. Washington Apples ((1977) HO
FACTS: State legislature tried to protect and
enhance the reputation of the state by
establishing an inspection program. 1972 NC Board
of Agriculture adopted an administrative
regulation requiring all closed containers of
apples shipped into or sold in the state to
display either applicable USDA grade or none at
all. Growers in Washington would have to
obliterate printed labels on cartons, change
marketing practices, or discontinue use of preprinted containers.
HOLDING: When state legislation conflicts with
the commerce clause’s overriding requirement of a
national common market, we must accommodate
competing local and national interests. The
statute violates the commerce clause in that it
prohibits the display of Washington grades even if
enacted for the declared purpose of protecting
consumers from deception and fraud in the
marketplace.
*statute discriminates b/c it (1) raises costs of
doing business in NC for Washington, while leaving
NC counterpart free from regulation (2) strips
Washington growers of competitive and economic
advantages (3)offers NC apple industry a sort of
protection from out-of-state competition the
commerce clause was designed to prohibit.
2. Dean Milk co. v. Madison (1951) 239
FACTS: state ordinance prohibited the sale of
milk not processed @ approved pasteurization
plants within 5 miles of Madison’s central square.
Dean Milk co. was based in Illinois, bought milk
from Wisconsin and Illinois farms which it
pasteurized @ its two Ill plants
HOLDING: The commerce Clause prohibits local
health and safety regulations which have the
effect of discriminating against interstate
commerce if reasonable non-discriminatory
alternatives are available. One state, in dealing
with another, must yield to the principle that it
may not place itself in a position of economic
isolation.
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3.
General Motors v. Tracy (1997) HO
FACTS: GM bought virtually all the natural gas
for its Ohio plants from out-of-state marketers
not Local Distribution Companies. Tax
commissioner from Ohio applied state’s general use
tax ( a general sales and use tax imposed on
natural gas purchases from all sellers, whether
in-state or out-of-state, that do not meet its
statutory definition of a “natural gas co”) to GMC
purchases.
HOLDING: Ohio’s differential tax treatment of
public utilities and independent marketers
violates neither the commerce clause nor the Equal
Protection Clause. LCDs and GMC are different and
serve different markets, so they cannot be
compared (LCDs provide bundled service while GMC
does not, one is monopolistic while one is
competitive) Because local utilities provide a
different service there is a hurdle to the claim
that the differential tax treatment violates the
virtually per se rule of invalidity prohibiting
facial discrimination against interstate commerce.
* court seems to be looking over the state’s
shoulder to make sure it is doing what it is doing
for the right reasons rather than applying a
balancing test.
D. Regulation to Protect Environment and Preserve Natural
Resources for In-state Use
1. Minnesota v. Clover Leaf Creamery Co. (1981) 249
FACTS: upheld a state law that banned nonreturnable milk and containers made of plastic but
permitted other non-returnable milk containers,
largely cartons made of pulpwood, though the
plastic originated out-of-state and pulpwood instate.
HOLDING: Minnesota statute regulates even-handedly
by prohibiting all milk retailers from selling
their products in plastic non-returnable milk
containers, without regard to whether the milk, the
containers, or the sellers are from out-of-state.
The burden is not excessive in light of substantial
state interest in promoting conservation of energy
and easing of solid waste disposal problems
2. Philadelphia v. NJ (1978) 250
FACTS: NJ law which provided that no person shall
bring into the state any solid waste or liquid
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3.
4.
5.
waste which originated or was collected outside the
state.
HOLDING: A state law which discriminates against
interstate commerce is invalid unless there’s a
legitimate state purpose involved that outweighs
the burden on interstate commerce. Where simple
economic protectionism is effected by state
legislation, a virtually per se rule of invalidity
has been erected, this statute is purely
protectionist. Both explicitly discriminatory
(imposes on out-of-state commerce interests the
full burden of conserving the state’s remaining
landfill space) and discriminatory in effect.
Maine v. Taylor (1986) 253
Upheld a Maine law that prohibited importation into
Maine of live baitfish that competed with Maine’s
native baitfish industry b/c (1) Maine has a
legitimate and substantial purpose in prohibition
(uncertainties surrounding the effects baitfish
parasites would have on the state’s unique
population of wild fish and the consequences of
introducing a non-native species and (2) less
discriminatory means of protecting against these
threats were currently unavailable
*Court seems to care more about purpose than effect
and in this case, state legislature was acting for
non-discriminatory purposes.
Carbone, Inc. v. Clarkstown (1994) 254
FACTS: Clarkstown arranged for the construction of
a waste transfer station to collect waste, separate
recyclables, and ship solid waste to the
appropriate disposal facility. Station was to be
sold to the town for $1 @ the end of five years.
In order to ensure economic viability, town adopted
a flow of control ordinance that all non-recyclable
materials within the town would be processed @ the
transfer station which charged a fee in excess of
the prevailing private market rate.
HOLDING: ordinance discriminates in that it favors
a single local proprietor and squelches competition
in the waste-processing service, leaving no room
for outside competition. A town can’t employ
discriminatory regulation to give a project
advantage over rival businesses from outside the
state b/c it is imposing an excess burden on
interstate commerce
Hughes v. Oklahoma (1979) 256
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Held invalid under the commerce clause an Oklahoma
ban on transporting “minnows for sale outside the
state which were seined or procured within the
waters of this state” as applied to a Texan who
transported to Texas a load of minnows taken from
Oklahoma waters b/c ban overtly blocked the flow of
interstate commerce at the state’s border
E. The State As A Market Participant
1. Reeves, Inc. v. Stake (1980) 270
FACTS: Responding to a 1919 cement shortage, South
Dakota built and operated a cement plant, which
sold to both in-state and out-of-state buyers.
When booming construction caused a cement shortage
in 1978, Reeves, Inc., an out-of-state buyer, felt
SD’s policy of giving preference to SD buyers was
unfair.
HOLDING: State activity as a market participant is
not subject to commerce clause regulation. There
is no constitutional barrier to states acting as
any other free market participant and when doing
so, a state may take necessary steps to protect its
market position. This includes the ability to
discriminate against out-of-state buyers.
2. South Central Timber Development v. Wunnicke (1984)
273
FACTS: Alaska requires that purchasers of state
owned standing timber must generally saw it into
“cants” less than nine inches wide before shipping
it out-of-state. State basically requires hiring
Alaska residents to process the timber.
HOLDING: Alaska can’t require purchasers to saw
wood before shipping it b/c state is using its
leverage in a certain market to exert a regulatory
effect in the processing market. It is not a
participant in that market, though, so there is a
per se rule of invalidity b/c of the protectionist
nature.
F. Interstate Privileges and Immunities Clause
1. Baldwin v. Fish and Game Commission of Montana
(1978) 274
Upheld Montana’s non-resident license fee of $225
for hunting elk, compared to $30 for residents.
Court held that only with respect to those
privileges and immunities bearing upon the validity
of the nation as a single entity must the state
treat its residents and non-residents equally. Elk
hunting is recreation and not a means to
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livelihood, thus equality in access to elk is not
basic to the well-being of the nation. Appellants’
interest in sharing this limited resource on more
equal terms simply does not fall within the purview
of the Privileges and Immunities Clause.
2. Hicklin v. Orbeck (1978) 278
Unanimously held invalid Alaska statute, dubbed
“Alaska Hire” that required employers in wideranging oil and gas operations to give employment
preference to qualified residents over nonresidents. State’s ownership of gas and oil is
insufficient justification for pervasive
discrimination against non-residents. The act is
an attempt to force virtually all businesses that
benefit in some way from the economic ripple effect
of Alaska’s decision to develop its oil and gas
resources to bias their employment practices in
favor of the state’s residents.
3. United Building and Construction Trades Council
v. Mayor and Council of Camden (1984) 279
held the interstate privileges and immunities
clause applicable to a Camden, NJ ordinance that
required at least 40% of contractors’ employees on
city-funded construction projects to be Camden
residents. Court held that the market participant
doctrine was not applicable to the privileges and
immunities clause. Ordinance was not invalidated
but remanded for determining whether there was a
sufficiently substantial reason for the difference
in treatment between Camden residents and nonresidents.
G. The Effects of Federal Regulation: Preemption- when a
constitutionally valid federal statute expressly
preludes state regulation, the supremacy clause makes
the federal law controlling. Preemption questions are
questions of statutory construction, which frequently
turn on the unique terms, history, and objectives of a
particular federal statute.
Express preemption- federal statute says states can’t
legislate in the area
Confliction- federal statute preempts state statute
when there is a conflict
Occupying the field- if there is a fairly pervasive
system of federal regulation, court says federal
government intended states not to be able to add to it
1. Pacific Gas and Electric Co. v. State Energy
Resources Conservation & Dev. Comm’n (1983) 281
26
2.
3.
4.
FACTS: Atomic energy Act of 1954 intended to
preserve the federal government as the sole
regulator of all maters nuclear. The act regulated
radiological safety aspects involved in the
construction and operation of nuclear power plants
(but states retained traditional responsibility in
the field of regulating electrical utilities, for
determining questions of need, reliability, costs,
and other related state concerns). California code
prohibited certification of a nuclear power plant
until SEC fund that the US had approved and there
existed a method for permanent disposition of highlevel nuclear wastes.
HOLDING: Atomic Energy Act does not preempt
traditional power of the states to regulate
electrical utilities in areas of need, reliability
and cost. Congress regulates safety aspects
(disposal of waste is more of an economic problem
than safety) Two different areas being regulated.
* the test of preemption is whether the matter on
which the state asserts the right to act is in any
way regulated by the federal govt. This act does
not seek to regulate anything already regulated by
the federal government.
Gade v. National Solid Wastes Management (1992)285
held that two Illinois regulations enacted to
protect both public health and employee safety were
preempted by a federal statute – Occupational
Safety and Health Act
* Debate: do we imply preemption by looking at
the structure of the statute as a whole or should
traditional state powers ONLY be preempted if the
statute explicitly says they are? This case was
based upon implied preemption
Hines v. Davidowitz (1941) 285
Held a Pennsylvania requirement that aliens
register yearly and carry an alien identification
card was preempted by the Federal Alien
Registration Act, which required registration only
once and did not require a card to be carried.
* B/c international controversies may arrive at any
moment from real or imagined wrongs to another
country’s subjects, PA legislation is in a field
which affects international relations. This is a
field which Congress occupies fully.
Pennsylvania v. Nelson (1956) 286
27
Held that extensive federal anti-Communist
legislation preempted the PA Sedition Act on the
same subject. Federal Regulation ( the 1940 Smith
Act, the 1950 Internal Security Act, and the 1954
Communist Control Act)is so complete as to leave no
room for states to supplement it. All acts in the
aggregate show Congress intended to occupy the
field of sedition.
5. Medtronic, Inc. v. Lohr (1996)
Section of the Medical Device Amendment provides
that :no state may establish or maintain any
requirement that is different from or in addition
to any requirement of the Federal Food, Drug, and
Cosmetic Act. The application of the preemption
clause should be informed by assumption that the
police powers of the state were not superceded by
the federal act unless that was the clear and
manifest purpose of Congress.
5. Federal Energy Regulatory Commission v.
Mississippi (1982) 154
Upheld the mandate of the Public Utility Regulatory
Act of 1978 (PUPRA) that state agencies regulating
gas and electric utilities “consider” an agenda of
12 proposed rate designs and standards under the
federally prescribed notice and comment procedures.
PUPRA not invalid b/c Congress adopted a less
intrusive scheme by allowing the states to continue
regulating on the condition that they “consider”
federal standards. There is nothing directly
compelling and doesn’t threaten states separate and
independent existence.
III. Distribution of Federal Powers: Separation of
Powers
A. Presidential Action Affecting Congressional Powers
1. Youngstown v. Sawyer (The Steel Seizure Case)
(1952) 172
FACTS: when efforts to settle a labor dispute
failed, the union called a nation-wide strike to
begin. Finding that the strike would jeopardize
national defense, President Truman issued an
executive order directing the secretary of
commerce to take possession of most of the
country’s steel mills and keep them operating.
HOLDING: the president’s power to issue the order
must stem from either an act of Congress or the
Constitution and this comes from neither.
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*Black says that it doesn’t matter how Congress
didn’t give the power to the pres. – they just
didn’t! He gives reasons that the order cannot be
sustained as (1)free exercise of military power
b/c there is no power to take possession of
private property in order to keep labor disputes
from disrupting production. This is a job for law
makers. (2) Seizure cannot be sustained by
executive orders either b/c presidents are not law
makers
**Black takes a formalist approach to Youngstown
(Formalist – takes seriously the ideal of a
separation of powers, no inter-branch interference
unless expressly authorized by the Constitution
Functionalist – there can be no rigid division of
governmental function into three sharp categories.
Each branch may have core functions that may not
be usurped, but would argue whether or not the act
in question is a good thing or not.)
*Frankfurter suggests the separation of powers is
more flexible than Black makes it out to be.
Makes much of the fact that the Taft-Hartley Act
exists
*Jackson develops three situations in which Pres.
may doubt or others may challenge his powers:
(1) Pres. acts pursuant to an express or implied
authorization of Congress
(2) Pres. acts in absence of either a
congressional grant or denial of authority...
but there is a ZONE OF TWILIGHT in which he
and Congress may have concurrent authority or
where distribution is uncertain
(3) Pres. takes measures incompatible with the
express or implied will of Congress (Pres.
power in this case falls within this
category)
B. Congressional Action Affecting Presidential Powers
1. Delegation of Rule Making Power
a. Yakus v. U.S. (1944) 181
FACTS: 1942 War-Time Emergency Price Control
Act authorized the Pres. Appointed Price
Administrator to issue regulations establishing
maximum prices and rents to carry out the act’s
purpose to stabilize prices and prevent
speculative, unwarranted, and abnormal
increases in prices and rents, and to protect
persons w/ relatively fixed incomes/resources
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2.
from undue impairment of their standard of
living.
HOLDING: delegation of power upheld b/c the
act is an exercise by Congress of its
legislative power.
Congress has stated the
legislative objective, has prescribed the
method of achieving that objective, and has
laid down the standards to guide the
administrative determination of both the
occasions for the exercise price-fixing power,
and the particular prices to be established.
Legislative Vetoes
a. INS v. Chadha (1983) 183
FACTS: Immigration and Nationality Act of 1952
authorized the Attorney General to suspend
deportation of a deportable alien if he met
specified conditions and would suffer “extreme
hardship” if deported. It required a report to
Congress on each such suspension. Within a
specified period of time thereafter, either
House of Congress may pass a resolution stating
that it does not favor the suspension and the
Attorney General shall thereupon deport such an
alien. Chadha’s deportation suspended, and
Congress concluded that he should be deported
b/c he did not satisfy the hardship
requirements.
HOLDING: Legislative Veto is unconstitutional
b/c (1) for something to be a law it requires
presentment to the pres. (article 1 §7) and (2)
bicameral requirement must be met. This veto
is unconstitutional b/c it is one house vetoing
something with the force of law- failed BOTH
requirements.
b. Clinton v. N.Y. (1998) supp.
FACTS: Line Item Veto Act gave the Pres. The
power to “cancel in whole” three types of
provisions that have been enacted by Congress
and signed into law:
(1) any $ amount of discretionary budget
authority
(2) any item of new direct spending
(3) any limited tax benefit
Pres. must, in canceling, ensure:
(1) cancellation reduces the federal budget
deficit
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(2)
3.
cancellation will not impair any essential
government function
(3) cancellation will not harm the national
interest.
Pres. Exercised his line item veto to nullify
the two provisions involved in a section of the
Balanced Budget Act of 1997. Act waived the
federal government’s statutory authority to
seek recoupment of as much as $26 billion in
taxes that NY had levied against medical
providers, and a section of the Taxpayers
Relief Act which authorized favorable tax
treatment of certain parties selling food
processing facilities to farmers’ cooperatives.
HOLDING: Line Item Veto Act’s provisions
violate Article 1 §7. Congress cannot alter
the procedures set out in the article w/o
amending the constitution.
* Important differences between the return of a
bill under the article and the cancellation of
a bill under the LIVA. Return takes place
before the bill is law and is of the entire
bill. Cancellation rakes place after the bill
is law and is only canceling parts
Control Over Appointment and Removal of Officers
a. Myers v. U.S. (1926) 189
Rules that the President’s executive power
included the power to remove executive officers
of the US, even when their appointment was
subject to the advice and consent of the
Senate. The President should be able to select
those who act under his direction. Includes
all purely executive officers and goes no
further.
b. Humphrey’s Executor v. U.S. (1935) 189
Unanimously rules that Congress should limit
the grounds for removal of a commissioner of
the Federal Trade Commission. Body created by
Congress and not an eye or an arm of the
executive. Authority over the body includes
removal, yet executive is not precluded from
selecting.
c. Buckley v. Valeo (1976)192
Held that the Federal Election Campaign Act‘s
provisions for the appointment of the Federal
Election Commission violated the appointment’s
clause of article II, §2, cl. 2 by assigning
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d.
e.
the appointment of two commissioners to the
President pro tem of the Senate and two the
Speaker of the House, leaving tow for
Presidential appointment.
*Congress essentially gave itself more power
than allowed. The members are officers of the
US, so they must be appointed according to the
Appointments Clause. Speaker of the House or
Pres. Pro tem of the Senate does not come
within the language of the clause even if the
functions of the members are predominantly
quasi-legislative or quasi-judicial.
Bowsher v. Snyar (1986) 193
Balanced Budget and Emergency Deficit Act set
maximum yearly permissible deficits w/ the goal
of reducing the federal deficit to zero in the
fiscal year 1991. If needed to keep the
deficit within the maximum for any year, the at
required across the board cuts
(1) Directors of OMB and CBO were to estimate
deficit and calculate cuts required and
report to Comptroller General
(2) Comp. Gen. was to report to Pres. On
required budget reductions
(3) Pres. Ws to issue order placing in effect
reductions of Comp. Gen.
HOLDING: Procedure is unconstitutional b/c the
Comp. Gen. is controlled by Congress and
removed only by Congress. By placing
responsibility for the execution of the BB ED
Acts in his hands, Congress has in effect
retained control over the legislation and the
execution of the act and is intruding onto the
functions of the executive.
Morrison v. Olson (1988) 197
FACTS: Ethics in Government Act of 1978 called
for appointment of an independent counsel to
investigate and if appropriate, to prosecute
certain high-ranking govt. officials. After
Attorney Gen. has sufficient grounds, she
investigates whether there are reasonable
grounds to believe further investigation is
necessary. Must then request a Special
Division appoint independent counsel and
provide sufficient info to appoint and
appropriate counsel. Act grants counsel “full
power and independent authority” of the DOJ.
32
HOLDING: Majority says that independent
counsel is an inferior officer so he can be
appointed this way. Pres. functions are not
hampered b/c Att. Gen. has supervising
authority of the independent counsel, thus
giving the executive a substantial ability to
ensure that the laws are faithfully executed.
f. Mistretta v. U.S. (1989) 203
Upheld the Sentence Reform Act of 1984 which
created the US Sentencing Commission charged
with devising guidelines for federal sentencing
that would establish w/in the limits of
existing law, ranges of determinate sentences
for categories of offenses and defendants
according to specified factors. The
constitutionality of conferring rule-making
authority on federal judges lay within the
“twilight area” recognized by Jackson in
Youngstown. The commission is not a court,
does not exercise judicial power, and is not
controlled by members of the judicial branch.
g. Met. Washington Airports v. Citizens... (1991)
203
Invalidated compact between District of
Columbia and Virginia approved by Congress,
leasing the National and Dulles airports from
the federal government. The compact
conditioned the lease on the vesting of veto
power over the management of the airports in a
Review board of 9 members of Congress. This is
an expansion of legislative power beyond the
constitutionally defined role.
C. The Foreign Affairs and War Powers
1. United States v. Curtiss-Wright Export Corp. (1936)
204
(see above)
2. Dames and Moore v. Regan (1981) 206
FACTS: Presidential Executive Orders to implement
an Executive Agreement between Iran and the US
securing the release of American hostages held in
Iran. Executive agreement called for the
termination of all litigation between the
government of each party and nationals of the other
and for the settlement of pending claims. Executive
orders (1) suspended claims in American Courts
which were in the jurisdiction of the Claims
Tribunal,(2) nullified all prejudgment attachments
33
against Iran's assets, and (3) ordered transfer to
Iran of all Iranian assets in US banks.
HOLDING: President was authorized to suspend
pending claims pursuant to Executive Order.
Involves a delicate problem of negotiation w/ a
foreign country, so the Court is very generous with
the Pres.
3. War Powers Resolution (1982) 209
The purpose of the joint resolution is to ensure
that the collective judgment of both the Congress
and the President will apply to the introduction of
US Armed Forces into hostilities, or into
situations where imminent involvement in
hostilities is clearly indicated by the
circumstances, and to the continued use of such
forces in hostilities or in such situations.
Congress seems to be asking to be consulted before
every use of force. Congress can decide to remove
the troops without consulting the Pres., though
(concurrent resolution in section 5c).
Section 5b – no problem with presentment b/c there
is no further action required of Congress whereas
5c depends on a further action of Congress with a
legal effect. 5b is not a legislative veto.
D. Executive Privilege and Immunity
1. United States v. Nixon (1974) 212
FACTS: Burglary of Democratic National
Headquarters in the Watergate Hotel during the 1972
pres. campaign by employees of Pres. re-election
committee. Investigations by press and a Senate
select committee revealed involvement in the
planning and cover-up by high officials in the
Nixon administration. Pres. Authorized appointment
of a special prosecutor who subpoenaed presidential
tapes and documents based on an indictment that
named Nixon as a co-conspirator.
HOLDING: The generalized assertion of privilege
must yield to the demonstrated, specific need for
evidence in a pending criminal trial.
 three types of privilege(1) executive- if disclosure would subvert
crucial military or diplomatic objectives or
foreign affairs
(2) informers privilege- not to give away
identities
(3) privilege for the internal deliberations of
the govt.
34
2.
Clinton v. Jones (1997) supp.
FACTS: Jones provided staff support at a hotel
where Clinton, then governor of Arkansas, was
addressing a conference. Clinton arranged for her
to be brought to a suite in a hotel where he made
“abhorrent” sexual advances that she vehemently
rejected.
HOLDING: Court held that the suit can go forward,
notwithstanding the holding of Nixon v. Fitzgerald
that the Pres. is absolutely immune from suits for
civil damages based on official presidential acts.
This is not official conduct.
IV. Substantive Protection of Economic Interests – the
major limitations on the federal government are found
in the Bill of Rights and in Art. 1 § 9, while those
on the state government are based largely on the 13th,
14th, and 15th amendments and on Art. 1 § 10. The
fourteenth amendment has now been held to impose on
the states most of the limitations the Bill of rights
imposes on the federal government.
A. Origins of Substantive Due Process – How much can the
DP clause of the 5th and 14th amendments be invoked to
impose limits on the substance of governmental
regulations and other activities, as well as govern
the procedures, by which government affects “life,
liberty, and property.”
B. Judicial Response to Philosophical Limits on
Governmental Power
1. Calder v. Bull (1798) 316
Court considered a Connecticut law that set aside
the decision of a probate court that had denied
inheritance to those designated as beneficiaries.
After the new law was adopted, probate court
changed its ruling and allowed inheritance.
Government could neither violate the provisions of
the Constitution nor infringe rights that are part
of natural law.
* first debate over judicial activism and restraint
2. Fletcher v Peck (1810) 317
Held that the contract clause prevented legislative
annulment of the title of purchasers in good faith,
who bought land from grantors who had obtained it
by a corruptly-secured legislative grant.
 Marshall revealed the role played by the Chase
philosophy – “general principles which are common
to our free institutions”
35

Legislative power limited by both the general
powers of our political institutions and by the
words of the Constitution.
C. The Search for a Constitutional Basis
1. Wynehamer v. People (1856) 320
Held by a divided court that a NY prohibition
statute violated the DP clause by forbidding the
sale of liquor owned at the time of the enactment of
the statute. Statute overturned under the DP clause
– made to prohibit a degree of exertion of
legislative power
- power of regulation to states, but not power of
destruction
D. The Fourteenth Amendment – after the CRA 1866 passed,
Cong. Joint Committee on Reconstruction passed 14th
amendment to protect equal rights. Equal Protection
clause, Due Process Clause and the Privileges and
Immunities Clause enacted as limitations on the
states.

Two Main strands of Individual Rights Protection:
1. DP and SDP – “you can’t do that to me”
2. EP – “you can’t treat me differently from the way
you treat him or her”
 Section 1 – response to Dred Scott v. Sanford
(1857) (court held that Dred Scott was not a
citizen of the US under Art. III and therefore had
no standing to sue) first time since Marbury that
the court used its judicial review. Citizenship
clause overturned Dred Scott and makes it clear
that ALL persons are citizens of the state and the
US)

Two P&I clauses in the Constitution ( 14th
amendment, about how states treat their own
citizens and the 5th amendment, about no
discrimination against out-of-staters)
 Represents a large new federal interest in how
states treat their own citizens
1. The Slaughterhouse Cases (1873) 321
Upheld a state legislatively granted monopoly to
operate slaughterhouses in the New Orleans area
subject to letting others use the facilities @
states regulated fees. The court expressly rejected
a SDP claim b/c this clause concerned the procedure
the court must follow and could not be used to
challenge the law for interfering w/ the rights of
the butchers to practice their trade. Rejected the
36
idea that the DP clause could be used to safeguard a
right to practice a trade or profession from
arbitrary government interference.
 Field v. Miller – broad v. narrow view of the P&I
clause in the 14th amendment. The BOR is the
possible only plausible middle ground
 Opportunity to incorporate the BOR into the 14th
amendment, but it was not done...presumably read
the P&I clause out of the 14th amendment, so the DP
clause was made more important
 Result was unfortunate for from the view of race
 Rights are more important to minorities than to
majorities... equality may not be al that
minorities need, also need substantive law
V.
Equal Protection – virtually no legislation applies
universally and treats all persons equally; all laws
classify (or discriminate) by imposing special burdens
or by conferring special benefits on some people but
not others
A. Traditional Approach
1. FCC v. Beach Communications (1993) 1148
FACTS: In providing for the regulation of cable TV
facilities, congress has drawn a distinction between
facilities that serve separately owned and managed
buildings and those that serve one or more buildings
under common ownership. The latter category are
exempt from regulation as long as they use services
w/o using public rights-of-way
HOLDING: Where there are plausible reasons for
congress’ action, as here, the court inquiry is over
and there is no finding that it violates EP
component of the 5th amendment
 “Rationality Review” – minimum scrutiny –
classification must be rationally related to
permissible governmental end
 nothing will ever fail this test! ( if you think
the means doesn’t suit the ends, change the means)
 Makes it clear that if there is nothing to lead
one to believe that the end is impermissible, no
need to find the end
 If something fails the rationality review, it is
b/c there is something else going on
2. Railway Express Agency v. NY (1949) 1152
Traffic regulation of the city of NY provides that
“no person shall operate on any street an
advertising vehicle; except for business notices
37
upon delivery vehicles, so long as vehicles are
engaged in the usual business of the owner and not
merely used for advertising
HOLDING: Constitutional b/c it is not a requirement
of EP that all evils of the same genus be eradicated
or none at all
 Douglas gives us his “one step at a time”
argument, Jackson wants a more rigorous EP review
(should favor DP over EP review)
 Purposes are complex, no single thing that is the
purpose of a law
3. United States Department of Agriculture v. Moreno
(1973) 1158
Traditional EP analysis held that a provision of the
Food Stamp Act – excluding any household containing
an individual who is unrelated to any other member
of the household- was wholly without any rational
basis
 Law will be upheld is the legislative means is
rationally related to the permissible governmental
end
 Thought Congress wanted to punish hippies for
their views... really a 1st amendment case
4. Reed v. Reed (1971)
Illinois statute provided that where there were two
candidates for a job of executor of a will,
preference should be given to the male
 Seems rule was rationally related to a permissible
governmental end, but the court struck it down
 Reed is seen as the beginning of making sex a
suspect classification, but court was not ready to
say it yet at the time of the case
5. Allegheny Pittsburgh Coal co. v. County Commission
(1989) 1161
unanimously found an equal protection violation
when a WVA county tax assessor made only minor
modifications in the assessments of land which had
not been recently sold resulting in the fact that
petitioners property had been assessed at roughly
8 to 35 times more than comparable neighboring
property and these discrepancies have continued.
HOLDING: court held that the practice was not
Rationally related to WVA rule
 weakness of rationality review
6. Logan v. Zimmerman (1982) 1161
38
For the first time in 25 years, the majority of the
justices, without questioning the state’s purpose,
employed the lowest level of permissible EP
scrutiny and found a violation of EP.
B.
Race and Ethnic Ancestry
1. Discrimination against racial and ethnic minorities
a. Strauder v. West VA. (1880) 1163
First post- Civil War race discrimination case to
reach the court, invalidated the state murder
conviction of an African American on the ground
that state law forbade blacks from serving on
grand petit juries. Court says he can’t be
convicted under a system which excludes blacks
from juries
* Construed the 14th amendment as proscribing all
state imposed discrimination against blacks.
Subsequent decisions extended this proscription
to state discrimination against persons b/c of
their natural origin.
b. Civil Rights Cases (1883) 1411
“that neither the 13th or the 14th am. Empowered
Cong. To pass the CRA 1875, making racial
discrim. Unlawful in public accommodations & no
other ground of authority for its passage being
suggested, it must necessarily be declared void”
 Court held that under the 14th am. it is a state
action of a particular character that is
prohibited. Individual invasion of individual
rights is not the subject of the amendment
 Congress sought not to adjust social rights, but
only to declare and vindicate those fundamental
rights which appertain to the essence of
citizenship and enjoyment
c. Korematsu v. US (1944) 1164
FACTS: The petitioner, an American of Japanese
descent, was convicted in a federal district
court for remaining in a “military area” contrary
to Civilian Exclusion order No. 34, which
directed that all persons of Japanese ancestry
should be excluded form that area.
HOLDING: The action was not unjustified b/c
the properly constituted military authorities
feared an invasion form our West Coast and felt
constrained to take proper security measures.
39

announces for the first time a modern, stringent
review for statutes involving racial
discrimination.
 Strict Scrutiny – in order to be upheld, a
classification must be necessary to promote a
compelling governmental purpose
 Replaced the rationally related with the necessary
and upped the degree of causal connection required
 In between, strict scrutiny and minimum scrutiny
is intermediate scrutiny – will be upheld if
classification is substantially related to an
important governmental purpose
 Court, in this case, does not actually engage in
strict scrutiny, even though it announces the test
 Last case in which explicit discrimination against
a minority was upheld
2. Segregation and Other Classifications
a. Plessy v. Ferguson (1896) 1168
FACTS: 1890 Louisiana law required that railway
passenger cars have “equal, but separate
accommodations for the white and the black
races.” Plessy, alleging that he was 7/8
Caucasian and 1/8 African and entitled to every
right of the white race was arrested for refusing
to vacate a seat in a coach for whites.
HOLDING: upheld b/c this law is not unreasonable
or more obnoxious to the 14th amendment than laws
requiring separate schools
* does not conflict with the 13th amendment,
insufficient to protect the colored race from
certain laws, burdens
b. Brown v. Board of Ed. I (1954) 1171
FACTS: in each of the cases, minors of the Negro
race seek the aid of the courts in obtaining
admission to the public schools of their
community on a non-segregated basis. In each of
the cases, a three judge federal district court
denied relief to the plaintiffs based on the socalled “separate but equal doctrine” announced in
Plessy.
HOLDING: In the field of public education, the
doctrine of separate but equal has no place. The
plaintiffs and other similarly situated have been
deprived of equal protection.
 Brown does not explicitly overrule Plessy, but
separate in inherently unequal.
40

C.
Brown is one of the tests for Constitutional
adjudication – if your theory says Brown is wrong,
then something is wrong with your theory.
c. Brown v. Board of Ed. II (1955) 1178
Courts require that the defendants make a prompt
and reasonable start towards full compliance with
Brown I. Once such a start has been made, the
courts ma find that additional time is necessary
to carry out the ruling in an effective manner.
The burden rests upon the defendants to establish
that such time is necessary in the public
interest and is consistent with goof faith
compliance at the earliest possible date.
d. Loving v. Virginia (1967) 1179
FACTS: Appellants, a black woman and a white man,
were married in the District of Columbia,
returned to reside in VA, and were convicted
under the state anti-miscegenation statute.
HOLDING: There can be no doubt that restricting
the freedom to marry solely b/c of racial
classifications violates the central meaning of
the EP clause.
De Jure vs. De Facto Discrimination- discrimination
may exist even though the law in question is racially
neutral on its face – may be deliberately
administered in a discriminatory way or applied with
a purpose to disadvantage a “suspect” class.
a. Yick Wo v. Hopkins (1886) 1182
A San Francisco ordinance made it unlawful to operate
a laundry w/o the consent of the board of supervisors
except in a brick or stone building. Yick Wo, a
Chinese alien who had operated a laundry for 22
years, had certificates from the health and fire
authorities, but was refused consent by the board.
Petitioner and more than 150 of his countrymen have
been arrested for violating the ordinance while those
who are not subjects of China and who are conducting
80 odd laundries under similar conditions are left
unmolested.
HOLDING: the facts shown establish an administration
directed so exclusively against a particular class of
persons as to warrant and require the conclusion
that, whatever may have been the intent of the
ordinances as adopted, they are applied with a mind
so unequal and oppressive as to amount to a practical
denial by the state of equal protection.
b. Casteneda v. Partida (1977) 1183
41
Held that respondent had established a prima facie
case of discrimination against Mexican-Americans:
while the earlier cases involved absolute exclusion
of an identifiable group, later cases established the
principle that substantial under-representation of
the group constitutes a constitutional violation as
well, if it results from purposeful discrimination.
c. Washington v. Davis (1976) 1186
Involves the validity of a qualifying test
administered to applicants for positions as police
officers in the District of Columbia. The police
recruit was required to satisfy certain physical and
character standards, to be a high school graduate or
its equivalent and to receive a grade of at least 40
out of 80 on a test which is an examination that is
used generally throughout the federal service.
HOLDING: The test seeks to ascertain whether those
who take it have acquired a particular level of
verbal skill; and it is untenable that the
Constitution prevents the government from seeking
modestly to upgrade the communicative abilities of
its employees rather than to be satisfied with some
lower level of competence, particularly where the job
requires special ability to communicate orally and in
writing. The test is neutral on its face and
rationally may be said to serve a purpose the
government is constitutionally empowered to pursue.
d. Arlington Heights v. Metropolitan housing (1977)
1190
Holding that petitioner Village’s refusal to
rezone land from a single-family to multiple
family, so as to permit respondent MHDC’s
construction of racially integrated housing, did
not violate equal protection – amplified Davis.
Respondents failed to carry their burden of
proving that discriminatory purpose was a
motivating factor in the Village’s decision.
Ends the constitutional inquiry.
e. Personnel Admin. V. Feeney (1979) 1192
Upheld Massachusetts “absolute lifetime
preference to veterans” for state civil service
positions, even though “the preference operates
overwhelmingly to the advantage of males.”
Nothing in the record demonstrates that this
preference for veterans was originally devised or
subsequently re-enacted b/c it would accomplish
the collateral goal of keeping women in a
42
D.
stereotypic and predefined place in the
Massachusetts Civil Service.
f. Memphis v. Greene (1981) 1195
FACTS: the city – at behest of citizens of Hein
Park, a white residential community within
Memphis – closed a street, West Drive, that
traversed Hein Park and was used mainly by
African Americans who lived in an adjacent area.
HOLDING: the adverse impact on blacks was
greater than that on whites, but there was no
violation b/c the procedures followed in making
the decisions were fair and were not affected by
any racial or other impermissible factors.
* applies to 13th amendment
Remedying Segregation- although there was prompt
compliance with Brown in the District of Columbia and
some border states, the initial response in the South
was mass resistance – exemplified by the Governor’s
use of the Arkansas national guard in 1957 to prevent
desegregation in Little Rock and Virginia’s 1956
legislation closing any racially mixed public
schools.
a. Cooper v. Aaron (1958) 1200
Involved the Little Rock school board’s request to
stay an integration plan that had been in operation
at Central High School during the 1957-58 school
year, but only after federal troops had been sent by
the President to protect black students from “extreme
public hostility” engendered largely by the
Governor’s and Legislature’s opposition. Opinion
unanimously reaffirmed Brown. The constitutional
rights of black children are not to be sacrificed or
yielded to the violence and disorder which have
followed upon the actions of the Governor and the
Legislature.
b. Swann v. Charolette-Mecklenburg Bd. Of Ed. (1971)
1202
FACTS: the case concerned desegregation of the
Charlotte NC metropolitan area school district,
which had had a statutorily mandated dual system.
A companion case involved Mobile, Alabama. The
history included the district court’s rejection in
1969 of three plans submitted by respondent board
of education; its acceptance of a plan prepared at
its request by “an expert in education
administration”; modification of the district
court decree by the court of appeals; and the
43
district court’s subsequent rejection of a plan
prepared by federal officials and its conclusion
that either the education expert’s plan or a new
plan submitted by a minority of the school board
was “reasonable and acceptable,”
HOLDING: if school authorities fail in their
affirmative obligations to eliminate from the
public schools all vestiges of state-imposed
segregation judicial authority may be invoked.
Once a right and a violation have been shown, the
scope of a district court’s equitable powers to
remedy past wrongs is broad, for breadth and
flexibility are inherent in equitable remedies.
Judicial powers may be exercised only on the basis
of a constitutional violation.
c. Keyes v. School District (1973) 1206
The first case of segregation that had never been
statutorily mandated. The district court found
that the Denver school board – by school
construction, gerrymandering attendance zones, and
excessive use of mobile classroom units – “had
engaged over almost a decade after 1960 in an
unconstitutional policy of deliberate racial
segregation with respect to Park Hill schools” and
ordered their desegregation.
* clear that you can have de jure discrimination
w/o making it explicit, but any racially motivated
manipulation is a violation
E. Affirmative Action and “Benign” Discrimination
1. Regents of the U. of CA v. Bakke (1978) 1226
FACTS: The Medical School reserved 16 out of 100
places in its entering class for members of
minority groups, apparently defined as “Blacks,
Chicanos, Asians, and American Indians.” Alan
Bakke is a white male who applied and was rejected
even though applicants were admitted under the
special program with grade point averages and MCAT
scores significantly lower than Bakke’s.
HOLDING: Powell, J. ( Davis plan illegal &
unconst.; Harvard plan const.)
#1. when a state’s distribution of benefits or
imposition of burdens hinges on the color of a
person’s skin or ancestry, that individual is
entitled to a demonstration that the challenged
classification is necessary to promote a
substantial state interest. Petitioner has failed
44
to carry that burden, special admissions program is
invalid under the 14th amendment.
#2. Petitioner may, however, use consideration in
the future if done so correctly, b/c state has a
substantial interest that legitimately may be
served by a properly devised admissions program
involving a competitive consideration of race or
ethnic origin.
#3. Respondent will be admitted by injunction b/c
petitioner has conceded that it could not carry its
burden of proving that but for the existence of
unlawful special admissions, respondent still would
not have been admitted.
BRENNAN, WHITE, MARSHALL, and BLACKMUN: (Davis plan
legal, Harvard plan const.)
#1. A government practice or statute which
contains ‘suspect classifications’ is to be
‘subjected to strict scrutiny’ but whites as a
class do not have any of the traditional indicia of
suspectness
#2. Davis’ articulated purpose of remedying the
effects of past societal discrimination is, under
our cases, sufficiently important to justify the
use of race-conscious admissions programs where
there is a sound basis for concluding that minority
underrepresentation is substantial and chronic, and
that the handicap of past discrimination is
impeding access of minorities to medical schools.
MARSHALL: (Davis plan legal)
#1. It is inconceivable that the 14th amendment was
intended to prohibit all race-conscious relief
measures. To hold that it barred state action to
remedy the effects of discrimination would pervert
the intent of the framers by substituting abstract
equality for the genuine quality the amendment was
made to achieve.
BLACKMUN: (Davis plan legal)
#1. In order to get beyond racism, we must first
take account of race. There is no other way. And
in order to treat some persons equally, we must
treat them differently. We cannot – we dare not –
let the EP clause perpetrate racial supremacy.
STEVENS, STEWART, REHNQUIST: (Davis plan illegal)
#1. If the state court was correct in its view that
the university’s special admissions program was
illegal, and that Bakke was therefore unlawfully
excluded from the medical school b/c of his race,
45
we should affirm its judgment regardless of our
views about the legality of admissions programs now
before the court.
 5(c) is the opinion of the court (Harvard plan is
permissible). Clear majority of the court is
saying that the standard is strict scrutiny.
 Bakke is now talked about as really about the
Harvard plan, so in this sense, Bakke upholds
affirmative action.
2. Wygant v. Jackson Board of Ed. (1986) 1244
FACTS: involved a minority preference in teacher
lay-offs. When a budget crisis required cutting
teachings positions, the school board, pursuant to
a contract with the local teachers union, laid off
more senior white teachers in order to retain less
senior minority teachers.
HOLDING: School board violated the constitution
b/c the burden is too intrusive and therefore fails
the requirement that a race based remedy be
“narrowly tailored” to achieve its ends.
 strikes down affirmative actin
 justifications for affirmative action:
1.backward looking- making up for past deeds,
remedying societal discrimination isn’t a compelling
government interest, identified discrimination IS
compelling. (Fullilove, Adarand, and Paradise)
a. public or private discrimination within
territory
b. discrimination by the agency itself
c. particular instances of discrimination and
particular victims
2.forward looking- better for society in the future,
version of diversity (Bakke, Wygant, Metro)
3.prophalactic – present oriented – only way to
prevent unconscious decisions is to have affirmative
action
4.Scalia’s idea- limit remedies to helping victims...
making victims of illegal behavior whole (problem is
that there is no way to identify al of the victims)
3. Richmond v. J.A. Cronson Co. (1989) 1246
FACTS: Richmond city Council adopted the Minority
Business Utilization Plan. The plan required prime
contractors to whom the city awarded construction
contracts to subcontract at least 30% of the dollar
amount of the contract to one or more Minority
Business Enterprises (MBE). The plan declared that
it was remedial in nature and enacted for the
46
purpose of promoting wider participation by
minority business enterprises in the construction
of public projects. Allow waivers in those
individual situations where a contractor can prove
that the requirements cannot be achieved.
HOLDING: O’Connor: none of the evidence presented
by the city points to any identified discrimination
in the Richmond construction industry. We,
therefore, hold that the city has failed to
demonstrate a compelling interest in apportioning
public contracting opportunities on the basis of
race.
#1. As a matter of state law, the city has a
legislative authority over its procurement policies
and can use its spending powers to remedy private
discrimination, if it identifies that
discrimination with the particularity required by
the 14th amendment.
#2. Standard of review under the EP clause is not
dependent upon the race of those burdened or
benefited by a particular classification.
STEVENS: I do not agree with the premise that
underlies this case or Wygant, that a governmental
decision that rests on racial classification is
never permissible except as a remedy for a past
wrong.
* the class of persons benefited by the ordinance
is not limited to victims of identified
discrimination, it encompasses persons who have
never been in business in Richmond as well as
minority contractors who may have been guilty of
discriminating against members of minority groups.
KENNEDY: strike down all preferences which are not
necessary remedies to victims of unlawful
discrimination. Forbids the use of narrowly
defined racial classifications except as a last
resort, and provides adequate remedy after a
judicial determination that a state or its
instrumentality has violated the EP clause.
SCALIA: strict scrutiny must be applied to all
governmental classifications by race, whether or
not its asserted purpose it remedial or benign.
state may only act by race to undo the effects of
part discrimination where that is necessary to
eliminate their own maintenance of the system of
unlawful racial classification.
47
MARSHALL, BRENNAN, BLACKMUN: like the federal
program on which it was modeled, this program is
constitutional. Race class classifications designed
to further remedial goals must serve important
governmental functions and must be substantially
related to achievement of those objectives in order
to withstand constitutional scrutiny.
* the circumstances in this case underscore the
importance of not subjecting to a strict scrutiny
straight jacket the increasing number of cities which
have recently come under minority leadership and are
eager to rectify past discrimination.
4. United States v. Paradise (1987) 1259
FACTS: federal district court found that the
Alabama dept. of Public Safety had intentionally
excluded all blacks from employment as state
troopers during its entire 37 year history. The
court enjoined the department inter alia, form
engaging in any promotional practices “for the
purpose or with the effect of discriminating
against any employee on the ground of race or
color.” When department failed to develop
promotional procedures, the district court order
the promotion of one black trooper for each white
trooper elevated in rank.
HOLDING: relief ordered survives even the strict
scrutiny standard b/c the race-conscious relief is
justified by a compelling interest in remedying the
discrimination. The requirement was narrowly
tailored to eliminate the effects of the
department’s discrimination,
5. Metro Broadcasting, Inc. v. FCC (1990) 1260
Upheld the minority preference policies of the
Federal communications Commission. The policies
provided that minority ownership would be
considered a plus in the consideration of mutually
exclusive applications for stations and allowed
potential minority owners to acquire licenses by
sale and transfer under conditions not available to
non-minorities.
HOLDING: benign race-conscious measures mandated
by congress – even if those measures are not
‘remedial’ in the sense of being designed to
compensate victims of discrimination in the past
are constitutionally permissible to the extent that
they serve important governmental objectives within
48
the power of congress and are substantially related
to achievement of those objectives.
 difference between the standard for federal
affirmative action programs and state AA programs.
Intermediate scrutiny applied to federal programs
probably b/c:
1. concerned with 14th amendment and 14th am. Is
suspicious of state government more than
federal government
2. identified discrimination within territorial
jurisdiction of agency adopting the program.
Congress has more lee-way b/c it has the
biggest territory and therefore easier to find
prior discrimination
6. Adarand Constructors, Inc. v. Pena (1995) 1263
FACTS: In 1989, the Central Federal Lands Highway
Division, which is a part of the US Dept. of
Transportation, awarded the prime contract for a
highway construction project in Colorado to
Mountain Gravel. Mountain Gravel then solicited
bids from subcontractors for the guardrail portion
of the contract. Adarand, a Co. based highway
construction co. specializing in guardrail work,
submitted the low bid. Gonzales construction Co.
also submitted a bid. The contract terms provided
that MG would receive additional compensation if it
hired subcontractors certified as small businesses
controlled by socially and economically
disadvantaged individuals. Adarand was not, but
Gonzales was. The MG Chief estimator signed an
affidavit sating that he would have hired Adarand
had it not been for the incentive to hire Gonzales.
HOLDING: O’Connor: all racial classifications,
imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing
court under strict scrutiny. Classifications are
only if they are narrowly tailored measures that
further compelling governmental interests. Metrobroadcasting is overruled to the extent that it is
inconsistent.
 court’s cases through Cronson has established:
1. skepticism: any racial classification must
receive searching examination
2. consistency: standard review under EP clause
is not dependent upon the race of those
burdened or benefited
49
3.
congruence: EP analysis in the 5th amendment
area is the same as under the 14th amendment
 Majority says all AA programs are to be subjected
To strict scrutiny (no difference between federal
programs and state)
C. Discrimination Based on Gender
1. Reed v. Reed (1971) 1271
Involved a law preferring males to females when two
persons were otherwise equally entitled to be the
administrator of an estate. It was contended that the
law had the reasonable objective of reducing the
workload of probate courts by eliminating one class of
contests, but to give mandatory treatment to members of
either sex, mere3ly to accomplish the elimination of
hearing s on the merits, is to make the very kind of
arbitrary legislative choices forbidden by equal
protection.
2. Craig v. Boren (1976) 1275
FACTS- the interaction of two sections of an Oklahoma
statute prohibits he sale of “non-intoxicating” 3.2%
beer to males under the age of 21 and to females under
the age of 18.
HOLDING- In light of weak congruence between gender and
the characteristic or trait that gender purported to
represent, it was necessary that the legislatures
choose either to realign their substantive laws in a
gender neutral fashion or to adopt procedures for
identifying those instances where the sex-centered
generalization was comported to fact.
Powell- Reed and subsequent cases involving genderbased classifications make it clear that the court
subjects such classifications to a more critical
examination than is normally applied when a fundamental
constitutional right and suspect class are not present.
Stevens- what has become known as a two-tiered analysis
of equal protection claims is a method the court has
employed to explain decisions that actually apply a
single standard in a reasonably consistent fashion.
Rehnquist- objectionable b/c of conclusion that men
challenging a gender-based statute which treats them
less favorably than women may invoke amore stringent
standard of judicial review than pertains to most other
types of classifications AND also objectionable is the
court’s enunciation of this standard without citation
to any source.
3. US v. Virginia (1996) supp. 112
50
FACTS- 1990, prompted by a complaint files with the
Attorney General by a female high-school student
seeking admission to VMI, the US sued the commonwealth
of VA and VMI, alleging that VMI’s exclusively male
admission policy violated the EP clause of the 14th
amendment. Following the remand, the state of VA
proposed a remedial plan, under which the state would
adopt a parallel program for women: Virginia Women's
Institute for Leadership (VWIL).
HOLDING- Virginia has fallen short of establishing the
‘exceedingly persuasive justification’ that must be the
solid base for any gender-defined classification. VWIL
does not qualify as VMI’s equal.
Rehnquist- would have adhered more closely to the
court’s traditional standard than the ‘exceedingly
persuasive justification’ stated in the opinion. The
court necessarily implies that the adequate remedy
would be admission of women to the all-male
institution. Would not define the violation this wayit is not the exclusion of women that violated the WP
clause, but the maintenance of an all men school
without providing any comparable institution for women.
Scalia- Virginia has an important state interest. It
is only necessary to apply honestly the test the court
has been applying to sex-based discrimination for the
past two decades.
VI. The Concept of State Action
A. Government Function
1. Smith v. Allwright (1944) 1415
Held the fifteenth amendment forbade exclusion of
African-Americans from primary elections conducted
by the Democratic Party of Texas, pursuant to party
resolution. The court says that state delegation to
a party of the power to fix the qualifications of
primary elections is delegation of a state function
that may make the part’s action the action of the
state. Extensive statutory control over primary
elections in Texas makes the party which is required
to follow these legislative directions an agency of
the state in so far as it determines the
participants in a primary election.
2. Terry v. Adams (1953) 1415
FACTS: Involved the exclusion of African – Americans
from the pre-primary elections of the Jaybird
Democratic Association, an organization of all white
voters in a Texas county that was run like a regular
political party and whose candidates since 1889 had
51
3.
4.
5.
6.
7.
nearly always run unopposed and won in regular
Democratic primary and the general election.
HOLDING: The court held the election subject to the
fifteenth amendment. No election machinery could be
sustained if its purpose or effect was to deny
Negroes on account of their race an effective voice
in governmental affairs.
Marsh v. Alabama (1946) 1416
Held that a state, consistently with the First and
Fourteenth Amendments cannot impose criminal
punishment on a person who undertakes to distribute
religious literature on the premises of a company
owned town contrary to the wishes of the town’s
management. An ordinary municipality could not have
barred appellant’s activities, and the fact that a
single company had legal title to all the town may
not result in impairing channels of communication of
its inhabitants or those persons passing through.
Since these facilities are built and operated
primarily to benefit the public and since their
operation is essentially a public function, it is
subject to state regulation.
Amalgamated Food Employees Union v. Logan (1968)
1417
A large privately owned shopping center was the
“functional equivalent of the business district in
Marsh.” Held that it could not enjoin peaceful
union picketing on its property against a store
located in the shopping center.
Lloyd v. Tanner (1972) 1417
Held that a shopping center’s refusal to permit
antiwar handbilling on its premises was not state
action violative of the first and fourteenth
amendments. In the instant case there is no
comparable assumption or exercise of municipal
functions or power.
Hudgens v. NLRB (1976) 1418
Involving picketing of a store in a shopping center
by a union with a grievance against the store’s
warehouse (located elsewhere) – overruled
Logan Valley on the ground that “Lloyd amounted to
its total rejection”
Evans v. Newton (1966) 1421
FACTS: In 1911, Senator Bacon devised land to
Macon, GA to be used as a park for whites only.
After PA v. Board of Trusts- holding that there is
“state action” when public officials act as trustees
52
under a private will requiring racial
discrimination- the city permitted African-Americans
to use the park. When Bacon’s heirs sued to remove
the city as trustee, the Georgia courts accepted the
city’s resignation and appointed private individuals
as trustees so that the trust’s purpose would not
fail.
HOLDING: For years this park was an integral part of
the city’s activities, assumedly granted tax
exemption and swept, manicured, watered, patrolled,
and maintained by the city. IF the municipality
remains entwined in the management or control of the
park, it remains subject to the restraints of the
14th amendment. Mass recreation through the use of
parks is plainly in the public domain and state
courts that aid private parties to perform that
public function on a segregated basis implicate the
state conduct proscribed by the 14th amendment.
8. Jackson v. Metropolitan Edison Co. (1974) 1421
FACTS: Respondent holds a certificate of public
convenience issued by the PA Public Utility
Commission empowering it to deliver electricity and
is subject to extensive regulation by the
Commission. Under a provision of its general tariff
filed with the commission, it has the right to
discontinue service to any customer on a reasonable
notice of nonpayment of bills. Petitioner sued
Metropolitan seeking damages for the termination and
an injunction requiring Metropolitan to continue
providing power to the
9. CBS v. Democratic National Convention (1973) 1425
FCC had ruled that a broadcaster is not required to
accept editorials advertisements – some justices
addressed the question of whether the action of the
broadcast licensee was “governmental action” for
purposes of the first amendment and concluded it was
not. The commission acts as overseer, but the
initial and primary responsibility for fairness,
balance and objectivity rests with the licensee.
The argument for finding governmental action here is
strong b/c it concerns the primary activity of the
regulated entities – communication.
B. State “involvement” or “encouragement”
1. Shelley v. Kramer (1948) 1426
FACTS: In two cases from MO and MI, petitioners
were African Americans who purchased houses from
whites despite the fact that the properties were
53
2.
3.
4.
subject to restrictive covenants, signed by most
property owners in the block, providing that for a
specified time (in one case, 50 years from 1911)
the property would be sold only to Caucasians.
Respondents, owners of other property subject to
the covenants, sued to enjoin the buyers from
taking possession and to divest them of title. The
state courts granted relief.
HOLDING: We have no doubt that there has been
state action in these cases in the full and
complete sense of the phrase. The undisputed facts
disclose that petitioners were willing purchasers
of properties upon which they desired to establish
homes. The owners of the properties were willing
sellers; and contracts of sale were accordingly
consummated. It is clear that but for the active
intervention of the state courts, supported by the
full panoply of state power, petitioners would have
been free to occupy the properties in question
without restraint.
Barrows v. Jackson (1953) 1429
Held that an action by a co-covenantor to recover
damages from a property owner who sold to an
African American was barred by equal protection.
Evans v. Abney (1970) 1433
Affirmed the finding that “the GA court had no
alternative under its relevant trust laws, which
are long standing and neutral with regard to race,
but to end the Baconsfield trust.” There is not
the slightest indication that any of the GA judges
were motivated by racial animus or discriminatory
intent of any kind in construing and enforcing
Senator Bacon’s will. Nor is there any indication
that Senator Bacon in drawing up his will was
persuaded by or induced to include racial
restrictions by the fact that such restrictions
were permitted by the GA trust statutes.
Peterson v. Greenville (1963) 1435
An ordinance forbade restaurants to seat whites and
blacks together and the court reversed trespass
convictions of black youths who, when denied
service, refused to leave: “these convictions
cannot stand, even assuming that the manager would
have acted as he did independently of the existence
of the ordinance. When a state agency passes a law
compelling persons to discriminate such a palpable
violation of the 14th amendment can not be saved by
54
5.
6.
7.
attempting to separate the mental urges of the
discriminators.
Bell v. Maryland (1964) 1436
A State, obliged under the 14th amendment to
maintain a system of law in which Negroes are not
denied protection in their claim to be treated as
equal members of the community, may not use its
criminal trespass laws to frustrate the
constitutionally granted right. Nor may a state
frustrate this right by legitimating a proprietor’s
attempt at self-help.
Reitman v. Mulkey (1967) 1437
FACTS: Section 26 of the CA Constitution provides
that neither the state nor any subdivision or
agency, thereof shall deny. Limit, or abridge,
directly or indirectly, the right of any person,
who is willing or desires to sell, lease, or rent
any part of his property, to decline to sell to
such persons as he, in his absolute discretion,
chooses.
Respondents sued under §51 and §52 of the CA Civil
Code forbidding racial discrimination in all
business establishments alleging that petitioners
had refused to rent them an apartment solely on
account of their race.
HOLDING: Here, the CA court, armed as it was with
knowledge of the facts and circumstances concerning
the passage and potential impact of §26 and
familiar with the milieu in which that provision
would operate, has determined that the provisions
would involve the state in private racial
discriminations to an unconstitutional degree. WE
agree.
Moose Lodge v. Irvis (1972) 1441
FACTS: appellee, Irvis, a Negro, who was refused
service as the guest of a member by appellant Moose
Lodge, claimed that b/c the PA liquor Board had
issued appellant a private club license that
authorized sale of alcoholic beverages on its
premises, the refusal of service to him was a state
action.
HOLDING: the operation of the regulatory scheme
enforced by the PA Liquor Control Board does not
sufficiently implicate the state in the
discriminatory guest policies of Moose Lodge.
However detailed this type of regulation may be in
some particulars, it cannot be said to in any way
55
foster or encourage racial discrimination. Appellee
was entitled to a decree enjoining the enforcement
of §113.09 but no more (§113.09 of Liquor Control
Board is that every club-licensee has to adhere to
the provisions in its own constitution and by-laws.
Since Moose Lodge’s by-laws required
discrimination, court could not hold it had to be
enforced).
8. Norwood v. Harrison (1973) 1446
Enjoined Mississippi’s lending of textbooks to all
students in public and private schools as applied
to racially segregated private schools: “that the
constitution may compel toleration of private
discrimination in some circumstances does not mean
that it requires state support for such
discrimination. A state may not grant the type of
tangible, financial aid here involved if that aid
has a significant tendency to facilitate,
reinforce, and support private discrimination.
C. Recent Developments
1. Rendell-Baker v. Kohn (1982) 1450
FACTS: New Perspectives is a private school that
specializes in dealing with students who have
experienced difficulty completing public high
schools. In recent years, public funds have
accounted atleast 90%, and in one year 99%, of
respondent’s operating budget. Rendell-Baker was a
vocational counselor hired under a grant from the
Federal Law Assistance Administration. She was one
of several discharged, by the school, for
supporting student criticisms against various
school pollicies.
HOLDING: court held that the school’s action in
discharging the teachers cannot fairly be seen as
state action.
2. San Francisco Arts and Athletics v. US Olympic
Comm’n (1987)1453
Respondent USOC, to which Congress granted the
right to prohibit certain commercial and
promotional uses of the word “Olympic” secured
relief enjoining petitioner from calling its
athletic competitions the “Gay Olympic Games.”
HOLDING: the USOC is not a “governmental actor”
3. DeShaney v. Winnebago Dept. of Soc. Services (1989)
1463
FACTS: In 1984 Randy DeShaney beat 4 year old son,
Joshua DeShaney so severely that he fell into a
56
coma and is expected to spend the rest of his life
confined to an institution for the profoundly
retarded. Since the Winnebago Department of Social
Services had been informed of the situation on
numerous occasions and was lazy in its follow-up,
Joshua and his mother brought action alleging that
the state had deprived Joshua of his liberty
interest of “freedom from unjustified intrusions on
his personal security” by failing to provide him
with adequate protection against his father’s
violence.
HOLDING: Nothing in the language of the due
process clause itself requires the state to protect
the life, liberty, and property of citizens against
invasion by private actors. The clause is phrased
as a limitation on the state’s power to act, not as
a guarantee of certain minimal levels of safety and
security.
VII. Congressional Enforcement of Civil Rights
A. Historical Framework
1. United States v. Williams (1951) 1470
Congress can beyond a doubt constitutionally secure
against interference by private individuals. This
category includes rights which arise from the
relationship of the individual and the Federal
Government.
2. Adickes v. S.H. Kress & Co. (1970) 1471
involved a damages action against a restaurant for
having deprived plaintiff of equal protection –
alleging that defendant acted “under color of
custom, or usage, of any state”
Holding: a “custom or usage” for purposes of §1983
requires state involvement and is not simply a
practice which reflects long-standing social
habits, generally observed by the people of a
locality”; it must have the force of law by virtue
of the persistent practices of state officials.
B. Modern Developments- it is clearly established that
that laws infringing the right to vote must meet
strict scrutiny
1. South Carolina v. Katzenbach (1966) 1471
FACTS: South Carolina challenged the Voting Rights
Act of 1965 ( enacted pursuant to §2 of 15th
amendment) – the heart of which is a complex scheme
of stringent remedies aimed at areas where voting
discrimination has been most flagrant
57
HOLDING: §5 is a positive grant of legislative
power authorizing congress to exercise its
discretion in determining what legislation is
needed to secure the 14th amendment. Prohibited
literacy tests.
* Congress provided a broad remedy for a kind of
violation that the court itself recognizes as a
violation... Discriminatory administration is a
violation
2. Katzenbach v. Morgan (1966) 1479
FACTS: Section 4(e) of the Voting Rights Act of
1965 provides that no person who has successfully
completed the sixth primary grade in a school
accredited by the Commonwealth of Puerto Rico in
which the language of instruction was other than
English shall be denied the right to vote in any
election b/c of his inability to read or write
English. Appellees, registered voters in NYC,
brought this suit to challenge the
constitutionality of §4(e) insofar as it pro tanto
prohibits the enforcement of election laws of NY
requiring the ability to read and write English.
HOLDING: Application of NY’s English literacy
requirement constituted an invidious discrimination
in violation of the EP clause. There can be no
doubt that §4(e) may be regarded as an enactment to
enforce the EP clause. Specifically, 4(e) may be
viewed as a measure to secure for the Puerto Rican
community residing in NY nondiscriminatory
treatment by government, so Congress has the power
to legislate and enact it. (limit literacy tests)
HARLAN: when recognized state violations of
federal constitutional standards have occurred,
Congress is of course empowered by §5 to take
appropriate remedial measures. But it is a
judicial question whether the condition with which
Congress has thus sought to deal is in truth an
infringement on the Constitution.
 (1) over broad remedy for judicially established
regulation (the least plausible analysis for this
case)
 (2) Brennan points out that Puerto Rican
neighborhoods get poorer services, so remedy is
giving Puerto Ricans the vote so that politicians
may pay more attention
 (3) learning English will be encouraged, encourage
an intelligent franchise
58

3.
4.
Brennan’s argument suggests that Congress can
interpret Constitution to decide for itself what
is and is not a violation of EP b/c of specially
informed legislative fact-finding competence...
Can Congress use this power to cut back on
Constitutional rights?
Mississippi Univ. for Women v. Hogan (?) 1487
FACTS: The state contended that congress, in
enacting the Education Amendments of 1972,
expressly had authorized MUW to continue its
single-sex admissions policy by exempting public
undergraduate institutions that traditionally have
used single –sex admissions policies from the
gender discrimination prohibition of Title IX.
HOLDING: although we give deference to
congressional decisions and classifications,
neither Congress nor a state can validate a law
that denies the rights guaranteed by the 14th
amendment.
Oregon v. Mitchell (1970) 1489
FACTS: states challenged Congress’ power to enact
Tiles II and III of the Voting Rights Act
Amendments of 1970. (1) Section 302 forbade states
to deny any citizen, otherwise qualified to vote,
the right to vote in any federal, state or local
election on account of age is such citizen is 18 or
older. (2) section 201 extended the Voting Rights
Act for an additional five years (to 1975) and also
extended nationwide §4(a) prohibition of any “test
or device” including literacy tests as a
prerequisite for voting or registration. (3)
section 202 abolished any state durational
residency requirement as a precondition to voting
for Pres. And V.P. and required uniform rules for
the provisions of “absentee ballots”.
HOLDING: (1) can Congress impose 18 year old vote
in federal elections? YES 5-4
(2) Can Congress impose 18 year old vote in state
and local election? NO 5-4
(3) How many justices think Congress has the same
power over federal and states elections? 8
* Black is the man in the middle much like Powell
in Bakke
BLACK: uphold (1) prohibiting age requirements in
federal elections, but not in state and local;
uphold (2) extending Act for another five years and
59
5.
6.
7.
prohibiting test or device; upheld (3) to abolish
residency requirement for Pres. And VP voting
BRENNAN, WHITE, MARSHALL: uphold (1) prohibiting
age requirements for federal elections, and state
and local elections; uphold (2) extending act for
five years and abolishing tests; uphold (3)
abolishing residency requirements
HARLAN: voted (1) age requirements in state and
local elections unconstitutional; upheld (2) to
extend to five years and prohibit any test or
device; held invalid (3) abolishing residency
requirements
BURGER, BLACKMUN, STEWART: voted (1) prohibiting
age requirements in state and local elections
unconstitutional; upheld (2) extending act for
another five years and abolishing tests and
devices; upheld (3) abolishing residency
requirements for voting for Pres. And V.P.
EEOC v. Wyoming (?) 1496
DISSENT: denied that congress had power under §5
to apply the Age Discrimination in Employment Act
to state hiring. Mitchell can be read as finally
imposing a limitation on the extent to which
congress may substitute its own judgment for that
of the states and assume this court’s role of
‘final arbiter’
Rome v. US (1980) 1497
Involved the Attorney General’s refusal to approve,
under §5 of the Voting Rights Act, various changes
in Rome Georgia’s electoral system and a number of
city annexations. Federal court found that the
changes were prohibited by the act b/c they had a
discriminatory effect.
HOLDING: the court affirmed b/c the act’s ban on
electoral changes that are discriminatory in effect
is an appropriate method of promoting the purposes
of the 15th amendment, even if it is assumed that §1
of the amendment prohibits only intentional
discrimination in voting.
Jones v. Alfred H. Mayer Co. (1968) 1499
FACTS: petitioners filed a complaint that the
respondents had refused to sell them a home for the
sole reason that petitioner is a Negro. Relying in
part on 42 U.S.C. §1982 the petitioners sought
injunctive relief and other relief. The courts
below sustained the respondent’s motion to dismiss
concluding that §1982 applies only to state action.
60
HOLDING: on its face, §1982 appears to prohibit
all discrimination against Negroes in the sale or
rental of a property – by private owners as well as
public authorities and this is correct. It does
not follow that the adoption of the fourteenth
amendment or he subsequent re-adoption of the Civil
Rights act were meant to somehow limit its
application to state action. At the very least,
the freedom that Congress s empowered to secure
under the 13th amendment includes the freedom to buy
whatever a white man can buy, the freedom to live
wherever a white man can live. If Congress can not
say that being a free man means at least this much,
then the 13th amendment made a promise the nation
cannot keep.
8. Runyon v. McCrary (1976) 1501
Held that §1981 prohibits private schools that were
operated commercially and open to the public in
that they engaged in general advertising to attract
students, from refusing to accept black students.
9. Griffin v. Breckenridge (1971) 1502
FACTS: allegedly respondents had willfully
conspired to assault and terrorize petitioners –
who were travelling upon the federal, state and
local highways – in order to prevent petitioners
and other African Americans from seeking the equal
protection of the laws and from enjoying the equal
rights, privileges, and immunities of citizens
under the law.
HOLDING: all indicators – text, companion
provisions, and legislative history point
unwaveringly to §1985’s coverage of private
conspiracies. Two sources of Congressional power to
reach the private conspiracy alleged: §2 of the
13th amendment (varieties of criminal conduct which
congress may make punishable criminally f
remediable civilly) AND the right of interstate
travel is constitutionally protected against
private as well as governmental interference.
10. Carpenters Local, 610 v. Scott (1983) 1503
Held that an alleged conspiracy to infringe first
amendment rights is not a violation of §1985 unless
it is proved that the state is involved in the
conspiracy or that that the aim of the conspiracy
is to influence the activity of the state. (upheld
the application of §1985 to private conspiracies
aimed at interfering with rights (such as freedom
61
11.
12.
13.


14.
from slavery and the right to travel)
constitutionally protected against private, as well
as official, encroachment
Bray v. Alexandria Women’s Health Clinic (?) 1503
FACTS: an injunction was sought against antiabortion demonstrators’ trespassing on, and
obstructing access to, the premises of abortion
clinics.
HOLDING: §1985 does not apply to private
conspiracies aimed against abortion b/c that
involves “a right only against state inference”
Lopez v. Monterey County (1999) supp.
Held that Congress had power under §2 of the 15th
amendment to suspend voting regulations in CA
county which was “covered” under the Voting Rights
Act of 1965 even though the state legislature of
CA, which was not “covered” had passed a statute
requiring the new voting regulations.
Boerne v. Flores (1997) supp.
FACTS: a decision by local zoning authorities to
deny a church a building permit was challenged
under the Religious Freedom Restoration Act of 1993
(RFRA). RFRA prohibits “government from
substantially burdening a person’s exercise of
religion even if the burden results from a rule of
general applicability unless the government can
demonstrate the burden (1) is in furtherance of a
compelling governmental interest; and (2) is the
least restrictive means of furthering that
compelling governmental interest.
HOLDING: RFRA was designed to control cases and
controversies, such as the one before us; but as
the provisions of the federal statute here invoked
are beyond congressional authority, it is this
Court’s precedent, not RFRA’s, which must control.
under the revised amendment, Congress’ power was
no longer plenary but remedial... legislation
which alters the meaning of the Free Exercise
Clause can not be said to be enforcing the clause
the power to interpret the Constitution in a case
or controversy remains in the Judiciary
Florida Prepaid Post-secondary Education Expense
Board v. College Savings Bank (1999) supp.
FACTS: Congress enacted the Patent Remedy Act
HOLDING: the provisions of the Patent Remedy Act
are so out of proportion to a supposed remedial or
preventive object that they cannot be understood as
62
responsive to, or designed to prevent,
unconstitutional behavior. Does not respond to a
history of deprivation of constitutional rights,
and identifies no pattern of patent infringement by
the states, let alone a pattern of constitutional
violations.
VIII.
Substantive Protection of Economic Interests
A. Lochner v. New York (1905) 326
FACTS: NY statute forbidding employment in a bakery
for more than 60 hours a week or 10 hours a day
HOLDING: held invalid b/c the statute “necessarily
interferes with the right of contract between the
employer and the employees. The general right to
make a contract in relation to his business is part
of the liberty of the individual protected by the
amendment.
 doctrine for protecting fundamental rights not in
the Constitution... in this case economic
interests
 paradigm case representing the era- standard
example of a bad court decision
IX. Protection of Individual Rights: due Process, the
Bill of Rights, and Non-Textual Constitutional
Amendments
A. The Right of Privacy (or “autonomy” or “personhood”)
1. Skinner v. Oklahoma (1942) 391
FACTS: Oklahoma Habitual Criminal Sterilization
Act authorized the sterilization of persons
previously convicted and imprisoned two or more
times of crimes “amounting to felonies involving
moral turpitude” and thereafter convicted of such a
felony and sentenced to prison. Petitioner
convicted of “chicken stealing” and robbery, had
again been convicted of robbery.
HOLDING: law is violative of equal protection b/c
state is taking a basic right of man away according
to unequal classifications. When the law lays an
unequal hand on those who have committed
intrinsically the same quality of offense and
sterilizes one and not the other, it has made as
invidious discrimination as if it had selected a
particular race or nationality for particular
treatment.
2. Griswald v. Connecticut (1965) 393
FACTS: General Statutes of Connecticut provide
that any person preventing conception and any
person assisting in the prevention of conception
63
3.
4.
will be punished. Planned Parenthood director gave
information, instruction, and medical advice to
married persons as to the means of preventing
conception. Appellants were found guilty as
accessories and fined.
HOLDING: Statutes are invalid b/c they concern a
relationship lying within the zone of privacy
created by several fundamental constitutional
guarantees and they sweep unnecessarily broadly and
invade the area of protected freedoms.
Eisenstadt v. Baird (1972) 404
FACTS: Massachusetts law made it a felony to
distribute contraceptive materials except in the
case of registered physicians and pharmacists
furnishing materials to married persons. Baird had
given a woman a package of vaginal foam at the end
of his lecture on contraception. The crime was
that Baird had no license, and thus no authority to
distribute to anyone.
HOLDING: Since the statute is riddled with
exceptions making contraceptives freely available
and since, is protection of health were the
rationale, the statute would be both discriminatory
and over-broad. The statute violates the rights of
single persons under the EP clause. For whatever
the rights of the individual to access
contraceptives may be, the rights must be the same
for the unmarried and the married alike.
Roe v. Wade (1973) 409
FACTS: Texas statute makes procuring an abortion a
crime except by medical advice for the purpose of
saving the life of the mother. The Georgia statute
outlaws virtually all abortions- even in the
earliest stages of pregnancy. Jane Roe alleged
that she was unmarried and pregnant and that she
was unable to get a “legal” abortion in Texas b/c
her life is not appear to be threatened by the
continuation of her pregnancy. The district court
held the statutes unconstitutional, but denied
injunctive relief requested. Roe appealed.
HOLDING: For the period of pregnancy prior to the
point when the state interest in safeguarding
health and life is “compelling” (the end of the
first trimester), the attending physician, I
consultation wit the patient, is free to determine,
without regulation by the state, that in his
medical judgment the patient’s pregnancy should be
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5.
6.
terminated. Form and after this point, a state may
regulate the abortion procedure to the extent that
the regulation reasonably related to the
preservation and protection of maternal health.
Doe v. Bolton (1973) 416
FACTS: a Georgia provision permitted a physician
to perform an abortion when based upon his best
clinical judgment that abortion is necessary.
HOLDING: statute was sustained
Michael H. v. Gerald D. (1989) 510
FACTS: Although Gerald D. was listed as the father
on the birth certificate of Victoria as the father,
blood tests showed a 98.07% probability that
Michael, with whom the mother had an adulterous
affair, was the father. During the first three
weeks of the child’s life, she and her mother
resided at times with Michael, who held the child
out as his own. During this time the mother and
child also resided at times with another man and
with Gerald. Claiming to be the father of
Victoria, Michael H. brought an action in CA to
establish his paternity and visitation rights.
* * [under CA law, a child born to a married woman
living with her husband, who is neither impotent
nor sterile, is presumed to be a child of the
marriage, a presumption that may be rebutted only
in very limited circumstances. Relying on
presumption, the CA courts rejected Michael’s
claims]
HOLDING: Our traditions have protected the marital
family (Gerald, Carole and the child they claim to
be theirs) against the very sort of claim Michael
asserts. In order to recover, Michael must show
not that our society has traditionally allowed a
natural father in his circumstances to establish
paternity, but that it has traditionally accorded
such a father paternal rights or at least has not
denied them.
O’Connor: majority uses a mode of analysis to
identify liberty that is inconsistent with past
decisions. Too specific.
BRENNAN: What deeply rooted traditions of the
country are is arguable. Even if we can agree that
“family” and “parenthood” are part of the good
life, it is absurd to assume that we can agree on
the content of these terms and destructive to
pretend that we do
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7.
8.
9.
Bowers v. Hardwick (1986) 516FACTS: In august1982, respondent was charged with
violating the GA statute criminalizing sodomy by
committing that act with another adult male in the
bedroom of respondent’s home
HOLDING: None of the rights announced in Griswold,
Skinner, and Roe bear any resemblance to the
claimed constitutional right of homosexuals to
engage in any acts of sodomy that is asserted in
this case. No connection between family, marriage,
or procreation on the one hand and homosexual
activity on the other has been demonstrated. This
is not a right that is deeply rooted in this
nation’s history and tradition.
BLACKMUN: This case is not about homosexual
sodomy, but about the most comprehensive of rights
and the right most valued by civilized men... the
right to be let alone. We must analyze the claim
in the right in privacy context.
The right of an
individual to conduct intimate relationships in the
intimacy of his or her own home seems to be at the
heart of the Constitution’s protections of privacy.
STEVENS: the fact that the governing authority has
traditionally viewed a particular practice as
immoral is not sufficient reason for upholding a
statute prohibiting the practice. This policy of
the court, selective application of the neutral GA
law, must be supported by a neutral and legitimate
interest – something more than a habitual dislike
for, or ignorance of, the disfavored group.
Hunter v. Erickson (1969) 1222
FACTS: Akron city Council enacted a fair housing
ordinance. The voters amended the city charter to
prevent any ordinance dealing with racial,
religious, or ancestral discrimination in housing
without approval of the majority of voters in
Akron.
HOLDING: explicitly racial classification violates
EP b/c the law’s impact falls on the minority
Washington v. Seattle School District (1982)1223
FACTS: shortly after appellee implemented a
mandatory busing plan to reduce de facto school
segregation, the Washington electorate adopted
Initiative 350, providing – with a number of broad
exception- that “no school board shall directly or
indirectly require any student to attend a school
other than the school which id geographically
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nearest or next nearest the student’s place of
residence.
HOLDING: Initiative 350 violates EP b/c it used
the racial nature of a decision to determine the
decision making process ( as in hunter, the
community’s political mechanism are modified to
place effective decision making authority over a
racial issue at a different level of government).
10. Crawford v. LA BD. Of ED (1982) 1224
FACTS: after state courts had ordered a
substantial busing to remedy de facto school
segregation which the state courts had found
violative of the state constitution, the CA
electorate amended the state constitution by
adopting Proposition I, providing that “state
courts shall not order mandatory pupil assignment
or transportation unless a federal court would do
so to remedy a violation of the EP clause.
HOLDING: no violation of EP b/c even after
Proposition I the CA constitution still impasses a
greater duty of desegregation than does the Federal
Constitution.
11. Romer v. Evans (1996) supp.
FACTS: an amendment to the constitution of
Colorado adopted in a 1992 statewide referendum
challenged. Amendment 2: No Protected Status
Based on homosexual, Lesbian, or Bisexual
Orientation…
HOLDING: We cannot accept the view that Amendment
2’s prohibition on specific legal protections does
no more than deprive homosexuals of special rights.
To the contrary, the amendment imposes a special
disability upon those persons alone. Homosexuals
are forbidden the safeguard that others enjoy or
may seek without constraint. It identifies persons
by a single trait and then denies them protection
across the board. A law declaring that in general
it shall be more difficult for one group of
citizens than for all others to seek aid from the
government is itself a denial of EP of the laws in
the most literal sense.
SCALIA, REHNQUIST, and THOMAS: Amendment 2 does
not deprive homosexuals of the protection afforded
by general laws and policies that prohibit
arbitrary discrimination in governmental and
private settings. Of course amendment 2 is not
intended to have any effect on this legislation,
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but seeks only to prevent the adoption of antidiscrimination laws intended to protect gays,
lesbians and bisexuals.
12. US v. Carolene Products (1938) 17
Upheld constitutionality of a federal statute that
prohibited the shipment in interstate commerce of
“filled milk,” a product compounded with fat or oil
so as to resemble milk or cream. Justice Stone
took the position that economic regulatory
legislation, such as the statute at issue, was
entitled to presumption of constitutionality and
should be upheld if supported by any rational
basis. Suggests several categories of cases that
might be subject to more “exacting” or “searching”
judicial scrutiny (in the place of the rational
basis test):
(1) legislation within specific constitutional
prohibitions (The Bill of Rights)
(2) legislation restricting the political process
used to repeal bad legislation, (Voting,
assembling, informing political organizations)
(3) legislation directed at particular religious
groups, national or racial minorities
(4) legislation directed at discrete and insular
minorities
13. Washington v. Glucksberg (1997) supp.
FACTS: Respondents, four physicians who declare
they would assist terminally ill, suffering
patients in ending their lives if not for
Washington’s assisted suicide ban, along with three
gravely ill patients, who have since died, and
Compassion and Dying, a non profit organization
that counsels people considering physician assisted
suicide, sought a declaration that Washington’s
statute is, on its face, unconstitutional.
HOLDING: the challenged Washington statute does
not violate the 14th amendment, either on its face
or “as applied to competent, terminally ill adults
who wish to hasten their death by obtaining
medication prescribed by doctors”.
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