Constitutional Law Black

Major Questions:
I.
Does the Federal Entity have the power to act?
a. Is there specific authorization in the constitution?
II.
Does Congress or the State, after acting/passing legislation, violate a persons rights/liberty?
III.
Look for the narrower issues under these broad cases
Function of Constitution
I.
Why two levels of government?
a. Federal = necessary evil
b. State = more responsive to the people
Overview:
I.
Three Standards of review:
1. Rational basis:
Easiest standard
Two requirements:
Legitimatize state objective
o Broad general welfare
Rational relation
o Only if government has acted completely arbitrary and irrational
2. Strict Scrutiny
Hardest standard
Two requirements:
Compelling objective
Necessary means
o No less restrictive alternatives
3. Intermediate Scrutiny
Important objective
Substantially related means
EXAM TIP: After choosing the standard to apply, you might as well go further and predict the outcome. For rational basis,
almost always upheld. For strict scrutiny, almost always struck down. For intermediate, 50-50.
4. When Used:
Rational basis (the places where its very hard for the person attacking the governmental action to get it
struck down constitutional grounds)
Dormant Commerce Clause
Substantive Due Process
o As long as there is no fundamental right affected, the test will be RB
o Vast bulk of economic regulations will be tested by RB standard.
Equal Protection as long as:
o No suspect or quasi-suspect classification
o No fundamental right being impaired
Contracts Clause
Strict Scrutiny
Substantive dupe proceed/fundamental rights
o Privacy cluster: marriage, child-bearing, child-rearing
Equal Protection Review if:
o The classification relations either to a suspect class or fundamental right
Race, national origin, alienage
FRs: right to vote, access to the courts,
Intermediate Review
Equal Protection/semi-suspect trait
o Gender, illegitimacy
Contracts Clause
Unit I: Separation of Federal Powers
I.
Role of the Judiciary
a. The authority for judicial review:
b. The Constitution is silent on the power of the courts to engage in judicial review
c. Judicial review = the authority to review the acts of the other branches (an American Invention)
d. Marbury v. Madison

i. Facts: President Adams appointed Marbury as a justice of the peace less than a week before the
inauguration of Jefferson. Marburys signed commission was not delivered before Jeffersons nomination
and Jefferson instructed James Madison, the secretary of state, to withhold the undelivered commissions.
1. Marbury then filed a writ of mandamus, a petition to a court asking it to order a government
officer to perform a duty, with the U.S. Supreme Court.
a. Judiciary Act of 1789: granted the Supreme Court original jurisdiction over writs of
mandamus.
ii. Issue: Does the constitution give the Supreme Court the authority to review acts of Congress ad declare
them, if repugnant to the constitution, to be void?
iii. Holding: had a right to the position, but the act that granted the Supreme Court Jurisdiction was
unconstitutional
1. Marbury principle: it is the Supreme Court, not Congress which has the authority and duty to
declare a congressional statute unconstitutional if the Court thinks it violates the Constitution
iv. 4 major takeaways:
1. How to avoid constitutionality of judiciary act?
a. Courts make choices in decisions and opinions because what they want to achieve or see
occur
b. The Constitution is regulatory, not just a declaration
2. When may the court review executive order?
a. Distinction between political act and ministerial act
i. Cant review political acts
ii. Delivery of commission is ministerial = non-political
b. Sets forth principle Rule of Law
i. No one is above the lawnot even the president. The Constitution Rules.
c. Creates new constitutional model of government power
i. Constitution and Congress create legal duties to be performed by the executive
ii. Court reviews to ensure Congress is acting constitutionally
1. Judiciary has the power to invalidate acts of Congress
iii. Court can review to ensure congressional will is carried out
3. Was the judiciary act of 1789 constitutional?
a. 2 sets of law: Constitution and statutes
i. When they contradict, the Constitution wins
b. Congress cannot expand the courts original jurisdiction that was set out in the
Constitution
i. They can expand appellate jurisdiction because it is a creature of the legislature
4. Should the judiciary have the authority to declare Congressional statutes as unconstitutional?
a. Constitutional limits would be meaningless if statutes could transgress
b. It is the duty of the courts to interpret and enforce the law
i. Creating Judicial review
1. Constitution is binding on all parts of the federal government
2. Constitution is enforceable by the court
3. Judiciary is charged with interpreting the Constitution in a manner that
its rules are binding on all other departments of government
v. **this case creates the authority for judicial review of executive actions AND legislative acts which allows
the supreme Court to review the constitutionality of federal laws - Constitution is regulatory, not just a
declaration of independence.
1. What kind of executive conduct can the court review?
a. If discretionary (political), the court CANNOT review executive conductacts where
the executive has discretion as to how to act.
i. i.e. president vetoing a bill, appointing an officer
b. If mandatory/ministerial (nonpolitical), the court can review executive conduct
government duties.
i. i.e. congressional budget
vi. ***Also establishes that Article III authorizes the maximum jurisdiction of the federal courts and Congress
cannot authorize the federal courts to hear cases beyond the scope of Article III.
1. Congress cannot increase jurisdiction of federal courts.
vii. Important Points
1. Constitution is regulatory, not just a declaration of independence
2. Congress cant increase jurisdiction of fed courts
3. Court may review executive conduct to review constitutionality
4. Court may review legislative action for its constitutionality
5. Country of Laws, not a country of men

e.
f.
g.

h.

Black likes to ask

interpretation
questions. Whats
backing their
argument?

Judicial review is the foundation of constitutional law. (1) the process of judicial review has created the body of law
that we think of as the law of the Constitution, (2) it is the process of judicial review that renders the constitution
binding and enforceable as law
Limits on Federal Judicial Power:
District of Columbia v. Heller
i. Facts: The District of Columbia appealed to the Supreme Court after a federal appeals court ruled that the
Districts gun control laws were unconstitutional.
ii. Issue: Does the District of Columbias prohibition on the possession of usable handguns in the home violate
the 2nd Amendment?
iii. Rule: The D.C. Codes (1) general bar against registration of handguns, (2) prohibition against
carrying a pistol w/o a license, and (3) requirement that all lawful firearms to be kept unloaded and
either disassembled or trigger locked Violate rights of individuals under the U.S. Constitutions
Second Amendment, which permits individuals to keep handguns and other firearms for private use
in their homes, even though they are not affiliated with any state-regulated militia.
1. Why does the constitution have to be interpreted at all?
i. Constitution doesnt have a lot of specificity, but surely it doesnt mean there
arent exceptions.
1. Ex. Endangering President: Written broadly
ii. Vague/Broad
iii. When specific there have to be exceptions
Ways to interpret the Constitution? Originalism v. Nonoriginalism
i. Originalists:
1. Text of the Constitution
a. Plain meaning
b. Understanding at the time it was drafted
c. Holistic-look at the provision in light of the whole document
d. Overall constitutional principles
2. Context in which the Constitution was drafted
a. Imaginative Reconstruction W.W.F.D
b. Goals and norms that framers had
3. (Legal Process theory) Representation: reinforcement theory judges should only get involved
when the political markets is malfunctioning
4. Judges role of interpretation does not exist without this malfunction
5. When deciding constitutional issues, judges should be confined to enforcing the norms that are
clearly stated or implicit in the Constitution
6. Types:
a. Specific Originalism/Strict:
i. Enumerated powers and rights (thats it)
ii. Pro: Amended Constitution, restricts judicial activism, facilitates majority rule
iii. Con: Impossible to apply, inconsistent with Framers intent, prevents Const.
from evolving, disregards for minority rights
b. Abstract Originalism:
i. Apply the idea of original construction the framers were after (but we dont
know what they were thinking, do we?)
c. Original Meaning/Historical Record:
i. Take the language to mean what it means when the framers wrote it
ii. Pro: potentially more reliable
iii. Con: How do we get inside their minds?
d. Traditional (close to Original Meaning):
i. If the practice was occurring and permitted at the time the constitution was
drafted it couldnt have been the Framers intent to destroy it
ii. Non-originalism:
1. Idea of a living constitution which evolves and changes
2. There is not an unambiguous knowable framers intent that can be found to resolve constitutional
questions
3. Preferable method because it is the approach intended by the framers
4. Types:
a. Living Constitution:
i. Close to abstract originalism (apply idea framers were after)
ii. Ideas evolve to meet the needs of citizens
b. Contemporary Values:
i. Politicians like make the constitution modern

ii. Inserting contemporary values into the Constitution

Natural Law:
i. Natural human rights by God.
ii. Inalienable rights natural/fundamental, rights inherent with being a person
d. Process Based Democratic Theory:
i. Constitution is about setting up a fair process that if followed will produce a just
result
e. Structural Interpretation:
i. How it connects to other parts of the Constitution
ii. The amendments only make sense when you read it as a whole
i. The Case Against the Constitution:
i. Lessons from Buck v. Bell:
1. Government can reach pretty far
2. Justices make value judgments
3. Courts get to make technical choices that are outcome determinative
4. Sometimes they fall to public sentiment
5. Courts are willing to spin false story making this woman seem like a bad person
ii. What is the courts duty:
1. Protect minorities, prevent tyranny of majority?
2. The only reason we need the constitution is to protect minoritythe majority can take care of
itself
a. So the court is supposed to enforce the constitution and keep the majority in check
Federalism/Federal Power Generally
a. Concept of Federalism
i. Co-existing national and state governments. Therefore, you have to watch whether some power being
asserted by the federal government is in fact allowed under the Constitution, and you must also watch
whether some power asserted by the states is limited in favor of federal power
ii. Federal government has limited powers
1. Limited, enumerated powers branches can only assert powers specifically granted to them
a. Youve got to ask: what is the enumerated, specific power in the Constitution that gives
the federal branch the right to do what it has just done
b. States can do whatever they want unless it is expressly forbidden by the Constitution
i. Ex: no general police power Each state has a general police power/the ability
to regulate solely on the basis that the regulation would enhance welfare, but
there is no general federal police power. Instead, each act of federal legislation
or regulation must come within one of the very specific, enumerated powers (ex:
commerce clause)
1. Tax and spend for the general welfare: Congress does have the right to
lay and collect taxes for the general welfare. In other words, the
power to tax and spend is subject to the requirement that the general
welfare be serves; there is no independent federal power to provide for
the general welfare
iii. Necessary and Proper Clause In addition to the very specific powers given to Congress by the
Constitution, Congress is given the power to make all laws which shall be necessary and proper for
carrying into execution the specific power.
1. Rational-relation test: The necessary and proper clause is easy for Congress to satisfy: if
congress is seeking an objective that is within the specifically enumerated powers, then Congress
can use any means that is: (1) rationally related to the objective Congress is trying to achieve; and
(2) is not specifically forbidden by the Constitution
a. Broad reading given to the Clause Congress gives a very broad and deferential
reading to Congress power under the Clause.
iv. Cant violate specific constitutional provision: Even where congressional action appears to fall within a
specific grant of power, the federal action may not of course, violate some other specific constitutional
guarantee. In other words, congressional action must past two tests: (1) it must fall within some specific
grant of power under the constitution, and (2) it must not violate any specific constitutional provision
b. Powers of the Three Federal Branches (summary)
i. Congress
1. Interstate commerce: congress has the power to regulate interstate commerce, as well as foreign
commerce
2. Taxing and Spending
3. DC: they can regulate the District of Columbia
4. Federal Property
c.

II.

5.
6.

III.

War and Defense: Congress can declare war, and can establish and fund the armed forces
Enforcement of Civil War amendments: Congress can enforce the post Civil War amendments
(prohibit slavery, congress can even ban private intrastate non-commercial conduct)
ii. President
1. Execution of the Laws
2. Commander and Chief
3. Treaty and Foreign Affairs: President can make treaties, appoint ambassadors, control foreign
policy
a. Implied from the nations need to speak from a single voice in foreign affairs
4. Appointment of federal officers: The Presidents appoints all federal officers (cabinet members,
judges, ambassadors) but with the Senates approval. As to inferior officers, its up to Congress to
decide whether these should be appointed by the President, by the judicial branch, or by the
heads of the departments
a. But Congress cannot make these lower-level appointments themselves, only who can
make them
5. Pardons
6. Veto
The division of power between the executive and the legislature

a.

Inherent Presidential Power

i. Article II, 2: Presidents enumerated powers Commander-in-chief of armed forces, treating making
power
ii. Implied powers: The executive shall be vested in a President.
iii. Focuses on the power of the president to act without express constitutional or statutory authority.
1. Hamilton View (non-originalist)
a. Argued that the President has authority not specifically delineated in the Constitution.
2. Madison View (originialist)
a. The President has no powers that are not enumerated in Article II and such unenumerated authority would be inconsistent with a Constitution creating a government of
limited authority.
iv. Youngstown Sheet & Tube Co. v. Sawyer (1952) 4 views
1. Facts: Faced with an imminent steel strike during the Korean War, the president ordered
governmental seizure of the steel companies to prevent the strike. The companies challenged his
power to take such action as being without constitutional authority or prior congressional
approval.
2. Issue: Did the president exceed the limit of his powers by issuing the seizure of all steel mills?
3. Rule: The President is limited to vetoing and suggesting laws; he is not to create laws.
4. Holding: Yes. The President may not make such an order without the direction of the Congress or
under the express authority of the United States Constitution. The SC declared the seizure
unconstitutional.
a. 4 Approaches to Inherent Presidential Power: (Other Judges Opinions)
i. Blacks view:

1.

ii.

iii.

iv.

v.
vi.

b.

c.

There is no inherent power. President can only act if there is express

constitutional or statutory authority
Douglas View:
1. The president has inherent authority unless the President interferes with
the functioning of another branch of government or usurps the powers
of another branch
2. Here, Pres. Usurped Congresss power.
Jacksons View:
1. Yes, inherent power
a. As long as Congress does not limit him (ways to limit):
i. Full power when a president acts pursuant to
an express or implied authorization of congress,
his actions are presumptively valid
ii. Twilight zone: when the president acts without
congressional grant or denial of authority, he can
rely on his own ind. power, however, there may be a
twilight zone where he and congress may have
concurrent or distribution may be uncertain
iii. Minimal power Congress expressly says no
Can only act with inherent Presidential power.
Frankfurters view (like Jackson):
1. The president has inherent powers that may not be restricted by
Congress and may act unless the Constitution is violated. (not in
Youngstown)
Vinsons view (dissent):
1. Broad inherent authority
2. Emergency inherent power if doesnt violate constitution with action
Take Away: The only time an order such as this would be sustained would be in
the "theater of war." In that case alone it would be appropriate for a military
commander to take control of a supply center to prevent the disruption of the
war efforts. Here, there was no such danger, only a perceived threat.
Furthermore, the President acted alone without the support of Congress.

Executive Privilege:
i. Refers to the ability of the President to keep secret conversations with or memoranda to or from advisors.
ii. United States v. Nixon (1974)
1. Facts: The Plaintiff, the President of the United States Richard Nixon (Plaintiff) refused to turn
over tapes of his secretly recorded conversations that had been subpoenaed to assist in the
prosecution of individuals in the Watergate break-in
2. Issue: Does the President possess an absolute executive privilege that is immune from judicial
review
3. Rule: Conversations between the President of the United States (the President) and his
advisors are generally privileged, but that privilege is no absolute
4. Holding: No, President does not have absolute privilege. Executive discretion is not absolute
and must be balanced against fair judicial processes and the rule of law. need to protect military,
diplomatic, or sensitive national security secrets.
a. Asserting privilege based on a generalized interest in confidentiality cannot prevail over
due process and fair administration of criminal justice
b. The Court holds that there is E.P., but it is the courts job to determine the scope of that
privilege
5. Take Away: Plaintiff argues that all private conversations between himself and his
advisors/associates are absolutely privileged, claiming that his advisors may fear to speak candidly
if they know that the conversations may later be used against them in a court of law. The court
agreed that the President's communications to his advisors are subject to general claims of
confidentiality. However, the Supreme Court said this was based on public policy grounds.
a. Need for information in criminal trial outweighs executive privilege
6. Cheney v. US District Court of DC (2004)
a. Distinguished because information sought was in a civil cause and much more broad
search
i. Nixon was a subpoena for a specific thing
a. So executive privilege applies Criminal case v. civil case & Narrow v. broad subpoena
Line item veto
i. Can Congress increase the power of the executive?

1. Can Congress pass statutes that give executive power beyond the Constitution?
ii. Clinton v. City of New York (1998)
1. Holding: There is no provision in the Constitution that authorizes the President to enact, amend, or
to repeal statutes. The President may initiate and influence legislative proposals BEFORE they
become law.
a. The president may also veto an entire bill where it is then returned to Congress.
i. The Line Item Veto Act allows the president to cancel a provision of an Act of
Congress AFTER the bill becomes law.
b. ***Congress cannot give the President the authority to cancel a bill after it is law or
knock out part of the law, this is unconstitutional
i. The Constitutional silence on such a presidential action can be viewed as an
equivalent to an express prohibition.
ii. If the President is to play a different role in determining what may become a law
(different from what the Constitution already delineates), then such a change
must be through a new Constitutional amendment.
2. Can Congress increase power of the president?
a. No this is unconstitutional
b. 3 ways to pass law
i. Veto, send back to Congress and correct, send back to President
ii. Congress can override with 2/3rd vote
iii. President has 10 days to sign, if session ends before signing
1. Pocket veto, not law.
c. Under formalist view unconstitutional, (1) can not add president powers (similar to
Marbury and cant expand power of Sup. Court)
i. Statute changed procedure for creating laws
1. (2) stick the the three ways in the constitution
ii. Congress cannot give president power to cancel bill after it is law or knock out
part in this case, the vetoed part was already signed into law.
d. Delegation of Legislative Power/Administrative Power
i. The creation of the ICC in 1887 ushered in a new era for federal government where federal administrative
agencies were created with broad powers
1. These agencies exercise all the powers of government: legislative, executive power, and judicial.
ii. A.L.A Schechter Poultry Corp. v. US & Panama Refining Co.
1. Non-delegation doctrine:
a. the principle that Congress may not delegate its legislative power to the
executive/administrative agencies. Whether it has done so depends on whether
Congress has provided the agency with an intelligible principle or standard by
which to act.
b. Holding: The court held that the regulation was unconstitutional because it exceeded the
scope of Congresss commerce power.
i. It was also an impermissible delegation of legislative power.
1. The code-making authority that the Recovery Act confers on the
President is an unconstitutional delegation of legislative power
because it essentially confers authority to the President to regulate the
entire economy with no more a precise standard than stimulating the
economy by assuring fair competition.
a. Fair competition is too vague and too broad need some sort
of standard of what exactly fair competition is.
b. Stating some general aid is not enough
i. Congress must provide a standard with which to act if
Congress delegates its power to the executive.
c. To determine whether the passage of the code was an improper delegation of legislative
authority, two grounds should be examined.
i. First, in determining what limits Congress set for the President, look to trade and
industrial groups that propose the codes because they must be truly
representative of the industry members
ii. Second, the codes must not promote monopolies or be oppressive of small
enterprises.
iii. Panama Refining Co.
1. Court says it has a role in policing the relationship between the Executive and Legislative
branches
a. There was not set forth limits to the presidents discretion

e.

i. Gave the pres. the ability to prohibit transportation, but not a context to prohibit
such transportation unconstitutional
iv. Whitman v. American Trucking Association
1. Facts: 109(b)(1) instructs the EPA to set primary ambient air quality standards the attainment
and maintenance of which are requisite to protect the public health with an adequate margin
of safety. Trucking Association argues that the EPA has interpreted the statute to provide no
intelligible principle to guide the agencys exercise of authority.
a. Also argues that Congress did not define how much harm is too much but they should
have provided a threshold or criterion for determining this.
b. Argues that to protect public health does not articulate a standard because pollutants
operate on a sliding scale
2. Holding: The court upheld the federal Clean Air Act and the Environmental Protection Agencys
air quality regulations
3. Intelligible doctrine (when Congress gives administrative agency legislative powers, Congress
must state how to body/person authorized is directed to conform)
a. Doesnt matter if good standard or flexible one, just needs to state a standard
i. Broad standard that gives president something to exercise his discretion against
ii. sufficient, but not more than necessary = requisite requirement
b. If court has found that intelligible principle met then the delegation is permitted
i. Standard that gives President something to exercise discretion against
1. Ex: level that is requisite to protect public health
a. Sufficient but not more than necessary
2. Does not have to create criterion for how much harm has too be done,
doesnt have to be concrete
ii. Why has court permitted delegation? (policy argument)
1. Congress has problems foreseeing problems
a. Keep having to update legislation because of ever changing
science
2. Not experts in the area
3. No legislations is worse than delegation
a. Ex: no air quality standards at all
iii. Recently, the court has been more concerned with amount of delegation
v. Key ?s to ask on exam:
1. Has delegation occurred?
2. Is there an intelligible principle?
Administrative power (Agencies, created by the legislature)
i. Legislative Veto
1. Created as a check on actions of administrative agencies
a. Short of normal process
2. Chadha? (Look at tutor notes)
a. Basically said this was unconstitutional and ran around the Constitutional process that
Congress is supposed to follow
b. If Congress wants to overturn an executive action there must be bicameralism (passage
by both houses of Congress), and presentment (giving the bill to the President for
signature or veto).
i. Anything less would be a legislative veto, and these are unconstitutional.
1. Legislative veto = legislation without bicameralism or presentment
2. The effect of the veto was to alter the legal rights, duties, and relations
of persons.
c. The fact that a given law or procedure is efficient, convenient, and useful in facilitating
functions of government, will not save it if it is unconstitutional.
d. Article I:
i. Presentment Clauses: The requirement that all legislation be presented to the
President before becoming law was uniformly accepted by the Framers.
1. Lawmaking was a power to be shared by both Houses and the
President.
ii. Bicameralism: Provided that no law could take effect without the concurrence of
the prescribed majority of the Members of both Houses.
3. Checking Administrative Power
a. Congress can overturn agency decisions by statute.
i. If the executive has already taken action, the executive may veto the new statute
and Congress would then need a 2/3 majority to override the veto.

b.

Power of the Purse: Congress also controls the budget of administrative agencies and can
use this to exercise an important check on their work.
c. Congressional Hearings or Subpoena Documents
d. Ask for weekly updates from the agency
e. Narrow the delegation in a new statute
f. Congress approves presidential appointments
ii. Appointment Power
1. Morrison v. Olson (AG appoint ind. counsel to investigate)
a. Who can appoint? Or does the Constitution require the president exclusively resided over
executive appointments?
b. Article II, 2, Clause 2
i. Principle = President appoints
1. With the advice and consent of the Senate
ii. Inferior = Congress decides who appoints
1. Heads of departments and the Courts
2. Position cant be one named in the Constitution or the department heads
iii. How to determine if its an inferior office?
1. Who does he report to?
2. Limited jurisdiction
3. Limited scope of duties
4. Limited tenure
5. Removable by whom?
c. The President has the power to remove those officials (ambassadors, ministers, SC
Justices) that he appoints the power to appoint is the power to remove
i. If not a principle officer, the president must have the consent of Congress
d. Congress can never have appointment power!!!!
iii. Removal Power
1. President has power in certain situation, not absolute
a. There is no provision in the Constitution concerning the presidents power to remove
executive branch officials
b. May remove unless limited by statutes checks & balances
2. Purposed:
a. Keeps the president in control of the executive branch
b. Makes executive offices responsive to the president
3. Myers v. U.S. (postmaster and Andrew Johnson. President demanded he resigned, post refused)
a. Majority basically said President has unlimited power to remove all executive branch
officials
b. Because there was no express limit placed on the president by the Constitution, this is an
indication that non was intended.
4. Humphreys Executor v. U.S. (FDR kicking out Federal Trade Commission member)
a. Limited removal power of the president
b. Quasi-legislative and quasi-judicial therefore agency was entrusted with powers to be
exercised free from executive control
i. Quasi-legislative: when an administrative agency exercises power to make rules
and regulations that effect legal right through statutes
ii. Quasi-judicial: ability to hold hearings and conduct investigation in disputed
claims and alleged infractions of rules and regulations and make decisions
(similar to a judge would)
c. Humphrey is not an officer strictly of an executive branch, its quasi-legislative, so the
president cannot remove.
5. Weiner v. U.S. (removed from War Claims Commission and wanted back pay)
a. The president has the power to appoint people to these offices, but not the power to fire
them without the consent of Congress
b. Since these agencies are not completely Executive Branch in nature, they do not fall
under the Presidents purview like Myers.
c. Just because he can appoint a nonexecutive officer, doesnt mean he can remove em.
6. Bowsher v. Synar (Congress kept power to appoint Comptroller General for the Balanced Budget
Act)
a. It is a violation of the separation of powers for Congress to impose executive functions
on an officer whom Congress has the power of removal
b. Congress cannot reserve executive power for itself

i. Congress cannot have removal power over an executive official, whether a

person is executive by status or function
7. Morrison v. Olson (modern case law) AG appoint ind. counsel to investigate
a. Executive Agency
b. Can only remove for good cause (Good Cause Standard)
i. The P should have good cause to be able to remove an executive officer if
Congress creates this limitation in the statute
1. Congressional limit on the executive removal power
c. Removal restriction imposed by congress will be valid unless they unduly interfere with
an essential attribute of the presidency
8. ***Takeaway
a. Together, these cases seem to establish that the President may fire any executive official.
i. Congress however can limit removal by statute if it is an office where
independence from the President is desirable and the statute does not prohibit
removal, but limits removal to instances where good cause is shown.
b. Principal that emerges:
i. Is the office one in which independence from the President is desirable? If so,
then Congress may limit the removal power, and as Weiner indicates that the
judiciary may limit removal even in the absence of such statutory restriction.
1. No clear test as to when independence from the President is desirable.
ii. Are Congress limits on removal constitutional?
1. Congress cannot prohibit presidential removal, but it can limit
removal to where there is good cause.
iv. Foreign Policy
1. The Constitution says very little about foreign policy decision making
a. Reliance on framers intent is hard here.
2. Are Foreign Policy and Domestic Affairs different?
a. U.S. v. Curtiss-Wright Export Corp. (1936) (stop sale of arms/munition sales in Chaco
i. All foreign power resides in the federal government
ii. Issue: Are the constitutional powers of the federal government regarding foreign
affairs more expansive than those regarding domestic affairs?
iii. Holding: The President does have inherent foreign policy authority beyond what
Congress and the Constitution grants him.
1. The non-delegation doctrine does not bar him
2. Constitution gives President the power to negotiation
a. He has inherent power in foreign relationship
b. President has degree of discretion and freedom from statutory
regulations
iv. All domestic powers belonged to the States prior to the Constitution
1. States have never had foreign policy powers
3. Treaties and Executive Agreements
a. Article II states that the President shall have power, by and with the advice and consent
of the Senate, to make treaties, provided 2/3 of the senators present concur
b. Treaty:
i. Negotiated by the President and ratified by the Senate
ii. Remains in effect even after Presidents term ends in theory
c. Executive Agreement:
i. Effective when signed by President and head of other government
ii. Remain effective after term
1. Next president can end it
d. How should treaty making power be allocated?
i. Dames & Moore v. Regan, Sec. of Treasury (settle international claims)
1. Facts: President Carter negotiated an agreement with Iran whereby they
would free American hostages being held in Tehran in exchange for the
US lifting a freeze on Iranian assets in the US.
a. The executive agreement lifted this freeze and also provided for
an end to all suits pending against Iran in the US courts.
i. Such claims would be resolved in a new Iran-US
Claims Tribunal.
b. No statute in place to authorize the settlement

2.

4.

5.

6.

Holding: The SC rejected a constitutional challenge to the executive

agreement by Carter that lifted the freeze on all Iranian assets in the
US.
a. Because the presidents actions were taken pursuant to
congressional authorization and federal statutes and there was a
history of such executive settlement claims, the executive
agreement is constitutional.
i. ***So long as the president is not violating another
constitutional provision or a federal statute, there
seems little basis for challenging the constitutionality
of an executive agreement.
ii. Judiciary doesnt want to get involved in the
relationship between the President and Congress
iii. If Congress and the President agree, it is very unlikely
that the Court will insert itself into this argument
b. President has the authority to enter into executive agreements
that achieve the exact same thing as treaties
e. Can the President unilaterally rescind treaties?
i. The Court has never taken a case that addresses this issue because it is a
political issue
ii. Goldwater v. US
1. The president is empowered to rescind treaties without worry about
judicial invalidation
2.
War Power
a. Some overlap between Congress and President
i. declare war(pays/maintains them) and Commander-in-Chief (commands
them)
b. Prize cases (President Lincoln, prior to the declaration of war and without Congressional
approval, blockaded the southern states.)
ii. Need Declaration of War from congress if congress is starting the war
iii. President as Commander in Chief has authority to impose acts of war if war is
upon us
1. Obliged to exercise self defense of nation
iv. Issue: extent of Presidents war powers
b. War Powers Resolution Act
i. 3 situations where the President can take us to war:
1. Statutory authorization
2. Declaration of war
3. A national emergency created by an attack against the US, its
territories, or its armed forces.
ii. Notify congress within 48 hours of introducing troops into hostilities
iii. If 60 days pass and no declaration of war, President must withdraw troops
iv. What does it mean to declare war? Get together and say war or wage a war?
Recess appointments
a. If Congress is in recess, the President can appoint
b. President can fill any vacancy during intra or intersession breaks, BUT senate gets to
decide if they are in recess or not
i. Restricts Presidents ability to perform
Checks on the President
a. Informal
i. Public Scrutiny
ii. Checks by Congress (is appointment power)
b. Formal (Suing & Prosecuting the President)
i. Civil suits and criminal proceedings and impeachment
ii. Nixon v. Fitzgerald
1. Holding: The President is entitled to absolute immunity from damages
liability predicated on his official acts.
a. RULE: Absolute immunity from damages liability predicated on
his official acts while in office
i. President practicing his discretion
ii. Volume of lawsuits

b.

Why?
i.
ii.
iii.
iv.

IV.

Separation of powers
Unique status
Easy target, distraction from decisions
Still subject to checks, impeachment, press

iii. Clinton v. Jones

1. Holding: The presidents absolute immunity does NOT extend to
unofficial acts.
2. A separation of powers does not require the court to stay all private
actions until he leaves office
a. Balancing powers
i. Judiciary asserting power over president
b. Unlikely to occupy substantial part of presidents time
c. No one is above the law
d. Action was not part of official capacity
c. Impeachment
i. High crimes and misdemeanors
1. Bribery and treason enumerated
a. Other than that it is unclear
2. Political question
ii. 3 attempts
1. Nixon, Clinton, and Johnson
The Separation of Powers (short summary of all the above)
a. President cant make the law: the most important single separation of powers principle to remember is that the
President cannot make the laws. All he can do is to carry out the laws made by Congress.
Example: During the Korean War, Pres. Truman wants to avert a strike in the nations steel mills. He therefore issues
an executive order directing the Sec. of Commerce to seize the mills and operate them under federal direction. The
President does not ask Congress to approve the seizure. Held: the seizure order is an unconstitutional exercise of the
lawmaking authority reserved to Congress. (Youngstown Steel)
i. Line item veto: The principle that the President cant make the laws means that the President cant be
given line item veto. That is, if Congress tries to give the President the right to veto individual portions of
the statute, this will violate the Presentment Clause. (The Presentment Clause says that bills are enacted
into law by being based by both Houses, then being presented to the President and signed by him.) (Clinton
v. City of New York)
ii. Congress acquiescence: But the scope of the Presidents powers may be at least somewhat expanded by
Congress acquiescence to his exercise of power. This CA will never be dispositive, but in a close case, the
fact that Congress acquiesced in the Presidents conduct may be enough to tip the balance, and to convince
the Court that the President is merely carrying out the laws rather than making them.
iii. Implied Powers: Congress powers are expanded by the N&P clause. There is nothing like the N&P for the
President. But the effect is the same, because of the inherent vagueness of the phrase shall take care that
the laws be faithfully executed The list of the Presidents enumerated powers are not exhaustive. The
President has law carrying out power in general
iv. Delegation: Congress may delegate some of its powers to the President or the executive branch. This is
how federal agencies (which are usually part of the executive branch) get the right to formulate regulations
for interpreting and enforcing congressional statutes. If Congress delegates excessively to federal agencies
(by not giving appropriate standards), the delegation can be struck down but this is vary rare
b. War Powers:
i. Cant declare war: The President is the Commander-in-Chief of the armed forces. But only Congress, not
the President, can declare war. The President can commit our armed forces to repel a sudden attack, but he
cannot fight a long-term engagement without a congressional declaration of war
ii. Treaties and Executive Agreements: The President has the authority to enter into a treaty with foreign
nations, but only if two-thirds of the Senate approves. Additionally, the Court has held that the Constitution,
implicitly gives the President, as an adjunct of his foreign affairs power, the right to enter in an executive
agreement with foreign nations, without express approval from Congress first
c. Appointment and removal of executive personnel: The President, not Congress, is given to appoint federal
executive officers. This is the appointment clause
i. Text of Clause: The Clause (Article II, 2) says that the President shall nominate and by and with the
Advice and Consent of the Senate, shall appoint ambassadors.judges of the Supreme Court and all other
officers of the United States. The Clause then goes on to provide that Congress may by Law vest the
Appointment of inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the
Heads of Department

ii. Interpretations; The Clause means, in the most general sense, that Congress may not appoint executivebranch and judicial-branch federal officials
iii. Top-level (principal) officers: In the case of principle officers of the United States (top-level
officers), the President nominates a candidate, and the Senate must, as a constitutional matter, decide
whether or not to approve the nomination. As to such officers, Congress may not take away or limit the
Presidents right of appointment
1. Ex: Cabinet members are principal executive branch officers and Congress may not appoint
them
iv. Lower-level (inferior) officers: In the case of lower-level federal officials, Congress does have the right
to limit the Presidents right of appointment
1. Three possible appointers: So although Congress cannot itself make appointments of inferior
officers, it has the right to choose, on a position-by-position basis, to confer the power of
appointment on any of the following:
a. The president
b. The federal judiciary
c. heads of departments
v. Congress cant appoint federal executive: The most important thing to remember is that Congress has no
power to directly appoint federal executive officers, whether theyre principal or lower-level
Example: Congress establishes the Federal Election Commission, which enforces federal campaigns laws.
The Commission has the power to bring civil actions against violators. The statute establishing the
Commission allows Congress to appoint a majority of the Commissions members. Held: the tasks
performed by the Commission are primarily executive and its members are officers of the United States.
Therefore, the members must be appointed by the President, not Congress (Bukley v. Valeo)
vi. Removal of Federal Officers: The power to remove federal officers similarly resides with the President
1. General rule: The President may remove any presidential or executive-branch appointee without
cause
2. Principal officers: Thus Congress may not limit in any way the Presidents right to remove a
principal officer
a. Ex: The president may remove the Sec. of State at any time, without cause, Congress
may not limit this right by saying for example that Pres can only remove for good
cause
3. Inferior and Independent: Congress has more freedom to limit the way that both inferior and
independent officers. Congress may say that they can only be removed for good cause
a. Independent Agency-heads
b. Inferior Officers: Congress is allowed to say that they may only serve a fixed term, and
may be removed only for cause. And that even if the officers a pure executive-branch
employee
i. Example: Congress may say that a Special Prosecutor who is to investigate
possible executive-branch wrongdoing an inferior executive officer may
only be removed by the executive branch for good cause or other inability to
perform his duties (Morrison v. Olson)
d. Legislative and Executive Immunity:
i. Executive Immunity: theres no executive branch immunity expressly written into the Constitution. But
courts have recognized an implied executive immunity based on separation of powers concepts
1. Absolute for the President: the president has absolute immunity from civil liability for his
official acts (Nixon v. Fitzgerald). There is no immunity for the Presidents unofficial acts,
including those he commits before entering office (Clinton v. Jones).
2. Qualified for others: But all other federal officials, including presidential aids, receive only
qualified immunity for their official acts. ( They lose their right if they violate a clearly
established right, whether intentionally or negligently) (Harlow v. Fitzgerald)
ii. Executive Privilege: presidents have a qualified right to refuse to disclose confidential information relating
to their performance of their duties.
1. Outweighed: Since the privilege is qualified, it may be outweighed by other compelling
governmental interests. For instance, the need for the Presidents evidence in a criminal trial will
generally outweigh the Presidents vague need to keep information confidential (US v. Nixon)
UNIT II: FEDERALISM: THE DIVISION OF POWERS BETWEEN STATE AND NATIONAL GOVERNMENTS
I.
Federal Legislative Power (Commerce, Necessary & Proper, Spending)
a. The basic principle of American government is that Congress may act only if there is express or implied authority in
the Constitution
b. Commerce Power
i. Congress primary power outside of spending
ii. Regulation of employment, water, air, shipping, etc.

c.
d.
e.
f.

g.

iii. If defined broadly, expands congressional power

Taxing and Spending
Enact specific legislation
i. Through 13th, 14th, and 15th amendments.
Always ask two questions:
i. Does Congress have the authority under the Constitution to legislate?
ii. If so, does the law violate another constitutional provision or doctrine?
Necessary and Proper Clause
i. McCulloch v. Maryland (1819 MD tried to tax national bank in an attempt to keep it out) defines scope
1. Does Congress have authority under the Constitution to act/establish a bank? (YES)
a. History:
i. One bank already established why an issue now?
ii. No one sued 50 years later and this is the first challenge
b. Rejects state sovereignty argument reasoning
i. The people gave their power to the states
ii. States then gave their power to the federal government
iii. The federal government has the powers that the people give them
c. Flexibility
i. Implied powers
1. Powers give to execute/facilitate enumerated powers
d. Necessary and Proper Clause (useful and desirable) (structural argument)
i. let the end be legitimate, let it be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that end, which are not
prohibited, but consists with letter and spirit of the Constitution, are constitutional
ii. Interprets more broadly; not be be a limiting clause, but it was meant to grant
additional powers beyond those enumerated
iii. Congress can exercise power that is not expressly authorized by the Constitution
because of the N&P clause. The clause gives Congress the power to enact
legislation that is pursuant to the enumerated powers, as long as it is consistent with
the letter and spirit of the constitution.
i. Adding the N&P Clause to implies and enumerated powers broadens Congresss
power to overtake state government Includes implied power and what is
necessary and proper
1. Necessary is generally understood to mean any means
2. If the Constitution meant absolutely necessary, then Congress wouldnt
be able to do anything
2. Can Maryland tax the Federal government? (NO)
a. The power to tax is the power to destroy; the power to create is the power to reserve
i. The states power to destroy is unconstitutional because the federal governments
power to create/preserve it would essentially confer supremacy on the States.
ii. It would be inconsistent to allow one state to tax the federal government
1. By taxing the federal bank, the State would destroy it
3. Summary:
a. Because the creation of the Bank was appropriately related to Congresss legitimate power to
tax, borrow, and regulate interstate commerce, the Bank was constitutional under the N&P
clause
b. Marylands tax, however, violated constitutional sovereignty because it acted as a levy against
all the people in the United States by a state accountable to only some of the people.
Commerce Power
i. Article I, 8: Congress shall have the powerto regulate commerce with foreign nations, and among several
states most powerful of Congresss powers
ii. What is commerce?
1. Courts have argued/varied over times as to what it means
a. Depends on how suspicious we are of the federal powers at the time of the rule
iii. 4 Eras of Commerce Clause Jurisprudence:
1. Early American history until the 1890s
a. Expansive view of the scope of the Commerce Clause
b. Views of John Marshall dominating always seizing power for the courts and the federal
government
2. 1890s-1937
a. Narrower construction of the Commerce Clause, using the 10th Amendment as a limit
b. Popularity of laissez-faire economics and free-market

3.

1937-1995
a. Court expansively defined the scope of the commerce power and not one federal law was
declared unconstitutional as exceeding the scope of Congresss commerce power.
4. 1995a. Court has narrows the scope of the commerce power
iv. 3 questions to consider: what is commerce, what does among the states mean, and does the 10th amendment
matter?
v. National of Ind. Business v. Sebilius
1. Individual mandate: upheld as a tax
a. Commerce Clause: cant regulate inactivity
i. Cant create commerce
1. Cannot force people to engage in commercial activity
2. Must regulate preexisting activity
3. Regulation of an activity cannot regulate inactivity
a. This would substantially broadened congressional authority
and would essentially justify a mandatory purchase to solve
almost any problem
ii. substantially affects commerce: Ginsburg argued that the choice to not buy is an
economic activity that substantially affects and therefore congress can regulate
b. Tax and Spending Upheld under this provision
i. Within tax powers to spend $ on general welfare
ii. The individual mandate is a condition that triggers a tax because it makes going
without insurance just another thing that the government taxes.
iii. Acts like a penalty?
c. Necessary and Proper
i. Congress has power to create necessary predicate to exercise an enumerated power
2. Medicaid Expansion: struck down
a. Basis for Congressional power
i. Spending clause:
1. Congress can offer money and require the states to comply with a condition,
but the states must have a choice of whether or not to accept the offer.
a. There is a difference between pressure and compulsion and
this provision compels the states to act a certain way
2. The court agrees with the states that this is beyond encouragement, but is a
gun to the head because a state that opts out of this expansion stands to
lose all of its Medicaid funding.
3. Cannot be coercive (need all three to be coercive)
a. Entrenched program: states relied on old program
b. So much $$$ that couldnt say no
i. No option
c. Absence of notice/unforeseeable change
4. Conditions on how to use money
a. Must be clear and unambiguous
5. For the general welfare
b. The court agrees with the states that this is beyond encouragement, but is a gun to the head
because a state that opts out of this expansion stands to lost all of its Medicaid funding.
2. Thus states have no real option but to acquiesce Congress can offer money and require the states
to comply with a condition, but the states must have a choice of whether or not to accept the offer
ii. **Takeaways
a. Spending Clause
i. Congress can place conditions on money that it gives to the States
ii. Congress cannot adopt conditions that are coercive
1. The Court focuses on:
a. Threat by Congress to terminate some other independent grant
b. How much money is at stake?
i. Must be significant
c. Nature of the program being threatened
b. Congress can tax
c. Cannot regulate inactivity under the Commerce Clause
i. Necessary and Proper Clause is not an excuse for regulative inactivity
h. Necessary and Proper Clause
i. Comstock (detain prisoners for mental issues that would other wise be released)

1.

i.

Congress possess broad authority to do each thing in the course of carrying into executive the
enumerated power vested by the Constitution may choose any reasonable means necessary
a. Congress can regulate commerce
b. Congress can criminalize
c. Custodian of criminals
d. Rules regarding criminals
e. Rules about release
2. Its the possibility that creates the rational relationship
a. Congress can regulate based solely on what MAY happen
3. Holding: Congress acted properly. The N&P clause grants congress broad authority. Congress is
entitled to large discretion in choosing the particular means to carry out a given enumerated power
all thats required is that Congress chooses a means that is rationally related to the implementation
of some constitutionally-enumerated power. Here, Congress has the power to define federal crimes,
and to run a prison system housing those who commit such crimes.
The Commerce Power
i. Article I 8: states that Congress shall have the power to regulate commerce with foreign nations, and
among the several states most powerful of Congresss powers
1. Struggle with where we define the limits of interstate commerce
a. 4 Eras of Commerce Clause Jurisprudence:
2. Pre-1890s (Gibbons)
a. Commerce more than buying and selling intercourse
b. Among the States
i. Intermingled
ii. Affects more than one state
c. 10th Amendment does not limit power
3. 1890-1937 laissez-faire economics
a. Government intervention in the marketplace is bad for the market
b. Commerce
i. Manufacture, production, transportation, storage, buying, and selling
c. Among the States
i. Streams of commerce but not before entering or after leaving stream
d. 10th Amendment
i. Yes it limits power. The court restrictively defined among the states as
allowing Congress to regulate only when there was s substantial effect on
interstate commerce.
4. 1937-1990
a. Commerce (anything that affects commerce)
i. NLRB v. Jones & Laughlin Steel Corp. (1937)
1. Facts: The National Labor Relations Act created a right of employees to
bargain collectively and prohibited unfair labor practices such as
discrimination against union members and established the National Labor
Relations Board to enforce the law.
a. Jones Steel Corp. was accused of violating the act by engaging
in unfair labor practices by discriminating against members of
the union and by coercing and intimidating its employees to
interfere with their self-organization.
2. Holding: The act is constitutional substantially broadens the definition
of commerce.
a. Anything that affects commerce is commerce this could be
production, etc. Those things that have an effect on, burden or
obstruct commerce.
i. The court holds that production is not
determinative before, production was NOT
considered to be part of commerce.
ii. Payment to employees is no interstate commerce, but
it is an intrastate activity that has an impact on
interstate commerce
b. Among the States
i. Wickard v. Filburn (wheat)

1.

Cumulatively, home-grown wheat has a substantial effect on interstate

commerce and, even though Filburns wheat only had a negligible impact,
Congress can regulate it
2. The cumulative effect of his individual activity would have a cumulative
substantial effect on interstate commerce thus, Congress can regulate.
a. Dramatic expansion of congresss powers
3. So congress can pass a law that regulates purely local activities so long as it
substantially affects interstate commerce.
ii. Heart of Atlanta Motel v. U.S. (1964)
1. Facts: Title II of the Civil Rights Act of 1964 prohibited discrimination by
places of public accommodation. Appellant owns and operates the Heart of
Atlanta Motel. The hotel followed a practice of refusing to rent rooms to
Negroes and it alleged that it intended to continue to do so after the passage
of the Civil Rights Act.
2. Holding: The court upheld the constitutionality of Title II of the Civil
Rights Act.
a. Two Arguments:
i. Stream of Commerce: discrimination as disrupting
the stream of commerce (i.e. travelling from PA to
FL, this disrupts the trip).
ii. Substantial Effect: even though this hotels impact is
minimal, combined with other hotels, this has a
substantial effect.
iii. The court uses this argument.
b. The record of the passage of the Act contains testimony before
Congress of evidence of the burdens that discrimination by
race or color places upon interstate commerce.
i. The people of the U.S. have become increasingly
mobile, traveling from state to state.
ii. Negroes have often been unable to obtain
accommodations.
iii. Thus discrimination impedes the interstate commerce
of individuals.
c. ***Substantial Effect: even though this hotels impact is
minimal, combined with other hotels, this has a substantial
effect.
i. It did not matter if the hotel was of purely local
character because if interstate commerce feels the
pinch, it does not matter how local the operation
which applies the squeeze.
ii. Congress can prohibit discrimination in hotel lodging
under the commerce clause.
d. Motive is irrelevant SC examining Congress power to pass
the act, not the impetus behind it.
iii. Katzenbach v. McClung (1964)
1. Facts: In this case, the court considers the application of Title II of the
Civil Rights Act of 1964 to restaurants where a substantial portion of
the food served has moved in commerce. Ollies Barbecue is a familyowned restaurant in Birmingham, AL. The restaurant is located on a
state highway 11 blocks from an interstate and near railroad and bus
stations.
a. 46% of the meat that is purchased annually comes from out of
state.
2. Holding: The court upheld the Civil Rights Act and its application to a
small business.
a. The court found that Congress rationally had concluded that
discrimination by restaurants cumulatively had an impact on
interstate commerce.
i. Established restaurants sold less goods because of the
discrimination and that interstate travel was
obstructed by itthus many businesses refrained
from establishing there.

a.

c.
5.

ii. The pork comes from out of state

iii. The segregation may hurt Ollie, but the integration
will increase the economy because the pork industry
will sell more pork
iv. The stream of commerce doesnt end until the BBQ
is consumed
***Substantial Effect: Even though the restaurants
contribution to commerce was insignificant, this contribution
taken together with many others will have a greater,
detrimental impact.
i. Through integration, we are increasing the national
economy.
ii. Even if the restaurants activity is local, it can still be
regulated by Congress if it exerts a substantial
economic effect on interstate commerce.

10th Amendment
i. Doesnt limit

1990s
i. Court has narrowed the scope of the commerce power
ii. Commerce and among the states have combined
1. So what is commerce then?
a. Channels, Instrumentalities, Activities that substantially affect
interstate commerce
i. Economic v. noneconomic
ii. Activity v. inactivity
b.

c.

US v. Lopez
i. Thing regulated needs to be an economic activity:
1. Channels of interstate commerce
2. Instrumentalities or persons or things in interstate commerce
a. Even though threat may be from intrastate
3. Substantial affect on interstate commerce
a. ***The court draws the distinction between commercial and
non-commercial activity i.e. Wickard and growing wheat
was economic, but carrying guns is not.
ii. Focused on the nature of the thing
1. It needs to be either 1) economic in nature or 2) an essential part of a larger
regulation of economic activity
iii. Focused on the relationship to interstate commerce
1. A mere effect will must sustain an exercise of power. There must be a
substantial effect.
iv. A 12th grade Texas student was arrested and charged with firearm possession on
school premises which is against the GFSZA
1. There was no evidence that the fun nor any student had recently moved
through interstate commerce
a. So it did not meet second prong
2. Dissent argued that education has a substantial relation to the economy
a. The majority didnt agree
v. Congress tried to regulate ALL guns. Not just guns in interstate commerce.
vi. Distinguished from Sebilius, in that Sebellius regulated inactivity, not a noneconomic activity
vii. In this case, the presence of a gun near a school was a non-commercial activity and
did not substantially affect interstate commerce and thus the law is unconstitutional.
1. ASK YOURSELF IF IT IS RATIONALLY RELATED AFTER?!?!
Gonzales v. Raich
i. Can regulate the 1% of homegrown weed for medicinal purposes (noneconomic
activity) because it would impede Congress fulfilling its power over the 99% in
interstate commerce
1. Commerce clause plus N&P
2. What they are growing is an item of commerce (by its nature)
a. Drugs normally travel in interstate commerce all the time

ii. Congress may regulate even non-economic, local activity if that regulation is
necessarily part of a more general regulation of interstate commerce.
iii. Dissent says this eviscerated Lopez, but Sebilius shows us its not

j.

10th Amendment
d. New York v. US
i. Facts: A federal radioactive waste act compelled states to dispose of the waste and if
they did not, the state would then take title to the waste and be obligated to take
possession of the waste, and would be liable for any damages incurred from such
failure (take title provision)
ii. Rule Congress can ENCOURAGE states to act, but they may not COMPEL the
states to act.
1. Interferes with the democratic process where the federal gov compels states
to regulate, the accountability of both state and fed gov is diminished
iii. Commandeering the states
1. Fed. Gov. actions that force the states to take action they would not
otherwise take
2. This was commandeering the states legislative process
iv. Can create incentives
1. Congress could have prohibited the transfer interstate of radioactive waste
e. Printz v. US
i. Cannot commandeer state official to do federal requirements
1. Required the chief local law enforcement officer of each local jurisdiction
in the country to conduct background checks
ii. Extends the holding in New York v. US that the feds cant commandeer the states to
also include that they cannot commandeer state agencies
f. Reno v. Condon?
i. Law prohibited states from selling DMV info
iii. Rule: The law is constitutional as an exercise of Congresss commerce power
because Congress found that many states sell this personal information to
individuals and businesses and that these sales generate significant revenues for
the states.
1. The law is a prohibition of conduct, not an affirmative mandate as in
New York v. U.S. and Printz.
a. Congress can prohibit activity, but just cannot compel it
distinct from previous commandeering cases.
(Summary) Commerce Clause
i. Broad categories that Congress is constitutionally allowed to regulate commerce:
1. Channels
2. Instrumentalities
a. Ex: trucks
3. Articles moving in interstate Commerce
a. Ex: the states and private parties keep information about the ID of drivers. Since this
information gets exchanged across state lines, the information is an article in interstate
commerce and Congress may regulate how its used (reno v. condon)
4. Substantially affecting commerce: Congress may regulate activities having a substantial affect on
interstate commerce (US v. Lopez). Rules that apply:
a. Activity is Commercial: If the activity itself is arguably commercial then it doesnt seem
to matter whether the particular instance of the activity directly affects interstate commerce,
as long as the instance is part of the general class of activities that, collectively, substantially
affects interstate commerce. So even purely intrastate activities can be regulated if theyre
directly commercial. This is especially true where Congress regulates the intrastate
commercial activities as part of a broad scheme to regulate interstate commerce in the same
way
Example: In the federal Controlled Substances Act, Congress outlaws all distribution and
possession of marijuana. California then makes it legal under state law for a CA citizen to
cultivate marijuana for her own personal use. The US seeks to prevent , from CA, from
taking advantage of this state-law loophole. asserts that the application of the CSA to bar
from cultivating is beyond Congress Commerce Clause powers.
Held: Congress Commerce powers extend to this regulation of s personal cultivation and
use. Marijuana is a commercial commodity and the CSA is regulating interstate commerce in
that commodity. Congress reasonably freed that if it exempted personal use and thus
intrastate cultivation and use of marijuana for medical purposes, some of the marijuana so

k.

cultivated would be illegally drawn into the interstate market, jeopardizing Congress overall
scheme of banning the drug. So the private cultivation of marijuana by people like , even
though purely intrastate activity, falls within Congress Commerce power. (Gonzalez v.
Raich)
b. Activity is not commercial: But if the activity itself is NOT commercial, then there will
apparently have to be a pretty obvious connection between the activity and interstate
commerce
Example: Congress makes it a federal crime to possess a firearm in or near a school. The act
applies even if the particular gun never move or affected interstate commerce.
Held: Congress went beyond its commerce power. To fall within the Commerce power, the
activity being regulated must have a substantial affect on interstate commerce. The link
between gun-possession in a school and interstate commerce is too tenuous to qualify as a
substantial effect because if it deed, there would be essentially no limit to Congress
Commerce power.
c. Little deference to Congress: The Court wont give much deference to the fact that Congress
believed that the activity has the requisite substantial effect on interstate commerce. The
court will basically decide this issue for itself from scratch. It certainly will no longer be
enough that Congress has a rational basis for believing that the require effect existed the
effect must in fact exist to the Courts own independent satisfaction (Lopez)
d. Forcing someone to buy or sell a product: Congress may not use its Commerce powers to
require that a person not presently in the marketplace for a particular type of product buy that
product. Thats true even if many individuals combined failure to purchase the product
significantly affects interstate commerce in the product (Sebelius)
i. Health insurance: Congress cant use its Commerce powers to require otherwise
uninsured citizens to either purchase health insure or pay a penalty, even though the
uninsurable failure to have insurance has a substantial effect on the interstate health
insurance marker by increasing everyone elses insurance (Sebelius) individual
mandate unconstitutional
ii. The Tenth Amendment as a limit on Congress power: the 10th amendment provides that the powers not
delegated to the US by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the People. This amendment today seems to place a small but possible significant limit on
Congress ability to use its commerce power to regulate the states.
1. Generally applicable law: that affects the states probably wont bring the 10th amendment into play
2. Use of states law making mechanisms: The 10th A. does prevent Congress from interfering in
certain ways with a states law-making processes. Congress may not simply commandeer the
legislative processes of the states by directly compelling them to enact and enforce a federal
regulatory program (NY v. US)
Example: Congress provides that each state must arrange for the disposal of toxic waste generated
within its borders, or else be deemed to take title to the waste and thereby become liable for the
tort damages to ensue. Held. The congressional scheme violates the 10th amendment. Congress may
not force a state to enact and enforce a federal regulatory program, and this is in effect what
Congress tried to do here.
3. Administrative Actions: Similarly, Congress may not compel a local governments executive
branch to perform functions, even ones that are easy to do and involve no discretion
Example: Congress cant compel sheriffs to perform background checks on application for handgun
permits (Printz v. US)
Taxing & Spending Power
i. What does general welfare mean? 2 philosophies (US v. Butler)
1. Hamilton
a. Congress can tax and spend for any purpose it believed served the general welfare, so long as
Congress did not violate another constitutional provision
2. Madison
a. Wanted small federal government
b. Congresss power for taxing and spending is limited to carrying out the other powers
specifically granted to Congress in Article I
ii. For what purposes may Congress Tax and Spend?
1. U.S. v. Butler
a. Facts: The Agricultural Adjustment Act of 1933 sought to stabilize production in agriculture
by offering subsidies to farmers to limit their crops. By restricting the supply of agricultural
products, Congress sought to ensure a fair price and thus to encourage agricultural production.
b. Rule: Congress may tax and apportion for the general welfare, but Congress may not use
taxation as a means to exercise powers retained by the States.

Holding: violated the 10th Amendment

i. Madisons view: see above.
ii. Hamiltons view: see above.
1. This has never been overturned
d. Congress is not limited in spending to achieve the specific powers granted in Article I. Rather,
Congress may spend in ways it believes would serve the general welfare, so long as it does
not violate other constitutional provisions
e. Congress can withhold funds to persuade states as long as:
i. In pursuit of the general welfare
1. Everything always falls under this
ii. The condition is clear, unambiguous
iii. The condition must be related to a federal interest
iv. Must not violate other constitutional provisions/non-coercive
2. Steward Machine Co. v. Davis
a. Power to tax is comprehensive do whatever they want
i. Tax must be uniformly applied
ii. 16th amendment allows Congress to tax
1. Can tax income
b. Natural rights are subject to taxation
1. Employment for gain is a natural and inalienable right, not a privilege
c. In order for a tax to be unconstitutional, you have to show that the tax being levied and the
credit are being used together are coercive, AND impair the autonomy of the states
3. Sabri v. US (offered bribes to councilman that received fed. Funds)
a. If spending is within the spending clause, then criminalizing activities can be valid under the
N&P clause
b. Because money is fungible (being of such nature or kind as to be exchangeable) when you
bride a public official, that is someone connected to federal funding, then you are connected
to the Federal Bribing Act
i. Under the N&P, Congress has the power to see that taxpayer dollars appointed
under the Spending Clause are used for the general welfare and not siphoned off by
corrupt individuals
c. Tax and Spending + N&P = can criminalize activity
iii. Does the 10th amendment (state reserved rights) limit tax and spending clause?
1. Butler No.
iv. What conditions may congress place on the funds?
1. South Dakota v. Dole test Congress may withhold funds if:
a. Pursuit of general welfare anything goes
b. Conditions unambiguous and clear states need to know the consequences
c. Conditions related to federal interest
i. Drinking and driving too remote
ii. Highway funds on a states willingness to pass a restrictive abortion law too
remote
d. Not coercive (Sebilus)
i. Must be a choice and constitutional
ii. Cant be so advantageous that cant turn it down
e. **Not violations of constitutional provisions
i. cant deny a person a benefit based on infringes on constitutional right
1. cant buy someones rights
ii. Creates a buffer between Congress and the Constitution
f. Holding: minimum drinking age is not related to highway construction
i. Selling liquor has nothing to do with transportation department
ii. Not within the federal interest
h. Power under the Post-Civil War amendments (Reconstruction Amendments)
iii. 3 important amendments were added to the Constitution after the Civil War:
1. 13th Amendment: prohibits slavery and involuntary servitude, except as punishment for a crime.
a. Provides that Congress shall have power to enforce this article by appropriate legislation.
2. 14th Amendment: provides that all persons born or naturalized in the U.S. are citizens and that no state may
deprive any person of life, liberty, or property without due process of law or deny any person of equal
protection of the laws.
3. 15th Amendment: the right to vote shall not be denied on account of race, color, or previous condition of
servitude.
iv. Who Can Congress Regulate?
c.

14th and 15th Amendments only States

13th Amendment some private individuals and States
Civil Rights Cases (1883)
a. Facts: Involved the Civil Rights Act of 1875 which broadly prohibited private racial discrimination by
hotels, restaurants, transportation, and other public accommodations.
b. Holding: The court held that Congress may regulate only state and local government actions, not
private conduct greatly limited Congresss power under the Reconstruction Amendments.
i. Very narrow scope Congress does not have the right to regulate private conduct, only
private conduct that prohibits people from being or owning slaves.
1. Subsequent courts have overturned this.
iv. The court also broadly declared that the 14th Amendment only applies to government action
and that it cannot be used by Congress to regulate private behavior.
1. This is still good law today.
c. ***Now, however, under the 13th Amendment, Congress has the power to prohibit private racial
discrimination.
4. U.S. v. Morrison (2000)
a. Facts: A woman who, while a freshman at Virginia Tech, was allegedly raped by football players sued
the players under the civil remedies provision of the Violence Against Women Act.
b. Holding: The court reaffirmed the Civil Rights Cases and held that the law exceeded the commerce
power because Congress cannot regulate noneconomic activity based on a cumulative impact on
interstate commerce.
i. The court held that the law is unconstitutional.
1. 14th Amendment Congress may only regulate state and local governments, not
private conduct.
a. The civil damages provision is not directed at any state, but at individuals
who have committed criminal acts motivated by gender bias.
c. Breyer, dissenting: the commerce clause provides an adequate basis to the Violence Against Women
Act and the constitutionality of the act should be upheld under the necessary and proper exercise of
legislative power granted to Congress by that clause.
v. What is the Scope of Congress Power?
1. 2 Different Approaches: debate over how to interpret the text that empowers Congress to enforce
a. Narrow: accords Congress authority to prevent or provide remedies for violations of rights recognized
by the Supreme Court.
i. Congress cannot expand the scope of rights or provide additional rights.
b. Broad: Congress has the authority to interpret the 14th Amendment to expand the scope of rights or
even to create new rights.
i. Congress may create rights by statute where the court has not found them in the Constitution,
but Congress cannot dilute or diminish constitutional rights.
2. Katzenbach v. Morgan & Morgan (1966) BROAD
a. Facts: This case concerns the constitutionality of a provision of the Voting Rights Act of 1965, which
provides that no person who has completed 6th grade in a Puerto Rican school, where instruction was in
Spanish, shall be denied the right to vote because of failing an English literacy requirement.
i. This provision then prohibited the enforcement of the election laws of NY, requiring an ability
to read and write English as a condition of voting.
d. Holding: The court upheld the provision in the Voting Rights Act as a proper exercise of powers
granted to Congress under 5 of the 14th Amendment.
i. The law is constitutional as a remedy for discrimination: Congress could have concluded that
granting Puerto Ricans the right to vote would empower them and help eliminate
discrimination against them.
1. Making sure a class of people has access to vote prevents discrimination of that
group
2. Not a per se violation of the 15th Amendment
a. Over-cures the problem
b. Even if the practice itself is not a per se violation, Congress can pass
legislation that over cures the problem
ii. The court also held that Congress could find that the literacy test denied equal protection.
1. This holding accords Congress the authority to define the meaning of the 14th
Amendment broad view
a. The court spoke broadly of Congresss 5 power and argued that the
draftsmen of the Constitution sought to grant Congress the same broad
powers in 5 as those expressed in the necessary and proper clause.
b. When Congress is exercising their 5 power under the 14th Amendment
1.
2.
3.

i.

i. Is the legislation appropriate?

1. Yes, voting is an equal protection issue.
ii. Who gets to decide if that law is appropriate?
1. The court? Congress? The states?
a. Congress has the authority to define the meaning of the 14th Amendment
i. Congress has provided enough evidence that they are exercising
their 5 power.
3. City of Boerne v. Flores (1997) NARROW
a. Facts: The Religious Freedom Restoration Act was adopted in 1993 to overturn a recent Supreme
Court decision that had narrowly interpreted the free exercise clause of the 1st Amendment. The act
asserted that a state must show a compelling interest when infringing on someones religious freedom.
i. A church in Texas was prevented from constructing a new facility because its building was
classified as a historic landmark. The church then sued under the act and the city challenged
the constitutionality of the law
b. Holding: The court declared the Religious Freedom Restoration Act unconstitutional as exceeding the
scope of Congresss 5 powers
i. Court has already told Congress what violates the 14th Amendment
1. Generally applicable laws do not violate the 14th Amendment
ii. Congress is limited to enacting laws that prevent or remedy violations of rights already
recognized by the Supreme Court and these must be narrowly tailored to the constitutional
violation Congress may not expand the scope of rights or create new rights.
1. ***Rational Basis Standard
a. There must be a congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end.
i. Congruent= attempt to remedy rights already recognized by the
SC
ii. Congress power under section five is remedial and it must be
targeted to go after a harm or an injury that is going on there
must be a constitutional harm that they are trying to fix, otherwise
it is not congruent
iii. Proportional=narrowly tailored to remedy the harm
iv. No evidence that there is a constitutional harm
v. Congress shall have power to enforce remedial legislation must
be an actual harm
2. The court held that under 5 of the 14th Amendment, Congress may not create new
rights or expand the scope of rights Congress is limited to laws that prevent or
remedy violations of rights recognized by the Supreme Court and these must be
narrowly tailored to the constitutional violation.
a. 5 gives Congress the power to enact laws to enforce the provisions of the
14th Amendment and legislation that alters the meaning of the Free Exercise
Clause cannot be said to be enforcing the clause.
i. Congress has been given the power to enforce, not the power to
determine what constitutes a constitutional violation.
b. Goes back to Katzenbach and how to define enforce.
3. The act impermissibly expanded the scope of rights and was not proportionate or
congruent as a preventive or remedial measure.
a. The act is too broad and sweeping.
i. Under the act, any law is subject to challenge at any time by any
individual who alleges a substantial burden on his or her free
exercise of religion.
ii. Also the act prohibits much that would not violate the constitution.
4. The Court will tell Congress what a violation is
a. Congress cannot make up for itself what a violation is
b. Congress has no authority to regulate things that the Court has said are fine
under the 14th Amendment
4. Is there some activity that violates the Constitution?
a. If no Congress cannot regulate under the 13th, 14th, or 15th Amendments
b. If yes is it a congruent and proportional response?
Congresss Power to Authorize Suits Against State Governments 11th Amendment
vi. Under the 11th amendment, states cannot be sued in federal court without their consent by their own citizens or citizens
of other states
1. 3 ways to get around this limitation:

States may waive their 11th amendment immunity and may consent to be sued in federal courts
i. MUST BE EXPLICIT
ii. Sometimes a state will do this because Congress uses their spending power to get the states to
consent if you dont consent, no money, etc.
iii. Spending Clause legislation Congress incorporates a clause for suit if the state is receiving
federal funds
b. Sue the State officer instead
i. Injunction
c. Congress under its 14th amendment power can authorize suits against the state governments
vii. ***Congress may authorize suits against states pursuant ONLY to 5 of the 14th Amendment
1. Boerne standard
a. Is there a constitutional violation to be remedied?
b. If yes, is the response proportional and congruent to the constitutional violation?
2. What evidence is needed?
a. Must be substantial
b. Must be against state entities
c. A widespread pattern of constitutional violations
i. Seminole Tribe of Florida v. Florida (1996)
1. Facts: The Indian Gaming Regulatory Act imposes on the states a duty to negotiate
in good faith with an Indian tribe toward the formation of an agreement and
authorizes a tribe to bring suit in federal court against a state in order to compel
performance of that duty.
a. The Seminole Tribe of FL is suing the State of FL for refusing to enter into
negotiation for the inclusion of certain gaming activities in a compact, thus
violating the requirement of good faith negotiation.
2. Holding: No, Congress can only authorize suits against state governments, and
override the 11th Amendment, when it acts pursuant to 5 of the 14th Amendment.
a. Acting under the commerce clause and not the 14th Amendment
b. Overturned Pennsylvania v. Union Gas Co. (1989)
i. The Supreme Court held that Congress may override the 11th
Amendment and authorize suits against state governments pursuant
to any of its constitutional powers, so long as the law in its text
expressly authorizes such suits.
ii. Held that this was an unprecedented expansion of Congresss
power to authorize suits against state governments.
ii. 2 part test:
1. Did Congress unequivocally express its intent to abrogate the states immunity?
a. In this case, Congresss intent was unmistakably clear of its intent to
abrogate.
2. Did Congress act pursuant to a valid exercise of powers?
a. Was the act in question passed pursuant to a constitutional provision
granting Congress the power to abrogate?
i. Congress only has the authority to abrogate under 2 provisions of
the Constitution: 1 and 5 of the 14th Amendment.
viii. Fitzpatrick v. Bitzer (1976)
1. Facts: In Title VII of the Civil Rights Act of 1964, Congress authorized federal courts to award money damages
to private individuals suing state governments found to have subjected that person to employment
discrimination.
2. Holding: the court held that state governments may be sued for violating Title VII of the Civil Rights Act of
1964, which prevents employment discrimination based on race, gender, and religion.
a. RULE: Congress can authorize suits against state governments or state officials if it acts pursuant to
5 of the 14th Amendment.
i. The 14th Amendment followed the 11th Amendment and can thus modify it.
1. Also the 14th Amendment was intended as a limit on state power and when Congress
acts pursuant to 5, it is exercising its legislative authority.
ix. Cases Denying Congress Authority to Act Under 5 to Authorize Suits Against State Governments
1. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank and U.S. (1999)
a. Facts: College Savings Bank, a NJ company, devised a system, which it patented, for students to use to
save money to later pay for their college education. Florida Prepaid copied this system for use by FL
residents to save money to attend FL schools.
i. College Savings Bank sued FL Prepaid for copyright infringement.
a.

1.

2.

3.

By the time College Savings Bank filed suit, Congress had amended the patent laws
to authorize suits against state governments for patent infringement.
a. Florida Prepaid argues that this amendment was an unconstitutional attempt
by Congress to abrogate state sovereign immunity.
b. Holding: The court held that Congresss amendment to the patent laws allowing suits against state
governments was not a valid exercise of power under 5 of the 14th Amendment because the
authorization of suits was not proportionate or congruent to remedy constitutional violations.
i. The court applied the 2 part test from Seminole.
ii. The amendment did not respond to history of widespread and persisting deprivation of
constitutional rights and there was no pattern of such constitutional violations by the states.
1. The court follows Seminole Tribe and City of Boerne.
c. Stevens, dissenting: The amendments to the patent law were an appropriate exercise of Congresss
power under 5 of the 14th Amendment to prevent state deprivations of property without due process
of law.
i. This court has never before mandated that Congress must find widespread and persisting
deprivation of constitutional rights in order to employ its 5 authority.
Kimel v. Florida Board of Regents (2000)
a. Facts: The Age Discrimination in Employment Act of 1967 (ADEA) makes it unlawful for an
employer to discriminate against an individual because of their age.
b. Holding: The court concluded that the ADEA is an express authorization of suit against the states but
that the ADEA is not a valid exercise of Congresss power pursuant to 5 of the 14th Amendment.
i. Applies the congruence and proportionality test.
1. The burdens the ADEA imposes on state and local governments are
disproportionate to any unconstitutional behavior that might exist.
a. There is not a history of purposeful discrimination based on age and states
may discriminate based on age if the age classification is rationally related
to a legitimate state interest old age is not a discrete and insular minority
because all persons will experience it.
i. Unwarranted response to an inconsequential problem.
ii. Not remedying constitutional violations
iii. Age discrimination is not prevalent and doesnt justify Congress
action
b. The ADEA prohibits a broader range of practices than would likely be held
unconstitutional.
i. Thus, the broad prohibition of age discrimination in the ADEA
exceeds the scope of Congresss power.
ii. Victims of age discrimination can find recourse under state law in state courts.
iii. OConnors 2-part test to determine whether an act of Congress abrogates 11th Amendment
immunity:
1. Whether Congress unequivocally expressed its intent to authorize suits against the
States
2. Whether Congress acted pursuant to a valid grant of constitutional authority
c. Stevens, dissenting: Congresss power to authorize federal remedies against state agencies that violate
federal statutory obligations is coextensive with its power to impose those obligations on states in the
first place.
i. The framers did not intend for the judicial branch to be the constitutional guardian of state
immunity.
1. Also, the Constitution does not state that state sovereign immunity limits Congresss
power to authorize private parties, as well as federal agencies, to enforce federal law
against the states.
ii. 11th Amendment: does not support the courts view only places a textual limitation on the
diversity jurisdiction of the federal courts.
Board of Trustees, University of Alabama v. Garrett (2001)
a. Facts: Plaintiff Patricia Garrett was employed as the Director of Nursing for the University of AL. She
was diagnosed with breast cancer and had to undergo surgery and treatment, When she returned to
work, her supervisor told her that she would have to give up her director position and she then
transferred to another, lower paying position.
i. Title I of the ADA prohibits employment discrimination against the disabled and requires
reasonable accommodation for disabilities by employers.
b. Holding: No, state governments may not be sued for violating Title I of the ADA.
i. The ADA was a substantial expansion of individual rights compared to the Constitution.

1.

States are not required by the Equal Protection Clause to make special
accommodations for the disabled if there is a rational basis for their actions toward
such individuals.
2. Also, the legislative record failed to show that Congress identified a pattern of
irrational state discrimination in employment against the disabled.
a. Its requirement for reasonable accommodation of disabilities is significantly
greater than the Constitution requires.
i. Thus Title I is not proportionate or congruent to preventing
and remedying constitutional violations.
c. Breyer, dissenting: attached a 39-page appendix to his dissent where he listed the numerous
references in the legislative history to government discrimination against the disabled.
x. Congressional Power and Heightened Scrutiny congresss greater authority to legislate concerning types of
discrimination and rights that receive heightened security
1. Heightened Scrutiny of state action (makes plaintiffs case easier to provecourts apply less scrutiny of the
statute) because most of the time, discrimination of these classes is a constitutional violation
a. 4 Suspect Classes
i. Religion
ii. Race
iii. Gender (intermediate scrutiny)
iv. National Origin
b. Nevada Department of Human Resources v. Hibbs (2003)
i. Facts: The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to take
up to 12 work weeks of unpaid leave annually for serious health conditions of the employees
spouse, child, or parent.
1. Respondent Hibbs requested leave under the FMLA to care for his sick wife and the
Department of Human Resources granted his request and allowed him to take 12
weeks off intermittently between May and December.
a. Hibbs did so until August, when he did not return.
i. Hibbs was fired from his position at the Nevada Department when,
after he was informed that he exhausted his FMLA leave and no
more leave would be granted, he did not report back to work on the
designated date.
ii. Holding: Because the FMLA aims to protect the right to be free from gender-based
discrimination, statutory classifications that distinguish between males and females are
subject to heightened scrutiny the court thus applies less scrutiny
1. For a gender-based classification to withstand such scrutiny, the discrimination must
be substantially related to achieving a substantial government purpose.
a. The FMLA stands under the heightened scrutiny because:
i. Long and extensive history of sex discrimination chronicled in the
legislative record.
ii. Existence of differential leave policies for men and women based
on sex-role stereotypes.
iii. State laws that are not facially discriminatory were applied in
discriminatory ways.
2. Also, the family-leave provision is congruent and proportional to the target
violation by setting a minimum standard of family leave for all eligible employees.
3. Eligible employees are free to recover money damages by suit against an employer,
including the State employers, who interfere with or prevent or refuse to
acknowledge his rights under the family-care provision of the FMLA
4. Are there constitutional violations being remedied? Yes
a. When Congress passed the FMLA, it had evidence showing that there was a
strong gender-based bias in the granting of leave benefits because of gender
stereotyping
i. State laws and policies were often discriminatory, and even if they
were not, they were administered in a gender-biased manner
b. The past lengthy record of State discrimination in giving its employees
family leave benefits was so strong as to justify the instant enactment of a
law to remedy the situation
c. Tennessee v. Lane (2004)
i. Facts: Lane was a criminal defendant who was disabled. He alleged that he was compelled to
appear to answer to criminal charges on the 2nd floor of a courthouse that had no elevator. He
claims that he crawled up 2 flights of stairs to get to the courtroom.

1.

When Lane returned to the courthouse for another hearing, he refused to crawl again
or to be carried by officers and was arrested for failure to appear.
a. Lane sued pursuant to Title II of the ADA which prohibits state and local
governments from discriminating against people with disabilities in
government programs, services, and activities.
ii. Holding: Title II of the ADA is constitutional. The court emphasizes the fundamental right of
access to the courts this receives heightened scrutiny.
1. Congress has wider latitude to legislate under 5 when dealing with a claim that
receives heightened judicial scrutiny.
2. The Congressional record conveys a history and pattern of unequal treatment.
a. This title was enacted because of a systematic and widespread system of
discrimination against disabled persons in state services and programs
i. This discrimination amounted in many cases to depriving disabled
persons of their fundamental rights
b. Thus, Title IIs requirement of program accessibility is congruent and
proportional to its object of enforcing the right of access to the courts.
c. The remedy is proportional because it is limited and only requires states to
take reasonable measures to remove barriers to accessibility.
d. Congress has the authority to enforce the right guaranteed under the
Constitution
3. What is the difference between this case and Garrett?
a. Lane is not just alleging discrimination for his disability, but he is also
alleging access to justice this is a fundamental right that is being
infringed upon.
i. Thus, this deserves heightened scrutiny.
II.

State Authority
a. Preemption
i. Federal law is supreme
1. Preemption: when law passed by a higher authority takes precedence over a law passed by a lower
one
ii. Steps:
1. Analyze congresss intent based on statute
2. Analyze state statute based on congressional intent
iii. Congress has acted:
1. Types:
a. Express (Lorillard v. Reilly)
i. Statute itself expressly preempts state law.
b. Implied
i. Conflict: (Florida Lime & Avocado)
1. Where there is a conflict between state and federal law compliance with
state and fed law is a physical impossibility
ii. Frustration of federal goals: (Pacific Gas & Electric)
1. If state law impeded the achievement of a federal objective
iii. Occupied field (Hines v. Davidowitz)
1. The federal law and regulation is so pervasive as to make reasonable the
inference that Congress left no room for the States to supplement
c. **All are based on Congressional intent have to determine the intent to determine whether
there is a conflict, frustration of federal goals, etc.
iv. Congress has not acted
1. Dormant Commerce Clause
a. State and local laws are unconstitutional if they place an undue burden on interstate
commerce
i. Not in the Constitution
2. Privilege and Immunities Clause of Article IV
a. The citizens of each state shall be entitled to all privileges and immunities of citizens in the
several states
i. Limits the ability of states to discriminate against out-of-staters with regard to
constitutional rights or important economic activities
v. Express preemption
1. Expressly states
2. Lorillard Tobacco Co. v. Reilly (ban on tobacco ads & on kids level on site stands)
a. Figure out what Congress preempted and compare the statutes

b. Rule: The FCLAA expressly preempts state regulation of outdoor and point-of-sale cigarette
advertising.
c. Issue: Did congress expressly preempt state regulation of outdoor and point-of-sale cigarette
advertising by unequivocally prohibiting such regulation by the states?
d. Holding: Yes, Congress intended to bar state regulation in this area even if concern for
smoking and health motivate he regulations. Additionally, the MA regulations are preempted
be the asserted attempt to regulate the location, and not the content, of cigarette advertising
has no foundation in the FCLAA.
i. The federal statute preempts state law
ii. What was Congress intent?
1. Congress is trying to protect health and wellness
iii. Is the MA statute about health concerns?
1. MA is limiting advertisements due to health concerns for children
vi. Implied Preemption
1. What does the statute pre-empt?
a. Conflict Fed preempts state law
i. Florida Lime & Avocado
1. State standard stricter than federal
a. Was federal standard INTENDED as a floor or ceiling
i. If it imposes minimum standard, then state can set
higher standard
ii. If fed imposes ceiling, then the state standard is preempted
b. Environmental laws have been held to be minimum standards,
therefore, states can set stricter standards
i. Not in conflict because can comply with both
b. Frustrating federal govs ability
i. Inconsistent
ii. Pacific Gas & Electric
1. Determine congressional intent AND
2. Characterization of states goal
a. No preemption of CA law that prohibited the construction of
nuclear plants until that was satisfied cost concerns and
consumer needs
i. The specific law operated in specific area that
Congress had not touched
3. Feds aimed at ensuring they are safe.
a. CA said the main purpose of their statute was economics and
not safetythus this law did not interfere with the federal
objective.
4. Although the primary purpose of the Act was to promote nuclear power, that
is not supposed to be accomplished at all costs.
c. Occupies the field.
i. Hines, Secretary of Labor & Industry of PA v. Davidowitz?
1. Preemption if there is a clear congressional intent to have federal law
occupy a particular area
a. i.e. Immigration law
2. The state law in no way can interfere with the federal law or its
implementation
a. Like requiring more than the federal law
3. Can be found in the absence of express preemption
ii. Arizona v. US?
1. Only part that isnt struck down is the part not in effect yet. Immigration
law case.
i. Basically if immigration, state law will be preempted
UNIT III: THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF CIVIL RIGHTS AND LIBERTIES
I.
Application of the Bill of Rights to the States
a. What protection did original Constitution provide?
i. Habeas corpus
ii. Ex post facto laws
iii. State trials by jury
iv. Slavery

II.

v. Contract rights
b. Bill of Rights
i. Applies only to the federal government
1. States can encroach upon your rights HOWEVER
2. 14th amendment changes everything
a. applies to states Changes the scope of the Constitution
b. no state shall
c. Reframes the Constitution with regard to individual rights
i. Does not change the Commerce Clause
c. Why didnt the Constitution have a lot of individual rights?
i. Framers didnt think government would violate IR
ii. They were afraid there were things they didnt write down and would limit/narrow the scope of rights
d. Pre-Civil War Rejection Barron v. Baltimore
i. BOR only applied to the federal government
ii. The Constitution creates the federal government and gives the federal government its power.
1. The Bill of Rights was enacted to limit the powers of that federal government.
a. Thus, the states are not included
e. What are the Privileges and Immunities of US Citizens? Slaughter House Cases (1872)
i. Facts: The LA legislature gave a monopoly in the livestock and slaughterhouse business to certain
companies. The law required that the company allow any person to slaughter animals in the slaughterhouse
for a fixed fee. Argues it violated their right to practice their trade and abridgement of the P&I
ii. Holding: Privileges and immunities are NOT fundamental rights
1. Distinctions between citizens of the US and citizens of an individual state
a. The privileges or immunities clause was not meant to protect individuals from state
government actions and was not meant to be a basis for federal courts to invalidate state
laws
iii. The P&I clause of the 14th amendment does not extend the BOR to the states
1. Holding still good law today
2. P&I clause only extends to those enumerated in the constitution
Incorporation
a. Doctrine through which specific provisions of the BOR have been absorbed into the Due Process Clause of the 14 th
Amendment
b. Chicago Burlington & Quincey Railroad Co. v. City of Chicago
i. The taking of private property for public use without just compensation violates the due process if law
required by the 14th amendment
c. Twinning v. New Jersey
i. Opened the door applying the BOR by finding them included/incorporated through the Due Process Clause
of the 14th Amendment
1. Incorporated individually
d. Palko v. Connecticut (double jeopardy)
1. The US Supreme Court upheld the conviction.
2. The US Supreme Court found that the Due Process Clause of the 14th Amendment only
protected those rights that were "essential to a fundamental scheme of ordered liberty.
3. In this case, the Court found that the double jeopardy protection was not "essential to a
fundamental scheme of ordered liberty. Basically, the Court asked if it was possible to have a trial
that could been considered fundamentally fair under the Connecticut standard. They decided it did
e. Adamson v. California (not testify, prosecutor made a comment)
i. The US Supreme Court upheld the conviction. The US Supreme Court agreed that if the case had been
handled in Federal Court, Adamson's 5th Amendment rights would have been violated.
ii. However, the Court found that the rights guaranteed under the 5th Amendment did not extend to
State courts based on the Due Process Clause of the 14th Amendment.
iii. Basically, the Court was saying that while the 14th Amendment guarantees the general concept of a fair
trial, State laws did not have to exactly match the Bill of Rights. The Court found that even though the
California law was unusual, Adamson still got a reasonably fair trial, so the Due Process Clause was
satisfied.
f. Current law as to what is incorporated:
i. Selective incorporation have prevailed in the sense that the Court never accepted total incorporation. The
total incorporationists have prevailed in the sense that one by one, the Court has found almost all of the
provisions to be incorporated
1. Selective Incorporation:
a. Doesnt apply to BOR in totality
b. Has to be a fundamental right

g.

ii. Duncan v. Louisiana

1. Right to trial by jury is a fundamental right so the state should have allowed him a jury trial under
the 6th and 14th
iii. Important because of substantive due process
1. There are certain things that the states cannot take regardless of process
a. Fundamental Rights
i. Must have a compelling interest (strict scrutiny)
iv. Not incorporates:
1. 3rd, 5th, 7th, and 8th
(Summary) Incorporation:
i. 14th Amendment says: All persons born or naturalized in the US, and subject to the jurisdiction hereof,
are citizens of the US and of the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property without due process of the law; nor deny to any person with its jx the
equal protection of the law
1. Three rights: (1) right to due process, (2) right to equal protection, (3) right to P&I
ii. BOR & the States: one of the major functions of the 14th DPC is to make BOR applicable to states
1. Not directly applicable to state: Early on, the supreme court said that the BOR only applied to
the federal government
2. Effects of due process clause: The enactment of the 14th directly imposes on the states (and local
govs) the requirement that they not deprive anyone of life, liberty, or property without due
process. Nearly all of these guarantees under the BOR have been incorporated by the SC as a
liberty
3. Application of the BOR to the States: The Supreme Court used selective incorporation. Under
this approach, each right in the BOR is examined to see whether it is of fundamental importance.
If so, that right is selectively incorporated into the meaning of due process under the 14th, and is
thus binding to all states.
4. Nearly all rights have been incorporated: Only ones not incorporated are (Grand Jury, right to
jury in civil cases, excessive fines
5. Federal Due Process Clause: 14th binds the states. There is also a due process clause in the 5th
amendment that is binding on the federal government the same way that the 14th is binding on the
states.
Option 1: Privileges and Immunities clause:
Option 3: Due Process
Court rejects
Selective incorporation
Option 2: Due Process
Include LLP and everything in BOR
fundamental right = total incorporation

III.

State Action Doctrine

a. the Constitutions protection of individual liberties and its requirement for equal protection apply only to the
government. Private conduct generally does not have to comply with the Constitution.
b. For the 14th Amendment to apply, there must be state action.
i. Civil Rights Cases
1. Cannot control the actions of individuals, only states actions
a. The constitution generally does not apply to private entities or actors (14th amendment
doesnt apply to private discrimination)
b. Congress cannot use the 5th amendment (federal Due Process) to regulate actions of
individuals
i. Have to go through the Commerce Clause
c. Exceptions
i. Public Function Doctrine
1. Certain things that are inherently public, cannot avoid state action doctrine by giving to private
individual
a. i.e. voting, moving public function into private realm or something that is built and
operated primarily to benefit the public, the private activity (of building) will become
public.
2. Public function cannot be moved into private realm in order to avoid 14th amendment
a. i.e. cannot make public parks into private ones
ii. Government entanglement/entwinement
1. Where gov is so entangled in private individual/actor
a. i.e. leasing building from gov, restaurant opening in a gov building

1.

If state owns or regulates private entity, the state is not acting however it is sufficiently entangled.
If government affirmatively authorizes, facilitates, encourages unconstitutional conduct, then the
Constitution applies. Either government must cease what it is doing or private actions must
comply with the Constitution.

UNIT IV: DUE PROCESS AND THE PROTECTION OF FUNDAMENTAL RIGHTS

I.
Due Process Protection for Economic Rights
a. In general
i. Economic liberties generally refer to constitutional rights concerning the ability to enter into and enforce K;
to pursue a trade or profession; and to acquire, possess, and convey property
ii. Two types of economic protection under the DPC:
1. Procedural: procedures that the government must follow when it takes away a persons
life/lib/prop
2. Substantive: asks whether the government has adequate reason (sufficiently justified) in taking a
persons life/lib/prop
a. Used primarily to protect economic liberties (-1937) & safeguard privacy
b. Framework:
i. What exact rights are protected?
ii. When can the State invade those rights?
1. What interest on the part of the state justifies regulation?
iii. Even if the State has the justification to invade those liberties, does the State have to regulate?
1. How closely are the means related to the end?
2. Is the court going to apply a rational basis?
3. Is it necessary for the States to regulate to achieve its ends?
II.
Economic Substantive Due Process
The Rise of Lochnerism
a. Themes of the Lochner Era
i. The liberty of the due process clause protects rights, especially freedom of contract (and right to practice
trade or business).
ii. State only may infringe liberty to achieve valid police purpose, specifically, to protect public health,
safety, and morals.
1. Courts role is to insure that states purpose is sufficiently compelling.
iii. State regulation must be necessary to achieve the police purpose not only must the state show
important purpose, must show the law is needed to accomplish the result.
1. Not enough to show that the law is rational, like McCulloch. strict
a. Court says must show law necessary, indispensable to achieve goal.
b. What does liberty protect/what is due process?
i. Lochner (bakers)
1. Right to Contract (and ability to purchase and sell labor) under due process of 14th Amendment
a. Labor however you want
2. Doesnt matter what the state says, its what the court believes.
a. Court believed state was trying to use health in order to regulate market
i. Declared that the law violated the DPC of the 14th because it interfered with
freedom of K and did not serve a valid purpose
b. Baking itself isnt dangerous
3. Themes from Lochner:
a. Freedom of contract was a right protected by the due process clauses of the 5th and 14th
Amendments.
b. The government could interfere with freedom of contract ONLY to serve a valid police
purpose of protecting public health, public safety, or public morals.
c. The judiciary would carefully scrutinize legislation to ensure that it truly served such a
police purpose.
i. ***Until 1937, the Court followed the principles in Lochner.
ii. Allgeyer v. Louisiana
1. Contract with whoever you want (freedom of contract)
a. Liberty interests in pursuing occupation
2. Takeaway: first case in an era where economic regulations were struck down as violative of
substantive due process.
a. The law interfered with freedom of Contract and that it thus violated the DPC of the 14th
iii. Coppage v. Kansas (told employees they couldnt enter unions)
1. Operate what type of business you want

a.

III.

IV.

Asking employee to not affiliate with union is not asking him to give up his constitutional
freedom
i. No inherent right to join a union
ii. Unconstitutional as infringing on freedom to contract. Not a legitimate exercise
of police power for the federal government to attempt to equalize bargaining
power between employer and employee.
c. When can a state invade those rights?
i. Lochner
1. State cannot infringe unless falls within policing power of:
a. Health
b. Safety
c. Morals
d. General welfare
2. means-appropriate?
a. Means end analysis
The end of Lochnerism
a. West Coast Hotel Co. v. Parrish (1937) (minimum wage for women and children)
i. Holding: The court abandons its previous holdings that the economic right to contract prevents this and
upheld the state law. This is a public interest issue because women and minors need protection they
dont have the power to bargain for themselves and it is the duty of the government to step in.
ii. Constitution does not speak of freedom of contract abandons previous holding that economic right to K
iii. Even if the right to K is under liberty, this Liberty is subject to some restraints
1. Fundamental rights are not absolute
2. No longer limited to regulating only to advance the pubic health, public safety, or public morals
a. Court allows government to regulate to equalize bargaining power
iv. Standard (uses means-end analysis)
1. Any legit state purpose (protect women and kids) AND
2. Need only be rationally related to goal (minimum wages)
a. Even if not stated
b. Pretty much no protections for economic liberties
b. United States v. Carolene Products Co signals the end of the Lochner era
i. Facts: Filled Milk Act of 1923 prohibited filled milk, a substance obtained by mixing milk and vegetable
oil.
ii. The court said that economic regulations should be upheld so long as they are supported by a conceivable
rational basis, even if it cannot be proved that it was the legislatures actual intent.
1. ***Rational Basis Test: is there a legitimate purpose for Congress to do this (sets the bar
pretty low). The regulation should be upheld as long as it is based on a conceivable, rational
basis (as long as it does not violate a constitutional right)
2. Court says if there isnt a fundamental right at issue, its the legislatures right to regulate the
economy
iii. Footnote 4: If economic regulation violates an amendment, well give it heightened scrutiny
1. Test for strict scrutiny: Deference will not extend to laws that interfere with fundamental rights
and discrete and insular minorities.
iv. Can Congress regulate the private production of certain goods within a state from being transported
interstate?
1. Yes. Court will review economic regulations to determine whether there might be a rational basis
for the legislative act, and not look specifically to the actual intent of the legislation.
2. However, courts will apply strict scrutiny in reviewing laws interfering with fundamental rights
or discriminating against discrete or insular minorities. Courts are now the lackeys of special
interest groups.
Economic Substantive Due Process since 1937
a. Williamson v. Lee Optical of OK, Inc. (1955)
i. Holding: The SC upheld an OK statute that prohibited an optician to fit or duplicate lenses without a
prescription from an optometrist or ophthalmologist.
1. The Supreme Court upheld the statute as potentially advancing public health.
a. The legislature may have deemed eye exams critical to correctness of vision and for
detections of latent diseases.
b. The court stressed the need for judicial deference to legislative choices and emphasized
public health as a legitimate purpose for finding a law constitutional.
ii. For protection against abuses by legislature the people must resort to the polls, not to the courts.
1. Shift of court realizing laissez-faire economics was political question, not constitutional.
2. DPC will no longer be used to strike down state law regulating business

V.

VI.

iii. Rational basis

1. As long as the court can conceive some legitimate purpose and so long as the law is reasonable, a
law will be upheld
The Rebirth of Economic Due Process? Constitutional Limits on Punitive Damages
a. BMW of North America v. Gore (1996) (guy awarded millions for old paint job) first time considered excessive
i. There must be a legitimate basis for taking this money away from someone
1. Here, there is nothing that would suggest an award of punitive damages
a. So, it violates substantive due process
ii. Guideposts for punitive damages:
1. Degree of reprehensibility of conduct
a. More reprehensible, the greater the award
2. Disparity between actual and punitive damages
a. Single digit disparity 1:9
i. But flexible, might go higher if small compensatory damages
3. Other relevant punishments
a. Comparable punishments in other states?
b. Other possible legal sanctions?
iii. If damages are arbitrary/excessively gross violation of DP
b. State Farm v. Campbell
i. Court adopts ration of 10:1.
1. Exception: really reprehensible conduct with law damages
ii. Kept Gores three part test
iii. Could only consider the actions in that state, couldnt compound with actions in the other states
The Takings Clause
a. Introduction
i. Eminent Domain: the authority to take private property when necessary for government activities.
1. 5th Amendment: limit on the power of eminent domain nor shall private property be taken for
public use without just compensation.
a. The Takings Clause is the most important protection of property rights in the
Constitution.
i. Ensures that the government does not confiscate the property of some to give it
to others.
ii. Loss spreading: if the government takes away a persons property to benefit
society, then society should pay
b. Analysis:
i. Is there a taking? Depends on the circumstances of the case:
1. Possessory taking:
a. Physical intrusion (cable line)
2. Regulatory taking
a. Future use and enjoyment
b. Government regulation leaves no reasonable viable use for the property (Lucas)
c. Penn Central
i. Historical preservation = legitimate government interest
ii. Economic impact
iii. Extent to which regulation has interfered with invest backed expectation = Penn
Central didnt have this
iv. Nature of the government intrusion
1. Just because regulated doesnt mean it is a taking
2. Must have legit purpose (here it does)
3. Diminishing value of the property doesnt make it a taking
a. Lucas: present use was not changed, future invested was
changed. Denied all economically beneficial and productive
use of land
i. In regulatory taking, look at relationship between
governments actions and property owners
expectations
ii. Is it property?
1. The court usually relies on state law to determine whether there is a property interest
2. Can be property or rights
iii. Is the taking for public use?
1. A taking is for public use so long as it is rationally related to a conceivable public purpose
rational basis test

The 5th Amendment authorizes the government only to take private property for public use
a. The SC has expansively defined public use so that virtually any taking will meet the
requirement
3. Hawaii
a. Taking private property in effort to reduce concentration of land ownership
b. Public use because need for public housing
c. Government must meet rational basis test
i. Rational basis because state acted out of reasonable belief distributing
ownership among larger number of people would benefit from the public
4. Kelo v. New London
a. Public purpose is easier to apply than public use
b. Development was for the public purpose of economic development revitalize an ailing
economy
i. Reasonable belief a taking is for public use so long as the government acts out
of a reasonable belief that the taking will benefit the public
c. Court defers to the legislature
iv. Is just compensation paid?
1. Measured in terms of losses to the owner the gain to the taker is irrelevant
2. Fair market value loss to owner
c. Factors to consider in identifying a taking:
i. What is the nature of the intrusion?
ii. Did the person have an investment backed expectation?
iii. What is the economic impact of the regulation on the owner?
Fundamental Rights
a. In general
i. The SC has held that some liberties are so important that they are deemed to be fundamental rights.
ii. The government can not infringe on these rights unless strict scrutiny is met
1. Strict scrutiny = governments actions must be necessary to achieve a compelling purpose
iii. Almost all of these have been protected under the DPC and/or the EPC
1. Equal protection
a. The issue is whether the governments discrimination as to who can the right is justified
by a sufficient purpose
b. What you are looking for a class of people of similar situations
i. Suspect classes: race, national origin, alienage (strict)
ii. Quasi-suspect: gender (intermediate scrutiny)
iii. Non-suspect: anything else
2. Due Process
a. The issue is whether the governments interference is justified by a sufficient purpose
b. Procedural: when a government takes away a persons LLP it must provide adequate
reasons
c. Substantive: When the government takes away a persons LLP it must provide sufficient
justified purpose
i. Looking for a law that affects all peoples rights
ii. Fundamental rights: vote, travel, right to privacy (strict)
iii. Any other right (rational)
b. 9th amendment
i. The enumeration in the Constitution of certain rights, shall not be construed to disparage others retained
by the people.
1. There are no 9th Amendment rights!
a. The 9th Amendment is used to provide a textual justification for the court to protect
non-textual rightsi.e. fundamental rights not mention in the Constitution!
c. Framework for analyzing fundamental rights:
i. Is there a fundamental right?
1. Textual
2. Non-Textual
a. There are fundamental rights that exist which are not enumerated in the Constitution
i. i.e. liberty encompasses many things
1. 9th Amendment
3. Fundamental=heightened scrutiny
a. Not fundamental=rational basis
4. Is it a fundamental right under equal protection or due process?
a. Equal Protection
2.

VII.

i. Whether the governments discrimination as to who can exercise the right is

justified by a sufficient purpose.
b. Due Process
i. Whether the governments interference is justified by a sufficient purpose.
5. Methods of determining whether a right is fundamental:
a. Methods of determination
i. Constitution
Framework (simplified)
ii. Framers Intent
a. Is it a fundamental right?
iii. History/Tradition
i. If yes, law will
iv. National consensus
probably be struck
ii. Is the right infringed?
down
1. Burden when is it enough to infringe?
b.
Is
the
right
infringed?
iii. Is there sufficient justification for the law?
i.
The
right
itself must be
1. Fundamental = compelling interest (strict scrutiny)
substantially
infringed
2. Not fundamental = rational relationship
c.
Is
there
a
sufficient
d. Recognized Fundamental Rights
justification for the law?
i. Family Rights
i. State must have a
1. Right to Marry
compelling interest to
2. Right to custody of ones kids
justify
3. Right to keep family together
d.
Are
the
means sufficiently
4. Right of Parents to Control Upbringing of Their Children
related
to
the ends?
ii. Reproductive Autonomy
i.
Are
they necessary
1. Right to procreate
ii.
Are
they closely and
2. Right to purchase and use contraceptives
narrowly
tailored?
3. Right to abortion
iii. Sexual Activity
iv. Medical Care Decisions
1. Right to refuse treatment
2. NO physician assisted suicide
v. Travel (within states)
vi. Voting
vii. Access to Courts
viii. Free Speech
ix. Freedom of Religion
e. Non-Fundamental Rights
i. Education
ii. Economic Liberties
iii. Health Care
iv. Housing
v. Food
vi. Employment
f. Fundamental right to privacy
i. Family autonomy
1. Right to Marry fundamental
a. Loving v. VA Equal Protection
i. Criminalizing interracial marriage is unconstitutional
1. Fundamental right to marry under the DPC, cannot restrict by racial
discrimination
2. EPC because discrimination against a class (See above)
a. Race = suspect class, strict scrutiny
3. The statute deprived the Lovings of their right to marry without due
process of the law because freedom to marry has long been recognized
as one of the vital personal rights
b. Zablocki v. Redhail Equal Protection
i. Person not paying child support not allowed to marry is unconstitutional
ii. The state had a substantial state interest in ensuring that child support was paid
for minor children. But the law was not sufficiently related to that end and thus
it violated equal protection.
1. More effective ways to reach goal
2. Substantial justification of taking care of kids
a. However, could use less restrictive means (wage garnishment)
iii. Equal protection discrimination against class

1. Classification interfered with exercise of fundamental right

Factors looked at:
i. Tradition, history, biology
Right to custody of ones kids
a. Must meet both procedural and substantive due process to interfere with a parents right
to custody.
i. i.e. if want to permanently terminate a parents rights
b. Stanley v. Illinois (Unmarried Father)
i. State presumes widower unfit to care for children without hearing or
investigation
ii. No sufficient justification for infringement
1. Equal protection and due process violated
a. The state does not have a compelling interest
administrative efficiency is never a compelling interest for
denying a FR
c. Michael H. v. Gerald D.
i. The law is constitutional there is no fundamental right to relationship with
ones biological children
ii. Scalia frames history in narrow way to say that have never recognized parental
rights of biological father when mother is married to another man
1. Mere existence of biological link does not merit equivalent of
constitutional protection
iii. Holding: The law is constitutional.
1. Protecting the civility of the family
a. Looks at a narrow right in history
2. ***There is no fundamental right to a relationship with ones
biological children.
a. No tradition of protecting the fathers rights when the mother
is married to someone else.
i. Fundamental rights are made from traditions
ii. There is no specific tradition of protecting unmarried
fathers when the child was conceived as a result of an
adulterous relationship.
iii. ***Should adopt the most specific tradition
b. The fundamental right to custody of ones children does not
extend to fathers outside the marriage
3. ISSUE: Is tradition determinative?
a. If yes, must it be a tradition stated at the most specific level of
abstraction?
i. Who should be deemed to have a constitutionally
protected interest in a relationship with a child?
ii. Foster parents, stepparents, etc.
Right to Keep the Family Together fundamental
a. Moore v. City of Cleveland
i. There is a fundamental right to keep the family togetherthe Constitution
protects family rights for the extended family too.
ii. The State must advance a compelling interest to infringe upon the choice of
relatives of a close degree of kinship to live together.
iii. Substantive due process
Right of Parents to Control Upbringing of Their Children fundamental
a. Meyer v. Nebraska
i. Right of parents to control the education of their children (no German lang. rule
at school) Held unconstitutionalthe states do not have any general power to
standardize its children by forcing them to accept instruction from public
teachers only.
1. No compelling state interest
2. Fundamental right to raise kids
b. Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary
i. States can mandate they got to school, but they can not mandate they go to
public school
ii. State can regulate children
1. Labor laws
c.

2.

3.

4.

2. The safety and health of children

ii. Right for reproductive autonomy
1. Right to procreate fundamental
a. Buck v. Bell
i. Involuntary sterilization of mentally retarded
ii. Court upheld, said there was a compelling state interest
1. Recognized that the state has a legitimate interest in sterilizing people.
a. It is better for all the world, if instead of waiting to execute
degenerate offspring for crime, or to let them starve for
imbecility, society can prevent those who are manifestly unfit
from continuing their kind3 generations of imbeciles are
enough.
iii. The Court is unwilling to recognize the right to procreate as a fundamental right
1. Has never been overturned
b. Skinner v. Oklahoma
i. Sterilization of people convicted of more than 2 crimes
ii. Discrimination in the crimes merit that sterilization
1. The court strikes the law down on equal protection principles, not on
the rationale that the right to procreate is a fundamental right.
2. The court spoke broadly of a fundamental right to procreate.
iii. Any attempt by the government to impose involuntarily sterilization must
meet strict scrutiny.
iii. Right to purchase and use contraceptives
1. Griswold v. CT
a. Crime to assist in using or use contraceptives unconstitutional
b. Rule: Intimate marital relations lie within a zone of privacy into which the
government may not intrude.
c. Holding: The law violated the right to privacy in prohibiting married couples from using
contraceptives. ct applied strict scrutiny
i. Fundamental right to privacy
1. The court declined to find this fundamental right under the due
process clause, but rather found that privacy was implicit in many
of the specific provisions of the Bill of Rights (i.e. 1st, 3rd, 4th, and 5th
Amendments)
a. Penumbra of rights
i. The specific guarantees of the Bill of Rights have
penumbras, creating zones of fundamental rights.
ii. ***This approach has been criticized and not
followed.
b. Douglas avoiding discussion of substantive due process.
i. ***Focus on the need to protect the privacy of the
bedroom NOT a right to avoid procreation/to make
reproductive choices
ii. The court addresses 3 rights:
1. Fundamental right to privacy at home
2. Fundamental right to receive/access information from a physician
(control of information)
a. Douglas opinion: Bill of Rightspenumbra
i. The Constitution protects the gray area of certain
rights even if not explicitly mentioned, they still
merit protection
ii. The Amendments protect core areasthe 9th
Amendment tells us that there are other areas that
need protection, even though not enumerated in the
Constitution
3. Fundamental right to reproductive freedom/autonomy
iii. The court focuses on the first two rights ^
1. (Goldberg) 9th Amendment: powerful argument against the interpretive
view of the Constitution.
a. Gives authority to protect non-textual rights such as privacy.
2. Eisenstadt v. Baird (1972)Fundamental Right to Reproduction

a.

Facts: A MA law prohibited distributing contraceptives to unmarried individuals and only

allowed physicians to distribute them to married persons.
b. Holding: Held that the MA denied equal protection because it discriminated against
non-married individuals. violates Equal Protection Clause
i. Prohibiting the distribution of contraceptives served no legitimate government
purpose.
1. ***Expands Griswold in recognizing a right to control reproduction as
a fundamental right.
a. Also recognizes the right for both non-married and married
individuals
b. Protects the right to distribute as well as use contraceptives.
ii. Right to privacy as the right of the individual to be free from unwarranted
governmental intrusion into fundamental rights, like the right to bear children or
not.
iv. Right to abortion fundamental (UNDUE BURDEN STANDARD)
1. What are the different holdings the court could have reached?
a. Matter for the States to decide
i. Justifications
1. the job of the court is not to be politically popular
ii. Critique
1. Some things are beyond majority rule;
2. if it is protected by the Constitution, then it is not subject to vote
b. Equal Protection gender inequality (if the court had outlawed abortion)
i. This denies women equal protection because it is only women that the state is
forcing to bear children
ii. Justification
1. The law affects women and the poor much more than men & wealthy
iii. Critique:
1. This avoids answering the issues up for debate
2. Doesnt answer the real question of whether or not the right to abortion
is a fundamental right
c. Question of life is a moral question left to each women
i. All abortion under all circumstances
ii. Justifications
1. Personal choice its your body
iii. Critique
1. This would be saying that the state has no legitimate interest:
a. No legit interest until the child is born
b. The state has an interest in life and this would provide the
State not opportunity to regulate it
d. Redefine when life begins life begins at conception
i. Justifications
1. Most conservative approach protect life
2. Biological arguments
ii. Classifications
1. This isnt agreed upon by experts
2. Arbitrary the beginning of life hasnt been decided
iii. Implications
1. Once we declare life at conception, multiple problems arise:
a. Rape? Health of mother?
e. Route taken: Fundamental right but the states have a compelling interest
i. Justification
1. Not far removed from right to purchase contraceptives
ii. Critique
1. Orginalism right to originalism not encompassed in Const.
2. Arbitrary trimester (whats the difference really?)
iii. Implications
1. Strict scrutiny applies if the right to abortion is a fundamental right
2. Roe v. Wade (1973) Right to abortion (but not absolute)
a. Holding: The Constitution protects a right for a woman to choose to terminate her
pregnancy prior to viabilitythe time at which the fetus can survive on its own outside
the womb.

b.

3.

4.

Strict scrutiny exercising same choice as use of contraceptive private and intimate
decision
c. Focused on right to privacy makes abortion a fundamental right
i. The right to privacy is broad enough to encompass a womans decision whether
or not to terminate her pregnancy.
ii. ***The court did not find the right to privacy in the penumbra of the Bill of
Rights found it as part of the liberty of the due process clause.
d. Adopts the trimester approach
i. First trimester woman has a fundamental right under substantive due
process
1. There must be a compelling interest for the state to interfere during this
time The state does not have a compelling interest here because this
is before viability and there are not substantial risks to the mother
a. Forcing a woman to continue a pregnancy against her will
poses enormous physical and psychological burdens.
ii. Second trimester state can regulate abortion procedures if such ways are
reasonably related to the maternal health cant prohibit thought
1. No indication that the constitution had person=fetus
a. No consensus as to when human life begins
iii. Third trimester After viability, the state can regulate AND prohibit abortion,
except where it is necessary for the mothers health
1. At the point of viability, the States interest supersedes a womans
fundamental right
e. No longer good law.
Webster v. Reproductive Health Services
a. Upholds some restrictions on abortion
i. No majority opinion
ii. 4-1-1 Plurality opinion
1. Attacked the trimester distinctionsnot found in the Constitution
a. Attacked the viability standardthe states interest, if
compelling after viability, is equally compelling before
viability.
b. State has compelling interest to protect fetal life at conception
Planned Parenthood v. Casey
a. Keeps main holding of Roe Women have the FR to chose
b. Rejects the trimester approach for the undue burden standard (applies to both pre
and post-viability)
i. States cannot pass regulation that its purpose or effects is to place a substantial
obstacle
ii. But what is an undue burden?
c. Uses viability as the framework
i. State can limit so long as there is no undue burden (no need for compelling
interest) on access to abortion
ii. ***Restrictions on abortion do not have to meet strict scrutiny anymore.
1. The state can limit so long as there is no undue burden (no need for a
compelling interest) on access to abortion i.e. the state regulation has
the effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus.
2. ***This is the only fundamental right that applies this undue burden
standard.
3. State cannot pass legislation of which the purpose or effect is to place a
substantial obstacle on a womans right to an abortion
4. Applies when it is a nonviable fetus. After viability, State can prohibit
or regulate as it chooses
iii. States can regulate through out the pregnancy
1. 24 hour waiting period
a. not an undue burden
2. Informed consent fetus age, development, etc
a. No ultrasound bodily integrity intrusion by the state
b. Heartbeat possible increases cost but is not as invasive

Fundamental Right

Minors If parents do not consent, the minor must then have

a process for bypassing the parents lack of consent and go
through with the abortion.
iv. Parental notification allowed because it could be bypassed by the judicial
process (Belotti v. Baird)
a. Parents have constitutional authority in regard to medical
decisions of their children
Strict Scrutiny
Health of Mom
Interest in Fetus
Regulate Abortion

Roe

After 1st trimester

After 1st trimester

Trimester framework

Casey

undue burden

After conception

After conception

After viability

c.

2.

No spousal consent (Planned Parenthood v. Danforth) nor does state

have to fund
d. Once fetus is viable, state can do whatever it wants.
i. Strict scrutiny is no longer applied undue burden
ii. State no longer has to have a compelling interest
1. It can legislate because it wants to
iii. Hard test to apply
e. **still need to have exclusion for mothers health regardless of pregnancy stage**
g. Constitutional Protection for Medical Care decisions
i. Right to refuse treatment fundamental
1. Cruzan (lady in coma, parents want to pull plug)
a. Yes, a competent adult has the FR to refuse medical tx
b. What interest does the state have?
i. Preserving life
ii. Safeguard decision between life and death for the person
c. Whether a parent/surrogate can exercise this FR?
i. No. Not unless there is clear and convincing evidence (living will)
d. What level of evidence must you show for such a refusal?
i. The state may require a clear and convincing evidence standard that the
person wanted treatment terminated before it is cut off.
1. Ex: living will
e. When can states infringe on this right to refuse?
i. Parents not allowing children medicine
ii. Vaccinations?
iii. Mental health concerns danger to self or society
f. A state may prevent family members from terminating treatment for another. The right to
end treatment belongs to each individual and a state may prevent someone else from
making the decision.
i. The court says that family members do not get to make a decision for someone
else.
g. Is this the proper standard?
i. It is high. But danger of getting it wrong is death err on the side of caution
ii. Physician assisted suicide not fundamental (rational basis)
1. Washington v. Glucksberg
a. The court said that this law did not violate a fundamental rightlaw only had to meet a
rational basis test..
i. A right is protected as fundamental ONLY WHEN there is tradition.
1. For over 700 years, the Anglo-American common law tradition has
punished or disapproved of suicide and attempting suicide.
a. In almost every state it is a crime to assist suicide.
ii. There is no history or tradition of recognizing a right to physician-assisted
suicide.
b. Rational Basis
i. The law reasonably served legitimate government intereststhe state has
important interests in the preservation of life.
c. How else could you frame this issue?
i. Do I have a right to die with dignity?changes the issue.
h. Constitutional Protection for Sexual orientation and activity

i.

i. Sexual orientation
1. Bowers v. Hardwick
a. A GA statute prohibited sodomy between both homosexual and heterosexual couples
i. The Court upheld the statute and said there was no fundamental right.
2. Lawrence v. Texas
a. States prohibited deviate sexual behavior
b. Court overrules Bowers
i. Right of liberty under the due process clause gives homosexuals the right to
engage in consensual sexual activity
ii. Says Bowers got the history wrong, so that law is not good.
1. There is no longstanding history of laws directed at homosexual
conduct as a distinct matter
iii. State has no legitimate interest
1. Is morality a legit reason to legislate?
a. Court says no.
2. If extends right, the other things will have to be legal too. Like gay
marriage (dissent-Scalia)
c. OConnor says it should have used the EPC because the problem is that they could just
prohibit sodomy for everyone
d. ***Dont know whether this is a fundamental right or whether the courts should apply
strict scrutiny.
i. The court framed it as a liberty right.
1. The majority opinion seems to allow the court to take a legislative role
by expanding this right of liberty to include consensual sexual acts
between homosexuals.
ii. Gay Marriage
1. Obergefell
a. History applies but doesnt set outer bounds
b. Use 4 arguments, 1 being that its a FR, 2-4 are policy arguments.
c. He says once we establish that marriage is a FR, can the state deny you of your FR? No.
d. Under OConner, she would have analyzed under an EPC gender discrimination
Modern Substantive Due Process
i. Right to vote
1. Fundamental right under equal protection and requires strict scrutiny
a. We have a right to equality in voting, not a fundamental right to vote for a particular
position.
2. Restrictions must be relevant to requirements/qualifications
a. Wealth
i. Harper v. VA State Board of Elections
1. Poll tax
a. The effect is greater than the intent
b. Wealth bares no relevance on qualifications of votes.
2. A state violates the equal protection clause of the 14th Amendment
whenever it makes payment of any fee an electoral standard.
a. ***No legitimate interest in restricting the vote based on
wealth Wealth or fee paying has no relation to voting
qualifications.
i. Laws that may invade or restrain fundamental rights
must be closely scrutinized and carefully confined.
ii. Standard of Review: Strict scrutiny
b. Voter qualifications have no relation to wealth or to paying or
not paying a certain tax.
b. Property ownership
i. Kramer v. Union Free School District
1. Limiting voting to those in the district that owns a home or has children
in school
2. Standard of Review: Strict scrutiny
a. Because the law kept some citizens from voting in school
elections.
i. Excluded those citizens who have the most interest in
these elections (parents with children who are not yet
enrolled in school)

3.

The states primary justification for the restrictions was to limit

participation to those who were primarily interested in school affairs.
a. ***RULE: Court held that it was not permissible for the
government to measure interest by property ownership OR the
presence of children in the school system.
b. This is a legitimate interest but it needs to be narrowly
tailored
c. Property is a classification not a qualification
4. ***Distinguish: Impermissibility of using property ownership as a
condition to voting
ii. Ball and Slayer cases
1. Exception out west water districts
a. Solely funded by landowners and narrowly tailored
c. Literacy Tests
i. Literacy tests are permissible as a qualification for voting, although they have
been outlawed by federal statutes
ii. Supreme Court interprets as a legitimate qualification subject only to rational
basis review (unlike strict review under wealth)
iii. Ability to read is a qualification to vote
1. Not a value judgment
iv. The state is allowed to set vote qualifications, not classifications
v. Banned under Voters Rights Act (in state and federal elections)
1. Has been administered discriminatorily
d. Prisoners and convicted criminals
i. RULE: States cannot deny the right to vote to those being held waiting for trail
AND must provide them absentee ballots if they have no other way of voting.
1. Once a person has been convicted of a felony, a state may permanently
disenfranchise the individual.
a. Constitution itself says that it is ok to exclude prisoners
b. Where is the rational basis for this?
i. Question of whether there is even a legitimate
purpose for doing so after a person has completed
their sentence.
2. Exceptions
a. Pre-conviction
i. Absentee ballot or poll at jail
b. Racial discrimination
i. Discriminatory motivation not constitutional
ii. Hunter v. Underwood AL law held unconstitutional
that denied permanently voting for people convicted
of moral turpitude.
e. Voter IDs
i. Balancing test, not strict scrutiny
1. Crawford v. Marion County Election Board
a. Standard of Review: Balance test and individual interest
i. Burden on individual v. state interest
ii. Must be rational and must outweigh the burden
b. 3-3-3 decision so we do not =know the test for next time
i. Strict scrutiny only if burden severe
ii. Dilution of the Right to Vote Rule of One Person, One Vote.
1. Reynolds v. Sims
a. Holding: The mal-apportionment of a state legislature was unconstitutional and ordered
its reapportionment.
i. RULE: One-person, one-vote rule it is a denial of equal protection for one
persons vote to count less than another persons vote. Both houses of a state
legislature must be apportioned by population.
b. Equal protection requires good faith and honest effort, to make the voting districts as
close to equal population as possible
i. Weight of vote should not matter where you live
c. Mal-apportionment inevitably means vote dilution those voters in the more populous
district have proportionately less influence in the political process than those in the small
districts.

d.

j.

Doesnt require mathematical exactness that the populations be even, but it should be
pretty close.
i. More latitude for state and local governments.
2. Bush v. Gore
a. Counting votes without standards (how to count them) in presidential elections is an
Equal Protection violation and counting could not continue
i. Analogous to dilution of the right to vote
b. Voting standards are set by the state
i. Safe harbor congress will accept your results as long as turned in by certain
date
1. After that date congress can check after you
iii. Constitutional Right to Access to the Court
1. Criminal
a. Access to attorney, appeal, jury, transcript
2. Civil
a. Fundamental right to access (only when it intersects with other fundamental right)
i. Filing Fees
ii. Boddie v. Connecticut
1. Cant afford divorce filing fees
a. Only avenue for divorce is through the courts, therefore
forcing the to stay married
b. Marriage is a fundamental right (compelling interest and
narrowly tailored)
i. Less restrictive way to achieve state goal
2. ***This state law is a denial of due process because it interferes with
constitutional/fundamental rights the constitutional right to marry.
iii. US v. Kras
1. Cant afford fees for filing for bankruptcy
a. Not the only avenue
i. Could negotiate with creditors or save up (?)
b. Does not touch a fundamental right
i. When intersection with poverty and fundamental
right to access to the courts is a right
ii. Does not necessarily have to be poverty
iv. Constitutional right to Education not fundamental
1. San Antonia Independent School District v. Rodriguez
a. Test: fundamental right must be either explicit or implicit in the constitution
i. Traditionally education is a state and local government project
1. Further, the undisputed importance of education does not alone create a
fundamental right requiring strict scrutiny by the court.
a. Thus, only rational basis applies
b. ***The courts refusal to find a fundamental right to education is consistent with its
general unwillingness to hold that there are constitutional rights to affirmative services
provided by the government.
c. All 50 states either implicitly or explicitly protect education
i. State supreme courts have named it a fundamental right in their constitutions
v. ***Poverty is not a suspect classification and discrimination against the poor need only meet a
rational basis review.
Procedural Due Process
i. Introduction
1. 5th and 14th Amendments
a. Neither the US nor state governments shall deprive any person of life, liberty, or
property without due process of law.
i. Refers to the procedures that the government must follow before it deprives a
person of life, liberty, or property.
1. Substantive Due Process asks whether the government has an adequate
reason for taking away a persons life, liberty, or property.
a. Whether there is such a justification depends on the level of
scrutiny used.
b. Usually talking about rights that are not fundamentalthe state may take away some
rights, but they have to follow the proper procedure in doing so.
ii. Framework

1.

Has there been a deprivation?

a. Was it more than mere negligence?
b. Did they fail to protect a person from privately inflicted harm by 3rd party?
2. Is it of life, liberty, or property?
3. Is it without due process of law?
iii. What is deprivation?
1. Daniels v. Williams
a. Officer negligently left pillow on floor, prisoner tripped and was injured
i. Deprivation must be intentional negligence is not enough for deprivation of
due process
1. Recklessness could be enough
2. If there is negligence, go through tort law to recover.
ii. Purpose is to keep government from arbitrarily taking things
2. County of Sacramento v. Lewis EXCEPTION
a. Police chase resulted in death of kid on motorcycle trying to outrun cops
b. Recklessness is not enough in emergency situations
i. Need to prove actual intent & shocks the conscience
1. Deliberate indifference or purpose to cause harm
2. Emergency = did the official have time to deliberate
c. Remember: Recklessness could enough in non-emergency situations
3. Deshaney v. Winnebago County Failure to protect from third parry private actors causing harm
i. Generally, governments failure to protect privately inflicted harm does not
amount to deprivation of due process UNLESS:
1. While in custody/ongoing relationship with state (i.e. prison)
a. No ongoing duty after custody
b. There is a special relationship in situation where government
restricts you from helping/protecting yourself
2. State caused or increased/precipitated the danger
a. Probably the main argument youll see
ii. Further, this involves action by a private actor, not a state.
iv. What is property?
1. The Rights-Privilege distinction
a. Until 1970, the court narrowly defined what constitutes a liberty or property interest
i. The court held that there was a liberty or property interest ONLY IF there was a
right
1. A privilege was not a basis for requiring due process
2. Thus due process did NOT need to be provided for privileges only
for rights
2. Goldberg v. Kelly (1970)
a. Welfare terminated without a pre-termination hearing
b. Rule terminating public assistance without affording them the opportunity for an
evidentiary hearing BEFORE termination violates procedural due process
c. Individual receiving welfare have a property interest in continued receipt of benefits and
the government must provide due process before it terminates benefits
i. Property is no longer just things you own.
1. Includes benefits the government gives through statutes
ii. Entitlements become property
1. Welfare benefits are considered property rather than gratuities
iii. Rights-privileges distinction is discarded
v. What is a Deprivation of Property?
1. Board of Regents v. Roth (1972)
a. Professor not rehired after 1-year contract
b. Holding: Not entitled to due process rot did not have any claim of entitlement to reemployment and thus had no deprivation of a property interest. Not all interests are
protected by the 14th amendment.
c. Rule Procedural protection of property rights insure only after one has acquired
benefits. There must be a legitimate entitlement to the benefits
i. **To have a property interest is a benefit, a person clearly must have more than
an abstract need or desire for it.
1. He must have a legitimate claim of entitlement. So property =
entitlement
2. This is a year-to-year contract, so he is not entitled to due process rights

a.

He would have been entitled to property rights if he had been

terminated during that year

d. Two approaches
i. An entitlement is defined by the importance of interest to the individual OR
1. How do you decide which government benefits are sig. enough to
constitute property
ii. The existence of an entitlement is determined by a reasonable expectation of
continued receipt of a benefit
1. The state could deny a property interest merely by making it clear that
the benefit/program was something that the government could
terminate at any point
2. The approach is more commonly adopted
e. Roth doesnt have a property right because:
i. The state does not guarantee it
ii. ***The state tells you what property right you have***
1. What is property under the Constitution is defined by state law
2. Whatever the state says is property, is property and what process
applies (once a state has created a property interest) is driven by the US
Constitution
a. You can have more PDP under state statutory authority, Fed.
Set the limit.
2. Hypo in class:
a. A students entitlement to a public education is a property right, and such property right is
protected under the procedural due process clause
b. Reputation alone is not a property or liberty right protected by the Due Process Clause.
vi. What procedures are required?
1. When the government must provide due process, it must always apply basic safeguards
a. Notice of charge
b. Opportunity for meaningful hearing
c. Impartial decision maker
2. Matthews v. Eldridge
a. Due process of the 5th amendment does not require that prior to the termination of Social
Security benefit payments the recipient be afforded an opportunity for an evidentiary
hearing
b. 3 factor balancing TEST for Procedural Due Process:
i. The private interests that will be affected by the action
1. Eligibility does not depend on financial need
ii. The risk of error in the challenged procedures
1. The risk of erroneous deprivation of such interest through the
procedures used.
2. Little risk of error in the determination because medical condition can
be assessed relatively accurately with medical reports
iii. Burden imposed on government by more demanding procedural requirements
1. Not willing to spend an enormous amount of money to fix a few cases
2. Great burden because additional administrative and financial burden for
extra safeguards.
c. Eldridge IS NOT entitled to an evidentiary hearing prior to termination of benefits
i. Personal disability may or may not be on the edge of subsistence
1. Not as crucial to maintain those benefits as it would be to maintain
welfare benefits
ii. Medical reports provided answer the factual question if the recipient is actually
disabled
1. The process works well
iii. What is the cost-benefit analysis of giving a pre-termination hearing?
1. Here, a hearing would ONLY minimally improve the result from the
process that is already in place
3. Employment
a. A pre-termination hearing is necessary but does not need to be elaborate
i. An informal hearing is sufficient
b. A post-termination hearing is more formal
4. Child Custody
a. Requires formal notice and pre-termination hearing

b.

Must the State provide an indigent person counsel? No.

i. Risk of error is low compared to the high cost of providing counsel
c. Reluctance to impose more than a minimal process
vii. The Relationship between Substantive and Procedural Due Process
1. District Attorneys Office for the Third Judicial District v. Osborne (2009)
a. Facts: Osborne and another man were convicted of a brutal rape and assault.
i. Evidence against them included a spent shell casing, an axe handle with which
they attacked the victim, the victims clothing, and a blue condom one of the
men wore during the rape.
1. DNA testing was performed on the condom, which matched the DNA
of Osborne
ii. Osborne is now asking for access to this evidence in order to perform more
DNA testing
1. He claims that State law says that he has a right to access this evidence
a. State law says that the evidence must have been newly
available, diligently pursued, and must be sufficiently
material.
b. Holding: The Court holds that the process in place is adequate.
i. Is there a fundamental right to prove your innocence?
1. Yes, but Osborne already had that chance at trial
ii. After conviction, is there a fundamental right to assert your innocence? No.
1. No history of this right after conviction
iii. If you cannot establish a fundamental right, what standard applies?
1. Rational Basis
a. State has a legitimate interest in not providing PCR
2. Once you are convicted, you have fewer liberty interests
UNIT V: EQUAL PROTECTION
I.
Equal Protection
a. Introduction
i. The Constitution as originally drafted and modified had no provisions ensuring equal protection of the laws
1. 14th Amendment
a. No state shalldeny to any person within its jurisdiction the equal protection of the
laws.
i. The promise of this provision went unrealized for almost a century
1. Brown v. Board of Education ushered in the modern era of equal
protection jurisprudence
ii. Applied equal protection to the states
2. 5th amendment
a. applied equal protection to the federal gov -- Due Process is enlarged to include EP
i. The court interpreted the 5th amendment as including an implicit requirement for
equal protection
1. Discrimination may be so unjustifiable as to be violative of due
process
ii. The requirements for EP are the same for both the federal government (5th
amendment) and the state government (14th amendment)
3. Government action only:
a. The EPC & the 5th Amendments DPC apply only to governmental action, not private
individuals
ii. Analysis:
1. What is the classification?
a. How is the government distinguishing among people?
i. Facially
1. The classification exists on the face of the law
a. Its terms draw a distinction among people based on a
particular characteristic
ii. Discriminatory Impact/Effect law facially neutral
1. Insufficient to prove a racial or gender classification
a. Must have proof of a discriminatory purpose
2. What is the appropriate level of scrutiny?
a. Strict scrutiny
i. Test: law must be necessary to achieve a compelling government purpose

1.

b.

c.

Standard of
Review
Strict Scrutiny

Classification

The government must show that it CANNOT achieve its objective

through any less discriminatory alternative
a. The government has the burden of proof that the law is
necessary to achieve a compelling purpose
b. The means must be narrowly tailored to the compelling
purpose
2. ***Law almost never can survive this standard***
ii. Protected groups:
1. Race
2. National Origin
Intermediate Scrutiny
i. Test: law is upheld if it is substantially related to an important government
purpose
1. The governments interest must be important
a. The means must have a substantial relationship to the end
being sought
i. The government has the burden of proof
ii. Protected Groups:
1. Gender
2. Non-marital Children
Rational Basis minimum level of scrutiny
i. Test: law will be upheld if it is rationally related to a legitimate government
purpose
1. The governments purpose must be legitimate
a. The means chosen only need be a rational way to accomplish
the end
i. The challenger has the BOP
b. ***This test is enormously deferential to the government and
law are usually upheld under this standard of review
Government Interest
Means Test
Burden of Proof

Race, national origin,

alienage

Compelling

Narrowly tailored

Gov

Important

Substantially
Related

Gov.

Legitimate (any
conceivable purpose, even
if not the one stated)

Rationally related

(Immutable Characteristics)

Intermediate

Gender, non-marital
children
(Immutable Characteristics)

Rational

Everything else

3.

Does the government action meet the level of scrutiny?

a. Evaluating the governments means and ends
i. Underinclusive
1. A law is underinclusive if it does not apply to individuals who are
similar to those whom the law applies
a. Raises the concern that the law targets a particular powerless
group or that it exempts those with more political clout
ii. Overinclusive
1. A law is overinclusive if it applies to those who need not be included
in order for the government to achieve its purpose
a. The law unnecessarily applies to a group of people covers
more that it needs to in order to accomplish its purpose
i. Ex) Japanese Internment during WWII
b. Risk burdening a politically powerless group which would
have been spared if it had enough clout to compel normal
attention to the relevant costs and benefits
b. The Rational Basis Test
i. RULE A law meets rational basis review if it is rationally related to a (conceivable) legitimate
government purpose
a. There is a strong presumption in favor of laws that are challenged under the rational basis
test.

ii. Legitimate Purpose

1. Police Power general welfare
a. Protecting safety, public health, or public morals.
i. These are legitimate government purposes, but they are not the only ones.
2. What Constitutes a Legitimate Purpose?
a. Romer v. Evans (1996)
i. Facts: CO Amendment 2 was a voter-approved initiative that repealed all laws
protecting gays, lesbians and bisexuals from discrimination and that prohibited
all future government action to protect these individuals from discrimination.
ii. Holding: The court held the Amendment to be unconstitutional because it failed
to serve any legitimate purpose.
1. The government NEVER has a legitimate purpose in singling out a
particular group and precluding it from using the political process.
a. The law at issue justifies the inference that the disadvantage
imposed is born of animosity toward the class of persons
affected.
2. The law classifies homosexuals to make them unequal to everyone else
not to further a proper legislative end.
a. State taking away protection from certain people, but not from
others.
b. CO legislated against this group simply because they didnt
like the group
i. Never a legitimate purpose
3. Almost anything the government can come up with is legitimate
a. I.e. protecting freedom of association, moral judgment
b. How should the Court determine the purpose of a law?
i. As long as the Court can come up with some legitimate purpose for the law, it
will be upheld
1. If the law is aimed at hurting a particular group of people, then the
Court will look at the actual purpose
3. Must the Purpose be Actual or Conceivable?
a. RULE
i. A law will be upheld so long as the governments lawyer can identify some
conceivable legitimate purpose, regardless of whether that purpose was the
governments actual motivation.
1. Actual purpose irrelevant
a. A law must be upheld if any state of facts reasonably may
be conceived to justify its discrimination.
b. U.S. Railroad Retirement Board v. Fritz (1980)
i. Facts: A federal law was designed to prevent retired railroad workers from
receiving benefits under both the Social Security system and the railroad
retirement system.
1. The law allowed those who were already retired and receiving dual
benefits to continue to get them, but those who were still employed
could not get dual benefits unless they had worked for the railroads for
25 years.
a. The result was that a person who had worked for 10 years for
the railroads and was already retired could get dual benefits,
but a person who had worked for 24 years and was still
employed could not collect dual benefits.
ii. Holding: The court upheld the law.
1. Where, as here, there are plausible reasons for Congresss action, our
inquiry is at an end.
a. It doesnt matter if this reason underlies the legislative
decision or not because the court has never insisted that the
legislature articulate its reasons for enacting a statute.
i. The court accepted the governments claim that the
Congress could have believed that those who had
acquired a statutory entitlement to dual benefits while
still employed in the railroad industry had a greater
equitable claim to those benefits than those who were

2.

no longer in railroad employment when they became

eligible for dual benefits.
Main point: The reason that the court upholds this retirement system is
not the reason that the state gives, but one that the court makes up for
the state.
a. Any conceivable purpose is enough
b. Reason:
i. Save the state money AND
ii. Protect people who have relied on this system

iii. Reasonable Relationship

1. Under the rational basis test, laws will be upheld unless the governments action is clearly wrong,
a display of arbitrary power, not an exercise of judgment.
a. ***The court will allow laws that are both significantly underinclusive and overinclusive.
2. Underinclusiveness
a. Allowed because the government may take one step at a time, addressing itself to the
phase of the problem which seems most acute to the legislative mind.
i. Railway Express Agency v. NY (1949)
1. Facts: An ordinance banned all advertising on the sides of trucks unless
the ad was for the business of the trucks owner.
a. Argued that this distinction was irrational as a way to achieve
the governments purpose of decreasing distractions for
drivers and promoting traffic safety.
2. Holding: The court upheld the ordinance.
a. Why?
i. The government might have perceived some
difference among the ads and that it was immaterial
whether the government failed to deal with even
greater distractions to motorists.
b. **Just because the law is underinclusive, does not mean that it
is not rationally related to the legitimate purpose
3. Overinclusiveness
a. NY City Transit Authority v. Beazer (1979)
i. Facts: Citys regulation prevented those in methadone maintenance programs
from holding positions with the Transit Authority.
ii. Holding: The court upheld the law under the rational basis test.
1. Methadone is an effective cure for the physical aspects of heroin
addiction and the strong majority of patients who have been on
methadone maintenance for at least a year are free from illicit drug use.
a. Thus, the exclusion of all methadone addicts was substantially
overinclusive relative to the goal of safety because the vast
majority of those in methadone programs posed no safety risk.
2. BUT any alternative rule is likely to be less precise and will assuredly
be more costly than the total ban on those using drugs.
3. Drug users are not a protected class
a. Therefore, as long as the law is rationally related to the
government interest, the law will be upheld
i. It is not the role of the Court to come up with a new
method
4. Laws Deemed Arbitrary and Unreasonable
a. U.S. Dept. of Agriculture v. Moreno (1973)
i. Facts: A provision of the Food Stamp Act of 1964 excludes from participation in
the food stamp program any household containing an individual who is
unrelated to any other member of the household.
1. Moreno was denied federal food assistance solely because she is
unrelated to the other members of her household.
ii. Holding: The court invalidated, as violating the rational basis test, a federal law
that prevented a household from receiving food stamps if it included individuals
who were not related to one another.
1. ***A bare congressional desire to harm a politically unpopular group
cannot constitute a legitimate governmental interest.
2. The historical purpose of the legislation was to prevent hippies from
living together and getting food stamps because they were lazy

a.

c.

The government argues that the purpose was to prevent fraud

in the food stamp program
i. The fraud claims cannot stand because the Act itself
has fraud provisions and the unrelated member law
has no relation to this fraud prevention
b. This legislation was both overinclusive and underinclusive so
it did not pass rational basis
i. Overinclusive has no bearing on whether or not
people are committing fraud AND excludes a lot of
people who need food stamps
ii. Underinclusive doesnt address those people who
are related and are engaging in fraud
iii. When a law is both underinclusive and
overinclusive, the law is irrational
iii. Dissent: Questions like this are for Congress, not for this Court.
1. There is a rational basis for such a provisionCongress could deny
food stamps to members of households which have been formed solely
for the purpose of taking advantage of the food stamp program.
b. City of Cleburne, Texas v. Cleburne Living Center (1985)
i. Facts: A Texas city denied a special use permit for the operation of a group home
for the mentally retarded.
ii. Holding: The law is unconstitutional under a rational basis review.
1. The court concluded that the ordinance was not a reasonable way of
accomplishing the goals.
a. States justifications for the laws were based on prejudices
against the mentally disabled.
i. Indulging private biases is not a legitimate
government purpose.
2. The mentally retarded are not a suspect class. However, the permit
required to run a group home for the mentally retarded does not rest on
any rational basis but on an irrational prejudice against the mentally
retarded.
a. RULE: to withstand equal protection legislation that
distinguishes between the mentally retarded and others must
be rationally related to a legitimate governmental purpose.
i. The government essentially drew a distinction
between a home for the mentally disabled and all
other facilities
3. What determines the level of scrutiny?
a. History of discrimination against the group
b. Ability of the group to protect themselves
i. The democratic process doesnt work if people
cannot protect themselves
c. Immutable characteristics
4. Here, it seems as though the Court is looking for the Legislatures
actual purpose in passing the law
a. Rational basis with bite
i. Clearly defined group with immutable characteristic
Classifications Based on Race and National Origin
i. 4 Questions
1. Treatment of Race Pre-Civil War (14th Amendment) and before Brown?
a. The Constitution itself protected slavery.
i. The courts also chose be an instrument for racial inequality, rather than limiting
it.
b. Race stands at the center of equal protection jurisprudence
2. Why Strict Scrutiny?
a. History of discrimination
b. History of the 14th Amendment to protect
c. Stereotypes
d. Immutable characteristics
e. Political Powerlessness
3. How to Prove Race Classification?

a.

Facially Explicit
i. If the law is facially explicit, strict scrutiny will apply.
1. I.e. Loving v. VA
b. Facially Neutral
i. Equal protection requires proof of a discriminatory purpose/intent in order to
demonstrate that a facially neutral law constitutes a racial classification.
1. Proof of a discriminatory impact by itself is not sufficient to prove an
equal protection violation impact as a factor in considering intent.
4. How Should Law Benefitting Minorities Be Treated?
ii. Race Discrimination and Slavery Before the 13th and 14th Amendments
1. Introduction
a. Prior to the adoption of the 13th Amendment in 1865, slavery was constitutional.
i. Prior to the adoption of the 14th Amendment in 1868, there was no constitutional
assurance of equal protection and thus no limit on race discrimination.
1. Article I 2: The Constitution classified slaves as 3/5 of all other
persons
2. Article IV 2: Fugitive Slave Clausean escaped slave had to be
returned.
b. Also, the judiciary consistently enforced the institution of slavery by ruling in favor of
slave owners and against slaves.
c. Landowners who owned slaves had extra representation in Congress
d. The South would only sign the Constitution if the Framers barred the prohibition of
slavery and insured the return of slaves who escaped to the North
i. PA passed a law that said escaped slaves were free citizens and would not be
sent back
1. Supreme Court struck this down as unconstitutional
2. Dred Scott v. Sandford (1857)
a. Facts: In 1819, a major national controversy centered around whether or not Missouri
would be a free or slave state. In the Missouri Compromise, Congress admitted
Missouri as a slave state, but prohibited slavery in the territories above a certain latitude
(3630).
i. Dred Scott was taken to Illinois, a free state, by his master. When his master
died, Scott sued administrator of his masters estate, Sandford, and claimed that
this residence in Illinois made him a free person.
b. Holding: The SC declared the Missouri Compromise unconstitutional and declared that
slaves were property, not citizens.
i. Whether anyone who is a descendant of slaves can bring a claim for citizenship?
1. Nothe court looks to the history of the drafting of the Constitution
and the Constitution had no original intent to grant citizenship to
blacks.
a. If we view the Constitution as originalists, then Dred Scott
was decided correctly.
2. Further, the court went too far by invalidating the Missouri
Compromise slaves are property and Congress does not have the
power over slave property.
a. The court could have just said that former slaves are not
citizens and the court thus does not have jurisdictiondismiss
the case for lack of jurisdiction.
ii. Can Congress pass the MO Compromise? No.
1. Slaves are property, therefore, Congress has deprived masters estate of
his property
a. Violation of due process rights
iii. 1 of the 14th Amendment overruled the courts decision in this case.
1. All persons born or naturalized in the US are citizens of the US and
of the state wherein they reside.
2. Also provides that no state shall deprive any citizen of the privileges or
immunities of citizenship, or deprive any person of life, liberty, or
property with due process of law, or deny any person equal protection
of the laws.
iv. ***This decision became the focal point in the debate over slavery and, by
striking down the Missouri Compromise, the decision helped to precipitate the
Civil War.

3.

Strauder v. West VA (1879)

a. The court declared a law that prohibited blacks from serving on juries as unconstitutional.
iii. Strict Scrutiny for Discrimination Based on Race and National Origin
1. ***The government must show that the discrimination is necessary to achieve a compelling
government purpose.
a. There must be an extremely important reason for the governments actions AND
b. The government must demonstrate that the goal cannot be achieved through any less
discriminatory alternative.
2. Justifications for Strict Scrutiny
a. Long history of racial discrimination
b. Racial prejudice
c. Political powerlessness of racial and national origin minorities
d. Race is an immutable traitacquired at birth and cannot be changed
iv. Proving the Existence of a Race or National Origin Classification
1. Facially Discriminatory Laws Strict Scrutiny
a. Korematsu v. U.S. (1944) Race Classification that Burdens Minorities
i. Facts: Korematsu was convicted in federal court for remaining in CA, contrary
to the order requiring all persons of Japanese ancestry to leave that area.
ii. Holding: The court upheld the constitutionality of the relocation of Japanese
Americans during WWII. The court accepted the governments claim that there
was a serious risk to national security from Japanese Americans who were
disloyal to the US and there was no way of screening to identify such
individuals.
1. Must be necessary to achieve a compelling interest
a. The court emphasized that it was upholding the order because
it was wartime and hardships are part of war.
b. There was no other practical waygoing through tribunals to
determine who is a threat would be too burdensome.
2. ***This is the 1st time the SC articulated the requirement for strict
scrutiny for discrimination based on race and national origin.
a. All legal restrictions which curtail the civil rights of a single
racial group are immediately suspect. That is not to say that all
restrictions are unconstitutional. Pressing public necessity may
sometimes justify the existence of such restrictions; racial
antagonism never can.
i. ***The court applied strict scrutiny to racial and
ethnic categories.
iii. Dissent
1. It is in times of war that we need our constitution the mosthow can
you intern people without a declaration of martial law. If there really is
a threat, we ought to declare martial law.
a. There should be limits to military discretion.
iv. Criticisms
1. The government used race alone as the basis for predicting who was a
threat to national security and who would remain free.
a. Also the racial classification was overinclusive: All Japanese
Americansthere is no evidence as to how many Japanese
sympathizers there are.
b. Underinclusive too: those of other races who posed a threat of
disloyalty were not interned and evacuated.
2. Thus, even though willing he war was a compelling purpose, the means
were not necessary to attaining that end.
b. Plessy v. Ferguson (1896)
i. Facts: A Louisiana law adopted in 1890 required railroad companies to provide
separate but equal accommodations for whites and blacksthe law required
there to be separate coaches, divided by partition, for each race. In 1892,
Louisiana prosecuted Plessy, a man who was 7/8 white, for refusing to leave the
railroad car assigned to whites.
ii. Holding: Laws requiring separate but equal facilities are constitutional.
1. The idea that this is within the police power of the state.
a. ***Think about this in correlation to the Commerce Clause

2.

i. Court advocates less regulation during this time

major changes in worldviews occurring during this
time.
b. The court is recognizing a social distinction
i. This is the police powerlocal officials helping
people get along the way they want to.
ii. If blacks feel inferior, that is solely because they
choose to put that construction on themselves.
c. Treating Whites and Blacks the same
i. Whites are not permitted to ride in Black rail car and
vice versa
2. This case allowed for a greater expansion of segregation.
a. After Plessy, the court did not enforce the equal aspect of
this decision.
iii. Harlan, dissenting: Our Constitution is color blind and neither knows nor
tolerates classes among citizens. All citizens are equal before the law.
iv. Can SCOTUS strike down a state law targeting the social rights of blacks?
No.
1. 14th Amendment is limited to political rights granted under the
constitution and does not extend to private social situations (later
overturned).
a. Dissent is now more relevant than the majority.
c. Brown v. Board of Education (1954)
i. Facts: Involved a challenge to the segregation of the Topeka, Kansas public
schools.
ii. Holding: The court unanimously held that state-mandated segregation inherently
stamps black children as inferior and impairs their educational opportunities (the
court supported this conclusion by citing to psychology literature). Separate
educational facilities are inherently unequal.
1. Constitutionality cannot be resolved using the framers intent
a. The historical sources of the 14th Amendment is inconclusive
and enormous changes in the nature of education made history
of little use in resolving this issue.
i. The court held that they must consider education in
light of its full development and its present place in
American life apply equal protection of the law to
education as we understand the situation today.
2. ***In Brown, the court based its decision on the harms of segregation
in education, rather than providing an overall constitutional judgment
about the impermissibility of government-mandated segregation.
a. Use of social scienceseparation of the races in schools leads
to feelings of inferiority, and thereby stymies their education.
i. This has been criticized the court could have just
said that this is discrimination and this is a violation
of the law itself rather than relying on social science
ii. Chief Justice Warren felt it was important to get a
unanimous decisionhence why the opinion is short
and flowery.
b. Does not strike down the idea of segregation
i. Strikes it down only in the context of education
3. Does not apply strict scrutiny
4. Signals a new 14th Amendment
a. Will begin to enforce equal protection in the context of
minorities
b. Creates precedent to strike down segregation in other
instances
Facially Neutral Law with a Discriminatory Impact or with Discriminatory Administration
Intent
a. Analysis
i. Is intent required?
1. Yes
ii. What does intentional discrimination mean?

1.

b.

c.

Because of, not in spite of

a. Singling out a group based on racedesire to produce the
result
b. Taking action that you know will have a racially unequal
result
iii. How is intentional discrimination proved?
1. Disparate impact often circumstantial evidence (suggests race but
doesnt prove it)
a. The more disparate the impact, the more probative of
intentional discrimination.
2. History of discrimination and of the policy itself
a. Doesnt prove intent, but makes it probable
3. Legislative or administrative history of a law.
a. The procedure that the legislature tookaberrations from
normal procedure.
b. Substantive departure
i. Factors usually considered important by the decision
maker that strongly favor a decision contrary to the
one reached.
4. Must prove that race was A motivating factor, not that it was the SOLE
motivating factor
a. THEN: Once racial discrimination is shown to have been a
substantial or motivating factor behind enactment of the
law, the burden shifts to the laws defenders to demonstrate
that the law would have been enacted without this factor.
i. State must show that they wouldve taken the action
anyway.
Washington v. Davis (1976)
i. Facts: Applicants for the police force in Washington DC were required to take a
test and statistics revealed that blacks failed the examination much more often
than whites.
ii. Holding: ***Proof of discriminatory impact is insufficient, by itself, to show
the existence of a racial classification. Allowing discriminatory impact to suffice
in proving a racial classification would raise serious questions about tax,
welfare, public service, regulatory, and licensing statutes that may be more
burdensome to the poor and to the average black than to the more affluent white.
1. RULE: laws that are facially neutral as to race and national origin will
receive more than rational basis review ONLY IF there is proof of a
discriminatory purpose.
a. ***Equal protection requires proof of a discriminatory
purpose in order to demonstrate that a facially neutral law
constitutes a racial classification.
i. Thus, proof of a discriminatory impact by itself is not
sufficient to prove an equal protection violation.
ii. However, civil rights laws can and often do allow
violations to be proved based on discriminatory
impact without evidence of a discriminatory purpose.
2. The court held that the purpose of the Equal Protection Clause is the
prevention of official conduct discriminating on the basis of race.
3. Here, the law is neutral on its face
a. But has the effect of excluding Blacks form serving on the
police force (discriminatory impact)
b. Need to prove a legislative intent to discriminate
i. Putting the burden on plaintiffs to prove intent
ii. Not asking State to explain discriminatory impact
iii. Impact alone is not enough
McCleskey v. Kemp (1987)
i. ***Court applied the rule in Washington.
ii. Facts: McCleskey, a black man was convicted of 2 counts of armed robbery and
one count of murder for the killing of a white policeman in Georgia. McCleskey
was arrested in connection with an unrelated offense and confessed that he had

d.

participated in the furniture store robbery, but denied that he shot the police
officer.
1. A jury sentenced him to death.
a. McCleskey argued that the Georgia capital punishment statute
violates the Equal Protection Clause of the 14th Amendment
because blacks who murder whites are more likely to be
sentenced to death.
b. McCleskey also argues that the Baldus study proves that the
state as a whole has acted with a discriminatory purpose by
adopting the capital punishment statute and allowing it to
remain in force.
2. Baldus Study
a. Conveys a racial disparity in GA: defendants who kill a white
victim are 4 times more likely to receive a death penalty
conviction.
iii. Holding: Proof of a discriminatory impact in the administration of the death
penalty is insufficient to show an equal protection violation statistical
evidence not sufficient.
1. The SC said that McCleskey must prove that the decision makers in
HIS case acted with a discriminatory purpose.
a. Because he could not prove that the prosecutor in his case was
biased, there was no violation of Equal Protection.
b. Also, the court said that to challenge the law authorizing
capital punishment, he would have to prove that the GA
legislature enacted or maintained the death penalty statute
because of an anticipated racially discriminatory effect.
i. That the legislation was enacted because of, not
merely in spite of its adverse effects upon an
identifiable group.
iv. Dissent: The statistics and GAs past history of a race-conscious criminal justice
system should be taken into account when assessing the plausible implications
of McCleskeys evidence.
v. 14th Amendment is not intended to focus on groups, but on specific individuals,
and the state cannot act because of race.
1. Forces individual case-by-case decisions.
d. Village of Arlington Heights v. Metropolitan Housing Develop. Corp. (1977)
i. Facts: Involved a challenge to a citys refusal to re-zone a parcel of land to allow
construction of low and moderate income housing. The plaintiffs alleged that
this had a discriminatory effect in excluding blacks from the city.
ii. Holding: Plaintiffs failed to carry their burden of proving that discriminatory
purpose was a motivating factor in the Villages decision not to re-zone.
1. The SC explained the different ways that a discriminatory purpose can
be proved:
a. The impact of a law may be so clearly discriminatory as to
allow no other explanation than that it was adopted for
impermissible purposes.
i. Whether the law bears more heavily on one race
than another
ii. Sometimes a clear pattern emerges from the effect of
state action even when the legislation appears neutral
on its facei.e. show a statistical pattern.
b. Through the history surrounding the governments action.
c. Legislative or administrative history of a law.
i. The procedure that the legislature tookaberrations
from normal procedure.
ii. Substantive departure
2. ***Once racial discrimination is shown to have a substantial or
motivating factor behind enactment of the law, the burden shifts to the
laws defenders to demonstrate that the law would have been enacted
without this factor.
a. Disparate impact is a starting point
Remedies: The Problem of School Segregation

i. Swann v. Charlotte-Mecklenburg Bd. Of Educ. (1971)

1. Holding: District courts have broad authority in formulating remedies in desegregation cases
desegregate schools by redrawing district lines, bussing kids, paying close attention to the
composition of schools.
a. RULE: The scope of the violation determines the scope of the remedy
i. The court does have the authority to order a remedy
1. Because this is a broad discrimination, the court can order a broad
remedy.
b. Mathematical ratios are a useful starting point in shaping a remedy to correct past
constitutional violations.
i. This does NOT mean that every school in every community must always reflect
the racial composition of the school system as a whole.
c. Court ordered that all schools must fall within a racial balance of 71% White 29%
Black
i. Re-drew district lines
ii. Transported students across district lines
iii. One-race schools are presumptively invalid
2. Must districts eliminate all segregation? No.
a. When the demographic of the district changes, the Court need not remedy the
segregation
b. Private actions vs. State actions
ii. Bd. Of Educ. Of OK City Public Schools v. Dowell (1991) When should federal desegregation
remedies end?
1. Facts: Oklahoma City public schools were desegregated by a federal court order. There was
evidence that proved that ending the desegregation order would result in re-segregation.
2. Issue: Should a desegregation order continue when its end would mean a re-segregation of the
public schools?
3. Holding: The court held that once a unitary school system had been achieved, a federal courts
desegregation order should end, even if it will mean re-segregation of the schools.
a. If the school board complied in good faith with the desegregation decree since it was
entered AND
b. The vestiges of past discrimination had been eliminated to the extent practicable
i. THEN the desegregation decree could be ended.
1. The court should look not only at student assignments but also to every
facet of school operationsfaculty, staff, transportation, etc.
iii. ***Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007)
1. Facts: Schools in Seattle and Louisville, KY adopted plans which used race as one factor in
assigning students to schools to achieve greater racial diversity.
a. ***Seattle doesnt have a history of ever being segregated.
2. Holding: The court found both plans unconstitutionallimited the ability of school boards to
remedy racial separation.
a. RULE: the government must meet strict scrutiny (actions necessary to achieve a
compelling purpose) even if it is using race to achieve school desegregationIt is well
established that when the government distributes burdens or benefits on the basis of
individual racial classifications, that action is reviewed under strict scrutiny.
i. No way to distinguish between segregation and integration
ii. Plurality: The court found that Seattle and Louisville lacked a compelling
interest for their desegregation efforts
1. The school systems were not seeking to remedy constitutional
violations.
a. Diversity in classrooms is not an interest sufficient to meet
strict scrutiny.
i. Compares to Brown in that we are once again
assigning students on a racial basis and the way to
stop discrimination on the basis of race is to stop
discriminating on the basis of race.
2. To the extent the objective is sufficient diversity so that students see
fellow students as individuals rather than solely as members of a racial
group, using means that treat students solely as members of a racial
group is fundamentally at cross-purposes with that end.
a. However, the school district failed to show that race-neutral
means cannot achieve desegregation.

e.

iii. Is there a compelling interest to racially integrate schools?

1. 5 say yes.
a. Remedying past intentional discrimination
b. Educational benefits of diversity in higher education
i. Kennedy says there is an educational benefit interest
in K 12th as well
2. Are these narrowly tailored to achieve a compelling interest?
a. 5 votes to strike down the opinion as not being narrowly
tailored.
b. Must consider race neutral alternatives
i. Here, they were not sufficiently considered
c. Consideration of race is not necessary to achieve the goal
d. Racial balancing is not necessary
e. Race categories are overbroad
i. Do not account for other races only White, Black,
or other
b. Kennedy, concurrence:
i. Diversity is a compelling interest but not narrowly tailored in this case.
ii. Individualized and Generalized considerations of race
1. Individualized: assigning individual students to schools and using that
individual race to determine whether or not they get a seat at that
school
a. This is subject to strict scrutiny.
2. Generalized: dont look at individuals at all; looking at the racial
demographics of the neighborhood, where do we draw the district line
a. Make decisions based on group-based policy considerations
i. Does not require strict scrutiny
iii. Race can be used in assigning students ONLY IF there is no other way of
achieving desegregation.
1. Alternatives to achieving diversityrace-neutral
a. Socio-economic status
b. Magnet schools with random lottery
c. Allocate resources for special programs
3. Breyer, dissenting: Argued for the need for deference to school boards in desegregating schools.
a. American public schools are increasingly racially segregated.
i. To invalidate the plans under review is to threaten the promise of Brown.
b. Difference between using race to segregate and to integrate
4. ***Black
a. This case doesnt preference one race over the otherpreferences multi-racial schools
Race Classifications Benefiting MinoritiesAffirmative Action
i. Analysis
1. What level of scrutiny?
a. University of CA Regents v. Bakke (1978)No majority opinion
i. Facts: Involved a challenge to the University of CA at Davis Medical Schools
set-aside of 16 slots in the entering class of 100 for minority students.
ii. Holding: The Court struck down the set-aside rule but it is not clear what level
of scrutiny should be applied.
1. 4 justicesIntermediate scrutiny is the appropriate test for racial
classifications benefiting minorities.
a. Voted to uphold the schools affirmative action program
2. 4 justices The affirmative action program violated Title VI of the
1964 Civil Rights Act, which prohibited discrimination by institutions
receiving federal funds.
a. Did not discuss the level of scrutiny.
3. 5 justices Concluded that the analysis under Title VI and the
Constitution is identical.
4. Powell: strict scrutiny should be used for affirmative action
a. Concluded that the set-aside was unconstitutional, but that it
is permissible for race to be used as one factor in admissions
decisions to enhance diversity
i. Total of 5 justices agreed with this.
b. Fullilove v. Klutznick (1980)no majority opinion

2.

i. Facts: A federal law required that 10% of federal public works monies given to
local governments be set aside for minority-owned businesses.
ii. Holding: The court upheld thisthe affirmative action program was justified to
remedy past discrimination. No majority opinion as to what level of scrutiny
1. Concurrence: argued that intermediate scrutiny should be used for
racial classifications serving a remedial purpose.
2. Dissent: Strict scrutiny is the appropriate test.
a. Under our Constitution, the government may never act to the
detriment of a person solely because of that persons race
the rule cannot be any different when the persons injured by a
racially biased law are not members of a racial minority.
c. Richmond v. J.A. Croson Co. (1989)Emergence of Strict Scrutiny Test
i. 14th Amendmentaffirmative action by the state government
ii. Facts: Richmond, VA created a plan to set aside 30% of public works monies for
minority-owned businesses.
1. Goals:
a. Remedy past discrimination
b. If we dont address the issue, we are perpetuating private
discrimination
2. In this case, 50% of the population of the city of Richmond is black and
5 of the 9 seats on the city council are held by blacks
a. The court expresses concern that a political majority will more
easily act to the disadvantage of a minority based on
unwarranted assumptions.
iii. Holding: The general assertion of private/societal discrimination is not by itself
a compelling interestrace was the sole criterion in this public decision.
1. There is no specific evidence pointing to discrimination by private
businesses
2. RULE: Strict scrutiny should be used in evaluating state and local
affirmative action programs. ***A general and broad claim that there
has been past discrimination in a particular industry cannot justify the
use of a racial quota.
a. Why?
i. Necessary to smoke out illegitimate uses of racetoo
hard to tell the difference between benign and
malevolent uses of discrimination and remedial
efforts.
ii. Racial classifications are suspect and legislative
assurances of good intention do not suffice to meet
strict scrutiny.
b. Thinking about individuals in racial categories is dangerous
c. Stigmatizes the group the law applies to
d. Close fit
i. Goal must be pure
ii. And the means must be narrowly tailored to that goal
3. Concurrences: disagrees with OConner and her focus on the lack of
4. evidence.
a. Scalia: the government can NEVER remedy private
discrimination
What goals are appropriate/provide to meet a compelling interest?
a. Examples
i. Remedying past discrimination by the government
1. Yes
ii. Remedying societal/private discrimination
1. Generally NO
a. BUT if you have very specific evidence AND necessary to
prevent government perpetuation
iii. Diversity in higher education
1. Yes
a. Grutter v. Bollinger
iv. Diversity in K-12 education
1. Yes

v.
vi.
vii.
viii.

Avoiding negative effects of racial isolation in K-12

National security
Avoiding violence in the prison system
Maintaining diverse role models NOT a compelling interest
1. Wygant v. Jackson
ix. Increased services in the minority community/underserved communities NOT a
compelling interest
1. Bakke
x. Racial balancing just for the sake of racial balancing is NOT a compelling
interest
3. Factors in determining whether a plan is narrowly tailored
a. Quotas/set asides
i. NOT narrowly tailored
1. There must be a plus factordont want race to be the deciding
factor all by itself
ii. Individualized considerations
1. Instead of quotaswhen you have a quota, pay less attention to
individualized review
b. Race is used in a flexible, rather than mechanical way
i. Race cannot be the sole determining factor
c. Disrupting seniority systems
d. Race-neutral alternatives
i. Demonstrate that they are not as sufficient in achieving goals
e. Minimize the burden on 3rd Parties
f. Time limited
i. How long does this last?
1. A narrowly tailored program usually has check points where we will go
back and re-evaluate the program from time-to-time
2. After the goal has been achieved, the means are no longer narrowly
tailored
3. Must regulate monitoring of progress
g. Avoid over-inclusiveness
ii. Using Race to Benefit Minorities in College and University Admissions
1. Grutter v. Bollinger (2003)
a. Facts: Michigan Law School attempted to enroll a critical mass of minority students to
ensure their ability to make unique contributions to the character of the law school. The
school recognizes many bases for diversitynot strictly racial and ethnic status. Grutter
is a white Michigan resident who applied to the law school with a 3.8 GPA and a 161
LSAT score. She was initially put on the waiting list and then rejected. She then filed suit
in federal court.
i. Reasons for diversity
1. Job connection
2. Dispel stereotypes
ii. Michigan Law School
1. Need a critical mass
a. Easier to stereotype if there are only a few diverse students
i. Dont want to call it a number because if you do then
it becomes a quota.
b. Holding: Colleges and universities have a compelling interest in creating a diverse
student body and they may use race as one factor, among many, to benefit minorities and
enhance diversity. The court accepted the universitys argument that the education of all
students is enhanced with a diverse student body.
i. Is there a race-neutral alternative?
1. Lottery to select the most qualified applicants (Thomas)
a. Absent this, there really is no race-neutral alternative
2. Racial diversity is not the only type of diversity taken into account
ii. There is not a significant burden
1. Overall benefit of diversity
a. The diversity requirement promotes cross-racial
understanding, helps to break down racial stereotypes, and
enables students to better understand persons of different
races.

f.

i. Education is important to citizenship.

ii. Higher education cultivates the leaders of tomorrow
iii. Must be narrowly tailored.
1. Race is not determinative
2. Cant use a quota system
a. Instead, may consider races as a plus in an applicants file
i. This system considers race as one factor among
many.
3. Narrowly tailored = race-conscious admissions program must not
unduly harm/burden individuals who are not members of the favored
racial and ethnic groups.
c. Dissent: The courts deference to the university is not appropriate under strict scrutiny
and diversity is not a sufficient interest to justify the use of racial classifications.
2. Fisher v. Texas
a. Facts: Texas had a Personal Achievement Index, which attempts to weight GPA and SAT
scores. The program awards students who achieve more and race is not taken into
account.
b. Holding: Grutters compelling interest analysis is in place BUT wants more narrowly
tailored
Gender Classifications
i. Introduction
1. It was not until 1971 that the SC first invalidated a gender classification.
ii. What level of scrutiny should be used?
1. First few cases that struck down gender classifications used rational basis
2. Intermediate Scrutiny
a. Reed v. Reed (1971)
i. Facts: An Idaho law specified the hierarchy of persons to be appointed as
administrators of an estate when a person died intestate.
1. The law created 11 categories in rank order so that if there were 2
competing applicants in the same category, the male was to be
preferred over the female.
ii. Holding: The first time the court invalidated a gender classification
1. Still only apply rational basis
a. The SC said that the issue was whether gender had a rational
relationship to the ability to administer the estategender is
irrelevant and thus the law is unconstitutional.
i. Gender doesnt qualify someone to be the executor of
an estate
b. Frontiero v. Richardson (1973)
i. Facts: A federal law allowed a man to automatically claim his wife as a
dependent and thereby receive a greater allowance for quarters and for medical
benefits.
1. A woman could only gain these benefits if she could prove that her
spouse was dependent on her for over half of his support.
ii. Holding:
1. Brennan plurality: Gender is an immutable characteristic;
classifications based upon sex are inherently suspect and must be
subject to strict judicial scrutiny. There is a long history of sex
discrimination.
a. The characteristics that justify strict scrutiny of racial
classifications also are present as to gender discrimination.
b. Sex, similar to race, does not bear on your qualifications.
i. ***Only get 4 votes for strict scrutiny
c. Craig v. Boren (1976)
i. Facts: An OK law allowed women to buy low alcohol, 3.2% beer at age 18, but
men could not buy such beer until age 21.
ii. Holding: The SC agreed upon intermediate scrutiny as the appropriate level of
review for gender classifications. Although traffic safety is an important
government interest, gender discrimination is not substantially related to that
objective.
1. Although the statistics may show that men do drive more often while
intoxicated, a large percentage of men do not drink and drive.

a.

2.
3.

d.

Too under- and over-inclusive

i. Being a male or female does not lead to drunk
driving or not drunk driving.
b. The statistics in drunk driving, although not trivial, cannot
form the basis for employment of a gender line as a classifying
device.
Gender doesnt seem to be the driving factorbased on more of a
stereotype
***Since this case, the SC has applied intermediate scrutiny for gender
classifications.
a. Used for both gender classifications discriminating against
women and men.

U.S. v. VA (1996)
i. Facts: The Virginia Military Institute excluded women. In response to an order
from the 4th Circuit Court of Appeals, VA created the Virginia Womens Institute
for Leadership at Mary Baldwin College,
1. VMI argued they would have to lessen the intensity of the training if
women were completely admitted.
ii. Holding: The SC held that this was insufficient to excuse VMIs gender
discriminationwomen were still denied an opportunity available only for men.
The court applied intermediate scrutiny. This was unconstitutional because it
was based entirely on gender stereotypes.
1. Diverse educational opportunities, as VA points out as its important
government interest, is not actually the purpose of being male only
a. Women are not being given those diverse opportunities
2. There must be an exceedingly persuasive justification for the genderbased government action.
a. The justification must not rely on overbroad generalizations
about the different talents, capacities, or preferences of males
and females.
i. It is true that an overwhelming number of women are
not up to the task.
ii. It is also true that an overwhelming number of men
are also not up to the task.
3. The system would have to be changed, but changing the system to
allow women in would not undermine the educational benefits
a. Assess applicants based on their capacity not on their gender
iii. When is it discrimination?
1. Geduldig v. Aiello (1974)
a. Facts: CA has administered a disability insurance system that pays benefits to persons in
private employment who are temporarily unable to work because of disability not
covered by workmens compensation.
i. Under this law, certain disabilities that are attributable to pregnancy are
excluded from coverage.
b. Holding: The Court upholds the law.
i. Is a pregnancy classification a gender classification?
1. This is not gender discrimination because it distinguishes between
pregnant women and non-pregnant women
a. However, there is a biological difference that cannot be
ignored only women can get pregnant
i. Court strikes down this idea
ii. Is it discriminatory to fail to recognize gender discriminations?
1. It was not the desire of the State to discriminate against women
a. Gender does not have to be taken into account
b. State simply wanted to save money
iv. Gender Classifications Benefiting Women
1. Gender Classifications Based on Role Stereotypes will not be allowed
a. Mississippi University for Women v. Hogan (1982)
i. Facts: Hogan, a male registered nurse, applied for admission to the MUW
School of Nursing. Although he was otherwise qualified, he was denied
admission solely because of his sex.
1. The school argues that it is all women to:

g.

a. Remedy past discrimination

b. Educational benefits to the women
ii. Holding: The Court strikes down the policy.
1. Women had not been discriminated against in the field of nursing
a. MUW is invoking a stereotype women are nurses and men
are doctors
b. Michael M. v. Superior Court of Sonoma County (1981)
i. Facts: CAs statutory rape law defines unlawful sexual intercourse as an act of
sexual intercourse accomplished with a female not the wife of the perpetrator,
where the female is under the age of 18 years.
ii. Holding: The Court holds that this law is constitutional
1. Important government interest preventing teen pregnancy
2. Is the law substantially related to this interest?
a. Equalizes disincentives for males
i. Women already have a substantial number of
disincentives
ii. Levels the playing field
c. Roster v. Goldberg (1981)
2. Gender Classifications Benefiting Women as a Remedy will be allowed
a. Califano v. Webster (1977)
i. Remedying discrimination in the workplace is OK
b. Schlesinger v. Ballard
i. Classification upheld because remedying past discrimination in the military
3. Gender Classifications Benefiting Women Because of Biological Differences Between Men and
Women will be allowed
a. Nguyen v. Immigration and Naturalization Service (2001)
i. Facts: Title 8 U.S.C. 1409 governs the acquisition of U.S. citizenship by
persons born to one U.S. citizen parent and one noncitizen parent when the
parents are unmarried and the child is born outside of the U.S.
1. The statute imposes different requirements for the childs acquisition of
citizenship depending upon whether the citizen parent is the mother or
the father
ii. Holding: The Court held that the statute was constitutional
1. Not related to stereotypes but rather based on biological differences
a. Establish a relationship between the parent and child
i. Mother automatically has a relationship with the
child
b. Is the biological difference relevant?
i. If yes, the law will usually be upheld
Sexual Orientation
i. Are they substantive due process cases or equal protection cases?
ii. Which branches of government decide?
iii. U.S. v. Windsor (2013)
1. Facts: Windsor and Spyer, 2 women who lived in NY, were married lawfully in Ontario Canada.
When Spyer died, she left her entire estate to Windsor.
a. Windsor sough to claim the estate tax exemption for surviving spouses but was barred
from doing so under DOMA
i. DOMA excluded a same-sex partner from the definition of spouse as that term
is used in federal statutes.
2. Holding: The Court struck down DOMA
a. AG said that the United State would not defend DOMA
i. Decided that it was unconstitutional
ii. Congress gets the first say as to whether or not a law is constitutional
1. However, can the executive choose not to defend a specific law?
b. Is DOMA, as it defines marriage, a deprivation of substantive due process and a
deprivation of equal protection?
i. Government purpose
1. To defend traditional marriage
2. Uniformity/choice of law
3. State autonomy
ii. DOMA violates substantive due process
1. Took away tax benefits from marriage

2.

Demeaning same-sex couples by saying they are less than heterosexual

couples
iii. DOMA violates equal protection
1. What level of scrutiny does the Court apply?
a. Similar to Romer
i. Went after a group of people just to go after that
group
ii. No legitimate government purpose not rational
3. Dissent: The majority has case Congress as bigots
iv. Bostic v. Schaefer (2014) **This is NOT a Supreme Court case (4th Circuit COA)
1. Facts: VA prevents same-sex couples from marrying and refuses to recognize same-sex marriages
performed elsewhere.
2. Holding: Because VAs law impermissibly infringes on its citizens fundamental right to marry,
the law is unconstitutional.
a. Substantive due process issue
i. Is there a fundamental right for same-sex couples to marry?
1. Is the right so rooted in history and tradition?
a. There is no history of same-sex couples marrying
ii. Glucksbergs narrow test only applies to new rights
1. The right to marry is not new, so Glucksberg doesnt apply
iii. Can you deny individuals the right to marry? No.
1. Broad fundamental right to marry and the State cannot restrict that
right based on individual characteristics
3. Aftermath
a. Numerous cases in multiple circuits struck down bans on gay marriage as
unconstitutional
b. 6th Circuit upheld the ban
i. It is for the Supreme Court to decide the constitutionality