1.

The Scope of Judicial Review

1.1. Of Congress
(see also Marbury v. Madison)

Morality concerns irrelevant if within power of congress

Purpose is too irrelevant in congresses plenary power
Necessary and Proper Clause requires a mean to and ends test, also not undermine the structure of
government.

McCulloch v. Maryland 2

F: the taxation of a federally created bank by the states would have destroyed the bank financially,
jeopardizing federal legislation.
H: the law creating a federal bank was valid and the taxing of the bank was not

• Congress has enumerated powers, but also the “necessary and proper” clause to execute those
powers and includes the incidental or implied powers.
• Necessary: not completely or absolutely necessary, just in its usual sense and understanding of
“convenient, useful or essential”. Also, not just any power, it is limited
• Necessary Test: Whether it’s an end or a means to an enumerated power: “Let the ends be
legitimate …. within scope of constitution and appropriate and plainly adopted to that
end....consistent with the letter and spirit and of the constitution”
• Congress can use best judgment in the measures they take.
• States can act, but not at the expense of conflicting with federal law
• Federal law and the Constitution prevail over state law
• Supremacy clause: so long as the State law does not go below the minimum threshold of the federal
law, it is not preempted.
• Constitution is not a legal code

1.2. Of President

Consider non-delegation doctrine and political question doctrine

Can decide matters of military nature (see Hamdi)

Marbury v. Madison 2

F: President John Adams appointed Madison as a judge of peace, Jefferson did not deliver the
commission.
H: SCOTUS has the power to order the President through the writ of mandamus but the court has
only original jurisdiction in a few cases, this was not one of them.

• Political question doctrine: only legal questions can be addressed by the court. Specific duties
assigned by law.
• When legally significant acts are finished, they give rise to a right
DC: 7203282-1
• Act of the legislature against the constitution is void
o … supreme law of the land, …not the laws of the United States generally, but those only which shall
be made in pursuance of the constitution, have that rank.
• Powers of the legislature are defined and limited
• The legislature cannot override unconstitutionality of the law
• Only the judiciary can decide constitutionality
o A government of laws, and not of men, the laws furnish no remedy for the violation of a vested
legal right

1.3. Of States
(see also McCulloch v. Maryland)

Martin v. Hunter's Lessee 2

F: after the war there were many landgrabs and legal titles were confusing. Martin, British, said he
owned the land, Virginia appellate court rules por hunter, SCOTUS rules for Martin the brit, and
Virginia Appellate Court refused to follow arguing sovereignty.
H: SCOTUS has the final say on the constitution and federal law

• SCOTUS judicial power extends to “all cases” for federal question jurisdiction
o If no federal question – state court
o If federal question – state court or federal court
o If diversity of jurisdiction – federal court
• SCOTUS judicial power extends to “all cases” for federal question jurisdiction
• Ensures: national uniformity, safeguard against State biases and protection of federal rights of all
citizens.
• Constitution applies Equally to all citizens regardless of states “interpretations”

2. Congressional Powers

2.1. Impeachment

2.2. Commerce Clause

2.2.1. Early commerce clause

Commerce is not just transactions, also intercourse

Direct effects in interstate commerce, close and substantial relationship, not indirect
Commerce is not manufacturing
Commerce is not production of goods
Cumulative effects of intrastate commerce with interstate effects can be regulated

Gibbons v. Odgen (Ferry Case) 1824 yes reg

F: Gibbons had a license to operate the ferry federally, Odgen had a license by NY.
H: A state cannot regulate interstate commerce within its borders when Congress also chooses to
regulate interstate commerce in the same area, the monopoly was invalid, injunction disallowed.
• Commerce clause: congress has plenary power, it is vaguely enumerated not clearly defined, so
broadly construed.
• Commerce is not an exclusive power of federal government but can overrule state law under
supremacy clause.
• Commerce definition: commercial intercourse, interrelated commercial relations
• Among the States definition : intermingled, not just happening in border. Not if completely
happening inside the state or does not interfere with other state.

United States v. E.C. Knight Co. (1895) no reg

H: Upheld Sherman Antitrust Act to set aside acquisition of 4 competing companies to prevent a
monopoly over sugar refining. but, while the act was okay, it did not apply to manufacturing.

• Congress cannot regulate manufacturing if it affects commerce indirectly

• Indirect and incidental effects do not fall within the commerce clause
• Intrastate (within) train rates, might affect the interstate(cross state)

Champion v. Ames (The Lottery Case, yes reg) (1903)

F: Congress forbade interstate shipment of foreign lottery tickets, indicted for transporting them
H: Congress can restrict the exchange of any valuable from commerce subject to the constitution

• Congress can regulate shipping something between states.

• Not commercial but social reasons.
• Congress morality concerns are irrelevant. This is an act within their power even if it’s using
Commerce Clause as a pretext.

Houston, East & West Texas Railway v. United States (Shreveport Rate Cases) (1914) yes reg

H: Establishment of charges for railroads by the federal government is part of the Commerce clause

• Close and substantial relation test

• Congress has authority to control operations in all matters having a close & substantial relation to
interstate traffic

Hammer v. Dagenhar 1918 2 (overturned in Darby) no reg

F: Keating-Owen Act of 1916 forbidding shipment across state lines of goods made in factories which
employed children under the age of 14.
H: Child labor act was indirectly regulating hours of work by children; Congress had no power to
prevent possible unfair competition. It did not regulate transportation, just aims to standardize
employment age.

• direct/indirect test
• Deals with manufacture, not the goods themselves, so Congress cannot regulate.
• Child labor within States is under state authority
• States have exclusive control over methods of production

A.L.A. Schechter Poultry Corp. v. United States (1935) no reg, non-delegation

F: The National Industrial Recovery Act let the president approve codes of fair competition developed
by the boards of various industries. A.L.A. pay less than min to workers.
H: Court struck down the code; Stream of commerce couldn’t support it, as the flow of commerce
between states doesn’t continue once it arrives in the state. The stream had “ended” even though he
got chickens from out of state. Employees are local and sell locally.

• the aggregation of several business does have an effect on commerce

• if there solely is an intrastate business and the connections to interstate commerce are indirect, no
commerce power. Indirect effects are domain of the states
• Non-delegation doctrine: ensure that Congress is a democratically accountable body and
administrators are guided by an "intelligible principle".

Carter v. Carter Coal Co. (1936) (direct or indirect effect) (no reg)

F: Coal conservation act stabilize coal industry and allow collective bargaining and set minimum prices
for coal.

H: Mining is not commerce

• Direct/indirect test: improving commerce and trade by collective bargaining is too indirect
• Mining brings the subjects of commerce into existence. Production is not commerce.
• Since working conditions are local and the employees aren’t directly affecting interstate commerce,
Congress cannot regulate

2.2.2. Evolving commerce clause

Substantial relation

NLRB v. Johns & Laughlin Steel Corp. (1937) (yes reg) (substantial relation)

F: NLRB created by federal statute, right to collective bargaining showed extensive finding that it was
related to interstate commerce. The Corp was an integrated company all over the country, doing
mining and selling.
H: the relationship to commerce has to be close and substantial relation, not anymore direct/indirect.

• Congress power is not limited to indirect and direct distinctions

• Substantial relation test: If the relationship is sufficiently close and the causal relationship is
enough.

2.2.3. Contemporary commerce clause

Substantial economic effect

Objects that entered commerce at some point can be regulated

United States v. Darby (1941) (yes reg)

F: Federal act prohibit movement of goods between states lines if produced in substandard labor
condition, Fair labor acts standards, and established standards: wage and hours in any industry
engaged in commerce.
H: Even if activity is local and not purely "commerce", it may still be reached by Congress if it exerts
substantial. FLA was constitutional.

• Congress power is plenary and may overlap with state’s police powers
• Purpose of the restriction is irrelevant, can serve purposes beyond commerce
• Can regulate intra state activities that affect interstate commerce.
• Congress can prohibit production of goods in interstate commerce and movement
• Requires a legitimate end for the regulation

Wickard v. Filburn 1942 2 yes reg

F: Congress sets quota on wheat production to stabilize price. Farmer significantly exceeded (more
than double) production limits, claimed it was for personal consumption and was fined.
H: Even if activity is local and not purely "commerce", it may still be reached by Congress if it exerts
substantial effect on interstate commerce in the aggregate. The law was constitutional.

• Commerce has to have a substantial economic effect test: influences substantially price and market
conditions
• Overflow/extra will most likely enter the market at some point = substantial influence on price &
market conditions
• Can regulate indirect economic activity, like local production, is the scale of the act is relevant
(aggregation effect, then all farmers do it affects commerce).

Heart of Atlanta Motel v. United States (1964) (yes reg) (noncommercial reasons ok) tempered by
Lopez

F: Civil rights act ordered hotel serviced black people and don’t discriminate in the basis of race.
H: Constitutional

• Burdens of race discrimination affect interstate commerce due to less travel

• Noncommercial reasons to justify a commerce measure by Congress is acceptable

Katzenbach v. McClung (1964 ollies BBQ) (yes reg) (objects of commerce) tempered by Lopez

F: Civil rights act ordered restaurants not to discriminate in the food industry.
H: Constitutional

• Race discrimination will deter black people from buying

• Food that has moved into interstate commerce is covered by congress

2.2.4. Contemporary commerce clause mitigated

Criminal and family measures are not commerce

Goods that move in interstate commerce is not enough to regulate
Test 2: Substantial relationship to commerce
Test 1: Activity regulated must be a commercial activity even if there is a moral purpose behind
Congress may control 1) use of channels/ stream of commerce (highway, train, activity crosses
state lines, etc) of interstate commerce; (2) instrumentalities of interstate commerce (safety of
 trucks, cellphones, internet); (3) activities that substantially affect interstate commerce (aggregation
effect). 4. If it affects the statutory scheme (Raich).
Test 1: To regulate, an economic activity must be identified, exception Raich

United States v. Lopez (1995)

F: gun free zones act made it a criminal offence to carry guns close to a school.
H: unconstitutional
• No clear effect on commerce or engaging in commerce, failed the substantial effect test.
• Not regulating commercial activity
• The fact that the goods moved in interstate commerce was not relevant anymore
• Rehnquist: 1. Congress can regulate the channels of interstate commerce. 2. Congress can regulate
the instrumentalities of interstate commerce, and persons and things in interstate commerce. 3.
Congress can regulate activities having a substantial relation to interstate commerce.
• Definition of instrumentality: vehicle of interstate commerce--anything in which interstate
commerce is conducted and thus facilitates interstate commerce.

United States v. Morrison (2000) (not commercial)

F: Violence Against Woman Act, remedy for violence and crime for acts motivated by gender.
H: Violence against woman is to be policed by state police power

• Some economic activity must exist to be regulated, violence against woman is not an economic
activity.
• crimes aren’t interstate activity; if this passed Congress could regulate every human activity.
• Dissent: Souter - “in the aggregate” it could.

Gonzales v. Raich (2005)

F: Federal law outlawed marihuana and the mere growing of pot and consuming was allowed by the
state.
H: congress can regulate non-commercial activity when there is an impact in the interstate market

• To regulate non-commercial activities there must be a reasonable connection test: reasonably tied
to the regulation of the interstate commercial aspects of that same commodity.
• (Wickard) Congress can regulate purely local activities that have a substantial effect on interstate
commerce, even if the activity is not itself “commercial.”

NFIB v. Sebelius (2012)

F: Afordable care act, mandatory purchase requirement of insurance.

H: constitutional under Congress’ taxing power but not under the commerce clause. All commerce
power stuff is dicta.

• State from economic inactivity to a state of economic activity is beyond the commerce power.
• Compelling someone to engage in commerce is not regulating commerce. Congress was
empowered to regulate commerce, not compel it
• Violates necessary and proper, cannot force people to engage in commerce by getting the
insurance
3. Federal Limits On State Power

3.1. Dormant commerce clause

(states cannot regulate interstate commerce, only federal government)

State powers are plenary limited only by the constitution

Commercial discriminatory treatment in favor of locals in invalid
Facially discriminatory? Strict scrutiny
Facially neutral: means to an end and substantial interstate effects test.

City of Philadelphia v. New Jersety (1978) (Discrimination, not ok)

F: NJ bans solid liquid waste from out of state. It lowers the price for in state disposers by lowering the
price of in state disposal because of less demand for landfills.
H: struct down the law as facially discriminatory.

• State has plenary powers unless 1) conflict with federal law 2) conflict with constitution 3)
explicitly preempted by statute (immigration or nuclear energy)
• Legislative ends test must: address legitimate local concerns and have incidental effect on
interstate commerce.
• Facial discrimination is per se invalid exception: banning out of state products for the benefit of
locals unless the local interest is of great degree and there is no other way to promote it with a
lesser impact.

Maine v. Taylor (1986) (Discrimination, ok)

F: Maine enacted a discriminatory law to prevent entry of some bait fish that spread diseases.
H: Statute was valid, no LRA

• Facially discriminatory strict scrutiny test: 1) serve a legitimate local purpose 2) the purpose can’t
be served by non-discriminatory means, so is there a less restrictive alternative.
• LRA: abstract possibilities are not a justification, impediments for complete success are also not
justification, best efforts to limit the risk is also sufficient.

C&A Carbone Inc v Clarktown (1994) (non facial discrimination, not ok) (local processing requirement)

F: All solid waste that comes to the state to the city, both in state and out of state, myst be run in the
plant of Clarkston.
H: Even if law discriminates against some in-state actors over some other in-state actors, if it
discriminates against out of state actors it is invalid.

• Local processing requirement, prohibits or discriminates out of state business, so is discrimination

• Indirect subsidies that discriminate are invalid, protectionism.

United Haulers Assn. v. Oneida-Herkimer (2007) (local processing requirements ok if state itself)

F: Similar solid waste flow control ordinances than in Carbone, but the facility was owned by a public
agency.
H: Advantages to one in-state enterprise are allowed if owned by a public agency and the government,
federal or state may own a monopoly.

• Laws favoring local government may be directed toward any number of legitimate goals unrelated
to protectionism.
• The dormant Commerce Clause is not a roving license for federal courts to decide what activities
are appropriate for state and local government to undertake.

Dean Milk Co. v. Madison (local processing requirements not ok)

F: law prohibiting the sale of milk in the city of Madison if not bottled within 5 miles of the city.
H: Struck down law as discriminatory, protectionism was not allowed because there were less
restrictive alternatives.

• Reliance on inspectors with federal authority was a less restrictive alternative.

West Lynn Creamery, Inc. v. Healy (discriminatory, subsidies and protective tarrifs, not ok)

F: Massachusetts passed a tax collected on the sale of milk and the taxes were redistributed between
the in-state producers of milk.
H: Discriminatory tax that flows to a group of producers is undue discrimination.

• Protective tariffs are expressly prohibited by the constitution, the measure had the same effect as
a tariff.
• If a law has constitutional components, it does not mean it is constitutional. Like a constitutional
tax and a constitutional subsidy, if they together make for a protective tariff.

South Central Timber Development v. Wunnicke (Market Participant Doctrine, discriminatory, not ok)

F: State of Alaska would only sell timber to residents of Alaska.

H: Struck down law. The limited sale was ok but the issue was that it also had to be processed in
Alaska. Imposing market conditions with substantial regulatory effect outside of that particular
monopolized market is not allowed.

• Market participant doctrine: since Alaska owns the timber it is a monopoly, but the downstream
conditions of the processing are not part of the monopoly.
• The state can impose barriers to the market when it is a participant.

Hunt v. Washington State Apple Advertising Commission (1977) (Facially neutral with effects on
Interstate commerce)

F: North Carolina required that all apples shipped to the state must use the federal quality system.
Washington state had a stricter standard and that gave a higher advantage.
H: Facially nondiscriminatory statutes can be struck down if they have substantial interstate effects.

• Purpose or goal was adequate: avoid confusion and fraud in the apple market
• Effect is that it raises the cost of doing business for out of state apple growers, as it strips
economic benefits of the advantages.
• Ends: it doesn’t connect, because allowed the sale of apples in closed containers
• LRA: there was, mark apples with USDA grade.

Exxon Corp v. Governor of Maryland

F: Law prevented that refiners also operated retail, so refiners like exxon couldn’t vertically integrate
with their gas stations. Out of state refiners could sell as they wanted, it protected the in state
retailers in gas station.
H: If a law creates advantages in state and also out of state and both are substantial, some
discrimination is permitted.

• Commerce clause protects interstate market, not interstate firms

• Even if facially nondiscriminatory, could be struck down, but no clear out of state damage in this
case. Balancing of costs and benefits created in state and out of state.

4. Separation Of Powers Between Congress and The President

4.1. Checks And Balances executive

Youngstown Sheet & Tube v. Sawyer (1952) cat 3

F: whether president’s order to secretary to seize steel mills was part of executive powers. Unions
strike would compromise war efforts.
H: Struck the decision to seize the steel mills.

• Congress rejected governmental seizures in cases of emergency when analyzing seizure legislation,
so there was implicit non acquiescence of congress.
• Only legislative function of the president is to recommend or veto laws.
• Frankfurter concurrence: 1) Congress refusal to grant authority need not be explicit, it can be
implicit by previous deliberation. 2) systemtic practice, long pursued to the knowledge of congress
engaged by the president, can be an instance of acquiescence. 3 previous seizures are not enough.
• Jackson concurrence: Presidential authority 1) pursuant to express or implied authorization of
congress – strong presumption of constitutionality, shifts the burden to the attacker 2) twilight
zone, no congressional grant of authority or denial of power but concurrent authority by the
president or uncertain distribution – congressional acquiescence may operate under all facts and
circumstances 3) incompatible with congress expressed or implied will, only constitutional if within
presidential power – strictest of scrutiny
o Presidential war power is not absolute
o There is no inherent extraordinary power to deal with emergencies inherently in the
president.

4.2. Legislative and Executive Immunity

U.S. v. Nixon 1974 (executive qualified confidentiality privilege, must abide to delegation) cat 2
F: Employees of Nixon (Republican) broke into DNC headquarters in Watergate. Senate set committee
to investigate white house involvement, special prosecutor implicated president Nixon. District Court
issued subpoenas to the president to release documents, president released some documents but
motion to quash subpoena. AG has discretion to decide what evidence is to be used.
H: A subpoena can be issued in matters of criminal trials unless diplomatic, national security and
military.
• Regulation delegating authority to special prosecutor could be revoked but as long as valid,
branches would be bound by it.
• Doctrine of separation of powers has implicit the need to protect confidentiality, but can’t sustain
an absolute privilege, must assert military, diplomatic, sensitive national security secrets. Not
express in constitution, related to the effective discharge of president power.
• Adversary system has some evidentiary privileges to be narrowly construed: priest, attorney, 5th.
• Balancing test: criminal justice vs, confidentiality of president. Affects search of truth vs opinions.

4.3. Foreign Affairs

U.S. v. Curtiss-Wright 1936 (controversial full power sole organ of foreign affairs, chief diplomat) cat1

F: Indictment for conspiration to sell arms to Bolivia. Congress, joint resolution to allow President to
prohibit sale of arms if found contributed to the establishment of peace.
H: non-delegation challenge failed. The President is the sole organ of the nation's foreign affairs
because he is in the best position to act quickly and know what is going on, but that doesn't mean he
can make laws or that Congress doesn’t still have a significant role to play in foreign affairs

• Origin of foreign affairs is the sovereignty powers that vested on the union, the federal
government: negotiate treaties and wage war.
• No need of congressional power delegation – plenary power of the president
• Foreign affairs is a plenary executive power.

Dames & Moore v. Regan 1981 (congressional acquiescence) cat1+2

F: American embassy personnel were held in Iran, president carter IEEPA declared national emergency,
blocked all the property belonging to Iran. Treasury regs nullified all decrees, liens, on Iranian property.
Created a court of arbitration to solve problems. Executive order to suspend all claims in US courts.
H: President does not have plenary powers to settle claims against foreign entities, but Congress
acquiesced, so the executive order is valid.

• Broad discretion given by congress in matters of national security or emergencies

• "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and
never before questioned ... may be treated as a gloss on 'Executive Power' vested in the President
by § 1 of Art. II."
• Existent legislation did not purport to bar scope of authority when it invited broad powers. Congress
had not passed resolution against.

Medellin v. Texas (2008) (treaties, no congressional acquiescence)

F: Vienna convention on consular relations, require to inform about consular rights. President bush
issued a memorandum to follow ICJ standards.
H: President´s memo is not valid. It was not an exercise of the take care powers.

• VCCR not self-executing, not binding on state and federal court. Does it have domestic effect on its
own? No congressional authority or senate ratification in that respect.
• President can’t turn non self-executing treaty into it.
• No longstanding congressional acquiescence to make the treaty domestic law.
Zivotofsky v. Kerry (2015) (plenary power of the president, congress cannot encroach) cat 3

F: Foreign Relations Authorizations Act of 2003, recognizes the status of Jerusalem as part of Israel.
Registration at birth of person can choose if born in Jerusalem to say Jerusalem is Israel, consul
preference.
H: Unconstitutional statute. Exclusive power of the president to recognize states.

• Passport requirement was extension to recognize a foreign government, that is a power of the
president.
• Power’s inferred from power to receive ambassadors and make treaties.
• Congress has no power to engage in diplomatic relations with other countries.
• Historical practice supports.

4.4. War powers and due process

War powers resolution is a duly enacted law that overrode the president’s veto (Nixon) for secret
bombing of Cambodia. Require an authorization of use of force by congress to 1) declare war 2)
defensive response 3) statutory authorization. Forbids armed forces to remain for more than 60
days. Congress and President have concurring was powers. Declare war, raise and support armies,
maintain a navy and militia, vs. commander in chief (power to repel attacks).

Hamdi v. Rumsfeld (2004) (due process, limits on executive) cat 2

F: Detention of an enemy combatant should be able to challenge the detention. Hamdi was a US citizen,
said to have taken arms against Afghanistan, required habeas corpus, all personas associated to Taliban
and al-Qaida would be labeled enemy combatants.
H: Congress authorized detention, but due process requires meaningful opportunity to contest factual
basis of the detention.

• Authority of the president to detain was not an issue

• Congress authorized detention in this contest under the statute, applying necessary and
appropriate force powers in wartimes.
• Due process requires 1) notice of factual basis 2) fair opportunity to contest 3) before a neutral
decision maker – not the initial capture, but when the detainee would be still held.
• Presumption in favor of the government was allowed, shifting onus to petitioner
• Courts can decide matters of military nature, state of war has limits on executive
• Dissent Ginsburg and Souter: there is a possible emergency power of necessity if there is a true
necessity, Eg: could detain if poses a national security threat, but Hamdi was detained for 2 years.

Hamdam v. Rumsfeld (2006) (due process, limits on executive) cat 3

F: Military commission could be convened by president under Uniform Code of Military Service
UCMS, an act of congress.
H: Congress authorization did not encompass the use of military force and they had to dollow the
Geneva convention, so the commissions to adjudicated
• Procedural deficiencies in the commission: allowed evidence from coercion, no examination of all
the evidence, conviction on a 2/3’s vote, hearsay admitted – violated UCMS and Geneva
convention.
• Conspiracy was not an offence punishable by the laws of war
• Exclusion of defendant of parts of trial was not a “judicial guarantee indispensable by civilized
people”.

Boumediene v. Bush (2008) (due process, limits on executive)

F: Military Commissions Act constitutionality.

H: Detainee treatment was unconstitutional, restricted the writ of habeas corpus and review by court
of appeals was not enough substitute.

• Combatant status review tribunals – cannot contest enemy combatant classification. No due
process : assistance of counsel, hearsay accepted, limited means to present evidence.

4.5. Legislative powers

Non delegation doctrine: intelligible principle under Schechter and Panama refining. Gundy revival.
Removal encroachment tests: 1) does it undermine that branches’ ability to carry out judicial
functions? 2) does it expand powers of the branch beyond its constitutional bounds ? Analyze under
Youngstown 3) appropriate to that branches central function? (Misstreta)
Removal power: by president or by congress. President can remove high level, purely executive
officers (at will, without interference from Congress (principal officers – heads of independent
agencies; those who work at the pleasure of the President) or after Morrison v. Olson, Congress may
provide statutory limitations on the President’s power to remove all other executive appointee.
Congress cannot give itself the power to remove an officer charged with the execution of laws
except through impeachment.
Congress cannot give a government employee who is subject to removal from office by Congress by
means other than just impeachment, any powers that are truly executive in nature. (Bowsher).
Congress can limit the President's removal power of any officer as long as they do not hold a purely
executive function (old test) consider whether it really infringes on the President's responsibility to
take care that the laws are executed o Congress cannot delegate legislative or executive functions
to its own subordinates (Bowsher).
Congress can create offices, set terms, fund them and abolish them (Art. II sec 2) (Buckley).
Congress can appoint officials that could do secondary legislative functions l

Myers v. United States (1926) (removal powers of president) (eminently executive officer)

F: postmaster appointed and removed by president for 4 years before expiation of term, also
confirmed with the advice and consent of the senate. President Wilson removed before the 4 year
term.
H: Yes, could remove by will because was a fully executive official. Power of removal is incidental to
the power of appointment. The provision requiring Senate consent to remove was void.

• Act was executive in nature

• Take care clause – president must ensure laws are faithfully executed, to do that it must be granted
the power to remove a subordinate
• Executive power is of the president not of the executive officials
Humphrey's Executor (1935) (no removal power of independent officers)

F: members of the FTC could only be removed for inefficiency, neglect of duty or malfeasance.
Roosevelt removed Humphrey from office.
H: removal was unlawful, only limited to for cause standard.

• Legislative intent was to entrust regulatory decision to a body of non-partisan body isolated from
political pressure.
• FTC acts in contemplation of the statute and free from executive control (quasi-legislative quasi-
judicial)

Buckley v. Valeo (1935) (congressional officials cannot have executive duties)

F: federal election campaign act created federal election commission. Members by the president of
senate, 2 by speaker of the house and 2 by the president, to investigate and make regulations and
impose sanctions.
H: appointment and functions violated the appointments clause because they exercised significant
authority pursuant to the laws of the US

• Enforcement power to seek judicial relief – is not part of legislative – it’s executive power.
• Rulemaking power and enforcement functions cannot be carried out by congressional officials.
• Commission was not sufficiently removed from the administration and enforcement of the law.

INS v. Chada. 1983 (constitutional veto, definition of legislative action, congress must abide to
delegation)

F: Immigration and Nationality Act reserved legislative veto of congress for AG’s recommendation to
suspend deportation of aliens, Chada was alien. Resolution was passed to deny permanent residence
by the house, no debate, no senate, no president.
H: Congressional vetos are not constitutional

• Convenience and efficiency does not purge unconstitutionality. Art.1cl.1 All legislative powers
senate and house. Art.1.cl.7 before law must be presented to president.
• Bicameralism and presentment requirements required for legislative action in purpose and effect.
• Legislative action definition: altered legal rights, duties and relations of persons. One house veto
was of legislative character.
• Congress delegated to executive the authority to allow deportable aliens to remain (determination
of policy).
• Congress must abide by its own delegation or modify it by the adequate channels.
• One house actions are expressly laid out in the constitution (treaties, appointments, impeachment
trials) senate, impeachment house.

Bowsher v. Synar (1986) (congress cannot charge its officer with executive powers, congress not
legislating)

F: Gram Rudman Holling Act, automatic spending reduction in federal budget. If deficit exceeded some
estimates, Comptroller could report to the president and the president could issue a sequestration
order to reduce spending, after some days it would become final if congress did not legislate.
Comptroller General, had the authority to investigate receipt of public funds. Nominated the president
from list of speaker and president of senate, removed only by impeachment.
H: Act unconstitutional

• Congress cannot supervise officers charged with the execution of the law
• Comptroller was not independent from congress because it could be removed for cause, and those
provisions could be interpreted widely by congress.
• Comptroller general can’t be assigned legislative functions because was controller by congress.
• Interpreting laws to implement a statute is executive function.

Morrison v. Olson (1988) (removal must not interfere with constitutional duties)

F: Ethic in government act, independent counsel to investigate and prosecute high officers. AG
conducts preliminary investigation notifies special division and they could appoint independent
counsel. Special division court defines jurisdiction. Removal of independent counsel by impeachment
or for cause by AG, or by special division when the job is done.
H: act is constitutional

• Independent counsel is an inferior officer, can be removed by the AG for cause, with limited duties
and limited jurisdiction
• Removal for cause is not an excessive restriction of president’s power, does not sufficiently
interfere by depriving president’s control of the independent counsel.
• It also doesn’t reduce president ability to control prosecutorial powers: 1) no danger of
congressional usurpation (bowsher, chada) 2) no judicial usurpation of executive function and 3) no
prevention of executive branch functions.

Mistretta v. US (1989) (judicial commission with rulemaking powers, separation of powers, undermine
branches constitutional functions)

F: US sentencing commission has seven members appointed by the president. 3 must be federal
judges. Role to create mandatory sentencing guidelines.
H: law was constitutional

• There was an intelligible principle

• Twilight zone: it was a form of permissible judicial rulemaking. It had to be delegated to the courts,
similar to rules of procedure.
• It did not undermine the judges' ability to carry out their constitutional functions.

Clinton v. City of NY. (bicameralism and presentment)

F: Line Item Veto Act enacted by Congress 1996 granting the Presidential power to cancel provisions
tax and money provisions. Pres. Clinton cancelled out over $2 billion to State of NY.
H: unconstitutional because it cannot alter the ways the constitution sets out to make law.

• Unilateral action did not follow bicameralism and presentment

• Concurrence Kennedy: delegation is a violation of separation of powers allowing president to
legislate.

Free Enterprise Fund v. Public Company Accounting Oversight Board (2010) (double insulation)
F: Sarbanes-Oxley Act created Public Company Accounting oversight board, 5 members appointed by
SEC. Broad authority over accounting industry, Commission could only remove for good cause, Court
assumed POTUS could remove only for inefficiency, neglect of duty or malfeasance (Humphrey
Standard)
H: unconstitutional to insulate inferior officer from removal if principal officer is also insulated. Two
layers of protected tenure are prohibited.

• The board cannot not be accountable to the president and independent from the board. Violates
the take care clause, president cannot make sure the laws are faithfully executed.
• Inferior officers can be appointed by heads of department (SEC is a department for con law
purposes)

Lucia v. SEC 2018 (Officers of the US must be appointed by courts, heads or president)

F: SEC delegates administrative law proceeding to administrative law judges. Appointed by staff
members, not by commission itself. Commission can review if it doesn’t it is final.
H: ALJ are officers of the US and must be appointed by the president, courts of law or heads of
department based on the appointment’s clause.

• Definition of officers of the US: Freytag v Commi. 1991 1) hold continuing office and 2) exercise
significant discretion when 3) carrying out important functions. In this case, authority to issue final
decisions and 2) shape the administrative record.

Gundy v. US. 2019 (new non delegation doctrine Gorsuch dissent)

F: pre-sorna sex offender – AG would decide under the new law in which cases the pre act sex
offender would have to register. AG chose to apply or not to apply.
H: there was enough guidance on an intelligible principle.

• Has congress constitutionally divested itself from legislative responsibilities test: has congress
“passed the potato to the executive” 1) congress must make the policy decisions when regulating
private conduct and may authorize to “fill up the details” 2) it may make the rule dependent on
government fact finding 3) may assign judiciary and executive certain non-legislative responsibilities
under constitutional authorities of each branch. Kavanaugh may reconsider non delegation doctrine.

5. The Equal Protection Clause

5.1. Racial discrimination old

State v Post. 1845 (SCNJ)

F: Whether slavery can exist within the limits of new jersey after constitutional change in NJ. Can an
African American become a citizen in the sense that he is entitled to the rights and privileges (Art. III S.
2) guaranteed by the Constitution (one of which is the right to sue in a US Court)
H: Denied habeas corpus and constitution of NJ did not abolish slavery.

Dred Scott v. Sandford (1857) (Overruled by 10th amendment in 1865)

F: Scott sues for his freedom saying that when he was taken to a free state, he was emancipated and is
now a free man.
H: Denied citizenship rights to slaves under constitution, slaves cannot sue.
• Not intended to be a citizen in the constitution and therefore are not entitled to the rights and
privileges of the constitution 1. Therefore, cannot sue in a US court 2. None of the privileges and
immunities of the constitution can be extended to persons of African descent
• States can confound rights on people within its own limits but just b/c someone is a citizen of a
state does not mean he is one of the US

Slaughter house cases: 14th amendment was written to protect newly freed slaves, if it deals with
slaves rights, expansive view. If dealing with racial discrimination, narrower view.

US v. Ruse (1875)
F: Kentucky elections inspection were prosecuted for denying right to vote, violation of 1870
enforcement act of the 15th amendment.
H: Prosecution could not prove the act wasn’t explicitly ascribed to racial motivations.

US v. Cruikshank (1975)
F: Republicans took power of courthouse and were attacked by KKK, convictions were based on
criminal conspiracy.
H: Reversed conviction.

Civil rights cases 1883: 14th amendment requires state action, because the first pat of the amm. is
prohibitory on the states. When an individual invades another individual’s right, the 13th amm. is an
absolute declaration against slavery and authorizes all laws necessary to prohibit slavery. But, the
refusal of service does no have anything to do with slavery, so it’s a matter of state law.

Plessy v. Ferguson (Separate but equal)(1896) (no longer followed. See. McLaurin)
F: court sustained LA statute which required intrastate RR cars to segregate.
which was not protected.
H: Plessey distinguished b/c civil rights (own property, sue, etc) and social rights (attend
school, marry, etc) and the court put the right to ride in RR cars as a social right. Upheld prosecution.

• These distrinctions no longer exist.

• Consequence: SEPARATE BUT EQUAL

Cumming v. Board of Education (1899) (no equalization down) (racial allocation of funds) (C. McLaurin)

F: Black txpayers and parents challenged tax assessment because the money was used to fund white
high shool.
H: Rejected injunction.

• Since the injunctions would only force the closing of white schools, not the establishment of a
black school, no equalization down allowed.
• Local authorities have wide discretion to allocate funds unless: 1) abuse of discretion and 2) in
hostility to the colored race.

Mc Cabe v Santa Fe Railway (1914) (separate but equal, same facilities)

F: Oklahoma statue required that railroads were separate but equal regarding coach facilities, but
sleeping cars and dining cars were allowed exclusively to whited.
H: Even if uneconomical and unpractical, constitutional rights do not depend on the number of people
being discriminated. If facilities are provided to another traveler, it is enough to establish an innovation
to constitutional privileges.

Berea College v. Kentucky (1908) (Corps do not have constitutional rights)

F: Crime to operare schools of both races

H: Upheld conviction because college was a corporation and does not have the same rights as
individuals.

Buchanan v. Warley (1917) (not total denial, at least opportunity to enjoy right)

F: White purchaser sought to enforce a purchase by a black against a statute that prohibited
occupying of whites in residences mayoritarily black and vice versa.
H: Statute violated the 14th amm.

• If separation requirements result in a complete separation of rights, it becomes a violation of the

14th amm.
• In this case, denial of right because could buy at all in those places, in Plessy the black could ride
even if a different car.

Public schools and higher education: same opportunity and substantially equal (before brown v board)

Missouri ex rel Gaines v. Canada (the opportunities furnished to one race must be furnished to the
other) (Reaffirmed in Sipuel v. Board of Regents: Oklahoma has to provide legal education)

F: Student was excluded solely b/c of his race. State had a policy that if
there was no law school for black students it would pay for a student
to go to another state for school. there was no black school.
H: unconstitutional policy, the opportunities furnished to one race must be furnished to the other.

Sweatt v. Painter 1950 (substantially equal opportunities) (law school case) (Relied by Brown v. Board)

F: Admission of black to Texas law school was denied because another separate school was open
H: Ordered admission of student.

• Schools were not equal objectively (size of library, faculty, experience of administration, prestige)
• Education in the other school was not substantially equal.

Mc Laurin v. Oklahoma (1950) (contra. Plessy and Cumming) (relied by Brown v. Board)

F: Black student of U of Oklahoma has a special seat in class, in library and could not eat with other
students
H: Restrictions were unconstitutional because, even if facilities were equal, they impaired the ability to
study and engage in discussions with other students and learn the profession.
Mendez v. Westminister School District 1946 (Affirmed by 9th circuit) (applies to other races) (social
equality beyond similar facilities)

H: struck down school system assignment policy of Mexican-american students to some schools and
other students to other schools.

• Even if in both schools there are similar technical facilities, social equity is paramount in public
schools.

5.2. Race And Brown V. Board Of Education – Racial discrimination in schools

Brown v. Board of Education of Topeka 1954 (Brown 1) (overrules Plessy) (consider 14th amm in
today’s light) (separate but equal unconstitutional only in matters of education)

F: Kansas had separate schools for blacks and whites, seeks admission to public schools in their
communities on a NON-segregated basis, laws permitted segregation according to race.
H: Segregation deprives minority children of equal educational opportunities even in tangible factors
are equal. Doctrine of separate but equal in the field of public education in not valid, segregated
schools are inherently unequal and violated equal protection clause.

• 14th amm. was adopted in 1868, historical background is actually unclear about school segregation.
Education of negroes was almost inexistent. No compulsory school attendance.
• 14th amm. must be read in the light of present life and public education: important for democracy,
foundation of good citizenship, opportunity of education is a right by state.
• Sweatt and Mc Laurin: intangible considerations in education (engage in discussion and prestige).
Segregation instills inferiority and psychological injury.

Boiling v Sharpe 1954 (DC, even if not a state, is bound by due process)

H: School segregation in DC was held unconstitutional

• Even if DC is not a state, 14th amm does not apply, but due process clause of the 5th amm. applies if
discrimination is unjustifiable.
• If constitution imposes a higher bar in the states, unthinkable that it didn’t apply to the federal
government.
• Rational basis: Segregation in public education is not reasonable related to any government
objective.

Brown v. Board of Education of Topeka 1955 (Brown 2) (desegregate at all deliberate speed)
(jurisdiction only as long as there is desegregation)

H: In the implementation of legal remedies, Court can use equity remedies to comply with the ruling.
Any delay in desegregating the schools must be justified and a good faith compliance to the earliest
practicable date must be shown. Reaffirms order of Delaware to school to admit children and remands.

• All deliberate speed standard

Civil rights act 1963: prohibited federal financial assistance if discrimination.

Green v County school board 1968 (freedom of choice by students was not enough)

H: School had affirmative duty to take steps towards a unitary system. Freedom of choice to where to
go was not enough.

Swann v. Charlotte Board of Education 1971. (all deliberate speed) (busing and mathematical ratios)

H: District court’s plan to join school zones and buses was upheld.

• Busing and mathematical rations were adequate tools to desegregate

• Constitutional violation arises from purposeful state manipulation of racial conformation in school
• Judicial power was limited by constitutional violation: once schools reached “united” status the
judicial intervention was over.

Kayes v. School District No1 1973. (no need for state created or assisted segregation)

F: School board had deliberately segregated schools even if not mandated by statute
H: system wide relief was appropriate even if segregation is not created of assisted by the state. If
substantial school segregation persists there is a presumption of responsibility of the board.

Monroe v. Board of Commissioners 1968

H: free transfer plan was found non-essential to prevent white children from leaving the education
system all together due to “white flight”.

Miliken v. Bradley 1974 Miliken 1 (interdistrict remedies)

H: where boundaries between school systems were drawn to deliberately create segregated school,
this DID NOT authorize the courts to reach into adjacent districts, only to redraw or assign students
across boundaries.

Miliken v Bradley 1977 Miliken II (partial return to separate but equal through remedies, order to
spend) (restricted by Missouri v Jenkins)

F: The district court had to dissegregate schools approved a plan providing each black student in a
racially desegregated school and ordered remedial education.
H: desegregation remedies include pupils’ reassignment and ordering the state to spend funds for
remedial education

Missouri v Jenkins. 1995 (spending order outside remedial power)

H: restriction for Milliken II type remedies, the Court ordered that mandating salary increases was
found excessive and outside remedial power.

Freeman v. Pitts 1992 (unitary status, no jurisdiction)

H: Courts can relinquish control in schools once they achieve unitary status.

5.3. Economic Regulation and discrimination

 Equal protection challenges: is it a protected group (Ney York City Transit authority):
Economic measures: standard of review – rational basis: reasonably connected to achieve a
legitimate(permissible) governmental purpose- reasonableness is based on relevant differences:
actually, connected to achieve. Is the classification relevant? (USDA v Moreno)
Racial classification: inmediately suspect - strict scrutiny: compelling government purpose and
narrowly tailored. Even if racial minority is helped through affirmative action (Trump v Hawaii
(Ginsburg Dissent, Adarand)
If explicit purpose in legislation, look there. (USDA v Moreno.) or follow Powell’s dissent in Schweiker
Formal equality: that everyone is applied the same legal rule
Outcome equality: everyone receives the same benefits
Leveling up: no leveling down (few cases level down: Morales Santana and Heckler v Mathews)
Facially neutral laws: need a discriminatory purpose and discriminatory intent (washington v davis)
before applying strict scrutiny, or be in the domain of broad executive powers (Trump v. Hawai
Sotomayor dissent and McLaughlin v. Florida), otherwise, rational basis.
14th amm: clasifications are normally ok but not if based on inmmutable characteristics.

5.3.1. Facial discriminatory

New York City Transit Authority v. Beazer (facially discriminatory) (rational basis standard) (relevant
differences)

F: NYCT authority refused to hire people that took methadone – used to treat heroin addicts.
H: Individuals must be treated equally to the extent they are the same and different to the extent they
are different. But those can only be relevant differences: bear empirical relationship to the purpose of
the role “rational relation”

• 14 amm. only applies to classes of persons characterized by 1) unpopular trait of affiliation and 2)
policy increase the likelihood of bias by the ruling majority.
• Refusing employment to methadone users may be unwise but not unconstitutional.
• While the district court may be right that TA’s rule is broader than necessary, this “concerns
matters of personnel policy that do not implicate the principle safeguarded by the EPC” because
the rules serves “general objectives of safety and efficiency.”
• And even if underinclusive in respect to all drug users, when only apply to methadone users.

US Department of Agriculture v. Moreno 1973 (rational basis test failed) (classification irrational)

F: food stamps act exludes from program is a low income household has a person unrelated to the
household.
H: classification violated 14th amm.

• Rational basis test: Classification must be upheld if 1) rationally related to 2) a legitimate

government interest
• In this case the statutory purpose stated by congress was to “raise levels of nutrition and increase
food usage for the strengthening of agriculture”, classification was irrelevant for those purposes.
• No legislative history showed another purpose, only to discriminate against hippies
• No legitimate purpose to harm a political unpopular group.
City of Cleburne v. Cleburne living center 1985 (rational basis test failed) (facially discriminatory) (bias
not legitimate purpose) (Flood post hoc argument) (no means to end nexus)

F: City has zoning ordinances that excluded homes for alcoholics or drug addicts, denied special use
permit for group home for persons mentally retarded but allowed nursing home for elderly.
H: ordinance violated equal protection clause

• Discrmination against drug addicts’ homes had not legitimate interest behind, just negative
attitudes or fear, not permissible basis. Vague unsubstantiated fears are not justified. Possibility of
flood is not enough purpose, as a nursing home would flood too.
• Stevens concurrence: Rational basis definition: 1) legitimate and 2) neutral. An impartial lawmaker
could logically believe that classification serves a public purpose that transcends harm to
disadvantaged class.

Romer v. Evans 1996 (facially discriminatory) (rational basis failed) (constitutional amendment animus)
(invalid purpose or end)

F: Colorado constitutional amm. prohibiting local government from adopting antidiscriminatory

measures for LGBTQI.
H: amm. violated the 14th amm. equal protection clause.

• Rational basis test: 1) does it impose a brand undifferentiated disability on single named group. 2)
imexplicable by anything but animus – no legitimate state interest -no rational basis
• “Bare desire to harm politically unpopular group is not a legitimate governmental interest”

Minnesota v Clover Leaf Creamery 1981 (actual purpose) (facially neutral) (rational basis met) (debatable
rationality is enough)

F: minnesota banned sail of milk in plastic container but allowed in carton.

H: statute had not violated equal protection clause

• Rational basis: purposed cited by legislation was environmental protection. There is a theoretical
connection between the two but, even if objectively the measure is not rational, if under all the
evidence presented to the legislature and the judiciary the question is at least debatable, if some
evidence rationally supports the classification, then evidence in court that the legislation was wrong
is not sufficient.
• Scalia dissent.

Armour v. City of Indianapolis 2012 (reducing administrative costs is a legitimate interest) (deference in
commercial transactions and taxes)

H: Indianapolis decision to forgive sewer improvement assessments to owners that paid in instalments
and refusing to refund those that paid immediately was constitutional.

• In matters of commercial transaction and taxes, great deference.

• Reducing administrative cost of continuing to seeks payment of instalment payor was legitimate
(scalia dissented on this point)

Schweiker v Wilson 1981 (finding the legitimate purpose, Powell’s dissent)

• Powell’s dissent: legitimate purpose inquiry: 1) statement of purpose of the legislation in a)
statutory scheme or b) legislative history – if there is a discernable purpose it recived deference. 2)
post hoc hypothesis: “fair and substantial relation to the asserted purpose”, it is a stricter test.

Fitzgeral v. Racing Ass. of central iowa. 2003 (unhelpful provisions are permissible) (rational basis,
objective as a whole)

F: tax on slot machines at racetracks was higher than on excursion boats.

H: Differentiated tax did not violate equal protection clause
• law can serve one objective with contrary desirable objectives to balance if it achieves the
objective as a whole.

Railway Express Agency v. NY 1949 (EPC does not require to address all evils) (underinclusive
discrimination upheld)

F: NY prohibited the operation of advertising vehicles but not if the advertising was in the usual
business of the owner.
H: upheld ordinance.

• Equal protection clause does not require to address all evils of the same genus at once, or none at
all.

Williamson v. Lee Optical 1955 (underinclusive) (one evil is enough) (wide discretion in economic)

F: Oklahoma statute, not licensed optometrist couldn’t duplicate or replace lenses without optometrist
prescription, prevented opticians to fit lenses in frames, but excluded sellers of ready to wear glasses.
H: constitutional

• Legislation may select one phase of one field and apply remedy there, neglecting the others
• EPC applies only to invidious discrimination.
• Even if unwise, not a place for the courts to decide

Korematsu v. US 1944 (facially discriminatory) (overruled Trump v. Hawaii) (high level scrutiny if
limitations on race)

F: Rooselvelt executive order, created military areas and made it a crime to refuse the order to leave
home to Japanese americans. Korematuse refused to leave.
H: Executive order was not a violation of the 5th amm.

• Legal restrictions that curtail civil rights of single racial group suspect are constitutionally suspect,
but not inmediately unconstitutional. Look for racial antagonism vs pressing public necessity.
• High level scrutiny: 1) less restrictive alternative + 2) law is necessary to achieve a 3) compelling
government interest.
• There has to be a close connection to the objective of avoidance of espionage and sabotage.
• Means are necessary because it was the only way of control possible, so no LRA.
• Jackson dissent: there was a LRA, not necessary, just increase guards.
Trump v Hawai 2018 (low level scrutiny if within domain of presidential powers) (foreigners not same
rights)
F: Travel ban on muslims
H: Upheld the law, clarified that Korematsu was overruled

• Foreigners do not have the same rights under the constitution, rational basis review: “the entry
policy is plausibly related to the Government’s stated objective to protect the country and improve
vetting processes.”
• Admission and exclusion of foreign nationals is a “fundamental sovereign attribute exercised by the
Government’s political departments largely immune from judicial control”
• Distinguish from Korematsu: Forcible relocation of US citizens to concentration camps v. denying
foreign nationals’ privilege of admissions
• Overruling Korematsu: “The forcible relocation of U.S. citizens to concentration camps, solely and
explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential
authority. … Korematsu was gravely wrong the day it was decided, has been overruled in the court
of history, and— to be clear— “has no place in law under the Constitution.”
• Strict scrutiny racial classifications (Sotomayor Dissenting):

5.3.2. Facially neutral

Washington v. Davis 1976 (neutral law, disparate impact) (outcome inequality) (discriminatory intent
and purpose for strict scrutiny otherwise rational basis, except if extremely discriminatory)

F: Black applicants for police and firemen position are failing the exam 4 times more than white
students.
H: Discriminatory impact is not sufficient for EPC challenge, there would also have to be a
discriminatory intent for strict scrutiny, if not just rational basis.

• Mere discriminatory impact is not enough to find a violation of the EPC

• If law is facially neutral, there has to be both a discriminatory effect and purpose.
• Intent is: 1) Inferred from the totality of the circumstances 2) Look to the historical background of
and something weird about the way it was promulgated
• Unless the law is extremely discriminatory in practice

Yick Wo v Hopkins 1886 (extremely discriminatory in practice) (discriminatory

application/administration)

F: More than 200 chinese operators of laundry rooms in certain types of businesses had requested a
permit from the board to operate but they were never granted.
H: statistics were so egregious that amounted to the unequal administration of the laws.

Shaw v. Reno 1993 (racial gerrymandering not ok) (facially neutral)

F: Dramatically irregular shape drawing of districts, concentrated minority population in a single
district disregarding traditional districting.
H: The districting couldn’t be understood but by separating voters on the basis of race, so even if
facially neutral, it was unconstitutional.
Abbot v. Perez 2018 (history of past discrimination is not enough to invalidate purpose or show
discriminatory intent) (facially legitimate)

F: Racial gerrymandering made for irregular lines to dilute the strength of racial minorities.
H: upheld the drawing of districts.

• Low level scrutiny: presumption of legislative good faith was not overcome by a “history of past
discrimination”. The 2010 maps were invalid and were remade on 2013, but that did not equate to
an original sin in the new maps.
• Taking into account all relevant evidence, not discriminatory anymore.
• Even when decision involved constitutional rights of citizens, limited review to “facially legitimate
and bona fide”

5.4. Affirmative Action

Racial classifications: always strict scrutiny under 14th and 5th amm. (UofCal v. Bakke , Adarand,
Parents Involved)
Purpose: correcting historical wrongs, undoing specific past discrimination.
Diversity rationale is a compelling governmental interest (gruther)
Affirmative action: strict scrutiny: requires narrowly tailored measures.
In matters where the federal government is involved the 14th amm “does not” apply, the 5th amm.
applies, but the result is the same. (Adarand)
Diversity only in higher education (compelling) and to remedy historical discrimination (compelling
only if there is a specific history of past discrimination) (parents involved).

University of California v. Bakke 1978 (race can be considered in admission, but not exclusively) (racial
classifications = strict scrutiny) (remedy historical discrimination is a legitimate purpose) (no rigid quota)
F: program to increase minority group’s enrollment in medical school, 16 seats were reserved.
H: the program violated the 14th amm. Use of race is permitted as a plus, not by isolating other from
consideration. No nexus with the compelling state interest because there was a less restrictive
alternatilve.

• all racial classifications are suspect and should receive strict scrutiny, even if beneficial.
• There can be a legitimate and substantial interest in remedying prior discrimination, but there were
no such findings in this case.

Adarand constructors Inc. v. Pena 1995 (beneficial and upheld) (compelling government interest) (5th
vs 14th amm. similar strict scrutiny)
F: federal government gave contractors of government projects financial incentives to hire
economically disadvantaged individuals. Adarand submitted the lowest bud but Gonzalez construction
certified it was a small business controlled by socially disadvantaged individuals.
H: There is a compelling government interest.

• 5th amendment: protection against arbitrary treatment. 14th amm: equal protection of the law
• 5th amm. in matters of racial discrimination: 1) skepticism: most searching examination 2)
consistency: standard of review is independent of the race benefited, invidious or beneficial
discrimination is treated the same and 3) congruence: equal protection standards are the same for
5th amm, State and federal action are analyzed under the same standard.
• Racial classifications must be analyzed under strict scrutiny: 1) narrowly tailored 2) further a
compelling governmental interest.
• Because of consistency, when government treats a person unequally because of race there is an
injury within the 14th amm.

Grutter v. Bollinger US 2003 (strict scrutiny, ok) (diversity is a compelling interest)

F: U of Michigan Law School, policy of admission did not rely on scores, it emphasized diversity.
H: upheld the policy

• Compelling state interest: its not just racial balancing which would be unconstitutional (Bakke), it’s
the objective of diversity in the student body and the court must defer to it.
• Law school are the training grounds for the Nation’s leaders, legitimate citizenry
• Narrowly tailored: no racial balancing, insulating each category from competition or a rigid quota.
In practice there was no quota, the diversity % varied noticeably. No mechanical predetermined
race bonus. Race was considered alongside other criteria.
• Other race neutral conducts would sacrifice diversity, not just racially, other kinds of diversity.

Parents Involved in Community Schools v. Seattle School District 2007 (strict scrutiny) (past
intentional discrimination) (diversity not compelling in high school or middle school)
F: Seattle had a school choice system to prevent resegregation, students could shoose in which school
they would want to go. The tie breaker was race. If school was overly white, the black kid was chosen
and viceversa. Housing patterns in the city were not as integrated, but schools were not segregated,
Luisville used race in order to preserve desegregation.
H: Diversity is not a compelling interest in school.

• Both actions had to be evaluated under strict scrutiny. To solve past intentional discrimination in
Luisville was ok, but diversity was not a compelling interest in high school and middle school.

5.5. Gender discrimination

Mid level scrutiny + exceedingly persuasive (ginburg US v. virgina)

Are the genders similarly situated?

Reed v. Reed (1971) (First case to rule in favor of women on EPC grounds)
F: At issue was an Idaho statute that dealt with estate administration. The law said that if two people
were of equal eligibility, then preference should be given to the male.
H: unconstitutional

• Rational basis test – failed b/c the statute is arbitrary “whether a difference in the sex of
competing applicants bears a rational relationship to the state objective that is sought to be
advanced by the operation of statute”

Craig v. Boren 1976 (mid level scrutiny) (against men)

F: Oklahoma law, men had to be at least 21 to buy 3.2% beer and woman has to be 18 years old.
H: failed mid level scrutiny and struck down the law.

• Mid level scrunity: 1) important governmental purpose: traffic safety ok 2) substantial relation
between purpose and discrimination: not really a considerable difference only a slim statistical
difference.
US v Virginia 1996 (exceedingly persuasive standard) (actual state purposes)
F: VMI military only men school. Created a separate women only school. “Separate but equal”
H: merely segregating the sexes is allowed when justified by exceedingly persuasive reasons

• Inherent differences can be the cause for favorable treatment for women, but not for
disadvantages.
• No basis that VMI was founded to get the education benefits for men only.
• tenable justification must describe actual state purposes, not rationalizations for actions in fact
differently grounded

Nguyen v. Immigration and Naturalization Service 2001 (mid-level scrutiny)

F: mother citizens could more easily get their children to become citizens, men could do it for their
children, but it was much harder.
H: Upheld federal statute that grants citizenship automatically to children of unmarried parents born
abroad if mother is U.S. citizen, but not if father is a U.S. citizen b/c it is rationally-related to (1)
ensuring biological relationship/preventing fraud and (2) ensuring real relationship between
parent/child (based on ideas about how women bond w/their babies, men getting “trapped” abroad,
etc.)

• There were enough inherent differences between mother-child and father-child relationships that
warranted different treatment.

6. Implied Fundamental Rights

6.1. Incorporation of the Bill of Rights

14th amm. is a limit to the states not to 1) abridge privileges or immunities 2) deprive life, property or
liberty without due process and 3) equal protection. The rest of the amendments apply to bind the
federal government, but most have been incorporated to apply to the states through the 14th due
process. (Not double jeopardy, not jury trial in a civil case and no grand jury trial)
Once a right is incorporated, all the body of precedent would be incorporated.
Reverse incorporation: found in the notion of liberty, can’t be deprived against due process, so it
applies against the federal government.
Incorporation of rights that are: 1) essential to a scheme of ordered liberty 2) fundamental principle
of liberty or 3) fundamental fairness

Twining v. New Jersey (1908)

H: This privilege against self-incrimination is NOT fundamental, so it does NOT apply to the states

• It is possible that some of the Bill of Rights may apply to states b/c of the due process clause of the
14th. To apply, the right must be FUNDAMENTAL.

Palko v. Connecticut (1937) (test whether “neither liberty nor justice would exist” if the
right did not exist)
H: double jeopardy is not incorporated against the states

• To test if a right is fundamental, must determine if it is fundamental to “Ordered Liberty.”

McDonald v. City of Chicago 2010 (2nd amm. right to posses arms is incorporated) (ordered liberty)
F: 2nd amendment right to possess and bear arms in Chicago.

• Right to keep arms is fundamental to an American scheme of ordered liberty

• Rooted in the nation’s tradition

Skinner v Oklahoma 1942 ( unenumerated fundamental liberty) (strict scrutiny)

F: law to sterilize criminals. State could impose sentence of compulsory sterilizations if person had
been convicted of 2 or more crimes amounting to felonies involving moral turpitude ii. Exception
though for white collar crimes
H: The right to have children is an unenumerated fundamental right, protected by the due process
clause (substantive due process).

• Strict scrutiny is applicable because there is a fundamental right

• There was no compelling interest

6.2. Substantive Due Process

6.2.1. Lochner (there is no more substantive due process review of economic law)
F: law setting maximum hours for bakers
H: violated liberty interest in the form of freedom to contract

• Substantive due process: is it within the powe of the state ? is it 1) fair, 2) reasonable 3)
appropriate exercise of police power Vs 1) unnecessary 2) unreasonably 3) arbitrary

Griswold v Connecticut 1965 (not following lochner) (right of privacy) (penumbra and emanation)
F: Statute prohibited the use of contraception by anyone, including married person. Also prohibited
anyone aiding, embedding, or counseling someone to use contraception. Clinic was charged with
violation.
H: Struck down the law as it exceedingly invaded private freedoms. The law violates the general right
of privacy (specifically the right to privacy of married couples in their relationship.)

• No clear right to use contraceptive.

• The right of privacy is to be found in the penumbras and emanations of other rights, like the
freedom of speech and press, the 3rd amendment bans soldiers in one’s home, the 4th amm. search
an seizure and thr 5th amm. self-incrimination. The 9th amm. recognizes there are other rights
retained by people.

6.2.2. Roe V. Wade 1973 & Reproductive Rights (only personal rights are fundamental or part
of “ordered liberty”) (strict scrutiny) (privacy is a fundamental right)
F: Texas law criminalized abortion except when mother’s life was in danger
H: first trimester, state has no compelling interest of any kind, second semester, may have an interest
on the mothers health, third trimester when the fetus becomes viable, state acquires compelling
interest in fetal life except to protect the health of the mother.

• Right to privacy regardless if found on the 9th or 14th amm.

• 1) look at the history to see if it is fundamental: antiabortion legislation was relatively recent, later
half of the 14th century, not part of the legal fabric when the 14th amm was enacted, so silent or
neutral on the issue of abortion.
• 2) the procedures are safer for mothers nowadays
• 3) only personal rights can be deemed fundamental or implicit in the concept of ordered liberty
• Under constitution, fetus is not a person with the same rights as woman
• Woman’s right to privacy is being taken away
• Abortion is a fundamental right (substantive due process right) and therefore SS is the standard (so
state must show a compelling interest that is narrowly tailored)

Planned parenthood of Southwestern Pennsylvania v. Casey 1992 (moderated Rowe) (privacy right
comes from 14th amm.) (living constitution, 14th protects rights not only those defined at the time it
was adopted) (new test, not SS, but 1) whether the law imposes an undue burden on / significantly
obstructs a woman’s right to an abortion)
F: law requires certain pre abortion procedures and notifications
H: rejects rigid trimester test and adopts a point of viability test. Laws cannot impose an undue burden
on a right, in purpose or effect, otherwise will be disallowed.

• Upholds Rowe v. Wade: 1) before viability, no undue interference: no State interest, only that of
protecting the life of the woman and of the fetus
• After viability: state has the power to restrict abortion.
• 14th amm. protects rights
• The Bill of Rights, nor the specific practices at the time of the adoption of the 14th amm. mark the
other limits of the substantive sphere of liberty in the 14th amm.
• Spousal notification was an undue burden. Minor’s consent of parents was ok.

Gonzalez v. Cahart 2007 (ban certain procedures) (unclear standard rational basis + undue burden)
F: criminalized partial birth abortion in previability
H: upheld federal statute limiting partial birth abortion, but only because there was an alternative
method. The alternative ethod, that is safe, is KEY.

• Where there is a rational basis to act and the state does not impose an undue burden on the
women’s right to an abortion, the state may ban certain procedures in furtherance of the country’s
legitimate interests.
• There was a legitimate interest: protect medical profession

Whole Woman's Health v. Hellerstedt 2016 (undue burden test on abortion right)
F: physicians performing an abortion had to have a full surgical suite, many abortion clinics had to
close.
H: discouraged too many abortion clinics to stay open, imposed an undue burden.

Lawrence v. Texas 2003 (right to decide to enter into private consensual sexual conduct) (spacial and
transcendental privacy) (no fundamental right, rational basis)
F: Texas prohibited same sex sexual intercourse. Different than Bowers b/c statute applies ONLY to
homosexuals AND is CRIMINAL prosecution (not a civil action)
H: Statute is a violation of due process. It is a violation of spacial (in the home) and transcendental
(bigger intangible issue) privacy

• Does NOT say gay people are a protected class

• NO SS – rather looked at through “heightened rational basis”
• NOT a fundamental liberty interest (b/c no compelling interest test), just a liberty interest
• "Their right to liberty under the Due Process Clause gives them the full right to engage in their
conduct without intervention of the government." 1. “Liberty” = to engage in adult consensual
sexual conduct in private.
• "The Texas statute furthers no legitimate state interest which can justify its intrusion into the
personal and private life of the individual."

6.2.3. Gay Marriage (Also Addressed Under Equal Protection)

7. The Speech Clause

1st amm. sought to prevent prosecution of seditious libel (criticizing the government) to protect
freedom of speech as a condition of democracy (John Stuart Mills) in the marketplace of ideas.
Clear and present danger think about: 1) imminent 2) highly probable 3) serious evil 4) incitement
not advocacy 5) not an emergency.
Brandenburg test: 1) express advocacy of crime 2) calls for immediate violation of the law 3) must
have the power to result in that violation (probable that the danger may materialize) not just possible,
4) it is so intended.

7.1. Content-Based Restrictions

Masses Publishing Co. v. Pattern SDNY 1917 Learned hand (inciting vs. agitation) (freedom of speech
in war time) (opinion v incitement rejected in Gitlow)

F: Masses had a magazine with poems in 1917 NY, the postmaster forbade the mailing of that
magazine under the espionage act, bc it criticized the draft.
H: The poems were not inciting, so they should be allowed to continue to be mailed.

• Congress can limit efforts against the war (war time powers), Congress has the power to ban
criticism, but it is against national values, so that power had to be interpreted restrictively.
• Incitement: not protected: violent resistance against a law, suggesting that a berson has a duty to
break the law.
• Agitation: protected: criticizing the law.
• If there is no incitement, there is no potential for causation, even if no act is necessary, words are
sufficient.

Schenk v. US 1919 (clear and present danger test) (wartime accentuates) (speech within the
circumstances)

F: People circulated leaflets to resist the draft

H: Congress can ban if the language has the EFFECT of creating a CLEAR AND PRESENT DANGER
that the draft with be obstructed, then it is punishable.

• The language of the leaflet itself was not inciting and the 1st amm. did not only cover prior
restraints, also subsequent restraints (after something has been said)
• But under the clear and present danger test: “whether the words are used in such circumstances
and are of such nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent”; the circumstance of the war created that.
• Presumption of causation and presumption of intent of the natural and foreeable effects of one’s
speech.

Frohwerk v. US 1919 (no clear and present danger test)

F: Published articles in german that could potentially cause disloyalty
H: conviction upheld, there is no immunity for every possible use of language, but in times of war, the
circulation to a German speaking audience presumed causation.

• “It is impossible to say that it might not have been found that the circulation of the paper was in
quarters where a little breath would be enough to kindle a flame and that the fact was known and
relied upon by those who sent the paper out.”

Debs v. US 1919 (no clear and present danger test) (changed by Abrams)
F: prominent politician opposed the war but never used inciting words.
H: War time is an important circumstance to consider and the jury was given the correct instructions
“natural tendency and reasonable probable effect to obstruct the recruiting service”

Abrams v. US 1919 (holmes dissent: inmediate and present danger + pressing purposes)
F: Russian residents in the US attacking the sending of troops to Russia, criticized capitalism.
Convicted of conspiring under sedition act and espionage act.
H: reaffirms conviction applying the principles in schenk and debs.

• Holmes dissent: Present danger or immediate evil is necessary (immediate consequences). Not
present in this case. No more presumption of causation, can’t think the leaflet would do something.
Market place of ideas.
• Holmes dissent: “eternally vigilant against attempt to check the expression … unless they so
imminently threaten immediate interference with the lawful and pressing purposes of the law that
an immediate check is required to save the country.

Gitlow v. Ny 1995 (overturned) (reasonable basis) (clear and present danger dissent)
F: NY Criminal Anarchy Statute prohibited the advocacy of the duty, necessity, etc of overthrowing
the government by violence. 2. D is a newspaper that included a manifesto that advocated a strike
that would lead to overthrow of gov’t with some violent language.
H: conviction affirmed

• Applied Schenck test (Holmes and Brandeis say wrongly): reasonable and probable causation
regardless of actual danger. No clear and present danger applied. Low level rational basis. Even if
no evidence that the manifesto had any effects.
• 1) Freedom of Speech is not absolute 2) State cannot reasonably be required to measure the
danger from every such utterance a. Gov’t doesn’t have to wait till people are rioting in the streets,
can act much earlier. 3) THEREFORE – REASONABLE for the government to draw the line at
speech for advocating for a violent overthrow.
• Where legislature has prohibited certain type of speech, it is assumed that the legislature has
already concluded that this speech is limited because there is a C&PD. Therefore, just rational basis
(reasonable basis) standard is applied so court just have to see if the statute is a reasonable
exercise of police power.
• Homes and Brandeis dissent: clear and present danger test, the idea opinion vs incitement is very
close and in any case the idea of incitement is not very strong. If there were other facts to induce
and uprising, then maybe.
Whitney v. California (1927) (overruled in Bradenburg) (Brandeis concurrence. clear and imminent
danger in concurrence, necessary test (ss), incitement) (inmminent definition) (serious danger)
(emergency powers)
F: Whitney was a member of the socialist party in Chicago, the convention had a militant resolution,
convicted for violating the criminal sedition act of California.
H: Conviction affirmed. Found that the law didn’t violate her DP rights and that the law is not
arbitrary. Uniting with others creates a greater danger to the public.

• Brandeis concurrence: necessity is essential to a valid restriction does not exist unless speech
would produce or is intended to produce a clear and imminent danger of the substantive evil
(shenk). Test is: inminent + serious:
• Brandeis concurrence: fear of serious injury is not enough, reasonable grounds to believe the
danger is imminent. Advocacy of violation of the law is not always incitement, there is a difference
between preparation and attempt, between assembly and conspiracy.
• Brandeis concurrence: immediate serious violence was to be expected or was advocated, ot that
past conduct furnished a reason to believe such advocacy was contemplated.
• Brandeis concurrence: the incidence of the evil is so imminent that it may befall before there is
opportunity for full discussion. Only an emergency can justify repression.
• Brandeis concurrence: the evil apprehended must be relatively serious. Mere advocacy or mere
membership is not enough.

Dennis v US. 1951 (membership) (applies clear and present danger but reduces imminency threshold)
(definition of imminency) (imminence + serious evil)

F: D’s charged with charged only with a conspiracy to talk about overthrowing the government –
meaning, conspiracy to organize an organization that would advocate for overthrowing the
government.
H: conviction upheld

• Clear and present danger: government does not need to wait until the last moment of the plot.
• Imminency definition: “whether the gravity of the evil, discounted by its probability, justifies such
invasion of free speech as is necessary to avoid the danger”

7.2. Brandenburg v Ohio 1969 (modern test for speech inciting illegal action) (mere membership is
not enough)

Clear and present danger think about: 1) imminent 2) highly probable 3) serious evil 4) incitement
not advocacy 5) not an emergency

F: KKK leader was convicted under Ohio State criminal syndicalism law (like the one in CA in Whitney
case). There was a Klan meeting filmed by a TV station; the action words were about “revengence”
taking place if the President, Congress and the Supreme Court continued to suppress the white
people.
H: Unconstitutional, overrules Whitney

• State cannot prohibit speech unless: it can show that the 1) speech is inciting imminent violent
action and is 2) likely to produce such violent action.
• State has to prove to limit speech: a. Speech advocating expressly violating a law(s) or using force
(the speech incited) must be intentionally encouraging this b. Speech has to call for immediate
violation of the law (will be done immediately)
• Test: 1) express advocacy of law violation 2) calls for immediate violation of the law 3) must have
the power to result in that violation (probable that the danger may materialize) not just possible, 4)
it is so intended.

Holder v. Humanitarian Law Project 2010 (no support for terrorist) (special deference in national
security and foreign affairs)

F: material support to foreign territories organization as designated by DOS was prohibited.

H: Even if the support was benign, the freeing of resources helped the organization do the terrorist
activities. Absolutely no support of any kind is allowed.

• conclusions of Congress and the Executive about the dangers of such support were “entitled to
deference” because the statute “implicates sensitive and weighty’ interests of national security and
foreign affairs.”

7.3. Fighting Words, hate speech and public unrest

Terminiello v. Chicago 1949 (mere anger and unrest is not enough)

F: Terminiello was con- victedofdisorderly conduct based on a speech he delivered, the jury/ was
instructed that it could convict if it found that his speech included expression that “stirs the public to
anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”.
H: mere inconvenience, annoyance or unrest is not enough, reversed conviction.

• free speech can invite dispute, even induces a condition of unrest, create or even stirs anger.
Unless shown likely to produce a clear and present danger of a serious substantive evil that rises
far above public inconvenience, annoyance, or unrest.

Cantwell v. Connecticut 1940 (public safety) (peace) (clear and present danger) (court protects
people’s speech on public streets so long as the speech if ideological and does not personally attack
anyone on the street)
F: Jehovah’s Witness would stand on street and ask people passing by if they wanted to listen to a
record which criticized the catholic religion in derogatory way. Two catholic passerbys took offense.
He was convicted with inciting a breach of the peace.
H: Court reversed his conviction because they said there was NO clear and present danger

• Clear and present danger of riot, disorder, interference with traffic upon the public streets, or other
immediate threat to public safety, peace, or order, appears, the power of the State to prevent or
punish is obvious.
• There is no showing that his deportment was noisy, truculent, overbearing or offensive

Cox v. Louisiana, 1965 (facts and circumstances of hostility)

F: Cox led a black protest and the police deemed that asking for a sit in for lunch in the counters of the
store was inflammatory
H: Reversed conviction, “no conduct which the State had a right to prohibit as a breach of the peace.”
no “violence was about to erupt.”

• The demonstrators themselves “were not violent and threatened no violence.”

• “no indication that the mood of the students was ever hostile, aggressive, or unfriendly”
• The fear of violence was thus “based upon the reaction of the group of white citizens looking on
from across the street.”

Smith v. Collin, 436 U.S. 953 (1978) (limiting ordinances invalid) (hate speech is protected)
F: Skokie enacted a series of ordinances designed to block a white supremacist march. These
ordinances (1) required applicants for parade permits to procure $300,000 in public liability insurance
and $50,000 in property damage insurance; (2) prohibited the “dissemination of any material [including
signs and clothing of symbolic significance] which promotes and incites hatred against persons by
reason of their race, national origin, or religion, and is intended to do so”; and (3) prohibited anyone to
demonstrate “on behalf ofany political party while wearing a military-style uniform.”
H: violate the first amendment.

Finer v. NY 1951 (Hecklers veto, public riot, arrest) (Heckler’s veto) (See. Cox for a reversal of
conviction)

F: Feiner was on a soapbox in Syracuse and was urging people to attend a civil rights political meeting
in a hotel that night. He made derogatory remarks about the president, mayor of Syracuse, American
Legion. Some people in the audience of 70 were offended by his remarks. The cops were afraid that
he was stirring up the crown and there may be a fight, so they twice asked to stop talking and he
didn’t. On the third time when he didn’t stop, they arrested him.
H: His general remarks are protected by the 1st amendment, but it is the hostile audience that the
cops were worried about and that is why they were allowed to stop Feiner.

• If there is imminence of disorder b/c of a hostile audience, the police have the right to act as agents
for the crowd and stop the speaker from speaking.
• Doesn’t apply just b/c the audience is objecting to what the speaker is saying.
• “It is one thing to say that the police cannot be used as an instrument for the suppression of
unpopular views, and another to say that, when as here the speaker passes the bounds of argument
or persuasion and undertakes incitement to riot, they are powerless to prevent a breach of the peace.”

Chaplinksy v. New Hampshire 1942 (Fighting Words, only face to face and orally)
F: Jehovah’s witness is passing out pamphlets on the street and there is a disturbance so the cop
escorted him away and as they are walking down the street, they see the town Marshall. The Witness
wanted the cops to arrest the guys causing the disturbance. He says to the Marshall, you are a g-d
damn racketeer and facist. He is convicted under the NH statute for using an offensive or annoying
words towards another person the public street.
H: upheld conviction

• Some words are more of an expression of violence, like throwing a punch. Extremely hostile
expression of personal hatred addressed at a person is unprotected speech.
• Fighting words are those words expressed to another person on the public streets which are
offensive and likely to provoke a fight.
• “What men of common intelligence would understand to be likely to cause an average addressee
to fight.”

Snyder v. Phelps, 562 U.S. 443 (2011) (public or private speech distinction)

F: Westboro Baptist Church in Topeka, picketed hundreds of military funerals to communicate its
belief that God hates the United States for its tolerance of homosexuality', particularly in America’s
military.' Parishioners picketed the funeral of a Marine.
H: affirmed reversal of damages

• whether that speech is of public or private concern, as determined bv all the circumstances of the
case
• “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any
matter of political, social, or other concern to the community' or when it ‘is a subject of legitimate
news interest; that is, a subject of general interest and of value and concern to the public”
• Examine: 1)content, 2) form, and 3) context
• Picketing is not beyond the Government’s regulatorv reach — it is ‘subject to reasonable time,
place, or manner restrictions.’[But the] record confirms that any distress occasioned by Westboro’s
picketing turned on the content and viewpoint of the message conveyed, rather than any
interference with the funeral itself.

7.4. Commercial Speech

Medium level scrutiny + LRA

Virginia State Board of Pharmacy c. Virginia Citizens Consumer 1976 (commercial speech definition)
(mid scrutiny test = time, place, manner restrictions) (not misleading or illegal transactions)

F: Pharmacists that publish prices of drugs would be unprofessional

H: Struck down the law

• Commercial speech definition: not commercial as related to a business, not because a sale is
involved, not because there is a paid item. Test: speech that “does no more than propose a
commercial transaction”, removed from any exposition of ideas” and from “truth, science, morality
and arts in general, removed from discussion of liberal sentiments on the administration of
government.
• Test for commercial speech: 1) justified without reference to the content of the speech, serve a
significant governmental interest and 3) leave open ample channels for communication. In this case
the statute singles out a particular content.
• Focus is on the listener in this case – without these ads about medications, listener cannot make an
educated decision – State can regulate false and misleading and illegal transactions.

Central Hudson Gas v. Public Service Commission of NY 1980 (commercial speech test = mid scrutiny
+ LRA)
F: no promotional advertising for energy usage, they were seeking to promote conservation.
H: struck down law because there were less restrictive alternatives

• Commercial speech test: 1) the expression is within the purview of the 1st amm, because it is not
misleading, and it concerns a lawful activity 2) the governmental interest is substantial 3) regulation
directly advances governmental interest 4) there are no less restrictive alternatives.

44 Liquormart Inc. v. Rhode Island 1996 (1st amm. protection against paternalism) (mid scrunity + LRA)
F: prohibited advertising on the price of alcohol.
H: there were LRA

7.5. Obscenity and hate speech

Virulence exception: the very extreme forms of harmful speech can still be restricted
True threats are not protected

R.A.V. v. City of St. Paul 1992 (strict scrutiny, content-based restriction) (virulence exception)
F: Law that banned the burning of a cross, swastika or other symbol knowing that it would cause anger
based on race, color or creed.
H: Struck down the law

• Minessota SC, understood the statute as beign an extention of Chaplinsky but, the law was banning
only a subset of those fighting words or acts
• Banning fighting words is ok, banning only a subset of hate speech is a content based restriction
• If they had not added the “race, creed, religion or gender”, it is allowing the legislature to choose the
speech that they don’t like.
• Only partially fell in Chaplinsky fighting words exceptions.
• Virulence exception (Scalia)1: within the exceptions, some especially harmful can still be blocked. If
the speech in itself very extreme of the category, then banning is ok. Like threats to the president.

Virginia v. Black 2003 (true threats are not protected)

H: upheld a Virginia statute prohibiting the burning of a cross as intimidation, because the burning of a
cross was a quintessential threat falling in the virulence exception.

1
A State might choose to prohibit only that obscen- ity which is the most patently offensive in its prurience —i.e., that which involves the most lascivious displays of
sexual activity'. But it may not prohibit, for example, only that obscenity which includes offensive political messages. And the Federal Government can criminalize only
those threats ofviolencethatare directed against the President — since the reasons why threats of violence are outside the First Amendment (protecting individuals from
the fear ofviolence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the
person of the President. But the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities.Aidto take
a final example, [a] State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial
speech that justifies depriving it of full First Amendment protec- tion), is in its view greater there. But a State may not prohibit only that commercial advertising that
depicts men in a demeaning fashion
H2: struck law in the part that it included a presumption of burning for intimidation, as it would ban
political speech by turning it automatically into a threat.

• Historically, burning a cross was a specific form of a true threat, a particularly virulent form of a
threat.
• As a political message of white supremacy, it was protected speech. As a true threat it ws not
protected.
• In RAV the problem was the way it was written, because its proscribed speech.
• True threats: the speaker need not actually intent to carry out the threat: Definition: serious
expression of an intent to commit an act of unlawful violence to a particular individual or group of
individuals. It protects individuals from the fear of violence.

Wisconsin v. Mitchel 1993 (conduct v.s speech distinction)

F: Mississippi burning – white guy was beat by black men after they went to see an inflammatory
movie about the burning of black men. The black men received an enhanced sentence because it made
the assault in the basis of race.
H: unanimously upheld the enhanced sentence law, because conduct is different to speech.

7.6. Content-Neutral Restrictions/Election Law

1) is there state action? Not just a private individual acting

2) Law that restricts speech
3) Is there a public forum ? Roberts dictum “times immemorial” in Hague, or Kennedy test: is it
objectively used as a public forum and do people use it that way? if Yes = grace test
Not public forum = rational basis low level review
The court hasn’t settled on 1st amendment application in case of privately-owned companies.

Martin v. City of Struthers 1943 (LRA for channels of communication)

F: banned door to door solicitation by Jehovah’s witness, convicted of violating a municipal ordinance
prohibiting any person “to ring the doorbell [or] otherwise summon the inmate [of] any residence [for]
the purpose of [distributing] handbills.
H: the free speech outweighs the concern of door to door solicitation

• The widespread use of this method of communication by many groups espousing various causes
attests its major importance. [Door] to door distribution of circulars is essential to the poorly
financed causes of little people.
• Less restrictive alternative. Banning after you have indicated you did not want to be solicitated.

City of Ladue v. Gilleo 1994 (prohibition of content neutral medium for speech) (invalidated) (adequate
substitute for the channel prohibited, not just any substitute)
F: banned yard signs for aesthetic reasons.
H: the law violated freedom of speech, it is content neutral, but there was a less restrictive alternative,
even if it did not restrict. (Size restrictions for example, or a reasonable waivable tax)

• Even regulations [of] time, place, or manner [must] ‘leave open ample alternative channels for
communication’ In this case, we are not persuaded that adequate substitutes exist for the
important medium of speech that Ladue has closed off.
Davis v. Massachusetts 1897 (geography, overruled)

F: Boston prohibited speech in public property. Content neutral laws, people gathering to speak in a
park or a public square. People convicted of giving a speech in the boston commons park.
H: Constitution doesn’t create a particular or personal use for public property, common law vision like
private property. Upheld Boston’s restrictions.

• Justice Holmes doesn’t have a first amendment right, because the city has the property right, and if
they can shut down the park, they can limit speech.

Hague v. CIO, 307 u.s, 496 (1939). (Public forum first time) (time out of mind) (parks and streets)

F: municipal ordinance forbidding all public meetings in the streets and other public places without a
permit in Jersey city.
H: struck down ordinance

• Interest of using public places must give way to peace, but it can’t abridge or deny seems like a
right to a public forum “time out of mind”
• It is a fundamental right; public forums have been historically used for speech. So, in public forums,
there are heightened protections. Every main public square in every town would have higher
protections. Not in libraries or inside government building. Introduced by Roberts dictum:
• Wherever the title of streets and parks may rest, they have immemorially been held in trust for the
use of the public and, time out of mind, … used for purposes of assembly, communicating
thought …, and discussing public questions. Such use … from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens. The privilege … may be regulated in the
interest of all; it is not absolute, but relative, and must be exercised in subordination to the general
comfort and convenience, and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied.

Schneider v. State, 308 u.s. 147 (1939) (streets and parks used time out of mind) (other city obligations
cannot abridge rights)

F: banned all leaflets to prevent littering

H: keeping streets clean was not sufficient to justify a limitation on constitutional rights, could have
been a less restrictive alternative.

• If streets and parks “used time out of mind” they warrant special free speech protections and
keeping the street clean was not sufficient.
• Ability of government to restrict free speech in public fora is very limited.

United States v. Grace 1983 (Public forum first test adopted, grace test)
F: Invalidated federal statute prohibiting any person to display on public sidewalks around the
Supreme Court. Banned protests around SCOTUS building, even on the sidewalk outside the supreme
court.
H: Streets around the SCOTUS is public forum

• Inside the supreme court is not public forum, not the foyer, but the sidewalk is. For many years the
people have stated their views there, for a long time.
• May enforce reasonable time and place restrictions in public forum if it is a partial ban
 o Must be content neutral
o Narrowly tailored to serve a significant government interest (mid scrutiny) (same as gender
equal protection cases)
o Leave open alternative channels for speech (less restrictive alternative)
• If the ban is a total ban, the second prong becomes a “narrowly tailored to serve a compelling
government purpose”, it becomes strict scrutiny.
• Test for public forum restrictions: 1) reasonable restrictions in time, place and manner, 2) that are
content neutral, 3) narrowly tailored, 4) serve a significant government interest (mid scrutiny) 5)
leave open alternative channels for speech (less restrictive alternative).
• Test for public forum prohibitions: 1) absolute prohibitions 2) narrowly drawn (LRA?) 3) compelling
governmental interest (strict scrutiny).
• In this case, it did not serve sufficiently the purpose of maintaining SC from outside influence and a
total ban was not necessary to maintain proper order and decorum.

International Society for Krishna Consciousness v. Lee (1992) (Kennedy public forum test vs majority
more limited test)
F: Solicitation of money and distribution of literature inside the terminal, banned distribution of
literature and solicitation of money in airports.
H: it was not a public forum, rational basis. Upheld the ban on solicitation but invalidated the ban on
the sale or distribution of literature.

• Roberts test, the “time out of mind” of public forum, failed because air terminals are not such. So
subject to rational basis test. Ban on solicitation was upheld.
• Restricted definition of public forum: ““bolds that traditional public forums are limited to public
property which have as their ‘principal purpose ... the free exchanges of ideas,’” as “evidenced by a
longstanding historical practice of permitting speech,”
• It cannot fairly be said that an airport terminal has has principal purpose promoting the free
exchange of ideas,’” it is not a public forum. So, the measure needed only satisfy rational basis.
• Justice Kennedy dissenting and concurring in part test for public forum: if the objective, physical
characteristics of the property at issue and the actual public access and uses which have been
permitted by the government indicate that expressive activity would be appropriate and compatible
with those uses, the property' is a public forum.” Justice Kennedy thus found that the public areas
of an airport terminal constitute a public forum. The ban on literature would fail, because it would
be subject to heightened scrutiny and it did not leave ample channels of communications, but the
risk of fraud and duress in airports justified the ban on solicitation.

Marsh v. Alabama, 326 U.S. 501 (1946) (privately owned town) (the more you open the more it is
public)
F: State imposed criminal punishment on a person who undertakes to distribute religious literature on
the premises of a company-owned town contrary to the wishes of the town's management, Jehovah’s
witness was convicted for distributing literature without a permit.
H: publicly open private property is subject to 1st amendment protections, overturned conviction.

• The town was freely used by the public, and there was nothing to distinguish it from any other
town except the fact that the title to the property belonged to a private corporation.

Food Employees Local 590 v. Logan Valley Plaza 1968

F: shopping malls, peaceful [labor] picketing of a business enterprise located within a shopping center”
cannot constitutionally be prohibited by the owner of the shopping center.
H: publicly open private property are subject to 1st amendment protections

Davison v. Randall, No. 17-2002 (4th Cir. 2019) (State action: acting under the color of state law)
(kennedy test below the supreme court)
F: Dacebook page used in an official capacity, so she was conducting official business. The Chair of the
Loudoun County Board of Supervisors was found to violate the 1st amm. rights of one of her
constituents when she banned Davison from the "Chair Phyllis J. Randall" Facebook page she
administered
H: Because the account was not used for purely private matters, but to announce public policy and
engage with constituents, then it is state action.

• Facebook in some cases, some pages used for state purposes can be a public forum, used the
Kennedy test, used effectively and is objectively a public forum.
• Traditional definition of acting under the color of state law requires that the defendant has
power possessed by virtue of state law and made possible only because the wrongdoer is
clothed with the authority of state law: page used to further official duties and as a tool of
governance.
• Traditional v.s limited public forums distinction: streets, parks are traditional. Limited:
nontraditionally public but that the government has open to the public or some segment of
expressive ideas.
• Non public forum: not traditionally open to the public and where opening to expressive conduct
would interfere with the objective and purpose of to which the property has been dedicated.
• In this case: 1) intentionally open, 2) compatible with expressive activity 3) no prerequisites on
entry 4) public so used.
• Viewpoint discrimination is not allowed: the interactive component of the Chair’s Facebook
Page constituted a public forum, and Randall engaged in unconstitutional viewpoint
discrimination when she banned Davison’s Virginia SGP Page from that forum.