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Constitutional Law Outline



Adoption of the Const:
o 1776 Declaration of Independence – no framework for government, set of principles
o 1781 Articles of Confederation – weak central government, lacked enforcement power for
basics like taxation and military
o 1787 Constitution – Desire to consolidate power so as to realize the natural resource
potential from the geographically isolated and massive land area… Essentially an
unprecedented experiment, bringing together such a large mass of people/land with
widely divergent interests and no longstanding common history/identity
Functions of the Constitution
o 1. Create government and divide power (separation of powers)
 Articles 1-3: Power sharing agreement  blueprint for future unforeseen problems,
requiring that the exercise of power be interactive between branches
 Policy:
 Rationale: Protect individual liberty + prevent government tyranny (deep
suspicion of centralized authority)
 Critique: Slows government action… These purposeful barriers can impede the
resolution of modern issues, which require more pressing and quick responses
o 2. Manage relationship between federal government and states (federalism)
 Relevant sections:
 Article 1 §1 and §8 in combination with 10th Amendment: Congressional action is
valid only if explicitly authorized (the powers “herein granted”) and state action
is valid unless expressly prohibited
 Article 6 Clause 2: Supremacy Clause  This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof… shall be the supreme
Law of the Land
 Policy rationale for dividing Congress:
 1. Tyranny of the majority – Compromise between large and small states
 2. Relieve tension regarding centralization of government
o 3. Protect individual rights
 The articles offered very minimal protections
 Exceptions:
o Article 1, § 9, Clause 2: preserves the writ of habeus corpus = releases
prisoners who’ve been unlawfully detained, so acts as a safeguard against
arbitrary state action
o Article 3, §2, Clause 3: ensures trial jury
o Article 4, § 1: out-of-state residents are entitled to same rights as in-state
 Rationale:
o Unnecessary  where gov is not given express authority, rights are presumed
o Unwise  Impossible to predict every individual liberty required to be in
writing. By listing some protected rights, future gov may refuse unforeseen
but necessary rights not on the list
 Amendments:
 For the most part, there must be government conduct for the constitution to
 XIII/13th = first to limit individuals by prohibiting slavery and involuntary


Why accomplish these functions through a Constitution  supreme law of the land +
difficult to amend (Article V = 2/3 vote in both houses + ¾ vote in state legislatures), so
that consent of the governed may not be subject to the short-term impulses of transient
majorities = Tyranny of the majority


Federal Branches of Gov
Judicial Branch
- Article 3


§ 1: Vests judicial power to Supreme Court, and lower courts as Congress may establish
 A judge appointed under Article III basically has life tenure although the language
refers to “good behavior”  subject only to Congressional impeachment and
conviction (egregious conduct i.e. perjury, sexual abuse, obstruction of justice)
 Cannot diminish salary  So that congress cannot punish judges for making
decisions they don’t like
§ 2: Judicial power extends to issues “arising under this Constitution, the Laws of the
United States, and Treaties”  cases involving interpretation of the Constitution

- Judicial Review (Power)


Article 3, §2, Clause 1: Does not explicitly authorize judicial review
 Other interpretations + critique…
 Separation of powers  Constitution should be self-regulating, sets forth
instructions to and requires an oath from the legislature to stay within its
 Unelected body  the people should review legislative action via political
regulation = voting
The court may review…
 Executive conduct that is “ministerial/non-discretionary” = specific legal obligation
not prescribed by the Constitution (Marbury v. Madison)
 Rationale: It is the essence of civil liberty that rights are not just symbolic, that
the government entitles you to a remedy for rights that are violated (even if
conduct is by executive branch)
 Legislative enactments to determine their constitutionality + nullify those found to
be outside Constitutional bounds (Marbury v. Madison)
 Rationale:
o The Constitution is a superior, paramount law, unchangeable by ordinary
o Interpretation is “emphatically the province and duty” of the judicial
o The text “arising under the Constitution” = Courts must apply the law
authorizing its jurisdiction, and so uphold the Constitution against a statute
that is repugnant to it + invalidate the statute
 State court judgments (Martin v. Hunter’s Lessee)
 Rationale:
o Structure of Constitution – Congress has discretion in creating lower federal
courts, and if none were created, the Supreme Court would be essentially
powerless (little room for original jurisdiction) UNLESS review of state court
rulings is allowed
o Essential to ensure uniformity in interpreting federal law
 Criminal Defendants (Cohens v. Virginia)
 Rationale: state courts often could not be trusted to adequately protect federal
rights because offices and salary are dependent on will of legislature

g. not enough to poke holes When one theory leads to a bad result for your client  don’t gloss over or avoid the weakness – confront the weakness and argue why that should not be fatal for your client  Important to remember for exam: are you asked to act as an advocate or judge? Originalism: Based on original intent of framers  Premises: 1. 2. etc. technology. Madison:  Original jurisdiction = authority for the court to hear the case first  Political acts = those acts vested in executive discretion by the enumerated powers of Article 2  Form without substance = e. interconnectedness. and 3. contraceptives.  Rationale: Consistent with…  History  Separation of powers = Judicial branch implements. he worked through the night to have the commissions signed and sealed. value choices  Democracy = Judges are unelected and unaccountable. not original jurisdiction (and Marbury brought the case straight to SC)  o . and that power cannot be expanded by Congress (Marbury v. Madison) CASES  Marbury v. Judiciary Act purported to give the Supreme Court authority to hear the case where not authorized to do so  Interesting note: Marshall could/should have… o Recused himself due to conflict of interest – as Secretary of State for the Adams administration. the meaning of the Constitution today should be determined by the original intent (state of mind) of the collective body that created it.Interpretive Methodology Not mutually exclusive. Judges/scholars today can come to reasonable and reliable understandings about this state of mind through careful historical examination of archival work. may be used simultaneously It takes a theory to beat a theory. This should be authoritative on judges. not creates. Constitution should evolve only via amendment by the electorally accountable legislature  Weaknesses:  Can be difficult to ascertain intent = which group of people should we identify to determine intent + how should we interpret meaning when even the founders experiences confusion in applying it just 8 years later  Impoverished version of equality = created centuries ago + purposeful difficulty in amendment – not always in line with our rapidly developing society and so constrains judges rather than instructs them (e.BUT The courts power is limited by what the Constitution prescribes.g. o Avoided the Constitutional question by solely addressing the part of the Judiciary Act stating that Supreme Court has appellate jurisdiction.) Textualism: Based on actual words of law – most rigorous and objective  Rationale: judges may not impute personal preferences into the law  Weaknesses:  Text doesn’t answer all the questions! – little to no recognition of un-enumerated rights  Competing definitions  Undemocratic: Rigid standard constrains amendment (Article V) + Original framers represented the interests of only a tiny fraction of the population    o o 4 .

o Examples 5 .. etc.. and how guns are allowed to be possessed. when. but instead to expressly make the Constitution vague such that it may evolve with society  Weaknesses: institutional competence + democratic legitimacy  In Heller: the decision will force courts to make decisions on other current regulations about who. consequences. restrictions on freedoms of speech  Weakness: Not terribly objective in determining which categories apply in protecting political minorities Living constitutionalism/pragmatism: Based on costs and benefits of ruling  Rationale:  Judges should be sensitive to the desirability of social change. Convicted felons. sensitive places like schools or playgrounds. concealed carry in vehicles. Scalia talks about the phrase “right of the people” within other portions of the Constitution and asserts the same interpretation should be applied to each provision citing that phrase Precedential: prior case law Institutional competence and process arguments: Legislature has better institutional capacity to think about competing concerns/data in reference to constituents (particularly locally) + Separation of powers Originalist/historical: Intention of the drafters/enactors – analyze the history of the drafting and ratification  Look for: Concerns? Expectations? Rejection or acceptance of alternative wording in different drafts?  Overlaps with textual analysis when the meanings of words have changed over time – Consider whether to use public meaning of ordinary people at that time in history v. is best to ensure that political/institutional processes respect the rights of political minorities (while leaving substantive value choices to politically accountable bodies) E. what. Silence .g. commercial sale at gun shows.o o Process theory: Based on the procedural mechanisms that judiciary was designed to protect  Rationale: The judicial branch. stability. private meaning of the more highly educated drafters Pragmatic/consequentialist: Forward looking – should ask “what decision will produce the best result?”  Perhaps strict interpretation may always create the best results. registration.Argument techniques o o o o o o Textual: see interpretation methodology Structural: Analysis based on the overall structure of the Constitution and how the document intended to set up a coherent and functional system = e. where. allowing people to anticipate and rely upon fixed standards OR perhaps the framers intended to not bind the judiciary by original intention.g. being unelected and thereby immune to majoritarian preferences. easily discernible rules. Fixed. and  3. etc. decisions of other bodies. licensing. separation of powers  In Heller. e.  The framers intended to use ambiguous language such that the document could adapt and endure as its meaning “liquidated” over time  There are three types of language in the Constitution:  1.g.  2. Abstract principles. waiting period.

Does not limit or expand the scope of the operative clause and does not suggest that was the only reason Americans valued the right o Stevens: The preamble informs the meaning of the remainder of its text. for “it cannot be presumed that any clause in the constitution is intended to be without effect” Marbury v.  Prefatory clause: o Scalia: Gives insight to purpose. law that prohibited possession of usable handguns in the home. Heller: Supreme Court invalidated a D. which refer to individual rights and all members of the political community  not only to a subset of “the people” o Dissent: the amendment already does apply to a subset. It should not be treated as mere surplusage. and federal government (McDonald v. the right of the people to keep and bear Arms. identifying and limiting the right so that the entire text refers to militia. being necessary to the security of a Free State. City of Chicago) Uncertainty about how to evaluate 2nd Amendment challenges without an explicit test/pronouncement by the Supreme Court BUT. District of Columbia v.  3) Necessary and proper clause of §8  4) Separation of powers – threat of the personal prerogatives of a single executive official E. given to Congress o Legislative authority:  1) Appears in Article 1 which involves Legislative powers. Impeachment trial Article 1. Second Amendment: “A well-regulated Militia. but no explicit statement about what body actually determines suspension  Argument for… o Executive authority:  1) No express limitation within Article II’s grant of executive power. none of 200 regulations were struck down by federal courts.g. so may be specified as an exception. Clause 6: Who presides over the impeachment trial of a NON-President official?  President: Specifies “when the president is tried”  President assumed to preside in all other cases  Vice President: Head of the Senate = body that presides over impeachment trials. §3. Madison  Right of the people: o Scalia: structural – reference to other portions of the Constitution.g. local. which Scalia even acknowledges with his reference to restrictions on criminals  State Constitutions: o Not comparable/similar enough to 2nd amendment text 6 . not until Congress is called  4) Structurally appears within prohibitions. as violating the Second Amendment. so not necessary to specify within Article II §2-3. §9: Habeas Corpus may be suspended ONLY IF required by public safety by a rebellion/invasion.g. shall not be infringed”  Protects an individual right to possess weapons in case of confrontation (Heller)  Applies to state.  3) Plainly for dangerous emergencies requiring a quick response.  2) §9 lists prohibitions of Congressional power. not grants of power. Conflict of interest prevents him from presiding over Presidential trial… Issue: what if the VP is on trial? E.C.  2) Naturally executive power. Habeas Corpus Article 1. since Heller.     E.

o State constitutions created AFTER the U.The drafters of the U. when.Justiciability doctrines (Limit on Power) Justiciability doctrines: judicially created limits on the matters that can be heard in federal courts (answers who. yet chose to not apply the same language regarding “defense of individuals” to the Amendment. we need to determine if this case is even justiciable. Constitution also employ language specifying “individuals” similar to the other states.S.  Test creation postponed for future cases: o Technical/procedural limits v. and that power cannot be expanded by Congress (Marbury v.g. It is because none of the Justiciability limits apply… [discuss the potential issues and why these are satisfied]”  Is there an issue regarding…  Who: Party bringing suit lacks personal stake? Standing  What: Lacks actual dispute or effect of judgment? Prohibition against advisory opinions  When: Injury occurred but no longer an issue? Mootness  When: Injury has not occurred yet? Ripeness Prohibition of advisory opinions: Federal courts cannot issue advisory opinions (interpreted from Art. restrictive bans o Breyer’s pragmatic interest-balancing inquiry:  Does the statute burden the right in a way that is out of proportion to the statute’s salutary effects/government interest  Proportional relation between the problem being solved and method used to solve it  Problem that the statute is trying to solve is extremely grave + without alternative solutions  an extreme prohibition is acceptable o .S. so…  Unconstitutional for courts to assume more jurisdiction than authorized by the Constitution BUT  Judiciary may police its own boundaries to ensure it stays within Constitutional bounds  Prudential limits = not Constitutionally-based. not a floor. which insinuates the interpretation should be more restrictive. which supports the argument that the drafters would have written to that specificity if that is what they meant. preventing the overburdening of federal courts) o Purpose:  assure that judicial branch will not violate the separation of powers  improve judicial decision making  concrete controversies best suited for judicial resolution  conserve judicial resources o In exam:  Always need to run through these limits to see if court can hear case!!  “As a threshold question. Madison)  Article III §2 set the ceiling of Supreme Court authority. but instead on “prudent judicial administration” to balance the interests of the legal system (e. III requirement for “cases and controversies”) o Elements of a case and controversy: o - 7 . Constitution had available examples of language they could have put in via state constitutions in existence at the time. and what may be heard with judicial competence) o Origin: Supreme Court’s interpretation of Article III §2 “cases” and “controversies”  The courts power is limited by what the Constitution prescribes.

g. Ullman: giving information about birth control was illegal  Must have a real threat of enforcement before a federal court may adjudicate the constitutionality of a statute  Alternative choices for plaintiff couples: Stop having sex. confident that it will be invalidated + then unsuccessfully mount a Constitutional challenge and be punished when the law is upheld o CASES  Poe v. risk terrible medical consequences.1. or violate the law and hope they don’t get caught  Regional Rail Reorganization Act cases: If the operation of a statute is patently inevitable. settlement. repeal of a statute)  Why a personal stake is important: A dispute must have sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions o Rationale: To prevent…  Waste of judicial resources  - - 8 . Hardship to parties of withholding court consideration (Abbott Laboratories)  Degree of hardship / unattractiveness of choices or level of constraint  Likelihood of harm or statutory enforcement (Poe v. it is irrelevant that there will be a time delay Mootness: Plaintiff must present a live controversy at every stage of suit  case is moot if anything occurs while a lawsuit is pending to end the plaintiff’s injury (E. competent decision  2. thereby depriving prior judgment of its effect  Rationale: severs link between court decisions and outcome in the real world. Fitness for judicial decision (Abbott Laboratories)  Concrete enough understanding for judiciary to make an informed. separation of powers  Note: courts must apply revised laws when reviewing judgments on appeal Ripeness: Determines when a court can engage in pre-enforcement review of cases o Elements:  1. Substantial likelihood that the court decision will bring about some change or have some effect  Cannot be subject to review by the… o Executive  Hayburn’s case: Congressional act directed court to rule on veteran pension claims but stated that Sec of War could ignore the court’s decision o Congress  Plaut: Congressional act required the court to retroactively reopen cases on which a final judgment had already been rendered. Actual dispute between adverse litigants  Sec of State Thomas Jefferson: request for neutral advice on conflict between France and England  2. Death. Ullman) / inevitability (RRRA)  Be able to argue that the strength of showing in one criterion outweighs the weakness on the other!!! o Rationale: need an adversarial posture to understand arguments fully + Article III requirement for a live controversy (not just curiosity or interest o Declaratory Judgment Act allows for pre-enforcement review and authoritative pronouncements on Constitutionality of statutes o Problems: A person might…  Unnecessarily obey an unconstitutional law + refrain from conduct that is Constitutionally protected OR  Violate a statute.

Wright)  Must be established…. EPA) o For each form of remedy sought (Lyons)  Injury. but other federal prisoners facing parole had live controversy  The class itself (with a multitude of interests) is actually the plaintiff  4. Criminal sentence is complete  adverse consequences remain for person charged  convicted criminals may still challenge case even after released from incarceration  o - Standing: Whether a particular person is the proper party to ask the court for judicial review o Issue: Does the plaintiff have such a personal stake to assure a sharp. Voluntary cessation by the defendant. Still have a live controversy where collateral injury remains. an advocate with sufficient personal concern o Elements:  To satisfy a constitutional standing inquiry. a plaintiff must assert a “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief” (Allen v. A specific controversy and  2. Nature of injury = inherently limited duration  irremediable within time allotted for judicial review AND o 2. Likely to happen to the same plaintiff again  Examples: o Elections = Moore v. concrete presentation of issues? o Purpose: To ensure…  1. unless “subsequent events make it absolutely clear that the behavior could not reasonably be expected to recur” (Laidlaw)  Laidlaw: voluntary behavior on the part of the defendant does not ensure that the injury will not happen again  settlement  moot: plaintiff comes to terms that contractually bind the parties. redressability  1. Wrongs “capable of repetition. causation.Judgments having no effect on the parties (Assures that the dispute is capable of judicial resolution) Flexible doctrine: A number of exceptions to this rule…  1. Class action suits with live controversy (even after the named plaintiff’s claim has expired and class certification has been denied)  Geraghty: federal prisoner lost on the merits and then was released on parole.g. Ogilvie o Pregnancy = Roe v. EPA) 9 . o For at least one plaintiff (MA v. yet evading review”  Elements: o 1. defendant is additionally liable for future suits  injunction is court-ordered (cessation of policy for particular plaintiff)  not voluntary cessation  3. although primary injury is over  still have a lesser but palpable injury  E. Personal injury o Concrete and individualized / not required to be exclusive. Wade o NOT DeFunis = harm will be over + cannot be repeated to the party + more flexible time  2. can be widespread (MA v.

Stigmatic injury must be directly affected (Allen v. Wright) o Injunctive relief  Injury must be on-going. must show a concrete/individualized harm (Lujan) 2. Wright. Wright) Not merely conjectural or hypothetical interest (Lujan) Unlawful government conduct is insufficient. Injury is likely to be redressed by the requested judicial relief o Not speculative/uncertain (Allen v. Wright)  Incremental step is sufficient to serve as relief (MA v. no evidence that any of the children applied to and were refused admission o 2. Impairs desegregation efforts of public schools   injury was concrete and serious BUT redressability was “entirely speculative”  Causal connection broken because redressability depends on third party decisions relative to decision by court  Plaintiffs must show that the judicial remedy (IRS’s enforcement of tax exempt status) would redress the injury (improve integration of these public schools) 10 . Stigmatic: government aid to discriminatory institutions   injury too abstract  Stigmatic effect of discrimination is basis for standing only to those personally denied equal treatment. Wright) 3. EPA) o o o   o o Policy rationale for limiting standing:  Promote separation of powers  Critique: Can be undermined by undue restriction – must preserve judicial role  Efficiency – Preventing flood of litigation by those having only an ideological stake  Fairness – ensures that people will raise only their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection  Critique: one of the most confused and erratic areas of the law Cases:  Allen v. Allen v. Conduct fairly traceable to injury (Allen v. Wright) o Meaningful contribution is enough (MA v. Lujan)  Traceable: Specific laws/decisions  Uncertain: generalized discontent with gov action/program  Subsidizes unlawful activity? (Dissent. not finished (Lyons)  Broaden/narrow injury in analysis  Will injury continue until and unless plaintiff receives equitable relief? o Probable (aka “better than plausible”) that ruling will reduce harm?  Based on third parties individual decisions? Unknown effect? (Allen v. EPA) o Programmatic claim against gov action is disfavored (Allen v. Wright  Court ruled that the parents of black public school children lacked standing in a suit against the Internal Revenue Service for failing to adequately monitor racially discriminatory private schools.  Rule: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief”  Rationale: The two injuries proposed failed standing… o 1.

 Holding: lack of standing  Rules: o Plaintiff must establish standing for each form of remedy sought  Effect: constricts ability to seek injunctive relief for constitutional violations because standing is a threshold inquiry whereas discovery would likely reveal the information necessary to uncover the probability of experiencing injury again o Injury on-going or finished? – constrict or broaden inquiry in analysis…  Finished when Lyons hit the ground  cannot show a real and immediate threat of personal future injury of this kind such that court’s ruling would provide a personal remedy  On-going:  Class argument: demographic reality creates a more direct line between statistical history of discriminatory conduct by government officials and Lyon’s particular subset  Permanent personal injury to plaintiff: psychological injury of being subjected to police violence. this does not need to be statistically supported Lujan  Facts: Class action suit brought against secretary of interior for determining that Endangered Species Act doesn’t apply overseas. Congress allowed for individual right to bring a claim. but this only confers a procedural right to bring a claim. “slowing” the harm is enough relief for this element Lyons  Facts: Lyons sued for injunctive relief to prohibit the city from authorizing police officers to apply a chokehold without justification against citizens who pose no threat of violence. o At least one plaintiff must have standing o Congress may not confer standing beyond Article III limits o Injury: Concrete + individualized/unique – Does NOT have to be exclusive – The fact that the harms are widely shared does not minimize the Plaintiff’s interest in the outcome of the litigation or deprive the P of standing o Causation: The sector at issue meaningfully contributes to overall global warming o Redressability: Court does not have to provide complete relief given the enormity of potential consequences  regardless of the possible delay in effectiveness of the remedy + whatever happens elsewhere. Article III Standing still requires a “personal” harm  Holding: lack of standing  Programmatic approach: challenge to a more generalized level of Government action instead of attacking the separate decisions that allegedly caused them harm. government inherently discourages/encourages a particular activity by increasing/decreasing costs of participation Overly broad: Challenges an entire program established by a government agency rather than a specifically identifiable violation of law  o    EPA  Facts: Court affirmed constitutional standing for this case brought by a group of states and organizations claiming that EPA failed to regulate GHG emissions as required under the Clean Air Act.Dissent: Tax exemption equates to a subsidy. 11 .

 Rule: An abstract interest is not sufficient for standing  need a coherent connection between the plaintiff and purported loss  Statutory text analysis: o Creates a cause of action  procedural mechanism for people to bring suit o NOT a substantive right that satisfies constitutional standing inquiry (injury. causation. redressability) o Rationale: separation of powers o Exceptions: There ARE some statutes that create an individual substantive right for standing…  Fair Housing Act = statutory right to be free of discriminatory housing practices  Federal Election Campaign Act = right to receive information about a candidate 12 .

or which shall be made. though limited in its powers. and States cannot nullify or burden. nor prohibited by it to the States. MD) Compact theory of federalism: o States are sovereign because they created the United States by ceding some of their power and ratifying the Constitution o Basically sees the Constitution as an illusory promise (in K law) o Not a dead theory. which are not prohibited. and all means which are appropriate.  Rationale: Constitution was ratified by the people. are Constitutional”  Congress has enumerated powers. but through the necessary and proper clause. under the authority of the United States. by taxes or other restraints. are reserved to the States respectively” o Supremacy Clause:  Article 6 Clause 2  “This Constitution. but McCulloch definitively rejected and severely marginalized this theory McCulloch o Court invalidated Maryland’s tax on the national bank… o Issue 1: Whether Congress has the authority to create the Bank of the United States?  Reference to history of bank’s creation (BUT “natural and familiar” does not mean constitutional)  Supremacy clause (VI.8):  Rule: Constitution grants Congress specific enumerated powers + the power to choose any means not prohibited by the Constitution to carry out that lawful authority (not an independent grant but rather means to an end)  Rationales: o Structural: **“We must never forget that it is a constitution we are expounding”** o - - 13 . may choose the means to carry out its powers (McCulloch v.  Note: Marbury made judicial branch supreme in its sphere (separation of powers)  Necessary and proper clause (I. is supreme in its sphere. not the states. and the Laws of the United States which shall be made in pursuance thereof. let it be within the scope of the constitution.Legislative Branch . so the people are sovereign. but consist with the letter and spirit of the constitution. State delegates were solely an administrative necessity. federal regulations they disagree with (McCulloch) o Necessary and Proper Clause:  Article 1 §8  “Let the end be legitimate.In the Constitution Article I generally: federal legislative power  Congress may act only if there is express or implied authority to act in the Constitution  “All legislative powers herein granted shall be vested in a Congress…” o 10th Amendment: states  States may act unless the Constitution prohibits the action  “Powers not delegated to the United States by the Constitution. States may not nullify or burden constitutional exercises of federal power. shall be the supreme law of the land”  Federal government is supreme over the states.2):  Rule: Federal government. and all treaties made. which are plainly adapted to that end.

not motives for regulation  Rational Basis Review (Wickard)  Court may invalidate legislation only if it is clear that there is… o no rational basis for a congressional finding that the regulated activity affects IC or o no reasonable connection between the regulatory means selected and the asserted end o Modern Test:  Only Scalia and Kennedy agreed on all three cases forming the governing law – far from unanimous and difficult to defend  Categories of activity that Congress may regulate (Lopez) 1. and with the Indian Tribes” o Quick historical overview  Commerce = Commercial intercourse at all phases of business (Gibbons v. and so lacked the ability to oppose or benefit from tax)  Rule: States are limited in the ability to interfere with federal activities  o The Commerce Clause (Power) - Analysis track: o Congress doesn’t have the power to enact any laws it wants  Article 1 §8: “The Congress shall have the power… to regulate Commerce with foreign Nations. reaffirmed in Morrison. and among the several States. not in §9 which imposes limits o Textual: Necessary = useful or desirable (dissent: = indispensable) o Pragmatism: strict construction would impose a paralysis on Congress and prevent its efficient / effective exercise of power Issue 2: Whether Maryland had the authority to tax the bank?  The power to create the bank includes a power to preserve its existence… meanwhile the power to tax includes the power to destroy  so the tax would interfere and endanger the bank’s existence  Unfair for states to regulate those who have no representation in the state (some of those who were being taxed were outside the state. Ogden)  Assessment of activity. distribution. and maintained in Gonzales  Definition: “the production. created as a general framework. Use of the channels of IC 2.= The Constitution. Activities that substantially affect IC  Economic nature of activity?  History: Announced in Lopez. necessitates inference so as to endure and adapt to future crises of human affairs  Placed in §8 which expands Congress’s powers. Instrumentalities of IC = people or things 3. and consumption of commodities” (Gonzales)  Potential factors (Gonzales and Wickard) o Interstate market exists somewhere for the commodity o Could be diverted into interstate market o Could influence price and market decisions o Would undercut regulation over the larger class o Removes some share of the market from IC o Fungible o Not just remotely connected with a commercial transaction (Lopez) 14 .

taken together (Wickard) Rational basis review application  Arises only when purpose is listed: The legislative purpose and evidentiary findings of the purported relation to IC assist the Court but are not determinative. though never expressly rejects this standard 15 . trafficking of women)  Rationale:  Absence of rational basis review. apply “class of activity” aggregated effects test:  Congress may regulate de minimus and purely local activities if the class of economic activity exerts a substantial economic effect on IC (Gonzales/Wickard)  Cumulative effect of particular class of activities. and b) discouraged travel within black community  RULE: CC power includes ability to regulate against any obstruction to IC regardless of… o a) Whether obstructions also deemed moral and social wrongs. his contribution is far from trivial o Hodel: regulatory / surface mining reclamation  rational basis review o Lopez: regulatory / guns near schools  invalidated  Noneconomic nature of the activity played a large role in the decision  Congressional findings about the conduct’s impact on the economy do not necessarily make it const  Slippery slope  would authorize a general federal police power o Morrison: discrimination / civil damages for gender-motivated violence  invalidated  RULE:  Economic nature of activity: At least in areas the Court regards as traditionally state regulated. o b) The local nature of business if substantial and harmful effect upon IC.   - At least in areas the Court regards as traditionally state regulated. though court often defers to this evidence  Is there a rational basis for finding that regulated activity affects IC or reasonable connection between means selected and asserted end? CASES o Heart of Atlanta: discrimination / motel  activity assessment  Evidence supporting impact of discrimination on IC: uncertainty in ability to find lodging … a) impaired pleasure/convenience of traveling. Congress cannot regulate noneconomic activities based on aggregate effect  Absence of jurisdictional limits: Congress might have fared better if it had restricted law to make connection with commerce more clear (e. b) Sells less interstate goods because of discrimination. c) Travel obstructed directly. and d) Business/development generally suffered  Although appellee’s own contribution may be trivial by itself. Congress cannot regulate noneconomic activities based on aggregate effect (Morrison)  Jurisdictional limits? (Morrison) If deemed economic. this is not enough to remove him from the scope of federal regulation where… taken together with that of many others similarly situated.g. or o c) Alternative methods that Congress could have pursued o Katzenbach: discrimination / family-owned restaurant nearby mass transit  Aggregate principle  Evidence: a) Substantial portion of the food served moved in IC.

Anti-Commandeering Principle (Limit on Commerce Power) - Even if Congress is acting within the bounds of the enumerated powers in Article I. transit. it may be regulated by Congress if it has a substantial effect on supply and demand within national market for that commodity and thereby frustrates valid federal interest in regulation (or. b) Increased rate of firing rape victims due to residual effects. o o Slippery slope: aggregation would allow Congress to regulate any activity that presents an aggregated substantial effect on employment. and d) Constraint on freedom of travel  Thomas concurrence: Substantial effects test is “rootless and malleable” – it allows Congress to police states under guise of regulating commerce Wickard: commodities / controlling volume of wheat to avoid surpluses and low prices  valid  Ask: Would the failure to regulate the class of activity undercut regulation over the interstate market in that commodity?  RULE: Congress may regulate the cultivation of a fungible commodity for home consumption if there is an established interstate market and where leaving out that aggregated class of activity would have a substantial influence on price and market conditions Gonzales: commodities / homegrown marijuana  valid  RULES:  Economic nature: Regardless if production of a commodity is meant solely for home consumption. production. This is an area with few guideposts. any smaller subdivision within the class may not be challenged – So less likely to succeed in challenge against a smaller class than that within statute  Economics: production. distribution. or consumption  Counter-argument: Cumulative national effect of violence against women… a) Absenteeism in the workplace. and consumption of commodities  Alternative avenues for changing the law:  Legally: Congress may choose to amend regulation  Democratically: Citizens may vote for supportive representatives  Rational basis review is back: Congress had a rational basis for finding that home cultivation of marijuana would create a) enforcement difficulties with regulation and b) concerns about diversion to illegal channels  Dissent: Requiring economic nature of activity creates a perverse incentive to regulate comprehensively such that the class of activities assuredly encompasses some economic activity 10th Am. in this case. c) Avoidance of higher paying night jobs. but the Court seems to consider the following factors (not elements)… o Whether the federal law…  1. the Court reads the 10th Amendment to impose an external constraint and may strike down laws it deems impermissibly commandeering. elimination of entire commercial good)  Relevant class of activity: Defined by statute – if the class of conduct regulated by the act is determined to be within CC power. Imposes coercive duties v. ability for state to opt out? (NY)  Permissible: o setting standards where state may choose method o attaching strings to federal funding 16 .

Not in line with democratic self-governance because it “inevitably invites an unelected federal judiciary” to make policy decisions  Rationale:  Political safeguard to state sovereignty: The principal and basic restraint on federal power is that inherent within the structure of the political process. Conden) Note: Compelling gov interest is NOT sufficient to excuse impermissibly commandeering laws (NY) Policy o For 10th Amend operating as an additional constraint = states’ rights and federalism  1. and 2.  2. There are no members of congress that have a national affiliation. If the law generally applies to both states and private parties alike then it likely does not target state gov in a way that makes courts nervous about state sovereignty issues (Garcia. Allowing states to act as laboratories to experiment with new policies  Gov accountability (NY)  Court’s responsibility for judicial review as set out in Marbury (dissent in Garcia) o Against = separation of powers  10th Am operates as a reminder that Congress may legislate only with Const authority  Not the role of the judiciary… Political processes operate as a sufficient safeguard (Garcia) CASES o Garcia: fair labor standards act  Decided against using the 10th amendment to invalidate federal laws  Expressly overruled the test set up by National League of Cities (which invalidated federal laws that interfere with “traditional gov functions”) because it was: 1. Decrease likelihood of federal tyranny.  Lack of evidence for a systematic concern: 1/5 of all state gov expenditures come from federal grants. Every senator and representative is beholden to a particular constituency. negative prohibition?  Means analysis: Does law require an obligation for the… o State Legislature to enact a federal regulation? (NY) o State Executive branch to administer a federal regulation? (Printz)  Critique: most duties may be characterized either way – think action v.   - - 2. Target only states v. Requires an affirmative duty to action v. generally applicable to both states and private parties alike?  Potential exception: “general applicability” …. State participation in federal governmental action ensures that unduly burdensome laws will not be promulgated. Unworkable / “elusive at best”.  Rule:  The federal gov may not directly compel state legislatures to enact federal regulations 17 . inaction 3. suggesting that state interests are being aggressively promoted in federal process  Dissent (Powell):  That the political process USUALLY acts in state interests is not enough when the process appears to have offended state sovereignty  The court has abdicated its Constitutional role for judicial review over legislature o New York: Forced states to accept ownership of radioactive waste  invalidated  Holding: The federal law impermissibly commandeers state governments by coercing them to implement federal legislation… re-emergence of judicial review. Enhance democratic rule by providing gov that is closer to the people… Smaller electorate  elected reps more immediately accountable and responsive to public desires  3.

Imposts and Excises.g. though not unlimited (Dole) o Limitations (Dole)  1. Printz: Forced officers to reasonably assess the legality of firearms purchased  invalidated  Rule: Federal gov may not coerce states officials to administer federal regulations  Rationale: impermissibly presses state executive officials to implement a federal mandate  Historically: (particularly the early years) Congress had not exercised such power  Separation of powers (Faithful execution clause): Congress cannot circumvent federal law enforcement by speaking directly to the state law enforcers  At least ostensibly. rather than an affirmative obligation like NY and Printz – Does not require the state legislature/executive to enact/administer the law  3. Passive: negative prohibition of conduct. Coercive  2. Textual limit  In the pursuit of “the general welfare”  Court defers substantially to the judgment of Congress  2. Imposts and Excises shall be uniform throughout the US” Analysis: o The taxing and spending clause confers an independent enumerated power (Butler) o It has been interpreted very broadly. but all Duties. and so individual states should not suffer political repercussions as a result of executing unfavorable decisions not made by that state’s legislature. Attach conditions on grants to state and local gov to induct state and local actions  Factor to be assessed (but not a hard and fast component): Court distinguishes Garcia as a generally applicable law that applies to state and private parties alike  Rationale: This would undermine gov accountability… States may have interests not in line with the entirety of states acting as Congress. the principal of judicial minimalism dictates that judges are best positioned to judge solely what is in front of them rather than opine upon a broader rule Conden: DMV and private suppliers can’t disclose personal info without written consent  valid  Cryptic opinion… unanimous and very short  Within CC power b/c states sell the personal info to individuals which generates significant revenues for the states  Within 10th Amendment b/c…  1. o o BUT Congress may still conscript states for federal agenda by encouraging a particular regulation o E. General applicability: Does not apply solely to states – Regulates states as owners of databases and also regulates the resale of that information by private parties Taxing and Spending (Power) - - Article I §8: o “Congress shall have Power To lay and collect Taxes. Clear statement rule  Conditions must be explicit and unambiguous 18 . Set standards that state and local gov must meet o E. to pay the Debts and provide for the common Defense and general Welfare of the US. Duties.g.

its confines are set in the clause which confers it. when Congress induces the states to adopt a particular drinking age is not unconstitutional behavior. the States are free to implement a drinking age. Therefore. 10th Amendment  Cannot be unduly coercive CASES o Butler:  Facts: Federal act allowed the Secretary of Ag to set limits on production of certain crops and to impose taxes on productions in excess of those limits. the States are free to implement a drinking age. Condition  Must be within constitutional bounds for states  Under the 21st Amendment. by appropriate legislation. without due process of law  equal protection clause: nor deny to any person within its jurisdiction the equal protection of the laws Analysis of authority granted to Congress by §5: o Who may be regulated: states. purpose: crisis in ag production  RULE: Taxing and spending power is a free-standing enumerated power. when Congress induces the states to adopt a particular drinking age is not unconstitutional behavior. 5. or property. and not in those enumerated in §8  Court adopts Hamiltonian view  Madisonian view: Taxing/spending power must be confined only to further another enumerated power  The holding and other analysis is irrelevant because the act applied to private parties and so the 10th Amendment would no longer be implicated o Dole:  Facts: SD Conditioned receipt of a “small portion” of federal highway funds based on legal drinking age  State did not dispute first three restrictions  4. not private parties (Morrison) o Scope of power: Competing views  Broad (Katzenbach) 19 .   - 3.  5. liberty. the provisions of this article” o §1: operative clause  speaking to states…  privileges and immunities clause: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States  due process clause: nor shall any State deprive any person of life. Germane  Conditions imposed must be germane/related to the federal interest in particular national projects or programs 4. Therefore. Condition within constitutional bounds for states  Under the 21st Amendment. 10th Amendment – Cannot be unduly coercive  Here: Court refers to the small percentage of funds  Subsequent cases: have refused to strike down “bargaining” provisions that are significantly greater amounts of money Am 14 § 5 Enforcement Clause (Power) - - 14th Amendment o §5: enforcement clause  speaking to congress… “The Congress shall have power to enforce.

 Congress may not redefine. not a ceiling  Congress can enact legislation that provides greater fourteenth amendment protection than what the judiciary has recognized as deficient  Rules: o Cannot undercut or dilute the rights recognized by the Court o Must be plainly adapted to enforcing §1 o Consistent with the spirit and letter of the Const Narrow (City of Boerne)  Congress cannot interpret the 14th Amendment to provide remedies that the Court has not already identified as violating const rights.  Marbury v. Consistent with the letter and spirit of the Constitution  Rationale:  Deference to legislature via rational basis review  It was for Congress to assess and weigh the various conflicting considerations. which speaks only to states… Congress cannot regulate private parties based upon the 14 th Amendment  Rationale: This act is a civil remedy for private parties.  Constrains the legitimate ends of §5 power  NARROW SCOPE  14th Amendment power is “remedial.”  Congress does not determine WHEN the Constitution is violated… Limited to preventing or correcting Constitutional violations as the Court sees it. Plainly adapted to enforcing the operative clause of the fourteenth and o 2. or enlarge the scope of the rights protected by the 14th amendment o Ends must be narrow: “remedial. or enlarge the scope of the rights protected by the 14th am. expand. Legislation has to be specifically directed to conduct already identified by the Court as unconstitutional and in the way the Court sees it.  The narrow view would confine the legislative power to an insignificant role. not substantive” power o Means must be preventative: “Congruence and proportionality test” CASES o Morrison: Who can be regulated?  Rule: The scope of §5 is constrained by the operative provision of §1. o Boerne: Scope of Congress’ § 5 power / narrow view  Facts: Religious Freedom Restoration Act required states to show the law enacted was the least restrictive means of furthering a compelling state interest  Rule: Congress may not redefine. Madison: Congress is not given authority to determine what grants of authority are given by the Constitution  Constrains the legitimate means  PREVENTATIVE MEASURES  Preventative measures may be permissible if the act fulfills the “Congruence and proportionality test”: 20 .  - Court represents floor. expand. Morgan & Morgan Scope of Congress’ §5 power / broad view  NY voting requirement about English  Rule: Congress may enact legislation so long as it is… o 1. to prescribing remedies or methods available to further what the court has already said. not substantive. has no bearing at all on states or state officials o Katzenbach v.

that Congress assures to a very high level of certainty that that conduct which violates the Constitution will be protected against. 21 .  Bishop argues: RFRA is a “reasonable means of protecting the free exercise of religion as defined by Smith” – Smith left intact that targeting religious beliefs and practices is unconstitutional  Court response: RFRA has out of proportion sweeping coverage that requires most every law to have a compelling justification for constraining religion Example: abortion  Imagine Congress surveyed the landscape.  Broad: Congress could make this law by taking an expansive view of its protections. o The measure adopted by Congress has to be proportionate to the judicially defined constitutional harm. examined the multiplicity of state criminal prohibitions on abortion. and created legislation to prevent state criminal prohibitions on abortion…  Narrow: It would be acting outside the bounds of §5 because Court had not ruled on the subject yet.  There has to be calibration between the magnitude of Congress remedy and the problem addressed. By prohibiting a wide range of conduct.

Intersection between Congress & States and Localities Preemption (Limit on Power) - - - Assuming that Congress has properly enacted a law. Federal law precluded states from regulating advertising/promotion of cigarettes. Implied by a clear congressional intent to preempt state or local law  Conflict: between laws makes mutual compliance a physical impossibility  Obstacle: to the execution of the full purposes and objectives of Congress  Field: is so pervasively controlled by Congress that it excludes even supplementary state regulations Express preemption: o Congress includes a preemptive provision within law precluding state or local regulation o Key analysis:  Must determine intent  define the scope of regulation  Broad/narrow construction of…  Text of the specific provision  Structure and content of whole law  Prior legislative history o Lorillard Tobacco  Facts: MA regulation on advertising and sale of tobacco. the internet o Obstacle: would negate the purpose of the federal restrictions and warnings  Dissent:  Issue implicates the traditional police power of the states to regulate land usage and protect the health/safety of minors  Narrow construction preemption provisions to give deference to States’ traditional police power  Here. how does that federal law impact on state and local law? o Preemption invalidates a state law when it conflicts with a federal law o Origins: The Supremacy Clause of Article VI §2 Classically arises when litigant wants to get around obeying a state law Ways of finding pre-emption: o 1.  Court analysis:  Must give meaning to each element of the pre-emption provision  “youth exposure to advertising” v. “content” of advertising o Text of preemption provision: ALL “requirements” and “provisions” of state laws o Structural: another section of the law includes a location-based restriction. purpose of federal law was to foreclose the waste of resources and ensure uniform and clear advertising to inform public about dangers of smoking  No need to interfere with state limitations on location of billboards 22 . Federal law expressly preempts state or local law  Explicitly state in statute’s language OR  Implicitly contained in statutory structure and purpose o 2. “smoking and health” o Intertwined and non-distinguishable o Structural: ban on electronic media advertising showed that Congress included restrictions on location of advertising that would impact youth  “location” v.


Implied Preemption:
o Conflicts Preemption:
 Direct conflict between federal law and state law; no need to inquire into
congressional design
 Key analysis:
 Physically impossible to comply with both  level of exclusivity
 Whether the federal law is seen as…
o Mutually exclusive: sets the exclusive standard; inevitably may collide
o Not mutually exclusive: sets a minimum standard; represents the floor, not
the ceiling
 Florida Lime & Avocado
 Facts: Avocado growers and oil content – CA requires stricter standard for
saleable avocados
 There is a difference between the regulations, but this poses (rather than
disposes) of the issue
 Holding: not mutually exclusive  dual compliance is possible
o Obstacle Preemption:
 Impedes the function of the federal law; obstacle to achieving federal objective
 Key analysis:
 Broad/narrow construction of…
o Purpose of federal/state laws
o Division between federal/state regulatory authority
 Pacific Gas & Electric Co.
 Facts: CA nuclear waste disposal regulations conditioning construction of nuclear
plants on adequate means of disposal; halted any construction. Federal law to
promote development of nuclear energy.
 Rationale:
o Field occupied by federal gov?
 Safety  solely federal domain; state cannot go against federal
judgments on safety
 Economics  within state domain; states characteristically govern the
economic feasibility for energy facilities
o Conflict with federal decisions concerning waste disposal?
 Safety  would go against the statute’s objective
 Economics  unpredictably high costs or shutdowns to deal with
containing waste
o Obstacle/frustrates federal goal?
 NO  Congress has allowed states sufficient power in determining
economic viability of nuclear plants, even if that means stopping
development entirely and undercutting the federal objective.
o Field Preemption:
 Congress clearly intended to fully occupy the field, leaving no room for even
supplemental state regulation
 E.g. field of foreign affairs / immigration, naturalization, deportation
 Key analysis:
 Superior authority of federal gov in the field
 Federal gov has enacted a complete scheme of regulation
 Basic subject is identical
 “Scope” of the field Congress intends to occupy?
 Hines v. Davidowitz

Facts: Alien Registration Act of PA was enacted before federal act, and possessed
only additional, complementary requirements.
Why a field issue?
o No express preemption provision
o No conflict / mutual exclusivity
o No obstacle
o BUT added card carrying requirement, annual registration, and one dollar fee
Rule: “States cannot, inconsistently with the purpose of Congress, conflict or
interfere with, curtail, or complement the federal law, or enforce additional or
auxiliary regulations.”


The Dormant Commerce Clause (Limit on Power)


o Definition: Principle that state and local laws are unconstitutional if they place an undue
burden on IC
o Origins:
 Not explicitly declared in Const; Inferred from Article 1 §8 CC power + Article 6 §2
Supremacy Clause
 Introduced first in Gibbons v. Ogden
o Two functions of commerce clause
 1. Explicit: positive authorization of congressional action; limited by Necessary &
Proper Clause
 2. Dormant: operates when Congress has not acted; independent limit on state and
local regulation
o TEST: Challenging state laws that burden interstate commerce
 1. Is the state law discriminatory?
 Question: Does the law affirmatively discriminate against interstate transactions,
or place only an incidental burden on interstate commerce?
 Types:
o Facially (NJ landfill case)
o Effect: Likely to be found discriminatory in effect if it …
 Imposes costs on out-of-staters that in-staters would not have to bear
 Excludes virtually all out-of-staters from accessing that particular
market; NOT just a subset of particular firms (Exxon)
 Includes local discrimination: similar to Balkanization; even though some
in-staters may be affected, still discriminates against out-of-staters
(Dean Milk: 5 mile radius of city)
o Purpose
 Simple economic protectionism? (West Lynn: out-of-staters funding instaters)
 Who is challenging the statute? (West Lynn; Cloverleaf)
 Rationale for differentiating between discriminatory and nondiscriminatory laws:
Framers most concerned about protectionist state legislation; less likely to
interfere with the economy; and at least partly represented in the political
 2. Does the state law impermissibly burden interstate commerce?
 If the Court deems the state law…
o Discriminatory  strong presumption against the law
 Upheld only if unavoidable to achieve a legitimate local purpose (Maine
v. Taylor)
 Legitimate local purpose: Term of art entailing strict scrutiny; nonprotectionist
 Unavoidable: the least restrictive option to achieving that objective
o Non-discriminatory  invalidated only if the burdens imposed on IC are
“clearly excessive in relation to the putative local benefits” (Pike)
 Nature and extent of interest and burden on IC
 Does not matter whether alternatives exist
 Also analyze:
 Privileges and immunities clause Article IV §2
 EPC of 14th Am
Policy rationales

burden  Barnwell o - 26 . tests are different but Court never expressly overruled them  Attempted to draw rigid categories for areas where federal law was exclusive  Gibbons v. diverts business from lowcost producers without any colorable national justification  Historical: Framers were particularly concerned about uniformity in commercial regulation and envisioned a “federal free trade unit”. McCulloch v. Maryland – invalidated MD tax that would be borne by those without the state)  Impossible for Congress to rule on the multiplicity and diversity of regulations that may undermine its overarching commerce power o Critique on DCC:  Textual: Not an explicit provision in Constitution. Ogden: Police power v. no other federal power was so universally assumed to be necessary  Political: Lack of political representation for out-of-staters affected by the law. local subject matter  National: area of national importance requiring uniformity of regulation  Local: best provided for by diverse regulation where applicable to local peculiarities  Determined by… o 1. there IS an express Const provision granting Congress authority to invalidate such state laws  Separation of powers: these policy-laden judgments are not for an unelected body of federal judges o H. and reprisals between states  Burdens: unreasonable barrier of economic protectionism harms the economy for everyone  Inefficiency: equivalent to imposing customs duties. meanwhile. commerce power  Cooley: National v.g.  Key analysis:  Purpose  any health. generally left to legislative discretion? o 2. Custom: compare with other systems of practice. or fraud concern OR is the regulation solely economic?  Alternatives  Does the regulation actually restrict/obstruct interstate commerce OR does P have other available alternative actions? CASES: o Historical:  Often invoked in recent decisions.P. framers could easily have included this limitation on state power in its enumerated limits within Article 1 §10. Nature and extent of discrimination o Balancing approach = benefit v. political process cannot be trusted when a state is helping itself at the expense of out-ofstaters who have no representation (e. Hood  Facts: NY denied a MA corporation license to build another plant in NY that would ship milk to MA  Rule: States do not have the power to seek their own economic objectives through curtailment or burdening of interstate commerce. retaliation.Supporting DCC:  Economic: Interdependence between states due to federal free trade system emphasizes need to encourage free competition and access to markets to protect against…  Hostility: opens rivalry. safety.

and the Commerce Clause serves to protect against the efforts by one State to isolate itself in the stream of IC from a problem shared by all  Dissent: o Significant state interest: serious health. o Law in question: SC law prohibited vehicles above a certain weight to use state highways  Holding: Non-discriminatory. Taylor (minnows)  Facts: Prohibition on bringing shipments of live bait fish into Maine  Holding: rare exception – facially discriminatory. states may want to close its borders. upheld  Rationale: Benefit outweighs burden o Safety: Evidence that lighter. manpower. number of locomotives) o Practical effect was to regulate beyond state boundaries Facially discriminatory  By its terms. upheld  Rationale: o Facially discrim: “restricts interstate trade in the most direct manner possible” at state border  State retains authority to regulate matters of legitimate local concern BUT the burden falls on the State to demonstrate both legitimate local purpose + this purpose could not be served as well by available nondiscrim means 27 . diminishing landfill sites. none is excluded by definition at the outset as “valueless” o State interest: public health. narrower trucks more easily move onto shoulder of the road o Local matter: state funds and maintains its own highways. invalidated  Rationale: o All objects of interstate trade merit CC protection. Courts may not weigh the evidence to scale the merit of the legislative choice  Southern Pacific  Law in question: AZ law prohibited operation of long trains within state  Holding: Non-discriminatory. and environmental threats o Means: closing borders / complete and simple isolationism  unacceptable. and pollution problems o No alternative: either prohibit all landfill operations inside and outside the state (which is impossible) OR accept waste from every portion of the US (which would multiply the health and safety problems)  Maine v. at different times and in different ways. explosion. may actually increase danger of accidents o National matter: Requires national standardization to secure efficient and economical operation of railway systems o Private trains funded the maintenance of the tracks o Burden: substantially increases cost and impairs efficiency (delay. aesthetic. with rapidly increasing volume of solid and liquid waste. invalidated  Rationale: Burden outweighs benefit o Interest: questionable and slight increase in safety. NJ  Law: restricts importation of waste originating or collected outside the state  Holding: Discriminatory. safety and welfare. the state law distinguishes between in.and out-of-staters  Philadelphia v.

State interest: Serious ecological concerns unrelated to economic protectionism. not particular interstate firms o The consuming public may be injured by resultant price increase.  Held: discriminatory effect. rather than sustain. so the law really burdens only dealers from other states  Held: non-discriminatory.  Exxon argument: Burdens out-of-staters  All refiners and producers are out-ofstate. invalidated o Facially discriminatory o o 28 . upheld  Rationale: o Facially: Does not distinguish between in-state and out-of-state companies o Effect: Not an impermissible burden or barrier to IC  Entire supply of gasoline flows from outside MD  merely shifts business from one interstate supplier to another  The CC protects the interstate market. insidiously operates to the advantage of local producers  Cost of compliance: forced to change marketing practices to accommodate state market o Lack of state interest to counter presumption of invalidity:  Does not protect consumers: limits consumer knowledge  Availability of other alternatives: could permit out-of-staters to utilize state grades only if they also marked their shipments with the applicable USDA label  Exxon  Facts: MD law prohibited producers or refiners from operating gas stations within state as a response to complaints about inequitable distribution of gasoline among retail stations. unpredictable extent of disruption to the natural ecology o Lack of alternative: Inspection was physically impossible: Small size of baitfish + large quantities of shipments + would require destruction of the fish o Dissent: ambiguity about dangers and alternatives should actually defeat. not its burden on commerce  Dissent: o 5% of gas sold in-state was from local independent dealers who were exempted from the law o Precludes out-of-state companies from competing directly for the profits of competitive pricing o Alternative: regulate leasing of all service stations. ENTIRETY OF OUT-OF-STATERS  Hunt  Facts: NC statute allowed only the USDA grade label to be placed on apples sold in-state. the discriminatory measure Effect is discriminatory  SUBSET V. not just those owned by producers/refiners  Dean Milk  Facts: Madison. WA had a special label. WI prohibited sale of milk by locational radius surrounding the city  Holding: discriminatory. but that relates only to the wisdom of the statute. invested in a stringent inspection program that is attractive to retailers and consumers. invalid  Rationale about differential effect: o Costly burden to out-of-staters that doesn’t apply to in-staters  Leveling effect: loss of competitive advantage.

but this pricing order is principally funded from out-of-state to benefit in-state.Effect is discriminatory  Local purpose is legitimate: Public health concerns  BUT the law erects an economic barrier protecting local industry from competition without the state  NOT unavoidable / less restrictive means are available:  Implementing uniform standards of quality established by health authorities in the jurisdiction but without a geographical limitation  Requiring importing producers to pay reasonable and actual cost of inspection by its own officials   it is immaterial that WI milk from outside the Madison area is subjected to the same proscription as that moving in IC Purpose is discriminatory  West Lynn  Facts: MA order requiring all milk dealers to pay into a fund that is disbursed to instate milk farmers on a monthly basis. 2/3 milk is produced and sold from out-ofstate.  Held: discriminatory. non-refillable milk containers  Held: nondiscriminatory. o Subsidy: A pure subsidy funded out of general revenue ordinarily imposes no burden on IC. o Political processes of the State can no longer be relied upon  one of the groups hurt by the tax who would otherwise exert its influence to lobby against it actually was a primary supporter  Clover Leaf  Facts: Minnesota banned only particular types of nonreturnable. simple econ protectionism o Taxes: Nondiscriminatory measures are generally upheld in spite of any adverse effect on IC. and plastic pouches  In-state and out-of-state interests on both sides of the dispute  In-state pulpwood producers would benefit BUT there’s no reason to suspect that the gainers will be in-state and lowers out-of-state: o 2 of the 3 dairies challenging the statute are in-state firms o Out-of-state pulpwood producers will presumably absorb some benefit Non-discriminatory analysis  Pike  Facts: AZ order prohibited company from packing uncrated cantaloupes at its CA facility o o o 29 . paperboard. valid  Rationale: Burden not clearly excessive in relation to the benefit of the putative state interest o Interest: Promoting conservation of energy and natural resources. easing waste disposal o Incidental burdens on IC  Minor inconvenience of conforming to statute  Most dairies package their products in more than one type of container  Plastic will continue to be used in production of the alternatives: refillable plastic bottles. invalid  Rationale: Non-discriminatory tax + discriminatory subsidy In reality.

to enhance the reputation of other in-state producers by having the company’s cantaloupes identified as originating in AZ o Burden:  Company faced imminent loss of its crop because there was no facility in AZ and cantaloupes are highly perishable  Unnecessary because company would not otherwise need an additional facility in AZ o Undertones of discriminatory effect!!!  Required company to build an in-state facility and thereby likely hire instate residents  To increase in-state reputation Exceptions to DCC (Power) - When laws that otherwise would violate the DCC are still allowed Two types: o Congressional approval:  Makes CC power no longer dormant  Congress has plenary over commerce among the states  “Congress may confer upon the States an ability to restrict the flow of IC that they would not otherwise enjoy” (Western and Southern Life Insurance)  Even if clearly discriminatory and unconstitutional  This is one of the few areas where Congress has clear authority to overrule a Supreme Court decision interpreting the Const  Analyze: Scope of authorization  state action within those bounds? o Market participant exception:  When discrim involves…  1) allocating benefits of internally funded programs OR  2) state-owned business o Acting in proprietary capacity…  Purchaser of goods (Hughes v. Alexandria Scrap)  Purchaser of services (White v. MA Council of Construction Employers)  Seller (Reeves) o NOT imposing conditions downstream (South-Central Timber)  Rationale:  State sovereignty: role of each state as “guardian and trustee for its people”  Right of private businesses: allowed to exercise independent discretion in selling to parties  Separation of power: Better suited for Congress = competing.   Holding: Non-discriminatory. politically charged considerations  Fairness: allows residents to recoup benefits of the taxes they pay  Less hostile/coercive: spending programs are not as hostile to other states  Critique:  Purpose of DCC: to stop protectionist actions by state gov generally  Ambiguity: no clear distinction between gov action as regulator and market participant  CASES 30 . invalidated Test: upheld unless the burden on IC is clearly excessive in relation to the benefits served by the law Rationale: o Interest: tenuous.

offered to pay for destruction of inoperable cars. o Holding: State acting as a market regulator. invalid o Rule: “Imposing conditions downstream” on post-purchase activity  reverts State to regulator of private market relationships o Rationale: Market activity ends when transaction between seller and buyer is complete o Dissent: unduly formalistic to differentiate between paths chosen by the State  Could sell timber only to companies that maintain processing plants instate (Reeves)  Could directly subsidize the processing industry (Hughes)  Could pay to have the logs processed and only then enter the market as a seller Privileges and Immunities Clause (Limit on Power) - - - Article 4 §2: o Text: “Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States” o Prohibits discrimination by states against nonresidents (not aliens or corporations) o Protects rights fundamental to interstate unity Relationship with DCC: o Mutually reinforcing. Interest:  Does the interest fall within the purview of the Privileges and Immunities Clause?  Definition: Pertain to the vitality of the nation as a single entity (Baldwin) 31 . Neither exceptions for congressional approval or market participation will save statute Analysis: o 1. Company did not operate a mill in-state. can violate both at once o Differences:  1.  congressional approval South-Central Timber o Facts: AK offered to sell state-owned timber at a significantly lower price with the K provision that the buyer must process wood in-state. Must be discriminatory  2.    Hughes v. etc. homelessness. but required more onerous documentation from out-of-staters  allowed Reeves o Facts: SD limited sale of cement because of shortage. Alexandria Scrap: MD acting as a purchaser of goods. MA Council of Construction Employers o Facts: MA executive order required that all construction projects be performed by a workforce of at least half Boston residents o Fits both exceptions to DCC:  Internal funds: MA was acting as a purchaser of services  market participant  Federal funds: Congress had authorized this discrimination to combat ills of unemployment. favored resident companies o Analysis: States must comply with limits imposed on private parties  Analyze anti-commandeering principle “general applicability” (Garcia/Conden)  Resolved by Commerce power + Preemption White v. Aliens and corporations are not protected  3.

deference to state o 4. the purpose. State alleged the purpose was to conserve its shrimp supply. Witsell)  Not recreational hunting (Baldwin) o 2. so practical effect is to keep out all nonresidents.Includes: 1) Const rights / civil liberties and 2) Pursuit of a livelihood (Camden. Means:  Degree of discrimination bears a close relationship to State’s objective?  Less restrictive means? (Piper) o If the statute fails  no exception for congressional approval or market participant CASES o Witsell  Facts: SC imposed different licensing costs for in. fishers alleged it was to exclude non-residents and thereby create a commercial monopoly for SC residents (100x)  Holding: invalidated  Substantial independent goal for statute?  Evidence that state doesn’t care about total number of shrimp taken. or the development of a single Union of those States”  - 32 . though in-state residents can’t bring suit (Camden) o 3. Discrimination:  Does the state law discriminate against non-residents?  Municipality regulations are not immune. even though some residents are similarly disadvantaged  In-state residents who are similarly disadvantaged still cannot bring claim  Protected right?  YES: right to pursue livelihood  Substantial independent reason?  to alleviate grave social and economic ills: increase employment and stop middle class flight  Close relation?  Non-city residents benefit from employment without improving tax base and property value. Statute does not limit on number of licenses given  Means closely related?  No evidence that non-residents present a particular threat to shrimp boating  Alternatives available: Impose a fee on bigger boats.and out-of-state commercial shrimp fishing boats. Court has ruled in another case that unemployment is not a substantial reason  RULE: Municipal “residency” classifications are not immune from PIC review  Nonresidents are ipso fact not residing in a city within that State. percentage tailored to allow non-resident employment o Baldwin  Facts: recreational hunting license pricing differential (25x)  Holding: hunting for pure sport is outside the purview of what the PIC is protecting  RULE: only covers those privileges/immunities “bearing upon the vitality of the Nation as a single entity”  “hinder the formation. Objective:  Substantial and independent reason for discrimination?  Less restrictive analysis. ban nets that kill shrimp habitat  RULE: States should have considerable leeway in analyzing local evils and in prescribing appropriate cures o Camden  Facts: municipal requirement that 40% of all employees for city construction projects be city residents  Holding: remanded for further investigation about city’s economic decay.

it should “only do so for the most compelling Constitutional reasons” (Bowsher) o Standing? Congress cannot fully confer Article III standing Article II does not expressly impose limits on pres power Analysis for Pres action (Youngstown Sheet & Tube Co. may act with both Pres and Congress powers (Articles I and II)  Test: Strong presumption of validity 33 . should be viewed as two alternatives existing side-by-side o Black’s majority: NO inherent Pres power. Pres may act only with express Const or statutory authority o Jackson’s tripartite framework:  When the President takes measures…  1. available only to wealthy nonresident or hobbyist willing to sacrifice other values to indulge in it  Tailored means: Not totally excluded from the activity  State interest: Elk supply is finite and must be carefully tended in order to be preserved Piper  Facts: NH required in-state home address for admission to bar  Holding: invalidated  Interest? YES… Practice of law involves the “right to pursue a livelihood”  Objective? Non-resident members would be less likely to…  Become and remain familiar with local rules and procedures  reasonable to presume nonresident lawyers would only take the exam and pay annual dues if he anticipates a considerable practice there  Behave ethically  State can discipline or suspend right to practice instead of complete ban  Be available for court proceedings  There may be some logic to state’s concern that a nonresident member of the bar at times would be unavailable for court proceedings  Do pro bono and other volunteer work  could require this instead of complete ban Intersection between Congress & President Sources of Executive Authority - - Court is the ultimate arbiter of whether Pres has overstepped bounds. voting)  Here:  Recreation and sport: Not a means to the nonresident’s livelihood. o Some distinctions merely reflect the fact that this is a Nation composed of individual States (e. Pursuant to an express or implied authorization of Congress  Power: at its greatest. TX) used in Jackson’s concurrence.) o The Court has placed more weight on the “familiar tripartite scheme” (Medellin v. but must first deal with Justiciability: o Political question? When the Court is asked to invalidate a statutory provision that has been approved by both Congress and President. but never disavowed Black’s opinion.g.

it merely marked an occasion when power should be exercised. In absence of Congressional grant or denial **most pronounced divergence from Black**  Power: can only rely upon his own independent powers + twilight zone  Twilight zone: If Congress and Pres have concurrent authority or its distribution is uncertain  Cong silence may enable/invite measure of independent Pres authority  Test: Case-by-case determination considering the “imperatives of events and contemporary imponderables” – didn’t offer additional tools to determine validity  3. but Article II does not limit Presidential powers with such language  Hamilton: Reflects an intention to grant in the president all powers of an executive nature. only limitation is what can be found to be within this power CASE: Youngstown o Facts: President Truman issued a seizure order to take possession of steel mills due to a proposed work stoppage during Korean War because the strike would immediately jeopardize national defense given the indispensability of steel as a component of war materials. Incompatible with the implied or express will of Congress  Power: at its lowest ebb. Const created gov of limited authority – should not grant one individual untrammeled authority  Douglas’ concurrence in Youngstown: “Emergency did not create power. o Holding: not constitutional o Court’s analysis:  Black’s majority (4 justices):  NO inherent Pres power. basically disobeying federal law  Test: Valid only if Pres has const authority to act and Congress did NOT have const authority to make law Conflicting policy: o Narrow scope  Separation of powers  Const allocates limited powers to each branch  Madison: Opening language only gives a title to executive and determines that there would be one individual at head.” Must resist simple pragmatism o Broad scope  Pragmatism:  Pres should be given the power to respond to national emergencies  Necessary to act in light of leg failure to do so + greater efficiency of exec branch  Especially if Cong did not refuse Pres power when it had warning of his plan to act (Youngtown)  Text/Structure of Const:  Article I grants powers “herein granted” limits Congressional power.2. Pres may act only with express Const or statutory authority  Here: Absence of… o Express Cong authorization by statute  refused to adopt this method in prior legislation o Const authorization:  “Commander-in-chief” = directly and intimately connected with affairs of war  “Power to see that the laws are faithfully executed” = lawmaking power limited to recommending or vetoing laws  - - 34 .

unlimited. subject to Cong direction. Congress could overturn that line-item veto by a majority vote of both houses. should be able to exercise administrative leeway in pursuing cases  E.Jackson’s concurrence:  Truman’s seizure falls within 3rd category (against implied or express will of Congress)  Fails this test. and is actually the reverse…  Pres has const power? No: Military powers do not supersede representative gov of internal affairs  Congress outside its authority? No: Const expressly places power to raise troops and provide funding with Congress  Douglas’ concurrence:  Emergency faced by Truman was serious BUT “the emergency did not create power.”  Call to resist simple pragmatism: “Separation of powers was adopted … to preclude the exercise of arbitrary power.g. The purpose was not to avoid friction” (Brandeis in Myers v. temporary character of seizure Intersection between Article II § 1 and 3: o §1 presidential oath to “defend the Constitution of the US”   Duty to veto laws he believes would violate the Constitution in any respect o §3: President “shall take care that the laws be faithfully executed”  Faithful execution clause  Pres has Const duty to enforce laws he signed into being unless and until held unconst by the courts o At what point does the decision not to prosecute undermine the principle of faithful execution? o Limited resources argument:  Limited resources necessitate allocation decisions and selective enforcement = concession to reality  Impossible for Pres to pursue every violation of any law  To give the best effect of the law. it merely marked an occasion when power should be exercised. federal death penalty = much more expensive than life in prison (mostly procedural) so president must use executive discretion in enforcing the death penalty  - Expansion of Exec authority beyond Article II (Limit on Power) - - Issues presented below: o Separation of powers: Undermines congressional authority o Timing: already passed law rather than intervening during the legislative process o No congressional remedy: cannot supersede by a counter-veto Line-item veto o Clinton v. or dictatorial: informed Congress immediately. 35 . US)  Frankfurter’s concurrence: Leg history is “tantamount to an express withholding of power”  Dissent rationales:  Duty to act: successful execution of legislative programs depended upon continued production of steel and stabilized prices for steel… Evidence of historical support for these prompt actions  Not arbitrary. NY  Facts: Line Item Veto Act allowed President to cancel particular provisions within laws.

repeal or amendment authority is not granted to Pres in any provision  silence construed as express prohibition  Const structure requires a stability which transcends the convenience of the moment  Attempt to transgress the separation of powers = threat to liberty  Const return v. modern complexity. so the judiciary should only intervene for the most compelling const reasons  This is not a repeal or amendment: Congress merely narrowed the universe of options. used to promote public awareness and mobilize political constituencies  Political: Middle ground.  RULE: Cong cannot statutorily increase Pres authority beyond Const limits. only part is returned to Cong  Dissent (Breyer)  Pragmatism: Historical simplicity v. must read and understand the entire purpose of the enactment to know if Pres is deliberately abusing power or lawfully interpreting it  Constitutional avoidance: Straight up disobedience. courts of law. statutory cancellation: o Timing: veto takes place before v. but risks serious political consequences o Recent years  Escalation in quantity and quality with much more aggressive assertions of presidential authority (e. judges. veto power is all-or-nothing. and allowed Pres to choose between them Signing statements o Spectrum of assertions within signing statements:  Rhetorical: Most innocuous form.g. defines terms using creative or aggressive interpretation. Bush the “unitary executive”)  - Appointments and Removal (Power) - Analysis track o Appointment: Article II § 2  President appoints ambassadors.Holding: Pres cannot cancel certain provisions line by line. must follow amendment procedure of Article V  Rationale:  Power to make laws is with congress and president must execute the laws that are passed  Strict procedural bicameralism in lawmaking: Const lays out an exclusive and “finely wrought” method for lawmaking. Congress can no longer pass individual appropriations bills and is practically stopped from using the method that was historically plausible  Judicial deference: no dispute among the other two branches. asserts that certain provisions are constitutionally defective and he will disregard them o Pres has an obligation to veto. or heads of departments  Can NOT give appointment power to itself: Article II specifies several possibilities as to who may possess that power and Congress is not among them  Did Congress have power to vest appt of that position? = “Inferior” officer? (Morrison) 36 . even when Congress wants him to do that. and other “principal” officers “by and with advice and consent” of Senate  Policy: provide pres with necessary tools to fulfill const duties and increase accountability  Congress may vest appt of inferior officers in the president. after bill becomes law o Substance: the entire bill v.

or defined? Circumstances for removal? Removal:  No constitutional provision addresses the removal power  President has extensive removal power. but is difficult to apply in practice  Amorphous inquiry: Functional and contextual – are there good reasons why the office should be independent of the pres?  If purely executive  Pres can remove them at will to accomplish his Const duty (Myers)  If independence from the pres would be desirable  are Congress’s limits on removal constitutional?  Does the limitation impermissibly interfere with president’s const duties?  Congress may limit removal power. Duties: Empowered only to investigate and prosecute certain federal crimes o - 37 . control. but it may be constrained (Humphrey’s)  Rationale (Myers)  Incident to power of appointment  Pres must have broad authority over removal to fulfill his duty to faithful execute the laws  Pres charged with duty to supervise. to appoint an independent counsel for investigating federal officers.  APPOINTMENT  RULE: Does not violate Article III to give a federal court power to appoint prosecutorial officers  Desire for independence in investigating alleged wrongdoing within the exec branch  most logical place to put the appt power was in the Judicial Branch  Note: it WOULD violate separation of powers to give the court authority to supervise appointees  Factors of an inferior officer…  1. inferior officer) Attorney General could terminate the independent counsel with the limitation that he must defend the removal to Congress in that it was for “good cause. but can only act within the scope of the jurisdiction as requested by the AG  2. Plaintiff claims that the independent council cannot be appointed by someone other than the president (principal v. Jurisdiction: Act is restricted to certain suspect exec officials. Olson  Facts: Ethics in Government Act allowed for a special court.” Counsel could file for judicial review.o o o o Authority: Layer of authority between officer and president? Duties: limited or broad in scope? Jurisdiction: policymaking or judicial functions? Tenure: continuing. Tenure: No specific time limit BUT “temporary” because the counsel is appointed to accomplish a single task and afterwards is terminated  3. but not… o Prohibit it altogether (Morrison) o Give itself sole power to remove official (Bowsher)  “Good cause” standard does not unduly trammel on exec authority (Morrison) CASES o Morrison v. intermittent. created by the Attorney General. temporary. and direct – can better gage defects/evaluate officers  Test: What is the NATURE of the position?  Does the office suggest need for independence from Pres?  Even without a statutory restriction (Weiner)  Court applied “quasi-judicial/-leg” language in Humphrey’s.

disclaiming any reflection upon his services. Cong Act said Pres could remove any commissioner “for inefficiency. or malfeasance in office”  Issue: Whether the statutory limit on Pres removal power was within bounds of Const?  RULE: Cong can limit Pres removal power of officials whose independence from Pres is crucial  Rationale:  Administrative body to carry into effect leg policies BUT these exec functions are performed in the discharge and effectuation of its other powers  Created by Congress  Performs leg and judicial duties: o Leg: makes investigations and reports to inform Congress o Judicial: acts as a master in chancery  Fixed term of office is vitally important to ensure independence: o Length of tenure: to gain experience o Certainty of tenure: independent of executive authority. criminal prosecution. and so free to exercise its judgment without the leave or hindrance of any gov branch Wiener  Facts: Suit for back pay based on alleged illegal removal of a member of the War Claims Commission  RULE: Even where there is no express limit within the statute. Pres tried to remove a commissioner. Authority: She possesses a degree of independent discretion BUT to some degree is inferior in rank because the Attorney General can remove her  Dissent (Scalia): The law should be struck down because it vests some purely executive power. it is the functional need for independence that determines the conditions on Pres power to remove officers  Rationale: Court infers that Congress did not want the President to have any influence on how the adjudication of any claim came out  Created by Congress  Judicial role: to adjudicate claims for compensating injuries in connection with WWII 38 . The officer is not inferior because she is not removable at will and thus subordinate to any Exec officer  REMOVAL  Test: “Whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty”  Removal is within executive branch BUT is limited and monitored  Imposition of a good cause standard by itself does not unduly trammel on exec authority. except in its selection. in a person who is not the President. even though the counsel exercises no small amount of discretion and judgment  Power to remove an exec official has not been completely stripped from the Pres (prohibiting him from ensuring the faithful execution of the laws) Myers  Facts: Postmaster was appointed and removed by Pres by and with the advice and consent of the Senate  RULE: Pres has extensive removal authority over executive officers  Here: Officer was restricted to performing exec functions and so inherently subject to exclusive and illimitable removal power of Pres Humphrey’s Executor  Facts: Suit for back pay of salary. o o o 4. neglect of duty.

eventually turned over to U. o Tenure defined: “no later than three years after the expiration of the time for filing claims” Bowsher  Facts: Act empowered Congress to remove the comptroller by an agent other than impeachment  Holding: Violates Separation of Powers for Congress to reserve the power of removal over an executive officer except by impeachment.  § 1544: requires the president to withdraw troops after 60 days unless Congress: 1) has declared war or enacted specific authorization. defined enemy makes it never ending 39 .S. or 3) is physically unable to meet as a result of an armed attack … extended for not more than an additional 30 days Hamdi o Presidential power and the war on terrorism – detentions o Facts: U. and the War on Terrorism - - - Const “invites a struggle” over control of the war power by dividing powers between exec and leg branches o Article II Clause 2: makes pres the commander-in-chief o Article I. removal power allowed Congress to control the execution of its law  The Const does not contemplate an active role for Congress in the supervision of officers charged with execution of the laws it enacts Foreign Policy. War. 2) has extended by law the 60-day period.S. and then held incommunicado in Guantanamo Bay for two years (unable to communicate with outside world including family or counsel).g.  Note on Justiciability: there’s standing because the Comptroller already has desire to please Cong  Rationale:  Position was not created by Congress  In effect. 5 th Am due process demands that a citizen receive fair notice of factual basis for detention and a meaningful opportunity to be heard by a neutral decision-maker o Rationale  Gov: asserts authority outside statute to detain Hamdi indefinitely without formal proceedings  Authority comes from President’s role as commander-in-chief within Article II  Capture and detention are “important incident[s] of war” to prevent enemy’s return to battlefield  Limited to the duration of “active hostilities”  Hamdi: Unique nature of this unconventional war with no single. was seized by members of the Taliban gov. ONLY where there is: 1) A declaration of war by Congress. citizen moved to Saudi Arabia.S. 2) Specific statutory authorization. Whether War Powers Resolution is constitutional?  § 1541: The President may introduce troops into hostilities. o RULE: Although Congress granted power to detain enemy combatants. § 8. and thus not justiciable  E. Clause 11: Congress has power to declare war and to raise and support the army and navy o Purpose: the founders wanted to clog rather than facilitate war / checks and balances Justiciability issue: questions involving the war powers have not been clearly answered because of the Court’s view that these foreign policy disputes are political questions. OR 3) A national emergency created by attack upon the U. military.

Gov interest and burden faced in providing greater process  Practical challenges of wartime  presumption in favor of gov and hearsay evidence would probably be allowed o 3. incentives. Private interest at stake  Most profound/elemental liberty: being free from physical detention by one’s own gov  Not offset by circumstances of war or the accusations of treason o 2.  Gov is basically asserting authority to hold him for life  But gov has not released any data to prove his enemy combatant status Court: We must balance the tension between the autonomy the gov asserts is necessary to effectively pursue a particular goal and due process concerns when depriving a citizen of a const right  Separation of powers: although the Court has shown great deference to the political branches in war matters. Risk of erroneous deprivation  Accuracy issue: Lack of credible evidence in the rubble of war. this is not beyond judicial purview  Must apply the balancing test of Mathews v. middle men o 4. Probable value of additional or substitute safeguards 40 . Eldridge: o 1.

never has reached the Court. except for the requirements of a 12-person jury and a unanimous verdict. unduly limits states o Rationale: fundamental liberties.  b) the 14th Am protects against violations of due process. analyze whether the right is fundamental to our scheme of ordered liberty? 41 . should not vary depending on the level of gof Duncan o Holding: 14th Am guarantees a right of jury trial in all criminal cases would come within the 6th Am o Rationale: Protects against gov tyranny and arbitrary law enforcement o Analysis track:  a) to deny this right would violate due process. not perfect. South Carolina v. structural incentives to maintain system of slavery because emancipation would result in emigration and the states would lose representation o The more slaves that could be brought from Africa = more seats in Congress   higher representation for those states in the national government  E. SC had 6 seats and NH had 4 seats o 20-year moratorium on reevaluating slave importation imposed by Article V. but “perfectable” Incorporation: Applying the Bill of Rights to States - - - - Rule: Supreme Court has selectively incorporated almost all the Bill of Rights through the 14 th Am DPC to apply to state and local gov o 14th Am = State o 5th Am = Federal Content of incorporated rights: from a practical perspective. incentive for states to amass slaves and thereby political power during those years and gain a majority of control in congress Constitutional redemption: Idea that the const can be reworked to take the evil out. the Bill of Rights provisions that have been incorporated apply to the states exactly as they apply to fed gov o Critique: federalism. but pervasive like an infection to its core) o 3/5 compromise: applied to population number and thereby proportional representation in the House of Reps Ar.Applying the Bill of Rights Constitutional Redemption: Slavery - - Original Const deliberately protected the institution of slavery and gave systematic advantages to states allowing slavery (not a stain. and  c) the right is guaranteed by the 6th Am   applicable to states Provisions of the Bill of Rights that never have been incorporated / do not apply to state and local gov: o 3rd Am: right to not have soldiers quartered in a person’s home.1 §2 P3. but they would surely find this provision applies to states o 5th Am: right to a grand jury indictment in criminal cases o 7th Am: right to jury trial in civil cases o 8th Am: prohibition of excessive fines o  If not yet incorporated. Reconstruction era amendments made the const able to be workable. New Hampshire: both had a similar number of people but because of the 3/5 clause.g.

and opera house)  Rule: Congress may not legislate private party conduct under §5 of the 14 th Am. nor has it articulated any clear limiting principles  Areas where Court has used judicial enforcement as state action:  Prejudgment attachment – using courts to sequester property  Peremptory challenges – excusing prospective jurors without showing cause in a discriminatory fashion CASES o Stanley (general rule)  Facts: Private owners of facilities open to the public (hotel. Maintenance of municipal parks  Activity that has been traditionally.  Actions are brought directly under such statutes and governed by those terms  Const still does not apply  Exceptions to the state action doctrine:  Where private conduct must comply with the Const  Major inconsistency in the case law  Types: o Public functions exception  Definition: Private entities must comply with the Const when performing a task traditionally and exclusively reserved for gov (Jackson)  Tests:  Private property used for a public purpose? (Marsh) o Running a town – ownership does not always mean absolute dominion  Analyze: Open street or sidewalk access? Public area nearby? o Other cases: Political party elections.State Action Doctrine (Limit on Right) - - State Action Requirement o Rule: Private conduct generally does not have to comply with the Const (Stanley) o Rationale: language of the 14th is directed only at state conduct depriving individuals of Const rights o Exceptions:  13th Am: involuntary servitude. exclusively done by gov? (Jackson) o NOT an electric utility company o Entanglement exception  Definition: Const applies if the gov affirmatively authorized. forbids people from owning slaves  Gov can enact laws requiring private conduct to meet the Const standards required of the gov. subsidies voter initiatives permitting discrimination  Shelley remains controversial because ultimately everything can be made state action. or facilitated private conduct that violates the const  More than just providing procedure for claims  Includes judicial and law enforcement actions. Court has never taken Shelley this far. encouraged. theater. gov action is required  Rationale: 42 . licensing and regulation.

for his advantage. When a black family moved there. in almost every activity Marsh(public functions – broad)  Facts: Crime of remaining on the premises of another after being told to leave… P argues this would violate her 1st and 14th Am right to distribute religious writings  Holding: Running a town is a public function. o Residential buildings. the court has made available the full coercive power for the private parties to deny individuals const rights 43 . lawyers. streets.  Dissent (Harlan):  Elevates form over substance: contrary to the spirit of the 14 th Am and intent of the framers to protect equality and fairness  Lack of clear line between private and state action / Gov is involved. merchants and service establishment o The company-owned sidewalk was accessible to and freely used by the public o Nothing to distinguish the town other than by property title. did not change the needs of the people residing in the town Jackson (public functions – narrow)  Facts: woman claimed that termination of her electricity was unlawful in violation of DPC because company needed to keep her power on until she received court hearing  TEST: Sufficiently close nexus between the State and challenged action? Traditionally done by gov?  RULE: Extensive state regulation of an essential public service does not necessarily transform the company’s actions into that of the State for 14 th Am purposes  Does not expansively apply to all businesses “affected with the public interest” – this would arguably expand the doctrine to cover doctors.  RULE: If any branch of gov affirmatively acts to enforce private discriminatory conduct. sewage system. does not provide protection from private parties  Congress is similarly bounded or restricted to legislate only against state laws or agents. property owners filed suit and won in state court to enforce the covenant. opens up his property for use by the public in general. deputy. the more his rights become circumscribed by the statutory and const rights of those who use it  Formally. Chickasaw is private property. and grocery stores Shelley (entanglement exception)  Facts: Neighborhood property owners made a restrictive covenant prohibiting occupancy based on race. this would violate Const rights. o o o The 14th Am is prohibitory upon the States. and so the state action requirement of 14th Am is met  Rationale:  If the area was a municipality or public area.  Different dimension of property ownership: The more an owner. but it FUNCTIONS like a public entity. it violates EPC  Rationale: Not merely passive. to some extent.

STANDARD: What is the level of scrutiny? o 3. Board of Education which ushered in modern era of EPC jurisprudence o Race = core concern of EPC Text: “No state shall… deny to any person within its jurisdiction the equal protection of the laws” Purpose: to combat invidious discrim and safeguard fundamental rights Mutually applies to federal gov: Supreme Court has held that o The DPC of the 5th Am implicitly requires for equal protection by federal gov o EPC analysis in the 5th Am area is the same as that under the 14th Am Tiered system based on whether the group is deemed a suspect classification o Strict scrutiny: Race. CLASSIFICATION:  Impermissibly interferes with a fundamental right?  Involves a suspect class? o 2. National origin (most exacting/searching judicial inquiry) o Intermediate scrutiny: Gender. Illegitimate children o Rational basis: Age.Equal Protection Clause - - - 14th Am passed after the Civil War to stop widespread discrim against former slaves o Rarely used until 1950’s with Brown v. inability to defend and advance interests through the political process  Women are severely underrepresented in political offices  Aliens do not have the ability to vote o Irrelevant to the person’s qualifications or contributions to society?  Irrelevant = 44 . APPLICATION: Did the gov meet the test?  Ends + means = interest + tailoring Level of scrutiny Strict Scrutiny Intermediate Scrutiny Rational Basis Review - Acceptable Gov Interest Compelling Important gov interest Legitimate Means Necessary/narrow tailoring Substantially related Rationally related FACTORS FOR CLASSIFICATION (Cleburne) o Immutable characteristic / not chosen + unchangeable?  Includes religion  Drug addiction and homosexuality are contestable o History of discrimination or stigma?   likely to reflect prejudice instead of permissible gov purpose o Discrete and insular minority? (Carolene Products)  Political powerlessness. Mental retardation. Households containing unrelated individuals Analysis track: o 1. Wealth.

g.Rational Basis Review o Test: The law will be upheld as long as it is rationally connected to a legitimate gov purpose  ENDS: legitimate purpose  Invalid = A bare desire to harm a politically unpopular group (Moreno).    - likely to reflect prejudice. shelter. Wealth… Should it be a suspect class? o No: Not immutable – fervent cultural belief in upward mobility o Yes:  Immutable – extreme ends of affluence and poverty are entrenched  Discrete and insular minority – Lack of political power. Wealthy areas could tax at low rates and had a great deal to spend while poor areas taxed at high rates. every person should be assured of food. and medical care to survive o Supreme Court: expressly held wealth is not a suspect class in Rodriguez: challenge to TX system of local property taxes to pay for public education. for this reason. Mere negative attitudes or fear. “Inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected” (Romer) Relevant =  Need for additional programming differentiates class in a meaningful and relevant way (Cleburne) – mental retardation  Physical effects of aging (Murgia) “Large and amorphous class” = difficult to extrapolate differences (Cleburne) “Conduct” = rather than status. states like CA and TX have instituted raceconscious policies in higher education. o Could make a category: socio-economic status? . no classification (Scalia dissent in Romer) E. especially where money is crucial for influence  History of discrimination – Stereotype of laziness and inability to contribute to society  Right to minimum entitlements under the Const. unsubstantiated by factors which are properly cognizable (Cleburne)  MEANS: reasonable relationship  Does not need to be… o Wise (Murgia) o Least restrictive alternative o Precise  Court will allow laws that are both significantly…  Underinclusive (Railway Express)  Def: does not regulate all who are similarly situated  Rationale: leg may take one step at a time in addressing problems  Overinclusive (NYC Transit)  Problem: unfair to those who are unnecessarily regulated 45 . many minority students attend schools that are vastly inferior in terms of resources. but still had little to spend on education o Public school funding still is determined by tax basis of residents in the area  segregation is still pervasive.

Standard? Rational Basis  3. but EPC does not require that “all evils of the same genus be eradicated or none at all” o NYC Transit  Facts: Prohibition on employment against drug users including methadone. Classification? Advertising on trucks = trivial  2. Standard? Rational Basis  3. which is considered a treatment and used by recovering addicts  RULE: Over-inclusiveness is not fatal to rational basis review  Note: Court could have found no discrimination at all. Application? Unconstitutional o Purpose: 46 . - Invalid = “unsubstantiated differentiations”  where the characteristic of the class is indistinguishable with other classes not discriminated against such that there is no rational justification for distinguishing the two (Cleburne) o Symptoms of invalidity:  Other provisions exist to deal with the purported problem (Moreno)  Classification runs counter to the purported goal by discriminating against those who are central to the statute’s legitimate interest (Moreno) CASES: o Railway Express  Facts: NY prohibited advertising on side of trucks unless transporting goods related to the advertisement  RULE: Under-inclusiveness is not fatal to rational basis review  Analysis:  1. Application? Valid o Legitimate purpose: high risk involved with drug use. Classification? Households containing unrelated persons  2. public safety o Reasonable relation:  Evidence proving likelihood of relapse was sufficient  Although NY could find other means to screen prospective employees. Standard? Rational Basis o Not the sort of oppressive discrimination the court is most concerned with  3. Application? Valid o Legitimate purpose: traffic congestion o Reasonable relation: Arbitrary classification between trucks based on inside contents + does not address other primary forms of advertising on streets. prohibits employees using drugs  Analysis:  1. Classification? Drug use  2. rational basis review does not require a close fit between means and ends o Moreno  Facts: food stamp program made households containing unrelated persons ineligible for participation  RULE: A bare desire to harm a politically unpopular group cannot constitute a legitimate gov interest  Analysis:  1.

but the law cannot. and bigotry “that paralleled the worst effects of Jim Crow” o Political powerlessness: Strong legislative effort to provide programs and care to this class. whereas Congress could “conceivably” want to prevent households formed solely for that purpose from taking advantage of the food stamp program Cleburne  Facts: City denied a special use permit for a group home for the mentally retarded  Holding: Should apply rational basis review + the ordinance is invalid  Analysis:  1. Standard? Rational Basis o History of discrimination: skimmed over. Legislative history  giving voice to the opinions of the electorate which wants to prevent “hippie communes” from participating in the food stamp program  Court: Bare desire to harm politically unpopular group = NOT legitimate. Application? Unconstitutional o Purpose: Public opinion  Mere negative attitudes or fear. Dissent (Marshall) delves into history of eugenics. can only seek coping mechanisms o Defining characteristic’s irrelevance to performance/contributions in society: This is the one. unsubstantiated by factors which are properly cognizable. Statute itself / declaration of policy  Alleviating malnutrition + to promote and strengthen ag economy  Court: relatedness of low income people living together is inapplicable to these purposes  2. Argument to court  purpose is to minimize fraud  Court: no reasonable relation o Wholly unsubstantiated assumptions o Other provisions exist to deal with these same problems o Actually runs counter to goal by eliminating people who need the program. Must be effectuating some purpose in the public interest rather than just reflecting the animosity of the electorate o Means:  3. not a systemic trampling on their rights o Immutability: Cognitive disabilities are certainly not chosen and generally unalterable. state-mandated segregation.1. give them effect” 47  o . that clearly failed to be met  “large and amorphous class”  huge range makes it difficult to extrapolate the differences within their ability to contribute to society  ** relationship between classification and need for additional programming  differentiates this class in a meaningful and relevant way **  Measures taken to benefit this class consequentially might also disadvantage them  3. in the court’s eyes.  “Private biases may be outside the reach of the law. are not permissible bases for treating the class differently. directly or indirectly. Classification? Mentally retarded persons  2. living together is reflective of this need  Dissent (Rehnquist): Reasonable to specify the basic family unit as the basis for gov provision of food because independent reasons for family units to exist other than to obtain food stamps.

not status. they could obtain specific protection against discrimination only by amendment. but seemingly uses a higher standard of review since homosexual conduct was criminal at the time and there seems to be a legitimate objective in that sense  3. Standard? Court does not go through Cleburne factors o Applies rational basis. Texas: law prohibiting private consensual homosexual activity invalidated  unnecessary to decide whether heightened scrutiny is appropriate Murgia  Facts: mandatory retirement of police officers at the age of 50  1. Classification? Sexual Orientation o Not just repealing special status.o o o Means: Unsubstantiated differentiation – unclear how the characteristic of the class would rationally justify differences in permitted uses regarding the…  Flood plain: nursing homes. Evans: Kennedy only observed that the law fails EVEN the rational basis test  Lawrence v. merely reflects that the populace deems homosexual conduct immoral. withdraws legal protections for this solitary class o Dissent (Scalia): This is about conduct. hospitals. the class has significant political clout 48 . dormitory. or nursing home not restricted Romer  Facts: Colorado amendment banned homosexuality as a legally cognizable basis for any claim of discrimination or minority status. Ultimate effect is to prohibit any gov entity from adopting similar policies in the future unless by amendment of the state constitution  Analysis:  1. homes for convalescents could be placed on site  Number of occupants: fraternity house. Application? Unconstitutional o Purpose: to prevent the deterioration of sexual morality  Desire to harm a politically unpopular group is not legitimate (Moreno) o Means: too narrow and too broad  “identifies persons by a single trait and then denies them protection across the board”  Law makes it more difficult for one group of citizens than for all others to seek aid from the gov is itself a denial of equal protection of the laws in the most literal sense  “Inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected”  NOTE: Appropriate standard for sexual orientation remains undecided  Romer v. thereby disfavors it in the political system… hippie discussion in Moreno?  2. Classification? Age  2. Standard? Rational Basis o Not a fundamental right o Not “sufficiently akin to those classifications” found suspect to call for heightened scrutiny  Immutable – yes  History of discrim – no history of purposeful unequal treatment  Discrete and insular – NOT MET HERE: arguably better represented than average within leg.

and life expectancy  Subject to arbitrary discrim– Cannot readily find alternative employment  Deprived of status in community and opportunity for meaningful activity  Fear of becoming dependent  Lonely in new-found isolation  Over-inclusive: Alternatives are available: the state already individually tests its officers for physical fitness and concedes that such testing is adequate to determine physical ability  Note: arguably under-inclusive  plenty of people questionably unfit under 50   . IMPACT: Disproportionate effect (Palmer) o Cannot depend solely on motivations of leg  Futile to invalidate + generally multiple interwoven purposes for enacting statutes  2. Does not need to be wise or without any less discriminatory alternatives Dissent (Marshall): This Court has called the right to work “of the very essence of the personal freedom and opportunity that it was the purpose of the 14 th Am to secure” Truax v. Legitimate  Physical ability generally declines with age o Means: No indication that so few officers are unqualified as to render age wholly unrelated to the objective. Application? Valid o Ends: to protect public by assuring physical preparedness of police. Raich o Harm to health. Compelling gov interest o Pressing public necessity? (Korematsu) o Specific showing of prior discrim within relevant jurisdiction and among the relevant entities (Croson)  2. Consideration of alternatives FACIALLY NEUTRAL  1. INTENT: discriminatory purpose was “a” motivating factor (WA v. Action taken is most precisely calibrated to achieve gov objective  Not under or over inclusive o 2.Strict Scrutiny o o FACIALLY DISCRIM  Explicit classification  strict scrutiny immediately applied  ALL racial classifications are subjected to the most rigid scrutiny  Not automatically invalidated (Korematsu)  Separate is inherently unequal (Brown)  Does not matter whether statute… o Burdens both races (Loving) o Benefits a minority (Croson)  THE TEST:  1. mind.Irrelevance of characteristic – NOT MET HERE: basis for stereotyped characteristics are at least partially indicative of their abilities  3. not merely known (Feeney) 49 . “narrowly tailored” to achieve that interest o 1. Davis. Arlington Heights) o Partial motivation is acceptable proof (Arlington Heights) o Desired.

”  Dissent (Harlan): Factors in social and historical circumstances. Rather. not the best example of it  Facts: executive order to evacuate people of Japanese descent from their homes during WWII  RULE: Laws concerning racial classification are immediately suspect (reviewed with great suspicion and distrust). the law is doomed here: already proven to be racially motivated. solely because the race chooses to put that construction upon it. Japanese in large numbers were enemies of the state. imminent. the constitution of the US cannot put them upon the same plane. given that officers have greater knowledge of the facts being on the scene.May be proven through circumstantial and direct examples of motives (Arlington Heights)  Impact itself. law will be treated as equivalent to a racial classification  strict scrutiny o In practice. by virtue of their ancestry. BUT procedural due process imposes limits on that. when extreme (Yick Wo. Plessy was 1/8 black and asserted he was wrongly removed. Gomillion)  Historical background  Procedural  Substantive  Legislative history If both proven… o Burden shifts to gov to show result would have been the same. the court contradicts itself saying “if one race be inferior to the other socially. so applying strict scrutiny is a formality at this point o  - CASES o Korematsu  Origin of strict scrutiny.  Holding: separate but equal is permissible so long as facilities are equal  tolerance of legal racism  Martian analysis: Separation does not necessarily imply inequality or inferiority. but not automatically invalid  pressing public necessity may sometimes justify restrictions  Pressing public necessity = Evidence of disloyalty + Lack of time and resources to screen and segregate the disloyal from the loyal + Purported need to protect national security  Dissent (Murphy):  Court affords wide authority to military discretion in wartime.  Judicial test for gov depriving individual of rights based on plea of military necessity = An ‘“immediate. and impending” need as not to admit of delay and not to permit the intervention of ordinary const processes to alleviate the danger’  not met here  No reliable evidence suggesting that. language in the order indicates racial animus to be protected against o Plessy (1896)  Facts: Jim Crow law (system of apartheid and gov mandated segregation in public) in LA that separated railway carriages by race. Later. common knowledge that the purpose of the law IS to impose a badge of inferiority o Brown (1954)  Series of cases preceding Brown = NAACP strategy to bring cases in descending 1) Order of inequality: refused admission to separate area of cafeteria. and 2) Level of education: law school to primary 50 . o If unable to do so.

lessening security of their enjoyment of fundamental rights. regardless of whether it punishes members of each race to the same degree  Analysis: Classification in statute applied only to marriages involving white persons. Black citizens filed suit to force the city to reopen pools. o o o Going from blatant inequality impacting a small sector to lesser inequalities having a broad impact  Purpose: so that deciding each case was modest enough for the Court to rule against the segregation without directly overruling Plessy and while avoiding political ramifications  Facts: Minors were denied admission to public schools in their community on basis of segregation  RULE: Separate is inherently unequal  Denotes inferiority of status in the community.  RULE: Improper motivation alone doesn’t render a statute unconst. and reducing them to the condition of a subject class  Court uses social science studies to support the conclusion  Rationale: did not want to allow room for a dissent and thereby lose weight of unanimity  Critique: makes room for later vulnerability and critique of methodology Loving  Facts: Miscegenation statute in VA. the impact is greater when sanctioned by law  Affects the motivation of a child to learn  Tendency to retard the educational and mental development of the community  Analysis of the 14th Am… o History is inconclusive: Divisive issue with avid proponents and opponents + public education had not yet taken hold in the South so lack of debate in state gov o Language: contain a necessary implication of positive immunity or right to be exempt from legal discriminations… implying inferiority in society. Sends a message that the class may risk losing public facilities if they attempt to protest. it would presumably be valid once re-passed for dif purposes  Dissent (Douglas): This is not about swimming. suggesting it was designed to discrim  Not even a legitimate purpose independent of invidious racial discrimination Palmer  Facts: Jackson closed its public swimming pools rather than having to desegregate them. Davis  Facts: claim against police department for its recruitment procedure including a verbal skill test. a white person could not marry a non-white person  RULE: ALL racial classifications must be subjected to the most rigid scrutiny. arguing the decision was motivated to avoid integration. it’s about the cost of pursuing integration. claim was not about intentional discrimination. Motivation is important  translates the closure as a device to inhibit desegregation WA v. but rather that the test bore no relationship to job performance and had a highly discriminatory impact in screening out black candidates 51 . analyze the operative effect of law  Rationale:  Extremely difficult to ascertain the motivations behind a legislative enactment  Rarely just one motivation + can be inextricably interwoven  Futile for Court to invalidate a law because of bad motives alone  if the law is struck down for this reason.

but a possibility Burden shifting step: o If discrim intent is shown  Gov may rehabilitate the law by showing result would have been the same without any impermissible motive o Gov must show: discriminatory motivation was too minor or insignificant to qualify as the intent behind the law. Gomillion) o 2. E. Must be part of the goal = “because of” Arlington Heights  Facts: city denied rezoning request that would allow multiple-family residences.RULE: Discriminatory impact alone does not trigger strict scrutiny analysis. so partial motivation is acceptable proof Methods of showing intent: o 1. o Court applies rational basis review:  Neutral on its face: administered generally. the effect is so extreme it is unexplainable on grounds other than race. rarely only one motivation. and reports.g. Procedural irregularity: actor was skipping steps or tinkering with process o 2. broad def of veterans  Analysis: Facially neutral  Discrim impact: By identifying veterans as the preferred group. foreseeability. Substantive inconsistencies: the decision seems out-of-line with what the gov would be normally prone to do. Claim is that this was a social issue meant to stop blacks from living there  RULE:  Burden of proof for intent: Must show invidious discrim purpose was “a” motivating factor. minutes of its meetings. Precisely calibrated / very close fit between what the law is trying to achieve 52  o o o . mostly a null category. but rather to enhance the verbal communication skills of its police force o Dissent (Brennan): Lack of correlation between the challenged practice and jobrelated skills Feeney  Facts: absolute preference for veterans in applying to certain job positions. Legislative or administrative history: including contemporary statements by members. concededly seeks to ascertain level of verbal skill  Rationally serves gov interest: purpose here is not discriminatory. or awareness of adverse impact on identifiable group is insufficient. but need to also prove intent (WA v. did not apply to prime contractors owned by minorities  RULE:  Compelling interest: requires direct evidence of a concrete harm in the field related to the specific classification. had a disproportionate effect on racial minorities. NOT just a speculative and “amorphous claim of past discrim”  Narrowly tailored: o 1. there are multiple motives at play Croson  Facts: “unyielding racial quota” required prime contractors to subcontract at least 30% $$ of k to minority-owned businesses. and thus plaintiff can prove intent through impact (Yick Wo. if the multi-family zoning request would have put the area in line with surrounding zones o 4. Impact: In rare cases. discriminated against women because 98% of veterans in the state were male  RULE: Discrim purpose  Inevitability. Davis).

case-by-case assessment. this would normally support use of lower scrutiny when the “white majority” places burdens upon itself.o 2. Lack of alternative Analysis:  Compelling interest?  NO o Exclusion of blacks from trade unions and training programs in the construction industry doesn’t show discrim by city or prime contractors in relation to minority subcontractors o Comparison: using past discrim in primary school to justify racial preference in medical school admissions o Lack of causal link: Sheer speculation of discrim impact on the specific field o Random inclusion of other racial groups: weakens likelihood that the city’s interest was actually to remedy past discrim o Passive Participant / plurality section: If city could show it had become a “passive participant” in a system of racial exclusion practiced by the local industry. Even if there discrimination is proven. gov must show there was no less troubling way to produce a similar salutary effect. But here. Very close fit between what the law is trying to achieve / means chosen are precisely calibrated (not under or overinclusive)  Not here: overinclusive  Absoluteness of the quota: “Rigid. formulaic”  Unrealistic assumption of lockstep proportionality: between minority representation in the population and minority pursuit of a particular trade  Suggests: a more flexible inquiry. Gov had no alternative  Must explain why alternatives won’t work  because use of race classification is suspect. automatic. it is to be used as a last resort. mechanical. using race as a plus factor o 2. it would serve as a compelling interest (in assuring that public taxes do not serve to finance the evil of private prejudice) o Policy: against generalized assertions of past discrim  arbitrary + immeasurable  Slippery slope: open the door to claims for remedial relief by every disadvantaged group  Immeasurable: no guidance as to the precise scope of the injury to be remedied  Arbitrary: “mosaic of shifting preferences”  Means “no greater than necessary” / narrowly tailored?  NO o 1. it would rather militate FOR heightened judicial scrutiny Grutter  Colleges and universities may use race as “one factor” in admissions decision (Bakke)  o 53 .  Here: City might otherwise…  Offer financing for small firms  Prohibit discrim by local entities in providing credit  Modify bureaucratic barriers to increase opportunity for new entrants  Note: Representation issue here – racial minority held political majority in the leg body — if one aspect of the EPC is to protect “discrete and insular minorities” from tyranny of the majority.

       Facts: law school race-conscious admissions policy Influential differences from Croson  Interest  to enhance educational objectives / not solely to raise diversity participation  Tailoring  critical mass allowed flexibility and variance in #’s / not a “racial balancing” quota Analysis:  Compelling interest  YES: to achieve educ benefits by enrolling “critical mass” of diversity o Develop skills needed in an increasingly global marketplace o Make classroom discussion livelier and more enlightening via wide variety of backgrounds o Avoid isolation and pressure to be the singular spokesperson for issues related to minority o Break down stereotypes by showing diversity within minority  Narrowly tailored  YES: critical mass o Quotas NOT permissible  Quantitatively fixes a number or proportion exclusively for a particular class  Some attention to numbers without more does not amount to a quota. and some overmatched  The school does not even have an interest in existing – other states do not have law schools  School’s elite status causes it to be a way station for other states lawyers Dissent (Kennedy): Deference is antithetical to strict scrutiny. . a measure taken in the service of the goal of equality itself” Dissent (Scalia): goal is really to convey general lessons in socialization. slippery slope for future law suits Dissent (Thomas):  Aesthetic goal = “cruel farce”  resentment. badge of inferiority for all.Intermediate Scrutiny: Gender Classifications 54 . naturally some relationship between numbers and achieving goal  Insulates the individual from comparison with all other candidates o Flexible range + not insulated IS permissible  Flexible range: number of minorities in each class varied within a 7% range  Not insulated: used as a “plus” factor so ALL factors are meaningfully considered alongside race  1) broad and unlimited range of diversity factors considered  2) frequently accepts nonminority applicants with lower grades and test scores than minority applicants o Lack of alt: Eliminating reliance on LSAT or GPA  would reduce status of the law school Limited duration is required  School must keep searching for alternatives through periodic review or have a sunset provisions  Rationale: Assures all citizens that deviation from the norm of equal treatment is temporary.

bone structure. family. but required servicewomen to demonstrate dependency of husband  Analysis: applied strict scrutiny  Interest?  administrative convenience: wives frequently are dependent.g. but in a cage (Frontiero) Discrete and insular minority – yes and no Patterns of political powerlessness and underrepresentation Not the same social isolation.o Semi-suspect classification  Immutable – yes Socially salient: immediately visible Not chosen: by chance of birth (Frontiero)  History of discrim – yes Classifications usually based on stereotypes (e. and  community Irrelevance of attribute – yes and no Some biological dif are meaningful and may justify discrim (e. maternal functions) Identifying these differences does not carry the same disfavor or quality of o invidious thought  Generally bears no relation to ability to perform or contribute to society (Frontiero) TEST (laid out in Boren)  1) serve important gov objectives Impermissible if used to… (US v. muscle mass. Virginia) o Denigrate either gender o Stereotype by denying opportunity to all men or women – artificial  - constraint 2) substantially related to achievement of those objectives CASES o Frontiero  Facts: law allowed a serviceman to claim his wife as a dependent without burden of proof. gov could validly discrim if it was cheaper to holistically grant increased benefits with respect to all male members than to independently determine dependency o Craig v. Boren  Facts: OK statute prohibited sale of low-alcohol beer to males under 21 and to females under 18  TEST: Gender classifications must…  1) serve important gov objectives o Here: enhancement of traffic safety  2) be substantially related to achievement of those objectives o Evidence is statistically trivial: . Lochner era)   “romantic paternalism” put women. while husbands are not o No concrete evidence offered o Potentially.g. women live alongside men in society.18% of females versus 2% of males arrested for drunk driving 55 . not on a pedestal.

Dissent (Rehnquist): the level of scrutiny used here was invented out of thin air and uses diaphanous and elastic phrases that invite subjective judicial preferences or prejudices US v. Adversative method would have to be modified to include women  The notion that admitting women would downgrade the school’s stature mirrors the “self-fulfilling prophecies” of historical justifications for denying rights/opportunities. Ferguson  separate but equal is acceptable if comparably equal opportunities are offered Class discussion: o Hand-to-hand combat would be inherently altered – in accordance with general social understanding  Response: Should the gov go WITH the social norm or against it? Maybe right now 50% of each punch would be weakened now. Virginia created a women’s college that was obviously inferior in its academic offerings. and financial resources: lower SAT score of entrants.D.  The school’s mission purports to advocate for American democracy and free enterprise  Means: substantially related?  “Inherent differences” might be accepted (e. o Analysis:  Ends: “exceedingly persuasive justification” = important? NO  1.  Education is not uniformly suitable. offered only a bachelor of arts degree so that any student wanting an engineering or science degree had to spend two years out-of-state paying private school tuition. but in 50 years that wouldn’t be the case o Benefits of single-sex education:  Women might speak up more without social expectation to be submissive and could lessen anxiety/stress by lessening instances of sexual assault  - - 56 . NOT merely a rationalization  No evidence showed that VMI was established with a view of diversifying through its categorical exclusion of women  2. to compensate for particular econ disabilities. but people are not being forced to attend VMI. methods of education. Virginia o Facts: Virginia Military Institute was a single-sex public university. faculty with fewer Ph.’s and significantly lower salaries. Unique  no comparable equivalent and thus special education for only one sex o Like Plessy v. it’s a matter of whether the public school can const deny persons with the will and capacity to succeed there solely based on their gender. to promote equal employment opportunity) but CANNOT… o Denigrate the members of EITHER sex o Impose an “artificial constraint” an individual’s opportunity: Stereotyping is an impermissible basis for denying opportunity to all men or women because it includes those “whose talent and capacity place them outside the average description”  Remedial Requirement: Must closely fit the const violation… aka be shaped to place the injured party in “the position they would have occupied in the absence of discrimination” o Note: does not invalidate ALL public single-sex institutions. Benefits of diversity and educational benefits  Justifications must describe the actual state purpose.  Rather.g.

hold political office. requiring the child to establish paternity while the father is still alive Intermediate Scrutiny: Alienage Classifications - - Definition: discrim against “non-citizens”. or execution of policy.g. not about the country the person came from (national origin) Origins: EPC explicitly says that no “person” shall be denied equal protection of the laws. thus Court has been deferential to federal statutes and presidential orders that discriminate against aliens  Overall rationale: it is reasonable to allocate benefits and burdens to citizenship CASES o Graham: AZ law denied welfare benefits to aliens who had not resided in America for a certain time o Foley  Facts: law required citizenship for acceptance onto state police force  TEST: whether the position involves discretionary decision making. which substantially affects members of the political community?  Rationale  “a democratic society is ruled by its people”  Here: these officers are entrusted with many important policy responsibilities having a serious impact on the day-to-day life of citizens. state may deny aliens the right to vote. rather than “citizen” TEST: o Alienage = discrimination against non-citizens o General rule: strict scrutiny (Graham) o Two major exceptions: Rational basis for classifications related to…  1. Self-government or democratic process  E. and serve on juries  Rationale: A democratic society is ruled by its people (Foley) o The laws to which the citizens are subject should be created and enforced by people who are o Substantial effect on  2. less networking and connections to power) Men have enhanced focus on academics  Response: part of education is a socialization process that requires interaction with both sexes .  Response: like race.Illegitimacy o o o Quasi-suspect class applying intermediate scrutiny  Substantially related to an important gov interest Law denying benefits to ALL non-marital children are invalidated (too under or overinclusive) One interest the court has accepted  state’s need to eliminate fraud and have accurate/reliable procedures for determining paternity… E.g. Federal law / Congressionally approved discrim  Immigration and foreign policy  Federal gov has plenary power to regulate immigration. there is an implied hierarchy such that separate-but-equal institutions may be inherently unfavorable to women (inferiority complex. it is permissible for the state to presume that a citizen would be in a better posture to fulfill that role  Marshall dissent: Lack of a meaningful line between this exception and strict scrutiny 57 .

o Court has since permitted other roles including elementary school teachers and probation officers. while rejecting the notary public (administers over non-contentious matters such as taking affidavits and oaths) 58 .

leg is entitled to a wide field of discretion  Means: oriented towards the class receiving the least pay o Carolene Products  Facts: Filled Milk Act prohibited interstate shipment of milk compounded with any fat/oil besides milk fat  Issue: does this infringe the Fifth Amendment? NO. does not constrain gov power Substantive component of Due Process: steps in to fill the void  protects against gov action that is “unduly invasive” of rights deemed to be fundamental by using strict scrutiny Origins of SDP - - Not expressly within text of the 14th Am. Regulation must be reasonable in relation to its subject + adopted in the interests of the community  Purpose: not arbitrary or capricious.Substantive Due Process: Fundamental Rights - EPC: Concerned with gov action that distinguishes between groups of people. acknowledges that laws necessitate some arbitrary classification and so guards specifically against “invidious discrimination” Procedural Due Process: e. which places a direct burden upon the community to support them (not just detrimental to personal health and well-being)… Even if wisdom is debatable. but rather a liberty which gov is expected to protect involving social welfare and freedom. reasonable exercise of the police powers of the state”  Dissent (Holmes): Const is not intended to embody a particular economic theory whether of paternalism or laissez faire Laissez-faire period ended with The Great Depression when it became obvious that freedom of k was an empty promise and did not offer any meaningful freedom for employees o West Coast Hotel  Facts: WA state law established a minimum wage for women and minors  RULE: SDP does not proffer an absolute liberty. notice. opportunity to be heard by a neutral body. based on judicial interpretation Started with the Lochner era o Court used “freedom of k” under Due Process to limit gov regulation and protect economic liberty o Lochner  Facts: law limited the hours an employee could work in a bakery or confectionary establishment  5-4 in favor of freedom to k.  Analysis: Deference to leg regarding laws governing ordinary commercial transactions  rational basis  RULE: What might warrant a more searching judicial inquiry  “discrete and insular minorities” = unable to protect their interests through the political process  When leg facially interferes with rights encapsulated in the bill of rights or distorts the political process o Williamson 59 . purportedly uses rational basis but does not tolerate underinclusiveness  Analysis: Interferes with “right of k” between employer and employee which is a liberty protected by 14th Am  this limits state police power  court must scrutinize the law to ensure it is a “fair. to prevent exploitation of employees with relatively weak bargaining power.g.

there are still rights perceived as so fundamental they should be examined under strict scrutiny despite not expressly found within the const  Why and when do we reject/approve the court’s overturning laws as violating the const?  - Analysis Track: - - - 1) Is there a fundamental right at stake? o Precedent: Assess the degree of specificity or breadth encompassed  Right to procreate (Skinner)  Right to privacy (Griswold)  Right to reproductive autonomy (Griswold)  Right to abortion (Roe)  Right to marry (Loving)  Right to control upbringing of own children  Right to keep family together o Undecided:  Is the right…  Deeply rooted in national tradition and collective conscience of our people? (Griswold / Moore) OR  Essential to the orderly pursuit of happiness? (Loving) o Tradition does not negate the right as fundamental 2) Is that right actually being infringed? o Practical assessment of how the law would operate o Direct and substantial interference with that right  More of a flat-out prohibition (Loving) OR trivial/logistical requirement?  Tangential OR may influence individual behavior? 3) If yes. does the law being challenged satisfy strict scrutiny? 4) If not a fundamental right being infringed. then does the law satisfy rational basis review? Right to procreate o Buck  Facts: law imposed involuntary sterilization of “mental defectives”  Highlights the dif between substantive and procedural due process: 60 . wasteful requirement in many cases  It is for the leg to balance the advantages and disadvantages of the new requirement  Legislature might have concluded the frequency of occasions was sufficient to justify regulation  Any conceivable purpose will suffice: Eye exams were so critical for detecting latent ailments or diseases such that every new frame or lens should be accompanied by a prescription  note: the law does not require new eye exams every time there are new frames or lenses The Lochner era now represents the worst of judicial activism and interference with the will of the populace However.Facts: law limited the work a non-licensee could perform without a prescription from a licensed expert  RULE: any conceivable leg purpose will suffice  extremely deferential to economic regulations now  Analysis:  Court admitted the law may exact a needless.

Carrie Buck was not contending that the superintendent violated any part of the procedure. sterilization is a lesser sacrifice  Cannot say as a matter of law that the grounds do not exist – justifies result o Skinner  Facts: law imposed involuntary sterilization of habitual criminals (those convicted of 2+ times for crimes “amounting to felonies involving moral turpitude”) Skinner had been convicted twice of larceny. not a protected class o State cannot distinguish between these classes upon “conspicuously artificial lines” without providing sufficient reason  Concurrence: applies SDP  “I seriously doubt the EPC requires it to apply the measure to all criminals in the first instance. but rather that no amount of procedure can justify such a violation of liberty. or to none” – should ask whether the wholesale condemnation of a class to such an invasion of personal liberty satisfies the demands of due process Right to privacy / reproductive autonomy o Griswold – to purchase and use contraceptives  Facts: Doctors violated statute forbidding them from assisting or counseling others in using contraceptives  RULE: prohibition on contraception has a maximum destructive impact upon the zone of privacy in marriage that is created by several fundamental const guarantees  Analysis:  Penumbra basis for const rights: arising from various guarantees in the Bill of Rights (Pierce. Meyer) o 1st – right of association (used in Pierce and Meyer) o 3rd – prohibition against the quartering of soldiers o 4th – right to be secure against unreasonable searches and seizures o 5th – gov may not force citizen to self-incriminate  creates a zone of privacy akin to the concept that gov may not intrude upon other privacies o 9th – “The enumeration in the Const. he went through the proper procedural requirements to perform the operation.  RULE:  Marriage and procreation are fundamental to the very existence and survival of the race  Analysis  Rationale justifying invalidity of sterilization o Cause certain classes which are inimical to the dominant group to wither and disappear o There is no redemption for the individual whom the law touches  EPC – Rational basis review o The law differentiates between larceny and embezzlement offenses. shall not be construed to deny or disparage others retained by the people” 61 .  Analysis:  Purpose of the act: Health of the patient + welfare of society o Public welfare: to prevent those who are manifestly unfit from continuing their kind and thereby prevent the nation being swamped with incompetence  Means: may call upon the best citizens for their lives  here. - When the superintendent came to the conclusion it would be beneficial for a patient to be sterilized. of certain rights.

o Neither DPC nor 9th Am could serve as a proper basis for invalidating the law  Innately. The gov has a right to invade privacy unless prohibited by some specific const provision.g. which rejects the Lochner approach because “we do not sit as a super-legislature”) Black dissent:  Starts off saying “the law is every bit as offensive to me”… BUT we are compelled to uphold it  Argument: o No general right to privacy in the Const … The extent to which the Const does protect privacy. US: in interpreting the const. Would violate the 9th Am  Courts must look to the traditions and collective conscience of our people to determine whether a principle is so rooted there as to be ranked as fundamental (not the precise definition) Harlan concurrence:  Proper inquiry = DPC of 14th Am  The word “liberty” within the DPC includes the right to make reproductive choices  Problem with this suggestion: it encapsulates the Lochner approach. “real effect should be given to all the words it uses” o To allow the infringement of such a fundamental. and deep-rooted right would 1. it does so only in certain enumerated circumstances. marriage must be as well Goldberg concurrence:  Highlights the importance of the 9th Am o Precedent:  Marbury v. Ignore the 9th Am and give it no effect whatsoever. and together they demonstrate the framers intended to create a zone of privacy and that privacy was an important value to them  Here. some view abortion as a criminal act o Right to individual autonomy – almost no limited principle at all o Right to privacy – suggests a right to autonomy. we are dealing with a deep-rooted right to privacy = Marriage is older than our political parties and school systems – so if these privacy rights have been protected. which is now disfavored (as pointed out in the majority.      we look at these amendments together as an interlocking whole. and moreover 2. the court must apply their “personal and private notion” there is no gadget to measure the collective conscience of the people in a reliable and accurate way… this is just a thin cover for the Court to uphold values it thinks important o The framers provided the means to amend itself in accordance with changes in societal opinion through Article 5 Discussion:  How could the Const be amended to include the right at hand? o Right to make procreative choices – we are hard-pressed to find language that would capture what enough of us want to survive the 2/3 amendment process… e. but limits it to private choices rather than economic or social choices  Supreme court does not use the penumbra theory or 9 th Am  Ultimately the substantive due process approach won out in later cases as the formula for analysis 62 . Madison: “it cannot be presumed that any clause in the const is intended to be without effect”  Myers v. basic.

and virtue o Sufficient  Means: o It is plainly unreasonable to assume that the state determined pregnancy and the birth of an unwanted child as punishment for fornication  “at best a marginal relation to the proffered objective” … People will engage in the behavior the state deems as immoral. broad. what you shouldn’t be doing is saying a right doesn’t exist because it’s not expressly there”).o o o o o Penumbra approach: embarrassing because it seemed like a grab-bag search for semi-related Const support 9th Am: controversial  Some agree that it protects a whole realm of unremunerated rights. If you find Lochner inappropriate but Skinner appropriate – how do you defend that intuition?  Private. individual choices v. chastity.  Some think it only limits federal gov because the term “people” is basically the people speaking their state and local gov. but will only be prevented from preventing unwanted pregnancy  Arguments: If you were the state/pro-contraception. not a blanket prohibition  The Court has passed into the area of personal predilections 63 . how would you use Griswold to defend your position?  State: The court’s decision cannot be disentangled from marriage in the social structure  Pro-contraception: The marital couple is not an individual entity – each individual has a separate emotional and physical make-up – and individual liberty matters at the individual level. not the couple  Rule: Right of privacy involves the right of the “individual” (regardless of relationship status) to be free from unwarranted gov intrusion into matters so fundamentally affecting a person as the decision whether to beget a child  Burger dissent: Distinguishing Griswold: The Court now is confronted with a statute that regulates distribution of contraceptives.  Some think it is just a rule of construction that forecloses a particular type of interpretive argument (“when you’re having your fight. sanctity of the home. whereas the right to contraception is meaningful  Consequences of these decisions  Lochner contributed to the Depression and so disfavored by public opinion … BUT judiciary is supposed to be immune to public sentiment Textualist argument: The way that judges show restraint is by tethering themselves to the text of the Constitution  when we see the word “liberty” we should interpret it only so far as it does not have ripple effects in the community Eisenstadt  Facts: law distinguished between married couples and single persons in relation to allowing contraception  RULE: made review based on the “individual” rather than marital couple  Analysis:  There is no rational purpose of treating marital couples and single persons separately  Purpose: o To protect/encourage purity. social choices  The “liberty” approved by Lochner was a farce and actually deprived the working class of liberty. self-restraint.

the State may assert interests beyond the protection of the pregnant woman alone  Why States cannot fully outlaw abortions:  Mental and physical health may be taxed by child care  Psychological harm of maternity on an unwilling woman  Stigma of unwed motherhood  Lack of resources to care for child  When is there a state interest?  Nobody takes seriously the state’s interest in protecting against illicit sexual activity (interesting because that was a main justification for the statute in the case the year before)  **health and safety of mother  ** protecting the “potentiality” of fetal life o People disagree profoundly about when life begins:  At conception – Catholics / TX  problem: Court cannot get entangled with religion  Viability (potentially able to live outside mother’s womb with artificial aid)– physicians and scientific colleagues  problem: this is always changing o Why Roe is challenging  Court says that “these interests (maternal health and fetal life) become more compelling as the pregnancy proceeds” o Holding:  Right to personal privacy includes the abortion decision. o Analysis:  Abortion was a crime in 46 states  most deriving from latter half of 19th century  Reasons for these statutes:  Victorian social concern to discourage illicit sexual conduct (not taken seriously by courts)  Hazardousness of procedure – modern medical techniques have made abortions relatively safe particularly in the first trimester  State interest in protecting prenatal life – as long as at least potential life is involved. familial. but the right is not unqualified and must be considered against important state interests in regulation  Blackmun is forecasting trimester viability approach  Prior to the approximate end of the first trimester.The Right to Abortion - - Possible analysis tracks o concept of personal liberty contained in the Fourteenth Amendment’s Due Process Clause o personal marital. Wade Roe o 1973 Justice Blackmun wrote the opinion / surprise – nominated by Nixon. the abortion decision must fall to the medical judgment of the woman’s physician and not criminalized by statute 64 . republican o Facts: Jane Roe brought a declaratory judgment action to prevent the enforcement of Texas statutes criminalizing all abortions except to save the mother’s life. close with Burger. and sexual privacy protected by the Bill of Rights or its penumbras o among the rights reserved to the people by the Ninth Amendment? Eisenstadt emphasizes departure from Griswold in that it does not rely on sanctity of marital relationship  If the right of privacy means anything it is on the individual basis  the very next year the Court decided Roe v.

not applicable to Roe’s central holding  Reliance? o Argument: it would be inequitable to back away from Roe decision because people have o There IS a reliance interest  over the past decades. except where necessary for the preservation of the mother’s life… State interest: potential fetal life  Grounded in strict scrutiny  Abortion is a fundamental right – part of the broader right to privacy  Has to further compelling state interest and be narrowly tailored  Whats challenging is the state’s interest changes during course of pregnancy o Virtually no interest in the first trimester o After first… o Dissent (Rehnquist): the right to abortion is not universally accepted. and thus the right to privacy is not inherently involved here Casey o O’Connor majority o Analysis of stare decisis  Have the relevant facts changed?  that just goes to timing of viability. changes are in the midst  Drawing a line of viability  Court rejects trimester framework altogether where almost no regulation was permitted in the first trimester  The plurality is opening up the possibility for regulation from the outset of pregnancy so long as it doesn’t out rightly refuse abortion  Up to viability. - - After the first trimester. the woman has to have the right to choose an abortion + the state has the right to ensure that the decision is “thoughtful and informed” = dramatic departure from Roe o  only where state regulation imposes an undue burden on woman’s ability to have an abortion o The law has the “is shorthand for the conclusion that the law has the purpose or effect of placing a substantial obstacle in the path of a woman seeking to abort a non-viable fetus” o After viability. states can prohibit abortion o Rule: A law is invalid if its purpose or effect is to place a substantial obstacle / “undue burden” in the path of a woman seeking an abortion at a stage of her pregnancy before the fetus attains viability o Scalia: “sweet mystery of life passage” Using the undue burden principle. women have organized intimate relationships that they would be able to turn to abortion  Prudential  Pragmatic  O’Connor refuses to overrule Roe’s central holding  There is a stare decisis reason to follow that precedent  However. the State may regulate and even proscribe abortion. the court has upheld… o Requiring women to give informed consent by being provided with typical milestones and other information to ensure the decision is thoughtful and informed o Requiring a 24-waiting period before the procedure could be performed after information o Parental consent for minors with a bypass – neutral decision maker as an alternative is appropriate o FAILED: spousal notification provision  Extensive findings of spousal abuse 65 .

a woman must still be allowed to get an abortion BUT states may regulate abortions as long the law does not impose an “undue burden”  the purpose or effect of placing a substantial obstacle in the path of a woman seeking to get an abortion This is an ambiguous test. Loving still continues to be important – particularly with same-sex marriage 66 . but the Court has ruled on several regulations… o that they deemed not an undue burden…  24-hour waiting period. Up until viability. Virginia o Loving  Facts: VA statute prevented marriage between persons solely on the basis of racial classifications  State argument: the law operated equally upon whites and blacks alike – shouldn’t be thought of as a violation because it “applied equally”  Court response: these miscegenation statutes are still racial classifications – apply strict scrutiny (Korematsu) – not a compelling interest  Issue: whether statute violates the EPC and DPC of the Fourteenth Amendment?  Rationale:  Fundamental right  Freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men… fundamental to our very existence and survival  Court went an extra step that was unnecessary = The statute is “doubly offensive” o  racial classifications + applied to marriages o State is using impermissible/invidious racial discrimination (EPC) to limit the fundamental right of marriage (DPC) and so violates both EPC and DPC  EPC: impermissible race discrimination  DPC: to deny this fundamental freedom on so unsupportable a basis as the racial classifications of equality at the heart of the 14 th Am is surely to deprive all the State’s citizens of liberty without due process of law  “essential to the orderly pursuit of happiness by free men” o Because of this extra step.Summary of Abortion Regulations - - - - Abortion is still considered a fundamental right under the DPC (Roe) Casey rejected the trimester approach. which is often in conjunction with a mandatory provision of information about fetal development – to induce reflection  Parental consent for minors as long as there is a judicial bypass  Narrow ban on a particular type of procedure (decided in 2007 with a federal partialbirth abortion law) o As well as some that constitute an undue burden…  BUT a regulation that takes off too many methods would constitute a substantial obstacle  Spousal notice States CAN prohibit abortion after viability = “meaningful life” that could survive outside the womb o This is a moving target that is likely to change o It may be possible to challenge the state’s definition of viability as conflicting with what the court defined in Roe The right to marry o First recognized as a fundamental right in Loving v.

wanted citizens to identify as American before identifying with German heritage  Liberty defined…  Defending SDP by framer’s intent + language  Drafters intentionally used a term that is more capacious than merely physical restraint. there is a bifurcated scheme – the parents who can afford private or parochial school can send their children there… while parents who can’t afford it must send kids to public school  Liberty: of parents and guardians to direct the upbringing and education of children under their control o Note Cases  Not absolute right:  Vaccinations  Labor (Prince)  Prince v. Includes more than just freedom from physical restraint  McReynolds feels comfortable enough to list rights included.- The right of parents to control the upbringing of their children  First cases recognizing family autonomy involved this right  Decided during the Lochner era and expressly use substantive due process to protect this right o Meyer  Facts: teacher “unlawfully” taught a 10-year-old child German  Law: prohibited teaching any language besides English  Purpose: Ethnically German population of the mid-west. such as the right to… o K o Engage in any of the common occupations of life o Acquire useful knowledge o Marry o Establish a home and bring up children o Worship God according to the dictates of his own conscience o enjoyment of those privileges long recognized at CL as essential to the “orderly pursuit of happiness” by free persons  this language stands alongside the language in Griswold for when a right is fundamental – this language appears in later civil rights cases  Critique of the list  Overly broad – not even sure what the things on his list mean o There is still a lot of uncertainty about the contours of this right  Parents have a constitutionally protected right to control the upbringing of their child / part of the liberty that is protected by the 14 th Am – this aspect of Meyer has endured o We don’t  **** Test: Is the right in question essential to the orderly pursuit of happiness by free men? **** o Pierce  Goes hand-in-hand with Meyer… establishes general proposition that parents have right to control over their child’s welfare  Facts: law forced standardization of education by requiring parents to send children to public school education  Note by Aviel: We still have the requirement that parents send kids to school so…. MA  not unlimited  Facts: 9-year-old directed by parents to solicit for the Jehovah’s Witness religion  Rule: Family is not beyond regulation in the public interest 67 . during wartime. In effect.

g. this has not undermined the strength of the decision. or welfare Parham v. which it limited to only a few categories of related individuals. Inez Moore was sentenced to 5 days in jail and a fine for living with her son and her two grandsons.R.  deference to parents  Facts: due process in parents committing child to an institution  Rationale: that some parents may at times be acting against the interests of their children is a basis for caution. e. and so was considered an illegal occupant. court has later cited to it enough that it is part of the set of cases that articulate some sort of right for family decision-making that don’t need to be within marriage or parent decision making  Stevens concurrence (wanted to decide case using “property rights” rationale)  Facts: A city housing ordinance placed restrictions upon occupancy to members of a single family. minimizing traffic and parking congestion. not a basis to discard the assumption that a parent generally acts in the child’s best interest… statist notion that favors gov power over “all” parental authority because “some” parents abuse and neglect children is repugnant to American tradition The right to keep the family together o Includes extended family o Moore  Plurality opinion  However. The two boys were first cousins rather than brothers.   - Rationale: the need to protect children from being exploited and harmed justified the laws prohibiting child labor – even IF work was at the direction of the parents and done for religious purposes Wisconsin v. forbids an adult brother and sister to share a household. court applies strict scrutiny o City interests are legitimate: Preventing overcrowding . J. and avoiding an undue financial burden on school system o Tenuous relation / marginal at best / the problem is in the tailoring:  Overinclusiveness: sweeps into its confines people who are not even related to the problem. peace. the cousin had come to live with his grandmother after his mother died.  She raises both DPC and EPC challenge. or 2) to the public safety. even if the both faithfully use public transportation 68 . order. Yoder  deference to parents  Facts: Amish parents allowed to exempt teenage children from compulsory school attendance  Rule: in weighing competing claims of parents and state  Court has given great deference to parents  Rationale: o “right to control the upbringing of their children” and “free exercise of religion” o Additional education would threaten their children’s religious beliefs and the uniquely insulated Amish culture o No evidence of any harm to the 1) physical or mental health of the child.  Liberty protected: right for families decide to live together  Analysis:  Distinguished Belle Terre v. Boraas: that case affected only unrelated individuals (“all who are related by blood” can live together) – so only applied rational basis  Here.

allows a family with a dozen kids to live together. e. and upheld law prohibiting sodomy. police entered private residence and observed two men engaging in a sexual act o Issue: whether the petitioners were free as adults to engage in the private conduct in the exercise of liberty under the DPC of the 14th Am? o Bowers v. but seems to apply rational basis by referencing the lack of a “legitimate state interest” o Could have said… 69 .  Analysis by Lawrence Court:  Bowers issue: whether the Const confers a fundamental right for homosexuals to engage in sodomy? o Failed to appreciate the extent of the liberty at stake o Demeans the claim put forward just as it would demean a married couple to claim marriage is just about the right to sexual intercourse  Statutes = Invasion of privacy o Statute purports to do no more than prohibit a particular sexual act o BUT the penalties and purpose have more far-reaching consequences o  Seeks to control a personal relationship involving a personal bond that is more enduring than the overt expression of sexual conduct that it outlaws  Touches upon the most private human conduct (sexual behavior)  In the most private of places (the home)  Historical premises are doubtful o No longstanding history directed at homosexual conduct as a distinct matter o Early American sodomy laws  General condemnation of non-procreative sexual activity  To ensure no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by criminal law  Infrequent prosecution of private conduct – difficult to say that society approved of a rigorous and systematic punishment of such private. Hardwick  Summary: 1986 / GA law prohibited conduct whether or not the participants were of the same sex. There is not a fundamental right to sodomy.” but never declared that homosexual sodomy is a fundamental right under DPC. The Court in Lawrence expressly overruled this precedent.  Underinclusiveness: fails to include persons who are part of the problem. each with his or her own car E. applied rational basis review.g. of tailoring that better address these issues: Requiring parking permits Const protection for sexual orientation and sexual activity - Lawrence v. TX o Facts: law made it a criminal offense to engage in “deviate sexual intercourse” meaning oral or anal sex with an individual of the same sex. consensual acts o Recent history  Show an emerging awareness that liberty gives substantial protection to adults in conducting their private lives in matter pertaining to sex  Major decrease in number of states that have and enforce laws only against homosexuals  References the cases of Casey and Romer  Sloppy! o Calls the conduct “an exercise of their liberty. adult.g.

bigamy.We don’t need to decide whether heightened scrutiny applies. so more of a statement of disapproval o If there was a neutral sodomy law. whereas the majority has signed onto the “homosexual agenda”  Importance of moral disapprobation as a legitimate state interest for proscribing that conduct Morals legislation appropriate justification here? o Justification  Morality is inextricable from law  Deference to the democratic process and resultant legislative judgments o Nope  - 70 . and obscenity  Concurrence casts doubt on whether laws limiting marriage could pass rational-basis scrutiny  Court has obligation to decide cases neutrally. adult incest. in both effect and application  it might be constitutional. so applies rational basis o Purpose of classifications won’t satisfy rational basis if…  For disadvantaging the group burdened by the law  Moral disapproval of a group  Bare desire to harm the group o Evidence of animosity toward class  rarely enforced with private consensual acts. because this case fails even rational basis review  Could have identified homosexuality as a suspect class  Could have said there was a fundamental right to private consensual sexual activity or personal relationships o Concurrence (O’Connor)  Disagreed with overturning of Bowers  In Bowers  interest in promoting morality was deemed a rational basis for the law  BUT HERE  violates EPC because directed at a group rather than an act  Not a suspect class. bestiality. adultery. but she is confident that democratic society would not likely tolerate these laws if it involves their right to engage in certain private conduct as well  Discussion about this rationale: o Moral disapproval of a conduct is innately moral disapproval of a group o Her fix is insufficient. does not address the inequality that she’s worried about o Dissent (Scalia)  Stare decisis  Historically: The right to engage in this conduct is NOT “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty”  Sodomy was a criminal offense at common law  Lack of enforcement doesn’t mean recognition of the right – practical difficulties due to illegal conduct occurring in privacy of home  An “emerging awareness” by definition means it is not deeply rooted or traditional value  Rational Basis  Legitimate purpose: o To further the belief of its citizens that certain forms of sexual behavior are immoral and unacceptable o Same interest furthered by criminal laws against fornication.

   This realm of activity is private – distinction between people that only impacts the people engaged in it Cannot impose religious views on another person Morality of society = tyranny of the majority 71 .

III interp. Lessee [fed. Authority to review constitutionality of state laws and the actions of state officials  JUSTICIABILITY DOCTRINES: determine which matters federal courts can hear and decide and which must be dismissed.  STANDING  RIPENESS  MOOTNESSPOLITICAL QUESTION DOCTRINE 72 .] & Cohens v. Madison  Limits on Federal Judicial Power – Justiciability Doctrines  Central Themes – (1) Separation of Powers (2) Federalism  Marbury v. There are two types: (1) Constitutional = Art. (2) Prudential = discretionary/self-restraint.Mini Outline/Checklist:  Article III – Source of Judicial Power  Authority for Judicial Review (Doctrine of Judicial Review) – Marbury v. Madison: The Authority for Judicial Review of Congressional and Presidential Actions  The Authority for Judicial Review of State and Local Actions – Hunter v. Aaron – Federal cts. Treaty interp. Virgina [brothers convicted]  Cooper v.