I.

THE CONSTITUTION AND ITS FRAMING

The Constitution 1-7
Its Framing 7-25

Federalist No. 10

★ “[We need the Constitution] To break and control the violence of faction”
★ “[T]he latent causes of faction are thus sown in the nature of man”
○ So obviously we need something to govern us that doesn’t have these factions
★ Refining representation
★ A large republic
★ Federalism

Federalist No. 51

★ “If angels were to govern . . .”

★ “Ambition must be made to counteract ambition.”
★ Checks and balances
★ Federalism

II. JUDICIAL REVIEW AND SOURCES OF CONSTITUTIONAL DOCTRINE

Judicial Review:
Marbury v. Madison, 25-38
Martin v. Hunter’s Lessee & Judicial Review in the Federal System, 38-48
Sources of Constitutional Doctrine:
Text: District of Columbia v. Heller, 48-52
Structure: McCullough v. Maryland, 53-65
Natural Law/Moral Argument: Calder v. Bull, 65-69

Judicial Review

Marbury v. Madison
★ Gave the Supreme Court the authority to review the constitutionality of laws and
executive acts.
★ “It is emphatically the province and duty of the judicial department to say what the law
is. Those who apply the rule to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other, the courts must decide on the
operation of each. . . . This is of the very essence of judicial duty.”
★ Article III Section 2 Clause 1

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 ○ The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority;–to all Cases affecting Ambassadors, other
public Ministers and Consuls;–to all Cases of admiralty and maritime
Jurisdiction;–to Controversies to which the United States shall be a party;–to
Controversies between two or more States;–between a State and Citizens of
another State;–between Citizens of different States;–between Citizens of the same
State claiming Lands under Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects.
★ Article III Section 2 Clause 2
○ In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.

Martin v. Hunter’s Lessee

★ Established the Court’s authority to review state court decisions

★ Article III Section 2 Clause 1
○ The judicial Power shall extend to all Cases, in Law and Equity, arising under
this Constitution, the Laws of the United States, and Treaties made, or which
shall be made, under their Authority;–to all Cases affecting Ambassadors, other
public Ministers and Consuls;–to all Cases of admiralty and maritime
Jurisdiction;–to Controversies to which the United States shall be a party;–to
Controversies between two or more States;–between a State and Citizens of
another State;–between Citizens of different States;–between Citizens of the same
State claiming Lands under Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects.
★ Article III Section 2 Clause 2
○ In all Cases affecting Ambassadors, other public Ministers and Consuls, and
those in which a State shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall
have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and
under such Regulations as the Congress shall make.

Sources of Constitutional Doctrine

Text; Structure; Natural/Moral Law

District of Columbia v. Heller

Text

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★ The Court struck down a state statute that tried to limit the rights of firearm owners.
★ Scalia turned to the original understanding of the words in the Second Amendment to
determine whether the statute violated it.
○ Use of the words elsewhere in the Constitution
○ 18 century dictionaries
○ Other 18th century sources
○ English legal history
○ Post-ratification commentary and law

McCullough v. Maryland
Structure

★ The Court struck down Maryland’s attempt to tax a federal bank, relying on the spirit of
the Constitution.
○ Political history, historical acceptance
○ Structural principles, postulates, or visions
○ The Constitution’s purpose (in order to fulfill its vision)
○ An interpretive philosophy given the nature of the Constitution (“fair
construction of the whole instrument;” not a legal code)
★ The tenth amendment does not add any weight to states’ powers; it’s simply there as a
reminder that states reserve some sovereign power.
★ The power to tax is the power to destroy. Maryland was asking the Feds to just trust
them that they won’t destroy them. This is problematic as the feds had no political
safeguards in Maryland; they have no representation.
★ “Should Congress, in the execution of its powers, adopt measures which are prohibited
by the constitution; or should Congress, under the pretext of executing its powers, pass
laws for the accomplishment of objects not entrusted to the government, it would
become the painful duty of this tribunal, should a case requiring such a decision come
before it, to say that such an act was not the law of the land...”
○ External Limitations
○ Internal Limitations
★ “(cont’d from blue/red quote above)...But where the law is not prohibited, and is really
calculated to effect any of the objects entrusted to the government,”
○ A rational basis between the means and a legitimate end (deferential)

Calder v. Bull (1798)

Natural/Moral Law

★ Survivors of a decedent had to sue to get their benefits. Though they missed the
deadline by a couple weeks, the Court let them get the benefits, anyway. The

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 Legislature’s actions, the Court agreed, was not a “ex post facto” issue, because they
were dealing with citizens, not criminals.
○ “General principles of law and reason”
○ Social consensus, prevailing morality
○ Conceptions of justice
★ Justice Chase’s position is that there is an “unwritten” Constitution, consisting of
principles of natural law, which is enforceable against the states even though it cannot
be found in the Constitution.

III. JUDICIAL REVIEW: RESTRAINTS & LIMITATIONS

Political Restraints on Judicial Review:
The Jurisdiction of the Supreme Court, 155-158
Amendments, Appointments, Impeachment, Jurisdiction-Stripping, 69-82
Case or Controversy Requirements and Passive Virtues:
In General, 82-84
Standing, Ripeness, & Mootness, no reading; TBD in class
Political Questions, 121-153

The Jurisdiction of the Supreme Court

★ Article III of the Constitution sets out the jurisdiction of the Supreme Court.

Amendments, Appointments, Impeachment, Jurisdiction-Stripping

★ Amendments: There can only be an amendment if there’s a ⅔ House majority that

proposes an amendment or if ⅔ of the legislatures of ⅔ of states call for a constitutional
convention.
★ Appointments: Members of SCOTUS are appointed by the President with the advice and
consent of the Senate.
★ Impeachment of Justices: Justices of the Supreme Court “hold their offices during good
behavior” Article III Section 1. They may “be removed from office on impeachment for
and conviction of treason, bribery, or other high crimes and misdemeanors.”
★ Jurisdiction Stripping: Ex parte McCardle
○ Congress granted the Court appellate jurisdiction (under Article III Section 2) to
hear certain cases during the reconstruction plan. They then rescinded this
jurisdiction. This is okay. Congress giveth and Congress taketh away (appellate
jurisdiction of SCOTUS).
○ Klein: You can’t tell the Court how to rule but you can tell them what to rule on.
○ Martin v. Hunter’s Lessee: Whatever Article III establishes for judicial power
cannot be diminished. But its distribution can be shifted.

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 Case or Controversy Requirements & Passive Virtues

★ Three reasons why the Court should only hear cases or controversies
○ (1) CoCR reduces the friction between the branches caused by judicial review
○ (2) CoCR ensures that Constitutional issues will be resolved only in the context
of a concrete dispute
○ (3) CoCR promotes individual autonomy/self determination by ensuring that
only people who have personal stake in the controversies will be heard

Justiciability: General Considerations

★ Policies
○ avoid advisory opinions
○ avoid abstract disagreements
○ respect separation of powers
○ preserve judicial capital (hard and soft)
○ ensure “concrete adversariness”
○ promote fairness to third parties
★ Constitutional Requirements
○ Article III “cases” and “controversies”
★ Prudential Principles
○ Wise judicial administration (see Case or Controversy & Passive Virtues above)

Advisory Opinions

★ The Court cannot give advisory opinions--opinions on the constitutionality of executive

actions that did not grow out of a case or controversy

Ripeness

★ premature for review

★ injury is speculative and might not occur
★ exceptions: pre-enforcement review
★ where hardship and fitness
★ Hardship
○ [1] between rock and hard place: foregoing lawful behavior or risking
substantial sanctions
○ [2] enforcement is certain and will have consequences
○ [3] collateral injuries
★ Fitness

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 ○ state of the facts

Mootness

★ The controversy is resolved

★ Exceptions
○ (1) collateral consequences
○ (2) capable of repetition yet evading review
○ (3) voluntary cessation

Standing

★ Is the litigant entitled to have the court decide the merits of the dispute or the merits of
particular issues?
★ Three Constitutional Requirements
○ (1) Plaintiff personally suffered injury
■ the irreducible Article III minimum…
■ plaintiff must allege some direct injury
■ real and immediate – not conjectural or hypothetical
■ already suffered or certainly impending
○ (2) Causation
■ Plaintiff must allege that the injury is fairly traceable to the defendant’s
conduct
○ (3) Redressability
■ Plaintiff must allege that a favorable judicial decision is likely to redress
the injury
★ Three Prudential Principles
○ (1) No third party standing (generally)
■ Exceptions…
● [1] third party faces substantial obstacles to suing and plaintiff
will effectively represent
● [2] close relationship between plaintiff and third party (e.g.,
plaintiff is involved in third party’s activity)
● [3] First Amendment overbreadth doctrine
● [4] associations
○ (2) No generalized grievances shared by a class of citizens
■ Citizens and taxpayers are not commissioned to enforce the law generally
● Exceptions...
○ taxpayer standing to challenge expenditures that allegedly
violate First Amendment ban on establishing religion
[Flast v. Cohen (1968)]

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 ○ (3) Plaintiff must be within the zone of interests protected by the statute or
regulation at issue
■ plaintiff’s interests cannot be so marginally related to the statute or
regulation that it cannot reasonably be assumed that Congress authorized
the plaintiff to sue

Political Questions
Friction; exhaustion of judicial capital
Absence of judicially manageable standards
Textually demonstrable commitment

Baker v. Carr (1962)

★ Laid out six elements that would make a case nonjusticiable

○ (1) A textually demonstrable constitutional commitment of the issue to a
coordinate political department; or
○ (2) A lack of judicially discoverable and manageable standards for resolving it; or
○ (3) The impossibility of deciding it without an initial policy determination of a
kind clearly for nonjudicial discretion; or
○ (4) The impossibility of a court’s undertaking independent resolution without
expressing lack of respect due coordinate branches of government; or
○ (5) An unusual need for unquestioning adherence to a political decision already
made; or
○ (6) The potentiality of embarrassment from multifarious pronouncements by
various departments on one question
★ “The doctrine of which we treat is one of political questions,” not one of “political
cases…”

Notes
★ Goldwater v. Carter
○ Court found that a suit brought by Senators because the President did not get
their consent to terminate a treaty constituted a political question.
★ Zivotofsky v. Clinton
○ Court found that a suit brought Zivotofsky wanting his place of birth to be
recognized on his passport did not constitute a political question, even though it
is within the power of the executive to recognize countries. The Court reasoned
that Zivotofsky was not asking them to override a foreign policy decision by the
executive. Rather, he was requesting that the Court enforces a specific statutory
right.
★ INS. v. Chadha

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 ○ The Court rejected a political question challenge to a ruling on the legislative
veto. The court observed that the controversy “may, in a sense, be termed
‘political.’ But the presence of constitutional issues with significant political
overtones does not automatically invoke the political question doctrine.
Resolution of litigation challenging the constitutional authority of one of the
three branches cannot be evaded by courts because the issues have political
implications in the sense urged by Congress.”
★ See (*) on page 136 for list of cases where the Court heard cases that were argued to be
political questions. They’re really useful; I just didn’t want to take up room on the
outline.

Vieth v. Jubelirer (2004)

★ The Court decided that political gerrymandering cases constituted political questions
and therefore cannot be heard by the court.
★ “No judicially discernible and manageable standards for adjudicating political
gerrymandering claims have emerged. Lacking them, we must conclude that political
gerrymandering claims are nonjusticiable.”

Bush v. Gore

★ The Court found that vote counters counting the “intent” of the voters by indents or
hanging chads on the ballot violated equal protection.
★ “The question before the Court is not whether local entities, in the exercise of their
expertise, may develop different systems for implementing elections. Instead, we are
presented with a situation where a state court with the power to assure uniformity has
ordered a statewide recount with minimal procedural safeguards. When a court orders a
statewide remedy, there must be at least some assurance that the rudimentary
requirements of equal treatment and fundamental fairness are satisfied…”
○ This is not a political question via (1) a textually demonstrable constitutional
commitment of the issue to a coordinate political department. (Article II that says
state legislatures shall direct the manner of appointing electors)
○ It is instead an equal protection issue. Therefore, the Court should hear it.

IV. CONGRESSIONAL POWER: ENUMERATION, FEDERALISM, & THE COMMERCE

CLAUSE (Wednesday)
Enumerated Powers & Federalism, 159-165
The Commerce Clause:
The Basic Issues, 165-179
The Evolution of the Doctrine:

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 The Early Cases, 179-185
The New Deal Crisis, 185-198
The New Deal Legacy, 198-203
The Revival of Judicial Enforced Limitations, 203-240

Introduction

Why Enumerated Powers?

★ To protect liberty
★ To minimize the risk of tyranny
★ To ensure local control and autonomy (federalism)
The Values of Federalism
★ Encouraging experimentation
★ Efficiency
★ Meeting local needs
★ Promoting individual choice
★ Promoting participatory democracy
★ Providing a check on the national government and the potential for tyranny
★ Providing a locus where groups can form for national effect

What role should courts play?

★ Should enumeration and federalism values be brought to bear by internal limitations by
judicial interpretations that narrow the potential scope of Congress’ powers?
★ Should enumeration and federalism values be brought to bear by external limitations on
Congress’ powers – found by courts, for instance, in the Tenth Amendment, or the
structure, design, and purpose of the Constitution? Both?
★ And if there is a judicial role – how vigorous should the courts be?

The Commerce Clause

Article I Section 8 of the Constitution gives Congress power to regulate commerce among the
several states and with the Indian Tribes.

The Basic Issues

Gibbons v. Ogden (1824)

★ Commercial activity (navigation) that is interstate (across state lines): held, constitutional
to regulate.
★ Chief Justice Marshall considered three internal limits of the commerce clause
○ (1) “Commerce”
○ (2) “Among the several states”

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 ○ (3) Regulate
★ What is Commerce?
○ “Commerce undoubtedly is traffic, but it is something more: it is intercourse. It
describes the commercial intercourse between nations, and parts of nations, in all
its branches, and is regulated by prescribing rules for carrying on that
intercourse.”
○ In other words, according to Chief Justice Marshall, commerce includes all
phases of business, including navigation, which was at issue in the case.
★ What is Among the States?
○ “The word ‘among’ means intermingled with. A thing which is among others, is
intermingled with them. Commerce among the states, cannot stop at the external
boundary of each state line, but may be introduced into the interior.”
○ “[As] comprehensive as the word “among” is, it may very properly be restricted
to that commerce which concerns more states than one...the completely internal
commerce of a state, then, may be considered as reserved for the state itself.”
○ “But in regulating commerce with foreign nations, the power of Congress does
not stop at the jurisdictional lines of the several states...The power of Congress,
then, whatever it may be, must be exercised within the territorial jurisdiction of
the several states.”
■ Here, the Court makes clear that Congress could regulate intrastate
commerce if it had an impact on interstate activities.
★ Does State Sovereignty Limit Congressional Power?
○ The Court rejected that state sovereignty restrains congressional power.
Congress can regulate commerce in the same way as if no state government
existed.
○ “This power, like all others vested in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations other than are
prescribed in the Constitution. If, as has always been understood, the sovereignty
of Congress, though limited to specified objects, is [complete] as to those objects,
the power over commerce...among the several states is vested in Congress as
absolutely as would be in a single government.”

The New Deal Turn

NLRB v. Jones & Laughlin Steel Corp. (1937)

★ Labor/management relations
★ Intrastate activities that “have such a close and substantial relation to interstate
commerce that their control is essential or appropriate to protect that commerce . . .”
★ The line preserving dual federalism is a question “necessarily . . . of degree”

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 United States v. Darby (1941)

★ The unanimous Court affirmed the right of Congress to exercise "to its utmost extent"
the powers reserved for it in the Commerce Clause.
★ Relying heavily on the Court's decision in Gibbons v. Ogden (1824), Justice Stone argued
that the "motive and purpose of a regulation of interstate commerce are matters for the
legislative judgment . . . over which the courts are given no control." Congress acted
with proper authority in outlawing substandard labor conditions since they have a
significant impact on interstate commerce.

Wickard v. Filburn (1942)

Still good law!

★ According to Filburn, the act regulated production and consumption, which are local in
character.
★ The rule laid down by Justice Jackson is that even if an activity is local and not regarded
as commerce, "it may still, whatever its nature, be reached by Congress if it exerts a
substantial economic effect on interstate commerce, and this irrespective of whether
such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"
★ production for home consumption
★ “an economic measure of the reach of the power”
★ “a substantial economic effect on interstate commerce”
★ aggregating “others similarly situated”

The New Deal Legacy

Heart of Atlanta Motel, Inc. v. U.S. (1964)

The Court ruled in Heart of Atlanta Motel, Inc. v. U.S. (1964) that Congress had plenty of
authority under the Commerce Clause to ban racial discrimination at the hotel because the hotel
catered to interstate travel-ers and it therefore affected interstate commerce.

Katzenback v. McClung (1964)

The Court ruled the same day in Katzenbach v. McClung (1964) that Congress had plenty of
author­ity under the Commerce Clause to ban racial discrimination at Ollie’s Barbecue because
a good portion of the food used by the restaurant was imported from out of state, and the
restaurant there-fore affected interstate commerce.

The Revival of Judicially Enforced Limitations

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 United States v. Lopez (1995)

★ “[We] have identified three broad categories of activity that Congress may regulate
under its commerce power.
○ “First, Congress may regulate the use of the channels of interstate commerce.
○ “Second, Congress is empowered to regulate and protect instrumentalities of
interstate commerce, or persons or things in interstate commerce, even though
the threat may come only from intrastate activities.
○ “Finally, Congress’ commerce authority includes the power to regulate those
activities having a substantial relation to interstate commerce, i.e., those activities
that substantially affect interstate commerce.”
★ “[W]e would have to pile inference upon inference in a manner that would bid fair to
convert congressional authority under the Commerce Clause to a general police power
of the sort retained by the States. . . . This we are unwilling to do.”

United States v. Morrison (2000)

★ “[Gender]-motivated crimes of violence are not [economic] activity. While we need not
adopt a categorical rule against aggregating the effects of any noneconomic activity in
order to decide these cases, thus far in our Nation’s history our cases have upheld
Commerce Clause regulation of intrastate activity only where that activity is economic
in nature.”
★ “[Congress’s findings] rely so heavily on a method of reasoning that we have already
rejected as unworkable if we are to maintain the Constitution’s enumeration of powers.”

V. CONGRESSIONAL POWER: TAXING, SPENDING, WAR (11/24)

Taxing, 293-301
Spending, 301-322
War, 322-325

The Taxing Power

Article I Section 8 gives Congress “power to lay and collect taxes.”

★ Congress sometimes used their taxing power to address moral issues
○ Harrison Act (1914) required individuals connected with the drug market
(opium or coca leaf-based) to pay a special tax, keep various records, register

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 with the IRS, and only distribute to those who are registered w/ the IRS. If they
did not comply, they were guilty of a federal crime.
○ However, in Bailey v. Drexel (1922), the Court struck down the Child Labor Act,
which taxed business who used child labor at 10% of their net profits.
■ This is where the issue of a “tax” versus a “penalty” first came up.
Congress can’t use its taxing power as a thin guise to penalize things they
don’t agree with.
■ Set out three (3) guidelines to determine tax v. penalty
● (1) does it impose a heavy burden?
● (2) exaction on only those who employed child laborers--scienter
requirement. Congress wishes to punish only those who
intentionally break the law. Scienter is a legal term that refers to
intent or knowledge of wrongdoing. This means that an offending
party has knowledge of the "wrongness" of an act or event prior to
committing it.
● (3) Is the tax enforced by the right agency? In Bailey, the tax was
enforced by the Department of Labor, an agency responsible for
punishing violations of labor laws, not collecting revenue.

National Federation of Business v. Sebelius (2012)

The Power to Tax

★ Here, the Court decided that Congress’s use of the taxing power with the individual
mandate was Constitutional. It wasn’t used as a penalization.
★ Why the taxing power?
○ “tax” versus “penalty”
○ [1] “looks like a tax” – revenue, process
○ [2] penalty attributes missing – e.g., severe exaction, scienter requirement,
enforcement by regulators (Bailey v. Drexel)
○ [3] many affected, and they have a choice
○ [4] “labels should not control here”
★ “None of this is to say that the payment is not intended to affect individual conduct.
Although the payment will raise considerable revenue, it is plainly designed to expand
new health insurance coverage. But taxes that seek to influence conduct are nothing
new.”
○ High taxes on cigarettes to encourage people to quit smoking
○ High taxes on marijuana
○ High taxes on sawed-off shotguns
○ “Every tax is in some measure regulatory. To some extent it interposes an
economic impediment to the activity taxed as compared with others not taxed.”

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 ★ “That [the individual mandate] seeks to shape decisions about whether to buy health
insurance not does mean that it cannot be a valid exercise of taxing power.”

The Spending Power

Article I Section 8 gives Congress the power to “to pay the Debts and provide for the common
Defence and general Welfare of the United States...” AKA to spend.

United States v. Butler (1936)

The Power to Spend
★ The Hamiltonian position: spending for the general welfare is not limited to the scope of
other enumerated powers

Steward Machine Co. v. Davis (1937)

The Power to Spend
★ If an employer made contributions to a state unemployment fund that had been certified
by the Secretary of Treasury as meeting certain minimum criteria designed to assure
financial stability and accountability, the employer received a credit up to 90 percent
against the federal tax. This was to help states with their high rates of unemployment.
★ Do not “confuse[] motive with coercion”
★ The law “assumes the freedom of the will as a working hypothesis”
★ “Nothing in the case suggests the exertion of a power akin to undue influence”
★ “Before the statute succumbs to an assault, there must be a showing that the tax and
credit in combination are weapons of coercion, destroying or impairing the autonomy of
the states.”

South Dakota v. Dole (1987)

Spending Conditions
Five percent of highway funding lost unless state raises drinking age
Only “relatively mild encouragement” – held, constitutional
Synthesis of precedents
★ [1] pursuit of general welfare [defer substantially]
★ [2] conditions must be unambiguously stated
★ [3] conditions may be illegitimate if unrelated to the federal interest
★ in particular national projects or programs [germaneness]
★ [4] external limits
★ [5] at some point “pressure turns into coercion”

National Federation of Business v. Sebelius (2012)

Spending Conditions; When pressure turns into coercion
All Medicaid funding lost unless state agrees to expansion of coverage

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 ★ “a gun to the head” – held, unconstitutional
★ coercion is akin to conscription or commandeering of a state
★ “The legitimacy of Congress’s exercise of the spending power ‘thus rests on whether the
state voluntarily and knowingly accepts the terms of the ‘contract.’”

The War Power

Article I Section 8 gives Congress power to “wage war,” to “provide for a common defense,” to
“raise and support armies” and to “provide and maintain a Navy,” to “make rules for the
government and regulation of the land and naval forces,” and the like.
★ “The phrase ‘war power’ cannot be invoked as a talismanic incantation to support any
exercise of congressional power which can be brought within it amit” United States v.
Robel
★ “Even the war power does not remove constitutional limitations safeguarding essential
liberties.” Home Building & Loan Ass’n v. Blaisdell
★ In Woods v. Cloyd W. Miller Co. (1948), the Court upheld the constitutionality of the
Housing and Rent Act of 1947, which froze rents at their wartime levels. It concluded
that “the war power sustains this legislation” even though the President declared
hostilities terminated before the statute was enacted, “the war power does not
necessarily end with the cessation of hostilities.”
★ See pages 324-325 for the war power and voting rights and the first amendment.

VI. CONGRESSIONAL POWER: ENFORCING THE RECONSTRUCTION AMENDMENTS

The Power to Enforce the Reconstruction Amendments, 325-335
Shelby County v. Holder PDF
CB 335-346

“Congress shall have the power to enforce” the 13th, 14th, & 15th amendments “by appropriate
legislation.”

Katzenbach v. Morgan (1966)

★ The Court struck down a requirement to pass an english literacy test to be able to vote as
a violation of the Equal Protection Clause.

City of Boerne v. Flores (1997)

Congruence & Proportionality of Congress’s power to enforce the Reconstruction Amendments
★ The Court struck down Congress’s Religious Freedom Restoration Act (RFRA) as
unconstitutional under the fourteenth amendment.

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★ “[Legislation] which deters or remedies constitutional violations can fall within the
sweep of Congress’ enforcement power even if in the process it prohibits conduct which
is not itself unconstitutional and intrudes into ‘legislative spheres of autonomy
previously reserved to the States.’”
★ But Congress does not have the power to make substantive change in the governing
constitutional law. That wouldn’t be “enforcing.”
★ And so “[t]here must be a congruence and proportionality between the injury to be
prevented or remedied and the means adopted to that end. Lacking such a connection,
legislation may become substantive in operation and effect.”

Board of Trustees v. Garrett (2001)

★ The Court rejected a plaintiff’s claim that she was entitled to damages when her
employer demoted her when she was undergoing treatment for cancer. She stated that
the American Disabilities Act protected her from this situation. The Court disagreed.
★ Treating people differently on the basis of disability is subject to rational basis review
(City of Cleburne v. Cleburne Living Center) that is applicable to general social and
economic legislation.
★ The legislative record of the ADA fails to show that Congress did in fact identify a
pattern of irrational state discrimination in employment against the disabled.

Shelby County v. Holder (2013)

★ The Court struck down the Voting Rights Act of 1965, which required certain states to
get their voting changes approved by the Attorney General before passing them. It was
needed in 1965, it is no longer needed now. It’s not congruent/proportional.
★ Not only do States retain sovereignty under the Constitution, there is also a
“fundamental principle of equal sovereignty” among the States. Over a hundred years
ago, this Court explained that our Nation “was and is a union of States, equal in power,
dignity and authority.” Coyle v. Smith (1911). Indeed, “the constitutional equality of the
States is essential to the harmonious operation of the scheme upon which the Republic
was organized.” . . .
★ The majority emphasized the need for maintaining federalism. The dissents emphasized
the needs for civil rights.

Congruence & Proportionality

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 Preventative/Prophylact
ic Remedy
“The appropriateness of
remedial measures
must be considered in
light of the evil
presented. Strong
measures appropriate
to address one harm
Actual 14 may be an unwarranted
A response to another,
violations lesser one.”

““Preventive measures .
. .may be appropriate
when there is reason to
believe that many of the
laws [or actions]
affected . . . have a
significant likelihood of
being unconstitutional.”
Deterring or Remedying
Lack of Congruence and Proportionality
(Bullseye!)
“so out of proportion to a supposed
Ex: a suit to recover damages
remedial or preventive object that it
for a suspicionless stop in
cannot be understood as responsive to,
violation of the Fourth
or designed to prevent, unconstitutional
Amendment and Due Process
behavior”
Clause or for a discriminatory

Considerations when deciding congruence & proportionality…

★ [1] Congress’s “homework” – the legislative record, findings, data
★ [2] the likelihood of actual violations; their frequency and volume
○ [a] the stringency (or lack of stringency) of the test to determine an actual
constitutional violation
○ [b] hybrids (more than one right at stake) (Lane v. Tennessee, where plaintiff
claimed his rights under the ADA were being violated and his constitutional
rights were violated because he was being criminally penalized for not crawling
up the stairs to make it to his court appearance)
★ [3] the severity of the actual violations
★ [4] the fit; the extent to which the statute’s breadth exceeds what is required to remedy
(or prevent, or deter); alternatives
★ [5] reasons why the statute’s breadth is allegedly needed
★ [6] particular harms worked by the statute’s breadth

17
 ○ [a] equal dignity of the states (Shelby County)
○ [b] effectively overruling the Supreme Court (City of Boerne)

VII. CONGRESSIONAL POWER: THE TENTH AMENDMENT AND FEDERALISM-BASED

LIMITATIONS ON CONGRESSIONAL POWER
346-365
Missouri v. Holland (1920)
★ Migratory bird treaty between U.S. and Canada
★ Missouri brought suit, saying that the treaty oversteps their state sovereignty
★ The Court decided it does not
★ If a treaty is within the bounds of the Constitution, it cannot be argued that it is
overstepping state sovereignty

Medellin v. Texas (2008)

★ A Mexican national was charged with capital murder. Tried to argue that he wasn’t
informed of certain rights under the Vienna Convention protocol that the U.S. is a signee
of
★ The Court decided that since the U.S. did not sign a self-executing treaty, and that the
judgment by the ICJ did “not automatically constitute federal law enforceable in U.S.
courts”
★ “This court has long recognized the distinction between treaties that automatically have
effect as domestic law, and those that --while they constitute international law
commitments--do not by themselves function as binding federal law.”
★ “[While] treaties may comprise international commitments...they are not domestic law
unless Congress has either enacted implementing statutes or the treaty itself conveys an
intention that it be ‘self executing and ratified on these terms.’”

Garcia v. San Antonio Metropolitan Transit Authority (1985)

★ Overruled Usery; Congress can implement a requirement for employers to pay
employees overtime
★ “The states retained sovereign authority, but ‘only to the extent that the Constitution has
not divested them of their original powers and transferred those powers to the federal
government. The principal means chosen by the framers to ensure the role of the states
in the federal system lies in the structure of the federal government itself. State
sovereign interests, then, are more properly protected by procedural safeguards
inherent in the structure of the federal system that by judicially created limitations on
federal power.”
★ Dissenters were concerned about maintaining the values of federalism

18
 ○ “The framers recognized that the most effective democracy occurs at local levels
of government, where people with first hand knowledge of local problems have
more ready access to public officials responsible for dealing with them.”
○ “Garcia holds the limits on Congress’s power are structural, not substantive--i.e.,
that states must find their protection from congressional regulation through the
national political process, not through judicially defined spheres of unregulable
state activity.” --South Carolina v. Baker, interpreting Garcia

New York v. United States (1992)

★ The Court ruled that Congress can’t force states to either provide for radioactive waste
disposal or take title to waste made within the state’s borders.
★ “Congress may not simply ‘commandeer the legislative processes of the states by
directly compelling them to enact and enforce a federal regulatory program.’” --Hodel v.
Virginia Surface Mining
★ Bilionis—accountability is important because the democratic political process is a good
check and balance system for when a certain branch is fucking up
★ “Where the Federal Government compels states to regulate, the accountability of both
state and federal officials is diminished.”
★ “But where the federal government directs the states to regulate, it may be state officials
who will bear the brunt of public disapproval, while the federal officials who devised
the regulatory program may remain insulated from the electoral ramifications of their
decision.”
★ “State governments are neither regional offices nor administrative agencies of the
Federal Government. . . . Whatever the outer limits of that sovereignty may be, one
thing is clear: The Federal Government may not compel the States to enact of administer
a federal regulatory program.”

Printz v. U.S. (1997)

★ The Court struck down the Brady Act, which made police officers in charge of
regulating gun sales, as unconstitutional.
★ “The power of the federal government would be augmented immeasurably if it were
able to impress into its service--at no cost to itself--the police officers of the 50 states.”
★ The Act is also in tension with Article II’s requirement that the president “take care that
the laws be faithfully executed.” The Act “transfers this responsibility to thousands of
CLEOs in the 50 states, who are left to implement the program without meaningful
presidential control.”
★ “By forcing state governments to absorb the financial burden of implementing a federal
regulatory program, members of Congress can take credit for ‘solving’ problems
without having to ask their constituents to pay for the solutions with higher federal
taxes. And even when the states are not forced to absorb the costs of implementing a

19
 federal program, they are still put in the position of taking the blame for its
burdensomeness and its defects.”
★ Dissent
○ “When Congress exercises powers delegated to it by the Constitution, it may
impose affirmative obligations on executive and judicial officers of state and local
governments as well as ordinary citizens. This conclusion is firmly supported by
the text of the Constitution, the early history of the nation, decisions of this
Court, and a correct understanding of the basic structure of the federal
government.”
○ “Hamilton made clear that the new Constitution, ‘by extending the authority of
the federal head to the individual citizens of the several states, will enable the
government to employ the ordinary magistracy of each, in the execution of its
laws.’” (Federalist No. 27 at 180).
■ “Hamilton’s meaning was unambiguous; the federal government was to
have the power to demand that local officials implement national policy
programs.”
○ “By limiting the ability of the federal government to enlist state officials in the
implementation of its programs, the Court creates incentives for the national
government to aggrandize itself.”

The Anti-Commandeering Principle in Sum:

★ Diminishes political accountability; may force states to absorb financial burdens
★ Closely related to impermissible coercion in the conditional spending area (see National
Federation of Independent Business v. Sebelius (2012))

VIII. SEPARATION OF POWERS: GENERAL FRAMEWORK (11/24)

Introduction, 367-370
A Case Study: Presidential Seizures, 370-381

Introduction

Throughout American history, the separation of powers has been said to achieve two goals: (1)
efficiency, and (2) preventing tyranny.

Federalist No. 48
★ The lines of power between the branches cannot be precisely drawn or followed...and
that’s okay!

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Article I, Section. 1:
All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a
Representatives.
Article II, Section. 1:
The executive Power shall be vested in a President of the United States of America.
Article III, Section. 1:
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the
time to time ordain and establish.

A Case Study: Presidential Seizures

Executive Powers

Article II, Section 1, Clause 1

The executive Power shall be vested in a President of the United States of America. [Executive
Vesting Clause]

Article II, Section 2, Clause 1

The President shall be Commander in Chief of the Army and Navy of the United States, and of
the Militia of the several States, when called into the actual service of the United States; . . .
[Commander in Chief Clause]

Article II, Section 2, Clause 1 (continued)

. . . he may require the Opinion, in writing, of the principal Officer in each of the executive
Departments, upon any subject relating to the Duties of their respective Offices, . . .
[Opinion Clause]

. . . and he shall have Power to grant Reprieves and Pardons for Offenses against the United
States, except in Cases of Impeachment. [Reprieves and Pardons Clause]

Article II, Section 2, Clause 2 [Advice and Consent Clause]

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,
provided two thirds of the Senators present concur; . . . [Treaty Clause]

. . . and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein otherwise provided for, and

21
which shall be established by Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, to the Courts of Law, or in the
Heads of Departments. [Appointments Clause]

Article II, Section 2, Clause 3

The President shall have Power to fill up all Vacancies that may happen during the Recess of
the Senate, by granting Commissions which shall expire at the End of their next Session.
[Recess Appointments Clause]

Executive Responsibilities (and Powers)

Article II, Section 3

He shall from time to time give to the Congress Information of the State of the Union, . . . [State
of the Union Clause]

. . . and recommend to their Consideration such Measures as he shall judge necessary and
expedient; . . . [Recommendation Clause]

. . . he may, on extraordinary occasions, convene both Houses, or either of them, and in Case of
Disagreement between them, with Respect to the time of Adjournment, he may adjourn them to
such Time as he shall think proper; . . . [Convening Power]

Article II, Section 3 (continued)

. . . he shall receive Ambassadors and other public Ministers; . . . [Reception Clause]

. . . he shall take Care that the Laws be faithfully executed,

. . . [Take Care Clause]

. . . and shall Commission all the Officers of the United States. [Commissions Clause]

Youngstown Sheet & Tube Co. v. Sawyer

SCOTUS (1952)
★ The Court ruled that the President may not order the Secretary of Commerce to seize
and operate most of the nation’s steel mills. The President attempted to do this in order
to curb the effects of expected strikes from the steel workers during the Korean War.
★ Four different approaches by the justices:
★ Justice Black opinion for the Court

22
 ○ President has no statutory authority
■ indeed, Congress refused to legislate
○ President has no Constitutional authority
■ Vesting, Take Care, and Commander in Chief Powers do not support
○ President’s order "does not direct that a congressional policy be executed in a
manner prescribed by Congress – it directs that a presidential policy be executed
in a manner prescribed by the President."
○ There is no inherent presidential power; the president may only act if there is
express constitutional or statutory authority
○ “The president’s power, if any, to issue the order must stem either from an act of
Congress or from the Constitution itself”
○ “There is no statute that expressly authorizes the President to take possession of
property as he did here” and “it is not claimed that express constitutional
language grants this power to the President.”
★ Justice Douglas Concurrence
○ The president has inherent authority unless the president interferes with the
functioning of another branch of government or usurps the powers of another
branch
○ Douglas argued that the seizure was unconstitutional because the president was
forcing the expenditure of federal funds to compensate the steel mill owners for
the taking of their property. Douglas contended that the president was therefore
impermissibly usurping Congress’s spending power.
○ This approach is premised on the belief that there is a need for the president to
exercise powers not specifically enumerated in the Constitution or not expressly
granted by Congress.
■ For example, the Constitution makes no mention of a presidential power
to recognize foreign governments or to remove presidential appointees
from office, nor has Congress ever granted such powers in a statute. Yet,
it is conceded that the president has these powers.
■ The president may exercise powers not mentioned in the Constitution so
long as the president does not violate a statute or the Constitution
★ Frankfurter contended that Congress had explicitly rejected giving the president the
authority to seize industries and that this was a clear decision to preclude such an
action.
★ Likewise, Jackson found the president’s actions unconstitutional because Congress had
denied the president the authority to seize industries. Jackson delineated three zones of
presidential authority that are often used in analyses of presidential power
★ Justice Jackson’s Youngstown Framework
○ When the President acts pursuant to an express or implied authorization of
Congress, his authority is at its maximum, for it includes all that he possesses in
his own right plus all that Congress can delegate. In these circumstances, and in

23
 these only, may he be said (for what it may be worth) to personify the federal
sovereignty. If his act is held unconstitutional under these circumstances, it
usually means that the Federal Government as an undivided whole lacks power.
A seizure executed by the President pursuant to an Act of Congress would be
supported by the strongest of presumptions and the widest latitude of judicial
interpretation, and the burden of persuasion would rest heavily upon any who
might attack it.
○ When the President acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a zone
of twilight in which he and Congress may have concurrent authority, or in which
its distribution is uncertain. Therefore, congressional inertia, indifference or
quiescence may sometimes, at least as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any actual test
of power is likely to depend on the imperatives of events and contemporary
imponderables rather than on abstract theories of law.
○ When the President takes measures incompatible with the expressed or implied
will of Congress, his power is at its lowest ebb, for then he can rely only upon his
own constitutional powers minus any constitutional powers of Congress over the
matter. Courts can sustain exclusive presidential control in such a case only by
disabling Congress from acting upon the subject. Presidential claim to a power
at once so conclusive and preclusive must be scrutinized with caution, for what
is at stake is the equilibrium established by our constitutional system.

POTUS + POTUS POTUS - Senate

Senate & House & House

POTUS acting w/ POTUS acting with neither a

express or implied POTUS acting
grant nor denial of incompatibly with an
Congressional Congressional authorization
authorization express or implied will of
Congress
Dames & Moore (P
Curtiss- Wright
(P upheld) upheld) Medellin (P not
Hamdi upheld)
(P upheld)
Zivotofsky (P upheld!)

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 IX. SEPARATION OF POWERS: FOREIGN AFFAIRS & THE ALLOCATION OF
WARMAKING AUTHORITY (11/25)
Foreign Affairs, 382-389 & Zivotofsky v. Kerry PDF
The Allocation of Warmaking Authority, 389-411

Foreign Affairs

Executive Authority in Foreign Affairs

United States v. Curtiss-Wright Corp

SCOTUS (1936)
★ Curtiss-Wright was charged with conspiring to sell fifteen machine guns to Bolivia,
which was engaged in an armed conflict in the Chaco. This violated a Joint Resolution of
Congress and a proclamation issued by President Roosevelt.
★ In an opinion written by Justice Sutherland, the Court upheld the President’s power to
enforce the Joint Resolution of Congress.
★ “It is important to bear in mind that we are here dealing not alone with an authority
vested in the President by an exertion of legislative power, but with such an authority
plus the very delicate, plenary and exclusive power of the President as the sole organ of
the federal government in the field of international relations--a power which does not
require as a basis for its exercise an act of Congress.”

Dames & Moore v. Regan

SCOTUS (1981)
★ In reaction to the seizure of the U.S. embassy and American nationals in Iran, President
Jimmy Carter invoked the International Emergency Economic Powers Act (IEEPA) and
froze Iranian assets in the United States. When the hostages were released in 1981,
Treasury Secretary Donald Regan affirmed the agreements made the Carter
administration that terminated all legal proceedings against the Iranian government and
created an independent Claims Tribunal. Dames & Moore attempted to recover over $3
million owed to it by the Iranian government and claimed the executive orders were
beyond the scope of presidential power.
★ “Although we have in the past found and do today find Justice Jackson’s classification of
executive actions into three general categories analytically useful, Justice Jackson himself
recognized that his three categories represented ‘a somewhat over-simplified grouping,’
and it is doubtless that the case that executive action in any particular instance falls, not
neatly in one of the three pigeonholes, but rather at some point along a spectrum
running from explicit congressional authorization to explicit congressional prohibition.”
★ “We cannot ignore the general tenor of Congress’ legislation in this area in trying to
determine whether the President is acting alone of at least with the acceptance of

25
 Congress. Congress cannot anticipate and legislate with regard to every possible action
the President may find it necessary to take or every possible situation in which he might
act. Such a failure of Congress specifically to delegate authority does not, ‘especially...in
the areas of foreign policy and national security,’ imply ‘congressional disapproval’ of
action taken by the Executive.”

Medellin v. Texas
SCOTUS (2008)
★ “The United States maintains that the President’s constitutional role ‘uniquely qualifies’
him to resolve the sensitive foreign policy decisions that bear on the compliance with an
ICJ decision and to ‘do so expeditiously’...These interests [of protecting foreign relations]
are certainly compelling...but unilaterally converting a non-self-executing into a self
executing one is not among [the President’s powers].”
★ “Medellin argues that the President’s Memorandum is a valid exercise of his ‘Take Care’
power. [This] authority allows the President to execute the laws, not make them.”

Zivotofsky v. Kerry*
SCOTUS (2015)
★ The President and Congress were in disagreement on whether to recognize Jerusalem
and the capital of Israel. The Court ruled in favor of the President’s position.
★ “The inference that the President exercises the recognition power is further supported
by his additional Article II powers. It is for the President ‘by and with the Advice and
Consent of the Senate,’ to ‘make Treaties, provided two thirds of the Senators present
concur.” In addition, ‘he shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors’ as well as ‘other public Ministers and Consuls.’”
★ As a matter of constitutional structure, these additional powers give the President
control over recognition decisions. At international law, recognition may be effected by
different means, but each means is dependent upon Presidential power. . . .
★ . . . . The question then becomes whether that power is exclusive. The various ways in
which the President may unilaterally effect recognition—and the lack of any similar
power vested in Congress— suggest that it is. So, too, do functional considerations. Put
simply, the Nation must have a single policy regarding which governments are
legitimate in the eyes of the United States and which are not. Foreign countries need
to know, before entering into diplomatic relations or commerce with the United
States. . . . These assurances cannot be equivocal.
★ “Recognition is a topic on which the Nation must ‘speak . . . with one voice.’ That voice
must be the President’s. Between the two political branches, only the Executive has the
characteristic of unity at all times.”

The Allocation of Warmaking Authority

26
 Hamdi v. Rumsfeld
SCOTUS (2004)
★ “The Government maintains that no explicit congressional authorization is required,
because the Executive possesses plenary authority to detain pursuant to Article II of the
Constitution. We do not reach the question whether Article II provides such authority,
however, because we agree with the Government’s alternative position, that Congress
has in fact authorized Hamdi’s detention.”
★ However, the Court also held that a U.S. citizen thought to be an enemy combatant is
entitled to due process of the law in accordance with the Constitution.
★ Ask Bilionis about this holding. Did they end up ruling against what the President was
advocating for?

Legislative Authority in Foreign Affairs

Pages 406-411

The War Powers Resolution (also known as the War Powers Resolution of 1973 or the War
Powers Act) (50 U.S.C. 1541–1548) is a federal law intended to check the president's power to
commit the United States to an armed conflict without the consent of the U.S. Congress. It
makes the President check with Congress before sending troops to hostile places when there has
been no declaration of war.

Unconstitutional argument: it infringes on the power of the President

Constitutional argument: it merely restores the constitutional balance that had been upset by a
long period of congressional inactivity. It allows Congress to ensure that there will be no
undeclared war.

X. SEPARATION OF POWERS: DOMESTIC AFFAIRS

Executive Authority, 411-424
Legislative Authority, 424-435
Administrative Agencies, 435-451 & NLRB v. Noel Canning PDF

Executive Authority

Article II, Section 1 of the Constitution vests “the executive power” in the President, and article
II, section 3 provides that the President “shall take care that the laws be faithfully executed.” To
what extent do these powers free the President from legislative and judicial control when he
purports to be executing the laws?

27
 United States v. Nixon
SCOTUS (1974)
★ Nixon was facing impeachment after the Watergate scandal.
★ By the Special Prosecutor, a subpoena was issued to Nixon requiring the the production
of certain tapes, memoranda, papers, transcripts, or other writings relating to certain
precisely identified meetings between the President and others.
★ Though he publically released some of these items, the President moved to quash the
subpoena on the grounds of privilege.
★ The Court held that neither the doctrine of separation of powers, nor the generalized
need for confidentiality of high-level communications, without more, can sustain an
absolute, unqualified, presidential privilege. The Court granted that there was a limited
executive privilege in areas of military or diplomatic affairs, but gave preference to "the
fundamental demands of due process of law in the fair administration of justice."
Therefore, the president must obey the subpoena and produce the tapes and documents.
Nixon resigned shortly after the release of the tapes.

Clinton v. Jones (1997)

★ Presidential immunity from civil suits does not extend to the President’s unofficial
conduct
Questions of the Day

Suppose the President is on the verge of being impeached by the House of Representatives. The
House Judiciary Committee has adopted two articles of impeachment. The first article of
impeachment charges the President with bringing the Presidency into disrepute by engaging in
extramarital affairs while in office.

Is "bringing the Presidency into disrepute by engaging in extramarital affairs while in office" a
legitimate constitutional ground for impeachment of the President? Develop and analyze the
arguments for and against.

● Yes: If the Court can be persuaded that “bring the presidency into disrepute by engaging
in extramarital affairs in office” is a “high Crime [or] Misdemeanor.” Or, maybe, if it can
be shown to be significantly tied to bribery or treason. Testimony from Professor
Richard Parker in the Clinton case argued, “Acts of bribery--as is well known--tend to
arise from the ‘private lives’ of actors. The fact that bribery may arise from private greed
(or need) does not presumptively immunize it from impeachment. Why, then, should
public acts be presumptively immunized solely on the ground that they arose from
private lust?”
● No: If the Court takes a more restrictive approach in analyzing Article II section 4 of the
Constitution, “bringing the presidency into disrepute by engaging in extramarital affairs
while in office” might not be an impeachable offense. Extramarital affairs are not high
Crimes, nor are they misdemeanors. There is no criminal background tied to

28
 extramarital affairs, so the fact that they might nonetheless bring the presidency in to
“disrepute” is unimportant.
[Continuing the fact pattern above] The second article of impeachment adopted by the House
Judiciary Committee charges the President with perjury. The facts supporting this second
article of impeachment are that the President was asked about the extramarital affairs during a
deposition taken under oath while President, and that the President answered falsely. Because
the deposition was taken during the discovery process of a case in federal court, it also appears
that the facts constitute a violation by the President of the federal statute criminalizing perjury
in federal judicial proceedings.

Can the President be criminally prosecuted while still in office?

● It depends on how the Court decides to interpret the Constitution, which provides,
“Judgment in Cases of Impeachment shall not extend further than to removal from
Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under
the United States; but the Party convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, according to Law.”
● If the Court interprets Article I section 3 to mean that the President must first be
impeached before he is indicted, then the answer is no. However, if the Court interprets
Article I section 3 to mean that just because criminal penalties do not automatically
attach to impeachments, doesn’t mean it can’t be so. In other words, the Constitution
does not bar the prosecution of a sitting President, so it can be done.
[Continuing the fact pattern above] The President is considering resigning from office (and
thereby avoiding a House vote on the articles of impeachment and, if at least one of the articles
is approved, a trial before the Senate). The President is concerned, however, about the
possibility of being criminally prosecuted – after resigning – for the violation of the federal
perjury statute.

Can the President, relying on the power set forth in the Reprieves and Pardons Clause (Article
II, Section 2 Clause 1), pardon himself before resigning? Develop and analyze the arguments
for and against.

● Yes: If we are to interpret the Constitution literally, then yes, the President can pardon
himself before resigning. The Reprieves and Pardons Clause provides, “...he shall have
power to grant reprieves and pardons for offenses against the United States, except in
cases of impeachment.” So, if he uses this power granted to him before he is impeached,
there is nothing in the Constitution that could stop him.
● No: Perhaps if “except in cases of impeachment” is taken to include an impending
impeachment, or during an impeachment investigation.

Humphrey’s Executor v. United States

29
 ★ The unanimous Court found that the FTC Act was constitutional and that Humphrey's
dismissal on policy grounds was unjustified. The Court reasoned that the Constitution
had never given "illimitable power of removal" to the president.

Legislative Authority

INS v. Chadha
SCOTUS 1983
Formalist Approach
Declared a legislative veto unconstitutional
Once you’ve reached the conclusion that takes you to clear text in the Constitution with a clear procedure
to get a result, in all likelihood, the Court is going to follow it. Expect the Court to cling to the text.—
Bilionis

Bicameralism
Article I, Section 1
All legislative Powers herein granted shall be vested in a Congress of the United States which
shall consist of a Senate and House of Representatives.

★ “[W]hether actions taken by either House are, in law and fact, an exercise of legislative
power depends not on their form but upon ‘whether they contain matter which is
properly regarded as legislative in its character and effect.’”
★ “it was essentially legislative in purpose and effect”
★ “confirmed by the character of the Congressional action it supplants”

Facts: Chadha’s nonimmigrant student visa expired. An immigration judge ordered that his
deportation be suspended. After the Attorney General recommendation of suspension was
conveyed to Congress, Congress had the power under a statute to veto the Attorney General’s
determination that Chadha should not be deported. A couple years later, a resolution was
passed that opposed the granting of residency to six aliens, including Chadha. This resolution
was passed without debate or recorded vote. Since the House action was pursuant to the
statute, the resolution was not treated as an Article 1 legislative act; it was not submitted to the
Senate or presented to the President for his action. So, the House vetoed the Attorney General’s
decision and Chadha was deported.

Issue: Was this action by Congress Constitutional?

Holding: No, the legislative veto was declared unconstitutional.

Reasoning: Chief Justice Burger decided that Congress may legislate only if there is (1)
bicameralism: passage by both the House and Senate, and (2) presentment: giving the bill to the
president to sign or veto. (This is a syllogism). His opinion recited the constitutional provisions
requiring bicameralism and presentment and quoted from the Federalist Papers as to the
importance of these procedural requirements. This was a pretty formalistic approach.
He found that the legislative veto was legislation without bicameralism or presentment. He
declared the action “was essentially legislative in purpose and effect.” The effect of the

30
legislative veto was to “alter the legal rights, duties, and relations of persons, including the
Attorney General, Executive Branch officials, and Chadha.” Accordingly, the Court concluded
that it was legislation and that it did not fit into any of the limited situations under the
Constitution where one branch of Congress can act alone.

Dissent: Justice White wrote a dissent on this opinion, emphasizing the need for the legislative
veto as a check on the broad delegations of legislative power. He explained that although the
Constitution and its framers never contemplated a legislative veto, it also didn’t contemplate
the creation of administrative agencies, which is a widely used practice. He thought that the
Court should consider the functional justification for legislative vetoes, and not only the intent of
the framers of the Constitution.
***Bilionis: A comeback to the functional argument: it facilitates factionalism and interest
group politics

Administrative Agencies

Bowsher v. Synar
SCOTUS (1986)
Congress cannot give itself the power to remove individuals performing executive tasks. (Except in cases
of impeachment)

Facts: This case concerned the constitutionality of the Gramm-Rudman-Hollings Deficit

Reduction Act. This Act prescribed a maximum allowable budget deficit for each of five years.
If spending exceeded the deficit ceiling, the comptroller general of the United States, who is the
head of a congressional agency—the General Accounting Office—was instructed to impose
budget cuts.

Issue: Was this act constitutional?

Holding: No, the act was not constitutional.

Reasoning: The Court (Chief Justice Burger) emphasized that the comptroller general could be
removed only by Congress and concluded that it was impermissible for the executive power to
be exercised by a person who was totally insulated from presidential removal. “To permit an
officer controlled by Congress to execute laws would be, in essence, to permit a congressional
veto. Congress could simply remove, or threaten to remove, an officer for executing the laws in
any fashion found to be unsatisfactory by Congress…”

 We noted recently that [t]he Constitution sought to divide the delegated powers of the
new Federal Government into three defined categories, Legislative, Executive, and
Judicial. INS v. Chadha, 462 U.S. 919, 951 (1983). The declared purpose of separating and
dividing the powers of government, of course, was to "diffus[e] power the better to
secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson,
J., concurring).
 Justice Jackson's words echo the famous warning of Montesquieu, [p722] quoted by
James Madison in The Federalist No. 47, that "‘there can be no liberty where the

31
 legislative and executive powers are united in the same person, or body of magistrates'. .
. ." The Federalist No. 47, p. 325 (J. Cooke ed.1961).
 Even a cursory examination of the Constitution reveals the influence of Montesquieu's
thesis that checks and balances were the foundation of a structure of government that
would protect liberty. The Framers provided a vigorous Legislative Branch and a
separate and wholly independent Executive Branch, with each branch responsible
ultimately to the people. The Framers also provided for a Judicial Branch equally
independent, with "[t]he judicial Power . . . extend[ing] to all Cases, in Law and Equity,
arising under this Constitution, and the Laws of the United States." Art. III, § 2.
 That this system of division and separation of powers produces conflicts, confusion, and
discordance at times is inherent, but it was deliberately so structured to assure full,
vigorous, and open debate on the great issues affecting the people, and to provide
avenues for the operation of checks on the exercise of governmental power.
 No one can doubt that Congress and the President are confronted with fiscal and
economic problems of unprecedented magnitude, but the fact that a given law or
procedure is efficient, convenient, and useful in facilitating functions of government,
standing alone, will not save it if it is contrary to the Constitution.

Dissent: Justice White dissented, “I cannot accept…that the exercise of authority by an officer
removable for cause by a joint solution of Congress is analogous to the impermissible execution
of the law by Congress itself, nor would I hold that the congressional role in the removal
process renders the comptroller an ‘agent’ of Congress.”

Morrison v. Olson
SCOTUS (1988)
The Supreme Court held that a statutory limitation on the President’s removal power violates the
Constitution if it “impermissibly interfere[s] with” the President’s ability to supervise the execution of
federal law.
Overruled Humphrey’s Executor

Facts: Title VI of the Ethics of Government Act allows for the appointment of “independent
counsel” to investigate and, if appropriate, prosecute certain high-ranking government officials
for violations of federal criminal laws. An independent counsel could be appointed only at the
request of the Attorney General, after receipt of relevant information and a preliminary
investigation. If an independent counsel were removed, the attorney general would have to file
a report with the panel of judges who made the appointment and with the House and Senate
Judiciary Committees. An independent counsel could be removed only by the Attorney General
for good cause. Or through impeachment by Congress.

Issue: Does a provision for the appointment of independent counsel violate separation of
powers?

Holding: No, it does not violate separation of powers.

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Reasoning: First, the for-good-cause removal power of the Attorney General does not violate
the separation of powers. The Act keeps the power to terminate the independent counsel, while
not directly in the President’s hands, within the executive branch. The key concern in prior
decisions regarding restrictions on presidential removal powers has been whether a removal
provision interferes with the President’s exercise of the executive power or constitutional duty
to ensure the faithful execution of the laws. The good cause provision at issue here does not so
impede the President in the performance of his duties as to require that the independent
counsel be removable only by the President. Nor does the provision impermissibly burden the
President’s ability to control or supervise the independent counsel, an executive officer, in the
performance of his statutory duties. Second, the Act as a whole does not violate the separation
of powers. It does not involve attempts by the legislative or judicial branches to usurp executive
functions. Both the legislature and the judiciary have only limited roles in the appointment of
and investigations by the independent counsel. Although the Act does reduce the amount of
control the President has over the investigation and prosecution of a certain category of crimes,
the President retains enough control over the independent counsel, especially through removal
by the Attorney General, to avoid a constitutional violation. The Act does not impermissibly
burden the President’s ability to perform his constitutional duties. Judgment reversed.

NLRB v. Canning
SCOTUS (2014)
★ Ordinarily the President must obtain “the Advice and Consent of the Senate” before
appointing an “Office[r] of the United States.” U. S. Const., Art. II, §2, cl. 2.
★ But the Recess Appointments Clause creates an exception. It gives the President alone
the power “to fill up all Vacancies that may happen during the Recess of the Senate, by
granting Commissions which shall expire at the End of their next Session.” Art. II, §2, cl.
3. . . [W]hen the appointments before us took place, the Senate was in the midst of a 3-
day recess.
★ Three days is too short a time to bring a recess within the scope of the Clause. Thus we
conclude that the President lacked the power to make the recess appointments here at
issue.
★ The Recess Appointments Clause seeks to permit the Executive Branch to function
smoothly when Congress is unavailable. And though Congress has taken short breaks
for almost 200 years, and there have been many thousands of recess appointments in
that time, we have not found a single example of a recess appointment made during
an intra-session recess that was shorter than 10 days. . . .
★ In sum, we conclude that the phrase “the recess” applies to both intra-session and inter-
session recesses. If a Senate recess is so short that it does not require the consent of the
House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And
a recess lasting less than 10 days is presumptively too short as well.
★ Before turning to the specific questions presented, we shall mention two background
considerations that we find relevant to all three. First, the Recess Appointments Clause
sets forth a subsidiary, not a primary, method for appointing officers of the United
States. The immediately preceding Clause—Article II, Section 2, Clause 2— provides the
primary method of appointment. It says that the President “shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint Ambassadors, other public

33
 Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United
States” (emphasis added).
★ The Federalist Papers make clear that the Founders intended this method of
appointment, requiring Senate approval, to be the norm (at least for principal officers).
Alexander Hamilton wrote that the Constitution vests the power of nomination in the
President alone because “one man of discernment is better fitted to analise and estimate
the peculiar qualities adapted to particular offices, than a body of men of equal, or
perhaps even of superior discernment.” The Federalist No. 76, p. 510 (J. Cooke ed. 1961).
★ At the same time, the need to secure Senate approval provides “an excellent check upon
a spirit of favoritism in the President, and would tend greatly to preventing the
appointment of unfit characters from State prejudice, from family connection, from
personal attachment, or from a view to popularity.”

XI. SLAVERY, JIM CROW, & THE EQUAL PROTECTION PRINCIPLE

Slavery & Jim Crow, 453-472
The Attack on Jim Crow, the Decision in Brown v. Board of Education, and Brown's Aftermath,
472-497

Slavery & Jim Crow

State v. Post
Bracketing
★ If the founding fathers wanted to abolish slavery, they would’ve explicitly said so in the
Constitution.
★ He’s not going to put the practice of slavery up against fundamental principles. He’s
bracketing it away in another place.

Dred Scott v. Sandford

Warping Principles
★ Dred Scott is born in Virginia moves to Missouri with his master. Then is sold in
Missouri, then taken into Illinois then to Minnesota, which was a free state. Scott returns
to Missouri with his wife, Harriet. They then sue their owner for their freedom.
★ Under prevailing Missouri law, his claim was good; they would’ve won! (Once you’re
free, you’re always free)
★ In 1850, they won!
★ But Missouri then overturned the precedent of once free always free.
★ Defeat!
★ They then appeal to the Court

34
 ★ In their holding, they go even further than the Constitutional text!
★ Blacks are not part of We the People. Therefore, they cannot be citizens of the United
States
★ Since they aren’t citizens, they can’t invoke Diversity Jurisdiction
★ Even though they don’t have jurisdiction the Court goes on…
★ Congress doesn’t have power to emancipate
★ Emancipation would be a “taking” in violation of the 14th and 5th amendment
★ The state law is determinative, anyway. You would’ve lost in Missouri, you’ll lose here,
as well.
★ To declare that the founding understanding that blacks weren’t people was not accurate.
Many states recognized blacks as citizens…they could even vote.
★ Sometimes you can admit the tension but not solve it (see Post!). Or you can warp the
principles for your purposes like the judge in this case did.
★ Section 1 of the 14th Amendment overrules Dred Scott

Plessy v. Ferguson
★ Plessy was charged with getting on a railroad car that was reserved for whites. He
brought suit for violation of Equal Protection Clause.
★ The Court holds that Separate but Equal is constitutional.
★ Separation doesn’t equal inequality
★ Court’s response: if you receive a message of inferiority or racial caste system, that’s on
you!
★ Dissent: This is the creation of a racial caste system; it’s obvious! Everyone knows this!
The US shouldn’t have a caste system; the Constitution is colorblind.
★ The law is complicit to privately held feelings of hate/distrust/superiority. It’s not
neutral.

The Attack on Jim Crow, the Decision in Brown v. Board of Education, and Brown's Aftermath

Brown v. Board of Education (Brown I)

SCOTUS (1954)
★ Separate facilities in public education are inherently unequal and therefore violate equal
protection.

XII. EQUAL PROTECTION METHODOLOGY: RATIONAL BASIS REVIEW

497-520

New York Transit Authority v. Beazer

SCOTUS (1979)

35
 Very deferential

Facts: D barred employment for applicants who use methadone. It was shown that through
screening measures, D could hire methadone users who were no more likely to be poor
employees than nonusers.

Issue: Did D’s policy of not hiring methadone users violate the Equal Protection Clause?

Holding: No, this policy does not violate the Equal Protection Clause.

Reasoning: This special classification created by D serves the general objectives of safety and
efficiency. The Constitution does not authorize the Court to interfere with this policy decision.

U.S. Dept of Agriculture v. Moreno

SCOTUS (1973)

Facts: A provision in the Food Stamp Act stated that people who lived with unrelated people
could have their Food Stamp eligibility terminated.

Issue: Does this provision violate the Equal Protection Clause?

Holding: Yes, it violates the Equal Protection Clause.

Reasoning: A legislative classification must be sustained if the classification itself is rationally

related to a legitimate governmental interest. This act stated that it was the policy of Congress
to “raise levels of nutrition among low-income households” and to increase utilization of food
so as to “strengthen our agricultural economy.” The challenged statutory classification (of
people living with non family members) is clearly irrelevant to these purposes.
The challenged provision was to prevent so-called “hippies” and “hippy communities” from
participating in the Food Stamp program. The challenged classification clearly cannot be
sustained by reference to this congressional purpose. “For if the constitutional conception of
‘equal protection of the laws’ means anything, it must at the very least mean that a bare
congressional desire to harm a politically unpopular group cannot constitute a legitimate
governmental interest.”

City of Cleburne v. Cleburne Living Center

SCOTUS (1985)

Facts: Texas had a municipal zoning ordinance that permitted a wide variety of structures to be
built, including hospitals and nursing homes. They attempted to exempt a group home for the
mentally retarded from being built. (I mean…it’s Texas. Are we really surprised?)

Issue: Does this exemption violate the Equal Protection Clause?

Holding: Yes, this exemption does violate the Equal Protection Clause.

36
Reasoning: To withstand equal protection review, legislation that distinguishes between the
mentally retarded and others must be rationally related to a legitimate governmental purpose.
D tried to argue (1) that negative attitudes and fears of the property owners near the dwelling
were a reason for this exemption. The Court argued that these attitudes and fears are
unsubstantiated and can’t hold up against an Equal Protection review. D also tried to argue that
(2) there was a junior high school across the street and they were afraid the students would
bully the mentally retarded residents. Again, unsubstantiated. There are ~30 mentally retarded
children in that school, and they don’t get bullied. The Ds tried to argue (3) that it is in a flood
zone. However, a home for the mentally retarded isn’t more likely to be flooded than, say, a
nursing home built at that same spot.

Romer v. Evans
SCOTUS (1996)
“Laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of
animosity toward the class of persons affected.”

Facts: Colorado tried to enact a state constitutional amendment that would prohibit local
governments from enacting antidiscrimination measures protecting “homosexual, lesbian, or
bisexual orientation, conduct, practices, or relationships.”

Issue: Does this amendment violate the Equal Protection Clause?

Holding: Yes, this amendment violates the Equal Protection Clause.

Reasoning: (1) the amendment has the peculiar property of imposing a broad and
undifferentiated disability on a single named group, an exceptional and invalid form of
legislation. (2) its sheer breadth is so discontinuous with the reasons offered for it that the
amendment seems inexplicable by anything but animus towards the class it affects; it lacks a
rational relationship to legitimate state interests.
“Laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of
animosity toward the class of persons affected.”

Minnesota v. Clover Leaf Creamery Co.

SCOTUS (1981)
A claim of EPC violation cannot prevail if it is at least debatable.

Facts: Minnesota law banned the retail sale of milk in plastic nonreturnable, nonrefillable
containers but permitted such sale in nonreturnable paperboard milk cartons. It was speculated
that the “actual basis” of this law was to promote the economic of local dairy and pulpwood
industries. D argued it was actually for environmental purposes, but P presented evidence to
the contrary.

Issue: Does this ban violate the Equal Protection Clause?

Holding: No, it does not violate the equal protection clause.

37
Reasoning: Respondents did not challenge the theoretical connection between the ban and the
purposes articulated by the legislature; they instead challenged the empirical connection. In
response to this, Justice Brennan wrote, “But States are not required to convince the courts of
the correctness of their legislative judgments.”
Although parties challenging legislation under the Equal Protection Clause may introduce
evidence supporting their claim that it is irrational, they cannot prevail so long as it is evident
from all the considerations presented to the legislature, and those of which we may take judicial
notice, that the question is at least debatable.

XIII. EQUAL PROTECTION METHODOLOGY: HEIGHTENED SCRUTINY & THE PROBLEM

OF RACE
Race-Specific Classifications That Disadvantage Racial Minorities, 520-540
Facially Non-Race-Specific Classifications That Disadvantage Racial Minorities, 540-561
Race-Specific Classifications That Benefit Racial Minorities: Affirmative Action, 574-598 &
Fischer v. University of Texas PDF
The Synthesis of Brown and Affirmative Action, 608-629 & Schuette PDF

Race-Specific Classifications That Disadvantage Racial Minorities

Strauder v. West Virginia (1880)

★ Race-based classification barring African Americans from jury service is
unconstitutional
★ “. . . is practically a brand upon them, affixed by the law, an assertion of their inferiority,
and a stimulant to that race prejudice which is an impediment to securing to individuals
of the race that equal justice which the law aims to secure to all others.”
★ The Fourteenth Amendment establishes “the right to exemption from unfriendly
legislation against them distinctively as colored, – exemption from legal discriminations,
implying inferiority in civil society, lessening the security of their enjoyment of the
rights which others enjoy, and discriminations which are steps towards reducing them
to the condition of a subject race”

Korematsu v. U.S. (1944)

★ Race-based classification with stigma and harm (excluding persons of Japanese ancestry
from designated areas and ordering them to report to “assembly centers” and, for some,
removal to “relocation centers”) – upheld
★ "[A]ll legal restrictions which curtail the civil rights of a single racial group are
immediately suspect. . . . [C]ourts must subject them to the most rigid scrutiny."

Facially Non-Race-Specific Classifications That Disadvantage Racial Minorities

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 Loving v. Virginia (1967)
★ We conclude that anti-miscegenation statutes violate equal protection. Virginia (P)
argues that equal protection means only that an offense having an interracial element
must punish the white and Negro offender to the same degree.
★ Thus, Virginia (P) argues, since its miscegenation statutes punish both the white and the
Negro participant of an interracial marriage the same, the statutes do not constitute an
invidious discrimination based on race, despite their reliance on racial classifications.
★ We reject Virginia’s (P) contention that statutes containing racial classifications should
be upheld if there is any possible basis that they serve a rational purpose. Equal
application does not immunize a statute from the very heavy burden of justification that
the 14th Amendment has traditionally required of state statutes drawn according to
race.

Carolene Products Footnote 4

★ “There may be narrower scope for operation of the presumption of constitutionality

when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten amendments, which are deemed equally
specific when held to be embraced within the Fourteenth.
★ “It is unnecessary to consider now whether legislation which restricts those political
processes which can ordinarily be expected to bring about repeal of undesirable
legislation is to be subjected to more exacting judicial scrutiny under the general
prohibitions of the Fourteenth Amendment than are most other types of legislation.
[E.g., restrictions on the right to vote; restraints upon the dissemination of information;
interferences with political organizations; prohibition of peaceable assembly.]
★ “Nor need we enquire whether similar considerations enter into the review of statutes
directed at particular religious, or national, or racial minorities; whether prejudice
against discrete and insular minorities may be a special condition, which tends
seriously to curtail the operation of those political processes ordinarily to be relied upon
to protect minorities, and which may call for a correspondingly more searching judicial
inquiry.” [Citations omitted.]
★ The Carolene Products footnote was the Court’s first—and maybe only—attempt to say,
systematically, when the courts should declare laws unconstitutional.
★ Justice Stone wrote that “the presumption of constitutionality” should be set aside and
that legislation should be “subjected to more exacting judicial scrutiny” when it
“restricts those political processes which can ordinarily be expected to bring about
repeal of undesirable legislation” or when it is “directed at particular religious, or
national, or racial minorities”—“against discrete and insular minorities” that are victims
of “prejudice.”

Washington v. Davis
SCOTUS (1976)

39
 An otherwise neutral official action is not unconstitutional merely because it has a
disproportionate racial impact.

★ F: Plaintiffs brought suit against state of Washington because in order to become a police
officer, you have to pass a test measuring verbal ability, vocabulary, and reading
comprehension. Disproportionately more black people failed this test than white people.
★ I: Is this test a violation of the EPC?
★ H: No, it does not violate the EPC.
★ R: The test is neutral on its face and rationally may be said to serve a purpose the
Government is constitutionally empowered to pursue. Disproportionate impact is not
irrelevant, but it is not the sole touchstone of an invidious racial discrimination
forbidden by the Constitution.

McCleskey v. Kemp
SCOTUS (1987)
A defendant who alleges an equal protection violation has the burden of proving the existence of
purposeful discrimination.

★ I: Can a facially-neutral death penalty law be struck down because one race is being put
to death more often than another?
★ H: No, it cannot be struck down.
★ R: A defendant who alleges an equal protection violation has the burden of proving the
existence of purposeful discrimination. In this case, then, McCleskey (D) must prove that
those making the decision in his case acted with discriminatory purpose. He offers no
such evidence.

Gomillion v. Lightfoot (1960)

★ Racially motivated redrawing of Tuskegee, Alabama city lines struck down as

unconstitutional

Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977)

★ a motivating factor: “when there is a proof that a discriminatory purpose has been a
motivating factor in the decision, . . . judicial deference is no longer justified.”
★ possible considerations: [1] historical background; [2] the specific sequence of events
leading up to the action; [3] departures from normal procedure; [4] departures from the
normal substantive results one would expect; [5] legislative or administrative history –
and especially any contemporaneous statements that were made; [6] in "extraordinary
instances," live testimony from the decisionmakers; [7] the impact of the official action
and whether it bears more heavily on one race than another
★ shift of burden: upon proof of “a motivating factor,” burden shifts to government to
establish that the same decision would have resulted even had the impermissible
purpose not been considered

40
 Strict Scrutiny Considerations
[1] the risk that race is being used to harm an unpopular group, or to indicate that the members
of that group are unfit to partake of something given to others and to convey in this way the
community’s judgment about the inherent worth of people of different kinds
[2] the risk that the classification reflects nothing more than racial politics, a desire to reward
members of one’s own racial group
[3] the risk that a racial classification reflects nothing more than erroneous stereotypes
[4] the risk that racial classifications, even if related to a legitimate purpose, may perpetuate a
negative racial stereotype
[5] the risk that decision-making based on race may deny a person treatment as an individual
in a way that other sorting mechanisms do not
[6] the risk that the very use of race to identify people will have some divisive effect on the
races by reinforcing the belief in inherent racial differences, regardless of correlation with
traditional stereotypes
[7] the risk that the use of race will cause a dignitary harm to individuals regardless of whether
anyone is disadvantaged on the basis of their racial identity
See Peter J. Rubin, Equal Rights, Special Rights, and the Nature of Antidiscrimination Law, 97
Mich. L. Rev. 685 (1998)

Race-Specific Classifications That Benefit Racial Minorities: Affirmative Action

Bakke, quoted in Fisher

“Any racial classification must meet strict scrutiny, for when government decisions ‘touch upon
an individual’s race or ethnic background, he is entitled to a judicial determination that the
burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental
interest’.”

Grutter (Ginsburg Opinion)

Endorsing Justice Powell’s opinion in Bakke, Ginsburg stated, “[S]tudent body diversity is a
compelling state interest that can justify the use of race in university admissions”
“The benefits are substantial...the Law School’s admissions policy promotes ‘cross-racial
understanding,’ helps to break down racial stereotypes, and ‘enables [students] to better
understand persons of different races.’ These benefits are ‘important and laudable’ because
‘classroom discussion is livelier, more spirited, and simply more enlightening and interesting’
when the students have ‘the greatest possible variety of backgrounds.’”
“To be narrowly tailored, a race-conscious admissions program cannot use a quota system--it
cannot ‘insulat[e] each category of applicants with certain desired qualifications from
competition with all other applicants.’” (Ginsburg quoting Bakke).
“Narrow tailoring does not require exhaustion of every race-neutral alternative. Nor does it
require a university to choose between maintaining a reputation for excellence or fulfilling a

41
commitment to provide educational opportunities to members of all racial groups. Narrow
tailoring does, however, require serious, good faith consideration of workable race-neutral
alternatives that will achieve the diversity the university seeks.”
Scalia Dissent in Grutter
“Cross-racial understanding” and “better prepar[ation of] students for an increasingly diverse
workforce and society” is not an educational benefit.

Fisher
“The particular admissions process used for this objective is subject to judicial review. Race may
not be considered unless the admissions process can withstand strict scrutiny. . . . Strict scrutiny
requires the university to demonstrate with clarity that its ‘purpose or interest is both
constitutionally permissible and substantial, and that its use of the classification is necessary . . .
to the accomplishment of its purpose.’”
“Once the University has established that its goal of diversity is consistent with strict scrutiny,
however, there must still be a further judicial determination that the admissions process meets
strict scrutiny in its implementation. The University must prove that the means chosen by the
University to attain diversity are narrowly tailored to that goal. On this point, the University
receives no deference.”
“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives
would produce the educational benefits of diversity. If ‘a nonracial approach... could promote
the substantial interest about as well and at tolerable administrative expense,’ then the
university may not consider race.”

Gratz v. Bollinger (2003)

striking down University of Michigan undergraduate admissions policy; index system with
automatic 20 point addition does not provide sufficient individualized consideration

Fisher v. University of Texas (II) (2016)

upholding University of Texas undergraduate admissions policy that considers race as a
“factor of a factor of a factor” (after remand in Fisher v. University of Texas (I) (2013))

The strongest case for AA is when it’s been the discriminator and the person being
discriminated against. It’s about injury and remedy. So, in a case where firing senior teachers
over minority teachers in the name of AA, that’s not gonna fly. (Wygant v. Jackson Board of
Education 1986).

Parents Involved in Community Schools v. Seattle School District No. 1

SCOTUS (2007)
The Court struck down school district’s student assignment plans that were based entirely on race.

42
In order to satisfy strict scrutiny, the school districts must demonstrate that the use of
individual racial classifications in the assignment plans here under review is “narrowly
tailored” to achieve “compelling” government interest.
Two compelling interests the Court accepted in the past…
1. Remedying the effects of past intentional discrimination (Freeman v. Pitts, 1992).
2. The interest in diversity in higher education upheld in Grutter
a. In talking about why Grutter differs from the current case, Justice Roberts points
out that the admissions program in Grutter focused on each applicant as an
individual, not simply as a member of a particular racial group. It was part of a
“highly individualized, holistic review.”
b. In Grutter, Court also relied upon considerations unique to institutions of higher
education, noting that in light of the “expansive freedoms of speech and thought
associated with the university environment, universities occupy a special niche
in our constitutional tradition.”
The School District’s Argument: their use of race helps to reduce racial concentration in
schools and to ensure that racially concentrated housing patterns do not prevent nonwhite
students from having access to the most desirable schools. They argue that educational and
broader social benefits flow from a racially diverse learning environment, and that because the
diversity they seek is racial diversity--not the broader diversity issue in Grutter--it makes sense
to promote that interest directly by relying on race alone.
The Court’s counterargument: It is clear that the racial classifications employed by the districts
are not narrowly tailored to the goal of achieving the educational and social benefits asserted to
flow from racial diversity. In design and operation, the plans are directed only to racial balance-
-an objective that the Court has repeatedly condemned as illegitimate.
Accepting racial balancing as a compelling state interest would justify the imposition of racial
proportionality throughout American society, contrary to the Court’s repeated recognition that
“at the heart of the Constitution’s guarantee of equal protection lies the simple command that
the Government must treat citizens as individuals, not as simply components of racial,
religious, sexual, or national class” (Miller v. Johnson, 1995). See bottom of page 610 in casebook
for more quotes.
There’s a Justice Breyer dissent on page 611.
There’s a Thomas concurrence on pages 612-615, focusing on the idea that racially integrated
schools promote better learning outcomes.
● “The Constitution is not that malleable…[The] Constitution enshrines principles
indement of social theories.” - Justice Thomas in his Concurrence
Justice Kennedy, concurring in part
● “Today we enjoy a society that is remarkable in its openness and opportunity. Yet our
tradition is to go beyond present achievements, however significant, and to recognize
and confront the flaws and injustices that remain. This is especially true when we seek
assurance that opportunity is not denied on account of race. The enduring hope is that
race should not matter; the reality is that it too often does.”

43
 ● “The plurality opinion is too dismissive of the legitimate interest government has in
ensuring all people have equal opportunity regardless of their race.”
Justice Breyer, dissenting
● The plurality’s opinion strongly deviates from its precedent decisions and strips from
communities a powerful tool by which they can bring about desegregation in their
school districts. The school districts’ efforts to date in using such policies to eradicate
desegregation should be applauded. Indeed, the policies already have been largely
successful in reducing the amount of children attending single-race schools. The goal of
creating “unitary” schools is a compelling state interest. The school districts’ policies are
narrowly-tailored means for achieving that interest. Additionally, the Equal Protection
Clause permits school districts to use race-conscious criteria for the purpose of achieving
positive race-related goals, even when the Constitution does not compel such actions.
Precedent suggests that school authorities are charged with enacting policies to bring
about Constitutional goals, and the school authorities in the present case should have
the authority to enact whatever policies they deem fit to bring about the racial
desegregation requirement of the Fourteenth Amendment to the Constitution.
Additionally, the policies used constitute narrowly-tailored means to achieve the
legitimate state interest of racial desegregation. Judges are not as competent as school
administrators to determine what policies are most prudent and efficient for achieving
these goals. Ultimately, this decision will have significant consequences for racial
equality in the future and greatly restrict the force of Brown as applied to public school
districts.
● If you’re gonna say that the way to stop discriminating is to stop discriminating, like the
majority, then the burden is on YOU to prove it. Because the stakes are high and dire if
you’re wrong.

Fisher II
★ Fisher I set forth three controlling principles relevant to assessing the constitutionality of
a public university's affirmative-action program.
○ First, ‘because racial characteristics so seldom provide a relevant basis for
disparate treatment, ‘[r]ace may not be considered [by a university] unless the
admissions process can withstand strict scrutiny.’ . . .
○ Second, Fisher I confirmed that ‘the decision to pursue 'the educational benefits
that flow from student body diversity’ . . . is, in substantial measure, an academic
judgment to which some, but not complete, judicial deference is proper.’
○ Third, Fisher I clarified that no deference is owed when determining whether the
use of race is narrowly tailored to achieve the university's permissible goals. A
university, Fisher I explained, bears the burden of proving a ‘nonracial approach‘
would not promote its interest in the educational benefits of diversity ‘about as
well and at tolerable administrative expense.‘

44
★ “Through regular evaluation of data and consideration of student experience, the
University must tailor its approach in light of changing circumstances, ensuring that
race plays no greater role than is necessary to meet its compelling interest”
★ “. . . As this Court's cases have made clear, . . . the compelling interest that justifies
consideration of race in college admissions is not an interest in enrolling a certain
number of minority students. Rather, a university may institute a race-conscious
admissions program as a means of obtaining ‘the educational benefits that flow from
student body diversity.‘
★ As this Court has said, enrolling a diverse student body ‘promotes cross-racial
understanding, helps to break down racial stereotypes, and enables students to better
understand persons of different races.‘ Increasing minority enrollment may be
instrumental to these educational benefits, but it is not, as petitioner seems to suggest, a
goal that can or should be reduced to pure numbers.”
Justice Thomas Dissent:
★ I write separately to reaffirm that ‘a State's use of race in higher education admissions
decisions is categorically prohibited by the Equal Protection Clause.‘ I would overrule
Grutter [v. Bollinger (2003)] and reverse the Fifth Circuit's judgment.

Schutte
 Justice Anthony M. Kennedy delivered the opinion for the three-justice plurality. The
plurality held that this case was not about the constitutionality of race-conscious
admissions, but rather about whether the voters of a state can choose to prohibit the use
of race preferences in the decisions of governmental bodies, specifically with respect to
school admissions. The plurality held that the attempt to define and protect interests
based on race ran the risk of allowing the government to classify people based on race
and therefore perpetuate the same racism such policies were meant to alleviate. While
voters may certainly determine that some race-based preferences should be adopted, it
is not the role of the courts to disempower the voters from making such a choice. If
certain issues were decided to be too sensitive to be addressed by voters, it would be
denying the voters their right to debate and act through the lawful democratic process.
 Chief Justice John G. Roberts, Jr. wrote a concurring opinion in which he argued that the
use of racial preferences might reinforce racial awareness and therefore do more harm
than good. In his opinion concurring in the judgment, Justice Antonin Scalia wrote that a
state law that provided equal protection by not allowing the use of racial preferences at
least facially did not violate the Constitution. Justice Scalia argued that judges should
not be in the position of dividing the country into racial blocs and determining what
policies are in each one's interests. Additionally, Justice Scalia saw no reason to allow
local subordinate authorities to have more power over the use of race-based preferences
than the voters of the state. Since the amendment in question prohibits the use of racial
preferences, it patently provides equal protection under the law rather than denying it.
Justice Clarence Thomas joined in the opinion concurring in the judgment. Justice

45
 Stephen G. Breyer wrote a separate opinion concurring in the judgment in which he
argued that, while the Constitution allows local, state, and national communities to
implement narrowly tailored, race-conscious policies, it is the voters and not the courts
who should determine the merits of such strategies. The amendment better allowed for
this process to take place because it took the power to decide whether to implement
race-conscious policies away from unelected actors and placed it firmly in the hands of
the voters.
 Justice Sonia Sotomayor wrote a dissenting opinion in which she argued that the
democratic process does not in and of itself provide sufficient protection against the
oppression of minority groups, which is why the Equal Protection Clause of the
Fourteenth Amendment exists. Although equal protection is typically construed as
referring to the treatment of different groups under existing laws, it also protects against
the implementation of new laws that would oppress certain groups on the basis of race,
among other things. Because the amendment in question creates one admission process
for those who do think race should be considered and a separate one for those who do
not, it places special burdens on minority groups in a manner that violates the Equal
Protection Clause. Judicial precedent holds that governmental action violates the Equal
Protection Clause when it has a racial focus that places a greater burden on minority.
The amendment in question both has a racial focus and places a greater burden on the
minority; therefore, it violates the Equal Protection Clause, and the voters of a state
cannot democratically ratify an amendment that violates the Constitution. Justice
Sotomayor argued that the plurality and concurring opinions allow a majority of voters
in Michigan to prevent the elected university boards from implementing constitutional
race-sensitive admission policies, and therefore they ignore a key purpose of the Equal
Protection Clause. Justice Ruth Bader Ginsburg joined in the dissenting opinion.

Class Notes
If there are scientific interests for racial classifying, then it’s probably gonna fly. Like in the
problem for our team this week where the public schools wanted to research the effects of
multiracial schools and to distribute its findings to the rest of the state.

XIV. EQUAL PROTECTION METHODOLOGY: HEIGHTENED SCRUTINY & THE PROBLEM

OF GENDER
The Evolution of the Doctrine: Intermediate Scrutiny, 629-646
Stereotypes versus “Real” Differences, 647-666
“Benign” Gender Classifications & Discrimination Against Men, 666-673

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 The Evolution of the Doctrine: Intermediate Scrutiny

★ Until the 1970s, the Court applied only minimal scrutiny to gender classifications and
consistently rejected constitutional attacks on statutes disadvantaging women.
○ Bradwell v. Illinois (1873) the Court upheld Illinois’s refusal to license a woman
to practice law.
■ “The natural and proper timidity and delicacy which belongs to the
female sex evidently unfits it for many of the occupations of civil life.”
■ “The paramount destiny and mission of a woman are to fulfill the noble
and benign offices of wife and mother. This is the law of the Creator.”
○ Minor v. Harpersett (1975) the Court recognized that women were “persons” and
“citizens” within the meaning of the Fourteenth Amendment, but held that the
right to vote was not a privilege of U.S. citizenship and that women could
therefore be denied that franchise.
○ Breedlove v. Suttles (1937), the Court upheld the imposition of a poll tax on men
only. Women who voted, however, had to pay the poll tax. In effect, the statute
lifted the tax burden by discouraging women from partaking in the political
process.
○ These early cases were against the backdrop of the Slaughter House Cases, which
had given an extremely narrow reading to the fourteenth amendment’s due
process and equal protection clauses.
○ Even when the Court finally started striking down legislation on due process and
equal protection grounds, it resisted application of these clauses to gender
discrimination.
■ In Muller v. Oregon, the Court upheld a statute that only allowed women
to work two hours/day in a factory. The Court maintained that, “the
inherent difference between the two sexes” justified limitations on a
woman’s right to contract.
■ The Court was similarly unsympathetic to equal protection claims. In
Goesaert v. Cleary (1948) the Court upheld a Michigan Statute that didn’t
allow women to be bartenders unless they were were the wife or
daughter of a bar’s male owner.
● It has a paternalistic/protective interest -_-
■ Hoyt v. Florida (1961)
● Upholding exclusion of women from jury service unless they opt
in
● “Woman is still regarded as the center of home and family life.”
★ The problem with the original understanding of the 14th amendment is that it treats
women disadvantageously.
○ It only focuses on the rights of (black) men.

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The 19th amendment might be read like, “we were wrong in the 1800s about women.” Holistic
interpretation of this might be the basis for corrections for how the law treats women

The Equal Rights Amendment

● Section 1: equality of rights under the law shall not be denied or abridged by the US or
by any state on account of sex
● Section 2: the Congress shall have the power to enforce, by appropriate legislation, the
provisions of this article
● Section 3: this amendment shall take effect two years after the date of ratification

2. The Road to Intermediate Scrutiny

★ In the early 1970s, the Court became more receptive to constitutional attacks on gender
classifications.
★ Reed v. Reed (1971)
○ This was the first SCOTUS case to invalidate a gender classification under the
equal protection clause.
○ It invalidated Idaho’s law governing the estates of persons who had died without
a will. The law provided that, “of several persons claiming and equally entitled
to administer, males must be preferred to females.”
○ Chief Justice Burger, writing for the Court, decided the issue in this case was,
“whether a difference in the sex of competing applicants [bears] a rational
relationship to a state objective that is sought to be advanced by the operation of
[the statute].”
○ The Court said that classification based on gender to reduce administrative work
for the state is not a valid grounds for gender classifications and was “the very
kind of arbitrary legislative choice forbidden by the equal protection clause.”

★ Frontiero v. Richardson (1973)

○ A law allowing a uniformed armed service member to claim his spouse as a
dependent automatically, but making a wife prove that her husband is
dependent on her, was struck down as unconstitutional as it violated the fifth
amendment’s equal protection clause.
○ Justice Brennan wrote that classifications based on gender are inherently suspect
and, like racial classifications, should be subject to close scrutiny.
○ Justice Brennan argued that the departure from “traditional” rational-basis
analysis was “clearly justified” because of America’s long history of oppressing
women. He even went so far as to compare the treatment of women to the
treatment of slaves.

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 ■ Justice Powell concurred in the judgment but expressly disassociated
himself from Brennan’s assertion that classifications based on sex are
suspect.
■ If [the fifth amendment EPC] is duly adopted [by the states], it will
represent the will of the people accomplished in the manner prescribed
by the Constitution. By acting prematurely and unnecessarily, the Court
has assumed a decisional responsibility at the very time when state
legislatures, functioning within the traditional democratic processes, are
debating the proposed Amendment.” AKA leave it to the states to figure
out if a woman is a human -_-
★ Due process and conclusive presumptions:
○ Stanley v. Illinois: SCOTUS struck down a statute that automatically made
children of unwed fathers wards of the state on the death of their mothers. The
Court held that this scheme deprived fathers of due process of law by erecting a
“conclusive presumption” of unfitness
○ Cleveland Board of Education v. LaFleur: the Court struck down legislation that
made pregnant teachers go on maternity leave long before their due date because
of the “conclusive presumption” that they’re unfit to teach because they’re
pregnant. The Court decided that this was an overbroad assumption.
★ Equal Protection
○ Weinberger v. Wiesenfeld: the Court struck down legislation that allowed
widowed mothers but not widowed fathers based on the earnings of their
deceased spouse. It’s channeling the notion that women are more than likely
dependent and men are likely not. This violated equal protection.
■ This gender classification was based on “archaic and overbroad
generalizations.”
■ It’s as if the Court is looking at their Frontiero case and are trying to
recast this in a way where they can come together. The notion that we’re
on the lookout for archaic and overbroad generalizations; they are vilains.
○ Stanton v. Stanton: the Court struck down legislation that required parents to
support their sons until they’re 21 but their daughters only until they’re 18. This
violated equal protection.
■ “Notwithstanding the ‘old notions’ to which the [state refers], we
perceive nothing rational in the distinction drawn by [the statute]. [No]
longer is the female destined solely for the home and the rearing of the
family, and the male for the marketplace and the world of ideas.
Women’s activities and responsibilities are increasing and expanding.”
★ Unsuccessful challenges to gender classifications
○ Kahn v. Shevin (1974) the Court upheld a FL statute providing a property tax
exemption for widows but not widowers. The Court held that the distinction was
justified by greater financial difficulties for the lone woman.

49
 ■ “Whether from overt discrimination or from the socialization process of a
male-dominated culture, the job market is inhospitable to the woman
seeking any but the lowest paid jobs.”
■ Gender-conscious affirmative action?
○ Schlesinger v. Ballard (1975) the Court sustained a federal statute granting
women in the Navy a longer period in which to achieve mandatory promotion
than men. The Court reasoned that this distinction, unlike those disapproved in
Frontiero and Reed, was not based in “archaic and overbroad generalizations.”
Rather, it reflected the demonstrable fact that male and female line officers in the
Navy are not similarly situated with respect to opportunities for professional
service.
★ What constitutes a gender-based distinction?
○ Geduldig v. Aiello (1974), the Court rejected an attack on a CA disability
insurance program that excluded pregnancy-related disabilities from coverage.
The Court held that this limitation was justified by the state’s “legitimate interest
in maintaining the self-supporting nature of its insurance program.” It
distinguished itself from Reed and Frontiero, involving discrimination based on
gender as such. “The California insurance program does not exclude anyone
from benefit eligibility because of gender but merely removes one physical
condition--pregnancy--from the list of compensable disabilities.”
○ Justice Brennan dissent, page 636
○ Coleman v. Maryland Court of Appeals--a case concerning the sick-leave
provision of the GMLA--Justice Ginsburg, joined by Breyer, Sotomayor, and
Kagan, called for Geduldig to be overruled.
■ “It is simply false that a classification based on pregnancy is gender-
neutral.”
■ “Pregnancy provided a central justification for the historic discrimination
against women”
■ “Because pregnancy discrimination is inevitably sex discrimination, and
because discrimination against women is tightly interwoven with
society’s beliefs about pregnancy and motherhood, I would hold that
Geduldig was egregiously wrong to declare that discrimination on the
basis of pregnancy is not discrimination on the basis of sex.”
★ The legacy of Reed
○ The mixed results following Reed = confusing
○ On one hand, it was indisputable that the Court had become far more receptive
to claims of sex discrimination
○ It was also subjecting gender classifications to some form of heightened scrutiny
○ On the other hand, the justices went to extraordinary lengths to leave intact prior
equal protection doctrine that had supported the old approach

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 ○ Thus, in Taylor, Stanley, and LaFleur, the Court managed to overturn gender
classifications without any substantial reliance on equal protection analysis
○ While the Court did resort to equal protection principles in Reed, Stanton, and
Wiesenfeld, it purported to use only low-level, rational basis review to invalidate
the challenged statutes.
★ Craig v. Boren
○ FIRST CASE THAT THE COURT APPLIED HEIGHTENED REVIEW TO A
GENDER CLASSIFICATION. THIS IS WHERE INTERMEDIATE SCRUTINY IS
BORN.
○ OK statute struck down that prohibited the sale of 3.2% beer to males under the
age of 21 and females under the age of 18.
○ The court reasoned the difference was because of statistics about drunk driving
for those aged 18-20
○ “Clearly, the protection of public...safety represents an important function of
state and local governments. However, appellee’s statistics...cannot support the
conclusion that the gender-based distinction closely serves to achieve that
objective and therefore the distinction cannot under Reed withstand equal
protection challenge…”
○ The disparity between .18% and 2% of DUIs is not sufficient grounds for the
employment of a gender line as a classifying device.
○ “Indeed, prior cases have consistently rejected the use of sex as a decisionmaking
factor even though the statutes in question certainly rested on far more
predictive empirical relationships than this.”
○ Appellees never even explained why they were targeting 3.2% beer specifically
○ “Proving broad sociological propositions by statistics is a dubious business, and
one that inevitably is in tension with the normative philosophy that underlies the
Equal Protection Clause.”
○ “To withstand constitutional challenge, previous cases establish that
classifications by gender must serve important governmental objectives and
must be substantially related to achievement of those objectives.”
★ The relevance of heightened scrutiny
○ Since Craig, the Court hasn’t been consistent
○ Michael v. Sonoma County, Rehnquist propounded a seemingly less stringent
test: “this court has consistently upheld statutes where the gender classification
is not invidious, but rather realistically reflects the fact that the sexes are not
similarly situated in certain circumstances.”
○ On the other hand, United States v. Virginia, Ginsburg, more stringent test: “the
reviewing court must determine whether the proffered justification is
‘exceedingly persuasive.’ the burden of justification is demanding and it rests
entirely on the State.”
★ Original understandings for heightened scrutiny

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 ○ In the Slaughter House Cases, Justice Miller began his consideration of the 14th
Amendment by observing that its “one pervading purpose” was “the freedom of
the slave race, the security and firm establishment of freedom, and the protection
of the newly-made freeman and citizen from the oppressions of those who had
formerly exercise unlimited dominion over him.”
○ Analogizing slaves’ rights to women’s rights, Justice O’Connor (1996): “if newly
freed blacks were to be guaranteed the same civil rights, including suffrage, as
all other citizens, there was no reason that women should not also be swept up
by the momentum and included in the resulting expansion of the right to vote.”
★ The problem of overgeneralization
○ Mississippi University for Women v. Hogan (1982): a skeptical attitude toward
gender classifications is designed to ensure that government action is
“determined through reasoned analysis rather than through the mechanical
application of traditional, often inaccurate assertions about the proper roles of
men and women.”

Stereotypes versus “Real” Generalizations

Generalizations
United States v. Virginia (1996) Justice Ginsburg
The Court demanded that the Virginia Military Institute admit women because its superior and
unique training couldn’t be replicated in a different proposed school for just women. (Separate
but not equal)
★ “The [gender] justification must be genuine, not hypothesized or invented post hoc in
response to litigation. And it must not rely on overbroad generalizations about the
different talents, capacities, or preferences of males and females.”
★ You need an “Exceedingly persuasive justification”
○ It appears Ginsburg is trying to intensify intermediate scrutiny.
★ “Sex classifications may be used to compensate women ‘for particular economic
activities [they have] suffered, to ‘promote equal employment opportunity,’ to advance
full development of our Nation’s people. But such classifications may not be used, as
they once were, to create or perpetuate the legal, social, and economic inferiority of
women.”
★ “The State must show ‘at least that the [challenged] classifications serves ‘important
governmental objectives’
★ “The notion that admission of women would downgrade VMI’s stature, destroy the
adversative system, and with it, even the school, is a judgment hardly proved, a
prediction hardly different from other ‘self-fulfilling prophecies,’ ones routinely used to
deny rights or opportunities.”
★ “Virginia maintains that these methodological differences [cooperative method and
reinforcement of self-esteem at VMWI] are ‘justified pedagogically,’ based on ‘important

52
 differences between men and women in learning and developmental needs,’
‘psychological and sociological differences’ Virginia describes as ‘real’ and ‘not
stereotypes.’
○ Ginsburg: “Generalizations about ‘the way women are,’ estimates of what is
appropriate for most women, no longer justify denying opportunity to women
whose talent and capacity place them outside the average description.”
★ A law is unconstitutional when it denies women, simply because they are women,
“equal opportunity to aspire, achieve, participate in and contribute to society based on
their individual talents and capacities”
★ “Focusing on the differential treatment or denial of opportunity for which relief is
sought, the reviewing court must determine whether the proffered justification is
‘exceedingly persuasive.’ The burden of justification is demanding and it rests entirely
on the State. The State must show ‘at least that the [challenged] classification serves
“important governmental objectives and that the discriminatory means employed” are
“substantially related to the achievement of those objectives.”’ The justification must be
genuine, not hypothesized or invented post hoc in response to litigation. And it must
not rely on overbroad generalizations about the different talents, capacities, or
preferences of males and females.”
★ “Physical differences between men and women . . . are enduring. . . . ‘Inherent
differences’ between men and women, we have come to appreciate, remain cause for
celebration, but not for denigration of the members of either sex or for artificial
constraints on an individual’s opportunity. Sex classifications may be used to
compensate women ‘for particular economic disabilities [they have] suffered,’ to
‘promote equal employment opportunity,’ to advance full development of the talent and
capacities of our Nation’s people. But such classifications may not be used, as they once
were, to create or perpetuate the legal, social, and economic inferiority of women.”
○ In the course of stating intermediate scrutiny, she’s blocking out use for benging
classifications of affirmative action
★ “We’re doing this for educational diversity!”--VMI “Nice try, this is post hoc
rationalization. It was founded 100 years ago and was made for men going to war. You
guys aren’t thinking about diversity.”--The Court

Notes
★ Justice Blackmun: “even if a measure of truth can be found in some of the gender
stereotypes used to justify gender-based peremptory challenges,” that fact was
irrelevant. “A shred of truth may be contained in some stereotypes, but the [equal
protection clause] requires that state actors look beyond the surface before making
judgments about people that are likely to stigmatize as well as to perpetuate historical
patterns of discrimination.”

Real Differences

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 Nguyen v. Immigration and Naturalization Service (2001)
The Court upheld a statute that that a child born abroad to unmarried parents automatically
acquires US citizenship if the child’s mother is a U.S. citizen who at some point in her life has
been physically present in the US for a continuous period of one year. By contrast, a child born
abroad to unmarried parents does not automatically become a US citizen if only the child’s
father is a US citizen. Rather, such a child can be naturalized if the blood relationship between
the child and her/his father is “established by clear and convincing evidence,” the father agrees
in writing to provide support for the child, and, before the child turns 18, the child or father
obtains formal recognition of the father’s paternity.
“Nguyen upheld differential treatment of parental transmission of citizenship predicated on
women’s and men’s being differently situated at the moment of a child’s birth.”
The important governmental purpose is the opportunity for the parents to form a relationship
with the child. The mother has that at birth. The father does not.
★ “The first governmental interest to be served by the statute is the importance of assuring
that a biological parent-child relationship exists. In the case of the mother, the relation is
verifiable from the birth itself.”
★ “Just as neutral terms can mark discrimination that is unlawful, gender specific terms
can mark a permissible distinction. Here, the use of gender specific terms can mark a
permissible difference between the parents. The differential treatment is inherent in a
sensible statutory scheme, given the unique relationship of the mother to the event of
birth.”
★ For the written agreement for the father to support the child: “The second important
governmental interest furthered in a substantial manner by the statute is the
determination to ensure that the child and the citizen parent have some demonstrated
opportunity or potential to develop a relationship that is not just recognized, as a formal
matter, by the law, but one that consists of the real, everyday ties that provide a
connection between the child and citizen parent, and, in turn, the United States.”
○ The mother gets this opportunity because SHE KNOWS the child is hers and has
the initial point of contact with the child. The father does not.
★ Class notes: when you get into areas like immigration, national security, etc., you might
see the Court relax scrutiny. (See Korematsu!)

Benign Gender Classifications & Discrimination Against Men

Califano v. Goldfarb (1977)

★ The Court struck down a federal benefits program that allowed a widow to receive
survivor’s benefits for her dead husband, but a widower could only receive benefits of
his deceased wife if he had been receiving “at least one half” of his support from her.
★ “The history of this statute is entirely consistent with the view that Congress simply
assumed that all widows should be regarded as dependents in some general sense, even

54
 though they could not satisfy the statutory support test later imposed on men. It is fair
to infer that habit, rather than analysis or actual reflection, made it seem acceptable to
equate the terms widow and dependent surviving spouse.”
★ Unjustified discrimination against wage-earning female. She can’t provide for her family
after she dies.
★ Dissent: a disadvantage is imposed on some men; the rule exempting women from
individualized proof of their dependency is overinclusive but justified for
administrative convenience (allowable at least in social welfare cases that involve large
programs and high volume of cases).

Califano v. Webster (1977)

★ The Court upheld a Social Security statute that gave more benefits to women
★ “The more favorable treatment of the female wage earner enacted here was not a result
of ‘archaic and overbroad generalizations’...Rather, the challenged statute operated
directly to compensate women for past economic discrimination.”
★ “Whether from overt discrimination or from the socialization process of a male-
dominated culture, the job market is inhospitable to women seeking any but the lowest
paying jobs.”--Kahn

Wengler v. Druggists Mutual Insurance Co.

★ invalidating workers’ compensation provision under which a widower is not entitled to
death benefits unless he either is mentally or physically incapacitated from wage
earning or proves actual dependence on the decedent wife’s earnings, whereas a widow
qualifies for death benefits without having to prove actual dependence on the decedent
husband's earnings
★ “it is apparent that the statute discriminates against both men and women”
★ “It may be that there are levels of administrative convenience that will justify
discriminations that are subject to heightened scrutiny under the Equal Protection
Clause, but the requisite showing has not been made here by the mere claim that it
would be inconvenient to individualize determinations about widows as well as
widowers.”

Class notes: the law is not going to draw a distinction between men and women classifications.
They’re both subject to intermediate scrutiny.

Precursors to these cases: Kahn (tax exemption for women) and Schlesinger (navy promotion
case...women are given extra time)

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XV. THE POSSIBILITY OF HEIGHTENED SCRUTINY FOR OTHER CLASSIFICATIONS:
SEXUAL ORIENTATION, ALIENAGE, WEALTH
Sexual Orientation, 673-687 & Windsor PDF & Obergefell PDF
Other Classifications: Alienage & Wealth, 696-719

Sexual Orientation

Bowers v. Hardwick (1986)

★ holding (5-4) that there is no constitutional right to engage in private consensual
homosexual activity; the fundamental right to privacy (substantive due process) does
not extend to such activity, as neither text nor tradition support it

Romer v. Evans (1996)

The Court struck down a Colorado statute as unconstitutional because it demanded that
homosexuals are not protected against discriminatory practices in many transactions.

★ It is a fair, if not necessary, inference from the broad language of the amendment that it
deprives gays and lesbians even of the protection of general laws and policies that
prohibit arbitrary discrimination in governmental and private settings.
★ If a law neither burdens a fundamental right nor targets a suspect class, we will uphold
the legislative classification so long as it bears a rational relation to some legitimate end.
○ Rational basis review
★ The amendment seems inexplicable by anything but animus toward the class that is
affects; it lacks a rational relationship to legitimate state interests.
★ A law declaring that in general it shall be more difficult for one group of citizens than
for all others to seek aid from the government is itself a denial of equal protection of the
laws in the most literal sense
★ Prohibited the enactment of antidiscrimination measures protecting homosexual,
lesbian, or bisexual orientation, conduct, practices, or relationships
★ Kennedy is saying you aren’t barring them from “special” protections--you’re barring
them from just plain equal protection
★ “If the constitutional conception of ‘equal protection of the laws’ means anything, it
must at the very least mean that a bare...desire to harm a politically unpopular group
cannot constitute a legitimate governmental interest”--the Court quoting Dept of
Agriculture v. Moreno.
★ A law must bear a rational relationship to a legitimate governmental purpose.

Lawrence v. Texas (2003)

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★ overruling Bowers v. Hardwick in an opinion by Justice Kennedy; “Bowers was not
correct when it was decided, and it is not correct today” (five justices); due process bars
laws that criminalize private, consensual sex between adults
★ Justice Sandra Day O’Connor concurred in the judgment on equal protection grounds,
concluding that the state cannot ban same-sex sodomy while permitting heterosexual
sodomy
★ Justice Antonin Scalia (joined by Chief Justice William H. Rehnquist and Justice Clarence
Thomas) dissented, concluding that the state law is justified by the moral opprobrium
traditionally attached to homosexual conduct

Windsor
Upheld a District Ct of Appeals’ decision to subject sexual orientation classifications to a
heightened review of scrutiny
★ The requirements of Article III standing are familiar
○ “First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) ‘actual
or imminent, not “conjectural or hypothetical.”‘
○ Second, there must be a causal connection between the injury and the conduct
complained of—the injury has to be ‘fairly . . . trace[able] to the challenged action
of the defendant, and not . . . th[e] result [of] the independent action of some
third party not before the court.’
○ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will
be ‘redressed by a favorable decision.’”
○ Rules of prudential standing, by contrast, are more flexible “rule[s]... of federal
appellate practice,” designed to protect the courts from “decid[ing] abstract
questions of wide public significance even [when] other governmental
institutions may be more competent to address the questions and even though
judicial intervention may be unnecessary to protect individual rights.
Issue of Justiciability in Windsor
★ On the one hand, as noted, the Government’s agreement with Windsor raises questions
about the propriety of entertaining a suit in which it seeks affirmance of an order
invalidating a federal law and ordering the United States to pay money.
★ On the other hand, if the Executive’s agreement with a plaintiff that a law is
unconstitutional is enough to preclude judicial review, then the Supreme Court’s
primary role in determining the constitutionality of a law that has inflicted real injury on
a plaintiff who has brought a justiciable legal claim would become only secondary to the
President’s. This would undermine the clear dictate of the separation-of-powers
principle that “when an Act of Congress is alleged to conflict with the Constitution, ‘[i]t
is emphatically the province and duty of the judicial department to say what the law
is.’” Similarly, with respect to the legislative power, when Congress has passed a statute
and a President has signed it, it poses grave challenges to the separation of powers for

57
 the Executive at a particular moment to be able to nullify Congress’ enactment solely on
its own initiative and without any determination from the Court.
★ It’s unusual for the Court to not be deferential to the states for things like family life and
marriage

In determining animus
★ DOMA seeks to injure the very class New York seeks to protect. By doing so it violates
basic due process and equal protection principles applicable to the Federal Government.
The Constitution’s guarantee of equality “must at the very least mean that a bare
congressional desire to harm a politically unpopular group cannot” justify disparate
treatment of that group. In determining whether a law is motived by an improper
animus or purpose, “‘[d]iscriminations of an unusual character’” especially require
careful consideration. DOMA cannot survive under these principles.
★ The history of DOMA’s enactment and its own text demonstrate that interference with
the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise
of their sovereign power, was more than an incidental effect of the federal statute. It was
its essence.
○ DOMA’s principal effect is to identify a subset of state-sanctioned marriages and
make them unequal. The principal purpose is to impose inequality, not for other
reasons like governmental efficiency. Responsibilities, as well as rights, enhance
the dignity and integrity of the person. And DOMA contrives to deprive some
couples married under the laws of their State, but not other couples, of both
rights and responsibilities. By creating two contradictory marriage regimes
within the same State, DOMA forces same-sex couples to live as married for the
purpose of state law but unmarried for the purpose of federal law, thus
diminishing the stability and predictability of basic personal relations the State
has found it proper to acknowledge and protect. By this dynamic DOMA
undermines both the public and private significance of state-sanctioned same-sex
marriages; for it tells those couples, and all the world, that their otherwise valid
marriages are unworthy of federal recognition.
★ The liberty protected by the Fifth Amendment’s Due Process Clause contains within it
the prohibition against denying to any person the equal protection of the laws. While the
Fifth Amendment itself withdraws from Government the power to degrade or demean
in the way this law does, the equal protection guarantee of the Fourteenth Amendment
makes that Fifth Amendment right all the more specific and all the better understood
and preserved.

Obergefell v. Hodges
★ The identification and protection of fundamental rights is an enduring part of the
judicial duty to interpret the Constitution. That responsibility, however, “has not been
reduced to any formula.” Poe v. Ullman (1961). Rather, it requires courts to exercise

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 reasoned judgment in identifying interests of the person so fundamental that the State
must accord them its respect. . . . History and tradition guide and discipline this inquiry
but do not set its outer boundaries. That method respects our history and learns from it
without allowing the past alone to rule the present.
★ The nature of injustice is that we may not always see it in our own times. The
generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment
did not presume to know the extent of freedom in all of its dimensions, and so they
entrusted to future generations a charter protecting the right of all persons to enjoy
liberty as we learn its meaning. When new insight reveals discord between the
Constitution’s central protections and a received legal stricture, a claim to liberty must
be addressed.
★ An individual can invoke a right to constitutional protection when he or she is harmed,
even if the broader public disagrees and even if the legislature refuses to act. The idea of
the Constitution “was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette
(1943)
★ There’s no warrant to restrain the substantive right to marriage to only heterosexual
people--Bilionis
Dissent
★ [T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of
no concern to us. Under the Constitution, judges have power to say what the law is, not
what it should be. . . .
★ Although the policy arguments for extending marriage to same-sex couples may be
compelling, the legal arguments for requiring such an extension are not. The
fundamental right to marry does not include a right to make a State change its definition
of marriage. And a State’s decision to maintain the meaning of marriage that has
persisted in every culture throughout human history can hardly be called irrational. In
short, our Constitution does not enact any one theory of marriage. The people of a State
are free to expand marriage to include same-sex couples, or to retain the historic
definition.
★ . . . Understand well what this dissent is about: It is not about whether, in my judgment,
the institution of marriage should be changed to include same-sex couples. It is instead
about whether, in our democratic republic, that decision should rest with the people
acting through their elected representatives, or with five lawyers who happen to hold
commisions authorizing them to resolve legal disputes according to law. The
Constitution leaves no doubt about the answer.

Alienage

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Alienage is a tricky classification to analyze because, on the one hand, there are plenty of
amendments in the Constitution that are reserved only for citizens. On the other hand, the
Court has consistently subjected classifications based on alienage to strict scrutiny.
A guiding light in this analysis is that aliens are sheltered by the Equal Protection Clause. With
this shelter in mind, along with the application of strict scrutiny to the current case, is where we
begin our analysis. In order to pass strict scrutiny, a classification based on alienage must be
“narrowly tailored” to achieve a “compelling governmental interest.”

An illustrative case for how the Court decides whether an alienage classification passes strict
scrutiny is Sugarman v. Dougall (1973). Here, the Court struck down a state statute that
prohibited the employment of aliens the competitive classified civil service. The Court reasoned
that the governmental purpose of a state “establishing its own form of government, and in
limiting participation in that government to those who are within ‘the basic conception of a
political community’” was legitimate. However, “the means [of discriminating against aliens]
that the State employs must be precisely drawn in light of the acknowledged purpose. The
statute is neither narrowly confined nor precise in its application.” In other words, the
classification proved too much and too little at the same time.

See Foley v. Connelie, where the Court upheld prohibition on aliens serving on state police force.
See also Cabell v. Chavez-Salido, where the Court upheld a citizenship requirement for probation
officers.

Strict Scrutiny for Alienage

State (or local) use of alienage classification

Graham v. Richardson (1971)
★ striking down state laws denying welfare benefits to noncitizens
★ “[C]lassifications based on alienage, like those based on nationality or race, are
inherently suspect and subject to close judicial scrutiny. Aliens as a class are a prime
example of a ‘discrete and insular’ minority (see United States v. Carolene Products Co.,
304 U.S. 144, 152-53, n. 4 (1938)) for whom such heightened judicial solicitude is
appropriate.”
★ States (Florida) can’t try to deincentivize or disencourage Cubans from coming. That’s
the national government’s job. It’s not a compelling governmental interest to withhold
state resources from aliens

barred from all civil service jobs requiring competitive examination

– invalidated in Sugarman v. Dougall (1973)

barred from admission to the bar

– invalidated in In re Griffiths (1973)

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barred from private practice of engineering
– invalidated in Examining Board v. Flores de Otero (1976)

barred from financial aid for college

– invalidated in Nyquist v. Mauclet (1977)

Rational Basis Review for Alienage

state (or local) use of alienage classification:

“political function exception”

Bernal v. Fainter (1982): “We have . . . developed a narrow exception to the rule that
discrimination based on alienage triggers strict scrutiny. This exception has been labeled the
‘political function’ exception and applies to laws that exclude aliens from positions intimately
related to the process of democratic self-government.”

Cabell v. Chavez-Salido (1982): “First, the specificity of the classification will be examined: a
classification that is substantially overinclusive or underinclusive tends to undercut the
governmental claim that the classification serves legitimate political ends. . . . Second, even if
the classification is sufficiently tailored, it may be applied in the particular case only to ‘persons
holding state elective or important nonelective executive, legislative, and judicial positions,’
those officers who ‘participate directly in the formulation, execution, or review of broad public
policy,’ and hence ‘perform functions that go to the heart of representative government.’”

state (or local) use of alienage classification:

“political function exception”

★ barred from voting, holding public office

○ – permissible; see, e.g., Sugarman v. Dougall (1973) (dictum)
★ barred from serving on juries
○ – upheld in Perkins v. Smith (1976) (summary affirmance)
★ barred from serving as state police officer
○ – upheld in Foley v. Connelie (1978)
★ barred from employment as elementary or secondary school teacher
○ – upheld in Ambach v. Norwich (1979)
★ barred from serving as probation officer
★ – upheld in Cabell v. Chavez-Salido (1982)
★ barred from serving as notary public
○ – invalidated in Bernal v. Fainter (1982) (political function
○ exception inapplicable)

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 federal legislative or executive action; rational basis

Mathews v. Diaz (1976)

upholding federal statute denying Medicaid benefits to alien unless permanent resident with
five years of residency
★ “For reasons long recognized as valid, the responsibility for regulating the relationship
between the United States and our alien visitors has been committed to the political
branches of the Federal Government. Since decisions in these matters may implicate our
relations with foreign powers, and since a wide variety of classifications must be defined
in the light of changing political and economic circumstances, such decisions are
frequently of a character more appropriate to either the Legislature or the Executive than
to the Judiciary. . . . The reasons that preclude judicial review of political questions also
dictate a narrow standard of review of decisions made by the Congress or the President
in the area of immigration and naturalization.”
★ This turned out different that Sugarman and the other cases because this classification
was made by Congress and the President. That’s why this was upheld. Judicial self-
restraint pops in here. The more we do strict scrutiny, the more we’re getting in your
hair and second-guessing you.
★ Alienage is suspect class UNLESS the Congress/Pres is classifying it. Deference is built
in right away with this case. Off-ramp, different problem than something like race
classifications.

Strict Scrutiny

federal administrative action

Hampton v. Mow Sun Wong (1976)

striking down Civil Service Commission regulation excluding aliens from most civil service
positions

★ “[F]ederal power over aliens is [not] so plenary that any agent of the National
Government may arbitrarily subject all resident aliens to different substantive rules from
those applied to citizens. . . . When the Federal Government asserts an overriding
national interest as justification for a discriminatory rule which would violate the Equal
Protection Clause if adopted by a State, . . . there must be a legitimate basis for
presuming that the rule was actually intended to serve that interest. If the agency . . .
has direct responsibility for fostering or protecting that interest, it may reasonably be
presumed that the asserted interest was the actual predicate for the rule. . . .
Alternatively, if the rule were expressly mandated by the Congress or the President, we

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 might presume that any interest which might rationally be served by the rule did, in
fact, give rise to its adoption.”
★ Some federal action, like of Congress and the President, get deference. Admin agencies
do not.
★ Compelling gov interest/narrow tailoring for aliens. But when the feds do it, it’s not
dead upon arrival

Preemption with Alienage

“[S]tate regulation not congressionally sanctioned that discriminates against aliens lawfully
admitted to the country is impermissible if it imposes additional burdens not contemplated by
Congress.”

Toll v. Moreno (1982) (state preempted from denying in-state

tuition status to nonimmigrant alien)

Federalism and the Limited Scope of State Interests with Alienage

States cannot impose restrictions that conflict with “overriding national policies in an area
constitutionally entrusted to the Federal Government.”

Graham v. Richardson (1971); see, e.g., Plyler v. Doe (1982) (rejecting

Texas’s claim of legitimate state interest in denying undocumented
alien children the right to attend public school free of charge...education is too
important)

Poverty/wealth is not a suspect class. But the Court has some anxiety about these
classifications, so they’ve ruled on certain things. (Gideon v. Wainright)

Sometimes, rational basis review has claws. See Cleburne and Romer.

Age

★ Massachusetts Board of Retirement v. Murgia (1976) (upholding mandatory retirement

age for police officers)

Wealth

★ San Antonio School District v. Rodriguez (1973) (upholding school funding based on
property taxes)

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 Disability

★ City of Cleburne v. Cleburne Living Center (1985) (striking down application of zoning
ordinance against group home for the mentally retarded on rational basis review;
holding no suspect class.

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