Constitutional Law: Exam Outline

Exam: Hard-copy limited open book; essays (issue spotters, maybe policy); 1 double-sided page
of previously prepared notes; no outline
1. Material
2. Things Not to Forget
3. Themes & Notes

Material (Structure of Constitution/Government & EPC/DPC):

Introduction to Constitutional Law

Constitutional Review by the Federal Judiciary

Vertical Distribution of Powers: Federalism

1. Enumerated Powers
2. The Commerce Clause
3. Other Powers (Taxation)
4. Enforcement
5. Federal Regulation of the States
6. Implied Limits on State Power (The “Dormant Commerce Clause)
7. Preemption
Separation of Powers Within the Federal Government
1. Presidential Power
2. Congressional Power
3. Judicial Power
Equal Protection
1. Introduction
2. Rational Basis Scrutiny
3. Race-Based Classifications
4. Gender-Based Classifications
Substantive Due Process
1. History
a. Introduction
b. The Lochner Era
2. Fundamental Interests Equal Protection
a. Procreation
 b. Travel
c. Welfare
d. Education
3. Modern Substantive Due Process
a. Privacy and Contraception
b. Abortion
c. The Right to Die
d. Sexual Orientation
State Action
1. Generally and Public Functions

Things Not to Forget:

 Don’t need to give an answer; analysis is the point, not outcome
 Segment the question, don’t think about it all at once
 IRAC:
 Learn the rules/tests
 Apply rules/tests to huge fact patters
 Write the issues, apply rule, and use facts from the hypo/question to rationalize
question and make sense of it
 No theory of ConLaw, just learn the doctrine
 Anything that Congress can take away is not a fundamental right
 Remember that rat’l basis accepts rationales/reasons that the govt didn’t cite for the
legislation—as long as there is one legitimate reason

Introduction to Constitutional Law

 Federalist #10 (Madison)

 Benefits of an extensive republic over a small one
 Concerning the problems of factions
 Problems start in small republics
 Heterogeneity as a positive good
 Bicameralism- the division of Congress into the House and the Senate with 2yr and 6yr
terms respectively
 Intended to ensure that some representatives would be relatively isolated from the
people and that others would be relatively close to them
 Political accountability in the House and a degree of independence in the Senate
 Federalist #51 (Madison)
 Separation of powers
 Checks and balances meant to prevent factionalism and self-interested representation
Constitutional Review by the Federal Judiciary

 Expressio unis- original jurisdiction for SCOTUS in some cases but not in other cases and
Article III didn’t permit extension of powers
 Judicial review- courts need rules of decision for cases which requires interpretation
 In Marbury v. Madison, SCOTUS claiming a final say over a narrow part of
governance; requirement of standing as a limitation
 Content of federal law affects the outcome of state law because of the Supremacy Clause
 Nothing in Constitution requires uniformity and no bias but related to the “general good” of
the country
 Statutes can only give original/appellate jurisdiction if Constitution allows it (Article III)

Federalism: Enumerated Powers

 In areas where Congress is allowed to act, its powers are plenary

 N&P = efficient means
 Article 1, Section 8: grants powers to Congress
 Article 1, Section 9: restricts Congress
 Article 1, Section 10: restricts the states
 Ends/means analysis- enumerated powers are ends rather than means, giving Congress the
power to employ appropriate means to reach ends (broad reading of Article I powers)
 Necessary doesn’t mean “absolutely” necessary because elsewhere in the Constitution, the
framers used the phrase “absolutely necessary”
 McCulloch Rule: start with the end and figure out if means satisfy the plainly adapted means
to the end; if so, it's allowed; make sure the means are constitutional

Federalism: The Commerce Clause

 For Commerce Clause cases, is the end that the government is pursuing related to the
regulation of interstate commerce?
 Formalism- the Court examined the statute and the regulated activity to determine whether
certain objective criteria are satisfied (often ignoring actual economic effects and actual
legislative motivation)
 Realism- an approach attempting to determine the actual economic impact of the regulation
or the actual motivation of Congress
 Sherman Antitrust Act- It prohibits certain business activities that federal government
regulators deem to be anti-competitive, and requires the federal government to investigate
and pursue trusts
 Fed. regulation of interstate commerce is plenary—so far as they can regulate, they can do it
as far as they want
 Commerce = intercourse, including navigation (Gibbons)
 If federal interstate regulation conflicts w/ state intrastate regulation, fed. trumps
 Intrastate that affects other states might turn into interstate commerce that can be regulated
 Commerce doesn’t stop at state borders—but how far into the state must it reach? What’s the
limit? Activities inside state affect other states
 Four approaches to congressional regulation of commerce (based on Lopez rule):
1. Formalist- crossing state lines, can regulate. (cite Champion); the use of channels of
interstate commerce (Gibbons v. Ogden, Shreveport Rates Case)
 Champion Rule: Congress can keep any product from crossing state lines;
once Congress has plenary powers, they can’t be restricted; power to regulate
commerce can mean the power to ban commerce
2. Stream of commerce- limited to instrumentalities of interstate commerce or persons
or things in interstate commerce, i.e., stockyard (Stafford and Wallace)
 In some ways, you can derive test 2 from 1 and 3. But the court did that in
Stafford, so the Court now does the analysis; a shortcut
3. Substantial effects test (does NOT cross state lines)- those intrastate activities
having a substantial relation to interstate commerce (Jones & Laughlin Steel) or those
activities that substantially affect interstate commerce
4. Aggregation/Substitution- only when you can explain connection between economic
and non-economic activity can you aggregate; can aggregate if there’s economic
activity or if there’s an economic substitute (once there’s aggregation, no need for
formalist test)
 Gibbons Rule: Commerce doesn’t just equal trade but includes navigation and exchange and
traffic and intercourse
 EC KNIGHT IS NO LONGER THE LAW
 Shreveport is good law (good for indirect analysis), Champion is still good law
 Jones: direct regulation extended to wages/hours (out of bounds in Carter but allowed here
b/c the firm is inherently crossing state lines)
 Wickard: direct regulation extended to output (based on aggregation theory)
 Darby: as long as the ends are legitimate, the means don’t matter (semi-overruling
McCulloch, which is all about the means)—overruled Dagenhart
 US v. Lopez: took away “direct effects” test
 If it’s economic activity, Wickard applies (aggregation + substitution); if not, then court
has to know if regulation has a substantial effect within state commerce
 Substitution- connects someone’s non-commercial activity w/ a commercial activity that
Congress can regulate

Federalism: Other Powers (Taxation)

 Article 1, Section 8, Clause 3 gives Congress the power to collect taxes ("taxing power") and
to pay debts and provide defense and welfare of the nation ("spending power")
 Taxes allowed, penalties are not allowed
 Limit on tax power—must be for public good/general welfare
 Four-part test for use of spending power (according to Dole)
 General welfare
 Unambiguous
 Related
 Independent constitutional provisions
 Butler: relationship between tax and spending is troubling
 Fine line between incentives and coercion; hard to build a meaningful distinction based on
Sebelius

Federalism: Enforcement

 Congress using enforcement to protect against the effects of legislation rather than the
purposes and can use it as a preventive tool and not just a remedy
 14th Amendment, Section 5 as the N&P clause of the 14th Amendment (congruence and
proportionality)
 Congruence & proportionality- for remedial statutes; remedy has to be specific to the
problem and needs to be proportional; applied when Congress is enforcing Section 5 of 14th
Amendment (City of Boerne Rule)
 Congress doesn’t have plenary power for enforcement
 2 ways to read it: the Court chooses the means or Congress has broader power to figure out
the best means
 Don’t need congruence/proportionality standard if it fails rationality (Shelby)
 Rationality is a very low threshold to satisfy but it’s also relative

Federalism: Federal Regulation of the States

 10th Amendment represents federalism generally

 Not clear if the treaty power gave Congress the right to do more than make a treaty
 Can’t force states to regulate; concerned about accountability
 Two categories of 10th Amendment cases:
 Congress trying to regulate individuals
 Congress trying to regulate state as a state (more restricted, doesn’t take Commerce
Clause into consideration)
 If Congress actually regulates interstate commerce, it’s a preemption case

Federalism: The Dormant Commerce Clause

 Dormant commerce clause- implied preemption in the face of congressional silence

 Protectionist concern for retaliation between the states; promoting free trade is important
 Commerce clause is a grant of power to Congress, not a restriction on state power
 SCOTUS has still struck down state and local laws violating that interfere with interstate and
foreign commerce
 When a statute promotes economic protectionism of a state, it is invalidated per se by
Commerce Clause
 Two political process problems:
 Taxing a national entity
 Taxing people in another state
 If intent is discriminatory/protectionist, then a virtual per se rule of constitutionality
applies
 If there’s a discriminatory effect, need to figure out if ends could be reached through
less discriminatory-effecting means
 Standard for facially discriminatory legislation:
 How important/legitimate is the state’s end/purpose?
 Compare the importance of the end to the discriminatory effect; court is usually pretty
deferential in most cases; burden on state commerce must be significant
 Shorthand rules for dormant commerce clause and state regulation:
 Discriminatory/protectionist end = virtual per se rule
 Discriminatory effect = “clearly excessive” (balancing test with deference to the
state)
 Discriminatory means = legitimate purpose (not discriminatory) and must find
equally effective non-discriminatory means; a tailoring test (Maine v. Taylor)
 Protectionist- means are discriminatory and intended at some level to protect in-state market
from out-of-state markets
 How the prohibition is structured will determine which test the court will apply
 City of PA Rule: if a regulation has protectionist purpose, per se unconstitutionality; if
regulation is facially neutral, substantial burden on interstate commerce means
unconstitutionality; look for less restrictive means too (discriminatory means)
 Exxon Rule: discriminatory effects means unconstitutional
 If looking at the size of the burden, follow burden rule from City of PA (when not focused on
discriminatory intent but the size of the benefits to the state)

Federalism: Preemption

 Preemption- the invalidation of a state law that conflicts with Federal law
 Supremacy Clause creates preemption principle
 Preemption principles include “the well-settled proposition that a state law is preempted
where it “stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress’” (285)
 The more detailed the federal scheme, the more likely it is to preempt state law
 3 types of preemption:
 Express preemption- express preemption within a statute; when a federal statute
contains a provision specifically referring to preemption and indicating which state
laws the national statute supplants
 Field preemption- pervasive federal regulation and dominant federal interest,
preemption is assumed; when federal regulation is so pervasive that it's reasonable to
infer that Congress left no room for states to also regulate in the field (Nachbar
believes this is a subset of conflict preemption, including “legal impossibility”)
 Conflict preemption- logical impossibility to comply with both federal and state law
when compliance with both state and federal statutes is a physical impossibility or
state law stands in the way of accomplishment and execution of full purposes and
objectives of Congress
 AZ v. US Rule: Nachbar could not discern a rule, the problem with preemption
 With every federal law, you have to see if it’s constitutional and if it’s a valid exercise of
federal power
Separation of Powers

 Separation of powers promotes efficiency and prevents tyranny

 Formalist- believes that separation of powers doctrine is governed by relatively clear rules
that demarcate separate spheres of governmental authority
 Functionalist- believes in a more fluid approach that prohibits "aggrandizement of power" or
“undue mingling of functions,” but that allows some overlap and is more receptive to
changing the boundaries so as to deal with changing situations
 Legislative vetoes are one of the ways Congress tries to control the powers that it has
delegated to other agencies
 Other means included changing an agency's budget, attaching conditions to federal
funds, etc.
 Youngstown Rule:
 Three categories of presidential action (all President’s power minus powers that
Congress can take away):
 With Congress
 In opposition to Congress
 Against Congress
 No good answer for main question about presidential powers limitations; just a
way of thinking about the problem of the scope of presidential power
 Chadha Conclusion:
 Bicameralism and presentment apply when rights have been adjusted
 Looking at the branch and figuring out how they act
 Myers Rule:
 When cases involve other officers, violations occur when Presidents’ ability to
remove executive officers at will is prohibited (ex. Postmasters are executive officers
serving the President and can be removed at will; Congress can’t give them terms)
 Formalist approach (like in Humphrey’s Executor)
 Bowsher Conclusion:
 Looking to the action (which was executive in this case), which branch it fits in
(executive), and then the requirements (reverse Chadha—opposite analysis, same
result)
 Morrison v. Olson Rule:
 Congress can limit presidential removal of some officers
 Using a balancing test rather than a per se test
 As long as it doesn’t significantly interfere with central element of executive branch’s
powers/ duties
 2 step analysis:
 Looking at the specific job (no policymaking authority, must be insulated
from political power)
 Not a serious limitation
 Neither formalist (#1) nor functional (#2) analysis, more consequentialist (#3)
 Use a functional test when it comes to appointment of inferior and principle officers
 One level of “for cause” removal is okay, 2 levels is too much
 If an officer is purely executive, have to determine if they’re principal (they make
binding authority or are responsible to the president) or inferior (which means they can
be appointed by diff’t executive officers)
 Congress can put limitations on quasi-legislative/executive officials

Equal Protection: Introduction

 Which classifications are permissible under particular circumstances?

 3 basic questions for courts to review:
 How has the government defined the group being benefited or burdened (the question
of “means”)?
 What is the goal the government is pursuing (the question of “ends”)?
 Is there a sufficient connection between the means the government is using and the
ends it is pursuing (the question of “fit” or “nexus”)?
 “Providing similar treatment to two groups will not result in equal treatment if the groups are
not similarly situated” (501).
 Equality can be measured with respect to (a) formal treatment or (b) outcomes
 Possible ends that the EPC prohibits:
 Expressions of animus or disapproval
 Classifications can be inappropriate if they are over-inclusive and/or under-inclusive
 If you can’t justify the distinction, there’s an EPC violation

Equal Protection: Rational Basis Scrutiny

 Applied unless related to race (strict scrutiny) or gender (intermediate/heightened scrutiny);

rat’l basis for everything under EPC except those two exceptions
 Interpreted to apply to both federal and state governments
 How close does govt have to be using a proxy to what they’re trying to regulate (legitimate
govt interest)? (Beazer—methadone)
 Fit is a question (how closely the means fit the end) of over/under-inclusion; but means must
be related to the ends
 Two ways to solve a rational review case:
 Use means-ends analysis itself (Is it onerous or inefficient imposition to attempt to
achieve legislative ends)
 Use ends analysis (court is a bit confusing on the matter)
 As long as there is at least one legitimate reason for the legislation (one rational reason),
it passes rational basis, even if it’s not the reason the govt purported or intended (Clover
Leaf Creamery, Lee Optical), unless the court uses rat’l basis plus to find an insidious
underlying motivation (Moreno, City of Clebourne)

Equal Protection: Race-Based Classifications

 Right to vote (political right) vs. right to sue (civil right)—(Dred Scott)
  Substantive due process- a law that would deprive you of a fundamental right is
invalid regardless of the amount of process because the substance of the process is
illegitimate
 Plessy itself doesn't require the equality of separate facilities
 Sweatt & McLaurin (provide real EPC breakdown):
 Exchange/interaction as part of quality makes it logically impossible to maintain
separate but equal
 If using SS to find subterfuge (insidious reasoning) underlying a law, probably for facially
neutral classifications
 Strauder Conclusions:
 Not about level of discrimination but fear of harm and who is actually being harmed?
What is the harm?
 Loving v. Virginia Rule:
 Discrimination itself is not a legitimate govt interest
 Washington v. Davis Rule (the main 14th Amendment race rule of 20th Century)
 Apply if the legislation is facially neutral; with benign interests, heightened scrutiny
for intent
 A discriminatory effect ≠ a discriminatory ban
 Factors for an invidious discriminatory purpose are:
 The totality of the relevant facts
 The law must actually bear more heavily on one race than another
 If discrimination is difficult to explain on nonracial grounds
 Exception to the rule are if there are extreme effects from the race-based
classification
 Facially discriminatory means AND intent means no need for SS (unconstitutional
automatically except for some exceptions, i.e. affirmative action); YOU NEED TO
HAVE INTENT
 SS used to determine intent
 Discrimination against a historically favored majority—sometimes okay for a compelling
government interest
 Conclusions from Swann:
 The constitutional violation stemmed from purposeful state manipulation of schools'
racial composition
 The scope of judicial power was limited by the scope of the constitutional violation
 Once a school district achieved "unitary" status, judicial intervention should cease
 PICS Rule:
 Two permissible compelling interests:
 Remedying effects of past intentional discrimination (harm must be traceable
back to segregation)
 National security
 Diversity in higher education; and should only be highly individualized and
holistic review (can't classify by groups and can’t use in lower education)
 Racial balancing is NOT a legitimate govt interest
 SS for individual-based race classifications, no SS for group-based classifications
(not allowed)
 th
14 Amendment protects individuals, NOT groups
Equal Protection: Gender-Based Classifications

 Craig v. Boren Rule (beer case):

 Rejected government objectives:
 Avoiding intrafamilial controversy
 Reducing workload of probate courts, etc.
 Can’t base legislation on overbroad/archaic stereotypes
 Intermediate scrutiny test: important governmental objectives; substantially related to
achievement of those objectives
 Historical argument for gender only cuts against women
 Heightened scrutiny- the means must be substantially related to the interests; must be your
actual justification, not just any justification (VMI Case)
 Califano v. Goldfarb/ Webster: Who is harmed? Based on whether you’re anti-subordination
or anti-stereotype

Substantive Due Process: History

 Implied vs. express rights

 Slaughterhouse:
 Not clear court has a coherent theory about privileges or immunities
 Overlap of two different problems:
 Structure meets rights (concern by the court about relationship between
federal courts and states. If court recognizes broad Ps or Is, it means
individuals can question state power in federal courts)
 Fundamental rights? (are there certain things governments can’t do even
though there’s been no explicit limitation – a fundamental right))
 Federalism + fundamental rights
 Practically, Slaughterhouse has minimum impact
 14th Amendment is the source of the rights now (under DPC, which gains substance,
not just procedure
 McDonald v. City of Chicago: Use of selective incorporation (only for the 2nd Amendment
in this case, unclear if it's limited to the original 8 or not)

Substantive Due Process: The Lochner Era

 Vested rights doctrine- rights that legislature can’t deprive you of—starting to look like
EPC giving one person a right and not another; vested rights distinguished from other
rights—can’t take them away without due process
 Don’t need DPC to solve Lochner, you could use EPC (difference between bakers and other
people)
 By 1937, the Court had abandoned Lochner reasoning; overruled but not complete anti-
precedent
 West Coast Hotel: overruled Adkins/Lochner
 Recasting the effect as an externality on society
 Modern fundamental rights are not economic in nature for the most part

Substantive Due Process: Fundamental Interests

 Procreation:
 Buck v. Bell: “Three generations of imbeciles are enough” (Justice Holmes)—
(sterilization)
 Skinner: concurrence more focused on procedure of DPC than substance
 Travel:
 Saenz v. Roe Rule (reaffirmed Shapiro):
 Three components of right to travel:
 The right to enter and leave another state
 The right to be treated as "a welcome visitor rather than an unfriendly
alien when temporarily present" in another state
 The right to be treated like other citizens when one becomes a
permanent resident
 Dandridge Rule: when you have a non-fundamental right and a fundamental right,
court has to figure out which is being burdened and usually use a constitutional
valuation
 Welfare:
 NO fundamental right to welfare
 Courts typically now use rational basis review for welfare classifications
 Education:
 Plyler: education is a benefit but not a right
 Local taxation and local control—must have both for locality argument to work
 Carolene Products (footnote #4):
 Possible suspect classes: race, gender, illegitimacy

Substantive Due Process: Modern Substantive Due Process (Privacy and Contraception)

 Don’t use penumbra idea anymore

 Privacy/Contraception:
 Skinner and Griswold: a right to reproductive choice
 Griswold does NOT say that marriage is a fundamental right
 A right to privacy within sex and marriage (Griswold, zone of privacy; Carey, a
question of non-interference, not privacy)
 Abortion:
 Roe: preventing exercise of right to reproductive choice is not a legitimate govt
interest (locus of the right in14th Amendment)
 FREP cases- fundamental right and equal protection (when there are two diff’t rights
at play; ex. Travel conflicting w/ welfare, bodily integrity and reproductive freedom)
  No fundamental right to abortion but a right to obtain an abortion w/o substantial
burden (Casey)
 Casey Rule:
 State can restrict abortion in favor of interests for maternal health and fetus as
long as they don’t place undue burden pre-viability (when a woman can
terminate pregnancy); after viability, state can regulate/ban abortion b/c of
interest in the fetus regardless of undue burden as long as there’s an exception
for maternal health
 Health of mother and fetus as compelling interests pre-viability if no undue
burden; if an undue burden, then can only regulate for maternal health pre-
viability
 Undue burden test is the only moment when state needs a compelling
reason, otherwise, state doesn’t have to have a compelling reason
 Gonzalez v. Carhart: facial challenge (community) vs. as applied challenge
(individual)
 A right to bodily autonomy
 The Right to Die:
 No fundamental right to die, but a right to refuse treatment
 Cruzan doesn’t establish that there’s a fundamental right to refuse treatment (more
procedural)
 Glucksberg Rule: deeply rooted in history + implicit in the concept of liberty
 Sexual Orientation:
 Fundamental right to adult, consensual sex and to privacy without criminal
interference by the state (Casey)
 Eisenstadt- Kennedy focusing on the intimacy of the relationship
 Rational basis applies in sexual orientation cases (sometimes rat’l basis plus)
 Open question as to whether homosexuals are a suspected class

State Action: Generally and Public Functions

 Detailed inquiry to determine state action jurisprudence:

 (rarely) if the court finds that a private actor must be subject to constitutional
requirements because the state has delegated a traditional state (or "public") function
to a private entity
 If the court finds that a private actor must be subject to constitutional requirements
 Because the state has become entangled with a private entity
 Or because the state has approved, encouraged, or facilitated private conduct
 Three ways to read Shelley:
 There’s no state action
 There is state action but through someone else’s intent which means it can’t be state
action (can’t attribute individual’s intent to the state)
 Could read it broadly but incorrect