Constitutional Law Outline Fall 2018

A. Article III: The Judicial Power- Creates federal judiciary. Allows for a supreme court, and for congress
to create inferior federal courts. Can hear all cases arising out of constitution, treaties and laws of
United States.

1. Judicial Review- Power of judiciary to review statutes for constitutionality. Branches vested with
enumerated powers, role of judiciary is to ensure the balance of powers between branches.
1. Marbury v Madison- Undelivered commission of political appointment by outgoing president.
Asking for writ of mandamus so appointment can be granted. Judiciary Act of 1789 Unconstitutional, as
it expands SC jurisdiction outside of jurisdiction allowed in constitution. Judiciary can provide remedy
against the executive when there is a specific duty to an individual, but not when it involves a political
matter left to executive discretion.

2. Limits on Federal Judicial Power

a. Interpretative Limits
Originalism- When interpreting the constitution judges should confine themselves to enforcing norms
that are state and clearly implicit in the Constitution.
Non-Originalism- Should go beyond the set of references and enforce norms that cannot be discovered
within the literal writings of the Constitution.
1. District of Columbia v Heller- Prohibition of handguns in the home violates 2nd amendment.
Scalia provides an originalist approach, breaks the amendments language down into two clauses and
then further dissects them to support his argument. Dissents argue that language supports firearm
ownership only in the context of militia involvement.

b. Congressional Limits Exceptions and Regulations Clause Art 3 Section 2- Allows congress to remove
jurisdiction from SC by passing statute.
1. Ex Parte McCardle News paper editor arrested for being critical of reconstruction. Congress
passed legislation preventing SC from reviewing writs of habeas corpus leaving SC without jurisdiction to
hear the case.
2. United states v Klein Court created by Congress to return seized property during the civil war.
If a petitioner was pardoned, the SC saw that as proof that they did not aid the rebel cause, which would
entitle them to the return of their property. Congress responds by removing jurisdiction from the court
in cases with pardons. Separation of Power- Congress cant infringe on the power of pardon that is
constitutionally mandated to the executive branch. Would result in government winning property
seizure cases in examples with pardons.
3. Robertson v Seattle Audubon Society- BLM selling land with harvesting restrictions. Klein only
applies when Congress is attempting to effect outcomes of pending legislation, and not when the pass a
new law that effects pending cases.
4. Bank Markazi v Peterson- Congress passing legislation making Iranian possessions in America
available for liquidation to pay for judgements. Found to not be a violation of the separation of powers,
as it created a new legal standard.

c. Justiciability Limits- Constitutional, or prudential limits on the courts power to adjudicate. Used to
separate powers of the branches, for judicial efficiency, fairness, and to ensure a controversy exists.
i. Prohibition on Advisory Opinions- Federal courts can not issue advisory opinions on the
legality of statutes or actions. Requires that there be an actual dispute, and not a hypothetical legal
question. Requirement that a decision in their favor will bring about some change or effect.
 1. Hayburns Case- Congress passes statute allowing veterans to file pensions with circuit court
judges, statute not found unconstitutional, but judges found the practice of giving opinion on pension
earnings to administrators was unconstitutional.
2. Plaut v Spendthirft Farm – Congress extends the time in which litigation involving securities
law could be brought. The court found the statute unconstitutional as it violated the separation of
powers between legislative and judiciary.
Avoidance Principles
1. Courts will not anticipate a question of constitutional violation in advance of necessity
2. If there is another ground which case can be adjudicated, use that route before constitutional
inquiry.
ii. Standing determination whether a specific person is the proper party to bring a matter to the court
for adjudication. Used on the basis of separation of powers, to ensure a proper and limited role for the
judiciary branch, and to not usurp powers of political branches.
Constitutional Requirements- Standing requirements that can not be change by statute, derived from
Art 3.
1. Injury- Plaintiff must allege that they (personally) suffered or imminently will suffer an injury.
2. Causation- Plaintiff must allege that the injury is fairly traceable to the defendant’s conduct.
3. Redressability- Plaintiff must allege that a favorable federal court decision is likely to redress
the injury.
Prudential Requirements- Can be overridden by statute
1. Parties may assert only their rights and can not raise the claims of third parties.
2. Plaintiff may not sue as a taxpayer who share a grievance common with all taxpayers.
3. A party must raise a claim within the zone of interests protected by the statute in question.

1. Allen v Wright- Parents of black public school children allege that the IRS is not denying
discriminatory private schools tax exempt status therefore contributing to discrimination in school.
Court finds that the parents do not have standing. “Injury has to be distinct and palpable not abstract or
hypothetical” P argues that the IRS is subsidizing discrimination which injuries racial minorities. The
court finds no standing for this argument because anyone could bring this action. The court however
finds the second argument, that because of the funding public schools are likely to become less
integrated, but the argument fails the causation prong of standing. Relationship between the Injury and
the D actions are too attenuated.
Dissent- Standing is met. The P have sufficiently alleged an injury, that is traceable to the conduct of the
IRS. Gov subsidizing private schools leads to white children going to those schools.
2. Massachusetts v EPA The court grants standing to MA and allows them to sue the EPA for not
regulating green house emissions in motor vehicles creating a larger impact on global warming. Injury-
Rising sea levels are causing coastal flooding and damage to the state. Causation- 6% of carbon
emissions are caused by vehicles within the US. Redressability- Will more regulation on cars stop
climate change? No, action and regulation are required to solve the problem.
Dissent- Finds injury to speculative, climate change affects the entire world, and each industrialized
countries also produce carbon that impacts sea levels. Redressability- Regulation will only affect new
vehicles, which will slow carbon emissions very slowly.
3. City of LA v Lyons P seeking injunctive relief after police put him in a chokehold. P has
suffered an injury, but cant prove that the injury for the injunction is imminent. The court finds that the
injury that happened to him is unlikely to happen again. Does anyone have standing to stop
chokeholds?
4. Lujun v Defenders of Wildlife- P suing because American funded activities abroad are
increasing the rate of extinction of protected species. The P claim that the wish to visit the animals, and
have visited the animals in the past. Injury requirement needs to be imminent. Redressability- also an
issue. Funding from American agencies are only a small portion of the project.
Dissent- Very formalistic approach to standing.

iii. The Political Question Doctrine – Questions that the court deems inappropriate for judicial review.
Defer to political branches to solve these issues.
Justifications- 1. Keep the courts political impartiality. 2. Political branches more adept at
dealing with certain issues. 3. The courts self interest disqualifies them from hearing cases. 4. Separation
of powers- minimizing judicial intrusion on political branches.
1. Baker v Carr- Malapportionment case involving the gerrymandering of districts. Should courts
be involved with the redistricting of political boundaries? Previous cases have rejected
malapportionment cases on the grounds of the Guaranty Clause – Art 4 $ 4- guarantees a republic form
of government, and protects states against invasion. Here the court deems that malapportionment
violates the 14A equal protection clause. One man= one vote.
Six Part Political Question Test
1. Textual proof that Const gives issue to a political department.
2. Lack of judicially discoverability and standards for resolve.
3. Impossibility of deciding without initial policy determination showing non judicial discretion.
4. Impossibility of independent judicial resolution without distracting other branches.
5. Unusual need for unquestioning adherence to political decision already made.
6. Potential of embarrassment.
Dissent- Violation of separation of powers. SC has ruled that these cases can not be heard under the
Guaranty Clause. Elected officials should be in charge of drawing voting districts.
2. Vieth v Jubeliver- Gerrymandering non justiciable Earlier decisions have found
gerrymandering justiciable, but the court has not found a way to implement a standard to approach the
issue, and has now made it non justiciable. Majority concerned with Baker factor 2.
Kennedy Concurring- This case can not be resolved, but a standard can be reached in the future.

Political Doctrine Question in Impeachment- Challenges to impeachment are not justiciable.

1. Nixon v United States Federal judge convicted on criminal charges refuses to resign and
continues to collect his salary while in prison. Art 1 $ 3 cl 6- senate has sole authority on impeachment
proceedings. Requires a 2/3rds majority of the senate. Would be a violation of the separation of
powers.

B. Article I: The Legislative Power- “All legislative power herein granted” Congress may act only if there
is express or implied authority to act in the constitution, states, however, may act unless the
Constitution prohibits the action.
1. Does Congress have the authority to act under the Constitution to legislate?
2. If so, does the law violate other constitutional provisions such as separation of powers, or
interfering with individual liberties?
10A- Powers not delegated by the Constitution to Congress are reserved to the states.
Section 8- Grants Congress the Sword and the Purse- Taxes, and general defense.
Clause 3- Commerce Clause- Regulate commerce among the several states
Clause 18- Necessary and Proper Clause- To make all laws necessary and proper to carry
out execution of enumerated powers.
1. McCulloch v Maryland- Can Maryland collect taxes on the bank of United States. 1. Does
Congress have the power to create a bank? 2. Is the state tax on the bank Const. While there is nothing
3in the constitution about creating a bank. The Necessary and Proper Clause is used as a means to
enforce enumerated powers. Nobody questions the power of the post office, or the power of
punishment. Necessary not used in a rigid sense, but more to mean convenient, or useful.
“Let the end be legitimate, let it be within the scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter
and spirit of the constitution, are constitutional.”
Maryland can also not tax the bank. The power to create comes with the power to destroy. And it would
be unconstitutional for a state to tax the bank to destruction.

1. The Commerce Power – Art 1 $ 8 Congress shall have the power to regulate Commerce with foreign
Nations, and among the several states.
1. Use of channels of interstate or foreign commerce being misused?
2. Protection of instrumentalities of interstate commerce? – persons or things
3. Activities that have a substantial effect on interstate commerce
Three Questions for Commerce Clause Issues.
1. What is Commerce? 2. What does among several states mean? 3. Does the 10A limit
congressional power over the states?
1. Gibbons v Ogden- Initial expansive view of the commerce clause. NY state grants a monopoly
on steamboat operations in NY waters. Challenger claims he is federally licensed and has a right to use
waterways. Court finds for the challenger, finding NY monopoly to infringe on interstate commerce.
What is commerce- More than buying and selling, but intercourse between states. Including navigation
What is Among the States- “among” means intermingled. Doesn’t stop at state boundary but may be
introduced into the interior. Congress can regulate intrastate commerce if it has an impact on interstate
activities.
10A as a limit?- No, power to regulate has no limitations and is complete.
Commerce Clause from 1890-1937- SC limits federal commerce power.
What is Commerce- Narrow Definition. Buying, selling, but not mining or manufacturing. Cant
regulate industries, labor standards, monopolies under CC
Among the States- Must be direct effect on interstate commerce. Loose distinction between
indirect/direct. Setting intrastate railway fees- direct impact on interstate commerce. Labor standards
and health and food safety regulations- indirect impact on commerce.
Does state sovereignty limit federal power?- Congress can not regulate if it is intruding on the
zone of activities reserved for the states. Mining, manufacturing, and production- State zone.
Hammer v Dagenhart- Child labor law unconstitutional, as labor standards are police powers left
to the States to regulate. Dual Sovereignty- Both Federal and State government are sovereign powers.
Commerce Clause from 1937-1995- Broad federal regulatory power.
1. NLRB v Jones Laughlin Steel Corp- Mining company challenging the creation of the NLRB that
was created to allow workers to collectively bargain and dispute discriminatory treatment. Court
broadens the definition of commerce to include mining and upholds the legislation. Striking workers
and work stoppages affect interstate commerce.
2. United States v Darby- Challenge to constitutionality of the Fair Labor Standards Act.
Prohibited shipment of goods made by workers who were paid under a minimum wage. Congress can
pass legislation on labor standards. 10A does not limit congresses power, but instead is “just a truism
that all is retained which has not been surrounded.”
3. Wickard v Fillburn- In violation of the Agricultural Adjustment Act a farmer grew over his
quota over wheat for personal use. Court upheld legislation because of the cumulative effect on
interstate commerce of overgrowing wheat for personal production. Cumulatively homegrown wheat
had a substantial effect on interstate commerce.
Civil Rights Laws and the Commerce Clause
1. Heart of Atlanta Motel v U.S.- Hotel refuses to allow black travelers to purchase rooms. Court
upholds Civil Rights Act prohibiting discrimination by places of public accommodation. Discriminatory
practices deprived black Americans of secure lodging and slowed interstate commerce. Two part test
established. 1. Whether Congress had a rational basis for finding that racial discrimination by motels
affect commerce. 2. Whether the means selected to eliminate that evil are reasonable and appropriate.
2. Katenzbach v McClung- Family owned BBQ restaurant refuses to serve blacks. 46 % of meat
comes from out of state. Court finds that congress rationally concluded that discrimination by
restaurants cumulatively had an impact on interstate commerce.

Criminal laws and the Commerce Clause

1. Perez v United States- Criminal statute addressing the effects of loan sharking. D argues that
his operation took place solely in NY state and that his actions did not have any effect on interstate
commerce. The courts finds that Congress had a rational reason for finding that loan sharking effects
national interstate commerce and granted deference when upholding the statute.

Federal Minimum Wage Laws and the Commerce Clause

1. Nat’l league of Cities v Usury- Court declared unconstitutional an application of the Fair Labor
Standards Act which required minimum wages to state and local employees. Court found that it violated
the 10th Amendment- “operates to directly displace the States freedom to structure integral operations
in areas of traditional government functions.” Minimum wage laws would require state governments to
either raise taxes or cut spending which infringed upon traditional state and local government functions.
10th Amendment Test- For a federal law to violate the 10th Amendment, it must address matters that
are indisputably attributes of state sovereignty, it must directly impair the State’s ability to structure
integral operations in areas of traditional government functions.
10th Amendment as a prohibition of commerce clause power
2 Garcia v San Antonio Metro Transit Authority- Overrules Nat’l League of Cities. No established
criteria of what a traditional state government function is. Violation of sphere of powers- allowing
judiciary to decide which regulations should be upheld. Holds- State immunity on Federal regulation can
not be granted by the 10th Amendment. States receive many benefits from the Federal government
through grants, and they have lobbied successfully for many exemptions on the commerce power. The
political process is working, creating checks and balances of the federal structure.
Dissent- Reduces 10th Amendment to meaningless rhetoric. Political process is not the proper means of
enforcing constitutional limits on congress.

1990’s Narrowing Commerce Power and the Revival of the 10th Amendment.
1. U.S. v Lopez- Challenge to the Gun Free School Zone Act that made it a federal offense to
possess a firearm in a school zone. Gov argues that possession of firearms does affect interstate
commerce. Costs of violent crime affects insurance rates which spreads cost among society. Violent
crime reduces travel to areas that are deemed to be unsafe. Further by threatening the environment of
education, citizen will be less productive. The Majority finds that possession of a firearm is not
substantially related to interstate commerce. Sharp swift in Commerce Clause battle. Majority argues
that if this is allowable under commerce power, Congress can regulate anything. States possess police
powers and are in charge of regulating behavior like this.
Thomas Concurring- Substantial affect test is wrong. Commerce should be defined as buying and selling
Stevens Dissent- The gun was an instrumentality of commerce. Guns cross state lines, it was
manufactured and sold elsewhere. The bullets also are part of commerce.
Ginsburg/Breyer Dissent- Congress has the power to regulate commerce. Majority is not looking at the
cumulative affect of gun possession. The test is if Congress has a rational basis for finding a substantial
connection between gun related school deaths and interstate commerce.
2. United States v Morrison- Challenge to the victims against gender motivated violence
legislation. P raped by football player while in College, and the College did not punish appropriately. Gov
argues that because the P left college after the lax punishment, taken cumulatively gender violence
affects interstate commerce. When passing the legislation congress found that gender motivated
violence cost 3 billion a year, and constraints the freedom of women to travel. The majority finds the
law unconstitutional, granting this regulatory power will allow Congress to regulate all areas of life and
infringes upon the states rights of police power.
3. Gonzalez v Raich Does CC power allow for regulations prohibiting cultivation and use of MMJ?
Especially when the product is grown locally and used instate. Court references Wickard and finds that
the cumulative effects of locally grown and consumed MMJ would substantially affect interstate
commerce. Homegrown will affect prices in the black market, and the fed gov has an interest in
eliminating the use of MJ.
Dissent- States can be used as a laboratory for federal regulation. CA has used the political process to
come to its own conclusion on how MMJ should be handled. Congress is usurping state police power by
regulating something that is not commerce.

Does the 10th Amendment Limit Congress’s Authority?

1. New York v United States- Federal regulation controlling the disposal of low level radioactive
waste. Take Title provision requires states that do not comply with regulation must take title of all low
level radioactive waste in the state and will be held liable for damages caused bwill be held liable for
damages caused by it. NY arguing that the take title provision is a violation of the 10th Amendment.
Congress can incentivize states into action by providing federal funds for enforcing federal programs.
Can also override state regulations using the Supremacy clause. Majority finds the take title provision to
be coercive, leaving states with no choice put to comply. Congress cant use the states as an agent to
regulate people. If they are to make pass regulations they have to be held politically accountable, not
the state politicians.
Dissent- No 10th Amendment issue. Regulation is coming from the states to deal with problem of low
level radioactive waste, not an out of control Congress. Other states sovereignty is affected if NY doesn’t
handle the waste produced in state.
Congress can encourage states, but ultimately states must have the power to decide what to do.
2. Printz v United States- Challenge to provisions of a handgun regulation that requires
background checks to be done by State police chiefs. States argue that they are being used as a federal
agent. 1. Historical Analysis- Absence of precedent on this case, lack of Congress using state officers to
regulate. 2. Structure of Constitution- Dual Sovereignty/separation of powers. Constitution structurally
prohibits federal gov from using state officers as agents. 3. Court Precedent- NY v US- Cant command
state officers to administer a federal regulatory scheme.
Dissent- An emergency may require state officials to act on behalf of federal commands. Would the 10th
A bar this action? Act passed in a response to the emergency of gun violence in the country. 10thA
provides no restriction on the exercise of federal power.
3. Reno v Gonden- Limitation on Anti- Commandeering doctrine. Fed statute prevents the sale
of personal information by the DMV, P argues that this is a federal action using state actors to enforce it.
The court upholds that law finding that it does not require enacting policy but is instead a prohibition on
activity. Law is of general applicability- laws that apply to both individuals and states.
 4. Murphy v NCAA- Federal law prohibiting gambling in sports with grandfathered exemptions.
Court finds this a violation of 10th A. NJ voted the statute into place. The federal intrusion is a violation
of State Sovereignty.
Dissent- Law of general applicability that doesn’t require any affirmative enforcement form States.

2. The Taxing and Spending Power- Art 1 $ 8 gives Congress power to lay and collect taxes. Congress’s
power to tax and spend is a broad enumerated power, that can be exercised whenever Congress is
providing for the general welfare of the United States.
1. United States v Butler- Challenge to the Agricultural Adjustment Act of 1933 that set limits on
the production of crops and imposed taxes on production more than those limits. Congress has broad
power to tax and spend for the general welfare of the nation. Taxing/spending power is its own
enumerated power .
2. Sabri v United States- Challenge to federal regulation of organizations that receive 10k in
federal funds, and penalties on those who try to bribe officials of those organizations. Law Const, under
N+P Clause Congress has the ability to monitor federal investments. Money, being easily transferable,
can disappear from federal funds because of corruption. Upholding Spending Power.
Congress can use spending in any way to promote general welfare of nation.
3. South Dakota v Dole- Transportation funds attached to raising drinking age to 21. State argues
that the statue is coercive, and that state has no choice but to change laws. Spending power must fufill
4 criteria. 1. Must be in pursuit of the general welfare with deference to Congress. 2. States must have
choice and understand the consequences of participation. 3. May be illegitimate if they are unrelated
to the federal interest of the program. 4. Other const considerations.
Must be a relationship between the funding and the regulation.
Dissent- Too coercive. Only 5% of budget attached. 10th Amendment addresses coercion.

3. The Necessary and Proper Clause “Let the end by legitimate, let it be within the scope of the
constitution and all means which are appropriate , which are plainly adapted to that end, which are not
prohibitied, but consist with the letter and spirit of the constitution.”
1. United States v Comstock- Fed prisoners coming to the end of their prison term can be held
indefinitely if still sexually violent. The N+P Clause allows large volume of federal criminal laws to be
passed. They are a means to attain objective that are enumerated. Best to understand N+P as
convenient, not necessary. Relevant inquiry- Whether the means chosen are reasonably adapted to
the attainment of a legitimate end under the commerce power, or under other powers that the Cons
grants Congress the authority to implement.
2. Nat’l fed of Ind. Business v Sebelius- Const of the individual mandate as well as the medicare
expansion under the ACA. For the Individual mandate the Gov argues that the cumulative affects of the
uninsured substantially affect interstate commerce. Individual mandate is upheld under the broad taxing
power. The expansion of medicare is found unconstitutional as it is too coercive. Failure to expand
removes all funding for the program.
N+P must be used in conjunction with a valid exercise of an enumerated power

4. Powers under the Post-Civil War Amendments 13th- Outlaws slavery except as a form of punishment.
14th- Due Process Clause, and Equal Protection Clause, also allows for legislation to enforce the
amendment. 15th- Ensures the right to vote to all races and colors.
These amendments all contain provisions that allow Congress to enforce through proper legislation.
1. Can Congress Regulate Private Conduct under the amendments?
2. What is the scope of Congress power under these amendments?
 1. Civil Rights Cases- Amendments do not allow for the regulation of private conduct. Court
finds the Civil Rights Act of 1875 to be uncons, as it prohibited private discrimination. 13th Amendment
does allow Congress to regulate private conduct when concerning matters of slavery. The 14th
Amendment can only be used to regulate State Actions.
2. United States v Morrison- Does the 14th A allow for Congress to pass the violence against
women act? Majority finds the law unconstitutional because there is no state action.
Dissent- would uphold the law because the law is addressing failures in State criminal systems.
3. Katzenbach v Morgan and Morgan- Nationalist perspective of 14A Const of the Voting Rights
act in conflict with state law that only allowed English speaking citizens to vote. Majority takes an
expansive view of the powers of congress under the 14th A. Congress has the right to remedy private
discrimination and provide for equal protection, not just address wrongs done by States.
4. City of Boerne v Flores- Federalist prospective of 14A P’s wish to enlarge church, but not
allowed due to a zoning board decision. P suing under the Religious freedom restoration act, which
prohibits governments from substantially burdening a persons exercise of religion. RFRA requires Strict
Scrutiny to be used, Gov must demonstrate that 1. The prohibition is in furtherance of a compelling
governmental interest, and 2. Is the least restrictive means of furthering that compelling government
interest. SC finds the RFRA unconstitutional. Congress is limited to laws that prevent or remedy
violations of rights recognized by the SC, and these law must be narrowly tailored to the violation.
There must be congruence and proportionality between the injury to be prevented or remedied and
the means adopted to that end Congress can not interpret the constitution, only the judiciary.

C. Article II: The Executive Power

Section 1- Executive power shall be vested in a president.
Section 2. Cl 1- Commander in Chief Authority- Power to pardon, except in impeachment cases
Cl 2- Power to enter treaties with foreign government. Power to appoint federal officials.
Section 3- Allows president to purpose legislation. “Take Care Clause” – Take care that laws shall be
faithfully executed.
Debate over whether Art 2 grants inherent presidential powers. Proponents of inherent powers argue
that Article 2 doesn’t limited presidential powers to an enumerated list.
1. Youngstown Sheet and Tube Co v Sawyer- Did President have the power to seize steel mills to
ensure national security during the Korean War? Gov argues that the take care clause grants the
president the power to ensure that Congressional funds allotted for the war are spent properly. Four
different approaches of when President has inherent power.
1. There is no inherent presidential power, the president may act only if there is express
constitutional or statutory authority.
2. The president has inherent authority unless the president interferes with the functioning of
another branch of government of usurps the powers of another branch.
3. The president may exercise powers not mentioned in the Constitution so long as the
president does not violate a statute or the constitution.
4. The president has inherent powers that may not be restricted by Congress and may act
unless the constitution is violated.
Majority denies the existence of any inherent presidential powers. President needs express statutory or
constitutional authority. Therefore seizure of the steel mills was unconstitutional. The concurring
opinion by Douglas goes to number 2- unconstitutional because the president was usurping congress
power of spending when compensating the steel mill owners for seizure. Frankfurter concurring found
that the president violated a conscious policy choice by congress to not allow for the seizure of the mills.
Jackson in concurrence establishes three categories-
1. President acts with power granted by Congress. – His power is at the Max.
 2. President acts without congressional authority, and only on independent powers. -Twilight
zone, if Congress is indifferent president may have powers.
3. President acts without authority, no congressional approval. Power is at the least.

1. Inherent Presidential Power

1. U.S. v Nixon- In response to the Watergate hotel break in, Nixon argues that the inherent
power of confidentiality between the president and his advisors, precludes him from releasing
incriminating tapes. Court adopts a balancing test. Court balances the president’s powers and the rights
of the D. Failure to release the tapes is a violation of Due Process, and is disallowing the courts to
exercise their function of judicial review. The power of confidentiality is recognized, but it is not
absolute.

2. Congress’s Authority to Increase Executive Power Not Contained in the Constitution

1. Clinton v NYC- Challenge to the constitutionality of an act that allowed the president to veto
certain portions of bills while keeping others. The majority found this expansion of presidential powers
to be in violation of separation of powers. The president can not legislate.
Dissent- Extolls the practical need for the line item veto, and the changes in our government that
require more efficiency. When both the legislative and executive branch agree on legislation the
judiciary should not get involved.

3. The Non-Delegation Doctrine- Congress is tasked with making policy decision, not unelected
government officials. Congress needs to be the party accountable for policy choices. With the
enlargement of the government delegation to administrative agencies like the EPA become necessary.
1. Chada

4. The Appointment Power- Article 2, $ 2 provides that the president “shall nominate, and by and with
the Advice and Consent of the senate…. Appoint officials.”
Distinction made between Inferior/Principle Officers- Principle Officers are appointed by the President
with advice and consent of the senate, while Inferior Officers can be appointed by the president, courts,
or head of departments.
1. Morrison v Olsen- After the Watergate scandal congress authorized an independent council to
investigate high ranking federal officials. If the AG found the investigation to be worthy, a council would
be appointed to investigate just the federal officials in question. The majority found that the
appointment was of an inferior officer and gave four criteria. 1. Can this officer be fired- Yes the officer
can be removed by the AG. 2. Does the officer have limited jurisdiction? Yes the officer is limited to
investigations on high officials deemed appropriate by the AG. 3. Does the officer have a limited
tenure? Yes the officer has a limited timeframe to conduct the investigation. 4. Does the officer have
limited duties?
Dissent- The power to prosecute is an executive function. There is a separation of powers violation as
well, by giving appointed officials the power to appoint executive functions.
Congress can not grant itself the power to appoint.

5. The Removal Power- No express provision of removal power found in Constitution, but appointment
power comes implicitly with the power to remove.
1. Myers v United States- Firing of the postmaster in violation of a law that postmaster could
only be removed with advice and consent from the senate. SC found restriction on the removal of
appointed officials to be unconstitutional. President has wide authority to remove appointed positions.
Take Care Clause- President has a duty to faithfully to take care that laws are faithfully executed. Power
of removal not an enumerated power of Congress. “The power to remove.. is an incident of the power
to appoint.”
2. Humphreys Executor v U.S.- FTC officer removed by president. FDR wishes to remove the
officer to staff agency with his own personnel. FTC is non partisan commission meant to have officers
gain experience over time, and be independent from executive authority. FTC officer distinguished from
Myers because it is a body with quasi legislative and judicial power. Presidents Removal power is not
unlimited
3. Wiener v U.S.- War Claims Commissioner suing for backpay after being removed by President.
Court looks towards Congress’s intention for establishing the committee. Cites Humphreys, president
can not remove a quasi judicial/legislative officer for no reason but to place his own appointments in the
position.
4. Bowsher v Synar- Officer appointed by Balanced Budget Act. Act gave Congress sole authority
of removal of executive. Found to be a usurpation of executives powers Congress can not establish
bodies that enforce the law. Congress can not give itself the power to remove officers, must use
impeachment process
5. Morrison v Olsen- Restriction placed by Congress on the removal of investigating officer. AG
responsible for removal, but must be for “good cause.” Distinction drawn by removal of purely
executive officers that require removal by the president to fulfill constitutional duties, and quasi
legislative/judicial officers.

6. Checks on the President- Informal Checks- Political pressure by the public. Formal Checks- Civil suits,
criminal proceedings, and impeachement.
1. Richard Nixon v A Ernest Fitzgerald- Need for executive privilege- keep secret conversations
between advisors P seeking damages from presidents actions while in officer. After leaking the massive
over runs of Airforce budget P was fired in retaliation. Nixon says he takes responsibility for the firing,
but recanted a week later on that statement. President has absolute immunity in civil litigation from
acts done while in office Majority concerned that threats of civil litigation would make it impossible for
effective governing. Alternative remedies exist, impeachment, re election failure, scrutiny by press, etc.
Dissent- The president should enjoy absolute immunity in certain areas, but not all areas.
2. William Jefferson Clinton v. Paula Corbin Jones- P seeking civil damages for sexual assault
taken before presidential term. The court rules that the President does NOT have immunity for actions
outside of the scope of his official capacity in office. Pres argued that the trial should be delayed until
after his term as it would allow the judicial branch to interfere with the executive. The court responds by
saying that the litigation will not burden the president, and that no person is above the law. Court has
power to review executive and legislative decisions. Frivolous litigation disposed of quickly by FRCP
sanctions.
Absolute immunity in civil litigation for official acts- Nixon
No Immunity for unofficial acts taken before present- Clinton

Impeachment- Art 2 $ 4 HOR has sole power to impeach while the senate tries impeachments.

D. Important Miscellaneous Topics

1. The Privileges and Immunities Clause of Art. IV, §2- Citizens of each state are entitled to the privileges
and immunities of the citizens of several states. Clause limits the ability of a state to discriminate
against out of state citizens in fundamental rights or economic activities.
Only applies to citizens, not corporations or aliens.
Analysis- 1. Did a state discriminate against out of state citizens with regards to privileges and
immunities that it grants to one of its own citizens.
2. If discrimination exists, is their sufficient justification for it?
P+I protects- Fundamental rights- enjoyment of life, liberty, happiness, safety, etc.
Constitutional Rights
Economic Rights – “Ability to earn a livelihood”
1. Toomer v Witsell- Carolina Statute governing shrimp fishing. State granted fishing licenses to
residents for 25$, but 2500$ for out of state residents. State argues that the pricing reflects an interest
in conservation of fish. PIC meant to unite sovereign states into one nation. Court doesn’t believe the
rhetoric of conservation. A sufficient state reason needs to exist to justify the discrimination
2. United Building v City of Camden- City requires 40% of construction workers on city jobs to be
residents of the city. City argues that 1. Clause only applies to State Laws, and 2. Only applies to laws
that discriminate on a basis of citizenship. Municipal ordinances are subject to PIC- municipalities
derives its power from state, and it is difficult to distinguish between the two. 2. A person who lives out
of state does not reside in the municipality. While disadvantaged NJ residents do not have a judicial
remedy they have a remedy through the political process. State argues that the discrimination is to
counteract economic and social ills from urban decay. Issue remanded.
3. Lester Baldwin v Fish and Game Commission of Montana- Resident of MO can purchase an elk
hunting license for $4 while a non resident has to purchase a combination license at $151. States are
allowed to draw distinctions between in state/out of state residents. Elk hunting is a form of
recreational activity, and is not a means to make a living.
4. SC of NH v Kathryn A. Piper- NH limiting admittance to state bar to in state residents. P lives
on the boarder in VT. NH argues that Non residents are less likely to become familiar with local rules,
behave ethically, be available for court proceedings and be available for pro bono work. The court finds
that none of these arguments meet the substantiality test. NH allows for members who move out of the
state to keep membership.
Dissent- Practice of law fundamentally different from other occupations.

2. The Privileges or Immunities Clause of the Fourteenth Amendment

Application of Bill of Rights to States
1. Barron v Mayor and City Council of Baltimore- Protection of individual liberties in the Bill of
Rights applied only to federal government not to state and local governments. States have their own
constitutions that protect various rights. Barron sues city for taking his property without compensation.
5th A taking clause only applicable to property seized by federal government.
2. Slaughterhouse Cases- 14th A- “No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.” Dispute between whether the P OR I clause of
the 14th Amendment making Bill of Rights apply to states. Butchers sue after State grants a monopoly to
a slaughterhouse. Butchers argue that the restriction created involuntary servitude, deprived them of
their property without due process of law, denied them equal protection of the laws, and abridged their
privileges and immunities as citizens. Court narrowly interpreted all the newly enacted post civil war
amendments. 13th-14th are solely to protect former slaves.

3. State Action- Protections of individual liberties and equal protection requirements apply only to the
state government.
Arguments for- Protects private autonomy, allow private individuals to exercise their rights.
State Sovereignty/ Federalism- States can have rights placed in their own constitution.
Arguments against- Allow private individuals to trample on protected rights.
 1. Civil Rights Cases- The provisions of the 14th A apply exclusively to state action and NOT
private individuals. The Civil Rights Act of 1875 was found unconstitutional.
13th A- Applies to State Actions as well as private individuals.

Public Functions Exemption- A private entity must comply with the constitution if it is performing a task
that has been traditionally, exclusively done by the government.
1. Marsh v Alabama- D arrested for distributing religious literature on a main street in a
company town. Would have been an exercise of first amendment rights in on state owned, or public
property. The court finds that managing a city is a task held traditionally by the state government, and
thus constitutional amendments apply to the private conduct. The more benefits a private entity
receives by opening up his town to the public, the more constitutional liberties become attached.
2. Lloyd v Turner- D distributing anti Vietnam War pamphlets in a public mall. The majority finds
that operating a shopping mall is not a traditional government function, and therefore the constitution
does not apply to the shopping mall.
Dissent- Other groups are allowed to spread information in the mall. The mall is now taking place of the
city center, it is a meeting place for the public to congregate and spread ideas. The mall is making
determinations based on the content of the speech.
3. Jackson v Metropolitan Edison Co- Customer of electrical utility arguing that they had a Due
Process right to a fair hearing before termination of utilities. State government gave utility company a
monopoly, so they are acting as an arm of the state. The court finds that the constitution doesn’t apply
as operating an utility company is not traditionally the exclusive prerogative of the state.
4. Terry v Adams- Voting, white primary cases Private party holding primary elections in which
AA were excluded from voting. Winner of the primary often ran uncontested, and most elections were
won by the Jaybird party. TX could not exclude AA from elections because of the 15th amendment
guaranteeing the right to vote to all. Voting is an exclusive and traditional function of state government.
Discrimination by Jaybirds were unconstitutional.

Entanglement Exemption- Constitution applies to private actors if the government affirmatively

authorizes, encourages, or facilitates private conduct that violates the Constitution.
1. Moose Lodge No 107. V Iris- P refused service from chapter of fraternal organization because
he was black. P argued that by granting a liquor license to the lodge they affirmatively encouraged the
private discriminatory conduct. The court rules that licensing is not enough for the entanglement
exemption. Government licensing or regulating is insufficient for a finding of state action.
Dissent- License system achieved by quota, the scarcity of liquor licenses makes it impossible for black
patrons to obtain their own license. The regulation on liquor licenses requires fraternal organizations to
follow clubs charter which is discriminatory in nature.
2. Burton v Wilmington Parking Authority- DE operated a parking authority and leased
commercial space in it to a coffee shop that refused to serve AA. The court found that the state was
entangled with the private conduct to bar the coffee shop from that discrimination. The State and
coffee shop had a symbiotic relationship where customers of the shop would park and get coffee.
State Government as a lessor invokes the entanglement exemption.

4. Substantive Due Process in the Lochner era

Procedural DP- relates to procedural rights. Right to notice, consul, and fair hearings.
Substantive DP- Whether Gov has a justification for depriving a person of life, liberty, or property.
Amount of justification depends on what level of scrutiny the court is applying.
5th and 14th amendments- Neither the United States, nor state governments shall deprive any person
“of life, liberty, or property without due process of law.”
Economic liberties- Constitutional rights concerning the ability to enter into an enforce contracts, to
pursue a trade, to possess and convey property.
Contract Clause Art 1 $ 10- No state law shall infringe private right to contract.
1. Allgeyer v Louisiana- State law prohibiting insurance companies from contracting in state
without an office. The court found that the LA law interfered with the freedom to contract and violated
the DPC of the 14th Amendment. “The liberty mentioned in that amendment is deemed to embrace the
right of citizens to be free in the enjoyment of all his faculties, to be free to use them in all lawful
ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any
livelihood or avocation, and for that purpose to enter into all contracts which may be proper,
necessary, and essential to his carrying out a successful completion the purposes above mentioned.”

Lochner Era- Court striking down protective regulations for interfering with the private right of contract
1. Lochner v NY- Court declares a maximum hours requirement for bakers violated the DPC
because it interfered with the right to contract. Freedom to contract is a basic right protected by
substantive DP. Government can interfere with the right only to serve a valid police power: to protect
public safety, public health, or public morals. Judicial role is to scrutinize legislation interfering with
right to contract to ensure it served a valid police purpose.
Dissent- Bakers deal with occupational hazards, such as breathing in flour. Deference should be given to
legislature to provide for the safety of bakers.
After Lochner- Courts strike down laws providing for minimum wage, consumer protection, and union
protection.
2. West Coast Hotel v Parish- End of Lochner Era, same year court expanded CC powers.- Court
upholds a minimum wage law for women. The court used substantive dp to protect exploited workers
who had lesser bargaining power. Judiciaries role is to evaluate legislator and to uphold laws if they are
reasonable uses of police power.
3. United States v Carolene Products Co.- Court upholds the filled milk act, that prohibited
farmers from using vegetable oils in milk products. Economics regulations should be upheld so long as
they are supported by a conceivable rational basis. Footnote 4 is the beginning of the levels of scrutiny
applied to EPC and DPC.
4. Williamson v Lee Optical- Court upholds OK statute prohibiting an optician to fit lenses
without a prescription from an optometrist. Overturns TC striking down the law. The court gives large
deference to legislators. No economic liberty regulations will be struck down by the DPC.

E. Equal Protection -Challenges to the Federal Gov are governed by the 5th A, while challenges to the
State governments are made under the 14thA
Question 1: What is the Classification?- How is the government drawing a distinction among the
people.
Facial Classification- The discrimination exists on the face of the law. Ex. A law preventing AA
from serving on juries.
Facial Neutral but with a discriminatory impact- Law requiring police officers to be over 5’ 10’’,
not discriminatory on the face, but only 2 % of women meet this requirement. Requires both a
discriminatory impact, and a discriminatory motivation in creating the regulation. IMPACT IS NOT
ENOUGH.

Question 2: What is the Appropriate Level of Scrutiny? -Rational Basis Review, Intermediate/
heightened scrutiny, strict scrutiny
Strict Scrutiny- Discrimination based on race or national origin, and against legal aliens. Law is upheld
only if it is proved necessary to achieve a compelling government purpose. Must show that the
objective can not be achieved through less discriminatory methods. Burden of Proof is on the
government.
Intermediate Scrutiny- Discrimination based on gender, and against non-martial children. A law is
upheld under intermediate scrutiny if it is substantially related to an important government purpose.
The purpose does not need to be compelling, but just important. The means used need not be necessary
but must have a “substantial relationship” to the end being sought. Burden of Proof is on the
government
Rational Basis Review- Minimum level of scrutiny that all EPC cases are tried under. A law will be upheld
if it is rationally related to a legitimate government purpose. The means chosen only need to be a
rational way to accomplish the end. Burden of proof falls on the challenger.

Criteria for level of scrutiny applied

1. Immutable Characteristics- If discrimination is based on race, national origin, gender, or other traits
that can not be changed a higher level of scrutiny is required.
2. Political Representation- The ability of the class to protect themselves through the political process
3. History of Discrimination- Past discrimination. Whether the regulation in question reflect prejudice as
opposed to a legitimate government purpose.
4. Ability to contribute to society

Question 3 Does the Government Action Meet the Level of Scrutiny?

Evaluation of both the laws means and ends. For Strict Scrutiny the end must be deemed compelling for
the law to be upheld. For intermediate scrutiny the end has to be regarded as important. And for
rational basis review there just needs to be a legitimate purpose.
Relationship to the means and ends also evaluated.
Underinclusive- a law is underinclusive if it does not apply to individuals who are similar to
those to whom the law applies.
Overinclusive- if the law applies to those who need not be included in order for the government
to achieve its purpose.

Level of Scrutiny Gov. Interest Relationship between Burden of Proof

means and ends
Strict Scrutiny Compelling (actual) Necessary/ least Gov
discriminatory
Intermediate Scrutiny Important (actual) Substantial Gov
Rational Basis Legitimate (any) Rational Challenger

1. The Rational Basis Test- 1. Is the Government pursuing a legitimate interest? 2. Is the relationship
between the means and ends rational. Deferential to legislators. Very rarely does a law become
invalidated under this test. Public Health, safety, morals, financial, police power, are all rational
interests
1. Romer v Evans- Challenge to amendment to CO constitution removing protections from gay
people. Court applies rational basis test, but finds no legitimate interest in the amendment. Court
instead found that the amendment was passed through animus against gay people. Animus will not be
sustained under RB, but court may have been applying a test with more bite.
2. Railway Express v New York- Underinclusive Regulation prohibiting advertising on trucks
unrelated to the business of that truck. State argues that the regulation was passed in the interest of
safety, to reduce distracted driving, and lessen accidents. Under RB gov does need to choose means that
are closest to their desire ends.
3. NYC Transit v Beazer- Overinclusive Policy decision to not employ those in methadone
treatment programs. Gov argues that they can draw policy decisions to make hiring more efficient.
Tolerance for overinclusive laws- policy is overinclusive because many in methadone treatment
programs are as reliable as other drug free employees.
Dissent- Law to overinclusive, other factors may affect safety.
4. USDA v Moreno- Challenge to a change in food stamp program that prohibits those living with
a non family member from collecting benefits. Gov Interest- prevent fraud, not condone volatile and
unstable living arrangements. The court finds that the interest in preventing fraud is checked through
other provisions and the change in the program was created because of animus towards hippies, and
not wanting communal groups to be eligible for benefits.
5. City of Cleburne, TX, v Cleburne Living Center- Court found a city ordinance preventing a
special needs care home to be unconstitutional. Rational basis review used for the mentally
handicapped. City interest- proximity to school may attract negative attention. 2. Home is on a flood
plain. 3. Negative attitude of neighbors. 4. Size of home. The court finds all of these interests to be
irrational.

2. Classifications Based on Race and National Origin- Strict Scrutiny 1. Compelling gov interest. 2. Means
must be necessary to achieve the ends- are they the least discriminatory alternative.
1. Dred Scott v Sandford- SC declares the Missouri compromise unconstitutional, and broadly
held that slaves were property and not citizens. Dred Scott, a freed slave, was suing for his freedom in
federal court. Slaves were not citizens and thus can not invoke diversity jurisdiction.
2. Korematsu v United States- Facial Classifications that disadvantage minorities Upheld
constitutionality of the relocation of Japanese Americans during WWII. For military matters the court is
very deferential to policy decisions made by military officials. Gov interest- National Security
Dissent- Rights cant be removed without due process. Individual hearings are required to determine
who is a national security threat. Law both over/under inclusive.
3. Loving v Virginia- Facial Classifications that are facially equal Court found a miscegenation
statute unconstitutional. The court did not accept the argument that the legislation burdening both
whites and minorities equally. SS applied because of the racial classification. Statute didn’t punish
other minorities from marrying. White supremacy and purity of white race not legitimate interests.
4. Plessy v Ferguson- Separate But Equal- both races prohibited from sitting in each other’s train
car. Court draws a distinction between political and social equality. The 14A is meant only to deal with
political equality. The stigma created by the separation is created in minds of black citizens.
Dissent- Historical origins of separate but equal are discriminatory. Const is color blind
5 Brown v Board of Education- Separate but Equal is unequal- Creates the desegregation of
public schools. Court relies on social science data to show that stigmatism effects the education and
learning possibilities of black youth due to the separation.
6. Washington v Davis- Facially neutral, but with discriminatory impact To advance to an officer
position police officers had to take a written test. P’s argue that the civil service exam does not
adequately test policing abilities, and results in a disparate impact to blacks attempting to become
promoted. Disparate impact alone is not enough to subject a regulation to strict scrutiny, also requires
proof of a discriminatory motive from law makers.
6a. Yick Woo- Disparate impact from legislation was enough, when legislation targeted only
Asian laundromat owners
7. Palmer v Thomas- Equal protection not violated when a city closed down its previously
segregated swimming pools rather than allow it to be integrated. The court upheld the closing down of
the pools because it could not ascertain a single discriminatory motive. Discriminatory purpose alone is
insufficient to prove that a facially neutral law constitutes a race or national origin classification.

How is a discriminatory purpose proved?

8. Personal Administer of Massachusetts v Feeney- Challenge to MA statute giving preferential
treatment to Veterans when applying to civil service positions. Discriminatory because 98% of veterans
are men. Discriminatory purpose implies more than intent as volition or intent as awareness of
consequences. Decision maker created regulation because of the adverse effects upon an identifiable
group. Court adopts a criminal law definition of intent, meaning a desire to create those results, instead
of the tortious definition of intent.
9 Arlington Heights v MHDC- Zoning decision argued as being discriminatory. P argue that the
failure to rezone the land had an exclusionary effect on black on the city. Ways discriminatory purpose
can be proved- 1. The impact of the law may be so clearly discriminatory as to allow no other
explanation than that it was adopted for impermissible purposes. - Can show statistical pattern that can
be explained only by a discriminatory purpose. 2. History surrounding the governments actions, specific
sequence of events leading up to the challenged decision. 3. Legislative or administrative history of the
law- contemporary statements by members of the decision making body- minutes of the meetings or
reports.

Racial Classifications Benefiting minorities

Level of Scrutiny used in Affirmative Action Cases- Strict Scrutiny justices differed on what scrutiny
should be applied. Some argued for a lower form of scrutiny if the effect of the legislation was remedial,
to fix past discrimination, or that its fine for a majority to discriminate against itself. Advocates for SS
argued that any discrimination requires SS.
1. Regents of the University of Cali v Bakke- Medical school set aside leaving 16 positions out of
100 available for minority students- Quotas are unconstitutional, but no majority on level of scrutiny,
promotion of diversity is a compelling government interest.
2. U.S v Paradise- African American had to be hired every time a white person was hired or
promoted. Regulation was found to be permissible because it was a remedial provision meant to
correct years of discrimination in Alabama police departments.
3. Richmond v J.A. Croson Co- Strict Scrutiny for affirmative action programs. Invalidate city
plan to set aside 30 percent of public works subcontracts for minority owned businesses. City argues
that it is the legislators attempt to rectify past discrimination. Court finds that there is no evidence to
support remedial efforts, and that it is hard to tell which policies are remedial and which are illegitimate.
Less discriminatory methods exist to boost minority inclusion- subsidies, grants, educational programs,
loaning regulations.
Dissent- Difference between discriminatory actions, and actions done to address social injustice.
4. Metro Broadcasting Inc. v FCC- Court allows the use of intermediate scrutiny for federal
programs. Interest in diversity of views and programing in broadcast media.
5. Adarand Constructors Inc v Pena- Strict Scrutiny is the proper standard for regulations that
benefit minorities.
6. Grutter v Bollinger- Court upholds using racer as a factor in law school admissions along with
other soft variables and GPA and LSAT scores. State argues that it has a compelling interest in
developing a “critical mass” of diverse students. State interest accepted because education of all
students is enhanced by a diverse student body and enables students to have a better understanding of
different races.
Dissent- Court’s deference to the university is not appropriate. School refusing to use less
discriminatory means to keep its position as an elite law school.

Arguments for and against the use of strict scrutiny.

Reasons to apply Strict Scrutiny- All racial classifications, whether invidious or benign should be subject
to strict scrutiny. Constitution requires each individual to be treated equally without regard to race.
Affirmative action breed stigmatization and racial hostility.
Supports of a lesser Scrutiny- Significant difference between the government using racial classifications
to benefit minorities and the government using racial classifications to disadvantage minorities.
Achieving social equity requires affirmative action at this point in American history. Applying strict
scrutiny would impede remedial efforts to fix inequalities. Difference between a majority discriminating
against itself, and a majority discriminating against a minority.

What purposes for AA programs are enough to meet Strict Scrutiny.

Remedying past discrimination- U.S. v Paradise
Enhancing Diversity- Bakke, Grutter v Bollinger, Metro Broadcasting v FCC

3. Gender Classifications Intermediate Scrutiny

Early Cases- No gender discrimination against women found unconstitutional. Even during the Lochner
Era the court allowed for regulations prohibiting women’s freedoms.
1. Bradwell v Illinois- Upheld a IL law that prohibited women being licenses to practice law.
2. Goesaret v Cleary- Uphold law prohibiting women from being bartenders unless their
husband or father owned the establishment.

Emergence of Intermediate Scrutiny

1. Reed v Reed- Intestate Succession statute favored men over women when they were from the
same category. Court applies rational basis test and strikes it down. The court found gender to be
irrelevant in deciding estate issues.
2. Frontiero v Richardson- Four justices believe that gender discrimination should receive strict
scrutiny. Court invalidates a military regulation that automatically allowed for a man to claim his wife as
a dependent for greater benefits, but require a hearing when the wife claims her husband as a
dependent. No majority agrees on level of scrutiny.
3 Craig v Boren- Court agrees on intermediate scrutiny standard for Gender Discrimination.
Invalidates OK statute allowing women to buy low alcohol content beer at age 18, but men at age 21.
Although traffic safety was deemed an important government interest, the court found the statute not
substantially related to traffic safety.

Education
1. U.S. v Virginia- Exclusion of women at VMI unconstitutional. State argues that same sex
education has benefits. The adversative method of education would need to be modified if women
could enroll. Creating a sister school for women was an insufficient remedy. Gender discrimination
justifications must not rely on overbroad generalizations about the different talents, capacities, or
preferences of males and females.
2. Mississippi University for Women v Hogan- Court declares a nursing program exclusively for
women unconstitutional. State argues that the program is remedial for past discrimination against
gender. The court found that the school enforced stereotypes that nurses should be women.
What level of Scrutiny is appropriate? Many of the characteristics that apply to racial classifications
exist for gender classifications as well.
Women have had a long history of discrimination. – Women were the last group to be able to
vote, couldn’t contract, hold property, or litigate issues.
Sex is an immutable characteristic. It is something you are born with and cannot be easily
changed, and it is immediately visible.
Women, like racial minorities, also are underrepresented in the political process.
Those who argue for a lower level of scrutiny claim-
The framers of the 14th amendment only meant it to be directed towards race.
Biological differences between men and women make classifications more justified.
Women are a political majority and not isolated from men so they are not a discrete and insular
minority
On the other side, affirmative action programs are more likely to be upheld with the application
of intermediate scrutiny, as opposed to the strict scrutiny used in affirmative action programs based on
race.

Gender Classifications based on Role Stereotypes

1. Orr v Orr- Court invalidates an alimony law that if women automatically qualified for alimony.
Individual hearings on finances of the parties were already required, so no financial burden was added.
Statute reinforced the gender stereotype that women are dependent on men.
2. Geduldig v Aiello- Disability insurance provided by the state did not cover pregnancy related
disabilities. Government interest in maintaining a self stabilizing fund. Insurance also doesn’t cover
issues related to drugs and alcohol. Majority seeing the classification as pregnant people v non pregnant
people and upholds the law on rational basis.
Dissent- Some male only disabilities are covered, but not female only disabilities.
3. Michael M v Superior Court- Uphold law benefiting women based on stereotype. Statutory
rape law only applicable to men, that was created under the idea that young women were not able to
give consent themselves. State Argues that the law is designed to prevent teenage pregnancies. While
Michael argues that sex takes two people and one should not be criminalized overt the other.
Dissent- based on gender stereotypes, other states have created gender neutral statutes. Prevention of
teenage pregnancy is too far removed from the statute
4. Rostker v Goldberg- Challenge to discrimination based on gender in the military draft.
Majority grants deference to the legislator on military matters, and uses the fact that women can not
serve in combat roles to uphold the regulation. The state argues that women cant fight in combat roles,
and that biological differences allow the discrimination.
Dissent- Law founded on gender stereotypes. Registering women can be useful to staff non combat
positions in wartime.

Gender Classifications Benefiting Women

1. Gender classifications benefiting women based on role stereotypes will not be allowed.
2. Gender classifications benefiting women designed to remedy past discrimination and differences in
opportunity generally are permitted.
3. Gender classifications benefiting women can be based on biological differences between men and
women.
1. Nyugen v INS- Biological differences that benefit women Difference in regulation in obtaining
citizenship to a child born abroad for a mother and a father. Fathers required in taking one of three
affirmative steps to insure the child born abroad is theirs, while mothers do not require any affirmative
steps. Government interest- 1. Assuring that biological link exists, and 2. Ensuring that the child has a
connection with the U.S. The majority found that women have a connection to their baby due to the
biological connection of pregnancy, and worried about males spreading their seed abroad.
Dissent- A DNA test should be sufficient to prove paternity, and that gender is not always a proxy for a
strong connection between mother and child.

4. Alienage Classifications- Generally Strict Scrutiny with exceptions. Discrimination against non
citizens. Aliens are protected because the EPC specifically says “no person shall be denied equal
protection of the laws.”- Clause does not contain the word citizen although it is used in the privileges or
immunities clause.
Preemption- Federal immigration laws wholly occupy the field and preempt state efforts to regulate
immigration. State laws discriminating against aliens can be challenged when the they clash with
federal immigration laws.
1. Graham v Richardson- AZ statute requires citizenship or to be in the country for 15 years.
State argues that it has an interest in favoring its own citizens in distribution of resources. The majority
finds aliens are a discrete and insular minority, and subjects the law to Strict Scrutiny- fiscal concerns are
not sufficient enough to deny benefits to a class.

What level of Scrutiny- Generally Strict Scrutiny. Aliens are discrete and insular minority. They cant
vote, so they are underrepresented in the political process, and there is a long history of discrimination
against aliens.
Critics of SS say that alienage is not immutable and aliens may become citizens.

Exceptions to Strict Scrutiny

Self Government and the Democratic Process- Rational basis review is used for alienage classifications
related to self government and the democratic process.
1. Foley v Connelie- Using RB the court upheld a statute preventing aliens from becoming police
officers. The majority applied the democratic process exemption because police officer have large
discretionary power of enforcing laws enacted by the people.
Dissent-Exemption should only be used when the position is setting policy, not enforcing it. National
loyalty does not prevent Aliens from becoming lawyers.
2. Ambach v Norwick- Court upheld a state law requiring teachers in elementary school to be
citizens. Majority applies only RB and invokes the democratic process exemption in alienage
classifications because teachers instill democratic values in students.
Dissent- It would be preferable for a Spanish citizen to teach Spanish.
3. Cabell v Chavez-Salido- Court applies exemption and upholds statute requiring probation
officers to be citizens.
Is the exception just- Aliens pay taxes. Is it fair that the court can manipulate the level of scrutiny? –
The court could have used strict scrutiny but found the democratic process to be a compelling interest.

Undocumented Aliens and Equal Protection

1. Plyer v Doe- Court invalidates a TX statute requiring undocumented aliens to pay for a public
education. State interest- undocumented may leave the state, and the state would like to spend its
resources on citizens first, exclusion would allow for a better education for citizens. The court did not
allow undocumented aliens to be treated a suspect class because their presence is a violation of federal
immigration law. Blameless children shouldn’t be punished for their parent’s decisions. Education also
serves a special role of creating civilly responsible citizens. Doesn’t make rational sense to deprive the
children of education.
Dissent- An unwise law does not make it unconstitutional.
5. Other Classifications RATIONAL BASIS
Age Discrimination – Age is immutable, and older persons have been subject to a history of
discrimination.
1. Massachusetts Board of Retirement v Murgia- Upheld a MA law requiring state police officers
to retire at the age of 50. The court found old age to not be a discrete and insular minority, because
everybody gets old, can still participate in the political process, and the history of discrimination is not as
severe as other classifications. Applying RB the statute is constitutional because MA has a legitimate
interest in ensuring that its police officers have the physical capabilities to do the job.
Dissent- Elderly may have trouble finding suitable employment. Retirement can come with economic
and emotional problems. 50 is too overinclusive.
2. Vance v Bradly- Upheld federal law that mandated retirement at age of 60 for Foreign Service
Retirement System.

Discrimination based on Disability- RATIONAL BASIS

1. City of Cleburne Texas, v Cleburne Living Center- Rational Basis to be used when discriminating
against mentally handicapped.
Wealth Discrimination – RATIONAL BASIS
1. Dandridge v Williams- Upheld cap on welfare benefits regardless of family size.
2. San Antonio v Rodriguez- Poverty is not a suspect class
3. Maher v Roe- Refusal to pay for abortions even when childbirth costs are covered.
Discrimination based on Sexual Orientation- RATIONAL BASIS
1. Romer v Evans- Animus against gay people is not a legitimate interest under rational basis
2. Lawrence v TX- Rational basis used on prohibiting sodomy

F. Fundamental Rights- Liberties that are so important that they are fundamental rights and regulations
affecting them are subject to strict scrutiny.
Under Due process- the constitutional issue is whether the government’s interference is justified by a
sufficient purpose.
Under EPC- the issue is whether the governments discrimination as to who can exercise the right is
justified by a sufficient purpose.
If law denies the right to everyone, the argument should be under Due Process. If the law
denies the right to some, while allowing others the right, the challenge should be under EP

The Ninth Amendment- “the enumeration in the Constitution of certain rights, shall not be construed to
disparage other retained by the people.” No 9th Amendment rights exist, but it is used to provide a
textual justification for the Court to protect non textual rights.

Framework for Analyzing fundamental rights

1. Is there a fundamental right? 2. Has the right been infringed? 3. Is the Gov action justified by a
sufficient purpose? 4. Are the means sufficiently related to the goals sought.

1. Is there a fundamental right?

Government must meet Strict Scrutiny if there is a fundamental right being challenged, if there is no
fundamental right, only rational basis is used.
Originalists take the position that fundamental rights are limited to the liberties stated in the text. While
Non originalists will find rights outside of the text of the constitution.
Courts also look towards history and tradition to decide fundamental rights, include rights that are
“deeply rooted in this Nation’s history and tradition.
2. Is the right infringed?
Court considers the “directness and substantiality of the interference”
3. Is there a Sufficient Justification for the Government’s Infringement of a Right?
Strict Scrutiny requires a compelling interest
4. Is the Means sufficiently related to the purpose?
Using SS the government must show a compelling purpose behind the law, but also show that the law is
necessary for achieving the objective. Government must prove that there aren’t any less restrictive
means of obtaining the same objective.

1. Reproductive Autonomy: Procreation, Contraception, and Abortion

Right to Procreate- The right to procreate is a fundamental right therefore the government must meet
Strict Scrutiny if it imposes involuntary sterilization.
1. Buck v Bell- Upheld government involuntary sterilization of mentally retarded.
2. Skinner v Oklahoma- Court declares unconstitutional an OK criminal sterilization statute, that
sterilized those convicted two or more times for crimes involving moral turpitude.

Right to Purchase and Use Contraceptives

1. Griswold v CT- Court finds a state law unconstitutional that prohibited the use and
distribution of contraceptives. Right to privacy is a fundamental right. Privacy is implicit in many
provisions of the Bill of Rights – 1rst, 3rd, and 5th Amendments. Statute violates the right of married
couples privacy to use contraceptives for family planning.
Concurring- Use 9th Amendment for authority to protect non textual rights.
Dissent- No right of privacy found in the Constitution.
2. Eisenstadt v Baird- EPC case Court finds a MA law prohibiting distribution of contraceptives to
married people unconstitutional. Statute only allowed physicians to prescribe them to married couples,
and allowed singled individuals to use contraceptives from protection of diseases. State argues an
interest in preventing pre martial sex, and that the marriage is the cornerstone of society. Court
emphasizes the right of individual privacy to be free from government intrusion on personal decisions
regarding reproductive rights.
Dissent- Distinction between married couples in Griswold and single persons here.

Right to Abortion
1. Roe v Wade- Challenged to TX law prohibiting all abortions except those that are necessary to
save the life of the mother. Majority begins by giving a historical analysis of abortion laws, and the
recent adoption of them. Right of privacy broad enough to encompass women’s right to terminate her
pregnancy if she chooses. Pregnancy may come with psychological harm, as well as mental and physical
harm, coupled with the distress of having an unwanted child. State Argues- 1. Conception begins at life,
and the state has an interest in protecting prenatal life of future citizens. 2. Abortion can be hazardous,
and state has an interest in protecting health and safety of mother. Court balances the women’s right
of privacy with the State interest in life. During 1rst trimester government could not prohibit abortions
and could regulate abortions only as it regulated other medical procedures. 2nd trimester- cant outlaw
abortion, but can regulate the procedure in ways related to maternal health. After viability-
Government may prohibit abortion except if necessary for life and health of mother
Dissent- Abortion should be left to the political process. The right of privacy is also not jeopardized
because abortion takes place at a facility and concerns more than just private decisions in the bedroom.
2. Planned Parenthood v Casey- Challenged to PA statute requiring 1. 24 hour waiting period
before abortion. 2. Information before fetus must be presented before abortions. 3. Minor needs
parental/judicial consent. 4. Require spousal notification. Majority finds a constitutional right in
abortion, but changes trimester formula. Before viability- the government cant prohibit abortion, but
after viability- it may be prohibited. Court places an undue burden test on future challenges to
abortion laws. State regulation will be found unconstitutional if it places a substantial obstacle in the
path of the women seeking an abortion to a non viable fetus.
Spousal notification- Consent not required just notification, exceptions allowed for sexual assault
victims, and when husband cant be found. State argues- 1% of women affected, and that the father has
an interest to be informed of the decision. Provision is an undue burden due to the prevalence of sexual
assaults and domestic violence that goes unreported.
Dissent- Rational basis should apply, and the states interest is legitimate.
3. Whole Women’s health v Hellerstedt- Challenge to two abortion facility requirements. 1.
Physicians performing abortions need to have admitting privileges at a hospital that is not further than
30 miles away from where the abortion is performed and 2. The facilities must meet health and safety
code for ambulatory surgical centers. Majority sees no proof in States argument that the regulation is to
promote health and safety of the mother. Abortion in TX is safer than childbirth, and the regulations
burden women on getting abortions by the amount of facility closures due to the regulations.

Government funding of abortions- government not required to subsidize abortions even if it is paying
for childbirth.
1. Maher v Roe- Upheld state law that denied the use of Medicaid funds for non-therapeutic
first trimester abortions. State does not have to pay for any medical treatment, and they have the right
to incentivize childbirth over abortion.
2. Harris v McRae- Uphold federal law, Hyde Amendment, that prohibited the use of federal
funds for abortions, except when the life of the mother or fetus was in danger, and in situations of rape
and sexual assault. Court declines to constitutionalize an affirmative right to government subsidies.

2. Medical Care Decisions- Can refuse treatment, but right is not absolute. Assisted suicide is not
constitutionally granted.
1. Cruzan v Director, Missouri Department of Health- Parents of vegetable wish to turn off life
sustaining nutrition system to allow their child to die, but MI requires clear and convincing evidence of
intent of patient to want to have the systems remove. Competent adults have a constitutional right to
refuse medical treatment. The states interest in protecting life allows the clear and convincing
evidentiary standard to be constitutional. A state may also prevent a family member from
terminating treatment of another.
Dissent- question best left to political branches and not

Physician assisted death NO FUNDAMENTAL RIGHT

1. Washington v Glucksberg- Reject facial challenge to states prohibiting assisted suicide.
Challengers argue that a mentally competent patients should be able to choose if they wish to end their
lives. Fundamental right test- 1. Is the fundamental right deeply rooted in Nations history and tradition-
and implicit in the concept of ordered liberty. 2. Requires careful description of the asserted
fundamental liberty interest. The court finds no fundamental right due to the history of punishing
assisted suicide. The law is upheld under rational basis, the states interest in ethics in medical
profession, and the potential abuse was found to be legitimate.
2. Vacco v Quill- Laws prohibiting assisted suicide do not violate the equal protection clause. NY
law allows terminally ill patients to remove life support, thus ending their life, but prohibits others from
seeking assisted suicide. Court finds no disparate treatment as all have the right to refuse medical care.
Causation and intent- Dr when removing terminally ill patients life support doesn’t kill them, or have the
proper intent to kill them.
3. Sexual Orientation and Conduct
1. Lawrence v TX- Statutes may not prohibit private consensual sexual activity between
consenting adults of the same sex. Reaffirms right to privacy and applies it to consensual homosexual
activity. Overturns Bowers v Hardwick that ruled the right to privacy doesn’t include homosexual
activity. Powerful affirmation of constitutional right to privacy. TX argues that it is protecting morals
and tradition, the court doesn’t articulate the level of scrutiny, but it seems heightened.
Dissent- Court doesn’t grant a fundamental right or apply SS

4. The Right to Marry –

1. Loving- Miscegenation statutes unconstitutional. Freedom to marry is one of the vital
personal rights essential to the orderly pursuit of happiness by free men.
2. Boddie v CT- requiring payment of filling fees and court costs in order to receive a divorce
violates indigent individuals right to marry.
3. Zablocki v Redhail- Invalidates WI law preventing a marriage license to those who owed back
child support.
4. United States v Windsor- Surviving spouse of gay couple precluded from estate tax exemption
because DOMA defines marriage as between a men and a women. Violation of state police power as
states usually govern matters of marriage, and NY state recognizes same sex marriages. Violation of DP
and EPC, writes inequality into federal law.
Dissent- Majority doesn’t apply RB, or SS, and denying that there is a valid reason for having the law-
clears up choice of law provisions animus is not the same as defending the tradition of marriage.
5. Obergefell v Hodges- Distinction on how to frame right The majority frames the right broadly,
the right to marry should include same sex couples. The dissent frames the right narrowly to find it to
not be a fundamental right. Majority gives four principles and traditions relate to marriage. 1. Personal
choice of marriage is inherent in individual autonomy. 2. Two person union with no comparable
relationship. 3. Safeguards children and families and involves many other rights. 4. Marriage is a
keystone of social order. The majority finds laws prohibiting same sex marriage to be unconstitutional
on EPC and DP grounds
Dissent- Majority not applying a standard but giving an overview of many different standards. This
questions should be left to the political branches and by taking it out of the public debate breads animus
against same sex couples.

5. Families and Children – Parents have a fundamental right to custody of their children.
Rights of unmarried fathers
1. Stanley v Illinois- Invalidated law that made children of unmarried mothers wards of the state
at the time of her death. Presumption that an unmarried father is unfit to be a parent is
unconstitutional when the unmarried parent has a biological link as well as a relationship with the child.
2 Michael H v Gerald D- An unmarried father who has participated in the child’s life isn’t always
granted rights. A state may create an irrebuttable presumption that a married women’s husband is the
father of her child. The majority found that there was no tradition of protecting the fathers rights when
the mother is married to someone else.
Dissent- The majority framed the right too narrowly. The biological paternity test as well as the
relationship developed with the child should give rise to rights. Family rights should not be defined only
by tradition as norms are constantly changing.
Right to keep families together
1. Moore v City of East Cleveland- A city zoning ordinance limited the number of unrelated
individuals who could live together. This resulted in criminal sanctions for a grandmother living with her
two grandsons. The court invalidates the ordinance because of the history and tradition of generational
families living together. The regulation is also overinclusive/underinclusive, a nuclear family can have
16 children living with them and be fine, but the P cant live with two of her grand children.
Dissent- The right should only be allowed for nuclear families.
Right to control upbringing of child
1. Meyer v Nebraska- Invalidated a state law that prohibited teaching in any other language
except English in public schools, statute violated the right of a parent to make decisions for their
children.
2. Pierce v Society of Sisters- Invalidated state law that required children to attend public
schools. Parents have the right to decide whether their children should attend public or privatr schools.
3. Prince v MA- Right of parent is not absolute- child labor law in the distribution of religious
literature upheld.

6. The Right to Travel

1. Edwards v California- invalidated a law that made it a crime to bring a non resident into the
state knowing the individual to be an indigent person- violates commerce clause
2. United States v Guest- express declaration of the fundamental right to travel- long been
recognized as an implicit right in the Constitution. Although expressly mentioned in the articles of
confederation, it is implied by the constitution.
3. Saenz v Roe- Privileges or immunities clause of 14th Amendment provides for fundamental
right to travel. CA law limited to new residents welfare benefits equal to those of the state they moved
from. Right to travel allows for three things.
1. Right to enter and leave another state.
2. Right to be a welcome visitor while temporarily in another state. Intermediate Scrutiny
3. Right to newly acquired residents of the state to be treated equally with other residents of
the state. -P or I of 14th A Strict Scrutiny
Newly arrived citizens have federal as well as state representation in common with those who share
state citizenship.
4. Shapiro v Thompson- Strict Scrutiny should be applied to durational residency requirements.
These requirements discourage people from traveling to different states because they will not receive
their benefits for a year.

7. The Right to Vote

Amendments that control right to vote- 15th- Voting can not be denied on account of race
19th- Affords women the right to vote
24th- prohibits poll taxes in federal elections.
26th- Extends right to vote to citizens over 18 years old
Right to vote is fundamental because it is essential in a democratic society, it safeguards other liberties
Voter ID requirements.
1. Crawford v Marion County- Voter ID required to vote in state elections. Exemptions made for
religious practices, voting at senior centers. State will provide a free state ID, and can cast a provisional
ballet but need to sign an affidavit at the county clerk within ten days for it to count. Generally-
“evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not
invidious.” Use a Balancing Test- balance burden placed on voting to the state interest, similar to
abortion law standard. States Argue- 1. Prevent Voter Fraud. 2. Modernize Electoral process. 3. Insure
confidence in elections. 4. Update sloppy voter rolls. Majority does not find the burden to be that large.
Concurring- Only severe burdens on the right to vote should trigger strict scrutiny. Most also show
more than a disparate impact, but also a disparate motive in the legislation.
Dissent- Burdens placed on voters are non trivial. 43,000 people do not have proper id’s and multiple
trips to the county clerks office or the DMV are expensive especially without reliable public
transportation in the state.

Dilution of the Right to Vote

1. Reynolds v Sims- One Person one vote EPC requires that voting power between citizens be
equal. Must draw districts based on population. Unfair to have a rural district voters vote weigh more
than an urban voter.
2. Evenwel v Abbott- Districting based on total population vs eligible voter population. P
challenge the districting based on total population claiming that it dilutes the vote because some
districts have less eligible voters than others. 1. Historical Analysis- great compromise- HOR based on
population, while every state gets 2 senators. 2. Precedent- Longstanding use of total population in
districting shouldn’t be disturbed. 3. Reps serve all citizens not just the voters.
Concurring- Issue should be left to the people to decide how they wish to draw their districts.

8. The Right to Education- No fundamental right use RB

1. San Antonio v Rodriguez- challenge to school funding based largely on property taxes. Two
challenges presented one under the EPC- discrimination based on wealth- argument rejected as socio
economic status is not a protected class. Second challenge presented under SDP as education as a
fundamental right. The majority finds no fundamental right granted textual and doesn’t believe the
nexus argument that education is a requirement to exercise other fundamental right such as 1rst
amendment and to be involved in the political process.