2/15 con law notes

 Article I power: Anticommandeering doctrine(neofederalism), taxing, and spending

power
o New York v. us
 Anticommandeering doctrine first shows up here
 Disposal of nuclear wast
 Dramatically illustrates the principle that congress may not simply force a
state to enact a certain statute or to regulate in a certain manner
 Take title provision  10th amendment found violated
 Congress may not simply “commandeer the legislative processes of the
states by directly compelling them to enact and enforce a federal
regulatory program”
 New York being put to the choice of two unconstitutionally coercive
regulatory techiqes
 (1) could regulate on their own
(2) Or be forfed to inemnify waste generators against tort
damages
 Bc congress could not employ either of these methods alone it could not
escape the problem by giving the state a choice bw the two
 Congress can not commandeer the legislative processes of the states
o Printz v us
 No commandeering of the executive branch
 Cong enacted the brady bill aimed at controlling the flow of guns
 As tem 5 year measure, the law order local enforcement officals to
conduct background check of prospective purchases until a national
computerized system for doing these check could be phased in. printz a
county sheriff in montana objected to the background check requirement
and sued he argued that under new yor v us congress could no force him
to conduct background checks on the federal govs behalf
 Fed gov may not compel the states to enact or administer a fed
regulatory program
 Intolerable incursion into state sovereignty
 States remain independent and autonomous within their proper sphere
of authority
o Reno v condon
 Congress can regulate articles moving interstate commerce
 The court said that computerized info about motorists was an article of
commerce whose release into the interstate stream of business made the
information an appropriate subject for congressional regulation
o Spending power
 Art I 8 gives cong the power to lay and collect tax to pay the debs for
defense and general welfare of the us
  The power to spend is thus linked to the power to tax – money may be
raised by taxation and then spent for the common defence and general
welfare of the us
o United states v butler
 Spending power is not limited to enumerated powers
 Court held that no such limitation exists – spending and taxing powers
are themselves enumerated powers so congress may spend or tax to
achieve the general welfare, even though no other enumerated power is
being furthered
 Involved the validity of the ag adjustment act of 1933
 Fcourt concluded that the power to tax and spend for the general welfre
existed as a power separate and distinct from the other powers
enumerated in art I 8
 Thus the taxing and spending power stood on equal footing with tsay the
power to regulate interstate commerce.
 Not usable for regulation  congress may not regulate in a particular
area merely on the ground that it is therby providing for the general
welfare, it is only taxing and spending which may be done for the general
welfare
o Sabri v us
 Sabri is a builder and looking for permits to build a hotel
 He wanted grants too
 He bribes some members of city council to get it
 Prosecuted under fed law that makes it a crime for a person to bribe
state agencies if they get more than 10k a year in federal funds
o South Dakota v dole
 To what extent can congress coerce cities
 May congress use its conditional spending power to achieve that result
indirectly say by depriving the states of money if they do not achieve the
regulatory result?  the answer is yes so long as (1) the action by the
state does not violate the constitutional rights of any individual and (2)
congress has not coerced or unduly infuenced the state into taking the
deal
 Congress in order to prevent drivers under the age of 21 from drinking
withholds 5% of a states fed highway funds from any state that doesn’t
pass a law forbidding individuals younger than 21 from purchasing or
possessing in public any alcoholic beverage
 South Dakota attacked the statute
 Held statute is valid
 Wouldn’t have been had the financial inducement offered by cong was so
coercive as to pass the point at which pressure turns into compulsion
 the Court also held that the Twenty-first Amendment's limitations on
spending power were not prohibitions on congressional attempts to
 achieve federal objectives indirectly. The five percent loss of highway
funds was not unduly coercive.
2/17 Class notes
 Congressional power under article I: Taxing and spending power, Dormant commerce
clause, impeachment power
 National fed of in busses v sebelius
o Prongs from dole
o Spending condition must be in the national welfare
o Condition related to a federal program at issue
o What about coercion?
o (1) The justices unanimously agreed that the Anti-Injunction Act did not bar the
suit. Congress did not intend that the payment for non-compliance with the
Individual Mandate be a tax for purposes of the Anti-Injunction Act.
o (2) Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and
Kagan, concluded that the Individual Mandate penalty is a tax for the purposes
of the Constitution's Taxing and Spending Clause and is a valid exercise of
Congressional authority. The payment is not so severe as to be coercive, is not
limited to willful violations like fines for unlawful acts, and is collected by the
Internal Revenue Service by normal means.
o As part of a jointly written dissenting opinion, Justices Antonin Scalia, Anthony
Kennedy, Clarence Thomas, and Samuel Alito disagreed, arguing that because
Congress characterized the payment as a penalty, to instead characterize it as a
tax would amount to rewriting the Act.
o (3) Chief Justice Roberts, with Justices Scalia, Kennedy, Thomas, and Alito,
concluded that the Individual Mandate was not a valid exercise of Congress'
power to regulate commerce. The Commerce Clause allows Congress to regulate
existing commercial activity, but not to compel individuals to participate in
commerce. This would open a new realm of Congressional authority.
o Justice Ginsburg, as part of an opinion concurring in part and dissenting in part,
joined by Justices Breyer, Sotomayor, and Kagan disagreed with this conclusion,
arguing that the Chief Justice's distinction between economic "activity" and
"Inactivity" is ill-defined and unsupported by either the Court's precedents or the
text of the Constitution. Furthermore, even if the distinction were permissible,
individuals who fail to purchase insurance nonetheless frequently participate in
the healthcare marketplace, substantially impacting healthcare commerce, and
may therefore be regulated by Congress.
o Justice Thomas, in a separate dissent, added that the "substantial effects test"
has encouraged Congress to push the limits of its power.
o (4)The majority did not address the serverability question after concluding that
the Individual Mandate was constitutional.
o Justices Scalia, Kennedy, Thomas, and Alito argued that the Individual Mandate
and Medicaid expansion are inserverable, and that the entirety of the ACA is
 therefore unconstitutional. The provisions of the Act, they argue, are "closely
interrelated," with the two unconstitutional provisions serving as "pillars."
o (5) Chief Justice Roberts, with Justices Scalia, Kennedy, Thomas, Breyer, Alito,
and Kagan, concluded that the Medicaid expansion provisions was
unconstitutionally coercive as written. Congress does not have authority under
the Spending Clause to threaten the states with complete loss of Federal funding
of Medicaid, if the states refuse to comply with the expansion.
o Justices Ginsburg and Sotomayor disagreed, arguing, "Congress' authority to
condition the use of federal funds is not confined to spending programs as first
launched. The legislature may, and often does, amend the law."
o (6) Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and
Kagan, concluded that the remainder of the Medicaid expansion provision,
without the unconstitutional threat to completely withdraw Medicaid funding,
could stand as a valid exercise of Congress' power under the Spending Clause.
o Justices Scalia, Kennedy, Thomas, and Alito argued that the Court does not have
the power to remedy the unconstitutional expansion as written. Such power
should be vested exclusively in Congress.
o Anti commandeering clause
o Incentive program could be a good hypo on exam-- like how jobs have bonuses
when u do certain things or reach certain mile marks??
 i didn’t hear all the way but i think that was the most important gist of it
and that it would be constitutional to do so
 Dormant commerce clause
o Can not impede interstate commerce
o States don’t have the power to regulate something
 o

 Hp hood & sons v dumond

o What is the dcc doctrine and why do we have it?
 o Protectionism regulation
o the Court held that New York's restriction on business activity was
unconstitutional under the Commerce Clause. The Court held that the system
fostered by the Clause must be one in which "every farmer and every craftsman
shall be encouraged to produce by the certainty he will have free access to every
market in the Nation." The Court also emphasized the economic
interdependence of the states, warning that "fantastic rivalries. . .and reprisals"
would ensue if the states were allowed to enact local protectionist measures.
o Laws that discriminate and laws that dont
 Hunt v washington  whats discriminatory and whats not
o The court attached substantial weight to the fact that the north Carolina scheme
was apparently intentionally discriminatory.
o When discrimination is found
 (1) is discrimination serving an important gov interest or a compelling
interest
 (2) whether no other effective means exist for protecting this gov
intertest
 Rigorous scrutiny test
o Law doesn’t pass the test here
o

 Consolidated Freightways v. Kassel  laws that don’t discriminate but still place burden
on interstate commerce , pike test
o Iowa prohibits trucks in border over 60 feet long
 o Not protectionist in any way but does hurt interstate commerce
 #3


 South central timber v Alaska Friday

2/19 notes
 Dormant com clause exceptions
o (1) congressional approval
o (2)Market participant exception:
 Gist a state may favor its own citizens when acting as a participant in the
relevant market
 ex reeves (easy) v William stake
 Example (pushing limits): white v mass
 Example (nope) south central timber v alaska
 South central timber
o Alaska selling timber and said who we sell to has to like process here in
o Imposing conditions downstream so they are in violation
 White v mass
o Employ their own workers
o Court says mark participant
o Sounds problematically similar to south central timber
o Pretend there is no downstream condition
 Gist
 o A states can discriminate against out of state residents when acting as market
participants
o B cant if its causing downstream conditions on interstate commerce
 Impeachment after this
 Impeachment power
o Art 1 section 2 clause 5
o Art 1 section 3 clauses 6 and 7
o Article 2 section 4
 Treason bribery or other high crimes and misdemeanors
o Article 3 section 1
o Political remedy not a criminal remedy
o Federalist 65  impeachment power
 Abuse or violation of some public trust
o High crimes and misdemeanors
 Old England: not legal terms, but political ones
 Betrayal of trust, gross neglect of duty, abuse of power
 Early American
 Original language: malpractice or neglect of duty
 First revision: maladministration
 Final language: high crimes and misdemeanors
o Examples in us
 Andrew johnson
 Judge impeached for intoxication in court
 Samuel chase
 Judge walter Nixon
 President bill clinton
 Article II executive power after this spot
o Article II most relevant provisions
o Sec 1: the exec power shall be vested in a pres of the usa  vesting clause
o Sec 2: commander in chief of army and navy can make treaties
o Section 3: prez shall take care that the laws be faitfully executed
o Misc: grant pardons and other relatively discrete powers
o Framers wanted prez to do things that kings could do
o Two args on why silent/terse
 (1) framers wanted them to maybe have vast amount of inherant powers
 (2) they didn’t expect prez to have that much power
o Great presidents we think of have been aggressive
 People like leaders who act
o Prez has to execute the things congress passes
o Agencies fall under executive branch
o Delegation of powers to exec has made executive super powerful
2/22 notes
 Article II and Executive power background and general power dynamics problems,
non delegation doctrine
 Left off last time of what is the extent of presidential power
 Art ii most relevant provisions
o Sec 1: the exec power shall be vested in a pres of the usa  vesting clause
o Sec 2: commander in chief of army and navy can make treaties
o Section 3: prez shall take care that the laws be faithfully executed
o Misc: grant pardons and other relatively discrete powers
o Framers wanted prez to do things that kings could do
 Two args on why silent/terse
o (1) framers wanted them to maybe have vast amount of inherant powers
o (2) they didn’t expect prez to have that much power
 Framers called cong the most dangerous branch not exec
 Power dynamics
 The flow of power
 Attack could happen at any time any place so congress grants more war power to pres
so we are ready if imminently needed
 Ways in which the flow of power presents problems/concerns
 2 main methodologicial approaches to solving problems of pres power
o (1) formalist approach  as scientific as possible, originalism, oay fidelity to
something that came before us
 Is what pres doing conceptually or theoretically executive or legislative, if
legislative then we would say formalistically not ok violation of separation
of powers
 Benefits  rule of law, prevent run away freight train
 Separation of powers terminology used by ppl who use formalistic
 Very rigid so tahts a disadvantage
o (2) functionalist/pragmatic approach
 Most winning approach
 Does allowing pres or cong to do this upset the balance of powers
 Blurring problems:
o (1) enforcing v. making laws
 Exec orders
o (2) prosecutorial discretion v. suspending laws
 Suspending laws When states pass laws like mj is legal and fed gov allows
it
 Prosc discretion  pres disecretion to say ok in these circumstances im
not going to apply the law
 vesting clause art ii sec 1
 take care clause art ii sec 3
 executive orders  ways in which pres orders exec branch to do things in order to
enforce the law
 o traditionally a way to get exec branch to do something to enforce law passed by
cong
o combine w delegation  now ex orders used all the time to regulate
o daca  exec order, don’t enforce law against people who should be deported
under the law, he effectively changed the law without going through congress
o bush fed funds  no fed funding for stem cell research
o trump  diversity training sessions, didn’t like critical race theory doesn’t want
it taught
 allen v wright who has standing in court to get exec to enforce the law – generally no
one
 non delegation doctrine
o key question  to what extent, if any, mya congress pass off power – that is
delegate its own power – to “make law” to the executive?
o Congress is the depository sovereign power, people have the power and we elect
those, they cant just turn around and give that away
o Kinda like power of attorney
 Ala v schlauter
o Codes
o Starting principle
o Congress may not delegate legislative power to the executive branch to exercise
unlimited lawmaking discretion to promote trade or industry.  degree matters,
only regulating thing was cant be designed to promote monopolies so no
standards
o When this is done properly the stat will lay down certain principles and exec
branch will do enforcement and prosecution
o
 Panama refining
o Intelligent principle rule
o Congress wants to keep oil industry healthy
o Delegates to pres power to limit supply and demand to keep market healthy
o Again no standards
o Congress did no findings or methodology on how to determine whats too much
oil
o Not permitted to transfer their essential functions to others that the con gives
them unless
o Intelligible principle rule : if con shall lay down by leg act an intelligible principle
to which the ex is directed to conform, such leg action is no a forbidden
delegation of leg power”
o Need specificity cant just be like make the oil market healthy
o Example add parameters and that, need a reference point
o
2/24 In class notes
 Whitman
 o Non delegation doctrine and its demise
o Intelligible principles
o (2) no costs may not be considered when setting the air quality standards
o Cong must provide intelligible principles as to how the legislative authority may
be exercised
o Delegation of authority : congress almost always provides sufficient intelligible
principles to support a delegation of authority
o In a delegation challenge, the constitutional question is whether the statute has
delegated legislative power to the agency
o Scalia is an originalist
o Generally go with the first in time over stare decisis
o The exercise of exec power involves some discetion that could be policy making
o Need narrow range
 Non delegation doctring dept of tranpo v assoc of American railroads thomas
 Three checks
 Peripheral contexts of judicial separation of powers “vigilance”
o (1) removal power case
o (2) burger court formalism: most famous example : the legislative veto
controversy
 Clinton v ny (line item veto)
 INS v Chadha (legislative veto)
o (3) nlrb v . noel canning (2014): recess appointment
 Removal power
o Myers v us
 Congress cannot restrict the pres removal power of ANY officers of the us
o Humphreys exec v us
 Oh Meyers only applies to officers who exercise purely executive power
 Humphrey ftc commissioner
 Limits to removing him in statute
 Prez says no myers says I can
 Court says no we meant myers only applies to officers who exercise
purely exec powers
 Ftc commish is quasi legislative and quasi judicial
 Exec somebody getting things done
o Morrison v olson
 Ok even if the relevant officer exercises classically exec duties its still ok
bc the removal restriction does not impede the pres ability to perform his
constitutional duty
 Real question is whether the restrictions
o Free enterprise fund v pcaob
 Two layers of for cause removal restrictions is going too far
 Two layers of for cause
o Seigla llc v consumer financial protection bureau
  One layer of for cause removal restriction is going too far if the agency is
headed by one person
 Separation of powers posturing
Notes 2/26  art ii and exec power  3 conspicious doctrinal areas foreign affairs and
inherent executive power war power
 Seilgla law
o One of few areas court has been willing to asert separation of powers
o Broader narrative of what courts doing not what its saying
 Burger court formalism
o Clinton v ny (line item veto)
 Cong passed law tht said when cong passes a budget and it goes to pres
desk for signature the pres could delete certain lines from and then sign
it into law
 Court said cant do that
 Why  when pres strikes lines it becomes a different law and at that
point has to go through the house and senate to bcome a law as a new
bill
o INS v. Chadha (legislative Veto)
 Immigration law deportable
 Ag can allow ppl otherwise deportable to allow them to stay
 But house has reserved for itself to legislatively override what the ag
decides
 Not a product of bicameralism
 Not a product of presentment
 Court says this is a problem
 Bicameralism  making law go through senate we are making it go
through a more deliberative process, in the senate each state has the
same number of senators so small states have protection from things
that would hurt them
 Altering the rights and relationships bw people  legislative
 Powell is saying this is judicial
 Few decisions where seperation of powers is imposed on our beurocratic
arrangements
 Random category of sop enforcement #3: recess appointment clause nlrb v noel canning
o Art ii sec 2 cl 3: “the pres shall have power to fill up all vacancies that may
happen during the recess of the senate, by granting commissions which shall
expire at the end of their next session”
o What counts as a recess? At least a few days it was thought
o Cong started to schedule recesses so as not to allow the appointments
o Pro forma sessions  come in and say we are in business ok we are in recess just
one person doing this every 2-3 days
o Obama says im going to appoint ppl on these 3 day recesses to the nlrb
o Nlrb assigns a fine to noel canning
 o Noel canning says these findings are illigetimate
o Recess has to be at least ten days bf the recess appointment power can be
triggered
 Foreign affairs and war powers relevant provisions
o Sec 1 the exec power shall be bested in a pres of the usa
o Sec 2 the pres shall be commander in chief of the army and navy of the us power
to make treaties
o 1) congressionalist approachh –interp where the const does not defer to the pres
much
o 2) pres approach pres has plenary authority
 Youngstown 
o Youngstown v. Sawyer: Takes place during Korean War- Labor dispute over steel
production (needed to make weapons)- President issued EO enabling steel mills
to be seized & kept running (b/c United Steelworkers wanted to strike). Issue of
whether President’s EO was within his power? 
o Black’s majority- No- CIF power only applies to the “theater of war,” not
domestic affairs (formalistic). 
o Jackson’s concurrence: Jackson’s test is really useless in determining separation
of powers (more symbolic than effective)
o i.) Formalism + Pragmatism—
 (1) President’s authority is at its max when Congress says he can do it
 (2) Unclear whether congress authorized it—close call (arguable)
 (3) When President does not get authorization from Congress, he must
rely on inherent power (Problem—doesn’t say what the inherent power
is)
 Jackson said this case falls under #3
o Const Arguments vesting clause inherent power
o Vesting clause doesn’t work neighter does const
o Frankfurter says I agree but we cant be so formalistic
o Vinson takes a functionalist approach
3/1 notes
Article II and Executive Power  inherent power in foreign affairs, the war power
 Youngstown sheet and tube
o Single most famous separation of powers decision in history
o Jacksons concurrence
 Jackson’s concurrence: Jackson’s test is really useless in determining
separation of powers (more symbolic than effective)
 i. Formalism + Pragmatism—
o (1) President’s authority is at its max when Congress says
he can do it expressly
o (2) Unclear whether congress authorized it—close call
(arguable)
 o (3) When President does not get authorization form
Congress, he must rely on inherent power or whats given
through article 2 to him (Problem—doesn’t say what the
inherent power is)
 Jackson said this case falls under #3
 Gov says ok vesting clause  Jackson formalistic analysis we cant read
vesting clause as saying all this is his bc article two enumerates this
 Commander and chief clause  Korean war may be illegal but lets put
that aside if its constitutional pres can go to war w/o cong approval so
not only control troops but do whatever they want domestically to help
support war effort but this would engrandize pres beyond what framers
wanted
 Inherent powers  emergency powers would tend to kindle emergencies
 Fed gov is expandiing at expense of the states
 Us v Curtiss wright
o Foreign Affairs🡪U.S. v. Curtiss-Wright: War in South America- Govt wants to
prohibit US involvement. President passes EO prohibiting arms sales. CW sells
arms anyway & is convicted; argues President’s power is unconstitutional
 i. Foreign affairs is different🡪States never had this power in the first
place. Fed govt has inherent power to deal with foreign affairs
(specifically, the executive branch)
 (1) President knows best how to solve these problems—attitude
of deference.
 (2) Doctrine should be tweaked to accommodate presidential
power in this context. 
 ii. Ways Court can defer to the executive:
 (1) Say President has inherent power
 (2) Call it a PQD and refuse to answer
 (3) Cert denied doctrine (won’t hear the case)
 (4) Standing
 War Powers after this (foreign affairs = pragmatism)
o Dames & moore v regan  the problem of exec agreements
 Art ii sec 2 pres can enter into treates with majority of sen approving
 One way pres’ have gotten around this is with the use of executive
agreements
 Dames & Moore v. Regan: Iranian Revolution- People from the US
embassy are taken hostage, so US freezes Iran’s assets. Carter negotiates
& gets hostages freed, but US agrees to drop all cases against Iran in
return (all suits/judgments against Iranians are gone). D&M was suing
Iran at the time—argue this is unconstitutional because it was by
executive agreement, not treaty (w/ Senate approval).
  A) Held: Constitutional- congress acquiesced in the practice (i.e.
has never been bothered by executive agreements before, so its
OK)
 B) NOTE: This is a narrow decision. Is not saying President has this
power; just saying in this situation, it was OK (doesn’t want to tie
his hands with formal doctrine).
 C) Executive Agreement vs. Treaty
o i. Treaty- requires Senate approval
o Ii. EA: No senate approval, but can do what treaties do
(deal w/ foreign nations)
 WAR POWERS
o 1. SCORE POINTS BY BEING SENSITIVE TO THE TENSION BETWEEN PRAGMATISM
AND ORIGINAL INTENT
o 2. Conflict exists between Art. I § 8: power to declare war and authority to raise
taxes and Art. II § 2: Commander-in-Chief
 A. What constitutes a declaration of war?
 i. We’ve only declared war 5 times
 ii. Framers use of Declare War clearly meant power to make
(initiate) war
o (1) Declare was chosen because it means President may
repel sudden attacks, but not go about creating/starting
wars
o 1. Relevant Provisions:
 (a) Art I § 8: Congress shall have power to declare war.
 (i) Does Congress have power to say war exists, but President has
power to make it?
 (b) Art II § 1: Executive power vested in the President
 (c) Art II § 2: President is Commander in Chief
o 2. Main Opposing Views
 (a) Congress can declare war, President can make it
 (i) Framers didn’t intend this- Would make Congress’ power to
declare meaningless
 (ii) Congress’ power was meaningful b/c it triggers the laws of war
—Problem = laws of war automatically triggered when President
commits act of war
 (b) Framers wanted to make sure 1 branch couldn’t exercise this power
w/out a check from another branch (i.e. don’t want President ot have
ultimate power to declare/make war)- meant to be “much inferior”
(historical evidence)
o 3. War Powers Resolution adopted to help the struggle b/t President & Congress
decide (1) What constitutes a declaration of war? (2) May President use US
troops in hostilities w/out Congress’ approval
  (a) WPR = Congressional effort to reel in executive power in War Powers
context
 (b) Still good law
 (c)Requirements
 (i) Consultation- President must consult w/ Congress before
intiating hostilities
o (1) NOTE: Doesn’t say President must get permission (just
consult) 
 (ii) Reporting- President must detail reasons for engaging in
hostilities 48 hours afterward
 (iii) Congressional action- 60 days without permission from
Congress, President must withdraw troops 
 (d) NOTE: Really the WPR just formalizes the President being able to go to
war w/out Congressional approval…
3/3
 Original menaing v framers intent
o Original meaning of the phrase use a dictionary based on idea that the fidelity
ought to be what the people (common ppl) at the time thought it meant
 Declare war power triggered all sorts of formalities such as the powers of
war, declare doesn’t mean start a war it means declare it
 Minority view
o Framers intent
 Declare war clause means declare war clause means make warm
 Congress has the power to make war but changed it to declare so that
president could prepare for a sudden attack
 Laws of war were often triggered without formal declaration
 War power
o War Powers Resolution (framers intent route)
o Main requirements: 
 Relevant Provisions:
 Art I § 8: Congress shall have power to declare war.
 Does Congress have power to say war exists, but President has power to
make it?
 Art II § 1: Executive power vested in the President
 Art II § 2: President is Commander in Chief
 Pres Must consult with cong before engaging in hostilities 
 Submit a report in 48 hours
 Must pull forces out with 60 days if Congress does not approve
 This provides president with ability to make war without permission 🡪 but
is supposed to be “intent of founders”
 Richard Nixon vetoed the resolution because he said it impeded on
President’s powers- Nixon said that Congress can’t have ANY say in
President’s war powers
 o Title 50 War and National Defense
 Chapter 33—War Powers Resolution
 § 1541: The WPR will fulfill framers intent by limiting presidential action
to (1) declaration of war, (2) specific statutory authorization, (3) national
emergency
 § 1542: without a declaration of war, the president must notify the
Congress of his actions within 48 hours
 § 1544: within 60 days of § 1542 report the president must end hostilities
unless Congress declares otherwise or can’t meet
 Continued funding does not equal an affirmation
 PQD Part II Foreign policy
 1the Doctrine Applied: Foreign Policy
o A Court likes to stay away from Foreign Policy
o B Is PQD Appropriate Judicial Deference or Unwarranted Judicial Abdication on
Important Constitutional Issue  
o C Baker v. Carr: Key Considerations
 I Textually Demonstrable Commitment to a Coordinate Branch (original
PQD)
 Ii Lack of Judicially Discoverable and Manageable Standards
 Iii Impossibility of Deciding Without Non-Judicial Policy Determination
 Iv Impossibility of Undertaking Independent Resolution Without
Expressing a Lack of Respect
 V Unusual Need for Unquestioning Adherence to Political Decision
Already Made
 Vi Potential Embarrassment of Multifarious Pronouncements
o D Goldwater v. Carter 1979
 Key constitutional provision: the reception clause, art ii sec 3 the pres
shall receive ambassadors and other public ministers carter tried to say I
have a recognition clause from art ii sec 3, by receiving amabassadors the
prez is saying they are from a real country America recognizes
 I In recognizing People’s Republic of China, Carter withdrew treaty with
Taiwan
 Ii Is this a Political Question?
 Iii Yes, the issue involves the authority of the President’s conduct of
foreign relations and extent to which the senate is authorized to negate
an action
 1 Constitution is silent about rescinding treaties and each treaty
has different standards, thus the political process should work this
out
 2 The treaty involved commitment of troops (not Court’s forte) 
 Iv Yes, (Powell Concurs) case is not ripe, because Congress has yet to act
(what he means by ripeness is he just wants to wait longer this is not
ripeness)
  V No, (Brennan Dissents and Concurs) the case is not ripe and it is not a
political question 
 1 Art. II § 2 gives president power (by and with advice and consent
of the Senate) power to make treaties, therefore the converse is
true + treaties are the Supreme Law of the land = SCOTUS review 
 2 Court can apply its skills adequately (as shown in (1))
 3 If case was ripe there would be no risk of multifarious
pronouncements because there would be two sides arguing and
SCOTUS would pick the winner
o E Zivotofsky v. Clinton 2012
 I District court cited PQD because it would have to determine political
status of Jerusalem
 1 Court disagrees: Court is determining if Zivotofsky has the
power to choose Israel as place of birth under Congress’s
Immigration and Naturalization powers
o A Does this power impermissibly intrude on presidential
recognition power? The question is factual and one of
degree
 I Declaring that Congress does not have the power
means everyone must defer to President’s
recognition power
 Ii Declaring that Congress does have the power to
use Israel does not make a claim on Israel’s status
 Ii Not a PQD, (Sotomayor Concurs) majority though only uses first 2 of
Baker’s 6 considerations—all 6 are critical, in fact: unless 1 of the 6 is
inextricable from the case at bar, the case should not be dismissed for
non-justiability
 1 Baker’s 3 justifications for withholding judgment
o In (i) the constitution requires another branch to resolve
the issue
o In (ii) and (iii) the dispute calls for decision making beyond
the court’s competence
o In (iv), (v), and (vi) prudence may counsel against a court’s
resolution 
 I But “political overtones” or “foreign affairs” does
not afford escape
 Iii A PQD, (Breyer Dissents) Baker’s 6 factors should be given more weight
3/5
 Zivotofsky II
o Recognizing the recognition power
o Pres mot only makes the intial formal recognition but also may maintain that
determination in his
o Art II sec 3
 o Then last Term, in Zivotofsky II, the Court held that section 214(d) was
unconstitutional because it impinged upon the President’s exclusive power to
recognize the State of Israel and to determine for the United States which nation
is sovereign over Jerusalem.
o Zivotofsky II is the most important Supreme Court decision ever on the sources
and scope of the President’s independent and exclusive powers to conduct
foreign relations — powers that fall in Justice Jackson’s Youngstown Categories
Two and Three, respectively.
 Presidential powers overview: most important contexts
 Domestic contexts
o (1) the vesting clause & the take care claue
 (1) when does executing turn into making law
 (2) non enforcement: when does prosecutorial discretion become
suspension of the laws
o (2) non delegation doctrine
 To what extent if any can congress delegate law making power to exec
branch
o (3) miscellaneous and isolated instances of SOP enforcement (nibbling at the
edges of pres power)
 Line item veto
 Removal power cases
 Legislative veto (bicameralism & present requirement)
 Recess appointments
 Foregin contexts
o Foreign affairs generally: when application of doctrine implates the E’s ability to
effectively manage foreign affairs, does the E’s inherent powers inform how
those doctrines are applied
 General notion of Inherent powers – 2 different prudential postures
 Youngstown sheet & tube v sawyer
 Us v cutis writh corp
 Illustration of Curtis write approach in a specific doctrinal context
o Non delegationdontrine cut wright
o Treaty making power dames and moore
o Treaty rescision power goldwater v carter
 Background do nothing doctrines :
o Political question doctrine
o Justiciability: standing etc
o Cert denied doctrine
 War powers
o The textual problem
 The declare war clause ; what does it really mean
o The war powers res
 What does it stand for
  Requirements
 How often is it followed
o What do the answers tell us about de facto presidential war powers
 Individual rights
o 42 usc 1983 sue states for damages that infringed on individual rights
o Due process: legal process that is due  gov cant punish you for something w/o
giving you a fair procedure first
o Priviledges and immunities  most ambiguous
o Due process clause is most controversial
o
The Application of the Bill of Rights to the States
 The Rejection of Application Before the Civil War
o Bill of Rights did not apply to the states until the Post-war amendments,
specifically 14th
 No State shall (1) abridge the privileges and immunities, (2) deprive life,
liberty, or property without due process, (3) deny any person equal
protection
 A False Start in Applying the Bill of Rights to the States
o Arguments regarding the meaning of 14th: (i) loses out in Slaughter-House Cases
 Justice Black: “privileges and immunities” of Art. IV § 2 is the same as it
is under 14th
 Eminently reasonable, therefore, that Bill of Rights should apply
 Charles Fairman: “privileges and immunities” does not incorporate
because there is nothing in the historical account to support
o Slaughter-House Cases 1872
 Equal Protection: Court doubts that EP will apply to anyone but blacks
 Due Process: Court recognizes only procedural due process/protections
 Privileges and Immunities:
 Majority: Privileges and immunities of citizens of the United
States, not citizens of the states
o Can’t seek protection under P’s & I’s
 Dissent: P’s & I’s are the same under federal government as the
state, coupled with supremacy clause a state can’t violate
 The Incorporation of the Bill of Rights into the Fourteenth Amendment
o Twining v. New Jersey 1908 (opening of the door for selective incorporation)
 Can self-incrimination of 5th Amendment be applied via due process of
14th Amendment?
 No, self-incrimination is not such a fundamental right, but we have a test
below
 Bill of Rights can apply if X is:
 A fundamental principle of liberty and justice
 Pertaining to the process of law
o The Debate over Incorporation
 Total Incorporation v. Selective Incorporation
 Total: all of the Bill of Rights should be in Due Process
 Selective: Only parts of Bill of Rights that are sufficiently
fundamental
 Debate Issues:
 History: whether 14th Framers intended Bill of Rights to Apply
 Federalism: changing the structural nature of government and
adding restrictions
 Appropriate Judicial Role: how much does the application of Bill
of Rights lead to discretion with adjudicating
o Selective incorporation won; but everything basically got in

 The Current Law as to What’s Incorporated

i. Duncan v Louisiana 1968
1. Can the 6th Amendment right to jury trial be applied through the
14th via due process?
2. To determine the Court asks if:
a. X is a fundamental principle of liberty and justice which
lies at the base of our institutions
b. The Content of Incorporated Rights
i. The transfer of rights does not water them down
3/8
 Individual rights: race and Equal protection
 Twinning
 Duncan
o Various amendments that had been incorporated up to this point
o Tests
o Is the right a fundamental principle of liberty of justice or is it basic to our system
of jurisprudence
 Not yet incorporated: 3rd amendment quarter soldiers in private residence, 7th
amendmentright to jury trial in civil case, 5th amendment (partial)  grand jury, 9th
amendment  the enumeration in the const of certain rights, shall not be construed to
deny or disparage others retained by the people
 9th amendment has basically been read to mean nothing
 The Application of the Bill of Rights to Private Conduct
o The Requirement for State Action
 Constitutional protection of individual liberty and equal protection only
apply to government action—people can be as racist as they want (in
theory)
 State Action Doctrine: 14th Amendment protects only against state or
government infringement of rights
 State Neglect Theory: state inaction calls for 14th intervention
o Ambitious argument: framers of 14th were more concerned
with action
 Private parties do not fall under this doctrine
o Private conduct is regulated by I.C.C.
 Right to Association floats in the background
  Q: Whether the constitution should apply because of the government’s
involvement or because the act is one that is traditionally governmental in
nature
o The Civil Rights Cases: United States v. Stanley 1883
 Can Congress regulate places of public accommodation?
 No, Congress could do this but only against a state law
 Here there is no state law
 Congressional power exists in supplying a mode of relief against
overbearing state
 Yes, (Harlan’s Dissent) interpretation of law should be done under its
intent
 “words are the vessel and the sense/reason are the soul”
 Exceptions to state action doctrine:
o Public functions exception
o Entanglement exception
o The Exceptions to the State Action Doctrine
 The Public Functions Exception
 (private entity must comply if it is performing a task traditionally
done by the government)
 Evans v. Newton 1966
o Park left to city with racist restrictions
o Does the public character of a park make it subject to the
14th?
 Also at play: right to pick associates and carry on
will v. ban against state action sponsoring inequality
o It does, the nature of a park is a traditionally governmental
thing
 Also have entanglement because of park
maintenance
 Examples: Marsh v. Alabama (corporate owned towns are subject
to const.); Terry v. Adams (can’t have a private pre-primary white
only election)
 Push to privatize is relevant to this today, prisons, schools etc.
 The Entanglement Exception
 (private conduct must comply with constitution if the government
is affirmatively involved [has authorized, encouraged, or facilitated
the unconstitutional conduct])
o How much affirmative action is required?
 Found in law enforcement action, government
licensing, government subsidies, voter initiatives
 Shelley v. Kraemer 1948
o Restrictive covenant on blacks living in St. Louis
neighborhood
o Does the contracting of private individuals implicate state
action?
 o Yes, because the court has to rule on the issue
 State participates in enforcing or not
 There is a distinction without a difference
between
o Enforcing the contract
o State having the policy of
segregation
o Problems:
 If this is entanglement what
isn’t very broad
 Summary of intro
o 14th am will be our focus
o Fundamental rights enforced via due process clause (b/c of slaughterhouse cases)
 Selective incorporation: most have been incorporated
o State act doct: 14th am does not protect against private actin, only state action
 PART V: EQUAL PROTECTION: WHAT IS THE CLASSIFICATION?
 Wasn’t doing a lot of work until the 1950’s
 Wasn’t taken seriously really bf this
 Classifications Based on Race and National Origin
o Dred Scott v. Sandford 1857 (14th Amendment Enacted 1868!)
 Whether Missouri law freeing slaves who traveled to free states actually
does that?
 It does not, the fugitive slaw clause prohibits this type of law and the MO
Compromise is Unconstitutional
 Pre-14th Amendment the Court can’t strike down the law, it must
strike down the Compromise
 Dred Scott is not a U.S. Citizen and cannot bring diversity suit
o The Post-Civil War Amendments
 13th Amendment: No Slavery
 14th Amendment: § 1: overrules Dred Scott, “all persons born or
naturalized in the U.S. are citizens”
 Equal protection, doctrinal basics 3 key questions
 (1) what is the relevant classification?
 (2) what level of scrutiny applies?
o Strict scrutiny  race and national origin
 (1) compelling state interest?
 (2) Law narrowly tailored to satisfy?
o Intermediate scrutiny sex discrimination
 (1) important state interest?
 (2) law substantially related to satisfying?
o Rational basis review  everything else, age discrimination, occupation
discrimination, discrimination based on if one is mentally handicapped or not
 (1) legitimate state interest?
 (2) law rationally related to satisfying?
 What exactly does it mean for a law to be rationally related
  (3) Does the law survive respective scrutiny?
3/10 Notes
 Equal protection, doctrinal basics 3 key questions
 (1) what is the relevant classification?
 (2) what level of scrutiny applies?
o Strict scrutiny  race and national origin
 (1) compelling state interest?
 (2) Law narrowly tailored to satisfy?
o Intermediate scrutiny sex discrimination
 (1) important state interest?
 (2) law substantially related to satisfying?
o Rational basis review  everything else, age discrimination, occupation
discrimination, discrimination based on if one is mentally handicapped or not
 (1) legitimate state interest?
 (2) law rationally related to satisfying?
 What exactly does it mean for a law to be rationally related
 (3) Does the law survive respective scrutiny?
 Korematsu v us
 Race-Specific Classifications That Disadvantage Racial Minorities
o Laws that expressly impose a burden or disadvantage on people because of their
race or national origin
 Only time an expressly racial classification was upheld was Korematsu
o Korematsu v. United States 1944
 Executive order (pursuant to Congressional delegation: so also a foreign
affairs and delegation issue) interning those of Japanese ancestry on
Western Coast
 Under the 5th Amendment is executive order 9066 constitutional?
 Yes, while all legal restrictions curtailing the civil rights of a single racial
group are immediately suspect they are not unconstitutional—the court
must use strict scrutiny
 Strict Scrutiny: (1) compelling state interest and (2) law narrowly
tailored
 CSI: pressing public interest may sometimes justify
o Here: we are at war
 Narrowly Tailored: the law is so narrow as to only target those that
it needs
o Here: the gravest imminent danger of potential attack and
collusion of American-Japanese lessen the strength of this
test and the Court defers to the judgment of the military
 No, (Murphy Dissents) exclusion of all those of Japanese ancestry goes
over the brink of constitutional power and falls into ugly pit of racism
 Court(s) need to defer to the military, but there needs to also be
definite limits
o Military claim must subject itself to the judicial process of
having its reasonableness determined and interests weighed
  No, (Jackson Dissents) Korematsu’s only crime is living in his home
 This law is racially motivated: those of German and Italian
ancestry where not interned
o The only difference being their racial stock
o Level of scrutiny when it comes to race discrimination should be high
 “Separate but equal” contradiction
o Classification what matters is that it’s a race conscious law
o Not only what is the state doing in this part circumstance but is the segregation
part of a bigger project
 Loving v. virginia
 Racial Classifications Burdening Both Whites and Minorities
o Loving v. Virginia 1967
 Ban on interracial marriage
 Does the ban violate the EPC and DPC of the 14th Amendment?
 Yes, while whites and blacks are punished equally the law is racially
motivated
 Operative distinction is where the law is race conscious
 Court should use strict scrutiny terms, but achieves same end using
intermediate terms
o (1) compelling state interest? Preserving genetic purity  interest here is not
compelling here
o Federalism  Core police powers  violent crimes and family law
3/12 Notes
 Plessy v ferguson
o Separate but equal
o Court emphasizes literalism
o (Framers of the 14th Amendment though Separate but Equal was okay, they voted
for SbutE schools in Wash. D.C.)
o Plessy v. Ferguson 1896
 Is SbutE is constitutional?
 Yes, 14th Amendment made the races equal before the law, but not in the
nature of things
 Laws separating does not imply inferiority
o Also separation is a part of general police powers and the
state has a legitimate interest in keeping the peace and
maintaining public morality
 No, (Harlan Dissents) the law is about excluding blacks from white cars
not public morality and safety
 The majority, therefore, is playing a game
 Brown
 Brown v. Board of Education 1954
 Again is SbutE actually equal?
 It is not, separation deprives equal opportunity
o 14th Amendment uses prohibitory language but has
implication of positive immunity
  Can’t use an originalist look at 14th Amendment
Framers because they had to compromise to reach
that language
 There is not actual intent
 It is not, separation of races generates a feeling of inferiority (black
inferiority)
o That affects motivation to learn which makes
disadvantaged students
 Separate is inherently unequal
 Q: Structural issue: state police power against federal equality
o Structural problem here
o Local school board
 Palmore laws that don’t segregate but turn on racial stuff
o Palmore v. Sidoti 1984
 Palmore left husband and was with a black man, husband wanted custody
of child
 Does potential bullying allow for children to be racially segregated?
 No, the constitution cannot control racial biases, but is can stop them from
giving effect
 That is prevent them from winning in court—father’s racial
motivation is insufficient and potential bullying is not a deterrent
 CSI: state argues it’s the interest of the child, but it’s actually racism
 Normative jurisprudence: or how should judges decide case?
 Formalism
o What characterizes legit adjudication
 Fidelity to antecedent/abstract authority rather than a focus on
consequences
 Authority?
o 1 facial literal meaning of text
o 2 original intent
o 3 original meanin
o 3 reason logic
o Examples
 Originalism
 Textualism
 Reason by analogy
 Stare decisis
o Strengths and benefits
 Attitude that treats the constitution as the law of the land
 Constitution being treated as binding law
 Sets a systemic norm
o Downsides
 Fidelity is a bit of a reach
 Can hide under guise of it
 Too rigid
  Doesn’t allow for law to adapt for changing needs and circumstances
 Pragmatism
o What characterizes legit adjudication
 Social utility
 Authority?
o 1 social science
o 2 common sense
o 3 empathic pluralism
o Examples
 Law and economics
 Active liberty
 Feminist jurispurdence
o Strengths and benefits
 Law is to serve us here and now the living
o Downsides
 Institutional legitimacy is a problem
 competence
 Washington v davis
o Washington v. Davis 1976
 Test 21 police aptitude
 What is the classification?
 Did District of Columbia use this test to screen out blacks?
 No, test was an aptitude test; setting a base communication level
 In order to trigger strict scrutiny there must be a racial
classification which requires (1) discriminatory purpose and (2)
discriminatory effect
o Here we only have effect
 Therefore, rational basis applies
 Yes, (Brennan Dissents) there is good policy reasons to not use Test 21
 (not the question at hand)
3/15 Class notes
 Washington v davis
o Facially neutral but can be motivated by racism
o 14th am only applies to the state how can it be applied to the gov dc
o Court has read in an Equal protection clause from the 5th amendment
o Discriminatory intent is required
Facially Neutral Laws with a Discriminatory Impact or Discriminatory Administration
 The Requirement for Proof of a Discriminatory Purpose
o If law is facially neutral there must be proof of a discriminatory purpose for
it to be treated with racial or national origin classification
 Threshold question before applying a classification
o Washington v. Davis 1976
 Test 21 police aptitude
 What is the classification?
 Did District of Columbia use this test to screen out blacks?
  No, test was an aptitude test; setting a base communication level
 In order to trigger strict scrutiny there must be a racial
classification which requires (1) discriminatory purpose and (2)
discriminatory effect
o Here we only have effect
 Therefore, rational basis applies
 Yes, (Brennan Dissents) there is good policy reasons to not use Test 21
 (not the question at hand)
 Palmer
 Is Proof of a Discriminatory Effect Also Required
o Most often there is evidence of effect
o Palmer v. Thompson 1971
 Pools closed down after city amenities were forced to integrate
 Can you force opening and integration of pools?
 No, there has to be a discriminatory effect and no one having a pool is not
discrimination
 Racial motivation does not necessitate a racial classification
o If intent (motivation) is used the legislature can rehear the
issue and pass for other reasons
 Best way to prove intent is by effect
 Yes, (Douglas Dissents) closing the pool has a rationally greater impact on
blacks than whites
 A state may discontinue municipal service but not for racially
motivated reasons
 Proving non-facial discrimination – examples
 How Is a Discriminatory Purpose Proven
o Effect is the best way to prove intent (purpose)
 Where disparate impact is egregious enough intent is found
 Ex: gerrymandering or banning via licensing rejection Chinese
businesses
 Yick wo v. Hopkins 1886
o Chinese immigration was wanted then cuz they were needed to build the railroad
o Then they became successful and whites got mad
o Chinese in California began laundering clothes
o San fran passed ordinance that it should be illegal to launder in a wooden building
o Desperate impact so blatant here
 Gomillion v. Lightfoot 1960
o Some city in the south
o 80% of city’s population African American
o Leg redrew the city line using a gerrymander shape
o Excluded all blacks and included all whites
o Court said give us a break this is so obviously racist
 Affirmative action
Racial Classifications Benefiting Minorities: Affirmative Action
 3 Key Affirmative Action Questions:
 o What level of scrutiny should be used?
o What purposes for affirmative action programs are sufficient to meet that level of
scrutiny?
o What techniques of affirmative action are sufficient to meet the level of scrutiny?
 University of cal v. Bakke 1978
o States can consider race in some way when deciding who to admit, diversity
fosters knowledge
o School may use race as “a factor” but may not set aside X seats (quota)
o (Powell) Strict scrutiny should apply
 Colleges have CSI in diverse student body
o (Brennan) Intermediate scrutiny should apply
 Whites are the majority and do not have a history of being disadvantaged
 The Arguments for and Against Strict Scrutiny in Affirmative Action
o For:
 Racial discrimination is racial discrimination
 Constitution requires that people be treated equally
 All racial classifications breed hostility
o Against:
 There is no long history of discrimination against whites
 Achieving social equality requires affirmative action
 Majority is highly unlikely to disadvantage itself because of racial
antagonisms
 The Use of Race to Benefit Minorities in College and University Admissions
o Grutter v. Bollinger 2003 (most important affirmative action decision) (ak was an
intervener on this case for the university)
 U. of Mich. Law School used race as a “plus factor” “among many”
 Is this use of race permissible under the EPC of the 14th Amendment?
 Strict scrutiny supposedly applies
 Yes,
 CSI: (1) effective participation by obtaining “critical mass”, (2)
securing educational benefits of a diverse student body
 Narrowly Tailored: “plus factor” is narrow enough
o Race as a plus factor in a holistic process where each
applicant is considered against others
 This is rational basis—not strict scrutiny analysis
 Yes, (Ginsburg Concurs) well documented that racism is still alive, but as
minority schools improve affirmative action will be less necessary
 No, (Scalia Dissents) “critical mass” is a sham term designed to cover up
racially proportionate admissions
 CSI: is too broad, it proves too much
 No, (Thomas Dissents) the constitution does not allow for racial
discrimination
 The court should not defer so much to U. of Mich. Admissions
under strict scrutiny—(the majority uses rational basis)
 Blacks can earn their own way in
  Narrowly Tailored: the school could drop admissions standards
No, (Rehnquist Dissents) U. of Mich. Does not satisfy narrowly tailored
prong
 “critical mass” is racial balancing
 No, (Kennedy Dissents) the majority does not apply the test of strict
scrutiny
o Gratz v. Bollinger 2003
 U. of Mich.’s undergraduate program had a scale that afforded 20 points to
racial minorities
 Is this use of race permissible under the EPC of the 14th Amendment?
 Strict scrutiny supposedly applies
 No, race as a variable cannot be quantified
 Grutter’s “plus” is facially different because the weight behind it is
unknown
o Basically the same though, because value is given either
way
 No, (O’Conner Concurs) unlike the Law School the undergraduate process
does not allow for individual analysis
 Yes, (Ginsburg Dissents) EPC allows for racial distinctions to be made an
to favor minorities
 Constitution is color conscious
o THE TENSION: Policy must draw line between policy of
oppression and measures designed to accelerate de facto
equality
o Fisher v. University of Texas 2008 (and oral argument held 12/9/15)
 Texas admission policy admits top 10% of high school students and added
“plus factor” to help certain majors attain “critical mass”
 5th Cir. Upheld and SCOTUS remanded for them to apply strict scrutiny
 Good faith is not a part of the equation there must be no other way
to achieve the legitimate ends
 5th Cir. Upheld again and SCOTUS has granted cert!!!
 Huge question how will this play out??
3/17 Notes
 Grutter
 The Use of Race to Benefit Minorities in College and University Admissions
o Grutter v. Bollinger 2003 (most important affirmative action decision) (ak was an
intervener on this case for the university)
 U. of Mich. Law School used race as a “plus factor” “among many”
 Is this use of race permissible under the EPC of the 14th Amendment?
 Strict scrutiny supposedly applies
 Yes,
 CSI: (1) effective participation by obtaining “critical mass”, (2)
securing educational benefits of a diverse student body
 Narrowly Tailored: “plus factor” is narrow enough
 o Race as a plus factor in a holistic process where each
applicant is considered against others
 This is rational basis—not strict scrutiny analysis
 Yes, (Ginsburg Concurs) well documented that racism is still alive, but as
minority schools improve affirmative action will be less necessary
 No, (Scalia Dissents) “critical mass” is a sham term designed to cover up
racially proportionate admissions
 CSI: is too broad, it proves too much
 No, (Thomas Dissents) the constitution does not allow for racial
discrimination
 The court should not defer so much to U. of Mich. Admissions
under strict scrutiny—(the majority uses rational basis)
 Blacks can earn their own way in
 Narrowly Tailored: the school could drop admissions standards
 No, (Rehnquist Dissents) U. of Mich. Does not satisfy narrowly tailored
prong
 “critical mass” is racial balancing
 No, (Kennedy Dissents) the majority does not apply the test of strict
scrutiny
o Gratz v. Bollinger 2003
 U. of Mich.’s undergraduate program had a scale that afforded 20 points to
racial minorities
 Is this use of race permissible under the EPC of the 14th Amendment?
 Strict scrutiny supposedly applies
 No, race as a variable cannot be quantified
 Grutter’s “plus” is facially different because the weight behind it is
unknown
o Basically the same though, because value is given either
way
 No, (O’Conner Concurs) unlike the Law School the undergraduate process
does not allow for individual analysis
 Yes, (Ginsburg Dissents) EPC allows for racial distinctions to be made an
to favor minorities
 Constitution is color conscious
o THE TENSION: Policy must draw line between policy of
oppression and measures designed to accelerate de facto
equality
 Numbers are the difference bw this decision and the law schools
 If the schools are specific about what your doing they will say no cant do
it, but if a school does not get specific
o Fisher v. University of Texas 2008 (and oral argument held 12/9/15)
 Texas admission policy admits top 10% of high school students and added
“plus factor” to help certain majors attain “critical mass”
 5th Cir. Upheld and SCOTUS remanded for them to apply strict scrutiny
 Good faith is not a part of the equation there must be no other way
to achieve the legitimate ends
  5th Cir. Upheld again and SCOTUS has granted cert!!!
 Huge question how will this play out??
 Did the court rigorously apply strict scrutiny? No
 Courts will generally defer to universities affirm action policies so long as
they don’t quantify the amount
 Equal Protection: sex classification, not strict scrutiny, intermediate scrutiny
o Sex its different bc men and women are more different than blacks and whites its
not just skin its biological
 Makes more sense to make distinctions bw them
 Sex discrimination not deemed as appalling as race discrimination
o What level of scrutiny should apply
 Strict  applies to suspect classifications normally
 Comes from the idea that historically certain classifications are
suspect
 Is this true based on sex? A lot of paternalism in law
 Ex. Selective service
 Craig v bohren
o Intermediate scrutiny is applied in sex
o Suspect classification
o Immutable characteristic, is the classification based on a characteristic that cant be
changed
o Discrete and insulor minority? Small in number and can not exercise their
political power against the majority
3/22 Notes
 Rational basis review
 The emergence of intermediate scrutiny  United states v. virginia
o United States v. Virginia 1996
 Virginia Military Academy admitted only men
 Does the VMI policy deny women equal educational opportunity within
EPC of 14th?
 If so, what is the remedy?
 Yes, intermediate scrutiny means women must be admitted, and
 Still allows for affirmative action—rational basis is too limiting;
strict scrutiny does not allow for affirmative action
 Virginia has shown no exceedingly persuasive justification
 Vmi ws special prestige was huge with it
 Exceedingly persuasive justification
 What were the justifications used by vmi
 1  among a diversity of educational approaches that the state
wants to experiment with
o This argument is rejected. VMI has never existed for the
purpose of promoting diversity, evidenced by its policy of
excluding women.
  2  Virginia also argues that its adversative method of training
students provides educational benefits that cannot be made
available, unmodified, to women.
o There is no reason that Virginia’s stated goal of training
competent future leaders cannot be extended to include
women.
 Gender classifications benefitting women
o Majority of these cases concern gender discrimination involving benefit of
women to detriment of men
o 2 principles:
 Gender classifications benefiting women based on role stereotypes
generally will not be allowed
 Gender classifications women designed to remedy past discrimination and
differences in opportunity are generally permitted
 Michael m v Sonoma county
o Important gov int supported by Sonoma county  stopping teen pregnancy
o Is it substantially related
o If we punish the girl criminally she is less likely to report the sexual intercourse
 Rosker v Goldberg
 Gender Classifications Based on Role Stereotypes
o SCOTUS frequently strikes down laws it sees as based on stereotypical gender
roles
o Rostker v. Goldberg 1981
 Does selective service violate 5th Amendment in authorizing the president
to require registration of males not females?
 Congress is afforded the most deference
 National security and military affairs
 No, the determination was not made on unthinking stereotypes
 Combat troops need the physicality
 Under Craig v. Boren the interest in constitutional provisions are
“important governmental interests”
 Yes, (White Dissents) military demands that all troops be combat ready
(includes women)
 Experience argues that women should be in draft even though
ineligible for combat—they can be in non-combat roles
o No one denies that raising and supporting the armies is an important gov interest
 Avoiding the administrative burden that go along with making women be
drafter
 Women going off to war in a time of war would be demoralizing, women
are important during time of war we need them here
 Supreme court seminar
o
 EP and everything else
o In theory: the default level of scrutiny
  Sex orientation
 Age
 Occupation
 Income
 Visual ability
 Feloniousness
 Etc
o Test:
 (1) does the law conceivably (?) implicate a legitimate stateinterest?
 (2) is the law rationally related to achieving that legitimate state interest?
 Massachusetts board of retirement v murgia
o In purest form rational basis test is hard to fail
 Moreno
o Food stamps
 City of clebourne
 Rational basis review
o Mergia classicly applied
o Clayburne and morento  heightened application
 Romer v evans
 Romer v. Evans 1996
 Colorado adopted an amendment to their constitution prohibiting
homosexuals from becoming a protected category
o Reason: treat homosexuals as everyone else
 Does this violate EPC of the 14th Amendment?
 Yes, the amendment withdraws homosexuals from specific legal
protections and ensures that can’t be undone
o EPC of 14th Amendment must coexist with practical
necessity that most legislation creates classes
o Court will uphold (under heightened R.B.) a law that
neither:
 Burdens a fundamental right, nor
 Targets a suspect class
 No, (Scalia Dissents) the amendment keeps sexual preferences on
the same level
o Majority says being prohibited from special treatment is
unequal treatment
 st
1 question to ask on equal protection hypo
o (1) what is the classification?
o (2) discrimatory intent and effect
o Are they a state actor???  if no no eq claim
o If non facial you have to show intent
4/5
 Due process
 o No state shall depribe any person of life, liberty or property without due process
of the law
o Procedural due process
o Requirements triggered when:
 (1) life, liberty, or property interests implicated ; and
 (2) government invades/denies those interests without following their
procedures first
 Ex.
 Fair criminal trial
 Kelly
 Aldridge
 Denial of government benefits
 Stripping of license
o No person shall be deprived of life lib or property w/o due process of law
 Pdp as established procedures (old)
 Only process due is one normally given in that circumstance
 Pdp as fair procedures
 Process due has to be fair
 Easy cases:
o Criminal trials (biased jude, etc.)
 Harder cases
o Goldberg v Kelly
o Mathews v eldridge
o What do we mean by life liberty and prop?
 Property is hardest
 Does it have to be actual legal prop or some kind of const
protected prop
o Questions to ask on pdp
 (1) Is this a congnizable interest?
 (2) What kind of process is due
 Goldberg v Kelly
o (1) are welfare benefits a cognizable interest
 Something does not have to be a constitutional right to count as a
cognizable property interst
 It can be a priviledge
 Modern life its so common for us to depend on state privs in order for us
to do the things we do
 Yes
o (2) What procedures are required bf depriving Kelly of their prop interests?
 Kelly being able to eat
 Govs intersts  administrative burdens
 Pre deprivation hearing allows those who don’t need benefits to get
benefits until the hearing not enough of a burden
 Mathews v eldridge
o Eldridge was receiving disability benefits
  3 factors in deciding whether deprivation of property interest
violates procedural due process
o 1 nature of the private interest affected by the action
 Termination of disability payments vs. assistance
benefits
 Diabili bens r not based on persons needs not
deprived of means for substinence
o 2 the risk of an erroneous deprivation of interest and the
value of additional procedures
 The procedures were sufficient bc determination of
a medical disability is based largely on objective
medical information
 Submission of the questionnaire, medical reports
and written response is adequate. A
predetermination hearing would add little value
o 3 govs countervailing interest, including fiscal and admin
burdens
 A pretermination hearing would impose fiscal and
amin burdens out of proportion to the
countervailing benefits
 Substantive due process
o (1) economic substantive due process
 1874-1937
 Peak period: the Lochner era
o (2) modern era: privacy intimacy substantive dp
 1923-present
 Economic substantive dp

Economic Due Process (Economic Liberties)

TODAY ONLY A RATIONAL BASIS TEST IS USED FOR LAWS EFFECTING ECONOMIC RIGHTS
 Constitutional rights concerning the ability to
o Enter into and enforce Ks
o Pursue a trade or profession
o Acquire possess and convey property
Economic SDP during the 19th Century
I. Slaughterhouse Cases, 1873 initial rejection
A. Court flatly rejected the idea that due process clause could be used as a safeguard to
the right to practice a trade or profession from arbitrary gov’t interference
B. Instead, said that due process clause applied only to procedures the gov’t was
required to follow
II. Munn v. Illinois, 1876 court upheld statute that regulated prices grain elevators could
charge to store grain
 A. Rights of property which have been created by the common law cannot be taken away
w/o due process.
1. Means something more than procedure
III. Mugler v. Kansas, 1887 a statute to protect public health may be constitutional if it is
related to public health
A. “If a STATUTE purporting to have been enacted to PROTECT public health, the public
morals or the public safety, HAS NO REAL OR SUBSTANTIAL RELATIONS to those
objectives, or is palpable invasion of rights secured by the fundamental law, IT IS THE
DUTY OF THE COURTS TO GIVE EFFECT TO THE CONSTITUTION.”
IV. Allegeyer v. Louisiana, 1897 State law prohibited payments on marine insurance policies
issued by out of state companies that were not licensed or approved to do business in the
state
A. Statute violated the 14 amendment due process clause b/c it prevented the  from
th

exercising his freedom to K.

1. The guarantee of liberty in the 14th amendment protected not only physical
liberty, but also such intangibles as the right to live and work where one wishes,
to earn ones livelihood by any lawful calling and to enter any Ks necessary to
accomplish any of these goals.
B. Court invalidated a state law based on due process as a limit of economic regulation

Economic SDP and the Lochner Era

I. Lochner v. NY, 1905
A. Facts: Challenge by bakery owner to state law set the max hours bakers could work.
State claimed that the law was necessary and was intended to protect the health of
the bakers.
B. Held: Law violates DP clause of the 14th b/c it interfered w/ freedom of K and it
didn’t serve a valid police purpose
1. Lochner Test: is this a FAIR, REASONABLE, and APPROPRIATE exercise of the
state’s police power, OR, is it an UNREASONABLE, UNNECESSARY and
ARBITRARY interference w/the right of the individual to exercise personal
liberty?
i. How to determine what’s arbitrary? Legislature then the gov’t and courts
have the final say over what’s reasonably related
i. Gives judges great amount of authority to knock down laws they didn’t
like and keep what they could live with
2. Allowed courts to strike down almost any regulatory and economic legislation
that it wanted (was very broad)
3. This shook judicial review more people were looking for gov’t regulation to
shut down statutes
C. Summary 14th amendment DP regulates both substance and procedure
1. Substantive side 14th amendment liberty and property permit court to
scrutinize economic regulation
2. 14th amendment liberty protects freedom to K
 3. Courts have final say on what legislation is reasonable or arbitrary exercise of
police power
II. Lochner Era Overview
A. 3 major principles of the Lochner Era
1. Freedom of K is a basic right protected as liberty/property under the DPC of the
14th amendment
2. State can interfere w/freedom of K only to serve a valid police purpose,
protecting the public health/safety/morals
3. It is the judicial role to carefully scrutinize legislation interfering w/freedom of K
to ensure it served a police purpose
B. The above principles reflect classic Lochner Era SDP.
1. DP was used
i. To ensure gov’t followed proper procedure AND
ii. To ensure the gov’t had an adequate purpose
C. The courts looked at both the
1. Ends: ensure there really was a valid purpose
2. Means: to ensure the law sufficiently achieved its purported goal
III. O/Post Lochner Developments
A. Muller v. OR, 1908 Maximum hours for women
1. Court distinguished from Lochner by stating that the state had a strong interest in
regulating women’s hours than men’s
B. Laws protecting unionizing
1. Adair v. US gov’t doesn’t have power to compel a person in the course of his
bus and against his will to accept or retain the personal services of another
2. Coppage v. KS Struck down a law preventing employers from requiring
employees not unionize
i. Not a legitimate exercise of police power for the gov’t to attempt to
equalize bargaining power between employer/employee. Person has no
inherent right to join a union an remain employed by one who is unwilling
to employee a union man
C. Adkins v. Children’s Hosp., 1923 Minimum Wages
1. Declared unconstitutional a law that set minimum wage for women
i. Court stated that law
a. Interfered w/freedom to K and
b. Didn’t serve any valid police purpose
End of Lochner Era
I. Nebbia v. NY, 1934 suggested Lochner’s demise and one of the first cases to move away
from Lochner
A. Court upheld an NY law that set prices for milk
1. Court declared a need for judicial DEFERENCE to legislative choices
B. Questioned the premise of Lochner era that the gov’t can only regulate to achieve a
police purpose and the court needed to review laws aggressively to ensure that they
truly served a police purpose
 1. “So far as the requirement of DP is concerned and in the absence of
o/constitutional restriction, a state is free to adopt whatever economic policy
may be reasonably deemed to promote public welfare, and toe enforce that
policy by legislation adopted to its purpose.”
II. West Coast Hotel v. Parrish, 1937 minimum wage/hours in hotel industry for women,
overturning Adkins
A. Court upheld state law that required a minimum wage for women employees and
expressly overruled Adkins.
B. Opinion made it clear that the court was abandoning the principles of Lochner
1. “Regulation which is reasonable in relation to its subject and is adopted in the
interests of the community do not violate DP.”
C. Court declared
1. It would NO LONGER protect freedom of K as a fundamental right
2. Gov’t could regulate to serve any legitimate purpose
3. And the judiciary would DEFER to legislature’s choices so long as they were
reasonable
III. US v. Carolene Products Co.,1937 Presumptive constitutionality
A. Court upheld the filled milk act that prohibited filled milk.
B. Court sets up the Rational Basis Test for Economic Regulations
1. “Economic regulation should be upheld so long as they are supported by a
conceivable rational basis even if it cant be proven w/legislatures actual intent”
i. If legislature had rational basis for what they are doing then its okay
ii. Almost no regulation at all very low burden (Constitution barely
regulates economic activity today)
2. If congress has facts that is fine, but don’t have to rest on facts they can rest on
assumptions
C. What if congress gets a statute wrong?
1. They can get it wrong as long as it’s rational. They don’t have to prove they made
the right decision.
D. Court doesn’t look at what the legislature might have been thinking as long as there
is some rational basis for the legislation
E. Fn. 4: Rejects Lochner Era and proposes a tiered system
1. Generally court would show deference to legislature that laws are reasonable but
said deference wouldn’t extend to laws that
i. Interfere with individual rights
ii. Restrict the ability of the political process to repeal undesirable legislation
iii. Or discriminates against a discrete and insular minority
2. Provided for judicial review
i. Fundamental right = strict scrutiny
ii. Not a fundamental right = rational basis
Economic SDP Today
 Since 1937 not one economic regulation has been found unconstitutional as infringing liberty
of K as protected by 5th/14th
 Law regulating business and employment practices will be upheld when challenged under the
due process clause so long as they are rationally related to serve a legitimate gov’t purpose
o Gov’t purpose: Can’t be any goal not prohibited by the constitution
 Doesn’t need to be proved that asserted purpose was legislatures actual objective
 Any conceivable purpose will do
 Hypo: Rational Basis Test
o Facts: NY City council prohibits aluminum baseball bats being used. Didn’t have concrete
data but they had rational basis (protecting kids)
o Holding: The court will uphold b/c there is rational basis
4/7 Notes
 1920-1930 legal realism
 Substantive dp
o Carolene  default approach of Court is rational basis, very deferential,
economic relations no longer a fundamental right, getting rid of economic
substantive due process
 Carolene Products: Footnote 4 led to 3 Tier analysis
 Strict for Fundamental right
 Medium for gender, non marital children
 Rational for everything else
o Economic regulations ration basis scrutiny
 But said civil rights statutes could get higher scrutiny
 How do you establish a fundamental rightSome justices say look to
history; others say not important
 Specificity
o Some courts have stated fundamental right needs to be as
narrow as possible
o Other courts have stated fundamental rights much more
broadly
o Williams v lee optical
 Opt cant fit old lenses to new frames unless there is a new script
 Legit state interest the general interestthte state has via police powers
to look out for health and general welfare of people
 How is this rationally related to this?  well ok could have
thought that ok citz having good vision is so important that they
want a law to make ok cits have their eyes tested regularly
 Ex. If old script is on filed w/ them then frames can be fitted
 Rational basis test is basically impossible to fail
 Is court showing respect to leg process and democracy cuz the people
voted in the ppl who wrote these laws
o 1937 esdp goes dormant except for family and privacy which are the foundation
of modern sdp
o 1) is there a fundamental right indicated and 2) does It pass strict scrutiny
Early Cases
 Right of parents to control upbringing/schooling of child
o Meyer v. NE, 1923 Court struck down state law that prohibited the teaching of foreign
languages to children.
 The right of teachers to teach and students to learn was fundamental.
 The statute was w/o reasonable relation to ANY end w/in the competency of the
state
o Pierce v. Society of Sisters, 1925 Right guaranteed by constitution may not be abridged
by legislation which has no reasonable relation to any end.
 Decision rested on the liberty of parents and guardians to direct the upbringing
and education of children
 Skinner v. OK, 1942 Court invalidated a state statute that provided for compulsory
sterilization of persons convicted 3x of felonies showing “moral turpitude” but didn’t apply to
which collar crimes like embezzlement.
o “Marriage and procreation are fundamental to the very existence of this race.”

 Meyers
o Third party standing
o Unconstitutional
o Family and bringing up children is fundamental right  basis of society
o Why include the right of meyer to teach  right to contract, economic sdp but
ignore this
 Pierce v. society of siters
o No reasonable relation to any end
o Decision rested on the liberty of parents and guardians to direct the upbringing
and education of children
 Buck v Bell
o Still technically good law but a decision that is not used to justify any other law
o Read as a set up when talking about the freedom in regard to procreation
 Skinner v Oklahoma
o Way of correcting buck v bell
o Skinner v. OK, 1942 Court invalidated a state statute that provided for
compulsory sterilization of persons convicted 3x of felonies showing “moral
turpitude” but didn’t apply to which collar crimes like embezzlement.
o “Marriage and procreation are fundamental to the very existence of this race.”
o Level of scrutiny  strict scrutiny
 4/12 Notes
o Griswold v Connecticut
 Modern sense of substantive dp
 (1) in Griswold we see explosion of ethereal moralizing
 (2) war bw liberal and conservative judges
 Various amendments read together give rise to penumbral rights
including the right to privacy and repose
 Right to association is the basis for its ruling
 1st am gives right to association
 As well as other amendments working together
o 1st
o 3rd amendment
o 4th
o 5th
o 9th
 Penumbras formed by emanacions  give life and substance
 Penumbra = like shadow solar eclipse example
 Fundamental right to privacy and repose includes right to use
contraception
 The Right to Purchase and Use Contraceptives
 Griswold v. Connecticut 1965
o Griswold consulted couples on using contraceptives
against CT law
o Q is contraceptive usage by married couples a
fundamental right?
o Yes, this right is under the umbrella of right of privacy and
repose which is a penumbral right of the Bill of Rights
 CSI: encouraging traditional sex practices
 Narrowly Tailored: nope, law destroys privacy (is
overbroad) and there are more effective means like
stopping the sale of contraceptives instead of
outlawing the consultations
o Yes, (Goldberg concurs) right of privacy in the Marital
Relation is fundamental and basic within the 9th
amendment and through the 14th CT can’t infringe
 Only written concurrence that really relies on the
9th amendment
o Yes, (HARLAN’S CONCURRENCE) proper constitutional
inquiry here is if statute violates the DPC of 14th because
the “enactment violates basic values implicit in the
concept of ordered liberty”
 9th Amendment can aid but DPC stands on its own
o No, (Black Dissents) “right of privacy” is not fundamental,
plus the government is allowed to invade privacy unless it
is prohibited
 Judges can’t be pragmatists—changing the
constitution is for the political process
o No, (Stewart Dissents) the law is a silly law but the
question is if it violates the constitution which it does not
 If the people don’t like it go to the political process
 o Eisstedt v. Baird: court upheld non-married persons using
contraceptives
 Therefore, Griswold’s “marital sacredness”
couching is a farce
 Roe v. Wade, 1973 Constitution protects the right for a woman to choose to
terminate her pregnancy prior to viability
o Facts: TX statute makes it a crime to procure an abortion and state claims
abortion is wrong b/c of life at conception
o “The right of privacy, whether found in the 14th amendment conception of
personal liberty and restrictions upon state action, or as we feel it is, in the 9 th
amendment’s reservation of right to the people, it is broad enough to
encompass a woman’s decision whether or not to terminate her pregnancy.”
 Focused on right to privacy
 Notable that privacy isn’t found in the penumbras of the BoR like
Griswold
o Right to abortion ISN’T absolute must be balanced against o/considerations
(like state interest in pre-natal life)
o Roe Step-by-Step
 Constitutional basis 14th amendment DP clause
 Right of privacy/personal autonomy
 Claimants right liberty, individual interest in terminating pregnancy
 Level of scrutiny where certain fundamental rights are involved the
court has held limiting these rights may be justified only by a compelling
state interest (STRICT SCRUTINY)
 States interest (may or not be compelling) When they become
compelling?
 Health of mother
 Maintaining medical standards
 Protecting potential human life
o Legitimate Compelling State Interest Trimester Analysis
 1st Trimester gov’t cant prohibit abortions and can only regulate as it
would o/procedure. Abortion decision left to medical opinion of the
woman’s attending physician
 2nd Trimester state may regulate abortion procedures in ways
reasonably related to maternal health
 3rd Trimester stage subsequent to viability, state may regulate or even
proscribe abortion except when necessary (in appropriate medical
judgment) to preserve life or health of the mother)
o Clear SDP, wouldn’t have been a great equal protection case
o Right to personhood
o Heart of roe  how do we apply this what’s the test we use for analysis
 Legitimate compelling state interest  trimester analysis
  First trimester: right to abortion at its peak. Few if any state restrictions
permitted
 Second trimester: the state has a csi in ensuring the health of the mother
and may regulate abortion in was that are reasonably related to maternal
health
 Third trimester: 24 to 28 weeks the state has a csi in the potentiality of
life an thus may regulate/ban abortion except when abortion necessary
to protect the life or health of the mother
o NO LONGER GOOD LAW
Class Notes 4/14
 Cases and fact summaries
o Planned parenthood v casey
 19 years after roe v wade, there was a Pennsylvania law that had 5
restrictions on abortion and planned parenthood brought suit challenging
these restrictions against casey the governor of pennsylvania
o Gonzales v. Carhart
 Congress passed a law known as the partial-birth abortion ban act which
prohibited intact dilation and evacuation in the second trimester and
carhart a physician that performed the procedure brought suit in federal
district court against the attorney general to enjoin the law from taking
effect by arguing it was unconstitutionally overbroad and lacked a health
exception for partial-birth abortions necessary to protect the health of
the mother.
o Whole Womans health v hellerstedt
 The state of Texas passed two laws governing abortions, the first required
the doctor performing an abortion have admitting privileges at a hospital
no more than 30 miles away and the second provision required that the
standards for each abortion facility meet the minimum standards for
ambulatory surgical centers and whole womans health brought suit
claiming the laws were unconstitutional
o Bowers v hardwick
 There was a statute in Georgia that criminalized oral and anal sex
between two consenting adults, , and hardwick was charged with
violating the statute with another man in his home, hardwick challenged
the statutes constitutionality in federal district court arguing that the
Georgia statute violated his fundamental rights
o Lawrence v Texas
 There was a Texas statute that made it illegal to engage in deviate sexual
intercourse with a person of the same sex and When police went to
lawrences home after being dispatched in response to a report of a
weapons disturbance they observed Lawrence engaged in a sexual act
with another man and charged them with violating the statute. Lawrence
 and his partner argued that the Texas statute was a violation of the equal
protection clause and the supreme court granted their petition for review
 Planned parenthood v casey  plurality rejects roes “rigid” trimester framework in
favor of an undue burden test
o A  conservatives having a way to overturn roe
o B  trimester framework was too rigid
o Undue burden test
o Joint opinion  several justices authoring it together
o Did not overrule roe, realm of personal liberty that government may not enter,
personal dignity and autonomy
o Cited stare decisis
o Undue burden test is strict scrutiny tailored for abortion
 Planned Parenthood of SE Penn. v. Casey, 1992 Undue Burden Test for Abortion
o Law at issue required:
 24 hour waiting period
 Dr inform women about the availability of information about fetus
 Parental consent for unmarried minor abortion
 Reporting and record keeping
 Pregnant woman inform her husband before abortion
o Reaffirmed essential holding of Roe
 Woman’s right to choose b/f viability
 State’s power to restrict after viability
 State legitimate interest in protect life and mother’s life/health
o Right to abortion comes from the 14th amendment
 Liberty protection relating to marriage, procreation, contraception,
family relationship and child rearing
 14th amendment protects liberty much more than explicitly stated
in the amendment
o Overruled the Trimester Distinction in Roe
 Gov’t may regulate abortion b/f viability as long as it doesn’t place an
undue burden on abortion and use the strict scrutiny evaluation for gov’t
regulation of abortions
o Abortion NO LONGER a “Fundamental Right”
o Undue Burden Test a state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abortion of a non viable
fetus (rational basis)
 Test whether statute places undue burden on access to abortion
 Standard is appropriate means of reconciling state’s interest
w/woman’s constitutionally protected liberty
 It is an undue burden to require a woman to get her spouses permission
or consent b/f obtaining an abortion but not to have a minor have
parental consent or ruling by judge
 Planned Parenthood v. Casey 1992
 o (court overrules trimester distinction and use of strict scrutiny)
 Trimester is replaced with undue burden
 Undue burden: before viability a state may enact laws reasonably related
to:
 (1) Informed decision making,
 (2) persuasion to forego,
 (3) and ensure health and safety of the woman
 But may not place a substantial obstacle
 After Viability abortions are okay only as they relate to the health
of the mother
 Laws impose an undue burden if they have the purpose or effect
of placing a substantial obstacle in the path of a women obtaining
a pre-viability abortion
 after viability states can ban abortions so long as they allow it in
situation wherein it is necessary to protect the life or health of the
mother
o Revisiting Roe, are abortions okay?
 Yes, under new system outline above
 Not every law making a right more difficult to exercise is
unconstitutional—only where state regulation places an undue
burden
 Yes, (Blackmun Concurs and Dissents) abortion restrictions implicate
gender equality and strict scrutiny should apply
 No, (Rehnquist Dissents) abortion (unlike marriage) includes the life of
another and this is important
 No, (Scalia Dissents) PQD; recalls Chief Justice Taney hanging in Harvard
Law School and his decision in Dred Scott which should have been left to
the political process
 NOTES:
 what has been upheld under this rubric: minor exception
 What has not been upheld: spousal notification
 Gonzales v. Carhart
o Partial birth abortion act
o Intact dilation and evacuation
 Gonzales v. Carhart, 2007 congress allowed to ban partial birth abortions using
what appeared to be a rational basis test
o Balance liberty interest v. gov’t regulation on profound respect for unborn
child
 Law is constitutional even though it has no exception for allowing the
procedure where necessary to protect the health of the mother
 This was a FACIAL ATTACK
o Court uses rational basis standard
  Where it has a rational basis to act and it doesn’t impose an undue
burden the state may use its regulatory power to ban certain procedures
and sub others all in furtherance of its legitimate interests in regulating
the medical profession in order to promote respect for life, including that
of the unborn
 Congress didn’t have to be correct, just rational
o Holding the law is FACIALLY constitutional b/c it is not an undue burden for
large fraction of woman (
 Left room for as applied challenge
 Whole Womans health v hellerstedt
4/16 
 Cases with summary
 Whole Womans health v hellerstedt
 The state of Texas passed two laws governing abortions, the first required the doctor
performing an abortion have admitting privileges at a hospital no more than 30 miles
away and the second provision required that the standards for each abortion facility
meet the minimum standards for ambulatory surgical centers and whole womans health
brought suit claiming the laws were unconstitutional
o Admitting privs  doctor performing abortions in outpatient facility can go to a
nearby hospital and continue work there
o Casey burden vs benefits those laws confer
o Why struck down? Benefits are not apparent
o Arbitrary
o Undue burden by ppl affected by the law  here women in west Texas
 Sdp and abortion
o Roe v wade: announces fr to abortion
o Planned parenthood v casey:
 The operable precedent
 Rejects strict trimester framework of roe
 Undue burden test:
 Purpose or effect of placing an undue burden
 Analysis applies women affected by law, not women in general
 Very fact intensive and context sensitive
o Balancing: cts are to balance benefits of law with burden
o No deference to legislatures in determining specific
benefits/burdens of laws
 Bowers v hardwick  sexuality, no longer good law
 There was a statute in Georgia that criminalized sodomy between two consenting adults
and hardwick was charged with violating the statute with another man in his home,
hardwick challenged the statutes constitutionality in federal district court arguing that
the Georgia statute violated his fundamental rights
o Question bf the court  Does the U.S. Constitution provide a fundamental right
to engage in homosexual sodomy?
 o 1  claim that sdp cases of the past have no grounding in constitutional text
o 2  Even if they are legit none of them are even remotely related to sodomy,
they deal with contraception and family
 Lawrence v Texas  sexuality 2003  ended here
 There was a Texas statute that made it illegal to engage in deviate sexual intercourse
with a person of the same sex and police in lawrences home observed him engaged in a
sexual act with another man and charged them with violating the statute. Lawrence and
his partner argued that the Texas statute was a violation of the equal protection clause
and the supreme court granted their petition for review
 Obergefell v hodges 2015 the right to marry  starting here s
 Obergefell’s partner was terminally ill and the pair decided to marry, they went to
Maryland where same sex marriage was legal to obtain a license and when obergefells
partner passed away their home state of ohio refused to list Obergefell as his partners
surviving spouse on the death certificate, Obergefell sued claiming violations of his
rights under the 14th amendment and his case was joined with other cases of the same
nature when the supreme court granted cert
o Notes from class
 Equal protection and sdp mix
 Sdp decision however
 Legit state interest here? 
 could be protecting freedom of religion, county clerks are going to
be expected to do something against their religious beliefs
 protecting the institution of marriage
 may be incentivizing pro creation
 rational basis + (romer v evans)
 marriage is central to the person
 Sdp rights (outline)
o (1) Marriage (confirmed most strongly by Obergefell, at least when mixed with
equal protection?)
o (2) custody of one’s children
o (3) control upbringing of children
 Meyer v Nebraska, pierce v sos
o (4) refuse medical treatment (tentative)
 Cruzan v. Missouri dept of health
 Not a fundamental right: physician assisted suicide
 Washington v Glucksberg
o (5) reproduction: procreate/contraception/abortion
 Skinner v Oklahoma, Griswold v con, roe v wad
o (6) sexual autonomy
 Lawrence v Texas
 Congress’ enforcement power under the reconstruction amendments:
o 13th am: congress shall have power to enforce this article by appropriate leg
 o 14th: the congress shall have power to enforce by appropriate leg the provisions
of this article
o 15th: the congress shall have the power to enforce by appropriate legislation the
provisions of this article
 To what extent can congress enforce these rights??
 The Enforcement Clause
o 13th Am, §2, 14th Am §5, 15th Am. Enforcement clause congress shall have the
power to enforce this article by appropriate legislation
 13 congress has some authority under this clause
 14 congress may ONLY move against STATE action here
 15 congress has some authority but there are so many loopholes it
isn’t used much
 Katzenbach v. Morgan & Morgan
 Section 4e of The voting rights act provided that no person that successfully completed
the sixth grade in a public or private school accredited by the Commonwealth of Puerto
Rico could be denied the right to vote in an election because of his inability to read or
write in English, but The election laws of the State of New York required all voters to
have the ability to read and write English as a requisite to voting, morgan and other
registered voters brought suit against Katzenbach the United States government official
tasked with enforcing §4(e) challenging the constitutionality of it in court on the
grounds that it prohibited enforcement of New York’s election laws
o Notes
 What authority does congress have to do that? Congress’ powers are
enumerated not plenary
 Congress says enforcement clause of the 14th
 Lassiter  literacy tests are not themselves unconstitutional under equal
protection
 Court rejects this narrow construction
 What was original intent of enforcement clause 14  not a meaningful
difference between them (necessary and proper was taken out)
 City of Boerne v. Flores  court makes a decision that congress doesn’t like
 Congress enacted the Religious Freedom Restoration Act (RFRA) in an express attempt
to overturn the United States Supreme Court’s decision in Employment Div., Dept. of
Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), and flores an archbishop of
his church in texas brought suit after the city denied his churches application for a
building permit to expand, saying this was a violation under the religious freedom
restoration act
o Notes
 City of Boerne v. Flores, 1997 (Texas Church): Congress can’t explicitly overrule a
decision of the supreme court by legislation. RFRA is unconstitutional as exceeding the
scope of congress’ §5 powers
o Congress is attempting to replace, with the compelling interest test, the
Supreme Court’s decision asserting that the compelling interest test is
 inappropriate in cases involving general prohibitions with free exercise
challenges
 This action violates separation of powers it is in the role of the Judiciary
to determine the constitutionality of laws. The powers of the legislature
are defined & limited
o Under the 14th Amendment Enforcement Clause, Congress may enact laws to
enforce what is already there, or remedial and preventive law.
 But RFRA is NOT a preventive law. Instead it redefines the scope of the
Free Exercise Clause, and nothing in our history extends to Congress the
ability to do this.
 The problem with RFRA was federalism the problem was that
congress wanted to force state to do more than the court had done
(NOT that congress wanted to do more than the court had done.)
 Key Point: Hibbs & City of Boerne: Congress has broad power under §5
of the 14th Am when its legislating against evils that the court has
recognized as unconstitutional, but congress CANNOT use §5 of the 14 th
amendment to legislate against stat action that the court thinks pose no
constitutional problem
o Congress cant create new rights
o Has to be proportional and congruent to the thing its trying to fix needs to be an
sdp
o What about the vra of 1965
 Shelby county v holder
 Section 2 of the Voting Rights Act prohibited any standard, practice, or procedure
imposed or applied to deny or limit the right to vote on account of race or color. In the
states with the most severe restrictions, Congress required any changes in voting
procedures be preapproved by either the Attorney General or a court of three judges in
Washington, D.C., under § 5 of the act. These states were determined through a formula
set forth in § 4(b). Both § 4(b) and § 5 were temporary and were set to expire after five
years. Congress kept reauthorizing these provisions keeping them in place and Shelby
county sued the government claiming that section 4b and 5 were unconstitutional
o Notes
 Pre clearing requirement


4/21  notes
 Shelby county v holder
o Remedy has to be congruent and proportional to the problem
4/28 Notes
 Why free speech
o Natural rights
o Democracy
 o Marketplace of ideas
 General rule  gov cant restrict speech unless exceptions
o Exceptions
 Defamation
 Fighting words
 Incitement to violence
 What is speech  the problem of expressive conduct
o Conduct is speech when
 (1) there is an intent to convey a message; and
 (2) there is a substantial likelihood that the message would be
understood by those receiving it
 Examples (a lot depends on context)
 Nazi salute at white supremacist rally?
 Burning a draft card?
 Making a custom cake for a gay wedding?
 Abstract art?
 Fundamental principle
o Content/viewpoint based restrictions presumed unconstitutional
 Viewpoint based: “it shall be unlawful to openly oppose U.S. foreign
policy” –Strict scrutiny applies
 Content based: “it shall be unlawful to openly express views about U.S.
foreign policy  strict scrutiny applies (highest presumption of
unconstitutionality)
o Texas v. Johnson
 Strict scrutiny applies
 Hecklers veto  not const protected speech
 Doctrinal basics
o Content neutral restrictions
 Aka “time, place, … and manner restrictions”
 Trigger intermediate scrutiny
 Ex.
 Protests are forbidden in public parks after 10pm
 Students may ot adhere signs or other matter to their dormitory
 Caveat: Facially neutral but suppressive purpose
 Studens may only protest in “free speech zone” established by the
university, and listed in the student handbook
o Student handbook states that free speech zones comprise
only 5% of campus ground, and the zones are in areas
remote from the busier areas of campus
 Caveat: excessive discretion
 Prio to an invited speaker speaking on campus the inviting student
org must first pay a security fee commensurate with, in the view
 of administrator x, the likelihood that the nature of the
anticipated speech will give rise to disorder on campus”
o Categories of unprotected speech
 Incitement to violence
 (1) Brandenburg v. ohio
o (1) violence must be imminent
o (2) intent of imminent illegality required
 Note: this category does not include speech that “causes”
violence bc the views expressed angers listeners
 (2) fighting words
 (Chaplinsky v. new hamp) (not the best law)
o Chaplinsky to city marshall : youre a gosh danged
racketeer.. a damned facist”
 More recently defined: “a class of words likely to provoke the
average person to retaliation and thereby cause a breach of the
peace.” = Street v new York
 Significantly narrowed ; vagueness problems
 Since Chaplinsky sup court has never upheld a conviction under
fighting words
 Cohen v California
o Court invalidates
o Words like fuck have particular emotive power to them
 (3)true threats
 Where a speaker means to communicate a serious expression of
intent to commit an act of unlawful violence to a particular
individual or group of individuals
 Virginia v black
o Yes if somebody burns cross w intent to intimidate then
state can prohibit it
o No we cant assume intent to intimidate
 Hate speech is not a first amendment concept, no first amendment
exception for hate speech

Cases