Fall 2020 Constitutional Law Outline

Table of Contents
Constitution vs. Articles of Confederation......................................................................................................3
Justifying Judicial Review...............................................................................................................................3
Marbury v. Madison (1803).........................................................................................................................................3
Cases Clarifying Judicial Review..................................................................................................................................4
Justiciability Doctrines...................................................................................................................................4
Ban on Advisory Opinions...........................................................................................................................................4
Standing......................................................................................................................................................................4
Mootness....................................................................................................................................................................5
Ripeness.....................................................................................................................................................................5
Political Question Doctrine.........................................................................................................................................5
Enumerated Powers.......................................................................................................................................5
McCulloch v. Maryland (1819)....................................................................................................................................5
Necessary and Proper Clause......................................................................................................................................6
Limits of Sovereignty in the Federal System................................................................................................................6
Values Served by Federalism......................................................................................................................................6
The Commerce Power....................................................................................................................................7
Gibbons v. Ogden (1824).............................................................................................................................................7
Post-1887 Cases: Striking down laws as exceeding the scope of the Commerce Power..............................................8
The Commerce Power and the New Deal Tension.......................................................................................................9
Moving on to great deference to Congress: The Commerce Power After the New Deal............................................10
The Commerce Power and Civil Rights (continued great deference to Congress)......................................................11
The Contemporary Commerce Power.......................................................................................................................11
The Tenth Amendment as a Restraint on the Federal Commerce Power..................................................................13
The Taxing and Spending Powers.................................................................................................................15
Child Labor Tax Case (Bailey v. Drexel Furniture Co.) (1922).....................................................................................15
NFIB v. Sebelius (2012) from a Taxing Perspective....................................................................................................15
Spending Power as a Regulatory Device....................................................................................................................16
Additional Notes on the Scope of Federal Power (pg. 56 in notes)............................................................................17
Dormant Commerce Clause..........................................................................................................................17
Market-Participant Exception...................................................................................................................................18
Standard of Scrutiny.................................................................................................................................................18
Three Categories of Dormant Commerce Clause Challenge.......................................................................................18
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 Facially Discriminatory Laws............................................................................................................................................................18
Facially Neutral Laws that Favor Local Economic Interests.............................................................................................................20
Facially Neutral Laws that Unduly Burden Interstate Commerce...................................................................................................21
Privileges & Immunities Clause.................................................................................................................................23
Categories of Valid Privilege & Immunities Challenges...................................................................................................................23
Federal Preemption of State Regulation..........................................................................................................................................24

Executive Assertions of Power......................................................................................................................25

Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case] (1952).................................................................25
Modern Cases...........................................................................................................................................................26
Congressional War and Treaty Powers and the Implied Power over Foreign Affairs.................................................28
Treaty Power....................................................................................................................................................................................28
Congressional Authority to Restrain and Enable the Executive.................................................................................29
Examples of Delegation....................................................................................................................................................................29
Appointment & Removal of Executive Officers.........................................................................................................31
Executive Privileges & Immunities............................................................................................................................34
Denial of Privilege............................................................................................................................................................................34
Presidential Immunity......................................................................................................................................................................34

Individual Rights..........................................................................................................................................37
The Bill of Rights – Application to States & the Meaning of Citizenship....................................................................37
Post-Civil War Amendments.....................................................................................................................................38
The Incorporation of the Bill of Rights through the Due Process Clause....................................................................40
Substantive Due Process and Economic Liberties......................................................................................................41
Lochner v. New York (1905).............................................................................................................................................................41
Decline of Lochner...........................................................................................................................................................................42
United States v. Carolene Products (1938)......................................................................................................................................43

Substantive Due Process and The Right to Privacy.......................................................................................43

Griswold v. Connecticut...................................................................................................................................................................44
Abortion....................................................................................................................................................................45
Roe v. Wade (1973)..........................................................................................................................................................................45
Planned Parenthood of PA v. Casey (1992).....................................................................................................................................46
Late-term Abortion Jurisprudence...................................................................................................................................................47
Whole Women’s Health et al v. Hellerstedt (2016).........................................................................................................................47
Marriage and Family.................................................................................................................................................48
Gay Marriage and Private Rights...............................................................................................................................49
Right to Die and Medically Assisted Suicide..............................................................................................................51
Equal Protection..........................................................................................................................................52
Three Tiers of Review................................................................................................................................................52
Rational Basis, Generally...........................................................................................................................................53
Race Discrimination..................................................................................................................................................54
Education.........................................................................................................................................................................................54
Interracial Cohabitation...................................................................................................................................................................55
Racially Neutral Laws – Purpose and Application............................................................................................................................55
Affirmative Action and Race Preferences........................................................................................................................................56
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 Race in K-12 Education and Voting Districts....................................................................................................................................58
Race Preferences in Employment and Contracting.........................................................................................................................59
Sex Discrimination....................................................................................................................................................60
Sex-Based Classifications.................................................................................................................................................................61
Alienage....................................................................................................................................................................63
Mental Disability (Non-protected status)..................................................................................................................63
Fundamental “Interests”: right to vote and access to the judicial process................................................................64
Vote Dilution: Reapportionment and Gerrymandering...................................................................................................................65

Constitution vs. Articles of Confederation

Constitution establishes
- Three branches of federal government
- More powerful national government (Art. 1, Sec. 8)
- Amendment procedure in Article V
- Supremacy clause
- Bill of rights – framers initially thought an enumeration of rights would suggest that there were no
others. After several state ratifying conventions insisted on the adoption of a bill of rights, Congress
approved 12 amendments, ten were approved by the states.
- Separations of Powers
o Vertically (States/Federal Government)
o Horizontally (Executive, Legislative, Judicial Branches of Federal Government)
- Checks and Balances

Justifying Judicial Review

Marbury v. Madison (1803)
- Marbury’s commission as a new judge had not yet been delivered. He filed a lawsuit in the Supreme
Court asking the Court to issue a writ of mandamus forcing Madison to deliver his commission.
- HOLD: The case established the principle of judicial review under the Constitution – meaning that
courts have the power to strike down laws, statutes, and some government actions that they find to
violate the Constitution.
o “it is emphatically the province and duty of the judicial department to say what the law is”
- Here, legislative Act was allowing SCOTUS to have original jurisdiction over writs of mandamus, but this
conflicted with what was in the Constitution, so the Act is invalid.
- Framers saw the Constitution as an instrument to rule the courts and the legislature
- Two branches of interpretation:
o Narrow: The judiciary has no special role in interpreting the constitution. Instead courts
interpret it only when called upon to decide cases.
o Broad: Courts have a special role in interpreting the Constitution and must articulate
constitutional norms. (interpretation prevailed over time)

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 - Other impacts: Presented the Counter-Majoritarian Difficulty: Judicial Review overrides the Will of the
People (Congress). Unelected judges overriding the will of the people as expressed through their
elected representatives

Cases Clarifying Judicial Review

Martin v. Hunter’s Lessee
- Extended judicial review to States’ highest courts: Art. III grants judicial power to “all cases” and
stresses the necessity for uniformity amongst the states’ Constitutional interpretations

Cooper v. Aaron (1958)

- expanded the Constitution as the “supreme law of the land” to also include SCOTUS decisions on
Constitutional issues, beyond only litigants being bound
o Broader reading of Marbury
- Held Brown v. BOE was the law, not to be revisited, and applied to all school systems

Justiciability Doctrines
Ban on Advisory Opinions
- Supreme court doesn’t advise on hypothetical questions
- Federal court decisions have to have some kind of effect on a dispute b/w two parties
Ripeness

Political Question Doctrine

Standing
Three Constitutional Requirements
- Injury in fact: The party must suffer an injury that is concrete, not abstract, and that is actual or
imminent, not hypothetical or conjectural
o Examples: physical injury, economic injury, aesthetic or recreational injury, inability to compete
o No ideological injury – not something that offends you
o Can turn on something as trivial as purchased train tickets (Lujan)
- Causation: The inquiry must be fairly traceable to the challenged conduct; and
- Redressability: it must be likely, as opposed to merely speculative, that the injury will be redressed by a
favorable decision
o Causation and redressability usually go hand-in-hand
Goals
- Accuracy of decisions – to “preserve the vitality of the adversarial process by assuring both that the
parties before the court have an actual, as opposed to professed, stake in the outcome”
- Separation of powers – to “confine the judiciary to its proper, limited role in the constitutional
framework of the government”
o Vindicating the public interest (including the public interest in government observance of the
constitution and laws) is the function of Congress and the Chief Executive
Prudential Requirements
- No third-party standing
o Exceptions: organizations have standing on behalf of their members as long as some members
would meet the constitutional requirements
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 - No generalized grievances
o Plaintiffs can’t sue for injuries they share with the public at large (tax)
- Zone of interests
o No standing to enforce statutes unless you are the intended beneficiary

Mootness
- DEFINE
- The parties have since settled, the circumstances have changed, the defendant stopped his conduct
- Exception: capable of repetition yet evading review – if the injury is transitory, such that the challenge
might never be heard (i.e. abortion, 1-year residency requirements)

Ripeness
- Dispute not yet ‘ripe’; much like imminence prong of injury-in-fact in standing
- If pre-enforcement review request, court looks at:
o 1) Hardship to parties of withholding review (collateral injuries, enforcement is certain, risking
prosecution)
o 2) fitness of the issue for judicial consideration (is it worth it?)

Political Question Doctrine

- “questions in their nature political, or which are, by the Constitution and laws, submitted to the
executive can never be made in this court.” Marbury.
- Baker v. Carr 6-factor test of political questions:
o 1) a textually demonstrable constitutional commitment of that issue to a coordinate branch of
the federal government
o 2) a lack of judicially discoverable and manageable standards for resolving the issue;
o 3) an impossibility of deciding the issue without making an initial policy determination of a kind
not suitable for judicial discretion;
o 4) a lack of respect for the other branches of government in undertaking independent
resolution of the case;
o 5) an unusual need for unquestioning adherence to a political decision already made by a
federal branch of government; or
o 6) the potential for embarrassment for differing pronouncements of the issue by different
branches of government. 
- Doctrine Goals
o Separation of powers – respects the ability of the other branches to interpret the constitution
o Expertise of other branches – recognizes that the other branches may be more suitable to
decide some questions
o Federal Court’s credibility – preserves the Court’s capital

Enumerated Powers
McCulloch v. Maryland (1819)
- Issue: whether Maryland could collect a tax from the Bank of the United States
- The Constitution specifically delegates to Congress the power to tax and spend for the general welfare,
and to make such other laws as it deems necessary and proper to carry out this enumerated power
(Congressional powers are broad)

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 o The Convention confirmed that the Constitution was elected by state legislatures with the
intent to completely oblige and bound state legislatures
o Congress’ power goes beyond those expressly enumerated for – implied means to accomplish a
Constitutionally-authorized end
 ‘necessary’ means anything ‘useful’ or ‘convenient’ to carry out
 Both structural (Congress not intended to be diminished) and textual basis for this
(obviously different from ‘absolutely necessary’)
- Federal laws have supremacy over state laws, Maryland had no power to interfere and tax their banks.
The MD state bank tax was unconstitutional. (‘destroys’ a bank representing the whole)
- Narrow reading of Marbury
o Marshall taking a hands-off policy and giving deference to Congress about what ‘means’ to
utilize to pursue constitutional ‘ends’
- National government is powerful, flexible, and ever adaptable

Necessary and Proper Clause

- United States v. Comstock (2010) = The law need not be absolutely necessary, but only rationally
related to enumerated powers
o Here, statute allowed federal courts to indefinitely confine “sexually dangerous” individuals,
which court held was constitutional
o Reaffirms the approach in McCulloch
o 5-factor test: if statute is “rationally related” to an enumerated power
 1) The necessary and Proper Clause grants Congress broad authority to enact federal
legislation “convenient and useful” or “conducive” to the authority’s “beneficial
exercise” (rational basis review)
 2) the civil commitment statute constitutes a modest addition to federal statutes that
have existed since 1855
 3) Congress reasonably adapted its longstanding civil commitment system
 4) Statute respects states, properly accounting for state interests
 5) The links between the statute and enumerated constitutional power are not too
attenuated
o Congress does not have federal unmitigated police power
- NFIB v. Sebelius (2012): Regulation of interstate commerce was not close enough / court justifies
individual mandate under the taxing power. Court can only use necessary and proper clause in
conjunction with another valid power of Congress
- U.S. v. Kebodeaux: Wetterling Act justified as promulgating military justice power

Limits of Sovereignty in the Federal System

- U.S. Term Limits v. Thornton (1995): Arkansas State Constitution amendment prohibits the name of a
candidate from a ballot if they have already served a certain # of terms.
o Power to add qualifications was not ever “originally” given to the states and thus not
authorized by the Tenth Amendment, and even if states possessed some power here, the
Framers’ intent was for Constitution to be exclusive source for qualifications and term limits.
o Kennedy Concurrence: Important for us to maintain unique, national character of requirements
and not allow states to create their own requirements
o Dissent: Where constitution is silent, rights reserved to the States

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Values Served by Federalism
- Framers intended vertical separation of powers to serve the common good while reserving liberty
o Along with horizontal security among the federal branches: “double security”
o Avoiding tyranny by slicing and dicing power
- Values promoted by state autonomy
o Tailoring: State/local gov’t can deal with problems that vary geographically
o State experimentation in social policy can yield new practices later adopted elsewhere (e.g.,
marijuana legalization)
o Smaller scale gov’t is closer connected to citizenry and accessible and responsive; citizens have
greater opportunity to participate and influence policy
o Voting with feet – allows people to decide which legal regime they prefer and act accordingly
(at least in theory – lots of constraints)
o Some powers are abusive and dangerous at a national level (i.e. police force)
- Values promoted by national policymaking
o National regulation can respond to negative externalities (i.e. air pollution) by which activities
in one state impose costs on residents in another states
o Certain public goods can collectively be provided that transcend state boundaries (national
defense, environmental protection)
o Prevent races to the bottom: by setting a national standard, it can prevent a race to the bottom
(e.g., workplace safety standards)
o Preventing the destructive aspects of competition among the states
o Interstate distribution of wealth - Redistributing resources among populations of different
states whose citizens enjoy greatly unequal wealth and income / can facilitate distribution for
emergency management, education
o Minority rights – can check the tyranny of local majorities that might punish particular minority
groups

The Commerce Power

- Art. 1, Sec. 8, clause 3: “Congress shall have the power to Regulate Commerce with foreign Nations,
and among the Several States, and with the Indian Tribes”
- Regulate: to prescribe the rule by which commerce is governed
- Commerce: “commercial intercourse between nations and parts of nations, in all its branches;”
includes navigation
- Among the several states: “intermingled with;” “concerns more states than one”
o Does not cover internal concerns of states that do not interfere with others
- 3 Historical Stages
o 1824-1936: Early Interpretations
 Gibbons v. Ogden: Found Commerce Clause scope quite broad, but in subsequent cases,
the commerce power was narrowed
o 1937-1995: Decline of Limits on the Commerce Power
 Commerce Clause powers expanded again – not one law struck down as exceeding the
scope – nearly unlimited congressional discretion
o 1995-present: New Limits after Lopez and Morrison

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Gibbons v. Ogden (1824)
- Gibbons operated a steamboat service under federal law, but in violation of Ogden’s state monopoly
on the steamboat industry, allowed by New York law
- The federal statute preempted the New York monopoly law under Supremacy Clause
- Commerce is “commercial intercourse between nations and parts of nations” – Congress can regulate
all commercial activities happening between states, but not activities happening solely within state’s
borders and not affecting other states (broad, expansive implications)
o Buying, selling goods, navigation
- HOLD: Congress had power to regulate interstate commercial activity of steamboats on navigable
waters within the states of NY and NJ

Post-1887 Cases: Striking down laws as exceeding the scope of the Commerce Power
- Court adopted a much narrower construction of the Commerce Clause
Three judicial approaches to congressional authority over commerce emerged
1) The “direct vs. indirect” effects test: Court sometimes drew a line between the activity’s “direct” or
“indirect” effect on interstate commerce
a. U.S. v. E.C. Knight. Co (The Sugar Trust Case) (1895)
i. The Sherman Act prohibited any contract that monopolized any part of the trade or
commerce among the several states. It was interpreted NOT to apply to this sugar
monopoly because the court could not constitutionally regulate “manufacture” under
the Commerce Clause
ii. If national power extends to productive industries like manufacturing, then little would
be left to the states
iii. “Commerce succeeds to manufacture, and is not part of it”
iv. Can’t regulate manufacturing because its too unrelated to commerce
v. Idea: think about what commerce means and limit congressional power only to that
definition
b. Schechter Poultry v. U.S. (1935) – strikes down federal law authorizing president to enact
minimum wages and prices, maximum hours, and collective bargaining
i. No direct effect – although conditions at poultry plants had an effect on interstate
commerce, the court held that the effect was indirect and therefore not reached by the
Commerce Power
ii. i.e. ‘too attenuated’
2) The “substantial economics effects” test (close and substantial relation): The Court sometimes upheld
regulations of economic activity wholly within a state if the activity had a close and substantial relation
to commercial activity between states
a. Emphasizing the practical physical or economic effects of the regulated interstate activities on
interstate commerce
b. Upheld most congressional regulation of the railroad industry
c. Shreveport Rate Case (1914): upholds regulation of rates for hauling goods within Texas
because doing so was necessary to eliminate discrimination between interstate and intrastate
commerce
3) The “stream of commerce test”: The Court sometime upheld regulation of activity within a state if that
activity was deemed to be within stream of interstate commerce
a. Some local activities could be regulated by Congress because they could be viewed as “in”
commerce or as an integral part of the “current of commerce”

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 b. E.g. lottery tickets, contaminated eggs (provision that you couldn’t sell certain kinds of eggs that
crossed interstate lines, enforced against a store that denied being engaged in interstate
commerce. Court said that if Congress can prevent the interstate transportation of eggs, then it
can give effect to that prohibition at any point, whether in commerce or once they are on the
shelf), prostitution

Hammer v. Dagenhart [the Child Labor Case] (1918)

- In 1916, Congress passed a law prohibiting goods made by children under a certain age from being sold
into commerce.
- Court finds that Congress inappropriately attempted to regulate interstate commerce for the
underlying purpose of standardizing child labor regulations among the states, an inappropriate use of
Commerce as a pretext to regulate something it had no power to
o Child labor is a purely local issue that should be regulated by states
o Once goods are shipped, the ‘labor’ part is over – Congress cannot regulate
- Fear of allowing Congress to regulate everything economic in nature
- Contrast with contaminated eggs case: in that case, the product itself was harmful
- Overruled in Darby

The Commerce Power and the New Deal Tension

- In midst of Great Depression, Congress enacted a dramatic set of remedial measures.
- AT FIRST: Congress tried to justify under the Commerce Clause; Court increasingly rejected these
attempts
o Railroad Retirement Board v. Alton Railroad Co. (1935)
 Court held that Congress lacked the power to establish a compulsory retirement and
pension plan for railroad workers subject to the Interstate Commerce Act
 Law was “not in purpose or effect a regulation of interstate commerce”
 Court thinks is it about welfare of workers, not commerce
o Schechter Poultry Corp. v. U.S. (1935)
 Court deemed unconstitutional the National Industry Recovery Act that allowed
president to promulgate codes of fair competition
 Wages of employees at Brooklyn slaughterhouse not subject to federal control –
applying to intrastate activities exceeds Commerce Clause
 Runs risk of all aspects of business being subject to federal control
 Cardozo concurrence: “There is a view of causation that would obliterate the distinction
between what is national and what is local in the activities of commerce.”
- Roosevelt became concerned after Schechter, and the National Labor Relations Act was signed in July
1935, guaranteeing the right of collective bargaining
o Carter v. Carter Coal invalidates Bituminous Coal Conservation Act of 1935
 No grant of Constitutional power authorizes Congress to legislate for ‘general welfare’ –
labor provisions fall upon production, not commerce
 Local character of mining – production is a purely local activity
 These working conditions and struggles are all local evils over which the federal
government has no legislative control
 Effect they may have upon commerce is secondary and indirect
 Distinction between direct and indirect effects turns not upon magnitude, but
on manner of effect.

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 - CHANGE: These relentless anti-New Deal decisions persuaded FDR to court-pack
o “We have reached the point as a Nation here we must take action to save the Constitution
from the Court and the Court from itself”
o Judges age 70 who served for 10 years, if not resigned in 6 months, will be replaced by a new
judge nominated by Pres. w/ consent of Senate. This would equal six new justices, bringing total
to 15 (capping it at that).
 Note: nothing in Constitution specifying # of justices on SCOTUS
o The Senate Judiciary Committee rejected the proposal to court pack in June 1937
o FDR ends up achieving the same result because the very year he unveils this plan, the Court (in
particular Justice Roberts switches his vote) starts viewing Commerce Clause broadly
 “vote in time that saved nine”

Moving on to great deference to Congress: The Commerce Power After the New Deal
- Court simply looks at whether the congressional act has a significant impact on commerce.
- Three principles: (1) aggregation principle (aggregating each entity together), (2) Congressional motive
is irrelevant, (3) rationality (we are not going to ask if it DOES have an effect on commerce, but rather
whether congress could have rationally believed it would have an effect on interstate commerce)
- Congress could regulate almost anything

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

- NLRB found that Jones & Laughlin, a major steel company, had engaged in ‘unfair labor practices’ by
discriminatory discharges of employees for union activity.
- Activities may be intrastate in character, but if they have a close and substantial relation to interstate
commerce that their control is essential or appropriate to protect that commerce from burdens and
obstructions.
o “It is the effect upon commerce, not the source of the injury, which is the criterion.” The steel
has a massive effect on interstate commerce.
- We must stay away from effects too indirect and remote, or else we’d have a completely centralized
government
- Here, when industries organize themselves on a national scale, making their relation to interstate
commerce a dominant factor in their activities, their labor relations are relevant to Congress
- Metaphor of heart/arteries – huge company – distinguishable from Schechter/Carter where their
commerce effects were too remote
- If Congress lacks power to regulate any labor disputes, in the aggregation, the Court might be worried
of a precedent that they can’t comment on any
- Dissent
o Any effect on interstate commerce as shown here by the discharge of some employees would
be so remote
o Indirect and progressively remote chain of events to interstate commerce
o Almost anything – marriage, birth, death – may in some fashion affect [commerce]. Fear of
unlimited federal powers

United States v. Darby (1941)

- Holding: Congress has the power to regulate labor standards in connection with goods to be sold in
interstate commerce
- Congress may regulate goods that have a substantial effect on commerce

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 o “The power of Congress over interstate commerce extends to activities intrastate which have a
substantial effect on the commerce or the exercise of the Congressional power over it.”
- Overrules Hammer v. Dagenhart, finding that Congress can regulate the literal shipment of goods
across state lines, regardless if the motive of the regulation was to control aspects of local regulation
- The means adopted for the protection of interstate commerce by the suppression of the production of
the condemned goods for interstate commerce is so related
o While manufacturing is not itself interstate commerce, the shipment of manufactured goods
between states falls within the definition of commerce and is thus capable of regulation by
Congress.
- Congress must be able to attain its objective in the suppression of nationwide competition (prevent
races to the bottom)
o Competition by a small part may affect the whole
- Tenth Amendment does not pose an issue
o Where Congress’ powers end, the line where states reserve power begins.
o We only ask the question: where is the line? Look to scope of federal power

Wickard v. Filburn (1942)

- Filburn, a dairy farmer in Ohio, was charged $117 under the Agricultural Adjustment Act of 1938 for
exceeding a market quota for wheat.
- Even though Wickard alone might be inconsequential, Congress could aggregate the activities of
similarly situated individuals if cumulatively they would affect the interstate commerce (aggregation
principle)
- Emphasizes political restraints: The Court explicitly states that it will take a hands-off approach to
policing Congress’ Commerce power
- Abandons the direct v. indirect effects test
- Commerce among the states in wheat is large and problematic. In the absence of regulations, world
conditions would greatly affect the price of wheat.
o The effect of the statute to control surplusage and the decline of the exports
o The Act also intended to increase market price of wheat and to that end, limit the volume
thereof that could affect the market

The Commerce Power and Civil Rights (continued great deference to Congress)
Heart of Atlanta Motel v. U.S. (1964)
- People have become increasingly mobile and Black people encounter great burdens; discrimination by
hotels impedes interstate travel
- Determinative test is whether the activity 1) concerns more states than one and 2) has a real and
substantial relation to the national interest
- Civil Rights Act of 1964 was not just motivated by morals, but by economic concerns (discrimination
undermines economic advancement)
o Motive is irrelevant (only looks at substantial effect on interstate commerce)
Katzenbach v. McClung (1964)
- Found unconstitutional a barbecue restaurant’s practice of. only serving Black people
- The restaurant bought about $70K worth of food that moved via the stream of commerce, and
therefore justifies a valid exercise of the power of Congress.
- This diminutive spending and refusal to serve Black people and their total loss of customers has a close
connection to interstate commerce

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Perez v. U.S. (1971)
- Upholds federal criminal prohibition of loansharking
- “even where extortionate credit transactions are purely intrastate in character, they nevertheless
directly affect interstate and foreign commerce.”

The Contemporary Commerce Power

- Lopez and Morrison revived internal restraints on the commerce power through heightened review of
Congress’ authority under Art. 1, Sec. 8
United States v. Lopez (1995)
- Rehnquist recognizes that Congress can regulate three broad categories of activities
o 1) the channels of interstate commerce;
 i.e. Darby, Heart of Atlanta Motel, Lottery Tickets
 Physical infrastructure – actual, literal channels of the ways that commerce flows
(highways, waterways)
o 2) the instrumentalities of, or persons or things in, interstate commerce;
 The actual mechanisms (railroads, planes, trucks)
 i.e. Congress could criminalize the theft of shipments in interstate commerce
o 3) and activities that substantially affect or relate to interstate commerce
 i.e. NLRB v. Jones & Laughlin
- Holds the proper test are whether the regulated activity “substantially affects”
- Here, Court finds that the mere carrying of handguns (not the buying and selling) in a school zone no
way affects commerce, either substantially or otherwise
- Substantial Effects Category
o Not economic – possession of gun is not an economic activity. All previous commerce clause
laws upheld involved economic activity
 What is economic activity? “commercial transaction” – we need some money to change
hands
 Congress could regulate buying, selling, distribution of handguns presumably… but the
mere possession cannot be regulated
o No jurisdictional element/hook – no requirement that gun must have traveled in interstate
commerce
 Congress did not make an element of the written offense the requirement that the gun
be connected to interstate commerce
o No substantial effect – unclear that possession of guns near schools has a substantial effect on
interstate commerce
- Court also finds argument unpersuasive because there were no congressional findings
- Breyer Dissent: Court should have used rational basis test, instead, we used heightened judicial
scrutiny
- **ADD IN THOMAS CONCURRENCE**

United States v. Morrison (2000)

- A student sued her school and two football players under the Violence Against Women Act (VAWA).
Congress passed VAWA in 1994 allowing victims of gender-motivated violence to sue the perpetrators
of the violence for civil damages in federal court (state court was very limited)
- HOLD: Congress does not have the authority under the Commerce Clause to regulate violence against
women because it is not an economic activity that substantially affects interstate commerce.

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 o Aggregation principle seems limited to economic activity, not aggregate crime
- No economic endeavor; no jurisdictional element
o We do have plenty of congressional findings, but court considers insufficient
- If this rationale is accepted, Congress could regulate any crime as long as the nationwide, aggregated
impact affects employment, transit, consumption, etc.
- Dissent: these issues should be left to political process; line between non-economic and economic
activity is difficult; there was great state support for the Act
o Congress is institutionally better situated to fact-find/make the judgment as to whether or not
there is a substantial effect on interstate commerce
- Note: Liberals like judicial restraint. Like federalism, judicial restraint is often invoked to achieve
substantive ends and both sides of court invoke it when it suits their interests

Gonzales v. Raich (2005)

- Congress may regulate the use and production of home-grown marijuana as this activity, taken in the
aggregate, could rationally be seen as having a substantial economic effect on interstate commerce.
- Facts: California Compassionate Use Act allows cultivation of medical marijuana; the petitioners’ weed
was seized under the federal Controlled Substances Act
- Much like Wickard: Raich is cultivating a fungible commodity for home consumption in which there is
an established, albeit illegal, interstate market
- Congress had rational basis for CSA (high demand for weed that will cross state lines, Congress wants
to regulate interstate weed trafficking)
- Unlike legislation in Lopez and Morrison, the CSA clearly details plan to regulate production of
controlled substances
- Scalia Concurrence: yes, but power derives from Necessary and Proper Clause
- Dissent: this extinguishes “states’ rights” experiments; Congress could regulate virtually anything; no
evidence homegrown marijuana has sub. effect on interstate commerce
- Perhaps the difference is single-subject statutes vs. broad regulatory scheme
o Lopez and Morrison: facial challenges – plaintiffs said these laws on their face violate or exceed
the Commerce Clause in nearly all of their applications
o Raich: as-applied challenge – I’m not challenging the law on its face. I’m challenging the law as
applied to me in these circumstances

NFIB v. Sebelius (2012)

- Facts: The individual mandate of the ACA requires most Americans to maintain “minimum essential”
health insurance coverage. Those who don’t must make a “shared responsibility payment” to the IRS.
Insurance companies could not deny coverage to individuals with pre-existing conditions.
o Congress’ solution to prevent cost-shifting by those who would otherwise go without buying
health insurance. Gov’t argues that without the individual mandate, there is a substantial and
deleterious effect on interstate commerce.
- HOLD: The Commerce Clause does not empower Congress to compel individuals to engage in
commercial activity (although individual mandate upheld under taxing power)
- Commerce Power should only presuppose existing commercial activity to be regulated
o ‘The Broccoli Horrible’: can’t force people to buy veggies to decrease obesity
- Ginsburg Dissent: Virtually everyone participates in the healthcare market eventually. Congress had a
rational basis for finding that uninsured, as a class, could affect interstate commerce.
- Scalia/Alito Dissent: Strike the whole act down; Wickard should be limits of Commerce

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The Tenth Amendment as a Restraint on the Federal Commerce Power
Two Lines of Commerce Clause Cases:
- Regulation of private conduct
- Regulation of state conduct
o Laws that regulate the states as economic actors
o Laws that require the states to regulate their citizens in a certain way or commandeer state
officials to participate in federal regulatory program
- Court understands that there must be some outer limits on federal power to interfere with state
sovereignty; but when states participate in economic activity alongside private actors, the line of
“sovereignty” becomes more blurred
o United States v. California (1936) upheld a penalty imposed on a state-owned railroad for
violation of the Federal Safety Appliance Act
 State can’t claim immunity from the great plenary power of Fed to regulate commerce:
“The sovereign power of the states is necessarily diminished to the extent of the grants
of power of the federal government in the Constitution”
o New York v. U.S. (1946) struck down a state immunity claim that argued against a federal tax to
mineral water from New York state-owned springs
o National League of Cities v. Usery (1976) finally upheld a state autonomy defense to otherwise
valid federal regulation. Somewhat of an exception - Rehnquist found it problematic that
Congress sought to regulate activities of State public employees, worried that interference with
integral governmental functions would hinder States’ abilities to structure employer-employee
relations.
 BUT OVERRULED: Garcia v. San Antonio MTA (1985)
 Garcia held a municipal transit authority was subject to FLSA
 “We reject as unsound in principle and unworkable in practice a rule of state
immunity from federal regulation that turns on a judicial appraisal of whether a
particular governmental function is ‘integral’ or traditional” – will lead to policies
being cherry-picked
 State sovereign interests are more properly protected by procedural safeguards
inherent in the structure of the federal system, rather than judicially created
limitations on fed power
o i.e., equal representation, electoral college
 Dissent: do states have any real safeguards in Congress left?
o New York v. U.S. (1992): Low-Level Radioactive Waste Policy Amendments Act of 1985
incentivized states to dispose of their own waste or enter into regional agreements for out-of-
state disposal.
 HOLDING: Congress cannot compel states to enact or administer a federal regulatory
program
 Congress can encourage the States to provide for the disposal of the waste but
not simply COMPEL the states to do so.
 The Constitution exercises legislative authority directly over individuals rather than
states. Gov’t can regulate interstate commerce directly but can’t regulate the states’
regulation of interstate commerce
 Accountability of state/federal officials would be diminished

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  Provides states with choice of accepting waste per Congress’ instruction or suffering a
penalty = “a choice between two unconstitutionally coercive techniques is no choice at
all”
 Dissent: The Act was a great example of cooperative federalism, reflecting hard-fought
agreements by states.
o Printz v. United States (1997): finds that the anticommandeering principle of New York v. U.S.
extends to federal laws directed at local executive officials
 HOLDING: Certain provisions of the Brady Act that required state and local law
enforcement officers to conduct background checks on prospective handgun purchasers
are invalid.
 Requiring states to make policy in certain fields undermines their legitimacy as
independent and autonomous political entities
 Would blur the line of who to hold accountable for the checks
 Counterpoint: do people really pay attention to the level of government
responsible for their regulated activities?
 Dissent: Founders intended to enhance federal government by empowering it to act
through local officials (i.e., tax collectors)

The Taxing and Spending Powers

- When one power is unavailable to Congress, another might provide a different avenue through which
to regulate
- Taxing Power: Art. I, § 8: “The Congress shall have power to lay and collect Taxes, Duties, Imposts, and
Excises, to pay the Debts and provide for the common defense and general Welfare of the United
States”

Child Labor Tax Case (Bailey v. Drexel Furniture Co.) (1922)

- In response to Hammer v. Dagenhart (striking down Congress’ attempts to regulate Child Labor via
Commerce Clause), court tried via Taxing Power. The Child Labor Tax Law imposed a federal 10% tax of
annual net profits on every child labor employer.
- The Court generally defers to Congress in sustaining taxing provisions
o i.e. U.S. v Doremus upheld tax on opium; McCray v. U.S. upheld tax on margarine; when no
motive other than taxation is clear
- HOLDING: HERE, Congress is clearly trying to get around the Hammer holding and is trying to levy this
tax as an obvious penalty! Struck down as unconstitutional – child labor regulation is left to the states.
- Tax vs. Penalty? Line is not exactly clear.
o Most taxes not only raise revenue but have a regulatory purpose
- Other Cases: U.S. v. Kahriger (1953): Levied a tax on persons engaged in the business of accepting
wagers and registration w/ the IRS. Incidental motive here was to cut down on gambling: An intent to
curtail and hinder where the tax was upheld. A federal tax does not cease to be valid merely because it
discourages or deters the activities taxed. Nor is the tax invalid because the revenue obtained is
negligible. Unless there are penalty provisions extraneous to any tax need, courts are w/out authority
to limit the exercise of the taxing power.

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NFIB v. Sebelius (2012) from a Taxing Perspective
- The “shared responsibility payment” was upheld as constitutional under Congress’ Taxing Power.
Government asked Court to read the mandate as imposing a tax on those who do not buy a certain
product (health insurance)
o Paid to and enforced by the IRS, produces some revenue for the government
o A condition (not owning health insurance) triggers a “tax”
- Distinguish from Drexel Furniture
o Amount due will be far less than price of insurance – if it were an exceedingly heavy burden, it
would look more like a penalty than a ax
o Contains no scienter requirement – the shared responsibility payment applies regardless of
whether you knowingly are engaged in health insurance market. Unlike the child labor tax,
which made the knowing use of child labor punitive
o Payment collected by IRS is a normal means of taxation – unlike Drexel Furniture, where the
department of labor collected the tax
- Taxes that influence conduct are nothing new. This is a regulatory penalty – normal
- Why go to such great lengths to call this a tax? Maybe…
o Roberts wanted to set down limits about Commerce Clause outer bounds
o Canon of constitutional doubt – if a statute can be reasonably interpreted in a way that will
avoid constitutional doubts, it should be.

Spending Power as a Regulatory Device

- i.e. grants to state for education, welfare, highway construction
- litigation about the scope of power has been rare
- ‘provide’ in the clause is synonym for ‘spend’

United States v. Butler (1936)

- Cannot use spending means to accomplish unconstitutional ends/involuntary co-operation is unsound
- Agricultural Adjustment Act allowed Secretary of Agriculture to set limits on the production of certain
crops and tax farmers that produced in excess (sought to stabilize farm prices by curtailing agricultural
production).
o Secretary could contract with farmers to reduce their productive acreage in exchange for
benefit payments. The payments were to be made out of a processing tax paid by processors.
- Holding: The AAA was not a valid exercise of the power to spend for general welfare.
- Reasoning: Hamiltonian view that the power to tax and spend is its own enumerated power as long as
it is in the furtherance of the general welfare
o However, there are limits: The AAA violates state sovereignty by seeking to invade states’ rights
to regulate and control their own agricultural production.
 Authorities can’t invade state jurisdiction to compel or purchase individual action
 Congress doesn’t have this power and can’t sneakily get to it via spending
o In contrast, Madisonian view is that Congress’ ability to tax and spend only exists to help carry
out other enumerated powers (more incidental and limited)
- Notes: Charles C. Steward Machine Co. v. Davis (1937) sustained the unemployment compensation
provisions of the Social Security Act. The federal taxing structure was designed to induce states to
adopt laws complying with federal standards. The tax on employers went into general funds.
o Justice Cardozo said that the states were unable to give requisite relief
o Petitioner confuses motive with coercion
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South Dakota v. Dole (1987)
- Facts: Sec. of Transportation could withhold 5% of federal highway funds from any states that
permitted under-21 drinking. South Dakota allowed 19-year-olds to drink beer and claimed that this
violated the limits of the spending Power.
- HOLDING: Congress may attach conditions to receipt of federal funds to further broad policy objectives
(Congress wanted to encourage uniformity in states’ drinking ages). Broad view of relatedness
- 5-Factor “Test”
o 1) General Welfare – court defers to Congress’ judgment on the general public purpose
o 2) Condition must be unambiguous – states have to know what they are getting involved in,
cognizant of the consequences of participation (accountability)
o 3) Condition must bear some relationship to the purpose of the spending program
 Related here: alcohol-related accidents and fatality study concluded that the lack of
uniformity in the States’ drinking ages created an incentive to drink and drive because
young people would commute to state borders
 But See O’Connor Dissent: Congress should only place conditions on the way money is
spent (certain materials to use, requirements, etc.)
o 4) Other constitutional provisions may provide an independent bar to the conditional grant of
federal funds – Spending power cannot be used to be violate some independent provision of
the constitution
 i.e. grant of federal funds conditioned on invidiously discriminatory state action or cruel
and unusual punishment would be illegitimate
 Tenth Amendment is not an independent bar
o 5) Cannot be unduly coercive – South Dakota would barely be losing anything by participating
in this (important inquiry)
 Always lurking an anti-commandeering question – if permissible on receipt of federal
funds, then it’s not commandeering – states are just being encouraged with money
 If the condition and the money tied to it are so coercive that it’s like “gun to head” –
then it’s tantamount that Congress is making the states do something *exam – links to
commandeering*
- Note: In the 25 years after Dole, the Court never found that a condition on the expenditure of federal
funds exceeded Congress’s spending power by being impermissibly coercive or otherwise intruding
upon the role of the States.
o That changed in the challenge to the Medicaid expansion provision in NFIB

NFIB v. Sebelius (2012)

- Facts: Medicaid offers federal funding to States to assist needy families in obtaining care. The ACA
expanded the scope of the Medicaid program by requiring state programs to provide Medicaid
coverage to adults at certain income levels. ACA increased federal funding but said if State did not
comply, they might lose all federal Medicaid funding.
- HOLDING: Medicaid provision is struck down. The provision is unduly coercive and pressuring states to
comply by threatening to withhold even EXISTING Medicare funds
o Medicaid funding accounts for over 10-20% of the average state’s overall budget
- Ginsburg Dissent: Congress has broad authority to promote “general welfare” through its spending
power. Expansion is characteristic to Medicaid

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 - Scalia Dissent: When Congress attaches conditions to federal funds it has a formidable power, and if
this is not kept in check it will threaten Federalism.

Additional Notes on the Scope of Federal Power (pg. 56 in notes)

- What benefits have been gained, if any, with the Court’s recent efforts to rein in Congressional
powers?
o New Deal crisis – “unofficial Constitutional amendment” – court recognized much greater
powers for federal gov’t than it had in the past, up until 1995
o Since 1995, there have been intermittent attempts by the court to rein in federal power (Lopez,
Morris, Sebelius, New York v. US, Printz)
- There is almost always a work-around – Lopez (jurisdictional hook – what did it really even do, all guns
carried in interstate commerce, same people fall into previous and current law….), Gonzalez v. Raich
(drafting guide)

Dormant Commerce Clause

- Represents a negative inference from the idea that the Constitution gives Congress the authority to
regulate interstate commerce, so then states are by default prohibited from regulating interstate
commerce unless they are so authorized.
- Rationale
o Economic Purpose: Allow the uninhibited commercial interests of all the states
 Trade barriers are inefficient and can lead to infighting
o Historical Purpose: Framers sought to centralize commerce power away from the states and
prevent trade ways. The Founders’ generation wanted a national economy regulated by the
national government
 i.e., rationale seen in limiting state tariffs and regulations
o Political Unity: states “sink or swim” together
 “In the long run, prosperity and salvation are in union and not division”

Market-Participant Exception
- Exception where the state government acts as a buyer/seller of goods or a private business and can
discriminate against out-of-state commerce
- The market participant doctrine allows the state or municipality to favor its own residents in the course
of its own dealings; but it does not permit the government to regulate other private parties
- Rationale
o we wouldn’t discriminate against private business’ discretion (profit, business considerations
o Textual argument: Nothing in the Commerce Clause prohibits state acting as a participant in a
way that is unrelated to imposing regulation

Standard of Scrutiny
- Outcome almost always turns on the means used to get to the desired result
- Means = relationship between means and ends, how close is that relationship?
- Under rational basis review, the relationship can be loose. Low bar
- Under strict scrutiny it’s actually hard to meet: ‘narrowly tailored to achieve a compelling government
interest’. Law is necessary, no other way to accomplish.

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 o i.e. NJ waste law failed because it could’ve accomplished its purpose of protecting its residents
without discriminating against out-of-state residents (putting a total cap on the amount of
waste without imposing the entire burden on the out-of-state economic interests)
o facially discriminatory and facially neutral laws analyzed under this
- Congestion car pricing in Manhattan or Washington D.C.
o Manhattan approved by city/state, but federal law requires that the city be approved by the
federal highway department (DOT). Congress has passed the law that requires cities or states to
get federal approval before burdening interstate commerce.

Three Categories of Dormant Commerce Clause Challenge

Facially Discriminatory Laws – state laws that facially discriminate against out-of-state commerce are almost
always struck down under a virtually per se rule of invalidity
- Actual words of the law draw a distinction
- Look at the means and the ends and apply strict scrutiny where a law is narrowly tailored to serve a
compelling government interest (to suffice, law would need to be furthering compelling ends by the
most necessary, least restrictive means)
- i.e. NJ imposes a waste disposal fee on waste generated outside of NJ, but doesn’t apply the same fee
to in-state waste
- i.e., NJ imposes the same fee on all waste, both in-state and out-of-state, but provides a rebate for the
fee to in-state waste generators only?
o Court concluded this was facially discriminatory because the rebate was being drawn from the
tax – tantamount to only taxing out of state waste generators
o Money going for the rebate that looks like a subsidy is coming from a tax imposed within the
industry

Philadelphia v. New Jersey (1978)

- Facts: NJ law prohibited importation of out-of-state waste. The waste ban was challenged by private
landfill operators in NJ who had contracts with other states
- HOLDING: Facially discriminatory because this was simply a legislative effort to suppress competition &
stabilize the cost of solid waste disposal within NJ
- Incidental burdens on interstate commerce are sometimes unavoidable, but we must be alert to the
“evils of economic isolation” and protectionism
o “evils” can preside in legislative means AND ends
- There is not actually any reason to distinguish out-of-state vs. in-state waste
- Could this have been accomplished by any other means?
o Yes! Hence why discriminating out-of-state didn’t actually occupy the least restrictive purpose
possible. NJ could’ve generally capped landfill waste regardless of origin, not explicitly
burdening out-of-state commerce, if they were really worried about preserving open land
- But see Maine v. Taylor: an exception to the rule where a compelling state interest existed in keeping
state’s ecosystems functional and excluding contaminated bait. There was no other way to accomplish
this compelling interest besides discriminating against all harmful bait, regardless of origin, and the law
was upheld

South-Central Timber Development, Inc. v. Wunnicke (1984) – facial discrimination

- Alaska (as the state) sold timber subject to the condition that the purchaser then process the timber in
Alaska before shipping it out of state.

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 - HOLD: Unconstitutional because the processing requirement was a downstream condition imposing
regulation on activities beyond the state’s participation. “The state may not impose conditions,
whether by statute, regulation, or contract, that have a substantial regulatory effect outside of that
particular market.”
- Market-participant exception illustrated in three cases up to this date
o Maryland/Alexandria scrap – “nothing in the Commerce Clause prohibit a state, in the absence
of congressional action, from participating in the market and exercising the right to favor its
own citizens over others”
 State imposes more onerous requirements on out-of-state companies in program to buy
back scrap cars
o Reeves Inc v. Stake – upheld SD policy where State restricts the sale of cement from a state-
owned plant to state residents only. Trader or manufacturer engaged in an entirely private
business has the right to exercise his own independent discretion as to parties with whom he
will deal
o White v. Massachusetts Council of Construction Employers – State requires that all construction
projects funded by the city employee a workforce that is 50% city residents. Relevant because
everyone affected by the order was working for the city
 Counterargument: the requirement reached beyond the “boundary or formal privity of
contract” – but maybe Mass. Has a legitimate interest in restricting the project for the
city
- Here, state may impose burdens on commerce within the market in which it is a participant, but it
cannot go further. Alaska is not a participant in the processing market. Downstream restrictions have a
greater regulatory effect than do limitations on the immediate transaction. Alaska is being facially
discriminatory.
- With facially discriminatory laws, court does not seem to engage in a balancing test

Facially Neutral Laws that Favor Local Economic Interests – State laws that are facially neutral as to their in-
state and out-of-state interests but have an impermissibly protectionist purpose (discriminatory) or effect are
typically invalidated
- Subject to strict scrutiny – look to purpose and effect
- Ex: the law on its face will not draw distinctions based on what state you come from, but could
nonetheless be the purpose or impact of that law

Baldwin v. Seelig (1935) – Facially Neutral

- Facts: New York passed the Milk Control Act which prohibited the sale of milk imported from another
state by third parties unless the price paid to the producer in the other state reached at least the
minimum amount required to be paid to local New York milk producers. Seelig, a NY milk dealer,
bought milk from Vermont milk producers at a price lower than the New York minimum and sued,
arguing burden on interstate commerce
- HOLD: statute invalidated – state cannot place itself in a position of economic isolation, such a power,
if exerted, will set a barrier to interstate traffic that acts as a customs duty
- Statute is facially neutral because it does not facially penalize out-of-state participants

H.P. Hood v. Du Mond (1949) – Facially Neutral

- Facts: Hood was a Boston milk distributor who had long obtained milk from NY producers, where he
had three receiving depots. He sought an NY license to establish another depot but a new law state

20
 that licenses could not be obtained until the NY Commissioner was “satisfied that the license would not
lead to destructive competition”
- HOLD: facially neutral but had a discriminatory effect as it prevented out-of-state consumers from
receiving a NY product.
- The avowed purpose of the restrictions was to curtail volume of interstate commerce and aid local
economic interests, but court saw this as a protectionist measure
- Black/Frankfurter Dissent: Court shouldn’t be reviewing state’s economic judgments, now does State
not have any means of preventing such competition within the state?

Hunt v. Washington State Apple Advertising (1977): Court invalidated a North Carolina law that required
apples to be stamped with no other grade but the US grade or standard. However, WA grades were equivalent
or superior to the US grade. The NC ban explicitly prohibited against the display of state grades, so WA
couldn’t sell apples to NC.
- Not facially discriminatory, applies to all apples, but discriminated against WA
- Court says the obvious discriminatory effect is enough, no need to inquire into purpose
- Also presents conflict with the Commerce Clause’s overriding requirement of a national ‘common
market’
o It burdened and discriminated against WA apples since it allowed its own state producers to put
the US grade which may have been lower than WA grade.
o It strips away the WA apple industry’s unique competitive edge that it earned for itself through
its inspection and grading system
o A leveling effect – WA apples would now have to be marketed under their inferior USDA
counterparts
o Nondiscriminatory alternatives were readily available (use two stickers)

Bacchus Imports v. Dias (1984)

- found protectionist purpose and effect in favor of local product.
- Invalidated Hawaii law which exempted liquor tax for a plant produced exclusively in Hawaii and fruit
wine to promote local pineapple-wine industry.
- HOLD: Any effort to confer a benefit upon local industry not granted to out-of-state industry is
presumptively invalid as discrimination under the Commerce Clause.
o Obvious discriminatory purpose AND effect

BUT SEE
Exxon Corp v. Governor of MD (1978):
- MD law prohibited oil refiners from operating retail gas service stations in the state. Because all
petroleum products sold in MD were produced and refined out of state, the law meant that these out-
of-state companies could not own service stations in MD. It essentially protected the local retail gas
service industry.
- HOLD: prohibition was upheld because Maryland’s entire gasoline supply flows from interstate
commerce and there are no local producers.
- The law benefits both in-state and out-of-state independent retailers. The Statute has no impact on the
relative proportions of the local and out-of-state goods sold in Maryland (unlike Hunt and Dean Milk,
where the state regulation caused local goods to constitute a larger share of the market than out-of-
state goods)

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Minnesota v. Clover Leaf Creamery Co. (1981) Upheld a state law that banned retail sale of milk products in
plastic nonreturnable containers but permitted nonreturnable containers made of pulpwood, a major
Minnesota product. Law here prohibited all milk retailers from selling their products in specific type of
containers, without regard to whether the sellers are from outside the state. Only if the burden on interstate
commerce clearly outweighs the State’s legitimate purposes does such regulation violate the Commerce
Clause.
- Burden on out of state firms “’not clearly excessive’ in light of the substantial state interest in … easing
solid waste disposal problem.”
Is the difference between these cases and Hunt and Bacchus a lack of purpose?
- Maybe they think it is a neutral goal. There is some ambiguity in the doctrine.
- The mere fact that some out of state businesses might be harmed is not enough
o Are out of state businesses benefited?
o Are in state businesses also harmed?

Facially Neutral Laws that Unduly Burden Interstate Commerce – State laws that are facially neutral but have a
disproportionate adverse effect may also be struck down
- A law that is neither discriminatory nor protectionist still may be reviewed and struck down under the
Court’s residual balancing test
- Pike v. Bruce Church (1970) balancing test – Arizona statute required that Arizona-grown cantaloupes
advertise their state of origin on each package. Church shipped his fruit to California to be packed, so
they were not identified as Arizona-grown. Compliance with the requirement would have resulted in
the facility to expend $200K to pack $700K of cantaloupe crop.
o Where the statute regulates even-handedly to effectuate a legitimate local public interest and
its effects on interstate commerce are only incidental, it will be upheld UNLESS the burden
imposed on such commerce is clearly excessive in relation to the putative local benefits.
o Extent of the burden that will be tolerated will depend on the nature of the local interest
involved and whether it could be promoted as well with a lesser impact on interstate
commerce
o Here, Arizona law did not have “purpose and design” to promote safety but was rather to
enhance the reputation of Arizona growers. These are legitimate state interests – but the
State’s interest in having Arizona cantaloupes identified cannot constitutionally justify the
$200,000 packing plant in the state

Kassel v. Consolidated Freightways Corp. (1981)

- Facts Iowa law, unlike other states, prohibited trucks over 55 feet in length. Consolidated was one of
the largest common carriers and travelled using a 65-foot truck. Iowa argued this was a reasonable
safety law pursuant to its police power.
- HOLD: The harm to interstate commerce exceeded the safety benefit to the state, so the length
regulation violated the Commerce Clause
- If the law does not have a discriminatory purpose or effect but nonetheless might burden interstate
commerce, it is subject to the balancing test.
- The 65-foot truck was just as safe as the 55-foot truck. Other midwestern states do not have this law
and interstate flow of goods by truck is burdened.
o Consolidated’s other options engendered inefficiency and added expense
o Also, Iowa’s law may aggravate more highway accidents
o Evidence the law was meant to discourage interstate truck traffic

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 - Some disagreement as to whether this is a category 2 or category 3
- Brennan/Marshall concurrence: Brennan thinks this has a discriminatory purpose
- Rehnquist dissent: the law challenged is a valid highway safety

Balancing Interstate Harm Against Local Benefit

- Unlike Kassel, South Carolina State Highway v. Barnwell (1938): Court upheld a law prohibiting the use
on state highways of trucks that were over 90 inches wide or that weighed a certain amount. About 85-
90% of trucks exceeded these limits. So long as the state action does not discriminate, the burden is
one which the Const. permits because it is an inseparable incident of the exercise of a legislative
authority, which, under the Const., has been left to the States. State highways in question here are
uniquely the concern of the states.
o In Contrast:
 Southern Pacific Co. v. Arizona (1945): J/Stone: Court had invalidated AZ law which
prohibited trains of more than 14 passengers or 70 freight cars. Court looks to the burden
imposed on interstate commerce. In this case, the long trains were standard practice in
interstate commerce and any regulations should be adopted by Congress.
 3rd category: Bibb v. Navajo Freight Lines (1959): J/Douglas: even in trucking cases, court
will invalidate facially neutral laws with a disproportionate effect on interstate commerce.
Illinois law inconsistent with 45 other states was invalidated. This is one of the few cases
where local safety measures that are nondiscriminatory place an unconstitutional burden
on interstate commerce.
- State burdens on business entry
o Pike balancing has also been used to invalidate state limits on business entry and regulation of
corporate affairs.
 Lewis v. BT Investment Managers (1980): invalidated a FL law prohibiting ownership of
local investment advisory businesses by out-of-state banks and certain companies. This law
prevented foreign enterprises from competing in local markets. Disparate treatment of
out-of-state bank cannot be justified as an incidental burden necessitated by legitimate
local concerns—as a result it was unnecessary to decide whether these were protectionist
measures.
 Edgar v. Mite Corp. (1982): IL law was unconstitutional because it required the secretary of
state to adjudicate offers for the purchase of corporate stock. The law was a direct restraint
on interstate commerce because the state was controlling the conduct beyond the
boundary of the State. It regulated sale of stock occurring outside the state.
 CTS Corp. v. Dynamics Corp. (1987): Indiana law provided that a purchaser who acquired
“control shares” in an Indiana corporation could acquire voting rights only to the extent
approved by a majority vote of the prior disinterested stockholders. Court upheld the law
and rejected the Commerce Clause claim. This law does not discriminate against interstate
commerce; often cases invalidate laws which may adversely affect interstate commerce by
subjecting activities to inconsistent regulations. Here it’s not the case. Scalia concurred in
part but rejected Pike balancing approach.

Privileges & Immunities Clause

- Art. IV, Sec. 2: “The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in
the several states”

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 - Express constitutional right that says states can’t discriminate on the basis of residence where
fundamental rights are concerned. Denying such rights would undermine governmental unity.
- Differences between P&I and the Dormant Commerce Clause
o Only individuals can invoke P&I clause, whereas individuals and corporations can invoke dormant
commerce clause
o Congress may authorize, through affirmative exercise of its commerce power, state practices that
would otherwise be impermissible under dormant commerce clause. But the P&I clause arguably
may NOT be waived by Congress.
o P&I clause safeguards exercise of “fundamental rights,” unlike the dormant commerce clause,
which applies to laws burdening interstate commerce
o No market participant exception under P&I
o Standards of Review
 DCC facial discrimination – Strict Scrutiny
 DCC facially neutral with discriminatory effects – Strict scrutiny
 DCC facially neutral with undue burdens – Pike Balancing
 P&I – Intermediate scrutiny

Categories of Valid Privilege & Immunities Challenges

- Abridging Constitutional rights (free speech, due process, medical services)
- Important economic activities (right to earn a living, pursue your vocation) will be implicated (not
immediately struck down) if a state:
o Excludes out of staters from practicing a trade or profession
o Charges a discriminatory license fee
 Has to be trade-related, not recreational (ex. Hunting license)
o Mandates that preference be given in-staters for employment

United Building & Construction Council v. Camden

- “It is discrimination against out-of-state residents on matters of fundamental concern which triggers
the Clause, not regulation affecting interstate commerce”
- Facts: Camden ordinance provided that at least 40% of the workers on city projects had to be residents
of the city, as with subcontractors. Challenged by out-of-state residents and by in-state residents not
within the city limits.
- Issue 1: do regulations adopted by municipalities fall under privileges & immunities? YES
o Municipal discrimination falls under P&I because localities are subject to the same limits and
wouldn’t exist but for the states
- Issue 2: does the Clause only apply to laws that discriminate on the basis of state citizenship?
o Purpose of P&I Clause was to “fuse Nation into one collection of sovereign states”
o Applies to discrimination on the basis of city residency as well as state residency
- Two-step test to see whether a law violates P&I as against out-of-state residents:
o Does the law burden a protected privilege or immunity?
o Is there a substantial reason for the difference in treatment with which the degree of
discrimination bears a close relation?
 Nonresidents must be shown to constitute a peculiar source of the evil at which the statute
is aimed.
- Here, is an out-of-state resident’s interest in employment on public work contracts in another State
sufficiently “fundamental” to the promotion of interstate harmony?
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 o Public employment is qualitatively different from private
o Court finds there is not enough evidence to show that Camden needs to counteract its own grave
economic and social ills
- Blackmun Dissent: Court extended scope of clause too much by holding that it apples to laws that
discriminate among state residents

Federal Preemption of State Regulation

- Commerce Clause is not “dormant” when Congress affirmatively exercises that power
o When Congress does this, the federal law may supersede a contrary state law because of the \\
Clause
o Difficult if federal legislation does not clearly disclose its impact on state laws
- Supremacy Clause (Art. VI, sec. 2): “This Constitution and the Laws of the U.S. which shall be made in
pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Types of Preemption
- Express preemption
o Congress, with the power to so regulate, passes a law specifically stating that preempted state
control
o E.g. Congress can specify labor or environmental standards and expressly preempt any state
regulation on the topic
- Field preemption (implied)
o The court requires a clear showing that Congress meant to occupy a field and so displace the
states from regulation on that subject matter
o Pervasive – federal occupation of the field of regulation is so pervasive as to justify an inference
that states cannot intervene (e.g., federal aviation)
o Dominant – federal interest so dominant (e.g., foreign relations)
- Conflict preemption (implied)
o Impossible to comply with both federal and state regulation (ex. feds, “do X” but states, “don’t
do X”). Doesn’t apply if federal reg sets a floor and states regulate over that floor (e.g. fed. min.
wage is $10, NYC can set min wage at $15)
o Stands as an obstacle to accomplishing full purposes of federal law - frustrates
 Ex.: denying unemployment benefits to those filing national complaints about unfair
labor practices under FLSA – frustrates the goal of encouraging workers to file
complaints
o Wyeth v. Levine – “Impossibility preemption is a demanding defense”
- You can’t really answer a pre-emption question in the abstract – depends on what Congress has done
before (dig into legislative history)

Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm’n (1983)
- Facts: California law imposed a moratorium on certifying new nuclear energy plants until the state had
come up with a better way to dispose of nuclear waste. PG&E argued that the law was preempted by
the federal Atomic Energy Act

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 - HOLD: The state law did not violate congressional preemption. California’s scheme concerned
economic regulations, whereas Congress traditionally occupied field of safety regulations. PG&E could
comply with both.
- Preemption might exist where:
o Compliance with both federal and state regulations is impossible
o The state law stands as an obstacle to the accomplishment and execution of Congress’ purpose and
objectives
- Here, Atomic Energy Act does not prohibit states from deciding not to construct nuclear power plants
(no express preemption). The law set a permissive standard for positive expansion and left it up to
states to determine how to develop or stop nuclear power for economic reasons (no field preemption)

Executive Assertions of Power

- Constitution allocates the legislative, executive, and judicial powers of the federal government
horizontally among the three branches described in Articles I, II, and III
- Art. II vests executive power in the President. Some scholars argue that the President has a broad,
power to just be an executive with inherent powers
- The system rests on the idea of generating friction between branches and relying on that friction &
conflicts to prevent any one branch from getting too much power

Youngstown Sheet & Tube Co. v. Sawyer [The Steel Seizure Case] (1952)
- Facts: United Steelworkers Union announced a planned nationwide strike over a labor-management
dispute. Truman issued Executive Order directing Secretary of Commerce to take control of the mills,
believing the strike could endanger national defense and the war effort in Korea. Congress took no
action after the order, but no express statute nor other act of Congress actually implied Truman had
this power.
- MAJORITY (Black) HOLD: President may not engage in a lawmaking activity without authorization from
Congress or the Constitution. Rejects government’s arguments:
o “Take care clause” – if there’s a statute that says to do something, President can do it – but no
statute existed here. President has power to execute law, not make it.
o Vesting Clause – President does not have a general grant of executive power
o Commander in Chief power – steel strike didn’t take place in “theater of war” and we don’t
want tyrannical power. Court cannot hold that “Commander in Chief has the ultimate power to
take possession of private poverty to keep labor disputes from stopping production.”
o No statutory nor constitutional language grants this seizure power to President
 Congress could have seized under Commerce or War powers but didn’t
- Frankfurter Concurrence: Constitution is a framework for our government and only works if we listen
to Framers’ idea of checks and balances. But the separation of powers is a bit more complicated and
we shouldn’t attempt to define it comprehensively. Also note that we had the Taft-Hartley act wherein
Congress expressly admitted its will to withhold seizure power from President, lending more support to
the conclusion.
- Jackson Concurrence: Presidential powers are not fixed but they fluctuate depending upon their
disjunction/conjunction with those of Congress. Three categories:
o 1) When President acts pursuant to express or implied authorization, his authority is at its
“maximum” and his acts are presumptively valid
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  President + Congress = embodiment of federal sovereignty
 Still Congress can’t give President power to do something that violates the Constitution
or is expressly delegated to Congress (e.g., declare War)
o 2) When President acts in absence of congressional grant/denial of authority, it depends on the
imperative events if he overstepped his powers (twilight zone)
 fact sensitive analysis – barely used category, doesn’t solve doctrinal Qs
o 3) When the President takes measures incompatible with the will of Congress, his power is at its
“lowest ebb”
 Presidential actions in this case will only be allowed if the law enacted by Congress is
unconstitutional
 The presumption of validity is against the president
 These presidential decisions must be closely scrutinized.
o Here, Jackson considers Truman’s action third category
 Truman has no monopoly of war powers, no accrued inherent powers, and there were
three statutory policies inconsistent with the seizure
- Dissent found Truman’s power broad and actions necessary to avert disaster
- Black took a formalistic approach; Frankfurter & Jackson’s functionalist approaches have prevailed and
afforded Court flexibility

Modern Cases
Zivotofsky v. Kerry (2015)
- Facts: No president had ever issued a statement acknowledging any country’s sovereignty over
Jerusalem. U.S. Foreign Affairs Manual instructs its employees born in Jerusalem to record Jerusalem-
born employees’ birthplace as “Jerusalem.” In 2002, Congress passed Foreign Relations Authorizations
Act, seeking to override Manual’s instructions by allowing employees to list their place of birth as
“Israel.”
- HOLD: Art. II grants the President exclusive authority to formally recognize a foreign sovereign through
executive power that Congress may not contradict. Zivotofsky may only list Jerusalem as his place of
birth.
- Youngstown Category 3: direct conflict between President and Congress, the President must rely solely
on powers the Constitution grants him. The congressional action interferes with the exclusive
Presidential Recognition power.
- Source of this “Recognition Power”: Reception Clause: President “shall receive Ambassadors” is
understood as President’s power to recognize other nations, Presidential treaty power, Power to
appoint ambassadors and other public ministers and consuls, and power to conduct foreign policy
- Congress wasn’t permitted to reverse the executive’s position. The nation must have a single
methodology regarding which governments are legitimate
o Congress makes policy calls, but President has recognition power
- Dissent: Congress should’ve made the call; foreign affairs power is not understood for President to defy
the will of Congress.
- Notes: Political Question Doctrine
o Textual Commitment – power to receive ambassadors, other public ministers and consuls?
o Potentiality of embarrassment from multiple determinations by different branches?
o Before the court reached the merits of Zivotofsky, court rejected a question about this being a
political question. Proceeded to answer

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Dames & Moore v. Regan (1981)
- Facts: Iranians held Americans hostage in Tehran. Carter, acting pursuant to the International
Emergency Economic Powers Act, made an Executive agreement to: suspend all legal proceedings in
U.S. courts against Iran, nullify all attachments and judgments obtained in U.S. courts, and bring about
the transfer of all Iranian assets held in the U.S. by American banks.
- HOLD: President was authorized to suspend the claims under Art. II, Sec. 1.
- President acted under authority of IEEPA and Hostage Act – while they don’t give specific
authorization, they are “highly relevant in looser sense of indicating congressional acceptance of a
broad scope for executive action in these circumstances”. Important Factors:
o Congress gave president broad authority to act in these circumstances. Congress did not
expressly disapprove and had a history of acquiescing to executive claims settlement. Past
SCOTUS decisions had recognized President’s power to act. The agreement also left alternative
means of settling claims
- Youngstown Category 1 – but tricky
o Some degree of congressional silence in both; some adjacent statutes exist that don’t expressly
give the president the power that was sought
o Unlike Youngstown with the failed amendment to the Taft-Hartley Act, we don’t have anything
like that in Dames & Moore. Depends on Court’s interpretation

Medellin v. Texas (2008)

- Facts: Treaty imposes obligations on nations to inform a foreign national’s country of citizen if they are
arrested. Mexicans in Texas were convicted without knowing their rights under this treaty. Bush
declared U.S. would comply with Treaty and states would respect Int’l Court of Justice judgments 
states had to re-review the death sentences of Mexican nationals who did not contact Mexican
consulate, in violation of the treaty
- HOLD: President lacked authority to direct the states to re-review prisoners’ sentences. Unless a treaty
is “self-executing,” only Congress has power to make domestic laws to further treaty obligations.
- Types of Treaties
o Self-executing: takes domestic effect without needing legislation
o Non-self-executing: does not have independent force domestically without implementing
legislation
- Category 3: Non-self-executing means the Senate understood that the president could not enforce the
treaty alone. There was no independent power that would support his action and the “take care”
power was inapplicable. There are federalism concerns of interference with state police power, too.
o Also, no history of congressional acquiescence to self-executing treaties

Trump v. Hawaii (2018)

- Followed Trump v. Int’l Refugee Assistant Project (2017) which allowed travel ban to go into effect only
for foreign nationals who lacked a “credible claim of a bona fide relationship” with a U.S. entity. After
temporary order expired in September 2017, Trump issued another proclamation which was blocked.
Court reversed injunction here
- HOLD: Trump’s travel ban against predominantly Muslim countries was upheld
- Category One: ordered with congressional approval under 8 U.S.C. 1182(f) granting the President
broad discretion to suspend alien entry into the U.S.
- The order should not be struck down unless it is “inexplicable by anything but animus”

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 o Proclamation itself facially neutral on religion; instead, it limited to counties previously
designated by Congress/presidents as posing national security risks
 Majority decides that because it doesn’t explicitly mention religion that it does not run
afoul of First Amendment concerns
o Rational Basis Review applied with strong deference to national security decisions.
 Over- and under-inclusiveness okay. Means that the government chooses do not have
to be particularly effective. Here, ban is rationally related to a legitimate government
interest (preventing entry of foreign nationals who cannot be vetted)
 The INA “exudes deference to the President in every clause”
- Overrules Korematsu but argues this case is facially neutral and directed at non-citizens
- Breyer Dissent: Evidence that government is not applying he proclamation’s exemption and waiver
system, which makes clear that government is essentially denying Muslims
- Sotomayor Dissent: Majority ignores full record of obvious anti-Muslim animus. North Korea and
Venezuela’s inclusion was a subtle attempt at making it seemingly non-Muslim directed. Review should
have been more stringent – there is no factual context that the proclamation was related to legitimate
state interests. Even under a reasonable observer standard, this fails to safeguard religious liberty.

Congressional War and Treaty Powers and the Implied Power over Foreign Affairs
- Constitution grants Congress certain power over war and treaty issues (Art. I, Sec. 8)
- Federalism issues are often implicated

Woods v. Cloyd W. Miller Co. (1948)

- Facts: Previously, Housing Act was found unconstitutional, holding that the President’s Proclamation
declaring “peace-in-fact” ended Congress’ authority to regulate rents
- HOLD: The war power sustains this legislation, as the power includes ability to “remedy evils which
have arisen from its rise and progress” and continues through emergency.
o We have not yet eliminated the deficit in housing, precipitated by heavy demobilization of
veterans and cessation of residential construction during war
- No abuse of power – Congress is only invoking its war power to cope with a current condition of which
the war was a direct and immediate cause
- Jackson Concurrence: worried this decision indefinitely prolongs war powers
- Questions of federalism arise – Isn’t Congress essentially reaching in and regulating local economic
activity? How long are war effects actually felt?

Treaty Power – Art. II, Sec. 2 states that President “shall have power, by and with the Advice and Consent of
Senate to make Treaties, provided 2/3rds of Senators concur”
- If document titled “treaty”: need Senate
- If document titled “executive agreement”: no Senate ratification necessary
- U.S. has “unlimited” treaty power but has some limits
o Internal limits: valid subject matter
o External limits: can’t deny or violate other Constitutional rights

Missouri v. Holland (1920)

- Facts: U.S. and Britain had a treaty to protect migratory birds. Migratory Bird Act prohibited the killing
of birds. Missouri argued that the statute was an unconstitutional interference with 10 th Amendment.

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 - HOLD: A treaty which infringes the rights reserved to the states under the Tenth Amendment may
nevertheless be considered valid if it is made under the authority of the United States and is thus the
supreme law of the land. 10th Amendment not a limit.
o Art. II authorizes treaties / Art. VI makes act of Congress law of the land
o If a treaty is valid, Necessary and Proper Clause allows statutes made to implement it (permits
legislative acts N&P to execute federal powers)
- “Living constitution” jurisprudence – Holmes recognizes that we need a flexible interpretation. The
treaty here does not contravene the Constitution and protects an important national interest.
- Hypos
o Treaty with Canada to regulate the possession of handguns within school zones
 Potential internal limit – odd subject
o Treaty that requires local law enforcement officers to notify consular officials when a foreign
national has been arrested?
 Compare to Printz
 Contrast Medellin – the President, acting alone, issued an EO to carry into execution the
treaty (explicit Congressional disapproval)
 International issue
- Other Cases: Bond v. U.S. – chemical poisoning, Court strains to avoid questions about the Treaty
Power and narrowly holds that Congress didn’t intend for federal law protecting federal chemical
weapon treaty to apply to this hyper-local issue

Congressional Authority to Restrain and Enable the Executive

- Congress may be able to retain control over executive action by being very specific and limiting in the
delegation of power to agencies, so that the agency’s rulemaking power is limited. Non-delegation
doctrine is toothless in foreign sphere

Gundy v. United States (2019)

- HOLD: Four-justice plurality holds that AG could enforce SORNA for pre-Act sex offenders’ registration,
which says that offenders convicted before statute’s enactment register “as soon as feasible.” AG has
narrow discretion to address feasibility issues
o Intelligible-principle doctrine
- Alito concurs on grounds that this delegation is no vaguer than others upheld, but he says he would
reconsider delegation doctrine if majority of court were willing.
- Three dissenters express willingness to revisit delegation doctrine now.
o Court might start imposing limits on delegation and impose more restraints on certain kinds of
exercises of power (Kavanaugh and Amy Coney Barrett)

Examples of Delegation – granting executive agencies legislative power

- Workplace regulations – under OSHA, the Secretary of Labor is authorized to adopt standards that “are
reasonably necessary or appropriate to provide safe or healthful employment and to set the standard
which most adequate assures, to the extent feasible, on the basis of the best available evidence, that
no employee will suffer material impairment of health.”
- Energy prices – instead of deciding how much energy companies charge; legislature tells Federal
Energy Regulatory Commission to “authorize just and reasonable prices for the sale of energy.”
- Intelligible principles

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 o Delegation is constitutional as long as “Congress lays down by legislative act an intelligible
principle to which the person or body authorized to act is directed to conform.” Touby v. U.S.
o No law has been struck down on nondelegation grounds since 1935.
- Why delegate? Probably…
o Lack of time – hard for congress to do all the rulemaking that has to be done
o Lack of expertise – much of administrative state requires expertise lacking in Congress
o Passing the buck – Congress doesn’t want to deal with certain problems and face backlash
o DOWNSIDE to delegation: now we’ve lost control of exercising that power ourselves,
sometimes Congress wants to claw some of that power back (INS v. Chadha)
 Congress retained power to override AG’s deportation decisions

INS v. Chadha (1983) – more formal approach to separation of powers

- Facts: INA authorized one house of Congress, by resolution, to invalidate the decision of the Executive
to suspend deportation if the alien would suffer ‘extreme hardship’. The INS ordered Chadha to show
cause why he shouldn’t be deported. AG suspended Chadha’s deportation and notified Congress. The
House of Reps passed a resolution vetoing Chadha’s suspension. Eventually, an immigration judge
ordered Chadha be deported. Chadha challenged the constitutionality of the one-House veto
- HOLD: Congress doesn’t have the power to delegate subject to a reserved legislative veto. One-House
veto here does not meet the constitutional requirements of presentment and bicameralism.
o Once Congress delegates authority to executive branch, its involvement is over
- Presentment Clauses (Art. I): all legislation must be presented to President before becoming law
- Bicameralism: No law could take effect without the concurrence of both Houses’ majority
o Checks & balances: Presidential veto could be overridden to protect from improvident laws
- While not every action is subject to these, this action was legislative in character and effect
o The one-House veto altered the legal rights, duties, and relations of people, including the AG,
executive branch officials, and Chadha. It also supplants earlier law that gave the AG discretion
to suspend deportation.
o This extensive type of action is historically only permitted by a legislative act of Congress.
- The Constitution specifically enumerates one-house unilateral power in a few instances:
o Impeachment vote by House
o Conviction by Senate
o Senate consent of presidential appointments
o Senate power to ratify treaties
- Options for Congress?
o More specific laws – but this would take a lot of time/Congress might not have the expertise
o Amend laws – Congress could also pass new laws to correct an agency rule, but it’s difficult to
get new laws passed and by the time it does get passed, it might be too late.
- Dissent: Constitution doesn’t prohibit vetoes; vetoes are an important solution for Congress’ control
- Competing Visions of Separation of Powers
o Majority Opinion: “Convenience and efficiency are not the primary objectives – or the
hallmarks – of democratic government and our inquiry is sharpened rather than blunted by the
fact that Congressional veto provisions are appearing with increasing frequency in statutes
which delegate authority to executive and independent agencies.”
o White’s Dissent: “The government of the United Sates has become an endeavor far beyond the
contemplation of the Framers. Only within the last half century has the complexity and size of
the federal government’s responsibilities grown so greatly that the Congress must rely on the
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 legislative veto as the most effective if not the only means to insure their only role as the
nation’s lawmakers. But the wisdom of the Framers was to anticipate that the nation would
grow and new problems of governance would require different solutions.”

Clinton v. New York (1998)

- Facts: Clinton exercised his authority under the Line Item Veto Act to cancel a provision of the
Balanced Budget Act and provision of the Taxpayer relief Act
- HOLD: This power was unconstitutional. No provision in the Constitution allows President to enact,
amend, or repeal statutes. If President makes lots of changes, it’s not like Congress even wrote the bill
- Framers intended that the power to enact statutes may only be “exercised in accordance with a single,
finely wrought and exhaustively considered, procedure.”
o Line-item veto distinct from the Presidential veto power that sends bill back to Congress
o Subject to Bicameralism and the congressional approval is irrelevant
- Conservative Dissent: There was a practical need for a line-item veto, the bill is 500 pages long

Mistretta v. U.S. (1989)

- Congress enacted the Sentencing Reform Act and created the Sentencing Commission, an
“independent commission in the judicial branch.” Members were removable for good cause.
- HOLD: Congress may delegate authority to set sentencing guidelines to a judicial commission, provided
that it gives sufficiently specific and detailed guidelines, an intelligible principle to guide the
commission, and does not aggrandize the judicial branch at the expense of another branch.
- Followed flexible, functional approach (not looking at sharp divisions, separation of powers is all about
mixing and blending branches but not undermining)
- No encroachment by judiciary because courts not being asked to exercise powers more appropriately
exercised by another branch of government. To the contrary, the judiciary has traditionally been
involved in deciding sentencing ranges
- Doesn’t undermine judicial independence or legitimacy because courts have always been involved in
sentencing determinations.
- Scalia Dissent: We should be rigorous in preserving the Constitution’s structural restrictions that deter
excessive delegation. This case tries to create a new branch of government altogether.

Appointment & Removal of Executive Officers

- Appointments Clause: All principal officers are appointed by the president (i.e. cabinet heads); inferior
officers may be appointed differently
- Some rules about appointments:
o Congress cannot appoint officers who exercise executive power (Buckley v. Valeo)
o Who is an officer – Whether an executive branch official is an “officer” governed by the
appointments clause or just an “employee” depends on whether he/she has “significant
authority” and “significant discretion.”
o Recess appointments – President can make recess appointments during inter-session and intra-
session recesses; the recess must be at least 10 days; and as long as the senate is in session and
able to transact business, it doesn’t count as a recess (NLRB v. Noel Canning)
- So long as Congress provides an intelligible principle for delegating power and has authority to
delegate, Congress can vest specific power in executive agencies
- Executive agencies have both principal officers and inferior officers
o Principal officers = appointed by President directly and confirmed by Senate

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 o Congress can grant the right to appoint inferior officers to the president, courts, or department
heads (cabinet officers) but not to itself.
o Distinction between principal and inferior lies in whether the officer is removal by a principal
officer, possesses inferior power than a principal officer, or has temporary or limited powers
- Congress cannot give itself the power to remove executive officers, nor can it grant executive power to
someone that would be in Congress’ authority to remove
o Legislature passes laws but does not execute laws
o The only executive removal power Congress has is impeachment

Earlier Removal Cases

- Myers (1926) – strikes down law barring president from removing postmasters without consent of
Senate. President retains control over executive personnel.
- Humphrey’s Executor: Congress limited President’s ability to remove the commissioner of the FTC
o FTC acts quasi-legislatively and quasi-judicially, it is not an arm of the executive
- Weiner (1958) – Follows Humphrey’s in upholding restrictions on removal of a member of the War
Claims Commission because commission’s function was intrinsically judicial

Bowsher v. Synar (1986)

- Facts: Congress assigned Comptroller certain functions under federal Acts. If spending exceeded the
deficit ceiling, the Comptroller (who headed the General Accounting Office) was instructed to bring
budget under control. The Comptroller was removable by Congress, but not by the President
- HOLD: Except for impeachment, Congress cannot give itself the power to remove executive officials.
- Formalistic decision; Constitution does not contemplate an active role for Congress to supervise the
officers charged with the execution of the laws it enacts
o Congress would control creation AND execution of laws and Art. II, Sec. 2 gives President
powers to appoint officers with advice and consent of Senate
- Congress retained broad removal discretion – so Comptroller might do what Congress wanted
- Court has inferred that b/c President has authority to appoint executive officers, he can remove them.
- Thoughts: Why does majority insist on these formal divisions? Individual Liberties
o This regulatory scheme at issue gives to the Comptroller a fair amount of authority over
budgetary cuts – which will impact people.
o Is there a way to hold accountable through the political process by the voters the individual
who is making those determinations? The majority might say no there really isn’t. The CG
orders the President to make the cuts, but President is the one that ultimately makes the cuts.
People might blame the President for the cuts to be made. Confusion about who did what.
o Even aside from confusion, there is a concern that people can’t even get rid of CG. He isn’t an
elected official and is also not subject to control by the person who is elected (President).
o Members of Congress are elected, and supposedly people could make ‘unhappiness’ known
when voting for Congresspeople, but the mechanism of control there is less direct than the
President being held accountable for enforcement of the law.

Morrison v. Olson (1988)

- Facts: The 1978 Ethics in Government Act required the AG, upon “sufficient grounds” to investigate
possible violations of federal criminal law, report to a “special division” of the DC Circuit, and apply to
for an “independent counsel” that had full investigative powers of AG’s office. AG had sole removal
power of an independent counsel for good cause. Morrison was appointed to investigate obstruction

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 - HOLDINGS: 1. Morrison was an inferior officer and thus appointable by Congress. 2. Even though the
independent counsel infringes upon President’s ability to execute the law, the question turns on
whether they actively impede his ability to take care that the laws be faithfully executed. The limits on
his removal ability are consistent w/ separation-of-powers principles.
- Functionalist, flexible approach – does it interfere with President’s ability to do his job?
o Act here puts removal power squarely in hands of Executive, unlike Bowsher
o Her work is “purely executive” in function.
- The special counsel is an inferior officer because:
o 1) She is removal by the AG, a principal officer
o 2) possesses inferior power when compared to the AG (limited to investigation and prosecution
which do not impact executive policy)
o 3) temporary tenure and limited jurisdiction (once investigation closes, office ends)
- The imposition of a “good cause” standard f or removal does not trample executive authority
o Her temporary appointment only investigates a small slice of presidential actions
o “good cause” appropriate – she needs to be able to genuinely investigate and be independent
o President still maintains some level of control
- Act as a whole is okay – doesn’t increase Congressional powers or pose judicial usurpation
- Can we rely on the political process?
o Congressional reps up every 2 years – Congress gets reviewed more often
o 2017/2018 Mueller fiasco – no one cares right now in 2020. Or like a second term President can
do whatever they want.
- Scalia Dissent: Unitary Executive Theory = All executive power should be vested in President, not some.
Also, she is not subordinate to anyone nor the voters, so she is not “inferior”
- Hypo: What if Congress passes a law providing that the AG must appoint an independent counsel to
investigate and prosecute any federal drug crimes and then limits the ability of the AG to remove the
prosecutor except for good cause? Probably not constitutional
o Good cause standard – some control over removal ability
o But purview – all federal drug crimes? Whereas in Morrison the counsel was only overlooking a
tiny obstruction evidence. This is a lot.
o Is there a good reason to insulate the independent counsel from direct presidential control?
 Not similar argument. President is not inherently incapable of enforcing the drug laws –
not a conflict of interest issue.
Other Cases:
- Free Enterprise Fund v. Public Co. Accounting Oversight (2010): NOT flexible/functionalist – it struck
down law providing that members of oversight board can only be removed for good cause by
bipartisan SEC and that SEC members can only be removed by president for inefficiency, neglect of
duty, or malfeasance.
o Here, a second level of tenure protection for members of the oversight board changes the
nature of the President’s review and impedes on his ability to remove
- Seila Law LLC v. Consumer Finance Protection Bureau (2020): Court struck down single director of CFPB
where director was only removable for “cause.” The single director cannot be protected from removal
by President, she exercises authority over tons of people (not inferior)
o Constitutional strategy is straightforward: divide power everywhere except for the Presidency
and render the President directly accountable to the people through regular elections. In that
scheme, individual executive officials will still wield significant authority, but that authority
remains subject to the ongoing supervision and control of the elected President.
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 o Dissent: Congress needs flexibility to craft bureaucratic agencies
o Calls into question constitutionality of independent government agencies

Executive Privileges & Immunities

- Art. II species no privileges and immunities for the President or members of the Executive Branch.
- Nonetheless, the courts have developed implied executive privileges and immunities from the
structure of the Constitution and analogies to common law.
- Privilege: from turning over documents, Immunity: from being sued

Denial of Privilege
United States v. Nixon (1974)
- Facts: After Watergate, Nixon authorized the appt of a Special prosecutor who issued a subpoena to
the President requiring him to produce certain tapes and documents. He released edited transcripts of
some conversations but argues privilege. Argues if he does not have the privilege, then the future
executive branch will not have the freedom to discuss matters independently nor allow people to
communicate independently without fear of prosecution (prudential argument) and also implication of
separation of powers structure (structural argument)
- HOLD: There is no absolute executive privilege from everything. “To read the Art. II powers as
providing an absolute privilege… on no more than a generalized claim of the public interest in
confidentiality of non-military and nondiplomatic discussions would upset the constitutional balance of
a workable government and gravely impair the role of the courts under Art. III”
- It would gravely impair the court’s functions to make the president totally immune. We must balance
the president’s need for secrecy against the fair administration of criminal justice.
o Absent a claim of need to protect military, diplomatic, or sensitive national security secrets…
- Constitution doesn’t even explicitly reference confidentiality privilege
- Purposes of executive privilege:
o To prevent the judicial branch from interfering with the executive branch
o Intended to promote honest discussion between President and his advisors

Presidential Immunity
Nixon v. Fitzgerald (1982): Court holds absolute presidential immunity from civil liability for any actions taken
within the “outer perimeter of his official responsibilities” (unless there is specific congressional authorization
because this is an interpretation of a federal statute, 28 U.S.C. 1983)
- Lasts forever; No liability no matter how egregious the conduct
- Compare to qualified immunity – immunity for action not clearly unconstitutional. Applies to lower
level executive officials (qualified = less than absolute)
- Falls w/in official capacity –
o Jean Carroll – was he defaming her in his official capacity?
- DOJ memo – whether a sitting president can be indicted – nothing to do with whether a president after
he or she leaves office that he or she committed while they were president.
o Once Trump leaves office, the DOJ could choose to indict him if he committed crimes in office –
likewise, the Manhattan DA could also indict him
o DOJ memo was a restriction on the DOJ indicting a president committed at any time
 More of a policy debate, politics of prosecuting a former President

Absolute Immunity Rationale

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 - Unduly cautious – we don’t want the president to be unduly cautious in carrying out his/her duties
- Time and energy – defending suits would take lots of time and energy
- Frequent target – president would be a target for lawsuits
- Other remedies exist – there are other ways to hold the president accountable – i.e. impeachment,
voting the president out of office, media scrutiny
- Absolute Immunity for other officials
o Judges – for actions taken in their judicial capacity
 Doesn’t extent to, e.g., discrimination in hiring
o Prosecutors – for prosecutorial functions, not administrative or investigative functions
o Legislators – for legislative acts, including committee reports
 Includes legislative aids
o In every category, we focus on the function performed.

Clinton v. Jones (1997)

- HOLD: Court refused to extend the civil lawsuit immunity to protect a sitting President even
temporarily from judicial process for his unofficial acts taken before he became president. The doctrine
of separation of powers does not require federal courts to delay all private actions against president
until he leaves the office.
- Facts: Jones sought to recover from Clinton for actions allegedly taken before his term began. Clinton
argued that the federal court should defer the litigation until his term ends
- Rejecting “temporary immunity from civil damages” argument:
o That kind of immunity is meant to serve the public interest so officials can perform their duty
and not fear personal liability for their official acts. Not applicable for unofficial acts.
o Clinton merely argues that this lawsuit will burden his time and energy and impair his effective
performance of office. This doesn’t find basis in precedent… won’t engulf the presidency
- “It is also settled that the President is subject to judicial process in appropriate circumstances”
- “Official Acts” is pretty broad because most things are in official capacity, but not protected if punched
someone in a bar. If gave a Presidential speech and randomly defamed McDonald’s, might not be an
official act.

Trump v. Mazars USA (2020)

- House of Representatives issued four subpoenas seeking information about the finances of President
Donald Trump, his children, and affiliated businesses. Congress says it will help guide legislative reform
in areas ranging from money laundering and terrorism to foreign involvement in U.S. elections
o Legislative subpoena power = implied power to “secure needed information” in order to
legislate, but the subpoena must serve a valid legislative purpose
o President Trump argued that Congress lacked a legitimate legislative purpose and violated the
separation of powers. He did not assert executive privilege.
- Issue: whether the subpoenas exceed the authority of the House under Constitution.
- Information is sought by committees of Congress that set forth broad legislative objectives.
- HOLD: Sets out a balanced approach to separation of powers that considers both the significant
legislative interests of Congress and “unique position” of President
o 1. Congress may not subpoena the president if info is reasonably available from other sources
o 2. Courts should insist on a subpoena no broader than what is necessary to support their
legislative objective.

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 o 3. Courts should be attentive to the nature of the evidence offered by Congress to establish that
a subpoena advances their valid legislative purpose
o 4. Courts should be careful to assess burdens imposed on President
 Burdens on President’s time and attention are usually not enough
- The executive privilege safeguards the public interest in candid, confidential deliberations within the
Executive branch; but that doesn’t translate to nonprivileged, private information that is unrelated to
sensitive Executive Branch deliberations.
o However, we don’t want any personal paper possessed by President to potentially “relate to” a
conceivable subject of legislation and then lead Congress to a fishing expedition
o The President is the only person who alone composes a branch of government. As a result,
there is not always a clear line between his personal and official affairs.
- Thomas Dissent: Congress has no power to issue a legislative subpoena for private, nonofficial docs.
- Alito Dissent: The test outlined by Court can’t be satisfied unless House puts forth more information.

Trump v. Vance (2020)

- Facts: This case involves the first state criminal subpoena directed to a President. Cyrus Vance wants to
subpoena Trump regarding sexual assault allegations.
- HOLD: Absolute immunity is not appropriate here; Also, grand jury subpoena seeking a president’s
papers do not satisfy a heightened need standard
- Issue 1: Rejecting President’s arguments re: absolute immunity
o Argues complying would necessarily divert the Chief Executive from his duties (broad arg.)
 Distraction is insufficient to confer absolute immunity
 Supremacy Clause prohibits state judges and prosecutors from interfering with
President’s official duties.
o President claims stigma of being subpoenas will undermine his leadership
 Nothing inherently stigmatizing about providing information
o “easily identifiable target” for harassment (argument rejected in Clinton v. Jones)
 Under certain circumstances, harassing subpoenas could threaten the independence
and effectiveness of the Executive.
 But the state and federal courts could protect against predicted abuse
 Grand juries can’t initiate investigation out of malice
- Issue 2: No need for grand jury subpoena seeking a President’s private papers to satisfy a heightened
need standard?
o It would extend protection designed for official documents
o The heightened protection is not necessary for the Executive to complete duties
o In absence of a need to protect the executive, the public interest in fair and effective law
enforcement cuts in favor of comprehensive access to evidence
 We don’t want to hobble this ability.
- Protections President might invoke
o Challenge a subpoena on grounds of bad faith, undue burden, or undue breadth
o Raise subpoena-specific constitutional challenges
o Show that compliance with a particular subpoena would impede his constitutional duties
- Kavanaugh/Gorsuch Concurrence: ‘demonstrated, specific need’ standard from Nixon should apply
- Thomas Dissent: President is not entitled to absolute immunity from issuance of subpoena, but he
might be entitled to relief against its enforcement. Burr Standard.
- Alito Dissent: State may not interfere with the National Government’s work.
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 - (Currently waiting for appeal to be heard at the second circuit)

Indicting a president?
- No bar to indicting a former president for crimes committed in office, whether the president was
impeached or not.
- DOJ policy, based on OLC memo, bars indicting a sitting president
o “the indictment and criminal prosecution of a sitting president would unduly interfere with the
ability of the executive branch to perform its constitutionally assigned duties and would thus
violate the constitutional separation of powers”
o At least by a federal prosecutor, but unclear if it applies to state prosecutors. Though a court
might be persuaded that DOJ policy applies to states (consider federalism interests though)
o But see memo produced by Ken Starr’s staff, disagreeing with this conclusion
o Note doesn’t apply to former president
o Comes out of Manhattan DA’s investigation
- What about state indictments?
- Scope of official capacity – “within widest perimeter”: But questionable, not a lot of case law

Individual Rights
- The Constitution as ratified only contained a few protections for individual liberty
o Habeas Corpus shall not be suspended (Art. 1, sec. 9); Ban on ex post facto laws and bills of
attainder – Art. 1, sec. 9; Jury trials in criminal cases (Art. III, sec. 2, cl. 3)
- No list of specific rights at first because:
o Framers thought it was unnecessary to enumerate specific rights because the government had
limited powers that it could not exceed.
o Framers worried about implications, thinking enumerating specific rights would imply that
other individual rights were impliedly not protected.

The Bill of Rights – Application to States & the Meaning of Citizenship

- During ratification debates, many states worried about the lack of a bill of rights and ratified the
Constitution on the understanding that one would be added after ratification
- During its first sitting, Congress proposed a list of amendments to be added to the Constitution. The
House of Reps proposed 17, the Senate approved 12, and the states ratified 10.
o Defenders of the Constitution warned that the enumeration of specific rights would imply the
exclusion of others. Critics said without these protections, the feds would have too much power

Barron v. Mayor & City of Baltimore (1833)

- Facts: Wharf-owner Barron tried to argue that city project depositing sand in his wharfs thus violated
the Fifth Amendment’s takings clause
- HOLD: The Bill of Rights (specifically here, 5th Amendment) are only restrictions on federal
governments and do not apply to state or local governments
- Rationale: Narrow view of Bill of Rights. Constitution created “for the people” not the States. At the
time, we had great faith in state constitutions to uphold state liberties. Art. 1, sec. 9 set limitations to
be imposed on federal government; sec. 10 enumerates limitations on state legislatures, so there is a
plain demarcation. Barron overruled later by the Post-Civil War Amendments

Dred Scott v. Sanford (1857)

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 - Facts: Dred Scott was a slave who traveled through Wisconsin (free) in 1836 but ultimately back to
slavery-condoning Missouri. The slaveowner died and his widow refused to give Scott his freedom. The
Missouri Compromise at issue admitted Missouri as a slave state but prohibited slavery north of 36/30,
and territories below that line could choose whether to admit slavery. Scott tried to argue that his two-
year Wisconsin residence rendered him free. Scott invoked diversity jurisdiction as a citizen.
- (TERRIBLE) HOLDINGS: 1) Scott was not a citizen and there was no jurisdiction to hear this suit, and
even still, 2) nothing made Scott free by going into these territories
- Issue 1: Did the Circuit Court of the U.S. have jurisdiction to hear?
o One of the rights of being a citizen is suing in the courts of the United States
o Court believes Framers did not intend to include slaves in the word “citizens” in the
Constitution. People of African descent were considered inferior, and we need to interpret
according to the Framers’ understanding.
o The Slave Trade and Fugitive Slave Clauses point to this as well.1
- Issue 2: Was the judgment erroneous on the merits? (unnecessary to answer but court went further)
o The Missouri Compromise is unconstitutional. Congress declared that slavery was prohibited in
the northern Louisiana Territory, but U.S. citizens traveling between those states retain their
rights as citizens and Congress cannot confer power on local government to violate Constitution
o The Compromise deprived slaveholders of their property without due process or just
compensation. Nothing made Dred Scott free by being carried into these states by his owner.
- Marylander Chief Justice Taney was trying to appease both slave owners and abolitionists.
- Dissent thought native-born slaves were automatically citizens. Scott helped precipitate the Civil War.
- Eventually overruled by the 14th Amendment 11 years later.

Post-Civil War Amendments

- 13th Amendment = gave constitutional sanction to Emancipation Proclamation and declared that
“neither slavery nor involuntary servitude…shall exist within the United States.” But ‘Black codes’
limited rights in many Southern States. Congress adopted the Civil Rights Act of 1866
- 14th Amendment = ratified in 1868 and addresses states directly; overruling Dred Scott by granting
citizenship to all persons born in the United States – although race is not explicitly mentioned
o Section 5 of the Amendment permits congressional enforcement
th
- 15 Amendment = ratified in 1870; expressly speaks about racial discrimination in voting by
guaranteeing Black people the right to vote
o Section 2 permits congressional enforcement

Two Buckets of Privileges and Immunities

- Art. IV: prohibiting discrimination against out-of-staters
- 14th Amendment: prohibits states from denying P&I to citizens of the U.S.
o By allowing courts to invalidate state action as violating P&I; it gives Congress the power to
prohibit the states from depriving citizens of certain rights

Slaughterhouse Cases (1872)

1
Even though the words “slave” and “slavery don’t appear in the Constitution, many provisions reference the institution of slavery:
Art. 1, sec. 2 = 3/5ths Clause; Art. 1, sec. 9 references the International Slave trade = “The migration or Importation of such Persons
as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808, but a Tax
or duty may be imposed”; Art. IV, sec. 2 is the “Fugitive Slave Clause” = No person held to Service in one state…escaping into
another, shall be… discharged from such service but shall be delivered up on Claim of the Party to whom Service is due”
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 - Narrowly read the 14th Amendment and held that Post-Civil War Amendments had not been meant to
radically expand the power of SCOTUS to regulate the relationship between states and their citizens
o Reasoned that central concern of 14th Amendment was racial discrimination
- Facts: Louisiana state law chartered a corporation that held a 25-year right to maintain New Orleans-
area slaughterhouses, in turn closing down competing butchers. Aggrieved butchers argued that the
law deprived them of their right to “exercise their trade” and brought 14 th Amendment challenge
o Note: no Art. IV issue because the plaintiffs were not out-of-staters being discriminated
- HOLD: 14th Amendment only protects rights guaranteed by the U.S. and not the individual states
- Rationale:
o Purpose: pervading purpose of the Civil War Amendments was simply “freedom of slave race”
o Textual: 14th Amendment clause the plaintiffs rely on speaks of P&I of citizens of the U.S.; not
several states. Citizens of States vs. Citizens of U.S. = interpreted differently
o Art. IV: States have traditionally had control over what P&I citizens would have, not feds 2
 While Art. IV extends your states’ privileges to out-of-staters, states still retained the
ability to define how they wanted to treat their citizens.
o Section 5 concerns: if 14th Amendment prevents states from denying P&Is to its citizens, then
Congress would have power to enforce legislations against states in advance:
o Courts as a censor: want to avoid federal courts being “perpetual censor” on all state
legislations
o Court interpreted the Clause, “adopted understandingly and with a purpose,” was not meant to
protect individuals from state government or allow federal courts to invalidate state laws.
o The actual rights guaranteed by the U.S. are very limited and don’t historically include civil
rights. The Equal Protection Clause does not apply to plaintiffs because the Statute doesn’t
concern emancipated slaves.
- Now, we don’t understand the 14th Amendment as transferring the state power to grant fundamental
civil rights to the federal government – those consequences would be serious, far-reaching, and
degrading of state governments.
o It’s up to the States, and we’re not defining the states’ P&Is.
o This essentially nulls and voids the 14th Amendment’s power. The Due Process was relied upon
in future cases. Does this evolution make sense for the protection of substantive rights?
- Enumerates the limited P&Is of U.S. Citizens: Travel to D.C.; Use of ports, courts and related offices;
Protection abroad; Assembly and petition; Habeas corpus; Navigable waters; Protection of treaties;
and Post-Civil war amendments – Rights of 13th and 15th Amendments and other clauses of 14th
- Dissent: The point of Amendments is to protect citizens of the U.S. against deprivation of their
common rights by State legislation. Majority reads 14th Amendment too narrowly. Any law that
establishes a sheer monopoly, depriving a large class of citizens of the privileges of pursuing lawful
employment, does abridge the privileges of those citizens. Dissent’s approach prevails.

Saenz v. Roe (1999)

- Facts: In 1992, California enacted a statute limiting the welfare benefits available to newly arrived
residents to be = to the amount they would’ve received in former state (usually, a lot less). In 1996,
Congress expressly authorized a state receiving federal welfare funds to enact such a scheme.
- HOLD: P&I Clause protects right to travel by allowing citizens to move freely b/w states, securing right
to equal treatment in states while visiting (Art. IV) & new residents to be treated same as long-term

2
in Corfield v. Coryell, Court found that the P&I = rights fundamental and characteristic to citizens of all state governments
40
 citizens (14th Amendment – a new resident is no longer an out-of-stater, but is protected against
discrimination). Congress may not authorize states to violate the 14th Amendment.
- While the word “travel” is not found in text of Constitution, it is firmly embedded in our jurisprudence.
o 1) Citizenship grants the right to move around the country
o 2) Art. IV, sec. 2 expressly protects right to freely travel and enjoy state rights while visiting
o 3) A newly arrived citizen has the right to the same P&I as other state citizens
 Protected by the new arrival’s status as a state citizen and an American citizen (14 th Am)
- The need for welfare benefits is unrelated to length of time someone has resided in CA, and there is no
danger that people will take the benefits and run (not portable like divorce, in-state tuition). The
durational residency requirement is subject to strict scrutiny.
o Strict scrutiny: State has a compelling interest (fiscal responsibility), but means are not narrowly
tailored – State could’ve easily reduced 72 cents/month for each beneficiary and saved money.
- Statute creates an inferior class of citizens. Citizens can choose states, but states can’t choose citizens.
o Relying on structure of federal union: any citizen classification is presumptively unconstitutional
- Rehnquist Dissent: States retain ability to use bona fide residence requirements to ferret out those
who take it and run. Disagrees with “non-portable” idea and thinks welfare is an investment in human
capital that can be taken anywhere. Thomas invokes textual argument and says that this public benefit
probably wasn’t included in the original understanding of the 14th Amendment.
o More criticism: did the court interpret 14th Amendment too broadly, thus giving court power to
regulate state welfare programs?

The Incorporation of the Bill of Rights through the Due Process Clause
- The words “due process of law” were intended to mean the same as “by the law of the land”
- Total Incorporation: Some justices urged that the Due Process Clause applies all of the Bill of Rights
against the states vs. Selective Incorporation: view that court only incorporate those provisions
fundamental to liberty and justice or essential to a fair trial on a case-by-case basis.
o Through Selective Incorporation, we gradually incorporated most of the first 10 amendments to
apply to the states.
- Procedural due process protects the right for specific procedures to be followed before citizens are
deprived of life, liberty, property. Substantive due process involves interpretations of the word
“liberty” as used in the Amendment and refers to those rights which cannot be deprived even with
specific procedures – virtue of those rights makes any procedure unconstitutional.
- Provisions Incorporated: 1st, 2nd (most recently), 4th, 5th (most of), 6th, 8th
- Not incorporated: 3rd, 5th grand jury indictment requirement, 7th
- Unenumerated rights question: are there fundamental rights not in Constitution that can’t be infringed
by the government? If so, how do we decide what those rights are? Does Court have the power?
- Incorporation has led to the Constitution today as holding state/local gov’ts to almost all of the same
standards as the federal government.
o State Action Doctrine = private parties generally cannot violate the Constitution. Congress can
prohibit discrimination by private entities, but Constitution can’t

Duncan v. Louisiana (1968): Holds that the 6th Amendment right to a jury trial applies to state proceedings
through the 14th Amendment.
- Walks through multiple phrases of the “Test” of incorporation: whether a right is among those
“fundamental principles of liberty and justice which lie at all of our civil institutions”; “Basic in our
system of jurisprudence”; “fundamental right, essential to a fair trial”

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 - Finds this right fundamental to prevent oppression by gov’t and provide safeguards against corrupt
prosecutors or biased judges.

McDonald v. City of Chicago (2010)

- In D.C. v. Heller, we held that the 2nd Amendment protects right to keep and bear arms for self-
defense. The petitioners challenged a Chicago law that prohibited residents from owning handguns.
- HOLD: 2nd Amendment is fully applicable to the States. A Bill of Rights guarantee applies to the states
if it is fundamental to the nation’s scheme of ordered liberty or deeply rooted in the nation’s history.
- Plurality follows Court’s selective incorporation precedents and walks through history. Heller made it
clear that the right to bear arms was deeply rooted in our history (English Bill of Rights inspired
Framers) and following Civil War, the states’ attempts to disarm blacks led to the Civil Rights Act. When
it was met with resistance, Congress responded by adopting 14th Amendment, giving constitutional
basis to the rights of the Civil Rights Act.
- Thomas concurs that the right is established through P&I, and Due Process only guarantees process
before deprivation of a right and cannot be understood to define substance of unenumerated rights.
- Stevens Dissent: I agree that our substantive due process cases express a right to bear arms, but we
also have a long history of state regulation. Breyer Dissent: incorporation won’t further any other right
or constitutional objective, and this will disrupt constitutional allocation of decision-making authority.

Substantive Due Process and Economic Liberties

Lochner v. New York (1905)
- Facts: Lochner was convicted for permitting his bakery employee to work over 60 hours/week, in
violation of a NY state maximum hours law. He argued this unconstitutionally burdened his 14 th
Amendment Due Process right to freely contract with his employees.
- HOLD: A state may not regulate the working hours mutually agreed upon by employers and employees
as this violates their Fourteenth Amendment right to contract freely under the Due Process Clause.
- Rationale: Right to contract is part of the liberty of the individual protected by the 14 th Amendment.
o While States have police powers that prevail in areas like mining or smelting, we find that
employees should be free to contract in a bakery like here – otherwise legislatures would have
unbounded power to police labor relations.
o The connection between a clean & healthy worker and the bread he produces is too thin
o The law is not understood as a regulating health of the baker, it is just an arbitrary interference
with the individual rights of employers and employees to contract, so it is invalid.
o We must read question as whether “this is a fair, reasonable, and appropriate exercise of the
police power, or is it an unreasonable, unnecessary, and arbitrary interference with the right of
the individual to his personal liberty or to enter into those contracts in relation to labor which
may seem to him appropriate or necessary for the support of himself and his family”
- Harlan Dissent: New York must have figured that the 60+ hour work week was dangerous, and we
shouldn’t be commenting on the wisdom of their legislation, we should defer. Many states have
8/hour workdays that bear reasonable relation to general health, safety, and welfare of citizens.
o This decision cripples the inherent power of States to care for well-being of citizens.
- Holmes Dissent: Accuses majority of reading its own political and economic theory into its opinion.
States should have power to decide what is best for their citizens. Connect to Missouri v. Holland
reasoning – Constitution is living and breathing, meant to adapt over time, and we can’t read in fixed
ideas about how to regulate economy. Even though Holmes loved laissez-faire capitalism, he thinks we

42
 should simply only look at whether a law violates Constitution and says that it is not the court’s place
to invalidate economic legislation. (Holmes inadvertently a hero to progressive workplace regulations.)
- Older supporting case: Allgeyer v. Louisiana (1897) set out a broad understanding of liberty.
o “we should embrace the right of the citizen to be free in the enjoyment of all his faculties… to
pursue any livelihood or avocation, and for that purpose to enter into all contracts which may
be proper, necessary and essential to his carrying out”
- What’s wrong with Lochner?
o Substantive due process – it reads substantive rights into procedural protection
o Liberty – it’s too expansive in its definition of liberty
o Means-end test and its application – the requirement of reasonable relation between means
and legitimate end is too strict. Although test applied is supposed to be rational basis, the
means end-analysis is not applied honestly in light of the facts
o Legislative ends – it doesn’t respect the legislature’s goal of protecting workers from unequal
bargaining position
- Cases after Lochner
o Union laws – struck down laws protecting employees’ right to organize unions
o Minimum wage laws – struck down minimum wage law for women
o Price regulation and consumer protection laws – struck down laws setting maximum for
theater tickets, employment agencies & gasoline
o Laws regulating business entry – invalidated restrictions on entry into certain lines of business
o Maximum hour laws – upheld maximum hours for miners and for women working in factories
or laundries
- Compare to Commerce Clause
o Court is striking down state economic laws under the due process clause at the same time it is
striking down federal legislation under the Commerce Clause
o All in the wake of industrial revolution – when there is groundswell report for improving
conditions in factories and mines!!
- Lochner eventually ends up discredited and overruled.

Decline of Lochner
- Court begins not only to retreat from its narrow interpretation of Commerce Clause, but the Court is
also retreating from very broad understanding of the due process clause that had been used to stifle
state regulation of the economy
o “Switch in time that saved nine”
o Massive shifts in the Court in response to Great Depression. No formal amendments, but we
should understand the Court’s retreats as tantamount to an amendment

Nebbia v. New York (1934)

- NY State Legislature established a Milk Control Board to fix prices to be charged by stores for
consumption off the premises where sold. The Board fixed 9 cents as price to be charged for a court,
but Nebbia sold two quarts and a 5-cent loaf for 18-cents.
- HOLD: The right to contract recognized in Lochner is absolute. Due process simply demands that the
law has a reasonable relation to a proper legislative purpose and is neither arbitrary nor discriminatory.
- The legislation was enacted to protect dairy farmers who needed fair prices to avoid going out of
business or taking unhealthy shortcuts. The production of milk is paramount to health and prosperity
(at the time) and the industry needs to be regulated to maintain this.
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 o Equally fundamental with private right to contract is the right to regulate it in common interest
- As long as the legislature’s reasons have some rational basis, we will not question it.

West Coast Hotel v. Parrish (1937): A state may regulate minimum wage paid to employees when that
regulation is for the purpose of promoting employees’ health, safety, and welfare.
- Constitution does not recognize an absolute and uncontrollable liberty and does not speak of freedom
of K. Liberty under the Constitution is necessarily subject to restraints of due process and regulation,
when it is reasonably related to its subject and adopted in the best interests of community.

Williamson v. Lee Optical Co. (1955)

- This case is the height of extreme deference to state legislation
o Due Process equivalent of Wickard v. Fillburn
- Facts: Oklahoma Law required any person who wanted to get eyeglass frames to get a written
prescription from an ophthalmologist or optometrist. Now, no optician can fit old glasses without
prescriptions, so this legislation hurts their business.
- HOLD: It is for the legislatures to balance the advantages and disadvantages of new requirements. The
law need not be in every respect logically consistent with its aims to be constitutional.
- Somewhat post-hoc analysis, bending over backward to come up with legislature’s reason
o Maybe an evil at hand, maybe regulation of eyeglass frames, maybe in some cases legislature
thought prescription was essential so it was easier to mandate always getting a prescription.
o Also, could’ve been about lobbying/special interests, but this is not for the Court to decide

Instances where Lochner lives again?

- Court is not so deferential with regard to punitive damages
o Usually punitive damages exceeding compensatory by more than 10x are unconstitutional
o Jury cannot use punitive damages to hold defendants responsible for harms to people other
than the plaintiff
- Patel v. Texas (2015) – Texas Supreme Court strikes down state law requiring 750 hours of training for
cosmetologists under Texas constitution
- Covid-19 – Judge strikes down Pennsylvania COVID business closures, stating that the New Deal
Supreme Court simply “recalibrated and de-emphasized” Lochner, but never “repudiated” it

United States v. Carolene Products (1938)

- Reaffirmed standard of rational basis review. Regulatory legislation is not presumed unconstitutional
unless the rational basis did not rest upon some rational basis within knowledge of legislators.
- FOOTNOTE 4: Stone writes that there may be cases where greater judicial scrutiny is appropriate:
o Bill of Rights – greater scrutiny may be appropriate when legislation on its face appears to
violate a specific provision of the Constitution
o Political processes – legislation that interferes with political processes such that undesirable
legislation can’t be overturned might get stricter scrutiny. E.g. right to vote, distribute
information, form political organizations, and peaceably assemble
o Discrete and Insular Minorities – greater scrutiny might be necessary to protect discrete and
insular minorities from prejudice, especially when they are unable to protect their own
interests through the political process. E.g. religious, ethnic, and racial minorities
o Theory, not a holding.

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  We’re saying ordinarily we’ll defer, but here are some theoretical areas where we might
exercise greater judicial scrutiny, justifiably…

Substantive Due Process and The Right to Privacy

Early Cases
- Meyer v. Nebraska (1923) – Strikes down law prohibiting teaching foreign languages to young children.
o Liberty includes the right “to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience and generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness by free men.”
• Pierce v. Society of Sisters (1925) – Strikes down law requiring children to attend public schools over
private because it interferes with liberty “to direct the upbringing and education of their children.”
• Skinner v. Oklahoma (1942) – Relies on equal protection clause to strike down law sterilizing people
convicted of three felonies.

Griswold v. Connecticut (1965)

- Facts: Two CT provisions at issue: 1) punishes any person who uses a drug to prevent contraception
and 2) any person who assists may be punished like the principal offender. Not a ban on sales.
- HOLD: Unconstitutional under Due Process Clause of the 14th Amendment because it violates “liberty.”
The right to marital privacy, although not explicitly stated in the BOR, is a penumbra (shadow), formed
by certain other explicit guarantees. As such, it is protected against state regulation. This case is limited
to marital privacy and not extended to relationships outside of marriage or homosexuality.
- Douglas avoids DP Clause & says that various guarantees in Bill of Rights create zones of privacy
o “The present case concerns a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees”
o 1st Amendment – right of association
o 3rd Amendment – protection against quartering
o 4th Amendment – right against unreasonable searches and seizures
o 5th Amendment – right against self-incrimination
- Court roots this right in the constitutional “penumbra,” so it does not appear as if it is creating this
right out of whole cloth. Court struggles with how to distinguish this from the same subjective judicial
intervention technique that they were criticized for in the Lochner progeny.
- Harlan Concurrence: The proper Constitutional inquiry is whether the statute infringes on the Due
Process Clause of the 14th Amendment because the enactment violates basic values “implicit in the
concept of ordered liberty” – leans into DP; this is the approach we follow in future cases
- Harlan: Judicial self-restraint will be achieved only by continual insistence upon respect for history,
solid recognition of the values that underlie our society and wise application of the roles that the
doctrines of federalism and separation of powers have played in preserving freedoms.
- State’s interests are in preventing adultery and expressing moral disapproval, but more than a rational
relationship is required to satisfy these interests
- Dissent: decisions about privacy should be left to legislature; Amendment does not speak of privacy
o Justice Black essentially suggests legislature can do all sorts of things that most of us would be
appalled that the Court can’t do anything about. Black admits that the government has a right
to invade his privacy unless prohibited by the Constitution. Black & Douglas butt heads.

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 - Goldberg emphasizes Ninth Amendment: “enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people” but doesn’t make clear how to use it
- Distinguishing Griswold from Lochner
o Pre-political rights – Griswold involves pre-political rights whereas contract rights are
dependent on law. But Griswold emphasizes marriage, a state-created contractual relationship.
o Political process failure – Greater chance of political process failure in Griswold.
 But are married couples a discrete and insular minority?
o Constitutional text – Provides more protection for privacy than contracts.
 But see takings clause and other protections for property and contracts
o Connection to personhood – Sex more important to personhood than contracts.
 Under what authority?
o Government interests – Stronger for regulating contracts than sexual relations.
- Further (Brennan) Cases: Eistendadt v. Baird (1972): extends use of contraception to unmarried
persons on an equal protection basis under minimum rationality. If the right to privacy means
anything, it is the right of a person to be free from unwarranted governmental intrusion into matters
so fundamentally affecting a person as the decision whether to bear or beget a child. Also, Carey v.
Population Services (1977) struck down NY law that prohibited minors from getting contraceptives.
Minors have some constitutional rights but state power over children is greater than over adults.
- Can we rely on Carolene FN 4? Who would be the ‘discrete, insular minority’?

Abortion
Roe v. Wade (1973)
- Facts: Lower courts found Texas law banning abortion was unconstitutional under 19 th Amendment.
- HOLD: The right to privacy is broad enough to encompass a woman’s right to choose.
- Rationale: Courts have recognized zones of privacy and personal rights are included. Following the lead
of Griswold, we recognize abortion as a fundamental right, it can only be infringed upon with a much
more compelling justification (strict scrutiny) than mere deferential rational basis review.
- Balancing Interests:
o Women have clear interests - Specific and direct harm, maternity could force upon a woman a
distressful life and future, mental and physical health taxed, stigma of unwed motherhood
o State has may have reasons to safeguard health and protect potential life
 Two separate issues. As woman approaches term, each need becomes more compelling
 After first trimester, mortality is lessened. We will not decide when life begins
(philosophers can’t even) but our jurisprudence tells us that the unborn are not people
- Court creates Trimester Framework to balance needs of state & people
o Within 1st trimester abortion can’t be interfered with by State
 At this stage, abortion is less risky than carrying the fetus to term
 State can regulate after that, so long as any restrictions are tailored to the recognized
state interests.
o Second trimester – can regulate to protect woman’s health
 E.g., who can perform abortions; what type of facilities
o Third trimester – can ban abortion to protect potential life
 But must make exceptions to protect health or life of the woman
- Discrete and Insular Minority Argument: hard to make for all of ‘women’ despite their lack of power
- Different ways of understanding the type of privacy: privacy of the home, marital intimacy, bodily
integrity, and decisional autonomy.
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 - Equal Protection – would Roe be better decided under this framework as a way to ensure equal
opportunity for women in the economic sphere? Some issues to this framing:
o men can’t get pregnant, but at least they don’t need to worry re: stigma and economics
o Counter argument that abortion laws apply exclusively to women so its “gender discrimination”
- Post-Roe Cases: Court struck down most abortion regulations with two exceptions
o Abortions for minors – although Court struck down spousal consent requirements, it upheld
parental notification laws as long as state provided an alternative judicial bypass procedure
o Public abortion funding – upheld denial of public funding for abortion even when public funding
is available for childbirth. Court says this doesn’t interfere with right to abortion because
woman is in same position she would be had the state not funded childbirth.
- Abortion and judicial politics
o U.S. Solicitor General asked Court to overrule Roe 6 times during 1980s (Reagan era) & 4
justices indicated a willingness to do so. Abortion dominated judicial nomination hearings and
led to Senate’s rejection of Robert Bork for a SCOTUS because he rejected Griswold.
o Confirmation hearings: Nominees won’t explicitly say whether they agree with legal abortion.
Asking “what do you think of stare decisis” – meta way of getting at it

Planned Parenthood of PA v. Casey (1992)

- Challenge to a PA law that limited availability of abortions (informed consent, 24-hour waiting period,
parental consent, spousal notification, reporting requirements.) Central holding of Roe is at issue: Does
the right to privacy guarantee the right to abortion? Does the Constitution protect these rights?
- HOLD: Creates undue burden standard and upholds provisions except for spousal consent. Our
obligation is to define liberty for all, not mandate our own moral code.
- Rejects arguments to overturn Roe: We have heavily relied on Roe and the ability for women to
participate in economic and social life. Roe properly recognizes limits on governmental power to
mandate medical treatment. Advances in medical treatment have no bearing on Roe’s validity.
Overturning Roe would seriously weaken the court’s capacity to exercise judicial power (stare decisis)
- Undue Burden Standard as applied to provisions:
o Informed Consent upheld
o 24-hour waiting period is not unduly burdensome, albeit troubling
 Though a few women may be unduly burdened (distance, finances) – not enough
o Spousal notification requirement – rejected
 Here, we have domestic violence issues. Women do not lose their constitutionally
protected liberty when they are pregnant and their husband has an interest.
o Under 18 – Judicial bypass mechanism exists so this is okay
o Detailed Report – not a substantial obstacle, so this is upheld
- The Undue Burden Standard is not entirely clear. It replaces the trimester framework which causes
dissenters to accuse the majority of upholding but also departing from stare decisis.
o Prior to viability – can regulate to protect the woman’s health or show respect for potential life
 Laws must not impose an undue burden – i.e. substantial obstacle in path of woman
seeking an abortion. Persuasion is okay, coercion is not
o After viability – can ban abortion, with exceptions to protect health and life of woman
- The Judicial Role: “the inescapable fact is that adjudication of substantive due process claims may call
upon the Court in interpreting the Constitution to exercise the same capacity which by tradition courts
have always exercised: reasoned judgment. Its boundaries are not susceptible of expression as a simple

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 rule. That does not mean we are free to invalidate state policy choices with which we disagree; yet
neither does it permit us to shrink from the duties of our office.”
o We can’t escape judicial subjectivity, but we have to constrain and channel that discretion
- Blackmun Concurrence: Roe Framework would’ve worked just fine, we don’t need undue burden
- Dissent: Opinion retreats from Roe and Roe should’ve been overruled
- Stare Decisis – why we adhere and uphold precedent:
o Values underlying adherence to precedent: predictability/certainty, equality, judicial efficiency,
judicial restraint
o Courts cannot overrule prior decisions merely because they disagree. They need additional
circumstances beyond mere disagreement to overrule, otherwise stare decisis is meaningless.
o Rejects comparison to Brown v. BOE overturning wrong Plessy precedent – in Brown, they had
changed facts.
- Factors (from Casey) relevant to potentially overruling:
o Workability – whether the rule has proved practically unworkable
o Reliance – whether people or institutions have come to rely on the rule such that overruling it
would create special hardship
o Abandoned Doctrine – whether related principles of law have so far developed as have left the
old rule no more than a remnant of abandoned doctrine
o Changed Facts – whether facts have so changed or come to be seen so differently as to have
robbed the old rule of significant application or justification
o Not in Casey but recently recognized: poorly reasoned or egregiously wrong decision
 Controversial – this sounds like “do we agree?” Amy Coney Barrett issues

Late-term Abortion Jurisprudence

Stenberg v. Carhart (2000): struck down a Nebraska law prohibiting late term dilation & extraction (D&X)
because it did not have a health/safety exception and because the procedures were not clearly defined, it did
not show that law was limited to intact D&E procedure, it could’ve applied to standard abortion procedure

Gonzalez v. Carhart (2007)

- Does the Act at issue impose a substantial obstacle to late-term but pre-viability abortions?
- The federal Act at issue adopts the phrase “delivering a living fetus” and expresses the usual meaning
of “deliver,” namely the extraction of the entire fetus rather than removal of fetal pieces
o Scope – federal law more limited in application so it will not be applied to standard dilation and
evacuation procedure
o Health exceptions – does not contain an exception for cases in which the intact D&E method is
necessary for health reasons
- HOLD: The Act is upheld because it does NOT impose a substantial obstacle to late-term abortions.
- Rationale: State interests – ensuring a woman who chooses to abort is well-informed, state profoundly
respects human life, wants to safeguard women’s health and there are no health risks
o The Act prohibits a method in which fetus is killed just before birth process which is “tailored”
o Woman regretting abortion may enter severe depression so doctors may want to withhold
information about the nature of the D&E procedure.
o Also doesn’t pose a medical, significant health risk to woman
o When medical uncertainty persists, legislatures have discretion. The uncertainty doesn’t make
the Act invalid on its face.
o Exceptions are allowed in as-applied challenges.
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  As-Applied Challenge = the law is unconstitutional as applied to this specific plaintiff
(i.e., specific medical condition.) In practice though, mootness complicates this.
- Ginsburg Dissent: There are legitimate reasons to abort later – some indigent women will have trouble
accessing first-trimester abortions; sometimes fetal anomalies and health problems. This Act doesn’t
actually save any fetuses, it just targets a method of abortion. This acts to deprive women of making a
meaningful choice but it could have just required doctors to inform women of the risks instead.
- Note: key difference in this conservative majority – Alito had replaced O’Connor

Whole Women’s Health et al v. Hellerstedt (2016)

- After Casey, Court didn’t take another case directly implicating its abortion jurisprudence until 2016.
- Facts: Texas’ House Bill at issue – 1) a physician performing abortion must, on the date the abortion is
performed, have active admitting privileges at a hospital within 30 miles; 2) minimum standards for
abortion facility must = minimum Texas Health Code standards for ambulatory surgical centers
- HOLD: Struck down because neither provision confers medical benefits sufficient enough to justify the
burdens upon access that they impose
- Admitting—privileges requirement: no evidence that even one woman was helped
o Purpose is to help ensure that women have easy access to a hospital should complications arise
during an abortion procedure. But the new law does not advance Texas’ legitimate interest in
protecting women’s health
o This provision ends up closing 19 abortion clinics, meaning fewer doctors and longer wait times
- Surgical-center standard: doesn’t benefit patients and is unnecessary
o Complications, which are rare, would arise when women have already left the facility
o Abortions are already shown to be safe, in fact, safer than many procedures that are not
required to meet surgical standards, such as childbirth to a midwife, colonoscopy, liposuction
o Many surgical-center requirements are inappropriate in abortion context
o Reduced abortion facilities available to only 7 or 8 and would cost $1.5-$3M to comply
- Dissent: these clinics may have closed for different reasons
o Roberts in June Medical (below) does not want to compare balancing and burden tests.
o The balancing could give liberals a leg-up (looking at benefits to strike down restrictions) but
could also help conservatives (reasons to uphold) – cuts both ways

June Medical Services v. Russo (2020): Breyer writes plurality opinion in very similar case. Concurring Roberts
recognizes its super similar and that he is bound by stare decisis, even though he dissented in WWH
- “The Court accordingly considers additional factors before overruling a precedent, such as its
administrability, its fit with subsequent factual and legal developments, and the reliance interests that
the precedent has engendered”

Marriage and Family

- Loving v. Virginia (1967) – striking down Virginia’s ban on interracial marriage. Relied principally on
equal protection, but Warren also found them in violation of the Due Process Clause. Freedom to
marry is an essential personal right.
- Zablocki v. Redhail (1978) – strikes down law requiring state approval for marriage if person has child
not in his custody and isn’t paying child support. Right to marry is fundamental and can’t be denied
unless law supported by important state interests and is closely tailored

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 - Turner v. Safley (1987) – strikes down prison regulation that only allows inmates to marry if
superintendent approves it for compelling reasons, such as pregnancy or birth. State interest in
rehabilitation and security not sufficient to justify this infringement on the right to marry.
o Felon disenfranchisement: section 2 of 14th amendment – authorizing the disenfranchisement
of felons bc states don’t lose representation.. reword this
- Living Arrangements: Moore v. East Cleveland (1977) – Strikes down zoning law that limits occupancy
of a dwelling to members of a single family, defined as not including grandparents. Institution of family
is deeply rooted in nation’s history and tradition and is not limited to the nuclear family.     
o But see: Belle Terre v. Boraas (1974) – Upholds zoning law that prevents most unrelated groups
from living in a particular village.  Dissent argues that choice of household companions involves
deeply personal considerations as to the kind of intimate relationships within the home. 
 Later cases arguably undermine Belle Terre (see Lawrence v. Texas)
- Upbringing of Children: Meyer v. Nebraska – Strikes down law barring young children from being
taught a foreign language; Pierce v. Society of Sisters – Strikes down law barring children from
attending parochial schools; Troxel v. Granville (2000) – Holds that a state court decision allowing
grandparent’s visitation rights violated parent’s fundamental right to control the rearing of her child
because state court did not give special weight to the mother’s decision to forbid the grandparents
from seeing the child. 
o But see Michael H. v. Gerald D.: upholds California law that presumes a husband is the father of
his wife’s child, reasoning that out-of-wedlock fathers have not traditionally had rights with
respect to their fathers. Scalia’s plurality says this is a specific level of tradition relied on.
 How narrowly or broadly do we define the right at issue when we try to ask whether the
right is grounded in history and tradition?

Gay Marriage and Private Rights

Romer v. Evans (1996)
- For the first time, invalidated a law that discriminated against gays, relying on Equal Protection Clause.
- Colorado towns passed ordinances banning discrimination based on sexual orientation in housing,
employment, education, etc. In response to this, Colorado passed Amendment 2, which prohibited all
governmental intervention designed to protect the status of persons based on sexual orientation.
- HOLD: Law violates the EP clause of the 14th Amendment.
- Somewhat blurs line between DP and EP = we must ask how closely court is scrutinizing and if the EP is
implicated: plaintiffs must show they are being disadvantaged
- Cites Plessy dissent: Constitution “neither knows nor tolerates classes among citizens.” This
Amendment targets gays but no others and is a far-reaching change.
o Meanwhile, Colorado also enumerated traits that cannot be basis for discrimination
- This fails even RBR – it imposes a broad disability on a group and it is obviously animus/desire to harm
o Breadth of amendment is so far removed from proffered interest (i.e. Landlords or employers
have religious objections to homosexuals? Court doesn’t buy it)
- Two Fatal Flaws
o Facial denial of equal protection
 “A law declaring that in general it shall be more difficult for one group of citizens than
for all others to seek aid from the government is itself a denial of equal protection of the
laws in the most literal sense”
o No rational relationship – law wildly over- and under-inclusive

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  “it is at once too narrow and too broad. It identifies persons by a single trait and then
denies them protection across the board.”
 Why is this the only group being singled out?
- Arguments for heightened scrutiny: past discrimination, discrete and insular minority, harmful
stereotypes, characteristic unrelated to merit

Lawrence v. Texas (2003)

- At issue: Texas statute that prohibits gay sexual activity. Claims: Due Process was violated because the
right was private; EP claim – only targeted gay people, unlike the statute in Bowers v. Hardwick (which
upheld a Georgia law criminalizing sodomy because it was across-the-board applied)
- HOLD (Kennedy): Court considers Due Process claim and finds that the liberty protected by the
Constitution allows persons the right to make their own choice of private, sexual conduct
o If struck down only on EP grounds, the state could then criminalize across-the-board
- Rationale: distinguish from Bowers
o We don’t have the same “ancient roots” of legal prohibitions on homosexual conduct
o Laws prohibiting sodomy do not seem to be enforced against consenting adults in private
o Moral considerations about homosexuality do not answer the question
o MPC/emerging moral tradition reflects that liberty gives protection to adults over their sex lives
o Only four states enforce laws against homosexual conduct
- No level of scrutiny defined: relied on Strict Scrutiny cases but somewhat talks about “no legitimate
state interest” – talks about nature of the right at issue but never says is a “fundamental right”
o Why not? Maybe worried about decision viewed as a “fundamental right to engage in sodomy”
o Kennedy’s analysis often vague
- PP v. Casey reaffirms that DP liberty covers the “most intimate decisions a person can make” and
homosexual people can seek autonomy for these purposes, too
- OVERRULES BOWERS:
o Criticism of the case is substantial and continuing; five states declined to follow
o No detrimental individual or societal reliance on the holding
o Morality is not a sufficient reason for upholding the law
o Remnant of abandoned doctrine; somewhat “changed facts” – even though applied across-the-
board, the law had other special interests in probably targeting gays
- Healy sees “Two ways of analysis”
o 1) What is our conception of privacy is and is it broad enough to encompass sodomy?
 We have seen how understanding of privacy has evolved
 Kennedy doesn’t indicate a “fundamental right” nor the exact level of scrutiny
 “Statute furthers no legitimate state interest which can justify” – maybe RBR? Either
because it does not believe that what’s at issue here is a fundamental right, or it could
be that court is saying this wouldn’t even pass RBR so there is no need to define
o 2) Court engages in analysis that Justice Harlan advocated in his concurring Griswold opinion:
focus on tradition and ask whether the activity at issue is one that has traditionally be
understood as protected against gov’t interference
 Questions about how we define the right and understand its tradition
 Ups the level of generality – have we generally throughout history understood that
people have right to enter into intimate relationships of their choosing? Kennedy’s
approach. When you ask the question generally, you’re much more likely to get a

51
 positive answer. Not only what was the case 200 years ago, but we ask how that
tradition has evolved and what sort of emerging awareness there is?
- Lawrence recognizes that sex is fundamental to personhood and entitled to constitutional protection
and now laws in 13 states prohibiting private consensual homosexual activity are unconstitutional.
o Most important decision to date recognizing LGBT dignity and equality under Constitution
- Scalia Dissent: many laws are based on morality, lists “parade of horribles” comparing to prostitution
and bestiality – but those laws can be rooted in concerns of public health, exploitation

The Tradition Matrix Broad Narrow

Recent or Emerging Kennedy’s view
Ancient Scalia’s view

United States v. Windsor (2013)

- In 1996, Congress enacted Defense of Marriage Act, defining marriage as a union between one man
and one woman. Act does not forbid states from enacting same-sex marriages, but won’t provide state
benefits to residents with that status. The Act controls 1,000 federal laws addressing marital status.
Windsor did not qualify for marital exemption from federal estate tax from her deceased partner.
- HOLD (Kennedy): DOMA deprives liberty as guaranteed by the Fifth Amendment’s DP Clause
o Fifth Amendment reverse incorporates equal protection under Due Process. 14 th Amendment
Equal Protection doesn’t apply to the federal government.
- By history and tradition, regulation of marriage has been left to the states, although Congress can
make decisions that bear on marital rights.
o Congress can regulate marital rights and privileges on other grounds – which is why Kennedy
cannot base his opinion on Federalism concerns alone
 Government healthcare benefits = Commerce Clause, Spending Power
 Less complicated filing of joint taxes = Taxing Power
 Bankruptcy code’s protections = Bankruptcy Clause
- New York’s lawful endorsement of gay marriage = community’s evolving understanding of equality
- DOMA seeks to injure the very class New York seeks to protect, violating basic due process and equal
protection. Congress cannot show a bare desire to harm a politically unpopular group
- Discriminations of an unusual character require careful consideration
o Strong evidence of animus = DOMA operates to deprive same-sex couples benefits, as
evidenced by congressional findings and even the name of the Act itself.
o In practice, treats same-sex couples like a second-tier class
o DOMA touches many aspects of family life
- No level of scrutiny defined and somewhat mixed messages
o Federalism – invocation of states’ traditional role in defining marriage suggests the Court might
defer to a state ban on same-sex marriage
o No legitimate interest – but the Court’s conclusion that there is no legitimate interest
supporting the law suggest hostility to any ban on same-sex marriage
- Dissent: Congress had legitimate interests in uniformity; this undermines traditional marriage

Obergefell v. Hodges (2015)

- HOLD (Kennedy): Same-sex couples have a right to marry under the Due Process and Equal Protection
Clauses of the Fourteenth Amendment.
- Human history reveals importance of marriage – sacred to religion, essential to our dreams
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 o History is one of both continuity and change – remember that women barely had rights under
marriage years ago, we have overturned the law of coverture and strengthened marriage
- Due Process: Marriage is a fundamental right that extends to same-sex couples. Why it has been
fundamental – moving beyond the “deeply rooted” analysis and looking at “broad/evolving tradition”
o 1) right to personal choice regarding marriage is inherent in the concept of individual autonomy
 Connection b/w marriage and liberty is why we invalidated interracial marriage bans
 Decision extremely intimate, like contraception and childrearing
o 2) Right to marry is fundamental because it supports a two-person union unlike any other in its
importance to the committed individuals
 Offers hope of companionship in an otherwise lonely world
 Lawrence confirmed that freedom allows individuals to engage in intimate association
lawfully, and freedom doesn’t stop there
o 3) safeguards children and families and thus draws meaning from related rights to childrearing,
procreation, and education
 Children would suffer stigma knowing their parents are somehow lesser
o 4) marriage is keystone of our social order: Symbolic recognition and material benefits
- Equal Protection: probably an easier argument to reach – though level of scrutiny not really resolved
o We can presume if the right is fundamental  Strict Scrutiny
o Governmental interest: protecting marriage for hetero couples, but no compelling interest in
denying same sex: No evidence that heterosexual couples will then be less likely to marry
- EP & DP overlap: imposition of disability disrespects them, and EP Clause prohibits an unjustified
infringement on the fundamental right to marry. Even under RBR, we don’t see a relation
o EP Argument is harder to refute, but majority goes out of its way to create DP argument
- Dissent: States should adopt whatever they like, we are not showing judicial restraint

Right to Die and Medically Assisted Suicide

Cruzan v. Director, Missouri Dept. of Health (1990): first considered question of a constitutional right to die
- HOLD: Discontinuation of life-sustaining procedures is not constitutionally required. There is a right to
refuse treatment. Clear and convincing standard is appropriate = must show person wanted it
o state = a general interest in the right to life and to guard against potential abuses
o individual liberty = forcing medical treatment is akin to state-mandated battery (bodily
integrity), right to die with dignity, decisional autonomy
- A competent person may refuse treatment, but an incompetent individual needs the choice made by a
guardian. Court has to balance the state & individual interests.
o Here, Cruzan’s remarks were “unreliable for purposes of establishing her intent”
- Scalia Concurrence: federal courts have no business in this field

Washington v. Glucksberg (1997)

- Washington state bans assisted suicide. Issue: Is the “liberty” to die protected by DP Clause?
- HOLD (Rehnquist – Unanimous): Statute is not unconstitutional as applied to competent, terminally ill
adults wishing to hasten their deaths. Not a facial challenge.
- Question is framed specifically, which often determines how we answer
- Bans are longstanding expressions of States’ commitment to protection and preservation of human life
o Relaxation on criminalizing suicide more so speaks to unfairness of punishing families
- Substantive-due-process analysis: First: Due Process Clause protects those fundamental rights and
liberties which are objectively “deeply rooted” and implicit to “ordered liberty”
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 o Not a fundamental liberty. We’d have to overturn centuries of legal doctrine. Respondents try
to rely on Casey, but that is not so sweeping that all personal decisions are protected.
- Second: we require a “careful description” of the asserted fundamental liberty interest in substantive-
due-process cases. Is the ban rationally related?
o Yes – implicates a number of state interests (symbolic, practical interest in preserving life,
integrity of medical profession, protecting against abuse, voluntary/involuntary euthanasia)
- O’Connor/Stevens Concurrence: It’s not a categorical ban, some plaintiff out there might prevail
- Conflict in doctrine: some cases reflect broad/emerging tradition, some reflect narrow interest view
- Glucksberg test appears to be the rule going forward for enumerating new fundamental rights.
o Court came close in Obergefell but didn’t really define

Vacco v. Quill (1997) – NY did not violate Equal Protection by prohibiting assisted suicide while permitting
patients to refuse lifesaving treatment. Court applies RBR and finds rational basis for distinction
- Causation and intent distinction = key
- The prohibition of assisted suicide neither discriminated against a suspect class (such as against a racial
minority) nor violated a fundamental right. The law could be upheld so long as it met RBR
- DP and EP challenges often go hand in hand.

Equal Protection
Three Tiers of Review
1. Strict scrutiny = Classification must be narrowly tailored to compelling governmental interest
a. Suspect classifications (Race, Alienage, Origin)
b. Fundamental interests (Voting, Criminal appeals)
2. Intermediate scrutiny = Classification must be substantially related to important governmental
objectives or exceedingly persuasive justification
a. Suspect classifications (Sex, Legitimacy)
3. Rational relationship = Classification must be rationally related to a legitimate state interests (default)
a. Sexual orientation (maybe heightened, unclear), mental disability, economic regulation
b. Sometimes heightened if inappropriate ground of “animus” at work
i. Perhaps more than RBR but doesn’t necessarily mean either IS or SS
c. Okay for a law to be both overinclusive = (the law applies in some cases where the
government’s interest is not implicated) and underinclusive = (the law does not cover all cases
implicated by the government’s interest
i. But see Romer: when a law is wildly over- and under-inclusive, the asserted interest
may be a pretext for discrimination
Legitimate Governmental Interests = what a state would hope to accomplish by virtue of its police power
- Promoting public safety and health; peace and quiet
- Promoting the general welfare; Improving the economy
Illegitimate Governmental Interests
- Bare desire to hurt an unpopular political minority
- Expression of moral disapproval
- Desire to infringe freedom of religion or deny freedom of speech
- Favoring in-state business over out-of-state businesses (i.e. commerce clause cases)
Rational Basis, Generally
Railway Express Agency v. New York (1949)

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 - Facts: In NYC, no one can operate an vehicle dedicated solely to displaying ads, but businesses may
display signs if they do other things besides advertising. Government interest asserted: regulate traffic
safety/ads are distracting. Argued that this violated EP by discriminating against certain truck drivers.
- HOLD: The law is upheld under rational basis review, as long as it’s not arbitrary, the legislature could
have been responding to a rational issue of vehicle advertising.
o Rejects appellants’ equal protection argument that this creates unequal treatment because
their trucks sell space for advertisements.
o Over-inclusive (could be truck with a small ad on the side that doesn’t distract anyone) AND
under-inclusive (ad is for business, but it’s neon) – doesn’t matter – not fatal by itself under RBR
- Jackson Concurrence: the DP clause should carry a high burden. We should utilize EP claims more, bc
invalidating on EP grounds doesn’t wholesale disable government, it just broadens the targeted law.
When regulation is broadly “imposed on everyone” it is more likely to be upheld
- Notes: In the Lochner era, this could be a DP issue, but court rejects to scrutinize as such.
- Other features of RBR:
o Court allows post-hoc rationalizations (no evidence legislature actually contemplated this)
o The government can address issues one step at a time.

Other Rational Basis Review Cases

- Kotch v. Board of River Port Pilot Commissioners (1947) – upheld by a 5-4 vote Louisiana’s nepotistic
pilotage laws only granting state certificates to family members of incumbents
o Alleged rationale was just applicable to Louisiana and a unique nature… is this a “purely post
hoc rationalization?”
- Williamson v. Lee Optical Co. (1955): Legislatures can act “one step at a time” or under-inclusively
- Allegheny Pittsburgh Coal v. Webster – rare RBR case where court found no real connection between
a classification and its purposes. West Virginia tax system of uniformity resulted in gross disparities
o But see: Nordlinger v. Hahn – CA made a deliberate choice in legislature then the court doesn’t
view the restriction as arbitrary
o Might not be a very persuasive distinction
*hippie case* - insert notes
- Village of Willowbrook v. Olech – For no reason, the applicant needed to grant a greater easement.
Class of 1 person being treated differently – struck down as not even passing RBR

Race Discrimination
- Slaughterhouse Cases emphasized racial discrimination as the central concern of 14 th Am.
- Plessy v. Ferguson (1896): Upheld separate but equal – 14th Amendment was to enforce absolute
equality of the two races but not to enforce social comingling
o Laws requiring their separation in places where they are liable to be brought in contact do not
necessarily imply the inferiority of either race to other… within state legislatures’ police power”
o Legislation can’t promote social harmony; police power only used to promote public good, not
for annoyance or oppression of a particular class
o Harlan Dissent: this creates a color caste, and the law interferes with personal freedoms
Education
Pre-Brown education cases: setting the stage for striking down “separate but equal”
- Gaines v. Canada (1938) – holding that state could not simply pay for African Americans to attend law
school out of state so that they didn’t attend the school in state

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 - Sweatt v. Painter (1950) – holding that law school created for African Americans was not substantially
equal to law school in terms of number of the faculty, variety of courses, student body, scope of the
library, availability of law review and similar activities, etc.
o “Law school cannot be effective in isolation from the individuals and institutions with which the
law interacts”
- McLaurin v. Oklahoma State Regents (1950) – EP violated by requirement that African Americans sit in
separate sections of classrooms, library, and cafeteria facilities

Brown v. Board of Education

Brown 1 (1954)
- Young Black people from various states sought admission to public schools in their communities on a
nonsegregated basis. Lower courts denied relief because of Plessy: separate but equal.
- HOLD: Separate but equal is inherently unequal.
- Court considered the era of the 14th Amendment’s adoption in 1868, but it came up inconclusive
o Did writers intend to remove all legal distinctions among citizens? Did they contemplate public
education, especially at a time when many southern blacks were illiterate? We don’t know.
 Because Amendment only speaks in terms of “equal treatment of laws,” Plessy sufficed
o Instead, look to now – Black people have made great strides in art, professions.
- Education is fundamental to our society (cultural values, required for military, occupational training)
o Such an opportunity is a right to be made available on all equal terms
- Even if schools are “tangibly” equal (buildings, teachers, etc.) it deprives children of equal opportunity
o Intangible considerations: discussions, ability to study, feelings of inferiority that stunt growth
 Effect on learning: a sense of inferiority affects the motivation of a child to learn. Cites
sociology study in footnote – COUNTERARGUMENT: what if later social studies come out
and prove the opposite? Potentially shaky basis to rest opinion on. Additionally, because
of the study, it limits the context of this ruling to education
- anti-subjugation = gov’t cannot use racial classifications to subjugate one racial group to another.
- Harlan Dissent: white supremacy is real. In view of our color-blind Constitution, there is no racial caste
system. Maybe this would’ve been a more stable basis for Brown decision.
o Was Brown concerned with subjugation or the problem of race classifications at all?
Brown II (1955): what happens now?
- The decision was remanded to lower courts so that they could enforce, guided by equitable principles
- Issues with prompt compliance
o Resistance
o Practicality, logistics
o Legitimacy of the court – court didn’t want to push the envelope too hard
- HOLD: Prompt and reasonable compliance with Brown I must occur. If a municipality needs more time,
they bear the burden of establishing that fact.
o Courts retained jurisdiction during transition but after promulgation of general guidelines, court
was silent. Some integration efforts met with massive resistance (see Cooper v. Aaron)
- Aftermath: 10 years later, just 1.2% of black school children attended school with whites.
o The Civil Rights Act of 1964 sped up process by tying receipt of federal educational funds to
desegregation efforts. By 1972-73, 91% of southern schools were desegregated… but today
there is more de facto segregation in schools
o Brown later extended to other contexts (parks, water fountains, buses)
Brown and Originalism

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 - In 1868, 8 northern states permitted segregated schools, and give other northern states excluded
black children from public education entirely
- Reconstruction Congress permitted DC schools to remain segregated
- Spectators in gallery listening to senators debate the 14th Amendment were separated by race
- Sponsors of Civil Rights Act of 1866, which 14th amendment was intended to constitutionalize,
disclaimed intent to interfere with segregated education
- Plessy said establishment of segregated schools had been upheld even by courts of states where rights
of blacks had been most earnestly enforced

Interracial Cohabitation
Loving v. Virginia (1967) – provides robust discussion of why court thinks segregation violates EP
- HOLD: bans on interracial marriage cannot stand. At the very least, the law is subject to “rigid scrutiny”
- Virginia argued that EP meant applying law equally meant applying punishment equally
o Mere “equal application” of a statute is not enough to remove racial discrimination. The clear
purpose of the 14th was to eliminate all state sources of invidious race discrimination.
- Are all race discrimination statutes per se invalid? Some are more “suspect” and require strict scrutiny
o Palmore v. Sidoti (1984): overturns award of child custody based on fear of a negative reaction
toward interracial marriage. The Constitution cannot control bias and it is not enough to
remove a child from his mother’s custody. Subject to “exacting scrutiny”
o Johnson v. California – applied strict scrutiny where state policy segregated prisoners by race,
even where gang violence was the justification. It was possible segregation led to greater
hostility, and government power being at its apex in a prison is subject to strict scrutiny
 Confirms that strict scrutiny applies to all racial classifications
o Korematsu v. U.S. – upholds internment camps on grounds of national security
 *first case that articulates the strict scrutiny schedule*
 Inherently suspect but not per se invalid
 Justification: pressing public necessity & security measures under war power
 Dissent: didn’t you actually just use rational basis review? Deprivation of individual
rights was not reasonably related to an immediate public danger.

Racially Neutral Laws – Purpose and Application

- Very rare that disparate impact alone is enough to invalidate, but some racially neutral laws have an
actually racially discriminatory purpose or application
- Rare cases where disparate impact is so egregious and severe that it is enough on its own:
o Yick Wo v. Hopkins = CA prohibited starting laundromat w/o consent of a board supervisor. In
practice, Board granted permits to almost all non-Chinese applicants but denied Chinese
o Gomillion v. Lightfoot = Alabama city limits redrawn in such a way that no white residents were
excluded and almost every black citizen was disenfranchised
Washington v. Davis (1976)
- Black applicants to the DC Police Dep’t were rejected for failing a written test. The test had not been
validated to establish its reliability for actually measuring job performance.
- HOLD: Law was neutral on its face, and the vital element to show de jure segregation is also purpose
or intent to segregate. Blacks could not show that EP was violated any more than a white person could.
- Impact is not irrelevant, but the Court has never adopted a rule which invalidates official conduct that
merely has a disproportionate impact on a racial group, without evidence of discriminatory purpose.
o We must consider totality of circumstances to get to intent, including the burden

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 - Why not? Court says it’s a big problem to govern based on discriminatory impact, but doesn’t base this
in text, precedent, or original understanding. Prudential considerations:
o Well, if we were to actually strike down on discriminatory impact, we’d have to strike down
tons of laws (tax, etc.) and question our institutions
- Stevens Concurrence: Line between intent and impact is not that clear.
- COUNTERARGUMENT: Problems with requiring intent:
o Problems of proof – it’s often difficult to prove discriminatory intent (verbal statements?)
o Unconscious prejudice – much discrimination is unconscious and given the long history of
discrimination against African Americans, here can be a presumption that many laws with a
discriminatory impact were motivated by irrational, unconscious, systemic racial prejudice
o Repeat laws – relying on discriminatory purpose means that if a law is found to be motivated
by a discriminatory purpose, legislature can simply pass the law again with a different purpose
Arlington Heights Analysis (1977)
- Court must undertake a “sensitive inquiry into such circumstantial and direct evidence of intent as may
be available,” including:
o Discriminatory impact
o Historical background
o Specific sequence of events leading up to the challenged decision
o Departures from normal procedural sequence
o Substantive departures
o Administrative or legislative history of the decision
Burden Shifting Scheme – after a sensitive inquiry into whatever circumstantial evidence exists
- Plaintiff can establish a prima facie case by showing that a discriminatory purpose has been a
motivating factor in the decision
- Burden shifts to the government to show that the challenged action would have been taken anyway
- If the government can show that it would have taken the same action even in the absence of the
discriminatory motive, the plaintiff loses
- If the government can’t meet this burden, apply the applicable level of scrutiny

Affirmative Action and Race Preferences

- Is a level of scrutiny lower than “strict” appropriate when the racial objective is “benign”?
Regents of Univ. of CA v. Bakke (1978)
- UC Davis reserved 16/100 spots for minorities. White applicant was rejected even though students in
reserved minority spots had much lower scores than him.
- HOLD (Plurality): UC’s system was unconstitutional, but the school can consider race in admissions
process as a factor in creating a genuinely, legitimately diverse program
o These are narrowest grounds of holding
- UC Davis tries to argue that white males are not a “discrete & insular minority” but Court rejects
o The Amendment protects against racial discrimination in universal terms, we cannot accept
“two-class” theory now.
- Preferential programs may only reinforce harmful stereotypes
- 3 of Admissions Programs Goals are rejected: 1) reducing deficit of minorities? Preferring members for
no other reason than their race is facial discrimination 2) countering societal discrimination – cannot
point generally to society’s ills, UC Davis would need to personally show they discriminated (they
wouldn’t do this, bad press), and 3) increasing physicians in underserved communities – no evidence
o Court focuses on 4th Goal: Obtaining educational benefits from ethnically diverse student body
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 o Diversity is constitutionally permissible – robust discussion of ideas relates to 1 st Amendment
o However, is reserving seats the only effective means of serving the interest? No
- Harvard model: race is one criterium of many
- Dissent/Partial Concurrence argues for intermediate scrutiny with more nuance: whites do not have
“traditional indicia of suspectness,” but we also don’t want to border on racial separatism and stigma
o Bakke wasn’t marked with same badge of inferiority. UC Davis’ system could’ve been upheld.
- Arguments against strict scrutiny
o Political majority – whites are a political majority and do not need special protection from
courts. See Carolene Products FN 4
o Intent – 14th Amendment designed to protect former slaves, so it only has force when the
government attempts to oppress African Americans
o No history of discrimination against whites
- Arguments for strict scrutiny
o History – even though 14th Amendment originally intended to protect only African Americans, it
has been extended to cover other groups
o Line-drawing – too difficult to determine which ethnic groups are entitled to different
treatment since even whites are comprised of several ethnic groups
o Burden on People – it’s unfair to make people today bear the burden of redressing grievances
not of their making
o Reinforces stereotypes – even racial classifications intended to benefit racial minorities can
harm them by perpetuating stereotypes

Grutter v. Bollinger (2003)

- Harvard model: UMich law school receives 3,500 applications for 300 spots. School looks for students
with “strong likelihood of success.” Race is a factor, but policy does not define diversity solely by race
- HOLD: Endorses Powell’s Bakke view that student body diversity is a compelling state interest that can
justify the use of race in university admissions, and here the system is narrowly tailored to the interest.
o Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative, just
a good faith consideration of workable race-neutral alternatives
 Considered lottery system, decreasing weight of GPA/LSAT, but that would sacrifice
academic integrity. Also, this plan does not unduly burden white people.
- Not every decision influenced by race is equally objectionable, and strict scrutiny is designed to provide
a framework for carefully examining the importance and the sincerity of the reasons advanced by the
governmental decisionmaker for the use of race in that particular context
- Interest asserted: cross-racial understanding, diverse professional world, class discussion
o Many amicus briefs played a role (retired military officers, Fortune 500 companies)
- No outright racial balancing/quota; simply race-conscious using race as a “plus” factor. Says they look
for a “critical mass” defined by reference to the educational benefits of diversity
- O’Connor hopes that “25 years from now” this won’t be an issue. Why did she even say this?
- Dissent: racial preferences in educational institutions is impermissible. Suspicious of “critical mass”

Gratz v. Bollinger (2003) (decided same day as Grutter)

- UMich undergrad automatically awarded 20 points to racial minorities. 100 points granted admission.
- HOLD: Unconstitutional because the policy does not provide individualized consideration.
- Some “soft” variables get 20 points as well but points available for other “diversity contributions” such
as leadership and service are capped at much lower levels.

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 - Souter Dissent: UMich is being frank in their ways, but this is just as race conscious as Grutter’s scheme
- But see: Courts have upheld percentage set-aside plans
o perhaps for remedial justifications, not diversity?

Fisher v. University of Texas

Fisher I (2013): Court declined to strike down the use of race preferences in higher education admissions but
remanded the case for strict scrutiny analysis of UT’s plan.
Fisher II (2016): UT’s program is a combination of percentage plan and a holistic review, reserving up to 75% of
places in the Freshman Class to students in top 10% of high school class (recognizing de facto pervasive
segregation in TX schools). Remaining 25% admitted based on personal achievement index, race is a sub-factor
- Fisher accepts the top 10% plan but challenges the remaining-25% plan
- Here, the university articulated precise and concrete goals and identified educational values. The
school also attempted alternatives – better outreach, increased budget – didn’t make a difference
- Fisher shows that court was willing to somewhat defer to university’s ideas of diversity needed
o Affirmed Grutter and Gratz and use of strict scrutiny

Race in K-12 Education and Voting Districts

Parents Involved in Community Schools v. Seattle School District (2007)
- Seattle operated 10 public high school and allowed 9th graders to choose. If a school was
oversubscribed, “tiebreakers” were employed – racial composition of school being one. Jefferson
County Kentucky, once segregated then desegregated, now requires all nonmagnet schools to maintain
black enrollment between 15-50%.
- HOLD: These racial classifications do not survive strict scrutiny & no race-neutral alts considered
- We have recognized two compelling interests: 1) remedying the effects of past intentional
discrimination and 2) interest in diversity in higher education
o 1) Seattle was never segregated / Jefferson was desegregated and has since achieved “unitary
status” so this interest is not relevant.
o 2) These cases are not governed by Grutter, nor is there any individualized review
- Seattle asserts that it is trying to combat racially concentrated housing patterns and Jefferson County
says it wants to educate students in “racially integrated environment”
o The methods are not narrowly tailored, they are only to direct racial balance
o No evidence offered of amount of diversity necessary to attain educational benefits
- Thomas Concurrence: no legitimate interest offered. Racial imbalance is not unconstitutional in itself
- Kennedy Concurrence: Constitution doesn’t mandate that we have to accept status quo of racial
isolation. Schools should be able to consider racial makeup of schools, but suggests race-neutral
alternative (strategic school locations, allocation of resources, recruiting students and faculty)
- Dissent: These interests were legit: had 1) historical, remedial element, 2) educational element, and 3)
democratic element reflecting our pluralistic society. We should’ve given some deference to the plan.

Shaw v. Reno (1993)

- NC general assembly enacted a reapportionment plan that included two majority-black districts
- HOLD: Strict scrutiny is appropriate. Here, the map on its face shows that race was the predominant
factor. There is a state interest in including race (must comply with VRA anyway) but anything super-
segregated that bears an “uncomfortable resemblance to political apartheid” is inappropriate
o Voting Rights Act:

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  Section 2 – prohibits election systems and districts that have a discriminatory impact on
racial minorities
 Section 5 – Says the Justice Department must approve any change in election systems in
states where there has been a history of race discrimination in voting
 Before Shelby County.
- EP is implicated when race is predominant factor motivating legislature, such that it subordinates
traditional districting principles: compactness, contiguity, respect for political subdivisions
- What is the harm of racial gerrymandering?
o Reinforces stereotypes that members of the same racial group – regardless of their age,
education, economic status, or the community in which they live – think alike, share the same
political interests, and will prefer the same candidates at the polls
o Exacerbates the problem of racial bloc voting that majority-minority districting is sometimes
said to counteract
o Sends a message to elected officials that they only represent the majority race in their district
- Court declines to address whether the VRA’s minority districting principle is compelling.

Race Preferences in Employment and Contracting

Wygant v. Jackson Board of Education (1986): under strict scrutiny, court struck down system giving minorities
preference in teacher lay-offs
- Stated purpose of “minority role models” for students was not compelling, and no prior discrimination
by Board was shown. Without a stopping point, Board could make discriminatory layoffs without any
legitimate remedial purpose.
- Burden of laying off particular people to achieve diversity was too high
Richmond v. Croson – strikes down req that prime contractors on city projects to subcontract w/ minorities
- Remedial justifications – court is not receptive here
o Can’t remedy general societal discrimination – court reaffirms that gov’t does not have a
compelling interest in remedying societal discrimination
o Can only remedy past discrimination in a particular industry if gov’t has been a passive
participant in that discrimination (doesn’t make sense in construction field)
- Proving past discrimination: Not enough evidence
o Statistical disparity – Richmond is 50% black and only .67% of the city’s prime construction
contracts has been awarded to minority business from 1978 to 1983
o Associations – no minority businesses were members of local contractor’s associations
o Councilperson Marsh’s statement that “race discrimination and exclusion on the basis of race
is widespread” in the construction industry
o Congressional findings on discrimination in the construction industry
- Not narrowly tailored because 1) city did not consider race-neutral alternatives, 2) the 30% figure is
too high for remedial justifications, and 3) the program applies to all races
- When gov’t adopts these programs, it must establish a solid evidentiary basis for its conclusion of past
discrimination and it needs to think carefully about how program works, what percentages are set at,
who it applies to, and it needs to show that it tried some race-neutral mechanisms
Adarand Constructors, Inc. v. Pena (1995)
- Federal gov’t had program incentivizing general contractors on gov’t projects to hire subcontractors
controlled by “socioeconomically disadvantaged individuals” presumed to include racial minorities
- HOLD: Federal racial classifications are subject to strict scrutiny.

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 - Rejects Stevens’s dissent that Court should treat programs differently according to whether their racial
discrimination is “benign” or “invidious” (equating “no trespassing” with welcome mat)
o all racial classifications by the government have detrimental effects on minorities.
o In a FN, overrules Metro Broadcasting which held intermediate scrutiny for racial classifications
- Will not be “strict in theory but fatal in fact” – doesn’t immediately invalidate…needs narrow tailoring
- Why might petitioners have thought that the level of scrutiny could be different at the federal level?
o Section 5 enforcement – Congress should play a role in remedying past discrimination
o Intent – 14th Am. enacted out of concern for discrimination at the state level
 14th Amendment represents a deep mistrust of the willingness/ability of states to
actually treat people equally (Civil War, southern states)
o Factions – Less likely that prejudices against a minority will be reflected in legislation enacted
by a national legislature. But see Korematsu – also the court even did uphold w/ strict scrutiny
o More Competent – Congress more competent to make findings of past discrimination than a
body like the regents of UC Davis
o Majority rejects these arguments and holds strict scrutiny abound, regardless of level

Sex Discrimination
- Bradwell v. State confirmed that 14th Amendment doesn’t apply to sex discrimination
- Only the 19th amendment addresses any aspect of women’s equality, providing that citizens should not
be denied right to vote “on account of sex” – narrowly construed only to formal franchise
- Equal Rights Amendment debated since 1923; came to Congress in 1971-72 but failed
- Reed v. Reed: SCOTUS for the first time invalidated a gender classification, but only under RBR
- Frontiero v. Richardson (1973): Brennan (plurality) proposes strict scrutiny standard. “Since sex, like
race and national origin, is an immutable characteristic determined solely by birth, the imposition of
special disabilities would seem to violate the basic concept of our system that legal burdens should
bear some relationship to individual responsibility.”
Craig v. Boren (1976) – seminal case applying intermediate scrutiny
- Oklahoma statute prohibited selling 3.2% beer to males under 21 and females under 18. Issue was
whether the denial to men aged 18-20 constitute EP violation
- Vendor is a necessary party in the vending of the beer to young men – standing issue
- HOLD: Discrimination on basis of sex required “important” ends and “substantially related” means, and
here, the difference between male and females did not warrant age differential in beer purchasing
- In Reed and Frontiero, we invalidated “archaic and overbroad” generalizations of women
o Loose-fitting characterizations are incapable of supporting state statutory schemes
- We accept government’s goal of traffic safety, but the gender-based distinction here doesn’t closely
serve that objective. Statistical evidence was unpersuasive
- Arguments for heightened scrutiny
o Traditional power imbalance – women have had less power and politically underrepresented
o Immutable and visible characteristic – sex-based classifications are unrelated to individual
responsibility
o No relation to merit – sex characteristics frequently bear no relation to the ability to perform or
contribute to society
o Stereotypes – classifications based upon sex are likely to be based upon inaccurate
generalizations and stereotypes. Even something “complimentary” can be patronizing
- Arguments against strict scrutiny
o Not a minority – women are a majority of the population
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 o Real differences – there are some real biological differences between men and women
o Original intent – 14th amendment was written in response to the Civil War and the lack of
protection for former slaves in the south
o No comparison to African Americans – History of discrimination against women different than
against African Americans
- Dissent: men challenging gender-based statute should be RBR, legislature had reasoning

Mississippi University for Women v. Hogan (1982) – invalidated Nursing School’s single-sex admission policy
- If objective has to do with “protecting” one of the sexes, it is illegitimate

United States v. Virginia (1996)

- VMI is the sole single-sex higher ed school in VA and its mission is to produce “citizen-soldiers” of men.
Details intense goals and delivers top-notch education, but not inherently unsuitable to Americans.
- In 1990, a female sued under EP and Court of Appeals suggested options to remedy discrimination.
VMI established parallel VWIL – same mission, but different academics and financial resources.
- HOLD: Virginia has shown no “exceedingly persuasive justification” for excluding women from VMI and
the remedy of the VWIL does not cure the constitutional violation.
- Government’s interests:
o important educational benefits flowing from diversity
 Virginia has not shown that this was ever contemplated in VMI’s history
 Internal study that suggested VMI stay all-male had nothing to do w/ diversity
 Absence of any all-female schools undermines the argument that Virginia is pursuing a
policy of educational diversity
o Adversative Approach – unique, rigorous method of character development
 Nothing to prove VMI would be “destroyed” by women’s admission
- Remedial Aspect – must closely fit the constitutional violation.
o VWIL fails – it is a “pale shadow” of VMI; no same sense of accomplishment or mental stress
 Deemphasizes military education, cooperative method of education that reinforces self-
esteem not like the adversative method, largely ceremonial, military style residence
- Rehnquist Concurrence: Agreed, but VMI should be allowed to reconsider its policy
- Scalia Dissent: This is more like least-restrictive means; Court shut down prideful institution
- This is both under- and over-inclusive, which should be okay under intermediate scrutiny, but Court
strikes it down anyway.
- Consider: Whether there are real differences between men and women that could justify sex-based
classifications, or whether all sex-based classifications are basically just grounded in overbroad
generalizations about the interests and capacities of men and women (pregnancy, read on)

Sex-Based Classifications
- Gender-specific statutory rape laws: Michael M. v. Superior Court (1981): Court upheld law that
punished the male participant in sex when female is under 18, but not the female
o Meets Intermediate Scrutiny because prevention of teenage pregnancy is a legitimate purpose
and males did not have same deterrents as women (pregnancy). Also, if made criminal for
females, concern that violations will go underreported
o Reasonable reflection that consequences of sex and pregnancy fall more heavily on females

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 -Citizenship and Parenting: Nguyen v. INS (2001) – upholds law treating children of one citizen/one
non-citizen parent differently re: whether citizen parent is mother or father. Paternity not as obvious;
it’s upheld that if father is the citizen and child is born outside the U.S., child must establish paternity
BUT SEE
- Caban v. Mohammad (1979) – Strikes down NY law granting mother & not father right to block
adoption of child born out-of-wedlock. Law based on overbroad generalizations about maternity.
- Sessions v. Morales-Santana (2017) – Strikes down federal law that allows unwed U.S. citizen mother
to transmit citizenship to child born abroad if she lived in U.S. continuously for one year before child’s
birth but requires ten years for men. Law based on stereotype that fathers won’t have contact with
their children born out-of-wedlock.
- Pregnancy – not a suspect classification?
o Geduldig v. Aiello (1974) – Court upholds California disability insurance system that does not
cover the “disability that accompanies normal pregnancy and childbirth.” Says classification is
not based on gender as such and so applies rational basis review. “The California insurance
program does not exclude anyone from benefit eligibility because of gender but merely
removes one physical condition – pregnancy – from the list of compensable disabilities.”
- Exclusion of women from the military draft: Rostker v. Goldberg (1981): Court upheld Military
Selective Service Act requiring male draft registration and not females.
o We afford great deference over national defense and military affairs. Women have combat
restrictions on them so there might have been good reason.
o Dissent: not substantially related to governmental interest in maintaining an effective defense
(However: Congress has since repealed the statutory bar to women’s combat service)

Sex-Based Purpose & Effect

- Personnel Administrator of Massachusetts v. Feeney (1979): court rejected sex discrimination
challenge to a Massachusetts law granting “absolute lifetime” preference to veterans for state civil
service positions, even though preference operates overwhelmingly to advantage males
o Classification itself is not based on gender, but does it reflect discrimination?
o Veteran status is not uniquely male, and state didn’t act to discriminate women

Sex-Based Preferences: Affirmative Action for Women

- Orr v. Orr (1979): Court struck down laws that authorized Alabama courts to impose alimony
obligations on husbands but not wives.
o “benign” justification – the means had not been satisfied. Even if sex were a reliable proxy for
need, and even if marriage did not discriminate against women, they are not enough. It would
cost State nothing to treat men/women equally here.
- Weinberger v. Wiesenfeld (1975): invalidated a Social Security provision applicable when a covered
wage earner dies. Court sustained widower’s challenge, finding an unjustifiable discrimination against
covered wage earners by affording them less protection for their survivors than that provided for
survivors of male wage earners
- Califano v. Webster (1977): sustained as a valid gender preference the SS Act’s formula for computing
old age benefits. Discernible purpose was the “permissible” one of redressing our society’s long
disparate treatment of women.

SEX DISCRIMINATION: SUMMARIZED

- Gender classifications based on role stereotypes generally won’t be allowed.

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 - Classifications based on past discrimination and differences in opportunity generally won’t be allowed.
But see Social Security cases.
- Classifications can be based on biological differences.
- Also, laws discriminating against illegitimate children get intermediate scrutiny (largely irrelevant)

Alienage
- State laws are subject to strict scrutiny, but federal laws only are subject to rational basis review
o Federal gov’t gets wider latitude because of “immigration” interest
- Is Alienage a suspect classification? Not an unalterable trait. They are legitimately excluded from
voting. “political powerlessness’ rationale (Carolene FN 4)
- Rational basis review applies when:
o If a state treats aliens present unlawfully differently from either citizens or lawful aliens, the
Court will not apply heightened scrutiny. Rationale: they have broken the law.
o Or when aliens are excluded from “state functions bound up with the operation of the State as
a governmental entity.” This includes government jobs that involve the formulation of policy or
the exercise of significant discretion, such as police officers or teachers, but not notary public.
Strict Scrutiny of state alienage classifications
- Graham v. Richardson (1971): States could not deny welfare benefits to noncitizens
o Aliens are a prime example of “discrete and insular minority”
o also – the area of federal-state relations – noting that Congress hasn’t discriminated and thus,
state laws cannot restrict eligibility of aliens for welfare benefits merely because of their
alienage conflict with overriding national policies
- Sugarman v. Dougall (1973): statute providing that only American citizens might hold permanent
positions in competitive civil service jobs was found to have “little, if any, relationship” in the interest
of having an undividedly loyal employee.
o However, dicta: Blackmun thought greater deference to exclusion of noncitizens from “public
policy functions that go to the heart of government”
- Dougall Dicta
o Foley v. Connelie (1978): New York could bar employment of aliens as state troopers. Historic
values of citizenship. Our scrutiny would not be so demanding where we deal with matters
firmly within a State’s constitutional prerogatives
 Police officers exercise discretionary powers, doesn’t matter w/ notary publics because
their duties are clerical
Federal
- Hampton v. Mow Sun Wong (1976): invalidated regulation barring resident aliens from employment in
the federal civil service because the national interests offered were not 1) properly of CSC’s concern or
b) had not been fully evaluated. Essential procedures had not been followed (narrow reasoning)
o *sometimes it’s not about the standard of scrutiny, it’s how it’s applied…*

Mental Disability (Non-protected status)

Cleburne v. Cleburne Living Center, Inc. (1985): Rejected heightened scrutiny in a case involving exclusion of a
group home for the mentally disabled, yet invalidated law under deferential rationality review
- Texas city denied a special use permit for the operation of a group home for the mentally disabled,
acting pursuant to municipal zoning ordinance
- HOLD: Court applies rational basis with a “bite” and nonetheless invalidates governmental interest
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 - Court finds heightened scrutiny is not appropriate and says governmental bodies must have some
flexibility and freedom from judicial oversight in crafting legislation to protect mentally disabled
o Class is also large and amorphous and difficult to define
- However, the record here does not reveal any rational basis for believing the home would threaten any
of the city’s legitimate interests
o Negative attitudes or fears of harassment are not permissible
o Flood plain possibility doesn’t make sense
o Legal responsibility for any actions mentally disabled people might take – why doesn’t this
extend to frat houses?
o Size of home/types of occupants – no restrictions exist for other buildings in town though
- Arguments for heightened scrutiny re: mentally disabled
o Immutable trait, Past discrimination, Discrete and insular minority, Stereotypes
- Court’s arguments against heightened scrutiny re: mentally disabled
o Relevance of the trait – mental disability is frequently relevant to the achievement of legitimate
state objectives
o Lack of prejudice – not enough prejudice against the mentally disabled to justify a presumption
that any classification on the basis of retardation is the result of antipathy.
o Political power – legislative
o Slippery slope: Court seems concerned that if we apply heightened scrutiny, that it will have to
apply heightened scrutiny to a ton of different classifications (wealth, age, physical disability)

Fundamental “Interests”: right to vote and access to the judicial process

- We’ve talked about multiple buckets of fundamental rights: 1) rights under P&I of Art. IV (out of state
discrimination, right to earn a living). 2) fundamental rights under the P&I clause of 14 th amendment
(come with being a U.S. Citizen, differentiated from P&I art. IV) 3.) due process clause (right to privacy)
- This is a 4th bucket of fundamental rights – sometimes we refer to as “fundamental interests”
Harper v. Virginia State Board of Elections (1966)
- Challenge to Virginia’s annual $1.50 poll tax as a precondition to voting.
- HOLD: voting in state elections is fundamental for EP purposes, even in absence of a textual right
- Reasoning: Once franchise of voting is granted to the electorate, EP inconsistencies cannot occur
- Voter qualifications have no relation to wealth. Voting is a fundamental political right, because it is
preservative of all other rights. Any alleged infringement must be “carefully scrutinized”
- Dissent: poll tax was a rational state interest to collect revenue for state’s welfare. People who can pay
the wealth tax are more responsible and educated and care about outcome of fairs. Harlan worries
that the Court is reading a political doctrine into the Constitution.
Kramer v. Union Free School District No. 15 (1969)
- In some NY school districts, residents may only vote if they own/lease taxable real property within the
district or if they have children. Law was challenged by a man living with his parents.
- HOLD: Any discrimination in voting undermines the legitimacy of representative government, so this
law is subject to strict scrutiny – and it does not survive. It leaves people out.
o Some people could be planning to own property, planning to have kids, could be a teacher
renting in the district – not a perfect fit, as it is underinclusive and overinclusive.
- Cannot deny some citizens any effective voice in the governmental affairs that affect their lives
- Dissent: reasonable state interests of limiting political franchise to those “primarily interested in
elections” so rational relation was appropriate

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Richardson v. Ramirez – upholds denial of voting franchise to felons, even if they have completed their
sentence. Cites 14th Amendment, sec. 2 which exempts states from reduction of representation from denial of
vote for participation in rebellion or other crime (but see: Florida situation in 2018-now)
Voter ID laws – In Crawford v. Marion County, plurality declines to apply strict scrutiny and instead applies a
balancing test: State’s interest in preventing voter fraud outweighs the burden imposed on voters to obtain an
ID or case a provisional ballot, even though this might be burdensome on voters unable to drive.
- Leaves open possibility of as-applied challenge where the burden is more significant
- Court also declined to view evidence that this burdened disabled and elderly and it was a partisan bill

A right to vote?
- 14th Amendment – if a state denies the right to vote to men under 21, its representation in Congress
will be reduced proportionately
- 15th amendment – right to vote can’t be denied on the basis of race
o Also, a lot of Chinese Americans in the country at that time – this amendment extended from
former slaves and other racial groups
th
- 19 Amendment – Right to vote can’t be denied on the basis of sex
- 24th Amendment – the right to vote in federal elections cannot be conditioned on payment of a poll tax
o Doesn’t apply in Harper – state elections
th
- 26 amendment – right to vote for those over 18 cannot be denied on account of age

Vote Dilution: Reapportionment and Gerrymandering

- Before 1962, legislative districting controversies were thought to be nonjusticiable

MORRISON
NEBBIA p 42

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