Outline for Constitutional Law I

I. Judicial Power
A. Origins and Theory of Judicial Review Marbury v. Madison (1803; Marshall interpreted the Judiciary Act to provide for writs of mandamus to issue originally from USSC, but Marshall said this violated Article III, which provided that only certain types of cases were subject to the Court’s original jurisdiction): Court has power to review federal statutes and executive actions. 5 major points: presuppositions, law and politics, frame of government v. law, theories of interpretation, and supreme court as ultimate authority. 1. Origin and nature of constitutions People have original right to establish government (see Declaration). This right is based in a fundamental, universal law (of God/nature). (Marshall presupposes a theory of government based upon the law of nature/God which gave the people certain rights.) The original will organizes the government (see Declaration). (The original right to form a government comes from God. People form government to protect preexisting rights from God. The people’s prudential/political judgment as to form of government must not contradict LON.) (The right comes from God to the people; the people then delegate authority to 3 branches of government, which (Congress) then expresses its will in statutes. The Congress can’t exercise pure will, but must exercise its will in accordance with the will expressed in the Constitution, which means that it is ultimately bound by the limitations of the law of nature/God.) Constitution: frame of government and partial listing of unalienable rights. Different methods of interpretation for “law” and “frame of government” provisions in Constitution. Court must apply Constitution rather than conflicting statute. (This argument based on the nature of a constitution rather than on a text within the Constitution.) Marshall doesn’t argue original and appellate jurisdiction based on general principles of law, but as framework of law. Marshall says it is useless to describe what is original and what is appellate if Congress can change it all. (He basis this argument on the text of the Constitution.) 2. General Principles of Law / General Common Law (Erie made a break with Swift v. Tyson; law no longer viewed as overriding general natural law. Law was no longer “reason,” but “will” (contra Aquinas). Justice Frankfurter (in York): “Erie is noting more than a different way of looking at the law” Marshall (Marbury) and Story (Swift): recognize general principles of law re: original right to establish constitutions and general statements of inalienable rights, necessity of providing remedies for legal wrongs, standards of conduct for government officers, and obligations of individuals who engage in commercial transactions. Both treated Congressional acts and general principles of law as applicable in federal courts.


Where there is a legal right, there is a legal remedy (Blackstone). Remedy for wrong is of the essence of civil liberty—Declaration of Independence, which cites LON (Blackstone would also cite LON). 3. Nature and essence of judicial power Essence of judicial duty is to determine what the law is and apply it to a particular case. (This is not defined in Constitution; Marshall presupposes nature and essence of judicial power, instead of looking to original intent, text, social conscience, or utility.) (Backward looking: judicial decision looking back to what the law and facts are; atonement. Forward looking: political decision making or formulating a law, prospectively; providence. Declaration of Independence has both a legal/judicial and a political/prudential element.) Distinction between law and politics important here: Court can decide on individuals’ rights (e.g., deliver the commission once signed and sealed), but Court cannot decide political questions (left to executive discretion). Marshall is saying an issue is not political/discretionary (as opposed to legal) just because it involves the president; even president is under law. (1) Acts of Congress and (2) general principles of law limit president’s discretion. Cooper v. Aaron (1958): Federal judiciary is supreme in the exposition of the law of the Constitution. The Court’s interpretation of the 14th Amendment in Brown is the supreme law of the land. (Takes Marshall’s quote out of context and misapplies it.) B. Power to Review State Court Judgments Martin v. Hunter’s Lessee (1816): Court has power to review decisions of states’ highest courts of appeal on issues of federal law. (Marbury dealt with LON issues—nature of constitutions and judicial power; Martin dealt with frame of government issues—allocation of judicial powers between federal and state courts. Thus, the means of interpretation were different in each case.) US Sup Ct has power over all cases arising under federal law (textual argument; also appealed to supremacy clause). Story noted historical view that US Sup Ct had appellate power over state courts that were to decide cases arising under federal law. (Story didn’t fashion rule of judicial review based on his own policy judgment that such a doctrine would be beneficial/necessary. But he did consider framers’ policy rationales in order to ascertain their intent, so that he could properly interpret the text that deals with the frame of government.) Pre-Erie, it seems logical that if federal courts (diversity) could rule based on general principles of law, state courts could rule based on general principles of law that were contrary to federal precedent.


If “judicial power” is vested, this means that the power to rule based on general principles of law is granted. “Judicial power of the United States” merely means federal courts have power to interpret issues that are exclusively matters of positive federal law. Article III speaks of both “judicial power” and “judicial power of US.” Federal issue: federal courts exercise judicial power of US (Art. III); state courts have duty to apply federal law (Art. VI). State issue (diversity): federal courts have duty to apply state law (after Erie, no judicial power to use general principles of law, but only duty to apply state law); state courts have state judicial power. Under international law, sovereignty consists of four things: land, people, government, and ability to engage in international relations. In US, the “sovereign” is the federal government together with all 50 state governments. (States can’t have international relations, and the Fed doesn’t have the full powers of a government, but only enumerated powers). C. Adequate and Independent State Grounds Doctrine Michigan v. Long (1983): If a state is relying on a provision of a state constitution (or state law) in its decision, then it must say so (make it clear) in its opinion. Bush v. Gore (2000): Plurality: Court does not have to defer to FL Sup Ct’s interpretation of FL law, since this is a presidential election that must be done in the manner directed by the state legislature (Constitutional requirement). D. Utility of Judicial Review E. Methods of Constitutional Interpretation (1) Interpretivists and Non-Interpretivists Calder v. Bull (1798; debate between these 2 views) Applying general principles of LON is one form of non-interpretivism. (2) Textual Method If you can solve something with simply a textual argument, then do it. However, we have to go outside the actual text sometimes, since the Constitution doesn’t always define its own terms. (3) Historical Argument Originalism: either original intent or original meaning (easier to determine than original intent). “Vectors” of history: history is dynamic, not static (originalism); meaning of text may expand/change/modify over time with changing traditions. (4) Structural Arguments


These arguments claim a particular principle or practical result is implicit in the structures of government and the relationships created by Constitution among citizens and governments. (5) Doctrinal Arguments (stare decisis) (6) Prudential Arguments (important today) (7) Cultural Arguments Rooted in widely shared cultural norms, such as moral concepts of justice, theories of human autonomy, and cultural assumptions about fairness. These arguments are persuasive when used in conjunction with other forms of Constitutional arguments (but not much by themselves). F. Tiered Review (1) Minimal scrutiny (rational basis): challenger has burden to prove no rational relation to legitimate government end. (2) Intermediate scrutiny: defender has burden to prove the actual purpose (end) of the statute/action is important and that the statute/action is substantially related to the accomplishment of that actual purpose. (3) Strict scrutiny: defender has burden to prove the law or executive act is necessary to accomplish a compelling government objective (end). Common to all 3: look at nexus between different types of government ends and the means used to accomplish them. End must always be constitutional (legitimate); sometimes it must be important or even compelling. Thomas gets another position out of McCulloch: statute is plainly adapted to achieve government end.

II. Doctrines Limiting the Scope of Judicial Review
A. Direct Political Controls (1) Amendment Unlikely process Something (amendment) against LON cannot be Constitutional. (2) Appointment Not always predictable; may be slow process of changing Court (3) Impeachment B. Congressional Power to Control the Jurisdiction of the Federal Courts Under Article III, Congress may curtail jurisdiction of inferior federal courts. Ex Parte McCardle (1869):


Court has appellate jurisdiction that vests upon establishment of the Court. However, when Congress “grants” jurisdiction in limited circumstances, it is impliedly excepting “nongranted” areas of appellate jurisdiction. (Just because the 1867 act was repealed, it didn’t mean USSC couldn’t hear habeas cases; the old process was still in effect—i.e., habeas corpus aided by certiorari.) 3 ways to except appellate jurisdiction: (1) grant a, b, and c, which impliedly excludes d; (2) except d; or (3) except by repeal (grant d, then repeal the grant of d, as in McCardle) Note Story’s position (Dean thinks probably right): judicial power of US given in Constitution has to be vested in some federal court at some level (Dean thinks USSC). US v. Klein (1872): If Congress is really simply prescribing a rule for the decision of a cause in a particular way, this is not an exercise of its power to make exceptions and prescribe regulations to the appellate power. (Congress may change the substantive law the courts must enforce, but it may not direct the courts how to decide (rule of decision). Court has held in one case that Congress may not retroactively command federal courts to reopen final judgments.) C. Justiciability: The Proper Role of Federal Courts 1. Advisory Opinions Court cannot give President legal advice. Article II, section 2, clause 1: President may require written opinion of principal officer of each executive department. 2. Standing (1) Article III requirements for standing (“case and controversy”) (2) Prudential limitations on standing. (3) 3 elements: (a) Injury (i) Concrete (includes aesthetic, physical, pocketbook, deprivation of clear right) (ii) Particularized (personal, non-general), and (iii) Actual/imminent (immediate) How you define the injury has significant effect on whether you can meet causation and redressability. Is injury psychic?—can be redressed simply by government doing its job. (b) Causation Links the unlawful act (usually of the government) and the injury. It may look to the future, not just the past.


Here the plaintiffs merely said they were planning to go in the future. merely that relief will substantially solve the problem. the question is: What is Constitutionally required by “case or controversy” and what are the prudential add-ons to this requirement? Congress/Court can change prudential add-ons. Court held that plaintiffs had no standing to challenge government’s giving away property to Christian college. (If government would have been giving away money. Valley Forge Christian College (1982): Harm must be unique to the plaintiff or group of plaintiffs.(c) Redressability Will granting relief really solve the problem (assuage the injury)? Complete solving not required (future is uncertain). Article III Constitutional Minimum (Mass. not suffered by the people as a whole. Redressability not met here: neither a consultation nor US ceasing to fund the project in Egypt would necessarily solve the problem. but Congress could alter/diminish the other elements of standing. Procedural right created by Congress will apply only to states.) Lujan v. v. harm must be individualized. Thus. who says there must be concreteness. but plaintiffs must demonstrate a past or present aesthetic injury. but not Constitutional requirements. and causation and redressability) Contrast Kennedy. Defenders of Wildlife (1992): Aesthetic injury is justiciable. causation and redressability are modified for states (thus implying they are merely prudential requirements). Causation and redressability: strongly reduced requirements—there is a chance that some good might be done. Massachusetts v. Why? Go figure. not individuals. Scalia seems to say that all 3 elements of standing are Constitutionally required (injury. not generalized. EPA) (States as plaintiffs) Injury • Concrete • Particular (loose notion) • Immediate Causation: minimal link between wrong and injury Redressability: likely to improve the situation a bit Prudential Additions (Lujan) (Private individuals) Injury Strong notion of particularity Causation: strong link Redressability: highly likely to correct Further Additions? maybe not 6 . EPA (2007): States have reduced standing requirements (but not individuals). because of the parens patriae doctrine. Injury requirements from Lujan remain. Their injury was not immediate (they didn’t already have plane tickets to go). Court probably would have found standing.

a plaintiff must (1) have already suffered harm. or (3) be under a threat of specific future harm.) Just because it involves foreign relations does not mean it is not justiciable (correct!). Court said taxpayers here had no standing. the last four are prudential. but usually decides based on (2). since government was giving away property.Taxpayer Standing: Mellon (1923): plaintiff alleged spending money for maternal health is beyond enumerated powers. not money. Prudential Rules 3. go to Congress. (Some wrongs. but very limited to the facts in that case. A case is rendered moot if events occur after the case has begun that eliminate plaintiff’s stake in the controversy. distinguishing Mellon: taxpayers do have standing when they allege violation of some specific Constitutional prohibition. Political Questions Baker v. instead of merely alleging transgression beyond enumerated power. 4. Valley Forge (1982): disposing surplus property (not spending money) to Christian college. there is no judicial remedy for. Exceptions to mootness requirement include the situation where the problem is capable of repetition yet evades review (Roe v. property clause. US (1993): Court held issue non-justiciable of whether a certain Senate Rule regarding evidentiary hearings in committee violated Constitutional authority of the entire Senate to “try” all impeachments. Wade). Carr (1962. they would have overruled Flast. Hein (2007): plurality said taxpayers had no standing. plaintiff-taxpayers claimed violation of Establishment Clause. since everybody pays taxes Flast (1968): plaintiff-taxpayers claimed financial aid to Christian schools violated 1st Amendment. Court found standing for these taxpayers. 7 . not the Court. Ripeness and Mootness To be ripe for decision. not by Congressional mandate. Factor 2: “try” is too vague to define and get a standard for. not spending powers. second requirement is mixture of Constitutional and prudential. since money was disbursed to faith-based welfare by President’s discretion. Scalia and Thomas said this was a bad distinction. (2) be faced with a specific present objective harm. the six factors for whether political question): (1) text commits to another branch (2) no judicially discoverable and manageable standards (3) requires initial policy determination (4) disrespect other branches (5) need for unquestionable adherence (6) embarrassed by differing pronouncements (First requirement is Constitutional core. court said no standing here for taxpayer.) (The Court always mentions (1). Nixon v.) Flast is still good law.

) Ex Parte Young (1908.. since there are no judicially discernible and manageable standards for adjudicating these types of cases. Veith plurality (Scalia): Court should never review gerrymandering claims.g. Georgia. against the state. Abstention doctrines are said by Court to be prudential. The Eleventh Amendment 11th Amendment gives immunity to a state against suit by a citizen of another state in a diversity action. officer-suit fiction): Although can’t sue state. clearly discriminates unlawfully). Constitution places impeachment power in Legislative branch. not Constitutionally required. Bandemer: Equal Protection clause governs gerrymandering situations. since (1) only encompasses things that do not fall within judicial power anyway. PQD applies to (2). Louisiana (1890): Court ruled that sovereign immunity of a state against suit by its own citizens was implied in the Eleventh Amendment (Legal Fiction). Abstention Abstention is a judicial decision to decline to exercise jurisdiction given to it by the Constitution and statute.g. Category (2) is factor 1 in Baker. in effect. (Apparent premise of Hans: sovereign immunity retained in those places where state never gave it up and Congress never took it away.Factor 1: textual argument (“sole” power to try). Category (2) limits judicial power. but not to (1).) O’Connor’s dissent in Davis v. Younger (1971): National policy forbidding federal courts to stay/enjoin state court proceedings except under special circumstances. It overruled Chisholm v. (Legal Fiction—when state official 8 . (These 2 categories from Marbury would be better for the Court to use than the Baker factors 2-6. Any solution to equal representation for all different groups and sub-groups is political in nature (category (1)). Note: Both political question issue and standing issue could be independently dispositive. unless it clearly violates the law (e. Hans v. original intent argument. coin-toss) and is clearly wrong. which are really all prudential. D. whereas category (1) does not deal with judicial power. Pullman (1941): Last word on meaning of Texas law belongs to Texas Supreme Court. or (2) submitted to executive/legislative branches by Constitution/laws. Rationale: Federalism. Redistricting legislative districts almost always falls into category (1). Marbury: Court can’t make decisions: (1) in their nature political (discretionary—not governed by law).. not to any federal court. but there is no manageable and discoverable standard for Courts to use. can sue state official and get injunctive relief. and structural argument Stevens’ concurrence seems to have it right: “try” and “sole” arguments are not the point. Souter’s concurrence in judgment: sometimes (case by case analysis) the Court should review Senate’s impeachment when it is just a joke (e. 5.

goals) of the Federal government is contained in the enumerated powers of the Constitution. (If means are proper) Is the means necessary? (Discretion. matter of degree of necessity. Enumerated powers are immutable. within scope of Constitution? II. Implementing Enumerated Powers and “Default” Rules 1.3. Appropriate a. Can get injunctive relief against the state (future relief). but the means (Code laws) are changeable. not prohibited (“Necessary”—discretion (not judicially reviewable). good for America.—object analysis. Can sue state official personally for past monetary damages. not judicial judgment) 4 problems under the chart: (1) Subjects rather than objects are treated as enumerated powers (the main problem with commerce clause analysis. Lawful object? 1. from structure) 2. courts don’t ask what the purpose of the commerce clause is) 9 . (If object is lawful) Is the means proper/lawful? 1. End within scope of Constitution (enumerated powers) 3. Implementing Enumerated Powers: The “Necessary and Proper Clause” The object (objectives. e. Prohibited (express or implied. Limits of law—“proper” 1. Legitimate end (LON) 2. III.) Flowchart of Marshall’s approach: I. Plainly adapted to achieve lawful object? If not—pretext.acts outside the law it is not the state acting. III.g. not mere pretext b.2. Maryland (1819): Necessary and proper clause: A. The Limits of Federal Legislative Power A.) Must sue state official individually (can sue both in official capacity and in individual capacity). while others have limited immunity. The means of the Federal government’s objectives are contained in the US Code. McCulloch v. but no damages for past wrongs. then means analysis under A. Enumerated. plainly adapted. but some state officials have absolute immunity for official acts. Discretion of means (Courts can’t review it unless it violates the Constitution) —“necessary” B.) (“Proper”—legal decisions (judicially reviewable). legislative judgment.) (B.1. Legitimate (LON)? 2. and B. and B.

Maryland (1819. people of 13 states formed union. since they don’t distinguish between subject and object. which he recognizes is higher standard than rational basis. of the clause. Term Limits v. only legislative remedy. Powell: Congress itself may not add qualifications (undisputed). No judicial remedy for high taxes (unless individual harm to particular plaintiff). Thomas. populace as a whole formed union. Fed under commerce clause (with one object). 10 . For Thomas. Ogden (1824): Object/purpose of commerce clause is to break down trade barriers between states and ensure an open/common market between states. both “proper” and “necessary” are legal tests. 2. Fed can’t tax state banks. and states under police powers (with a different object). state may add qualifications. Implying “Default” Rules for Federal and State Power McCulloch v. Marshall treats power to regulate IC as exclusive power of Fed government.(2) Objects become treated as a means to non-enumerated powers (3) Standard of “directly adopted” is changed (3 levels of scrutiny) (4) Courts judge the necessity (any balancing tests of competing interests) Note: Thomas wants to reinstate “plainly adapted” test. for Marshall. since the object of the clause is free trade between states. state may not add qualifications to Constitutional requirements for Congressmen. Both states and Fed can inspect goods. 2nd issue): Taxation is concurrent power. B. State and Fed may adopt same means. whereas Marshall recognized it should go under “proper” analysis. not just subject. and longer on object. but the objects are different. Thomas. States can’t tax federal banks. Later. and also clearly states dormant commerce clause concept.S. but he puts it under “necessary” analysis. since it didn’t exist before 1789. but must do so to accomplish their respective lawful objects. people reserved power to elect own representatives. 10th Amendment and nature of “reserved” powers: Stevens. Thornton (1995): Nature of the Union: Stevens (Marshall). that power was not reserved. (Modern courts ignore this distinction. Means and subject may be the same.) Johnson’s concurrence clarifies the object test Marshall is using/assuming. Clause should be limited by object. only “proper” is legal test. Congress should not do anything that inhibits interstate trade. U. Court changed and said it was concurrent power. which meant that analysis rested only on subject. Even if it falls under subject of IC. some powers are exclusively federal (Marshall would say power to regulate IC). Commerce Gibbons v.

would probably include regulating what endangers IC (Southern Railway). and sell: prohibition okay under Champion (see also Dagenhart and Darby). and Shreveport are most significant today. thus. Wickard. 2 major departures from Marshall legacy: (1) no object analysis. Subject: prohibiting movement in IC (meets Marshall’s subject definition. since danger is posed to those engaging in interstate commerce. such as unsafe vehicles. not commerce power. Marshall probably okay with Southern Railway. and (2) legislative-type decision-making under means analysis. as in Champion—lottery tickets) • Grow and carry to N. carry to NC to sell at prices that will drive out local competitors: Shreveport Rate Case says regulation okay to prevent this. it says prohibiting movement in 11 . 2nd deviation: ignore object of the clause (Champion). Marshall: object is somewhat broader. Darby puts subject test under “means” instead of “object”. however. (Note: of these. In effect. [Dean’s summary document] 1st deviation from Marshall: regulation of commerce is concurrent. just means analysis. • Grow and carry to N.) Chart based on example of tomatoes: • Grow and eat: no regulation under Gibbons. Darby 1 (1941.) Today. (Object here is to ensure even inefficient tomato growers stay in business. (Meets subject test: regulates interstate commerce. Regulation okay here. Southern Railway.) • Grow. Johnson maybe not. Object of commerce clause includes preventing things that may hamper intercourse. in old car dangerous to others: meets subject test. (The main 2 reasons for the Constitution instead of the Articles of Confederation were national defense and a free market between states. Court makes judgment as to what is best for America (“necessary”).C. not okay under Jones & Laughlin. regulation okay under Wickard— substantial impact in the aggregate on IC. that may clog up thoroughfares. 3rd deviation: ignore subject of the clause. and that is the general welfare. Congress may now utilize any means to promote its vision of the general welfare unless the Constitution expressly prohibits it. regardless of object being more like police power. to sell. Court shifts analysis from object all over to means. and meets object test. boats. Champion. substantial effect on IC in aggregate (Wickard). and pay children nothing (who worked for you): regulation here has apparent object of police power. not under means analysis. The Court has held in effect that there is one and only one object or power of the federal government.C. etc. • Grow. regulation prohibiting shipment of goods in IC): Object: police powers (wages and hours) This case eliminates Marshall’s object test. Note: subject and object test fit under “enumerated power” analysis of Marshall chart.Johnson: object is only to take down trade barriers. state and federal (Cooley). carry to NC to sell.

S. intrastate. v. (Court says can regulate something that is “an essential part of a larger regulation of economic activity. Lopez (1995. insists on defining “commerce”. the Shreveport Rate case. law prohibiting racial discrimination): Object: end discrimination and thereby protect IC. the Court basically defers to the legislative judgment. Morrison (2000): 12 . goes back to text of Constitution. his proposal is that it must be commercial and interstate (which gets him back at least to standard (2). (This is what Champion did too. economic activity. Means: regulate racial discrimination Test here is substantial effects test.”) There also must be substantial effects on IC. U. it will probably use rational basis test. outlawed possession of firearm in school zone): Object: stop crime if substantial effect (police power) Means: regulate non-commercial (mere possession). (Looks like Congress can do anything as long as there is substantial effect on IC. Same as Wickard except it limits means to regulation of intrastate economic activity (not just any activity). This clearly contradicts Marshall. This departs from Marshall’s subject test. but doesn’t go back to the object of the clause. Means: regulating intrastate activity (not necessarily commercial activity). Jones & Laughlin.) Darby 2 (1941. and Heart of Atlanta Hotel. who insists that courts apply object and subject tests.IC can be used as a means to accomplish the object of a police power. but not all the way back to (1)). (Not use Marshall’s object or subject test. Even Lopez fits here. Congress can regulate things that affect IC in aggregate. allowing for regulation of intrastate activity. one important factor for determining which is Congress’ setting out facts supporting the substantial effects. regulation of wages and hours): Object: police power (unfair competition). Substantial effect test—Congress can regulate if substantial effect on IC. U. Rule: must be economic activity that has substantial effect on IC.) Thomas: concerned to keep police powers away from Fed.S. Filburn (1942. even if not going across state lines. (After Raich. just putting a little brake on these prior cases without overruling them.) Wickard v.) (Into this category put: Wickard.) Heart of Atlanta (1964. v.) (Both Wickard and Lopez depart from Marshall’s object and subject tests. under Wickard. this stretches standard (2) (see below) to fit channels of IC.) (Congress repassed the law with a new phrase prohibiting possession of guns having crossed state lines. regulating agricultural production): Object: maintain prices if in the aggregate has substantial effect on IC Means: regulation of intrastate non-commercial activity—“any activity” Jackson says restraint on commerce clause is only political judgment and it not for courts to deal with.

CA resident can’t have medicinal marijuana. Scalia (concurring): possession is non-economic. Darby 2. Thomas (dissenting): must be commercial and interstate (neither one here). LON limits). still couldn’t regulate it here. Raich (2005. she says it must be economic activity having substantial effects on IC. 4 standards of “regulation”: (1) Free trade object (Gibbons: subject and object) (2) Channels of IC (prohibit movement). Shreveport. whereas Shreveport probably fits under substantial effects category) (4) Substantial effects on IC. (Note: on exam. focus on (1) and (4). thus. since we need to save federalism. Lopez. since everything has effect on IC. “plainly adapted” test from McCulloch. focuses on subject but ignores object of clause (3) Instrumentalities (protect from interference). Court can’t just hypothesize about a rational connection. Substantive/Procedural Immunity 13 . we have lost federalism). then you don’t even go to substantial effects. Champion. however. then it looks at 2) Congressional findings on substantial effects. Raich. but rather give Fed government all police powers. gives factor test (political). it is part of regulatory scheme to stop IC. since Court said if there is no economic activity. at least he wants to impose “plainly adapted” test. Court will scrutinize effects more closely. O’Connor—some kind of proof (Congressional record). Darby 1. Wickard. then this means it is a matter only for Congress. To prove substantial effects: Stevens—rational basis. this is alive and well today. no LON limits. Thomas—maybe he wants to get rid of substantial effects test. don’t define subject or object of IC. Gonzales v. O’Connor (dissenting): non-economic here. not for the courts. Southern Railway (this one would probably fit under Marshall’s approach. Stevens for majority): Economic activity here (although not commercial or interstate) that can be regulated since it has substantial effect on IC. Rational basis std/review: regulation okay if Court can imagine a logical connection where there would be a substantial effect. not on (3). Today: Fed—police powers (through substantial effects taken to logical extent. and if no Congressional findings. Court is probably saying: if 1) economic activity.Court didn’t defer to Congressional findings of substantial effect here. State—police powers (minus defense). uses prohibition (Champion) approach. Note: If it is only a matter of degree (Jones & Laughlin Steel). State—police powers (minus defense and commerce.) Ideal: Fed—enumerated powers (defense and commerce). even if it were. although conservatives want to put “economic activity” limit on it.

too hard to determine what is and isn’t governmental or proprietary function.) (3) Fed can influence states to implement wage and hour regulations: conditional payment to states. can regulate wage standards if state is running ABC store. such as police force. but rather a proprietary function. US (1992): *Lawful ways the Fed can solve this problem of radioactive waste (1) Directly regulate private activity (if substantial effects on IC) (2) Directly regulate state activities (3) Preempt state regulations (4) Place condition of not regulating (state can either regulate according to federal standards or have state law preempted by federal regulation) (enumerated power other than spending clause or taxing power) (5) Give states money as an incentive for state regulation (spending clause plus others perhaps) (6) Allow discrimination by states (not by private entities. Shreveport) against out-of-state (dormant commerce clause) (7) Tax private entities or even states (taxing power in addition perhaps to IC power) (Note on taxing power: the object is to raise revenue. (4) Fed can’t order states to pass laws regulating private activity. New York v. (1) Fed regulation of wages and hours of employees of private employers: use commerce powers to justify (states use police powers to justify). and the Court will defer to the legislature. (Here. since that is not a traditional governmental function. not to penalize/regulate) *Unlawful way the Fed can solve this problem: Fed forcing state to regulate Rule: without a Federal statute permitting it. (5) Fed can permit states to discriminate against out-of-state commerce (can tell State 1 it can charge exorbitant rates to State 2 if State 2 has to deposit waste in State 1). there was such a statute. no a priori reasoning about the nature of a state. they fell into categories under lawful ways Fed can solve the problem. the first two sets of incentives were okay. Fed must either regulate directly (1). Fed was offering coercive penalties (states must take title and be held liable unless they regulate the private entities) instead of offering encouraging incentives. • Garcia (Blackmun): can regulate here (overruled Usery). one state can’t discriminate against out-ofstate commerce. which will not protect the states. New York: Fed legislature can’t commandeer state legislatures 14 . (2) Fed regulation of hours and wages given by state as employer: • Usery: no regulation here for governmental (sovereign) functions. (Dissent: not propose clear test to use.) Here. The third set of incentives was not okay.No substantive immunity for states—only legislative recourse. or conditionally influence the states (3). There is procedural immunity for states—Fed can’t directly compel states to regulate. Congress will protect the states. but opposes majority for leaving states in hand of Fed.

only on the people). dissent says no express prohibition. reporting missing children. problem was child labor): Law by Congress: tax 10% of those who have scienter that they have employed a child (sounds like regulation) Proper object of tax clause: raise revenue (parallels Gibbons in looking to object of clause and underlying object of the law). the Court will uphold it. Taxation Bailey v. Fed can’t commandeer states to act as administrative agents to act on the people (generally. (Wrong!) C. then the conditions it puts on spending can amount to regulation.. as long as Fed raises revenue on the face of the statute. Majority would evidently permit Fed to regulate states in certain ministerial functions. this must be struck down. commandeer state police. Congress here was trying to make state officials have US executive responsibilities. Court apparently overruled Bailey. if at all. Butler (1936): 15 . but Court upheld it.g. e. Fed can’t operate on the states. (Since the end is considered lawful.) Majority finds implied prohibition in structure of Constitution. since this was a regulation. law struck down. (1922. Printz v.Printz: Fed can’t commandeer state executive officials Martin v. as well as on the people. since it would have put the bookies out of business and there would have been no more bookies to tax. can’t tell states to structure their courts and jurisdictions of those courts in certain ways). Spending Note: If Congress can actually regulate the subject. Stevens: Fed powers were enlarged by the Constitution. so Fed can still operate on states. Drexel Furniture Co. and it is okay. limit firearms Means: states administer. Either prohibition or pretext. D. Art. Kahriger (1953): Purpose of the law was to stop professional gambling. Hunter’s Lessee and Testa: State judges must follow Fed law (but Fed can’t commandeer state judges to be arm of Fed government. US v. II says President has all executive powers of US. it couldn’t have raised much revenue. US (1997): Basic rule: The states are not administrative arms of the federal government. US v. Pretext here of pursuing unlawful object. Ends: regulation of IC (through substantial effects). This case virtually does away with the object test (Bailey). so okay. on grounds that means is unlawful.

this limitation means that the spending power may not be used to induce the states to engage in activities that would themselves be unconstitutional. 16 . Fed can spend where it can’t regulate. Instead.) O’Connor (dissenting) also implies that even if Congress said the purpose included safety. it would be unconstitutional. conditions to accepting money can’t constitute regulation. Rational basis test—no rational relationship between means (21-yr drinking age) and end (safety). Issue under Steward Machine: coercion or encouragement? S.D. since the condition doesn’t induce states to engage in unconstitutional activities.” Court adopts “Hamiltonian” view of spending clause: spending power not limited to enumerated powers. Is it valid under spending clause? Spending clause limited by “general welfare. but even if there is. it is okay. Example: Congress can give money for education. but definitely takes different approach: as long as Congress doesn’t coerce. but you can have conditions. Rehnquist also says there is not coercion here. To sum up spending clause: Lopez: little restriction on commerce powers. although Rehnquist deals with coercion under (4)) (2) Unambiguous condition (example case from supplement: witness fees not unambiguously stated) (3) Related (directly related) to the particular program (4) Independent prohibition (other Constitutional provisions) Rehnquist (majority): no independent prohibition in Constitution here. Fed can’t flat out regulate everything (but it can spend conditionally). and (2) it is a wealth-shifting mechanism (which doesn’t fit definition of “tax”). Court still asks whether there is coercion.Court recognized this would have been invalid under taxing power. but it can’t spend to regulate. Rule stated here: The independent constitutional bar limitation on spending power is not a prohibition on the indirect achievement of objectives which Congress is not empowered to achieve directly. since it is both under-inclusive and over-inclusive (which usually means that rational basis test is failed). Court still asks whether the condition is directly related to the purpose of the spending. Dissent: coercion is the test. although not always. it can’t be a regulation.) Issue according to Butler: regulation or condition? Steward Machine (1937. since it (1) is a regulation (can’t regulate through taxing power). (O’Connor: safety regulations are not directly related to purpose of constructing highways. (Majority says sometimes it can constitute regulation. but merely encourages. Dole (1987): 4 elements to satisfy spending clause: (1) General welfare (Hamiltonian view of) (question of coercion naturally fits here. Congress was trying to pressure states into adopting unemployment compensation laws complying with federal standards): Not explicitly reverse Butler. v. it can attach conditions as long as it does not constitute a regulation. but only by general welfare. thus.

New York v. cl. Holland (1920. Thus.Means: Del.” Object of states in regulating wills and estates is police power. so Congress entered into a treaty and then passed a statute to implement the treaty. Authorizes company to dam a stream to drain malaria swamp. Wilson damages dam and says that lwa authorizing the dam was unconstitutional b/c violates c.. See Declaration of Independence. 17 . Dormant Commerce Clause Implicated when state regulates and Congress has not preempted the state regulation by federal legislation.. Covert (1957)) (4) Some things by very nature are international (Jefferson’s approach) Under LON.c. 2 differentiates between laws (must be made in pursuance of Constitution) and treaties (must simply be made based on authority of US). Holmes thus adopts formal ratification standard for a treaty’s validity (with limitation of “national concerns”). VI. Printz – Steward: Congress can’t commandeer executive branch. Black Bird Creek Marsh co. US – Dole: Congress can’t commandeer state authorities. (congress doesn’t speak=dormant) A. this is seen to give countries right to enter into treaties enforcing specific domestic “rights. the key is whats the purpose. Today. Standards for judging whether a treaty is lawful/constitutional: (1) Formal ratification standard (2) Enumerated powers (3) Express prohibition (Reid v. E.here health) 2) any express constl prohibition? No 3) any law of nature? No. statute was struck down. so they condition spending on state regulation/legislation. Ask Proper: 1) is it plainly adapted? Yes (pretext: nterferance is a regulation but that’s not enough. Object of Fed in having treaty allowing foreigners to inherit from parents is an international object. since disrespect of these rights can cause war. Limiting the Scope of State Power over Interstate Commerce Wilson v. Holmes responds that Art. Treaty Implementation MO v. Ends: health (public power. US and all nation-states are bound by international law (including customary) even if not in specific treaty. then there was a regulation involved based on the statute): Holmes (majority) upholds the treaty. but Steward gets around it somewhat under the spending clause. Marshall: Exclusively Federal. MO argues enumerated powers limit treaty capability. international law is seen as including human rights. by effecting interstate commerce. (Note: use the McCulloch object test for this problem.) IV.

Ogden (1824): Object for Fed is regulating IC. not regulating IC. it is for Congress to determine whether the burden on interstate commerce outweighs the benefit of the state’s exercise of its police powers. if the states in the lawful exercise of a police power impose a burden on interstate commerce.g. or illegitimate power) (3) Is the means necessary? (a) Where lawful state statute imposes incidental burden on IC. It would be a case of federal commerce power trumping the state exercise of a police power that unnecessarily interfered with interstate commerce.. In effect. such as commerce power. Concurrent State & Federal (Cooley): • Dormant commerce clause: some state regulations of IC struck even without federal regulations.g. • Preemption: of state police power regulations that conflict with federal regulations of IC. Congress. Black Bird Creek (1829): Means: dam a stream Object: police power (health—malaria) Passes Marshall’s test for “proper” object and means. that is exclusively federal. by its structure) prohibit this means? (b) (By definition.Dormant commerce clause: state regulation of IC struck even without federal statute. prohibiting dams on navigable waterways) that conflicted with the state’s lawful exercise of its police powers would the state law be struck down. Only if Congress passed a law pursuant to its commerce powers (e. state was regulating under police power. not courts. means may be the same. It would not be a case of federal commerce power trumping state commerce powers..] Marshall analysis of dormant commerce clause issue (McCulloch): (1) Is the object of a state statute lawful? (a) Legitimate? (b) Within scope of Constitution (reserved police power. not enumerated power)? (2) Is the means (state statute) proper/lawful? (a) Does Constitution expressly or implicitly (e. no preemption in dormant commerce clause case) (c) Plainly adapted to achieving lawful object? If not—pretext for unlawful object (either enumerated power. Gibbons v. is to determine whether burden on IC outweighs benefit of state’s exercise • 18 . Legislative decision as to which interest is more important is to be made by Congress (but Court today makes this decision). object for state is police power. Complainers’ only remedy would be legislative (state or Federal)—is it necessary (legislative judgment)? Here. [Dean’s summary document. • Preemption: some state regulations struck only if federal regulations conflict • Congress may alter above interpretation of dormant commerce clause and allow state regulation of IC.

burden in IC First question: what category? Second question: what standard of review? 4 categories to analyze whether means are proper (really looks like necessary analysis): (1) facial discrimination against out-of-staters (IC) (2) discriminatory purpose (3) discriminatory effect (not purposeful discrimination. benefit.P.) (3) No consistent standard applied by Court. No deference to state’s legislative judgment.pike balancing. excessive burden on outof-state commerce) (4) burdens or incidental effect on IC (burden both in state and out of state) Standard of Review for 4 categories: (1) Per se invalid with exception (ME minnow case (facial discrimination): no nondiscriminatory alternative to protecting important state interest). Thus. Hood & Sons v. 1st big shift away from Marshall position): Object: regulation of IC Means: local pilot law (permitted by Congressional act in 1789) (safety/police power) Curtis (Both can regulate/ concurrent) (majority) says 1789 act permitted states to regulate IC instead of Fed choosing to regulate IC. probably apply invalid per se the stronger the discriminatory effect or the 19 . but it did find such in H. (Court would likely allow ME minnow exception in this situation. idea of a pretext is logically irrelevant. Court has now said essentially that all ends are legitimate for states to pursue. Court applied invalid per se test.hidden 3) effects 4) Burden. Does not look at ends but looks to whether local or natl matter Rule adopted here: States cannot regulate IC that is national in nature. Cooley v. Political/prudential decision involving measuring degree of necessity and weighing burden vs. (2) No consistent standard applied by Court. since basically all objects are permissible. DuMont. and it is plainly adapted. Curtis says this is a grant of commerce power (whereas Dean thinks this was simply a recognition of legitimate police powers) Subject matter: navigation.per se invalid. Bd.) Marshall would uphold. so only remedy is in Congress’ preempting by statute. strict scrutiny 2) purpose. and only congress could regulate Today. of Wardens (1851. (This test shifts analysis to subject rather than object. but they can regulate IC that is local in nature (unless Congress passes law that preempts state regulation that is local in nature).of its police power. Court makes judgment as to what is best for America (“necessary”). Court shifts analysis from object all over to means. very difficult now to find unlawful object. since power to regulate IC is concurrent.) (Marshall would analyze this case thusly: object is safety—police power. 1) purpose-facial. Court much more likely to find (3) than (2). Court shies away from finding discriminatory purpose.

it is for Congress to decide whether to preempt with its own regulation of IC.) 1. like preponderance/evidence). so come up with new rule: if it’s a facial discrimination its almost always unconstitutional . so law was okay.) (If strong discrimination under (2) or (3).) Decide don’t need to know what object is. Marshall would probably say this is permissible exercise of state police power that has incidental effect on IC. (4) Burden on IC vs. but (c) looks more like just general weighing. std/review is “per se invalid. Defer to state’s judgment. Balancing process to determine whether means is properly national or local (not to determine whether end is legitimate). so logically don’t need to ask if plainly adapted.) (Spectrum of standards of review: (1) looks pretty close to strict scrutiny. (Cooley distinction between what is national and what is local can’t be determined by looking just at subject matter. Pike test: compare value of police power to the harm to interstate commerce and the harm to IC would have to be excessive. health). Safety benefit—3 varieties of weighing: (a) Southern Pacific: pure balancing (51-49. maybe strict scrutiny. intermediate (substantial) (used in P&I cases. see below.appearance of discriminatory purpose.J. (b) Pike: clearly excessive (maybe 60-40) (c) Kassel (Rehnquist’s dissent): safety benefit more than trivial (maybe at least 10) High deference. (Note: (a) and (b) look like balancing tests. Categories 1)Facial discrimination 2)Purposeful discrimination 3)Discriminatory effect Balancing Balancing Paradigm Strict Scrutiny Strict Scrutiny Powell Brennan Balancing Rehiquest 20 . weighted in favor of state. N. only upheld if no other alternative to accomplishing legitimate state end. there was no other way of protecting Maine’s interest. plainly adapted. Facial Discrimination Philadelphia v. Add question 4 under proper 4) no fed statute. rational basis. (1978): Purported object is police power (safety.) Category 1. Pike balancing. but Court doesn’t use this language.) (Under category 4.” (Maine minnow case refined the standard: “no nondiscriminatory means”. probably apply a balancing test under (4) the weaker the discriminatory effect or the evidence of discriminatory purpose. Maybe object is saving taxpayers by favoring some over others.

) Black’s dissent recognizes that balancing of safety interests and IC interests should be done by the Congress. see Dean’s Table. Burden on IC vs. State acting as private person can discriminate in the same way a private person can. but apply Pike balancing test. Safety Benefits Southern Pacific v. States as “Market Participants”: An Exception to the Dormant Commerce Clause (A) State as State (Regulator)—Lion “No out of state waste for out dumps”—category 1. (Today.4) Burdens IC Pike Balancing Special deference Stron presumption balancing 4. no limitation of dormant commerce clause.) (For cases under categories 2 and 3. but okay. South-Central Timber Development. Inc. Wunnicke (1984): If state acting as market participant. A “use” tax: overt discrimination that intends to place insiders and outsiders on equal footing and actually does so—not treated as discriminatory. but okay. Scalia pushes this point. Category 4: burdens on IC Std/review applied here: balancing relative weights of state and national interests involved. since private dump owner can do the same. (C) State as emerging Public Function—Chimera “City dump is going to be the only dump in town.” (Carbone)—category 1.) (From Scalia’s concurrence in West Lynn Creamery) *4 ways to help the farmers: (1) Tariff (2) Tax exemption for in-staters (3) Earmarked spending from nondiscriminatory tax (the situation here) (4) Give subsidy from general fund The first 3 are impermissible. 21 . (Pike’s clearly excessive test is different than simple balancing. rather than as market regulator. (B) State as Market Participant—Goat “Only let in staters put waste in our state-owned dump”—category 1. not the Court. the last one is permissible. v. AZ (1945): End: police power—safety. invalid per se.

v.” However. since everyone had to (under ordinance) bring their solid waste to him.J. (State can’t do by K what it can’t do by regulation.) After concluding market participant exception not available. (2) P&I clause only protects certain rights that are “fundamental to promotion of interstate harmony. Court upheld this statute. United Haulers (?): Only 1 fact different from Carbone: dump owned by city instead of private party. B. White) (6) Subsidy to local interests from general tax revenues (assumed valid in West Lynn Creamery) *Only (5) and (6) are valid under the dormant commerce clause. Court distinguished White: state may impose burdens on commerce only within the market in which it is a participant.Market participant doctrine not apply here. (3) No market-participation exception to P&I clause. Court applies per se invalid test and strikes down statute. state may not impose conditions having substantial regulatory effect outside of that particular market. (State as—what creature?) 22 . (5) Standard of review in P&I cases is “intermediate. Carbone (1994): State said dump owner could charge more money. state setting up exclusive dump.” between Pike balancing and strict scrutiny. Privileges and Immunities Clause of Article IV 5 Major Differences Between Article IV. 6 Ways States Can Discriminate in Favor of (Confer Benefit on) Residents: (1) Discriminatory regulations (Philadelphia v. Faulkner) (3) Facially evenhanded taxation with exemptions targeted at residents (Bacchus Imports) (4) Facially evenhanded taxation coupled with in-state subsidy from the tax revenues (West Lynn Creamery) (5) Discriminatory public investment choices by a state as market-participant (Reeves. but it can consent to state regulation of IC that would otherwise violate dormant commerce clause. State may not discriminate as a regulator. section 2 and Dormant Commerce Clause: (1) Corporations may bring commerce clause challenges. N. dormant commerce clause applies to all interstate commercial activity.) (2) Discriminatory taxation (Fulton Corp. since AK is regulating downstream. Court proceeded to say this was per se invalid (category 1). but are not “citizens” under P&I and thus are not protected by it. thus. (4) Congress cannot consent to state acts that violate P&I clause. no balancing test.

if President tries to “execute” where there is no law.” Older cases look to Corfield and idea of “fundamental rights” to determine what P&I are. taxation (states do have to give these rights to out-of-staters) Must treat out-of-staters the same as in-staters with respect to P&I. he is in reality making law.” (2) Is there substantial reason for discrimination? Nonresidents must be shown to constitute a peculiar source of the evil at which the statute is aimed. Executive Action The powers of the president under Article II: (1) Executive power (2) Commander-in-chief (of armed forces. Court today will say P&I only include those things “necessary to insure interstate harmony. doesn’t depend on legislation. However.) (Same factual situation as White.) V. or international law). not of America) (3) Faithfully execute (4th possibility: nebulous inherent power (necessity). public office. since state is treated as a goat. Separation of Powers A. Youngstown Sheet & Tube Co. remanded. v.) Test: whether “sufficiently fundamental to promotion of interstate harmony so as to fall within purview of P&I clause. statute. employment. welfare. Camden (1984): *2 steps in analysis: (1) Is there a burden on privileges and immunities? (Held: job/calling was a burdened privilege and immunity. President can’t execute a law until there is a law. steel seizure case with Truman): Generally. police officer (states don’t have to give these rights to out-of-staters) Benefit rights: public school. law must come before execution (Constitution. P&I don’t include every right of in-state citizen. medical benefits (states don’t have to give these rights to out-of-staters) Freedom rights: property.g. however. Jackson mentions but rejects this) 1. state is treated as a lion and prohibited from this action. 23 .Political rights: voting. court access. (Held: record insufficient here to make this determination. which would be okay under dormant commerce clause. e.. veto power. travel. However. there must first be law from Congress. Power as commander in chief.2. Domestic Affairs President does have some legislative powers. Sawyer (1952. Under IV.

Who is an inferior officer? Morrison a. This was legislative power. Jackson’s concurrence: Can have 3 situations: (1) Where Congress expressly authorizes (strongest) (2) Where Congress is silent (3) Where Congress expressly denies Where Congress authorizes. (Appointment and Removal) Article II. Courts c. Bowsher 4. they would have executive powers. no express power. Principal officers (cabinet secretaries) (President appoints with advice and consent of Senate) 2. Can Congress appoint? No 3. can remove at will. Can Congress remove except by impeachment? No. but President can’t be a lawmaker. no law either express or implied by Congress. not implied from this power. Supreme Court Judges C. so looked for implied power—particularly in the commander in chief power. *5 Questions for Appointment & Removal (know the answers to master this topic): 1. Heads of executive department Buckley: an officer of US is any appointee exercising significant authority pursuant to the laws of the US (not all Fed employees are officers). Can Congress give courts power to appoint purely executive officers? Yes. Rationale: When there is an emergency. Can President’s removal power be restricted? Myers. 24 . President b. therefore. Limited term Paradigm: Congress creates department. not legislative or judicial powers. Limited duties b. President’s action can only be stricken if Constitution prohibits the Federal Government from doing that particular thing. Thus. Morrison 2. Ambassadors. Humphrey’s Executor. § 2. No general policy-making power c. Court looked to Constitution for express/implied power. other public ministers B. Congress can act really fast. President would appoint AG (principal officer) and US Attorneys (inferior officers). Morrison 5. Other officers 1. cl. “Inferior” officers a. President appoints with advice and consent. 2: A.Here. President doesn’t need to act without Congress appropriating the funds and authorizing him first.

25 . Humphrey’s Executor (1935): Law: FTC established as executive agency independent of President. remove at will) and quasi-legislative/quasi-judicial powers (here with FTC). President must be able to do his job. Advice and consent is only for the appointment process. President appoints Commissioners (with advice and consent) for terms. but statute’s removal provision was not. Olson (1988): Law: AG can seek appointment of independent counsel (inferior officers) by DC court. (Can take some of President’s constitutional power. Morrison v. Rule here: President can remove at will. Rule/holding here: this good cause limitation on President’s removal power is okay. To permit execution of the laws to be vested in officer answerable only to Congress would reserve in Congress control over the execution of the laws. since it doesn’t sufficiently deprive President of control over the independent counsel to interfere impermissibly with his constitutional obligation to ensure the faithful execution of the laws. this includes all foreign affairs power. Struck down. President has exclusive power of removing executive officers he has appointed and Senate has confirmed. Morrison was inferior officer.) This changed the standard in Myers to new standard: Congress can erode President’s removal power as long as it doesn’t interfere too much with President’s duty/ability to execute the laws. not removal. under 4 factors: remove by AG for cause. executive powers (investigate and prosecute). Appointment here may have been lawful. Struck down. Bowsher (1986): Law: Comptroller General (legislative and executive duties). it can then restrict President’s removal power. Court here changed its mind as to rationale underlying Humphrey’s Executor. which President alone bears. not Senate with him. Rule: If Congress grants more than purely executive power to agency. Upheld limitations on President’s removal power. limited jurisdiction.Myers (1926): Law: President can’t remove postmasters (purely executive authority) without advice and consent of Senate (just as he appointed them). Court distinguished between purely executive powers (Myers: no restrictions. 2. but not too much. but can only remove them for inefficiency. or malfeasance in office. Foreign Affairs When president is given executive power. This is reasonable implication from duty to execute the laws. limited duties. and limited tenure. negligence. neglect of duty. removable only by AG (not by President) and only for good cause. unless there is some specific exception. Congress removes for inefficiency. Congress by itself can’t remove any executive officer except by impeachment. Upheld.

26 .) *Just because it is in Article II does not make it executive in nature. (Wrong— Constitution divvies up federative powers between President and Congress. we have express legislative approval of (1) and (2) + executive agreement + executive order. strongest position. Crosby (2000. since Congress had provided for Federal regulation on this issue and the Court held Fed law preempted MA law. 3 main issues: 1. President only prohibited if Federal government couldn’t do it at all. (2) transfer attached property to Iran. CA exercising police powers of making sure people get their insurance payments. different kinds of powers granted to President: (1) Legislative—veto. recommend legislation (2) Executive—depends on statute to be executed. not regulation or even market participant. Thus. you must look at the nature of the power itself. maybe court finds preemption and maybe it does balancing test to see whether interests in foreign relations outweigh CA’s police power interest. There is disagreement over nature and extent of President’s powers. Under issue 2. Here. however. Federative powers not explicitly delegated to either President or Congress: Congress should do it under necessary and proper clause. Everyone agrees on this.Article II: sections 1 and 3 both contain “faithfully execute” clauses. Thus. OR law struck down that barred inheritance by nonresident aliens. President entered into executive agreement with Iran to release hostages. MA barred state agencies from buying from companies doing business with Burma): Subject here looks like housekeeping for MA. Faithfully executing the laws (§ 3) is subset of faithfully executing the office of President (§ 1). take similar approach if treaty involved. Federal-state relations and foreign affairs 3. but the object of affecting foreign affairs was exclusively federal. *Article II. commander in chief (3) Housekeeping—appointments (each branch gets to appoint its own helpers) (4) Federative (dealing with foreign countries)—treaty (Locke) Curtiss-Wright (1936): If given to President. Foreign affairs power is exclusively in the Federal government. Foreign affairs powers – exclusively Federal powers 2. then it is executive in nature. Garamendi (2003): no express preemption. (3) terminate claims/lawsuits): *Jackson Framework (from Youngstown Sheet & Tube): 1. Issue 3: Dames & Moore (1981. if all foreign powers are viewed as inherently executive. Court. However. there is also an executive order: (1) nullify attachment of property in prior lawsuit. There are also some problems in area of state/federal relations. Congressional express approval. looks at it in terms of MA’s actions having effect on foreign relations and strikes down the law. President automatically gets to do it. Separation of powers and foreign affairs (Congress or President) Issue 2: Zschernig (1968): Subject of inheritance is police power (state issue).

All these questions have been given to Congress to decide.1. only thing unconstitutional is allowing President a 92day window to carry on any war he wants to. War: Prize Cases (1863): President can’t initiate war (allows for defensive war).. (Most of this Resolution is correct. War Powers Resolution: Claims to just set out what the Constitution requires. (If only executive agreement + executive order. (2) Defensive war: President needs no authorization from Congress.) 2. Can we win? 6. since legislature had delegated this foreignaffairs power to the President. (1) Offensive war: President needs authorization from Congress—either (a) declaration of war or (b) other authorization (an authorization is basically same as declaration). it would also be okay. Congress disapproved. 3.) UN authorization: not meet Constitutional requirement of Congress being the one to authorize/declare. Congress silent.5. Congress should be making the decision whether to go to war. Sometimes an executive agreement must be lawful: if incidental to carrying out express presidential power (e. not giving President blank check. executive order is thus okay. the last 4 are prudential questions. (2) specific statutory authorization. Implied legislative disapproval. Curtiss-Wright—executive order.) 27 . End in peace? The first 3 are legal questions—all 3 elements of legal complaint. or if necessary to implement treaties. President would probably still have authority. 2. no good. Implied legislative approval. (With a declaration. Court found implied legislative approval of (3) (+ executive agreement + executive order). Black approach: Youngstown—executive order that was exercising legislative power.) 2(c): either (1) declaration of war. Article II: commander-in-chief implies duty to defend if attacked. (This is correct. Black’s approach applied to Dames & Moore—legislature has delegated. What cost? 7.5. Here. Other options? 5. Proportional force (remedies) 4. since the situation here involved invasion of foreign embassy with ambassadors—severe infringement of int’l law. but okay. need to make agreements relating to having embassy to put up ambassadors). or (3) national emergency by attack. Just War: 1.g. Just cause (cause of action) 2. Lawful authority (jurisdiction) 3.

(2) Type of Proceeding. No standing for plaintiff challenging legality of a war. (a) screening for status (civilian or combatant?) and (b) trial for crimes. 8(a)(2): can’t send armed forces into hostilities unless treaty is supplemented by legislation specifically authorizing it. any detainee (foreign or not) gets habeas petition. statute. mere affidavit of someone who doesn’t really know the person. financial appropriations). they are not a “regularly constituted court” within Geneva Article III. PQD would prohibit courts from looking at the issue. since Court treated it as part of US. must have either domestic court or court martial here) (3) Boumedienne and habeas corpus (Congress suspended habeas for Gitmo prisoners. The MCA (Boumedienne) said Geneva Conventions don’t apply! (Note: if President goes to war unlawfully. even if standing. specifically including pending cases (response to Hamdan). not even a hearing.48-hr notice. Screening: if in US. and (3) risk of error. Court said this was unconstitutional. (2) government interest. Resolution after 9-11: Congress essentially delegates power to decide to go to war to President. then President has to withdraw under section 5(b). nation can go to war by itself only for defensive reasons and only for so long as security council thinks the nation needs to defend itself. (3) Procedures at Proceeding. saying he is a combatant. (2) Military Commission (do they have to give a regular trial instead?) Jackson Framework: Congress & President—do we have any of the following: international law. To be held as a combatant until end of war. PQD would prevent court from reaching this issue. executive order. Military Commissions Table: Procedure in administrative law cases—Matthews factors as to what DP requires: (1) private interest. Habeas also applies in Gitmo. you have to have a trial for it.) (Stevens is wrong in Hamdan—military commissions should not be held to same standard as courts-martial and domestic courts. (This is unconstitutional. Screening (remember Hamdi): very little process.) Terrorist Cases Issues: (1) Habeas Corpus. instead of making the decision itself (which it should do). since Congress has plenty of power to punish President (impeachment. then 60 (maybe 90) days. Issue of ultimate trial from Hamdan: what type of procedure? *Intersections of the chart that are most important: (1) Hamdi and screening (balancing test of Matthews) (2) Hamdan and trial (can’t use military commissions in these situations. but because it gives President too much power—power to go to war offensively without either declaration or authorization. constitution? *Jackson Framework: When can President act alone? Has congress given permission? (Court says it must clearly violate Constitution for Court to overturn action by President and Congress together regarding habeas.) 28 .) 2 kinds of hearings in habeas action: (1) Screening (initially decided you are a combatant. Under UN Charter.) 8(a)(1): appropriation bill (giving money for war) is not ipso facto an authorization.

Humphrey’s Executor. convenience. (C) in excess of statutory authority. quasi-legislative power. where different opinions held different categories).For screening issues (and perhaps even trial issues). (2) May Congress (& Pres) delegate quasi-legislative. Standard for FCC is “public interest. (4) May Congress (& Pres) delegate legislative power to the President? No. intelligible principle. go through Jackson framework (see Hamdi. quasi-judicial. Clinton. Legislative Action and the Administrative State *5 main issues (know this material to master delegation for exam): (1) May Congress (& Pres) delegate legislative and judicial powers to an executive agency? Yes. Kennedy has 2 moods: formalist and romantic (functionalist).S. U. and creation of department/officers. Executive Agreements: President may enter into executive agreement instead of a treaty if the subject of the agreement is within some enumerated power given to the President alone. 29 . (B) contrary to Constitutional right. and sufficiently specific and detailed. and executive power to an independent agency? Yes. or necessity” (general welfare and political means analysis). Court reviews all administrative procedures on basis of Administrative Procedure Act (APA) § 10(e)(2): (A) abuse of discretion. Mistretta v. Chadha. and quasijudicial power. (1989): (Congress may not appoint or remove except by impeachment. B. its only role in appointment is advice and consent of Senate. FCC exercises executive power. (5) May Congress (& Pres) delegate legislative power to the courts? Yes. (A) Jackson Framework (B) Habeas Right (C) Proceedings and Procedures (1) Screening (2) Trial (a) Military tribunal (international) (b) Military commissions (national) (c) Courts-martial (national) (d) Domestic courts (national) Treaties vs. (3) May Congress (& Pres) delegate and reserve legislative authority to itself (Congress)? No.) Limits on Congress’ power to delegate: not excessive delegation. 2 basic principles going on: formalism and functionalism. Mistretta (fed judges on commission to produce sentencing guidelines).

He says Congress can’t delegate pure legislative power.) Administrative state is mechanism for implementing entitlement system (titlements violate Art. From Mistretta and Morrison: Congress can do it as long as it doesn’t substantially undermine function of particular branch. why can’t it keep some for itself?) Congress makes a law and President signs it—INS has power to hold hearings as to whether someone should be deported. but Court makes an arbitrary distinction.. Chadha (1983): Court didn’t strike action of INS as unconstitutional delegation of legislative power. can’t give away legislative power. Bicameralism and Presentment: Administrative state: Congress delegates rule-making (legislative) authority. so it’s okay. Court struck this down. Then it goes to Congress. because it doesn’t upset the boat too much. Welfare state 3. Thus. protection of big business 2. failing Constitutionality because it only went to one house (failing bicameralism) and didn’t go to President (failing presentment). Health and safety Clinton v. If either house vetoes.) Scalia dissents in Morrison and Mistretta: can’t give away executive power. but it is okay to delegate some legislative power to executive branch/agency when mixed with executive power (matter of degree— political decision). (Thus. Problem here according to Court was: no bicameralism and no presentment. § 9). (Black was a formalist [words have meaning]: one branch can’t exercise power of another branch—period. Both houses approve the enabling act and President approves and signs. Scalia has no problem with a narrow view of Humphrey’s Executor—can give away quasi-legislative and quasi-judicial power.g. you have both bicameralism and presentment. Regulation of economy (e. but did strike action of House as unconstitutional exercise of legislative power. City of New York (1998): Normally: Congress enacts law—President—veto—Congress 2/3—Law Line item veto: Congress passes law—President—signs—cancels 30 . Waves of administrative agencies in America: 1. Court has said there is no problem with a department making a regulation that doesn’t itself go through bicameralism and presentment.*Test: it doesn’t undermine power of judiciary or power of Congress too much. Rehnquist is a functionalist: okay to delegate legislative powers to judicial branch. this rationale implies that the whole administrative state is invalid. however. Scalia is a formalist. saying it was legislative act. railroads). the INS ruling is overturned. I. (Inconsistency here is that the INS and ALJ power was not stricken too. If House can delegate legislative power to administrative agency. INS v. although it involved legislative power without bicameralism and presentment.

) Scalia: not a dime’s worth of difference between (1) and (2). 31 . Clinton: suit can go on while President is in office.”] Majority: distinguish between (1) and (2). Clinton v. Stevens (majority) probably would have said it was okay. unofficial actions.” (2) “President may choose not to spend if he finds certain conditions to exist. Fitzgerald (1982): President absolutely immune from civil liability for his official actions. There may be some delegation of legislative power that doesn’t require going back to Congress (bicameralism and presentment). this is basis of whole administrative state. This is President changing law rather than executing law (as (1) would be). (If President had to act or not act (instead of having discretion). or sensitive national security interests. With regulation bills: President has interest in not spending all the appropriations for law enforcement and regulation. Executive Privilege U. He would analyze this under issue of delegation: all delegation of executive power includes some sort of legislative power delegation. this is okay delegation here. An issue: official vs. Rule: general interest in executive privilege doesn’t outweigh interest in getting evidence in criminal case.Majority: cancellation power is legislative power. Jones: President not immune from civil liability for acts committed before he became President. (Formalist approach. criminal justice outweighs general executive privilege. Reason for the difference: President needs to carry out official duties without fear of losing his fortune.” They are also temporarily immune from civil suit during pendency of congressional sessions. President can’t do (2). 2.S. however. C. but he has tapes. diplomatic. Executive Immunities Nixon v. since President at that point would not be making law.) 1.) With entitlement bills. President is trying to exercise legislative power without going through the process of Congress passing and presenting to President. President has interest in spending all entitlements. Nixon: President not defendant. Formalist approach. executive confidentiality may outweigh if there were military. [2 hypos for putting in Congressional appropriation bill: (1) “President may choose to spend if he finds certain conditions to exist. but district court should respect President’s time/schedule. Immunities and Privileges (Note: members of Congress are absolutely immune from civil/criminal suits or grand jury investigations premised upon their “legislative acts. but distinctions between (1) and (2) not too persuasive. both are okay. v.

32 . (2) weigh various interests: criminal case outweighs general executive privilege.2 basic points from this case: (1) qualified executive privilege based on general separation of powers. (balancing test). national security matters outweigh criminal justice matters.

VI. 3d. rights such that neither liberty nor justice would exist if they were sacrificed.) Life. disability and welfare (b) 3 factors: private interest. Lochner was discredited: “there are no substantive due process rights. so rooted in traditions and conscience of people as to be ranked as fundamental. (2) Intimate relations (Griswold). Incorporation Doctrine (1) Fundamental Fairness (FF): Twining (1908): “fundamental principle of liberty and justice which inheres in very idea of free government” (2) Incorporation (judges can run wild with idea of “FF”.) Substantive Due Process: 2 basic eras: (1) Economic rights (Lochner).g.” look at Bill of Rights. Cardozo: fundamental fairness described several different ways (e.. (Note: incorporation fits under “prohibition” analysis. it is only procedure”. talk about generalities/particulars. and risk of error. Substantive Due Process Brief Summary of Procedural Due Process: (1) Notice (2) Hearing (a) Pre-termination or post? (Criminal/civil: hearing is before. 33 . CT (1937): Not violate FF for state to appeal criminal conviction. and 7th Amendments are the only ones that aren’t incorporated today. state could do it. Griswold then said: “there are substantive due process rights in area of intimate relations. which is under proper means analysis of Marshall chart. Palko v. administrative law: maybe before or after) (b) How trial-like is the proceeding? (Phone call to administrative personnel?) (3) Matthews factors (a) E. etc.. government interest. Twining v. due process includes fundamental rights.g.” A. In incorporation analysis. NJ (1908): Even though this violated DP under 5th Amendment. since it didn’t violate DP under 14th Amendment. just apply Bill of Rights to states) (a) Selective incorporation (everyone else) (b) Total incorporation (Black and Douglas) 2d. (Today. and property: how define? For “liberty. grand jury. very essence of a scheme of ordered liberty. liberty. 14 Amendment (proper understanding): (1) Privileges and immunities: fundamental rights (2) Due process: process (procedural protection of the fundamental rights under P&I clause) (3) Equal protection: even positive rights in addition to fundamental rights have to be given equally to all.

§ 2 protects outsiders. these things wouldn’t bind the states under 14th Amendment. Court wants difference between state P&I and US P&I. (3) 14th Amendment ratification debates cited Corfield. Also. and that everything in Bill of Rights is not FF. Exception to this rule: unanimous jury required in Fed. this is pretty good evidence that privileges and immunities mean same thing in 14th Amendment as in Art. 14th Amendment allows Louisianan to go to Fed government when LA is giving him a rough time. Slaughter-House Cases (1873): Object of 14th Amendment: protect African-Americans. Baltimore (1833. only rights protected by 14th Amendment are those already protected. but majority rejects plaintiffs’ position in (5).. (3) Historical argument. clear text of 14th Amendment indicates that it did change the federal structure of our government. but not in state. beginning with Lochner. (However. he says FF is not limited to Bill of Rights.) Harlan goes with FF. IV P&I = fundamental rights (e. IV. since—(2) Scope of Constitution? No (14th Amendment doesn’t protect all FR. Court said 14th Amendment does protect citizen against his own state. they can only limit this government in the Constitution. (However. not in-staters against their own state governments. not full incorporation. but disagree over what P&I are). and takings clause isn’t there. Court quotes Corfield: P&I involve natural fundamental rights. Marshall opinion): Bill of rights does not apply to states. (See 5. state violations of its own citizens’ FR must be resolved in state legislature. (2) Textual argument: Art I.) 6 points from Slaughter House: (1) Art. thus. 14th Amendment permits Fed to uphold 34 .g. § 10 gives limitations on state governments. (6) Plaintiffs: LA plaintiff’s fundamental right (P&I under Corfield view) is protected by 14th Amendment from infringement by LA (majority rejects: can’t get relief against own state). however. However. Rationale: (1) Presupposition: if American people form this government in the Constitution. Corfield: not depend on positive law) (2) Engaging in a lawful calling is a P&I of natural law. Bill of Rights is seen to apply to states in same way it applies to Fed (where incorporated against the states). IV. (Note: Art. this Court says 14th Amendment doesn’t protect citizen of a state against his own state. original intent. it is within scope of Constitution. (5) Plaintiffs: P&I must mean same thing in Art IV and 14th Amendment (majority rejects).) (4) 14th Amendment protects citizens of US against their own states (majority and dissent agree on this. the Amendment is not limited to African-Americans. as it interferes with basic right to K.) Court: certainly framers of 14th Amendment didn’t mean to change whole structure of Federalism in our government.) Dissent: Object analysis: economic regulation is not legitimate. thus. (Today.Adamson: some things required in the Bill of Rights are not required by FF.) Essentially. no new protections. Barron v. Analysis here: Is the end/object permissible? (1) Legitimate? Majority says this doesn’t matter. thus.

since it doesn’t protect resident of CA from CA. Fed can enforce it intrastate. Saenz: right to travel is a P&I. P&I clause still has life in it. no protection here. jury instructions on silence (Twining). Economic Rights Today. B. and (3) Property Under (2) liberty: testify in own defense (FF). *What level of generality/particularity will a case be decided on? Lochner v. under 14th Amendment. but not to legitimate end). VII. Harlan says this is police power—health of bakers (if minimum wages. VI—Fed. P&I of US citizens under 14th Amendment is not as broad as P&I of state citizens under Art. Under confront witnesses: cross examination. VI). legislature is free. privilege against self-incrimination (amend. Ends analysis: (1) Scope of the Constitution: is it exclusively federal (national security. but majority can’t call welfare a FR. not FR. (In reality. (2) Legitimate: Economic rights or police powers? Majority says the end here is economic regulation. 14th Amendment protects here. V). New York (1905): Means: limitations on hours to work (Court views as limitation on right to K). virtually all ends are legitimate. thus. Court takes Holmes’ position. confront witnesses (amend. since welfare is “public benefit” (not privilege). force to take stand. Generalities to Particularities (as with Biblical Law): (1) Life. IV. (Today. Palko). virtually no protection of economic rights. out-of-court use of confession against him. V. Holmes says that even economic regulation is a legitimate end (police power). no need for pretext / 35 . Means analysis: no prohibition on the means (states enacting monopoly). fixing prices. I. or subsidies—redistribution of wealth). since then the wealthy have the same right to welfare as the poor do. However. Saenz v. unanimous jury (amend. Roe (1999): Article IV wasn’t breached here. the right to welfare is what is involved here. Today. hearsay. jury in civil trial (no—amend.) Thomas (dissent): 14th Amendment protects fundamental rights (Corfield) (he would agree with dissenters in Slaughter-House). which is illegitimate. Marshall—regulate commerce)? If not exclusively federal. not state).fundamental rights of citizens against their own states. double jeopardy (amend. Right fashioned as right to migrate/travel: this is P&I of US citizen. no reasonable nexus to legitimate end (it is “plainly adapted” to illegitimate end. (2) Liberty. and it is interfered with when state denies welfare benefits! Thus. not FF). Under privilege against self-incrimination: prosecutor’s comments on silence (Adamson). then it must be concurrent or purely state. thus. foreign relations.

) Skinner v. (b) evolving conscience. Harlan uses language indicating more than minimal scrutiny.plainly adapted standard.. but it doesn’t necessarily include the particulars asserted by the Court (e. Society of Sisters (1925): right to send children to parochial and private schools. Myer v. Basic problem: getting from general principle of liberty down to particulars: (1) Total incorporationist view of Douglas and Black (still problem of fleshing out particulars under each of the amendments in the Bill of Rights) (2) FF view of Goldberg and Harlan. the Constitutional limits under the prohibition test are “fundamental principles as they have been understood by the traditions of our people and our law. Nebraska (1923): right to teach German to children. (Note: Meyer and Pierce keep coming up to prove idea of substantive DP. For Holmes. Means analysis: Proper? (1) Prohibition: either Constitutional limits or Fed statute that preempts state statute? Majority says no problem here. Thus. no ends analysis. Oklahoma (1942) (issue of forced sterilization): rights of marriage and procreation.”) (3) Jurisdiction of Federal courts: Court says it does have jurisdiction to decide whether right to K is being violated. There is general right of privacy. standard of review becomes different when all ends basically become legitimate. 36 . his standard of review is pretty much the same as the majority’s “plainly adapted” standard of review (although he comes out with different conclusion). (Limit judges in their interpretation of substantive due process to only those rights included in FF. (Majority here is interpreting rights as broadly as dissenters in Slaughter House had interpreted privileges and immunities. and (c) balancing of interests.) II.) Look at one or more of: (a) history and tradition. saying health was a pretext and real object was regulation of economic rights. only a prohibition test. burden is on challenger to prove the infringement is not rationally related to legitimate government objective. Substantive infringements of constitutionally fundamental liberties are presumptively void. “Privacy” Rights 4th Amendment protects a type of right to privacy.” **There are no substantive economic rights. Thus. For Holmes. even though Lochner is discredited. Pierce v. With Holmes. analysis shifts completely over to means under “prohibition.g. abortion). which is easy to meet. Harlan said it really is exercise of police power for health purposes. burden on state to prove infringement is necessary to achieve compelling government objective. and no plainly adapted test. but doesn’t have to provide it. especially since all ends here are basically legitimate (including end of economic regulation itself). Freedom right: state can’t interfere with it. C. Substantive infringements of non-fundamental liberties are presumptively valid. use rational basis test. (2) Plainly adapted: this is what majority focused on.

For this class. (Nexus becomes part of a balancing test: state interests vs. or economic regulation? II.) If important state interest (very important): intermediate scrutiny—substantial connection. but may refrain from subsidizing the exercise of that right. government may not use its power to subsidize to induce people to forgo rights they might otherwise exercise using their own resources. right to have defense counsel provided) “Unconstitutional conditions” doctrine: government may not penalize the exercise of a constitutional right. very important): strict scrutiny—necessary / least restrictive alternative / narrowly tailored. follow this analysis: (1) Alleged right? (What level of generality/particularity?) (a) Who has a right? (b) What are those rights? (2) Source of that right? (a) Deeply rooted in history and tradition (b) Precedent (c) IICOOL (implicit in the concept of ordered liberties) (d) Social consciousness (3) Standard of review? Senior FR is based implicitly or explicitly in Constitution (think Bill of Rights and incorporation. (Default is strict scrutiny for FR. Ends: (1) Scope of Constitution (2) Legitimate: interstate commerce. private interests. think of what comes out of DP in 14th 37 .) *For DP on exam.g.) Essentially. not judicial)—relationship between state and private interests If legitimate state interest (important: rational basis—rational/reasonable connection. (Marshall: plainly adapted test to make sure there is no pretext for unconstitutional end. police powers.Benefit right: state has duty to provide it (e. since it is legislative decision-making. nexus was connection between means and ends.) Heightened scrutiny refers to anything above minimal scrutiny.. If compelling state interest (very. end simply has to be legitimate and within scope of Constitution. government may simply decline to spend its money to support private choices with which it disagrees. 1st Amendment). Means: (1) Necessary (2) Proper—Prohibition (a) Constitution (b) Federal Statute (3) Nexus (this really today fits under “necessary” analysis. Analysis: I. (Refusal of state to fund abortion is thus okay. esp. for Marshall. A penalty would be state’s denial of medical welfare benefits to anyone who had obtained an abortion.

Strict scrutiny—usually. the emanations from several Amendments overlap in the area of a right to privacy. 1st trimester—no restriction. Court eventually comes to (c) balancing interests.) No ends analysis here. 1. 2. White’s dissent: let the people do the balancing.Amendment: abortion. eventually state interests outweigh woman’s privacy interest. Casey claims that Roe did not impose strict scrutiny standard of review. finds right to privacy in penumbras of various Amendments. State’s interest in potential life is always legitimate (maybe substantial?) and becomes compelling only at end of second trimester (viability). associate with others. State’s interest in mother’s health is always legitimate and becomes compelling only at end of first trimester. Harlan (also concurring) and Goldberg find right to privacy in marriage as part of general head of right to liberty. Abortion The abortion cases involve legislative type of decision-making by the Court. he is a full incorporationist. 3rd trimester—may prohibit abortion with exceptions for mother’s life and health. as well as (b) evolving conscience of people. Lawrence: rational basis. Woman’s FR to privacy remains same throughout pregnancy. Thus. Roe v. deduce particulars from general statements in Bill of Rights. 38 . Origins: Contraceptive Use Griswold v. 2nd trimester—may impose restrictions for mother’s health. marriage. Implication: only compelling state interest outweighs a FR. Court doesn’t even ask whether regulation of contraceptives properly comes under police power of regulating for public morals. rational basis test should be applied. remember. He says Court may have the power to do this. however. Any fundamental right can be overridden if government has sufficient compelling interests (including forced sterilization). sexual conduct. Court gets from right to privacy to right to abortion by arguing from: (a) history and tradition (finds a right because abortion wasn’t always criminalized as capital murder—this is bad history and bad reasoning). but it is imprudent. think. cf. Goldberg (concurring): anything could be legitimate if for general welfare. Step 1: get to privacy and fundamental right. Thus. Douglas. Casey: undue burden. Casey (1992): Only line is at viability. Step 2: any limits on the right? – Apply strict scrutiny and require compelling interest. Connecticut (1965): (Douglas writing for majority. Rehnquist’s dissent: this is economic-social right (if a right at all). He doesn’t say that fetus is human being. thus. (Holmes is right on this: general statement of a right includes many particulars not specifically set forth.) 1st Amendment: includes right to receive information. Wade (1973): Court goes from liberty—privacy—right to abortion (fundamental). not us.

in general. so state can maximize everyone’s personal interests. “in general” language. and (3) other social values.) Court’s cases today balance state’s interest in life. 4. (2) potential life. No one on the bench has yet called an unborn child a “person” or “human being. always substantial interests.Mother’s interest in bodily integrity seems to be less than a FR. Court never comes out and says woman has FR to abortion.) Before viability: may impose restrictions for mother’s health and potential life if (1) no undue burden or substantial obstacle. Gonzales v. not child’s interest in his own life. from the moment of conception.” (If rights are interests. 4 of the 5 regulations survive the undue burden test. Carhart (2000): Everything same as Casey. only one that fails is requirement to tell husband. and (2) design is to inform choice. then we need balancing test. and interest in potential life is probably compelling. not hamper. probably (2) becomes compelling after viability. Court interpreted statute to prohibit both D&X (intact D&E) and D&E. (Is Court saying that abortion is not a FR (dissent: if fundamental.” rather than a “right. This right shall be protected by law and. (After viability. Woman’s interest/right is spoken of in terms of an “interest. 39 . then strict scrutiny has to apply)? Or is Court saying that some FRs deserve strict scrutiny. State’s interests in (1) mother’s health. Court had 2 reasons for striking down the statute: (1): it created an undue burden because all other abortion options were riskier than intact D&E and D&E. Probably intermediate standard of review here: “substantial state interest” in potential life throughout pregnancy (does it increase at the end of the pregnancy or not?) (Undue burden in Casey is treated as intermediate. (This arguably allows balancing child’s life against mother’s interest. Carhart (2007): Court seems to treat mother’s liberty interest as less than a FR.” Kennedy has referred to “child” in Gonzales.) American Convention on Human Rights. although it kind of looks like balancing. but this is all we have.) Here.1: Every person has the right to have his life respected. Court cited numerous state interests that were in addition to interests in mother’s health and potential life. Casey said Roe did not give proper recognition to the value of state’s interests that run throughout the pregnancy. (Undue burden test is intermediate scrutiny with legislative balancing. interest in mother’s health is perhaps compelling. while others deserve only intermediate scrutiny (some FRs are more fundamental than others)?) State’s interests in mother’s health and in potential life are always substantial. Art. Stenberg v.) After viability: may prohibit abortion with exceptions for mother’s life and health. and (2): no exception for mother’s health. perhaps (1) and (3) become compelling after viability.

City of East Cleveland (1977): (1) Alleged right: Grandmother has a right to have son. Scalia focuses on history and tradition. because there are other options (in particular. Before viability: prohibition on D&X is not an undue burden. Family Relationships The family cases come up with holdings on case-by-case basis. The family (as an entity) is who has the right. H and W are not a family. Upheld statute prohibiting D&X. Note: Court can’t avoid problem of deciding whether unborn child is a “human being” by merely relegating abortion issue to the states. Dissenters: sometimes D&X is safer for the mother than D&E. 3. since Congress found that it was never beneficial to mother to have D&X after viability (natural birth or other abortion method is safer than D&X after viability). there is no undue burden to prohibit abortion in 2nd trimester.) Scalia says CL particular right at bottom of chain decides this case. Hard to find rules from these cases. and another grandson/cousin to live together. she did say that state could require parental consent for a minor to have an abortion. Brennan focuses on evolving conscience. No health exception here was not a problem. After viability: prohibition on D&X without a health exception is okay because childbirth or other abortion methods are just as safe. (Like act utilitarians. not a corporate entity. not based on association of individuals. Rule utilitarian: rules to form everyone’s decisions.) Michael H. Act utilitarian: consider each decision on its own merits as to what is best for America. D&E). Europe prohibits abortion in 2nd and 3rd trimesters. Thus. sometimes D&E is dangerous for mother. The right is the right to live together. his son. (1989): (Go from liberty—emotional attachment—family—father—married father has exclusive paternal rights over children born into the marriage. while parent/child is a family?) 40 . However. it may be that when we get all the medical and scientific facts in. Peterson case: guilty of killing 2 people or just 1 person? If the test is undue burden. Court says the right is a family-based right. this is why wife doesn’t have to give notice to husband. *Court appears posed to accept this standard. rational basis test permits prohibition on abortions as legitimate state interest. and permits abortion in 1st trimester. Scalia and Thomas: let the states resolve this. (However.Court clearly distinguished between D&X and D&E. in Casey. Moore v. Brennan goes up to level of “family” to decide that it includes a right of visitation to children born illicitly. O’Connor said marriage is 2 individuals.

even though state has legitimate interest in marriage. Texas (2003): (1) Court here goes up to the more general level of privacy right to intimate personal relations. such as an “interest.(2) Right rooted in history and tradition (O’Connor in Casey had refused to follow history and tradition of viewing marriage as one entity. Hardwick: (1) Court treated alleged right as FR (very particular). Court seems to apply intermediate scrutiny. Thus. license from state lets you raise your children. Abusive parents can eventually sever the covenant. Consensual Sexual Choices Bowers v. or (2) EP—Court didn’t buy argument that EP wasn’t violated because blacks and whites were treated equally. but something less than a FR. Virginia (1967): 2 potential ways to resolve this case: (1) DP FR to marry. in similar manner to how marriage covenant can be broken/severed. State recognizes.) *(4) Covenant (marriage is a stronger relationship than parent/child). Plaintiff wanted case to be resolved at more general level of sexual intimacy. Right to Die [Not tested.” Stevens: this is a taking without due process and without just compensation. the family and marriage. rational connection (nexus): prohibiting conduct is rationally related to end of promoting moral conduct.) Loving v. Blackmun’s dissent: no FR. etc.. not creates. Biological father has no covenant relationship with child born into another marriage. but he would strike down the law on grounds that morality by itself cannot be a sufficiently legitimate state interest. test is child’s best interests. which is not biological. but biological perspective can’t. Covenant can explain Michael H. This is apparently not a FR. Covenant only formed between the child and the married couple. (2) No FR to sodomy. includes adoption. Lawrence v. 41 . means here was prohibiting sodomy.).) (Note: license to marry shouldn’t be viewed as bottom line of right to marry. (3) Minimal scrutiny: legitimate end here was morals.] 5. 4. What is a family? (1) Biological (genetic) (2) Functional (3) License (Scalia in Troxel: no judicially enforceable liberty interest of parents in child-rearing.) (3) There are legitimate state interests here (preventing overcrowding. and instead decided to follow changing consciousness of our people.

but they don’t come out and actually say it. adultery. enforcement of morals is not a legitimate state end.) Thomas (dissenting): No FR. have been criminalized because they are harmful acts that have harmful consequences. Harm/outrage debate is not talked about in these sodomy cases. H. (Note: homosexuality. Under EP. moral disapproval of a particular class is an illegitimate state end. not DP.A. this is where Court focuses. but it almost treats it as such. etc. but not under EP. (Implicitly. Lord Devlin: only basis for declaring something immoral is “outrage” to society. Mill): can only prohibit what will cause physical harm.(2) Court doesn’t come out and say there is a FR to sodomy.) Scalia (dissenting): Impossible to distinguish homosexuality from other traditional “morals” offenses. Court found no legitimate government end. (3) Minimal scrutiny. Scalia should have added to his argument the interest the state has in prohibiting homosexuality because of its harmful consequences. no right to privacy. (O’Connor apparently would say that morals are legitimate end of government under DP analysis. (a) Court discredits history and tradition relied on in Bowers by saying the old laws were simply trying to prohibit non-procreative sex. **Homosexual marriage and fundamental rights—great question for exam! 42 . etc. premarital sex. “Uncommonly silly”—is the end of morals uncommonly silly? Is the connection uncommonly silly? No one in Bowers or Lawrence talked about the state’s interest in public health..L. which is a mystery. seems that people don’t want to talk about the scientific aspects of the health problems promoted by homosexuality. adultery. Maybe a “quasi-fundamental right”?) O’Connor (concurring in judgment): Decide on EP. they are looking at this as fundamental right. It looks as if they are applying some type of heightened standard of review. (b) Precedent of Romer (c) (d) Social conscience (European Court of Human Rights). such as bigamy.S. Hart (J.

look at under. Lee Optical Co. classes were (1) opticians and (2) ready-to-wear): Court used very minimal scrutiny and left the reason for making this distinction to the state legislature.) Default level of EP review: minimal scrutiny. end was safety for subways): Court said this was okay. End: safety of drivers (legitimate) Nexus: rational basis test here. 43 . any conceivable legitimate end will be sufficient (statute doesn’t have to state the legitimate end on its face). Equal Protection DP under 5th Amendment incorporates EP clause of 14th Amendment.and over-inclusiveness (not necessarily dispositive). Murgia (1976): okay to distinguish between over-50-yrs-old and under-50-yrs-old for police officers. Inc. state can take incremental approach. United States Railroad Retirement Board v. No FR to public employment. and Congress changes the rules on them. (2) retirees who have 10-25 yrs but not a current employee. When evaluating the rational connection. Fritz (1980): Means: classes were (1) retirees who are currently working in RR or over 25 yrs by 1974. classes were (1) methodone users for over 1 year and (2) non-methodone users. where he permits distinction between “mere hirelings” and others. Economic minority: not trigger EP concern. no fundamental right to vote under DP. EP doesn’t require all or nothing. this will be left to legislature. but combining DP with EP gives us strict scrutiny for voting rights) (3) EP—suspect class (think race). minimal scrutiny here. even though this statute was both over. New York City Transit Authority (1979. of Retirement v.VII. and (2) Pat the Plumber advertising on others’ trucks. age classifications are not suspect. viewing it immoral to be a “mere hireling. thus. Jackson (concurring): sounds like he will dissent until the end. Court here said it was okay to promote the end by prohibiting only some ads instead of prohibiting all ads. Minimal Scrutiny: Default Level of Review Railway Express Agency.and under-inclusive.” Williamson v. or quasi-suspect class (think gender [or illegitimacy]) (Note: “invidious discrimination” is linked with suspect class. In other words. v. (1955. Those in class (2) think they will have vested security in the RR. A. 3 ways to get heightened scrutiny under EP: (1) Fundamental rights (DP) (think 1st Amendment) (2) Equal protection component of DP (think voting. MA Bd. New York (1949): Means: classes here are (1) Pat the Plumber advertising on his own truck. DP in V encompasses what EP in XIV involves. Plaintiff must prove either (1) the classification does not rationally advance a legitimate state objective. or (2) the objective is illegitimate.

Court evaluates the conceivable ends to see if they were actually viable. Court responds to all the ends advanced here with either: illegitimate ends. Moreno (1973): Ends (specified in statute): both stamp out hunger and strengthen agriculture. Ends: (1) Scalia: purpose here is simply to eliminate special protections for homos. it upholds this statute under rational basis standard. it is illegitimate end. or. the Court grills the state’s interests here. *Whenever Court looks at statute involving homosexuals. it will strike down the law. Court struck it down anyway. Court says the real end/purpose of this statute is to discriminate against hippies. Court sounds like heightened scrutiny in response. 44 . Court applies rational basis. since the Court didn’t just acknowledge there were conceivable legitimate ends and leave it there. maintain solvency of retirement system for RR. Congress’ stated purpose for revamping its statute was to preserve vested rights. (Unions drafted statute.) Cleburne (1985): Means: classes here are (1) mentally retarded and (2) not mentally retarded. (2) households without everyone biologically related. This was higher than simple minimal scrutiny. and no illegitimate end. but it cut too deeply). perhaps aesthetic interests of neighborhood. No suspect class here. (3) Makes it harder for homosexuals to get special rights (have to go through constitutional amendment process). Means: classes were (1) households with members biologically related. Ends advanced by state: perhaps valid safety ends. perhaps protection (junior high nearby). Romer v. it will look at “animus”. Court says it is illegitimate state end to eliminate protections of the law. (2) Court interpreted statute here as eliminating many protections/law (not all protections. USDA v. and excluding class (2) does the opposite of this.) Court says there are plausible reasons for Congress’ action here. Evans (1996): Court applies minimal scrutiny (seems to imply no suspect/quasi-suspect class). permitting the state to take step-by-step approach instead of achieving a particular end all at once. thus. Instead. No rational relation between this classification and the ends specified in statute. Mentally retarded are not suspect or quasi-suspect class. Conceivable ends were argued by government attorneys. since animus toward homosexuals is illegitimate state end. without being actually heightened scrutiny. if there is animus. (Scalia says this looks like more than mere minimal scrutiny. Here. Brennan (dissenting): Can use conceivable purpose unless Congress actually states its end/purpose.Ends: promote working for RR. heightened scrutiny. means not rationally related to ends. rationale: if you discriminate because of animus. Congress stated its purpose of preserving vested interests. thus.

Court responds to the other possible state ends with a balancing methodology. Court doesn’t want to give more than very minimal scrutiny to economic cases. minimal scrutiny. 3 ways to establish this: (1) Facially discriminatory classifications (2) Neutral classifications applied in a discriminatory fashion (plaintiff may prove that the classification is actually applied on a suspect basis) 45 . Court upheld legislation under strict scrutiny. Saving money is not a substantial end. Doe (1982): Means: classes are (1) children of illegal aliens and (2) children of everyone else. 1.” There is a continuum.e. BOP is effectively shifted to state. *(Court is much more willing to scrutinize personal rights situations more closely. Coast and (2) others Ends: national security Court balanced government interests (evaluated evidence offered by the Army) and found national interests to be compelling here. but is the discrimination wrongful or invidious? Factors for presumptively invidious: (1) immutable traits.) Ends: discourage illegal aliens and save money (solvency). Facial discrimination triggered strict scrutiny. Strict Scrutiny and Suspect Classifications: Race and Ethnicity Government constantly discriminates.) *Tests for suspect class: (1) Immutable (2) History of discrimination (3) Lack of access to political power Plyler v.) (With heightened minimal scrutiny. not just 3 categories.(There appears to be a “heightened minimal scrutiny” the Court sometimes uses.. B. it was adopted to use the suspect criterion (e. plaintiff must prove that the classification is intentionally discriminatory.. Korematsu (1944): Means: classes are (1) Japanese Americans on W. No suspect class or fundamental right here. (Illegal aliens are not a suspect class. and (3) perennial lack of access to political power. i. (2) history of purposeful unequal treatment. there are various degrees of “fundamental” and of “invidious. sometimes it looks as though the burden has shifted from plaintiff to state. thus. but the ends must be substantial.) Marshall: there are not simply 3 watertight categories for review. Court is essentially saying that right to education is more basic than right to welfare. *Standard/review here: rational basis for nexus.g. Purposeful Discrimination Required For a legislative classification to be constitutionally suspect. race) as the basis for classification.

” (Harlan’s dissent: EP requires color blindness. of Education (1954): separate cannot be equal (at least in context of schools). Ends here are qualifications for police and public safety.) Once plaintiff makes prima facie case. Question is whether the law unduly burdens a minority group. then if it doesn’t violate the Constitution. but interesting to look at. However. Bd.) Arlington Heights (1977): (Not testing on this detail here. teachers. Plaintiff must make prima facie case that there was discriminatory purpose. and (2) those who fail the test. separate but equal is not okay. Davis (1976): Test involved for qualifications for being police officer. the law should be upheld—end of analysis. but if government can prove legislature would have made same decision regardless—minimal scrutiny. Official Racial Segregation 3 Big Cases: Dred Scott (1857): blacks can’t become citizens even if they are freed.) If plaintiff fails to prove race is motivating factor—minimal scrutiny If plaintiff proves race is motivating factor. (If this was neither facial nor purposeful discrimination. but if state provides it. Education not a right. are the same.(3) Neutral classifications motivated by discrimination that produce a discriminatory effect Washington v.) Brown v. Plaintiffs are arguing that disproportionate burden itself violates EP. Classes here are (1) those who pass the test. 2. 46 . Plessy v. must provide to all on equal terms. burden shifts to government to show no discriminatory intent/purpose. etc. If burden shifts to government: if government proves no discriminatory purpose— minimal scrutiny. *Prima facie case is not met by simply showing disproportionate effect. then if government can’t prove legislature would have made same decision anyway—strict scrutiny. need something else before burden shifts to government. if government fails to prove no discriminatory purpose—strict scrutiny (government will lose). Court goes on to discuss more. Ferguson (1896): “separate but equal. (Note: BOP issues not necessary for exam. no matter if facilities. Brown II (1955): Court gives fairly wide discretion to district judges to fashion remedies. There is a disproportionate burden here on blacks taking the test. Brown I (1954): Education: perhaps the most important function of state and local governments.

since discriminating in favor of the minority can stereotype/stigmatize the minority. here the focus is forward looking. generalized class of victims/plaintiffs. remedy here is to deal with group wrongs.) Problem in these cases is in coming up with a remedy.A. Strict scrutiny to discrimination both against majority and against minority. Compare to traditional lawsuit: (1) Particular plaintiff (victim) and particular defendant (wrongdoer). however. Court typically settles a case by giving damages and then making the case final and appealable. Croson Co. Why not necessary / narrowly tailored to achieving diversity?—You can have multiple factors including race. government may not do this. (cf. However. Powell finds compelling interests here (diversity in student body). not individual wrongs. (1989): 47 . (Note: there must be intentional racial discrimination before courts can give any remedy. No “benign” classification here. sending out injunctions regularly. *If government itself has engaged in racial discrimination in the past. Court essentially owns the school districts (receivership idea). Group. med school set aside 16 minority places in each 100-person entering class): Means: classes are (1) white majority and (2) several non-white minorities Strict scrutiny applied here. However. Courts should simply provide final. then government providing a remedial end can be compelling. Remedy: when are the “vestiges of discrimination eliminated”? Probably when the school board takes the right attitude and tries to do things right. defendant is to make whole. court runs the district as the effective superintendent—for 15 or 20 yrs perhaps. not coming to final and appealable decision for a long time. City of Richmond v. Bakke). not individuals. Suspectness of class is triggered by (Powell’s view. J. in Brown and following note cases. Courts also have to act as school board (running the household of the school).Court says the judges may have to change the state and local laws! Courts thus exercising legislative function. Supervision for years: courts acting executively. Affirmative Action Bakke (1978. followed by most courts) any racebased classification. This changes the whole role of a court as remedy-provider. Essence of the problem in Brown: courts trying to act as political bodies. *If general societal wrong government is trying to remediate by affirmative action program—this is not compelling state interest. but not quotas based simply on race. but says nexus doesn’t pass test of “necessary” to accomplish ends. (2) Facts are backward looking: who did what wrong and cause what harm to whom? However. courts retain jurisdiction for years and years. Fundamental problem in these cases: education is illegitimate state power! 3. appealable decisions. (3) Remedy to make plaintiff whole. Here.

) EP under 5th Amendment is the same as EP under 14th Amendment (same requirements for states and fed). remedy must be narrowly tailored to right a particular remedy against identifiable plaintiff(s).. *All racial classifications. Even “benign” intention still stigmatizes and makes racial tensions worse. which is means to the end of leadership. 48 . You can take race into account as one of many factors. thus different from Marshall’s understanding of “necessary” in necessary and proper clause. (Court would probably reject remedial end as compelling in this case. which it says is a compelling state interest. prison race riot) (Explain these 3 possibilities in a rule explanation under answer on exam EP race question.g.) Quotas are automatically wrong.) To achieve one of these 3 compelling ends with race-based classification.) Court held diverse student body is compelling state interest because having “critical mass” of minority students encourages them to speak up and enhances classroom discussions. Bollinger (2003. the end must be compelling state interest: (1) Diversity in education (2) Remedial (3) Emergencies (e. However. City couldn’t show this here. Court says that with states. it seems as though diversity is a means to the end of education. since there is no evidence that MI Law School had discriminated against minorities in the past. MI law school): Court treats diverse student body as the end. Important to consider: individual rights or group rights? Adarand Constructors. must be analyzed under strict scrutiny. can’t have quotas. Strict scrutiny here. (Without the presumption. the nexus must be “necessary” or “narrowly tailored. *With race-based classification. Court will usually analyze this under the nexus issue. Grutter v.Means: classes are (1) Minority Business Enterprises (30%) and (2) majority-owned Majority takes Powell’s approach: can’t discriminate based on race at all. Court generally will not make distinction between benign and invidious purpose/intention for racial classification. State can only remedy governmental discrimination (identify the wrongdoer). v. Dissent still tries to bring in idea of “benign” purpose in discrimination in favor of minority.” (Note: Strict scrutiny: is it “necessary” means here to accomplish the compelling government end? “Necessary” here means absolute necessity. Inc. Diversity not limited to racial diversity. which is means to the end of general welfare. it would have been mere minimal scrutiny for economic classification. Why states and fed differ under 14th A: §5: Congress has been granted greater power to devise remedies for violation of §1 (which limits and restricts the states). imposed by any governmental actor. Pena (1995): Means: classes are (1) non-economically deprived and (2) economically deprived with presumption that certain minorities are economically deprived.

Court.) On nexus issue (is it narrowly tailored?): Is there any other race-neutral way of insuring diversity? Court says that the alternatives are too costly here (it would give up the school’s elite status). which it is not here. Court held no undue burden here on nonminority individuals. Court gives 25 yrs to fix the problem. *Standard (classic formulation for intermediate scrutiny): classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives. state has BOP.) Gratz v. Ends: safety (important state interest) Nexus: has to be substantial. and evince misconceived roles of men and women. with heightened scrutiny. Look at it as classification on basis of gender. Note: any time we differentiate between men and women. however. overbroad. (This makes the problem look somewhat remedial in nature than simply concerned with diversity. Kahn (1974): property tax exemption for widows. *Views of differences between men and women are invalid if they are archaic.(Court defers to the universities! This looks like a lower standard of review than strict scrutiny should be. but not widowers—Court upheld.2% beer. treats this as a diversity state interest case. Weisenfeld (1975): only widows get certain SS benefits. C. Ginsburg says be more honest: this is remedial and such is ok. Reed (1971): Law that men are preferred as administrators of estate struck down as irrational under minimal scrutiny. Craig v. we will consider it an invidious classification.) (It really looks as if the school here is not being honest. Court does recognize there are differences between men and women. Boren (1976): Law discriminated against 18-20 yr old men. Use heightened scrutiny with any classification on basis of gender. University of MI): Held: policy of automatically giving 20 extra points to every “underrepresented” minority applicant solely because of race is not narrowly tailored to achieve interest in educational diversity. outdated. Remedial purpose sometimes okay: see Ballard (Navy promotion rule gave women longer time). only women of that age could buy 3. Remember. widowers don’t—Court voided. 49 . even if no discrimination against minority involved. Narrowly tailored requires no undue burden. Intermediate Scrutiny: Sex and Illegitimacy Reed v. Bollinger (2003. not as discrimination against minority.

but this begs the question. or raise an army in time of emergency (this is not only important but compelling state interest). v. Court seems to be applying higher scrutiny than simple intermediate scrutiny. Disparate impact by itself is not sufficient. Nexus: substantially related.S. (1981): CA’s statutory rape law made only men criminally liable. What if Congress passed law saying that women have to be allowed in all combat positions? Then women couldn’t oppose being drafted! Men also couldn’t oppose women in combat. Typically. EP clause in 14th Amendment wasn’t intended to prohibit men/women distinction. Voting rights under 15th Amendment could be based on gender. Court requires actual purpose. Ends: national defense. Court essentially says this law is okay since women by law can’t go into combat. Virginia (1996.) Nexus: sufficiently related to state’s objectives to pass constitutional muster. diversity within state school system Court said alleged diversity interest was not historically grounded. since Court would have no reason to mandate discrimination/distinction. Court said a gender-neutral statute here would frustrate the state’s interest in effective enforcement. since a female would be less likely to report violations if she would be subject to prosecution herself. Selective Service Act authorized President to require registration of males and not females): Means: classes of young men and young women.Plaintiff in sex discrimination suit must prove that the sex classification is intentional. (Court inconsistently deferred to state in MI education case. Only one plaintiff here. VMI case): Means: classes are (1) male students and (2) female students Ends: “citizen-soldiers”. Issue: is the sex classification based on “real differences” or “archaic generalizations”? Michael M.) “Exceedingly persuasive justification” probably applies to both ends and nexus. the real issue here is “can women serve in combat?” U. not conceivable post hoc purpose. (Probably the real reason this law was adopted by CA was to protect chastity of more naïve young women against older promiscuous men. 50 . but this law roughly equalizes the deterrents on males and females by providing special deterrent to males. End: preventing illegitimate teen pregnancy (important). Goldberg (1981. but not in VA military case. However. Court defers here in national defense and military affairs. but was just made up for purposes of this litigation. Rostker v. wasn’t in writing or in mind when VMI was founded. something between intermediate and strict. Thus. Note: EP clause itself doesn’t mention gender. no deference to legislature with heightened scrutiny. Natural sanctions (pregnancy) deter females. must prove that the facially neutral law was adopted because of its sexually discriminatory impact.

Court said it was not invidious discrimination to classify on basis of wealth. which would make everything strict scrutiny.g. Casey: undue burden. Any law will affect life. or right to criminal appeals. Little 2 are benefit rights. or (2) has been identified as “fundamental” for equal protection purposes even though it is not independently protected by the Constitution. or property—due process. D. voting. fr either (1) is an independently protected Constitutional liberty (e. Crawford. e. Any law will discriminate against groups—equal protection. saying that these were legislatively created rights. 1st Amendment). Lawrence: rational basis.g. Strict scrutiny—usually. How distinguish fr from implicit rights in Constitution? Voting.Statutes that classify on the basis of illegitimate birth are subjected to intermediate scrutiny. minimal scrutiny—Scalia in Burdick. Crawford) (b) Criminal justice (on appeal: right to transcript and right to counsel) (c) Travel (interstate migration) (possible overlap with P&I and/or commerce clause) (3) Little 2 Losers (a) Education (i) Rodriguez (ii) Plyler (b) Welfare (Court drew the line at education and welfare.. seems to be implicit in our Constitutional system.. think of what comes out of DP in 14th Amendment: abortion. 51 . also civil?). There is simply some overlap between FR and fr in terms of being implicit in Constitution. it makes more sense to view the line as being drawn at benefit rights (since voting and criminal justice are also legislatively created rights). Junior fr. cf. free speech). marriage. liberty. Senior FR is based implicitly or explicitly in Constitution (think Bill of Rights and incorporation. The only strict scrutiny under fr + ep analysis now is travel. balancing test—Anderson. Court recognized this in the ‘70s and drew the line. and thus not FRs. appeal rights (at least criminal. sexual conduct. Fundamental Rights: Strict Scrutiny Redux Framework: (1) ep + fr = strict srutiny (a) every statute has some categorization (ep implications: rational basis default) (b) every statute impacts life/liberty/property (c) another kind of fundamental right / invidious discrimination (2) Big 3 Winners (a) Voting (strict scrutiny—note cases.) Under equal protection. didn’t say—Harper. Big 3 are more natural liberty type rights. However. Every law has potential of becoming fr + ep. esp. For this class. Rodriguez (1973): Means: ep classes are poor school districts and rich school districts.

(3) Individual rights (“you’re vote is being heard”. although the focus is probably on the PQD in particular. Sometimes Court uses balancing test (e. fr—voting Struck down poll tax here: no rational connection to purported possible ends.) (2) What is the standard of review? Default with fr + ep is strict scrutiny. there was no specific state law mandating equal representation. one-vote idea) vs. Harper (1966): Means: ep—rich and poor classes.Plus fr: education.. tied to 1st Amendment and political process participation). Washington was only a purpose test. courts apply strict. not strict. Court drew the line at education (Court not competent to run school system). (Example: water storage districts. unless racial discrimination). even FR. or balancing. Carr. Davis problem: purpose and/or effects. The broad issue is talked about in terms of justiciability. one-person. Ends: electing a government (evidently compelling interest) Court appears to use strict scrutiny here: “carefully and meticulously scrutinized” Court sounds like it is treating equality of votes as natural law right that was compromised by the Fed Constitutional Convention. major issues in the voting cases (things to think about): (1) What is the fr? And what is the ep? Identify. (This case signaled a practical end to the possibility of finding new fundamental rights in equal protection itself.) 1. Later cases on voting have added effects test. Strict scrutiny is close to absolute right.) Means: ep classes are “fairly treated” and “unfairly treated” (votes are worth less). intermediate. minimal. Sims (1964): (In Baker v. (7) Party-based? Race-based? Other (1st Amendment)? Different standard for partybased than for race-based (strict scrutiny for race-based). are absolute. where fraud was involved rather than simple apportionment). fr— voting (bedrock of political system. Minimal scrutiny here. Crawford.) Court has applied minimal scrutiny in upholding property qualifications for voting in special-purpose elections for limited-purpose government units whose functions primarily affect the property-qualified electors. here. only federal poll taxes. but it is not absolute right. however. (5) Political question doctrine (4 justices say this whole issue shouldn’t be in the courts. Voting The key. TN was not following its own law. This case has been interpreted later by the Court to use strict scrutiny.) However. Reynolds v. this “special 52 . group rights (apportionment cases re voting) (4) Washington v. (This fr and ep underlie all the cases even when they aren’t clearly discussed by the Court. (6) Are rights absolute? Court has said no rights. (Note: 24th Amendment didn’t eliminate state poll taxes.g. Even with voting.

Crawford (2008): 1% of the people don’t have the requisite ID cards to vote. (Easy for state to prove that its interests outweigh burdens on 1% of population. What about other contexts?) 2. (Implications of this case: Court doesn’t want to get into the kind of monitoring strict scrutiny would require if they applied strict scrutiny here to the fr + ep in this context. but they can easily get them. the procedural safeguards are just too minimal. Majority: this claim is justiciable. Balancing test (not strict scrutiny. but no sufficiently adverse effect. Gore (2000): Voting for President is fr (created by state legislature. since no judicially manageable standards. Court says plaintiffs may have won if they would have plead and made a case for (b). Distinguish from Harper: ends here are preventing voter fraud. but in order to know which standard of review to apply. or (b) interests of the 1% group.) Bush v. Bandemer (1986): Voting is fr. no uniform standard for counting votes. Voting: Gerrymanders Davis v. Here. Standard here is not actually strict scrutiny. standard is “arbitrary.) Held: here.) Emphasis shifted away from purpose (Washington focus/rule) to burdens. not in order to do balancing test. Rather. not decide whether there is invidious discrimination or whether fundamental right has been violated). and (2) there must also be an actual discriminatory effect. ep here is Democrats and Republicans.purpose” exemption does not apply where the voter eligibility line is drawn along racial/ethnic lines. even though we have fr + ep. (Note: Scalia looks at (a). Classes for ep here (stretch!): those whose votes are counted fairly and those whose votes are not. Some kind of heightened scrutiny here. (Note: the nature of the political process itself protects against abusive gerrymandering. he applies rational basis here. Vieth (2004): 53 . there was intent (easily met).” Rationale: different counties do things differently. (Shift to group rights instead of individual rights now. not by Constitution). or (c) individual’s voting rights? Court leaves open possibility of bringing as applied challenges under (c). Rule (2 elements): there must be (1) intentional discrimination against identifiable political group. Will we balance the state’s interest against (a) all voters’ interests. there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. This is unequal.) O’Connor: not justiciable. but they didn’t. Defers to legislative judgment of state (unusual for balancing test). When a state court orders a statewide remedy (recount here).

If suspect class (race or nationality). Plaintiffs argued violation of 1st Amendment right (FR). minimal. gerrymandering may not work very well. Right of parents to raise their children. this won’t violate one-person. (Plurality was ready to overrule Bandemer and declare gerrymanders a non-justiciable political question. *With race-based discrimination (Voting Rights Act). (2) Discriminatory effect: Court didn’t buy this either. For discriminatory effect: people switch parties. Exam (FR and EP essay): Use Lawrence (O’Connor and Scalia) and Romer for homosexual issues. Race-based districting is clearly a strict scrutiny standard of review. one-vote rule. Shaw v. Plaintiffs’ 2nd theory of gerrymandering: mid-decade redistricting violates 1-person. 54 . *With party-based districting. because of the legal fiction that lines drawn after a census are okay. it is stricken if race was the predominant basis. Casey) *Talk about generals down to particulars with these issues/cases. Roe. It is okay to take race into consideration when drawing district lines. intermediate. (1) Intent: they argued sole partisan motivation. 1vote rule.Plurality: not justiciable. unless you can then prove compelling state interest. *With race-based districting. Court didn’t buy this argument. For discriminatory intent: can’t figure out “predominant” intent of legislature. it is only stricken if the sole motivation was partisanship. Reno (1993): Redistricting legislation that is so bizarre on its face that it is unexplainable on grounds other than race demands the same close scrutiny that the Court gives other state laws that classify citizens by race. If anything else (esp economic rights). since the representation was more proportional to the voters (Dem/Rep ratio) after the redistricting than it was before. Kennedy (concurring): this case is not justiciable. Right to marriage cases. but you can’t depart from traditional contiguousness with race-based districting. since no judicially manageable standards for gerrymandering claims. but voting cases might be justiciable.) Perry (2006): Majority assumed without analysis that this was justiciable. based on evidence of mid-decade redistricting. but there might be one. we just haven’t figured out a good standard yet. to use for the next 10 yrs until the next census. Plaintiffs also argued equal protection. but court didn’t buy this argument. Right to privacy cases (Griswold. Identify the 2 classes. If gender. strict scrutiny. but not necessary. Maybe new standard will focus on discriminating against people because of particular beliefs (1st Amendment). the Court will strike it down on either intent or effect.

Nexus: strict—“necessary.” Note: court has jazzed up versions of minimal scrutiny with rational relationship.” or “most narrowly tailored” means. instead of merely accepting conceivable nexus.” (no other way to achieve the end) “least restrictive. 55 . Sometimes. maybe Court will hold state to what is on the record. intermediate—“substantial relationship”. Court wants to see something on the record. minimal—“rational relationship.

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