Constitutional Law

JUDICIAL POWER

A. Authority of Judicial Review

Article 3 of the Constitution

Art. 3 §1
“the judicial power of the united states shall be vested in one supreme court and in such inferior courts as
congress shall from time ordain and establish”
Article 3 §2
Original Jurisdiction
the supreme court has original jurisdiction to review cases involving
(i) Ambassadors; (ii) Public ministers and counsels; (iii) those in which a state shall be a party
- Supreme court may give concurrent jurisdiction to lower federal courts, EXCEPT in cases
where one state sues another state - the Supreme Court will hold original and exclusive
jurisdiction
Appellate Jurisdiction
Almost all cases go to the Supreme Court by writ of certiorari — if four justices vote to hear the case, the court will
hear the case.
Means
1. Certiorari — Most cases petition a writ of C. Only take the case if at least 4 justices
vote to accept (i.e. discretionary review)
2. Direct Appeal —SCOTUS must hear by direct appeal only a small number of cases-
those that come from a decision on injunction relief issued by a special three-judge
court panel. Although these panels (appeals) Wes once fairly common, they are now
limited to cases bought under a few specific statutes
a. Injunction Relief: do something to refrain from doing
b. Declaratory Relief: declaration of the parties legal rights and/or obligated in
particular situation
c. Enjoin: require someone to do, or not do, a specific act of cause of conduct
Limitations
1. Congress has the power to limit the SCOTUS appellate jurisdiction (Ex parte v.
McCardle). There are constraints on this power, bc to deny all SCOTUS jurisdiction
over certain types of cases would undermine the constitutional system of C & B
2. Although Congress may eliminate Supreme Court review of certain cases within
the federal judicial power, it must permit jurisdiction to remain in some lower
federal court.
Adequate & Independent state ground
1. A final state Judgment and rests on a quick Independence state grounds may not be
with you for the SCOTUS (Or would be advisory). The state and the grounds most fully
resolve the matter (be adequate) and was not incorporate a federal standard by
reference (be independent). If I stay or chooses to rely on federal presidents, the
court can avoid federal review by making a plane statement and it’s judgment or
opinion that the federal cases are being used only for the purpose of guidance and
did not compel the courts judgement. When it is not clear whether the state courts
decision rests on state or federal law, the SCOTUS may hear the case, decide the
federal issue, and remand the state court for resolution of any questions of state law.
(Michigan v. Long)
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JUDICIAL REVIEW
– The Supreme Court has the power (though not enumerated in the text of the constitution) to review an act of
another branch of the federal government and to declare that act unconstitutional
– The supreme court has the final authority to interpret the constitution and to declare acts of congress
unconstitutional
– Federal courts may conduct judicial review if they have jurisdiction or authority over a justiciable case.

Marbury v. Madison (1803)

(a) the constitution is paramount law
(b) the supreme court has the final say in interpreting the constitution
Art. 4 §2
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … Shall be the
supreme Law of the Land …”
Facts: President Adams was a lame duck when a democratic Congress was being replaced by a republican
Congress. Two acts of Congress created new judgeships. Adams had the Secretary of State, Marshall, sign the
new judges commissions, but the commissions were not delivered before Jefferson took office. One judge,
Marbury, sued on the writ of mandamus to force President to deliver the commission. Marshall did not recuse
himself despite his involvement.
Holding: Madison violated Marbury’s right to magistrate commission, but SCOTUS has no power to grant him
mandamus because Congress’s 1789 Act empowering it with original jurisdiction over mandamus is
unconstitutional—Art. III grants SCOTUS original jurisdiction only over express case types, so SCOTUS has only
appellate jurisdiction over the remainder..
Main Takeaway: Supremacy Clause (Art. 4 §2) — The Supremacy Clause and larger structure of the Constitution
imply that federal courts have power to review the constitutionality of federal legislative and executive actions
and, if those actions violate the Constitution, to declare them void.
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SUPREME COURT REVIEW OF STATE COURTS

Martin v. Hunter’s Lessee:

Facts: Martin claimed title to land in Virginia on inheritance from a British citizen. The United States and England
had entered treaties protecting the rts. of British citizens who owned land. Hunter claimed that Virginia had taken
the land before the enactment of the treaties, so Martin had no claim to the property. Virginia Ct. of Appeals
ruled in favor of Hunter and for the state’s authority to take the land. The Supreme Ct. reversed.
Holding: Federal courts may hear appeals brought from state court decisions

Cohens v. Virginia:
Facts: The state ct. is prosecuting the state of Virginia for selling lottery tickets. Their defense was that a federal
statute allows the sale. This went from state ct. to federal ct. and the lottery sellers argue that the federal law
trumps the state law. The ct. held that the federal law does not effect anything outside of Washington D.C.
Holding: If you have a constitutional defense to a state criminal claim, then you can bring it in federal ct.
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COURT MODES OF INTERPRETATION

D.C. v. Heller (2008) – Gun Control/ Home Firearm Case

Facts: Officer in DC applied to get a registration certificate for a handgun he wished to keep at home. Heller was
denied. DC prohibits possession of handguns & no person can carry w/o license…chief of police issues 1-yr license.
Guns 2 home need to be unloaded or w/ safety (long guns & license). Heller filed lawsuit in Fed court claiming 2 nd
Amend violation.

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Holding: Affirming invalidation of D.C. Code gun control provisions, holding 2nd am. protects individual right to
possess / use firearms for traditionally lawful purposes (e.g., self-defense in own home), not merely if affiliated
with a state-regulated militia.
Main Takeaway: The Court employs a variety of “interpretive” approaches in order to determine the applied
meaning of constitutional provisions (see: CRS report supplementary reading):
•Usually, the Court stresses its past precedent in doing so.
 Usually, the Court Stresses its past precedent in doing so.
 But for novel legal issues or when a new majority wants to overrule that precedent, it often gets
complicated.
 While all Justices ground their arguments for construing the provision in both its text (i.e., words, syntax)
and the larger structure of the constitution.
 However, on close / controversial questions the justices have increasingly splintered into positions based
in different “modes” or “methods” (e.g., originalist textualism, originalist public meaning, living
constitutionalism, etc.).
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B. Limits on the Federal Judicial Power

 Constitution should be interpreted
 Court justified constitutional rights only if they are clearly stated in the text
Originalism — “judges” deciding constitutional issues should confine themselves to enforcing norms that area
states or clearly implicit in the constitution or evolve by amendments.
Non-originalists — constitution evolves by interpretation and not only by amendment. (Ex. 14th Amend)

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CONGRESS’S POWER TO RESTRICT FEDERAL COURT JURISDICTION

Art.3 §3
The SCOTUS “shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.”

Ex parte McCardle (1868)

Facts: William McCardle arrested, newspaper editor, wrote critique on post Civil War reconstruction. Filed a
petition for writ of habeas corpus (anyone held in violation of constitution). 1867 statute permitted federal court
grants. Or only hears habeas corpus in federal court. Cleaned imprisonment violated Bill of Rights one, five and
six. Military reconstruction act unconstitutional. While case was happening Congress passed a repeal of part 1867
statute… Johnson vetoed…Congress vetoed
Holding: Dismissing appeal of state circuit court’s denial of habeus corpus petition of D-neo-Confederate
newspapermen, holding law passed by Congress immediately after SCOTUS oral argument nonetheless a valid
exercise of Congress’s Exceptions Clause power to limit SCOTUS’s appellate jurisdiction, depriving SCOTUS of
deciding merits of McArdle’s due process challenge to lower court’s denial of habeas relief.
Main Takeaway: The Exceptions Clause empowers Congress to recognize “exceptions” to SCOTUS’ appellate
jurisdiction. But post-McArdle the Court has rejected some attempts by Congress to limit its appellate jurisdiction
based on separation-of-powers principles.

US v. Klein (1871) (Congressional limits)

Facts: Post-Civil War, individuals who got their property fees did get it back and clean they did not support the
confederacy. They would be granted a pardon by the president and get properly restored. Congress adopted a
statute stating pardon was in admissible and people could not get property restored. Also the admission made
them in eligible (repealed 1863 statute 1867). Klein loss property because Wilson excepted pardon (who he got
land from).

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Holding: Affirms federal Court of Claims judgement reimbursing pardoned ex-Confederate’s estate for proceeds
from sale of cotton confiscated during Civil War and invalidating the 1870 statute, reasoning Congress exceeded
its Exceptions Clause power by:
1. Encroaching on judicial power by prescribing case outcomes for pending cases; and
2. Encroaching on the President’s pardon power.
Main Takeaway: Congress cannot exercise its Exception Clause power in a way that strips the judiciary of its
constitutional role or actively participate in violating the constitution (e.g., by nullifying the effects of a
presidential pardon).
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JUSTICIABILITY DOCTRINES
Art. 3 §2. Cl. 1
“The judicial Power shall extend to all Cases, in Law and Equity, arising under the Constitution, the Laws of the
United States, and Treaties … [and] to Controversies between … [states, citizens of different state, etc].”

 When Review appropriate

 Separates matters that are premature for review because injury is speculative and never may occur

Federal courts must refuse to hear a case if it is not justiciable (appropriate for resolution)
1. The Case-or-Controversy Requirement
a. Standing
i. Constitutional Standing
ii. Prudential Standing

1. Advisory Opinions
2. Standing
3. Ripeness
4. Mootness
5. Political Question Doctrine

Declaratory Judgements: The courts are not prohibited from issuing the declaratory judgment, however, that
determine the legal affect the proposed conduct without awarding damages or injunctive relief. The challenge
action must pools are real and immediate danger to a party’s interest for there to be an actual (as opposed to a
hypothetical one). Permit people to avoid the choice and obtain pre-enforcement review of statutes and
regulations.

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ADVISORY OPINIONS
 A federal court may not issue an advisory opinion (i.e. an abstract opinion on the validity of a law
rendered in the absence of a concrete dispute)
 Federal courts may not render advisory opinions on the basis of an abstract for a hypothetical dispute. An
actual case or controversy must exist.

Dear George” Letter

 Refusing President Washington’s request to advise re: U.S. treaty compliance as it would “extra-judicially”
decide legal questions
Hayburn’s Case (1792)
 Rejecting Congressional law as violating SoP (Separation of Powers) that permitted veterans’ pension
claim filings in federal circuit court but subordinated judges to issuing “recommendation” reviewable by
executive officials
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  The duty of making recommendations regarding pensions was not of a “judicial nature”

Plait v. Spendthrift Farm, Inc.

Holding: Invalidating § 27A(b) as unconstitutional, holding that--while Congress may prescribe the rule in pending
cases by amending applicable law before final judgment is issued by SCOTUS—§ 27A(b) violates SoP by requiring
Art. III courts to reopen final judgments of dismissal rendered before the law’s enactment, entered pursuant to
SCOTUS’ 1991 decision.
Main Takeaway: The Article III case or controversy requirement prohibits federal courts from deciding abstract or
hypothetical claims—claims that EITHER
(1) involves no actual dispute between adverse litigants OR
(2) in which a federal court decision would have little to no effect.

STANDING
 Article 3, section 2 to restricts federal judicial power to “cases” and “controversy”. The federal court
cannot decide a case unless the plaintiff has standing—on concrete interest in the outcome—to bring it.
Congress cannot statutorily illuminate the constitutional standing requirements simply by allowing citizen
suits, Lujan v. Defenders of Wildlife (1992), but it can create new interested, the injury to which may
establish to which may establish standing, Mass. v. EPA (2007).
 In addition to the Art3. Requirements the federal judiciary has also establish a “prudential standing”
requirement i.e. that a plaintiff is a proper party to invoke a judicial resolution of the dispute. Meeting this
requirement depends in large part on whether the cutest grievance comes within the “zone of interest”
protected or regulated by the constitutional guarantees or statue under consideration.
 Plaintiff must demonstrate that the injury occurred or imminently will occur

Mass v. EPA (2007)

A plaintiff has standing if he demonstrates a concrete injury that is both fairly traceable to the defendant and
redressable by judicial relief
Facts: carbon dioxide and green house gases—EPA avoided its responsibilities
Holding: MA has standing to challenge EPA’s refusal to regulate the GHG emissions of new MVs, because:
1. Injury-in-Fact: Climate change threatens persons and property of MA’s citizens (e.g., rising sea levels);
2. Causation: U.S. MV-generated GHGs make “meaningful contribution” to warming; AND
3. Redressability: It’s sufficient that ruling EPA has statutory duty to limit domestic GHG emissions would
slow—even if not ultimately prevent—planet wide warming.
Main Takeaway: To have Art. III standing:
1 .P must have suffered, or imminently will suffer, a concrete and particularized injury;
2. P’s injury caused by (i.e., fairly traceable to) D’s conduct; AND
3. Favorable decision for P substantially likely to redress P’s injury.

General Rule — To have standing

1. Injury in fact;
2. Causation (the injury must be caused by the D’s violation of a constitution or other federal right); and
3. Redressability (relief requested must prevent or redress the injury)

*When answering questions about standing, focus on whether the plaintiff is legally qualified to press a claim,
regardless of merit.*

1. Injury: an injury that gives rise to standing to sue; must be both concrete in particularized
a. Individualized injury: When a plaintiff has been directly injured “it does not matter how many
people” were also injured when a “harm is concrete through widely shared,” there is a standing
Mass v. EPA. However, even though an injury may satisfy the injury-in-fact standard the court

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 may refuse to adjudicate a claim by the application of the principles of prudence. Under this
Prudential-standing principal, a jury that is shared by all or a large class of citizens is not
sufficiently generalize to give the plaintive standing.
b. Type of Injury: ??
c. Future Injury: While the threat of future injury can suffice, it cannot be merely hypothetical or
conjectural, but must be actual an immanent. When a future injury is alleged, damages cannot be
obtained, but an injunction can be sought.

City of LA v. Lyons (1983)

 No Art. III standing for injunctive relief challenging LAPD policy where P previously subjected to chokehold
but statistically unlikely to be chokeholded in the near future
Lujan v. Defenders of Wildlife (1992)
 No Art. III standing for ESA challenge to Dept. of Interior rule exempting foreign development projects
from compliance where P members had only vague intent to return and the relief—“consultation”—
unlikely to remed
Clapper v. Amnesty Int’l. USA (2013)
 No Art. III standing for FISA challenge holding claimed threat of surveillance based only on hypothetical
and speculative future harm.

“Prudential standing”
Even if a P satisfies the Art3 standing test, P’s case a May be dismissed under “prudential” Standing doctrine,
unless they satisfy an applicable exception or Congress expressly overrides. Congress by statute can overrule the
prudential requirements bc they are not from the Constitution…

d. Third—party standing: A litigant generally has no standing to bring a lawsuit based on legal claims
of a third-party. There are a few notable exceptions to this rule however:
I. If the third parties were exposed difficulty or unable to assert their own rights, such as a
Caucasian defendant raising equal protection and due process objections to
discrimination against African-American people
II. If there is a special relationship between the plaintiff and the third parties, such as an
employer asserting the rights of its employees, and doctors hurting the rights of its
patients in challenging an abortion ruling Singleton v. Wulff . . .
III. Is the plaintive suffered an injury, and the injury adversely affects the plaintiffs
relationship with the third-party, the plaintiff may assert the third parties right, Craig v.
Boren.

Singleton v. Wulff (1976)

Holding: P physicians providing non-medically-indicated abortions both:
1. have Art. III standing to challenge Missouri statute excluding such abortions from Medicaid
reimbursement they would otherwise receive; and
2. satisfy exception to prohibition on 3rd party standing because of physician-patient relationship and stigma
and/or mootness obstacles to patient bringing challenge.
Main Takeaway: The prudential limitation on “3rd party standing” provides that, ordinarily, a P cannot litigate the
claims of a 3rd party who is not themselves party to the suit. But SCOTUS has recognized an exception based on:
(a) closeness of relationship between P and the injured 3rd party; AND
(b) likelihood the 3rd party can sue on own behalf.

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Craig v. Boren
 Oklahoma permitted women to buy 3.2% beer at 18 men 21. Bartender Challenge law on behalf of male
customers because he suffered economic loss from loss of filling injury Requirement. Court allowed by
tender to assert rights of his customers.
Gilmore v. Utah
 Gilmore was sentenced to death and chose not to pursue habeas corpus. Mother soon for a stay of
execution on his behalf. The court refused to hear the mothers claim bc son waived rights
Elk Grove Unified School Dist v. Newdow
 Father like standing to Sue on behalf of his daughters because he didn’t have custody and mom would not
Sue. Case was about “under God” in the Pledge of Allegiance
e. Generalized grievance: refers to a class of actions that dose not have standing because it does not
represent a controversy for the particular plaintiff but is something that affects the general public.
i. Prohibition against generalized grievances prevents individual if only injury as a citizen or
taxpayer is with having the government follow the law
US v. Richardson
Holding: Holding P lacks standing in Statement and Account Clause challenge to CIA Act’s financial reporting
exemption due to prudential limit on taxpayer / citizen standing involving generalized grievances.
Main Takeaway: The prudential prohibition on “generalized grievances” denies standing to a P whose interest in
the suit is one shared by “all or a large class of” citizens / taxpayers in government complying with the law.
Exception—Establishment Clause Challenge
There is an exception for a taxpayer suit challenging a specific legislation appropriation made under the taxing and
spending powers for violation of the Establishment Clause. Flast v. Cohen
* The suit has to be about taxing and spending. (Only time one can use their tax payer status)

Flast v. Cohen
Holding: Holding P taxpayers had standing in Establishment and Free Exercise Clause challenge to federal
expenditures paying for instruction and materials in religious schools.
Main Takeaway: The only exception SCOTUS has recognized to the prudential prohibition on generalized taxpayer
standing is Flast. Specifically, Flast permits P taxpayer standing to bring Establishment Clause-based challenges to
legislative expenditures that assist (or disadvantage) religious institutions.

2. Causation: The plaintiff my show that the injury was fairly traceable to the challenge actions—that is, that
the defendants conduct caused the injury
3. Redressability: It must be likely (as opposed to speculative) that a favorable court decision will request a
discrete injury suffered by the plaintiff

Linda R.S v. Richard D

 Mother sued father for child support. Mother challenged Texas policy for not prosecuting father for
illegitimate child. SCOTUS dismissed lack of standing. Injunction commanding state would not ensure
mother would receive additional child support. Marshall stated if ruling was granted it would only jail the
father no payment or redressability.
Warth v. Seldin
 Plaintiff challenged zoning practice in New York. Rochester residents who wanted to live in Penfield could
not because of zoning that prevented construction of multi family dwellings and low income housing.
Plaintiff lack of standing because could not demonstrate appropriate housing would be constructed
without zoning ordinances. Low income could not afford to live there despite lack of zonings ordinances.
Simon v. Eastern Kentucky welfare rights organization
 Federal law requires hospitals provide free care to indigents to get tax except status. Plaintiff was denied
needed medical care. Challenged the IRS revision limiting amount of free medical care the hospitals
receiving tax exempt were required to provide. Under new provisions only emergency medical treatment
of indigents was required. Complain suggested no substantial likelihood victory would result in treatment
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Duke Power Co. v. Caroline Environmental Study Group Inc.
 Price-Anderson act limits liability of utility companies in event of a nuclear reactor accident. Claim violated
due process clause. Defendant moved to dismiss case stating injury was speculative. SCOTUS found
standing because nuclear reactor in area subjected to injuries, exposure to radiation, thermal ... Price-
Anderson act was constitutional

RIPENESS
Timelessness — An action Is bought too soon (“unripe”) or too late (“moot”) will not be heard

 A plaintiff’s claim must be ripe for adjudication (i.e. present an actual controversy and involve either an
injury or a threat of real and immediate injury)
 “Ripeness” refers to the readiness of a case or litigation. The federal court will not consider a clean before
it has fully developed; to do so would be premature, and any potential injury would be speculative.
 For a case to be “ripe” for litigation, the plaintiff must have experienced a real injury (or eminent threat
thereof). Hence, if an ambiguous law has a long history of non-enforcement, a case challenging that law
lack ripeness. Poe v. Ullman (1961)
 Harm has occurred or imminently will occur

Poe v. Ullman (1961)

Facts: Doctor bought a suit on behalf of patients, claiming he is unable to help them because of a statute that
prohibits contraceptive use.
Holding: Dismissing 14th am. due process challenge by spouses and physician to 1879 CT statute prohibiting
contraception use, holding claim not ripe for adjudication despite state AG’s threat to enforce, given decades of
non-enforcement.
Main Takeaway: The ripeness doctrine precludes Art. III courts from adjudicating claims prematurely—speculative
and hypothetical injuries are not “ripe” for court action and therefore non-justiciable. Put another away, to reach
the merits, P must demonstrate a harm has already occurred or imminently will occur.
Rule: For ripeness, the injury must be immediate and likely to occur without a court intervention. (Certain)

Abbott Laboratories v. Gardner (1967)

Facts: Statute ordering companies to put the established name on packaging of prescription drugs.
Holding: Finding pre-enforcement challenge by P prescription drug manufacturers to FDA rule requiring labels,
advertisements, etc. to designate both the established and trade name of drugs “ripe” for adjudication, because
in absence of determination whether or not Secretary exceeded statutory authority, P would be forced to either
make costly changes to materials or risk prosecution / fines
Main Takeaway: A pre-enforcement challenge is “ripe” for review where BOTH (a) the issue is fit for judicial
decision (e.g., question of law only) AND (b) withholding court review would work substantial hardship on Ps.
Rule: To determine ripeness the court miss evaluate the thickness of the issues for judicial decision in the
hardship to the parties of withholding court consideration.

Reg. Rail Reorg. Act Cases (1974)

✔️
 RR corps. challenge to statute establishing process of forced conveyance of RR property to Conrail ripe
because—despite slow process of implementation—the statute made the conveyances “inevitable”

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✔️Lake Carriers Assn. v. MacMullan (1972)
 boatowners’ challenge to state law prohibiting boat discharge of sewage is ripe despite officials’ promised
delay in enforcement during years-long construction project, since enforcement was inevitable and
therefore boatowners must make costly installations in preparation

✔️Susan B. Anthony List v. Driehaus (2014)

 holding challenge to Ohio false campaign statement statute was ripe, because P adduced credible threat
of subsequent, future enforcement

❌United Pub.. Workers v. Mitchell (1947)

 holding 1st am. challenge by fed EEs to Hatch Act not ripe, because the political activities EEs testified to
were broad and hypothetical
 Advisory opinion

MOOTNESS
 A case has become moot if further legal proceedings would have no effect; that is, if there is no longer a
controversy. A live controversy must exist at each stage of review, not merely when the complaint is
filed, in order for a case to be viable at that stage.
 Federal courts will dismiss a case for mootness if a favorable decision will no longer have an effect on the
plaintiff
 Life controversy at all stages
 Anything happens to end the suit, cases dismissed as much (defendant dies settlement repeal/expired)
 No longer a controversy
 Mootness less strict than standing

Exception — “Wrongs capable of repetition but evading review”

 Some injuries are short and are over before proceeding
 If injury is likely to reoccur in the future to plaintiff again
1. Repetition-Evasion
2. Voluntary Cessation
3. Class Actions
4. Collateral Consequences
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Exception 1: Capable of repetition, yet evading review
A claim will not be dismissed as moot where the same type of injury P alleged was caused by D is likely to repeat
against similarly situated Ps who would be similarly mooted.

Moore v. Ogilvie (1969)

 refusing to dismiss ID candidates’ 14th am. challenge to state ballot signatures law despite election’s end,
given cyclical nature of elections
Roe v. Wade (1973)
 refusing to dismiss case as moot, reasoning appellate review of pregnancy-related litigation would
otherwise be impossible given regular “266-day” nature of pregnancy
DeFunis v. Odegaard (1974)
 dismissing P law student’s affirmative action suit as moot due to the school’s provisional acceptance of P,
who was previously rejected, and P’s imminent graduation. Was allowed to graduate so case was no
longer active.

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Exception 2: Voluntary Cessation

Case cannot be moved if defendant voluntarily ceases the allegedly improper behavior but free to return to it at
any time (for it to be moved must be no chance of resuming offending behavior)

Friends of Earth v. Laidlaw Environmental Services (2000)

Holding: Refusing to dismiss FoE’s suit against D industrial polluter as moot, because though D had temporarily
ceased polluting / closed the relevant factory, D retained its operating license and could conduct similar
operations elsewhere if not deterred by the penalties sought.
Main Takeaway: A claim will generally NOT be dismissed as moot when P loses their stake in the suit due to D’s
voluntary cessation of the injury complained-of. Unless the D proves there is no “reasonable likelihood” it will /
can resume the complained-of activity after dismissal, the claim remains justiciable.
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Exception 3: Class action suits
Can continue even if plaintiff claims are rendered mood, as long as the members of the class action suit have a life
controversy the case can continue
U.S. Parole Commission v. Geraghty (1980)
Holding: Geraghty’s release while case was on appeal did not moot challenge to U.S. Parole guidelines despite the
district court’s denial of class certification, because Geraghty had continuing “stake” as proposed class
representative.
Main Takeaway: A class action-based claim will NOT be dismissed as moot when the certified (or proposed) class
representative loses their individual stake in the substantive claim motivating the suit, so long as some class
members retain their ongoing stake.
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POLITICAL QUESTION DOCTRINE
 Federal court will not rule on the matter in controversy if the matter is a political question to be resolved
by one or both of the other two branches of government. Baker v. Carr
 Allegations of constitutional violations that the court will not adjudicate
 Although the allegation are based on constitutional grounds its rules nontraditional due to it being a
political question
 Separation of power grounds
 Allocates decisions to the branches of government that have superior expertise in particular areas ex:
foreign policy
 A political question not sure subject to run judicial review arises:
o The constitution has a sign decision making on this subject to a different branch of the
government; or
o The matter is inherently not one of the judiciary can decide.

Applied in Addition to Election Cases:

 Congressional membership
 Foreign Policy
 Impeachment process
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Non-Justiciability Political Question Test
1. Textually demonstrable (evident) constitutional commitment of issue to coordinate political department;
2. Lack of judicially manageable standards for resolution;
3. Impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;

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 4. Impossibility of a court's undertaking independent resolution without expressing lack of the respect due
coordinate branches of government;
5. Unusual need for unquestioning adherence to a political decision already made;
6. Potentiality of embarrassment from multifarious pronouncements
Baker v. Carr (1962) — Redistricting Case
Holding: Reversing and remanding for trial on merits of 14th am. EPC challenge to TN’s inaction on legislative
redistricting, holding that—unlike the Guaranty Clause (guarantee each state protection) cases deemed non-
justiciable PQs—the EPC challenge is w/in the Court’s competence and capable of judicially manageable
standards, because it mainly implicates the legal question of equal protection / discrimination and only indirectly
reach the non-legal, political question of state governmental organization associated with Guaranty Clause
precedents.
Main Takeaway: A constitutional dispute presents a non-justiciable “political”—as opposed to legal—question.
The six-factor Baker v. Carr test identifies the separation-of-powers, functionalist, and prudential principles that
courts consider when deciding if a dispute constitutes a non-justiciable political question.
Rule: A challenge to malapportionment of state legislatures brought under the Equal Protection Clause is not a
political question and is thus justiciable

Rucho v. Common Cause (2019) — Partisan Gerrymandering Case

Holding: Holding EPC challenges to partisan gerrymandering—unlike EPC claims based on one-person-one-vote or
racially discriminatory gerrymandering—present non-justiciable PQ, because:
1. The Constitution demonstrably commits electoral districting power to state legislature and checks upon
that power to the U.S. Congress; and
2. No judicially manageable standards for determining either when degree of partisanship in districting
becomes unconstitutional or what remedies are appropriate to its correction.
3. The Elections Clause demonstrably commits to state legislatures the power to prescribe the “Times,
Places, and Manner” of Congressional elections, and to Congress to “make or alter” such regulations; AND
4. Rejecting compactness, contiguity, traditional boundaries, and efficiency gap approaches, holding no
judicially manageable standards for determining either when degree of partisanship in districting
becomes unconstitutional / what legal remedies are appropriate to its correction.
Main Takeaway: While the PQ doctrine is often criticized as unclear / unsettled, grouping PQ precedents by issue
type reveals certain principles unique to particular areas (e.g., districting, impeachment, foreign policy).

 “[B]oth cracking and packing produce votes that are ‘wasted’ in the sense that they do not contribute
to a candidate’s victory.”
o “In the case of cracking, all votes cast for the losing candidate are ‘wasted.’”
o “In the case of packing, all votes cast for the winning candidate, above the 50% (plus one)
threshold needed for victory, are ‘wasted.’”
 “The efficiency gap is calculated by taking one party’s total wasted votes in an election, subtracting
the other party’s total wasted votes, and dividing by the total number of votes cast.”
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Congressional Self-Governance

“No Person shall be a Representative who shall not have attained to the Age of twenty five years, and been seven
years a Citizen of the Unites States, and who shall not, when elected, be an Inhabitant of that State in which he
shall be chosen.” Art. 1, § 2, cl. 2

“Each house shall be the Judge of the Elections, Returns and Qualifications of its own members ...” Art. 1, § 5, cl. 1

“Each House may determine the Rules of its Proceedings, punish its members for disorderly Behavior, and, with the
Concurrence of two thirds, expel a Member.” Art. 1 § 5, cl. 2

12
Powell v. McCormack (1969) — Congressional membership case
 House of Representatives could not refuse to seat a scandal-plagued member who satisfied constitutional
criteria for service
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Foreign Policy

Goldwater v. Carter (1979) — Treaty Termination Case

Holding: Without hearing oral argument, vacating and remanding for dismissal, holding Sen. Goldwater’s
challenge to President Carter’s unilateral withdrawal of Taiwan defense treaty without two-third-vote Senate
approval is non-justiciable but disagreeing on whether it is unripe or a political question.
Takeaway: The constitutionality of a unilateral action by the president to rescind a treaty without Senate
involvement is a non-justiciable political question.
Rule: The constitutionality of a unilateral action by the president to rescind a treaty without Senate involvement is
a non-justiciable political question.
Zivitifsky v. Clinton (2012) —US Passport Case
Holding: Reversing and remanding for decision on the merits, holding P’s suit to force U.S. Secretary of State to
permit listing Israel on his U.S. passport as his place of birth is suit to vindicate statutory right and presents a legal,
rather than political, question as to whether Congress encroached upon Presidential foreign affairs powers.
Main Takeaway: An action to vindicate a statutory right that merely requires a determination of the statute’s
constitutionality presents a justiciable legal, and NOT a political, question.
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Impeachment & Removal

Nixon v. US (1993) — Federal Judge Impeachment Case

Holding: Dismissing ex-federal judge’s challenge to Senate impeachment procedure that produced his conviction
as non-justiciable political question, holding:
1. Art. I, § 3, cl. 6 (“The Senate shall have the sole Power to try all Impeachments”) expressly commits
exclusive power to legislature;
2. Judicial review inappropriate for SoP reasons as impeachment is legislature’s check on judicial branch.
3. Prudential concerns including preventing finality of impeachment decision / biasing later criminal + civil
trial.
Main Takeaway: Challenges to the impeachment and removal process constitute non-justiciable political
questions.
Rule: The constitutionality of Senate impeachment proceedings is a non-justiciable political question incapable of
judicial adjudication.
Extra: The framers’ use of the word “sole” is significant in that it is a textually-demonstrable commitment of
complete discretion to the Senate to conduct impeachment proceedings and to determine the rules by which
those proceedings are conducted. Allowing participation of the judicial branch in legislative proceedings would
upset the necessary system of checks and balances. The constitutionality of Senate impeachment proceedings is a
non-justiciable political question incapable of judicial adjudication.
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Impeachment:
 Ultimate check on the president’s power Art II Sec 4
 “The president, vice president, and all civil officers of the US shall be removed from office on impeachment
or conviction of, treason, bribery, or other high crimes and misdemeanors.” Art. III Sec 3
 Congress has the authority to determine impeachable Offenses
o “High crimes and misdemeanors” — limited to ask that violate the criminal law and that can be
deemed a serious threat to society
o No direct answer to procedure
_____________________________________________________________________________________________
13
 THE FEDERAL LEGISLATIVE POWER
Just as the federal courts are courts of limited jurisdiction, the powers of Congress are not plenary or exclusive. As
the 10th amendment makes clear, the federal government may exercise only those powers specifically
enumerated by the constitution; that is state governments and the people, not the national government, that
retain any powers not mentioned in the federal charter. Any action by the federal government must be supported
by a source of power originating in the constitution.

**Congressman amend or repeal existing law and direct that the change be applied in all related pending actions,
I.E., those in which a federal judgment has not been entered. If an exam question involves application of new
legislation, pay attention to the status of any case to which it is to beapplied. **

**Congress has no general police powers to legislate for the health, safety, welfare, or morals of citizens. The
validity of a federal statute in an exam question may not be justified based on” federal police power.”**
_____________________________________________________________________________________________
Spending Power:
“The Congress shall have Power ... To Lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United States ...” Art. 1, § 8

Commerce Clause:
“To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” Art. 1, § 8

Necessary and Proper Clause:

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all
other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer
thereof.” Art. 1, § 8
*enables congress to make all laws that may be necessary and proper to execute its other enumerated powers

10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to States, are reserved to
the States respectively, or to the people.”
_____________________________________________________________________________________________
McCulloch v. Maryland (1819)
Facts: Maryland taxed the national bank operating in its borders.
Holding: Yes, under the Necessary and Proper Clause; and no, under the Supremacy Clause.
Reasons:
a) Necessary and Proper Clause—Maryland argued there was no enumerated power to create a bank;
however the Necessary and Proper Clause gives Congress the power to pass laws necessary for carrying
powers that it does have. The gov. argued that it is an expansion of power b/c of where it is located in the
Constitution (Article I Sec. 8); and therefore, the bank is a means to effectuate powers.
b) Supremacy Clause—The power to tax is the power to destroy, weaken, or limit. A state may not tax a
federal entity b/c taxing is an exercise of sovereignty and a state may not exercise sovereignty over the
federal gov. “Supreme law of the land”
c) The Rational Basis Test (a means ends analysis)—Let the end be legitimate and the means have to be
appropriate and reasonably related to the end; then the law is constitutional (basic law of judicial review).
14
 Congress has to have the power in the first place from a constitutional source. (Ex: Congress has the
power to lay and collect taxes so the necessary and proper powers give Congress a way to do this thru the
bank)

 The Constitution specifically delegates to Congress the power to tax and spend for the general welfare,
and to make such other laws as it deems necessary and proper to carry out this enumerated power.
Additionally, federal laws are supreme, and states may not make laws that interfere with the federal
government’s exercise of its constitutional powers.
 certain federal powers, which give Congress the discretion and power to choose and enact the means to
perform the duties imposed upon it, are to be implied from the necessary and proper clause
 the federal constitution and the laws made pursuant to it are supreme and control the constitutions and
laws of the states.
_____________________________________________________________________________________________

3 benefits to protecting the state government:

1. Decreasing the likelihood of federal tyranny
2. Enhancing democratic rule by providing government that is closer to the people
3. Allowing states to be laboratories for new ideas

ENUMERATED POWERS
those powers expressly delegated by the united states constitution to a particular branch

POLICE POWER (state power)

The power of a government to impose restrictions on the rights of private persons, so long as those restrictions
are reasonably related to the promotion and protection of public health, safety, morals, and the general welfare.

15
TAXING AND SPENDING POWER
Spending Power:
“The Congress shall have Power ... To Lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United States ...” Art. 1, § 8

FEDERALISM
A scheme of government whereby the power to govern is divided between the central and localized governments
_____________________________________________________________________________________________
National Federation of Independent Business v. Sebelius (2012)
Facts: The “individual mandate” provision of the Patient Protection and Affordable Care Act, which required
individuals to purchase health care insurance under certain circumstances
Holding:
 The individual mandate contained in the Patient Protection and Affordable Care Act of 2010 is a v alid use
of Congress’s power to tax.
(1) ACA mandate provision is not a valid exercise of Congress’s Commerce Clause power, because
rather than “regulating” existing commercial activity it compels individuals to become active in
commerce, by forcing the purchase of insurance
(2) ACA mandate provision is not a valid exercise of Congress’s N&P Clause power, because it seeks
to “create the necessary predicate to the exercise of an unenumerated power.” While conceding
the mandate may be “necessary” to the ACA’s success, the Court declined to find the mandate
“proper.”
(3) ACA mandate is a valid exercise of Congress’s power to “lay and collect Taxes,” because the so-
called penalty can reasonably be construed as a tax—a condition (not having insurance) that
triggers a tax
 The Medicaid expansion provision of the Patient Protection and Affordable Care Act of 2010 is an
unconstitutional use of Congress’s spending powers.
(1) ACA Medicaid expansion provision exceeds Congress’s Spending Clause power by coercing States’
participation in a federal regulatory program—threatening States not participating in the
expansion with termination of all the States’s pre-existing Medicaid grants—rather than requiring
compliance with restrictions on the use of those funds.

US v. Butler
 Congress’s Spending Clause power—unlike its N&P Clause power—need not be tied to the exercise of
another enumerated power. Moreover, spending programs targeting particular states or localities are
valid exercises of Spending Clause power if they serve the general welfare (e.g., disaster relief).
o The spending power has been interpreted very broadly. Congress has the power to spend for the
“general welfare”—i.e., any public purpose—not just to pursue its other enumerated powers.

Sabri v. US
 The Spending Clause authorizes Congress to spend money for the general welfare, and the Necessary and
Proper Clause authorizes it to take any reasonable steps to prevent program money from being misspent
(e.g., by criminalizing bribery).

South Dakota v. Dole (1987)

16
Facts: A federal law required that 5% of allocable highway funds be w/held from any state where persons under
21 legally purchase or possess alcohol.
Holding: Affirming lower court decisions upholding constitutionality of federal statute directing Transportation
Secretary to withhold 5% of federal highway funds to states with drinking age of less than 21 years-old, finding the
condition is valid exercise of Congress’s Spending Clause power because it is rationally related to the spending
program goal of promoting “safe interstate travel.”
Main Takeaway: Pursuant to its Spending Clause power, Congress has power to attach conditions to federal-state
cooperative grant programs. But the conditions must be (1) expressly stated, (2) rationally related to the purpose
of the spending program, (3) and not unduly coercive.

4 part test to determine when a funding condition is a valid exercise of Congress’s Spending Power Clause
1. Unambiguously stated (i.e., states must enact 21-year-old minimum drinking age or lose 5% of federal
highway grant funds);
2. Reasonably related to the purpose for which the federal funds have been allocated (i.e., highway
safety promotes general welfare and purpose of highway construction funds includes safe interstate
travel, not merely highway construction or maintenance); AND
3. Not unduly coercive an/or cause the states to violate an independent constitutional bar (i.e., 5% is
minimal and 21st amend. not independent bar to Spending Clause power, as Congress may use
funding conditions to achieve goal indirectly).

*Although there are areas in which Congress cannot directly regulate, it can use its spending power to accomplish
such regulation indirectly by conditioning federal funding.
_____________________________________________________________________________________________

17
COMMERCE CLAUSE
Commerce Clause:
“To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” Art. 1, § 8

The term “commerce” has been defined to include essentially all activity—including transportation, traffic, or
transmission of gas, electricity, radio, TV, mail, and telegraph—involving or affecting two or more states.
_____________________________________________________________________________________________
US v. Darby (1941)
Facts: The purpose of the Fair Labor Standards Act was to exclude from interstate commerce goods produced
under substandard labor conditions
Holding: Unanimously upholding constitutionality of FLSA against lumber manufacturer’s challenge to conviction
for wage + hour violations after shipping lumber other states and overruling the Court’s prior precedent
recognizing an in-state manufacturing exception, holding the FLSA—which regulates employment conditions (e.g.,
¢25 / hr minimum wage, 44 max hrs w/out overtime) of businesses whose goods are shipped interstate—is a valid
exercise of Congress’s ISC power.
Main Takeaway: In the “post-Lochner” era (1937-1992), the Court did not strike down any Congressional statutes
as exceeding the ISC power, including many statutes regulating intrastate commerce (e.g., manufacturing), while
refusing to enforce the 10th Amendment as an independent limit
_____________________________________________________________________________________________

Interstate Commerce:
(a) Power to Regulate — Congress has the power to regulate the (i)channels (highways, waterways, airways,
etc.) and (ii)instrumentalities (cars, trucks, ships, airplanes, etc.) of interstate commerce, as well as (iii)
any activity that substantially affects interstate commerce, provided that the regulation does not infringe
upon any other constitutional right. United States v. Lopez (1995).
(b) Construed broadly — The SCOTUS Has upheld acts of Congress seeking to prohibit or restrict the injury of
persons, products, and services into the stream of interstate commerce, as well as acts regulating the
interstate movement of kidnap victims, stolen vehicles, and telephone transmission. However, the
commerce clause does not give Congress the power to mandate that individuals not engaged in
commercial activities engage in commerce. Sebelius (Requiring individuals not engaged in commercial
activities to buy unwanted health insurance could not be seen as a regulation of interstate commerce).
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MODERN ISC TEST
Congress acts w/in its power under the Commerce Clause if there is rational basis for finding the chosen
regulatory scheme necessary to the protection of interstate commerce, including:
1. The use of CHANNELS of interstate commerce;
2. The INSTRUMENTALITIES of, or persons or things “in,” interstate commerce, even if the threat comes only
from in-state activities; AND/OR
3. Non-commercial, in-state activities that in the aggregate have SUBSTANTIAL EFFECT on interstate
commerce.

MODERN ISC TEST: Category 3—Substantial Effect

Factors for determining if non-commercial activity substantially affects / relates to interstate commerce and is
therefore a valid exercise of Congress’s ISC power include:
18
 1. Whether the regulated activity is non-economic as opposed to economic activity;
2. Whether the regulated item / activity actually moved in IC;
3. Whether there had been congressional findings / legislative record of economic link between regulated
activity and Congress’s goal in regulating it; AND
4. How attenuated the link is between the regulated activity and IC.
*REVISITED - How might we reconcile the Lopez “substantial effects” factors with Gonzalez v. Raich and NFIB v.
Sebelius?
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US v. Lopez (1995)
Facts: Def. carried a gun to a TX school in violation of a federal Gun Free Schools Act.
Holding: Invalidating (5-4) federal Gun-Free-School Zone statute prohibiting possession of handgun w/in 1K ft. of
schools as invalid exercise of Congress’s ISC power, holding criminal prohibition on local school-based possession
of firearms is not valid exercise of Commerce Clause power and intrudes on state’s plenary police power:
1. Absence of jurisdictional “hook” in statute (e.g., proof the firearm traveled in ISC) disqualifies it for the
“instrumentalities” category; AND
2. Local possession of firearm in school zone is non-commercial activity that, even in the aggregate, does not
have substantial effect on ISC.
Dissenters: Argues gun violence incidental to handgun possession in schools has substantial effect on ISC by virtue
of nexus to violent crime and/or disruption of educational environment.
Takeaway:Congress’s Commerce Clause power does not extend to laws that attempt to regulate solely intrastate
non-economic activity.
(No, it neither regulates a commercial act, or contains a requirement that the possession of the gun be connected
to interstate commerce (jur. nexis).)
Reasons: Need to find whether this has a substantial relationship to interstate commerce, b/c it is not a channel
or an instrumentality. Not substantially related b/c:
I. This is a criminal statute having nothing to do w/ commerce. Congress could have added the jur. element
by stating that the guns had to be from other states, etc.
a. Policy considerations are that, if they could regulate this, Congress could regulate any crime at all.
b. Protects local control.
II. It is not an essential part of a larger regulation that can be undercut
III. Congress made no findings of why and how it affects interstate commerce w/ which the ct. could use to
find why the law was passed
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Element based test: conjunctive, you need to look at every element and must prove every element one missing
you don’t meet the test
Factorial based test: balancing test, you don’t need the all the factors; cts weigh the strength of the facts to a
particular factor the ct might disregard the missing factors
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Gonzalez v. Raich (2005)
Holding: Holding (6-3) federal CSA prohibition on MJ as applied to home-grown possession / medicinal use
authorized by state law is a valid exercise of Congress’s ISC power because:
1. Intrastate non-commercial use, possession, and cultivation of MJ is activity that, in the aggregate, has
substantial effect on interstate market for illicit drugs;
2. CSA prohibition on homegrown MJ is rationally related to regulating illicit, interstate MJ market given
“high likelihood” illicit demand for MJ in interstate market will draw home-grown MJ into interstate
commerce.
Concurrence (Scalia):To distinguish Lopez, argues N&P Clause gives Congress’s implied power to enact CSA
prohibition to effectively enable Congress to regulate interstate market in illicit drugs. Prohibiting homegrown MJ
is “necessary” for Congress’s effective regulation of national market.

19
Main Takeaway:While Congress’s Commerce Clause power does not extend to laws that solely target intrastate
non-economic activity, it does extend to laws that target such activity to effectively regulate a larger interstate
economic activity. (Aggregate)
(The commerce clause permits congress to criminalize local cultivation and medical use of marijuana even if those
uses otherwise comply with state laws)
_____________________________________________________________________________________________

“Substantial Economic Effect”:

Congress has the power to regulate any activity, intra- or interstate, that in and of itself or in combination with
other activities has a “substantial economic effect” upon or “effect on movement in” interstate commerce.

(a) Aggregation — With respect to intra-state activity that does not have a direct economic impact on the
interstate commerce, such as growing crops for personal consumption, as long as there is a rational basis
for concluding that the “total incidence” of the activity in the aggregate substantially affect interstate
commerce, Congress me regular even a minute amount of that total. Gonzalez v. Raich (prohibition of MJ
personal cultivation). [ex. Wickard v. Filburn]

Wickard v. Filburn (1942)

Facts: Agricultural Adjustment Act imposed a penalty on def. for bushels of wheat produced on his farm in excess
of the national allotment. The wheat had been grown specifically for def.’s family’s consumption, and was not
sold.
Holding: Unanimously upholding constitutionality of AAA of 1938’s production quotas to stabilize wheat prices
against challenge by farmer fined $117 for 239 excess wheat bushels produced / consumed solely for personal
use, reasoning that pursuant Congress’s ISC power permits it to regulate even non-commercial, in-state activity if
that activity in the aggregate exerts a substantial economic effect on interstate commerce.
Reasons: Even if an activity is local, and not considered commerce, it is w/in the power of Congress if it exerts a
substantial economic effect on interstate commerce. One small interstate activity would not substantially affect
commerce, but in the aggregate it would ultimately affect commerce.
Farm production that is intended for consumption on the farm is subject to congress’s commerce power, since it
may have a substantial economic effect on interstate commerce
Main Takeaway: Under the “substantial effects” doctrine, Congress’s ISC power permits not only the regulation of
commercial economic activity between states, but also non-commercial activity that cumulatively exerts a
substantial economic effect on interstate commercial activity. (Aggregate)
_____________________________________________________________________________________________
MEANING OF COMMERCE AMONG STATES

 CRA 1964 — Title II

Hearth of Atlanta Motel v. US (1964)

Facts: Pl. owns and operates a motel, and solicits patrons from outside of the state of GA. 75% of its guests are
from out of state. Refused to rent rooms to blacks, in violation of the Civil Rights Act of 1964.
Reasons: Purpose of the act is to provide equal access to public establishments. Discrimination by race burdens
interstate commerce b/c it makes travel for blacks less enjoyable, and discourages them from traveling (this is
the link b/w discrimination and interstate commerce). Does not matter that this is local b/c the power of
Congress to promote interstate commerce also includes the power to regulate local incidents thereof. Similar
analysis as in Jones and Laughlin where the ct. looked at the industry as a whole. Congress can regulate racial
discrimination b/c it substantially effects commerce.
Holding: Unanimously upholding Title II of 1964 CRA as applied to segregated motel serving interstate travelers
that refused renting rooms to Black people, holding Congress’s authorization of injunctive relief to prohibit racial
discrimination by private businesses offering “public accommodations” is valid exercise of ISC power:

20
  Motel is “local incident” of interstate travel (i.e., nationally advertised, 75% customers out-of-state
travelers);
 Congressional findings demonstrate Title II is “reasonably adapted to the end” of removing obstacle anti-
Black discrimination poses for commerce, given legislative record showing “qualitative and quantitative”
harms to interstate commerce caused by anti-Black discrimination.
Katzenbach v. McLung (1964)
Facts: A restaurant received about $70,000 worth of food which has moved through interstate commerce (out of
$150,000 worth of total food).
Reasons: Ct. again applied the rational basis test – it is up to Congress to make the jur. link b/w discrimination and
interstate commerce. Fact that this effect on interstate commerce is inconsequential b/c Congress determined
that it did have a direct effect.
Also, consider the aggregation doctrine:
 All the ct. had to find was reasonable relationship b/w the means used, and the goal of protecting
interstate commerce
 Judicial review must be exercised w/ great deference
Holding: Unanimously upholding Title II of 1964 CRA as applied against segregated barbecue restaurant that
refused dine-in services while offering back-door takeout to Black customers, holding Congress’s ISC power
permits it to regulate racial discrimination that burdens interstate commercial activity, including:
1. Restaurants serving out-of-state travelers;
2. Restaurants using foods / goods a substantial portion of which traveled in interstate commerce (i.e., 46%
of annual food purchase); AND
3. Restaurants that racially discriminate against Black persons traveling state to state.
_____________________________________________________________________________________________

Non- Economic Activity:

Congress is Power under the commerce clause to regulate interstate activity that is not obviously economic is
limited to some degree by principles of federalism, at least when the regulation involves an area of traditional
state concern. The non-economic activity must have substantial economic affect on interstate commerce. Sebelius
& US v. Lopez (Federal statute regulating possession of a firearm within 1000 feet of a public school struck down).
_____________________________________________________________________________________________

Narrowing of the Commerce Power and Revival of the 10th Amend as a Constraint on Congress

 1990s SCOTUS change course with regard to Congress’ powers under the Commerce Clause
under the 10th Amend
o 1995 US v. Lopez — found federal law exceeded limits under the Commerce Clause
o 2000 US v. Morrison —reaffirmed
o 1992 NY v. US & 1997 Printz v. US used 10th to protect state govt

21
10TH AMENDMENT BETWEEN 1937 AND THE 1990S (LIMITS ON CONGRESS)
10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to States, are
reserved to the States respectively, or to the people.”

The tenth amendment empowers the state and local government against federal coercion.
_____________________________________________________________________________________________
National League of Cities v. Usery (1976) —declared unconstitutional the application of the Labor
Standards Act which requires payment of minimum wages to states and local employees
 Court found that the requiring states to pay their employees the minimum wage violated he 10th
amend
Hodel v. Virginia Surface Mining & Reclamation Association (1981)
 applied only when Congress was regulating state govt not private conduct
 10th only applied when Congress regulates “States as States”
 Court held constitutional bc it did not regulate states as states

STATE IMMUNITY — Federal Regulation

The Federal govt has virtually unlimited power to regulate the states.
_____________________________________________________________________________________________
Congressional action

As long as Congress is exercising one of the enumerated powers, Congress generally may regulate the states. For
example a federal minimum wage and overtime Statute and Acted The Under The Commerce Clause can be
applied to state employees. Garcia v. San Antonio Metropolitan Transit Authority (1985).
---------------------------------------------------------------------------------------
Garcia v. San Antonio Metro. Tran. Auth. (1985) — Fair Labors Standards Act [Transit Authority]
Holding: Holding 10th amend. does not make San Antonio transit agency immune to FLSA minimum-wage and
overtime requirements, overruling Usery test, which barred Congressional regulation of working conditions of
state and local government EE’s performing “integral” or “traditional” state / local governmental functions,
reasoning that:
1. The Usery test was “unsound” and “unworkable,” given no judicially manageable standard for
distinguishing what functions are integral to state / local government;
2. Constitution’s structure and provisions re: state powers (e.g., each state equally represented in
Senate, state control of electoral college) suggests protecting state sovereignty was committed to the
political branches.

Rule: Congress has the constitutional authority to regulate the wages and hours of
state employees under the commerce clause.

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22
Similarly, Congress can prohibit the disclosure by state officials of personal information obtained from driver’s
license applications because such information constitutes an article of commerce that is being sold in interstate
commerce. Reno v. Condon (2000).
---------------------------------------------------------------------------------------
Reno v. Condon (2000) — Driver’s Privacy Protection Act Case
Holding: Unanimously upholding 1994 DPPA:
1. DPPA is valid exercise of Congress' Commerce Clause power because restricting state sale of DMV data is
rationally related to regulating an article or “thing” in interstate commerce (i.e., information); AND
2. DPPA does not violate anti-commandeering doctrine because it does not direct states with respect to
their “sovereign capacity” of regulating their own citizens: A.DPPA does not require states to enact any
laws or regulations, ANDB.DPPA does not require state officials to assist in the enforcement of federal
statutes regulating private individuals.

Rule: Congress may regulate States’ activities using its commerce clause, provided that the
regulation does not require the state to enact any laws or regulations that does not
require state officials to assist in the enforcement of federal statutes regulating
private individuals.

_____________________________________________________________________________________________
Commandeering” limitation
Congress cannot “commandeer” state legislatures by commanding them to enact specific legislation or administer
a federal regulatory program, and it may not circumvent that restriction by conscripting a state executive officer
directly. Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). However,
through the use of the taxing and spending powers, Congress may encourage state action that it cannot directly
compel.

Example: In South Dakota v. D, 483 U.S. 203 (1987), the Court held that Congress could condition a provision of
5% percent of federal highway funds on the state’s raising its drinking age to 21.

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Printz v. US (2000) —Gun Background Checks

Holding: Invalidating “interim” provisions of 1993 Brady Act that—until DOJ’s NICS system’s launch in 1998—
required CLEOS to conduct background checks on prospective purchasers of guns as violative of principles of
federalism / 10th amend., despite lack of express textual support:

1. History + Practice: Despite Founding Era federal laws imposing obligations on state court judges,
subsequent 200+ years of Congress refusal to “make use” of state / local officials;
2. Structure: Constitution (a) implies “dual sovereignty” of state and federal government—thus, feds cannot
encroach on the “residual” sovereignty of the states over purely in-state matters even w/ Commerce
Clause hook and (b) Art. II commits "faithfully executing” federal law to U.S. President;

Rule: Congress may not compel state officials to participate in the administration of federal
programs.
NY v. US (1992) — Radioactive Waste Case
Holding: Upholding two of three federal “incentives” provisions of Radioactive Waste Act but invalidating (6-3)
the third:

23
 1. Upholding provision authorizing states to collect graduated waste disposal taxes and awarding states
funds upon achievement milestones as valid exercise of Taxing and Spending Clause power
2. Upholding “access” provision permitting waste-receiving states to increase surcharges on / refuse receipt
from shipping states violating deadlines as valid exercise of Commerce Clause power;
3. But invalidating provision requiring states “take title” and assume liability for waste produced in-state if
their state legislature failed to enact law conforming to federal regulatory scheme, concluding the
provision unconstitutionally directed state action and thus violates federalism principles.

Main Takeaway: The Court’s anti-commandeering doctrine bars the federal government from
(a) directing state legislatures to enact certain laws;
(b) prohibiting state legislatures from enacting certain laws; and/or
(c) compelling state executive officials to enforce federal laws or regulations.

Rule: Congress may not compel states to an act or administer a federal regulatory program.
 There are two ways Congress may urge a state to adopt a legislative program consistent with federal
interests:
1. as part of its spending powers, Congress may attach conditions on states’ receipt of federal funds,
or
2. where Congress has the authority to regulate private activity under the CommerceClause,
Congress may offer states the choice of regulating that same activity according to federal
regulations or having state law preempted by federal regulations.
(These options allow states to decline compliance with federal regulatory standards if state citizens decide a
federal policy is contrary to local interests.)
_____________________________________________________________________________________________
Coercion” limitation
a. While, as noted, Congress, through the use of its taxing and spending powers, can encourage
states to act in ways in which it cannot directly compel, Congressional encouragement may not
exceed the point at which “pressure turns into compulsion.” Nat'l Fed'n of Indep. Bus. v. Sebelius
(The Patient Protection and Affordable Care Cases)

_____________________________________________________________________________________________
Murphy v. NCAA (2018)—Sports Gambling Case
Holding: Invalidating Professional and Amateur Sports Protection Act (PAPSA) anti-authorization provision
prohibiting states from “authorizing” sports betting, holding PAPSA violates anti-commandeering doctrine:
1. NJ repealer law removing state restrictions on sports betting is “authorization” w/in meaning of PAPA
provision; “authorization” includes any state action that effectively permits sports gambling, whether by
repealing prior prohibitions or affirmatively authorizing them;
2. PAPSA anti-authorization provision violates anti-commandeering, because it mandates what a state can
and cannot do—there is no meaningful difference between (a) directing a state legislature to enact a law
and (b) prohibiting a state legislature from enacting a law.

Rule: Congress may not issue direct orders state legislatures.

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CONGRESS’S POWERS UNDER THE POST-CIVIL WAR (RECONSTRUCTION)
AMENDMENTS
13th Amendment—
§1: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

§2: Congress shall have power to enforce this article by appropriate legislation. (Enforcement Clause)

14th Amendment—
§1: (Birth Right Clause) All persons born or naturalized in the United States and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside. (Privileges or Immunities Clause) No State
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
(Due Process Clause) nor shall any State deprive any person of life, liberty, or property, without due process of
law; (Equal Protection Clause) nor deny to any person within its jurisdiction the equal protection of the laws.

§5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
(Enforcement Clause)

15th Amendment—
§1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of servitude.

§2: Same as above §2 & §5

_____________________________________________________________________________________________
The Civil Rights Case (1883)
Holding: Invalidating 1875 CRA prohibitions on racial discrimination in private activities (e.g., facilities,
accommodations), reasoning § 5 “does not authorize Congress to create a code of municipal law for the
regulation of private rights; but to provide modes of redress against the operation of State laws, and the actions
of State officers.”
Main Takeaway: The principle that Congress’s 14th am. § 5 enforcement power extends only to “state action”
and not purely private action remains valid law. BUT note that:
1. Congress has 14th am. § 5 power to regulate discrimination by private action involving state
discrimination (e.g., conspiracy, § 1983);2.Congress has 13th am.§
2. power to prohibit “badges or incidents” of slavery; AND
3. Congress may regulate private discrimination if a valid exercise of another enumerated powers (e.g.,
Commerce Clause).

Rule: Under the Equal Protection Clause of the 14th amendment, congressman
only prohibit discrimination by state actors, not private individuals.
_____________________________________________________________________________________________
25
Scope of Congress’s Power
 Nationalist Perspective
o Congress may use its §5 authority to expand the scope of rights — Katzenbach v. Morgan
 Federalist Perspective
Congress under §5 of the 14th cannot creat new rights to expand the scope of rights; Congress can act only to
prevent or remedy violations of rights, and such laws must be narrowly tailored — City of Boerne v. Flores
---------------------------------------------------------------------------------------

Katzenbach v. Morgan (1966) —Anti-Spanish Voter Literacy Test

Holding: Upholding 1965 VRA § 4(e) prohibiting use of English-language voter literacy tests by states—as applied
to NY law requiring persons educated in PR to pass literacy test in order to vote—as valid exercise of Congress’s
14th am. § 5 enforcement power, holding the enforcement clause gives Congress power to expand § 1 rights
protections beyond those recognized by SCOTUS, though not to reduce them.
Main Takeaway: Previously, the Court expansively interpreted Congress’s enforcement clause powers, as a kind
of N&P Clause for the Reconstruction Era amendments. In this broad view, Congress’s action is a valid exercise of
the enforcement clause if the action ”appropriate”—i.e., rationally related to fulfilling a legitimate 13th, 14th, or
15th am. purpose.

Rule: Congress may pass legislation to enforce the equal protection clause of the
14th amendment even when legislation conflicts with state law.

City of Boerne v. Flores (1997) —Church Zoning

Holding: Invalidating 1993 RFRA provision restoring strict scrutiny to Free Exercise Clause challenges to state /
local action after SCOTUS Smith decision exempting neutral laws of general applicability, holding:
1. Congress’s § 5 enforcement power does NOT permit it to create new 14th. amend. rights but solely to
deter / remedy rights SCOTUS already recognized; AND
2. Even when Congress enacts law designed to prevent / remedy rights SCOTUS has already recognized (e.g.,
free exercise), to be a valid under § 5 the means chosen must be “congruent and proportional” to the
scope of rights violation(s) Congress seeks to deter / remedy.

Rule: In exercising is remedial and preventative power to enforce a constitutional right

under sec. 5 of the 14th amendment, congressman act only legislation that utilizes
congruent and proportional means for two achieving the legislative purpose.

Shelby County v. Holder (2013) —VRA Pre-clearance Requirement

Holding: invalidating 2006 VRA reauthorization of §4(B) “preclearance” requirement that states / counties
w/history of race-based voter discrimination obtain approval from U.S. AG (or three-judge federal court panel)
before altering state voting rules as exceeding Congress’s 14th+ 15th am. enforcement powers, holding VRA’s
disparate treatment of states unconstitutionally invades on state sovereignty / contradicts principles of
federalism given that 2006 preclearance formula not updated since 1982 and based on 1970s data.

Rule: The federal law that’s a parts from the fundamental principle of federalism must
be justified by current needs.

_____________________________________________________________________________________________

26
 FEDERAL EXECUTIVE POWER
EXPRESS AND INHERENT PRESIDENTIAL POWERS

Article II —
§1: “The executive Power shall be vested in a President of the United States of America.”

§2: “The President shall be Commander in Chief of the Army and Navy of the United States . . .”

§3: The President “shall take care that the laws be faithfully executed . . .”

 Does the language grant inherent powers not expressly enumerated in Art. II
 Art. I includes “herein granted” but is not included in Art. II as a limitation

PRESIDENTIAL POWERS, PRIVILEGES & IMMUNITIES

_____________________________________________________________________________________________
Youngstown v. Sawyer (1952) —Steel Seizure
Holding: Invalidating (6-3) Truman’s seizure of steel mills during Korean War to prevent work stoppage during
labor dispute, holding:
1. In absence of congressional statute authorizing President to take possession of private property,
Presidential action can only be justified by inherent powers;
2. Implicit to requirement the President “faithfully execute” laws is that the President is no lawmaker;
3. The President's military power as Commander--in-Chief does not extend to domestic labor disputes.
(Zone 2 & 3)
Jackson Concurrence—Tripartite Test
ZONE 1: When the President acts with express or implied authority from Congress, the President’s
“authority is at a maximum.”

ZONE 2: “When the President acts in the absence of Congress’s grant or denial of authority, President
may rely on an independent power, or may have concurrent power w/Congress (a.k.a., "zone of
twilight“), in which President may derive support only from Congress’s “inertia” or “indifference.”

ZONE 3: When the President “defies the express or implied will of Congress”, presidential power is “at its
lowest ebb,” and the courts can only sustain the President’s measure if Congress unlawfully acted
on the subject.

Rule: The President of the United States may not engage in law making activity absent
and express authorize Asian from Congress or the text of the Constitution.
_____________________________________________________________________________________________
EXECUTIVE PRIVILEGE

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  Executive privilege is a privilege with respect to the disclosure of confidential information by the executive
branch to the judiciary or Congress.
 This privilege and the more narrow presidential privilege, which applies to communications made in the
performance of a president’s responsibilities to shape policies and make decisions, have been recognized
by the Supreme Court.
 The presidential privilege survives an individual president’s tenure, but this privilege is not
absolute. Cheney v. United States, 542 U.S. 367 (2004); United States v. Nixon, 418 U.S. 683 (1974)

Privilege Defined:
In the law of evidence, “privilege" refers to rules by which a privilege holder may prevent compelled disclosure
or production of testimonial, documentary, or other evidence (e.g., by subpoena) in a legal proceeding.

Evidentiary privileges—whether recognized at common-law or established by statute—are typically grouped

according to relationships of trust or confidence between a privilege holder and third part(ies).

If the test relevant to the claimed privilege is met, and privilege has not been waived, the privilege holder may
prevent the third party from disclosing or producing certain evidence, as well as bar the admission of the
information into evidence, in the proceeding.
Exs.:
 Attorney-client privilege;
 Doctor-patient privilege;
 Spousal privilege;
 Clergy-penitent privilege.

Criminal Trial—
Presidential communications must be made available in a criminal case if the prosecution demonstrates a need
for the information. I judge me exam in the communications in camera to determine whether the
communications fall within the privilege. US v. Nixon (1974)

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US v. Richard Nixon (1974) —Watergate Subpoena
Holding: Unanimously (8-0) holding executive privilege does not protect against disclosure where there is a
“demonstrated, specific need for evidence in a pending criminal trial,” finding prosecutor satisfied burden of
showing tapes / papers sought were “demonstrably relevant” to the trial.
Main Takeaway: Executive privilege is a “u” (i.e., not absolute) privilege. If the party seeking disclosure makes a
sufficient showing that the information is “essential” to the proceeding, the privilege does not apply. Executive
privilege has several flavors:
1. State secrets: Greater protection for military, diplomatic, or national security secrets;
2. Deliberative process / communications: Protecting advice given in internal executive branch
deliberations;
3. Attorney-client: Protecting legal advice or work product generated in representing the President.

Rule: The president claim of privilege of serving only a generalized interest in

confidentiality is not sufficient to over, judicial interest in producing all relevant
evidence in a criminal case.

Trump v. Vance
 Holding (7-2) that neither Article II nor the Supremacy Clause preclude or require stricter scrutiny of a
state criminal subpoena issued against a sitting President.

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Trump v. Mazars
 Vacating and remanding (7-2) lower court determination on congressional subpoenas for Trump tax
returns, holding the courts below must evaluate separation of powers concerns implicated by
congressional subpoenas for the President’s personal information, including four factors.
o Whether the legislative request warrants involvement of the President, and if other sources can
reasonably provide Congress the same information;
o Whether the subpoena is no broader than reasonably necessary to support the legislative
objective;
o Whether the nature of evidence that is requested by the subpoena will advance a valid legislative
purpose; AND4.Whether the subpoena burdens the President and may be a result of partisan
politics.
_____________________________________________________________________________________________
EXECUTIVE IMMUNITY
 The President may not be sued for civil damages with regard to any acts performed as part of the
President’s official responsibilities. Nixon v. Fitzgerald (1982).
 The President has no immunity, however, from a civil action based on conduct alleged to have
occurred before the President took office or completely unrelated to carrying out his job. Moreover, the
President may be subject to such a suit even while in office. Clinton v. Jones (1997)

Suing and Prosecuting the President

 Nixon v. Fitzgerald: established absolute immunity—complete protection from civil suit—for the president
of all official actions while in office
 Clinton v. Jones: Rejected any immunity for acts that occur before president takes office

---------------------------------------------------------------------------------------
Nixon v. Fitzgerald (1982)—Wrongful Discharge
Holding: Finding President Nixon immune from civil suit by Air Force analyst for wrongful termination, holding:
1. While a President is not immune from criminal charges flowing from their official or unofficial acts while
in office,
2. President has absolute immunity from civil "damages liability predicated on his official acts.“
 Absolute Immunity: For the president will not leave nation without sufficient protection against
misconduct on the part of the chief executive
 Other formal and informal checks
o Scrutiny by the press
o Vigilant oversight by Congress… Impeachment
o Desire to earn reelection they need to maintain prestige… The presidents traditional concern for his
historical stature

Rule: The President of the United States is entitled to absolute immunity from suits for
damages based on actions taken in his official capacity.

Clinton v. Jones (1997)—Pre-Presidency Sexual Assault

Holding: Unanimously rejecting Clinton’s claim of “temporary immunity” to Jones’s sexual harassment /
retaliation suit flowing from conduct that occurred before Clinton’s election and rejecting request to stay
proceedings, holding:
1. Presidential immunity does not protect a sitting President from civil litigation involving actions
committed prior to taking office; AND

29
 2. While judicial process may tax the time and resources of a sitting President, separation-of-powers
principles do not completely insulate the executive from checks / controls of a coordinate branch (e.g.,
the federal judiciary).

Rule: Do United States Constitution does not grant the President of the United States
immunity while in office from suit of actions allegedly occurring prior to his
assuming the presidential office.

_____________________________________________________________________________________________

THE FOURTH BRANCH —

Administrative State, Non-Delegation Doctrine & Presidential Immigration Power
Article I —
§1: “All legislative powers herein granted shall be vested in a congress of the United States, which shall consist of a
senate and house of representative.”

§8: “The congress shall have power . . . To make all laws which shall be necessary and proper for carrying into
execution the forgoing powers, and all other powers vested by the constitution in the government of the US, or in
any department of officer thereof.”

Article III —
§3: The President “shall take care that the laws be faithfully executed . . .”

De-leg-ate (v.): To give part of one's power or work to someone in a lower position within one's organization.

Delegation of Legislative Power:

Because Congress is vested by Article I with “all legislative powers,” it may not delegate that power to any other
branch of government. This principle is known as the “nondelegation doctrine.” However, delegation of some of
Congress’s authority to the executive branch has consistently been held constitutional, so long as Congress
specifies an “intelligible principle” to guide the delegate.
---------------------------------------------------------------------------------------
Schechter Poultry Co. v. US (1935)—Sick Chicken
Holding: Unanimously invalidates NIRA§3 as an unconstitutional delegation of legislative power to the President,
because §3—which authorized the President to regulate certain industries by giving "codes of fair competition"
promulgated by boards comprised of private industry groups (e.g., price / wage fixing, max. work hrs, product
quality, right to org.) the force of law—did not establish rules or standards for either the private boards or
President to evaluate industrial activity.
 Did not give any bounds to the executive and did not give rules or standards
 Congress can’t delegate anything it is not enumerated

Rule: Congress may not delegate legislative power to the executive without outlining
strict standards for how the executive is the exercise that power.

Panama Refining Co. v. Ryan (1935) —“Hot Oil”

Holding: Invalidating Presidential EO issued pursuant to NIRA § 9(c) prohibiting commercial transportation of
petroleum produced in excess of state-permitted production quotas as an unconstitutional delegation of
legislative power to the President, because in NIRA Congress did not supply a policy or standard to guide or limit
the President’s action.

30
Main Takeaway: The nondelegation doctrine bars Congress from transferring essential legislative functions
without providing “intelligible principle” for implementation and execution. To be a valid delegation, Congress
must at least identify the policy to guide the discretion of implementing government officials and set outer
boundaries on that discretion.

Rule: Congress may not delegate legislative power to the executive branch without
providing clear standards I’ve had the executive must exercise that power.

---------------------------------------------------------------------------------------
Vocabulary

Plurality opinion: An opinion in which an actual majority (5+ of 9) could not agree on one controlling rationale. It
states the reasoning of the “majority of the majority”—so only the judgment itself (who won, who lost) is truly
binding.Mark v. United State (1977) ("“When a fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by
those members who concurred in the judgment on the narrowest grounds.”).

Per curiam (Latin: “by the court”) opinion: A ruling in the name of the court rather than individual judge(s) that
authored or joined the opinion, though minority concurring and dissenting opinions are signed.
---------------------------------------------------------------------------------------
NON-DELEGATION DOCTRINE:

Grundy v. US (2019) —Sex Offender Registration and Notification Act Delegation

Holding: Plurality (4 + Alito concurring in judgement only):
1. Upholds SORNA provision conferring authority to USAG to “specify the applicability” of sex-offender
registration requirement to persons convicted pre-SORNA against non-delegation challenge,
2. Construes statute as directing USAG to determine how to apply SORNA to pre-Act offenders not whether
or not to apply it to them.
Main Takeaway: SORNA provision violates nondelegation doctrine by “endowing” the USAG with power “to write
his own criminal code.” Argues nothing in SORNA’s text (e.g., statement of purpose, definitional provisions) or
legislative history limits the scope of the power delegated to the executive branch or supplies a standard—let
alone an intelligible one—for the USAG’s exercise of that power.

Rule: Authorizing the attorney general to enforce the national SORNA at against pre-act
offenders does not violate the non-Delegation and Doctrine under the current
intelligible principal standard.

Gorsuch’s Dissent Test:

In his Gundy (2019) dissent, Justice Gorsuch outlines his proposed non-delegation test under which only three
types of delegations are constitutionally permissible:
1. Legislation in which Congress makes the important policy decisions but leaves it to the executive to “fill
up the details;”
2. Legislation in which Congress prescribes the rule but leaves it to the executive to conduct fact-finding
when the rule is applied; and
3. Legislation that allows the executive broad discretionary power concerning matters that also fall within a
zone of executive power (e.g., foreign affairs).
(Factor test)
_____________________________________________________________________________________________

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PRESENTMENT AND BICAMERALISM—Line Item & Legislative Vetoes
It is unconstitutional for Congress to attempt a “legislative veto” of an executive action—that is, to retain direct
control over the actions of an executive agency, rather than going through the proper channels of passing a bill.

Example: In INS v. Chadha, 462 U.S. 919 (1983), a provision of law permitted either house of Congress to overturn
a decision by the Attorney Generral granting an alien relief from deportation. The Supreme Court held such a one-
house congressional “veto” of a matter delegated to the executive to be unconstitutional as violating the carefully
wrought legislative procedures set forth in Article I, which require passage of legislation by both Houses of
Congress (i.e., bicameralism) and sending to the President pursuant to the Presentment Clauses for his approval
or return. Thus, the Court made clear that a two-house legislative veto would be equally unconstitutional

---------------------------------------------------------------------------------------
INS v. Chadha (1983)—Legislative Veto
Holding: Invalidating INA provision permitting one-House veto of deportation orders as violating separation of
powers, because it contradicts "explicit constitutional standards" for lawmaking pursuant to a bicameral body and
congressional authority.
Main Takeaway: Congress cannot grant itself a "legislative veto" over actions of the executive branch (e.g., final
adjudicatory order, final rulemaking), because this violates the Presentment Clause and bicameralism principle
of separation of powers. Instead, Congress may only override through a two-house majority and presentment
to the President for veto (and if vetoed, overriding by 2-3 majority).

Rule: Legislation providing Congress with the one-house veto over an action of the
executive branch is unconstitutional because it does not meet the constitutional
requirements of presentment and bicameralism.

_____________________________________________________________________________________________

32
FOREIGN AFFAIRS
Trump v. Hawaii (2018) —Muslim Travel Ban
Holding: Upholding Proclamation barring nationals of majority-Muslim countries from entry into U.S., because:
1. Proclamation does not exceed POTUS’s statutory authority under INA, which gives POTUS “broad
discretion” to bar non-citizens from U.S. entry.; AND
2. Proclamation does not violate Establishment Clause, applying rational basis test to sustain Proclamation
as religiously neutral.
Dissent (Sotomayor): Argues strict scrutiny—not rational basis–clearly applies and Travel Ban is not narrowly
tailored to a compelling governmental interest, where POTUS’s many statements that the ban’s purpose was
"total and complete shutdown” of Muslims entering U.S.

Rule: A presidential proclamation placing entry restriction on foreign nationals a

particular country is sufficiently justified by the national security concerns to
survive rational basis review.

ZONE 1 (tripartite test)

ZONE 3 (G’s test)
_____________________________________________________________________________________________

Checking Administrative Power

Congress can control admin agencies through:

 Statutes
 Laws can be enacted directing agencies to perform certain tasks or denying them authority in particular
areas
 Congress can overturn agency decisions by statute following the prescribed procedures for bicameralism
and presentment
 President veto
 Budget of administrative agencies
 Congressional committees that oversee particular agencies
 Appointment and removal power

33
THE APPOINTMENT POWER
Art II, §2

The president “. . . shall nominate, and by and with the advice and consent of the Senate, shall appoint
ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United
States, who’s appointments are not herein otherwise provided for (principle officers), and which shall be
established by law: with the Congress may by law vested the appointment of such inferior officers, as they think
proper, in the President alone, to the court of law, or in heads of departments.”

Jackson Concurrence—Tripartite Test — (look )

Zone 1 example: Hamdi v. Rumsfeld & Dames

Article II, Section 2 authorizes the President, with the advice and consent of the Senate, to appoint all “officers of
the United States,” including ambassadors and Justices of the Supreme Court. Congress may, however, delegate
the appointment of “inferior” officials to the President alone (i.e., without Senate approval), the heads of
executive departments, or the courts. “Inferior” officials are those supervised by Senate-confirmed appointees.
Congress may not itself appoint members of a body with administrative or enforcement powers; such persons are
“officers of the United States” and must be appointed by the President.

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Morrison v. Olson (1988) —Independent Counsel (inferior Officers)
Holding: Upholding (7-1) 1978 EGA Act’s means of selecting IC as non-violative of the Appointments Clause,
where Act created special court and empowered USAG to recommend appointment of an IC to investigate, /
prosecute government officials for federal criminal misconduct without Senate’s advice + consent, reasoning IC is
“inferior officer” because:
1. IC subject to removal by higher Exec. official (i.e., USAG);
2. IC empowered only to conduct limited duties (i.e., while “full powers” of investigation and prosecution no
policymaking authority, must comply w/DOJ policy);
3. IC’s office is limited in jurisdiction (i.e., can only act re: certain offenses and officials, limited to
jurisdictional scope specific by Special Division and at USAG’s request); AND
4. IC’s office is limited in tenure (i.e., temporary and task-specific).
Dissent: Would’ve held EGA Act violates principle of SoP because criminal prosecution is exercise of purely
executive power and deprives the President of exclusive control of that power.

Rule: A law vesting the judiciary with the power to appoint an inferior executive officer
and (independent counsel) and prohibiting the attorney general from removing
the office or without good cause does not violate separation of power principles.

34
Lucia v. SEC (2018)— Federal EE “officer” rather than an employee
 SEC ALJs are “inferior officers” for purposes of Appointments Clause and so must be appointed by
President or other delegated officer rather than merely hired, because [1] the ALJs held the “continuing
office” of a career appointment rather than temporary or episodic tenure and [2] exercised “significant
discretion” (for regular employees — like postal workers)

Buckley v. Valeo (1976)— Federal EE “inferior officers,”

 invalidating federal law empowering House Speaker and Senate President Pro Tempore to appoint 4 of 6
FEC members as violating Appointments Clause, which assigns Congress authority to approve only
President, heads of department, or the lower federal courts appointments of inferior officers (needs to
have some congressional statute)
Art. 2 Sec. 2 Cl. 3 —
RECESS APPOINTMENTS CLAUSE
“The presidential shall have power to fill up all vacancies that may happen during recess of the Senate, by granting
commissions which will expire at the end of their next session”

NLRB v. Noel Canning (2014) —Recess Appointment Clause

Holding: Unanimously (9-0) ruling President Obama’s recess appointments of NLRB and CFPB officers during
Senate pro forma sessions were unconstitutional:
1. The phrase “recess of the Senate” applies to not only an inter-session recess but also an intra-session
recess of substantial length (3 days not enough, recess under 10 days “presumptively too short”);
2. The phrase "vacancies that may happen during the recess of the Senate” applies to both vacancies that
open during a recess and that open before and continue through recess.
3. Pro forma sessions are sessions—not recesses—so long as under the Senate’s own rules it retains the
capacity to conduct business during them, because the Constitution assigns the Senate authority over its
own rules.
Concurrence: While concurring in judgment, argues majority gets:
1. #1 wrong because “recess” applies only to inter- not intra-session recesses; AND
2. #2 wrong, because “may happen during” means only vacancies arising while the Senate is in recess (not
those that opened before and continue into recess.

Intra-session (pro forma) — break but not really a break

Inter-session— Longer session

Rule: The President of the United States me invoke the Recess appointments Clause to
fill the vacancy that exists during any sufficiently long Senate Recess.
_____________________________________________________________________________________________

35
THE REMOVAL POWER
The Constitution says nothing about the President’s power to remove executive officers, but it is generally
accepted that the President may remove any executive appointee without cause (and without Senate approval).
Congress may not shield appointees from removal by the President by imposing a multi-tiered system in which
persons at each level may be removed from office only for good cause. Free Enterprise Fund v. Public Company
Accounting Oversight Bd. (holding 15 U.S.C.S. §§ 7211(e)(6) and 7217(d)(3) unconstitutional and invalid because
the multilevel protection from removal of members of the Public Company Accounting Oversight Board was
contrary to Article II’s vesting of the executive power in the President and contravened the Constitution’s
separation of powers).

---------------------------------------------------------------------------------------

❌Meyers v. US (1926)—
 1876 law precluding President from removing postmasters w/out Senate’s advice + consent
unconstitutionally restricts President's removal power

Humphrey’s Executor v. US (1935)—

✔️
 FTC Act precluding President from firing FTC Commissioners absent “good cause” is constitutional
restriction given Congress’s intent to create independent agency with quasi-judicial and legislative power
not “an arm or an eye” of the executive

❌Bowsher v. Synar (1986)—

 statute permitting removal of Comptroller General by Congressional resolution is unconstitutional
encroachment on executive

Morrison v. Olson (2988)—

✔️
 EGA provision precluding removal of IC—a “purely executive” officer—by USAG absent “good cause” does
not violate SoP because unlike in Myers and Bowsher Congress is not aggrandizing its own power and
vests removal power ultimately via USAG in the President

❌Free Enterprise Fund v. Public Company Accounting Oversight Bd. (2010)—

Facts: Sarbanes-Oxley Act created a Public Company Accounting Oversight Board (PCAOB) was created to oversee
the accounting industry. The members of the board are appointed by the secretaries and exchange commission
and I removable by the commission only for “good cause.”

36
Holding: holding Sarbanes-Oxley Act "for-cause" limitation on PCAOB member removal but precludes the
President from deciding whether good cause exists violates SoP

Rule: A President may not be restricted in his ability to remove a principal officer, who is in turn
restricted in his ability to remove an inferior officer, because such multi-level protection
from removal prevents the President from fulfilling his Article II duty to ensure that the
laws are faithfully execute
_____________________________________________________________________________________________

SEPARATION OF POWERS AND FOREIGN POLICY

Art II
“President shall be commander in chief of the Army and Navy of the United States, . . .”

The presidential “shall have power, by and with advice and consent of the Senate to make treaties provided 2/3 of
the Senate present concur”

The president “shall . . . Receive ambassadors and other public ministers.”

Art. I Sec 8.
“Congress shall have power ... To regulate commerce with foreign nations ,,,To declare war ... and make rules
concerning captures on land and water; To raise and support armies, but no appropriation of money to that use
shall be for a longer term than two years; To provide and maintain a navy; To make rules for the government and
regulation of the land and naval forces; To provide for calling forth the militia to execute the laws of the union,
suppress insurrections and repel invasions; To provide for organizing, arming, and disciplining, the militia, and for
governing such part of them as may be employed in the service of the U.S....”

 Although the President is the commander in chief of the military, only Congress may formally declare war.
The President may take military action without a declaration of war in the case of actual hostilities against
the United States. Congress may in turn limit the President’s military activities through exercise of its
military appropriation (i.e., funding) power. The questions of whether and to what extent the President
may deploy troops overseas without congressional approval is unsettled; presidents routinely do so, and
Congress routinely asserts its authority to approve the deployment. The courts have generally left the
question to the political branches.

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US v. Curtis-Wright Export Corp (1936) — Foreign Policy (smuggling case)
Facts: Because of concern that the US munitions manufactures were arming both sides of a war in South America,
Congress adopted a law that empowered the president to issue a proclamation making it illegal for their sales of
arms to the warring nations.. President Roosevelt immediately issued an order prohibiting munition sales to the
warring nation
Holding: Upholding (7-1) prosecution of Curtiss-Wright for violating FDR’s Proclamation embargoing export / sale
of arms to Bolivia + Paraguay—issued by authorization of Congress’s joint resolution—as valid exercise of
executive power:
37
 1. Non-delegation doctrine applies only to federal action that is domestic / internal—not to foreign /
external affairs; AND
2. President’s action valid not only because of Congress’s authorization but also the “plenary and exclusive”
constitutional authority the Constitution implicitly assigns to the President (“the sole organ of the federal
government in the field of international relations”) as chief executive and commander-in-chief.
Main Takeaway: Curtiss-Wright stands for an expansive view of executive authority in foreign / military affairs,
but recall that 18 years later in Youngstown the Court established outer limits on this power (particularly when
the President’s action defies the implied or express will of Congress).

Rule: An otherwise unconstitutional delegation of legislative power to the executive may

nevertheless be sustained on the ground that its exclusive goal is to provide relief in a
foreign conflict

(Zone 1)

Zivotofsky v. Kerry (2015)—FAM Passport 2.0

Holding: Invalidating (6-3) provision of 2002 Foreign Relations Authorization Act directing State Department to
record place-of-birth as "Jerusalem, Israel" as unconstitutional usurpation of President's recognition power, which
is “exclusive” and “conclusive” on the issue:
1. The Reception Clause (“The President shall receive Ambassadors and other public ministers”) justifies an
inference that the President has exclusive power to recognize foreign states;
2. The structure of the Constitution—Article II also vests the President with the power to make treaties and
appoint ambassadors—similarly vests the President with control over the means to effect recognition;
3. Historical practice is ambiguous, but “functional considerations” justify the President’s exclusive power so
the nation may speak with “one voice;” AND
4. While in Jackson’s Zone 3, the President’s power is therefore “exclusive” and the Court must therefore
“disable” Congress “from acting on the subject” (i.e. strike down the law).

Rule: Article II of the Constitution grants the U.S. president the exclusive authority to
formally recognize a foreign sovereign through executive power that Congress may
not contradict via statute
(Zone 3)
*The President represents and acts for the United States in day-to-day international affairs. In addition to
appointing and receiving ambassadors, the President has the exclusive power to recognize a foreign
government. Zivotofsky v. Kerry (2015).
_____________________________________________________________________________________________

38
TREATIES AND EXECUTIVE AGREEMENTS
Art I §8
Grants Congress the power to regulate commerce with foreign nations, “to declare war . . . and raise and support
armies . . .”

Art. I §9 Cl. 2
“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.“

Art. II §2 Cl.
"The President shall be Commander in Chief of the Army and Navy of the United States ....”

Art I §2
The “president she’ll have the power, by and with the advice and consent of the Senate, to make treaties, provide
2/3 of the senators present concur”
 The treaty is a agreement between the United States and the foreign country that is negotiated by the
president and is effective when ratified by 2/3 of the senate
 And executive agreement, in contrast, is an agreement between the United States and the foreign
country that is effective when signed by the president and the head of the other government
 If the document is labeled treaty, Senate approval is required… If the document is titled executive
agreement, no Senate ratification is necessary
*Court usually sides with the president on executive agreements

 Pursuant to the Treaty Clause (Art. II, Sec. 2. Cl. 2), the President has the exclusive power to negotiate
treaties, although a treaty may only be ratified with the concurrence of two-thirds of the Senate.

 The President has the power to enter into executive agreements with foreign nations (e.g., reciprocal
trade agreements) that do not require the approval of two-thirds of the Senate. Although not expressly
provided for in the Constitution, executive agreements may be made, without congressional
authorization, pursuant to the President’s authority over foreign affairs.
---------------------------------------------------------------------------------------
Dame & Moore v. Regan Secretary of the Treasury (1981)— Iran hostage crisis/Claim settlement
Holding: President Carter's termination of legal claims against Iran except through independent Claims Tribunal—
pursuant to EA Carter negotiated (and President Regan later signed )with Iran to end the 1979 hostage crisis—as

39
valid exercise of executive power against challenge by firm claiming $3 million in funds owed by Iran, reasoning
that:
1. Congress explicitly authorized the freezing and transfer of seized Iranian funds in the International
Emergency Economic Powers Act, which Carter invoked;
2. While that statute did not explicitly authorize suspension of legal claims, Congress “impliedly approved”
the practice of claim settlement by executive agreement in the International Claims Settlement Act.

Rule: Article II of the Constitution grants the U.S. president the exclusive authority to
formally recognize a foreign sovereign through executive power that Congress may
not contradict via statute
(Zone 1)
_____________________________________________________________________________________________
WAR POWERS RESOLUTION / ACT

Provides that the President can send armed forced into foreign action only by:
1. Declaration of war by Congress;
2. Statutory authorization of the use of military force (AUMF); OR
3. In a "national emergency created by attack upon the U.S., its territories or possessions, or its armed
forces."
President must notify Congress w/in 48 hours of committing forces, and armed forces prohibited from remaining
for more than 60 days w/out AUMF or Congress's declaration of war.

40
PRESIDENTIAL POWER AND THE WAR ON TERRORISM
Detentions
 Rasul v. Bush — The Supreme Court held at the detainees being held at Guantánamo Bay, Cuba, had a
right to have their habeas corpus petition heard in a federal court

Hamdi v. Rumsfeld (2004) —Enemy Combatant

Holding: PLURALITY — The government violated U.S. citizen Hamdi’s Fifth Amendment right to due process by
denying him access to an attorney / courts when it indefinitely detained him as “enemy combatant:”
1. Congress’s AUMF effectively authorized detention of U.S. citizen “enemy combatants” (i.e., actively
engaging in or supporting armed forces hostile to U.S.);
2. SoP does not bar the judiciary from hearing challenges from U.S. citizens to “enemy combatant”
designations, as Matthews due process balancing applies:
a. the private interest affected by the government action,
b. the government’s asserted interest, and
c. the burden / cost of requiring greater process;
3. Due process demands a U.S. citizen in indefinite military detention be given a “meaningful opportunity to
contest the factual basis for that detention before a neutral decision-maker.

Rule: Due process guarantees that United States citizens held in the United States as enemy
combatants must be given a meaningful opportunity to contest the factual basis for
that detention before a neutral decision-make

41
 FEDERALISM & LIMITS ON STATE POWER
Preemption
 If Congress has passed a law and it is a lawful exercise of congressional power, the question is whether
the federal law preempt state or local law
 If there is conflict between federal law and state or local law, the ladder is deemed preempted

Dormant Commerce Clause (DCC)

 Congress has not acted—or the Judiciary decides at the federal law does not preempt state or local law
 Local laws can be challenge under two principles:
o The dormant Commerce Clause and the privilege and immunities Clause
o The dormant commerce clause or sometimes called the “negative Commerce Clause” is a
principal to the state and local laws are unconstitutional if they place an undue burden on
interstate commerce
o Even if Congress has not acted, even if it’s commerce powers lies dormant, state and local
governments cannot place an undue burden on interstate commerce

Privileges AND Immunities Clause

 Article IV §2—“The citizens of each state shall be entitled to all privileges and immunities of citizens in the
several states.”
o The SCOTUS has interpreted the privileges and immunities clause as limiting the ability of states
to discriminate against out-of-stater with regard to constitutional rights or important economic
activities
o Has been applied when there has been challenges to state and local laws and discriminate against
out-of-staters with regard to their ability to earn a livelihood
_____________________________________________________________________________________________
PREEMPTION
 Article VI—Supremacy Clause
o “Constitution, and the law of the United States shall be made in pursuance there of; and all
treaties made or which shall be made, under the authority of the United States, Shelby the
supreme law of the land.”

42
Any state constitutional provision or law that directly or indirectly conflicts with a federal law, including federal
regulations, is void under this clause. However, the Supreme Court has frequently stated that there is a
presumption against preemption, especially in areas in which states have traditionally exercised police power.
---------------------------------------------------------------------------------------
A. Express Preemption—occurs where there is explicit preemptive language
o Express preemption doctrine applies where a federal statute explicitly states that the
federal law preempt state / local law in a certain area.
o MUST BE NARROWLY CONSTRUCTED
 But courts must still decide the meaning and scope of the preemption provision—
(i.e., what type of state / local action did Congress intend to preempt and
whether state / local law X is one Congress intended to preempt).

Lorillard Tobacco Co. v. Reilly (2001)—Cigarette Advertising Case [EXPRESSED PREEMPTION]

Facts: Massachusetts regulation by the AG of the State adding specific regulations on the tobacco industry aimed
at preventing youth from becoming involved in this action. Congress had already passed the FCCLS and amended
it many times for the purpose of regulating tobacco. PET ARGUMENT – Location is not being regulated only the
aim is being regulation (Youth)
Holding: Invalidating (5-4) state A.G.’s cigarette advertising regulations as preempted by FCLAA:
1. Text of preemption provision: “No requirement or prohibition ... based on smoking and health shall be
imposed under State law with respect to the advertising or promoting of any cigarettes [labeled in
compliance w/ FCLAA];”
2. Outdoor and point-of-sale advertising restrictions are “requirement[s] or prohibition[s]” w/in the meaning
of the FCLAA preemption provision;
A. Congress intended expansive preemption (e.g., amended prior text that preempted only
“statements in the advertising” to any regulations “with respect to” advertising or promoting
cigarettes).
B. Rejects state A.G.’s “youth exposure” argument that FCLAA’s “based on smoking and health”
language means Congress intended only to preempt health-content-based state regulations.
HELD – Express preemption of the AG’s activity occurred.

Rule: State cigarette-advertising regulations are preempted by the Federal Cigarette Labeling
and Advertising Act, regardless of whether the state regulations are related to
content or location.

---------------------------------------------------------------------------------------
B. Implied Preemption—Is often a function of both perceived congressional intent in the language used in
the statute or regulation.
---------------------------------------------------------------------------------------
i. Conflicts Preemption— Even if federal law does not expressly preempt the state law, compliance
with both federal and state regulations as a physical impossibility.

Fl. Lime & Avocado Growers v. Paul (1963)—Avocado Oil Content Case [IMPLIED—CONFLICT PREEMPTION]
Holding: Upholding (5-4) CA avocado oil-content regulation against preemption challenge by Florida avocado
growers who alleged the CA law conflicted w/USDA Secretary’s avocado maturity rule which did not consider oil-
content:
1. Implied conflict preemption applies only where it would be physically impossible to comply with both
laws.
2. The FL growers could have complied with both the federal rule and CA standard if they allowed their
avocados a few more days to grow before harvest (the added time would reduce the oil content), so there
is no real implied conflict between federal and CA law.

43
Main Takeaway: Even absent an express preemption provision, state / local law will be overridden by Implied
conflict preemption where it would be impossible to comply with both the federal and state requirements at the
same time (a.k.a., “physical impossibility” test).

Rule: When both federal law and state law are on point, federal law preempts state law if
there is a conflict between the two laws such that compliance with both is impossible.

**Preemption does not arise if there is no direct conflict between federal and state laws, meaning that it is
possible to comply with both of them simultaneously, and if the state law does not frustrate the purpose of the
federal law.

**The law was not preempted because the two policies were able to happen at the same time under the implied
preemption test.

---------------------------------------------------------------------------------------
ii. Obstacle Preemption (Fed. Objective)— Even if federal and state law are not mutually exclusive
and even if there is no congressional expression of a desire to preempt state law, preemption will
be found if state law stands as an obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.

Pac. Gas & Elec. Co. v. SERCD Comm’n (1983)—Nuclear Fuel Disposal Case [IMPLIED—OBSTACLE PREEMPTION]
State regulation of Nuclear Power under the Federal Law. California adopted the stance that it would not permit
the building of a nuclear plant without imposing its own standards as to its operations.
Holding: Upholding (7-2) California nuclear power-plant moratorium provisions against preemption challenge,
holding:
1. While pursuant to implied field preemption, Congress’s 1954 Atomic Energy Act (AEA) “occupied the field”
of state regulation of radiological safety aspects involving construction and operation of nuclear plants;
2. The CA law does NOT frustrate or impede Congress’s goal in passing the AEA of promoting development
of commercial nuclear power technology,
3. Because the CA law conditions future plant approvals on SERCD determination of adequate storage /
means for disposal of nuclear waste generated is w/in states’ traditional authority to regulate electrical
utilities (e.g., demand, cost, etc.).
Main Takeaway: Under implied obstacle preemption doctrine, state / local law will be overridden where the state
/ local law would interfere or frustrate the objectives of the federal law. Put another way, the state law will be
preempted if it’s an obstacle to accomplishment of the purpose of the federal law intended by Congress.
HELD: No federal objective instruction because Congress reserved the decision to the states for review.
-
Rule: A federal law may preempt a state or local law, even if the laws are not mutually exclusive, -
if the state law is deemed to impede the achievement of a federal objective. -
-
-
----------------------------------------------------------------------------------
iii. Field Preemption— Where the scheme of federal law and regulation is so pervasive as to make
reasonable the inference that Congress left no room for the states to supplement it.

Arizona v. United States (2012)—SB 1070 Immigration Enforcement Case [IMPLIED—FIELD PREEMPTION]
Facts: AZ passed an Act with 4 parts, 2 making it an offense not to complete registration. 3 rd part allowed for
arrests without probable cause. 4th requirement that stops and detainees were to have their identity verified with
Immigration.
Holdings:

44
 1. Invalidating (6-2) SB 1070 § 3 (misdemeanor for failure to register w/feds) on field preemption grounds,
holding: [FIELD]
A. Text and structure of Constitution assigns federal government sole authority in immigration /
foreign relations;
B. Congress, not the states, holds the Naturalization Clause power, and so also registration /
consequences for not registering;
C. Congress “occupied the field of alien registration” and so “even [the] complementary” or parallel
enforcement attempted by AZ is impliedly preempted;
2. Invalidating (5-3) § 5(c) (criminal misdemeanor to work / seek work w/out authorization) on obstacle
preemption grounds as w/1986 IRC Act Congress adopted ER-side, not EE-side criminal penalties, w/latter
subject only to civil penalties; [OBSTACLE]
i. Arizona law would interfere with careful balance struck by Congress making this section
preempted because greater penalties are being imposed
3. Invalidating (5-3) § 6 (authorizing warrantless arrests by AZ state / local police if PC to believe person
committed “any public offense” = “removable”) on obstacle preemption grounds, as: [OBSTACLE]
A. Congress enacted federal statutory scheme governing civil removal process, only permits arrests
during such removal proceedings by USAG warrant;
B. § 6 would effectively give AZ state / local police more authority than is possessed by federal
immigration officers, who follow protocols for removals (e.g., flight risk, military service).
i. Removal process is entrusted with federal government because this decision touches on
foreign relations. Therefore, the extra authority granted for warrantless arrests violates
the federal government standard
4. Upholding (6-2) § 2(b) (requiring AZ state / local officers to verify status of persons during police
encounters) against pre-enforcement facial attack, but suggests in dicta it’s constitutional only as applied
to otherwise lawful stops, searches, and/or arrests (not solely for prolonging detention)

Rule: A state law that addresses immigration and alien registration is preempted where
Congress has completely occupied the entire field
 Under implied field preemption—even w/out an express preemption provision or implied conflict or
obstacle—state / local law will be preempted if the court concludes Congress intended to “fully occupy
the field,” leaving no room for supplemental regulation in that legal area.
 The difficulty is, again, deciding the substance and scope of the “field” at issue using the tools of statutory
interpretation described earlier.
 When ambiguous, the court tends to stress whether the “nature” of the regulated area is traditionally an
area of state (e.g., electrical utilities, school curriculum) or federal concern (e.g., foreign affairs,
immigration).
---------------------------------------------------------------------------------------
**The touchstone of both express and implied preemption analyses is Congress’s intent. To determine that
intent, the courts consider the following, ranked in order to priority: (totality or balancing—if met its preempt)
1. The plain meaning of the statutory text;
2. The context and structure provided by the statutory scheme in which the text is located;
3. Legislative history (e.g., amendment history, floor debates);
4. Canons of statutory construction (e.g., ejusdem generis, in pari materia, etc.).
_____________________________________________________________________________________________

45
DORMANT COMMERCE CLAUSE (DCC)
Art I §8 cl 3—Congress shall have power “to regulate Commerce with foreign Nations, and among the several
States, and with Indian Tribes.”

 The dormant commerce clause is the principal that the state and local laws are unconstitutional if they
place an undue burden on interstate commerce
o The Supreme Court has inferred this from in art 1 § 8 to regulate commerce among the states
o No constitutional provision that expressly declares a state may not burden interstate commerce
o Even if Congress had not acted or no preemption is found, the state or local law can be challenged
on the ground that it excessively burdens commerce amongst the states
o Even if it’s commerce power lies dormant state and local law still can be challenged as unduly
implementing interstate commerce
 Commerce clause is interpreted both as:
o grant of “positive” authority to Congress AND
o an implied prohibition of state laws and regulations that interfere with or discriminate against
interstate commerce (the “dormant” or “negative” commerce clause).
Why a Dormant Commerce Clause?
 Congress always has the authority under its, commerce power to preempt state or local Regulation of
Commerce
o Congress could invalidate any state or local law that it deems to place an undue burden on
interstate commerce
_____________________________________________________________________________________________
TEST

_____________________________________________________________________________________________
Import-Export Clause: Prohibit states from laying any imposts or duties on import or exports (only international
trade)

46
Privileges and Immunities Clause: The citizens of each state shall be entitled to all privileges and immunities of
the citizens in the several states (do not protect corp and do not guard against certain discrimination scrutinized
under the DCC)

Tn. Wine & Spirits v. Thomas (2019)—Liquor Licensing Case

Holding: Invalidating (7-2) Tennessee’s two-year residency requirement for retail licensing of liquor store
operation, holding the two-year durational residency requirement:
1. FACIALLY DISCRIMINATES against out-of-state individual and companies;
2. Its purpose—economic protectionism (i.e., protecting TN liquor operators from out-of-state competition)
—is not a legitimate local purpose and has only a highly attenuated relationship to legitimate purposes
like public health or safety.
3. While Section 2 of 21st am. assigns states police power over the regulation of alcohol, it was not intended
to circumvent the DCC’s nondiscrimination principle.
Main Takeaway: If a state law discriminates—facially, in purpose, OR in effect—against out-of-state goods or
nonresident economic actors, it can only be sustained if the state law is narrowly tailored to advancing a
legitimate local purpose.

Economic Protectionism — protection of domestic business and industries against foreign competition by
imposing high tariffs and restricting imports

Rule: The dormant Commerce Clause prohibits protectionist state laws that unduly restrict
interstate commerce.
_____________________________________________________________________________________________
Laws that DO NOT DISCRIMINATE are generally upheld and will be struck down only if found a place burden on
interstate commerce that outweighs the benefits from the law

Laws that DISCRIMINATE against out-of-staters are usually invalidated and will be upheld only if deemed to be
necessary to achieve an important government purpose

 Facially Discriminatory: The laws and they’re very terms draw a distinction between in-staters and out-of-
staters
 Facially Neutral: Might be motivated by a desire to help in-staters at the expense of out-of-staters or
might have a discriminatory impact against those from other states
_____________________________________________________________________________________________
FACIALLY DISCRIMINATORY LAWS (Narrowly tailored)
 Law clearly favors in-staters over out-of-staters
 Sometimes states expressly place out-of-staters businesses at a disadvantage compared to in-state
businesses or act to help in-state businesses at the expense of out-of-staters businesses

City of Philadelphia v. N.J. (1978)—[Trash Import Ban Case]

Holding: Invalidating (7-2) N.J. Waste Control Act ban on import of most “solid or liquid waste” generated out-of-
state as unconstitutional pursuant to DCC doctrine, holding:
1. Where by its very terms a state law / regulation discriminates against out-of-state persons, companies, or
goods in commercial activity it is “FACIALLY DISCRIMINATORY” and per se invalid;
2. NJ law facially discriminates against out-of-state articles of commerce (trash), imposing on out-of-state
commercial interests “the full burden of conserving the State’s remaining landfill space;”
3. N.J. law is motivated by "simple economic protectionism" as opposed to legitimate local interests
w/"incidental" interstate effects.

Rule: A state may not discriminate against other states’ articles of commerce on the basis of
origin
. 47
---------------------------------------------------------------------------------------
FACIALLY NEUTRAL LAWS (Burden v. Benefit)
 Facially neutral state and local law can be found to be discriminatory if they have the PURPOSE and/or
the EFFECT of discriminating against out-of-staters
o Facially neutral laws also can be found discriminatory if they were enacted for a protectionist
purpose: helping in-state at the expense of out-of-staters

West Lynn Creamery v. Healy (1994)—Milk Tax + Subsidy Case

Holding: INVALIDATING (7-2) M.A. pricing order imposed on all dealers of milk sold to M.A. retailers as
violating DCC:
1. The pricing order is FACIALLY NEUTRAL (i.e., it taxes all milk dealers regardless of whether the milk dealt
was produced in-state or out-of-state);
2. But when combined with the subsidy distributing taxed funds to only in-state dairy farmers, the pricing
order acts as a tariff on out-of-state milk production and sale;
3. Together, the purpose and effect of the nondiscriminatory pricing order and subsidy program is to unduly
burden out-of-state commerce.
Main Takeaway: Even if a law is facially neutral, it violates the negative Commerce Clause if its purpose or effect
is to unduly burden out-of-state economic actors.

Rule: A regulation violates the Commerce Clause if the combination of a tax and subsidy
discriminates against interstate commerce, even if each component would be
constitutional if separated.
Minnesota v. Clover Leaf Creamery (1981)—Plastic Milk Container Ban Case
Holding: UPHOLDING (7-1) MN state law banning retail sale of milk in plastic nonreturnable, nonrefillable
containers (but permitting milk sold in non-plastic containers) against DCC challenge:
1. MN law was FACIALLY NEUTRAL, prohibiting all retail sale of milk in plastic containers regardless of
whether milk, containers, and/or sellers are from in-state or out-of-state;
2. Primary purpose of MN law is legitimate state / local interest in resource and energy conservation as well
as managing waste disposal.
3. Disproportionate effect burdening out-of-staters was relatively minor and not clearly excessive.
--
Rule: A state law that has the practical effect of discriminating against interstate commerce will --
not be struck down unless the burden it places on interstate commerce is clearly --
excessive in relation to the putative local benefits it confers. --
--
--
---------------------------------------------------------------------------
LEGITIMATE LOCAL PURPOSE? LESS NONDISCRIMINATORY ALTERNATIVE?

Dean Milk Co. v. City of Madison (1951)—5-Mile Milk Ordinance Case

Holding: INVALIDATING Madison city ordinance prohibiting sale of pasteurized milk not produced and bottled
w/in 5 miles of city center as violating DCC doctrine:
1. 5-mile geographic limit is FACIALLY DISCRIMINATORY and imposes disproportionate economic burden,
despite legitimate local interest in safety of pasteurized milk;
2. Ordinance not narrowly tailored to claimed safety purpose because there were reasonable
nondiscriminatory alternatives (e.g., requiring milk producers to submit to and pay for Madison
inspection, Model Milk Ordinance prohibiting milk not produced in compliance w/ standards as high as
receiving city).

48
Main Takeaway: If a law is deemed as DISCRIMINATING against out-of-state economic actors (whether facially, in
purpose, or in effect), the Court will ONLY uphold the law if there are no reasonable nondiscriminatory
alternatives adequate to advancing the local interest

Rule: A state statute that discriminates against interstate commerce will be held invalid if there
are other less-discriminatory means by which the state legislature can accomplish its
objective.

Maine v. Taylor & United States (1986)—Baitfish Case

Holding: UPHOLDING (8-1) Maine ban on import of live baitfish against DCC challenge, holding:
1. While Maine ban discriminated against out-of-state commerce in live baitfish, DISCRIMINATORY laws may
be upheld if they serve "legitimate local purposes that could not adequately be served by available
nondiscriminatory alternatives,“
2. Maine officials had no reasonable or adequate alternative means of ensuring imported fish would be free
of parasites / non-native species that pose environmental harms, because:
a. the small size / massive quantity of baitfish made separating non-native species impossible; AND
b. parasite testing procedure destroyed the fish.
-
- Rule: States may prohibit the importation of out-of-state goods moving within the flow of
- commerce as long as the prohibition serves a legitimate local purpose, and there are no
- available less discriminatory means to accomplish that same purpose.
-
-
---------------------------------------------------------------------------------
BALANCING DISCRIMINATORY IMPACT v. STATE/LOCAL INTEREST

BALANCING TEST:
1. If the court decides that a particular law is NOT discriminatory against out-of-staters, then a simple
balancing test is used: the court balance is the law’s BURDENS on interstate commerce against its
BENEFITS
a. The law will be found unconstitutional if the court decides at the burdens from the law exceed its
benefits

Loren J. Pike v. Bruce Church (1970)—Cantaloupe Packing Case

Holding: Unanimously INVALIDATING AZ statute requiring packages of cantaloupes grown in AZ advertise AZ as
their origin state against DCC challenge, holding:
1. A NONDISCRIMINATORY (NEUTRAL re: both in-staters and out-of-staters) state law / regulation
burdening interstate commerce will be upheld so long as the benefits to the state or locality outweigh the
burden on interstate commerce;
2. Here, the burden imposed on Bruce Church ($200K additional cost for operating packing plant in AZ rather
than CA) outweighs AZ's legitimate interest in identifying origin of AZ cantaloupes.
Rule: Where the statue regulates evenhandedly to effectuate a legitimate local public interest, and its effect on
interstate commerce are only incidental, it will be upheld UNLESS the burden impose on such a commerce is
clearly excessive in relation to the punitive local benefits

Rule: A state law that furthers a legitimate local public interest and only incidentally affects
interstate commerce will be upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits.

BIBB Illinois v. Navajo Freight (1959)—Mudguard Case

49
Holding: Unanimously INVALIDATING IL law requiring trucks / trailer on its state highways have "contoured"
rather than "straight" mudguard, holding IL law unconstitutionally burdens interstate commerce, because:
1. While facially neutral laws carry a presumption of validity,
2. IL identified no real benefits of "contoured" mudguards, such mudguards possibly increased safety issues,
and thus the burden on out-of-stater trucking (e.g., high cost, disruption of in-line shipping, vast majority
of states allow straight mudguard) outweighs IL's claimed state interest.

Rule: If a state statute is facially neutral, the judiciary will balance the putative local benefits
with the burden the statute places on interstate commerce, and will find the statute
invalid if the burden substantially outweighs the local benefits.

_____________________________________________________________________________________________

SUMMARY
Discriminate against out-of-staters — are almost always declared unconstitutional. Such a law will be allowed
only if it is proven that the law is necessary – the least restrictive means – two achieve a non-protectionist
purpose

Does not discriminate against out-of-staters — the court balances it’s burdens on interstate commerce against
its benefits. The inquiry is fact dependant and the outcome obviously turns on how the court appraises the
burdens and the benefits
_____________________________________________________________________________________________

50
DCC EXCEPTIONS + ART. IV PRIVILEGES AND IMMUNITIES CLAUSE
Relationship between PIC & DCC
1. PIC can be used ONLY if there is discrimination against out of staters VS DCC can be used to challenge
state and local laws that burden interstate commerce regardless of whether they discriminate against out
of staters.
a. Under DCC laws that discriminate are much more likely to be invalidated.
2. Corporations and aliens can sue under the DCC but not the PIC. PIC ONLY for citizens
3. Congressional approval does not excuse a law that violates the PIC.
a. There’s NO such exception, like the market participant, for the PIC.
_____________________________________________________________________________________________
DCC EXCEPTIONS:
1. Congressional Approval—If congress approves the state law. Even a clearly unconstitutional,
discriminatory state law will be allowed if approved by Congress because Congress has plenary power to
regulate commerce among the states.
2. Market Participant—A state may favor its own citizens in receiving benefits from government programs or
in dealing with the government owned businesses (can be a seller or buyer)
---------------------------------------------------------------------------------------
DCC EXCEPTION — CONGRESSIONAL APPROVAL

 If Congress ordains that a state me freely regulate an aspect of interstate commerce, any action taken by
the state within the scope of the congressional authorization is rendered invulnerable to commerce
clause challenge
o This means that Congress may confer upon the states an ability to restrict the flow of interstate
commerce that they would not otherwise enjoy
 If Congress has acted, the Commerce power is no longer dormant
o It is one of the few areas were Congress has the clear authority to overrule the Supreme Court decision
interpreting the constitution
 If the court deems a matter to violate the Dormant and Clause, Congress can respond by enacting a law
approving the action in there by affectively overruling the Supreme Court

W&S Life Ins. Co. v. State Board of Equalization (1981)—Retaliatory Tax Case
Holding: DENYING Ohio life insurance company’s DCC challenge to California retaliatory tax, holding:
1. While DCC would ordinarily be violated by CA’s retaliatory tax on out-of-state insurers whose state of
incorporation (here Ohio) imposes higher taxes on CA insurers doing business in that state than CA would
otherwise impose on out-of-state insurers doing business in CA;

51
 2. In McCarran-Ferguson Act, Congress approved state taxation of insurances, so Commerce Clause no
longer “dormant” and CA retaliatory tax valid.
Main Takeaway: Even when a state law unduly burdens interstate commerce such that it violates DCC, it is
VALID if Congress expressly approves such state laws and the state law at issue is within the scope of the
congressional approval.
**Note: the state law could still be invalidated on EPC or P&I grounds.

Rule: Congress may authorize state laws that would otherwise violate the dormant Commerce Clause

---------------------------------------------------------------------------------------

DCC EXCEPTION — MARKET PARTICIPANT

 A state may favor its own citizens in dealing with government-owned business and in receiving benefits
from the government programs
 If the state is literally a participant in the market, such as with a state owned business, and not a
regulator, the dormant clause does not apply
 Discrimination against out of stators is allowed that otherwise would be impermissible

Huges v. Alexandria Scrap Corp. (1976) — Maryland Scrap-metal

Facts: The state required minimal documentation for in-state scrap processors thought either a certificate of title,
a police certificate vesting title, or a bill of sale from the police auction.
Holding: The court UPHELD a Maryland law designed to rid the state of abandoned automobiles by having the
state pay for destruction of inoperable cars.
 CRT stated that the state was a market participant as it was purchasing the cars, and therefore its
discriminatory actions against out-of-staters did not violate the DCC.
o “Nothing in it’s purposes animating the CC prohibits a State, in the absence of congressional
action, and participating in the market and exercising right to favor its own citizens over others.”

Reeves Inc. v. William Stake (1981)—Cement Supply Case [IMMEDIATE REGULATION]

Holding: REJECTING Reeves Inc.’s DCC challenge to Commission and SD’s state-owned cement plant policy to fill
SD customers’ orders before out-of-staters during cement-supply crisis, holding that SD acted as a seller of
cement (market participant) rather than market regulator.
Main Takeaway: If a state is acting as a market participant—rather than a regulator—the DCC does NOT apply
and its discriminatory actions against out-of-staters is permitted.

Rule: Under the market participant exception to the Commerce Clause, when a state government
acts as a market participant rather than a market regulator, it may favor its own citizens in
commercial dealings.
South-Central Timber v. Wunnicke (1984)—Timber-Processing Case [DOWNSTREAM REGULATION]
Holding: INVALIDATING Alaska Department of Natural Resources contract requirement that purchasers of state-
owned timber partially process it w/in Alaska before shipping the purchased timber out-of-state as violating DCC:
1. Market-participant exception does not apply to conditions that have a substantial regulatory effect
outside of the particular market the state is actually participating in (i.e., "downstream" conditions).
2. While Alaska may impose conditions on the immediate transaction (i.e., purchase of state-owned timber),
it cannot impose the partial-processing condition, which has a substantial regulatory effects
"downstream" to the timber-selling market.

Rule: A state may impose burdens on commercial52transactions within the market in which it is a
participant, but may not go further and impose conditions that have a substantial
regulatory effect outside of that particular market.
_____________________________________________________________________________________________
PRIVILEGES AND IMMUNITIES CLAUSE

PRIVILEGES AND IMMUNITIES CLAUSE (Art. IV Sec. 2)

 “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states”
o This provision limits the ability of the state to discriminate against out-of-staters with regard to the
fundamental rights or important economic activities (NOT ABSOLUTE)
o Prevents the state from discriminating against citizens of other states in favor if it’s own
 Challenges involve state and local laws that discriminate against out-of-staters with regard to
their ability to earn a livelihood
o Discrimination will be allowed ONLY if it’s substantially related to achieving a substantial state
interest
 Corporations and aliens cannot sue under the privileges and immunities Clause

** BEFORE BILL OF RIGHTS PROTECTS—FUNDAMENTAL RIGHTS AND LIVELIHOOD

_____________________________________________________________________________________________
 The PIC has been applied in 2 contexts:
o When a state is discriminating against out of staters with regard to constitutional rights
o When the state is discriminating against out of staters with regard to important economic
activities
Doe v. Bolton—the state could not limit the ability of out of stators to obtain abortions in the state
McBurney v. Young— he PIC protects only those privileges and immunities there are fundamental

Test for PIC

 DOES THE DISCRIMINATION BURDEN A FUNDAMENT PRIVILEGE?—Must have a violation of a
fundamental right (must prove first)
o Fundamental for purposes of PIC
 Vitally one nation (does the state law go against the “one nation” policy”)
 Interstate harmony
 IS THERE A SUBSTANTIAL REASON FOR THE DISCRIMINATING TREATMENT?—Is this interest being
discriminated against
o Substantial state interest
o Substantially related to the state interest
---------------------------------------------------------------------------------------
Toomer v. Witsell (1948)—Shrimping Boat Fee Case
Holding: INVALIDATING South Carolina law requiring out-of-staters pay $2.5K fee for shrimping license (while SC
citizens paid $25), identifying two-step test:
1. Whether the law discriminates against citizens of other states w/respect to a fundamental right or
important economic activity;
2. If so, whether there is a substantial reason for the discrimination (i.e., beyond the mere fact they are
citizens of another state) that substantially relates to the State or localities’ objectives.
Main Takeaway: SCOTUS has interpreted the Art. VI P&I Clause to prohibit states from discriminating against the
citizens of other states w/ respect to constitutional rights (e.g., owning and selling property, access to courts) and
important economic activities like the ability to earn a livelihood.

Rule: The Privileges and Immunities Clause of the Constitution prevents states from discriminating
against citizens of other states unless valid independent reasons exist for the
discrimination, and the degree of discrimination bears a close relationship to those.
reasons.
United Building v. Mayor & Council City of Camden (1984)—Camden Public Works Case

53
Holding: INVALIDATING Camden city ordinance requiring at least 40% of EEs on city projects be Camden
residents as violating P&I Clause, holding:
1. P&I Clause applies to a municipal ordinance, because cities / counties derive authority from state and
despite burdening both out-of-state and non-city residents w/in state equally, the latter have electoral
power;
2. Camden ordinance discriminates against right of out-of-states residents’ interest in employment on public
works contracts in another state;
3. But remands the case to find facts re: whether the Camden residency requirement substantially relates to
the stated objectives (e.g., combat unemployment, prevent city flight).
**NOTE: Would be valid if brought under the Dormant Commerce Clause!! Privileges and Immunities can be
brought by against subdivision of state; i.e. cities and counties. However, it cannot be asserted by citizens of state!

Rule: A state may not discriminate against out-of-state interests if those interests are sufficiently
fundamental to the promotion of interstate harmony so as to fall within the purview of the
Privileges and Immunities Clause, unless the state has a substantial reason for treating out-
of-state citizens differently, and the discriminatory means it imposes are closely related to
accomplishing that reason.
Baldwin v. Montana Fish & Game Commission (1978)—Elk-Hunting License Case
Holding: REJECTING P&I Clause challenge to Montana’s disparate elk-hunting licensing schemes (higher fees and
hunting restrictions for out-of-staters), holding:
1. Big-game hunting is NOT fundamental right within the meaning of the P&I Clause, reasoning that big-
game hunting is not a means to earning a livelihood but a recreation or a sport; and
2. Suggests in dicta that—even if step 1 were met—Montana’s conditions on nonresident elk hunting
substantially relate to a valid purpose (i.e., conservation / preservation of native elks).

Rule: A state may lawfully discriminate by imposing different regulations on residents and
nonresidents of the state as long as those regulations do not impact the “privileges” and
“immunities” of non-citizens that bear upon the validity of the nation as a single entity
reasons.
New Hampshire Supreme Court v. Kathryn A. Piper (1985)—Bar Admission Residency Requirement Case
Holding: INVALIDATING NH residency requirement for bar admission as violating P&I Clause, holding:
1. Bar residency requirement discriminates against out-of-staters by excluding them from the practice of
law, which implicates not only lawyers’ right to earn a livelihood but also fundamental rights; and
2. The bar residency requirement does not substantially relate to the stated objectives:
a. Non-resident lawyers have equal incentive to familiarize themselves w/local court rules and Bar
requirement is under inclusive (i.e., allows former residents who move out of state to retain NH
license)
b. Non-resident lawyers equally subject to disciplinary action for unethical conduct;
c. Unavailability for unscheduled hearings can be resolved by requiring local co-counsel at discretion
of trial judge;
d. Pro bono concern unfounded and in any case could be resolved by requiring all bar members
(whether residing in-state or out-of-state) to do in-state pro bono hours
(1) there is a substantial reason for the difference in treatment and
(2) the discrimination against non-residents bears a substantial relationship to the State’s and objective

Rule: States may discriminate against rights of out-of-state residents as long as there is a
substantial reason for the difference in treatment, and the discrimination practiced against
nonresidents bears a substantial relationship to the state’s objective.

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_____________________________________________________________________________________________

INDIVIDUAL RIGHTS LIMITS ON STATE POWERS [AMENDS. I – XV]

Article 1
§9 — (limits congress’s power)
 “the privileges of the Writ of Habeas Corpus shall not be suspended, unless when in the Cases of Rebellion
or Invasions, the public Safety may require it.”
 “No Bill of Attainder or ex post facto Law shall be passed.”
o Bill of Attainder: Is a law the directs the punishment of a particular person. Such a law negates all
due process and procedural protections. In essence, it is trial by legislature, undermining the basic
rights to a fair trial and usurping the role of the judiciary.
o Ex post facto: Is one that criminally punishes Conduct that was lawful when it was done. It is an Ex
post facto law if after a person acts legally, the legislature adopts a criminal law and attempts to
punish that person retroactively.
§10 — “no State shall . . . Pass any bill of attainder, ex post facto law, or law imparting in the obligation of
contracts.”

Article 3
§2 — “the trial of all crimes, except in cases of impeachment, shall by jury; and trial shall be held in the state
where the said crimes shall have been committed.”
§3
 “Treason against the United States, shall consist only in living war against them or, in adhering to their
enemies, giving them eat and comfort. No person shall be convicted of treason unless on the testimony of
two witnesses to the same over act, or on confession in open court.”
 “Corruption of blood, or forfeiture except during the life of the person attained”

Article VI — “No religious test she’ll ever be required as a qualification to any officer of public trust under the
United States”

9th Amendment — “The enumeration in the constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
10th Amendment — “The powers not delegated to the United States by the constitution, nor prohibited by it to
the states, are reserved to the states respectively, or to the people.”

14th Amendment Clause

Birthright Citizenship Clause
“All persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S. and of
the State wherein they reside.”

P OR I Clause
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S. ...”

Due Process Clause

“No State shall ... deprive any person of life, liberty, or property, without due process of law”

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Equal Protection Clause
“No State shall ... deny to any person within its jurisdiction the equal protection of the laws.”
_____________________________________________________________________________________________

Barron v. Baltimore (1833)—Stream-Diversion Case

Holding: REJECTING 5th am. Takings Clause challenge by P wharf owner to Baltimore City stream-diversion
inhibiting wharf traffic, holding the 5th am. Takings Clause (and Bill of Rights more generally) were intended to
limit ONLY the powers of the national—not state or local—governments.
Main Takeaway: Prior to passage of the Reconstruction Era amendments after the Civil War, SCOTUS held that
the Bill of Rights applied only to federal, not state / local, action that infringed upon individual rights.

Rule: The Bill of Rights, specifically the Fifth Amendment’s guarantee that government takings for
public use require just compensation, are only restrictions on the federal government and
do not apply to state or local government.
_____________________________________________________________________________________________

14TH AMEND. PRIVILEGES OR IMMUNITIES & INCORPORATION

P OR I Clause
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S. ...”

** PROTECTS—RIGHT TO TRAVEL
---------------------------------------------------------------------------------------
Saenz v. Roe (1981)—CA Welfare Ceiling Case
Holding: INVALIDATING CA statute limiting first-year residents’ welfare benefits to level they would’ve received in
origin state, as violating 14th am. P/I right to travel:
1. CA statute unconstitutionally discriminates by paying first-year residents the same welfare benefits they
received in their state of origin, treating new residents differently than others who have lived in their
borders for over one year.
2. Fiscal conservation not sufficient purpose to justify discriminating against new residents given availability
of non-discriminatory alternatives;
3. While deterring welfare applicants from migrating to CA may be valid purpose, empirical evidence shows
# of such migrants to CA is minimal and CA legislature made clear purpose was fiscal not deterrence.

Rule: The Privileges and Immunities Clause protects the right to travel by allowing citizens to move
freely between states, securing the right to equal treatment in all states when visiting, and
securing the rights of new citizens to be treated the same as long-term citizens living within
the state.
---------------------------------------------------------------------------------------
The Fourteenth Amendment P/I Clause protects the right to travel in three ways by:
1. Allowing citizens to move freely between states
2. Securing the right to be treated equally in all states when visiting; AND
3. Securing the rights of new citizens to be treated like long-time citizens of a state.
---------------------------------------------------------------------------------------
INCORPORATION DOCTRINE The incorporation doctrine is a constitutional doctrine through which the
first ten amendments of the United States Constitution (known as the Bill
of Rights) are made applicable to the states through the Due Process
clause of the Fourteenth Amendment.
56
McDonald v. City of Chicago (2010)—Chicago Gun Control Case
Holding: HOLDING (5-4) Chicago gun ordinance subject to 2nd am. strict scrutiny and remanding:
1. Incorporating right to keep and bear arms for purpose of self-defense against state and local governments
(plurality via the 14th am. DPC, Thomas via P/I Clause);
2. Reiterating D.C. v. Heller that “central component” of 2nd am. protection is individual self-defense;
3. Cataloguing “history and tradition” showing gun possession for lawful self-defense is “deeply rooted”
(e.g., 1689 English BoR, Blackstone, majority of states’ constitutions enshrined 2nd am. analogues, etc.).
Main Takeaway: Under the selective incorporation doctrine, a right will be deemed fundamental—and therefore
incorporated against state and local governments—if it is "implicit in the concept of ordered liberty” or “deeply
rooted in our nation’s history and traditions.”

Rule: A Bill of Rights guarantee applies to the states if it is fundamental to the nation’s scheme of
ordered liberty or deeply rooted in the nation’s history and tradition.

Timbs v. Indiana (2019)—Land Rover Case

Holding: Unanimously HOLDING the 8th am. Excessive Fines Clause is incorporated against the states via the 14th
am. Due Process Clause (though Thomas and Gorsuch argue for P/I Clause as vehicle):
1. Indiana forfeiture of Timbs’ Land Rover subject to Excessive Fines Clause analysis, as the clause protects
against excessive punitive economic sanctions;
2. Cataloguing “history and tradition” showing excessive fines proscription “deeply rooted” (e.g., Magna
Carta, English BoR, by 1868 35/37 states and today all 50 state constitutions have Excessive Fines Clause
analogues).

Rule: A Bill of Rights guarantee applies to the states if it is fundamental to the nation’s scheme of
ordered liberty or deeply rooted in the nation’s history and tradition.

---------------------------------------------------------------------------------------
There are still three provisions of the bill of rights that have never been incorporated don’t apply to state and
local governments:
1. The third amendment the right to not have soldiers quartered in a persons Home
2. The right to a grand jury indictment in criminal cases
3. The seventh amendment right to jury trial in civil case
_____________________________________________________________________________________________

57
THE STATE ACTION REQUIREMENT
Private conduct generally does not have to comply with the constitution, however the Constitution applies to the
the gov’’t at all levels, federal, state and local, and actions of gov’t officers at all levels.

13th Amendment — “Neither slavery nor involuntary servitude, except as a punishment for crime where of the
party shall have been duly convicted, she’ll exist within the United States, or any place subject to their jurisdiction.”

State Action — provides that the Constitution only applied to the government
 Congress has an active laws such as a civil rights act of 1964, the prohibit private discrimination by private
employers and by places of public accommodation

State Action Doctrine means that private actors have the freedom to ignore the constitution and the limits
contained within it
---------------------------------------------------------------------------------------
Civil Rights Act Cases (1883)—Civil Rights Act Private Discrimination Case
Holding: Invalidating 1875 CRA prohibitions on racial discrimination in private activities (e.g., facilities,
accommodations), reasoning § 5 “does not authorize Congress to create a code of municipal law for the
regulation of private rights; but to provide modes of redress against the operation of State laws, and the actions
of State officers.”
Main Takeaway: The principle that Congress’s 14th am. § 5 enforcement power extends ONLY to “state action”
and not purely private action remains valid law. BUT remember that:
1. Congress has 14th am. § 5 power to regulate discrimination by private actors acting in concert with state
officials (e.g., conspiracy, § 1983);
2. Congress has 13th am. § 2 power to prohibit private actors from owning slaves and other “badges or
incidents” of slavery; AND
3. Congress may regulate private discrimination if valid exercise of enumerated powers (e.g., Commerce
Clause).

Rule: Under the Equal Protection Clause of the Fourteenth Amendment, Congress may only
prohibit discrimination by state actors, not private individuals.

**The constitution offers no protection against private wrongs no matter how discriminatory or how much the
infringe fundamental rights.**
_____________________________________________________________________________________________
The exceptions to the State Action Doctrine

The public functions exception which says that a private entity must comply with the constitution if it is
performing a task that has been traditionally, exclusively done by the government
_____________________________________________________________________________________________
PUBLIC FUNCTIONS EXCEPTION

Marsh v. Alabama (1946)—Company Town Case [Chickasaw]

Fact: Was open to the public, highway lead right into the town, had a deputy from Mobile County Sheriff as hired
by town as town’s policeman & US postal office in one of its places
58
Holding: Reversing (5-3) conviction of Jehovah Witness under Alabama state trespassing statute for distributing
religious literature on sidewalk of shopping district of company-owned town as violating 1st (as incorporated
against states by 14th am.)
1. If private property is sufficiently dedicated to public use, the owner cannot restrict the fundamental
constitutional rights of those using the property—just as if they are a state actor.
2. Gulf Corp. subject to 1st am. limits because, despite “No Trespassing” signs in shops, Gulf Corp.-owned
shopping center and sidewalk was freely accessible and open to not only company EEs but also
neighboring communities and people passing through.

Rule: The First and Fourteenth Amendment protections of speech and religion still apply to
individuals when operating in a privately-owned town if the town is open to the public and
used for public purposes.
**State action is a balancing test where the court weighs the interests of the private property owner and the
constitutional rights involved.**

Jackson v. Metro Edison Co. (1974)—Utility Shutoff Case

Holding: Dismissing (6-3) 14th am. DPC challenge to utility company’s shutoff of electricity without pre-
termination notice, hearing, and opportunity to pay for lack of “state action:”
1. Extensive regulation of private company MetroEd by PA Public Utility Commission does not transform its
termination procedure into state action;
2. Partial monopoly granted to MetroEd Co. by PA not dispositive;
3. While supply of electricity is essential public service, it is NOT a “public function” traditionally exclusively
to the states.
4. Mere fact that a business is subject to state regulation does not by itself make it a state actor
Rule: For purposes of the Fourteenth Amendment, an action of a private entity will only be treated
as state action if there is a sufficiently close nexus between the state and the challenged
action of the private entity so that the action of the latter may be fairly treated as that of
the state itself.

Terry v. Adams (1953)—Anti-Black “Pre-Election” Primary Case

Holding: Invalidating (8-1) Jaybird Association primary as violating 15th am.
1. Primary elections serve essential functions in the electoral process;
2. Private county-level party’s whites-only “pre-election” primary constitute state action because Jaybird’s
primary functionally controlled election outcomes (Jaybird primary = Democratic primary = general
election) and effectively excluded black voters from electoral power.

Rule: The Fifteenth Amendment does not permit the exclusion of African American voters from
primary elections run by private parties when those elections ultimately influence later
publicly-run elections.
Hudgens v. NLRB (1976)—Union Mall-Picketing Case
Holding: Dismissing (6-2) NLRB complaint against Hudgens (general manager of privately owned shopping mall)
for lack of state action:
1. Private shopping mall is not functionally equivalent to a company town business district (as in Marsh);
2. Given lack of state action, Hudgens may exercise content-based restrictions (i.e., threatening striking
union members with arrest for trespass) on speech that would otherwise violate 1st am.

Rule: A private shopping mall may constitutionally exclude picketing on its premises even if that
picketing relates to the actual activities of its tenant stores.
59
_____________________________________________________________________________________________

The exceptions to the State Action Doctrine

The entanglement exception says that private Conduct must comply with the constitution if the government
affirmatively authorizes, encourages or facilitated the unconstitutional conduct..
_____________________________________________________________________________________________
ENTANGLEMENT EXCEPTION

1. Judicial and Law Enforcement Actions

2. Government Licensing and Regulation
3. Government Subsidies
4. Voter Initiatives Permitting Discrimination
---------------------------------------------------------------------------------------
JUDICIAL AND LAW ENFORCEMENT ACTIONS

Shelley v. Kraemer (1948)—Racially Restrictive Covenant Case

Holding: Reversing (6-0) Missouri Supreme Court decision that permitted trial court’s enforcement of racially
restrictive housing covenant against African American family purchasers of home as such judicial enforcement
would violate of 14th am. EPC:
1. While racially restrictive private agreements (“prohibiting persons from owning or occupying property
based on race or color”) standing alone do not constitute state action,
2. Enforcement of such covenants by state / local judges constitutes state action under the entanglement
exception—as state judges would in effect be affirmatively facilitating unconstitutional conduct.
*Courts rarely apply

Rule: State court enforcement of a racially restrictive covenant constitutes state action that
violates the Equal Protection Clause of the Fourteenth Amendment.

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PREJUDGMENT Attachment

Lugar v. Edmonson Oil Co. (1982)—Pre-Judgment Attachment Case

Holding: Ruling (5-4) DPC challenge by P truck stop operator against D private company creditor valid given the
D’s actions were “fairly attributable” to VA state prejudgment ex parte attachment procedure under two-part
test:
1. The deprivation must be caused by the exercise of some right or privilege created by the state, a rule of
conduct imposed by the state, OR by a person for whom the state is responsible.
a. Here, VA state prejudgment, ex parte attachment procedure created right / privilege used by D
against P.
2. The party charged w/ the deprivation must be a state actor by virtue of being a state official, by acting
together w/ or getting significant assistance from a state official, or b/c his conduct is otherwise
attributable to the state.
a. Here, D is state actor due to joint participation of sheriff in the unconstitutional conduct, invoking
aid of sheriff as state official to levy the attachment of P's property.
--- -
--- Rule: A debtor has a claim under the Fourteenth Amendment and 42 U.S.C. § 1983 when a -
--- state wrongfully grants an attachment of his property to a private individual -
--- -
-----------------------------------------------------------------------
60
PEREMPTORY Challenges—The ability of a litigant to excuse perspective jars without showing cause.

Edmonson v. Leesville Concrete Co. (1991)—Preemptory Challenge Case

Holding: Holding (6-3) private litigants' use of race-based preemptory challenges in civil proceedings violates EPC
under two-part Lugar test and remanding construction African American EE’s negligence claim against ER:
1. Whether the deprivation resulted from exercise of a right / privilege sourced from state authority?
a. Yes. Preemptory challenge procedure provided by federal statute (up to 3).
2. Whether the private party charged with the deprivation can be fairly described as state actor?
a. The extent the private actor relies on government assistance / benefits (yes, preemptory
challenge requires judge to enforce)
b. Whether actor performs traditional government function (yes, jury as fact-finder in civil trial).
c. Whether the injury caused is aggravated in unique way by governmental authority (yes, to
authorize race discrimination in court undermines trial integrity).
*Laws create preemptory challenges and jury selection it’s a government function accomplished through the
power of the state and overseen by a judge.

Rule: A private litigant in a civil case may not use peremptory challenges to exclude jurors on
account of their race because the exercise or peremptory challenges invokes state action.
---------------------------------------------------------------------------------------
GOVERNMENT REGULATION—Government licensing or regulating is insufficient for finding of state action, unless
there is other government encouraging or facilitating of unconstitutional Conduct

Burton v. Wilmington Parking Auth. (1961)—Eagle Coffee Discrimination Case

Holding: Ruling (6-3) a private entity is a state actor for EPC purposes when a state leases property for public use
+ purposes to that private entity:
1. Land and building used by Eagle Coffee publicly owned by DE Parking Authority and dedicated to public
use in performance of governmental functions (e.g., funding construction, maintenance).
2. DE Parking Authority and Eagle Coffee gained mutual benefits (e.g., lease payments, parking fees from
Eagle Coffee customers).
3. Inaction of DE Parking Authority in failing to challenge / include lease restriction on discrimination
amounts to joint participation.

Rule: When a state leases public property to a private entity and forms a relationship of
interdependence with that entity, the private lessee must comply with the Fourteenth
Amendment’s prohibition of discriminatory conduct.

Moose Lodge No. 107 v. Irvis (1972)—Private Club Discrimination Case

Holding: Rejecting (6-3) EPC challenge to private club refusal of service to African American customer:
1. While PA Liquor Authority issued liquor license and authorized sale of liquor at private club operated by
Moose Lodge (private fraternal association), such licensing is NOT sufficient to “entangle” Moose Lodge as
state actor;
2. Moose Lodge is a private social club in a private building not held open to public use or involved with
governmental functions (unlike Eagle Coffee in Burton which was public restaurant in a public building).

Rule: Where a state does NOT significantly involve itself with invidious discriminations by a private
entity, NO state action has occurred, and the private entity is not prohibited from
discriminating against people on the basis of race by the Fourteenth Amendment.
61
---------------------------------------------------------------------------------------

GOVERNMENT SUBSIDIES—Government financial support

Norwood v. Harrison (1973)—Textbook Lending / Segregated Private School Case

Holding: Unanimously holding states CANNOT provide financial or other tangible aid (e.g., textbook lending) to
private schools w/racially discriminatory admissions policies.
1. While private schools may admit students / hire teachers in discriminatory way (e.g., race, religion), when
states subsidize or provide tangible support or encouragement to such schools the schools are
“entangled” and become state actors for EPC purposes

Rule: The Equal Protection Clause does not require a state to provide the same financial assistance
to private schools as it would to public schools without regard to whether the private
schools engaged in discriminatory practices.

Rendell-Baker v. Kohn (1982)—Teacher Uprising Case

Holding: Rejecting (7-2) former teachers’ 1st am. retaliation and 14th am. DPC challenge against non-profit
private school after being fired for protest letter: (no coercive State power)
1. While 90%+ of revenue (e.g., student tuition) comes from state and federal governmental sources, New
Perspectives School is analogous to a private contractor;
2. MA state regulations are extensive but not with respect to personnel decisions by the school’s private
management.
3. While school served a “public function,” education is NOT a “traditionally exclusively” governmental
function.

Rule: A private school receiving public money and subject to public regulations because it
performs a public service, without more, does not constitute a “state actor” for purposes of
the Fourteenth Amendment.

_____________________________________________________________________________________________

62
 EQUAL PROTECTION
Equal Protection Clause
“No State shall ... deny to any person within its jurisdiction the equal protection of the laws.”
 Court interpreted the 5th as including an implicit requirement for equal protection
 Requirements of equal protection are the same whether the challenge is to the federal government under
the 5th (DPC) or the state and local actions under the 14th (DPC)
o 5th—“No person…shall be deprived of life, liberty, or property without due process of law”
o 14th—“No State shall ... deprive any person of life, liberty, or property, without due process of
law”
o SCOTUS express equal protection analysis in the 5th area as the same as that under the 14th

Fundamental Framework for Equal Protection Analysis

1. Is the governments classification justified by a sufficient purpose?
2. The issue is whether the government can identify a sufficiently important objective for it’s discrimination
3. The SCOTUS declared that it is extremely suspicious of race discrimination:
i. Strict Scrutiny: government may use racial classification only if it proves that they are necessary to
achieve the compelling government purpose
ii. Rational Basis Review: The law was not rationally related to the legitimate government purpose
4. All equal protection issues can be broken down into three questions:
1. What is the classification?
2. What level of scrutiny should be applied?
3. Does the particular government action meet the level of scrutiny?
_____________________________________________________________________________________________
QUESTION 1: WHAT IS THE CLASSIFICATION?
 Equal Protection analysis always begins by identifying how the government is distinguishing among
people
1. The classification exists on the face of the law – where the law and it’s very terms draws a
distinction among people based on the particular characteristics (ex: Law that prohibits blacks
from serving on juries is an obvious facial racial classification) OR
2. Laws are facially neutral —but there’s a Discriminatory impact to the law or [discriminatory
purpose] discrimination effects from its administration (ex: A law that requires at all police
officers be at least 5’10” and 150 pounds – has a Discriminatory impact against women in hiring
for the police force). Must show that the governments purpose was to discriminate based on race
or gender
QUESTION 2: WHAT IS THE APPROPRIATE LEVEL OF SCRUTINY?
1. Strict scrutiny, a law is upheld if it is proven NECESSARY to achieve the compelling government purpose.
The government must have truly significant reason for discriminating, and must show that they cannot
achieve its objective through any less discriminatory alternative
o Race or national origin (aliens)
o The government has the burden of proof
o SUSPECT CLASSIFICATION
---------------------------------------------------------------------------------------
Several criteria or apply to determining the level of scrutiny:
o Immutable characteristics — like race, national origin, gender and marital status of one’s parents
isn’t high scrutiny
 It is unfair to penalize a person for characteristics that person did not choose
o Ability of the group to protect itself from the political process
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  (Ex: Women traditionally have been severely under represented in political offices. Aliens
do not have the ability to vote in this political process cannot be trusted to represent their
interests)
o History of discrimination against the group
 Classification reflects prejudice as opposed to permissible government purpose
 Sex based discrimination
---------------------------------------------------------------------------------------
2. Intermediate scrutiny, a Laws is upheld if it is SUBSTANTIALLY RELATED to an important government
purpose. The court need not find the governments purpose is “compelling” but I must characterize the
objective as “important”.
o gender and non-marital children (legitimacy)
o The means used need not be necessary, but must have a substantial relationship to the end being
sought
o The government has the burden of proof
o QUASI-SUSPECT CLASSIFICATION
3. Rational basis review, a law will be upheld if it is RATIONALLY RELATED to a legitimate government
purpose.
o The governments objective need not be compelling or important, but just that the government
legitimately may do.
 That means chosen only need to be a rational way to accomplish the end.
o The challenger has the burden of proof
o NO SUSPECT CLASSIFICATION
QUESTION 3: DOES THE GOVERNMENT ACTION MEET THE LEVEL OF SCRUTINY?
 The level of scrutiny is the rule of law that is apply to the particular government action being challenged
as denying equal protection
o The court evaluates both the laws ends and it’s means
 Strict scrutiny, the end must be deemed compelling for the law to be upheld
 Intermediate scrutiny, the end has to be regarded as important
 Rational basis test, there just has to be a legitimate purpose

SCOTUS often focuses on the degree to which a law is underinclusive and/or over-inclusive:
 Under-inclusive law does not apply to individuals who are similar to those whom the law applies
o (Ex: A law that excludes those under the age of 16 from having drivers licenses is somewhat over
inclusive because some young drivers undoubtably have the physical ability and the emotional
maturity to be affective drivers)
 Over-inclusive if it applies to those who need not be included in order for the government to achieve the
purpose. In other words a law unnecessarily applies to group of people
o (Ex: The governments decision to evacuate her and intern all Japanese Americans on the West
Coast during World War II was radically overinclusive)
 Virtually all laws are under-inclusive or overinclusive or both
o Strict scrutiny— a relatively close fit is required; the government will have to show that the
means are necessary —the least restrictive alternative—to achieve the goal
o Intermediate scrutiny— a closer fit will be required and less under-inclusiveness or
overinclusiveness will be permitted then under the rational basis test
_____________________________________________________________________________________________

64
EQUAL PROTECTION AND INTRO TO RACIAL CLASSIFICATION
THE PROTECTION OF FUNDAMENTAL RIGHTS UNDER EQUAL PROTECTION
 Equal protection is used to analyze government actions that draw a distinction among people based on
specific characteristics—race, gender, age, disability, or other traits

CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN

1. Classification exists on the face of the law—the law and it’s very terms draws a distinction among people
based on race or national origin
2. Law is facially neutral—a racial classification can be proven by demonstrating that the law has a
discriminatory PURPOSE and a discriminatory IMPACT
---------------------------------------------------------------------------------------
Dred Scott v. Sandford (1857)
Holding: Dismissing (7-2) for lack of jurisdiction, holding
1. Persons of African descent "are not included, and were not intended to be included, under the word
'citizens' in the Constitution;” thus, P (Dred Scott) lacks standing to file diversity of citizenship suit.
2. The Due Process Clause of the 5th am. prohibits the federal government from freeing slaves brought into
federal territories; therefore, Congress cannot ban slavery in the territories and invalidating the Missouri
Compromise as unconstitutional.
Main Takeaway: The U.S. Civil War broke out four years after the Dred Scott decision, and in the last years of the
war Congress passed the 13th am. (prohibiting slavery) and 14th am. (expressly overruling Dred Scott by, among
other things, the Birthright Citizenship Clause).
“All persons born or naturalized in the U.S., and subject to the jurisdiction thereof, are citizens of the U.S.
and of the State wherein they reside.”—14th am.

Rule: People of African descent brought to the United States and held as slaves, as well as their
descendants (either slave or free), are not considered citizens of the United States and are
not entitled to the protections and rights of the Constitution.

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1—RACE-SPECIFIC CLASSIFICATIONS THAT DISADVANTAGE RACIAL MINORITIES
Korematsu v. United States (1944)—Japanese Internment Case
Holding: Upholding (6-3) conviction of P, an American citizen of Japanese descent, for violating military
evacuation / exclusion orders:
1. Exclusion order constituted facially discriminatory classification ("all persons of Japanese ancestry,
including aliens and non-aliens“) triggering strict scrutiny.
2. But concludes evacuation / exclusion orders not motivated by animus and forcing Japanese American
citizens to relocate to internment camps necessary to achieve the compelling purpose of preventing
espionage and sabotage in advance of “direct emergency and peril” of threat of West Coast invasion by
Japanese Empire.

Rule: State laws restricting the rights of persons based on race are subject to strict scrutiny and
will only be upheld if they further a “pressing public necessity.”

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2—RACIAL CLASSIFICATIONS BURDENING BOTH WHITES AND MINORITIES
Loving v. Virginia (1967)—Interracial Marriage Case
Holding: Overturning (9-0) the Lovings’ criminal convictions and invalidating Virginia’s anti-miscegenation statute
(prohibiting cohabitation and/or marriage of interracial couples) as violating 14th am. EPC and DPC:

65
 1. Rejecting VA argument that “equal application” of penalties to whites and non-whites can survive strict
scrutiny;
2. Holds that VA statute is not only facially discriminatory but also motivated solely by racial animus and
White Supremacism, as it proscribes only marriages between whites and non-whites.

Rule: A state may not restrict marriages between persons solely on the basis of race under the
Equal Protection and Due Process Clauses of the Fourteenth Amendment.

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3—LAW REQUIRING SEPARATION OF THE RACES
Plessy v. Ferguson (1896)—“Separate-but-Equal” Case
Holding: Affirming (7-1) P’s conviction and upholding Louisiana state law requiring “equal but separate” railcar
accommodations for whites and non-whites:
1. While maintaining that the 14th am. EPC requires absolute racial equality before the law,
2. Held separate treatment did not imply inferiority or constitute a badge or incident of slavery so long as
treatment "equal.”
3. Distinguishes political or civil rights from state regulation of “social” rights in areas w/in police power (i.e.,
Louisiana mandating racial segregation on railcars operating w/in its borders).
Dissent (Harlan): Rejects “equal application” argument because origin and purpose of the law was to prohibit
non-whites from sitting w/whites not the other way around, indicating implied inferiority and infringing civil
liberty (not “social”) of both.

Rule: Public accommodations that are segregated according to racial classifications do not violate
the Equal Protection Clause of the Fourteenth Amendment as long as such
accommodations are “separate but equal.”
.
---------------------------------------------------------------------------------------
Brown v. Board of Education (1954)—School Segregation Case
Holding: Invalidating (9-0) state laws and policies requiring racial segregation of public educational facilities as
violative of 14th am. EPC:
1. Intent of Framers of 14th am. in 1868 not dispositive, in part due to massive change in compulsory
education such that by 1954 it is “perhaps the most important” function of state / local government and a
fundamental right;
2. Even if physical facilities and other tangible factors are "equal," racial segregation denies equal
educational opportunity to African American children, as social scientific studies of segregation show
implied inferiority inhibits children’s motivation to learn.

Rule: Separate educational facilities based on racial classifications are inherently unequal and
violate the Equal Protection Clause of the Fourteenth Amendment.

_____________________________________________________________________________________________
RACIAL CLASSIFICATION (CONT.)
FACIALLY NEUTRAL Laws with a Discriminatory Impact of with Discriminatory Administration

THE REQUIREMENT FOR PROOF OF A DISCRIMINATORY PURPOSE

 Laws that are race neutral are administered in a manner that discriminates against minorities or has a
disproportionate impact against them
---------------------------------------------------------------------------------------
Washington v. Davis (1976)—P.O. Applicant Case

66
Holding: Rejecting (7-2) EPC challenge to D.C. police hiring test (as EPC “reverse incorporated” against fed via 5th
am. DPC):
1. First concludes no discriminatory effect from D.C. police “verbal skills” hiring test resulting in racially
disproportionate rejection of black P.O.s applicants,
2. Holds that, even if sufficient discriminatory effect, unlike Title VII CRA’s effects-based test for race-based
employment discrimination, in EPC / constitutional context P must ALSO show discriminatory purpose;
3. Concludes no discriminatory purpose in administering test based on: (a)D.C.’s active efforts to recruit
black P.O.s; (b) increasing % of black recruits; and (c) test’s relevance to training.
4. Since strict scrutiny not triggered, applies rational basis standard and finds “verbal skills” test rationally
related to legitimate governmental purpose of maintaining force w/verbal + written communication skills.
Rule: A state-sponsored racial classification violates the equal protection provisions in the Fifth
Amendment’s Due Process Clause only if it is shown to have both a disproportionate impact
on a particular race and is motivated by invidious racial discrimination.

_____________________________________________________________________________________________
“SUSPECT” CLASSIFICATIONS: EXPLAINED
Fn4–Among other things, Justice Stone argued that laws discriminating against “discrete and insular minorities”
trigger heightened scrutiny because of their relative inability to protect themselves through normal democratic
means in a majoritarian democratic process. In these instances, deference must be set aside and the judiciary
scrutinize the official action to ensure it is not motivated by animus or a desire to harm.
Justice Stone identified relevant factors including:
1. Where the political process is skewed by prejudice against those targeted;
2. Degree of political power to protect themselves through the democratic means established in the
Constitution
3. History and degree the class has suffered a history of unequal treatment;
4. Immutability of the class's defining trait or characteristic
_____________________________________________________________________________________________
IS PROOF OF DISCRIMINATORY EFFECT ALSO REQUIRED?
Palmer v. Thompson (1971)—Public Pool Case
Holding: Dismisses (5-4) EPC challenge to Jackson city’s pool closing decision in wake of prior integration order by
U.S. Court of Appeals (i.e., shutting down 4 and passing transferring 1 to YMCA private actor w/white-only
membership policy):
1. Rejects discriminatory purpose argument, holding racially discriminatory individual motivations of
legislators voting for shutdown not alone sufficient to prove discriminatory purpose;
2. Finds Ps did not adduce evidence of anti-integration purpose in closing all pools; AND
3. Finds P did not adduce evidence of either (a) officials conspiring w/YMCA pre-surrender to ensure pool
continues to be segregated or (b) official city action post-lease surrender (e.g., no funding or involvement
in operation of YMCA pool therefore no state action).

Rule: A state regulation based on racial classifications is unconstitutional under the Equal
Protection Clause if the plaintiff proves both a discriminatory purpose and a discriminatory
impact of the regulation.

---------------------------------------------------------------------------------------
HOW IS A DISCRIMINATORY PURPOSE PROVEN?
Requires proof of the government desire to discriminate; it is not enough to prove that the government took an
action with the knowledge that it would have discriminatory consequence

Personnel Admin. MA v. Feeney (1979)—Veteran Hiring Preference Case

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Holding: Upholding (7-2) state civil-service veteran hiring preference law against 14th am. EPC sex-discrimination
challenge:
1. While finding strong evidence of disproportionate effect on women (i.e., virtual exclusion from all but
low-paying clerical work as state EEs resulting from 25% of MA residents veterans, fed restriction of
women from most non-combat service, etc.);
2. Concludes P failed to prove discriminatory purpose given:
a. Law broadly defines “veteran” to include many non-combat roles in which women served;
b. No evidence (e.g., legislative history) of discriminatory motive or intent;
c. Motive was instead legitimate (e.g., rewarding military service, veteran transition), and the hiring
preference law rationally related to those non-discriminatory motives.
Main Takeaway: In EPC analysis, “purpose” (a.k.a., intent, motive) requires P show discriminatory desire was a
motivating factor in the state action at issue—in other words, the action was taken because of, not merely in
spite of, its adverse effects.
TEST:
1–Whether the statue’s classification actually gender-neutral?
2–Do the classification’s adverse effects reflect invidious gender-based discrimination?

Rule: To prove that a state actor violates the Equal Protection Clause by enacting legislation with a
discriminatory purpose, a plaintiff must show that the decision maker selected or
reaffirmed a particular course of action at least in part because of, not merely in spite of, its
adverse effects upon an identifiable group.

Arl. Heights v. Metro. Housing Dev. Corp.(1977)—Multi-Family Housing Zoning Denial Case
Holding:
1. Rejecting (5-3) challenge to Village’s FACIALLY NEUTRAL zoning law allowing only single-family housing in
Village center;
2. Finds Ps fail their burden to show racial exclusion was a “MOTIVATING FACTOR” in Village’s actions, using
balancing TEST:
a. Degree of disproportionate impact / effect of the official action challenged: Concedes denial of
multi-family housing typical to low- or middle-income developments has racially disproportionate
effect.
b. Historical background of official actions: Ordinance in place since 1959 without variance. No
history of discriminatory exceptions. In fact, Village granted variance for a low-income multi-
family housing in past.
c. Series of events leading to the official action challenged Ordinary procedure followed (and
developer even permitted supplementing application). No record of substantive departure, as
Village rule is blanket rejection of multi-family housing.
d. Legislative / administrative history contemporary to the official action challenged: No
discriminatory statements by Village council during 1959 passage or when Village zoning officials
rejected application.

Rule: A state-sponsored racial classification will not be held to violate the Equal Protection Clause
of the Fourteenth Amendment unless a plaintiff shows that the law is motivated by a
discriminatory purpose and has a discriminatory impact.

_____________________________________________________________________________________________
PURPOSE-BASED” TEST: BURDEN-SHIFTING

Taken together, these cases establish a burden-shifting test for proving discriminatory “purpose” in EPC
challenges to facially neutral state actions w/discriminatory effects:
68
 1. P has initial burden to introduce sufficient direct and/or circumstantial evidence that discrimination was a

motivating factor in the challenged state action (applying Arlington Heights BALANCING TEST );
a. Degree of discriminatory impact/effect of the official action?
b. History and factual context: is there a pattern of discrimination?
c. Unusual departures from standard procedure?
d. Legislative and administrative history?
2. If P does so, the burden shifts to D state actor to disprove that the challenged action was undertaken
“because of, not merely in spite of,” its discriminatory adverse effects.
a. If D satisfies burden, EPC claim dismissed.
b. If D fails burden, EPC violation exists.
_____________________________________________________________________________________________
Brown v. Board of Education II (1955)—School Integration Remedies Case
Holding: After scheduled re-argument re: remedies flowing from Brown I, orders (9-0) :
1. State / local schools to integrate in accordance with Brown I’s mandate “WITH ALL DELIBERATE SPEED”;
2. But such school districts’ implementation subject to oversight by federal district courts where the actions
originated, using the principles of “equity” (flexible remedies fashioned from balancing public + private
needs) and in assessing if school districts acted in “good faith” implementing Brown I;
3. SCOTUS says lower courts must weigh equitable remedies flexibly (e.g., problems in in "administration" of
the reintegration process arising from facilities, transportation, personnel, redrawing districts into unitary
ones, and revision of segregation laws + policies).

Rule: A state-sponsored racial classification will not be held to violate the Equal Protection Clause
of the Fourteenth Amendment unless a plaintiff shows that the law is motivated by a
discriminatory purpose and has a discriminatory impact.

THE USE OF RACE TO BENEFIT MINORITIES IN COLLEGE AND UNIVERSITY ADMISSIONS

Grutter v. Bollinger (2003)—Affirmative Action Case
Holding: Upholding (5-4) law school admission policy acknowledging racial minority status as one among other
factors against EPC challenge by white applicant denied admission:
1. Regardless of whether a protected class of persons is benefitted rather than burdened by a discriminatory
classification, strict scrutiny applies;
2. Here, the law school’s factor-based policy is a narrowly tailored use of race in admissions decisions to
further a compelling interest in obtaining the educational benefits that flow from a diverse student body.
a. School’s “highly individualized” review of each applicant = no acceptance / rejection automatic
based on race;
b. Process ensures all factors that may contribute to diversity are meaningfully considered alongside
race.
Main Takeaway: Under current doctrine applying strict scrutiny to public college and university “affirmative
action” admissions policy, there is NO EPC violation if such schools use racial minority status as “one factor
among many” in an individual assessment process, but policies using points- or quota-based affirmative action
policies DOES violate the EPC.
_____________________________________________________________________________________________

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SEX/GENDER CLASSIFICATIONS
 Gender discrimination Cases hold that intermediate scrutiny is the appropriate test for evaluating gender
classification challenge under the equal protection clause
 Sex, like race and national origin is an immutable characteristic
o Policies must be narrowly tailored to achieve a compelling governmental interest
_____________________________________________________________________________________________
Frontiero v. Richardson (1973)—Female Military Spousal Benefits Case
Holding: Invalidating (4-4-1) federal law military spousal benefits provision creating male-female procedural
differential as violating 14th am. EPC (as incorporated against feds (via 5tham. DPC):
1. Classification? FACIALLY DISCRIMINATORY on basis of sex = ALL married male military automatically
entitled to spousal “dependent” benefits (e.g., housing, medical) v. married female military must prove
50%+ dependance of male spouse;
2. Test? Plurality describes test as strict scrutiny (i.e., necessary for compelling government interest), but ...
a. Important governmental interest? [ENDS] Feds describe mere “administrative convenience.”
b. Substantially related to achievement of objective? [MEANS] Male-female military procedural
differential.
i. “Tenuous,” if any, relation between efficiency and the differential treatment.
ii. Less restrictive means?: No gov showing that ALSO subjecting male military to proof of
50%+ dependance would increase administrative burden.
iii. And equalization would actually decrease fed $$$ expenses given high proportion of men
serving vs. women.

Rule: Under the Due Process Clause, governmental classifications based on sex are inherently
suspect and must be subjected to strict judicial scrutiny.

Craig v. Boren (1976)—Age-Sex Differential DUI Case [DEVELOPED INTERMEDIATE SCRUTINY TEST]
Holding: Invalidating (7-2) OK criminal statute w/age-sex differential re: prohibiting sale of diluted 3.2% beer
discriminating against men age 18-20 as violating 14th am. EPC:
1. Classification? DUI statute FACIALLY DISCRIMINATORY (i.e., women age 18-20 can drink [v.] but not men
age 18-20);
2. Test? To survive EPC challenge to discriminatory sex-based classification, D state actor must prove the
official action substantially related to important governmental objective(s) (a.k.a., “INTERMEDIATE”
SCRUTINY):
a. Important governmental objective? Driving / traffic safety is valid objective, but ...
b. Substantially related to achievement of objective?
i. Statistics riddled w/methodological flaws, show only slight increase in risk of participation,
arrest, and injury by DUI for men age 18-20 (e.g., .18% women arrests v. 2% men);
ii. No clear evidence why 3.2% “nonintoxicating” (diluted) beer greater threat than alcohol
generally;
iii. Only study on age-sex differentials in DUIs for beer use showed only tenuous correlation.

Rule: A governmental regulation involving gender discrimination is constitutional if it is

substantially related to the achievement of an important government purpose.

United States v. Virginia (1996)—Single-Sex Military College Case

Holding: Invalidating (7-1) VMI’s male-only admissions policy rejecting women cadets as violating 14th am. EPC:
70
 1. Classification? VMI policy FACIALLY DISCRIMINATORY (i.e., only qualified male cadets, no qualified
women cadets).
2. Test? To survive EPC challenge to discriminatory sex-based classification, D state actor must have
“exceedingly persuasive justification,” but ...;
a. Important governmental objective? VMI claims interest is maintaining high standards of
“adversative” training (i.e., discipline, endure pain, unit cohesion) and suggests physical
requirements not fit for women cadets and cannot be modified in a way that preserves the
program model.
b. Substantially related to achievement of objective? No, VMI relies merely on gender stereotypes
for categorical exclusion, but some women ready / fit for training and cannot avoid admitting
women.
3. Remedy? Directs VMI to become co-ed, as VA state’s proposed female-only public military academy
alternative rejected adversarial model and lacks any comparable tangibles (e.g., finances, faculty stature
and pay, career prestige, etc.).
-
- Rule: All governmental gender classifications must be substantially related to an important
- government purpose that can be demonstrated by the government if it offers an
- exceedingly persuasive justification for the classification.
- .
----------------------------------------------------------------------------------
Proving the Existence of a Gender Classification
 Facial Gender Classification: Gender classification can exist on the face of the law; that is the law and it’s
very terms draws a distinction among people based on gender
 Classification on the Face of the Law: If the law is facially gender neutral, providing a gender Classification
requires demonstrating that there is both a Discriminatory and Impact to the law and discriminatory
purpose behind it

Gender Classifications Benefiting Women

 Two principles emerge:
1. Gender classifications benefiting women based on rule stereotypes generally will not be allowed
2. Gender classifications benefiting women designed to remedy past discrimination and differences
in opportunity generally are permitted
---------------------------------------------------------------------------------------
GENDER CLASSIFICATIONS BASED ON ROLE STEREOTYPES
Many laws were based on stereo type of women being economically depending on their husbands but men being
economically independent of their wives

Orr v. Orr (1979)—Husband-Only Alimony Statute Case

Holding: Invalidating (6-3) AL statutes requiring only divorcing husbands pay alimony as violating 14th EPC:
1. Classification? AL statutes FACIALLY DISCRIMINATORY (i.e., only male divorcees, not women divorcees,
subject to alimony obligation regardless of financial position).
2. Test? Intermediate scrutiny:
a. Important governmental objective? Merely sex-based stereotypes as “proxy” and so improperly
generalizes women as financially dependent on male spouses w/ latter financially independent.
b. Substantially related to achievement of objective? No, non-discriminatory alternative of sex-
neutral alimony statute would provide same relief to financially dependent women after divorce
that AL claims justifies statutes, while avoiding discrimination against dependent male divorcees.

Rule: A state alimony law may not discriminate on the basis of gender if the state’s compensatory
and ameliorative purposes are equally served by a gender-neutral classification.

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M.I. Univ. for Women v. Hogan (1982)—Women-Only State Nursing School Case
Holding: Invalidating (5-4) public MI nursing school’s women-only admissions policy as violating EPC of 14th am.:
1. Classification? MI’s statutory limitation of state public nursing college is FACIALLY DISCRIMINATORY (i.e.,
only qualified female students, not qualified male students).
2. Test? To survive EPC challenge to discriminatory sex-based classification, D state actor must have
“exceedingly persuasive justification,” but ...;
a. Important governmental objective [ENDS]? MI state claims objective is affirmative action for
women through dedicating single-sex nursing B.A. program in light of U.S. history of sex
discrimination.
b. Substantially related [MEANS]?
i. No. Nursing profession historically dominated by women, and continuation of women
program actually perpetuates gender-stereotypical occupational roles.
ii. Plus, MI claim that male presence would disrupt class contradicted by their policy
allowing men to audit courses, and no record of disruption.

Rule: A state statute that discriminates on the basis of gender may be unconstitutional if the
statutory objective itself reflects archaic and stereotypical notions relating to gender.
Michael M. v. Sonoma Sup. Ct. (1981)—Statutory Rape Law Case
Holding: Upholding (5-4) CA statutory rape law w/age-sex differential against 14th am. EPC challenge but only
plurality re: reasoning:
1. Classification? FACIALLY DISCRIMINATORY, because girls <18 victims but men perpetrators.
2. Test? Unclear, seems to be a “not similarly situated” / “sufficiently related” test, but let’s apply
intermediate ...;
a. Important governmental objective? While CA statute may have been adopted for variety of
health, religious, moral reasons, plurality credits CA’s teenage-pregnancy prevention objective.
b. Substantially related to achievement of objective?
i. Yes. Since <18 girls and boys not similarly situated w/respect to consequences of
pregnancy, CA can exempt girls from punishment where pregnancy itself is deterrent.
ii. No similarly adequate non-discriminatory means, because gender-neutral statute would
frustrate prosecution by making girls less likely to report violations for fear of
prosecution.

Rule: A state statutory-rape law that discriminates against males does not violate the Equal
Protection Clause of the Fourteenth Amendment because it deters males from engaging in
sexual behavior that might lead to illegitimate pregnancies.

Rostker v. Goldberg (1981)—Men-Only Military Draft Case

Holding: Upholding (6-3) Selective Service Act male-only registration requirement against 14th am. EPC challenge
(via 5th am. DPC):
1. Classification? FACIALLY DISCRIMINATORY, because while men must register for draft, women do not.
2. Test? Unclear, seems to be a “not similarly situated” / “sufficiently related” test, but let’s apply
intermediate ...
a. Important governmental objective? Yes, combat military readiness during national emergency,
and Congress’ constitutionally assigned war powers entitled to substantial deference.
b. Substantially related to achievement of objective?
i. Yes, concludes exemption not motivated solely by gender stereotypes.
ii. Military’s restriction to non-combat roles (not raised by challengers) means women not
similarly situated.

72
 Rule: A congressional act that requires men and not women to register for a military draft does
not violate the Fifth Amendment to the Constitution because women cannot statutorily
participate in combat and thus are not similarly situated as men.

_____________________________________________________________________________________________

73
RATIONAL BASIS REVIEW
Rational basis test is the minimal level of scrutiny that all government actions challenged under equal protection
must meet
 Basic requirement is that the law meets rational basis review if it is rationally related to a legitimate
government purpose
 CHALLENGER has the burden of proof when rational basis reviews applied
 Courts often said that the law should be upheld if it is possible to conceive any legitimate purpose of the
law, even if it is not the governments actual purpose—rare the court finds a law fails the RBR test

What constitutes a Legitimate Purpose?

 Government has a legitimate purpose if it advances a traditional police purpose: protecting safety, public
health, or public morals—legitimate government purposes … peace and quiet, law and order
o Virtually any law that is not forbidden by the constitution will be deemed sufficient to meet the
rational basis test

Actual Purpose OR a Conceivable Purpose?

 Law will be upheld as long as the government’s lawyer can identify some conceivable legitimate purpose,
regardless of whether that was the governments actual motivation
 Actual purpose behind the law is irrelevant and the law must be upheld “if any state the facts reasonably
maybe conceived to justify” it’s discrimination.
_____________________________________________________________________________________________
RATIONAL BASIS “W/ BITE”: IRRATIONAL ANIMUS / ARBITRARY CLASSIFICATIONS

Romer v. Evans (1996)—Colorado Anti-L/G Amendment Case

Holding: Invalidating (6-3) CO state constitutional ban on local anti-sexual-orientation-discrimination legislation as
violating 14th am. EPC:
1. Classification?
a. FACIALLY DISCRIMINATORY, prohibiting protective legislation re: gay, lesbian & bisexual persons
but not prohibiting special protection for others (e.g., heterosexual persons).
b. But sexual orientation not suspect classification and no fundamental right at issue.
2. Test? Where no suspect classification or fundamental right, P has burden to prove the official action is
NOT rationally related to any conceivable legitimate government purpose (i.e., is arbitrary / irrational):
a. Legitimate governmental purpose? No, rejects purposes proffered by CO and concludes
amendment motivated by “bare desire to harm politically unpopular group,” which is NOT a
“legitimate” purpose.
b. Rationally related to achievement of purpose? No, concludes “sheer breadth” of the amendment
is both under-inclusive (singles out one trait) AND over-inclusive (denies ALL protections based on
traits).

Rule: A law prohibiting anti-discrimination protections for the gay, lesbian, and bisexual
community violates the Equal Protection Clause of the Fourteenth Amendment.
---------------------------------------------------------------------------------------
CASES IN WHICH LAWS ARE DEEMED ARBITRARY AND UNREASONABLE

USDA v. Moreno (1973)—Food Stamps Case

Holding: Invalidating (7-2) "unrelated persons" provision of federal Food Stamps Act as violating EPC (as reverse
incorporated against feds by DPC of 5th am.):

74
 1. Classification? FACIALLY DISCRIMINATORY (i.e., “related” housemates eligible but unrelated housemates
not).
2. Test? P has burden to prove official action is NOT rationally related to legitimate governmental purpose.
a. Legitimate governmental purpose? Legislative history indicates anti-”hippie commune” intent,
but feds proffered purpose as fraud prevention
b. Rationally related to achievement of purpose? No, classification substantially over-inclusive (i.e.,
lumping in not only classes of persons w/ “fraud risk” but also eligible people who simply couldn’t
afford alternative living arrangements)
Rule: A state regulation that arbitrarily creates two classes of persons and deprives one class of
government benefits violates the EPC and DPC of the 5th Am. because it is based on a mere
legislative preference for one class that is not rationally related to a legitimate state
purpose.

City of Cleburne v. Cleburne Living Ctr. (1985)—NIMBYCase

Holding: Unanimously (9-0) reversing denial of special use permit for group home housing intellectually disabled
(ID) persons:
1. Classification?
a. TX city council denial as applied is FACIALLY DISCRIMINATORY (i.e., denying permit for housing
intellectually disabled vs. housing for non-disabled).
b. But ID persons NOT suspect or quasi-suspect classification because of diversity of population +
extensive protective legislation by states and feds.
2. Test? P has burden to prove official action NOT rationally related to legitimate governmental purpose:
a. Legitimate governmental purpose? City claims many purposes (e.g., neighbor opposition, elderly’s
“fear,” middle schooler harassment, flood plain, crowding, etc.).
b. Rationally related to purpose(s)? No, court rejects purposes proffered by city one-by-one as
irrationally motivated by animus and / or arbitrary (e.g., city’s concern for “crowding” under-
inclusive as doesn’t require special permit for fraternity houses, etc.).

Rule: The mentally disabled are not a quasi-suspect class and thus any legislative regulations
affecting their rights are subject to rational basis review and not intermediate scrutiny.

_____________________________________________________________________________________________
DISCRIMINATION AGAINST NON-UNITED STATES CITIZENS

1. “Alienage” Classifications: If state / local action discriminates against lawfully present non-citizens (e.g.,
LPR), strict scrutiny applies.
Exception 1: Democratic Self-Government
Exception 2: Congressionally Approved

2. Undocumented Non-Citizens: If state / local action discriminates against non-citizens NOT lawfully
present, rational basis test applies (but see Phyler v. Doe rational basis w/”bite”).
_____________________________________________________________________________________________
Strict Scrutiny as the General Rule

Graham v. Richardson (1971)—Non-Citizen Welfare Benefits Case

Holding: Unanimously invalidates (9-0) AZ law denying benefits to non-citizens not in U.S. for 15+ years as
violating 14th am. EPC:
3. Classification? FACIALLY DISCRIMINATORY re: non-citizens:
a. Benefits for U.S. citizens vs. not non-citizens;
b. Benefits for non-citizens w/15 years residency vs. denies to non-citizens residing <15 years.
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 c. Non-citizens “discrete and insular minority” w/no political power, triggering strict scrutiny if
discrimination not related to democratic processes.
4. Test? D state actor has burden to prove the official action is necessary to achieve compelling
governmental interest.
a. Compelling governmental interest? AZ claims only “special public interest” in $$$ welfare savings
and favoring its “own” citizens over non-citizens.
b. Necessary to achieve interest? No, $$$ savings alone cannot justify denying benefits to non-
citizens given strict scrutiny. Court also (but not in casebook) notes lawfully admitted persons
taxed by govt.

Rule: Under the Equal Protection Clause, states may not condition receipt of welfare benefits on
the beneficiary having United States citizenship or residing in the United States for a
specified number of years.

---------------------------------------------------------------------------------------
Alienage Classification Related to Self-Government and the Democratic Process

Foley v. Connelie (1978)—Non-Citizen State P.O. Case

Holding: Upholding (6-3) NY state law prohibiting non-citizens on state police force against 14th am. EPC
challenge:
1. Classification? FACIALLY DISCRIMINATORY (i.e., citizens permitted as P.O.s vs. non-citizens not).
2. Test? P has burden to prove EE position NOT rationally related to democratic self-governance.
a. “Alienage” classifications re: EE = rational basis test if position “involves discretionary decision-
making or executing of policy substantially affecting political community.”
b. Concludes P.O.s exercise broad authority and discretion affecting individuals in community (e.g.,
stops, searches, arrests of persons and property).

Rule: A state may confine employment in its police department to United States citizens because
police officers perform basic governmental functions that may be constitutionally reserved
for members of the national political community.

Ambach v. Norwick (1979)—Non-Citizen Teacher Case

Holding: Upholding (5-4) NY state law prohibiting non-citizens eligible for but who had not sought U.S. citizenship
from teaching positions against 14th am. EPC challenge:
1. Classification? FACIALLY DISCRIMINATORY (i.e., citizens permitted as teachers vs. non-citizens eligible for
but not seeking citizenship).
2. Test? P has burden to prove EE position NOT rationally related to democratic self-governance.
a. Finds K-12 public educators—regardless of subject—essential to political community as
educating children in U.S. / democratic values.
b. Concludes NY law not only rationally related to but arguably closely tailored to achievement of
purpose because it permits non-citizens who sought U.S. citizenship as teachers, while P teachers
here refused.

Rule: A state may refuse to employ as elementary and secondary school teachers aliens who
refuse to seek naturalization.
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Congressionally Approved Discrimination

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  Exception to the usual rule of strict scrutiny for alienage classification is where the discrimination is result
of Federal law
 SCOTUS has ruled that federal government’s plentary Power to control immigration requires judicial
difference and therefore only rational basis Review is used if Congress has created the alienage
classification or if it is the result of presidential order
---------------------------------------------------------------------------------------
Undocumented Aliens and Equal Protection

Phyler v. Doe (1982)—Undocumented Children Case

Holding: Invalidating (5-4) TX law barring funds / admission of undocumented kids to K-12 schools as violating
14th am. EPC:
1. Classification? EPC protects “any person” w/in states jurisdiction, meaning subject to its laws;
a. TX law FACIALLY DISCRIMINATORY (i.e., citizen and lawfully present non-citizen children admitted
v. undocumented non-citizen children excluded);
b. But non-citizens not lawfully present NOT suspect or quasi-suspect class + education NOT
fundamental right, so no heightened scrutiny.
2. Test? Unclear ... P has burden (?) to prove action NOT substantially related to legitimate government
purpose:
a. Legitimate governmental purpose? Acknowledges state fiscal $$$ conservation ordinarily legit
objective.
b. Substantially related? No, because ...
i. TX discriminates against children w/respect to legal status not in their control (i.e.,
unlawful presence);
ii. Fiscal burden minimal / no substantial decrease in education quality for U.S. citizens +
lawful non-citizens;

Rule: States may not deny free public education to children not legally admitted into the United States.

_____________________________________________________________________________________________

DUE PROCESS
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DUE PROCESS CLAUSES: 5TH & 14TH AMENDMENTS
5th—“No person shall ... be deprived of life, liberty, or property, without due process of law.” (Fed Gov’t)
14th—“No State shall ... deprive any person of life, liberty, or property, without due process of law.” (State Gov’t)
_____________________________________________________________________________________________
FUNDAMENTAL RIGHT
 Most claims of rights under equal protection or due process only receive minimal judicial Scrutiny —
Rational basis test… To be shown to be rationally related to a legitimate government Purpose
 Almost ALL fundamental rights have been protected by the court under the Due Process Clause of the 5th
and 14th Am and or the equal protection clause of the 14th Am
o Example: constitutional right to refuse medical care as an aspect of the liberty protected in the
DPC
o Example: the right to travel has been safeguarded under the EP; the right to vote has been
protected both under the clause [DPC] and the 5th and prohibits government racial discrimination
concerning voting
o Example: the court has invalidated state laws restricting access to contraceptives both as violating
EP and infringing the right to privacy
_____________________________________________________________________________________________
DUE PROCESS V. EQUAL PROTECTION
If a right to safeguard it under the DUE PROCESS, the constitutional issue is whether the government interference
is justified by sufficient purpose
 If a law denies the right to everyone, DP best grounds for analysis
VS
If the right is protected under the EQUAL PROTECTION, the issue is whether the governments discrimination as
to who can exercise the right is justified by sufficient purpose
 If the law denies the right to some while allowing it to others, the discrimination can be challenged as
offending EP or the violation of the right can be objected under DP
_____________________________________________________________________________________________
THE NINTH AMENDMENT
 “The numeration of the constitution of certain rights, shall not be construed to disparage others retained
by the people“
o There is no 9th Am rights, it provides a textual justification for the court to protect non-textual
rights [safeguard unenumerated liberties], such as the right to privacy
_____________________________________________________________________________________________
FRAMEWORK FOR ANALYZING FUNDAMENTAL RIGHTS
Litigation and judicial decision making in cases about individual rights can be understood as addressing one of
questions …
 1–THE FUNDAMENTAL RIGHT?
o If a right is deemed fundamental, the government usually will be able to prevail only if it meets
strict scrutiny but if the right is not fundamental, generally only the rational basis is applied
 2–IS THE CONSTITUTIONAL RIGHT INFRINGED?
o If there is a fundamental right, the next question must be has the government infringed the right
 There is no doubt that a constitutional right is infringed and the government’s action
must be justified when the exercise of right is prohibited
 3–IS THERE A SUFFICIENT JUSTIFICATION FOR THE GOVERNMENT’S INFRINGEMENT OF A RIGHT?
o If a right is deemed fundamental, the government must present a compelling interest to justify an
infringement. Alternatively if a rate is not fundamental, only legitimate purposes required for the
law to be sustained
 Govt has the burden of persuading
 4–IS THE MEANS SUFFICIENTLY RELATED TO THE PURPOSE?

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 o Under strict scrutiny it is not enough for the government to prove a compelling purpose behind
the law; the government must also show the law is necessary to achieve the objective.
 This requires of the government prove that it could Not attain the goal through any
means less restrictive of the right.
o In comparison under the rational basis review, the means only has to be a reasonable way to
achieve the goal in the government is not required to use the least restrictive alternative
_____________________________________________________________________________________________

PROCEDURAL AND SUBSTANTIVE DUE PROCESS AND RIGHT TO PRIVACY

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DUE PROCESS: PROCEDURAL v. SUBSTANTIVE

1. Procedural Due Process: The level of procedural fairness and impartiality appropriate to a given
government deprivation—whether by way of civil or criminal law—of "life, liberty, or property.” (MUST
PROVIDE ADEQUATE PROCEDURES)

2. Substantive Due Process: The principle that, even if procedural due process is satisfied and the
Constitution does not expressly recognize certain rights—the Bill of Right’s text and structure implies
certain unwritten fundamental “life, liberty, or property” rights protected against unjustified
governmental interference. (MUST SHOW THE ACTION IS SUFFICIENTLY RELATED TO AN ADEQUATE
JUSTIFICATION)
_____________________________________________________________________________________________
PROCEDURAL DUE PROCESS

WHAT PROCESS IS “DUE”?

To determine the appropriate level of procedural protections for a given civil or criminal governmental
deprivation, SCOTUS uses a balancing test, weighing the respective degrees of:
a) the private interest affected by the government action;
b) the government’s asserted interest; AND
c) the burden / cost to the government of satisfying greater procedural protections.

TYPES OF PROTECTIONS
At a minimum, government must provide notice, opportunity to be heard, and a decision by a neutral decision-
maker before deprivation. But depending on the deprivation, the balancing test may require more, including but
not limited to:
 An unbiased tribunal.
 Notice of proposed action and grounds asserted for it.
 Opportunity to present reasons for the proposed action not to be taken.
 The right to present evidence, including to call witnesses.
 The right to know the opposing evidence.
 The right to cross-examine adverse witnesses.
 A decision based only on the evidence presented.
 Opportunity to be represented by counsel.
 Requirement that the tribunal prepare a record of the evidence presented, written findings of fact, and
the reasons for its decision.
_____________________________________________________________________________________________
SUBSTANTIVE DUE PROCESS (Lochner Era Before & After)

West Coast Hotel Co. v. Parrish (1937)—Minimum Wage Case

Holding: Upholding (5-4) WA state minimum wage law against hotel’s 14th am. substantive DPC ‘freedom of
contract” challenge:
1. Overruling Adkins (Lochner Era case that recognized “economic” right of freedom to contract triggering
strict scrutiny under substantive DPC);
2. Holds economic “liberty” is “necessarily subject to the restraints of ... regulation which is reasonable in
relation to its subject and is adopted in the interests of the community is due process.”
3. Test? P has burden to prove official action NOT rationally related to legitimate governmental purpose:
a. Legitimate governmental purpose? Protection of low-wage working women from ER wage abuses.
b. Rationally related to purpose(s)? Yes, minimum wage law (means) rationally related to ends of
women EE protection (ends) to shift societal cost of ER’s abuses back on Ers, added context of
Great Depression and state minimum wage laws.
80 to female employees when that regulation is
Rule: A state may regulate the minimum wage paid
for the purpose of promoting employees’ health, safety and general welfare.
United States v. Carolene Products (1938)—Diluted Milk Case
Holding: Upholding (6-1) 1923 federal “Filled Milk” law prohibiting transport / sale of milk adulterated w/coconut
oil against 5th am. substantive DPC (freedom of contract) challenge:
1. Test? P has burden to prove official action NOT rationally related to legitimate governmental purpose:
a. Legitimate governmental purpose? Consumer protection re: ensuring nutritional content and
deterring false advertising.
b. Rationally related to purpose(s)?
i. Yes, presumption / deference to any conceivably legitimate purpose of Congress alone
justifies rejecting challenge.
ii. But also 20+ years evidence, “eminent” scientific / health experts testifying re: harms of
milk fact removal informed Congress’s findings.
iii. Nutritional harm Congress sought to remedy compounded by false advertising, making
natural milk and adulterated milk indistinguishable.

Rule: Congressional legislation of common commercial products will be scrutinized under a

rational-basis test.

_____________________________________________________________________________________________
SUBSTANTIVE DUE PROCESS (TODAY)

“Penumbra” (Latin paene ‘almost’ + umbra ‘shadow’): a space of partial illumination (as in an eclipse) between
the perfect shadow on all sides and the full light

 Court made clear the Economic regulations will be upheld when challenge under due process clause as
long as they are rationing related to a legitimate government purpose
o Does not need to be proven that the asserted purpose was the legislatures actual objective
 Any conceivable purpose is sufficient
o The law only need seem to be a reasonable way of attaining the end; it does not need to be
narrowly tailored to achieving the goal
_____________________________________________________________________________________________
CONSTITUTIONAL PROTECTION FOR FAMILY AUTONOMY

1. The Right to Marry

Loving v. Virginia (1967)—Interracial Marriage Case
Holding: Unanimously invalidating (9-0) VA law criminalizing interracial marriage as violative of fundamental right
under 14th am. substantive DPC:
1. Fundamental Right? Yes, “freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men ... fundamental to our very existence and
survival.”
2. Test? D state actor bears burden to prove official action necessary to achieve a compelling governmental
interest:
a. Depriving VA citizens of liberty to marry (or not!) on arbitrary basis of race violates substantive

Rule: A state may not restrict marriages between persons solely on the basis of race under the
Equal Protection and Due Process Clauses of the Fourteenth Amendment.

DPC.

United States v. Windsor (2013)—DOMA Case

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Facts: DOMA: “‘marriage’ means only a legal union between one man and one woman as husband and wife, and
the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
Holding :Invalidating (5-4) fed Defense of Marriage Act s. 3 as violating substantive DPC, EPC & maybe (?)
principles of federalism:
1. Fundamental Right? Yes? Right to marry is fundamental (but is right to same-sex marriage?). Majority
more focused on animus / fed interference with States’ traditional role regulating marriage.
2. Test? D state actor bears burden to prove official action necessary to achieve compelling government
interest:
a. Compelling governmental purpose? No, Congress itself (in its findings) expressed animus as sole
motivation (“moral disapproval,” etc.). Fiscal $$$ conservation not enough standing alone.
b. Narrowly tailored to achievement of purpose?
i. Even if purpose were compelling, Kennedy seems to suggest fundamental rights
traditionally w/in state concern insulated from fed meddling;
-
Rule: A federal statute excluding same-sex couples from the definition of marriage for purposes -
of federal benefits is unconstitutional. -
-
-----------------------------------------------------------------------------------
2. The Right to Custody of One’s Children
Stanley v. Illinois (1972)—“Unfit” Father Custody Termination Case
Holding: Invalidating (5-2) IL law requiring children becomes wards of state upon death of unmarried mother and
reversing termination of P unmarried father’s custody of child as violating substantive DPC right to custody of
child absent prove of unfitness:
1. Fundamental Right? Yes, biological parents (regardless of married or unmarried) retain substantive DPC
right to care and custody of child, absent individualized hearing and determination of unfitness.
2. Test? D state actor bears burden to prove official action necessary to achieve compelling government
interest:
a. Compelling governmental purpose? No, not even a legitimate goal—state doesn’t advance
interest in child protection by removing child from fit parent.
b. Narrowly tailored to achievement of purpose? No, categorically presumes unmarried fathers unfit
rather than providing individualized hearing with notice and opportunity to be heard, etc.

Rule: All parents are entitled to a hearing to determine their fitness before the state deprives
them of custody of their children.

---------------------------------------------------------------------------------------
3. The Right to Keep the Family Together
Moore v. City of East Cleveland, Ohio (1977)—Family PreservationCase
Holding: Reversing conviction and invalidating (5-4) city housing ordinance restricting occupation of single-family
home to “family” as applied to grandmother barred from living w/ grandchild as (plurality) violating substantive
DPC:
1. Fundamental Right? Yes, sanctity of family protected under substantive DPC includes right to stay
together.
2. Test? D state actor bears burden to prove official action necessary to achieve compelling government
interest:
a. Compelling governmental purpose? No, city only argues purposes like overcrowding, school
burden, traffic, etc.
b. Narrowly tailored to achievement of purpose? No, ordinance barred P from living with grandchild
but if slight difference in kinship persons could live with 12+ school-age children.

Rule: The right of related family members to live together is fundamental and protected by the
Due Process Clause, and necessarily encompasses a broader definition of “family” than
just members of the nuclear family. 82
---------------------------------------------------------------------------------------
4. The Right of Parents to Control the Upbringing of Their Children
Meyer v. Nebraska (1923)—Right to Parental Custody & Control Case
Holding: Invalidating and reversing (7-2) conviction under NB law of schoolteacher teaching German language as
violating substantive DPC:
1. Fundamental Right? Yes, by prohibiting German language and instruction and punishing teacher state
violates parental right to control / upbringing of child, including by engaging a teacher for language
instruction.
2. Test? D state actor bears burden to prove official action necessary to achieve compelling government
interest:
a. Compelling governmental purpose? No. While a legislature’s desire to “foster a homogenous
people” / Americanize is valid goal it is not compelling enough to justify deprivation here.
b. Narrowly tailored to achievement of purpose? No, law adopted in wartime but now it’s
peacetime, and foreign language education actually beneficial to children.

Rule: A state may not prohibit the teaching of foreign languages to a young child in school when
such teaching has been requested by the child’s parent because this interferes with the
fundamental liberty interest of a parent to control his or her child’s education.
_____________________________________________________________________________________________

ABORTION RIGHTS
Examining the right to abortion is divided into five parts:
1. Right of a woman to choose to terminate their pregnancies prior to viability
2. State regulations of abortion that are permissible and which are unconstitutional
3. Prohibited you some government funds for facilities for performing abortions
4. Particular type of government regulation that has been declared unconstitutional: Consent and Spouse a
Notification requirements for married women
5. Ability of a state to require parental notice and/or an unmarried minors abortion
83
_____________________________________________________________________________________________
The Recognition and Reaffirmation of the Right to Abortion
Roe v. Wade (1973)—Texas Criminalization of Abortion Case
Holding: Invalidating (7-2) TX statute criminalizing abortion as violating 14th am substantive DPC right to privacy:
1. Fundamental Right? Yes, ...
a. Reviews medical-legal history to conclude at time of ratification U.S. common law banned only
abortion after “quickening” of fetus, and criminalization advanced in 19th and 20 th centuries.
b. Right to privacy encompasses a woman’s decision whether or not to terminate a pregnancy.
c. Based on “quickening” distinction at common law, concludes fetus not a “person” within meaning
of DPC w/ a protected “life” interest.
d. But right to abortion is not “absolute,” must be weighed against state interests in protecting
prenatal life, maintaining medical standards, and protecting health of mother.
2. Test? D state actor bears burden to prove official action necessary to achieve compelling government
interest.
Establishes trimester-based framework in which:
a. In the first trimester (roughly 0-90 days), the decision and effectuation of abortion must be left to the
pregnant woman and medical judgment of attending physician, without state interference.
b. In the second trimester (roughly 90-180 days), the State may regulate the abortion procedure in ways
reasonably related to maternal health.
c. Post-viability or in the third trimester, the State may regulate or even prohibit abortion except where
it is medically necessary to preserve life / health of mother.

Rule: The constitutional right to privacy protects a woman’s right to choose to have an abortion.

Planned Parenthood v. Casey (1992)—Viability Case

Holding:
1. Plurality reaffirms “central holding” of Roe that right to abortion is liberty interest protected by 14th am.
substantive due process;
2. Declines to overrule Roe as a result of stare decisis given Roe’s central holding not unworkable, reliance
interests, and importance of consistency and predictability in doctrine;
3. But rejects Roe’s rejects strict scrutiny / trimester framework in favor of viability / UNDUE BURDEN TEST:
a. A state regulation is an undue burden if it has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a non-viable fetus.
b. PURPOSE of state regulation pre-viability may include protecting “potentiality of life” but must be
calculated to further the woman’s free choice.
c. Even if state purpose is valid, regulations that have the EFFECT of creating a substantial obstacle
are unconstitutional.

Rule: A state abortion regulation places an undue burden on a woman’s right to an abortion and
is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman
seeking an abortion before the fetus attains viability.
---------------------------------------------------------------------------------------
Government Restrictions on Funds and Facilities
The government is not constitutionally required to subsidize abortions even if it is paying for childbirth

Maher v. Roe (1977)—Abortion Funding / Facilities Case

Holding: Upholding (6-3) CT Medicaid policy restricting state funding for first-trimester abortions only to medically
necessary ones against 14th am. EPC challenge:
1. Fundamental right?
a. Distinguishes between "direct state interference with a protected activity" and "state
encouragement of alternative activity consonant with legislative policy;“
84
 b. Concludes CT regulations expressing $$$$ preference for childbirth did not directly infringe
fundamental right to abortion.
2. Suspect Classification? Wealth / poverty not a suspect classification, so applies rational basis test to
uphold the CT regulations as reasonably related to legitimate state interest in expressing preference for
childbirth (rather than abortion) in first trimester.

Rule: A state may constitutionally deny funding for non-therapeutic abortions for indigent
women even if it fully funds childbirth.

Planned Parenthood v. Danforth (1976)—Spousal Consent Case

Holding: Invalidating (6-3) portion of Missouri law requiring prior written consent from woman’s spouse during
first trimester unless abortion would save woman’s life, as violating substantive DPC right to abortion:
1. Since State lacks authority to interfere in first trimester, state cannot delegate authority to prevent a first
trimester abortion to anyone but the physician and woman.
2. In his concurrence, Justice Stewart reasoned that the spousal consent provisions was unconstitutional
because the woman's right to make the decision over her own body outweighed a father's right to
associate with his offspring.

Rule: It is unconstitutional for a state to require the consent of a spouse as a condition

precedent for a woman to procure an abortion during the first 12 weeks of pregnancy.

Planned Parenthood v. Casey II (1992)—Spousal Notification Requirement

Holding: Invalidating (5-4) PA signed statement re: spousal notification requirement:
1. Test? A state regulation is an undue burden if it has the purpose or effect of placing a substantial obstacle
in the path of a woman seeking abortion of a non-viable fetus:
a. Rejects state’s “1%” of burdened women argument, holding focus of the undue burden test is on
the group "for whom the law is a restriction, not the group for whom the law is irrelevant.“
b. Concludes PA law has the effect of placing a substantial obstacle upon married women suffering
spousal rape and abuse (the subpopulation of women seeking abortion the law would restrict),
enabling husbands to “wield an effective veto” despite burden falling on woman to bear child to
term as per Danforth.
---------------------------------------------------------------------------------------
Parental Notice and Consent Requirements
Bellotti v. Baird (1979)—Parental Consent / Notice Case
Holding: Upholding (4-4-1) MA law requiring parental consent for unmarried minors (<18) to obtain abortion:
2. Distinguishes notification requirements for minors in parental custody from spousal notification of adult
married women, given legal minors “the peculiar vulnerability of children; their inability to make critical
decisions in an informed and mature manner; and the importance of the parental role in child rearing."
3. But holds parental notification laws MUST include the bypass procedure by which:
a. the minor is permitted to demonstrate her maturity and informed decision making on having the
abortion without parental consent;
b. if the minor does not prove maturity, she has the ability to convince the judge that the abortion is
in her best interests
c. the minor must remain anonymous; AND
d. the process must be expedited to ensure the abortion will be possible to obtain.
-
Rule: A state can require parental notice and/or parental consent for an unmarried minor’s -
abortion, but only if a judge can also independently approve the abortion by concluding -
the abortion is in the minor’s best interest or the minor is mature enough to decide for -
herself. -
-
---------------------------------------------------------------------------------
85
June Med. Servs. v. Russo (2020)—Hospital Privileges Case
Holding: Invalidating (5-4) LA law requiring physicians performing abortions to obtain hospital-admission at state
approved hospital w/in 30 miles of abortion clinic:
1. Plurality concludes LA law (like nearly identical TX hospital-admission law in WWH) unconstitutionally
imposes undue burden on right to abortion;
2. Effect? Drastically decreased number and geographic distribution of abortion providers for 10,000 women
in LA state annually seeking abortions.
3. Purpose? Notes during 18-month period of district court case many hospitals’ opposition to abortion
motivated denial of admitting privileges regardless of physicians’ qualifications.
Concurrence (Roberts): While Roberts dissented in WWH, he concurred in the judgment only here, arguing stare
decisis applied to require invalidation of the LA law due to the near-identical TX hospital-admission law struck
down in WWH.
_____________________________________________________________________________________________

RELIGIOUS FREE EXERCISE

1st Am.—FREE EXERCISE CLAUSE
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.”

Free Exercise Clause Issues

 The government may not compel or punish religious beliefs
 The free exercise clause is involved:
o When the government prohibits behavior that a persons religion requires
o When the government requires Conduct and Persons religion prohibits

86
 o When individuals claim that laws burden or make more difficult religious observances
_____________________________________________________________________________________________
Employment Div. v. Smith (1990)—Native American Peyote Case
Holding: Upholds (6-3) denial of benefits to Native American Church members fired by drug rehab and denied
unemployment benefits for sacramental peyote use under OR law:
1. Rejects applicability of strict scrutiny to generally applicable criminal law, holding “neutral laws of general
applicability” do not violate Free Exercise Clause;
2. Reasons that creating religious-practice exceptions to every law or regulation affecting religion "would
open the prospect of constitutionally required exemptions from civic obligations of almost every
conceivable kind.“
Concurrence (O’Connor et al.): Would have applied strict scrutiny and upheld benefits denial due to OR’s
compelling interest in preventing health / physical consequences of Schedule I drug and mitigate drug trafficking.
Dissent (Blackmun et al.): Would have applied strict scrutiny and directed grant of unemployment benefits
because prohibition not narrowly tailored to the highly controlled sacramental use by the Native American Church
of a drug with no documented health consequences.

Rule: Under the Free Exercise Clause of the First Amendment, a state may constitutionally refuse
to carve out an exception from its generally applicable criminal laws for religious practices

City of Boerne v. Flores (1997)—see above

_____________________________________________________________________________________________
Supreme Court Decisions Since Employment Division v. Smith
 Court has invalidated laws under the free exercise clause and three context:
o Where there is animus against the religion
o Where the government has interfered with the ability of religions to choose their ministers
o With the government has discriminated against religions in receiving benefits
_____________________________________________________________________________________________
Animus Against Religion
Masterpiece Cake Shop v. C.O. Civ. Rts. Comm’n (2018)—Wedding Cake Case
Holding: Reversing (7-2) C.O. Civil Rights Commission order finding baker’s refusal to create custom wedding cake
for same-sex couple illegal under C.O. Anti-Discrimination Law as violating 1st am. free speech and free exercise:
1. While C.O.'s Anti=Discrimination Law prohibiting discrimination based on sexual orientation in public
accommodations is neutral law of general applicability, Commission did not act in neutral manner to
baker’s religious beliefs.
2. Religious hostility / animus on part of state actor is "factor" in assessing Free Exercise challenge:
a. Commission member showed hostility by comparing baker’s refusal to a defense of slavery and
Holocaust;
b. At time of refusal, C.O. itself did not recognize same-sex marriages;
c. Commission had thrice exempted cake bakers who refused to make custom cakes bearing anti-
LGBT messages.

Rule: Adjudicatory proceedings against a person for unlawful discrimination must give neutral
and respectful consideration to the person's defense of sincere religious motivation

Trump v. Hawaii (2018)—see above

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Tandon v. Newsom (2021)—At-Home Worship COVID Case
Holding: Enjoining (5-4) California from enforcing COVID restrictions on private at-home religious gatherings as
violative of 1st am. Free Exercise Clause:
1. Finding government regulations are NOT "neutral and generally applicable" whenever they treat ANY
comparable secular activity more favorably than religious exercise;

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 2. Comparability is judged against the government's asserted interest in justifying the challenged regulation;
it is concerned with "the risks various activities pose, not the reasons why people gather;"
a. CA more treats some comparable secular activities (e.g., hair salons, retail stores, movie theaters,
private suites at sporting events) more favorably than at-home services.
b. 9th Circuit didn’t find facts re: relative COVID risks distinguishing at-home services from these
activities.
3. Government has burden to show narrow tailoring, such that less restrictive alternatives would not
address its COVID-prevention interest
a. 9th Circuit didn’t examine why precautions (e.g., mask wearing, social distancing) CA required for
comparable secular activities wouldn’t suffice for at-home services.
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VOTING RIGHTS
The right to Vote as a Fundamental Right
 15th Am— “The right of citizens of the United States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous condition of servitude”
 19th Am— Extend the right to vote to women and says that the “right of citizens of the United States to
vote shall not be denied or abridged by the United States for by any stay on the account of sex”
 24th Am— Prohibits poll taxes in elections for federal office. “The right of citizens of the United States to
vote in any primary or other election for president or vice president, or electors for president or vice
president, or for senator or representative in Congress, shall not be denied or abridged by the United
States or any state by reason of failure to pay any poll tax or other tax”

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  26th Am— Extend the right to vote to all citizens were 18 years or older. “The right of citizens of the
United States, who are 18 years of age or older, to vote shall not be denied or abridged by the United
States or by any State on account of age”
 The right to vote is a fundamental right protected under equal protection

Restrictions on the Ability to Vote

 Laws that limit the ability of citizens to vote must meet strict scrutiny
o Strict scrutiny is also using evaluating poll taxes, property ownership requirements for voting, and
durational residency requirements
o On the other hand the court did not use strict scrutiny and upheld restrictions on voting: literacy
tests, laws preventing those convicted of felonies voting, and requirement for photo identification
for voting
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POLL TAXES
Harper v. Virginia St. Bd. Elections(1966)—Poll Tax Case
Holding: Invalidating (6-3) VA state constitutional provisions requiring poll tax ($ 1.50 to vote) in state elections as
violative of 14th am. EPC:
1. Fundamental Right? Yes, voting is fundamental to representative government and also as the cornerstone
right “preservative” of all other rights by way of selecting officials to protect rights.
2. Test? State voter qualification laws based on race, color, economic status, or property ownership must be
necessary to achieve a compelling government interest (“closely scrutinized and carefully confined”):
a. Compelling interest? Recognizes state voting restrictions designed to ensure voters “participate
intelligently in the electoral process.”
b. Narrowly tailored? No, conditioning state voter participation on economic status or payment /
non-payment of fee—like those based on race, color, creed—are “wholly irrelevant to achieving
the legislature's objectives” of intelligent participation.

Rule: Poll taxes in all elections are unconstitutional as a denial of equal protection of the laws

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PROPERTY REQUIREMENTS
Wealth cannot be a basis for an individuals the ability to vote

Kramer v. Union Free Sch. Dist. (1969)—School Board Elections Case

Holding: Invalidating (5-3) NY law limiting voter eligibility in school district elections against 14th am. EPC
challenge:
1. Test? State voter qualification laws based on race, color, economic status, or property ownership must be
necessary to achieve a compelling government interest:
a. Compelling interest? Does not reach question of whether state voter restriction only to voters
“primarily affected” by certain elections (e.g., school district) is valid interest.
b. Narrowly tailored? No, even if limitation to voters “primarily affected” is valid interest, NY school
board election law not narrowly tailored to that interest. NY’s law both:
i. Over-inclusive: By “inclusion of many persons who have, at best, a remote and indirect
interest, in school affairs;” AND
ii. Under-inclusive: By “exclud[ing] others who have a distinct and direct interest in the
school meeting decisions.”

Rule: A state statute that denies the right to vote in school-district elections to some district
residents who are otherwise qualified to vote by age and citizenship violates the Equal
Protection Clause of the Fourteenth Amendment unless the exclusion of these residents is
necessary to further compelling state interests.
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LITERACY TESTS
Are constitutionally permissible as a qualification for voting, although they have been outlawed by federal statues

Katzenbach v. Morgan (1966) —Anti-Spanish Voter Literacy Test

Holding: Upholding 1965 VRA § 4(e) prohibiting use of English-language voter literacy tests by states—as applied
to NY law requiring persons educated in PR to pass literacy test in order to vote—as valid exercise of Congress’s
14th am. § 5 enforcement power, holding the enforcement clause gives Congress power to expand § 1 rights
protections beyond those recognized by SCOTUS, though not to reduce them.
Main Takeaway: Previously, the Court expansively interpreted Congress’s enforcement clause powers, as a kind
of N&P Clause for the Reconstruction Era amendments. In this broad view, Congress’s action is a valid exercise of
the enforcement clause if the action ”appropriate”—i.e., rationally related to fulfilling a legitimate 13th, 14th, or
15th am. purpose.

Rule: Congress may pass legislation to enforce the equal protection clause of the
14th amendment even when legislation conflicts with state law.

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VOTER ID REQUIREMENTS
Crawford v. Marion Cnty. Elect. Bd.(2008)—Photo ID Case
Holding: Upholding (3-3-3) IN Voter ID Law requiring in-person voters present valid U.S. or state picture ID or cast
provisional ballot and file affidavit w/in 10 days against 14th am. EPC challenge:
1. Test? Employs a benefit-burden balancing test:
a. Benefits? Voter fraud prevention, “election modernization,” remedying IN’s bloated voter rolls, and
promoting voter confidence.
b.Burdens? Concludes Voter ID Law “closely related” to benefit of preventing voter fraud and
outweighing “minimal” burdens both to those required to visit BMV for free ID and those on small %
of population (e.g., indigent, elderly persons born out-of-state), but mitigated by 10-day affidavit
provisional option.
Concurrence (Scalia, Thomas + Alito): Would have adopted a rational basis standard and deferred to state
legislature’s benefit-burden determination.
Dissent (Souter, Ginsburg): Argues state actors (here IN) bear burden to show evidence of voter fraud provision
designed to address and, if failing burden, prohibited from special burden on low-income and elderly.

Rule: A state statute requiring photo identification as a prerequisite for voting is not unconstitutional

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VOTER DILUTION

Baker v. Carr (1962)—see above

Reynolds v. Sims (1964)—One Person, One Vote Case

Holding: Invalidating (8-1) AL constitutional provision requiring one state senator per county regardless of
population variance:
1. Holds strict scrutiny applies to malapportionment challenges based on the principle of one person, one
vote, as "legislators represent people, not trees or acres. Legislators are elected by voters, not farms or
cities or economic interests.“

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 2. Rejects “analogy” to Federal Constitution’s population disparity embodied in assignment of two senators
per state (despite different state populations), because localities are political subdivisions of states and
not in and of themselves sovereigns.

Rule: The Equal Protection Clause requires the seats in a bicameral state legislature to be
apportioned on a population basis that equally weights one vote for every one person
residing in a state legislative district.

City of Mobile v. Bolden (1980)—At-Large City Election Case

Holding: Upholding (6-3) Mobile’s at-large election of three-member City Commission against 15th am. challenge:
1. Extends Washington v. Davis discriminatory purpose requirement to 15th am. analysis ("action by a State
that is racially neutral on its face violates the Fifteenth Amendment only if motivated by a discriminatory
purpose,“);
2. Rejects inference of discriminatory purpose drawn by district court from (a) no Black candidate ever being
elected to city Commission, (b) pattern of racial discrimination in employment and elsewhere by elected
white commissioners, and (c) long history of pervasive public and private anti-Black discrimination in
Mobile.

Rule: Laws governing a city’s electoral process that are facially neutral and enacted without
discriminatory intent do not violate the Fourteenth or Fifteenth Amendments to the
Constitution even if those laws dilute the voting strength of African Americans in practical
effect.

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