ADH Pg. 1 of 22 Constitutional Law Outline 1. Judicial Power a.

Judicial Review the Supreme Court has the power to declare acts of Congress unconstitutional b. Justice Marshals Reasons for Judicial Review i. It is inherent in the concept of a written Constitution ii. The Judicial power of the U.S. shall extend to all cases in law and in equity arising under the Constitution iii. Oath to Uphold the Constitution iv. Supremacy Clause infers that not all laws are valid, only those laws passed pursuance to the Constitution c. Marbury v. Madison i. A commission is effective once it is signed, because someone else seals and delivers it. ii. Writ of mandamus only for ministerial acts, not discretionary d. Martin v. Hunters Lessee i. Majority written by Justice Story: Virginia Supreme Court has to listen to use because we are the Supreme Court. 1. Federal government is not created by the states, but by the people. The people hold the sovereignty, not the states. ii. Concurring Opinion by Justice Johnson: We win, we are the Supreme Court. In questions of federal law, the Supreme Court is supreme. iii. Jurisdiction Stripping (The exceptions and regulations clause) 1. Congress can make exceptions and regulations a. Some people say judicial power is vested. Others say Congress can strip it with exceptions and regulations b. Justice Story Congress can except and regulate controversies, but cannot with cases. e. Ex Parte McCardle i. What is the scope of the exceptions and regulations clause? ii. Court to McCardle: Congress took our jurisdiction, have fun in jail. f. Spectrum on Judicial Power i. Judicial Power is vested ii. Exceptions and Regulations Clause applies only to controversies, not cases (Justice Storys view) iii. Tepid (McCardle Court) iv. Full blown Exceptions and regulations clause g. United States v. Klein i. Narrow reading of Klein: If Congress passes a bill that ostensibly addresses jurisdiction but has the practical effect of overturning a lower court judgment, which is a monetary judgment against the U.S. in favor of a private party, that act of Congress exceeds its power. ii. Broad reading of Klein: You cannot alter the jurisdiction of the Supreme Court in cases arising out of the Constitution or its laws.

ADH Pg. 2 of 22 1. If you want to argue the Court cannot touch something that Congress has limited the review of: Based on Klein and McCardle, Congress can limit the power of the Supreme Court 2. If you want to argue the Court can touch something that Congress has limited the review of: McCardle is a reflection of a very unique and troubled period in America, and three years later in Klein the Court made the broad decision to eliminate Congressional power to eliminate the Supreme Courts jurisdiction. Additionally, Justice Storys distinction between cases and controversies arising under the constitution. h. Plaut v. Spendthrift Farms i. Majority: Congress cannot re-open judgements of Article III Courts, because it would violate the separation of powers. This isnt like FRCP rule 60 because Congress isnt acting in a way that reflects a pre-existing rule. ii. Breyer Concurrence: Narrower than majority 1. Three problems with Congresses actions a. The law is exclusively retroactive b. It applies to a limited number of individuals c. It is reopening closed judgments i. It is not alright, because it (1) the retroactivity creates a due process problem, and (2) violates the concept of separation of powers 2. Cases and Controversies a. International Longshoremens & Warehousemans Union v. Boyd i. Advisory Opinions 1. Courts cannot issue advisory opinions, because they are not cases or controversies arising under the Constitution. 2. Declaratory Judgments are alright, because you are asking the Court to declare the respective rights of the parties where there is a concrete adversarial dispute that is required for the exercise of judiciary power. ii. Court finds this situation to be hypothetical, because nothing has happened yet. iii. Case or controversy (adversary parties, opposing interests, the type that will sharpen this dispute that allowed the court to decide the legal issue. b. U.S. v. Johnson i. There is no case or controversy in the absence of adversarial parties. ii. No collusive lawsuits c. Jurisdictional Checklist i. Request for a real judgment (as apposed to an advisory opinion) ii. Adversarial Parties iii. Plaintiff with Standing iv. Case that is ripe (not to young) v. Case that is not moot (not too old) d. Justiciability Protecting future parties from present losers.

ADH Pg. 3 of 22 i. Standing 1. Three Constitutional Concerns you MUST have these to get standing a. Injury in fact b. Causation c. Redressability 2. Prudential Limitations Might get you thrown back out of court a. Generalized Grievance i. Have to have individualized harm, not broad harm b. Third Party Rights i. Not going to let this person risk losing for everyone else who might have more stake in the matterargument based on precedent. c. Zone of Interests i. Zone of Injury ii. Zone of Interest 1. Is this the type of person that Congress had in mind when creating rights under the statute? ii. Warth v. Seldin Narrow interpretation of standing 1. Claim that Defendants are engaging in exclusionary zoning 2. Court: No Redressability because just because they want to live there doesnt mean they will. No ordinance or lack thereof can guarantee that they will get housing in Penfield. iii. Massachusetts v. EPA 1. Very broad interpretation of standing e. Taxpayers Standing i. Frothingham v. Melon Once a taxpayers money reaches the government, it is the governments money. ii. Flast v. Cohen Specific Constitutional Bar to Congressional expenditures of this type. 1. Double Nexus test: A taxpayer can have standing to sue where (1) there is a Congressional expenditure under the spending clause, and (2) There is a specific Constitutional bar to that expenditure. a. Establishment clause, maybe First Amendment. iii. Hein v. Freedom from Religion, Inc. 1. Majority: Taxpayer standing is only an issue when it involves Congress 2. Concurrence: (Scalia) Need to overturn Flast v. Cohen 3. Dissent: Allow the suit, asking for judicial supervision over discretionary acts on the part of the executive branch f. Ripeness If a case is not ripe (sufficiently developed), it is not within the judicial power of the United States i. Duke Power Company v. Carolina 1. Dissent (Technically a concurrence): You have to wait until the injury is more than speculative

ADH Pg. 4 of 22 2. This case was decided before it was ripe, by people who had no stake in the matter. g. Mootness i. DeFunis v. Odegaard 1. Is this a class action, or specific to the Plaintiffs? 2. While this case is really close to being moot, it isnt yet because he doesnt have the degree yet, and he doesnt have any assurances that he will be treated the same way as all the other degree candidates. ii. Exceptions to the Mootness doctrine 1. Capable of repetition, but evading review (as to this particular person) a. For example, pregnancy. 2. Voluntary cessation of the challenged conduct a. Stopping Enforcement of a State Law or Municipal ordinance, how long will it last? h. Political Questions i. Luther v. Borden 1. Issue: what is the legitimate government of Rhode Island? 2. The other branches of government have said that the Rhode Island state government is legitimate. It is not the job of the court to decide whether this is or is not a republican form of government. 3. Woodbury Dissent: Even if this is a legitimate government, is this a legitimate action for that government to take? However, no 14th Amendment. a. The role of the court is to interpret the law, not determine the legitimacy of the law makers. ii. Coleman v. Miller 1. The Supreme Court is not going to get involved in the adoption or ratification of Amendments it is a political question. iii. Baker v. Carr 1. Political Question Factors a. Textual Commitment (another branch, other than the court, is supposed to do this) b. Lack of Judicial Standards (we dont have standards, and the only way we can get them is by making policy decisions) c. Need for a Policy Decision to Create Standards (of a kind clearly for non-judicial discretions) d. Lack of Respect (Cannot make this decision without showing a lack of respect for other branches of government) e. An Unusual Need for Adherence to a Decision already made

ADH Pg. 5 of 22 f. Potential for Embarrassment (foreign affairs) i. If President recognizes Taiwan as a legitimate government, Court cannot touch it. 2. Is reapportionment a political question? a. How you draw the lines is a PQ, but if you drew the line based on Gender, National Origin, or Race the lines are illegitimate. i. Adequate and Independent State Ground Doctrine i. Michigan v. Long 1. If the case is decided on a Adequate (able to resolve the case) and independent (state case decided independent of federal law) state ground, the Supreme Court cannot touch it. 2. Court decided, if a State supreme court does not explicitly say they are deciding it on state law, they will assume they decided it on federal law. Thus, they can review it to promote uniformity of federal law. j. The 11th Amendment i. Before Seminole Tribe v. Florida, the 11th Amendment prohibited suits against any state unless you could show: 1. Waiver If you waive immunity from a suit, you can be sued. 2. Abrogation Congress can eliminate this protection allowing themselves to be sued. 3. Ex parte Young Doctrine Cannot sue the state, but you can sue a officer or employee of the state if you seek only prospective injunctive relief. Cannot recover monetary damages from the state. ii. Seminole Tribe v. Florida 1. Majority: 11th Amendment is really the enshrinement of a broader concept of sovereign immunity. It doesnt matter if Congress tried to make it possible for the tribe to sue. 2. Dissent: No textual basis 3. Congressional Power a. The Necessary and Proper Clause grants Congress the power to do whatever is necessary to carry out its other functions. i. Necessary and Proper to regulate commerce, among the several states. ii. McCulloch v. Maryland 1. Need vs. Want in the context of the necessary and proper clause has been interpreted liberally. b. The Interstate Commerce Clause i. The power to regulate commerce between states is regulated concurrently between the state and federal governments. c. Wickard v. Filburn viewed as granting unlimited power to Congress i. Majority: Activity that has a substantial effect on interstate commerce can be regulated by congress. ii. Court leaves it up to Congress to decide what the limitation on Congressional power are concerning the power to regulate interstate commerce.

ADH Pg. 6 of 22 iii. This decision can be narrowed by distinguishing the fact that Filburn had a contract with the government and violated that contract. d. U.S. v. Lopez i. The Commerce Clause allows Congress to regulate: 1. Channels of interstate commerce 2. Instrumentalities of interstate commerce (people or things in interstate commerce) 3. Activities that substantially effect interstate commerce. (*aggregate effects*) ii. Court: Simply bringing a gun to school does not affect interstate commerce. 1. The Substantial Effects Doctrine allows federal regulation of economic activity that effects interstate commerce. a. No economic activity in simple possession. 2. No Jurisdictional Requirement a. Has the gun travelled in interstate commerce? 3. No Legislative Findings 4. The effect was to attenuated iii. Justice Kennedy Concurrence: effect to attenuated. iv. Justice Thomas Concurrence: Commerce means selling, buying, or bartering with merchandise (doesnt include agriculture or manufacturing). Substantial effects test is too broad of a power without limitations. There is no way to control how far Congress will go with it. v. Dissent: Looks at the effect of the whole concerns with violence in schools, the way public education is going, and concludes it definitely effects commerce. e. Gonzales v. Raich i. Distinguishing factor that separates Raich and Lopez, a broad regulatory scheme. 1. Economic Activity that effects interstate commerce? a. Pure possession(Scalia fungible commodity = substantial effect) 2. Jurisdictional Requirement nope, weed is home grown 3. Legislative Findings extensive 4. Is the effect to attenuated? arguable, connection to drug trade? ii. Justice Scalia Concurrence: 1. Fungible commodity cannot tell the difference between homegrown pot, and pot that has travelled in interstate commerce. 2. Third element Activities that substantially effect interstate commerce does not derive its power from the Commerce Clause, but from the Necessary and Proper clause. 3. By focusing on the Necessary and Proper clause, Scalia backs away from the pure possession idea from Lopez (if it is purely a possession case and there is no commercial or economic activity, congress cannot regulate it)According to Scalia, it can be economic or non-economic as long as it affects commerce.

ADH Pg. 7 of 22 iii. Trying to reconcile Raich with Lopez: Theory (Congress has the power to completely eradicate the market completely. But if it chooses to regulate, it can only regulate activity that interferes with interstate commerce) 4. Taxing and Spending Powers Spending Clause (Theoretical limits, not a lot of actual limits) a. South Dakota v. Dole i. Federal government can withhold money if states dont fall into line ii. Spend in a way that provides for the general defense and the general welfare iii. General Welfare Power 1. Congress can generate more money than they need, then use that money to encourage states to follow federal policy. 2. Congress cannot regulate for the general welfare. iv. To determine if a spending program is valid: 1. Pursuit of the general welfare 2. Unambiguous Conditions 3. Relate to a federal interest 4. Independent Constitutional bar v. United States v. Butler Justice Frankfurters dissent: We wrap up the legislation in the verbal cellophane of a revenue measure, accomplishing through the wrapping what they couldnt do directly. 5. Creating and Controlling Administrative Agencies a. Delegation b. Schechter Poultry v. U.S. i. Congress created an opportunity for the executive branch to devise this code. The executive branch, in turn, created a committee to handle it. ii. The Court held that the codes violated the constitutional separation of powers as an impermissible delegation of legislative power to the executive branch. iii. Congress has to articulate an intelligible principle to support the delegation, to guide the agency in the exercise of its discretion. c. Mistretta v. United States i. Commission putting together sentencing guidelines ii. Independent Commission iii. Majority: Commission is in the Judicial Branch, loose reading 1. Functionalists: not too concerned what branch it is in 2. Formalists: has to fit solidly into a single branch of government iv. Justice Scalia Dissent: This commission is a non-responsible, nontraceable animal in the midst of our separation of powers system. No such thing as a Junior Varsity Congress. d. The Legislative Veto e. INS v. Chata Legislative Veto i. The House of Representatives vetos a decision made by the INS. ii. Issue: Can a congressional veto be constitutional? 1. Majority: Formalist = House + Senate + President = Law 2. Minority: Functionalist = President + House + Senate = Law

ADH Pg. 8 of 22 a. Formalist v. Functionalist i. Bowsher v. Synar Formalist ii. Myers v. U.S. Formalist iii. Humphreys Executor Functionalist iv. Morrison Formalist iii. Justice Powell Concurring: This looks like a bill of attainder. A legislative trial and declaration of guilt. iv. Justice Rehnquist: Severability clause allows you to sever parts of a bill if some parts are declared unconstitutionalbut has to still make sense as a whole. v. Justice White: Striking down 220 federal laws f. Termination Authority g. Bowsher v. Synar i. Head of the Government Accountability Office, engaged in executive acts, legislative acts, and judicial acts ii. Broader Independent Agency? iii. Majority: Because he is executing the law, he is performing an executive function. Congress has already passed the law. 1. Flaw: He cannot exercise executive power because he is subject to control by Congress because Congress can remove him. It doesnt matter who appointed who, it matters who can get rid of you. iv. Stevens Concurrence: No junior varsity congress(ish) v. White Dissent: Functionalist vi. Blackmon: Wait to see if Congress tries to remove him to say if there is a problem or not 6. Executive Power a. Commander in Chief b. Youngstown Sheet & Tube Co v. Sawyer (Steel Seizure case) i. Trumans Arguments for Three Sources of Executive Power 1. Inherent Power of the Executive a. Majority: There is no unlimited inherent power of the executive. 2. Commander in Chief Power a. Majority: No contract with the Military has been breached. 3. The Executive has the power to Take Care that the laws are faithfully executed. a. Majority: There is no law that Truman is executing. The Take Care clause does not include the power to make laws. ii. Justice Jacksons Concurrence: When there is a conflict between the President and Congress three possibilities: 1. President and Congress acting in concert a. The Presidents power is at its highest point b. Burden is on the challenger 2. President acts absent express will of Congress a. Figure that out later

ADH Pg. 9 of 22 3. President has acted contrary to the express will of Congress a. The Presidents power is at its lowest point b. Burden is on the President to show he has the power and Congress has no right to interfere. iii. Justice Frankfurters Concurrence: More restrictive of Presidential power 1. Congress must say something for the President to have the power to act. iv. Justice Black and Douglass Concurrence: More restrictive of Presidential power 1. President only has the power to carry out the laws passed by Congress 2. Only two types of situations: (1) President acts in concert with Congress, or (2) President is not acting in concert with Congress 3. President cannot act independently without Congress expressing its will. v. Burton and Clarks Concurrence: Distinction is whether the President is acting contrary to the express will of Congress. 1. They favor presidential power more than the others because it is only bad when he is acting against the express will of Congress. 2. When Congress has not expressed a will, presumption is in the favor of the President. vi. Frankfurter, Black, and Douglas (more restrictive on Presidential power), Burton and Clark (less restrictive on Presidential power). 7. Appointments Power a. Myers v. United States i. Majority: The President has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body. ii. Source of Presidents removal power: 1. Inherent in the power of the executive to remove officers from their positions. (Not persuasive) 2. Inherent in the power to appoint. (Not persuasive) 3. It is part of the Take Care clause, that the laws are faithfully executed. a. If the appointees are heads of departments, this has nothing to do with the take care clause. However, if they are inferior officers appointed by the president with advice and consent of the senate, the President has the power of removal. b. If Congress retains a role in the appointment (senatorial confirmation), it may not control removal. If Congress gives up its role (inferior officers), it may control the removal (term of years, limits on the removal), but it cannot control both ends.

ADH Pg. 10 of 22 c. Anyone exercising executive authority, and appointed with advice and consent of the senate, is able to be removed by the President. b. Humphreys Executor v. United States i. Majority: Executive officers serve at the pleasure of the President and may be removed at his discretion. Quasi-judicial and quasi-legislative officers may be removed only with procedures consistent with statutory conditions enacted by Congress. c. Morrison v. Olson i. Majority: Even though the President could not directly fire the independent counsel, the person holding that office was still an Executive branch officer, not under the control of either U.S. Congress or the courts. ii. Scalia Dissent: (1) criminal prosecution is an exercise of "purely executive power" as guaranteed in the Constitution and (2) the law deprived the president of "exclusive control" of that power. 8. State-Federal Regulations a. Cooper v. Aaron i. Majority: States were bound by the Court's decisions, and could not choose to ignore them, or hide behind the political subdivisions. ii. Justice Frankfurters Concurrence: Suspending the operation and enforcement of law due to public resistance would lead to anarchy and the breakdown of the rule of law. iii. Federalism only recognizes two governments: (1) The national government, and (2) state governments and their political subdivisions. b. Printz v. U.S. i. Majority: Congress cannot commandeer the executive functions of the state. It is too much interference with the power of the sovereign state. 1. Cannot tell the sheriff of a county in Montana what his duties are, however, this does not stop the sheriff from enforcing federal law. 2. The only limits on Congress on state sovereignty come when Congress tries to commandeer a state legislative or executive process. (State judges are required to enforce the Federal Laws by the terms of the Constitution.) 9. Pre-Emption Is this a situation which triggers the Supremacy clause? a. Barnett Bank v. Nelson i. Four Types of Pre-Emption 1. Explicit Pre-Emption Congress: We are taking over X 2. Implied Pre-Emption Occupation of the field a. Dont look at the details of the law or how the laws work. We are only concerned with whether Congress has taken over, or occupied the field. If so, our inquiry is over. 3. Irreconcilable Conflict Direct conflict, or physical impossibility 4. State law stands as an obstacle to achieving the purposes of Congress

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ADH Pg. 11 of 22 a. If you pass 1,2, it is ok for the state to pass some law. Now, we look at the details of the law to see if there is a direct or indirect conflict. b. Direct Conflict = When Federal Law mandates what the State law prohibits, or when the State law permits what the Federal Law prohibits. 10. Dormant or Negative Commerce Clause a. Congress, by remaining silent, has evinced its intent to protect a national economic system. Any state law that interferes with the national economy is contrary to the will of Congress as expressed in its silence, and thus, must fail. b. Pyke v. Bruce Church, Inc. i. Test for the Dormant Commerce Clause 1. Is there Congressional Approval? 2. Is the state a market participant? a. Sometimes the state is participating in a market, as opposed to regulating the market. If the state is participating it is subject to anti-trust laws, if the state is regulating it is not subject to anti-trust laws. If the state is acting like a business, it falls outside of the dormant commerce clause because it is no longer regulating the market. 3. Discriminating against interstate commerce. a. Trying to keep your business in b. Trying to keep other businesses out 4. Projection of state law onto other states a. For example, You cannot sell liquor for more money in New York than you do anywhere else. b. Regulating all corporations, instead of only those in your state. 5. Incidental effect on interstate commerce outweighs the punitive local benefit a. Dormant Commerce clause balancing test cannot say that the local benefit is keeping business in the state or keeping the competition out because it would violate number 3. c. South-Central Timber Development v. Wunnicke i. Congressional Approval has to be explicit interpreted narrowly. ii. Alaska is not a market participant, because after it buys and sells the trees (looks like a market participant), it tries to tell them what to do with the trees (a regulatory act). iii. Test for a market participant: Is the state buying or selling something in terms of contract? If so, they cannot go beyond the terms of the contract to regulate. d. CTS Corporation v. Dynamics Corporation of America i. Indiana Law only applied to Indiana companies. Companies choose where they are incorporated. ii. Incidental effect on interstate commerce? Slowing down the takeover, making it less likely to occur. Does that outweigh the local benefit

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ADH Pg. 12 of 22 (protecting shareholders who may or may not be in Indiana, giving them enough time to evaluate whether or not to accept) iii. Justice Scalia: Hates all balancing tests, but really hates the balancing test for the Dormant Commerce Clause. e. Tyler Pipe Industries v. Washing State Department of Revenue i. Internal Consistency Test: Assume that all the surrounding states have the same tax. Does this test discriminate against interstate commerce or not? ii. Justice OConners Concurrence: Get rid of the balancing test in Question number 5, and keep question number 3. iii. Scalia Dissent: Just ask, on its face, does this discriminate against interstate commerce? 1. Privilege and Immunities Clause Protects people as they go from one state to another. However, have to toss out 150 years of Constitutional Law history. 2. Effect of looking at it through the Privileges and Immunities Clause: a. Question 1 goes away, because the P&I clause has nothing to do with Congresss approval. b. Question 2 remains the same. c. Question 3 is the core of the P&I clause d. Question 4, Projecting law onto other states is not obviously inconsistent with the P&I clause, but it is dicey. e. Question 5 would obviously be gone. 3. If we switched to the P&I, we would still have the Internal consistency test. 11. Ex Post Facto Laws and Bills of Attainder a. Calder v. Bull i. Ex Post Facto: 1. Makes an act that was innocent when it was done, criminal. 2. Aggravates the crime, after it was committed. 3. Inflicts greater punishment, after committed. 4. Changes the evidentiary standard, after committed. ii. Bill of Attainder: 1. Legislatively declares someone to be guilty of a crime, or worthy of punishment, or death. Singling out a named person, or an ascertainable group. iii. Justice Chase: 1. The legislature must act within the principles of the social contract (general principles of natural law). Some things are just beyond what a legislature can do, because they are against natural law. iv. Justice Iredell 1. If the legislature passes an act within the scope of their constitutional power, the judiciary cannot strike it down by simply invoking natural justice. What a natural justice is, is regulated by no clear standard. b. U.S. v. Lovett

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ADH Pg. 13 of 22 i. Congress named, and took away money. Court: this is a bill of attainder. c. Flemming v. Nestor i. Statute: If you were deported because you were a communist, you loose your social security benefits. ii. Not an ex post facto law, because it turns something into a crime that wasnt a crimeno crime here. iii. Not a bill of attainder, because there is no ascertainable group at the time the statute was writtenno list of formerly deported communists. 12. The Contracts Clause a. Allied Structural Steel Co. v. Spannaus i. A substantial impairment of a contract is permissible if: 1. Emergency (always needed) 2. Broad-based societal problem (always needed) 3. Appropriately tailored impairment, to meet the societal problem 4. Reasonable impairment 5. Impairment has a limited duration 6. Pervasively regulated area (notice that contract would be regulated) 7. Retroactivity a. For example, the government forgiving a mortgage would be retroactive. However, altering the future payment plan is not retroactive. 8. State impairing its own contract obligations a. Bad sign if the state is helping itself out. 13. The Bill of Rights a. Barron v. Mayor and City Council of Baltimore (Before the 14th Amendment) i. Before the 14th Amendment, the Bill of Rights only applied to the Federal Government. b. Adamson v. California i. Majority: 1. Rule of Selective Incorporation Plus: The 14th Amendment selectively incorporates some part of the Bill of Rights, so as to apply them to states through due process. 2. Selective Incorporation Plus is based on: (1) whether it is implicit in the concept of order and liberty, and (2) whether it is rooted in the history and traditions of our nation. 3. Plus = Substantive Due Proces. ii. Justice Black Concurrence: 1. Total Incorporation: The 14th Amendment, through the privileges and immunities clause, incorporates all of the bill of rights to the states. 2. However, the only rights incorporated, are those enumerated in the Bill of Rights. iii. Justice Murphy Concurrence: 1. Total Incorporation Plus: The 14th Amendment incorporates all of the bill of rights through the privileges and immunities

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ADH Pg. 14 of 22 clause, however the rights incorporated are not limited to the text of the Constitution. Plus = Substantive Due Proces. iv. Justice Frankfurter Concurrence: The 14th Amendment stands on its own bottom. 1. Due Process means the process that is due to create a fair trial. Due process is evaluated separately from the bill of rights. This also advocates the use of substantive due process. 14. The 14th Amendment and Economic Natural Rights a. Lochner v. New York i. Passing a law that limits bakers to working 60 hours a week violates liberty of contract by interfering with life, liberty, and property without due process of law. This is beyond the power of the state to regulate heath, safety, welfare, and morals. ii. This is an example of substantive due process (Plus factor), because there is no liberty of contract clause in the Bill of Rights or Constitution there is an inherent right (natural law) to be free from government interference. 1. Substantive Due Process, three Approaches: a. There are no Constitutional rights beyond the text (Justice Iredell, Black, Holmes): The text of the Constitution is the social contract with the people. b. Rationality Review (Harlem, Middle Ground): Courts should play a role in making sure the legislation makes sense, acting logically. Should not create rights out of nothing, but wont let Congress act illogically. i. Health, Safety, Morals and Welfare are real limitations on the power of states. c. Fundamental Rights Approach (Justice Chase, Majority in Lochner): Uses the 9th Amendment, or substantive due process to create rights, or just simply says these are fundamental rights. b. Nebbia v. New York i. Levels of Rationality Review (Real Rationality or Minimal Rationality) ii. Majority: Rationality review only requires bare-boned rationality. Court concedes no rights beyond the text. iii. Is the aggressive version of rational review actually a fundamental rights analysis? 15. The Takings Clause 5th Amendment - nor shall private property be taken for public use, without just compensation" a. Pennsylvania Coal Co. v. Mahon i. Regulatory takings are possible if the regulations go To Far. A physical taking is not always necessary. ii. Justice Brandies Dissent: The rights of a landowner are not absolute. 1. Because in a claim of a regulatory taking the presumption is that the regulation is valid, the landowner has to show that the regulation will diminish the value of his property, measured in the

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ADH Pg. 15 of 22 light of a reasonable investment backed expectation in the property. 2. Even if the landowner meets this burden, the government may still regulate, if they can show their actions are abating a common law nuisance. 3. Reciprocity of advantage (everyone is advantaged, and everyone is disadvantaged) b. Village of Euclid v. Ambler Realty Co. i. Majority: Zoning simply is attempting to avoid common law nuisances ahead of time. Reciprocity of advantage = While you may be loosing value in your property because of the zoning ordinance, your neighbors are too, so it is equal. ii. Violating the principle of reciprocity of advantage: 1. Spot zoning: Giving a benefit to a particular landowner, and no one else. Violation of state zoning and enabling acts, not a constitutional issue. 2. Reverse spot zoning: Punishing a particular landowner, and no one else. This creates a Constitutional issue because it is a regulatory taking that substantially diminishes the value of the property in a way unlike everyone else around you, destroying the reciprocity of advantage. c. Nollan v. California Coastal Commission i. Three types of takings 1. Regulatory or Physical Taking a. Must be compensated 2. Exactions: A coerced exchange of a government permit for the transfer of a property interest in the government. a. To justify an exaction, the Government must establish a 3way nexus between (1) the government purpose, (2) the permit sought, and (3) the interest in land being taken (or exacted). i. Nexus between the government purpose and the permit sought: The development to be created by the permit must cause a government need or cause a government purpose. ii. Nexus between the permit sought and the government purpose: Has to show the property interest being transferred has to address the problem and not exceed it. iii. Nexus between the permit and the property: Value of the property interest must be roughly proportionate to the value of the permit. d. Kelo v. City of New London i. Majority: If the government is taking the property, it is presumptively for public use. If the government takes a property, it is for a public use, even if they transfer the property to a private party right after.

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ADH Pg. 16 of 22 ii. Dissent: The government cannot take a property for the purpose of transferring it to a private party. (You can only get to this conclusion if you buy into the un-enumerated rights or fundamental rights analysis) 16. Procedural Due Process a. Logan v. Zimmerman Brush Company i. If you are deprived of life, liberty, or property, it must occur through due process of law. In order to get into a discussion of due process, there has to be a triggering interest (life, liberty, property) ii. Procedural Due Process: Court adjudicating rights. 1. Notice reasonably apprise a party of pending action 2. Opportunity to be heard pre-deprivation b. Matthews v. Eldridge i. For welfare benefits, you must have a pre-deprivation hearing. However, for other kinds of governmental benefits, youre due process rights are satisfied with a hearing post-deprivation ii. In determining the amount of due process that is due, courts should weigh these factors: 1. The interests of the individual in retaining their property, and the injury threatened by the official action. 2. The risk of error through the procedures used. 3. The probable value, if any, of additional or substitute procedural safeguards. 4. The costs and administrative burden of the additional process, and the interests of the government in efficient adjudication. 17. Substantive Due Process and the Right to Privacy a. Meyer v. Nebraska Precursor of the modern strain of substantive due process i. Majority: The legislatures determination of what constitutes proper exercise of police power is subject to supervision by the courts. b. Pierce v. Society of Sisters i. Majority: [liberty] denotes not just restraints (prison), but the right of the individual to contract and engage in the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, and generally to enjoy those privileges essential to the orderly pursuit of happiness by free men. c. Griswald v. Connecticut i. Majority: In striking down a statute prohibiting contraceptives, substantive due process was not invoked, rather this is a right of privacy derived penumbrally from the bill of rights. 1. The 10th Amendment prevents the national government from from doing this better left to the states. ii. Justice Goldberg: Explicitly invokes the 9th Amendment as the source of independent rights. The enumeration in the Constitution of certain rights, shall not be designed to disparage other rights retained by the people. 1. Olson 9th Amendment is an anti-preemption devise, retaining rights to the state constitutions. Federal Constitution has a floor of rights, states can add to it.

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ADH Pg. 17 of 22 iii. Justice Harlom and Whites Concurrences: The right of privacy is protected by the Due Process clause of the 14th Amendment, not connected to the bill of rights. d. Roe v. Wade i. Majority: Right of privacy (and thus abortion) is implicit in the concept of order and liberty. ii. Right of to an abortion is not an unbounded right, as it varies with the trimesters of pregnancy. First trimester, right of access to an abortion. Second trimester, balancing process, as the interest of the state and others comes in. Third trimester, state interest becomes more critical in effort to preserve the right of the fetus, abortion access only available if necessary to save the life of the mother. 1. Criticisms: a. Looks like a doctors rights case, instead of a womens rights case. b. locking in the trimester system based on the medical knowledge at the time created a rule on a collision course with itself. First trimester concern (mothers health), technology has advanced to make mother healthier. Third trimester concern (fetus viability), medical technology has increased to lengthen the viability of a fetus maybe into the second trimester. iii. Justice Stewart Concurrence: Switches from Griswold (no substantive due process) to a substantive due process rationality test. iv. Justice White Dissent: Switches from Griswold (substantive due process exists) to saying no substantive due process exists. v. Justice Rehnquist Dissent: If you use a rational bases test, the state articulates something rational and the test is over. 1. Doctrine of Stare Decisis applies to holdings of cases, not dicta. a. Ask whether the rule has been intolerable b. Subject to reliance c. Related principles of law developed d. Facts have changed that rob the rule of specific application and justification. e. Casey v. Planned Parenthood i. Standard in abortion cases: Is the legislation an undue burden on a womens right to an abortion? ii. Middle tier burden: Substantial relationship to an important state interest. iii. Still a fundamental rights standard, but moves in a different direction than Roe. iv. Undue burden isnt any burden. A waiting period is a burden, but not necessarily an undue burden. f. Lawrence v. Texas i. Majority: A sodomy law prohibiting consensual sex violated substantive due process under the 14th Amendment.

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ADH Pg. 18 of 22 ii. OConner Concurrence: This law should be struck down on equal protection grounds, because you cannot constitutionally distinguish between the sexes. 18. Equal Protection a. Yick Wo v. Hopkins i. Majority: A law violated the equal protection clause of the 14th Amendment, even if it is facially race neutral, if it is applied in a prejudicial manner. This case established that equal protection applies to all persons, not just non-citizens or freed slaves. 1. If you are white and you apply for a permit, you had 98.7% chance of getting a permit. 2. If you are Chinese, and you apply for a permit, you had a 0% chance of getting a permit. b. Plessy v. Ferguson i. Justice Harlan Dissent: Equal protection should mean, in the eyes of the Constitution, there is no superior race, our Constitution is color blind. 1. By separating, you automatically create the foundation for discrimination. Separation fosters inequality. c. Cumming v. County Board of Education i. Majority: If you are going to have separate but equal, you have to pay for it. d. Korematsu v. U.S. i. Majority: Curtailing the rights of a single racial group is immediately suspect, and is subjected to the most strict scrutiny. Only a pressing public necessity would justify the restrictions (repelling a foreign invasion/espionage). ii. Creates the strict scrutiny standard, saying in order to discriminate based on race it must be narrowly tailored to a compelling state interest. e. Brown v. Board of Education i. Majority: No compelling state interest. Separate is never equal, and in and of itself violates the equal protection clause. ii. Korematsu set the stage for Brown v. Board of Education. Strict Scrutiny (Race, National Origin) o Compelling State Interest o Narrowly Tailored to the interest Intermediate Scrutiny (Gender, Illegitimacy) o Important Government Interest o Substantially Related Rational Basis With Teeth (Illegal Alien Children, Mental Retardation) o Legitimate State Interest o Rationally Related Rational Basis (Everything else) o Legitimate State Interest o Rationally Related

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ADH Pg. 19 of 22 Protected classes all have immutable characteristics that have been historically used to discriminate against people. If the review is of economic or social legislation, probably a rational basis test will be applied. But if there is an immutable characteristic, look for rational review with teeth. f. City of Cleburne v. Cleburne Living Center i. Majority: Rational Basis with teeth ii. Justice Stevens Concurrence: Stevens reasonableness test 1. Nature of the Class 2. Tradition of Disfavor 3. Purpose of the Law 4. Characteristic of disadvantage that justifies disparity iii. Justice Marshalls Concurrence: Marshalls sliding scale 1. Character of the Classification 2. Relative importance of the benefit being denied 3. The asserted state interest in support of the classification a. Introduces an element of the fundamental rights analysis to the equal protection question through the second factor (the relative importance of the benefit being denied), with the implication being some benefits are so important that it is harder to deny those, regardless of the state interest or the class. g. Mayor of Philadelphia v. Education Equality League i. Under the rule in Yick Wo, stark statistical disparity may be evidence of purposeful discrimination triggering equal protection. ii. When dealing with numbers evaluate: 1. The amount of discretion 2. The qualifications 3. Pool of potential qualifiers 4. Number of positions filled h. Casteneda v. Partida i. Jury pool discrimination 1. Discretion (none) 2. Qualifications (18, citizen, not a felon, able to speak English) 3. Pool of potential qualifiers (large) 4. Number of positions to be filled (a lot) ii. Examples 1. Capital Punishment, alleging statistical discrimination of the distribution of capital punishment. a. Discretion (large level) b. The qualifications (aggregated, mitigating factors) c. Potential qualifiers (small pool) d. Number of positions to be filled (intent to be small) e. Result: not allot of power to this statistical disparity 2. Public Education a. Discretion (none)

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ADH Pg. 20 of 22 b. Qualifications (low, 5 and alive) c. Pool of potential qualifiers (large) d. Positions to be filled (all of the children) e. Result: a lot of power to the statistical disparity i. Brown v. Board of Education (II) i. Standard: Eliminate the vestiges of the discriminatory system 1. Physical condition of the school 2. Personnel 3. Transportation j. Green v. New Kent County i. Majority: Maintain the status quo and allowing freedom of choice is not enough effort in trying to eliminate the vestiges of past discrimination. k. Swann v. Chartlotte-Mecklenburg Board of Education i. Majority: Busing is an appropriate remedy for the problem of racial imbalance among schools, even though the imbalance resulted from the selection of students based on geographic proximity to the school rather than from deliberate assignment based on race. l. Freeman v. Pitts i. Standard to be released from bussing requirements: when you have eliminated the vestiges of the discriminatory system for each individual factor. 1. Student assignments 2. Faculty and staff assignments 3. Quality of education 4. Physical facilities 5. Transportation 6. Extra Curricular activities 7. Resource allocation ii. Once you have eliminated the vestiges (magic moment in time), the presumption flips around for the other side to show that the disparity is a effect of the old dual system, not a result of demographic shifts. 1. Everything from that point on, needs a new violation to trigger a new remedy. 2. Bussing is a remedy imposed by the court to combat proven past instances of racial discrimination by this particular institution. 19. Affirmative Action a. Michael M. v. Superior Court i. Majority: In discrimination in determining the level of scrutiny to apply, we simply look at the line being drawn, not at who it is supposed to benefit. b. University of California v. Bakke i. Race can only be regarded for purposes of remedy, when you are remedying the vestiges of past discrimination. ii. Justice Powell Concurrence: Racial discrimination always triggers strict scrutiny, and you have to have a compelling state interest narrowly tailored. Achieving diversity in the classroom, however, is a compelling

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ADH Pg. 21 of 22 state interest that justifies racial discrimination. You cannot have a quota system, but you can keep race as a factor, but only one of many. iii. Dissenting Four Justices: Responding to generalized societal discrimination, should be treated differently when fighting racial discrimination against minorities, triggering a middle tier review. c. Grutter v. Bollinger i. Majority: The Constitution does not prohibit the law school's 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. The law school's interest in obtaining a "critical mass" of minority students was indeed a "tailored use." ii. iii. Thomas Dissent: If it will be illegal in 25 years, how is it legal now? A time limit looks remedial, but there is no claim that they are remedying past discrimination. Having an elite public law school is not a compelling state interest. iv. Justice Rehnquist Dissent: Concerned that U of M is discriminating against one group of minorities in favor of another. v. Scalia Dissent: Diversity is not a compelling state interestthis is a de facto quota system vi. Criticism: Although the majority claims fidelity to the Powell test in Bakke, it justified it with the reasoning of the dissent in Bakke. This narrow tailoring, looks nothing like the narrow tailoring in any other instance. 1. Everyone accepted the premise of Bakke (strict scrutiny + no quota system), but they allowed a quota system (the numbers matched up too readily. Compelling state interests o Repelling a hostile foreign invasion of our soil o Remedying past race based discrimination by this institution Educational setting, not exclusive to education o Having diversity in the classroom (exclusively educational) Critical Mass Unique Perspectives

20. State Action Doctrine a. Marsh v. Alabama i. If a private party is engaged in traditional governmental functions, you can treat them as a state actor for the purposes of equal protection suits. b. Burton v. Wilmington Parking Authority i. Symbiotic relationships between a private party and the government, such as a lease, can constitute grounds to treat the private party as a state actor. c. Reitman v. Mulkey i. One way ratchet theory (Acting with encouragement, enforcement, or approbation): A state cannot repeal a law preventing discrimination as it

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ADH Pg. 22 of 22 could encourage discrimination in violation of the 14th Amendment. It is alright to not have a ban on discrimination, but once enacted, a state may not rescind it. d. American Manufacturers Mutual Insurance Co. v. Sullivan i. Majority: A finding of state action requires both that the deprivation be caused by actions taken under state law and that the deprivation be fairly attributable to the state e. Brentwood Academy v. Tennessee Secondary School Athletic Association i. Majority: Pervasive entwinement of state school officials in the ostensibly private organization and the state education board's acknowledgment of the organization, indicated that the organization is a state actor for civil rights purposes.

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