CONSTITUTIONAL LAW OUTLINE

CHAPTER 2: Judicial Review (THE FEDERAL JUDICIAL POWER)

SOURCE and SCOPE OF JUDICIAL POWER:
I.

Source/Authority of Federal Judicial Power Article III, section 1

a. Article III of Constitution provides that the federal judicial power shall be vested in one Supreme Court,
and in such inferior courts as the Congress may from time to time ordain and establish
i. Article III does NOT require Congress to establish any lower federal courts nor grant them full
jurisdiction to decide all maters within federal judicial power

II.

Scope of Federal Judicial Power Article III, section 2

a. Federal courts are of Limited Jurisdiction
b. Article III, section 2 limits the federal courts to cases (among others):
i. Arising under the Constitution, an act of Congress, or a federal treaty
ii. In which the United States is a party
iii. Btw a state and citizens of another state; and
iv. Btw citizens of different states (diversity cases)

III.

JURISDICTION OF THE SUPREME COURT

a. Original Jurisdiction
i. Article III Supreme Court has original jurisdiction over Cases affecting Ambassadors, other
public ministers and Consuls and those in which a State shall be a Party.
1. Congress may NOT restrict nor enlarge Supreme Courts original jurisdiction. (Marbury)
Federal Courts may not gain jurisdiction by consent.
2. Today Supreme Courts original jurisdiction is mainly occupied by controversies
between two or more states
b. Appellate Jurisdiction
i. Article III Supreme Court shall have appellate jurisdiction in all other Cases before mentioned
with such Exceptions and under such Regulations as the Congress shall make.
ii. Power of Judicial Review
1. Marbury v. Madison established that appellate jurisdiction includes power to hear
appeals regarding the constitutionality of:
a. Acts of branches of the federal government (Executive/Congress) legislative
acts
b. State statutes
c. State court judgments
iii. Restrictions on Appellate Jurisdiction Article III and Congress
1. Article III Defines maximum extent of federal subject matter jurisdiction (this is the
ceiling)
a. Justiciability doctrines further limit access to federal courts
i. Standing, [ripeness, mootness,] political question doctrine
2. Congress Can statutorily limit federal court jurisdiction
a. Federal court may ONLY hear matters where there is:
i. Constitutional authorization; and
ii. Statutory authorization

b. Congress may also create Exceptions and Regulations on Courts appellate

jurisdiction (but this power is disputed).

A. AUTHORITY FOR JUDICIAL REVIEW

I.

Judicial Review The power of the Supreme Court (and federal courts) to invalidate or regard as invalid the
actions of the legislative and executive branch (or state statutes and state court judgments) if they collide
with the US Constitution.

II.

MARBURY v. MADISON
a. HOLDING Court rules against Marbury and held that the Supreme Court could NOT constitutionally
hear the case as a matter of original jurisdiction.
i. Although the Judiciary Act of 1789 authorized such jurisdiction, this provision of the statute was
unconstitutional b/c Congress can NOT expand original jurisdiction beyond Article III of
Constitution.
ii. Marshall took this as an opportunity to claim the power of judicial review (but in a context least
likely to draw opposition)
b. Marshalls Reasoning Marshall structured the opinion around three questions:
i. Issue 1 Does Marbury have a right to the commission?
1. YES Marbury has a right to the commission b/c all the proper procedures were
followed. Thus, withholding the commission is violative of a vested legal right
ii. Issue 2 Do the Laws afford Marbury a Remedy?
1. YES Marshall states for every right, there is a remedy. USA is a government of
laws, not of men. Thus, even President is not above the law.
a. Marshall draws a distinction When Judiciary can review Executive actions:
i. Ministerial acts Judiciary MAY give remedy against the Executive if
it is a specific legal duty to a particular person.
ii. Political acts Judiciary may NOT provide a remedy when the
Executive action is a political matter left to the Presidents discretion.
iii. Issue 3 Can the Supreme Court issue this remedy? (Is Mandamus appropriate?)
1. YES Judicial Review (including mandamus) is ONLY appropriate regarding
ministerial acts where the executive has a legal duty to act.
a. Thus Marbury has right to commission and Court has authority to issue writ of
mandamus to require the President to act.
iv. Issue 4 Does Court properly have Original Jurisdiction to issue mandamus?
1. NO The Judiciary Act of 1789 does provide statutory authority to issue mandamus
here. However, the Judiciary Act unconstitutionally expanded Original Jurisdiction
beyond Article III.
2. Congress may NOT expand the original jurisdiction of the Supreme Court
a. Article IIIs list of areas of original jurisdiction would be mere surplusage if
Congress could expand it at will.
i. Thus, the court does NOT have jurisdiction because the Judiciary Act of
1789 violated Article III.
v. Issue 5 Can the Court declare laws Unconstitutional?
1. YES The Supreme Court may declare laws repugnant to the constitution to be
unconstitutional and invalid.
a. The Constitution is law that can be enforced in ordinary courts.
b. Constitution is supreme law and should control over all other acts of
Congress. (When laws conflict Constitution must trump)

c. Constitution imposes limits on government powers these limits would be

meaningless unless the Judiciary can enforce them.
d. Judiciary has supreme power to interpret the Constitution
i. It is emphatically the province and duty of the judicial department to
say what the law is
e. Courts authority to decide cases arising under the Constitution implies a
power to declare unconstitutional laws conflicting with it.

III.

KEY PROPOSITIONS Marbury v. Madison:

a. Article III is the maximum of federal court jurisdiction
i. Congress can NOT expand the original jurisdiction of the Supreme Court
1. Federal courts may NOT hear cases beyond what is specified in Article III.
2. Federal courts can NOT gain jurisdiction by consent
b. Authority for Judicial Review of Executive actions
i. Judicial Review of Executive actions depends on the context:
1. Ministerial acts Judiciary has authority to review executive actions involving
individual rights and government duties
2. Political acts Judiciary does NOT have authority to review acts within the
Presidents discretion (the only check is the political process)
c. Authority for Judicial Review of Legislative Acts
i. Judiciary has authority to review legislative acts and invalidate laws that conflict with the
Constitution.
d. Judiciary is supreme in interpreting the Constitution
i. Marshall states: It is emphatically the province of the and duty of the judicial department to say
what the law is
ii. Must preserve separation of powers and system of checks and balances.
1. If Congress can both write and interpret their laws, there is no check on Congress power.
2. Judicial Branch is least dangerous branch of government
a. Congress has power of the purse
b. Executive has power of the sword

IV.

JUDICIAL REVIEW OF STATE and LOCAL ACTIONS

a. Marbury v. Madison established power of Supreme Court to review the constitutionality of federal
executive actions and federal statutes.
i. Constitution does not explicitly say Supreme Court may review state court decisions, but the
Judiciary Act of 1789 provided for review of state court judgments.
b. Supreme Court has authority to review State Court judgments/interpretations involving Federal
Laws or Constitutional Laws (Civil or Crim cases)
i. Cohen v. Virginia: The court emphasized that state courts cannot always be trusted to protect
federal rights, therefore people should be free bring their cases to the SCOTUS if it was a
question of constitutionality

B. LIMITS ON FEDERAL JUDICIAL POWER

Supreme Courts Appellate Jurisdiction
Congress has provided two methods to invoke Supreme Court appellate jurisdiction:
1) Appellate Review When there is an appeal of right to the Supreme Court (NO discretion)
a) Court must review the entirety of the case (no discretion to review only one issue)

2) Writ of Certiorari When the Court may use its discretion to decide whether to take the case.
a) Court can review just one issue if it chooses (must have substantial federal question)
b) Almost all of the Supreme Courts cases come through writ of cert

Three primary limits on judicial power:

1)
Interpretive Limits
a. Question of how the Constitution should be interpreted
i. Originalists vs. Non-Originalists (lots of sub-categories)
2)
Congressional Limits
a. Ability of Congress to restrict federal court jurisdiction
i. Exceptions and Regulations Clause allows Congress to restrict Courts jurisdiction
ii. Separation of Powers as a limit on Congress authority
3)
Justiciability Limits
a. Judicially created doctrines that limit the types of matters the federal courts can decide.
i. Prohibition on Advisory Opinions
ii. Standing
iii. [Ripeness]
iv. [Mootness]
v. Political Question Doctrine
1) INTERPRETIVE LIMITS: There's big debate over the fact that these unelected officials have
the ability to freely interpret the constitution against the legislation put out by congress.
They look at:
c. The actual text
d. Other parts of the constitution
e. Dictionaries of time of drafting
f. Other laws at the time
g. Latin interpretation
h. Consequences
i. Pre-constitutional rights
j. Drafting history (but very volatile practice)
k. State constitutional provisions (how they interpreted it for themselves)
l. Post-ratification practice/interpretation
I.
Originalists Limiting power of unelected judges in a democratic society
i. Interpretation of Constitution should be limited to what is expressly stated or clearly implicit in
the written Constitution. (textual focus)
ii. Constitution should ONLY evolve via amendment
II.
Non-Originalists/Living Document Judges should have substantial discretion to interpret Constitution
i. Constitution should evolve by interpretation (not only by amendment)
ii. believe that judges can extend their interpretation to outside sources and should be free to
interpret more the framers abstract intent of purpose, allowing them to establish things that are
not at all explicitly stated (such as the right of women to office even though it says "he")
iii. The interpretation is not bound by history, but is updated and adapted for each generation
District of Columbia v. Heller
(Scalia)

The militia phrase of the second amendment is a prefatory clause that doesnt limit the latter clause
just announces a purpose

The right was pre-existing, the second amendment notes that it will not be infringed

Not a limitless right valid exercises include forbidding possession by felons, mentally ill, or carrying
in sensitive places

Second amendment contemplates self-defense

No other constitutional right has to undergo a balancing test in order to determine validity the
amendment is product of balancing
o

No clear level of scrutiny used

o Ginsburgh/Bryer Dissent:

Stevens dissent: The second amendment is limited to military purposes no constitutional right to
use weapons for self-defense

Gun regulation is common in historical practices

Breyer dissent: Handguns werent part of framers conception more recent historical practices
beg the question limits depend on interests involved, but probably military purposes

Advocated an interest balancing approach

3) JUSTICIABILITY LIMITS (Ch. 3 Jurisdiction of the Federal Courts in

Constitutional Cases)
I.

Justiciability Doctrines judicially created limits on the matters that can be heard in federal court. 5
doctrines: 1) prohibition on advisory opinions; 2) standing; 3) ripeness; 4) mootness; 5) political question
doctrine.
a. Case and Controversy Requirement
i. Article III 2 limits the jurisdiction of federal courts to cases and controversies. The
terms refer to matters that are appropriate for judicial determination, as distinguished from
disputes that a hypothetical, academic or moot. The jurisdiction is limited:
1. Must be a matter that is definite and concrete;
2. Must have parties with adverse legal interests
3. Must be a real and substantial controversy admitting of specific relief.
b. Constitutional vs. Prudential Requirements
i. Constitutional Requirements some justiciability doctrines are derived from interpretation of
Article III case and controversy requirement.
1. Constitutional limits on judicial power may NOT be overridden by Congress.
ii. Prudential Requirements other justiciability doctrines are derived from wise policy and
prudent judicial administration.
1. Prudential limits on federal power may be overridden by Congressional statute. (but
judges are bound by prudential limits in absence of statute)

II.

Policies Underlying Justiciability Doctrines

a. Separation of Powers defining role of judicial branch in relation to other branches
b. Conservation of Judicial Resources only spend time on cases most deserving of review
c. Improve Judicial Decision Making provide concrete controversies w/ adverse parties
d. Promote Fairness to those parties not before the court
e. Balancing judicial restraint and judicial review

III.

Other Limits on Judicial Power Judicial Restraint

a. Principles of Avoidance even when a case is justiciable, the court will follow avoidance principles to
ensure that it will only reach constitutional questions when necessary.
b. Avoidance Principles Justice Brandeis (Ashwater)
i. Requirement of Strict Necessity in passing upon constitutional questions
1. Court will only pass on constitutional questions that are actually before it in a concrete
dispute btw adverse parties
2. Court will NOT decide constitutional questions in broader terms than are required by
the facts before it
3. Court will construe statutes so as to avoid constitutional issues

FIVE JUSTICIABILITY DOCTRINES:

#1 PROHIBITION ON ADVISORY OPINIONS
I.
General Rule Federal courts may NOT issue advisory opinions.
a. This prohibition is at the core of Article III case and controversy requirement
II.
Justifications for Prohibiting Advisory Opinions
a. Separation of Powers
i. Judicial role is confined to deciding disputes, not advising congress or president
ii. If congress did not follow advice this would undermine power of judiciary
b. Conserving Judicial Resources
i. Judiciary should only spend time on actual disputes
c. Ensuring Concrete Disputes (not hypothetical arguments)
i. Issues are best litigated by adverse parties with real stakes in outcome
III.

TWO CRITERIA TO AVOID BEING AN ADVISORY OPINION:

a. Must be an actual dispute between adverse litigants
i. Court must dismiss suits where parties collude to bring the matter to court in absence of real
controversy
b. Must be a substantial likelihood that a court decision will have some effect
i. Separation of Powers requires that Courts decision be dispositive and that other branches cant
simply ignore the decision.

IV.

Distinguish Declaratory Judgments

a. Suits for declaratory judgments are justiciable so long as they meet the requirements for judicial review
(actual dispute between adverse parties).

V.

Examples and Cases:

a. Opinion of the Justices (1790s): President asked justices for their opinion on neutrality and placing guns
on ships. Court refused to answer the questions. Holding maintaining separation of powers requires
that Judiciary not issue advisory opinions. Judiciary should not interfere with Congress in law making;
nor interfere with Executive in treaty making.
b. Flast v Cohen (1968): Ps contended that spending funds on religious schools violated the First
Amendment's ban on the establishment of religion. Holding Taxpayers have standing to sue to prevent
the disbursement of federal funds in contravention of the specific constitutional prohibition against
government support of religion.
Flast Test
The Court developed a two-part test/"double nexus" test to determine whether the plaintiffs had standing to
sue. (1) because a taxpayer alleges injury only by virtue of his liability for taxes, the Court held that "a
taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power
under the taxing and spending clause of Art. I, 8, of the Constitution." (2) the Court required the taxpayer to

"show that the challenged enactment exceeds specific constitutional limitations upon the exercise of the
taxing and spending power and not simply that the enactment is generally beyond the powers delegated to
Congress by Art. I, 8." Only when both nexuses have been satisfied may the petitioner have standing to sue.
#2 STANDING: MOST IMPORTANT (as proclaimed by the court)
I.
Standing determination of whether a specific person is the proper party to bring a matter to the court for
adjudication.
a. Policies behind Limiting Standing
i. Separation of Powers
1. Standing limits what matters Courts will address and minimizes judicial review of the
actions of other branches of government
ii. Preserving Judicial Economy
1. Standing prevents a flood of suits by those who have only an ideological stake in the
outcome.
iii. Improve Judicial Decision Making
1. Standing ensures specific controversies with adverse litigants who can effectively litigate
the matter (sharpens issues)
iv. Promote Fairness for absent parties
1. Ensuring that people will only raise their own rights; others will not meddle to protect
rights of others who do not want protection.
II.

REQUIREMENTS FOR STANDING Constitutional and Prudential requirements. (must have at outset of
original case and appeal)
a. Constitutional Standing Requirements (based on Article III: power over cases & controversies
(main concern is prohibiting advisory opinions) (Congress may NOT override)
i. Injury in Fact (linchpin)
1. P must alleged that she suffered or imminently will suffer personal harm
2. Must suffer distinct and palpable harm
a. Personal (for oneself); tangible harm--- distinct from population at large
ii. Causation
1. The injury must be fairly traceable to Ds illegal conduct.
2. Must link the injury to the claim of illegality
iii. Redressability
1. If court rules in Ps favor, the decision must actually redress the injury
a. Like prohibition on advisory opinions decision must have effect
b. Prudential Standing Requirements (Based on prudential judicial administration concerns)
(Congress may override by statute)
i. Prohibition on Third Party Standing
1. General Rule Party may only assert his own rights, and NOT rights of third parties not
before the court.
a. Exception Where Third party is unlikely to be able to sue
b. Exception Close relationship btw Plaintiff and Third Party
ii. Prohibition on Generalized Grievances (although trending towards treating as Const. not Prden.)
1. NO taxpayer standing;
2. NO citizen standing for claim to force Government to follow the law
a. Narrow Exception Taxpayer may sue to challenge congressional spending in
violation of Establishment Clause (Flast v. Cohen)

iii. P must be within Zone of Interests protected by Statute

1. Typically only applies to cases under the Administrative Procedures Act
III.

CONSTITUTIONAL STANDING REQUIREMENTS APPLIED Examples and Cases

a. INJURY IN FACT
i. Requirement of Personally Suffered Injury
1. Ps complaint must specifically allege that he has personally suffered or imminently will
suffer injury ideological interest is NOT sufficient
2. Ps seeking injunctive relief (or declaratory relief) P must show a substantial
likelihood of future personal harm from same illegal activity.
3. Linda R.S. v. Richard D. 1973: P wanted State to throw baby daddy in jail for failing to
pay child support. Holding Although P could seek damages, P did NOT have standing
to seek injunctive relief b/c she could not show that she would benefit (get child support)
from throwing him in jail. (too speculative)
4. Lujan v. Defenders of Wildlife 1990: P sued to challenge a change in federal regulation
of Endangered Species abroad. Ps claimed their injury was that rates of extinction
abroad would increase. Holding Ps do NOT have standing because they could not
show a sufficient likelihood that they would be injured in the future by a destruction of
engaged species abroad. The fact that P had previously visited was insufficient w/o
concrete plans to return. Desire to observe is enough; but must immediately be deprived.
5. City of LA v. Lyons: Proof of threat of future personal injury: Past illegal conduct, by
itself, is insufficient to establish an actual case or controversy for injunctive relief. Even
though Lyons was injured by the police in the past, this act alone does not establish that
Lyons himself is threatened with immediate injury.
6. Clapper v. Amnesty: Where international agents afraid their private conversations with
foreign reps who were being tapped, would be recorded. Held: To establish standing, a
party must establish that its injury is concrete, particularized, and actual or imminent;
fairly traceable to the challenged action; and repressible by a favorable ruling. Couldn't
prove that they individually would be recorded in the future.
ii. Injuries sufficient for Standing:
1. No formula exists, but the following injuries are clearly sufficient:
a. Injuries to Common Law Rights
i. Injuries arising out of property, contracts, tort are sufficient
b. Injuries to Constitutional Rights
i. Generally, violations of right of free speech, due process is sufficient for
standing
ii. However some suits are generalized grievances that are NOT
justiciable absent a particular, personal harm to P.
c. Injures to Statutory Rights
i. Violations of rights created by Statute are sufficient.
ii. Aikens: Court held that a congressional statute could grantt a right to
information, the denial of which was an injury sufficient for Standing.
2. Other injuries that have been held sufficient:
a. Economic harms; changes in market conditions
iii. Injuries NOT sufficient for Standing:
1. Generalized grievances against government conduct are NOT sufficient for standing.
(P must suffer a personal distinct harm.)

a. United States v. Hays: Ps sue to enjoin racially discriminatory gerrymandering

in voting districts. Ps did not live in the district that was the subject of
gerrymandering. Holding Ps do NOT have standing because they do not live
inside the district.
2. Abstract stigmatization of a minority group is NOT sufficient for Standing
3. Supreme Court may often manipulate Standing requirement in order to reach (or avoid)
cases on the merits.
a. Federalism or Separation of Powers concerns
b. CAUSATION and REDRESSABILITY
i. Causation P must also allege and prove that the personal injury is fairly traceable to the
defendants allegedly unlawful conduct
1. P must show a link btw injury and unlawful conduct
ii. Redressability P must prove that her injury is likely to be redressed by the requested relief.
(Will courts decision have any effect and remove the harm?)
1. Usually these involve the same inquiry If D is shown to be the cause of the injury,
then courts halting of Ds conduct usually will remedy the harm.
iii. Examples Sufficient causation/redressability:
1. Duke Power: Ps challenged constitutionality of Price-Anderson Act which limited
liability of utility companies for nuclear accidents. Holding Court found
causation/redressability sufficient for Standing b/c construction of the nuclear plant near
Ps homes subjected them to exposure to radiation and fear of meltdown. Plant wouldnt
have been built without the Act. Court seems anxious to reach the merits and is lenient!

2. Massachusetts v. Environmental Protection Agency : Twelve states and several cities

of the United States brought suit against the United States Environmental Protection
Agency (EPA) to force that federal agency to regulate carbon dioxide and other
greenhouse gases as pollutants, which they had decided not to regulate under the Clean
Air Act. Holding Ps did have standing to assert right b/c the EPAs refusal to regulate
greenhouse gas emissions presents a risk of harm to Mass. that is actual, imminent and
may be somewhat redressed by enforcement of regulations.
iv. Examples NOT sufficient causation/redressability:
1. Merely speculative redressability of the harm is NOT sufficient:
a. Linda R.S. v. Richard D: Unwed mother (P) sought to change state law and
have father of illegitimate child prosecuted for failure to pay child support.
Holding Court did NOT find sufficient redressability b/c it was only
speculative that if P was granted requested relief she would get $$ if father is
prosecuted.
b. Warth v. Seldin: Ps were poor and challenged exclusionary zoning practices
which kept them from being able to live in affordable housing in Penfield, NY.
Holding Court did NOT find sufficient redressability b/c P could not prove
that requested relief would result in construction of affordable housing. Even
w/o zoning laws, P might not be able to afford homes in Penfield. (bit harsh)
2. The causation link between injury and unlawful conduct must be direct

a. Simon v. Welfare Rights Org: Ps were indigents who claimed they were
denied medical care b/c of a change in IRS policy toward tax-exempt hospitals.
Holding Court did NOT find sufficient causation b/c it was only speculative
that the IRS policy was responsible for Ps denial of care. Also, there was NOT
sufficient redressability b/c nothing shows that courts granting Ps requested
relief would result in given medical care.
IV.

PRUDENTIAL STANDING REQUIREMENTS APPLIED Examples and Cases:

a. PROHIBITION ON THIRD PARTY STANDING
i. General Rule Plaintiff can only assert his own legal rights and may NOT present the claims
of third parties who are not a part of the lawsuit.
1. Rationale Court should not adjudicate rights unnecessarily if third party does not want
to assert them Usually third parties themselves are best proponents of their rights.
2. However There are two exceptions to this rule where the Plaintiff has met the other
Standing requirements of injury, causation, redressability.
ii. Exception #1 Where the Third Party is Unlikely to be Able to Sue
1. A plaintiff may assert the rights of third parties not before the court if:
a. There are substantial obstacles to third party asserting his own rights;
b. There is reason to believe the advocate will effectively represent the absent third
partys interest.
iii. Exception #2 Close Relationship between Plaintiff and Third Party
1. A plaintiff may assert the rights of third parties where there is a close relationship
between the advocate and the third party. (when interest shared btw right holder and the
one brining suit is inextricably bound)
a. Usually, third-party standing is permitted where the advocate is part of the thirdpartys constitutionally protected activity.
2. Singleton v. Wulff: Abortion Doctors were allowed Standing to assert the rights of their
welfare patients. Court held relationship btw Doctor and patient is close and the
doctor is intimately involved in the constitutionally protected abortion decision. Doctors
can assert rights of women patients b/c of close relationship and b/c women unlikely to
sue b/c of privacy concerns. Yes, parties adverse; injury b/c Dr.s would get paid
otherwise
3. Craig v. Boren: Oklahoma law allowed women to buy alcohol at 18yo, but men had to
be 21. Bartender challenged law asserting rights of his male customers. Holding
Court accorded third-party standing to Bartender to assert rights of underage customers.
Close relationship existed by way of shared interest (one wants to sell and the other wants
to buy). This case is very lenient obvious that court was anxious to strike down this
law.
iv. Examples Where court DENIED Third-Party Standing
1. Gilmore v. Utah: Son was sentenced to death and chose not to appeal. Mother sought
stay of execution on her sons behalf. Holding Mother was NOT allowed third-party
standing to assert rights of her son. Court found there was no reason why son could not
assert his rights on his own behalf.
2. In a controversial case the court will sometimes alter their Standing requirements in
order to avoid or reach the merits. Is this a legitimate use of justiciability doctrines??
a. The court seems to be changing in what it defines as a prudential standing
requirement. (Good judgment? Or a binding requirement?)

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b. PROHIBITION OF GENERALIZED GRIEVANCES (NO Taxpayer Standing)

i. General Rule NO Standing if asserted harm is a generalized grievance that is shared in a
substantially equal measure by all or a large class of citizens.
1. NO standing for a taxpayer to challenge general government expenditures
2. NO standing for a citizen to sue to force government to follow the law.
ii. Narrow Exceptions
1. Taxpayer standing is permitted to challenge government spending in violation of the
Establishment Clause (Flast v. Cohen).
2. Taxpayers have standing to challenge the requirement of paying a specific tax they allege
is unconstitutional, IF there is a Real and immediate economic injury to taxpayer
(Windsor: had to pay the tax. Exec. held unconstitutional, and will not enforce it but did
not strike it down. Kennedy later would proclaim in a dissent that: the court should not
use Justiciability doctrines to avoid answering tough questions. Yes Injury= actually had
to pay the tax. Maj. says still maintains injury b/c of dual track approach. Scalia of course
proclaims that there is no controversy. Asshole)
3. Flast v. Cohen: Court permitted taxpayer standing to challenge gov. spending on
religious schools in violation of the 1st Amendment Establishment Clauses prohibition on
government establishment of religion. The Establishment Clause is unique because it is a
specific limit on Congress taxing and spending power. (standing allowed in complaint
that federal funds were used to finance private schools)
4. Flast Two Pronged Test Logical Nexus
a. Prong #1 Taxpayer may only challenge expenditure of funds under the
Taxing and Spending Clause of Article I, 8
i. NOT incidental spending under regulatory statute (congressional
expenditure, not regulatory)(also only applies to giving of $ not land)
b. Prong #2 Taxpayer must show Congresss spending violates a specific
constitutional provision
i. Only violations of the Establishment Clause have sufficed. (nexus b/w
taxpayer and Constitutional infringement must be a specific violation
of the Congress ability to spend money)
5. Flast has never been extended, but also never been overruled.
a. Flast is still used as a very narrow exception to allow taxpayer Standing on cases
with the exact same facts (Establishment Clause)
iii. Examples DENYING Taxpayer Standing (Refusing to extend Flast exception)
1. US v. Richardson: P claimed that statutes providing secrecy to CIA spending violated
Constitutions requirement for a regular accounting statement. Holding P taxpayer
does NOT have standing b/c he is simply airing a generalized grievance. Flast exception
does NOT apply b/c expenditure is NOT under Taxing and Spending Clause (statutory
expenditure), but rather a part of general executive revenue.
iv. Policy Rationale Generalized Grievances doctrine protects Separation of Powers.
1. Judiciary has no power to halt government violations of the Constitution unless a
plaintiffs personal rights were violated.
a. Barring plaintiffs from suing entirely out of ideological interests
2. Some Govt. decisions should be left to the political process only.

11

a. In Lujan the court seems to treat Generalized Grievances principle as

constitutional rather than merely prudential.
v. Criticism Generalized Grievances doctrine is an abdication of judicial role in upholding the
Constitution and protecting against tyranny of the majority.
1. If some parts of the Constitution can only be enforced via political process, then judicial
review cannot serve to protect minorities from Majority Rule
3. MOOTNESS AND RIPENESS
a. Ripeness doctrine: Pre-enforcement review. Seeks to separate matters that are premature for review from
those that are appropriate for federal court review (this may be the injury is merely speculative and not
actual)
i. Ripeness v Standing: standing is the evaluation of whether the harm is sufficient to bring a suit,
and ripeness is whether the injury has occurred or not yet.
ii. Two considerations: (Abbott Laboratories v. Gardner).
1. Hardship to the parties of withholding court consideration
a. more hardship the more likely will take
2. Fitness of the issues for judicial decision
a. is there any reason that it would be more beneficial to wait for an actual controv?
iii. Abbott labs: Yes, much hardship. The risk of violating the policy of labeling and getting in
trouble. And view fitness satisfactory cuz there was no benefit to wait; no reason they couldn't go
ahead and make a judgment on the policy.
iv. Poe v. Ullman: (Couple seeking opinion over illegality of use of contraceptives) Although the
plaintiffs possess legitimate concerns, no case has been reported of previous plaintiffs being
prosecuted for using or distributing medical advice about contraceptive products. Contraceptive
devices are routinely and openly sold to other persons in common drug stores, and there is no
record of the Connecticut legal system prosecuting people for using or distributing advice about
contraceptives. It is highly unlikely these particular plaintiffs would be prosecuted.
v. Dissent: What Ps supposed to do? Really expected to break the law and hope not to get caught?
b. Mootness: standing throughout the litigation timeframe; a personal interest and injury must exist when
the suit is filed (to satisfy standing requirements) and must continue throughout the litigation (mootness);
if the case is resolved before the litigation, the case is moot. (Lack of an actual live controversy; Criminal
defendant dies; Not enough that D is out of custody; Civil plaintiff dies and right does not survive; Case is
settled; Challenged law is repealed)
i. EXCEPTIONS:
1. Wrongs capable of repetition but evading review
2. Duration of challenged action too short to be fully litigated prior to its cessation
3. Reasonable expectation that party will be subject to same action again
4. Voluntary Cessation: If D voluntarily ceases, but is free to resume at any time. Not
enough D says it will stop. Only moot if NO REASONABLE CHANCE the defendant
could resume that behavior.
ii. Cases:
1. Moore v. Ogilvie: The plaintiff had his petition to be nominated denied because he did
not have the required number of votes. Despite the fact that the election was over and it
was deemed there was no applicable relief that could be granted, the court viewed that
because it would continue to be an issue in future elections, that until it is resolved, it is
considered a continuing controversy and, therefore, is not moot.
2. ROE v. WADE: No longer pregnant. Court, citing the fact that pregnancy typically lasts
shorter than a case, it would be evading review if it were to continue to be an issue
unresolved, especially because it is an issue that is sure to come up again, even with the
same plaintiff.
3. Defunis v. ODEGAARD: A kid that was denied from U. of Washington Law school.
They not only viewed it as moot in the case of the Plaintiff because he actually got into
the law school and was about to graduate, but they also found it unlikely that they
wouldn't be able to resolve a similar suit in the future in a timely manner.

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#5 POLITICAL QUESTION DOCTRINE

I.
Political Question Doctrine Some allegations of constitutional violations are deemed inappropriate for
judicial review and are instead left to the political branches to interpret and enforce. (President and
Congress).
a. Even though all of the jurisdictional and justiciability requirements are met (Standing, etc) Court will
DISMISS the case as a nonjusticiable political question

CHAPTER 4: The Scope of National Power (FEDERAL LEGISLATIVE POWER)

CONGRESS AND THE STATES Doctrine of Limited Federal Legislative Powers
I.

Doctrine of Limited Federal Legislative Powers: Basic Principle of American Govt: Congress may only act
when there is express or implied authority to by the constitution. (states can act unless the constitution
prohibits)
a. Article I: all legislative powers granted to a house and senate (congress)
i. Article I, 8: Necessary and Proper Clause: Allows Congress to execute laws that are
necessary and proper for carrying out the enumerated powers of Article I, 8. All
legislative powers shall be vested in a Congress of the United States.
b. Tenth 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.
i. Throughout history, Congress powers have been defined relative to the states.
ii. Currently use 10th Amendment to prohibit, even constitutional laws, because they infringe on
state sovereignty
1. Federal Government is of limited powers
2. State Governments are of general powers
c. Congress Power vs. State Sovereignty Federalism
i. Congress may act only if there is express or implied authority in the Constitution.
1. Evaluating constitutionality of any act of Congress involves two questions:
a. Does Congress have authority to legislate?
b. If so, does the law violate another constitutional provision or doctrine?
(interfering with separation of powers or individual liberty)
2. However Congress has been interpreted to have broad authority under provisions like
the Commerce Clause
ii. States may act unless the Constitution prohibits the action
1. States possess police power power to protect health, safety, morals, etc.
2. Evaluating constitutionality of state law involves only one question:
a. Does the legislation violate the Constitution?
b. Supremacy Clause: All state rights and laws that are contrary to constitutional
rights are subordinate to the Constitution

McCULLOCH v. MARYLAND SCOPE OF CONGRESSIONAL POWERS

I.

II.

McCulloch v. Maryland (1819) Defining the scope of Congresss powers and delineating the relationship
btw Federal government and the States.
a. Justice Marshall uses this case to broadly construe Congress implied powers and narrowly limit the
authority of State governments to impede the Federal government.
McCULLOCH v. MARYLAND DECISION
a. Maryland places a tax on the controversial National Bank. Bank refuses to pay tax. Maryland sues to
collect.

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b. Question #1 Does Congress have authority to create the National Bank? YES
i. Holding #1 Congress has authority to create Bank b/c there is a rational basis to justify an
implied power to create the bank as reasonably linked to Congress enumerated power to
tax/spend/commerce.
1. Marshall refutes Marylands argument that States maintain ultimate sovereignty because
they ratified the Constitution.
a. Constitution originates from the People directly; and NOT from the States
2. Marshalls method of Constitutional Interpretation
a. A Constitution should be interpreted differently than a statute.
i. Constitutions are meant to be flexible to endure over time.
1. Thus Court should be willing to find implied powers
3. Marshall broadly interprets Scope of Congress powers.
a. Federal government is of limited powers, but federal government is supreme
in its sphere.
b. Framers decided to enumerate the powers of Congress
i. However there are Implied powers as well
c. Necessary and Proper Clause the (not so) limiting modifiers
i. In McCulloch v. Maryland, court interprets "necessary and proper
clause" in Article I 8 as a grant, not limitation, of power to use any
means not prohibited by the constitution to carry out its authority.
1. What does necessary mean?
a. Interpret in light of the rationally relatedness to a vested
power that they already have
2. What does proper mean?
a. (1) is the end within the enumerated scope of the
Constitution? (2) is there some minimal degree of FIT
between the means and the end -- is law appropriate; (3)
does anything else in the constitution prohibit what
congress is trying to do?
3. With McCulloch; Marshal says that giving the state the power to
tax [the federal bank] give the power to destroy it.
ii. Marshall interprets necessary as expanding Congressional power
necessary means conducive to or convenient rather than indispensable.
Marshall goes towards the broader end of the spectrum here, as opposed
to strictly necessary
iii. Implying powers to Congress to have the means to carry out its
enumerated powers. (Congress may use N&P clause to enact laws, so
long as those laws are a proper means to an enumerated end)
iv. Rational Basis Test for Implied Powers:
1. If there is some rational link between Congress action and an
enumerated power the act is Constitutional.
2. The ends must be legitimate and consistent with Constitution
3. Courts will defer to Congress (limiting judicial power)
v. U.S. v. Comstock: In determining whether the N&P clause is used
properly, we look to see whether the statute constitutes a means that is
rationally related (and reasonably adapted) to the implementation of a
constitutionally enumerated power. Upheld: law allows civil
commitment of mentally ill, sexually dangerous federal inmates beyond

14

the end of the prisoners' criminal sentences: (1) Congress is the custodian
of federal prisoners (they created the federal crime) and may therefore
constitutionally prescribe the sanctions for said crimes and take steps to
protect the public from those inmates (2) the statute does not violate the
Tenth Amendment by usurping powers reserved to the states. In fact, the
statute specifically provides that inmates must be handed over if states
assert their authority.
c. Question #2 Is the state tax on the Bank constitutional? NO.
i. Holding #2 It is unconstitutional for a state to tax a federal entity like the Bank.
1. The power to create the bank (enumerated power) also creates power to preserve it
2. The power to tax is the power to destroy (power MA is trying to exercise); and the
power to destroy essentially infringes on the power (of the Fed.) to create.
3. Federal government is supreme in its sphere
a. States are subordinate and do NOT have authority to destroy an entity of the
federal government (this would amount to veto power of states)
d. Lessons Learned by McColloch:
(1) Federal government is supreme over the states
(2) Congresss powers are expansive
(3) States cannot interfere with federal government activities

CONGRESSIONAL POWER vs. PROTECTING STATES RIGHTS POLICY

I.

II.

Central Policy Question What role should concern over protecting State Sovereignty have in defining
Congresss Powers?
a. Should Congress powers be interpreted narrowly to leave room for State Sovereignty?
Two Key Underlying Normative Issues:
a. First How important is the protection of state sovereignty and federalism?
i. Opposing Judiciarys use of Federalism (states rights) to Limit Congresss Power:
1. National legislation is needed to deal with complex national problems
a. Judiciary should NOT use Federalism or Tenth Amendment to limit Congress
power.
ii. Favoring use of Federalism (states rights) to constrain Congress Power:
1. Judiciary should limit Congress power by enforcing Federalism and using Tenth
Amendment to protect states sovereignty.
2. Three benefits of protecting state sovereignty:
a. Decreasing likelihood of tyranny
b. Enhancing democracy because States are closer to the people
c. Allow states to be laboratories for new ideas, w/out risking rest of country
b. Second Should Judiciary protect state sovereignty or leave it to Political Process?
i. Political Process is Adequate Protection of State Sovereignty
1. Weschlers Argument Judicial enforcement of Federalism to protect states right is
unnecessary b/c the national Political Process will adequately protect State
governments interest.
ii. Judiciary Needed to Protect State Sovereignty
1. Political Process does NOT adequately protect States as independent entities
a. Before 17th Amendment States government chose Senators
b. After 17th Amendment Senators are popularly elected and are less likely to
protect State Governments as sovereign political entities.

15

THE COMMERCE POWER

I.

Commerce Clause:
a. Article I 8
the Congress shall have the powerto regulate Commerce with foreign nations, and among the several
States, and with the Indian Tribes.

II.

Four Eras of Commerce Clause Jurisprudence (really only three- b, c, d)

a. 1790-1890s Gibbons defines Commerce Power is broadly, but it is minimally used.
b. 1890s until 1937 Court narrowly defines scope of Congress commerce power and uses Tenth
Amendment as a limit.
c. 1937 1990s Court expansively defines Commerce Power and refused to use Tenth Amendment as a
limit on Congresss power.
d. 1990s-Today Court has again narrowed the scope of Commerce Power and revived the Tenth
Amendment as an independent, judicially enforceable limit on federal actions .

III.

Three Central Questions:

a. What is Commerce?
i. It is one stage of business or does it include all aspects of economics and business?
1. What is local and under state control?
2. What is interstate commerce and under Federal control?
b. What does among the several states mean?
i. Limited to direct effects on interstate commerce; or does any effect suffice?
c. Does the Tenth Amendment limit Congresss power over State sovereignty?
i. If Congress is acting within scope of commerce power, can a law be declared unconstitutional as
violating Tenth Amendment?

1790s -1890s GIBBONS v. OGDEN BROADLY DEFINES COMMERCE POWER

I.

Gibbons v. Ogden (1824): NY State had given Ogden a license to operate a ferry boat between NY and NJ.
Gibbons has a license from Federal Government to operate steamboat. Ogden sues arguing Gibbons violated
his monopoly rights given by NY. Ogden argues that Congress commerce power is limited to trade only, not
transport. Holding Congresss commerce power extends to intercourse not just traffic. Congress has
broad power to regulate interstate waterways. Federal law authorized Gibbons to operate ferry; thus the NY
grant of a monopoly was preempted by federal law under commerce clause.

II.

Marshalls Expansive Definition of Commerce Power

a. Marshalls reasoning for broad definition:
i. Common sense
ii. Historical practice
iii. Common understanding of American people
iv. National regulation of commerce a primary reason for federal government
v. Too late to advance a narrow reading
b. What is Interstate Commerce?
i. Interstate Commerce is NOT limited to trade, but includes traffic and intercourse, navigation
and all phases of business.

16

1. Commerce undoubtedly is traffic, but is something more: it is intercourse

c. What is Among the States?
i. Court defines among the states as concerning more than one state.
1. Congress can NOT control completely internal commerce within a state, but may regulate
commerce if it has an impact on interstate activities.
2. Among means intermingled with and cannot stop at the external boundary line of
the state, but may be introduced into the interior
a. Congress can regulate ports (foreign commerce)
b. Congress can regulate any interstate waterways (btw two states)
d. Does State Sovereignty (10th Amendment) Limit Congressional Power? NO
i. Marshall rejects any constraint on Congress power to regulate interstate commerce
1. Congress power over interstate commerce is plenary or absolute
a. This is an express power (not merely implied)
2. Congress has complete authority to regulate all commerce among the states.
a. Only check on Commerce Power is the political process
i. NOT judicially enforced limits to protect the states.
3. If state and federal regulation conflict Federal law is supreme
a. Nature of plenary authority = the ability of Congress to regulate commerce
power and trump any state laws that conflicts with the federal power
4. HOLDING: where state and federal law conflicts, federal law wins, but case doesnt
directly address areas where there is a void of regulation, but theres the idea that the
power is too broad and thus states can regulate until congress steps in; if govt. doesnt
act, then doesnt mean that state actions in areas of silence are void or that the federal
govt is invalidated
5. The Dormant Commerce Clause, also known as the Negative Commerce Clause, is a
legal doctrine that courts in the United States have inferred from the Commerce Clause. The idea
behind the Dormant Commerce Clause is that this grant of power implies a negative converse
a restriction prohibiting a state from passing legislation that improperly burdens or discriminates
against interstate commerce. The restriction is self-executing and applies even in the absence of a
conflicting federal statute.
a. As long as Congress has not exercised its power over commerce in a certain
area, a state may regulate that area as long as such regulations do not conflict
with the Dormant Commerce Clause of the U.S. Constitution.
III.

Not covered by interstate commerce:

1.
Court included: mining, manufacturing and agriculture are local endeavors
2.
If these are regulated, then this is a permissible exercise of police power by the states
3.
Doesnt constitute commerce b/c is what precedes commerce
4.
This is internal commerce reflection of state police power The products produced
may be sent into interstate commerce, but the mining is local and therefore the impact on
commerce is INDIRECT B/c its INDIRECT impact, the states may regulate

1890s 1937 Era LIMITED FEDERAL COMMERCE POWER

I.

Aggressive use of Judicial Review to Invalidate Economic Regulations

a. Conservative Justices committed to laissez-faire economics and strongly opposed to government
regulations (idea of Freedom to Contract emerges)
i. Court regularly invalidated federal laws as exceeding the scope of Congresss commerce power
or violating the Tenth Amendment and the zone of activities reserved to states.

17

ii. Also in this era Court invalidated federal laws as interfering with economic substantive due
process and violating freedom of contract
b. Dual Federalism federal and state governments were separate sovereigns and each had its separate
zone of authority. Judiciarys role is to protect the states by interpreting the Constitution to protect the
states zone of authority and prevent federal interference.
c. Three Doctrines reflected Dual Federalism:
1. Court narrowly defines commerce to leave a zone of power reserved to States.
2. Court narrowly defines among the states so Congress may regulate only when there was a
substantial effect on interstate commerce
3. Court used Tenth Amendment to reserve a zone of activities to States
1. Even if regulation was within commerce power law was unconstitutional if it invaded
the States zone of interest protected by Tenth Amendment.

II.

NARROW DEFINITION OF COMMERCE

a. 1890s-1937 Court narrowly defined commerce to mean trade (not production) in order to
preserve a zone of authority to the States.
i. Early view Commerce does NOT include manner of production which is wholly
intrastate and cant be reached by Congresss under commerce power.
b. Early distinction btw Production (state control) and Trade (federal control):
- Unites States v. E.C. Knight (1895): US attempted to use Sherman Anti-Trust Act to stop a monopoly in
the sugar refining industry. Holding Congress can NOT use commerce power to stop a monopoly in
the production of sugar. Court holds that production or manufacture is NOT interstate commerce
(considered it a zone) even though it effects the whole nation. Only States have power to police
monopolies of intrastate manufacturing. The effect on interstate commerce was only indirect and thus
outside the scope of federal power. Police Power of State: Power of state to protect lives, health, and
property of its citizens, and to preserve good order and the public morals Dissent: everyone agreed to
the Commerce Clause; collective action problem: how else are we supposed to deal with monopolies?
Carter v. Carter Coal Co (1936): Can Congress pass New Deal legislation bringing significant
regulation of Coal Mining Industry (minimum wage, labor regulation, price fixing). Holding Court
invalidates this New Deal law b/c it falls outside Congress commerce power. Mining (like
manufacturing) is NOT commerce and therefore outside of federal control. Dangerous step toward
eroding State sovereignty to allow Congress to regulate local activities. Judiciary must protect the
States issues of labor unions, minimum wages, etc are local issues. This law involves only indirect
effect on interstate commerce because it deals with manufacturing of goods that will eventually travel
interstate. (Congress cant regulate mining b/c it precedes commerce.) local v. national; indirect v. direct

III.

NARROW DEFINITION OF AMONG THE STATES

a. Requirement of Direct Effect on Interstate Commerce
i. 1890-1937 Court interpreted among the states as requiring a direct effect on interstate
commerce in order for Congress to regulate. But court was inconsistent.
1. Direct Effects Trading and transportation of goods between states
a. Congress has authority to regulate direct effects (movement)
2. Indirect Effects Manufacturing of goods intrastate that will eventually travel through
interstate commerce.
a. Production of goods is a local activity under exclusive State control.
b. Congress could NOT regulate indirect effects on commerce.
b. Stream of Commerce Approach

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i.

Court allowed Congress to regulate to protect the stream of commerce

1. Congress can reach into intra-state activities if they have a direct effect on the
stream of commerce between states.
c. Example Upholding regulation of intra-state activity w/ direct effect on commerce
Shreveport Rate Cases (1914): RR runs intra-state as well as interstate lines. RR charges high
rate for line btw TX and LA. RR charges lower rate for same distance inside TX. Can Congress
regulate RR and require equal rates for interstate lines? Holding YES. Congress may regulate
RR lines b/c the unequal rates have a direct effect on stream of interstate commerce.
Swift & Co. v. US (1905):
Upheld application of federal antitrust laws to agreement among meat dealers regarding
purchases from stockyards. Stockyards are part of stream of commerce
Stafford v. Wallace: Rates and standards for stockyards upheld.
d. Example Invalidating regulation of intra-state activity w/ mere indirect effect
Schecter Poultry (1935): New Deal law provided for Poultry Codes regulations for NYC
chickens imported from other states. Law designed to protect against diseased chicken and
regulated labor hours. Holding Court invalidated law because there was NOT a sufficiently
direct effect on stream of interstate commerce. Although chickens had come from out of state,
they had reached final destination in NYC. Thus chickens had stopped being in stream of
commerce. Law struck to protect state sovereignty over local intra-state activities.

IV.

TENTH AMENDMENT AS A LIMIT ON CONGRESS POWER

a. Tenth 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.
b. Key Question Is Tenth Amendment a judicially enforceable limit on Congress powers?
i. If federal law is otherwise within the scope of Congress powers, can it be declared
unconstitutional simply as violating the Tenth Amendment?
c. Two approaches to interpreting Tenth Amendment:
i. Approach #1 Tenth Amendment is merely a reminder that Congress may only legislate if it
has express or implied authority in the Constitution (truism)
1. Under this approach, a federal law can never be unconstitutional simply as violating the
Tenth Amendment
ii. Approach #2 Tenth Amendment protects State sovereignty from federal intrusion
1. Tenth Amendment reserves a zone of activity for exclusive state control and federal
laws intruding into this zone must be declared unconstitutional
d. 1890s-1937 Court used Tenth Amendment to protect State sovereignty over production and federal
laws regulating intra-state production were declared unconstitutional.
i. Even if activity was commerce and among the states, Congress still could NOT intrude into
the zone of activities reserved to States by the Tenth Amendment
1. Congress could NOT regulate intra-state mining, manufacturing, production
ii. However Court allowed Congress to regulate intra-state production of inherently morally evil
products (lottery tickets and tainted milk).
e. Example Using 10th Amend to invalidate federal regulation of interstate commerce
Hammer v. Dagenhardt (1918): Child Labor regulation prohibited shipment in interstate
commerce of goods produced in factories that employed children under 14. Holding Even
though law only applied to goods in interstate commerce, the Court invalidates law because it
regarded production. Regulating hours of labor of children is production and is entirely

19

within the State police power. Court argues that if Congress can regulate production inside a
state, federalism is destroyed. The goods are harmless.
f.

Counter Example Court upholding federal regulation of moral evils (lottery)

(Champion) Lottery Case (1903): Court upholds federal law prohibiting the interstate shipment
of lottery tickets. Even though lottery tickets are produced intra-state, Court concluded that
sale of lottery btw states polluted the channels of interstate commerce with moral evil.
Thus Court makes an exception for federal regulation of inherently moral evil products and
upholds the federal regulation. Court rejects argument that the federal law violated Tenth
Amendment. (analogous to tainted milk) Turned on the sale outside of the states.

1937 1995 ERA BROAD FEDERAL COMMERCE POWER

I.

Causes for Change in Doctrine Depression and New Deal

a. Great Depression:
i. Economic crisis made laissez-faire economics seem untenable.
ii. Courts wide use of Judicial Review to invalidate national economic regulation seemed
anachronistic in the face of depression.
b. FDR and Court Packing
i. FDR is re-elected in 1936 by wide margin mandate for New Deal Programs
ii. FDR tries court-packing to pass New Deal legislation, but fails
1. However In 1937, Justice Owens changed his position and upheld New Deal economic
regulations

II.

KEY DECISIONS CHANGING COMMERCE CLAUSE DOCTRINE

a. 1937-1942 Court makes a huge shift in Commerce Clause Doctrine:
i. Court overrules the earlier era of decisions and expansively defines the scope of Congress
commerce power.
1. From 1937-1995 Not one federal law was declared unconstitutional as exceeding the
scope of Congress commerce power.
2. (Use of Rational Basis Review) Deferential form of scrutiny: If ends are legitimate,
means are generally going to be constitutional
b. Example Congress regulating labor b/c substantial effect on interstate commerce
i. Overruling direct/indirect effects and transportation/production distinctions
NLRB v. Jones & Laughlin Steel (1937): Court upholds federal law regulating labor unions
because labor disputes have a direct substantial effect on burdening free flow of interstate
commerce. Court shows major shift by rejecting the old production vs. transportation
distinction. The fact that the employees were engaged in production is NOT determinative.
Congress has plenary power to protect interstate commerce no matter the source of the dangers
which threaten it.
c. Example Congress may control Production of goods shipped in interstate commerce
i. Overruling Hammer v. Dagenhart Court rejects Tenth Amendment as a limit on Congress
commerce power (merely a truism).
United States v. Darby (1941): Lumber Mill (D) sells products to several states. Fair Labor Act
prohibited the shipment in interstate commerce of goods made by employees paid less than
minimum wage. Holding Court upholds federal law under commerce power. Although intrastate manufacturing is not commerce, the shipment of goods interstate is commerce and Congress
may regulate it. Court rejects Tenth Amendment as a basis for invalidating laws merely a

20

truism Basically: Congress can choose the MEANS reasonably adapted to attain legitimate
END (end being the regulation of interstate commerce)
d. Example Very broad view of commerce reaching Cumulative Substantial Effects
i. Complete rejection of old test of direct effects on interstate commerce
ii. Court broadly interprets Commerce Clause as permitting Congress to regulate even small intrastate activities with negligible impact if the activity, looked at cumulatively/aggregate, had a
substantial effect on interstate commerce.
iii. Marks surrender of Court in reviewing the Actions of Congress under the Commerce
Clause Congress made decision to regulate on a REASONABLE/RATIONALE basis and
feels that the aggregate effect of wheat growers will affect interstate commerce, then the Court
will not second guess that decision
Wickard v. Filburn (1942): Agricultural Adjustment Act set quotas for wheat production.
Filburn has small dairy farm and grew wheat only for home use. Filburn argues AAA could not
constitutionally apply to him b/c his wheat was only for personal use and was never sold to
anyone. Holding Court upholds application of federal regulation to small farmers homegrown wheat b/c of the cumulative/aggregate effect of that wheat on national market. Even
though his wheat alone/individually had trivial impact, Congress could regulate his production
b/c cumulatively/in aggregate homegrown wheat had a substantial effect on interstate
commerce. Problem Looks like there is NO limit on Congress power. Rejects indirect v. direct
test.

III.

THE TEST FOR THE COMMERCE CLAUSE AFTER 1937:

a. 1937-1990s Very Expansive view of Congress Commerce Power:
i. From 1937-1995, not one federal regulation was invalidated as beyond scope of Congress
commerce power. Court gives up limiting federal commerce power
ii. Extreme Deference to Congress if there is any rational basis that the regulated activity
substantially effects interstate commerce.
1. Broad definition of commerce
1. Reject old distinction btw direct/indirect effects or trade/production
2. New Test Congress may regulate any activity (intrastate or interstate) that has a
substantial effect on interstate commerce.
a. Congress can even regulate small/individual activities that, looked at
cumulatively/in aggregate, have a substantial effect on interstate commerce.
b. Court will uphold any law enacted under Commerce Clause if there is a
rational basis for Congress to find that the regulated activity substantially
effects interstate commerce.
i. Huge deference to Congress on what effects commerce
2. Broad definition of among the states
1. Court extended the meaning of commerce among the states to include authority for
Civil rights laws, regulatory laws, and criminal laws.
3. Rejection of Tenth Amendment as a limit on Congress commerce power.
1. No longer was Tenth Amendment used to limit Congress power.

IV.

VERY BROAD MEANING OF COMMERCE AMONG THE STATES

a. 1937 -1995 Congress enacted wide array of federal legislation under commerce clause
i. Courts broad interpretation of commerce among the states upheld all regulations.
b. Rational Basis Test:

21

i. Court gives broad deference to Congress and asks only two questions:
1. Did Congress have a rational basis for finding that the regulated activity had a
substantial effect on interstate commerce?
2. Are the means selected reasonably related to protecting commerce (the ends)?
c. Example Civil Rights Laws Enacted under Commerce Clause
i. Civil Rights of Act of 1964 Enacted by Congress under commerce power.
1. 1883 Court held that Fourteenth Amendment only permitted Congress to regulate
government conduct and state activity (not private behavior)
2. Uncertain in 1964 whether Congress could use the Fourteenth Amendment ( 5) to
outlaw private discrimination in employment and public accommodations.
a. Thus Congress used commerce power to enact Civil Rights Act
b. Under this approach ask: Could Congress have reasonably concluded that this
kind of transaction, even if local, has a substantial impact on interstate
commerce?
c. If YES it has a real and substantial relation to the national interest b/c
commerce is diminished through discriminatory practices, then Congress
may regulate the activity
Heart of Atlanta Motel (1964): Motel operated near interstate highway discriminated against
blacks. Holding Civil Rights Act applies to Motel b/c there is a rational basis for Congress
finding racial discrimination had a substantial effect on channels of interstate commerce.
Discrimination effects black travelers. It makes NO difference that Congress has a moral
motive for the regulation. Dating back to Lottery Cases, court had upheld federal exercise of
commerce power to remedy moral evils.
1. TEST: Determinative test for Congress exercise of power under Commerce Clause =
whether the activity sought to be regulated is commerce which concerns more States
than one and has a real and substantial relation to the national interest
Katzenback: Small family-owned Ollies BBQ restaurant discriminated against blacks. Court
upheld application of Civil Rights Act to small restaurant via commerce power. Restaurant got
46% of its meat from out of state. Holding Court concludes that Congress had rational
basis to find restaurants discriminating against blacks, looked at cumulatively, had a
substantial effect on interstate commerce. (RULE: Although an activity may be regarded as
local and may not be regarded as commerce, it may still be reached by Congress if it exerts a
substantial economic effect on interstate commerce)
d. Example Federal Regulatory Laws Enacted under Commerce Clause
i. Congress can regulate purely intra-state activities, including all aspects of business, if there is a
rational basis for the belief there is an effect on interstate commerce.
Hodel v. Indiana (1981): Court upheld a federal law that regulated strip mining. Court stated
that it will only invalidate a federal regulation enacted under commerce power if there is NO
rational basis.
e. Example Federal Criminal Laws Enacted under Commerce Clause
Perez v. United States (1971) Court upholds federal law criminalizing loan sharking.
Congress has plenary power to protect the challenges and instrumentalities of interstate
commerce from misuse. Even though extortionate loans are wholly local, Court concluded that
Congress had a rational basis for finding that loan sharking effects national organized crime
and thus has a substantial effect on interstate commerce. Dissent argues this is slippery slope
because ALL crime is a national problem. No limit to Congress power to intrude on States
sovereignty over police power.
V.

TRYING TO REVIVE TENTH AMENDMENTS LIMITS BETWEEN 1937 AND 1990s

22

a. In Darby (1941) Court declared that the Tenth Amendment is simply a truism to remind Congress
that it must have express or implied authority to act under the Constitution.
i. 1941-1976 Court refused to use Tenth Amend to limit federal commerce power.

b. Under this analysis: We might concede that something is not beyond the power of the
commerce clause for Congress to regulate, but a second inquiry: we might say that its still
beyond the scope of the Congress b/c it has an impact on state authority and prerogatives (rights
analysis instead of powers analysis)
Something may fall under Commerce power, but still be prohibited b/c effectively
regulates the states in violation of the 10th Amendment of the Constitution.
c. In Natl League of Cities (1976) Rhenquist attempts to revive Tenth Amendment as a limit on
Congress Commerce Power and define a zone of activity where State government was immune from
federal regulation as a separate sovereign of general powers.
i. Hodels 4 part Test Applied in Userys When does a federal law violate the Tenth
Amendment?
1. If the federal law/statute attempts to regulate the States as states;
2. Federal law interferes with traditional/indisputable State functions
3. State compliance with the federal statute directly impairs integral operations of state
govts.
4. The relation of state and federal interests must not be such that the nature of the federal
interest justifies state submission
National League of Cities v. Usery (1976): Congress passed regulation requiring State and Local
governments to comply with Fair Labor Standards Act. Although applicable to private companies,
States challenged Congress attempt to regulate State governments directly. Holding Applying
Act to State govt is a violation of the Tenth Amendment which bars Congress from intruding on
the States integral/essential or traditional government functions. Nothing left of Federalism w/o
some zone of immunity for State governments from federal regulation. Act makes police/fire
protection more expensive interferes with States freedom to make decisions fundamentally
within the States prerogative. RULE: Congress may not exercise power in a fashion that impairs
the states integrity or their ability to function effectively in a federal system (However case is
later overruled)
VI.

In Garcia (1985) Court overruled Natl League of Cities

i. Court rejects traditional state function test for State government immunity from Federal
Regulation is too vague and an unworkable. Court states that Tenth Amendment is NOT a limit
on commerce power
Garcia v. San Antonio Metro Transit (1985): Federal law enacted under Commerce Power
regulates City Bus System. Holding Court overrules Natl League of Cities and states that
Tenth Amendment does NOT bar Congress from regulating state governments. It is within
Congress commerce power to regulate City Buses. State sovereignty is sufficiently protected by
the political process, not the legal system RULE: State sovereign interests are more properly
protected by procedural safeguards inherent in the structure of the federal system (legislature)
than by judicially created limitations on federal power. (political process)

TAKE AWAY: National League of Cities ruling is dead! - cant use the 10th Amendment as a challenge to the
encroachment of federal regulations into the area of state sovereignty

1995 TODAY THE MODERN COMMERCE POWER

I.

1995 Present Narrowing of the Commerce Power and Revival of Tenth Amendment as a
Constraint on Congress Power

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a. The New Era Modern Court seems committed to limiting scope of Congress commerce power and
protecting state sovereignty by invoking the Tenth Amendment.
i. Ask: What is Congress authority to regulate among the States?
1. Needs to be related to commerce and have some sort of commercial impact
ii. In Lopez (1995) For the first time in 60 years, the Court invalided a federal law as exceeding
Congress commerce power. (regulation of guns is not commercial)
iii. In New York (1992) The Court again used the Tenth Amendment to protect state governments
from federal encroachments into state sovereignty.
b. Examples Narrowing Congress Commerce Power over Non-Economic Activities
i. New distinction between Economic and Non-Economic Activities
1.
Congress may regulate economic activities based on cumulative/aggregate impact
2.
However non-economic activities may NOT be regulated solely on cumulative
impact. Requires showing of substantial effect on commerce. A.k.a the Categories listed
below
United States v. Lopez (1995): Congress passes Gun-Free School Zone Act under commerce power
making it a crime to possess a firearm near school zone. Holding Act unconstitutionally exceeds
Congress commerce power b/c the law is a criminal statute that bears NO relation to commerce or any
sort of economic enterprise; unconstitutional interference w/ States police power. New rule If the
regulated activity is non-economic, then court will NOT look to cumulative substantial effects on
interstate commerce. Now, Congress only has power in following categories (1) the channels of
interstate commerce; (2) the instrumentalities of, or persons or things in, interstate commerce; OR (3)
activities that substantially affect or substantially relate to interstate commerce. For non-economic activity
must show clearer nexus btw statute and commerce. Criminal law is traditional area of State
sovereignty. There must be some limit to protect States rights. (Congress authority is not without
bounds) Concurrence (Kennedy/OConnor) schools traditionally zone of state; experimentation;
other alternatives. Dissent Court should use restraint and give deference to congress via rational basis
test. Majority is trying to revive formulaic tests for commerce power that are outdated. Lochner all
over again.
United States v. Morrison (2000): Confirms Lopez wasn't a fluke. Under commerce power, Congress
passes Violence Against Women Act to create a federal cause of action for victims of gender-related
violence. Congress found that gender violence costs US economy billions and contracts womens
freedom of travel. Holding Act exceeds Congress commerce power b/c there was insufficient
evidence this non-economic activity substantially effected interstate commerce. Court emphasized that
Congress was regulating non-economic activity that is traditionally under State Laws. Court does NOT
overrule Wickard, BUT For regulations of non-economic activity, court will NOT look at aggregate
effect on interstate commerce. Need distinction btw what is truly national and truly local. Helps protect
traditionally state regulated areas.
c. Example Narrowly Interpreting Laws to Avoid Constitutional Doubts
Solid Waste Agency (2001): Clean Water Act regulates discharge of materials in navigable
waters. Agency had interpreted statute to apply to temporary ponds which are habitat of
migratory birds. P wants to build dump on land. Agency refuses to grant permit. Holding
Court avoids difficult constitutional question of whether Act exceeds Congress commerce power.
Prudential doctrine of avoiding constitutional question. Instead the court resolves the case by
reading the Statute very narrowly. Court rejects Agencys reading of the statute as extending to
temporary ponds for migratory birds. Court will avoid constitutional collision if the fight is
unnecessary. Dissentmuch $ spent by tourists to watch birds; also dumping almost certainly
involves economic reasons; environmental regs. always proper federal power.
d. Examples Upholding Federal Law and Rejecting Commerce Clause Challenges

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i. In 2003 for the first time since Morrison, the Court reaffirmed Congress broad power to
regulate channels of interstate commerce.
Guillen (2003): Court unanimously reaffirmed Congresss broad power to regulate road safety as
channels of interstate commerce. Ps were injured in car accident at dangerous traffic
intersection. Ps sued for access to info on governments traffic studies. Federal law had
exempted these studies from discovery. Holding Court unanimously upheld the federal law
stating that Congress has broad power to regulate the channels of interstate commerce.
ii. In 2005 Court reaffirms that Congress may regulate economic activity by looking to
cumulative impact across nation to determine if the economic activity has a substantial effect
on interstate commerce.
Gonzales v. Raich (2005): Court holds that Congress may use its power to regulate commerce
among the states to prohibit possession of small amounts of home grown marijuana for
medicinal purposes. CA passed a law exempting medical marijuana from criminal prosecution.
(note: direct conflict b/w state and federal law) Federal agents arrested Ps under federal law
banning all possession. Holding Court upholds federal prohibition because home-grown
marijuana, looked at cumulatively, has a substantial effect on interstate commerce. Regulating
marijuana was also part of Congress broader regulatory scheme. Court reaffirms Wickard
Court will uphold federal regulation of economic activity if there is a rational basis for
finding substantial effects on interstate commerce in looking at the activity in the aggregate.

II.

THE SCOPE OF CONGRESS COMMERCE POWER TODAY:

a. The Modern Test for the Constitutionality of Commerce Clause Regulations:
i. Congress, under its commerce power, may regulate:
1. Channels of interstate commerce; and
a. i.e. highways, waterways, the internet.
2. Instrumentalities of interstate commerce (persons/things within) ; and
a. trucks, planes, the internet, phones.
3. Economic activity having a substantial effect on interstate commerce
a. Rational Basis Test Court will generally defer to Congress if they had a
rational basis for finding that the regulated activity had a substantial effect
on interstate commerce
i. The means chosen must also be reasonably related to the legitimate
end of regulating interstate commerce.
ii. For economic/commercial activities Congress may consider
substantial effects on interstate commerce based on
cumulative/aggregate impact across the nation (Court will give more
deference to Congress)
iii. For Non-economic/non-commercial activities Congress may NOT
look to cumulative/aggregate impact to determine substantial effect
on interstate commerce
1. Court requires a clear nexus btw statute and interstate
commerce
b. Court will narrowly construe Statutes to avoid unnecessarily reaching
constitutional questions on exercise of commerce power
ii. Tenth Amendment as a Limit on Congress Authority:

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1. Even if Congress acts within its commerce power Tenth Amendment bars Congress
from compelling state governments to implement federal laws
a. Congress may NOT directly commandeer state legislatures to enact or
administer a federal regulatory program
b. Congress may NOT commandeer state executive officials to implement a
federal mandate
c. Congress may prohibit harmful conduct by state governments, particularly if the
law also applies to private entities
i. However Congress may NOT impose affirmative duties on state
governments

III. THE TENTH AMENDMENT AS CONSTRAINT ON CONGRESS TODAY:

a.

1990s Today Tenth Amendment limits Congress authority in Four basic ways:
1. Tenth Amendment may be used as a limiting rule of construction
i. Court will apply a federal law that imposes a substantial burden on a State government ONLY if
Congress clearly indicated it wanted the law to apply
2. Tenth Amendment bars Congress from commandeering or compelling state legislatures to adopt
federal laws or federal regulations
ii. Congress may NOT conscript state legislatures to enact laws carrying out federal policies
Violates Tenth Amendment by interfering with state sovereignty
1. However Congress may set standards, attach funding, and give incentives for State
governments to comply with federal laws
New York v. United States (1992): Radioactive Waste Act created duty for States to safely
dispose of waste. Act provided monetary incentives for states to comply. However, it also
included a take title provision for any undisposed waste making States liable. Holding
Although Congress may regulate dispose of waste under commerce power, Take Title provision
is unconstitutional b/c it impermissibly commandeered State governments and forced
compliance with federal regulation. Tenth Amend limits scope of Congress power to compel
state governments to enact federal laws. Even a compelling federal interest is NOT enough
justify commandeering of states to enact federal policy.
3. Tenth Amendment also bars Congress from commandeering state executive officials to carry out
federal mandates
Printz v. United States (1997): Brady Act temporarily required state executive officials to
conduct background checks for handgun purchases. Holding The Act violates Tenth
Amendment by conscripting state executive officials to carry out federal policy. (required local
officials to carry out federal regulation) Also violates separation of powers b/c President is
vested with all executive powers, yet Congress side stepped president by compelling State
executives to carry out law instead.
4. The commandeering principle is narrow does NOT apply to prohibition on conduct
iii. 10th violated only if Congress imposes affirmative duty on States to carry out policy.
Reno v. Condon: Drivers Privacy Act prohibited states from disclosing personal info gathered
by DMV. Act applied to both state governments and private companies. Holding Court
upholds the law. Act did NOT violate Tenth Amd b/c it prohibited harmful conduct (disclosure
of info) rather than imposing an affirmative mandate on states. Further law equally applies to
private entities

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NY and PRINTZ CONCLUSION: Court declares an ANTI-COMMANDEERING Principle

HARD AND FAST RULE: federal govt. cant tell states HOW to address issues
Federal govt. CAN regulate state govts. directly (does not alter the demise of NLC) -- CONGRESS still has ability under
Commerce Clause and other grants of affirmative power to prevent states from doing things
Rule/Court Does say: Congress cant say to legislatures and executive branches of state govt, we passed a law and you
must enforce it by legislating, creating an executive agency, requiring local law enforcement to carry out our mandate
(cant say you work for me, go do this)
Congress DOES RETAIN the power to regulate states in intrusive and local ways w/out violating Commerce Clause

So what options does this leave the govt. with if they want to carry out their agenda? (How can they make it
Constitutional?)
1. Monetary incentives (such as in NY)
2. Federal govt. could pay for funding (via grants) for states that agree to implement program
Could condition $$$ they are already giving the states as being allocated to fund programs (not
money already allocated, but for future fundings)
Grant of annual funds based on certain stipulations
Bottom line provision of funding gets you around some problems but when funding giving is
an issue
Conditions to grants: must be clearly stated; relate to purpose of the program; and are NOT
unduly coercive (National Federation of Independent Buss: unduly coercive to threaten entire
states Medicaid budget, which they depended on significantly, for not implementing some new
law).
3. Need something conditional that relates to the issue at hand way for the states to opt out

I.

Taxing & Spending Power (commerce clause):

Article I 8: (Taxing & 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 defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout
the United States
National Fed. of Ind. Business:

II.

The individual mandate of the Act its a valid exercise of Congresss power to tax and
spend. It is reasonable to construe the individual mandate as increasing taxes on those
who have a certain income, but choose to go without health insurance. Thus, the
individual mandate is within Congresss power to tax. (not valid as under commerce
clause cuz Congress does not have power to regulate NON-ACTIVITY, cannot
compel people to buy into the system).
the Medicaid expansion exceeds Congresss authority under the Spending Clause: While
the federal government may condition receipt of money by the states on states agreement
with certain federal policies, they cannot compel the states to enact or administer a
federal regulatory program w/out a choice. Had no choice cuz they threatened to take
ALL their funding away.

Congress Powers under Post-Civil War Amendments: (need notes here).

2 views as to the scope of Congress's power under the post-civil war amendments, and 5 of 14th
Amendment:
o Narrow: accords congress only authority to prevent or provide remedies for violation of rights
recognized by the SC.

27

o
o
o

o
o

Broader view: same thing, but also gives congress the authority to interpret the 14th amendment to
expand the scope of rights or even to create new rights. Can create rights by statute where the court has
not found them, but they cannot dilute or diminish constitutional rights.
The argument over which is more proper is grounded in how 5 should be interpreted. Narrow view
says that congress is not "enforcing" if it is creating new rights; broader view believes congress is
enforcing by creating greater protections.
Argument over appropriate role of the court and congress: narrow view; solely the courts role to decide
the rights protected under the constitution and congress limited to enacting laws to prevent and remedy
violations. Broader view; see both congress and the court as having authority to recognize and protect
rights under the constitution.
Narrow view; views it as the opportunity to limit fed power and to protect the actions of the state.
Broader view; sees it as creating a needed national power to protect civil rights and civil liberties.
Katzenbach v. Morgan & MorganCongress: may pass legislation under its powers in 5 of the
Fourteenth Amendment provided that the legislation is (1) an enactment to enforce a provision of the
Equal Protection Clause; (2) plainly adapted to that end; and (3) consistent with the letter and spirit of
the Constitution. Under this analysis, the law in question is valid: Congress specifically stated that the
reason it enacted the provision was to prevent unequal treatment under the law of the Puerto Rican
community in New York. Additionally, the law was plainly adapted for that purpose.
Basically argues that Congress should have power to enact laws to further mitigate civil rights
City of Boerne v. Flores: Congress cannot create new rights, or expand the scope of rights: Congresss
powers under 5 of the Fourteenth Amendment are strictly remedial and not plenary (legislate to
remedy or protect rights already upheld by court). When upholding a constitutional right, Congress may
only enforce legislation that utilizes means proportional to achieving that legislative purpose (must be
narrowly tailored).

Non-delegation Doctrine: legislative branch can't delegate its powers to the executive, e.g., grant Pres.
power to labor wages. Executive branch can't legislateConst. says all legislative power must remain
in Congress.
o although, since 1937, such delegation has yet to be struck down (at least not those delegated to
executive agencies.
Line Item Veto (UNCONSTITUTIONAL)
o sign the whole bill, or veto the whole bill
Legislative veto (UNCONSTITUTIONAL)
o For Congress to act, there MUST ALWAYS be bicameralism:
must pass both houses
Presentment: must get signed by Pres.
Congress Cannot Delegate Executive Powers to itself.

CH. 7: SEPARATION OF POWERS: THE FEDERAL EXECUTIVE

POWER
INHERENT PRESIDENTIAL POWER/AUTHORITY
Separation of Powers generally --- as b/w the 3 branches of federal govt (not federalism) and examinations of sparse
legal provisions that regulate powers of president of US (Article 2)
Article 2 enforcer of law, defender, commander in chief, chief executive
No clear and crisp lines to distinguish b/w president and other branches of govt. this is a fuzzy area of the
law, not explicit rules

28

This section will examine the validity/willingness/appropriateness of judicial second guessing and questioning of the
authority of the Presidential Authority
I.

Scope of Inherent Presidential Power:

a. When may the President act without express constitutional or statutory authorization?
i. Article II The executive power shall be vested in a President of the United States of
America. Article II then enumerates specific powers of the president.
1. Hamilton Argued that the language of Article II reveals framers intention to create
inherent presidential powers.
2. Madison Argued president has NO inherent powers that are not expressly enumerated
in Article II.
b. Key Question Separation of Powers
i. What is the proper balance to checking Presidents power and allowing discretion?
ii. Formalist Approach Court likely looks solely at text and framers intent when
1. there is a clear tension with the text;
2. Congress is attempting to aggrandize its power over the president.
iii. Functionalist Approach Court is more likely guided by underlying values of separation of
powers and permit expansion of presidential power in:
1. Foreign policy or emergency situations (national security)

II.

Youngstown Sheet & Tube v. Sawyer (1952)

a. Inherent Power of President? Ability of president to act without express constitutional or statutory
authority. Can the president possess inherent lawmaking powers?
Youngstown: Steel workers planned nationwide strike. Truman orders secretary to take
possession (seizure) of the steel mills and keep them running. Truman fears strike could
endanger national defense and Korean War. Truman immediately reported to Congress and asks
for input. Congress took no action. Owners of mil sue to enjoin Presidents seizure. Holding
Court declares the seizure of the steel mills unconstitutional.
- There is NO express constitutional provision permitting the president to seize property. Only
Congress may seize property, not president.
- There is NO statute or act where Congress authorized president to seize property.
- This was NOT an emergency action in a theater of war.
Therefore, Trumans act was outside the scope any inherent executive authority
b. Different Approaches to Inherent Presidential Power in Youngstown:
Formalist (Categorical) Approach Justice Black (Majority Opinion)
1. Look to the literal text of the Constitution
a. Formal, literal, categorical, rule bound approach
b. If No express constitutional text No power to act
2. There is NO inherent presidential power
a. President may act only pursuant to express or clearly implied constitutional or
statutory authorization
Functionalist Approach Justice Jackson (Concurring Opinion)
1. Flexible view of constitution and executive power, open-ended balancing
a. Modern problems are complex need a sliding scale of powers based on the
circumstances of the situation
2. If Executive branch is not usurping the functions of Congress, there can be a
balancing of interests to determine if Presidents act was constitutional.
a. President may exercise powers not mentioned in the text of the Constitution so
long as he does not violate a statute or Constitution.
3. Jacksons Three Zones of Presidential Authority:

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a. Zone #1 When President acts with express or implied authorization from

Congress, executive authority is at its max
i. In this zone Presidents acts are presumptively valid
b. Zone #2 When President acts with Congress having neither given
permission nor denied authorization (Zone of Twilight)
i. President can only rely on his own powers, but there may be a middle
area where power is uncertain, implied or concurrent.
ii. In this zone No presumption that Presidents act is valid
1. Balancing of Interests:
a. Emergency Situation?
b. Has Congress acquiesced?
c. Zone #3 When President acts contrary to the express or implied will of
Congress, Presidents power is at its lowest ebb.
i. In this zone Presumption against validity of Presidents act
ii. Trumans seizure of mills falls in Zone 3 Thus, Trumans action was
unconstitutional and outside his inherent powers.
III.

SCOPE OF INHERENT POWER ISSUE OF EXECUTIVE PRIVILEGE

a. Presidential Immunities and Executive Privilege the ability of the President to keep secret
conversations with or memoranda from advisors.
i. The Constitution does NOT mention such authority, but Presidents have claimed it throughout
history arguing it is necessary because:
1. Presidents need candid advice
2. National Security demands secrecy
3. Diplomacy requires secrecy
United States v. Nixon: Special Prosecutor investigating Watergate wants Nixon to turn over tapes. Nixon
refuses claiming executive privilege.
Nixon argues this is a non-justiciable political question involving an intra-branch dispute because special
prosecutor is part of executive branch.
Nixon argues that he has absolute executive privilege and the Judiciary cannot compel a co-equal branch
of government to do anything. Impeachment is the only way to compel the President to do anything.
Holding Court finds this is a justiciable issue because of the context of a criminal prosecution. The
parties are adverse b/c prosecutor is investigating the President.
Executive Privilege is NOT absolute, but merely an implied power without express textual support. The
Court has the power to say what the law is and the legitimate needs of the judicial process will outweigh
Executive Privilege. Therefore, Nixon must turn over the tapes.

IV.

SCOPE OF EXECUTIVE PRIVILEGE AFTER NIXON:

a. Judiciary has sole power to determine scope of Executive Privilege .
i. It is the province and duty of the judicial department to say what the law is
1. President does NOT have power to define the scope of Executive Privilege.
b. Court recognizes Executive Privilege as an Inherent Presidential Power
i. Article II does not expressly grant executive privilege, the court implies from structure of
Constitution and Presidents duties
1. Executive Privilege needed for candid advice w/o fear of disclosure to public
c. Court holds Executive Privilege is NOT absolute

30

i. Executive Privilege can be invoked to protect military, diplomatic, or national security secrets.
(presumption in favor of privilege)
ii. However Executive Privilege must yield to countervailing interests/judicial review
1. In the context of a criminal proceeding Presumption against privilege
2. An absolute executive privilege would place the President above the law and interfere
with Judiciarys ability to perform its functions under rule of law
a. (In criminal trial courts must be able to compel evidence, etc)
3. Must be a balance b/w need for information v. need for secrecy
THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER
I.
Does Congress have the ability to enhance the powers of the President by conferring upon him authority not
contained in the Constitution? Underlying issue Separation of Powers
a. SEPARATION OF POWERS ISSUES:
i. Two approaches to Separation of powers
1. One view Separation of Powers issues are best resolved btw Congress and the
President. If the branches agree, Judiciary should only rarely interfere
2. Another view Separation of powers is Constitutionally mandated. Courts should
actively enforce separation of powers.
ii. Formalist vs. Functionalist Approach to Separation of Powers
1. Formalist Rigid focus on text of Constitution. Court should interfere and invalidate a
law to strictly enforce separation of powers even when two branches are in agreement.
2. Functionalist Emphasizing the need for change and flexibility. Court should only
invalidate laws that actually interfere the functions of the separate branches within
separation of powers
iii. Two Important Concepts:
1. Non-delegation doctrine: the principle that the Congress of the United States, being vested
with "all legislative powers" by Article I, Section 1 of the United States Constitution, cannot
delegate that power to other branches of government (e.g., the Executive Branch). However,
the Supreme Court has ruled that Congress does have latitude to delegate regulatory powers
to executive agencies as long as it provides an "intelligible principle" which governs the
agency's exercise of the delegated regulatory authority.
2. Bicameralism and Presentment Clause (Article I, Section 7, Clauses 2 and 3) of the United
States Constitution outlines federal legislative procedure (that is, how bills originating in
Congress become federal law) in the United States.

b. LINE ITEM VETO ACT (Presidents Power to Determine National Policy Delegation of the
Legislative Power to the Executive)
i. Supreme Court invalidated in the cancellation provisions of the Line-Item Veto as an
unconstitutional attempt by Congress to increase Presidential power.
1. Even though both Congress and President agreed on Line-Item Veto, the Court interferes
and invalidates it as a violation of Separation of Powers.
2. Congress can only change the process of passing laws through a Constitutional
Amendment Take away: Congress may not increase the Presidential powers, via
statute, beyond what is granted to him in the Constitution. Changes to the procedures for
enacting and vetoing laws must come from a Constitutional Amendment, not by legislative
action. Majority = formalistic Constitutional view Dissent = functional constitutional view
Clinton v. City of New York (1998): Line Item Veto Act allowed President to cancel provisions
of enacted laws. President could cancel certain expenditures and then send it back to Congress
who could overturn veto w/ majority vote.

31

Majority Holding cancellation provisions of Line Item Veto are unconstitutional. President is
changing a law adopted by Congress. The constitutional procedures for enacting laws in Article I
must be strictly followed. The final bill, that is altered by president by the line item veto,

is different than what Congress passed and outside of the regular veto process, the
president cant exercise veto option. Thus the Line Item Veto violates separation of
powers. Violation of text of constitution and the framework set forth (tradition is to veto
entire bill) (Majority uses Highly Formalist approach)

Dissent Complexity of budget has changed in modern times. We need a flexible standard for
veto-- Different way to achieve same result (Functionalist Approach.)

CONSTITUTIONAL PROBLEMS OF THE ADMINISTRATIVE STATE

I.

ADMINISTRATIVE AGENCIES
a. Huge growth of Administrative Agencies (1932-today)
i. No express Constitutional provision for administrative agencies. However, complex modern
problems gave rise to many regulations.
ii. Complex regulations are better handled by specialized agency (rather than Congress)
iii. Political dimension Expansive delegation of legislative power to Agencies allows Congress to
act, but avoid the political heat of specific regulations.
b. Administrative Agencies exercise all government powers: legislative, executive, judicial
i. Combination of all power into a single, unelected agency conflicts with:
1. separation of powers and
2. checks and balances.
ii. However Congress routinely delegates its power to executive agencies

II.

THE NON-DELEGATION DOCTRINE (and its Demise)

a. Non-Delegation Doctrine Theoretically prevents Congress from delegating its lawmaking power to an
executive agency without guidelines or intelligible standards.
i. However court gives wide deference to Congress and upholds even very vague guidelines.
Court has not invalidated delegation of power in 70 years.
b. 1935 Doctrine was a false start attempt to limit executive power during the New Deal.
c. After 1935 Court has abandoned use of the non-delegation doctrine to limit Agencies

III.

THE LEGISLATIVE VETO (and its Demise) Congressional Interference with Presidential Prerogative
a. In 1930s Congress was looking for a way to check the power of growing administrative agencies.
Congress could enact a law overturning an agencys rule, but this would require getting a bill passed by
both houses and obtaining presidential signature.
b. The Legislative Veto Created by Congress as a check on administrative agencies. Congress
included in statutes provisions authorizing one-House or a committee to overturn an agencys decision by
doing something less than fully enacting a new law.
c. In Chadha (1983) Court declared the Legislative Veto Unconstitutional
i. Modern Rule Legislative vetoes are unconstitutional. If Congress wants to overturn an
executive agencys action, there must be:
1. Bicameralism (passage by both houses of Congress); and
2. Presentment (giving the bill to President to sign or veto)
Anything less is an unconstitutional legislative veto

32

INS v. Chadha (1983): Chadha was an immigrant was up for deportation. Administrative Judge
declares Chadhas deportation could be suspended. House of Reps passes legislative veto
overturning agencys decision to suspend Chadhas deportation. Chadha (P) challenges
constitutionality of legislative veto. Holding The legislative veto is unconstitutional. Article
I says Congress may ONLY legislate if there is: Bicameralism (both houses vote) and
Presentment (President signs). Legislative Veto is legislative in effect by affecting legal rights
but does NOT comport with specific textual provisions in Article I. Court rejects argument that
legislative veto is necessary for efficient check on agencies. Follow text! (Formalistic
approach)
Dissent Legislative veto is needed in the modern, complex world and is consistent with the
basic functions of lawmaking. Constitution was meant to be flexible and Congress needs some
way to check Agencies. Makes sense for Congress to retain some power and ability to
exercise legislative veto in certain situations (Functionalist Approach)

Note: Process Altering Decision -- This case struck down more statutes than any other case
struck down immeasurable amount of prior legislation demands nothing less than
bicameralism and presentment for any legislation (to overturn an executive action)
d. CONTRASTING APPROACH

Mistretta v. United States, Mistretta argued that the Sentencing Guidelines promulgated
by the United States Sentencing Commission he was facing were unconstitutional due to
a gross distribution of authority by Congress resulting in a violation of the separation of
powers. The Commission was created under the Sentencing Reform Act of 1984 (Act),
18 U.S.C.S. 3551 et seq. (1982 ed., Supp. IV) and 28 U.S.C.S. 991-998 (1982 ed.,
Supp. IV). The trial court rejected petitioner's contention that the Act was
unconstitutional. On appeal, petitioner's first contention was that Congress had granted
the Commission excessive legislative discretion. Holding The Supreme Court did not
agree. The Court found that Congress had provided guidelines under which the
Commission was to operate and that it had not delegated excessive legislative power to
another branch of government. The Court also found that Congress had not upset the
constitutionally mandated balance of powers among the branches of government
(one branch not crushing/ encroaching too much on the other). The Court concluded
that the Act was constitutional and therefore affirmed the trial court's decision.
(Functionalist Approach)

IV.

OTHER CHECKS ON ADMINISTRATIVE AGENCYS POWERS:

a. Key Question With demise of non-delegation doctrine and legislative veto, are there sufficient checks
on administrative agencies?
i. Congress can overturn Agencys action by enacting statute
1. Congress must go through slow process of bicameralism and presentment
ii. Congress can control purse strings and withdraw funding
iii. Congress can use oversight committees
iv. Senate approval of Presidents appointees to Agencies

V.

NO DELEGATION OF EXECUTIVE POWER TO CONGRESS

a. Congress has broad authority to delegate legislative power to administrative agencies
i. Court has taken functionalist approach to Congress relinquishing its own legislative authority
and assigning it to another branch
b. However Congress may NOT delegate executive powers to itself or its agents.

33

i. Court takes a formalist approach to Congress attempting to aggrandize its own powers and
assume power to execute its own laws.
1. This is a clearer violation of separation of powers
a. Article II specifically assigns the executive power to the President
VI.

THE APPOINTMENT POWER Congressional Interference with Presidential Prerogative

a. Article II 2 President shall nominate, and by and with the advice and consent of the Senate, shall
appoint Ambassadors, Judges of the Supreme Court, and all other Officers of the United Statesbut the
Congress may by law vest the appointment of such inferior officers as they think proper in the
President alone, to the Courts of Law, or in the Heads of Departments.
i. *Subject to approval by Senate*
ii. May not make recess appointments during intra-session recesses of less than 10 days.
1. NLRB v. Noel Canning
b. Principal vs. Inferior Officers
i. Principal Officers may only be appointed by the President, with advice and consent of the
Senate
ii. Inferior Officers Congress may vest appointment of inferior officers in Pres., OR other
departments like the Courts or in Executive Departments.
1. However Congress may NOT vest Courts with appointment power if it would be incongruous with the functions of judiciary
c. Appointment of Independent Counsel - Appointment, Discharge, and Supervision of Officers of the
United States
i. Independent prosecutors are considered inferior officers because they have limited authority
and are subject to removal by executive officials.
ii. Thus Congress may vest Federal Courts with power to appoint independent counsel without
violating separation of powers.
1. Represents a functionalist approach Independent counsel (special prosecutor) is
needed to investigate abuses by President. A flexible interpretation of Article II permits
appointment of independent prosecutor by the separate judicial branch.
Morrison v. Olson (1988): Ethics in Gov Act allowed for appointment of independent counsel to
investigate abuses. If attorney general finds investigation into wrongdoing is needed, panel of
Federal judges could appoint independent counsel. Holding Court upholds constitutionality of
federal judges appointing independent counsel b/c they are inferior officers with limited
tenure/power and jurisdiction and not appointed by the AG. Can be Appointment by judges was
not incongruous b/c judiciary given no authority to supervise prosecutions. Judiciary is NOT
trying to aggrandize its own power. Also, there is a good justification for deviating from text
of constitution --To effectively investigate president, counsel must be appointed by a separate
branch. (Protection that independent counsel could only be removed for good cause)
(Functionalist approach).
Scalia Dissent The
power to prosecute is an executive activity and it usurps the presidential power for Congress to
vest this authority in the independent counsel outside of Presidents control. This is an
unconstitutional limit on presidents power. (Formalist approach)

Majority says that there is great overlap of branch authority (executive, legislative, and
judicial) -- but we need flexibility here so its okay
BUT, what about Presidents authority to be the sole person to prosecute?
o This limits authority of President to determine whether to have prosecutor, whether to fire
prosecutor (thus limits power of AG)

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HELD: some limitations on power to remove is okay (b/c not exercising core executive
authority)

Take away president has power to remove any one in executive branch
But Congress can limit that power only where division from the president is desirable
There is a shift in the reasoning here b/c there is an exercise of core executive authority
here (enforcement of law) -- the court has to alter its previous approaches slightly -- b/c
has taken core executive power of president and limited it in some way
So the Court doesnt restrict its examination to just blanket authority but goes further
by asking question of whether there is a usurpation of power of the core aspects of
sovereignty of the President?

This may be the far reach of functional approach to separation of powers

It is an extreme version of this is not expressly constitutional but it serves a purpose
This is the outlier of cases in terms of applying Justice Jacksons approach
FUNCTIONAL approach
Extreme version of notion of saying this isnt precisely constitutional, but makes sense so
we should do it theres a strong purpose to be served by Independent Counsel, so its
okay

d. Limitation on Congress Appointment Power

i. Congress may NOT give the appointment power to itself or its officers.
1. Article II states that Congress may vest the appointment power for inferior officers in the
president, heads of departments, or federal courts. Congress is NOT on this list.
(Buckley v. Valeo)
2. Thus Congress can NOT aggrandize its own powers without violating separation of
powers.
VII.

THE REMOVAL POWER

a. Constitution is silent on Presidents authority to remove executive branch officials. Court has used a
functionalist approach to presidents power to remove executive officials.
b. Basic Principle:
i. The president has the power to remove executive officials; But Congress may limit the
removal power (by federal statute) if it is an office where independence from the President would
be desirable. However, Congress cannot completely prohibit presidents removal power entirely
and Congress cannot give the removal power to itself (other than by exercising its impeachment
power).
ii. Approaching removal issues involves a two pronged analysis:
1. First Is the office one where independence from the president is desirable?
a. If so, Congress may limit the removal power.
2. Second Are Congress limits on Presidents removal power constitutional?
a. Congress cannot completely prohibit presidential removal, but it can limit
removal to where there is good cause.
b. Congress cannot give itself the sole power to remove an executive official.
(except by exercising impeachment)
c. The basic principle emerged from the following cases:
i. The President has exclusive power to remove purely executive officials or cabinet members
without any interference from Congress (Myers)

35

ii. However Congress may limit by statute the presidents removal power over commissioners of
non-partisan independent regulatory agencies like FTC which are not under direct executive
control. (Humphreys)
iii. Further Even without a statutory limit on removal, President is restricted from removing an
administrative officer from a commission where independence from the president is desirable
(Weirner).
iv. Congress may NOT give itself the power to remove executive officials except through the
impeachment process. Congress may NOT aggrandize its own powers by giving executive
powers to itself or to its agents. (Bowsher).
v. Congress may limit Presidents power to remove an independent counsel appointed to investigate
and prosecute alleged wrongdoing in the executive branch. Counsel may only be removed for
good cause. (Morrison)
vi. Distinctions btw quasi-legsilative or quasi-judicial functions not dispositive. The real
question is whether removal restrictions are of such a nature that they impede the presidents
ability to perform his constitutional duty. (Morrison).

FOREIGN POLICY AND SEPARATION OF POWERS:

I.

FOREIGN POLICY AND THE CONSTITUTION

a. The Constitution says very little about foreign policy decision making:
i. Article I Congress has power over foreign commerce, power to declare war, to raise and
support army, and punish felonies on the High Seas
ii. Article II President is Commander in Chief, power to make Treaties with advice and consent
of the Senate (two thirds approval).
b. Presidents Foreign Policy Decisions are Often a Political Question
i. Constitutional challenges to the Presidents conduct of foreign policy are often dismissed as
posing non-justiciable Political Questions
ii. The effect is that the presidents power is upheld thus the Presidents power over foreign
policy is often unchecked by the court.
c. Functionalist approach to Presidents power over Foreign Policy
i. In complex world, president needs flexibility to respond quickly to foreign conflicts
1. However No text in constitution about executive agreements or other inherent
executive powers over foreign affairs. (Formalists).
ii. Court is more likely to use a Functionalist approach to President expanding his inherent powers
when:
1. President is expanding his over foreign policy; and
2. It is an emergency situation; and
3. Constitutions text is unclear (no express prohibition); and
4. Congress has acquiesced (explicitly or implicitly)
a. Jacksons Twilight Zone of presidential power.

II.

INHERENT PRESIDENTIAL POWER OVER FOREIGN AFFAIRS

a. Are Foreign Policy and Domestic Affairs Different?
i. Basic Question Whether the president inherently has greater powers in the area of foreign
policy compared with domestic affairs.

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ii. In Curtis-Wright Court held: Yes, the president has more inherent power over foreign affairs
than over domestic matters.
1. There is a fundamental difference between domestic and foreign policy
a. The doctrine of limited, enumerated powers of the Federal government applies
only to domestic affairs.
i. Prior to Constitution the States had authority over domestic affairs, but
NOT foreign affairs.
b. The Federal government has plenary power over foreign affairs.
2. President has inherently more power over Foreign Affairs
a. President should trump Congress in foreign policy
b. President is principal representative of USA to foreign countries
United States v. Curtis-Wright (1936): Congress passed resolution authorizing President
outlaw sale of weapons to warring nations in S. America. Ps argued that Congress had
unconstitutionally delegated lawmaking authority to the president. Holding Court upholds
Congress granting of lawmaking power to President. Because it involves Foreign Affairs,
Congress delegation of lawmaking power to President is constitutional. Bold grant of power to
President in foreign affairs. (Highly Functionalist Approach).
ZIVOTOFSKY v. KERRY
(in regards to a law that required Jerusalem be indicated on birth certificates instead of Isreal)
held that, although the Constitution does not explicitly address the issue of recognition of foreign
nations, the Reception Clause in Article II of the Constitutionwhich states that the President
will receive foreign ambassadorsgrants the President the power to recognize foreign states. The
fact that Article II also vests the President with the power to make treaties and appoint
ambassadors gives the President further control over recognition decisions. Although Congress
has a role to play in other aspects of foreign policy, often by granting the Presidents formal
recognition practical effect, Congress has no such power to initiate international diplomacy
without involving the President. Because the question of whether the American government
recognizes a foreign nation must have only one answer, the Presidents power is assumed to be
exclusive, and therefore Congress cannot act in a manner that contradicts Executive branch policy
regarding recognition

III.

TAKE AWAY: The very delicate, plenary and exclusive power of the President as the sole organ of
the federal government in the field of international relations is a power which does not require as a
basis for its exercise an act of Congress, but which, of course, like every other governmental power,
must be exercised in subordination to the applicable provisions of the United States Constitution. If,
in the maintenance of international relations, embarrassment - perhaps serious embarrassment - is to
be avoided and success for national aims achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the international field must often accord to the
President a degree of discretion and freedom from statutory restriction which would not be admissible
were domestic affairs alone involved.

TREATIES AND EXECUTIVE AGREEMENTS

a. Treaties vs. Executive Agreements:
i. Treaty Foreign agreement negotiated by president and ONLY affective when
ratified by Senate.
1. Treaties have same force as federal law and States must comply. State laws that conflict
with treaty are invalid. (Art VI)
2. If a treaty and a federal law conflict, the one adopted last in time prevails
3. A treaty is invalid if it violates the Constitution.

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4. Presidential interference with state judicial/judiciary authority

Unconstitutional
ii. Executive Agreement Foreign agreement made and signed by President alone (no need for
senate approval).
1. Anything that can be done by treaty can be done by EA
a. Court has never invalided Executive agreement for lack of Senate approval
2. Constitution is silent, but court has affirmed that Executive agreements are constitutional
and have the exact same force as Treaties
3. Executive agreements, like treaties, prevail over State law and policy, BUT NOT over
federal laws or the Constitution.
b. Example Upholding Executive Agreement (implied power over foreign affairs)
Dames & Moore v. Regan (1981): President Carter negotiated agreement w/ Iran to unfreeze
Iranian assets in the USA in exchange for hostages. Agreement provided ended all pending suits
against Iran in US courts. P challenged executive agreement as unconstitutional b/c president
acted w/o Senate approval. Holding Court upholds executive agreement. Presidential action
was necessary given foreign policy emergency. Further, Congress has implicitly acquiesced by
passing Settlement Claims Act. Thus President action was in the twilight zone and is
supported by a strong presumption of constitutional validity. (Highly Functionalist Approach).
c. Under the Twilight Zone analysis, what indicates that this act by President is Constitutional?
Congressional acceptance of similar activities in past (acquiescence)
Legislative history/No indications that Congress would disallow no pattern of rejection
Emergency situation for Iranian hostages and the president has the exclusive/broad grant of
authority to act in the international/foreign relations arena --- this is when its MOST
important for the President to speak for the US (one, united voice of US)
o Thus, this is the most unlikely situation for the court to second guess the decision of the
president here b/c of the emergency situation and the need to act quickly and with a single
voice

IV.

WAR POWERS
a. Central Tension Constitution is an invitation for a struggle between President and Congress
over control of the war power. PREZ. DOES have power to send troops to foreign country.
i. Article I Gives Congress the power to declare war and raise army
ii. Article II Makes President commander-in-chief (inherent powers to defend US?)
b. When can President send troops without Congressional Approval?
i. Absence of Case Law Concerning War Powers
1. Court has rarely spoken on constitutionality of president sending troops without
formal declaration of war. (Zone 2 of Jacksons approach)
2. Prize Cases: Court ruled that Lincoln had the power to impose a blockade of the
south without congressional declaration of war. Court rules that President DID
have authority based on power from Constitution: 1) As commander in chief
and 2) to take care that laws are faithfully executed
3. Strongest declaration that president of US has inherent power to defend nation
against attack by foreign adversaries and internal insurrection --- even apart from
permission of Congress (its an obligation and duty) --- to protect
land/persons/territories of US (nothing abroad)
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4. If president doesnt have authority to enter into treaties with foreign nations or to
defend nation then who does?
o President has necessity to protect US property and persons
o Comes from language of commander in chief and STRUCTURE of the
government
This applies in cases of Prize and Curtiss-Wright
ii. Challenges Likely to be Dismissed as Political Questions
1. Court has often generally stated that challenges to the Presidents conduct of
foreign policy pose non-justiciable political questions and are dismissed.
2. Conduct of foreign policy is textually committed by the Constitution to the
Executive and Legislative Departments (the political branches)
c. What Constitutes a Declaration of War?
i. Uncertainty about what constitutes a declaration of war under Article I
1. Is formal declaration required? (Pearl Harbor)
2. Is Gulf of Tonkin Resolution sufficient? (Vietnam - Mora v McNamara)
3. Is repeated congressional approval of funding an implicit declaration?
ii. Mora v McNamara Case was on appeal : Asking if Vietnam War was unconstitutional?
Legal question can you go to war without the Congress declaring it?
Was there Standing to pursue this case? -- YES, Mora was a specific litigant with
an injury in fact
Was this case a political question? -- IS this a job for the courts or someone else?
o Reasonable claims that challenges to Vietnam war involved political, not
justiciable questions
o Court would have authority to interpret Constitution and determine if war
declaration needed
o What is the ripeness issue?
o This is dispute b/w Congress and President does Congress have to declare
war or can president do it on his own (like in Goldwater) -- court says that
they wont step up and make a ruling on dispute if Congress hasnt explicitly
said the war is illegal and they havent opposed it, but instead have done
things that support the war (passed legislation supporting funding)
d. War Powers Resolution
i. Uncertainty as to whether it is constitutional for congress to put limits on Presidents power to
use troops in foreign countries. Presidents have not always obeyed it.
ii. War Powers Resolution states that president may use troops when there is:
1. Congressional Declaration of War
2. Specific statutory authorization; or
3. National emergency created by attack on USA
iii. Reporting Requirements and Time Limits
1. President must report to Congress within 48 hours
2. President shall withdraw troops after 60 days unless Congress has declared war or
authorized an extension, or is unable to meet as result of attack.

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PRESIDENTIAL POWER AND THE WAR ON TERRORISM

I.

DETENTION of ENEMY COMBATANTS

2 Questions for Consideration:
1) How broad is affirmative (is it w/in grant of power) authority given the president of US commerce
clause and Article III
2) Even if this is within presidents authority/affirmative grant of power, does it violate another
provision of Constitution?
a. Central Question Can the President invoke inherent war powers to detain enemy combatants
indefinitely without affording prisoners any due process safeguards?
i. After 9/11 Congress passed broad resolution authorizing President to use all necessary force
against nations or persons he determines aided Terrorist Attacks.
1. Congress did NOT explicitly authorize detaining enemy combatants
b. Hamdi US Citizens seized in a foreign country and detained as enemy combatants must be
accorded Due Process and a meaningful factual hearing.
i. Detained US Citizen is entitled to Habeas Corpus to challenge detention
1. Court is unclear about exactly how much process prisoner is entitled to:
a. Does NOT have to be full blown hearing
b. Hearsay may be admissible
c. Presumptions might be in favor of government
Hamdi v. Rumsfed (2004) examines and redefines Due Process/Habeas Corpus in wartime:
Hamdi is a US citizen who was seized on battlefield in Afghanistan and held as an enemy
combatant. Government argues that enemy combatants are entitled to NO due process.
Plurality Holding OConnor says: even though detention is authorized, its not permissible as
a deprivation of rights unconstitutional (focuses on Liberty removal). Congress broad 9/11
resolution was sufficient to authorize detaining enemy combatants. Court rejects governments
argument and holds that enemy combatants are entitled to at least some due process. At
minimum, Hamdi is entitled to notice of the charges, right to a hearing, and right to an attorney.
Souter Concur/Dissent President violates Non-Detention Act to hold American citizen as an
enemy combatant. (Zone 2 Congress hasnt explicitly forbidden this) but Hamdi needs at
least some process, but more than OConnor gives Scalia Dissent Takes formalist approach to
text. Citizen in rebellion must be tried for Treason. President cant hold Hamdi unless suspends
Habeus Corpus (more process due)
ii. Matthews v. Eldridge Test How much Due Process is needed?
OConnor rejects the idea of No process or any evidence standard b/c citizens rights are
too important to be overlooked and deference to legislative authority doesnt outweigh the
other interests here --- Very broad, flexible (non-traditional) notion of due process that allows
for hearing in front of a neutral decision maker, independent tribunal
Says this falls into Zone 1 b/c Congress has given authority, but doesnt mean President can
detain Hamdi forever
Amount of Due Process is weighed against the balance of:
1. Private interests at stake
a. Detainees liberty
2. Government interests
a. Burden on government in providing greater process
3. Risk of erroneous deprivation
a. Weigh risks to private interest if process is reduced with probable value of
additional process safeguards. .

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c. Separation of Powers --- clear that Congress and president are on the same side; Congress has
passed statutes to limit judicial process and president has attempted to use them, but Court says
this is invalid
This goes against Jacksons notion that when President and Congress acting together that is the
strongest grant of authority
Court rules this way because of their prior decisions such as Hamdi -- Boumd case was 4th time they
had ruled unconstitutional -- even though military exigency -- MUST have some HC rights
This case is strongest refutation of executive authority when exercised in concert with Congress at
least in wartime
BUT not a classic due process case
Boumd does not apply to prisoners held in Afghanistan, theater of war areas --- it is limited to
Gitmo
Even in wartime, when great deference is typically afforded to Presidential discretion, there are Due
Process and Habeas Corpus rights that citizens in or on US soil are owed absent a suspension of the
writ of Habeas Corpus by Congress (or a charge of treason where criminal proceedings are due.) The
President has the power to detain those labeled enemy combatants or those who are perceived as a
threat to US, but they are owed procedural rights (HC of some fashion). These two cases indicate that
the right to HC exists for citizens held on US soil as well as non-citizens held in American territory
abroad (ie Cuba)

TAKE AWAY: Together these two cases dont dramatically change the affirmative grant of authority of the
president
Change what is demanded by Due Process of Law
Change view of Constitutional demand of HC
But still operating in Jacksons framework to determine if President had power to engage
in activities in the first place

CHECKS ON THE PRESIDENT

I.

How can the President be held accountable?

a. Informal checks on the President:
i. Pressure of Public Opinion
ii. Political Process (election)
iii. Desire to be remembered in history
iv. Informal checks by congress Budget
b. Two Formal Checks on the President
i. Civil and Criminal suits against the President
ii. Impeachment and Removal from Office

II.

SUING AND PROSECUTING THE PRESIDENT:

a. Civil Suits against the President
i. Nixon v. Fitzgerald President is absolutely immune from liability for official acts while in
office
1. President can NOT be sued for money damages
a. However President can be enjoined (Nixon; Youngstown Steel)
2. Rationale Immunity is implied from structure of the Constitution and pragmatic
public policy.
a. Separation of Powers Doctrine (Executive is a co-equal branch)
b. Risk of damaging to prestige of unique office
c. Distracted of suits would risk effective functioning of government

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ii. Clinton v. Jones President does NOT have immunity for unofficial acts or for actions taken
before he assumed office.
1. Separation of powers doctrine does NOT require federal courts to defer suits until
president leaves office on private actions for unofficial conduct
a. Court (wrongly) holds that there is no risk of distraction
b. Criminal Suits against the President
i. No case has ever addressed whether a sitting President can be criminally prosecuted
1. Strong argument that impeachment and removal should be the sole remedy against the
president. (After removal criminal trial could proceed).
III.

IMPEACHMENT:
a. Article I President shall be removed from office on Impeachment for, and conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors
i. What constitutes high crimes and misdemeanors?
1. Court held Challenges to Impeachment process are political questions
a. Thus Congress gets to decide what constitutes high crimes and
misdemeanors and court will NOT review their decision
i. Impeachment is a very political process.

CHAPTER (Who the Fuck Knows): Limits on State Regulatory & Taxing Power
PREEMPTION OF STATE & LOCAL LAWS:
The authority of State Law may be limited by the existence of a national government and of other states.
o 2 situations:
1. Congress has lawfully used its congressional power to pass law, does that law pre-empt the
state/local law?
Supremacy Clause (Article VI 2): Constitution and the laws of the US are the supreme
law of the land, so yesh.
2. Congress hasn't acted, or decided federal does not pre-empt state/local law. Than NO. BUT, even
so State/local law can be challenged under 2 principles:
The Dormant Commerce Clause (the negative commerce clause): State/local laws are
unconstitutional if they place undue burden on interstate commerce. Insinuated by the
fact that Congress is granted the power to regulate commerce among the states.
The Privileges and Immunities Clause of Article IV, 2: limits the ability of states to
discriminate against out of staters in regards to constitutional rights or economic
activities. "The citizens of each state shall be entitled to all privileges and immunities of
citizens of the several states."
The hardest question is deciding whether a state/local statute is preempted by a federal statute or regulation.
There is no tell-all formula for doing so.
Traditionally the court has held such in 2 situations:
1. Federal law expressly preempts state/local law
Express Preemption: When Congress has the authority to legislate, they can make federal law
exclusive in the field, by expressly excluding state/local regulation in the field, which expressly
allows it to preventatively preempt state/local regulations
Congress' command is explicitly stated in the statute's language.

42

2. Preemption is implied by a clear congressional intent to preempt state/local law.

Congress' command is implicitly inferred from the statute's structure and purpose.
Field Preemption: the scheme of fed regulation is so pervasive as to make reasonable the
inference that Congress left no room for the States to supplement it (too much slack)
Conflict Preemption: (mutually exclusive) compliance with both state and fed
regulations is a physical impossibility, or where state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.
Unless Congress expressly prohibits it, States can set stricter standards (for stuff
like environmental regulations).
State law impedes the achievement of federal objective (even if they are not mutually
exclusive or express preemption)
The lines separating these distinctions are rarely clear though, so the argument usually falls on general legislative
intent.
o Little indication of intent sometimes, so left to look at:
Fragments of statutory language
Random statement in leg. History
The degree of detail in the fed. Regulation
o Arizona v. United States (2012): A state law that addresses immigration and alien registration is
preempted where Congress has completely occupied the entire field. HELD: Several provisions of the AZ
law were struck down for various reasons, including sections that obstructed federal law, circumvented
federal law. Immigration policy can affect federal and international trade, tourism, diplomatic relations,
and other vital interests of the United States. Congress possesses vast authority to enact laws and govern
over immigration issues and the regulation of aliens.

AFTER: trying to find preemption, and if can't then can look at whether its limited under the Dormant Commerce
Clause or Privilege & Immunities Clause: (Scalia and minority believes the determination should stop after the
initial preemption determination, that).
The Dormant Commerce Clause (the negative commerce clause): Not in constitution. Inferred from
commerce clause/commerce powers given to congress. State/local laws are unconstitutional if they place
undue burden on interstate commerce. Insinuated by the fact that Congress is granted the power to
regulate commerce among the states in Article I, 8.
function: Limits state/local govts regulations (As opposed to authorizing congressional actions
via its right to regulate interstate commerce).
On Exam: ask; is it Congress trying to do something, or is it a State doing something that
interferes (if the later, then apply Dormant Commerce Clause).
The Privileges & Immunities Clause of Article IV, 2: "The citizens of each state shall be entitled to
all privileges and immunities of citizens of the several states." limits the ability of states to discriminate
against out of staters in regards to constitutional rights or economic activities. Limited to citizens
(individuals). So corporations nor Aliens cannot sue.
On Exam: if its Corp. challenging out of stater discriminatory law, then ONLY use
DCC, but if an individual, have to consider both DCC and P&I clause.
Protection by the govt; the enjoyment of life and liberty; right to acquire and possess property of
every kind; right to pursue and maintain happiness and safety; subject nevertheless to such
restraints as the govt may justly prescribe for the general good of the whole. Sufficient to the
promotion of interest of interstate harmony
Dormant Commerce Clause v. P&I clause:
o
Dormant can also allow suit for out-of-state discrimination suit, but doesn't require a case of such like
P&I does.
o
Corporations and Aliens can sue under Dormant
o
Dormant: if congress has approved of the state law, then they do not violate. No longer dormant.

43

Approval does not excuse a law that violates P&I.

o
Dormant: has a market participant exception that does not apply to P&I

Determination:
o
FIRST: Does it discriminate against out of staters? treat them alike?
o Must affect fundamental right of citizenship, OR ability to earn livelihood.
if NO, then P&I does NOT apply.
if YES then,
Was there sufficient justification?
Does the discrimination bear a substantial relationship to the state's objective?
Court also considers availability of less restrictive alternatives.
o
SECOND: Does it burden economic activity/interest? (interstate harmony/commerce)
If the burden to Int. Commerce outweighs the benefit of the law, then YES, Dormant Commerce
Clause applies.
Balancing determination
Exceptions:
If its NECESSARY to achieve a very important Govt. purpose, then it doesn't
apply
SCOTUS implies strict scrutiny (compelling purpose), but has not
explicitly set the standard. Simply says it must be necessary.
If Congress approves law, valid even if it would otherwise violate DCC.
Market Participant Exception:
state/local govt. may favor own citizens when receiving benefits from
govt. programs or when dealing with govt. organizations. (e.g. public
universities, govt. owned businesses)
Facially Neutral Laws:

Reciprocity Requirements:
Court has held unconstitutional, state laws that limit out-of-stater's access to markets and equal access to benefits to
actors/states that offer reciprocal benefits or laws.

Facially neutral laws can be discriminatory if they have the purpose or the effect of discriminating out-of-staters

P&I Clause most obviously seeks to prevent discrimination against people who need access to markets and
resources
1. Can be facially discriminatory. Will be scrutinized most
2. Or can be neutral of its face, but have a discriminatory impact or purpose. Will be
scrutinized more
3. Or it is generally neutral and doesn't have a discriminatory purpose, but their may be a
justification. Must do a balancing act to determined whether the benefits are worth the
discrimination.
a. But it also considers whether it's an outlier; do other states do this.
b. Also considers the burden placed on the parties and/or on interstate commerce.
c. Dissent argues that its too hard to balance separate things that are so different.
Hunt, Governor of NC v. Washington State Apple Advertising Comm. (1977): A facially neutral statute still
violates the Commerce Clause if it discriminates against interstate commerce in practice. HELD: it has a practical
effect of discriminating against Washington growers; the new labeling system that NC growers already use,
requiring Washington growers to spend money to change their labels to comply, strips away the competitive
advantage. Undesirable since it jeopardizes the quality of apples. The statute unconstitutionally burdens interstate
commerce because the statute is discriminatory in practical effect and would reduce the quality of apples.
Consolidated Freightways v. Raymond (1981): Iowa law restricting use of extra long trucks on interstate.
HELD: the regulations significantly impair the federal interest in efficient and safe interstate transportation. The
state law cannot be harmonized with the Commerce Clause. From the evidence presented in the district court,
Iowas law added approximately $12.6 million each year to the cost of trucking companies.

44

 SC of NH v. Kathryn A. Piper (1985): 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 states objective. HELD: The purpose of the Privileges and Immunities
Clause is to create a national economic union where citizens of state A have the same rights to do business in state
B as citizens of state B. The practice of law should be treated just like any business among the several states, as
the practice of law is a privilege and is necessary for the provisions of justice.

CHAPTER 8: CONSTITUTIONS PROTECTION OF CIVIL RIGHTS

(The Bill of Rights, the Civil War Amendments, and their Inter-Relationship)
TEXTUAL PROVISIONS PROTECTING INDIVIDUAL RIGHTS (Apart from Bill of Rights)
I.

The main text of the Constitution contains relatively few protections of individual rights
a. Framers thought that the Federal governments limited powers rendered detailing of rights unnecessary.
Further, some may have feared that a delineation of rights was dangerous because the list would
inevitably be incomplete.
i. Writ of Habeas Corpus shall not be suspended, unless in cases of Rebellion or Invasion, the
public Safety require it. (Article 1, section 9)
ii. Prohibition on Bills of Attainder
1. Bill of Attainder a law that directs the punishment of a particular person. In essence, a
trial by legislature that negates all due process protections.
iii. Prohibition against Ex Post Facto Laws
1. Ex Post Facto Laws one that criminally punishes conduct that was lawful when it
was done.

APPLICATION OF THE BILL OF RIGHTS TO THE STATES:

Bill of Rights:
Amendment 1
Freedom of religion, 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.
Amendment 2
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Amendment 3
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by
law.
Amendment 4
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, but upon probable cause.
Amendment 5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury; nor shall any
person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just
compensation.
Amendment 6
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the
crime shall have been committed, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Amendment 7
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Amendment 8
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment 9
The enumeration in the Constitution, of certain rights, shall not be construed to deny others retained by the people.
Amendment 10

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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.

I.

REJECTION OF APPLICATION BEFORE THE CIVIL WAR

a. Early in US History The Court ruled that the protection of individual liberties in the Bill of Rights
applied only to the Federal Government, and not to state and local governments
Barron v. Baltimore (1833): P sued the city for taking his property w/o just compensation in
alleged violation of the 5th Amendment. Holding Bill of Rights apply solely to federal
government to limit its worrisome power and not to the states. Each state has its own constitution
which protected citizens liberties.

II.

FALSE START PRIVILEGES AND IMMUNITIES CLAUSE OF 14th AMENDMENT

a. The Civil War and Changes in Political Philosophy
i. Before Civil War Philosophy was that States Rights protected individual liberty. State
governments were protecting citizens from the Federal Government.
ii. After Civil War Philosophy totally changes. Federal government is seen as protecting
individual liberties from intrusion by State governments.
b. 14th Amendments Privileges and Immunities Clause
i. Article IV of Constitution Includes a Privileges and Immunities Clause
1. Very broad rights that flow from US citizenship.
2. Prevents a State from denying citizens of other states the privileges and immunities it
accords its own citizens.
ii. Fourteenth Amendment declares No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States.
1. Court has interpreted this clause very narrowly to refer to rights flowing from State
citizenship (right to travel; use ports) that existed before its adoption.
2. Slaughter-House Cases essentially rendered this clause a nullity
a. Rejected the privileges and immunities clause as a means of applying the Bill
of Rights to state governments. (effectively wrote the P&I clause out of the
Constitution still good law today)
i. Concerned about Federalism and States Rights
b. Interpreted due process clause and equal protection clause as applying only
to protect black freedmen.
The Slaughter-House Cases (1873): Louisiana gave a monopoly to Slaughter-House Company.
Law required company to allow any person to slaughter animals there for a fixed fee. Butchers
sued challenging law as violating their right to practice their trade under 13 th and 14th
amendments. Argued law was involuntary servitude, deprived property w/o due process, denied
equal protection, and privileges and immunities. Holding Court narrowly construed all
provisions and rejected butchers challenge to grant of monopoly. Privileges and Immunities
clause was NOT intended as a basis for federal courts to invalidate state laws. (Federalism)
c. Revival of the Privileges and Immunities Clause Saenz v. Roe
i. In 1999, for the first time in American history, the court used the privileges and immunities clause
of the 14th Amendment to invalidate a state law.
ii. Saenz v. Roe Privileges and Immunities Clause protects right to travel and the newly
arrived citizens right to be treated equally in her new State of residence.
Saenz v. Roe (1991): California enacts law that limited welfare benefits for new residents in the
state to the level of the state that they moved from for one year. Holding Privileges and
Immunities Clause of the 14th Amendment protects the right to travel (as a fundamental right)
and the right of new residents become bona fide citizens and to be treated the same as long-term

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residents. Dissent Resurrecting long dormant clause that will become yet another convenient
tool for inventing new rights.
III.

INCORPORATION INTO THE DUE PROCESS CLAUSE OF 14th AMENDMENT

a. Early 1900s The overturning of the Saenz case left the Court looking for another way to establish the
BoR applies to states. Court tries alternative approach: They began establishing with cases that some of
the rights enumerated by the BoR, are so pervasive and fundamental, that they are protected by the Due
Process Clause of the Fourteenth Amendment.
i. Fiske v. Kansas: freedom of speech applies to states through due process clause
ii. Powell v. Alabama: denial of counsel (to black guys) in a capital criminal case violated due
process and applied to state
iii. Debate over incorporation (fundamental right?):
Over history
Over federalism
Over proper judicial role
Over content of incorporated rights.
Because DC v. Heller took place in DC, which is under the fed govt. there was no occasion to
address whether the second amendment applied to state laws. McDonald v. City of Chicago
addressed it:
b. 2 analytical difficulties under this examination (using Due Process instead of P&I Clause)
Can you transport these rights (BoR) through the phrase Due Process of law?
1. Already a Due Process clause operative in 5 th Amendment that applies to federal govt. and Due
Process clause in 14th Amendment that pertains to state govt.
a.
Problematic b/c dont mean the same thing
2.
Due Process of law is a PROCEDURAL NORM, not a substantive norm
a.
Asks have you received adequate process to comply with Constitution?
b.
Problem b/c some provisions of bill of rights can be seen as substantive
Can be used for Substantive purposes (contraceptive, abortion, etc).
c. Initial Incorporation Cases Fundamental rights apply to States through Due Process
McDonald v. City of Chicago: (2010) Under process of selective incorporation, a Bill of Rights
guarantee applies to the states if it is fundamental to the nations scheme of ordered liberty or
deeply rooted in the nations history and tradition. individual self defense is a basic right, which
forms the central component of the Second Amendments right to keep and bear arms, and which
is deeply rooted in the nations history and tradition
d. THE DEBATE OVER INCORPORATION:
i. Debate over Incorporation centered around three issues:
1. Intent of the Framers
a. Unresolved b/c no single discernible intent for ratification
2. Preserving State autonomy and Federalism
a. Incorporation would impose substantial restrictions on States Rights
3. Appropriate Judicial Role
a. Does selective incorporation give judges too much discretion in deciding what
rights are fundamental? Does Total incorporation impose too much judicial
oversight and impede democracy?
ii. Three approaches to incorporation of Bill of Rights under Due Process:
1. Natural Law Approach

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a. Only fundamental rights that are implicit in the concept of ordered liberty are
incorporated to the States through Due Process Clause. (theoretical/platonic
view of justice)
b. Fundamental rights = something which is so central to notion of procedural
fairness, that you could not have a fair regime without it
2. Total Incorporationists - Jot for Jot - Textually Dependent Approach
a. Everything in the Bill of Rights should be incorporated through the 14th
Amendment/Due Process clause and apply to the States.
b. Justice Black argues this approach is rooted in the text of the Constitution,
limiting activist judges from inventing rights.
3. Selective Incorporationists Fundamental to the American Scheme of Justice
a. Some provisions or phrases from the Bill of Rights are sufficiently fundamental
to apply to the State governments.
IV.

CURRENT LAW AS TO WHAT RIGHTS ARE INCORPORATED

a. Eventually, Court settles on a compromise between Natural and Total Incorporation with Selective
Incorporation.
i. Modern Approach to Incorporation Court looks to whether a right is within the American
tradition of Due Process of law.
1. If a right is incorporated into the Bill of Rights, it is likely that the right is a part of the
American tradition and will be applied to the State governments.
2. Almost all of the Bill of Rights have been incorporated and most apply to the States in
exactly the same manner as they apply to Federal government.
b. Provisions of Bill of Rights NOT incorporated to States (as of learning this shit):
i. 3rd Amendment right to not have soldiers quartered is not incorporated
ii. 5th Amendment right to a Grand Jury indictment in criminal cases is not incorporated
iii. 7th Amendments Right to Jury Trial in Civil cases is not incorporated
iv. 8th Amendments prohibition on excessive fines is not incorporated

V.

CONTENT OF INCORPORATED RIGHTS

a. General Rule Bill of Rights apply to the State governments in exactly the same manner as they apply
to Federal government.
i. Few Exceptions When Bill of Rights apply differently to State governments (jury sizes and
unanimity)
b. Barron has never been expressly overruled When a case involves a state violation of a Bill of Rights
provision, technically it involves that provision as applied to the states through the due process clause
of the Fourteenth Amendment.
c. State Action Rule Bill of Rights usually ONLY applies to governments, not individuals

CHAPTER 9: DUE PROCESS AND ECONOMIC LIBERTIES

Economic Liberties Constitutional rights to enter contracts, enforce contracts, pursue a trade, acquire, possess, or
convey property.
DUE PROCESS CLAUSES:
Fifth and Fourteenth Amendments Neither the federal nor the state governments can deprive any person of life,
liberty, or property without due process of law. The Due Process Clauses have been interpreted to provide two different
types of protection:
I.
Procedural Due Process
a. Refers to the procedures the government must follow when it takes away a persons life, liberty or
property. (i.e. protections for criminals notice, hearing, etc)
II.
Substantive Due Process

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a. Refers to whether the government has an adequate justification for taking away a persons life, liberty or
property.
i. When a right is deemed fundamental under Due Process, the government must prove that its
action is necessary to achieve a compelling purpose
1. Protecting economic liberties
2. Safeguarding privacy
ECONOMIC SUBSTANTIVE DUE PROCESS
I.

EARLY HISTORY OF ECONOMIC SUBSTANTIVE DUE PROCESS (1790s-1880s)

a. Early Antecedents Using Natural Law to Protect Property
i. Early Court believes Constitution protected natural rights concerning personal property that
limited government actions.
b. Initial Rejection of Economic Substantive Due Process
i. Slaughterhouse Cases (1872) Court expressly rejected a substantive due process claim. Court
emphasized that Due Process only concerned procedures and could not be used to challenge
laws as violating economic rights.
1. Fields Dissent argues Due Process includes protection of natural rights to property
and to practice profession that could not be arbitrarily assailed
c. Rise of Regulations and Suggestions of Economic Substantive Due Process
i. 1870s Industrialization changed economy and legislatures begin to enact regulations for
railroads and grain storage.
ii. Laissez Fair Economic Philosophy Influences Judges to interpret a freedom to contract into
Due Process Clause as a basic liberty interest (Allgeyer).
Allgeyer v. Louisiana: freedoms protected by the DP Clause of 14A include economic freedoms
and prohibit a state from preventing its citizens from contracting with out-of-state parties (here NY)

II.

LOCHNER ERA ECONOMIC SUBSTANTIVE DUE PROCESS (1897-1937)

a. Lochner Era Under Laissez-Faire philosophy, Court interprets an implicit freedom of contract
into the Due Process Clause of the 14th Amendment. Court actively invalidates state government
economic regulations as violations of economic substantive due process.
Lochner v. New York (1905): Court invalidated a NY regulation that set the maximum hours
that bakers could work. Court held that the regulation of labor hours did NOT come within the
States police power to regulate health and safety. Thus, the law violates freedom of contract
btw bakers and employers. Court tries to constitutionalize laissez faire economics and will
second guess legislatures determination of what constitutes valid exercise of police power.
Holmes Dissent objects that Constitution does not imply any economic theory or policy.
b. Three Main Principles of Lochner Era
i. Freedom of Contract is an implied right protected by the Due Process Clause of the 14th
Amendment. (the right is seen as a property right that cant be taken away)
ii. Legislatures could interfere with freedom of contract only to serve a valid police purpose of
protecting public safety, public health, or public morals, but other things are beyond the scope of
the govt. power to regulate
iii. The judiciary will scrutinize regulations and second-guess legislatures determination of what
constitutes valid police purpose. (ends and means)
c. Examples Lochner Era Cases
i. Invalidating laws protecting consumers:

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1. Weaver v. Palmer Bros. (1926) A state may not enact consumer protection legislation
when no significant public health and safety concerns exist, or when such concerns may
be easily alleviated. Any legislative restraints on the use of shoddy (in mattresses) are
arbitrary and directly interfere with Palmer Bros. Fourteenth Amendment rights because
of the unlikely health and safety dangers associated with this product, and the ease of
eliminating dangers by sterilization
ii. Upholding Maximum Hours Laws for Women Workers
1. Muller v. Oregon (1908) Court upholds maximum work hours for women b/c female
reproduction is a legitimate exception to freedom of contract. As a lawyer, Brandeis
files a detailed brief with scientific data (this is an EXCEPTION involved a special
interest to protect rights and health since women couldnt vote)
iii. Invalidating Minimum Wage Laws for Women Workers
1. Adkins v. Childrens Hospital (1923) Court invalidates (rules unconstitutional)
minimum wage law for women b/c 19th amendment gave women equality through voting
rights. This infringes on liberty of K.
III.

CRITCISM OF LOCHNERISM AND PRESSURE FOR CHANGE (1930s)

a. Criticism of Lochnerism
i. Depression Era created widespread perception that government economic regulations were
essential and freedom of contract should not be an obstacle.
ii. Legal Realists argued that Lochnerism was really just about political policy choices rather than
restoring natural order. Pointed out inconsistent decisions
iii. Problematic Judicial Activism Criticism that unelected judges were unduly substituting
their values for those of democratically elected legislatures to protect rights that were NOT
expressly stated in any text of the Constitution.
b. Demise of Lochnerism
Nebbia v. New York (1934): Court upholds a government regulation that set prices for milk.
Court states that any state regulation that is reasonably related to a legitimate government
purpose satisfies due process. Court stresses need for judicial deference to decisions of
legislatures as to what qualifies as valid police purpose and in the name of public good.

IV.

THE END OF LOCHNERISM (1937)

a. In 1937 Justice Owen Roberts switched sides (after court-packing plan) and upholds regulations in
two cases signaling the end of Lochner Era.
b. Rational-Basis Test for Economic Regulations - Heavy Presumption of Constitutionality
i. Economic regulations will be upheld if rationally related to serve any legitimate government
purpose and court will defer to legislatures judgment.
West Coast Hotel v. Parrish (1937): Upholding minimum wage law and abandoning of
Lochnerism. Court announces it will no longer protect freedom of contract as a fundamental
right and government could regulate to serve any legitimate public purpose; court will defer to
legislatures reasonable choices. (Overrules Adkins)
c. Reaffirming Judicial Deference to Legislature
i. Economic regulations upheld so long as supported by any conceivable rational basis, even if it
cannot be proved that it was the legislatures actual intent.

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United States v. Carolene Products (1938): Court upholds another economic regulation on milk
products. Court announces it will no longer second guess the legislature as to whether a
regulation has a rational basis linking a public purpose.
d. Carolene Products Footnote #4 and New Theory of Judicial Review
i. Generally, the court will give broad deference to the legislature and uphold laws so long as they
are rationally related to legitimate public purpose.
1. Court defers to democratic process where voters are the check on laws.
2. Moving from a time of rigid intervention to a presumption of constitutionality
ii. Three Exceptions Court will NOT give presumption of constitutionality if:
1. The law conflicts with explicit text of Bill of Rights
2. The law restricts citizens access to political process (voting rights)
3. The law prejudices discrete and insular minorities
a. In these areas, the political process is NOT sufficient to protect the rights
involved. Minorities and those denied voting rights cannot have any recourse by
voting out members of legislature.
b. Thus Court must intervene with a more searching/heightened scrutiny.
V.

MODERN ECONOMIC SUBSTANTIVE DUE PROCESS SINCE 1937

a. Modern Rule Rational Basis Test for Economic and Social Regulations
i. Economic regulations will be upheld when challenged under Due Process as long as they are
rationally related to any legitimate government purpose. (heavy presumption of
Constitutionality)
1. Legitimate purpose can be any goal not prohibited by the Constitution
a. Any conceivable basis/public purpose (need not even be stated)
b. No relationship to health, safety, welfare required
2. The law only need be a reasonable way/means of attaining the end
a. Need not be narrowly tailored to achieving the goal.
3. Thus virtually any law can meet this deferential standard
a. Almost NO judicial 2nd guessing of legislation (great deference)
b. Example Extreme Deference to Legislature for Economic Regulations and Freedom of K
Williamson v. Lee Optical (1955): Oklahoma law required that all lenses prescriptions be filled
by licensed optometrist. Holding Even though law is unnecessary and unreasonable, court
refuses to second-guess legislatures discretion in linking a public purpose with the law. It is up
to the legislature, not the courts to decide upon the wisdom and utility of economic regulations.
Court sends signal that people must use the political process to strike down laws that regulate
business and industrial conditions.

Since Locher/1937 - economic substantive due process has been unavailable to challenge
govt. economic and social welfare laws and regulations

No economic regulatory statute has been held invalid under DP since 1937
(limits are permissible)

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CHAPTER 10: EQUAL PROTECTION

I.

CONSTITUTIONAL PROVISIONS CONCERNING EQUAL PROTECTION:

a. Equal Protection Clause
i. No provisions for equal protection in original draft of Constitution
ii. Fourteenth Amendment No state shalldeny any person within its jurisdiction the equal
protection of the laws
1. 1880s-1950s The court rarely found any state or local action to violate the equal
protection clause.
2. Brown vs. Board ushered in the modern era of equal protection
a. Since 1954 Court has relied on equal protection clause as a key provision for
combating invidious discrimination and for safeguarding fundamental rights.
b. Application of Equal Protection to Federal Government
i. There remains no provision in the Constitution that explicitly says that the Federal government
cannot deny equal protection of the laws.

II.

FRAMEWORK FOR EQUAL PROTECTION ANALYSIS:

a. The Basic Issue Is the governments classification or discrimination among people justified by a
sufficient purpose? Remedy Government must treat similar people equally.
i. What is a sufficient justification depends entirely on the type of discrimination.
ii. 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?
b. QUESTION #1 WHAT IS THE CLASSIFICATION?
i. Equal Protection analysis begins by identifying how the government is drawing a distinction
among people.
ii. Two Basic Ways of Proving the Existence of a Classification:
1. Classifications on Face of the Law
a. Where the very terms of the law draws a distinction among people
2. Facially Neutral, w/ Discriminatory Impact and Discriminatory Purpose
a. If a law is facially neutral, demonstrating a race or gender classification requires
proof both of discriminatory impact and proof that the governments purpose
was to discriminate.
c. QUESTION #2 WHAT IS THE APPROPRIATE LEVEL OF SCRUTINY?
i. Strict Scrutiny Discrimination based on Race, National Origin, usually Aliens
1. Compelling State Purpose Test The law is upheld only if it is proved the
discrimination is necessary to achieve a compelling purpose and it is narrowly
tailored to achieve that purpose
a. Must show there is no less discriminatory alternative to achieve goal.
2. Government bears the burden of proof and strict scrutiny is almost always fatal to the
challenged law (strict in theory and fatal in fact)

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ii. Intermediate Scrutiny Discrimination based on Gender and Nonmarital Children

1. Important State Purpose Test The law is upheld if the discrimination is substantially
related to an important government purpose.
2. Government bears the burden of proof.
iii. Rational Basis Review All other laws challenged under equal protection
1. Rational Basis Test law will be upheld if the classification is rationally related to a
legitimate government purpose and the means chosen need only be a rational way to
accomplish the end.
2. The challenger bears the burden of proof and only rarely is a law declared
unconstitutional b/c court is extremely deferential to the government.
d. QUESTION #3 DOES GOVERNMENT ACTION MEET LEVEL OF SCRUTINY?
i. The level of scrutiny is the rule of law that is applied to a particular government action being
challenged under Equal Protection.
ii. Court evaluates both the laws ends and its means
1. Ends Analysis
a. Looking to the purpose of the law
i. Compelling? Important? Legitimate?
2. Means Analysis
a. Looking to the relationship between the means chosen in light of the purpose
behind the law.
b. Underinclusive when the law does not apply to individuals who are similar to
those to whom the law does apply.
c. Overinclusive when the law applies to those that need not be included in order
for the government to achieve its purpose
e. Criteria for determining which Level of Scrutiny applies to particular classifications:
i. Court is very reluctant to create new suspect classifications
ii. Court has emphasized several criteria for groups warranting heightened scrutiny:
1. Immutable characteristics
a. Unfair to penalize characteristics one didnt choose, cant change
2. Ability of the group to protect itself through the political process
a. Aliens cant vote at all, Women are underrepresented.
3. History of Discrimination
4. Likelihood that classification reflects Prejudice
a. Classification is just prejudice as opposed to permissible govt. purpose.
b. Biological differences btw men and women justify classifications
f.

III.

Protection of Fundamental Rights under Equal Protection

i. Equal Protection can also be used if the government discriminates among people as to the
exercise of a fundamental right. (Focus on the right, not nature of classifier)
1. If the right is deemed fundamental strict scrutiny is used
2. If the right is NOT fundamental rational basis review is used.

THE RATIONAL BASIS TEST

a. The Rational Basis Test The minimum level of scrutiny that is applied to all economic and social laws
drawing classifications among people. Extremely deferential approach that involves two requirements:

53

Requirement of a Legitimate Government Purpose

1. Does the law serve any conceivable legitimate government purpose?
Requirement that the law be rationally related to achieving that purpose
1. Means-Ends analysis Are the means chosen rationally related to the legitimate
government purpose?
b. Underlying Policy Debates:
i. Is the extreme deference to government desirable?
1. Appropriate judicial restraint?
a. Legislation often involves arbitrary choices favoring some over others, and
deference leaves these decisions to political process
2. Undue judicial abdication?
a. Unfair laws are allowed to stand b/c lawyers can come up with a conceivable
government purpose for virtually any law
b. Upholding laws for groups w/ political clout at the expense of others
ii. Should the Rational Basis Test have more bite?
1. General Rule A law is upheld if it is upheld if it is rationally related to any
conceivable legitimate government purpose, regardless of the legislatures actual
motivation.
2. Some argue that the rational basis review is only meaningful if the court looks to the
actual purpose for the law, not any conceivable purpose.
3. However there is rarely a single, definable purpose for a law. Legislatures have
different reasons, and once a law is struck, it could just be re-enacted.
iii. Has Court been inconsistent in applying the Rational Basis Test?
1. Court is generally enormously deferential, but there are cases where the Court invalidates
laws using a seemingly heightened standard called rational basis (Romer).
c. REQUIREMENT OF A LEGITIMATE PURPOSE
i. Legitimate Purpose government has a legitimate purpose if the law advances a traditional
police purpose: protecting safety, health, public morals.
1. Challenger bears burden to prove the law is clearly arbitrary and irrational.
2. Virtually any goal that is not forbidden by the Constitution will be deemed to be
legitimate under the rational basis test.
3. However There is NO legitimate purpose if the law is born of animosity toward an
unpopular group (Romer).
ii. Example Classifications upheld under deferential rational basis test (Tolerance for
Underinclusiveness).
1. Railway Express v. New York (1949): NY passes traffic regulation prohibiting some
trucks from displaying advertisements on the back. Law permitted companies to
advertise on their own trucks, but barred ads on rented trucks. P claims the law draws an
unreasonable distinction violating Equal Protection. Holding Court upholds
governments discrimination between truckers because there is a rational basis for
drawing distinction. Legislature could conceivably find a legitimate purpose in
protecting against traffic accidents.
iii. Example (Tolerance for Overinclusiveness)
1. Tolerated under RBR: if it covers more people than it needs to to accomplish its purpose.

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2. NYC Transit Auth. v. Beazer: Concerning a law that prohibited hiring of eomployees
that used a certain type of medicine. The Transit Authoritys rule serves the general
objectives of safety and efficiency. The rule is not directed against any class of persons
characterized by some unpopular trait. Therefore, it does not create the likelihood of bias
on the part of the ruling majority.
iv. Example Rare case invalidating law b/c did NOT serve legitimate purpose:
1. If the only conceivable justification behind a law drawing a classification is prejudice
and animosity the court will NOT be as deferential to legislature
2. Romer v. Evans (1996): Court declares unconstitutional a voter approved Colorado
Amendment that repealed all laws protecting gays from discrimination and prohibited all
future government action to protect gays from discrimination. Holding There is NO
legitimate purpose in singling out a particular group and barring them from political
process. This classification is born out of animosity toward an unpopular group and
does NOT further any legitimate government purpose. Court seemed to use a slightly
higher standard of review here Rational basis test with teeth
3. Lawrence v Texas
v. Any Conceivable State Purpose is Sufficient Actual Purpose Irrelevant
1. Under Rational Basis Review The law will be upheld if any conceivable legitimate
government purpose can be identified for discrimination.
a. The actual purpose motivating the legislature is irrelevant.
b. Extreme deference for legislative decisions
c. Social and Economic regulatory legislation is given greater deference
d. REQUIREMENT THAT MEANS BE RATIONALLY RELATED TO ENDS
i. Under Rational Basis Test the court must also decide whether the classifications drawn in a
statute are reasonably related to the purpose behind the law.
ii. Extreme Deference in finding reasonable relationship btw means and ends
1. Laws will be upheld unless the governments action is clearly wrong, a display of
arbitrary power, not an exercise of judgment
2. Court is tolerant of both underinclusive and overinclusive classifications as long as they
are rationally related to legitimate government purposes
3. Court gives deference to legislatures need to make one step at a time
iii. Example Tolerance for Under-Inclusiveness in Rational Basis Review:
1. Railway Express v. New York: Court upheld an ordinance that banned all advertising
on trucks unless the ad was for the business of the trucks owner. P argued law was
irrational as a way of achieving purpose of decreasing traffic distractions b/c the
government did NOT ban other obvious driving distractions. Court tolerates underinclusiveness and upholds law.
2. Japanese Internment Victims: punished Japanese, but not those of other races who
were also posing problems (didnt punish all offenders)
iv. Example Tolerance for Over-Inclusiveness in Rational Basis Review:
1. Japanese Internment Victims: punishing a large number of people, but only some of
them are causing the problem law covers more people than it needs to in order to
accomplish its purpose only some of the Japanese were offenders, but all were
punished.
v. Examples Laws Invalidated as Arbitrary and Unreasonable (rare)
1. Court has rarely found laws to be so arbitrary and unreasonable as to fail rational basis
review thus the classifications violate Equal Protection.

55

a. The court does NOT want to create new suspect classes

b. Thus court will apply rational basis review w/ more bite to invalidate
government classifications that seem hostile
c. Mere desire to harm an unpopular group is NOT a legit purpose
2. Cleburne Living Center (1985): City denied permit for operation of group home for
mentally retarded. Lower court wanted to make retards a new suspect class fearing
rational basis review would uphold this unfair action. Holding Court refuses to create
a new suspect classification for retards. However, court applies rational-basis review
with more bite and found that the local governments action did NOT serve any
legitimate purpose. Local gov gave permits for nursing homes and frats, but not retard
homes. Court this was arbitrary and unreasonable and violated Equal Protection.
3. US Dept. of Agriculture v. Moreno: The legislative history that exists suggests it is
intended to prevent hippies and hippie communes from participating in the food stamp
program. The equal protection clause does not allow that a constitutional desire to harm a
politically unpopular group can constitute a legitimate governmental interest.

EP CASES REQUIRING A HEIGHTENED LEVEL OF SCRUTINY

CLASSIFICATIONS BASED ON RACE AND NATIONAL ORIGIN: (Suspect Classifiers)
I.

RACE DISCRIMINATION AND SLAVERY BEFORE THE CIVIL WAR

a. Prior to 1865 Slavery was Constitutional and the Court protected slave owners
b. Dred Scott v. Sanford (1856): Court declares the Missouri Compromise unconstitutional and broadly
held that slaves were property, not citizens. First time the Court used Judicial Review to strike down a
law as unconstitutional. Roger Taney uses originalist interpretation of constitution to find that framers
did NOT intend blacks as citizens. Court affirms that Congress cannot ban slavery anywhere b/c
Constitution protects property.
c. Fourteenth Amendment Directly overrules Dred Scott and declares all people born or naturalized in
the USA are citizens of both the federal and state governments where reside

II.

STRICT SCRUTINY FOR RACE DISCRIMINATION

a. Strict Scrutiny for Race and National Origin
i. Rule All racial classifications are immediately suspect and must meet strict scrutiny whether
they disadvantage or help minorities.
1. Korematsu establishes Compelling Interest Test
ii. Compelling State Interest Test:
1. Racial classifications are upheld only if the government meets the heavy burden of
proving that the discrimination is:
a. Necessary to achieve a compelling government purpose; and
b. Must demonstrate that purpose cannot be achieved via any
less
discriminatory alternative
b. Policy Justifications for Strict Scrutiny:
i. Primary purpose of the 14th Amendment was to protect Blacks
ii. Long history of racial discrimination
iii. Race classifications more likely reflect prejudice than legitimate public concerns
iv. Relative political powerlessness discreet and insular minority (Carolene Prod).
v. Race is an immutable trait
c. Three Ways of Proving Existence of Race Classifications:

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i. Where Race Classification exists on the Face of the Law (in the text)
ii. Where law is Facially Neutral, but has applied in a discriminatory way (biased implementation
only applies to some)
iii. Where law is Facially Neutral, but has a discriminatory purpose and impact
III.

RACE CLASSIFICATIONS ON THE FACE OF THE LAW

a. Strict ScrutinyAll race classifications are immediately suspect and subject to strict scrutiny and
only upheld if narrowly tailored to achieve a compelling state interest.
i. Heavy presumption against Race classifications on face of the law
1. Invalidated as invidious racial discrimination under 14th Amendment.
ii. Three major types of Race classifications on the face of the law:
1. Race Classifications that disadvantage racial minorities
2. Race Classifications burdening both white and blacks
3. Laws requiring separation of the Races.
b. Race Classifications that Disadvantage Racial Minorities:
i. Ironically Korematsu establishes the compelling interest test while upholding relocation of
Japanese by deferring to military judgment on its necessity.
ii. Exception: Japanese Curfew and Evacuation Cases are the only situation in which the Court
expressly upheld racial classifications burdening minorities (rulings affirming the
constitutionality of the evacuation of Japanese-Americans during WWII.) race as a classifier
is typically odious, but allowed to stand here b/c of war time
1. Korematsu v. United States (1944): Court upholds law forcing relocation of Japanese
during WWII. Justice Black writes: all legal restrictions based on a single racial group
are immediately suspect. The law will NOT be upheld unless absolutely necessary to
carry out a compelling state/government interest under strictest scrutiny. Pressing public
necessity and of avoiding espionage during military emergency justifies this
discriminatory law.
c. Racial Classifications Burdening BOTH Whites and Blacks:
i. Anti-miscegenation laws barring interracial marriage were originally upheld on the grounds that
they applied to and treated both whites and blacks equally.
ii. In 1960s Court recognized that such racial classifications are impermissible under Equal
Protection because they are based on assumptions of the inferiority of blacks
1. Laws that use race, expressly or implicitly, in their text are treated as a racial
classification even though they burden both whites and blacks.
Loving v. Virginia (1967): Court declares unconstitutional a state law that made it a crime for a
white person to marry outside the Caucasian race. Court expressly repudiated the argument that
the law was permissible b/c it burdened both whites and blacks. Restricting the freedom to marry
solely because of racial classifications violates the central meaning of the Equal Protection
clause. No legitimate overriding purpose independent of invidious racial discrimination which
justifies this classification. TEST: CSI b/c race was used as a classifier in the scheme of the
statute

NOTE: This case sets the basis for the Court to say that if you have decided to draw the lines
based on race, then the Court will apply strict scrutiny and will presume this is unconstitutional

Govt. must show: (1) an extremely important reason for its action and (2) is must
demonstrate that the goal cannot be achieved through any less discriminatory alternative.

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After Loving and others

If RACE is used as a classifier, then a different test is triggered than the RBT --- Race as a
classifier triggers CSI (strict scrutiny)
WHY a suspect classification
Presumption of irrationality if this classification is used its the product of prejudice
(assume legislation is impermissible based on our history)
Removed from the Political process --- Carolene Footnote 4: this is a discrete and
insular minority and they lack the political power to change the standard/process --victims of debilitation and legal barriers to the political process
Text of the Amendment/Constitution original purpose (as Warren talks about)
provision that relates to race discrimination that seeks to eliminate burdens placed on
certain races
Palmore v. Sidoti (1984): Not a racial Classification, but reviewed under Elevated Scrutiny
State court took away Mothers custody of child b/c she cohabitated with a black man. Lower
court said the child would be subjected to social stigma living in bi-racial household. Holding
Court declares states action unconstitutional. Possibility of stigma on child from racial
prejudice do NOT justify a racial classification that will pass strict scrutiny. Private biases
may be outside the reach of the law, but the law can NOT, directly or indirectly, give them effect.
(private biases will not be a compelling justification for laws)
d. Laws Requiring Separation of the Races
i. After Reconstruction ended, South begins Jim Crow era of apartheid
Civil Rights Cases (1883): After Reconstruction, the court declared unconstitutional the Civil
Rights Act of 1875 that prohibited discrimination in public accommodations and broadly held 14 th
amendment only apples to government action, NOT private conduct. (state-action rule)
ii. Separate but Equal Principle
Plessy v. Ferguson (1896): Court upholds a Louisiana law requiring segregation in railcars.
Holding Laws that draw racial classifications do NOT raise a constitutional question as long as
both races are treated equally. Court announces Separate but Equal Principle stating that
government sanctioned apartheid does NOT violation Equal Protection as long as they apply to
both races equally. Harlan Dissenting Our constitution is color blind. Before the law, all
citizens are equal. This law involves government sanction of inferiority of blacks
i. Early attacks on Separate but Equal:
1. Early cases challenged whether facilitates were equal, but never really directly
attacked the separate side of the equation.
2. Equal Protection clause written in 1871, but by 1890s the court had effectively written it
out of the Constitution by declaring that separate, but equal was permissible (this holds
until Brown)
ii. BROWN v. BOARD OF EDUCATION (1954):
Note: 1954 Court begins the business of really enforcing the Equal Protection Clause (not really
out of step with its enforcement/or lack thereof, prior to this time in Commerce Clause cases and
Substantive Due Process)
1. First time court questioned whether separation itself can ever be equal.
2. Earl Warren is appointed to the court and wants research into Framers intent
a. Warren finds intent of framers is inconclusive. Court looks at social science
data instead to find that segregation promotes inferiority

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b. Court points to public education as the most important function of state and
local governments. (notion of centrality of education gateway to
citizenship and meaningful opportunities)
c. Questioning whether segregation in education carries an inherent brand of
inferiority which effects blacks ability to learn.
i. Once state has undertaken public education it becomes a right that
must provided to all citizens on equal terms.
d. Court does NOT expressly overrule Plessy, except as to education.
e. Brown II Court places burden on Schools to make good faith effort to end
segregation with all deliberate speed
iii. Following Brown, the SC took a wide array of cases dealing with segregation
Court rooms, Public swimming pools, Street cars public accommodations
In every case the court reversed the segregated practices and simply said See Brown -the court did not readdress these concerns, but simply said B v Board demands reversal
Essentially this overturned Plessy completely, but that was not done through the Brown
ruling explicitly
Johnson v. California: separation in prisons (for gang related purposes)
De FACTO Segregation: not by law, by implication. Now they take
measures to try and change this. Robert's argues (in line with Plessy
dissent about a color-blind constitution) that such a measure is
unconstitutional (don't want diversity just for diversity's sake)
iv. Name against Name and Brown II demonstrate tension for Court b/w ability of Court to say
what the law is and the limitation that thats where their authority stops --- must then rely on
executive branch and local govt. actors to carry out what the Court deems the law to be
1. What is the Constitutional Violation that Brown declares and defines?
2. Do you have the right as a school kid to go to schools that are racially integrated -- does
Brown guarantee a right to integrated education?
a. No right to proportionally integrated schools
b. Brown describes the violation of a right which is state imposed separation and
the impact that flows to students as a result of state enforced separation
c. Brown doesnt speak to private schools
d. Brown doesnt create a right to attend desegregated school Law says you cant
have state imposed separation

IV.

REMEDIES THE PROBLEM OF SCHOOL SEGREGATION

a. What remedy flows from Brown v. Board?
i. Brown I Separate but equal has no place in public schools.
ii. Brown II If segregated schools violate Brown I, then school districts must move toward a
unitary school system with all deliberate speed
1. Interpreting Brown:
a. Does Brown require integrated schools?
b. Or does Brown only outlaw state mandated segregation in schools?
2. De Jure Segregation Intentional segregation by state imposed laws (facially
discriminatory)
a. In the South easy to prove deliberate facially discriminatory laws requiring
segregation of schools.
3. De Facto Segregation Unintentional segregation b/c of white/black neighborhoods.
(facially race-neutral)

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a. In the North Harder to prove deliberate segregation because laws were

facially race-neutral but white/black neighborhoods existed.
b. Massive Resistance to Desegregation
i. Southern States openly defied compliance with Brown. State legislatures adopted resolutions of
nullification and attempted obstruction of desegregation.

V.

JUDICIAL POWER TO IMPOSE REMEDIES IN SCHOOL DESEGREGATION

a. Swann v. Charlotte-Mecklenburg (1971) Addressing broad equitable powers of federal courts to

GENDER (SEX) CLASSIFICATIONS

I.

INTERMEDIATE SCRUTINY FOR GENDER CLASSIFICATIONS

a. Intermediate Scrutiny Gender classifications are subject to intermediate scrutiny and are
only upheld under an exceedingly persuasive justification
i. Important State Interest Test (Craig v. Boren)
1. Gender classifications will only be upheld if the classification:
a. Serves important government objectives; and
b. Is substantially related to achievement of those objectives
b. Two ways of Proving Existence of Gender Classifications:
i. Gender Classifications on the face of the law
1. The laws very terms draw a distinction among people based on gender which
automatically triggers intermediate scrutiny
ii. Facially gender-neutral laws w/ discriminatory purpose and effect on women.
1. Challenger must prove law was enacted with a discriminatory purpose to trigger
intermediate scrutiny
2. Mere proof of discriminatory impact is NOT sufficient
c. Policy Rationale for Intermediate Scrutiny
i. Presumption against gender as a classifier, but less rigorous scrutiny
ii. Sex and gender are visible immutable characteristics; history of discrimination against
women, sex classifications are usually based on stereotypes, etc
iii. However Biological differences between men and women make gender classifications
more justifiable

II.

THE EMERGENCE OF INTERMEDIATE SCRUTINY

a. Originally Court only applied rational basis review to Gender Classifications
Reed v. Reed (1971): Court used rational basis review to invalidate a state law that
required executors to be male only. Some scholars questioned if the court was using a higher

standard of review or rational basis test with teeth Standard of Review: RBT: A
classification must be reasonable, not arbitrary, and must rest upon some ground of difference
having a fair and substantial relation to the object of the legislation, so that all persons similarly
circumstanced shall be treated alike. (Is there any conceivable justification regardless of whether
one was provided?) COURT HOLDS: efficiency is not a CSI and there was no rational basis

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doesnt makes sense, but later it becomes clear that RBT still stands, sex discrimination applies a
different standard of review

b. Debating Level of Scrutiny for Gender Classifications:

Frontiero v. Richardson (1973): Federal law (example of EP applied against federal govt, not
states) allowed male military men to automatically claim their wives as dependents. A women,
however, could only claim her husband after proof he was actually dependent. Holding Court
invalidates the law, but disagrees on level of scrutiny. Four justices took the position that gender
classifications should be subjected to strict scrutiny. Others wanted to use rational basis review
for sex discrimination. (Not a majority decision) Court applied CSI test and the law failed
means = preferring men over women for the granting of benefits of spouses and the ends = saving
money Court says that saving money is a legitimate goal of govt, but not a compelling
reason
What are arguments that sex discrimination is like racial discrimination SHOULD THERE BE AN
ELEVATED STANDARD OF REVIEW?
It is an immutable characteristic
Sex has no reflection on ability to perform
Frequently Irrational b/c unrelated to the claim on the merits (whether you fall within statute or
not)
Paternalistic attitudes toward women
Long history of discrimination women burdened traditionally
Examines actions of Congress have already declared this is something invidious
History of political marginalization/exclusion from the political process lack of right to vote
(polt. disenfranchisement) Carolene Footnote 4 discrete and insular minority

c. Intermediate Scrutiny emerges as appropriate level of review for Sex discrimination

i. Intermediate scrutiny is to be used for all gender classifications discriminating against
both men and women.
1. Gender classification must serve an important government interest and the
means must have a fair and substantial relationship to achieving that purpose. (this
is the means-end scrutiny test)
2. DUE PROCESS CLAIM I have the right to buy beer unmolested free from
interference with my liberty; Oklahoma has no power to say to 18 year olds that you cant
buy beer
3. EQUAL PROTECTION CLAIM must treat males and females the same
Craig v. Boren (1976): Establishes intermediate scrutiny as level of review for gender
classifications. Oklahoma statute drew gender classifications for sale of beer. Women could buy
beer at 18, but men had to be 21. Holding This classification on gender does NOT serve an
important government interest and therefore violates equal protection. (in dissent Rehnquist
notes that this is like a reverse application b/c addresses discrimination against men, not women
(not a group protected by Footnote 4)

d. Potential Outliers in the Area of Gender/Sex Discrimination

1.

Michael M. v. Superior Court 1981

a.
Facts of the Case: Michael M., a 17 and 1/2 year-old male, was found guilty of
violating California's "statutory rape" law. The law defined unlawful sexual intercourse as "an act
of sexual intercourse accomplished with a female not the wife of the perpetrator, where the
female is under the age of 18 years." The statute thus made men alone criminally liable for such
conduct. Michael M. challenged the constitutionality of the law.
b.
Question: Did California's statutory rape law unconstitutionally discriminate on
the basis of gender?

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c.

Conclusion: Rehnquist No. In a plurality decision, the Court held that the law
did not violate the Equal Protection Clause of the Fourteenth Amendment, noting that "young
men and young women are not similarly situated with respect to the problems and the risks of
sexual intercourse." The Court found that the state had a strong interest in preventing "illegitimate
pregnancy." The Court noted that "[i]t is hardly unreasonable for a legislature acting to protect
minor females to exclude them from punishment. Moreover, the risk of pregnancy itself
constitutes a substantial deterrence to young females. No similar natural sanctions deter males."
Note: there is only a Plurality here written by Rehnquist
Rehnquist advocates sharper focus here -- reluctant to embrace full version of important
govt. interest test in Craig, but still wants some intermediate level of review (but not as far as
CvB)

After RvR, CvB, Michael M. WHAT IS THE STANDARD OF REVIEW IN SEX DISCRIMINATION
CASES?
Michael M. doesnt apply full important govt. interest test of CvB (this case has a weaker standard
of review) , so where does this leave us
Important Govt. interest test used --- unless statute relates to actual physical differences (where men
and women are not similarly situated i.e. pregnancy) -- then will be more deferential review (more
like RBT test)
o If statute based in perceptions of behavior, stereotypes of gender roles then we apply more
searching scrutiny of IGI test
2.
Rostker v. Goldberg, (1981) President Carter initially suggested a draft registration
that applied to men and women Congress said NO!!! -- and kept it a male only draft registration -this was the statute challenged in the case
What is the STANDARD OF REVIEW?
o Doesnt embrace the IGI test of CvB -- is a more moderate level of scrutiny
o Part of it is the Court trying to figure out how much deference to afford Congress since
they decided issue based on national security concerns Court doesnt want to 2 nd guess
too much
o More focus on fair and substantial -o Court said this was RATIONAL statute -- logical link
What was the purpose of this particular registration?
to prepare for combat
Court says: men and women are not similarly situated for purposes of
military combat b/c there was a statute saying that men could serve in
combat, but women could not (Note: court doesnt address whether this
statute was constitutional, but assumed it was so) -- Court was
bootstrapped by statute
3. NOW: What is the STANDARD of REVIEW?
o Roskt --- This standard is more deferential than IGI test
o This is a middle tier asking whether it is reasonable to draw these distinctions
This case is treated more like Michael M. standard similar to idea of actual physical differences
that implicates a middle ground b/w RBT and IGI
Michael M. and Rostker Are OUTLIERS employ a more deferential standard of review
o May be a result of actual physical differences b/w men and women when it comes to
being pregnant
o Rostk --- b/c of importance of military/national security (deference to Congress or that
there was a statute creating a difference = legal distinction)

a. Exceedingly Persuasive Justification Formula for Important Gov. Interest Test

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i. Mississippi University for Women v. Hogan (1982), is a five to four ruling of the United States
Supreme Court in which the Court ruled that Mississippi University for Women's single sex
admissions policy violated the Fourteenth Amendment's equal protection clause.
1. STANDARD OF REVIEW This case uses the CvB standard of intermediate scrutiny
BUT the court talks about an exceedingly persuasive justification
2. This case says:
a. Must have an important govt. interest
b. Fair and substantial relationship b/w means employed and impt govt interest
c. BUT must have an exceedingly persuasive justification for the important govt
interest
3. This is the IGI test on steroids will be applied going forward
4. Whats the difference? --- JUSTICE OCONNER joins the court
This is a more rigorous standard of justification than even CvB
a. HOGAN BECOMES THE STANDARD for gender/sex discrimination
review under EP
b. NOTE: would accept an argument that distinguishes b/w men and women that is
not based on stereotypes or preconceived notions

ii. Ginsberg adopts a more rigorous intermediate scrutiny for gender classifications and
requires an exceedingly persuasive justification to be upheld.
United States v. Virginia (1996): Virginia Military Institute allows only male cadets claiming
that the school uses an adversative method that is specially designed for men. Female cadet is
denied admission. Holding VMIs exclusion of women is a violation of equal protection
because VMI did NOT prove an exceedingly persuasive justification for discriminating against
women. There is no persuasive evidence in the record that VMIs male-only policy furthers a
state policy of diversity No fair and substantial relationship. There is NO proof that women
cannot participate in the adversative method. Further, Virginias attempt to remedy the
discrimination by opening a female college is NOT enough. Remedy for intentional
discrimination requires curing all discrimination.
III.

I.

GENDER CLASSIFICATIONS BENEFITING WOMEN:

a. Majority of Courts cases concern gender discrimination involving laws that benefit women and
disadvantage men. Intermediate scrutiny is applied to all gender classifications
b. Three Principles emerge:
i. Gender classifications benefiting women based on role stereotypes are generally invalidated as
not serving an important government interest
ii. Gender classifications benefiting women designed to remedy past intentional discrimination and
are generally upheld
iii. Gender classifications benefiting women based on biological differences between men and
women are generally upheld
AFFIRMATIVE ACTION CLASSIFICATIONS ADVANTAGING FEMALES
A.
From Chemerinsky: Three principles emerge from SC cases concerning gender
discrimination where laws benefit women and disadvantage men:
1) Gender classifications benefitting women based on role stereotypes generally will not be allowed
(are unconstitutional) (Michael M and Rostker are exceptions)
a. Hogan = example of occupation stereotype
2) Gender classifications benefiting women designed to remedy past discrimination and differences in
opportunity generally are permitted.
a. Califano v Webster SS benefits calculated more advantageously for women than men
3) Gender classifications benefitting women can be based on biological differences b/w men and
women
a. The issues in this type of case focus on whether the biological differences are real or social

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constructs and whether they should matter (Nguyen v. INS: requiring stricter proof of
paternity relationship than maternity relationship, b/c of nature of biological relationship)
B. General Principles of Gender Based Affirmative Action Cases
These cases focus on compensatory measures aimed at correcting inequalities based on sex
All of these cases are decided before the SC becomes tougher on race-based classifications so all of
these cases are decided when the court was fairly lenient (generous) - court was also being generous
toward racial affirmative action as well
o Less certain that the court has a generous bent toward gender based classifications
o It would be very ironic if 14th Amendment stands as a tough standard for race based
affirmative action and a more lenient standard for sex based affirmative action
o HOWEVER, we dont know how the court would decide these cases after the race line of
cases
Orr v. Orr: states purposes for the law: (1) to provide help for needy spouses; and (2) to compensate
women for past discrimination in marriage and divorce. Requiring men, and not women, to pay
alimony is NOT substantially related to either of the stated purposes. Alabama already conducts
individualized administrative hearings as part of each alimony ruling. The hearing officer can easily
consider the parties financial circumstances and assign alimony payments based on who is best
equipped to pay. Hence there is no reason for Alabama to use generalizations about gender as a proxy
for need.
C. MISSISSIPPI UNIVERSITY FOR WOMEN ET AL. v.
HOGAN (1982)
1.
FACTS: A male student sought to enroll in a state women's university because a
baccalaureate degree in nursing would enable him to earn more and to obtain specialized training. No
similar school was located within a reasonable distance. The university allowed male students to
attend only on an auditing basis. The university argued that it should be allowed to continue
prohibiting male students from enrolling for credit because the university had traditionally served
only women and because the prohibition compensated for past discrimination against women
2.
Standard of Review: OConnor (important govt. interest with EPJ)
Exceedingly persuasive justification (like VMI case) sets standard for sex discrimination
cases
3.
What does Miss say the Impt. govt. interest served by the rule?
a.
Aid to help women economically by allowing them to attend school
compensating for past discrimination based on sex
b.
COURT SAYS: This IS an important govt. interest/goal on this basis, but still
fails b/c is based on a stereotype
c.
Court says this isnt reasonable way to open up economic opportunity to
women b/c it is nursing and there are occupational stereotypes -- this is ad hoc based on
stereotypes
d.
Was a public institution; court wanted to eliminate paternalistic attitude
e.
Mere recitation of a benign purpose is not an automatic shield (doesnt mean
youll escape strict scrutiny)
D. What is the standard in Gender Discrimination cases today?
i.
Almost all of these cases occur prior to the shift in race discrimination.
ii.
Dont know what impact the subsequent race cases will have on gender
cases Leaves open the question of what the standard of review is for affirmative action cases
in terms of gender?
iii.
Required: Demonstrable proof of discrimination and any remedy
must alleviate the effects of discrimination

THE REQUIREMENT OF DISCRIMINATORY PURPOSE AND IMPACT

64

I.

FACIALLY NEUTRAL LAWS WITH DISCRIMINTAORY PURPOSE AND EFFECT

a. If racial classification is on the face of the law strict scrutiny is triggered automatically.
b. However Some laws are facially neutral and do not explicitly classify by race, but are administered
in a discriminatory manner or have a disproportionate impact on minorities.
i. General Rule There must be proof of a discriminatory purpose/intent for facially neutral laws
to be treated as racial classifications triggering strict scrutiny.
c. Key Case Requiring Intention of Discriminatory Purpose to trigger Strict Scrutiny
ii. Proof of disproportionate impact on blacks is NOT enough to trigger strict scrutiny.
1. Must prove that government had a discriminatory purpose enacting the law.
Washington v. Davis (1976): DC Polices recruiting procedures used a qualifying test for
applicants for police jobs. Department gave a written verbal test that excluded disproportionate
amount of Black applicants. The qualifying test was race neutral on its face. Holding The
fact that test has disproportionate impact on blacks is NOT sufficient, standing alone, to trigger
strict scrutiny. Court requires proof that government designed the law with a discriminatory
purpose. Otherwise, the law is only subject to rational basis review. As the test serves a
conceivably legitimate public purpose to have smart police, it does NOT violate Equal Protection.
McClesky v. Kemp: A discriminatory purpose implies 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. D offers no evidence to prove this claim, relying
entirely on the study results.

Under Title VII federal statute part of 1964 Civil Rights act prevents discrimination in
employment
Under the Courts rule the burden doesnt shift to the employer unless intentional discriminatory
purpose and impact shown
WvD standard ends up being a harsh standard b/c it tries not to avoid deeming something
discriminatory simply based on statistics and numbers
What does it take to show there was actual Intention?
Does it require proof of what decision makers where thinking? If so, then the EP clause
under WvD is a very high standard
Most likely it can be satisfied with less than a declared intention to discriminate, but you
must do more than simply prove your case by the numbers
d. Proof of Discriminatory Effect as well as Discriminatory Purpose is Required
iii. Challenges to facially neutral laws must prove BOTH discriminatory impact (effect) and
discriminatory purpose (intent) to trigger strict scrutiny review.
iv. Proof of disproportionate impact on blacks is NOT enough to trigger strict scrutiny.
1. Must prove that government had a discriminatory purpose in redrawing the boundary
lines so as to intentionally exclude blacks
Palmer v. Thompson: Regardless of the Citys possible discriminatory motives in closing the
pools, Palmer fails to prove that the pool closing has a discriminatory impact on African
American residents as a group. The City closed all of its pools
2.

Additional Examples Have to take a literacy test if you want to vote, but there is a
grandfather clause and if your ancestors could vote as of 1958, then you dont have to take a
literacy test (not facially discriminatory, but since Blacks couldnt vote until after this so this
DOES demonstrate intent)

e. Policy Debate Should the law require proof of discriminatory purpose?

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3.

If court did NOT require proof of discriminatory purpose slippery slope for thousands
of law suits challenging all kinds of laws.
4.
However proving a discriminatory purpose or any intent of legislature is extremely
difficult. Thus, some obviously discriminatory laws are upheld.
a.
Judicial abdication of responsibility to enforce equal protection?
f.

HOW TO PROVE DISCRIMINATORY PURPOSE BEHIND A NEUTRAL LAW

v. Proof of discriminatory purpose requires proof of more than mere awareness of the
consequences of government action on a minority group.
1. Proof of purpose requires that the legislature took action because of, not merely in
spite of its adverse effects on a minorities
a. Challenger must prove government desired to discriminate
Personnel Administrator of Massachusetts v. Feeney (1979): Statute gives hiring preferences to
Veterans for civil service jobs. Women claim veterans preference is discriminatory on the basis
of sex (b/c most veterans are men). Holding The court refuses to apply strict scrutiny review
because there is NOT sufficient proof that the statute was passed with a discriminatory purpose
or desire to discriminate against women. The clear intent of this law was to reward veterans, not
to hurt women. Thus, even though there is a clear disproportionate impact on women here, strict
scrutiny is NOT triggered without proof of discriminatory intent. Only rational basis review here.
(Mass did this for lawful purpose, not discriminatory reasons)
QUERY: Did Mass. Know this would have a strong, detrimental impact on women applying for
civil service positions?
Yes, but the Court court says that your purpose has to be in order to discriminate (discrmt
must be b/c of intention), not in spite of its discriminatory impact
This applies for racial and gender based classifications under WvD it is NOT enough to
show that you knew that your actions would have a discrmt impact, but with the
INTENTION to achieve discrmt impact
The Court cited Arlington Heights v. Metropolitan Housing Corp. to apply a heightened form
of review, a two-part test: "When a statute gender-neutral on its face is challenged on the
ground that its effects upon women are disproportionably adverse, a twofold inquiry is thus
appropriate. (1) whether the statutory classification is indeed neutral in the sense that it is not
gender-based. If the classification itself, covert or overt, is not based upon gender, the second
question (2) is whether the adverse effect reflects invidious (intentional) gender-based
discrimination... [which is] 'the condition that offends the Constitution.'
vi. Proving Discriminatory Purpose Factors to Consider:
1. Look at historical background of the legislative decision
2. Departures from normal procedural sequence show discriminatory motive
3. Look at Legislative or administrative history
4. Is it possible to understand the decision except as intent to discriminate?
Arlington Heights (1977): P sought re-zoning permit to build low-income housing and was
denied. P argues that that denial of re-zoning permit was motivated by a desire to exclude Blacks
from moving in. Holding Court finds that the P failed to meet their burden of proving a
discriminatory purpose motivating the city to deny zoning permit. Absent proof of
discriminatory purpose or intent, strict scrutiny will NOT be applied. Thus only rational basis
review is applied and decision upheld.
vii. Proving Discriminatory Purpose Burden Shifting

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1. Finding proof that legislature enacted a law with discriminatory purpose or intent is
extremely difficult (cant get congressmen to testify)
2. Burden Shifting Method If sufficient evidence is presented that discrimination was a
motivating factor the Burden Shifts to the government to show a race-neutral
explanation for enacting law.
3. Proximate Cause Footnote 21 introduces an idea of proximate cause to these cases.
Namely, it states that the petitioner must prove respondent had 1) an improper intent
(i.e. that his intent was to discriminate against another race). After this is proven, the
burden of proof shifts to the respondent, who must prove that 2) the improper intent did
not actually affect the outcome of his decision.
a. Thus, the court is saying that to satisfy this test, you must prove improper intent,
a disparate impact, and proximate cause (i.e. that the improper intent is the cause
of the disparate impact). If proximate cause cannot be proven, "there would be no
justification for judicial interference with the challenged decision," as "the
complaining party in a case of this kind no longer fairly could attribute the injury
complained of to improper consideration of a discriminatory purpose."
REMEMBER: Arlington, Feeny and Hunter all look at whether statutes are gender/racially neutral
(whether this is disprt and intentional) focus is on how to categorize the case (this triggers intention of
decision maker as long as there is not a facial classification) -- not what standard to apply

BENIGN DISCRIMINATION: AFFIRMATIVE ACTION, QUOTAS, PREFERENCES

BASED ON RACE
II.

AFFIRMATIVE ACTION CLASSIFICATIONS BENEFITING RACIAL MINORITIES

a. STRICT SCRUTINY REVIEW FOR AFFIRMATIVE ACTION PROGRAMS:
i. Modern Rule Strict Scrutiny is used to evaluate both state and federal government
affirmative action programs whether they benefit or burden minorities.
1. Affirmative action programs are upheld as only if they are narrowly tailored means to
achieve a compelling state interest.
2. Compelling Interest Prong Remedying past intentional discrimination, achieving
diversity in education (one plus factor among many)
3. Narrow Tailoring Prong must show there are no race-neutral means to achieve the
same compelling purpose b/c using race is a highly suspect tool.
b. Need to smoke out illegitimate uses of race classifications
b. INITIAL CASES CONSIDERING LEVEL OF SCRUTINY
i. Regents of the Univ of California v. Bakke (1978) First time Supreme Court considered
Affirmative Action Programs. Medical School had a racial quota system that used set asides
for minority students. (no clear majority)
ii. Bakke Rule Race can be one factor, among many individualized factors, in college
admissions to achieve the compelling purpose of classroom diversity. Means chosen must be
narrowly tailored racial quotas/set asides are NOT permitted.
1. Four Liberal Justices want intermediate scrutiny (IGI) test for racial classifications
benefiting minorities and voted to uphold set asides
2. Four Conservative Justices wanted strict scrutiny for affirmative action and voted
to strike down set aside racial quota system.
3. Justice Powell Said that strict scrutiny should be used for affirmative action. All
racial classifications trigger the CSI test. Racial quota set asides are NOT permissible

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a. Affirmative Action can NOT be used to remedy general societal discrimination.

Not the job of colleges to fix society as a whole.
b. However Powell argues that classroom diversity is a sufficient compelling
state interest and that race can be used as one plus factor among many
to achieve diversity in admissions.
iii. Fullilove c. Kluznick (1980) Court seemed to apply a lower level of scrutiny in reviewing a
Federal affirmative action law that required 10% of federal public works monies be set aside for
minority-owned businesses. However Court later states that strict scrutiny applies to BOTH
state and federal affirmative action programs
iv. US v. Paradise: Court upheld a federal court order that mandated that a qualified black must be
hired or promoted anytime a white was. Justified as a measure to remedy past discrimination by
the department it was meant to affect.
v. Wygant v. Jackson Board of Edu.: Court held unconstitutional a law that said that the number
of black teachers laid off could not exceed the number of them that were employed. The result
was that when the school laid of teachers based on seniority, some black teachers were retained at
the expense of laying off more senior white teachers.
c. THE DEBATE OVER STRICT SCRUTINY AND AFFIRMATIVE ACTION
i. The debate over Affirmative Action is largely about the level of scrutiny to be used. The reality is
that the level of scrutiny used is likely decisive in determining the fate of the affirmative action
program.
ii. Opponents of Affirmative Action Favor Strict Scrutiny
1. All racial classifications, invidious or benign, require strict scrutiny review
a. Affirmative Action promotes notions of racial inferiority
b. Constitution requires that government treat each person as an individual without
regard to his race (color blind)
2. All racial classifications stigmatize blacks and breed racial hostility
a. Affirmative Action inevitably foments racial resentment
iii. Supporters of Affirmative Action Favor Lower Level of Scrutiny
1. Big difference between government using racial classifications to benefit minorities,
rather than using racial classifications to disadvantage them
a. Major difference btw a majority discriminating against a minority and the
majority discriminating against itself
i. Less reason for suspicion White majority is unlikely to disadvantage
itself for reasons of invidious racial prejudice
ii. Carolene Products Footnote 4 Heightened judicial scrutiny is
triggered for discrete and insular minorities (not whites)
2. History of racism towards blacks, but NO history of persecution of whites.
a. Framers of 14th Amendment clearly did not envision protecting whites
iii. Certainly, Framers of 5th Amendment in 1789 did not intent strict scrutiny
review of racial classifications (slavery!)
b. Shouldnt AA be left to the political process or intermediate scrutiny?
3. Achieving social equality requires affirmative action at this point in history
a. Applying strict scrutiny would greatly impede remedial efforts to end continuing
disparities b/c little survives rigorous review.
d. EMERGENCE OF STRICT SCRUTINY AS THE TEST:

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i. General Rule All Racial classifications benefiting minorities must meet strict scrutiny and be
narrowly tailored to achieve a compelling state interest
a. Benign racial classifications may only be used:
i.
As a remedy upon proven past intentional discrimination
ii.
As a limited way to achieve classroom diversity in Colleges.
ii. Shift begins in the way the court approaches these cases Bakke (education) and Fullilove
(minority contracts) were two very generous decisions leading up to Croson and Adarand
iii. State and local affirmative action programs must meet Strict Scrutiny:
iv. Federal affirmative actions programs must meet Strict Scrutiny:
v. NEW STANDARD FOR THIS TYPE OF CASE
1) CONGRUENCE should apply the same standard vis-a-vis the federal govt. to the state
govts. when exploring constitutional propriety of affirmative action; should same standard be
applied to federal govt. as to the states
o Is there a difference in constitutional restraint b/w 14 th amendment and 5th amendment?
Yes, there is no EP clause in the 5th Amendment
i. OConnor - how does she get around the lack of EP clause in 5th Amendment to justify
that the federal standard is lower than the state standard?
a. She discusses Bolling v Sharpe its unthinkable that we would enforce
something against the states and not the federal govt. (thats an unequal standard)
EP clause doesnt apply by its language to the federal govt, but unreasonable to
think that they wouldnt be held to the same standard as the states.
b. Congruence means same standard for race and gender discrimination cases
whether the state or federal govt is acting
c. OConnor would apply congruence in sex discrimination cases as well
2) CONSISTENCY
i.
Whether you are talking about discrimination directed at blacks or affirmative action
against whites, the standard of review needs to be the same
ii.
This means that the CSI test is the appropriate test for Race Discrimination whether
youre considering a racial discrimination statute or a racial affirmative action program
3) SKEPTICISM
Must engage in demanding skepticism when race is involved
vi. SUMMARY: After Adarand its easier to justify affirmative action based on gender/sex, than
on race (this means there is a less strict standard applied gender classifications -- than to race
cases seems ironic given the fact 14th Amendment was meant to protect blacks)
a. OConnor indicates she wants to alter CSI test slightly (could still pass benign things
under CSI test)
b. CSI test will be applied to affirmative action cases across the board, but doesnt mean
that all affirmative action programs are unconstitutional
c. When race is used either as benign or malevolent purposes (to either achieve or thwart
discrimination against traditional minorities -- consistency) it triggers the highest level of
scrutiny the level of review is the same for state and federal govt the test should
not be strict in theory and fatal in fact (shouldnt be impossible to pass)
d. WILL REQUIRE: significant proven demonstration of past discrimination and direct
and causal link b/w remedial program and the discrimination sought to be remedied must
be VERY CLOSE (very close connection b/w remedy and goal of eliminating past
discrimination)
e. AFFIRMATIVE ACTION IN COLLEGE ADMISSIONS
i. General Rule Colleges may use race as ONE factor among many in making otherwise
individualized admissions decisions

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1. However it is NOT permissible to add a significant number of points to the

applications of minority students solely because of race.
a. NO set-asides
b. NO racial quotas
c. NO automatic points added to minority applications
ii. Racial classification must be narrowly tailored to achieve a compelling interest.
1. Diversity is a compelling state interest in the university setting only
a. In other contexts racial classifications in affirmative action may ONLY be
used to remedy past intentional discrimination
2. University context is unique First Amendment and educational autonomy make
achieving a diverse student body a compelling interest to open the channels of
opportunity and success
iii.

Upholding Racial Classification as Plus Factor in College Admissions:

Grutter v. Bollinger: Court upholds Michigan Law Schools affirmative action program that
looks to achieving classroom diversity through admitting a critical mass of
underrepresented minorities. OConnors Holding The Law Schools critical mass
program passes strict scrutiny because it is narrowly tailored to achieve a compelling state
interest in classroom diversity. Law School uses Race as only ONE factor among many in
making an individualized admissions decision. Further, Law School adequately considered at
race-neutral alternatives to achieve diversity goals. Court gives deferential treatment to
educational admissions. Court is adopting Powells Bakke Rule (deeming diversity in
education a CSI as well as preparing students for workplace and incorporates ideas of
Carolene Footnote 4 public universities provide disproportionate access to leadership
opportunities for those who attend and cultivate leaders, thus state has a compelling interest is
making education accessible to all segments of society) and asserts that all race-conscious
admissions programs should be temporary (no more than 25 yrs)
Thomas Dissenting Diversity is NOT a compelling state interest. All use of race in
admissions is noxious under the constitution. Critical Mass is just a masked racial
quota. There are race-neutral alternatives.

iv. Rejecting Race Classification Adding Automatic Point Allocation for Minorities
v. Rejecting use of Race Classification to Racial Balancing in K-12 Schools
1. General Rule Schools may NOT look to Race alone in making attendance zoning
decisions, but must include individualized factors.
a. Majority is hesitant to extend Grutter to K-12 schools. Questionable whether
diversity is a compelling interest in K-12. (still have right to education regardless;
just alters the school you attend)
i.
Roberts and Alito have very narrow view of diversity as a compelling
interest to justify racial classifications.
ii.
Roberts doesnt deem this a CSI the only CSI for him are war and
higher ed cases that require a diverse student body (Bakke and Grutter)
iii.
Roberts deems the use of race as impermissible in this situation b/c :
a. Odious to a free people instills notion of hostility and inferiority
b. "The way to stop discrimination on the basis of race is to stop discriminating
on the basis of race."
This makes one skeptical that he would think race is a permissible
delineating factor

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b. Majority is unwilling to use racial classifications to remedy de facto segregation

without proof of intentional discrimination.
1) Believes achieving a diverse student body is a CSI for higher education as well as
K-12 education
2) If a school district is faced with de facto segregation, then they can pay attention
to this and act voluntarily to ameliorate the problem

ALIENAGE CLASSIFICATIONS immediately suspect

I.

ALIENAGE CLASSIFICATION DEFINED

a. Alienage Classifications Refers to discrimination against non-citizens
i. Equal Protection Clause Aliens are protected from discrimination because the 14 th
Amendment explicitly states that no person shall be denied equal protection.
1. Yick Wo v. Hopkins (1886) Court declared that the 14th Amendment applies to all
persons and not just citizens. Thus, States may not deny equal protection to aliens.

II.

STRICT SCRUTINY AS A GENERAL RULE

a.

III.

Strict Scrutiny is generally used to evaluate a State governments alienage classifications

i. Discrimination against non-citizens must serve a compelling state interest
1. Alienage classifications are immediately suspect
2. Non-citizens are a prime example of a discrete and insular minority
a. Aliens cannot vote no recourse to political process
3. The conflict over allocation of power b/w state and federal government creates the
problem of allowing aliens in the country and then limiting their rights (must prevent this
from happening)
4. The Equal Protection Challenge: State may or may not have to give me these rights, or
have program in first place, but if you do them then the state of Arizona cant treat me
differently than my neighbor next door (if you choose to have a system/program, then the
demand of equality is triggered)
5. 14th Amendment provides equal treatment for all persons, not just citizens

TWO EXCEPTIONS
a. Exception #1 Congressionally Approved Federal Alienage Classifications
i. Only rational basis review used for federal laws drawing alienage classifications
1. Congress has plenary power over immigration and aliens
b. Exception #2 Alienage Classifications Related to Self-Governing and Democracy (Political
Function Exception narrow exception to the rule that alienage triggers strict scrutiny)
i. Only rational basis review is used for alienage classifications related to Self-Governing and the
Democratic Process ( defining their political community)
ii. Alienage discrimination is permissible in jobs involving public policy discretion
iii. Court has declared that a a democratic society is ruled by its people
1. Thus State may deny aliens the right to vote or hold political office, or serving on
juries.
2. The court has altered the level of scrutiny to find these self-government interests
compelling and only requires a rational basis
c. Exception 1: Federal Medical Insurance Program
i. MATHEWS v. DIAZ (1976), the U.S. Supreme Court applied relaxed scrutiny in upholding the
validity of a federal statute that conditioned an alien's eligibility for participation in a federal
medical insurance program on the satisfaction of a durational residency requirement (of 5 years),

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but imposed no similar burden on citizens. The Court emphasized that Congress, as an aspect of
its broad power over immigration and naturalization, enjoys rights to distinguish among aliens
that are not shared by the States.
ii. Equal Protection Claim: govt. treating those here less than 5 years one way and those here more
than 5 years differently (NOTE: if this had been a state action it would be unconstitutional)
iii. HELD: this IS constitutional for Federal Govt. to do
iv. Does this mean that 5th/14th Amendment doesnt apply to federal govt.?
o NO. it just means that Congress has plenary authority to limit/condition immigration
o Court will thus, NOT apply the CSI test
Hampton v. Wong: Alienage discriminatory laws adopted by executive agencies, however, will
remain under strict scrutiny, ALTHOUGH if they are adopted by federal law or by presidential order,
then they may under rational basis.
IV.

BASIC POLICY DEBATE

a. What Level of Scrutiny is Appropriate for Alienage Classifications?
i. In Favor of applying strict scrutiny
1. Classifications based on alienage (like race) are inherently suspect
2. Aliens are a prime example of a discrete and insular minority
a. Aliens cannot vote and thus cannot resort to the political process.
b. Carolene Products a disenfranchised minority is vulnerable and heightened
judicial review is necessary to make sure discrimination is necessary and not
simply a reflection of prejudice.
ii. Against strict scrutiny to Alienage Classifications
1. Critics argue that alienage is different than race/gender b/c alienage is NOT immutable.
(aliens can become citizens in relatively short time)
2. States should have more latitude to preserve benefits for citizens
b. Are the Exceptions to strict scrutiny review justified?
i. Congress must be given deference to deal with foreign policy
ii. But denying aliens the right to vote when they pay taxes is problematic

V.

UNDOCUMENTED ALIENS AND EQUAL PROTECTION

a. General Rule Illegal immigrants are NOT an inherently suspect class and the court will apply only
rational basis review to laws discriminating against illegal aliens.
i. However Children of illegal immigrants have characteristics that are similar to other
inherently suspect classes (did not choose to come here, immutable, etc).
ii. Illegal Immigrants are persons protected under the 14th Amendment and are guaranteed due
process of law.
iii. States may NOT deny public education to children of illegal immigrants
1. Irrationality No one benefits from the creation of an illiterate underclass who
would drain other resources later on (welfare, crime, etc).
b. Plyler v. Doe (1982): Texas law provided free education for children of citizens and documented aliens.
However, the law denied free education to children of illegal immigrants. Holding Court invalidates
law denying education to children of illegals. Although the court does NOT treat illegals as a suspect
class the court does engage in rational basis review with teeth. Court points to the importance of
education, though it explicitly states that education is NOT a fundamental right. Further, children of
illegal aliens are innocents and it is unfair to punish them for their parents deed. Court concludes there is
no legitimate government interest in producing an illiterate underclass.
i. Plyler has never been overruled.
1. However Court has NOT extended Plyler to Higher Education to allow children of
illegal immigrants to go to community college (in-state tuition).

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OTHER CLASSIFICATIONS THAT TRIGGER HEIGHTENED SCRUTINY

I.

HEIGNTENED SCRUTINY UNDER THE GUISE OF THE RATIONAL BASIS TEST

i.
1.

ii.

Examples Laws Invalidated as Arbitrary and Unreasonable (rare)

Court has rarely found laws to be so arbitrary and unreasonable as to fail rational basis
review thus the classifications violate Equal Protection.
a.
The court does NOT want to create new suspect classes or apply an elevated
standard of scrutiny here
b.
Thus court will apply rational basis review w/ more bite to invalidate
government classifications that seem hostile
c.
Mere desire to harm an unpopular group is NOT a legit purpose
d.
Cleburne
Example Rare case invalidating law b/c did NOT serve legitimate purpose (See Above):
1. Romer

Age Classification: although it is immutable and highly visible, the court has still generally held that rational
basis review is the standard.
Mass. Board of Retirement v. Mergia: rationally furthers a legitimate state goal of ensuring the physical health
and vitality of uniformed police officers.

Disability Classification:

Wealth Classification:

o
o

City of Cleburne, Texas v. Cleburne Living Center: Must be rationally related to a legitimate govt.
Held constitutional an ordinance that required a special permit to operate a group home for the mentally
disabled. Although such laws go under Rational Basis Review, the American with Disabilities Act broadly
prohibits such discrimination.
Dandrige v. Williams: Held rational basis was the proper level, and upheld a law that limited the amount
of welfare benefits that a family could receive, regardless of how many people it was. Said the law related
to economics and social welfare; the court believed the argument that the state's interest in allocating
scarce public benefits as justifying the law.

Sexual Orientation Classification:

SCOTUS has not officially established that heightened scrutiny is proper. Immutable? Some say the court can
consider the laws as a gender discrimination because it deals with the issue of the traditional female "role" and
challenges that role of the masculine.
History of discrimination?
Political Power?
Discrete/insular minority?
Slippery-Slope problems?
Romer v. Evans: Rational basis review is proper, but the court found that the Colorado law (amendment 2) failed
that review because the law had specifically imposed a broad and undifferentiated disability on a single group of
people. There was no legitimate reason for denying LGBTQ people the same use of the political process and
protection under the law

PROTECTION OF PERSONAL LIBERTIES UNDER THE EP CLAUSE:

D. EDUCATION: PROTECTION FOR A RIGHT TO EDUCATION:
I.

General Rule Court has refused to recognize a fundamental right to education.

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a. Rational Basis Review Laws restricting the right to education or laws drawing classifications regarding
education are subject to deferential rational basis test.
i. General unwillingness to hold that there are constitutional rights to affirmative services provided
by government.
San Antonio Independent School District v. Rodriequez (1973): Court expressly rejected the
claim that education is a fundamental right and rejected a challenge to TX school funding scheme
based on local property taxes that resulted in disparities in school funding for poor districts.
(economic discrimination in education) Holding Court upholds the TX funding scheme and
rejects arguments that inequities in school funding violate Equal Protection as wealth
discrimination. Poverty is NOT a suspect class nor is education a fundamental right. Thus
only rational basis review is appropriate.
ii. Why did the court make this decision? --- Completely CONTRARY to ideas of equal
opportunity, especially with respect to earlier cases weve looked at
1. Court looks at what theyve already done they have already decided race discrimination
Court has interfered in past and it hasnt necessarily turned out well
2. SCOTUS leaves it to the states to work it out (states should work it out
FEDERALISM) Dramatic disparities in education funding have gone
unaddressed as a result
b. However Court has recognized that education is uniquely important because it provides basic tools to
maintain our basic democracy institutions and lead productive lives.
i. Public education is more fundamentally important and distinguishable from mere government
benefits like social welfare.
1. Brown v. Board Recognizes education as playing a fundamental role in the fabric of
our society. Most important function of state governments.
2. SUMMARY:
Court is trying to limit the scope here much more likely to have a fundamental right
declared prior to San Antonio v Rodriguez
No more fundamental rights after this case fundamental rights must be implicit or
explicit in the text of the Constitution
Could also announce that the court is finished with fundamental rights
HOW TO DETERMINE WHETHER A RIGHT IS FUNDAMENTAL UNDER
EP: must assess whether there is a right to education explicitly or implicitly in
the Constitution
3. Plyer v. Doe declares unconstitutional a texas law denying public education to
children of illegal immigrants.
a. States may NOT deny public education to children of illegal immigrants
b. Irrationality No one benefits from the creation of an illiterate underclass
who would drain other resources later on (welfare, crime, etc).
Plyler v. Doe (1982): Texas law provided free education for children of citizens and documented aliens.
However, the law denied free education to children of illegal immigrants. Holding Court invalidates
law denying education to children of illegals. Although the court does NOT treat illegals as a suspect
class the court does engage in rational basis review with teeth. Court points to the importance of
education, though it explicitly states that education is NOT a fundamental right. Further, children of
illegal aliens are innocents and it is unfair to punish them for their parents deed. Court concludes there is
no legitimate government interest in producing an illiterate underclass.
c. Even though education is NOT a fundamental right, court doesnt use RBT instead uses an intermediate level of scrutiny
d. Majority (Brennan) Depriving education this interest is crucial

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The burden is so harsh and the justification is SO thin/lousy thats it

unconstitutional
e. The ONLY time we get a true balancing on the court harsh burden outweighs
justification (Like what Marshall and Brennan have been calling for)
NOTE: this case hasnt borne any other progeny for intermediate scrutiny
(Marshalls analysis)
i. Plyler has never been overruled.
1. However Court has NOT extended Plyler to Higher Education to allow children of
illegal immigrants to go to community college (in-state tuition).
c. State Courts Some States have recognized a fundamental right to education under their state
constitutions and have concluded that inequities in school funding are impermissible
ii. Leandro Case in North Carolina

CHAPTER 11: The SCOPE OF THE LIBERTY AND PROPERTY PROTECTED

BY THE DUE PROCESS CLASUE
I.

PROCEDURAL v. SUBSTANTIVE DP BOARD OF REGENTS OF STATE COLLEGES ET AL. v.

ROTH
SUBSTANTIVE CLAIM: Im fired b/c I spoke out against the administration or I was fired b/c Im gay =
substantive DP (specific constitutional amendment, but relates to specific facts of the case)
PROCEDRUAL CHALLENGE I have a procedural opportunity to contest my firing; a right to be heard
-- they fired me without the opportunity to contest what they found wrong; no statement of reasons why I
wasnt rehired
This focuses on the exercise of government power directed toward one particular person

FUNDAMENTAL RIGHTS and PERSONAL LIBERTIES UNDER DUE PROCESS

I.

THE CONCEPT OF FUNDAMENTAL RIGHTS

a. Fundamental Rights The Court has held that some liberties are so important that they are deemed to
be fundamental rights and that generally the government cannot infringe upon them unless strict
scrutiny is met.
i. The court is NOT worried about a suspect classifier, but about the right involved.
b. Only major difference in finding something is protected under DP or EP, is the language in the argument
to challenge it.
i. If is protected by EP: then you are asking whether govt discrimination as to who can exercise that
right is justified by a sufficient purpose.
ii. If is protected by DP: then you are asking whether the govt.s interference with an individuals
rights is justified by a sufficient purpose.
c. Non-Textual Fundamental Rights
i. Many of the rights deemed to be protected under the Due Process Clause of the Fourteenth and
Fifth Amendments are not mentioned in the text of the Constitution.

II.

THE NINTH AMENDMENT

a. Ninth Amendment The enumeration in the Constitution of certain rights, shall not be construed to
disparage others retained by the people

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i. Ninth Amendment is not generally seen as source of rights, but to provide a textual justification
for the Court to protect non-textual rights like the right to privacy.
III.

FRAMEWORK FOR ANALYZING FUNDAMENTAL RIGHTS

a. Is There a Fundamental Right?
i. YES, then strict scrutiny applies. Compelling interest with law that narrowly seeks to accomplish
this objective. NO, then rational basis review applies. Legitimate purpose. Vanilla EP claim
ii. Carolene Products Theory defer to legislature unless there is discrimination against a
discrete and insular minority or infringement of a fundamental right.
iii. Originalists fundamental rights are limited to liberties explicitly stated in the text or clearly
intended by the framers. (look to tradition and history) [Black and Scalia]
iv. Non-Originalists believe it is permissible for Court to protect non-textual/implied rights
b. Is the Constitutional Right Infringed?
i. Court looks to the directness and substantiality of the interference if YES, then automatic
strict scrutiny no matter the classification
c. Is there Sufficient Justification for Governments Infringement of the Right?
i. For fundamental right state must show a compelling interest to justify infringement
d. Is the Means Sufficiently Related to the Purpose?
i. State must show it could not attain the goal through any less restrictive means

PROTECTION OF REPRODUCTIVE AUTONOMY: RIGHT TO PURCHASE AND

USE CONTRACEPTIVES
I.

Griswold v. Connecticut (1965) Defining the Right to Privacy

a. Due Process Case Court declared unconstitutional a state law that prohibited the use and distribution
of contraceptives by finding a fundamental right to marital privacy
i. Post-Lochner Court applies rational basis review to substantive due process challenges
unless the law implicates fundamental rights triggering strict scrutiny.
ii. Justice Douglas FDR puts him on court to stop the inventing of rights during the Lochner
Era. Douglas wants to find a textual basis for rights and avoid substantive due process.
b. Majority Opinion Justice Douglas
i. The Right to Privacy Douglas interprets a right to privacy as implicit in the many specific
textual provisions of the Bill of Rights (First, Third, Fourth, Fifth) create a Zone of Privacy
ii. The Bill of Rights have penumbras which emanate and protect zones of privacy
1. Right to privacy is older than the Bill of Rights
a. Looking to history and tradition protecting sacred marital privacy and rights of
the bedroom
b. Bases decision on concept of whats important for the American scheme
(selective incorporation theory) of ordered liberty
2. Thus the law banning sale of contraceptives violated the right to privacy in
prohibiting married couples from using contraceptives in the bedroom.
c. Justice Goldberg Concurring Emphasizes the Ninth Amendment as the authority for the court to
protect non-textual rights such as the right to privacy implied notion of liberty in 9th amendment and in
fundamental notions of Constitution no need for specific language in B of R
d. Justice Black Dissenting NO text in the Constitution regarding a right to privacy

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i. Unelected judges are making up rights and enforcing them on the people contrary to the
democratic process. Non-textual Rights can only be created by Amendment.
e. Level of Review: Court deems this a fundamental right and thus uses heightened scrutiny
f.

II.

Note: this case presented a classic example of 3rd party standing exception b/c the doctors were able to
present the rights of the patients
i. Allows doctors to assert claim on behalf of their patients (b/c its not the doctors constitutional
right being asserted here)

Eisenstadt v. Baird (1972) Extending the Right to Privacy to non-married couples

a. Equal Protection Case Court declared unconstitutional a state law prohibiting distribution of
contraceptives to unmarried persons, but allowed doctors to give them to married people.
i. Holding The court finds the law violates Equal Protection because it discriminated against
non-married individuals in exercising a fundamental right to privacy
1. If the right of privacy means anything, it is the right of the individual, married or single,
to be free of government interference in decision to have a child
b. Eisenstadt is a big step Court extends right to privacy to non-married individuals
i. No history or tradition supports this non-textual right outside of marriage!

FAMILY and MARITAL RELATIONSHIPS

I.

PATERNITY RIGHTS
a. Michael H. v. Gerald D. (1989) Limitations on what types of interests can receive protection under
the DP clause of the 14th Amendment
i. FACTS: Michael D had a relationship and fathered a child with a woman who was married to
another man. Michael used a blood test to establish that he was the natural father of a certain child
challenged state courts denial of his request for parental and visitation rights, which denial was
based on a California presumption that a child born to a married woman living with her husband is
the child of that marriage.
ii. Right asserted Michael wanted visitation rights to see daughter and prove he was the father,
BUT Calf. law created the irrebuttable presumption that a child born to a married woman living
with her husband is the child of that marriage (after 2 years from the time of birth)
b. Scalia Uses a rational basis test and upholds constitutionality of law
i. Rationale: In order to receive the protections of the substantive due process under the 14 th Amendment,
an asserted liberty interest must be both 1) a fundamental interest and 2) one that has been traditionally
protected by American society.
ii. No history or tradition of protecting paternity rights in this type of situation and thus this was not
deemed a fundamental right to privacy and only triggered the RBT
iii. Level of Generality of the Claim: Scalia says the right must be defined at lowest level of
generality (very specific level of abstraction) --- aka, exactly as it is: Have we recognized the right
of an interloper to a marriage to take a baby he has fathered away from married couple?
c. OConnor and Kennedy (Concurrence)
i. Disagree with Footnote 6 What is the level of generality that is the acceptable basis for defining
scope?
ii. OConnor and Kennedy Argue that we should protect rights at a HIGHER level of generality
b/c otherwise you diminish the nature of the right and it doesnt accurately describe how weve
handled past cases we describe rights more generally
Examples: (Roe v Wade and Eisenstadt v Baird: What is true for married couples in Griswold
is also true for a single woman around 25 years of age right to use contraceptives)

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iii. IN THIS CASE: Court starting to determine how (much more) broadly you can employ
constitutional decision making than just as applied to the mere facts in front of you --HOW BROAD IS THE DEFINITION OF RIGHT?
d. Brennan, Marshall, Blackmun (Dissent) Court limits that which may be a fundamental right
protected in a substantive sense by the DP clause to certain traditional liberties
i. However, with a progressive, evolving society, nontraditional rights may become more fundamental
(this is such a right and the majority takes too narrow of an approach)
II.

RIGHT OF PARENTS TO CONTROL UPBRINGING OF THEIR CHILDREN:

Myer v. Nebraska: A state may not prohibit the teaching of foreign languages to a young child in school
when such teaching has been requested by the childs parent because this interferes with the fundamental
liberty interest of a parent to control his or her childs education. While a legitimate purpose, the means
adopted (the total prohibition of teaching German in schools before the eighth grade) is overbroad and not
closely related to the achievement of this purpose
Peirce v. Society of Sisters: Requiring children to be educated only by public instruction violates the
Fourteenth Amendment of the United States Constitution. No reasonable relationship is shown in this case.
There is no evidence that private education is harmful

III.

PARENTAL RIGHTS
a. Buck v. Bell: initially rejected the use of strict scrutiny; upheld a law that required sterilization
b. Skinner v. Oklahoma (1942) Recognition of the importance of the right to bear children and
maintain a family.
HOLDING A state law requiring forced sterilization of criminals convicted 3 time of crimes of moral
turpitude unconstitutionally infringes on the fundamental rights of marriage and procreation and violates
the Equal Protection Clause of the Fourteenth Amendment.

THE RIGHT TO ABORTION

I.

THE RECOGNITION ABORTION RIGHTS

a. Roe v. Wade (1973) Recognition of Abortion Rights under Right to Privacy
i. Where Fundamental Rights are infringed Court uses strict scrutiny review:
1. Compelling Interest Test Law must serve a compelling state purpose and must be
narrowly tailored to achieve that purpose.
2. Right to Privacy No textual provision, but implied from zones of privacy protected
by other provisions in the Bill of Rights.
b. Blackmuns Majority Opinion The Right to Privacy is broad enough to encompass a womans
decision to terminate her pregnancy. Thus there is a right to abortion.
i. However The right to abortion is NOT absolute.
1. Right of privacy must be considered against important state interests in protecting the
mothers health and in protecting unborn life of fetus.
ii. Thus the Constitution protects a right to choose an abortion prior to viability. The government
may NOT prohibit abortions prior to viability and government regulations must meet strict
scrutiny.
iii. NOTE: After this case the court stops arguing about where the right to privacy is
grounded/comes from in the Constitution, but shifts the focus to how broad the right is and what
its justification is also focus on enforceability
c. Roes Trimester System (Compromise approach):

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i. First Trimester Woman and her doctors can make the abortion decision free from intervention
from the state; the right of the fetus and the health of the mother are not compelling interests yet
(strict scrutiny applies)
ii. Second Trimester The States compelling interest in protecting the health of mother is
triggered and the State may regulate the abortion in ways that are reasonably related to mothers
health (licensing doctors, procedures, etc).
iii. Third Trimester After the fetus reaches viability, States compelling interest in protecting
unborn life is triggered, and the State may regulate and even outlaw abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the life or health of the
mother.
d. Dissent: White and Rehnquist:
i. This case is NOT within the reach of the privacy cases the Court has already decided (different in
kind than aspects of rights to privacy that weve already defined)
ii. Summary: Right to abortion not protected by 1) text of constitution or 2) any historical
practice/justification beyond the constitution; therefore, this is judges enforcing rights without
warrant
II.

CRITICISM OF ROE v. WADE:

a. Conservative Criticism:
i. Why does the States interest in fetal life only begin after viability?
ii. Rigid trimester framework is inconsistent with broad constitutional principles
iii. Right to Privacy is a non-textual right that is a judicial invention
iv. Abortion question is best left as a political question

III.

MODERN ABORTION RIGHTS UNDUE BURDEN STANDARD

a. Planned Parenthood v. Casey (1992) Undue Burden Standard
i. Court reaffirms the essential holding of Roe but overturns the Trimester scheme
1. Recognition of the right of a woman to choose abortion before viability and obtain it
without undue influence from the State
2. Confirmation of the States power to restrict abortions after fetal viability, if the law
contains exceptions for the mothers life or health
3. Confirmation of States legitimate interests from the outset of pregnancy in protecting
the health of the mother and the life of the fetus
b. OConnors Plurality Opinion:
i. Reaffirms 14th Amendment Due Process Clause includes implicit right to privacy
1. OConnor rejects originalist view that fundamental rights can only be found in textual
provisions of the Constitution.
ii. OConnor argues that Roes central holding should be affirmed:
1. Obligation to follow stare decisis
2. Importance of the right to abortion
3. Framework of Roe is NOT unworkable (unlike Lochner Era)
4. Need to protect Reliance by women on Roes holding.
iii. However Trimester System undervalued States interest in protecting fetal life
1. OConnor rejects the trimester system and replaces it with undue burden (this case
places greater emphasis on the recognition of the states rights) and used a less strict
scrutiny approach

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c. The Undue Burden Standard New Standard of Review

i. Undue Burden where a regulation has the purpose or effect of placing a substantial
obstacle in path of woman seeking an abortion of a non-viable fetus
1. State is permitted to 1) make sure the choice is more thoughtful and informed;
2)
make the right to abortion more difficult to exercise or more expensive to obtain; and 3)
create a structural mechanism to persuade/encourage her to choose birth
ii. Prior to Viability State may regulate abortions even prior to viability unless the regulation
places an undue burden on access to abortion.
1. IC provision was permissible
2. Consent delivered by doctor and 24 hour waiting person were reasonable
3. Reporting requirements were permissible
4. Parental Consent requirement was permissible
5. Spousal Notification = NOT permissible
iii. Post-Viability state may regulate or prohibit a woman from getting an abortion. However, the
regulation must include an exception for the womans life or health
IV.

GOVERNMENT REGULATION OF ABORTIONS

a. Gonzales v. Carhart (2007) Upholding Federal Ban on Partial Birth Abortion
i. D&E Procedure Most common 2nd trimester abortion technique (evacuation)
ii. D&X Procedure Controversial abortion technique (extraction of parts)
iii. After OConnor is replaced by Alito, court upholds a federal abortion law.
iv. Holding The Federal Partial Birth Abortion Ban is constitutional under the undue burden
standard because it contains more specificity (clears up vagueness in Steinberg) about which
procedures are banned by giving anatomical landmarks and requiring intent by doctor
before prosecution.
1. Court also holds statute does NOT require an exception for the health of the
mother because it only precludes ONE type of abortion procedure.
a. There is medical uncertainty over whether the banned D&X is ever necessary
to save a mothers health. Thus the court will NOT invalidate this law on a
mere facial challenge.
b. NO UNDUE BURDEN b/c women have other options for late term abortions
other than the intact D&E procedure
c. NOTE: no wholesale adoption of the Casey standard in this case leaves
question open as to whether the Casey standard is constitutionally grounded
v. Key Points:
1. Court gives more deference to Congress factual findings on safety of procedure when
there is medical uncertainty about the necessity of D&X (need to protect medical
community and their expertise and reputation)
2. Court is unwilling to invalidate a law on a mere facial challenge, rather than in an as
applied challenge. (could be an as applied situation where the lack of intact D&E has
impact on health of woman and thus would be unconstitutional when applied to particular
facts)
3. Greater concern for the right holders long term physiological and psychological health

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4. Court seems more receptive to States interest in dignity of human life and brutality
of the procedure new avenues to attack abortion rights???

THIS CASE SIGNALS A SHIFT IN THE COURT: Gonzales was widely interpreted as signaling a
shift in Supreme Court jurisprudence toward a restriction of abortion rights
MODERN DAY: What is the state of abortion law now? The right to privacy?
What is the standard of review now?
Undue burden (instead of compelling state interest test) from Casey
o Casey -- you can notify woman as well as try to persuade her to take pregnancy to term
And legitimate state interest test from Gonzales
o Greater deference/wider range of interest of state in restricting abortion process
o Claims of coarsening and moral aspects are added as legitimate state interest

Substantial/Undue Burden Test vs. Compelling State Interest vs. Overturning Roe v Wade
Scalia, Thomas youve hung right to abortion on a right to privacy in the Constitution and the
constitution doesnt speak to this issue (would still vote to overturn Roe v Wade)
Roberts, Alito unwilling to accept undue burden test
Ginsberg, Stevens, Souter/Sotomayor, Breyer --- support Casey Undue Burden Standard, but
probably more --- they may also support the Compelling state interest test (Roe standard) (b/c its
more protective of womans right to choose)
[undue burden (Casey) + CSI (Roe rigid trimester)]
Kennedy signed on to Casey, but expresses reticence in Gonzales
Embraces Undue Burden with some broader categories of state interest that could be weighed
against exercise of constitutional right to abortion

PROTECTION FOR SEXUAL ORIENTATION AND SEXUAL ACTIVITY

I.

Lawrence v. Texas (2003) reaffirms constitutional protection of non-textual right to privacy and holds
that states may not prohibit private consensual sexual activity between consenting adults of the same sex.
Sexuality is fundamental aspect of personhood
a. Lawrence expressly overrules Bowers v. Hardwick (1986)
i. In Bowers court ruled that the right to privacy does NOT protect a right to engage in private
consensual sodomy (Georgia law applied to both homo and hetero sex)
1. Bowers held that right to privacy only pertained to matters of family, marriage, and
reproduction which did NOT fit with homosexual activity. (moral disapproval was the
rational basis for the law no fundamental right or heightened level of scrutiny used)
a. Originalists Court should protect rights as Fundamental only if they are
supported by:
i. the Constitutions text,
ii. the framers intent, or
iii. a tradition of being safeguarded.
b. Dissent: morality not enough to force religious views on everyone (although it
doesn't completely disregard morality as a consideration, just not for a matter of
private conduct)
b. Lawrence v. Texas Kennedys Majority Opinion:
i. Both a Due Process and Equal Protection Challenge

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ii.

i.

ii.

iii.

1. Due process challenge state cant regulate my liberty (right to engage in intimate
behavior) state cant come in and regulate my personal conduct
2. Equal Protection state may or may not be able to regulate sodomy (substantive right),
but focuses on the comparative approach and cant say its okay for one group and not
another
Kennedy argues that the liberty protected by the Due Process Clause of the 14th Amendment
extends to consensual homosexual activity and expressions of sexuality
1. However Kennedy does NOT articulate a level of scrutiny
a. Court did NOT speak of a fundamental right or strict scrutiny
i. But Kennedy did rely on right to privacy cases where strict scrutiny
has been used before.
b. Court seems to engaged in some kind of heightened scrutiny
i. TX justified law as advancing moral judgment which has traditionally
been enough for rational basis review
ii. Courts rejection of morality implies a higher scrutiny
1. Moral hatred of unpopular group is NOT a rational basis for laws
infringing on privacy.
iii. Court is reluctant to create new fundamental rights or new suspect
classes
2. Kennedy rejects originalism Text, Intent, Tradition is NOT dispositive
a. Our notions of liberty do change
b. Living Document approach to Constitution
i. Development of liberty is important and there should be adaptation over
time --- evolving awareness of intimate bond and importance of the right
ii. Is it okay to give this level of authority to judges? allows them to
enforce THEIR VISIONS of liberty and equality over other elected
branches of govt.
iii. This case embraces an evolving sense of Constitutional liberty (like
Grisw, Roe and Eisns)
c. Kennedys opinion crucially grounded the right of consenting adults to have sex
on how intimate and personal the conduct was to those involved, not on the
conduct being traditionally protected by society (as in Bowers), procreative (as in
Eisenstadt and Roe), or conducted by married people (as in Griswold). He
eloquently says: Autonomy of self & Dignity; Intimate sexual conduct in
home (or other private place). Quotes Casey: the right to define ones own
concept of existence, of meaning, of the universe, and the mystery of human
life.
The state has NO legitimate interest to enter peoples private lives and prohibit individual
expressions of sexuality and personhood
1. Bowers misconstrued the liberty at stake It demeans homosexuals to speak in terms
of the only liberty asserted is to engage in sodomy
2. Rather sexuality is an expression of personhood and is protected by the right to
privacy. (Bowers failed to recognize the impact the denial of this right would have)
Two cases support overturning Bowers: Casey (constitutional protection for personal liberties)
and Romer (struck down class-based legislation directed at homosexuals as violation of EP
clause)
Majority HOLDS: "the Texas statute furthers no legitimate state interest which can justify
its intrusion into the personal and private life of the individual," this is a Constitutionally

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protected right to privacy right to engage in private, homosexual, consensual conduct (No
standard explicitly set forth, seems more than RBT some elevated form of scrutiny; doesnt
alter RBT, but says this statute is simply irrational)
iv. Kennedy expressly says this case does NOT require gay marriage recognition

d. OConnors Concurring Opinion

i. OConnor wants to strike down the TX law as violating Equal Protection
1. Law treats same conduct differently based solely on sexual orientation
2. States classification must have a rational basis but pure animosity toward
an unpopular group is NOT rational justification to support the state drawing
such classifications
e. Scalias Dissent
i. Court is extending protection to a right to engage in homosexual sex when there is NO
textual provision, NO evidence of Framers intent, and NO tradition supporting
protection of the right. (advocates strictly historical, not evolving approach)
ii. Court has switched sides from Casey Not respecting Stare Decisis anymore
iii. Court should use restraint and leave this to the democratic process:
1. Decision calls into question all laws based on moral judgment and laws restricting
marriage to heterosexuals
2. States can choose to give some rights to gays, short of marriage through
legislation. However once the court gets involved, then legal principles would
require logically extending protections for gay marriage!
f.

NOTE: Right to marry is a fundamental right that triggers heightened scrutiny

i. Thus, same sex marriage prohibition violates Lawrence v Texas (case says moral disapproval is
not a legitimate state interest)
ii. Does the right protected in Lawrence give shelter to claim that gays should able to marry and
have intimate relationship?
1. BOND of Intimacy (is the constitutionally protected right) -- then the formal recognition
of that bond is recognized in marriage --- this is not such a stretch
US. v. Windsor (2013): A federal statute excluding same-sex couples from the definition of marriage for
purposes of federal benefits is unconstitutional. Congress enacted DOMA, which governs the definition of
marriage in over a thousand federal statutes, in 1996 in response to efforts to legalize same-sex marriage.
Majority believes it is Animus. DOMA treats marriages of same-sex couples as second-class without any
legitimate interest justifying discrimination. Though Congress may enact laws that impact marriage,
regulation of marriage is within states exclusive power over domestic relations, subject to constitutional
limits. Because Eleven states have legalized same-sex marriage, DOMA departs from th[e]tradition of
reliance on state law to define marriage. The federal government denies equal treatment to a group New York
deems equal in status to opposite-sex married couples. This violates equal protection and due process. Those
guarantees require that Congress not discriminate merely to hurt a politically unpopular group. The purpose
and effect of DOMA are to disadvantage married same-sex couples. The legislative history makes this clear.
DOMA writes inequality into the entire United States code and ensures the disparate treatment of legally
married couples living within the same state. The moral and sexual choices of homosexuals are protected by
the Constitution. (Lawrence v. Texas).
Kennedy MO Language is very influential: NY came to recognize urgency of this issue Couples wanted
to affirm their commitment to one another before their children, their family, their friends, and their
community Right to marry and so live with pride in themselves Mentions dignity, demeaning, degrading,
and idea of evolving views: seems to be setting up for gay marriage down road. Windsor SDP argument:
based on a shift from a marriage model rooted in procreation and gender differentiation to one characterized
by mutual emotional support, economic interdependence, and community recognition
Level of Scrutiny? Seems NOT to decide (again!) whether classifications based on sexual orientation get
heightened scrutiny. Applies similar approach as Romer: Cant even survive rational basis review? Basically

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Scalia Dissent The sum of all the Courts nonspecific hand-waving seems to be a mixture of EP, SDP,
and a dash of some amorphous federalism Court has exalted view of its role. We should be especially
careful before assuming Congress and President are acting out of hate
Alito Dissent Cant possibly be a SDP claim. No history of such a right. No EP claim, either. Not similarly
situated. Totally rational to require two persons of opposite sex to have marriage.
Roberts Dissent Very worried about looking at legislative intent; Should not be so quick to embrace
animus rationale; Long history of banning same-sex marriage

II.

SCOPE OF RIGHT TO PRIVACY POST-LAWRENCE:

a. Right to Privacy still a limited category of rights in intimate decisions related to family
autonomy, procreation, contraception, sexuality and personhood, reproductive autonomy
i. However Right to Privacy does NOT include protections for assisted suicide, right
to have marijuana in your home, right to adultery, prostitution, etc
ii. General Rule the farther you get from textual or historical/traditional justifications for
the right, the less likely the court will be willing to protect it.

RIGHT TO MARRY:
Loving v. VA: cannot be upheld unless they are shown to accomplish a permissible state objective independent of the
racial discrimination. In the present case, there is no legitimate overriding purpose independent of invidious racial
discrimination that justifies Virginias classification.
Obergefell v. Hodges: Under the DP and EP Clause of 14A, state laws banning are unconstitutional: a.k.a states must
issue marriage licenses and recognize lawful out-of-state marriages for same-sex couples. Rationale Though marriage
has historically been viewed as between opposite-sex couples, the institution has changed over time, including through the
changing legal status of women. Similarly, while same-sex relationships were once forbidden, in Lawrence v. Texas, 539
U.S. 558 (2003), the Court held that same-sex couples had an equal right to intimate associations. Refusing to allow samesex couples to marry denies them a myriad of legal rights, including those related to taxation, insurance benefits, intestate
succession, spousal evidentiary privileges, child custody and support, etc. In this instance, the liberty interest protected by
due process intersects with the right to equal protection, and same-sex marriage bans violate both.
State Arguments Against Same-Sex Marriage:
o Traditional definition of Marriage (Alito argument)
o Will lead to fewer opposite-sex marriages by severing connection between marriage and procreation and childrearing
o Children are better off with mom and dad
o We dont know yet what will happen
o Argument against Slippery Slope:
[T]hese cases involve only the rights of two consenting adults whose marriages would pose no
risk of harm to themselves or third parties.
Kennedy (SDP rationale) view of role of HISTORY and TRADITION?: History a starting point but not ending point.
Times can blind can have new insights revealing liberty interests.
Reasoning for finding of Fundamental RightUltimately, the four principles underpinning the protection of the right to
marry apply equally to opposite and same-sex couples:
(1) the right to choose whether and whom to marry is inherent in the concept of individual autonomy;

o Loving; Griswold; and all other cases protecting contraception, family relationships, procreation, and
child-rearing for privacy and autonomy reasons
(2) the right serves relationships that are equal in importance to all who enter them;
o Avoid STIGMA of knowing their families are lesser (Sounds like Brown)
(3) assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation
and childrearing; and
o Gay couples often have biological and/or adopted children

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o Loving and supportive families

o Avoid uncertainty, harm, and humiliation
(4) lastly, marriage is the very keystone of our social order and foundation of the family unit.
o want society to support the couple
Rationale for EP: Seems kind of an after-thought. Does not declare standard of review. Seems to fold EP into SDP.
Roberts: The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow.

PROTECTION of PERSONAL AUTONOMY

Constitutional protection for Medical Care Decisions: Refuse Treatment/Physician Assisted Suicide
I.

Refuse Treatment: There is constitutional right to individuals to refuse medical treatment, BUT it is not
absolute and can be regulated by the statement.
a. Law upheld that required vaccinations; reasoned that state had compelling interest in preventing the
spread if the disease.
b. Struck down law requiring prisoners to take antipsychotic drugs; reasoned that the injection into a nonconsenting adult is an interference w/ their liberty
i. However, court ruled interference was avoided with proper notice and opportunity to present case
against recommendation of medical professional
ii. Although court generally agrees with this right, they have never explicitly indicated the level of
scrutiny it deserves.
Cruzan v. Director: A state may require that a guardian seeking to remove life-prolonging treatment prove by
clear and convincing evidence that the person in the persistent vegetative state would have wanted the
treatment withdrawn under such circumstances. Only competent person can refuse. Taking away life
sustaining treatment is different than requesting death inducing treatment.

II.

Washington v. Glucksberg (1997) Washington v Glucksberg and Vacco v Quill: SC rejected facial
challenges to state laws prohibiting aiding a suicide and the claim that there is a constitutional right to
physician-assisted suicide (the laws were upheld as Constitutional)
a. FACTS: Dr. Harold Glucksberg, a physicianalong with two other physicians, three terminally ill
patients, and the non-profit organization, Compassion in Dying, counseling those considering assistedsuicide challenged Washington state's ban against assisted suicide in the Natural Death Act of 1979.
They claimed that assisted suicide was a liberty interest protected by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
b. Rehnquists Majority Opinion:
i. On review, the United States Supreme Court held that history, legal traditions, and practice
support criminalizing assisted suicide. (argues for rooted in history approach to rights)
ii. History provides no right to assisted-suicide, and neither does Constitution because
assisted-suicide is not a fundamental liberty interest, it was therefore not protected under the
14th Amendment.
c. Due Process Interpretation:
Substantive Due Process analysis has 2 parts:
1. Due process clause protects fundamental rights and liberties deeply rooted in Nations history
and tradition and implicit in concept of ordered liberty (this idea doesnt easily fit Eisdt and
Roe ---- we adopted a middle ground b/c weve adopted some non-textual rights --- if we adopt
liberties that are non-textual, need to be grounded in history)
2. Fundamental liberty interest must described specifically to see if grounded in history, practice and
tradition
d. Level of Generality:
i. Rehq --- wants to describe right specifically (lowest level of generality) -- have we historically
given protection to the right of someone to assist in suicide?

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ii. Breyer much broader right --- have we given Constitutional protection to the right to die
with dignity? (the higher the level of the generality, the less you are able to claim that the right
is grounded in history)
e. RATIONALE:
i. Cruzan doesnt authorize right b/c idea that you can refuse treatment is different than taking an
affirmative act to take your life and have someone assist you in process
ii. Casey - Intimate personal decisions rooted in tradition/history --- Prosecution makes argument
here that this must also cover the end of life
Rehq says that this may be a similar right, but weve never protected it
Not one of historical pedigree
But the rights in Casey are procreative, but we need to limit how broad how we go
c. What standard?
i. RBT state has interest in preservation of human life
ii. Court concludes there is no fundamental right implicated by suicide ban, but is the law rationally
related to a legitimate state interest?
HOLDING the assisted-suicide ban was rationally related to a legitimate government
interest because Washington sought to preserve human life and for protection of public-health
interest
Law also upholds the integrity and ethics of the medical profession.
Additionally, Washington's statute sought to protect vulnerable groups, such as the poor,
elderly, and disabled from abuse, neglect, and mistakes and equally valued all lives.
Finally, the Court held that Washington's ban on assisted-suicide effectively prevented a
broader license to voluntary or involuntary euthanasia.
d. POTENTIAL PROBLEMS: These rights arent good candidates for significant judicial
intervention (unlike earlier cases)
This is a right we can entrust to the legislature and dont have to decide ourselves
Large part of decision not to constitutionalize right to decide the end of life
o By removing decisions from democratic process not always effective (as demonstrated by
beginning of life issues)
o How do you come up with a workable standard and rules?
o There shouldnt be pointed intervention b/c we will ALL face this one day
Here the legislature will be doing it to everyone equally, not to a specific group of
people (powerful incentive to do the best you can since all are affected)
The court will SAY:
You might have the right as applied, but not on the face as these cases (Cruzan and Washington) were
brought

Court treads tentatively Doesnt want to remove question from political process

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