F2009 Medina Con Law Outline

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Constitutional Law Outline

Medina
Fall 2009
Introduction to the Supreme Court and Constitutional Law: The U.S. Constitution and
The Role of the Judiciary – constitutional interpretation
POWERS OF THE BRANCHES OF GOVERNMENT AND HOW THEY INTERACT
I BACKGROUND
A. Our Constitution is influenced by the works of John Locke, who asserted a theory
of government followed by the Revolutionary leaders called the social contract.
This theory held that autonomous people get together to form a government to
protect themselves and their liberties against other individuals. Thus, individuals
give up some sovereignty for the protection, but do not give up certain inalienable
rights.
1. A written constitution is a way to limit the powers of the government and
to protect individual liberties.
B. The enumerated powers listed in the constitution establish the government’s only
powers.
C. The Constitution differs from statutes or codes
1. It is a broad, general structure.
2. Cannot be repealed, and there is a very difficult amendment process.
D. Many themes flow through constitutional law:
1. We have a limited government, evidenced through:
a. A written document
b. Enumerating powers afforded to the government.
2. Antimajoritarianism. The framers feared the majority. These wealthy
planters feared the masses taking over government. Examples:
a. Two senators are elected from each state; thus, it is the state that is
represented, not the people.
b. Electoral college can override the popular vote in an election.
c. The judiciary is appointed, not elected.
d. The Bill of Rights is the most precise protection of individual
rights against the majority.
3. Theories of Interpretation. It is difficult to interpret a document that was
written 200 years ago and intended for an agrarian society that no longer
exists. There are two approaches:
a. Original meaning of the language.
b. How it should be applied today.
4. Checks and Balances. For the greatest liberty, this structure allocating
powers ensured that no one branch could become a tyrant. The three
branches of government must check each other.
a. Article I: Congress, Article II: Executive, Article III: Judiciary.
1) Placement within the constitution is significant as to how it
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should be interpreted.
b. In order for the government to act, two branches of government
must be involved.
1) Ex: To pass a law, President must approve bill of Congress
2) Ex: To enforce laws, the Executive and Judicial branch are
involved.
c. Checks and Balances lead to conflicts between the branches and
between the state and local government.
E. History of the Constitution
1. First government operated under the Articles of Confederation. Under the
Articles, we had thirteen independent colonies, not a nation.
2. We needed a way to bring the states together and form a strong national
government. Constitutional convention was formed.
a. The goal of the Convention was to amend the Articles and give the
national government power over commerce.
b. Decided they needed to start over.
3. Because the Convention was held in secret, it is difficult to determine
intent in many cases.
II CONSTITUTIONAL INTERPRETATION: JUDICIAL REVIEW

A. Complicated for three reasons:
1. Absence of language – many areas of government action not addressed.
Must look to the rest of the language to determine why it is not there.
2. Vagueness of language – resulted from the many compromises at the
Convention.
a. Ex: what does “commerce” or “cruel and unusual punishment”
mean?
3. Political Policies – always interpret with the social and political
ramifications in mind.
B. General concepts of interpretation:
1. Originalism – what is critical is the intent of the framers.
a. Must go back to the period in which it was drafted to determine the
meaning then.
b. If it is not expressly addressed, then it is up to the states or Congress to
deal with.
c. Only way to change is through the amendment process.
2. Non-originalism – should interpret the Constitution in light of
contemporary circumstances.
a. Cannot limit the Constitution to what existed 200 years ago
b. Leaving unaddressed rights to the legislature is wrong because
fundamental rights should not be left to the whim of the majority.
c. Can evolve through interpretation.
3. Where should final interpretation occur? Theories:
a. No authoritative interpretation. Followed by Jefferson and
Jackson. Each branch has authority and any conflicts will be
resolved through the political process.
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1) Oppose judicial review. Feel that checks and balances are

enough.
b. Each branch has authority in its own area.
c. Judiciary is authoritative. This idea prevails today.
Article III
1. Establishes Supreme Court and gives Congress the power to establish
lower courts.
a. Gives appellate jurisdiction to the Supreme Court in all cases in
law and equity:
1) Arising under the Constitution,
2) Arising under the laws of the U.S.;
3) Arising under treaties made by the U.S.
4) All cases under maritime jurisdiction
5) Where U.S. is a party;
6) Controversies between two or more states;
7) Controversies between citizens of different states; and
8) Controversies between citizens of different and foreign states.
b. Supreme Court has original jurisdiction over the following cases:
1) affecting ambassadors and other public ministers,
2) where a state is a party.
2. States that Supreme Court judges will serve life terms during good
behavior and that their pay cannot be decreased. Federalist papers No. 78
(Hamilton)
a. Framers were probably trying to keep judges in office and avoid
political pressure and fear of losing position.
b. Protects ability to make impartial decisions.
3. Defines treason, the only crime mentioned in the Constitution. This is so
officials cannot use the crime to prosecute certain groups.
4. Establishes trial by jury
5. Does not, however, expressly grant to the courts the power to declare acts
of Congress unconstitutional.
6. The Constitution:
a. binds members of Congress;
b. the executive branch;
c. state governments; and
d. the Supreme Court justices
by imposing on them the responsibility of obeying constitutional requirements
even if the litigated case deals with the question.
7. The Constitution replaced the Articles of Confederation. It gave Congress

the power to wage and declare war, the power to regulate coins, to create
the U.S. Post Office, to deal with the Indians and appoint officers of
federal service.
8. The Articles were adopted shortly after the Revolution to ensure

unification of the states regarding common foreign and domestic problems
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with the understanding that each state would remain sovereign.
9. The Articles lacked the power:

a. to tax,
b. to regulate commerce; and
c. two out of the three branches were missing;
d. there was no executive authority;
e. there was no general national judicial authority, except
maritime; and
f. no Bill of Rights.
10. The Constitution changed the framework set up by the Articles of

Confederation:
a. it created the executive branch;
b. it granted to Congress the power
to tax and regulate commerce; and
c. created the Federal judiciary
including the Supreme Court and if Congress chose, the lower Federal
Courts
Marbury v. Madison (1801)-The Supreme Court has the power to declare laws
unconstitutional; “The Judicial power of the U.S. is extended to all cases arising under the
Constitution”.
Facts: President Adams was a lame duck when a Republican Congress

was replacing a Democrat Congress. Two acts of Congress created
new judgeships. Adams had the Secretary of State, Marshall, sign
the new judges’ commissions, but the commissions were not
delivered before Jefferson took office. Judge Marbury sued on writ
of mandamus to force the President to deliver the commission.
Marshall, wrongly, did not recuse himself from this case, despite
his involvement.
Issue: Did Marbury deserve the commission? If so, and that right has
been violated, does Marbury have a legal remedy? Is that legal
remedy a writ of mandamus?
Holding: Yes, he had a right to it. When the President signs the commission
and the Sec. Of State affixes the seal of the U.S. the appointee has
a vested interest in the commission. The law must afford a remedy
for the violation of a vested legal right.
Issue: Did the Supreme Court have the jurisdiction to enforce the writ of
mandamus?
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Holding: No. Even though a mandamus is proper in this case and the
Supreme Court has the power to issue writs of mandamus to any
person holding office, this statute conflicts with Art. III of the
Constitution, which does not grant original jurisdiction to the
Supreme Court over cases involving executive officers. If two
laws conflict the Court must decide the case conformably with the
Constitution. The Supreme Court can invalidate laws in conflict
with the Constitution.
Rationale: The Judiciary Act of 1789 established that the Supreme Court had
the authority to hear these writs. However, the Constitution
specifically lists where the Supreme Court has original jurisdiction,
and Marshall believed that the Act went against the Constitution.
Thus, the Act gave the Judiciary power beyond what the
Constitution did. Marshall declared the rule that the Judiciary has
the power to declare an act of Congress unconstitutional. He
reasoned as follows:
1. If the founders intended to give the Legislative branch the

discretion to add power to the judicial branch, they would have
stated so in the Constitution. Especially since there is language
that specifically addressed the issue. Why would founders include
this if the Congress could change it?
2. Further, the Constitution is the supreme law, according to

the Supremacy Clause in Art.VI, and we must respect it.
3. It is a permanent written document; it cannot be the

supreme law if Congress can change it.
4. It is the duty of the Judiciary because of the Judicial Oath

taken.
5. Judiciary must look at laws “arising under the

Constitution.”
6. Marshall did this because he feared impeachment, and

because if the President had refused to deliver Marbury’s
judgeship, it would have undermined the power of the judiciary
and ended in a constitutional crisis with each branch fighting for
power.
7. A more narrow reading of this case is that the courts have

this power when it comes to their own authority. This case dealt
with Art. III and the powers of the court.
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8. Marshall claims that (1) Court is given the power to issue a

writ, the act is unconstitutional because it is inconsistent with Art.
III because it has clauses which give the Court original jurisdiction
in certain cases and appellate power in certain cases.
9. The list in Art. III is exclusive and Congress can’t add to it,
so Congress can’t add
10. Thus to be consistent with Art. III, Congress can only issue
mandamus as an exercise of its appellate jurisdiction, therefore
Congress has no power to issue a mandamus because a statute
giving it power is unconstitutional.
11. The Court did not have jurisdiction therefor Marbury does not get
his commission. The statute is unconstitutional.
Rule: Courts are the final arbiters of the Constitution. WRIT OF

MANDAMUS DENIED.
NOTES: The Supreme Court has the power, implied from Art. VI, Sec. 2, to
review acts of Congress and if found to conflict to declare them
void.
Original jurisdiction- the power of a court to hear an action upon

its commencement
Appellate jurisdiction- the power of a higher court to review the

decisions of a lower court.
Regulation of Appellate Jurisdiction: Congress has created
two methods of invoking Supreme Court jurisdiction:
 Through appeal where jurisdiction is
mandatory; and
 By certiorari (at the Court’s discretion).
Generally a party must petition for cert. Cert
will be granted for final judgments or decrees
rendered by the highest court of a state for
issues involving the validity of a U.S. treaty, or
a state statute that could be repugnant to federal
law.
Judicial review- authority of the courts to review decisions,

actions or omissions by another agency or branch of government
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Writ of Mandamus- A court order issued commanding a public or

private entity or an official thereof, to perform a duty required by
law.
Vested right-a right that is unconditional, that cannot be taken

away from a party.
One of the most important dilemmas in American constitutional

law arises from the tension between the basic principle that the
Constitution reposes sovereign authority in the people, who elect
their representatives and perhaps competing principle that the
Constitution itself defeats democratic efforts by the public to
proceed in one or another direction. Is the Constitution an
obstacle to democracy?
The courts have the final say over the political process. Judicial
review is a means by which the courts may invalidate decisions of
Congress and the President, subject only to the process of
constitutional amendment.
F. Standard of Judicial Review

1. Conflict between judicial review and majoritarianism. You can have a
democracy ruled by the people without domination of the majority over
the rights of everyone else.
2. Protections against the majority are needed when it comes to dealing with
the natural rights recognized by Locke.
G. Martin v. Hunter’s Lessee (1816)-The Supreme Court has the power to review
decisions of state court
Facts: Martin claimed title to land in VA on inheritance from a British

citizen. US and England had entered treaties protecting the rights
of British citizens who owned land. Hunter claimed that VA had
taken the land before enactment of the treaties, so Martin had no
claim to the property. VA court of appeals ruled in favor of Hunter
and for the state’s authority to take the land. USSC reversed.
Rule: USSC has the power to review state court decisions, although it is
not specifically provided for in Art.III.
Issue: Does the Constitution permit the Supreme Court to have appellate
jurisdiction over constitutional cases pending in state courts? Can
the court overturn state court decisions?
Holding: Yes, Court expands the power of judicial review to the states. The
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appellate power of the U.S. does extend to cases pending in state

courts. Judgment reversed. Just as in Madison, the Court held
that it had the power to review Acts of Congress for
constitutionality. In Martin, the Court confirms its power to
review the constitutionality of state courts decisions.
The Court in Martin found appellate jurisdiction to be a

constitutionally permissible method for ensuring uniformity. The
Supreme Court’s authority over state court decisions is limited to
those decisions that involve federal questions. The Supreme Court
may not review state court decisions that involve only state issues
or those that rest upon “independent and adequate state grounds”.
Rationale: Article III gives the Court appellate jurisdiction in all cases arising
under the constitution. Article III speaks in terms of cases. It is
the case not the court that gives jurisdiction.
Article IV demonstrates that the framers of the Constitution

expected that some cases subject to Fed. Court jurisdiction would
also be subject to state court jurisdiction because it binds judges in
every state to decide cases not only according to the state’s laws
and constitution, but principally according to the Federal laws.
The laws of the U.S. require national uniformity and by having
only one final arbitrator can this be achieved. Idea of uniformity
--doesn’t want different decisions on constitutional issues. Need
one interpretation. As stated by Justice Story “ It is the case
then, not the court that givrd jurisdiction”. Also, Congress has
the power under Art.III to create lower federal courts. If they
created none, USSC would have no appellate jurisdiction spoken
of in this article. Thus, the framers wanted them to have appellate
jurisdiction over this. Further, state interests could prejudice
decisions.
Supreme Court review may become necessary because of state

hostility to, or lack of sufficient sympathy for federal rights. State
judges will be less likely to react sympathetically to federal claims
and are susceptible to political influence. State judges are
insufficiently independent of the forces against which
constitutional guarantees are supposed to run.
Questions to ponder? What would be the evil in having

disparate interpretations of the federal constitution?
♦ The risk of centralization outweighed the risk of harmony

♦ Other devices were available in order to minimize the latter
risk and to bring about uniformity
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H. Political accountability of judges
1. When Judge Baer changed his decision after considerable political

pressure, brings to mind the question of independent judiciary, which
illustrates the judge’s influence by publicity and criticism.
2. Judicial review played into politics in Marbury.
3. Framers did not want USSC to be a political tool

a. Lifetime appointments
b. Can’t reduce salary (though Congress can refuse to raise salary!)
4. Federalists believed that the judiciary had neither the purse nor the sword
to become corrupt.
5. Reasons for political accountability:

a. Think of Dred Scott decision upholding slavery. May want
political pressure in these situations.
b. Appointed by Executive to further their political agenda.
c. Only way the popular assent gets into judiciary.
6. Reasons against:
a. Limits on judiciary have worked, need no further restraints.
b. Rights and precedent
c. We expect fairness and impartiality.
d. Legislature and executive may only protect the rights of the
majority.
e. Reason for separation of powers/checks and balances.
I. Cooper v. Aaron (1958)

1. Even though the Supreme Court’s right to review the constitutionality of state
Supreme Court decisions had been firmly established since Martin, numerous
state challenges to that right have arisen.
2. Desegregation: Challenge came in response to Brown v. Board of Education;
AK state officials claimed that they weren’t bound by lower federal court
desegregation order. USSC went out of its way to state that “federal judiciary
is supreme in the exposition of the law of the Constitution,” and that the
USSC interpretation of the constitution is binding on state legislatures and
executive judicial officers. State challenges such as the one in Cooper are
generally viewed as not involving any serious issue of constitutional law.
Congressional Power to Enforce and Expand Constitutional Rights - Section 5 of the 14th
Amendment
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A. City of Boerne v. Flores- RFRA is unconstitutional because Congress does not have
the power to determine what constitutes a constitutional violation.
Facts: Flores was seeking a building permit to build a

church, and filed suit under RFRA when permit was
denied. RFRA was enacted to prohibit gov’t from
substantially burdening a person’s exercise of
religion even if the burden results from a rule of
general applicability.
Rule: Congress’ power under §5 of the 14th Amendment

but it does not give Congress the power to
determine what constitutes a constitutional
violation.
Issue: Did Congress have the authority to pass the RFRA.
Holding: NO. Defendant contends that RFRA protects one of

the 14th Amendment liberties, i.e. Due Process, the
free exercise of religion.
§5 gives Congress the power to enforce the

provisions of the 14th Amendment, which is
“remedial”. RFRA cannot be considered remedial,
preventive legislation because RFRA is so out of
proportion to a supposed remedial object that it
cannot be understood as responsive to, or designed
to prevent unconstitutional behavior. REVERSED.
NOTES:
 Congress’ enforcement power given to it by §5 is just that,
the power to enforce, Congress has no right to determine
what constitutes a constitutional violation.
 Congress has remedial powers not substantial.
 “Congress lacks power to define the right, only to remedy
the right”.
 Only the judiciary can determine what is unconstitutional.
 Boerne added new and very different language.
“Congruence and proportionality between the injury that
Congress is trying to prevent and the means chosen to
remedy the violation of the 14th Amendment.
 Free Exercise Clause- a clause in the 1st Amendment that
prohibits the government from interfering with an
individual’s religious practices.
 Smith – Indians and religious use of peyote. The Court
rejected the use of strict scrutiny and applied a different test
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which allows for more regulation of religion.

 Consider this: whether distinctions between commerce
power and taxing power make it easier to determine
motive.
B. Katzenback v. Morgan
1. Congress has been given the power to enforce, not the power, not the power to
determine what constitutes a constitutional violation.
2. The voting rights act was upheld in this case; Congress could, and did, prohibit
states w/a history of voting-rights violations from applying literacy tests.
3. “Congruence and proportionality” test: Congress must have wide latitude in
determining where the line is b/w an appropriate remedial provision and an
improper substantive re-definition of a 14th amendment right.
4. “There must be a congruence and proportionality b/w the injury to be
prevented or remedied and the means adopted to that end.
5. What the statute does is substantive or remedial:
a. Substantive: defines a right; the nature of the right.
b. remedial: enforcement mechanism
6. The way the court is going to decide whether Congress has power under section 5
of 14th Amendment is to look at the injury and then look at the remedy and look to
see if the remedy is congruent and proportionate to the injury. If it is, then you
have valid remedy. If there is no remedy, statute is constitutional.
7. Court says it’s not remedial. Not congruent nor proportiontoo out of proportion
to responding to unconstitutional behavior. It’s not unconstitutional to adopt laws
of applicability that don’t target religion. Moreover, this statute is targeted at
substance abusers. Burden is on the state to prove that there is a COMPELLING
INTERST and that it is LEAST RESTRICTIVE.
8. You need evidence the kind of evidence that says that there is an injury and the
target of the provision has been violated. What kinds of evidence? Nothing
suggesting that city/state has been going after these rights. There is no evidence
of intent to discriminate or to target this religious faith.
9. Look at the NATURE OF THE INJURY and HOW THE COURT HAS
DETERMINED THE INJURY and the CONGRUENCE AND
PRPORTIONALITY OF THE REMEDY THAT HAS BEEN PROVIDED.
C. Morrison v. US
A. FACTS: Congress was concerned that the states’ judicial systems were not taking
gender-motivated violence against women sufficiently seriously. Congress
passed an act that announced that all persons within the US “shall have the right
to be free from crimes of violence motivated by gender.” To enforce that right,
the Act then said that a woman who was a victim of such a gender motivated
violent crime could bring a civil suit against the perpetrator in federal court. A
female student at VA tech who said she had been raped by 2 members of the
school’s football sued under the Act. The D by arguing that the act as beyond
Congress’ powers, including its Commerce power.
B. HOLDING: the Court agreed w/the Ds that the Act was beyond Congress’
Commerce power. The majority opinion by Chief Justice Rehnquist relied
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principally on the fact that the activity being regulated was essentially non-
economic. Gender motivated crimes of violence are not, in any sense of the
phrase, economic activity. While we need not adopt a categorical rule against
aggregating the effects of any noneconomic activity.
C. If we allowed Congress to regulate this, we would allow Congress to regulate any
crime as long as the nationwide aggregated impact of that crime has substantial
effects.
D. Class Notes
Section 5 of the 14th Amendment

• How do the courts decide whether Congress has the power under section 5 the 14th
Amendment to enact legislation?
o Whether the statutory provision/remedy is proportional and congruent to the
injury to be prevented or remedied. (Congress can prevent/deter an injury through
remedy).
1) Identify the injury (Look to how the court has treated the injury and that is
going to inform whether Congress may treat it as an injury)
• Katzenbach v. Morgan
o Provision prohibiting state from requiring Puerto Rican U.S. citizens w/6th grade
education in Puerto Rico to pass English literacy test to exercise the franchise is a
means to secure Puerto Ricans nondiscriminatory treatment by the government,
something that is prohibited by the Equal Protection Clause; Congress may seek
to deter or remedy unconstitutional conduct even if the process it prohibits
conduct which is not itself unconstitutional.
o The proportional and congruent test was after Katzenbach and was not the
majority opinion
o Court decided that English literacy test did not violate constitutional. The literacy
test was targeted at Puerto Ricans so this is what makes it unconstitutional; the
NY literacy test was discriminatory against Puerto Ricans in NY.
• Boerne v. Flores
o Provision requiring state/local governments to have a compelling interest in order
to burden religious rights not proportional or congruent because not designed to
prevent unconstitutional violations.
1) No evidence that state or local governments have been targeting or acting
w/animus towards a religion or religions
2) Sweeping coverage—applies to every level of government w/no termination
date.
o This statute applied to every single level of government; there’s no evidence that
it was aimed at certain religion.
• United States v. Morrison
o Statute creating a private civil cause of action against perpetrators of gender
motivated violence not congruent and proportional b/c the remedy is directed at
private actors and the 14th Amendment generally applies to state actors; no
evidence that state systematic or nationally uniform remedy does not involve any
state actor.
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o The problem here is the injury and who it is that engages in the remedy.
o It matters how the court defines the injury
o Court here looks to see who the actor is.
• Does Congress have power to?
o Statutes give private individuals the right to bring a cause of action against states
for engaging in intentional discrimination on the basis of sex?
1) Yes? It is against a state actor (Morrison); the right involves a constitutionally
protected rightintentional discrimination (Morrison); proportional and
congruent b/c its directed against state actors and intentional discrimination on
the basis of sex is a serious injury and thus it is proportional and congruent.
The remedy is to allow citizens to sue their government for discriminatory
practices.
2) NO! Argue the other side: yes, the injury is serious… but you need more to
show state failure and that it is not congruent and proportional. No evidence
that state has been bad guy. In fact, statute is too broad. (sweeping coverage
—applies to every level of government w/no termination date).
Congressional Limits on Judicial Power

Limitations on the Judicial Power
i. Congressional Control of Judicial Power
1. The judicial power has always been subject to limitations – some are imposed
constitutionally, others are imposed by the SC
2. Art III establishes the judiciary and imposes limitations on the scope of judicial
authority
3. Art III, §2 cl. 2  gives the SC original jurisdiction and gives the Court
appellate jurisdiction “with such Exceptions, and under such Regulations as the
Congress shall make.”
4. Jurisdiction is the authority given to a legal body or to a political leader to

adjudicate and enforce legal matters.
Ex Parte McCardle-Congress has the constitutional power to make exceptions and regulations regarding the Supreme Court’s
appellate jurisdiction. (RE: appellate jurisdiction – conferred by Constitution to Congress)
Facts: Appeal from denial of habeas corpus. Def., a MS newspaper editor, was jailed
for printing incendiary and libelous articles, and brought a habeas corpus
proceeding. Congress passed an act forbidding the court jurisdiction over the
matter.
Rule: Although appellate jurisdiction for the Supreme Court is not derived from acts
of Congress, but from the Constitution, jurisdiction is nevertheless conferred
“with such exceptions and under such regulations as Congress shall make”.
Issue: Does Congress have the power, under the Constitution, to make exceptions to
the appellate jurisdiction of the Supreme Court?
Holding: Yes. Appellate jurisdiction for this Court is not derived from acts of Congress,
but from the language of the Constitution. But jurisdiction is conferred “with
such exceptions and under such regulations as Congress shall make.” The
Constitution also gives Congress the express power to make exception to that
jurisdiction. McCardle is clearly an example of judicial restraint. The authority
of Congress to control the jurisdiction of the Supreme Court is not unlimited.
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 Just because an issue hasn’t been before the Court doesn’t mean it is
constitutional. It just remains an open question.
 Law is a flexible organ. It moves with case law. As a result, the law can
appear inconsistent.
 Only when cases can’t be reconciled does the Court come into the
controversy.
Ex Parte McCardle
 14th Amendment created
 1. Birth-right citizenship (of everyone born in US)
 2. Guarantees equal protection of/under the laws of all US ppl
 3. And due process of the laws (the 5th Am does this as well but didn’t include equal protection)
The following case considers a claim that such an “agency court” violates the Constitution’s vesting of “the judicial
power of the US” with Art III courts.
Commodity Futures Trading Commission (CFTC) v. Schor
• Facts
o CEA broadly prohibits fraudulent and manipulative conduct in connection w/ commodity futures
transactions
o Congress created an indep agency, the CFTC and entrusted to it sweeping authority to implement the
CEA
• Pro His
o The AC read the statute as authorizing the CFTC to take jurisdiction over Conti’s counterclaims. We
granted certiorari and now reverse.
• Issue
o Whether the Commodity Exchange Act (CEA or Act) empowers the CFTC (or Commission) to
entertain state law counterclaims in reparation proceedings and if so, whether that grant of authority
violates Art III of the Constitution.
• No, it doesn’t violate Art III
o Whether the CFTC’s assumption of jurisdiction over common law counterclaims violates Art III of the
Constitution
• Rule
o Art III §1 directs the judicial power of the US shall be vested in one SC and in such inferior Courts
as the Congress may from time to time establish
• Reasoning/Arguments
o Def – Schor claims that these provisions prohibit Congress from authorizing the initial adjudication of
common law counterclaims by the CFTC, an admin agency whose adjudicatory officers do not enjoy
the tenure and salary protections embodied in Art III
o The essential attributes of judicial power are reserved to Art III courts, and conversely the extent to
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which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in
Art III courts the original and importance of the right to be adjudicated and the concerns that drove
Congress to depart from the requirements of Art III
o In this cases – there is little practical reason to find that this single deviation from the agency model is
fatal to the congressional scheme
o The CEA scheme in fact hews closely to the agency model approved by the Court
o Looking beyond form to the substance of what Congress has done, we are persuaded that the
congressional authorization of limited CFTC jurisdiction over a narrow class of common law claims
as an incident to the CFTC’s primary and unchallenged, adjudicative function does not create a
substantial threat to the separation of powers
o Congress gave the CFTC the authority to adjudicate such matters
o When Congress authorized the CFTC to adjudicate counterclaims, its primary focus was on making
effective a specific and limited fed regulatory scheme, not on allocating jurisdiction among federal
tribunals. Congress intended to create an inexpensive and expeditious alt forum through which
customers could enforce the provisions of the CEA against prof brokers
o Cant effectively employ bright line rules re: Art III, must be looked at case-by-case
Political Question Doctrine – Baker v. Carr

A. Political Question Doctrine
1. Variance of concept of justiciability.
2. A self-imposed limit on the power of the courts
a. Judiciary has decided that it will not override an act of another
organ of government.
b. A voluntary doctrine though grounded in the Constitution and the
idea of separation of powers.
c. No textual basis for the doctrine.
3. Marbury established the power of the court to hear cases, controversies,
and rulings that may have the effect of voiding an act of a representative
branch of government.
a. Origin of political question doctrine also in dicta to this case
where the court said that there may be political cases that should
not be heard by the court. A matter committed to Congress or
President.
4. The courts are not a political institution because they are not elected.
5. Pros of political question doctrine:?????
a. Helps define judicial role
b. Helps conserve judicial resources – don’t hear as many cases
c. Improves decision-making – if decision will not help the status
of the parties (live controversy) there is no point in hearing it.
d. Promotes fairness – litigants must have standing – no third party
complaints.
6. Cons:?????
a. By restraining itself, some people will be left without redress.
B. Baker v. Carr
15
Facts: Appeal from denial of injunction/challenge to state against apportionment

& elections. 60-year-old Tennessee apportionment system attacked as
obsolete. Tennessee voters seek reapportionment of state assembly
districts; the districts have not been reapportioned since 1901.
Rule: The Guaranty Clause guarantees a republican form of government. The

clause may not be used as a source of constitutional standard for
invalidating state action, but an equal protection (14th Amendment) claim
may be used where it does not implicate a political questions.
Issue: Does an equal protection claim complaining of the mal-apportionment of a

state assembly constitute a non-justicable political question, which the
federal courts may not address?
Holding: No. This challenge presents no nonjusticiable “political question”. The

fact that the suit seeks protection of a political right does not mean that it
is necessarily a political question. It has been argued that apportionment
cases involve no federal constitutional right except one resting on Article
IV § 4, which guarantees a republican form of government. The case here
neither rests upon nor implicates the guaranty clause. REVERSED.
 Political questions are best left to the President or Congress.

 Vote dilution-one district has more significant voters than others but the same
number of representatives.
 EQUAL PROTECTION CLAUSE-A 14th Amendment clause providing that
persons under the same circumstances shall be afforded the same
constitutional rights.
 GUARANTY CLAUSE-A clause in Article IV § 4 that (all three branches)
the U.S. shall guarantee to every state in this Union a Republican form of
government.
 POLITICAL QUESTION-A question involving the use of discretionary
authority by Congress or the Executive Branch.
 Any case involving a political question is found
o A textual commitment-a constitutionally assigned duty or power to a
branch of gov’t; or
o A lack of judicially manageable standards for solving the question; or
o The impossibility of a court’s deciding the issue without an initial
policy determination of a kind clearly for non-judicial discretion;
o The impossibility of a court’s undertaking independent resolution
without expressing a lack of respect to other branches of government;
or
o An unusual need for adherence to a political decision already made; or
o The potential for embarrassment from various pronouncements on a
single issue by different department of government; or
16
o Criteria for deciding issue; or

o Diplomacy
 If none of these circumstances is present, the case should not be dismissed on

the grounds that it is a political question.
 An issue is a non-justiciable, i.e. political question if the Constitution has
committed it to another branch of government, or if there is a lack of
judicially discoverable and manageable standard for resolving it.
 Political issues with constitutional dimensions generally are fair game for
judicial review. Political questions are issues, which may have constitutional
dimensions but are of a nature that they should be resolved in the political
arena, i.e. foreign relations.
 Political Questions vs. Justiciable Controversy: The Court will not decide
questions that are political on the basis of the separation of powers. Political
questions are generally determined on a case-by-case basis. Political
questions usually involve foreign relations, military organization,
constitutional amendments, political party disputes, congressional
membership, or political rights. A question is political if:
 There is a demonstrable constitutional commitment of the issue
to the political branches;
 There is a lack of manageable standards for judicial resolution;
 There is a need for finality in the action of the political
branches; and
 There is difficulty or impossibility of devising effective judicial
remedies.
Standing
1. Allen v. Wright
Facts: Blk. Parents sued IRS for granting tax-exempt status to discriminatory
private schools, thereby interfering with desegregation of their public
schools. Appeal of judgment granting declaratory relief, injunctive relief
in a class action civil rights suit. Federal aid to private school caused
alleged injury.
Rule: Standing requires a Plt. to allege a personal injury fairly traceable to the
Def’s allegedly unlawful conduct and likely to be redressed by the
requested relief.
Issue: Does standing require a Plt. to claim a personal injury fairly traceable to
the Def’s allegedly unlawful conduct and likely to be redressed by the
requested relief?
Holding: Yes. Article III of the Constitution limits federal jurisdiction to “cases and
controversies”. The question of standing is whether a litigant is entitled to
17
have the court decide the merits of the case. Standing doctrine (1)
prohibits litigants from raising another person’s rights, (2) bars courts
from adjudicating general grievances more appropriately addressed in the
representative branches, and (3) requires that a complaint fall within the
zone of interests protected by the law invoked.
The parents claimed two injuries, (1) direct harm from the mere fact of federal aid to
discriminatory private schools, i.e. stigmatic harm, and (2) impairment of
their ability to have their schools desegregated. They claimed that the tax-
exemption was making it easier for parents to choose a private school over
a public school. A federal court is not the proper forum for general
complaints about the way that the government conducts its business.
Judgment reversed. The court dismissed the first claim as too abstract.
NOTES:
 The injury cannot be abstract.
 The injury must be traceable to causation.
 The remedy must be redressable.
 No third party can assert a claim.
 The most significant constitutional element is the “injury in fact”
requirement.
 Allen demonstrates that standing will usually not be found where a litigant
claims that a tax incentive has caused a third party to injure him, since the
causation component is too attenuated.
 Membership in a minority group is insufficient alone to afford standing.
**
 It would be the President’s job to enforce the law in this case.
 **Enforcement of this law by the courts would open the floodgates of
litigation because everyone could sue.
 Stigmatic injuries could be difficult to prove. A stigmatic injury only
affects those who were directly harmed according to the Court. A stigmatic
injury has to apply to a small, particular group.
 The Government action only affected the private school because they get
the benefit of the exemption, therefore the parents of the private school
children would have standing, not the parents of public school kids. Public
school kids, as a group, is too large.
 It’s the President’s job to enforce the law, not the Court’s.
 It was the opinion of the Court that holding in favor of the black parents
would open the floodgates because then everyone would have standing to sue.
2. LUJAN v. DEFENDERS OF WILDLIFE
Fatcs: Appeal from a denial of motion for Summary Judgment for lack of
standing. Defendants seek to have the Endangered Species Act interpreted
18
to cover government agency activities in foreign countries. Plts. Are

asking that the Sec. of State consult with wildlife groups before funding
international projects abroad because of the alleged increase in the rate of
extinction.
Rule: Congress may not convert the public’s interest in an executive officer’s
compliance with a law into an individual right to sue.
Issue: May the public interest in a government agency’s proper administration of

the laws be converted into an individual’s right by statute, thus allowing
all citizens to sue?
Holding: “Questions of timing” serves as barriers to standing; the authors consider

mootness and lack of ripeness of the issues. “Mootness” means that
changes in the law or facts may render the issue moot as to the individual
Plt. and Plt. no longer has a stake in the outcome. A case is moot if the
justiciable controversy that existed at the time the complaint was filed has
disappeared. “Ripeness” involves cases where the issues are sufficiently
developed to deserve judicial attention. Under the principles of judicial
self-restraint, the Court will not decide constitutional issues before it is
necessary to do so. Generally, a ripeness problem is alleviated if the
litigant has already suffered harm.
Notes: Lack of consultation can be an injury if it affects immediate residents.

The injury may be threatened but it needs to be imminent.
Plts argued that the statute injured them. The Court did not interpret the
statute to read to give everyone a standing, just those who are directly
injured under the federal law.
 Standing comes into play when:

o Government conduct is being challenged as unconstitutional.
o Challenge to federal statute
 Plt must establish that they have standing to raise the dispute. Article III requires:
o Injury in fact, not legal injury
o Caused by government action
o And injury is redressable by the Court
 Congress handles general public grievances in the public arena, NOT the courts.
 It is opposed to a requirement where the court MUST decide on set rules, not
discretion.
 Courts also say that they will not allow a claim to be brought by a 3rd party.
 Zone of Interest- if the claim is based on a statute-Is the Plt within the zone of
interest? If you are not benefiting of the statute, then you cannot sue under this
statute, i.e. white collar crime-shareholders trying to sue and the suit didn’t
address share holder concern.
 Cases and Controversies-The jurisdiction of federal courts is limited to cases
19
and controversies. This means the matter must be definite and concrete with
parties having adverse legal interests. The controversy must be real and
substantial. There must be a real and immediate threat of harm and danger to the
interests of the parties brought about by the conduct of a party or a challenge to
that conduct.
 Advisory opinions cannot be issued. The Court will not review moot cases. If a
matter has been resolved there is no case or controversy.
3. The Basic Requirements for Standing (whether plaintiff has sufficient interest in
litigation)
1) Plaintiff injured (actual, real, imminent)
2) Injury caused by Defendant/challenged action. (causation b/w injury and challenged
act).
3) Injury be redressable by the court
4. Other factors: Prudential limitations (court has not held that they are article III
requirements; a lot more flexibility)
1) Zone of interest?
2) No third party claims (see Singleton v. Wulff)
3) No generalized grievances
5. Why shouldn’t allow third party claims?

- Zealous if represent their own rights
- Control the number of claims brought to court
- Need personal injury; not injury to other
6. Why might people not litigate their own claims?

- Privacy
- Resources
• Article III Standing
o Plaintiff must allege that she/he has suffered or imminently will suffer an injury.
o (injury)
o Most cases have standing; when people come to you, they will have suffered
some sort of injury; they won’t pay you a fee until they’ve suffered an injury.
o All you need is one plaintiff withstanding and your claim is heard.
• Standing Requirements
o Plaintiff must allege that he injury is fairly traceable to the defendant’s conduct
(causation).
o Plaintiff must allege that favorable federal court decision is likely to redress the
injury (redressibility).
• Prudential Standing Requirements
o A party must assert only her or his own rights—no third party claims
o No generalized grievances (analogous to injury requirement).
o If challenging a federal statute, plaintiff must be within the zone of interest
protected by the statute.
o Tax Claim: You have the right to have the law of the government enforced.
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Generally, that is the kind of claim that is always going to be a generalized

grievance.
• What does the court tell us about injuries?
o Must be distinct and palpable
o Not abstract or conjectural or hypothetical.
o Test is intensely factual.
o The statutes we dealt with allowed for statutory injury.
• On what basis does the Court justify Art. III Standing?
o Separation of Powers (court doesn’t want to inject unnecessarily into a
controversy between the other two branches).
o Prevents Courts from reaching out beyond their role in constitutional scheme.
o Should avoid “repeated essentially head-on confrontations b/w the life-tenured
branch and these representative branches of government.
o When you have a claim that challenges the implementation of a statute, this is
controversy b/w the branches.
• Injury in Fact?
o What is the injury recognized in Havens Realty Corp v. Coleman?
o The tester/renter Pls who were given misinformation have been injured b/c they
have been denied their right to truthful information concerning the availability of
housing under the statute.
o The tester who was given no misinformation has not suffered injury to his
statutory rights under the statute (no discriminatory misinformation)
• Threatened or Future Injury?
o What were the injuries alleged in Lujan v. Defenders of Wildlife?
o (1) Lack of consultation w/respect to the funded activities abroad increases rate of
extinction and threatened species which would frustrate the abilities of the Pls to
work w/and observe the affected species. (Injury is not specific enough…didn’t
say how much extinction rate would increase…they just said they were likely to
increase).
o (2)Ecosystem nexus injury—any person who uses any part of a contiguous
ecosystem adversely affected by a funded activity has standing regardless of
distance.
o (3) Animal and vocational nexus injuries: would grant standing to anyone who
has an interest in studying the endangered animals everywhere on the globe or to
anyone w/a professional interest in such animal. (court is trying to limit the
number of people who sue)
• Problem with that injury?
o (1) Not imminent enough b/c both Pls have no immediate or definite plans to
return to the sites to work with the threatened species.
o Vague plans not enough.
o (2) Distance matters—the fact that all ecosystems may in fact be dependent on
each other and that what happens in one part of the earth affects other parts of the
earth does not suffice to establish injury for purposes of standing. (can science
support this? Arguably…as science gets better).
o (3) court rejects these theories as “pure speculation and fantasy” to “say that
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anyone who observes or works w/an endangered species, anywhere in the world,
is appreciably harmed by a single project affecting some portion of that species
w/which he has no more specific connection.”
• Procedural injury?
o Citizen suit provision doesn’t mean elimination of the injury in fact requirement;
generalized grievances do not suffice for Article III standing.
o Justice Kennedy joined by Justice Souter: Congress has power to define injuries;
congress must identify the injury it seeks to vindicate and relate it to the class of
persons entitled to bring.
• Party must have a significant stake in the controversy to merit his being the one to litigate
it. Standing focuses mostly on the party asserting the claim whereas most other elements
of justiciability focus on the nature of the issue being litigated.
Eleventh Amendment and State Sovereign Immunity
1. The 11th Amendment: it imposes limitation on the jurisdiction of federal courts. “The
judicial power of the US shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the US by citizens of another state, or by
citizens or subjects of any foreign state.
2. Suits by citizens of the D state: bars suits by a citizen against his/her own state.
3. Suits involving federal question: This covers federal question suits, not just diversity
suits. It blocks all suits by private citizens against state, whether based on diversity,
alienage, or federal question.
4. Constitutional embodiment of sovereign immunity: a core constitutional limitation of
federal judicial power. Congress cannot overrule this broad meaning.
5. Suits in equity: the amendment applies not only to suits at law, but also suits at equity.
A private citizen cannot sue to have a state enjoined or ordered to do something, any
more than she can sue to recover damages.
6. Exceptions:
a. Suits against officials for injunctions: does not prevent suits against state officials
in which the relief sought is an injunction against the violation of federal law.
b. Suits against officials for $$$: doesn’t bar suits against officials for money
damages are to be paid out of the official’s own pocket. If state is required to pay
out of its own pocket, the suit is barred even if the suit is filed against the official.
c. Suits by federal government: does not bar suits by federal government against a
state.
d. Suits against cities: does not bar suits against cities. State agencies and other
entities: case law is unclear and inconsistent as to when the amendment bars suits
against state agencies, boards and other entities associated w/state government.
e. Suits in state court: amendment only applies in federal courts; doesn’t prevent a
private individual from suing a state in state court, even to vindicate a federal
right. State must have jurisdiction; some states don’t have jurisdiction b/c of
state’s enabling statutes; some federal statutes don’t allow certain issue to be
tried in state forum.
f. Waiver by state: can be waived by state. Expressly or constructively.
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Persisting Controversy Over the Judiciary’s Function

Slaughterhouse Cases (1873)
Facts: LA passed a law giving a monopoly on N.O.

slaughterhouses to a particular company. Butchers not
included claimed the statute deprived them of the
opportunity to practice their trade, violating due process
and privileges and immunities.
Holding: Court rejected all arguments. Fundamental civil rights,

including the right to practice one’s calling, were in the
domain of the political processes of the states. Therefore,
the Ps should have looked to LA law for protection. The
court recognized several rights of national citizenship,
including free access to seaports and federal protection on
the high seas. These rights could not be infringed by any
state by virtue of the privileges and immunities clause. The
court viewed the states rather that the Federal Gov’t as a
guarantor of a citizen’s civil rights and the Court was
unwilling to read the 14th as referring to any civil liberties
already within state power to accord, secure and protect.
Saenz v. Roe
o Person moved from LA (lower benefits) to CA (higher benefits).
o State said: If you move from LA to CA, the first year of benefit, you get whatever
you got in the state that you left.
o Is this a burden on your right to travel?
o There was a challenge to the statute.
o Court said: there is no right NOT to starve. Poverty is of your own making; you
don’t have a right to welfare.
o However, there is a right to travel recognized very early on.
o The statute clearly is designed to discouraged poor people from coming into the
state, especially those relying on the higher benefits.
o The court starts out to recognize that the right to travel is one that has been
recognized in a number of cases and one under the privileges and immunities
clause.
o It rejects the state’s argument: the right to travel is a right that is affected only
incidentally.
o Court says: the right to travel embraces the citizen’s equality.
o The court has recognized that the right to travel is recognized under the Equal
Protection Clause.
o What’s interesting about this case is that it revitalizes the privileges and
immunities clause….one that has had no activity since reconstruction.
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Rise of Substantive Due Process
Origins of Substantive Due Process.

1. Due process clause is found in the Fifth and Fourteenth Amendments. The two
clauses say the same thing – no person shall be deprived of life, liberty, or
property without due process of law.
a. 5th applies to the federal government
b. 14th applies to the states
2. Traditionally, due process is a procedural concept – procedures that need to take
place before government can deprive of life, liberty, or property.
3. Substantive due process says that there is something inherent vested in certain
rights that the government couldn’t take away without sufficient justification.
Arguments against:
a. Due process clause is not the proper place for these protections; it is the
privileges and immunities clause in the 14th amendment.
b. Court is using this theory to protect unenumerated rights.
c. Pre 1937 economic regulation by Congress was struck down on the basis
of the commerce clause. Also the court was striking down economic
regulation by states under the due process clause. Theory goes back to
Locke and his inalienable rights. Question is what are these rights? In
19th century, primarily property and contractual rights.
4. Substantive Due Process: the Fourteenth Amendment provides that no state shall
make or enforce any law which shall deprive any person of life, liberty, or
property w/o due process of law.
5. One major function of the Fourteenth Amendment’s Due Process Clause is to
make the Bill of Rights, the first ten amendments, applicable to states.
6. The Fourteenth amendment, enacted in 1868, changed this rule. It requires that
the states not deprive anyone of life, liberty, or property without due process.
Nearly all of the guarantees of the Bill of Rights have been interpreted by the
Supreme Court as being so important that if a state denies these rights, it has taken
away an aspect of liberty.
7. Incorporation: each right in the Rights is examined to see whether it is of
“fundamental” importance. If so, it is selectively incorporated into the meaning
of due process under the Fourteenth Amendment and is binding on the states.
8. Nearly all rights are incorporated into the meaning of due process. The only
major Bill of Rights guarantees not incorporated (1) the Fifth Amendment’s right
not to be subject to a criminal trial w/o a grand jury indictment; and (2) the
Seventh Amendment’s right to jury trial in civil cases.
9. Function of SDP is to limit the substantive power of the states to regulate certain
areas of human life. Certain state limits on human conduct are held to so
unreasonably interfere w/important human rights that they amount to an
unconstitutional denial of liberty.
10. First, need to distinguish fundamental v. non-fundamental.
11. Fundamental: strict scrutiny test the statute must be narrowly tailored to serve
24
a compelling government interest.

o Shifts the burden of persuasion on the state to show that it’s pursuing a
compelling objective and the means chosen are necessary to achieve that
objective.
12. Non-fundamental: rational basis test state must have a legitimate governmental
objective w/a means that is rationally related to that interest.
13. Fundamental rights are ones related to “rights of privacy” and “right of
autonomy.”
o Birth Control
o Abortion
o Family relations (family life, raising children, live together, direct upbringing and
children’s education).
14. Procedural due process: requires that the state act w/adequate or fair procedures
when it deprives a person of life, liberty, or property.
15. West Coast Hotel: court upheld a state minimum wage law for women. The
court mentioned the state’s interest in protecting the health of women. It gave
substantial weight to the state’s interest in redressing women’s inferior bargaining
power. Minimum wage interfered w/freedom of K but the readjustment of
economic bargaining power in order to enable workers to obtain a living wage
was a legitimate limitation on that freedom of K.
16. US v. Carolene Products: court made clear that a presumption of
constitutionality would be applied in case of economic regulation subjected to due
process attack. Court sustained against a due process attack a federal prohibition
on the interstate shipment of “filled” milk. Congress acted upon findings of fact
showing a public health danger from filled milk. The existence of facts
supporting legislative judgment is to be presumed, for regulatory regulation
affecting ordinary commercial transactions is not to be unconstitutional unless it
is of such a character as to preclude the assumption that it rests upon some
rational basis within the knowledge and experience of legislatures. This is a
minimum rationality standard coupled w/a presumption of constitutionality.
17. The modern court has withdrawn almost completely from the business of
reviewing state legislative economic regulation for substantive due process
violations. Court hasn’t struck down an economic regulation for violating
substantive due process.
Economic Rights: Ks Clause/Takings Clause
• Due Process
1. Substantive
a. Economic rights
b. Other rights? From Caroline Products/Meyer/Griswold
2. Procedural
• Contracts (At will relationship; one in which there is a K and it is in writing and gives
some type of protection…there is an exchange of something. The employee might get a
guarantee of some sort of income).
o Court in Lochner: state does not have a reasonable ground for interfering w/the
25
right of free K by determining the hours of labor. There has to be a more

important governmental interest. Allowing somebody might impair their health.
The state isn’t trying to regulate the health, but the employment relationship that
is protected under the Due Process Clause.
o The state always needs a legitimate purpose. This purpose goes back to their
police powers.
o In Lochner, the economic right being protected needs to be a relative tight fit
w/the purpose being protected.
o Sex discrimination: distinguishing b/w men and women…women are entitled to
minimum wage protection as opposed to men…there is no legitimate state
purpose.
o Legitimate purpose is part of rational basis scrutiny as opposed to
heightened/strict scrutiny.
o Generally when we’re looking at regulation of commercial activity and we’re
looking at a due process challenge, we’re looking at rational scrutiny (Carolene
Product, Nebbia, etc.)
o Rational Scrutiny REQUIRES legitimate state interest. There is a presumption of
constitutionality.
• Takings
• 5th Amendment Due Process: what does Carolene tell us? Same standard applied to state
regulation of commercial activity.
o It is proper for the court to assume that the legislature is acting correctly in
ordinarily commercial transaction and should as to such character
o What rational for it to make sense for the Court to adopt this test?
o Footnote 4 of Carolene Products: has nothing to do w/individual rights: Lochner
has never been overruled, but it puts to sleep the Lochner doctrine. It suggests
when it may make sense to courts to more rigorously scrutinize state enacted
legislation for potential violation. Probably there is a narrower scope for the
presumption of constitutionality when you have a specific provision in the bill of
rights where it might not make sense to make a presumption. OR perhaps when
there is restriction on the political process…for the courts to have more control
(gerrymandering).
o Is it right to let the legislature decide if the heart of that issue is part of Due
Process.
o There is a concern that we don’t have commercial actors. Can we make the same
argument w/commercial actors?
o Legislature in regulating commercial actors
o Where it is regulating its processes/franchises those things that will affect the
citizens, the citizens may not be in the position to take care of the problem, it
makes sense for Congress to take a more rigorous role.
o Should courts be involved? Statutes directed at particular religious, national, or
racial minorities, whether prejudice against discrete and insular minorities, there
will be heightened scrutiny.
o What’s the difference of substantive and procedural due process? P: to deny you
of life, liberty, propertyyou have to go thru a proper procedure & how much
26
due process do you get before it’s affected by government. Are you entitled to it,
and if you are, then you get process, and question is how much of it do you get
and what exactly do you get?
o Substantive: some things that the government can’t do or interfere w/except in
the least restrictive manner when it is essential that it do so. There is some sort of
activity/conduct that cannot be interfered with. It protects the activity and limits
the governmental conduct.
o It’s hard to know which one the court is looking at…they all
• CONTRACTUAL ACTORS
o One of those rights in the body of constitution “no state shall pass any law
impairing the obligations of K.” Court says it doesn’t mean to completely freeze
states from regulating Ks…in essence, Ks look to the law to be enforced.
o We have to interpret it differently.
o We have to look at the state’s police powers: when it’s acting to protect the
health, welfare, and safety of its citizens. Sometimes, they protect morals also.
o Morals=not a standalone provision. Sometimes not alone enough. Morals are
subjective. Not everyone agrees.
o Court says this is entitled to weight. You need substantial impairment of
contractual obligations and rights. Are you going to scrutinize the legislation?
o Then we need to ask if the state is regulating for a legitimate purpose? Legitimate
purpose=Anything that is within its police power.
o Courts should defer to the legislative will/decision that the purpose justifies the
restriction.
o Only if the restriction is severe are we really going to scrutinize whether the
state’s purpose of impairing the K is legitimate.
• PUBLIC USE
o Is there a taking?
o Is there just compensation?
o In cases where there is a physical taking of land or physical invasion it is clear
that there is taking.
o You can have degrees of taking.
o Regulatory taking: regulatory restrictions on land.
o Lucas: comes out of property common law principle.
o It relates to your ownership and potential uses.
o The point at which a regulatory use of land becomes a taking is when there is a
substantial taking of those uses.
o If it interferes w/too many of those sticks (from the bundle), it is a taking.
o The state or the city to tell the landowner not to use a land in a way that won’t
harm the neighbor or not cause a public nuisance.
o What point is it a just a permissible regulation of land (no taking) and what point
do you have taking (where they are required to give you just compensation)?
o In Penn Coal: state law prohibited Coal Mining to mine underneath existing
property. Wanted to sell land…when you dig under some homes, it might cause
other homes to subside. State passed a law that said they couldn’t do it. The
supreme court is of taking private property. To do that, state must pay
27
compensation. What should the state do? Repeal the law or just pay? It should
just repeal the law and let the homeowners sue. PA can’t afford to pay all the
homeowners.
o In Penn Central: want to build above land…airspace. Wanted to build up…sell
that right. There was an ordinance that prevented to build up, but they could
transfer the right. Court says it’s okay. It’s ad hoc…factual determination, we
look at each case as it comes to it. We accept the fact that value may be
diminished. It can still continue to operate it the way it has been operated. Even
though significance decrease in value, the city is not targeting Penn Central, part
of comprehensive zoning plan, and harm is not of great magnitude. Can still
transfer parcel.
• LUCAS
o Developer who wanted to build along beaches. He knew there was a restriction
on beachfront property. State passed law that prohibited from building permanent
buildings on parcels.
o Why did SC adopt this law? Those items make a difference, the beach makes a
difference, those houses along the beach cause erosion. When hurricane does
come, houses are the first to go and homeowners are going to want government to
rebuild the property.
o SC is being reasonable. Wants to protect the state from more devastating loss and
doesn’t want to pay for existing houses. Older houses are grandfathered in. we
have an interest in preserving beach.
o Is SC going to have to pay just compensation to houses that haven’t been built or
it could just walk away.
Incorporation (305-319 and supplement: Heller).

• Do the first 8 amendments of the Bill of rights apply to states?
• Different arguments/views on this: some say it is directed only at federal government
• There are subsequent cases that continue to push the issue: from perspective from individual
persons, it is unfair that it applies only to federal government and not state government. Why
should you not have those same rights when it comes to state government?
• Slaughter House: first time argument is made…Privileges for immunities clause of the 14th: case
said NO…immunities protected under 14th is not what is protected in the Bill of Rights.
• Thru the 14th Amendment Due Process Clausewe get 2-3 views as to what these rights might
be. To determine which rights in the Bill of Rights is incorporated, whether the right is:
- A fundamental right may be a right implicit in the concept of ordered liberty; OR
- So rooted so in the tradition and conscience of our people as to be fundamental.
- Among those fundamental principles of liberty and justice
• The court formally adopts what we call selective incorporation: some rights are incorporated to
our system of justice (those that are fundamental) and some rights are not.
• Some rights were rejected as being fundamental in the sense that they are incorporated.
• Which rights are not incorporated? 2nd amendment right to bear armscourt is currently
deciding that issue; 3rd amendment right not to have soldiers ordered in a person’s home; the 5th
amendment right to a grand jury to indictment in criminal cases; the 7th amendment right to jury
in civil cases; 8th amendment prohibition of funds.
• The court has told us: there is no difference in the 1st amendment; 4th, no difference; 6th right to
counsel, no difference; right to jury (selective incorporation).
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• Persons who are non-citizens…might this make a difference whether it is a state/federal

government is doing the regulation. The scope of the right may be regulated. We’re not talking
about whether the right is incorporated, but the scope of it.
• Ex. If Medina was filing a complaint in LA. LA has a statute that says that all children have to go
to public schools and parent A comes to Medina, would you represent us and file a complaint and
say that is unconstitutional. When medina states her complain, how would she state her source of
law?
• Under the substantive due process of 14th, we have a liberty right to exercise control and care and
custody of our children.
• Under 1st, we have a religious right to give our children religious instruction thru an elementary
school….for this, we NEED incorporation. How do we state this? This statute violates the first
amendment as incorporated by the 14th amendment due process clause.
Modern Substantive Due Process
Meyer v. Nebraska
Summary: USSC struck down a state law which prohibited the teaching of
foreign languages to young children. The court held that the term
“liberty” as used in the Fourteenth Amendment, included many
non-economic, but nonetheless important, rights. The rights of
teacher ot teach, and that of students to acquire knowledge, were
among these. The court applied a “mere rationality test” rather
than SS, but said the statue was w/o reasonable relation to state.
Roe v. Wade
Facts: Roe, an unmarried pregnant woman, challenged the TX abortion

laws which made abortion illegal except for the purpose of saving
the mother’s life. Parallel GA statute involved in Doe v. Bolton.
Holding: The statute unconstitutionally interferes with the right to privacy.
Rationale: The first step is recognizing that the right to privacy is a

fundamental right. The court finds this right through the
fourteenth amendment. Next, the court must see if the
infringement passes strict scrutiny (compelling state interest).
State does have an interest in (a) protecting women’s health and
(b) protecting the potentiality of life. Must determine at what point
during the pregnancy the state interest becomes compelling enough
to allow regulation (when contrasted with the mother’s interest in
privacy).
• The compelling interest to the mother in privacy is present

during the first trimester – no state interest. The court balanced
the risk of pregnancy against the risk of abortion. The risk of
pregnancy in the first trimester is greater than the risk of
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abortion.
• After the first trimester, the state may regulate the procedure in
the interest in maternal health because the risk of the abortion
to the mother is increased.
• The state’s compelling interest to potential life is at viability
(where the fetus is capable of living outside of the mother’s
body). State also has a compelling interest in the health of the
mother at this point. State may regulate any aspect after this.
May ban abortion after viability if the woman’s health is not in
danger.
• Excerpt from the oral arguments highlights the issue of
whether the fetus is a person subject to constitutional
protections. The court decides not to make that
determination.
• Dissent felt that the right of privacy was an unfounded
right. No textual basis in the constitution. There is no
substantive due process. Court’s invalidation of first
trimester restrictions is judiciary legislating.
Planned Parenthood of S.E. PA v. Casey
Facts: PA Abortion Control Act required the following things in order

for a woman to get an abortion:
1. Informed consent provision:
• Woman had to receive information about the procedure
• Woman had to wait twenty-four hours after receiving
the information before getting the abortion.
2. Minors had to get parental consent (but it contained a

judicial bypass provision)
3. Married women had to inform husbands of their intent.
4. Reporting requirements for facilities that performed the
abortions.
Issue: Was the PA statute unconstitutional on its face in light of Roe?
Holding: The statute was constitutional except for the spousal consent
provision.
Rationale: Court began its analysis by affirming its central holding in Roe.
The central holding had three parts:
1. The right of a woman to choose abortion before viability
without undue interference from the state.
2. State’s power to restrict abortions after viability if the
woman’s health is not in danger.
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3. State has a legitimate interest in protecting the health of

women and the life of the fetus from the outset of the
pregnancy.
• Court reassesses the state’s interest and rejects the
trimester framework. Now the state can regulate
abortion from conception
• Thus, the Casey court interpreted the third part of Roe’s
central holding differently.
• Goes into a discussion of stare decisis. Sets the
standard to apply when overruling precedent: look to
changes in the factual predicate for the decision,
whether it is unworkable - Roe is not unworkable, but
the trimester system can be overruled because of
medical advances which have changed the risks of
abortion, pregnancy, and changed the point of viability.
Also, has the rule been relied on to the extent that it
would be unjust to change it? Women in society have
been dependent on this decision. Court addresses the
pressure to overturn Roe – this is not a sufficient reason
to overturn a decision. Next addresses the development
of post-Roe case law. Two lines of cases, neither of
which has undermined the right Roe found in the
fourteenth amendment:
Notes:
• Griswold and its line of cases protect marital privacy

and sexual intimacy.
• Cruzan and its line deal with personal autonomy and
the right to make decisions regarding medical
treatment. If the state could prohibit abortion, could
also begin population control.
• Court announces a new standard: the undue burden
standard. A state cannot place an undue burden on a
woman’s right to obtain an abortion before viability.
Applying to the provisions of the statute:
1. Informed consent – not an undue burden.
The state can promote a pro-life policy to try
to limit abortion because of its interest in
promoting childbirth from conception (can
make obtaining an abortion more difficult or
costly). This makes women more aware of
the consequences. Would, however, be an
inconvenience to many rural women who
must make two trips because of the waiting
period; but, a burden to some does not
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invalidate the provision.

a. This is a significant change in the
law! Other cases had struck
down such requirements on the
basis of Roe’s trimester system.
2. Parental consent – the judicial bypass
provision saved this requirement from being
an undue burden. If the kid cannot get the
consent, the court can give a decree stating
that they do not need the consent.
3. Spousal consent – this was an undue burden
in light of the terrible consequences for the
millions of abused women. In these cases,
the spousal consent requirement would act
as prevention. Different from minors
because they can have more restrictions
under the fourteenth amendment.
Rehnquist Dissent: The undue burden standard is an unjustified

constitutional compromise that allows the court to
closely scrutinize all types of abortion regulations
without the constitutional authority to do so.
Abortion involves the purposeful termination of
potential life and is thus different from the other
areas of privacy like procreation and contraception.
There is no deeply rooted tradition of abortion
freedom in our country due to the many prohibitions
that have existed since the adoption of the
fourteenth amendment. The correct standard should
be that states may regulate abortion procedures in
ways rationally related to a legitimate state interest.
Thus, the act should be upheld in its entirety.
Scalia Dissent: A legislative decision whether to permit abortion on demand. Abortion is

not a liberty protected by the Constitution because the Constitution says nothing about it, and
longstanding American traditions have allowed its prohibition.
Substantive Due Process: Family and Intimacy Interests
Moore v. City of East England
Facts: The government may not pass zoning regulations which impair the
ability of family members to reside together, even if the family is
an “extended” rather than nuclear one.
Holding: A person’s decision about how to conduct his family life often
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rises to a level of fundamental right and state interference must

meet strict scrutiny.
Rationale: rights of members of a family, even a non-nuclear one, to live

together was a liberty interest, and that state impairment of that
interest must be examined carefully. Although the state interests
advanced in support of the ordinance were legitimate ones (i.e.
preventing overcrowding, traffic congestion, burdens on local
school systems), these interests were only marginally advanced by
the ordinance.
Lawrence v. Texas
• TX law criminalized homosexual sodomy. Court held that liberty presumes an autonomy
of self that includes freedom of thought, belief, expression, and certain intimate conduct.
The case involves liberty of the person both in its spatial and more transcendent
dimensions. A person’s sexual conduct also receives substantive due process protection.
Cruzan v. Director of Missouri
• Court considered for the first time whether the US Constitution conferred a right to
terminate life-sustaining medical treatment.
• She didn’t leave clear instructions on what to do if she were to be in vegetative condition.
• Missouri had a statute in placed that provided the process, whereby the next of kin could
come in and have the equipment removed.
• The hospital had issues…they were forced to go to court.
• Statute required clear and convincing evidence….beyond a reasonable doubt. Lowest
level: preponderance evidence. Clear and convincing is a pretty high standard…right
under beyond reasonable doubt.
• Is the evidentiary standard permissible by the state to deny Nancy her right to have
feeding tube removed?
• Court said that there is a constitutionally protected liberty interest for a COMPETENT
person to refuse unwanted medical treatment.
• You can’t be forced by the state to accept medical treatment if you’re competent.
• In the case of incompetent person, the court points out, the state’s interest here is
important. The state has an interest that whoever is speaking for that person is acting in
good faith and that they are really protecting that individual’s inability to speak for
himself/herself. Therefore, the evidentiary standard should be allowed in order for the
state to protect incompetent people.
• The court talks about how at the time suicide is still very much viewed as a morally
wrong activity…you don’t have a right to die, but you have a right to refuse medical
treatment.
Washington v. Glucksberg
• Court said there is no fundamental right to die when looking at our nation’s history.
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Therefore, we use rational basis test rather than strict scrutiny.

• Rational basis: interest preserving human life, interest to improve quality of life, interest
in protecting vulnerable groups from abuse, mistake, neglect, and coercion.
• Legalization of euthanasia and assisted suicide, unlike abortion, raises the specter of an
increasingly cost-conscious medical system advertenly or unconscious tracking
vulnerable populations away from expensive and personally demanding medical
treatment or palliative care toward less expensive and easier medical suicide.
• These are considered legitimate interest and not a compelling interest, but enough to
make statute constitutional.
National Powers
A. Presidential Action affecting Congressional Powers.

1. Inherent presidential power? Article II of the Constitution begins, “The
executive power shall be vested in a president of the USA.” Article II
then enumerates specific powers of the president:
a. commander and chief of the armed forces;
b. power to grant reprieves & pardons;
a. power to make treaties (w/ 2/3rds Senate approval);
b. appointment of ambassadors, officers, Supreme Ct. Justices (w/
2/3rds Senate approval)
3) Other powers of the president:
a. Recommends legislation to Congress.
b. Receives ambassadors
1) Thought to be more “ceremonial” power, by Framers who
did not desire a strong executive; this may explain why so
many power require Congressional concurrence.
c. Most significant power in § 3: “take care” clause- “The president
shall take care
that the laws be faithfully executed.”
2. Most military powers are for Congress in Article I
3. Separation of power- constitutional effort to allocate different sorts of
power among three governmental entities
4. Checks & balances- constitutional effort to ensure that the system will be
able to guard against usurpation of authority by one branch.
5. Purpose of checks and balances-
a. Efficiency because of division of labor among the branches;
b. Prevention of tyranny; separation of power diffuses
governmental power thereby diminishing the likelihood that any
one branch will be able to use its power against the citizenry.
6. Non delegation doctrine-the principal that Congress may not delegate its
legislative power to administrative agencies, thereby forcing Congress to make
the policy choices, rather leave this to unelected administrative officials.
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Youngstown Sheet & Tube Co. v. Sawyer (1952)

- The leading case addressing the scope of inherent presidential power (the ability
of the president to act without express constitutional or statutory authority)
Facts: There was a Korean War and steelworkers said they were
going on strike. President Truman issued an executive
order directing the Secretary of Commerce to take
possession of the steel mills and to keep them running.
Truman believed a steel strike could endanger the national
defense and the war effort in Korea because steel was
needed for weapons and relied on the following powers to
allow an emergency power: 1) commander-in-chief, 2) the
take care clause, 3) executive power clause. The Court
declared the seizure of the steel mills unconstitutional.
Rationale:
• Commander in Chief Argument does not have the ultimate power as such to take
possession of private property to keep labor disputes from stopping production. This is a
job for nation’s lawmakers, not for military authorities.
• Executive Power Argument president’s power to see that the laws are faithfully
executed refutes the idea that he is to be a lawmaker. Constitution limits his function in
the lawmaking process by recommending of laws he thinks wise and vetoing of laws he
thinks is bad. Only Congress can make laws.
• Preamble says why president has authority to order seizure: says what policies should be
adopted and proclaims these policies as rules of conduct to be followed…which is like a
statute. Constitution doesn’t give this power to president or military chief. Commander
in Chief Argument commander in chief does not have the ultimate power as such to
take possession of private property to keep labor disputes from stopping production. This
is a job for nation’s lawmakers, not for military authorities.
• Whether the president has the authority to do a particular thing? When do we use this
test? When the president does something. President usually acts through an executive
order. First thing you’re going to ask, does he have the power to do this? Next, has the
president acted w/authority from Congress or without? Has Congress explicitly said NO
you don’t have authority! If there is not explicit authority or no explicit denial of
authority, we are in Twilight Zone. Now we look at history to see if there is practice…a
systematic of similar activities by president and congress just allowed it? Or is he acting
alone inconsistent w/practices of other presidents? You could argue…he acts inconsistent
w/other presidents but he has Article 2 powers.
• Executive Power Argument president’s power to see that the laws are faithfully
executed refutes the idea that he is to be a lawmaker. Constitution limits his function in
the lawmaking process by recommending of laws he thinks wise and vetoing of laws he
thinks is bad. Only Congress can make laws.
• Preamble says why president has authority to order seizure: says what policies should be
adopted and proclaims these policies as rules of conduct to be followed…which is like a
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statute. Constitution doesn’t give this power to president or military chief.
B. Congressional Action Affecting Presidential Powers

1. Delegation of Rulemaking Power
a. Congress must keep its lawmaking powers; it can delegate its rule-
making power by:
1) Legislative objective (policy is to be set by Congress.)
2) Congress must establish parameters, including when the
maximum price should be set, and what items the price
may be set on.
b. There is a less stringent standard today, than the standard of
yesteryear.
In areas where Congress clearly has authority, Congress
may delegate that authority to the President after Congress has
made the policy. Congress must provide guidelines to President to
implement policies. President may act as long as there is no
express constitutional prohibition for him to act and as long as
delegating does not violate non-delegation doctrine.
2. Legislative Veto – congressional check. Delegates power to the
executive branch,
but reserves the power to approve.
a. Congress cannot
delegate its legislative policy. But, can delegate
rulemaking authority to executive agencies. Legislative
veto is a way to stay involved by checking the power.
b. Congress included in statute provisions

authorizing Congress or one of its houses or committees to
overturn and agency’s action by doing something less than
adopting a new law. The typical form of a legislative veto
provision authorized Congress to overturn an agency’s
decision by a resolution of one house of Congress.
a. Legislative vetos also took the form of overturning
agency rules by resolution of both houses of Congress or
even by action of a congressional committee. Over 200
federal laws contained legislative veto provisions. Once
Congress has delegated power to Executive Officials, it
cannot reserve the power to set aside the Officials actions
pursuant to the delegating statute. Such a “legislative
veto” violates the bicameralism and /or presentment
requirements of lawmaking provided by Art. I and more
generally constitutes a Legislative encroachment on the
Executive Power.
Limits of Executive Powers
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Dames and Moore v. Regan (1981)
Facts: Presidential executive orders implemented an executive

agreement between Iran and the U.S., securing the release
of American hostages. The agreement called for the
termination of all litigation between the governments and
the people of the countries. Settlement of claims was to be
through arbitration. P had its prejudgment attachment from
an Iranian company vacated pursuant to the order.
Rule: Executive agreements are allowed for things necessary to
foreign policy matters.
Holding: the court upheld the executive order.
Rationale: The President’s action was taken pursuant to a specific
authorization by Congress, under the International
Emergency Powers Act. This category of delegation has
the strongest presumption of Constitutionality and widest
latitude of judicial interpretation. Although the
authorization did not specifically allow the suspending of
claims, it is still constitutional because Congress cannot
anticipate every single thing that could occur when it
passes legislation.
a. Here, as in Youngstown, and Curtiss-Wright, we are

discussing the presidential power as to the rights of private parties.
Concerned with protecting liberty.
b. Court’s rationale for sustaining the action is similar to approach

one of Jackson’s concurrence in Youngstown where President was
acting with Congressional approval.
U.S. v. Nixon
Facts: Cert. granted after denial of a motion to quash a 3rd

party SDT. Nixon challenged a SDT served on him as a 3rd
party requiring the production of tapes and documents for
use in a criminal prosecution. Nixon refused to turn over
tape recordings and documents subpoenaed in the
Watergate investigation.
Rule: The President does not enjoy an absolute

generalized privilege, which would allow him to shield all
communication from a SDT in a criminal proceeding.
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Holding: Nixon’s first claim, that separation of

powers bars the judiciary from evaluating his claim of
privilege, must fail. Past decisions such as Youngstown
show that the courts do have the power to invalidate acts of
the executive and the legislative branches. It is the job of
the judiciary and no other branch to determine what the law
is. Nixon was claiming a broad, absolute privilege without
any assertion that it is necessary for the protection of the
military, diplomatic or national security secrets.
JUDGMENT OF THE APPELLATE COURT AFFIRMED
Perhaps the Court envisioned that if the President

claimed and enforced an absolute privilege for his
communications he would then be “above the law”.
NOTES: executive privilege- right of the President to

keep his communications confidential in certain
circumstances.
c. Nixon us about compulsory process. Federal Marshal’s (who

serve under the President) would have forced Nixon to comply,
basically Nixon would have had to enforce a SDT against
himself-so he resigned.
d. The AG is in charge of the enforcement of federal laws, but he
answers to the President. He serves at the will of the President
and is 2nd in command.
e. Fitzgerald v. Nixon- civil action for damages,( for
unconstitutional firing) because of a decision made during the
Nixon presidency-follows after Nixon resigned.
1. The Court held that the President is not liable for acts occurring
during his Presidency. If the Court had allowed this liability (1) no
one would be President i.e. too damaging to the Presidency
2. The President would be personally liable
• “Official act” is the deciding factor in executive
privilege.
• Clinton v. Jones-unofficial act prior to taking office
o Clinton argues for a stay of civil litigation until
his term is over to avoid being distracted from
his duties as President. (Art. II)
o The Court unanimously ruled out that Art. II
power required a stay of litigation –Article II
does not require the Court to grant an automatic
stay during the pendency of civil litigation,
which means the President can be sued while in
office for acts occurring before his Presidency.
38
(no automatic stay)

Art. II President
↓
Special Prosecutor →→→→→→→→Once you delegate
you may give up some control Mr. President and you are no
longer exempt from absolute executive privilege. (The
Special Prosecutor investigates his boss)
NOTES:
• The President needs to be able to speak candidly with
his advisors, therefore the President should have
executive privilege, i.e.
o Policy issues
o Response of public
o Media pressure
o Particularly in regards to national security
o Controversial issues
• The needs of the Criminal Justice system must be
considered and overrides executive privilege. The
Court decided that the needs of the people were so
important and must be balanced with the needs of the
indicted so-conspirator to be protected to ensure that
they are properly convicted.
• National security or military security needs should be
presented before executiver privilege would be
effective.
• Privileges must be narrowly construed.
• Needs of criminal defendants or to ensure sufficient
exists and must be balanced with privilege.
C. The Foreign Affairs and War Powers

1. We are concerned with whether Congress or President is practicing a power outside of its
sphere because of potential encroachments on liberty.
a. Article I § 8 defines Congress’s power in foreign affairs:
1) clause 1 – provide for the common defense
2) clause 2 – commerce with foreign nations
3) clause 4 – naturalization and immigration
4) clause 10 – punish piracies and felonies on the high seas
5) clause 11 – declare war
6) clause 12 – raise and support armies
7) clause 13 – provide for a navy
8) clause 18 – necessary and proper clause
b. Article II defines the President’s foreign affairs powers:
1) To make treaties
2) Appoint ambassadors and other public ministers with approval of
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Congress.
3) Ability to recognize a foreign government.
4) Commander-in-Chief
Necessary and Proper Clause
A. Sources and Nature of Legislative Power - Main source of legislative power is

Art.I § 8 – the enumerated powers of Congress.
1. Other sources of power:
a. Art.I § 4 – procedure for elections
b. Art.III § 1 – power to create and define lower federal courts
c c. Art.IV § 3 – power to regulate federal lands
d d. Reconstruction amendments, 13-15 give the power to make
laws.
3. McCullough v. Maryland (1819) The relationship between federal and

state governments
Facts: Action arising out of violation of state statute. Def. McCullough, a

federal bank cashier, refused to pay a state tax levied on the Bank
of the U.S. McCullough issued bank notes in violation of a MD
statute providing that no bank without authority from the state
could issue bank notes except on stamped paper issued by the state.
The state purports to place a tax on a federal entity; therefore this
became a federal issue. There was serious disagreement regarding
the U.S. government establishing a bank.
Like Marbury, this case defines power of federal government when

MD taxed the national bank operating in its borders.
Issue: (1)Did Congress have the power to create a national bank? (2)Did
a state have the power to tax the operation of an institution created
by Congress pursuant to its constitutional powers without violating
the Constitution?
Rule: Certain federal powers giving Congress the discretion and power
to choose and enact the means to perform the duties imposed upon
it are to be implied from the necessary and proper clause. The
federal constitution and the laws made pursuant to it are supreme
and control the Constitution and the laws of the states. The states
have no power to burden the operation of federal laws designed to
execute powers vested in the federal government by the
Constitution.
Holding: (1) Yes, under the necessary and proper clause. Congress has the
power to incorporate a bank. All three branches of gov’t act
40
together therefore there is no tension on this issue.
Necessary and proper clause- The Constitutional provision which

allows Congress the ability to make laws “necessary and proper”
for the promotion of its enumerated powers.
Writ of error- A writ demanding a lower court to submit the

record of a case for review.
(2)No, Maryland cannot tax a branch of the U.S. without violating

the Constitution. (a) The Constitution and the laws made pursuant
to the Constitution are supreme. (b) the control the laws of the
U.S. and (c) cannot be controlled by them. A power to create
implies a power to preserve. A power to destroy is wielded by a
different hand, is hostile to and incompatible with these powers to
create and to preserve. Justice Marshall opined that states retain
the power to tax, however, the Constitution may restrict that
power, i.e. citizens, Fed. Gov’t taxing national institution is
unconstitutional because it is illogical.
Reasoning: Nature of constitution is a broad outline. Although the enumerated

powers do not specifically give the power to create the bank, the
necessary and proper clause (Art. I § 18) gives Congress the power
to pass laws necessary for carrying out the powers it does have.
Necessary and proper clause is listed among the powers of
Congress, not the limits. There is no reason why a bank cannot be
formed to carry into execution the powers of the government.
Further, Marshall pointed to the 1) Historical reasons behind the
bank. 2) Just because the states ratified the Constitution, does not
mean that they retain ultimate sovereignty, the people, not the
states, ratified the Constitution. 3) Scope of Congressional power
is not limited to enumerated powers. 4) Necessary means useful or
desirable, not indispensable.
4. The articles of confederation stated that the powers "expressly" not

provided to Congress are for the states. The Constitution does not use the
word expressly, and its absence shows that the powers do not have to be
expressly granted to Congress in the enumerated powers.
5. Necessary and proper clause is a way to execute the enumerated powers.

Enumerated powers are powers in and of themselves. Necessary and
proper powers are a means to an end. Must be a reasonable relationship
between the means and the end. Ex: Congress has the power to lay and
collect taxes, so the N&P powers give a way to do this, i.e., through a
bank.
41
6. The people of one state should not have to trust those of another to control
the operations of a government to which they have confided their most
important and valuable interests.
7. If MD could tax a bank; they could tax the mail or the mint. The federal
gov’t could tax a state bank but not vice versa. The state power to tax
could be destructive.
8. The “necessary and proper” Necessary and Proper Clause: Necessary

and proper clause is not restrictive clause but an empowering clause.
Common usage of necessary is “any means calculated to produce the end”
not only those means w/o which the end cannot be attained. Must be tied
to an express power. Contrasts its use here w/the use of word in Art. I,
S10, p2: absolutely necessary:
9. Art. I, Sec. 10, p 2: No state shall, w/o consent of congress, lay any
imposts or duties on imports/exports, except what may be absolutely
necessary for executing its inspection laws. Compare to: to make all laws
which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by the constitution in the
government of US.
10. Enumerated powers- The fact that the enumerated powers don’t’
expressly include the power to charter a bank doesn’t mean that Congress
lacks the power to charter a bank…no phrase excludes incidental or
implied powers & no phrase requires that everything granted to Congress
must be specifically described; the 10th amendment does not include word
“expressly.”
11. 10th Amendment: Powers not delegated to US, no prohibited by the

states, are delegated to the people. Enumerated powers include incidental
powers. Constitution is an outline document; must be interpreted by
reference to the whole of the document; by the nature of the document and
the language used: in consider then, we must never forget, that it is the
constitution that we are expounding.
12. Enumerated powers include implied powers. The enumerated powers

include a number of powers related t the power to charter a bank; to levy
taxes, to borrow money, to regulate commerce, to declare and conduct
war, to raise and support armies and navies. These express powers include
“ample means for their execution,” otherwise the granted of express
powers would be meaningless. Power to charter a bank is different than
the power to declare war, levy taxes, or regulating commerce. It is not an
ends but a means through which other powers are exercisea way to
effectuate the other powers.
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13. Implied powers- powers impliedly delegated to the various branches of

government that, while not expressly stated in the Constitution, are
necessary to effectuate the enumerated powers.
Federalism- a scheme of government whereby the power to govern is

divided between a central and localized government.
Limits of Congressional Oversight
INS v. Chadha (1983)
Facts: Involved a legislative veto of an adjudicatory proceeding;

Congress by resolution of the House of Representatives
overturned an immigration judges decision to allow Chadha
to remain in the country. Federal law gave either house of
Congress the authority to overturn an INS decision to
suspend deportation. Congress was making a policy
decision on when people can be deported, and when a
deportation can be waived. (The INS is the agency that
makes these determinations.) The Court has almost no
role when dealing with aliens. Court has very minimal
review. Chadha was the 1st time the Court gave full
review.
Issue: Is the one house veto a legislative act? Is it ocnstitutional.
Holding: the Supreme Court declared the legislative veto

unconstitutional.
Rationale: Justice Burger’s main premise was that Congress may

legislate only if there is bicameralism, passage by both the
house and the Senate, and presentment, giving the bill to
the president to sign or veto. (Because lawmaking is subject
to the “bicameralism and presentment clause” prescribed in
Art. I § 7- a federal statute authorizing a one house veto of
an Att. General decision is unconstitutional.) (Majority
took strict originalist approach.) Chief Justice Burger
continued declaring, "that the action was essentially
legislative in purpose and effect." The effect of the
legislative veto was to alter "the legal rights, duties, and
relations of persons, including the Attorney General,
executive branch officials, and Chadha. Accordingly, the
court concluded that it was legislation and that it did not fit
into any other limited situations under the Constitution
where one branch of Congress can act alone. Chief Burger
43
also expressly rejected the position that the legislative veto

was necessary to issue adequate checks and balances.
Chief Justice Burger's majority opinion was highly
formalistic. Burger emphasized the formal structure
prescribed in the Constitution for adopting laws and
dismissed the functional concern that the legislative veto
was essential to check administrative power.
Concur: Justice Powell did not fully reject the concept of the
legislative veto as the majority did; he just did not agree
with Congress acting as the arbiter of individual rights for
the citizens that it legislates in the name of. He believed
that the problem was that the Congress assumed a judicial
function in violation of separation of powers. He argued
that in this case Congress made its own determination
regarding individual rights-a function reserved for other
branches.
Dissent: Justice White wrote a strong dissenting opinion

(functionalist approach- governmental efficiency: much
like the dichotomy we saw in Youngstown case),
emphasizing the need for the legislative veto as a check on
the broad delegations of legislative power. (This is
consistent with the Framer’s intent WRT checks and
balances) Justice White explained that although the
legislative veto was not contemplated by the framers of the
Constitution, nor were the expansive delegations found in
countless statutes creating administrative agency's. He also
stressed the fact that no one would have standing to
challenge Chadha’s presence in the US; and this case
would not be going beyond the scope of the constitution,
but merely implementing its underlying intent. Also, White
lamented that the majority in Chadha invalidated "in one
fell swoop provisions in more laws enacted by Congress
than the court had cumulatively invalidated in its history."
White could not spell-out all instances of hardship that
could possibly occur.
1) The dispute among the justices in Chadha was over

the proper form of analysis in separation of powers
cases. Neither the majority nor the dissent
addressed whether the legislative veto is actually an
effective tool for checking administrative agencies.
2) Almost immediately after Chadha, the court
extended its holding to preclude legislative vetoes
of agency rules. It is now clearly established that if
44
Congress wants to overturn an executive action

there must be bicameralism, passage by both houses
of Congress, and presentment, giving the bill to the
president for signature or veto. Anything less is a
legislative veto and legislative vetoes are
unconstitutional.
Purpose of Article I § 7:
The concepts of bicameralism and presentment were
derived from the federalist papers: The Framers saw
checks and balances as an inherent part and parcel of the
doctrine of separation of powers; and a necessary conduit
for the maintenance of liberty. The Framers did not care
that it was cumbersome; they felt it was a necessity. A
government with unchecked powers would trample on the
rights of citizens.
1) When framers allowed a house to act alone they
specifically noted those times i.e. Impeachment,
treaties, appointment of Ambassadors:
1) The more specificity in the constitution the more
likely silence means rejection of that power.
2) Statutes get passed when it goes through both
houses and gets signed by the President or he vetos it
NOTES:
• Non-justiciable- not reviewable by the courts
• Presentment clause- Art. 1-which requires that all
legislation be presented to the President before becoming
law.
• Bicameral requirement- Art. 1, which requires that the
legislative branch be divided into 2 houses, both of which
approve all legislation by a majority vote.
• Legislative veto- mechanism used by Congress as a
check on the exercise of delegated authority where by
Congress reserves for itself the power to override a
particular such exercise.
• Delegation doctrine- a result of the rise of federal
agencies. These agencies answer to Art. II to help the
President implement federal policy. The President does
not create the agencies the legislature creates the
agencies.
• Agencies- a device used to fill in the gaps of legislation,
particularly when it deals with scientific areas it may be
more efficient for agencies to deal with those who are
affected, i.e. EEOC, EPA
• Regulations once implemented are the same as statutes
• Agencies took hold during the New Deal era.
45
a. Congress could delegate to agencies:

i. The rule making authority. There is a
point when the delegation gives too
much power away, making it
unconstitutional. Heads of agencies
report directly to the President.
b. Agencies also have investigational powers,
which mean that theoretically they can pass
laws. Not a separation of power problem.
c. Adjudicatory powers-a major exception to this
would be immigration because the Court always
has the power to decide jurisdiction.
Limits of Congressional Oversight
Morrison v. Olson-Supreme Court upholds constitutionality of the Independent

Counsel
Facts Congress passed a law (Ethics in Gov’t Act), which provided for
an independent counsel, appointed by judicial branch to investigate
and prosecute crimes by certain officials of executive branch. No
decision by the AG was reviewable under the Act, whether to seek
or not to seek an IC. IC could be removed only by AG for “good
cause” or by Congress by impeachment. Olson and others sued
after being subpoenaed by Morrison, a newly appt’d IC.
Rule: The Act does not violate separation of powers doctrine b/c it
doesn’t restrict the president’s power. IC could terminate the
special prosecutor only for good cause and the executive branch
retains ample authority to assure that the counsel is competently
perform her statutory responsibilities.
Notes: IC statute was eventually declared unconstitutional because the

removal process conflicted with the separation of powers doctrine.
IC interferes with the executive function. Usurpation of executive
power becomes a problem.
• An inferior officer can perform only limited and
specific duties and is removed by the AG.
• IC’s jurisdiction is limited and is decided by the judges
• The IC has limited tenure
• The IC is removed by the AG
• The IC is not appointed by the President or with his
approval.
46
Mistretta v. United States: Congress does have considerable flexibility in assigning to the
Judicial Branch tasks that might be considered law-making one, at least where the subject matter
relates to the role of the courts.
Involved the US Sentencing Commission which was set up by Congress to develop mandatory
guidelines that federal judges would have to apply in setting sentences for federal crimes.
Congress provided that of the seven voting members, three had to be federal judges. Ps claimed
that this was assigning to the judges on the Commission not the job of interpreting the law, but
he job of making sentencing policy, a classic legislative function. The court rejected this claim
of unconstitutional delegation of law-making authority to US; the judiciary plays the major role
in sentencing, allowing some judges to participate in the making of guidelines for sentences does
not threaten the “fundamental structural protection of the constitution.”
Why might Congress delegate to Executive? Limits?
• Congress has it b/c it is the legislative branch. The Court limits Congress’s power
especially when it comes to the state.
• EfficiencyIt is more efficient for Congress to give it to a federal agency
• Cost attached to the exercise of power that might make Congress (in political
term)unpopular if they do it---so they will delegate to agency to let them take the
unpopular bill, etc..
• Expertise usually delegating it to experts….one way to garner expertise. Now we’re
going to rely on experts who know the field and pass laws. Members of Congress are
politicians, and are not there b/c they are experts in chemistry, bio-engineering, etc…
that’s what we get when we create agencies.
• The bad part about it is that agency process can be slow.
• Should they be immune from lobbyist/being swayed by constituents?
• Administration is a huge part of the law and is more practical
• Congress can delegate huge amounts of its power.
• The agency knows what policy choices Congress has made. Court can see if agency acts
comports w/policy choices of Congress.
Limits?
• Congress wants to exercise control over the delegation. How is Congress able to check
agency action?
• Legislative process: they can amend, modify, repeal whatever the agency has done.
• They can budget their expenses. Congress can pass a budget and authorize in legislation
and what is going to be spent on what and who gets to spends it…who actually controls
the money.
War Powers
1. The Constitution gives both Congress and the President special powers w/respect to war.
Congress is given the power to declare war and make rules concerning captures on land
and water. It is also given the power to raise and support armies; to define and punish
offense against law of nations
2. President is the commander in chief of the armed forces.
47
3. Hamdi v. Rumsfeld : the prisoner Hamdi, an American citizen was captured in

Afghanistan in 2001because he was an enemy combatant. He had been associated w/the
Taliban and surrendered himself. The military transferred him to a naval brig in SC. The
Bush administration asserted that by designating him as an enemy combatant, the
executive branch obtained the power to hold him in confinement indefinitely, w/o formal
charges or proceedings, so long as the war in which he had been seized continued.
Hamdi had the right to due process, at least w/respect to pursuing his claim that he wasn’t
an enemy combatant. Court used the balancing test weighing the government’s interest
in the nation’s need for security and his interest in not being deprived of liberty w/o due
process.
Congress’s Power to Regulate Interstate Commerce
1. Congress and the Commerce Clause
• The federal legislature is a government of enumerated powers. In order to

regulate internal affairs, congress must be exercising an enumerated power.
2. How does the Court determine whether Congress’s legislation is within its
commerce power?
• Congress may regulate instrumentalities of interstate commerce. (people places,
or things in interstate commerce—RATIONAL BASIS)
• Congress may regulate channels of interstate commerce (interstate roads,
navigable waters—RATIONAL BASIS)
• Congress may regulate activities even purely local activities, which in the
aggregate have a substantial effect in interstate commerce.
o Needs a jurisdictional nexus
3. Economic or Non-economic?
• If the activity being regulated is determined by the Court to be non-economic, then
the Court will make its own determination of whether the activity has a substantial
effect of interstate commerce and whether the means chosen by Congress is
“reasonably related” to Congress’s objective of regulating.
• If the activity being regulated is economic it would appear to be within Congress’
power to regulate interstate commerce.
4. Is Congress acting pursuant to an enumerated power?
• Commerce
• Spending
• Tax
• Treaty
• War
• Foreign Affairs and Immigration
48
5. How does a court determine whether activities have a substantial effect on interstate
commerce?
• If Congress has provided a jurisdictional nexus between the activity being
regulated and interstate commerce.
• Court will look to whether the activity being regulated is
commercial/economic or non-economic/non-commercial.
6. Deference?
• Absent a jurisdictional nexus in the statute and regulation on a
noncommercial (like education, gun possession in schools and gender
motivated crimes) traditionally left to state control, the Court will not defer to
Congress’ judgment that an activity has a substantial effect on interstate
commerce and may scrutinize the statute to make its own determination as to
whether the non-economical activity has a substantial effect on interstate
commerce.
7. Purpose?
• Congress may use its commerce power to accomplish goals not primarily
directed at commerce.
o Anti-discrimination statutes
o Crime statutes
8. Regulation of States?
• Congress may not commandeer state legislative processes as by requiring
states to take title to waste.
• Congress may not conscript the state’s executive officers by requiring them to
enforce a federal regulatory program like the Brady Act provisions requiring
state law enforcement officers to conduct background checks on prospective
handgun purchasers.
• Congress may regulate the states pursuant to its commerce power where the
law is generally applicable to private entities.
• Congress’ intent to include state bodies in generally applicable laws must be
plainly expressed.
Gibbons v. Ogden (1824) very broad view
Facts: NY statute granted D exclusive right to navigate steamboats in

state waters. P navigated in this area two steamboats, pursuant to a
license by an act of Congress.
Issue: Is navigation within the confines of one state considered

commerce within the reach of Congress under the commerce
clause?
Holding: Yes
49
Reasoning: First court considered what commerce means. It is not

restricted to buying and selling. Commerce is intercourse, and this
comprehends navigation. Second, court considered what the
meaning of "among the states" was. The word among means
intermingled with. Must contain more than one state. However,
Congress can regulate commerce that has an effect on interstate
activities. Navigable waterways are channels of interstate
commerce, and Congress can make rules that govern these
channels. If Congress has this power under the commerce clause,
then the states do not have this power under the 10th amendment.
NOTES:
 State power vs. Art. I power is the most prevalent, i.e. State vs. Congress.
 Gibbons defined “commerce” as more than buying or selling an
transporting goods over state lines; it also includes navigation and other
forms of intercourse between the states.
 Gibbons defined “among” as a state’s internal concerns that affect other
states
 Gibbons invokes the Supremacy Clause in overriding the N.Y. statute
Lottery Case (1903) –local control over those things strictly local in nature
Holding: Court upheld the Federal Lottery Act, which prohibited

interstate carriage of lottery tickets.
Reasoning: Lottery tickets are subjects of commerce because of the

evils associated with the tickets. If some states don't have
lotteries, they should not be subjected to having the evils in
their borders. Leaves the question of why the state cannot
protect itself.
 How is this distinguishable from insurance contracts? The lottery

ticket itself is evil. Similar to drugs or impure food.
 Prohibition is a form of regulation.
 Police power belongs to the states, but Congress can legislate if there
is a jurisdictional basis over these concerns. This is the foundation
case for this type of regulation.
NOTES:
 “Outlaws of commerce” are within the Commerce Clause and can be

regulated by Congress
 The court upheld the indictment, defining “regulate” as “prohibit”
50
Hamer v. Dagenhart (1913) CHILD LABOR
Holding: Congress exceeded its power under the commerce clause

when it attempted to prohibit the transportation of products
of child labor.
Issue: Can Congress regulate the transportation of goods

produced in factories employing under aged children as a
means of enforcing restrictions on child labor?
Reasoning: No. Congress cannot regulate commercial activities that

occur wholly within the boundaries of an individual state
and do not affect other states under its commerce power.
The goods were harmless and Congress cannot regulate
harmless goods, but Congress can regulate “evil” goods.
Here, the statute did not attempt to regulate commerce, but attempted to
end child labor. Distinguished from Lottery case because the goods made
by child labor are not evil in and of themselves. The child labor is already
completed when the goods are shipped. This is really aimed at preventing
unfair competition.
Notes:
 Lottery - Congress regulating the tickets is a direct means to
accomplishing the end of protecting non-lottery states. Here, the
transportation of goods is not connected to the evil.
 Defined the end to be regulated, as one of unfair competition, not
of child labor, and preventing unfair competition is a matter for the
states.
 HARMFUL EFFECTS TEST-Congress may regulate interstate
shipping of goods that are “of themselves harmful” Goods
produced by child labor do not meet this standard.
The Shreveport Case (1914)
Facts: ICC fixed interstate RR rates westward from Shreveport to TX

markets. Shipments from Shreveport to Texas were substantially
higher for a shorter distance than from Dallas to Marshall, TX. It
set a maximum rate for shipments from Shreveport to Texas and
ordered the railway to charge.
Rule: Whenever the interstate and intrastate transactions of carriers are

so related that the government of the one involves the control of
the other, it is Congress and not the State that is entitles to
51
prescribe the final and dominant rule, otherwise Congress would

be denied the exercise of its constitutional authority and the State
and not the Nation, would be supreme within the national field.
Holding: Congress does have the power under the commerce clause to
regulate rates charged by states of trains involved in interstate
commerce.
Reasoning: Congress has right to control operations in matters having

a substantial relationship to interstate commerce. States can't use
intrastate commerce as a way to control interstate commerce.
Courts make an exception for railways because they are
instrumentalities of interstate commerce.”
NOTES: So, from these cases, the three established areas of commerce
clause jurisdiction are:
 Channels
 Instrumentalities
 Local activities having a substantial effect on interstate commerce.
NRLB v. Jones and Laughlin (1937)(New Deal legislation) a more modern view
Facts: NLRA was to protect workers. P found that D violated the act by
discharging employees at a steel plant for union activity. Court of
Appeals held that the act was unconstitutional. Supreme Court
reverses.
Issue: Is the NLRA a wrongful attempt to regulate industry, thus,

invading the reserved powers of the states? NO
Is an act allowing federal supervision of labor relations a

permissible exercise of the Commerce Clause? YES
Reasoning: Hammer was just handed down; the Court decided not to overrule
it, so distinguished this case on its facts. Court focuses on the steel
industry as a whole and on the Depression and the need for action.
Steel industry was significant to our nation. Strike in steel industry
would have a widespread effect on interstate commerce. In fact,
this particular company was spread out all over the country. The
steel industry affects all aspects of the economy; it affects vertical
and horizontal economy. If an activity has a substantial impact,
then Congress can regulate that activity.
Employment issues are “in the flow” of commerce and can
52
substantially affect flow of commerce. However, manufacturing

and employment related issues are too indirect.
NOTES:
 Schechter Poultry (1935) – Court held that Congress could not regulate
what took place in NY livestock industry because it took place within the
confines of the state.
 Direct Effects Test- Congress may regulate that which has
a “direct effect” on interstate commerce, i.e. hours and
wages regulated because 90% of poultry came from out of
state, which had a direct effect on interstate commerce.
 Carter Coal (1936) – Court uses proximate cause analysis – this narrows
what the commerce clause covers. Wage and hour requirements are too
far removed from interstate commerce.
This case did not reject the "direct effects" test, but found that there was a
direct effect on interstate commerce.
 In most cases, the Direct Effect Test, will distinguish
between national regulation of production (a purely local
activity) and commerce.
 An economic effect, even if slight, gives Congress authority under the

Commerce Clause to regulate the activity.
 Supremacy Clause-if it is granted to the federal government-it is
“supreme” and will “trump” a state statute.
 “Necessary and Proper” clause--- plays a small role in current (modern)
affairs
US v. Darby (1941)—Modern Commerce Doctrine
Facts: Fair Labor Standards Act's purpose was to exclude from interstate
commerce goods produced for the commerce under sub-standard
labor conditions. This act regulated hours and wages of American
workers.
Issue: Does Congress have the power to prohibit the interstate shipment
of goods produced under these conditions?
Rule: A test which is still in effect today: Power under the commerce
clause extends to intrastate activities that have a substantial effect
on interstate commerce. This view was a broader interpretation.
Holding: Though the manufacture of these goods is not interstate commerce,

their shipment is; thus, Congress has the power to regulate, as long
as the power does not infringe upon some other Constitutional
prohibition.
53
Reasoning: Overruled Dagenhart. Court must decide whether the employment

at hand is so related to commerce as to be within the reach of
Congress. Here, the court could not question Congress' motive
because there was a jurisdictional element in the statute
(specifically for goods in commerce). Does not matter if Congress'
motive is to regulate unfair competition.
NEW DEAL LEGACY
1. A realist approach, i.e. economic/pragmatic approach (Jones/ McLaughlin)

2. Formalist approach, i.e. Darby,
a. Congress prohibited the shipment in interstate commerce of
certain goods.
b. Regulating directly-Congress directly regulates the wages and
hours of employees producing goods for interstate commerce.
c. The Darby court justifies the direct regulation as a “necessary
and proper” means of enforcing the ban on interstate shipping.
3. Unfair competition-Court justifies the direct regulation on an
“independent” ground, i.e. eliminating unfair competition.
a. It was lawful to pay substandard/sub minimum wages in some
states
b. Paying such wages is “unfair” only in that some states chose to
require employees there to pay higher wages.
Wickard v. Filburn (1942)

Facts: Agricultural Adjustment Act imposed a penalty on D for
bushels of wheat produced on his farm in excess of the
national allotment. The wheat had been grown specifically
for D's family's consumption, and was not sold.
Issue: Is the Act constitutional when it extended federal regulation

to production not intended for commerce?
Holding: Yes
Reasoning: There is no catch phrase or formula to determine the power

of Congress. Must consider the actual effect on interstate
commerce (don't look at direct v. indirect effects). D's
consumption of wheat may be trivial, but when considered
in the aggregate, with all others doing this, it is a
substantial problem. This will affect supply and demand.
Rule: Even if an activity is local, and not considered commerce, it

is within the power of Congress if it exerts a substantial
economic effect on interstate commerce.
54
Heart of Altanta Motel v. U.S. (1964)
Facts: P owns and operates motel, and solicits patrons from outside of the
state of GA. Seventy-five percent of its guests are from out of
state. Refused to rent rooms to blacks, in violation of the Civil
Rights Act of 1964. Title II of 1964 Civil Rights Act, required
full and equal enjoyment, etc, without discrimination on the basis
of race, religion, etc.
Hotel and motels providing service or offers to serve transient

travelers affected commerce per se.
Plt. sought a declaratory judgment that Title II was

unconstitutional.
Issue: Does this local activity effect interstate commerce?
Holding: Yes. The Court upheld the statute as a valid exercise of the power
to regulate interstate commerce.
Reasoning: Purpose of the act is to provide equal access to public

establishments. Discrimination by race burdens interstate
commerce because it makes travel for blacks less enjoyable, and
discourages them from traveling (this is the jurisdictional link
between discrimination and interstate commerce). Does not matter
that this is local because the power of Congress to promote
interstate commerce also includes the power to regulate local
incidents thereof. There was similar analysis as in Jones and
Laughlin where the court looked at the industry as a whole.
Court acknowledged that in framing Title II, Congress was also

dealing with a moral problem. That fact, however, does not detract
from the evidence of the disruptive effect racial discrimination has
had on commercial intercourse. In this case, aggregating works. It
did not matter that the motel was “of purely” local character,
because the power of Congress to promote interstate commerce
also includes the power to regulate incidents and local activities in
both State of origin and destination, which might have a substantial
and harmful effect on that commerce.
Katzenbach v. McClung (1964)-restaurant discrimination
Issue: Whether Title VII, as applied to a restaurant receiving about

$70,000 worth of food that has moved in commerce (out of
55
$150,000 worth of total food) was a valid exercise of the power of

Congress.
Holding: Yes
Reasoning: Court again applied the rational basis test – it is up to Congress to

make the jurisdictional link between discrimination and interstate
commerce. Fact that this effect on interstate commerce is
inconsequential because Congress determined that it did have a
direct effect. Blacks are shown to spend less at restaurants where
discrimination is practiced. Closely connected to interstate
commerce because the less food the restaurant sells, the less it buys
in interstate commerce. Also discourages new businesses from
forming. Also, consider the aggregation doctrine.
The court only had to find a reasonable relationship between the

means used, and the goal of protecting interstate commerce.
Judicial review must be exercised with great deference.
U.S. v. Lopez (1995)
Facts: D carried a gun to a TX school in violation of a federal Gun Free

Schools Act. Appeal from reversal of conviction for knowingly
possessing a firearm in a school zone.
Court of Appeal reversed ruling that the law was beyond the reach
of the Commerce Clause. U.S. appealed.
Rule: Congressional authority based on the Commerce Clause extends to

activities that implicate:
1) the channels, or the use of channels of interstate
commerce (Heart of Atlanta, and Darby-labor relations)
2) the instrumentalities of interstate commerce;
(Shreveport, Perez-facilitation of commerce)
3) activities having a substantial relation to interstate

commerce, exchange of money for goods, to interstate
commerce. (Jones-- commercial vs. non commercial,
direct vs. indirect effect)
Issue: Was the act constitutional under the commerce power?
Does a federal statute based in the Commerce Clause, which

regulates firearms in a school zone, exceed Congress’ power to
regulate commerce?
56
Holding: No, it neither regulates a commercial act, nor contains a

requirement that the possession of the gun be connected to intestate
commerce (jurisdictional nexus).
Yes. The Constitution delegates to Congress the right to regulate

commerce.
Reasoning: Need to find whether this has a substantial relationship to interstate

commerce, because it is not a channel or an instrumentality. Not
substantially related because this is a criminal statute having
nothing to do with commerce.
The Court did not agree with the U.S. contention of “cost of crime”
reasoning:
a. i.e. violent crime which §922 seeks to prevent spreads
its cost through the whole population by rising
insurance costs;
b. violent crime reduces the willingness of individuals to
travel to certain areas and may handicap the education
process and thereby producing a less productive
citizenry (National productivity argument).
To follow this rationale would convert commerce power to police
power, which is retained by the State. This would also allow
Congress to regulate all activities that would lead to violent crime,
no matter how tenuously it was related to interstate commerce.
 Congress could have added the jurisdictional element by stating that the
guns had to be from other states, etc.
 Policy considerations are such that, if they could regulate this, Congress
could regulate any crime at all.
 Protects local control.
 It is not an essential part of a larger regulation that can be undercut;
 Congress made no findings of why and how it affects intestate commerce
with which the courts could use to find why the law was passed.
However, this was an emergency situation and these things take years for
hearings
 Public concern over this problem was high.
 Court also rejected the aggregation doctrine. Even if guns in school are
found in many places, it still does not have a substantial effect because it
is not economic activity.
Kennedy Concur: traditional state concern. Powers of states are sufficient to control.
Thomas Concur: Must look to what commerce was when the Constitution
was written.
57
Breyer Dissent: Must give Congress leeway in finding a rational basis.

Numerous reports generated showed that this did have an effect on
interstate commerce. It is substantial considering the nature of the
dangers.
Souter Dissent: Guns are articles of commerce and affect commercial

activity.
 In Gibbons-the court noted that this authority is complete in and of itself and may
be exercised to its fullest extent and only acknowledges those limitations set out
in the Constitution. The power was given to broadly construe the clause. The
terms “regulate” and “commerce” was defined broadly.
o However, those limitations based in the Constitution regarding Commerce,
must extend from state to state and affect other states as opposed to
activity solely taking place within one state.
 In U.S. v. E. C. Knight, (Sugar Refining) the Court held that the power of the
Commerce Clause did not extend to activities such as production and
manufacturing and mining. The Court was looking for a direct effect to be within
the Commerce Clause.
 The Court also held in Houston v. U.S. (Shreveport Rate Case) where interstate
and intra state commerce are so mingled that full regulation imposes incidental
regulations on intrastate commerce, the Commerce Clause authorizes regulation.
 In L.A. v. Schechter, (loan sharking case) he Court held that the Commerce
Clause could regulate activities that directly affected interstate commerce, but
indirect activities were out of the reach of Congress.
 In N.L.R.B. v. Jones (Steel case) discarded the direct/indirect distinction, opting
for a standard where Congress could regulate commercial activities with a close
enough and substantial relationship to interstate commerce that their control is
essential to protect that commerce from burdens and obstructions.
 Darby/Wickard took a more expanded view of Congress’ authority under the
Commerce clause.
 § 922 is a criminal statute and has nothing to do with interstate commerce or any
sort of economic enterprise. Therefore, it does not affect interstate commerce.
 § 922 contains no jurisdictional element that ensures that firearm possession
affects interstate commerce. (No nexus with interstate commerce)
NOTES:
 Re: The Consumer Protection Act---The Perez case concerned loan sharking. It
referred to Darby in that do not look at specific activity, or Congressional activity
to determine Congressional power, look to see if that activity directly effects
commerce.
 The Court will defer to Congress’ finding that an activity has an effect on
interstate commerce.
58
 In the Bass (1971) case, the Court upheld Congressional power to regulate
criminal activity. i.e. gun regulation
 The Court has concluded that a rational basis exist for determining whether a
regulated activity sufficiently affects commerce:
o Channels of interstate commerce
o Instrumentalities of interstate commerce; and
o Activities having a substantial relationship to interstate commerce
Limits to State Regulatory Power – Dormant or Negative Commerce Clause –
DORMANT COMMERCE CLAUSE
Under the Modern “Negative” or “Dormant” Commerce Clause doctrine states may not pass
laws which impact interstate commerce causing harm to other states, whether intentionally or
unintentionally, directly or indirectly (Only Congress can cause harm to the States). The aim is
to have a unified nation.
The out of state residents who are harmed or burdened by another state’s law cannot protest the
law because they lack access to the imposing state’s political process.
I. The mere existence of the federal commerce power restricts the states from
discriminating against or unduly burdening interstate commerce. It is a three part test &
must satisfy each of the following requirements:
1. Regulation must pursue a legitimate state end;

o Measures that are designed for promotion of health, safety, and welfare
objectives
o Courts more skeptical if state’s objective is to promote economic interest of its
own residents.
2. The regulation must be rationally related to that legitimate state end; AND
o Rational relation b/w means and end is all that is required ; it is not required
that the means used be the best way of achieving that end, or the way which
least affects interstate commerce.
3. The regulatory burden imposed by the state on interstate commerce must be
outweighed by the state’s interest in enforcing its regulation.
o Balancing test: where the statute regulates even handedly to effectuate a
legitimate local public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits.
The Dormant Commerce Clause kicks in when Congress has not acted
1. State Regulation of Interstate Commerce

• If Congress has not preempted an activity from regulation by the states, states may
regulate interstate commerce in a way that does not discriminate against interstate
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commerce or significantly burden interstate commerce. (when you have a regulation that
favors a local producer at the expense of the community as a whole, then it is invalid; the
preemption is that states may regulate interstate commerce as long as it has not been
preempted by Congress)
2. Does the State activity evenhandedly?
• Is the statute facially discriminatory (are those that draw a distinction b/w in-state and
out-of-staters)? –Per see invalid?
• Is the statute facially neutral?
• Even if the
3. Does the state regulate for a legitimate purpose? (benefits)
• Health, safety, and welfare of the state’s residents are legitimate and important interest
for states to seek to advance
• Economic isolation, balkanization, and protectionism are not legitimate state purposes.
• States can’t isolate themselves. States cannot be allowed to balkanize, to group or band
together.
• Protectionism-States cannot act in a way that protects their own economy to the exclusion
of other states. The protection of a state’s own economy is not a legitimate goal or
purpose.
4. Even if the state is regulating for a legitimate purpose, is there a burden on interstate
purpose? (burdens)
• If there is a burden, is it significant or incidental?
• Is the degree of the burden excessive when balanced against the state’s interest? (how do
you figure out what the burden is? You’re going to start with the statute, then you’re
going to ask who bears the burden/who is burdened? Who pays the costs? Who wins?
Who loses? Who is adversely affected by the statute? Who benefits?
• Does the statute outweigh the burden?
o Excessive vs. Incidental
o Significant vs. Insignificant
o Economical vs. Non economical
o Commercial vs. Noncommercial
o In the Healy case, it was the local milk producers that benefitted.
o Out of state milk producers were burdened.
o In state consumers…increased cost of the milk.
o They gave money to local milk producers so they could lower their milk price and
be competitive w/out of state producers.
5. Are there less burdensome alternatives for the state to accomplish its purpose?
• Exxon case: who is burdened? Arab oil embargo that has resulted in severe gasoline
shortage in the US. MD local gasoline service owners lobbied for MD to adopt this law.
MD statute prohibits…..producers and refiners can operate because they are absolutely
excluded from the market.
• Who else is burdened? Consumers
6. May states burden interstate commerce?
• If there are less burdensome alternatives for the state to accomplish a legitimate purpose,
the dormant commerce clause requires the states to pursue those alternative measures.
• States may be allowed to burden interstate commerce when they are market participants
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—regulating a market in which they are participating. Market for these purposes is
defined very narrowly.
7. Restraints on the State’s ability to Regulate Commercial Actors
• Express or impliedly preempted field: If Congress has expressly or impliedly preempted
the field. (just b/c there is an express preemption clause, you still have to do a statutory
interpretation type analysis to make sure it is valid).
• Conflict Preemption: If state regulation conflicts w/federal regulation (conflict
preemption)
• If state regulation treats other states’ citizens differently from their own w/regards to a
protected privilege and immunity under Article IV and the state cannot prove that the
difference in the treatment is substantially necessary to eliminate the “evil” which the out
of staters are creating.
8. Other restrains on state’s regulation of commercial activity
• Sates may not regulate commercial activity in an arbitrary, irrational or capricious
manner when treating commercial actors or commercial activity differently.
• State can regulate if they regulate to accomplish a legitimate purpose—there is rational
relationship b/w the purpose and the difference in treatment.
• Equal protection under the 14th Amendment: protects al persons so this allows
corporations to sue under this clause. However, b/c corporations are commercial actors,
court presumes that they generally enjoy adequate resources and can capably protect
themselves in political process by lobbying effectively. While commercial actors are
protected under EP Clause, court only requires there to be a rational relationship b/w
discrimination in treatment and legitimate objective.
o LA just passed a law saying trucks have to pay an extra $100 to go b/w
Shreveport and NOLA. Burdens interstate commerce b/w local truckers go
interstate (and vice versa). Potential C.O.A’s:
 Preemption
 DCC
 Privileges and Immunities (Art. IV—states refrained from treating out of
staters differently) and
 EP (hard to win here b/c of rational basis standard upholding state reg)
Dean Milk v. Madison (1951)
Facts: a WI ordinance prohibited the sale of milk

not processed at approved pasteurization plants within five miles
of Madison’s central square. P, based in IL, bought milk from WI
and IL farms, which it pasteurized at its two IL plants 65 and 85
miles from Madison. Chicago public health authorities licensed
and inspected these plants under the Chicago ordinance, which was
patterned after national standards. Madison contended that its
standards were more rigorous than Chicago’s.
Holding: the ordinance imposes an undue burden on interstate

commerce.
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Rationale: The regulation, like the provision

invalidated in Baldwin, in practical effect excludes from
distribution in Madison wholesale milk produced and pasteurized
in IL. In thus erecting an economic barrier protecting a local major
industry from competition out of state, Madison plainly
discriminated against interstate commerce. It cannot do this, even
in the exercise of unquestioned power to protect the health and
safety of its people, if reasonable, nondiscriminatory, adequate
methods are available. Here, there were good alternatives
available. Madison could charge the actual and reasonable cost of
inspection to the importing producers and processors. The
commissioner even testified that Madison consumers would be
safeguarded adequately under either method.
Minnesota v. Clover Leave Creamery
USSC sustained a state law which banned non-returnable milk containers made of plastic (but
permitted non-returnable milk containers made of other substances, mostly cardboards). The
court sustained the statute even though the plastic used for milk cartons was made solely by non-
Minnesota firms, whereas pulpwood, used for making the cardboard containers, was a major
Minnesota product. The court said that the statute was no protectionist legislation camouflaged
in a recitation of environmental purposes.
Baldwin v. GAF
NY tried to protect local economic interests at the expense of interstate commerce. NY tried to
set minimum prices to be paid by NY milk dealers to NY milk producer. It also didn’t allow sale
of milk that were from out of state milk producers if they had been purchased at a lower price.
Statute was discriminatory b/c it was to make sure NY’s farmers could earn an adequate income.
Limits to State Regulatory Power

Philadelphia v. NJ
NJ had statute prohibiting importing of most solid or liquid waste into state. Law was enacted
b/c PA and NY used NJ landfills to dispose waste. NJ operators and out of state users said it
wasn’t fair. USSC that his law was a protectionist measure to resolve legitimate local concerns.
It imposed on out of state commercial a burden, and thus the statute was invalid per se.
 Incidental burdens on interstate commerce may be unavoidable when a state legislates to

safeguard the health and safety of its people, but states may not take themselves out of the
stream of commerce if it means that other states will bear the burden of its isolationism.
 States may not promote in-state interests at the expense of out of state interests.
 In determining whether a statute violates the Commerce Clause it is immaterial if the statute
is facially neutral if the effect is the same.
 Balancing Test- look at the burdens imposed by the statute and weigh the costs against the
benefits.
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Exxon Corp v. MD (facially neutral statute)

A statute that is evenhanded on its face may be disproportionately burdensome to some or all
out of state businesses. Where this disproportionate impact is truly accidental and does not
directly derive from the fact that the burdened firms are out of staters, the court will normally
uphold the statute.
MD passed law that prohibited oil producers/refinres from operating gas stations in M b/c
evidence that gas stations operated by producers/refiners got preferential treatment in the 1970s
b/c of shortage. Since no gas is produced/refined in MD, the rule affected out of state companies
exclusively. Court said statute didn’t discriminate against out of state commerce b/c not all
companies were affected by the state. Out of state company not involved in selling gasoline was
not affected by statute. No burden either b/c statute might cause sales volume to shift from
refiner-operated stations to independent dealers and CC protects interstate markets, not interstate
firms.
West Lynn Creamery v. Healy (1994) – statutory scheme here was to tax in state and out of
state milk producers with a subsidy going back to the in-staters. The court invalidated the statute
because it was discriminatory – even though we have cases stating that an even handed tax is ok
and a subsidy is ok, the tax on the in-staters is offset by the subsidy so the in-staters are not being
burdened.
“Market Participant Exception”
It applies only where state or local government, acting as a market participant, chooses to deal
w/in-staters rather than out-of-staters in direct transactions. So a government-owned entity
may prefer in-state-buyers when government sells, may prefer in-state sellers when government
buys, and the like.
o South Central Timber: Alaska sells timber from state-owned lands at below
market prices. State requires each buyer to promise that it will process the timber
inside Alaska before it is exported. A non-Alaskan firm w/no Alaska processing
plants attacks the rule. State argued that it was a market participant merely selling
a commodity of its own.
o Held for Pl. The market participant exception doesn’t apply here. It only apples
where the effect of the state’s terms are limited to the particular market in which
the state is participating, not the broader one. Alaska is trying to engage in
downstream regulation of the timber processing market (by trying to effect the
conduct of the parties w/whom the state is not dealing directly).
Limits to state regulatory power – Preemption
Dormant commerce clause applies in the absence of preemption – where congress does not act in
an area. Preemption comes in under the supremacy clause. If the government regulates in an
area where it has authority, it preempts state and local legislation covering the same area.
 Express preemption- statute contains a provision specifically referring to
preemption and indicating which state laws the national statute supplants.
o Must still examine congressional intent even if preemption is
express. Even w/statutes that have a preemption provision, there
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will be litigation about whether the specific activity the state is

regulating is preempted or not.
o i.e. Pacific Gas
 Implied Preemption-no text in the statute saying the state regulation is
preempting; court is implying it.
o Field exemption- here the scheme of federal regulation is so
pervasive as to make reasonable the inference that Congress left
no room for States to supplement it.
o Fields traditionally left to states: subject area is viewed as
“local” rather than “national” and usually involves health and
safety regulations
o Fields traditionally left to federal: foreign relations, bankruptcy,
patent and trademark, admiralty, immigration, etc…
o Congress is interested in preserving federalism values, so they
sometimes create provisions saying that stats can come up w/its
own regulations, and upon approval by a federal agency that the
state regulations meet minimum standards, the state can regulate
in that field after the federal agency approval.
o i.e. Clear Water Act pollution permitting authority can be
delegated from the EPA to state agencies.
 Conflict preemption- compliance with both federal and state regulations
is a physical impossibility or state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.
o Illustration: state v. federal speed limits: is there a conflict?
o State max speed limit is 55 MPH
o Federal max speed is 75 MPH
o Arg. for no conflict: state law is obedient to federal law.
o Arg. for conflict: you can’t drive b/w 56-75 under state law; you
have a right under federal law to drive b/w 56-75 so there is a
conflict.
o Need to look at congressional intent (statutory goal): whether
intent was to allow drivers to drive 75 MPH or whether the state
was meant to give the states leeway and that 75 was just a cap for
the states to have a limit on their own speed limit legislation.
Preemption involves some sort of statute; DD is when “Congress lies asleep”—Congress hasn’t
acted/legislated on that particular thing.
Identifying the Issue

1. Start by asking what Congress is allowed to regulate.
a) Is it Commerce? See if it fits into any of 3 categories:
o Channels
o Instrumentalities
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o Activities that substantially affect interstate commerce (catch all)

b) If the issue at hand doesn’t seem to fit into what Congress is allowed to regulate, then
think about the 10th amendment to see whether it’s something within the traditional
state control.
o This is similar to what the court did in Lopez (education is something that
states rather than feds traditionally deal with).
2. Preemption concerns arise when there is a federal statute regulatory scheme, then states can’t
regulate it b/c of the Supremacy Clause. The hard part is understanding how the Court
determines that preemption exists in given situation!
Pacific Gas & Electric Co. v. State Energy Comm.:

Congress usually regulates the nuclear power industry, thorough powers delegated to the Nuclear
Regulatory Commission (NRC), which licenses and inspects all nuclear plants. CA passed a law
that said, in order to construct any new nuclear plants, the plant must have adequate storage
facilities and means of disposal. CA’s regulation was held valid. The federal system of licensing
and inspecting nuclear plants was set up solely to deal w/safety issues, w/the construction and
operation of nuclear plants. CA said that this statute was aimed at the economic problems of
storing and disposing of waste, not safety problems, so its statue doesn’t come within the area
preempted by Congress. Further, there was no actual conflict b/w CA’s regusal to allow plants
to be built until the nuclear waste issue was resolve and the NRC’s decision to grant licenses
were remained. NRC’s action merely indicates that construction is to safe, but it doesn’t address
economic concern. Simultaneous compliance w/NRC’s rule and CA’s rule possible.
Federal Regulation of States

The 10th Amendment (powers not delegated to the feds are left to the states) occasionally limits
Congress’ ability to use its commerce power o regulate the states.
NY v. US (1997)
- Waste disposal case that illustrates the principle that Congress may not simply force a state to
enact a certain statute or to regulate in a certain manner.
- Congress enacted an Act that attempted to force states to make their own arrangements for
disposing low-level radioactive waste generated in that state. The Act tried to do this w/several
incentives, such as the “take title” incentive, whereby any state that didn’t arrange for disposal of
the waste would be required to take title to the waste and would be liable for damages in
connection w/the disposal of that waste. NY challenged this b/c local residents of each
community objected to proposed disposal sites. Court held that 10th amendment violated b/c
Congress cannot “commandeer the legislative process of states by directly compelling them to
enact and enforce a federal regulatory program.
- NY had to choose to regulate on its own by making arraignment for disposal of waste OR be
forced to indemnify waste generators against tort claims.
Printz v. US
Court held that Congress may not compel a state or local government’s executive branch to
perform functions, even if they are fairly ministerial an easy to perform, and even if the
compulsion is only temporary. Congress passed a “Brady Bill” that required local law
enforcement officials (which in actuality are executive-branch officers) to conduct background
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checks on prospective purchases, until a national computerized system for doing these checks
could be phased in. Printz, a sheriff, argued that Congress couldn’t force him to conduct
background checks on the fed gov’ts behalf. States are independent and autonomous within their
proper sphere of authority.
Alden v. Maine
States were employers and were charged with violating federal law. Court held that states have
full sovereign immunity from any private suit in the state’s own courts seeking damages for the
state’s violation of federal law. This case tells us how free the court is w/the plain language of
11th amendment. Congress tried to abrogate state immunity under the commerce clause but the
court said they can’t do this.
Taxing & Spending as a way for Congress to regulate – South Dakota v. Dole (795-
The National Taxing and Spending Power
QUESTIONS: DO WE NEED TO KNOW THE OLD DISTINCTION OF
DIRECT/INDIRECT
3. Regulation Through Taxing
a. Article I §8 – Congress shall have the power to lay and collect
taxes.
b. Taxes can have a penalizing feature when it is incidental to the
primary motive of collecting revenue. It cannot go as far as in
the next case.
c. Tax cannot be punitive in nature, but it can be used to raise
revenue. As long as Congress is raising money when it imposes
a tax it will be found to be constitutional and it is almost
impossible not to argue that an imposed tax is not being used to
raise money.
4. Regulation Through Spending- whatever Congress can’t do under the
Commerce Clause Congress can do under its Spending power, i.e. general
welfare issue.
5. If conditions are attached that means that an entity is in a position of
power and could exert pressure and coercion. “Not the carrot but the
stick”. Congress and entice or reward States but not coerce.
6. Requirements before Congress can use spending power:
a. Expenditure must be in pursuit of the general welfare to which
the judgment of Congress will be deferred;
1. Congress’ power cannot be used to induce the states to engage
in unconstitutional acts, See Dole- funds were going to build
highways-safe interstate travel in exchange for raising the
legal age in which to buy alcohol
b. If there are conditions they are to be plainly and unambiguously
stated, i.e. “you have to do ___________ to get the money”.
c. Some relationship between the object of funding and conditions,
i.e. “the way the money is being spent and the conditions”
d. No other expressed constitutional prohibitions or violations
(other than federalism) cannot require that the State violate the
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Constitution,
South Dakota v. Dole (1987)
Facts: A federal law required that 5% of allocable highway funds be withheld from any state
where persons under 21 could legally purchase or possess alcohol. The law was valid as applied
to P’s 19 year old limit on some beer. Congress can act under the spending power to encourage
uniformity in age. Rationale: The condition is directly related to one of the main purposes of
highway funds: safe interstate travel. The kids from other states were going to SD to drink.
Conditions placed on federal grants are not regulation of states’ affairs. Offer benefits are not
unusual and states can refuse if they find it coercive. Congress’s power may not be used to
induce the states to engage in unconstitutional acts.Basically, the court has held that Congress
may place conditions on grants, so long as the conditions are expressly stated and have some
relationship to the purpose of the spending program. Congress must state unambiguously the
conditions it imposes on states that accept federal funds.
Equal Protection – A Guarantee of Rationality in Equality
I. Equal protection is part of the fourteenth Amendment and it provides that “no state shall
make or enforce any law which shall deny any person within its jurisdiction equal
protection of the laws. It imposes a general restraint on the governmental use of
classification based on race but also based on sex, alienage, illegitimacy, wealth, or any
other circumstance.
II. The text of the Clause applies only to state governments, but the federal government is
also bound by the same rules of equal protection. The 5th Amendment’s Due Process is
interpreted to bar the federal government from making any classification that would be a
violation of the Equal Protection Clause if done by a state.
III. The Equal Protection Clause (and the 5th Amendment’s Due Process Clause) applies only
to government action, not to action by private citizens. This is the requirement of “state
action.”
IV. There are two types of attacks:
1. Facial: If P attacks a classification that is clearly written into the statute or regulation, he
is saying that the statute or regulation violates equal protection “on its face.”
2. As applied: if P’s claim is that he statute/regulation does not make a classification on its
face, but is being administered in a purposefully discriminatory way, then he is claiming
that the statute/regulation is violation of EP “as applied.”
3. Equal Protection Analysis:
• Is there classification?
• What is the nature of the class? Is there evidence towards animosity towards one
particular group? Is there something about the class that elicit illegitimate
motives/purposes?
• Depending on the nature of the class, it could generate either types of scrutiny.
1. Strict Scrutiny: court uses this for any statute that is base on a “suspect classification”
or that impairs a “fundamental right.” Will be better if case involves both (i.e. Loving v.
VA: statute that denied interracial marriage—so the statute infringes on both!)
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a) Suspect classes are race, color, national origin, and ethnicity.

b) If suspect, is the statute facially discriminatory? De jure? Explicit Bias? (Brown v.
Board and Plessy v. Ferguson) OR
c) Is statute facially neutral? De facto? Implicit Bias?
d) Government needs a compelling interest
e) And it has to be necessary.
f) It must be narrowly tailored and that there are no alternatives.
g) The differential treatment MUST be intentional on the part of the government. If the
government enacts a statute or regulation that has the unintended incidental effect of
burdening, court will NOT use SS.
h) Usually use SS when there is segregation, the maintenance of physical separation b/w
races or national origin.
2. Intermediate Scrutiny: less demanding than strict scrutiny. It is used for semi-suspect
classification, i.e. those based on gender and illegitimacy. The means chosen by
legislature must be substantially related to an important governmental objective.
a) Classification based on sex/gender (encompasses to the extent that sex is
biologically determined); non marital children.
b) If semi-suspect, is the statute facially discriminatory? De jure? Explicit Bias? OR
c) Is statute facially neutral? Implicit Bias?
d) State must show that it has an important objective and that the scheme/difference
in treatment is substantially related to that objective. (similar to SS—tough to
pass)
e) The same standard of review is used when the sex based classification is benign
(intended to help women, or been intended to redress pass discrimination against
them).
3. Ordinary mere rationality review: applies to all classifications that are not based on a
suspect or semi suspect classification and do not impair a fundamental right. The
classification will be upheld so long as it is conceivable that the classification bears a
rational relationship to a legitimate governmental objective. Almost every classification
survives this easy review.
o Almost every economic and tax classification is reviewed under this standard.
V. Race-Conscious Affirmative Action: gov’t programs that attempt to assist racial or
ethnic minorities and do so in an explicitly race-or ethnically conscious way, are strictly
scrutinized just the same as those that purposely disadvantage minorities.
Equal Protection Overview:

A. Source of Equal protection clause is the 14th amendment – applies only to the states.
Federal government is under the 5th amendment due process clause.
1. Bolling v. Sharpe – equal protection as a principle is a component of due process.
Due process of laws includes equal treatment.
2. Early equal protection cases dealt with economic issues.
• All laws discriminate by making classes of people. Subject to
rational basis test and presumption of constitutionality. But,
with certain types of distinctions, a closer judicial scrutiny is
necessary because we cannot trust the legislative judgment to be
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fair. (the classes of people that they are making.)

B. Equal Protection Analysis:
1. What is the classification/distinction that the legislature is drawing?
2. What level of scrutiny is applied?
a. Strict scrutiny for race, national origin, alienage
b. Intermediate scrutiny for gender and illegitimacy.
c. Rational basis for everything else like age, wealth, etc.
3. Does the classification satisfy the required level of scrutiny?
a. Steps to go about determining this:
2. What is the government interest?
3. Is it (depending on the level):
a) Legitimate
b) Important
c) Compelling?
4. does the distinction the government is drawing either:
a) Reasonably (rational basis)
b) Substantially (intermediate) or
c) Necessarily (strict) promote the government interest?
b. Reasons to apply heightened scrutiny:
5. Is this an immutable characteristic (unchangeable by will)?
6. Ability of the group to protect itself in the political process?
7. Is the distinction the result of a fair, democratic political process?
8. History of discrimination against the group. This goes to the
likelihood that the classification reflects prejudice.
City of Cleburn v. Cleburn Living Center
Facts Cleburn Living Center purchased an old building to develop group

home for the mentally retarded. Cleburne zoning ordinance
permitted a number of different types of structures to be build, but
specifically disallowed group homes for the retarded. Permit was
denied.
Issue: Are the mentally retarded deserving of protection under Equal

Protection?
Rule: Classifications involving the mentally retarded are not entitles to a

high level of scrutiny, in order to withstand equal protection
review such classifications must be rationally related to a
legitimate governmental purpose.
Holding What is the class here? Mentally retarded.

Purpose served by the statute? Negative attitude-patients harassed,
safety of patients
They applied the mere rationality standard. There was

demonstrable animus exhibited toward the mentally retarded.
Therefore the Court is willing to set rational basis scrutiny aside in
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favor of heightened scrutiny. Court refused to treat mental

retardation as an explicitly quasi-suspect classification like
gender/illegitimacy.
1. States have a legitimate interest in giving special treatment of the mentally

retarded b/c of their reduced ability to cope w/and function in the everyday
world.
2. The gov’ts responses to the plight of mentally retarded show that there is
no continuing antipathy or prejudice on the part of lawmakers.
3. If quasi suspect status were given to the large and amorphous class of the
metnally retarded, there would be no principled way to deny the same
status to other groups such as aging, disabled, and the infirm.
Equal Protection – Race (824-854).

Race
1. Framers were participators in and protectors of slavery.

a. Article I § 2 – the 3/5 clause. Slaves were counted for taxation and
representation purposes as 3/5 of a person.
b. Article I § 9 – prohibition on government from banning importation of
slavery until 1808.
c. Article V – protected the amending of these articles.
d. Article IV § 2 – requires states to return escaped slaves.
Dred Scott v. Sanford (1857)

• declared the MO Compromise unconstitutional as interfering with
property rights under the 5th amendment. The Compromise dealt with
admission of new states divided between slave states and free states.
Court held that a slave could not invoke diversity jurisdiction because
blacks had no rights under the Constitution – they were not citizens, but
property.
• first substantive due process case
• the 14th amendment was motivated by this case and things like black
codes.
Stauder v. WV (1880)
Facts: State murder conviction of an African American was challenged because a

statute forbade blacks from serving on juries.
Holding: Court invalidated the conviction because of the discriminatory law.
Rationale: Spirit of the Civil war amendments was to secure to blacks enjoyment of all civil
rights enjoyed by whites. Right to exemption from discriminatory legislation is
in the amendments.
Korematsu v. US (1944) - first case to apply strict scrutiny to race.
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Facts: P, an American citizen of Japanese descent, was convicted for remaining in a

military area contrary to an order that all Japanese people should be excluded
from that area.
Holding: this law was in the war power.
Rationale: legal restrictions on rights of a racial group are subject to the most rigid scrutiny.
Public necessity is a basis for this law, not racial antagonism. Findings of the
legislature showed the many disloyal Japanese people. Based on gravest
imminent danger to the public. The war making branches of government found
the law to be a proper and adequate measure to guard the national defense.
Rule: In times of direst national emergency, groups of citizens may undergo restrictions
for the public welfare.
Murphy Dissent:
the measure must be based on an assumption that all people of this ancestry have
tendency for sabotage. A military judgment based on racial considerations
should not be given the usual great weight.
Jackson Dissent:
should not question the accuracy of the order because it is unconstitutional. A
military order only lasts during wartime, but the court’s sanction of it will last
forever as precedent.
Plessy v. Ferguson (1896)
Facts: LA law required that RR passenger cars have separate but equal
accommodations for white and colored passengers. P was arrested in refusing to
vacate a seat for whites. Involves two claims: under the 13th amendment and
under the fourteenth amendment.
Holding: This law does not conflict with the 13th amendment or 14th amendment.
Rationale: 13th: this freed the slaves. Has been interpreted to prohibit conditions related to
having been a slave or a descendant of one. This, according to the court, is not
related to slavery.
14th: involves: 1) a reasonable action for public good is valid under the state’s
use of police power. This is shown with things like separate schools and
interracial marriage bans. Every exercise of police power must be reasonable
and extend only to laws for the promotion of public good, not oppression. 2)
purpose is to promote equality before the law. Here, this was only separating
people, not treating them unequally. 3) purpose is not to promote co-mingling.
This is an issue of association. State does not have to abolish all color-based
distinctions.
Harlan dissent:
Origin of statute was to exclude blacks. The fundamental objective is that it
interferes with personal freedoms. The thin disguise of equal accommodation is
not sufficient. The law is in place to protect civil rights. The Court took a very
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narrow view of Equal Protection during this period.
Brown v. Bd of Education (1954)
Facts: Blacks sought admission to schools on a non-segregated basis.
Issue: Is the separate but equal doctrine unconstitutional by depriving P’s of

equal protection?
Holding: Yes.
Rationale: Because the schools are equal in facilities, the court looked to the effect
of segregation itself on public education. Don’t look to history, but to
present conditions. Stressed the fundamental importance of education,
must be made available on equal terms. To separate the black children
gives them feelings of inferiority, which are irreversible. In education,
separate but equal has no place. Separate schools are inherently unequal.
The opinion of the Brown court thought that education was vital to the
development of the nation and to participatory democracy. Segregation
creates a stigmatic injury; see Allen v. Wright, where the court
acknowledged the stigmatic injury but the Brown court determined that
the children were an identifiable group. It is important to look to history
but is more important to look to the plain language of the amendment for
current analysis.
One of the goals of Reconstruction was to implement public education,

but it was easier and safer to keep the schools segregated by the 1950s-
public schools were well established, but segregated.
Brown II, fashioned a remedy, and the remedy was mandated integration
“with all deliberate speed.” Full implementation of the principles of
Brown I may require varied local solutions. It was left to school
authorities to implement those solutions.
De facto segregation: comes about by forces other than a statute and

was developed as a result of voluntary decisions.
• Brown 1 statute was facially discriminatory, while Brown II was

facially neutral.
• Underinclusive-a statute that has not included some groups who
may pose a real risk, i.e. diabetic, alcoholics, ex-offenders (see
NYTA v. Beazer)
• Overinclusive- people or jobs that do not pose a safety risk i.e.
methadone users who sweep
Manner of Relief: courts must require Ds to make showing of prompt and reasonable start
toward compliance, once there has been such a showing, the court may
grant extra time. The “all deliberate speed test.” So, relief was not
72
granted to the parties to the case.
Loving v. VA (1967)-Race specific classifications that are facially neutral
Facts: Ps, a black woman and a white man were married in DC, moved back to
VA, and were arrested under the state statute prohibiting interracial
marriage.
Issue: Was the VA scheme of preventing marriage between people solely on

the basis of race a violation of the 14th amendment?
Holding: Yes, violates the equal protection clause.
Rationale: Alleged state interest was to preserve racial integrity. It is not enough
under the 14th that all races are punished the same. Clear purpose of the
14th was to eliminate all official state sources of racial discrimination.
Applied strict scrutiny. Must be shown to be necessary to the
accomplishment of some permissible state objective. There is none here;
this is white supremacy because only whites are punished. Protecting
“racial superiority” was not a legitimate interest and will not be upheld.
Equal Application:
Where a statute makes otherwise acceptable behavior criminal only
because the participants are of different races, it is violative of EP, even
if the participants are punished equally.
De Jure v. De Facto Discrimination.

De jure – law neutral on its face discriminates in effect. Burdens one
class differently. With de jure discrimination, you do not immediately
go into a strict scrutiny analysis.
Equal Protection and the requirement that racial discrimination be

intentional
A classification will not be deemed to be suspect and subject to SS unless the court finds that
there was legislative intent to discriminate against the disfavored group. The mere fact that a
law has a less favorable impact on a minority group than it has on the majority is not sufficient to
constitute a violation of equal protection. (NEED INTENT AND IMPACT b/c impact alone
isn’t enough). Three ways to show purpose:
1. Facially discriminatory: law discriminates on its face. Where a law is facially

discriminatory, court will not require that it be shown to have had actual discriminatory
impact in the case at hand. (i.e. Strauder)
2. Discrimination in administration: law neutral on its face, but administered in
discriminatory way. (i.e. Yick Wo v. Hopkins)
3. Discriminatory purpose shown by circumstantial evidence: neutral on its face and is
applied in accordance w/the terms, but was enacted w/a purpose of discriminating.
Looking at circumstantial evidence allows us to draw inference of intentional
73
discrimination.
Yick-Wo v. Hopkins (1886)
Facts: Ordinance made it a crime to operate a laundry in a building not made of

stone or brick. P was a Chinese man who was denied a license. 320
laundries were in the city – 240 were Chinese owned. 310 were wooden.
No non-Chinese were arrested in violation.
Holding: Whatever was the ordinance’s intent, it was discriminatory as applied.

Amounts to a practical denial of equal protection. No compelling reason
for the discrimination was shown. This was a prima facie case of
discriminatory purpose in neutral statute. Must show a discriminatory
effect. Statistical evidence was so overwhelming that it suggested a
discriminatory intent. Burden shifts to government to rebut by showing a
non-discriminatory purpose. The manner of administration determined
that the statute was racially discriminatory and called for strict scrutiny.
See Gomillion, Civil Rights case involving gerrymandering to exclude

almost all black voters from city limits. This was determined to be
facially discriminatory.
Washington v. Davis (1976)
Facts: Test for police recruits had to satisfy certain physical, character
standards, have a high school diploma, and receive a certain grade on a
test developed by the civil service commission. The test was used
throughout the federal government. Designed to test verbal ability,
vocabulary, reading comprehension. Four times as many blacks failed.
Issue: Was the test discriminatorily slanted toward whites?
Holding: No, a statute is not unconstitutional solely because of a disproportionate

impact.
Rationale: The essential element between de jure and de facto discrimination is

purpose or intent to segregate. A discriminatory purpose may be inferred
from totality of facts, including that the law bears heavily on one race.
But, the court has not held a neutral law that serves ends within the
power of the government to pursue is invalid under the equal protection
clause simply because it affects one race more than another. Disparate
impact alone does not invoke strict scrutiny. As applied, the test does
not prevent the government from upgrading the standards of its
employees. Also, no discriminatory purpose was found. The test is
neutral on its face and serves a legitimate government purpose.
• Once it is determined that strict scrutiny does not apply, goes to the next
level of analysis, rational basis.
74
• Does not end the inquiry if strict scrutiny is not warranted.This case
really establishes discriminatory purpose as a basis for de jure
discrimination cases.
Arlington Heights v. Metropolitan Housing Dev. Corp. (1977)
Facts: An area was already zoned for residential single-family housing. Tried
to rezone for a multiple family housing, which would be integrated.
Holding: This was not unconstitutional discrimination.
Rationale: Court elaborated on how to determine discriminatory intent or purpose.

Most legislators don’t say that their reasons are discriminatory):
Evidentiary sources to reveal official actions:

• Historical background, especially if it shows a series of
questionable official action.
• Legal history
• Sequence of events leading up to the decision.
• Departure from procedure or substance (ex: normal factors
not taken into account)
The Court held that there was a high need for direct proof. Impact alone was
insufficient.
Administrative history: Facts here that would have suggested discriminatory
intent:
• changing zoning to single family to avoid the integrated housing.

• Making it harder to get multi-family rezoning
• Legislative reports, minutes, could have been statements made at a
meeting.
o None of the these existed here, so a prima facie case was not presented. Also, zoning
is strongly in the police power.
o Court said that P has the burden of showing that D had an intent to discriminate was
a motivating or substantial factor in the legislature’s enactment decision.
o Burden then shifts to D—who only has to show that it would’ve passed the state even
w/o intent to discriminate.
McClesky v. Kemp
Facts: Blk. Def. was convicted in a GA. Court for murdering a white man and sentenced
to die. He filed
Writ of habeas Corpus alleging that Georgia’s capital punishment scheme was
(1) administered in a manner that was personally discriminatory and (2)
discriminated against non-whites. The state argued that the statute was facially
neutral. Def. provided the court with a study that statistically found that blacks
that killed whites were 43 times more likely to receive the death penalty. District
Ct, found the study flawed and dismissed Def’s writ. Appellate court found the
study valid but insufficient as to the evidence provided that demonstrated intent
in the administration.
75
Issue: Can a facially neutral death penalty law be struck down simply because one race
is being put to death more often than another.
Rule: A def. that alleges an equal protection violation has the burden of proving the
existence of purposeful individual discrimination.
Holding: No. Def. must prove that those making the decision in his case acted with
purposeful purpose. The Constitution does not require that a State eliminate any
disparity with a potentially irrelevant factor in order to operate a criminal justice
system that includes capital punishment. The Court upheld GA’s capital
punishment statute and scheme.
• McClesky stands for the proposition that the Equal Protection clause
prohibits the government from engaging in actions deliberately
undertaken to injure racial minorities The Court told McClesky that he
needs evidence of individual statistics-which imposes a much larger
burden on the Def. . The Equal Protection Clause stands for protection
of individual rights in the context of race.
• Facially Neutral Race Based Classifications:
o Some laws that discriminate against a particular race are facially

neutral in that a look at the text of the law will give a reader no
hint of discrimination. When these laws have a discriminatory
intent, they are unconstitutional.
MISC. NOTES ON RACE DISCRIMINATION:
• Miller v. Johnson: redistricting matter in Georgia. District Ct. struck down the
plan. Johnson appealed contending that under Shaw v. Reno deliberate race
based voter classification (gerrymandering) is not illegal unless the Plt. shows
that the district is bizarrely shaped. The Plt’s burden is to show that race was the
predominant factor motivating the legislation.
o Strict scrutiny will apply because states have a compelling interest in
remedying previous discrimination
• Shaw v. Reno: state redistricting plan that created new majority minority
districts. Held that Plts cannot demonstrate voter dilution by challenging
redistricting.
o Ct. applied SS test if Ps could show that districting scheme was so
irrational on its face that it can only be understood as an effort to
segregate voters b/c of their race.
o Shaw was a standing case but the Court held that Plt had suffered no
injury; only individuals living within the district had suffered an injury.
Equal Protection – Race Conscious Benign Measures
76
AFFIRMATIVE ACTION/SET ASIDES
City of Richmond v. Croson (1989)
Facts: Suite regarding the constitutionality of a set aside program requiring

prime contractors on city projects to subcontract a certain percentage of
the contract to a minority business (MBE). P was a white owned prime
K-er who was unable to find an MBE who could supply 30% of the work
at acceptable cost. (City as Gov’t actor=classic 14th Amendment case
where the 14th speaks to states)
Rule: State must prove a compelling interest re: remedying specific

discrimination.
Holding: States and their political subdivisions are not free to decide which
remedies are appropriate. State remedial action must be in accordance
with the 14th Amendment.
Benign classification: a classification scheme that favors one group over

another but with harmless and non-biased intention.
Remedial classification: a classification that favors one group over

another in an attempt to make up for past discrimination or ill treatment.
The Richmond plan was facially discriminatory because it denied certain

citizens the opportunity to compete for a fixed percentage of public
contracts based solely on race. In such cases, the Equal Protection
protects personal rights.
• State must have a compelling interest

• Must be narrowly tailored to avoid being over inclusive or under
inclusive. Check if there are race neutral alternatives available.
• Plan has to be flexible with no rigid numbers or quotas.
• No burdens on 3rd parties. Individual can’t take a direct hit.
• Is there a waiver out of the plan? What if you can’t find a minority
diverse workforce, can you go with the next bid or next best bid?
• This case shows discrimination against any racial group will merit
SS even if that group has never been the subject of widespread
discrimination.
• Why race-conscious plans subject to SS:
o No easy way to tell which racial classifications are truly
benign or remedial or which ones are ostensibly benign.
Strict scrutiny must be applied to “smoke out” illegitimate
use of race.
o Classification based on race carry a danger of stigmatic
harm. The group benefitted by the AA program might in the
long run be harmed b/c society will believe that the favored
group is less competent and can’t succeed w/o special
protection.
77
o Unless subject to SS, society will never achieve our goal of

becoming truly race neutral.
• And set aside must be:
o Industry specific
o Market specific
o Race specific
Adarand v. Pena (1995)
Facts: P was a white owned sub-Ker that placed a lower bid for a project, but
the K-er picked a minority owned sub-ker b/c of a federal regulation that
gave financial incentive to those who rewarded projects to minority
owned sub-kers. Small white owned firms could also qualify as minority,
but a firm owned by AA and other minorities were automatically
presumed to disadvantaged. Small white firms had to prove
disadvantage by clear and convincing evidence.
Notes: Court held that congressionally authorized race conscious affirmative

action programs must be subject to SS. This means that reverse
discrimination may be upheld only if necessary to achieve a compelling
governmental interest and must be done in a narrowly tailored way.
Grutter v. Bollinger
Facts: Univ. Michigan Law wanted to increase diversity by adding race into the
mix during the admissions process. One of the soft variable was the
extent to which the applicant’s presence would contribute to diversity of
the school. P got denied and said that use of race was a predominant
deciding factor and the use was a denial of her equal protection.
C. Interest: Court applied SS and said that the method was sufficiently narrowly
tailored to achieve its compelling interest, which is the attainment of a
diverse student body. Student body diversity is a compelling interest that
can justify the use of race in university admission. (promotion of cross
racial understanding; break down of racial stereotypes, promotion of
livelier and more enlightening class room discussion from student’s
w/different backgrounds).
N. Tailored: School didn’t use a quota system, which is a program in which a fixed
number or proportion of opportunities are reserved exclusively for
certain groups. The school engages in a highly individualized, holistic
view of each applicant’s while considering all the various qualifications.
This is sufficient as to qualify as narrowly tailored.
Alternatives: Are there other race neutral alternatives for achieving diversity? The
ones proposed were non workable ones.
78
Equality w/ Sex and Gender

VMI Case:
Look up the VMI case…any type of discrimination has to be based of off “real
difference,” not “overbroad and archaic stereotypes”
Have to prove that it is for a real purpose…(this case was not about real differences)
Intermediate scrutiny
Nguyen Case:
The court held that this was discrimination based off of a “real difference”
Deriving citizenship from mother only birth and birth certificate are required; nothing
else (non-marital)
Deriving citizenship from father has to have this plus show support for the child and need
order of legitimating (paternity) (non-marital)
The case was about this advantage for women and a disadvantage to fathers (both non-
marital)
The statute wants to show a biological tie (but why different requirements?)
Because with a BC you know that the child came out of that woman…not the case
for the father (real difference)
If it were only about blood tie then the dissent might suggest DNA test,
however, the majority says that they also want a familiarity with American culture (from the
father or parent, not just blood)
Also, more of an advantage to women, not a disadvantage
Also, mom pretty much has to stay with child, father can just walk away really
Medina thinks this is a missed opportunity to create a fair approach…says they
should have the same requirements for both…
Beer Case:
Statute where girls could buy earlier than men; for highway safety purposes
because it was shown that men drive drunk more
The Court says that this is not a “real difference” and this is a stereotype; the
numbers of boys in lockup and dui are reflective of stereotypes in society, not a true difference…
take girls home, more likely to arrest men…
Michael M. Case:
Statutory rape statute that only applied to men…
Interest in protecting women and they have a natural deterrent because they can
get pregnant
What did the Court say…?
Selective Service Case:
Men have to register and women don’t…
Court says that this regards war so Congress has a little more leeway…there is a
potential to go to war for everyone who registers to go to combat…if the goal is combat
readiness and you don’t want to let women go then this statute is valid…
There is a lot of dissent saying we should rethink combat exclusion or also
they could still sign up and do non-combat jobs
Equal Protection and Gender – United States v. Virginia and Nquyen v. Immigration and
Naturalization Service (1095-1110 and supplementary materials).
Equal Protection and Gender – Craig v. Boren, Geduldig v. Aiello, Michael M. v. Superior Court
79
of Sonoma County, Rotsker v. Goldberg (1044-1088).

Equal Protection and Gender – Personnel Administrator of Massachusetts v. Feeney (1088-
1095).
Equal Protection – Alienage (1112-1121 and supplementary materials)

Equal Protection and Fundamental Rights – Reynolds v. Sims, Bush v. Gore (1132-
1157).
Equal Protection and Fundamental Rights – San Antonio Independent School District v.
Rodrigues, Plyler v. Doe, Vaccco v. Quill (1157-1189).
80

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Constitutional Law Outline

POWERS OF THE BRANCHES OF GOVERNMENT AND HOW THEY INTERACT

II CONSTITUTIONAL INTERPRETATION: JUDICIAL REVIEW

1) Oppose judicial review. Feel that checks and balances are

7. The Constitution replaced the Articles of Confederation. It gave Congress

8. The Articles were adopted shortly after the Revolution to ensure

with the understanding that each state would remain sovereign.

9. The Articles lacked the power:

10. The Constitution changed the framework set up by the Articles of

Facts: President Adams was a lame duck when a Republican Congress

1. If the founders intended to give the Legislative branch the

2. Further, the Constitution is the supreme law, according to

3. It is a permanent written document; it cannot be the

4. It is the duty of the Judiciary because of the Judicial Oath

5. Judiciary must look at laws “arising under the

6. Marshall did this because he feared impeachment, and

7. A more narrow reading of this case is that the courts have

8. Marshall claims that (1) Court is given the power to issue a

Rule: Courts are the final arbiters of the Constitution. WRIT OF

Original jurisdiction- the power of a court to hear an action upon

Appellate jurisdiction- the power of a higher court to review the

Judicial review- authority of the courts to review decisions,

Writ of Mandamus- A court order issued commanding a public or

Vested right-a right that is unconditional, that cannot be taken

One of the most important dilemmas in American constitutional

F. Standard of Judicial Review

Facts: Martin claimed title to land in VA on inheritance from a British

appellate power of the U.S. does extend to cases pending in state

The Court in Martin found appellate jurisdiction to be a

Article IV demonstrates that the framers of the Constitution

Supreme Court review may become necessary because of state

Questions to ponder? What would be the evil in having

♦ The risk of centralization outweighed the risk of harmony

H. Political accountability of judges

1. When Judge Baer changed his decision after considerable political

2. Judicial review played into politics in Marbury.

3. Framers did not want USSC to be a political tool

5. Reasons for political accountability:

b. Appointed by Executive to further their political agenda.

c. Only way the popular assent gets into judiciary.

I. Cooper v. Aaron (1958)

Facts: Flores was seeking a building permit to build a

Rule: Congress’ power under §5 of the 14th Amendment

Issue: Did Congress have the authority to pass the RFRA.

Holding: NO. Defendant contends that RFRA protects one of

§5 gives Congress the power to enforce the

which allows for more regulation of religion.

Section 5 of the 14th Amendment

Congressional Limits on Judicial Power

4. Jurisdiction is the authority given to a legal body or to a political leader to

 1. Birth-right citizenship (of everyone born in US)

 2. Guarantees equal protection of/under the laws of all US ppl

• No, it doesn’t violate Art III

o Congress gave the CFTC the authority to adjudicate such matters

Political Question Doctrine – Baker v. Carr

Facts: Appeal from denial of injunction/challenge to state against apportionment

Rule: The Guaranty Clause guarantees a republican form of government. The

Issue: Does an equal protection claim complaining of the mal-apportionment of a

Holding: No. This challenge presents no nonjusticiable “political question”. The

 Political questions are best left to the President or Congress.

o Criteria for deciding issue; or

 If none of these circumstances is present, the case should not be dismissed on