Judicial Review/Supremacy – Article III

 Judicial Review
o The Constitution does not explicitly state that the Supreme Court may determine the
constitutionality of acts of other branches of government, but Marbury v. Madison
established judicial review of the other branches
 “Judicial Review” is not granted by the Constitution, it is an inference from
judicial power
 The Constitution is the law and it is the duty of the judiciary to declare
what the law is (interpret the Constitution)
o Reasons for Judicial Review:
 Constitution is binding on all branches of the federal
government
 Constitution is law and courts interpret the law
 Judicial Review ensures that the Constitution remains
the supreme law of the land
 Judges take an oath to uphold the Constitution
o SCOTUS has the power of Judicial Review, which it can exercise in cases arising in state
and federal court, and in cases involving the constitutionality of state or federal law
 Judicial Supremacy
o The Constitution is a superior, paramount law, unchangeable by ordinary means and it
cannot be altered by the legislature- an act of the legislature that is repugnant to the
Constitution is void
 SCOTUS has authority to determine whether a federal statute is inconsistent
with the Constitution and thus void
 Article III, § 2, cl. 2 creates mutually exclusive categories of original and
appellate jurisdiction, such that Congress lacks power to confer original
jurisdiction over cases that fall within SCOTUS’s appellate jurisdiction
and vice-versa
o States can hear federal issues and the Supreme Court can review a state court’s
decisions
 SCOTUS has appellate jurisdiction over states hearing federal issues
 A state legislator, executive, and/or judicial officer is bound by SCOTUS
decisions – even if they aren’t a party to the litigation
o Article VI [the 6th Amendment’s Supremacy Clause] of the
Constitution makes the Constitution the supreme law of the
land, and SCOTUS interprets the Constitution
 SCOTUS’s interpretation of the Constitution will always
trump state law

Obstacles to Judicial Review – Article III

 Political Questions
 o The Political Question Doctrine is a function of the separation of powers existing to
restrain courts from inappropriate interference in the business of other branches of
Government
 Political questions are issues that only Congress, or the President can resolve
 It is not a federalism or limitation issue
o 6 Baker Factors – Political Questions Involve:
 A textually demonstrable constitutional commitment of the issue to a
coordinate political department (i.e., Congress gave this power to someone
else)
 Ex. Constitution gives power to Congress to make determinations of
eligibility for representative seat based on age, residence, and
citizenship – those three things = political questions
o If the issue is not related to those three things, the court could
hear it
 A lack of judicially discoverable and manageable standards for resolving the
issue
 The Court found in Baker that judicial standards under the Equal
Protection Clause of the 14th Amendment were “well developed and
familiar” and therefore the issue was justiciable
o It applies to people and it limits the states interference with the
people’s fundamental rights
 The impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion
 A policy determination is needed
 The impossibility of a court’s undertaking independent resolutions without
expressing lack of the respect due coordinate branches of government
 It would disrespect executive or legislative branch somehow
 An unusual need for unquestioning adherence to a political decision already
made
 The potentiality of embarrassment from multifarious pronouncements by
various departments on one question
 Cases and Controversies
o Federal Courts may not give legal advice or make abstract decisions, they can only
decide actual cases and controversies
 Judicial Power is the right to determine actual controversies arising between
adverse litigants, duly instituted in courts of proper jurisdiction
 An attempt to obtain a judicial declaration of the validity of an act of
Congress is not presented in a case or controversy
o Even if the United States is named a defendant because it has
no interest adverse to the claimants
o Federal courts cannot decide cases or controversies before they are ripe and after they
have become moot
 Before they are ripe
 Develop into actual controversies
  If the injury asserted by the plaintiffs is wholly speculative
 After they have become moot
 Claims in which the parties no longer have any meaningful or concrete
stake
o Two exceptions to Mootness:
 The defendants cannot themselves moot the case
 If the case is capable of repetition yet evading review
 Advisory Opinions
o Opinions about the proper resolution of abstract legal questions that are not in actual
dispute between adverse parties
 The case or controversy requirement does not apply to state courts
 Declaratory Judgment Actions
o Federal courts may issue declaratory judgments as long as there
is an actual dispute between adverse litigants
 Standing
o Federal courts can only entertain claims by persons who have standing to present them
because they have something at stake in the litigation
 Congress lacks power to authorize suits by persons who do not meet these
requirements for Article III standing
o Constitutional Standing Requirements:
 Who is the right person to bring this claim? You must have:
 Injury in fact
o An invasion of a legally protected interest that is concrete and
particularized and actual or imminent, not conjectural or
hypothetical
 This isn’t a huge focus – something as trivial as a plane
ticket for a future visit would have sufficed in Lujan
 Plaintiff must assert something more than
simply a “generalized grievance”
o A generalized grievance is one that is
widely shared and undifferentiated
 There is no standing merely as citizens to claim
the government action violates federal law or
the Constitution
o Ex. nationwide class of African
American children/parents did not have
standing to challenge IRS tax exempt
process
 Harmed by exemption, but no
injury in fact to any individual
that can be traced to the
defendants
o Congress cannot create an injury in fact, they can only create a
cause of action
  A causal relationship between the injury and the challenged conduct
o The injury can be traced fairly to the challenged action of the
defendant and has not resulted from the independent action of
some third party not before the court
 The link between the injury and the challenged conduct
must not be unduly attenuated or speculative
 When the plaintiff is not himself the object of
the Government action or inaction he
challenges, standing is not precluded, it is just
significantly harder to establish
o This test requires more than an injury to
a cognizable interest, it requires that
the party seeking judicial review be,
himself, among the injured
 A likelihood that the injury will be redressed by a favorable decision
o The prospect of obtaining relief from the injury as a result of a
favorable ruling is not too speculative
 The Exceptions Clause
o Congress can limit federal court jurisdiction by statute and thus constrain the ability of
federal courts to engage in judicial review
 The Exceptions Clause gives Congress some authority to deprive SCOTUS of
appellate jurisdiction over either some class of cases or all cases otherwise
within the federal judicial power
 SCOTUS has never squarely decided whether Congress can completely
deprive SCOTUS of jurisdiction over a particular federal question

Individual Rights – The 14th Amendment Equal Protection Clause

 After the Civil-War, Congress proposed, and the States ratified, the 13 th, 14th, and 15th
Amendments
o The 13th Amendment abolished slavery
o The 14th Amendment provided that “all persons born or naturalized in the United States,
and subject to the Jurisdiction thereof, are citizens of the United States and the State
wherein they reside
 Overruling Dred Scott
 The Equal Protection Clause of the 14 th Amendment imposes some limits on the ability of the
states to engage in certain forms of discrimination
o The 14th Amendment is a negative liberty in that it limits State actions
 Unless the State is doing something that is causing the harm, there is NO
constitutional violation
 The fact that a State takes no affirmative action to intervene when there
is harm is not a constitutional violation
o The only remedy in such cases is only political:
  Lobbying officials to make change or electing new
officials to make change
o SCOTUS held in Bolling that the Due Process Clause of the 5 th Amendment (which
applies to federal government) incorporated the rights afforded by the Equal Protection
Clause
 Liberty under law extends to the full range of conduct which the individual is
free to pursue, and it cannot be restricted except for a proper Governmental
objective
 The same standards apply to evaluate state and federal action under the Equal Protection
Principle
o SCOTUS reviews Equal Protection challenges to government classifications by
considering:
 The nature of the classification
 The Government’s interest in the challenged regulation
 The relationship between the Government’s interest and the classification
 Ask, “what is the classification at issue?” and then apply the classification
o Racial Classification = Strict Scrutiny
 Compelling interest & narrowly tailored
 4 types of Racial Classifications:
o Facially Discriminatory
o Facially Neutral but Applied in a Discriminatory Manner
 Law appears to be neutral on its face is being applied in
a different manner to different classes of people
 Have to show government had a discriminatory
purpose to invalidate the law
o Facially Neutral but Serve a Discriminatory Purpose
 Law appears to be neutral on its face and in its
application but has disparate impact on a particular
class of persons
 The court must find that the law-making body
enacted or maintained the law for a
discriminatory purpose – disparate impact,
alone, is not enough
o Ex. police department used written test
as criterion for hiring officers. African
Americans scored lower on the tests
(disparate impact) but, the court found
no discriminatory purpose so the law
was upheld
o Racial Classifications that are Facially Symmetrical
 Look at how the law is applied OR look at its
purpose/impact
 Burden shifts to the Government to show
necessity through compelling state interest
o Gender Classification = Intermediate Scrutiny
 Important governmental objectives & substantially related
 4 Types of Gender Classifications:
o Facially Discriminatory
o Facially Neutral but Applied in a Discriminatory Manner
o Facially Neutral but Serve a Discriminatory Purpose
o Gender Classifications that are Facially Symmetrical
o All Others = Rationally Related Basis
 The default setting for level of scrutiny is rational basis
o Levels of Scrutiny
 Strict Scrutiny
 Law will be upheld only if it is narrowly tailored to advance a compelling
government interest
o SCOTUS applies this level to all laws, regulations, and policies
that discriminate against racial minorities on the basis of race or
national origin
 Because all legal restrictions which curtail the civil rights
of a single racial group are immediately suspect
o Least amount of deference given to the Government’s judgment
under this classification
 Applies To:
o Laws that discriminate on the basis of race or national origin on
their face
 These types of laws are immediately suspect because:
 Our long and sad history of discrimination
 Race is rarely (if ever) relevant
 Race is an immutable characteristic
 Discrete and insular minority
 Political Powerlessness
o To the discriminatory application, based on race or national
origin, of otherwise facially neutral laws
 Government action can be suspect even absent a law or
regulation that is facially discriminatory because it is
motivated by a discriminatory purpose or has a
disparate impact
 Exception:
o A facially neutral law’s racially disparate
impact (discriminatory effect), alone, is
not enough to establish and equal
protection violation
 The Plaintiff must also (through
circumstantial evidence) that
the law was motivated by a
discriminatory purpose
  Facially Neutral
 Laws that, by their terms, do not classify on the
basis of race but they lead to a discriminatory
purpose or application
o Laws that classify on the basis of race alone but are facially
symmetrical (in that they impose equal burdens on persons of
different races)
 Laws providing for “separate but equal” public facilities
are unconstitutional
 These types of laws generate feelings of
inferiority as to one’s status in the community
and it negatively affects one’s motivation to
learn
 Laws prohibiting inter-racial marriages are
unconstitutional because they maintain the white
supremacy
o Affirmative Action Programs are Subject to Strict Scrutiny
 Strict Scrutiny applies to Government consideration of
race even when it is designed to benefit, rather than
burden, racial minorities
 Institutions of higher education have a
compelling interest in attainting a diverse
student body but that compelling interest must
be narrowly tailored
o Admission policies that seek to achieve
a “critical mass” of minority students by
considering race or ethnicity flexibly as
a “plus factor” in the context of
individualized consideration of each
applicant can survive strict scrutiny
 As opposed to an admission
policy that seeks to ensure its
student body some specified
percentage of a particular
group merely because of race
or ethnic origin (i.e., racial
balancing or a quota) – Race
can be a factor, but not “the”
factor
o This process requires constant good-
faith consideration of workable race-
neutral alternatives that will achieve
the diversity the University seeks
  Does not require exhaustion of
every conceivable alternative
 Once the University has established that its goal of
diversity is consistent with strict scrutiny, there must
still be a further judicial determination that the
admissions process meets strict scrutiny in its
application
 The University must prove that the means
chosen by the University to attain diversity are
narrowly tailored to that goal
o There is no deference to the University
here – the Court must be satisfied that
no workable race-neutral alternatives
would produce the educational benefits
of diversity
 In order to use past discrimination as your compelling
interest you would have to have violated the
Constitution by discriminating on the basis of race
 If you have not violated the Constitution by
discriminating on the basis of race, then you
cannot use race to remedy your violation
 Alienage
o Strict Scrutiny
 Cannot burden a person because of her status as a
member of a race/national origin minority
 Intermediate Scrutiny
 Law will be upheld only if it is substantially related to an important
government interest
o SCOTUS applies this level to classifications based on gender and
the marital status of one’s parents
 Only a Suspect Classification [strict scrutiny] if:
o History of Discrimination
o Immutable Characteristic
o Discrete and Insular Minority
 This rule applies to both laws that burden women and laws that burden
men
o The State/Government bears the burden of justification and
establishing that the challenged classification serves an
important Governmental objective and that the discriminatory
means employed are substantially related to the achievement
of those objectives
 The justification must be genuine and not hypothesized
and it must not rely on overbroad generalizations about
 the different talents, capacities or preferences of males
and females
 And if “diversity” is the justification, it cannot
only come out at trial and survive this level of
scrutiny
 Laws or policies that treat men and women differently
because of “real” differences between the sexes might
survive intermediate scrutiny, but not if the lines are
drawn based on mere gender stereotypes
 Rationality Review/Rational Basis
 Law will be upheld if it is rationally related to a legitimate government
interest
o Highly deferential to the Government’s judgment
 The fact that the challenged regulation is under-
inclusive (fails to fully address all manifestations of the
problem that it is designed to do) will generally not be a
sufficient basis for invalidation of the regulation
 Same for a regulation that is over-inclusive
(regulates more people than is arguable
necessary to achieve the goal)
 For all other classifications
 Age
o Age is not a suspect class and therefore the government action
based on age will be upheld if there is a conceivable rational
basis for the classification
 Ex. a police officer can be forced to retire at age 50,
even though he is as physically fit as a younger officer

Individual Rights – The 14th Amendment Due Process Clause

 Substantive Due Process
o The Substantive Due Process Clause specially protects those fundamental rights and
liberties which are, objectively, deeply rooted in the Nation’s history and tradition and
implicit in the concept of ordered liberty
 So that history, legal traditions, and practices provide guideposts for decision
making
 However, that many of the rights and liberties protected by the 14 th
Amendment Due Process Clause sound in personal autonomy does not
warrant the sweeping conclusion that any and all important, intimate
and personal decisions are so protected
o Fundamental Rights get strict scrutiny
o Non-Fundamental Rights get rational basis
 How to determine if a right is fundamental? Look at:
  Whether the constitutional principle at the heart of the challenged act
(not the challenged act itself) is deeply rooted in the Nation’s history
and tradition
o The rights are stated more broadly– ex. the right to choose who
you will associate with in an intimate relationship, the right to
choose who you marry, etc.
o Fundamental Rights:
 Alienage
 You cannot burden a person because of her status as a member of a
racial class/national origin minority
o Can be considered for state employment positions involving the
self-government process; including police and teachers
 Abortion/Contraception
 The right of personal privacy is founded in the 14 th Amendment’s
concept of personal liberty, i.e., it is protected by substantive due
process
o This includes the abortion decision, but the right must be
considered against important state interests in regulation
 Where certain fundamental rights are involved, the
Court has held that regulation limiting these rights may
be justified only by a compelling governmental interest
and that legislative enactments must be narrowly
tailored to express only the legitimate state interests at
stake
 The burden is on the State to prove the
requirements of Strict Scrutiny
o Roe v. Wade
 SCOTUS stated that the compelling Government
interests in maternal health and fetal life increases as
pregnancy progresses
 And fetal health is only a compelling
governmental interest post-viability, the third
trimester
o The government cannot ban abortion
during the first trimester of pregnancy
(no viability) but beginning in the third
trimester, where viability is said to
exist, the state can prohibit abortion
except where necessary to preserve the
life or health of the mother
 The government can regulate
abortion in ways that are
reasonably related to maternal
 health during the second
trimester
o Casey
 Rejected Roe’s trimester framework as a rigid
prohibition on all pre-viability regulation aimed at the
protection of fetal life
 Maternal and Fetal health are compelling state
interests at all times during the pregnancy, but
you can’t do anything that becomes and undue
burden
 Substituting instead an “Undue Burden” standard
 A finding of undue burden is a conclusion that a
state regulation has the purpose or effect of
placing a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus
o Throughout pregnancy the state may
take measures to ensure that the
woman’s choice is informed, and
measures designed to advance this
interest will not be invalidated as long
as the information provided in support
of life is not inaccurate information
 The state may enact regulations
to further the health or safety
of a woman seeking an
abortion, but the state cannot
prohibit a woman from making
the decision to abort at any
time
o Examples:
 24 hour waiting period is not an
undue burden
 Spousal notification is an undue
burden
 Parental consent for minors is
not an undue burden
o Gonzales
 Where the state has a rational basis to act and it does
not impose an undue burden, the state may use its
regulatory power to bar certain procedures and
substitute others, all in furtherance of its legitimate
interests in regulating the medical profession in order to
promote respect for life, including life of the unborn
  Rational Basis Level of Scrutiny / Undue
Burden Standard
o The state interest is in respect for life,
including fetal life, and respect for the
ethics of the medical profession
 Abortions can become more
expensive, just not so expensive
someone could not get one
 The state can regulate or ban certain procedures as long
as there is a rational basis to act and it does not impose
an undue burden
 Marriage and Family
 The freedom to marry a person of another race cannot be infringed by
the State
o The right to marry is of fundamental importance for all
individuals
 Reasonable regulations that do not significantly
interfere with decisions to enter into the marital
relationship may legitimately be imposed but more
searching scrutiny is warranted for regulations that
interfere directly and substantially with the right to
marry
 You weigh the government interests against the Essentials of Marriage
(which are what makes marriage a fundamental right)
o The Four Essentials of Marriage
 Shapes an individual’s destiny
 Supports a two-person union unlike any other
 Safeguards children and families
 Keystone of social order
 There is no lawful basis for the state to refuse to recognize a lawful
same-sex marriage performed in another state because of its same-sex
character – moral disapproval is not sufficient
 Hypos:
o Law prohibiting plural marriage?
 If it is found to align with the 4 essentials of marriage
and it is also found that there exists a harm aside from
mere moral disapproval, which is not a legitimate
government interest, then the
o Law prohibiting marriage with animals or computers?
 No, there is no Equal Protection violation because it
does not involve two people
 Also, there are harms aside from moral
disapproval
 The Right to Bear Arms
  There is a fundamental individual right to possess and carry weapons in
case of confrontation
o Ask: what kind of weapon is it?
 Is the weapon generally available and in common use
for self-defense?
 You analyze how common the weapon is
 Whether it has a history of being banned
 Is the weapon used generally for self-defense –
what purposes do the owners have for it
 If so, it is protected as an individual and fundamental
right to possession
 These weapons aren’t limited to ones that were
available at the time of the writing of the 2nd
amendment
 Voting Rights
 The right of citizens to vote is fundamental
o Harper v. Virginia State Bd. of Elections
 The right to vote in state elections is not mentioned in
the Constitution but a State violates the Equal
Protection Clause of the 14th Amendment when it
makes the affluence of the voter or payment of any fee
an electoral standard
 The interest of the State, when it comes to
voting, is limited to the power to fix
qualifications
o Wealth or paying of fees has no relation
to voting qualifications and therefore
any law that requires such is violative of
the Equal Protection Clause as being
arbitrary and capricious
o Crawford v. Marion County Election Board
 A voter ID law that required the presentation of photo
ID issued by the government prior to voting was upheld
 The law was a generally applicable,
nondiscriminatory voting regulation that is
designed to protect the integrity and reliability
of the electoral process itself
o A generally applicable law with
disparate impact is not unconstitutional
o Bush v. Gore
 When a court orders a statewide remedy, there must be
at least some assurance that the rudimentary
requirements of equal treatment and fundamental
fairness will be satisfied
  The manual recount procedures violated the
Equal Protection Clause because they did not
provide sufficiently concrete and uniform
standards for the counting of the votes
 Apportionment:
 The process by which officials draw the electoral maps that define the
districts in which they will then seek office
o Reynolds v. Sims
 An individual’s right to vote is substantially impaired
when its weight is in a substantial fashion diluted when
compared with votes of citizens living in other parts of
the state
 The Equal Protection Clause requires both
houses of a state legislature to be apportioned
on a population basis- a state must make an
honest and good faith effort to construct
districts, in both houses of its legislature, as
nearly of equal population as is practicable
 Mathematical exactness is not what is being asked
 “One Person, One Vote” Principle:
o This principle requires that legislators or
other elected representatives represent
districts of equal sizes so that no
person’s vote is worth more than any
other’s
 Although the court in Reynold’s v. Sims stated
that it does not insist on mathematical
exactness, only small deviations from this
principle are allowed
o For congressional districts:
 Almost mathematical exactness
o For States:
 Nearly as equal as possible, 0%-
10% variance in population is all
that is allowed – this requires a
“good faith” effort to apportion
o Davis v. Bandemer
 A six-member majority of the Court, after considering
the factors identified in Baker v. Carr, found the claim to
be justiciable but no standard for assessing the
plaintiff’s claims of an impermissible political
gerrymander was agreed to by a majority
 Plurality
 o Plaintiff’s could prevail only by proving
both intentional discrimination against
an identifiable political group and an
actual discriminatory effect on that
group
 Powell:
o A multi-factor test for determining
when a political gerrymander violates
the Constitution- the most important
factor being the shapes of voting
districts and adherence to established
political subdivision boundaries
 Also, the nature of the
legislative procedures by which
the apportionment law was
adopted and legislative history
reflecting contemporaneous
legislative goals
o No one factor should be dispositive
 O’Connor
o Would hold political gerrymandering
claims non-justiciable as being
fundamentally a political affair
o Vieth v. Jubelirer
 Because there are no judicially discernable and
manageable standards by which political
gerrymandering cases are to be decided, such cases are
non-justiciable- Bandemer was wrongly decided
o The appellants proposed a formulation of the Bandemer
plurality’s two-part test of intent and effect
 A plaintiff must show that the mapmakers acted with a
predominant intent to achieve a partisan advantage
which can be shown by direct or circumstantial
evidence that other neutral and legitimate redistricting
criteria were subordinated to the goal of achieving
partisan advantage
 This is a standard borrowed from racial
gerrymandering cases that SCOTUS used
o SCOTUS rejects this stating that the
Constitution clearly contemplates
districting by political entities and that
an enforceable obligation not to apply
too much partisanship is
unmanageable, and also that a person’s
 politics is rarely discernable and never
permanently discernable as a person’s
race
 SCOTUS also states that the
standard rests upon the
principle that groups have a
right to proportional
representation and that the
Constitution contains no such
principle
o Standing:
 The individual vote must be shown to have been
burdened in the district in which they vote
 You can’t claim that someone else in the state is
being burdened by a political gerrymander
o Non-Fundamental Rights (Rational Basis)
 Welfare and Education
 There is no fundamental right to welfare or state funded public-school
education
o The system of public-school finance does not get strict scrutiny,
it gets rational basis
 The plan or law must rationally further a legitimate
state purpose or interest
 If the classification has some reasonable basis, it
does not offend the Constitution simply
because the classification is not made with
mathematical nicety or because in practice it
results in some inequality
o Wealth is not a suspect basis for
classification under the Equal
Protection Clause
 Illegal aliens are not a suspect class and education is not a fundamental
right
o If the State is to deny a discrete group of innocent children the
free public education that it offers to other children residing
within its borders, that denial must be justified by a showing
that it furthers some substantial state interest
 Access to the Courts
 An inspection of the character and the intensity of the individual
interest at stake versus the State’s justification for its action
o Ex. the parental rights of M.L.B. versus the State’s interest in
offsetting the costs of the court system
  The State’s interest and need to offset costs in the mine
run of cases satisfies the rationality requirement but
there are two exceptions to that general rule:
 The basis right to participate in political
processes as voters and candidates cannot be
limited to those who can pay for a license
 Access to judicial processes in cases that are
criminal or quasi-criminal in nature cannot turn
on ability to pay
 This case falls into an exception as well and rational
basis is not satisfied
 Disability
 Mental retardation is not a quasi-suspect classification for 4 reasons:
o The task of how this classification should be treated under the
law is a technical matter more suited for legislators guided by
professionals and not the judiciary
o Heightened scrutiny involves substantive judgments about
legislative decisions and that sort of judicial oversight is not
ideal with this classification
o The mentally ill are not politically powerless in the sense that
they don’t attract the attention of lawmakers
o If this class were deemed to be quasi-suspect, it would be
difficult to distinguish a variety of other groups who have
immutable disabilities similarly situated in some degree of
prejudice
 Mere negative attitudes or fear of a classification of people is not a
permissible bias for a legitimate governmental interest
o An interest based on irrational prejudice is not legitimate
 The Right to Contract
 The general right to make a contract in relation to business is part of the
liberty of the individual protected by the 14 th Amendment Due Process
Clause of the Federal Constitution
o Lochner Era:
 A law interfering with any of those rights will only be
upheld if it involves the safety, morals and general
welfare of the public
 The general assertion that the subject relates,
though but in a remote degree, to the public
health does not render the enactment valid
o The act must have a more direct
relation and be appropriate and
legitimate before the act will be held
valid
  States do not have the power to regulate labor
practices [the right to K] unless it relates to the
health of the general public
o The right to K is only available for
people who have the capacity to K
o Post Lochner:
 The fifth (federal) and fourteenth (state) amendments
do not prohibit governmental regulation for the public
welfare
 They merely condition that the power exerted
must be accomplished by methods consistent
with due process
o The law shall not be unreasonable,
arbitrary, or capricious and the means
selected shall have a real and
substantial relation to the object sought
to be attained
 A state is free to adopt whatever economic
policy may reasonably be deemed to promote
public welfare and may enforce that policy by
legislation adapted to its purpose
o Rational Basis Review:
 If the laws passed are seen to
have a reasonable relation to a
proper legislative purpose, and
are neither arbitrary nor
discriminatory, the
requirements of Due Process
are satisfied
o Under this level of scrutiny, a court will
not seek to determine the legislature’s
actual objective in enacting the
challenged statute, but instead will
judge it in light of possible objectives
that the legislature might have sought
to accomplish
 The law does not need to be, in
every respect, logically
consistent with its aims to be
constitutional – it can be under-
conclusive and/or over-
conclusive and still be valid
o Exception = Political Processes
  Heightened judicial scrutiny
might be warranted when
regulation restricts those
political processes which can
ordinarily be expected to bring
about repeal of undesirable
legislation (Ex. restrictions on
the right to vote)
 Sexuality
 If a law neither burdens a fundamental right nor targets a suspect class,
the legislative classification will be upheld so long as it bears a rational
relation to some legitimate end
o Legislation unrelated to the ultimate goal is not rational
 When the state tries to advance transparent reasons for their laws that
are unrelated to their goal, it fails rational basis
 A bare desire to harm a politically unpopular group is
not a legitimate governmental interest
 The government cannot interfere with your right to engage in intimate
sexual conduct without another compelling government interest for the
state aside from morality
o Moral disapproval of a group cannot be a legitimate
governmental interest under the Equal Protection Clause
because legal classifications must not be drawn for the purpose
of disadvantaging the group burdened by the law
 Example of another compelling government interest for
the state aside from morality:
 Harm (statutory rape laws)
 The state cannot demean the existence of homosexuality or control
their destiny by making their private sexual conduct a crime
o Their right to liberty under the Due Process Clause gives them
the full right to engage in their conduct without intervention of
the government
 Life and Death
 The asserted right to assisted suicide is not a fundamental liberty
interest protected by the Due Process Clause
o The test is rational-basis and it is satisfied:
 The state has an unqualified interest in preservation of
human life
 The state has an interest in protecting the integrity and
the ethics of the medical profession
 The state has an interest in protecting vulnerable
groups- the elderly, the disabled, etc.- from abuse,
neglect and mistakes
  The state has a legitimate interest in avoiding a slippery
slope that could lead to involuntary and voluntary
euthanasia
o The ban on assisted suicide is upheld
 Procedural Due Process
o A law that infringes on a protected interest (liberty, life, or property) must be applied in
a way that is fair
 It’s a Balancing Test:
 How important is the right?
 What are the interests of the state?
 What are the chances of a bad/wrong outcome?

Congressional Power – Article I & Federalism

 Federalism
o Federalism protects:
 Congress from state encroachments
 States from federal encroachments
 Individuals from state and federal governments
o Basically, the Constitution grants Congress number of specific powers; it also grants
auxiliary power under the Necessary and Proper Clause
 Grants Congress the power to make all laws necessary and proper (appropriate)
for carrying into execution any power granted to any branch of the federal
government
 Those laws cannot be expressly prohibited by another provision of the
Constitution
o History:
 The Articles of Confederation
 Under these Articles, Congress lacked authority to impose taxes,
regulate commerce, and (although the Articles conferred the power to
Congress) no power over foreign affairs because states could refuse to
implement its directives – things were a mess
o The Solution – The Constitutional Convention
 Anti-Federalists:
 Argued that the Constitution would create an
unduly powerful national government that
would threaten the existence of the states and
the individual liberties over which the
Revolution had been fought
 Federalists:
 Responded that such threats were illusory
because the national government would be
authorized to exercise only those powers
enumerated in the Constitution
 Ultimately – The Constitution Happened
 Congress was conferred the power to tax and regulate interstate and
foreign commerce
o Congress’ powers were enumerated – confirmed by the
ratification of the 10th Amendment:
 The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the People
o But, there is the Necessary and Proper Clause:
 Congress was authorized to make all laws which shall be
necessary and proper for carrying into execution- not
only the powers of Congress- but also “all other powers
vested by the Constitution in the Government of the
United States, or in any Department or Officer thereof”
– Article I, § 8, cl. 18
 It also provided that federal law shall be the
supreme law of the land, anything in the
Constitution or laws of any state to the contrary
notwithstanding- Article VI, cl. 2
o McCulloch v. Maryland
 Congress is limited to those powers enumerated in the
Constitution
 Those enumerated powers and the Necessary
and Proper Clause imply the existence of
subsidiary powers
o I.e., federal power can be either express
or implied
 The implied powers are powers
of Congress to choose the
means to make the exercise of
its expressed power work
 The Necessary and Proper Clause does not limit
the enumerated powers, it’s a grant of an
additional power
o Implied powers would exist without the
Necessary and Proper Clause
 Necessary does not mean
absolutely necessary, it just
needs to be rational
o The Constitution is not interpreted the
same way as statutes
 The Framers did not use
restrictive words on purpose;
the Constitutions is meant to
 “work” and should be
interpreted to “work” and not
often be re-written
 The Constitution did not expressly confer upon
Congress the power to create a Bank of the
United States, but SCOTUS concluded that such
a power is fairly implied from other grants of
power in Article I
 There is a 3-Part “Means – End – Prohibited” Test
 What is the end?
o Must be legitimate, i.e., a power, express or implied, within
Article 1
 What is the means?
o Must be appropriate and plainly adapted to meet the ends
 Are those means prohibited?
o By the Bill of Rights, i.e., the limits on Congress’ power
 Ex. cruel and unusual punishment
o United States v. Comstock
 Federal Government is acknowledged by all to be one of enumerated powers,
which means that every law enacted by Congress must be based on one or more
of those powers
 But, at the same time, a government entrusted with such powers must
also be entrusted with ample means for their execution
o The Necessary and Proper Clause makes clear that the
Constitution’s grant of specific federal legislative authority is
accompanied by the broad power to enact laws that are
“convenient” or “useful” or conducive to the authority’s
“beneficial exercise”
 Necessary does not mean absolutely necessary
 Rule:
 In determining whether the Necessary and Proper Clause grants
Congress the legislative authority to enact a particular federal statute,
we look to see whether the statute constitutes a means that is rationally
related to the implementation of a constitutionally enumerated power
o The Constitution, which nowhere speaks explicitly about the
creation of federal crimes beyond those related to
counterfeiting, treason, or piracy and felonies committed on the
high seas, nonetheless grants Congress the broad authority to
create such crimes
 Congress enacts such criminal laws in furtherance of,
for example, its enumerated power to regulate
interstate and foreign commerce, to enforce civil rights,
to spend funds for the general welfare, to establish post
 offices, to regulate bankruptcy, to regulate
naturalization, etc.
 Other Considerations:
o Does the federal statute have a longstanding history of related
federal action?
 Though not dispositive this can be helpful in reviewing
the substance of a Congressional statutory scheme and
the reasonableness of the relation between the new
statute and pre-existing federal interests
o Is the Federal Government a “custodian” of those who the
statute encompasses?
 Ex. the federal government is the custodian of its
prisoners
o Does the statute properly account for state interests?
 Is the area that the statute covers typically left to state
control?
 Powers delegated to the United States by the
Constitution include those specifically
enumerated powers listed in Article I ALONG
with the implementation of authority granted
by the Necessary and Proper Clause
o i.e., if it falls under those, it is not a
power reserved to the states
o Is the link between the statute and an enumerated power in
Article I too attenuated?
 It can’t be more than a single step between an
enumerated power and an act of Congress – Congress
can seemingly use this clause to enact a law merely
because it is incidental to other federal laws
 Commerce Clause
o There are three broad categories of activity that Congress may regulate under its
Commerce Power:
 The use of channels of interstate commerce
 Railroads, roads, waterways, even electronic channels, the internet
o Note:
 It doesn’t matter if the activity is economic or not under
this activity
 Congress can set the rules for what happens in
the channels of commerce and then they can
use the Necessary and Proper Clause as a way
to preserve the policy of setting those rules
 The instrumentalities of interstate commerce, or persons or things in
interstate commerce- even though the threat may come from intrastate
activities only
  Trains, boats, cars, airplanes, safety features of those things
 Those activities that substantially affect interstate commerce
 The only time there is a question asked of whether the activity is
economic comes up here under this category
o You cannot regulate non-economic activity for the substantial
impact that the activity may have on interstate commerce
 Unless there is a jurisdictional hook linking it to
interstate commerce
o However; Necessary and Proper Clause and the Commerce
Power:
 The Necessary and Proper Clause can give power to
regulate non-economic things/activities as long as that
non-economic activity is necessary and proper to
preserve the commerce power granted to Congress
 i.e., Congress may choose the means
reasonably adapted to the attainment of the
permitted end, even though they involve the
control of intrastate non-economic activities
 Ex. working conditions, wages, hours, etc.
o Remember: you can aggregate individual instances
 Once you have an economic activity being regulated, then you apply the
rational basis test
o Must have something to do with commercial or economic
activity (or N+P) and the court must conceive a rational basis on
which Congress could conclude that the activity in the aggregate
substantially affects interstate commerce
 Look for a jurisdictional element establishing that the
federal cause of action is in pursuance of Congress’
power to regulate interstate commerce
 i.e., a connection of the act to interstate
commerce
o This is sufficient but not necessary
 The connection must not be too attenuated
 Ask- has the activity to be regulated been left
traditionally to the state’s functions?
o Without this limit there would be no
limit between federal and state
authorities
 Creating a police power of
Congress
o Effects and Aggregation Principles
 NLRB v. Jones
 Although activities may be intrastate in character when separately
considered, if they have such a close and substantial relation to
 interstate commerce that their control is essential or appropriate to
protect that commerce from burden and obstructions, Congress cannot
be denied the power to exercise that control
o The intrastate activities, by reason of close and intimate relation
to interstate commerce, may fall within federal control
 The “Effects” Principle:
 Congress can regulate local non-commerce
activities in a state if those activities have a
close and substantial effect on interstate
commerce
o The Affectation “effects” Principle:
 Congress can regulate not only
interstate commerce itself, but
also intrastate activities that
substantially affect commerce
 Wickard v. Filburn
 Filburn’s use of bushels of home-grown wheat, alone, would not have a
substantial impact on interstate commerce, however- Filburn’s activity
taken together with that of others similarly situated, would
o The Court used the aggregation principle to gauge the effect on
interstate commerce [all the Filburns in the world]
 The Aggregation Principle:
 An activity’s effect on commerce is not
determined by looking at the effect of a single
instance of the activity but instead by looking at
the effect of the activity when undertaken by
everyone across the whole country
o i.e., you don’t look at just the one small
business, you look at all of them in the
category of the business
 The Rational-Basis Test
 The Court asks whether Congress had a rational
basis for concluding that the regulated conduct,
when viewed in the aggregate, has a substantial
effect on interstate commerce
o Ex. Filburn’s home grown wheat for
personal consumption could enter the
market at any time- it over hangs the
market
o Lopez
 Gun free school zone act
 Does this have effect on commerce?
o No, not economic activity
o Morrison
  Federal civil remedy for victims of gender-motivated violence is invalid under
commerce clause
 Congress cannot regulate non-economic, violent criminal conduct based
on that conduct’s aggregate effect on interstate commerce
o A non-economic activity
o No jurisdictional element
 You would need to add “violence in the workplace” to
make it connected
o Too attenuated
o Gonzales
 Congress has the power to regulate purely local activities that are a part of an
economic class of activities that have a substantial effect on interstate
commerce
 Like Wickard
o Production of the commodity meant for home consumption has
a substantial effect on supply and demand in the national
market for that commodity
 There exists a rational basis for concluding the
respondent’s economic activity, taken in the aggregate
(class), would affect interstate commerce
 Congress can define a class of activity that falls within its Commerce Power
 It does not matter if you as an individual don’t actually belong within
the economic category Congress intended with their classification
o Ex. medical marijuana versus recreational marijuana is all
encompassed in the class of marijuana
 Congress’ commerce clause authority over an economic activities of a
class trumps in-state regulations
o National Federation of Independent Business v. Sebelius
 The power of Congress over interstate commerce extends to activities that, by
itself, has a substantial effect on interstate commerce
 The power of Congress over interstate commerce extends to activities
that, when aggregated with similar activities of others, has a substantial
effect on interstate commerce
 The power of Congress is to regulate commerce- this presupposes the existence
of commercial activity to be regulated
 The commerce power is not the authority to compel commercial activity
on the grounds that their failure to do so affects interstate commerce
o Congress cannot create the activity in order to regulate it
 The Necessary and Proper Clause empowers Congress to enact laws in
effectuation of its commerce power that are not within its authority to act in
isolation
 However, in this case, the Necessary and Proper clause does not allow
for the mandate because it vests Congress with the ability to create the
necessary predicate to the exercise of an enumerated power
 o This is not a proper means for carrying into execution Congress’
enumerated power under the Commerce Clause
 The Taxing Power
o Congress does not have the power to pass laws for the general welfare, only States do
 Congress does have the power to tax and spend for the general welfare
 Congress can tax but not penalize!
o Ask- is there some objective basis for the exercise of the taxing
power?
 Revenue is the hallmark of a tax; scienter is the
hallmark of a penalty
 i.e. if the exercise of the taxing power raises
revenue and there is no scienter requirement =
a tax
o Great deference given to Congress
 National Federation of Independent Business v. Sebelius
o In determining whether the shared responsibility falls within Congress’ taxing power, or
whether it is a penalty, the Court looks at three practical characteristics:
 Does the tax impose an exceedingly heavy burden?
 No, the amount due under the tax (for most Americans) will be far less
than the price of insurance, and, by statute, it can never be more
o The mandate does not attach negative legal consequences to
not buying health insurance, it is an option
 If someone chooses not to buy it, they have fully
complied with the law
 Is there a scienter requirement? (intentional aspect)
 Scienter is a hallmark of a penalty
o The individual mandate contains no scienter requirement
 Who enforces the tax?
 The payment is collected solely by the IRS through the normal means of
taxation
 Even if the taxing power enables Congress to impose a tax on not obtaining health insurance,
any tax must still comply with other requirements in the Constitution
o “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or
Enumeration herein before directed to be taken”
 Any “Direct Tax” must be apportioned so that each State pays in proportion to
its population
 Plaintiffs argue that the individual mandate imposes a direct tax and
Congress made no effort to apportion it among the States
o SCOTUS has declared only two taxes direct taxes:
 Capitations
 Taxes paid by every person without regard to
property, profession, or any other
circumstances
 o Shared responsibility payment is
triggered by specific circumstances-
earning a certain amount of income but
not obtaining health insurance
 Land taxes
o Ownership of land or personal property
o The individual mandate is thus not a direct tax and did not
require apportion effort
 Can Congress tax inactivity even if it can’t regulate inactivity under the Commerce Clause?
o Yes- and that’s okay because:
 The Constitution does not guarantee that individuals may avoid taxation
through inactivity
 Congress’ ability to use its taxing power to influence conduct is not without
limits
 Although the breadth of Congress’ power to tax is greater than its power to
regulate commerce, the taxing power does not give Congress the same degree
of control over individual behavior
 The Spending Power
o Congress has broad discretion to use its spending power
 It can authorize any spending that is necessary and proper for carrying out its
express powers under Article 1 § 8
 Ex. building post offices or raising an army or navy
 Congress can also spend money on matters unrelated to its express powers so
long as the spending promotes the general welfare
o United States v. Butler
 Congress can spend money for the general welfare as long as it does not violate
some other part of the Constitution
 And Congress can set conditions on that money to the States as long as
they are consistent with the Constitution
o Congress has a substantive power to tax and to appropriate,
limited only by the requirement that it shall be done so to
provide for the general welfare of the United States
 Congress would have the power to spend for the
general welfare even if Congress could not achieve its
desired objective pursuant to its other enumerated
powers
o South Dakota v. Dole
 Incident to its spending power, Congress may attach conditions on the receipt of
federal funds, but there are 5 rules Congress must follow:
 Congress must act in pursuit of the general welfare
o In considering whether a particular expenditure is intended to
serve general public purposes, courts should defer substantially
to the judgment of Congress
  Any conditions on the States’ receipt of federal funds must be
imposed unambiguously, enabling the States to exercise their choice
knowingly, cognizant of the consequences of their participation
o The condition must be clearly stated
 The conditions imposed on the receipt of funds must be germane to
the purposes for which Congress approved the grant
o The condition imposed by Congress must be directly related to
one of the main purposes for which the funds are expended
 The condition cannot require action that would violate some other
constitutional provision
o The condition cannot be prohibited
 Congress cannot offer the State’s financial inducements that amount
to coercion
o Financial inducement cannot be so coercive as to pass the point
at which pressure turns into compulsion
o National Federation of Independent Business v. Sebelius
 Congress may use its spending power to grant federal funds to the States, and
may condition such a grant upon the States’ taking certain actions that Congress
could not require them to take
 There are five requirements for the exercise of the spending power:
o See above
 At issue here = coercive and ambiguous
o In this case, the financial inducement Congress offered crossed
the line into coercion
 Instead of simply refusing to grant the new funds to
States that would not accept the new conditions,
Congress threatened to withhold those States’ existing
Medicaid funds – a loss of 100% = coercive
 We know from Dole that a 5% loss is not
coercive
o Losing 100% of all money is unconstitutional as a condition
upon states’ receipt of federal funds under the spending clause
for being coercive because there is no practical choice or
because it turns the states into federal administrators
 However, Congress can withhold 100% of new money
and it be constitutional
 State Immunity from Federal Regulation
o Congress may not regulate certain categories of state action
 Garcia v. San Antonia Metropolitan Transit Authority
 When the regulation is regulating the states just like anyone else then
there are no independent federalism limits and courts ought to be able
to inject themselves and let political safeguards of federalism work that
out
 o Any restraint on the exercise of Commerce Clause powers must
find its justification in the fundamental limitation that the
constitution protects states as states and it must be tailored to
compensate for possible failings in the national political process
rather than dictate a sacred province of state autonomy
 Congress can impose on the states’ substantive requirements similar to
those that it imposes on private actors
o Only applies when treating state as one member of a large
category of people
 Ex. Congress has the power to require states to pay
their employees a minimum wage according to federal
standards
 Court unlikely to strike down regulation that subjects state and local
governments to regulations/taxes that apply to both public and private
sectors
o New York v. United States
 Congress enacted a statute that provided three types of incentives to encourage
States to comply with their statutory obligation to provide for the disposal of
waste generated within their borders
 Monetary Incentives
o Permitted states with disposal sites to levy a surcharge on the
disposal of waste received from other states
 Held a valid exercise of Congress’s Spending Power
 Access Incentives
o Permitted states with disposal sites to increase cost of access to
their sites and then to deny access entirely to waste generated
in states that failed to meet a federal deadline for the
establishment of disposal sites of their own
 Held a valid exercise of the Commerce Clause
 Remember, under the Commerce Clause,
Congress can allow States to discriminate
against interstate commerce
 “Take Title”
o Required states that failed by a particular date to dispose of all
waste generated within their borders to take title to the waste
and, if the states failed to take possession of the waste, to face
liability for all damages incurred by waste generators as a
consequence of that failure
 Invalid – coercive; Congress cannot turn the states into
federal administrators, they must be given a real, free
choice
 The Commandeering Principle
 Congress/The Federal Government cannot compel/force the states to
enact and enforce a federal regulatory program
 o Under both Article I and the 10th Amendment
 Article I gives Congress the power to regulate
individuals, not states as a whole
 Congress may encourage a state to regulate in a particular way and may
hold out incentives to the States as a method of influencing state policy
choices
o Ex. under Congress’s Spending Power, Congress may attach
conditions on the receipt of federal funds; where Congress has
the authority to regulate private activity under the Commerce
Clause, Congress has the power to offer states the choice of
regulating the activity according to federal standards or having
state law pre-empted by federal regulation
 But, under either of these methods, the resident of the
state retain the ultimate decision as to whether or not
the state will comply – by voting
 When Congress encourages state regulation
rather than compelling it, state governments
remain responsive to the local electorate’s
preferences; state officials remain accountable
to the people
o Printz v. United States
 Congress cannot circumvent the prohibition of compelling the States to enact or
enforce a federal regulatory program by conscripting the State’s officers directly
 The Federal Government may neither issue directives requiring the
States to address particular problems, nor command the States’ officers
or those of their political subdivisions to administer or enforce a federal
regulatory program
o i.e., Congress cannot force state officials to do something
 Congress cannot adopt a statute that commandeers state officials by requiring
states to regulate their own citizens
 Limitations – The Dormant Commerce Clause
o What is Interstate Commerce?
 All objects of interstate trade merit commerce clause protection – no article is
excluded from the outset
 Including valueless articles
o Examples:
 Trash moving in interstate commerce – therefore, a
state may not say that they are discriminating against
this interstate commerce because of the health of their
citizens
 The citizens of the state are just as threatened
by their own garbage as the garbage located
outside of the state; the garbage is not uniquely
dangerous
 o A state cannot act in a way to preserve
an economic resource instate at the
expense of interstate commerce
 “economic protectionism” is an
illegitimate government
purpose
 Camps Newfound/Owatonna, Inc. v. Town of Harrison
 Because most of the campers come from out of
state, petitioner could not qualify for a
complete exemption under the challenged
statute
o Petitioners argued that interstate
commerce is not implicated in the
situation and Congress has no power to
enact a tax on real estate
 The Court stated that campers
are articles of commerce and
that the camp is engaged in in
commerce – not only as a
purchaser, but also as a
provider of goods and services
o There exists discrimination against
interstate commerce because the camp
was more expensive because they
didn’t get the benefit of the tax breaks
o Questions to Ask:
 Is the state law discriminating against Interstate Commerce?
 What is the legitimate state Interest for the statute, if any?
 Are there any Less Discriminatory Alternatives?
 Could the city have accomplished its goal without discriminating against
interstate commerce?
 What is the Purpose of Prohibiting Discrimination?
 Why would the law invite other obstacles to interstate commerce?
 If the state law does not discriminate against Interstate Commerce, does the
law excessively burden it?
 The benefit must outweigh the effect on interstate commerce
o The greater the state interest, the more the burden has to be on
interstate commerce to have the law struck down
 Example of really important state interest = protection
of children
o Part I of the Analysis:
 States may not engage in discrimination against interstate commerce unless
necessary to further a legitimate state interest
  This applies to statutes that discriminate on their face or that have a
discriminatory purpose or effect or statutes of economic protectionism
o This prohibition is not absolute; just subject to strict scrutiny
 A State may validate a statue that discriminates against
interstate commerce by showing that it advances a
legitimate local purpose that cannot be adequately
served by reasonable nondiscriminatory alternatives
 Dean Milk Co. v. City of Madison, Wisc.
 The challenged statute erected an economic barrier to keep out of state
competition away = plainly discriminatory against interstate commerce
o State interest in protecting the health and safety of their
citizens is legitimate
 But there were reasonable and adequate alternatives
are available
 Hughes v. Oklahoma
 A state’s interest in conservation and protection of wild animals is
legitimate
o But there were reasonable and adequate alternatives available
 The regulation would be okay if there were no other
means to achieve the interest available
 When a wild animal becomes an article of commerce, its use cannot be
limited to the citizens of one State to the exclusion of citizens of another
State
o Part II of the Analysis:
 Even if there is no discrimination by the state on interstate commerce, states
may not impose a burden on interstate commerce that is excessive in relation to
legitimate local interests
 A balancing test that applies after no discrimination against interstate
commerce is found to exist
 Where a state law regulates evenhandedly 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
 If a legitimate local purpose is found, then the question becomes one of
degree
 The extent of the burden on interstate commerce that will be tolerated will
depend on the nature of the local interest involved and whether it could be
promoted as well with a lesser impact on interstate activities

Presidential Power (Federal Executive Power) – Article II & Separation

of Powers
 Domestic Affairs
o Powers:
  When the President acts pursuant to an express or implied authorization of
Congress, the President has a lot of power and the act will likely be valid
 Unless the Constitution prohibits it
o Historical background of the kind of action taken by the
President is relevant in this inquiry
 When the President acts in absence of Congressional grant or denial of authority
(i.e., Congress is silent on the matter) the President can only rely on his own
powers granted by Article II and the action will be valid if it does not impinge on
the powers of another branch
 Here context matters; what is going on at the time in the country?
o Youngstown Sheet & Tube Co. v. Sawyer
 The labor dispute arose out of domestic concerns –
therefore in the domestic arena
 The President’s power, if any, to act with
respect to domestic affairs, must stem either
from an act of Congress or from the
Constitution itself
o In this case, no act of Congress granted
a power or implied a power to the
President to make the regulation
 Presidents cannot legislate, they can only execute (this
impinges on the power of another branch)
 Always ask- what is the nature of the
President’s action? Is it executive or legislative?
o Legislative = not okay
 When the President takes measures incompatible with the express or implied
will of Congress, the President has very little power because he can only rely on
his own constitutional powers (granted by Article II) minus any constitutional
powers Congress has over the matter
 The action will likely be invalid
o The Court can sustain exclusive Presidential Power in a case by
disabling Congress from acting on the subject
 Foreign Affairs
o Article II of the Constitution provides that the President shall have Power, by and with
the Advice and Consent of the Senate, to make Treaties, provided two thirds of the
Senators present concur
 This differs from an executive agreement which is negotiated by the President
with a foreign nation without subsequent ratification by the Senate
 The President does not have plenary power to settle claims, even as
against foreign governmental agencies
 However, where the settlement of claims has been
determined to be a necessary incident to the resolution
of a major foreign policy dispute between our country
and another, and where the Court can conclude that
 Congress acquiesced in the President’s action, the
President does have the power to settle any claims
o The President may enter into international agreements settling claims by United States
citizens against a foreign government even in the absence of express statutory or
constitutional authority and even if the agreements abrogate state-law rights
 The dispute came from an international situation
 The President has a lot of power in the foreign affairs arena
o Zivotogsky v. Kerry
 The President has the exclusive power to recognize foreign states stemming
from the enumerated power to receive nationals of foreign countries, and from
longstanding practice and precedent
 Congress cannot interfere with this right
o The rule that Congress passed allowing an individual the ability
to request Jerusalem as a place of birth on their passport forced
a statement contrary to the President’s determination to not
recognize Jerusalem as the capital of Israel
 The legislation was struck down
o United States v. Curtiss-Wright
 Congress delegated the right to make “gun-running” a crime to the President
 SCOTUS rule that Congress’s doing so is okay
o The states severally have never possessed international powers,
such powers could not have been carved from the mass of state
powers but obviously were transmitted to the US from some
other source
 The powers to declare and wage war, to conclude
peace, to make treaties, to maintain diplomatic
relations with other sovereignties would have
necessarily vested in the federal government as
necessary concomitants of nationality
 i.e. it didn’t come from the Constitution
o With respect to foreign affairs, the theory of the extra-
constitutional origin of the foreign affairs power says that the
United States may exercise not only the powers that the
Constitution express grants, but also other foreign affairs
powers enjoyed by all sovereigns
o Goldwater v. Carter
 SCOTUS declined to decide whether the President had the power to rescind
treaty obligations, effectively allowing the President to rescind the treaty
 The President can exercise some foreign affairs powers not expressly
granted in the Constitution because federal courts will decline to review
the President’s actions under the political question doctrine
 Executive Power During War
o Congress has the power to declare war, the President has the power to “make war”
  The power of Commander in Chief allows the President to protect national
security and act when there is no time for Congress to act and the threat is
imminent
 President has the power to repel sudden attacks; they are in charge of
national security
o Defensive actions and preemptive national self-defense actions
 Including imminent attacks on U.S. interests in other
countries and authorized action by defense treaties
with other countries
o The Non-Detention Act:
 Congress enacted in 1948 a statute that provided that no citizen shall be
imprisoned or otherwise detained by the United States except pursuant to an
act of Congress
 Hamdi v. Rumsfeld
o Congress authorized the detention of enemy combatants
through the AUMF
 The Government contended that that the classification
as an enemy combatant justified the Government
holding Hamdi indefinitely – without formal charges or
proceedings – unless and until it makes the
determination that access to counsel or further process
is warranted
o SCOTUS agreed with the Government that detention of enemy
combatants, for the duration of the particular conflict in which
they were captured, is so fundamental and accepted as an
incident to war that it is a valid exercise of the necessary and
appropriate force Congress has authorized the President to use
 However, due process demands that a citizen held in
the Untied States as an enemy combatant be given a
meaningful opportunity to challenge his classification as
an enemy combatant and contest the factual basis for
that detention before a neutral decisionmaker
 Executive Privilege
o United States v. Nixon
 Executive privilege comes from the President’s unique office and the burdens
that would be placed on the President [executive branch] by the judicial branch
if the President were not protected
 Separation of Powers
o Congress says this privilege is Constitutionally based
 Therefore, Congress cannot take it away or limit it
without upsetting the balance of powers
 This is a limited privilege – it only applies to the
President when the President’s interest
outweighs the interest in the judicial system
 o Note:
 Congress could expand the
privilege and say the President
has absolute executive privilege
under the Necessary and
Proper Clause
 When the ground for asserting privilege as to
subpoena materials sought for use in criminal
trial is based solely on the generalized interest
in confidentiality, it cannot prevail over the
fundamental demands of due process of law in
the fair administration of criminal justice
o There must be a claim of need to
protect military, diplomatic, or sensitive
national security secrets when it comes
to disclosure of Presidential
communications for in camera
inspection to be protected under the
privilege
 In those instances, the
legitimate needs of the judicial
process are not outweighed by
the Presidential privilege
 Executive Immunity
o Scheuer v. Rhodes/Butz v. Economou
 Established a two-tiered division of immunity defenses:
 Qualified Immunity
o For most state and federal executive officers
 The scope of the defense varied in proportion to the
nature of their official functions and the range of
decisions that conceivably might be taken in good faith
 Absolute Immunity
o The especially sensitive duties of certain officials (ex. judges,
prosecutors) required absolute immunity
o Nixon v. Fitzgerald
 Presidents are entitled to absolute immunity from civil damage actions arising
out of the execution of official duties of office
 The immunity is not applicable in injunctive relief cases
 A functionally mandated immunity incident to the President’s unique office,
rooted in the constitutional tradition of the separation of powers and supported
by history
 To avoid rendering the President unduly cautious in the discharge of his
duties
o Including official acts of a former President
 o However:
 The President does not have absolute immunity from- and does not have the
right to delay lawsuits for- his private acts, even while serving as President,
unofficial conduct, or acts arising before his taking office
 Absolute immunity extends only to acts taken within an official capacity
and the doctrine of the separation of powers does not require federal
courts to stay private actions against the President until he leaves office
o Therefore, an act before becoming President is not an official
act and the President is not protected
 However, the President can be granted temporary
immunity
 To obtain a postponement during term of
office, the President must bear the burden of
establishing its need – that the suit is occupying
the President’s time and unique responsibilities
 Or, Congress can afford the President stronger
protection with appropriate legislation
 Locate the power the president is using, if the act is not within his official
capacity, the President is subject to civil suit
o Random Notes:
 The DOJ says you cannot indict a sitting President and you cannot but a current
President on trial or subpoena him to testify before a grand jury
 Doing so would distract the President from his duties as he would be
required to be present
o A separation of powers problem – the Judicial Branch is
burdening the Executive Branch
 The only remedy available would be impeachment for treason, bribery, and
other high crimes
 Note:
o Once the current President is removed, then he can be
prosecuted
 You can subpoena documents from the current President as long as the
President cannot and does not claim privilege
 Excluding the President from the Legislative Process
o Immigration and Naturalization Service v. Chadha
 Congress may exercise legislative power only by acting pursuant to the
bicameralism and presentment requirements of Article I
 Legislative power consists of actions that have the purpose and effect of
altering the legal rights, duties, and relations of persons outside of the
legislative branch
 Presentment requirement required all legislation to be presented to the
President before becoming law
 The President will either sign the bill, or veto it
  Bicameralism requirement of Article I, sections 1 and 7 required that no law
could take effect without the concurrence of the prescribed majority of the
members of both houses
 However:
o Not all action taken by either House is subject to the
bicameralism and presentment requirements of Article 1- only
actions that are legislative in its character and effect
 When action has the purpose and effect of altering the
legal rights, duties and relations of persons outside of
the legislative branch, the act is legislative
 Further, there are only 4 provisions in the
Constitution that explicitly and unambiguously
provide that one House may act alone with the
unreviewable force of law, not subject to the
President’s veto:
o House of Reps has the power to initiate
impeachments
o The Senate has the power to conduct
trials following impeachment on
charges initiated by the House and to
convict following trial
o The Senate has the power to approve or
disapprove presidential appointments
o The Senate has the power to ratify
treaties negotiated by the President
 The action taken by the House [the legislative
veto] is not within any of these 4 exceptions
and is therefore subject to the Presentment and
Bicameralism requirements of Article I
o Clinton v. New York
 The “Line Item Veto Act” gives the President the power to cancel in whole three
types of provisions that have been signed into law:
 Any dollar amount of discretionary budget authority
 Any item of new direct spending
 Any limited tax benefit
 A majority vote of both Houses is sufficient to enact a disapproval bill that the
President cannot cancel- but the President can veto the disapproval bill
 The Act gives the President the power to effect the repeal of laws for his
own policy reasons without observing the procedures set forth in Article
I
o Congress cannot grant the President this power
 Congressional Control of Executive Officials
o Independent Administrative Agencies
 What are Independent Administrative Agencies
  Federal administrative agencies that are led by an official whom the
President can fire only for good cause, not at will
o Ex. the CIA, EPA, FCC, the FTC, and the Board of Governors of
the Federal Reserve System
o Bowsher v. Synar
 The President appoints officers of the United States
 Once an appointment has been made and confirmed, the Constitution
explicitly provides for the removal of Officers of the United States by
Congress only upon impeachment by the House of Reps and conviction
by the Senate
o These impeachments can rest only on Treason, Bribery, or other
high Crimes and Misdemeanors
 A direct congressional role in the removal of officers charged with the
execution of the laws beyond that is inconsistent with separation of
powers
o Congress cannot give an official executive powers and, at the
same time, reserve the power to remove the executive official
 You must determine if the power is executive or legislative
o If the responsibility is interpreting a law enacted by Congress to
implement the legislative mandate, the responsibility is
executive; if there is ultimate authority given to the officer to
determine, for example, what budget cuts to be made under a
law, the nature of the officer’s functions are executive
 Congress cannot give executive powers to officials
whom Congress can remove other than by
impeachment and conviction

 Appointment Clause:
 Principal officers are selected by the President with the advice and
consent of the Senate
o Congress can vest in the President, the heads of departments,
or the Judiciary, the power to appoint inferior officers who
exercise executive authority
 Independent counsel is an inferior officer of the United
States
 Is an individual an Inferior or a Principal Officer?
o Inferior if the officer is:
 Subject to removal by a higher Executive Branch Official
 Empowered by the Act to perform only certain, limited
duties
 The Office is limited in jurisdiction
 The Office is limited in time
 The President can fire anyone exercising executory power at any time
(the removal of principal officers)
 o Ex. the AG
 Congress can restrict the President’s power to remove
only for good cause
 However, Congress may not restrict the
President’s ability to remove a principal officer
if that officer, in turn, is restricted in his ability
to remove an inferior officer who is responsible
for determining the policy and enforcing the
laws to the United States
o Congress can remove inferior officers
 People below the level of the AG

The First Amendment’s Freedom of Speech Clause

 The Process:
o Is it speech? If yes:
o Is the Government speaking?
 If yes:
 Government has special rules
 If no:
o Where is the speech taking place?
 Public forum?
 Traditional
 Designated
 Limited
 Non-Public
o Is the speech protected by the First Amendment?
 If no = no 1st Amendment problems
 i.e. a finding that an exception applies
 If yes = is the regulation content neutral or content related?
 Content neutral gets Time, Place and Manner or O’Brien Test
 Content related gets Strict Scrutiny
 Content Based Restrictions
o Laws that regulate a category of speech:
 Based on its communicative content on its face
 Ex. regulations of particular subject matter or regulations by particular
function or purpose – i.e., the topics discussed, or the idea or message
expressed
 Because the Government disagree with its content
 Ex. laws that were adopted by the government because of
disagreement with the message that the speech conveys
 That is justified in reference to content
 Ex. laws that cannot be justified without reference to the content of the
regulated speech
 o These regulations are presumptively unconstitutional and therefore subject to strict
scrutiny
 The government may enforce a content-based restriction on speech in a public
forum only if the regulation is necessary to serve a compelling state interest and
the regulation is narrowly drawn to achieve that end
 A law that is content based on its face is subject to strict scrutiny
regardless of the Government’s benign motive, content neutral
justification, or lack of animus to the ideas contained in the speech
o A speech regulation targeted at specific subject matter is
content based even if it does not discriminate among
viewpoints within that subject matter
 Ex. a law that prohibits statements in favor of any
candidate for political office, regardless of the political
party, is also content based and thus subject to strict
scrutiny
 Time, Place, or Manner Restrictions:
o The Government may impose reasonable restrictions on the time, place, or manner of
speech, even if public forums, if the restrictions are:
 Content neutral
 A content neutral restriction is a restraint that affects speech but does
not single out disfavored speech based upon its content
 Narrowly tailored to serve a significant governmental interest
 Leave open ample alternative channels for communication of the information
 Consider:
o Are the other channels too expensive? = no alternative channels
o Won’t reach the same audience? = no alternative channels
o Will the speech carry a different message because of where you
have to speak under the regulation? = no alternative channesl
o The government purpose is the controlling consideration to determine content neutral
and time, place, or manner restrictions
 A regulation that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some speakers or
messages but not others
o Examples:
 Ex. a law that prohibits the use of megaphones on residential streets does not
single out particular messages – based solely on their content – for disfavored
treatment
 The restriction applies regardless of the message conveyed by the user
of a megaphone
 Ex. Renton v. Playtime Theatres – a regulation that provided that such adult
theatres may not be within 1,000 feet of any residential zone = a form of time,
place and manner regulation (not a content-based regulation)
  The Renton ordinance is not aimed at the content of the films shown at
the adult theatre but rather on the secondary effects of the theatres on
the community
o Zoning rules applied
o Police power
o Not regulating political speech
 Perhaps a narrow exception
 Regulations of Conduct that Incidentally Affect Expression
o Where speech and non-speech elements are combined in the same course of conduct, a
sufficiently important governmental interest in regulating the nonspeech element can
justify incidental limitations on 1st Amendment freedoms
 The Government can limit speech when trying to regulate the non-speech
conduct
 The applicability of this test is restricted to cases where the
governmental interest is unrelated to the suppression of free expression
o Texas v. Johnson
 A conviction for burning the American Flag was
inconsistent with the 1st Amendment
 Gov’t interest argued = potential for breach of
the peace but:
o SCOTUS rejected stating that the
Bradenburg test requires an analysis of
whether the expression is directed to
inciting or producing imminent lawless
action and is likely to incite or produce
such action
o Incidental Burden on Speech Test; the O’brien Factors:
 The Court will generally uphold such regulations if:
 The regulation is within the constitutional power of the government
 It furthers an important or substantial governmental interest
 The governmental interest is unrelated to the suppression of free
expression; and
 If the incidental restriction on speech is no greater than necessary to
the furtherance of that interest (narrowly tailored)
o This scrutiny is less demanding than Time, Place or Manner restrictions/content neutral
restrictions though they have the same requirements to be held valid
 The Government and Freedom of Speech
o The Government speaks through people
 The government is allowed to have a viewpoint, but it cannot discriminate
against others based on their viewpoint
 Ex. refuse to hire someone based on their political views
o However, the Government can regulate speech in its capacity as
a federal employee; meaning, the government can require its
 employees to only say things that advance its viewpoint when
acting in their capacity as a federal employee
o As a general proposition, the government is entitled to promote a program, to espouse
a policy, or to take a position
 Exception:
 The Government’s viewpoint-based distinctions are unconstitutional
when the Government is not the speaker or when the Government is
subsidizing a message it favors
o Rust v. Sullivan
 Petitioners argue that the regulations violate the First Amendment by
discriminating based on viewpoint because they prohibit all discussion about
abortion as a lawful option – Title X funds speech ancillary to pregnancy testing
in a manner not evenhanded with respect to views and information about
abortion
 They also argue that, though the government can place conditions on
receipt of federal subsidies, the government cannot discriminate
invidiously in its subsidies in such a way as to aim at the suppression of
dangerous ideas
 SCOTUS says the government can, without violating the Constitution, selectively
fund a program to encourage certain activities it believes to be in the public
interest, without at the same time funding an alternative program which seeks
to deal with the problem in an alternative way
 i.e., content-based funding decisions are inevitable and therefore lawful

o Walker v. Texas
 Government speech is not subject to strict scrutiny under the Free Speech
Clause
 How to tell if government speech:
o Does history show that the governments have long utilized such
a method of communication?
o Is the expression closely identified in the public mind with the
government?
o Does the government maintain direct control over the messages
conveyed through the act?
 Public Forums
o Traditional Public Forums
 Areas of public property that have been historically open to general public views
 Ex. sidewalks, streets, parks, etc.
o No complete bans allowed
o Public must have access
o All content and speakers must be treated equally
 Content Based gets strict scrutiny
 Content Neutral gets TPM or O’brien
o Designated Public Forums
  Government property that has not been traditionally regarded as a public forum
 The Government creates these – they are specifically opened for
general expressive use
o “Free Speech Areas” signage indicates these
 Content Based gets strict scrutiny test
 Content Neutral gets TPM or O’brien test
o Limited Public Forums
 The forum is restricted to certain topics or speakers
 Available for 1st amendment expression but only available for certain
topics
 The regulation must be reasonable in light of the purpose of the forum and not
viewpoint related
 Even if it is a limited public forum, the Government cannot discriminate based
on view points
 However, this forum allows for content-based discrimination
o Ex. a polling place = only available to voters
 A ban on political apparel = content based; however,
ban arguably not reasonable in light of the purpose of
the forum
o Non-Public Public Forums
 The regulation must be reasonable in light of the purpose of the forum and not
viewpoint related
 Vulgarity = content
 Vulgarity that demeans women = viewpoint related
 The government has a lot of power to limit speech here
 Most public property is non-public forum
 Categories of Speech
o What category of speech is it? Some categories are not protected by the 1 st
Amendment:
 Incitement and Advocacy of Crime
 The 1st Amendment allows for advocating for violence, just not
imminent lawless action
o When someone encourages violent behavior of other people,
the government may not ban it by statute
 A statute that punishes for the mere advocacy of
violence, and to forbid assembly with others merely to
advocate for violence, violates freedom of expression
 The government may restrict advocacy of crime only where advocacy is
directed to inciting or producing imminent lawless action and is likely to
incite or produce such action
o Intent to produce or incite the lawless action
o The incitement of the lawless action is imminent
 The actual words must say something like “go commit a
crime”
 o The incitement is likely to produce such action
 Context matters – is it likely that such words will
produce such action
 Texas v. Johnson (flag burning)
o Necessary to turn conduct into protected speech:
 An intent to convey a particular message and likelihood
that the message will be understood by those who
viewed it
o The statute was Content-Based and therefore subject to strict
scrutiny:
 You can’t burn the flag in a way that will offend other
people
 i.e., a focus on the effect/impact that the
speech has on the listener
o Note:
 If the statute was content-neutral it would be an
analysis under O’brien
 Ex. a statute that states you can’t deface public
property
 Defamation
 The First Amendment requires a federal rule that prohibits a public
official, political candidate or public figure from recovering damages for
a defamatory statement relating to his official conduct or a matter of
public concern unless the statement was both false and made with
actual malice
o The person seeking to recover for defamation bears the burden
of proving falsity and absolute malice by clear and convincing
evidence
 A public official is someone who has sufficient authority
of matters of policy and governance
 Ask – would people have a significant interest in
the qualifications, etc. of the person?
o Maybe not an auditor but the head of
the auditor division
 A public figure is generally someone, such as a movie
star, that has voluntarily become the subject of public
attention
 Not a person who has merely become involved
or associated with the public (ex. a mere
criminal suspect)
 Matter of public concern generally means something
that is a subject of legitimate news interest and of value
and concern to the public at the time of publication
  A private figure may not recover for a defamatory statement regarding
a matter of public concern unless the statement was both false and
made negligently
o The person seeking to recover for defamation bears the burden
of proving falsity by a preponderance of the evidence
 Note:
 The First Amendment does not impose any
limits on the authority of a court to impose
liability for statements about a private figure on
a matter of private concern
o Therefore, a state rule permitting the
recovery of presumed and punitive
damages in defamation cases absent a
showing of malice are constitutional
 Intentional Infliction of Emotional Distress
 When matters of purely private significance are at issue, the First
Amendment protections are often less rigorous because restricting
speech on private matters does not implicate the same constitutional
concerns as limited speech on matters of public interest
o There is no threat to the free and robust debate of public issues
 Deciding whether speech is of public or private concern requires an
examination of the content, form, and context of that speech as
revealed by the whole record
o Snyder v. Phelps
 WBoro protested outside of Phelps funeral with
disgusting signs (ex. thank god for IEDs)
 The content of Wboro signs related to broad
issues of interest to society (the political and
moral conduct of the nation) at large rather
than matters of purely private concern
 The picketers were in a traditionally public forum and
protesting peacefully

 What Wboro said, in the whole of the record, entitled it

to First Amendment protection
 Note:
o There are two exceptions where privacy
interests outweigh the interests of the
speaker:
 Captive Audience – “if I can’t
escape from the speech, the
government should protect me
from it
  Targeted Picketing – if you
stand in front of someone’s
house and picket them, the city
can prevent that; though If you
keep moving, you’re okay
(subject to reasonable TPM
restrictions)
 False Statements
 United States v. Alvarez
o The Court invalidated the Stolen Valor Act of 2005 which made
it a crime to falsely represent oneself to have been awarded any
decoration or medal authorized by Congress for the Armed
Forces
 The Court stated that there are few listed categories of
speech beyond the protection of the First Amendment
(where the law allows content-based regulation) and
false statements are not one of them
 Obscenity
 The 1st Amendment does not protect obscenity
o The government can regulate and even ban obscene materials,
including those that might appear in magazines, movies,
internet sites, etc.
 State Interests:
 Causes violence against women
 Erodes moral standards by indirect denigration
of them
 Three Prongs for Defining Obscene:
o First Prong:
 Whether the average person, applying contemporary
community (the community in which the jury is located)
standards, would find that the dominant theme of the
material taken as a whole appeals to the prurient
interest in sex
 Prurient Interest = characterized by or arousing
inordinate or unusual sexual desires (a shameful
and morbid interest)
o Second Prong:
 Whether the work depicts or describes, in a patently
offensive way, sexual activity as defined by state law
o Third Prong:
 Which, taken as a whole, do not have any serious
literary, artistic, political, or scientific value
  Does the work, taken as a whole, lack any serious
literary, artistic, political, or scientific value? If so =
obscenity
 Portrayal of sex in art, literature, and scientific
works is not necessarily obscenity
o Note:
 A state can regulate the distribution of porn to minors
(content-based discrimination) even if the material is
not obscene under the Miller standard because there is
a compelling government interest in protecting minors
 But the law must be carefully defined and must
not restrict adult access
 Child Pornography and Obscenity
o New York v. Ferber
 States have a greater leeway in the regulation of
pornographic depictions of children
 The State’s interest in protecting the physical
and psychological well-being of children is
compelling
 The distribution of photographs and films
depicting sexual activity of minors is related to
the sexual abuse and exploitation of children
 The advertising and selling of child pornography
provide an economic motive for the production
of such materials – an activity illegal throughout
the nation
 The value of permitting the material is de minimis
o The test for child pornography obscenity:
 A trier of fact need not find the material appeals to the
prurient interest of the average person; it is not
required that sexual conduct portrayed to be done so in
a patently offensive manner; and the material need not
be considered as a whole to find the work to not be
entitled to First Amendment protection
 The material has to be intended to arouse
 Fighting Words
 The 1st Amendment does not protect insulting or fighting words
o States are free to ban the simple use, without a demonstration
of additional justifying circumstances, “fighting words”
 Those words by which the ordinary citizen is, as a
matter of common knowledge, inherently likely to
provoke violent reaction
  Ex. defamation – words by their very utterance
tends to inflict injury or incite an immediate
beach of the peace
 If no individually actually or likely to be present could
reasonably have regarded the word as a direct and
personal insult, the words are not “fighting words”
 Hate Speech
 Pure hate speech statutes are unconstitutional
o However, hate crimes are illegal and statutes allowing for
penalties of those types of crimes are constitutional
 Note:
 Hate speech is protected by the 1st Amendment
– but, fighting words aren’t
o Therefore, a state can still prosecute
the hate speech as long as they
prosecute the entire category (fighting
words) and not just the hate speech
 R.A.V. v. City of St. Paul, Minn.
o Petitioner assembled a cross and burned it in the yard of a black
family – they were charged under the St. Paul Bias-Motivated
Crime Ordinance
 Petitioner stated the ordinance was overbroad and
impermissibly content based and therefore facially
invalid under the 1st Amendment
o The statute only applied to what would constitute “fighting
words”
 But the statute was only punishing a sub-category of
the category of “fighting words” which is a viewpoint-
based distinction and unconstitutional – you can’t carve
out a sub-set based on viewpoint
 Exceptions:
o When the basis for the content
discrimination consists entirely of the
very reason the entire class of speech is
proscribable, no significant danger of
idea or viewpoint discrimination exists
o Meaning, a broader, viewpoint-neutral
law would be constitutional
 Ex. the government may
proscribe libel but it may not
make a content discrimination
and prescribe only particular
kinds of libel
 Ex. the Federal Government can
criminalize threats of violence
that are directed against the
President, but it cannot
criminalize only those threats
against the President that
mention his policy on aid to
inner cities
 When words violate laws directed at conduct
o E.g. treason, bribery, sexual harassment
– so long as the regulation does not
target the expressive conduct
 Commercial Speech
o Commercial speech – speech that does no more than propose a commercial transaction
– is protected by the 1st Amendment; consists of advertising and other business
communications
 But its different from regular speech – commercial advertisers have an
economic incentive to keep advertising; they are less likely to be silenced by
regulations and can handle more burdens
 Complete prohibitions are unlikely
o Targeted prohibitions possible (time, tv channel)
 Permissible Regulations
o Disclaimers
o Calorie Disclosures
o Central Hudson Test – Two Categories:
 Commercial speech that concerns an unlawful activity or that is fraudulent, or
misleading has no 1st Amendment protection
 Ex. Government may completely prohibit businesses form discussing the
formation of horizontal price-fixing conspiracies that would violate the
anti-trust laws
 Regulation of other commercial speech is reviewed by a form of intermediate
scrutiny
 The government may regulate it if the government has a substantial
interest, the regulation directly furthers the interest, and the regulation
restrains speech only to the extent necessary to further the interest
o Note:
 A compelling governmental interest is not required
 Prior Restraints
o Prior restraint on speech is an executive or judicial order prohibiting a communication
before it has occurred
 There is a presumption against them, but a court will uphold them if some
special harm would otherwise result
 Must be narrowly tailored to achieve some significant governmental
interest
 o Ex. National security is certainly sufficient harm justifying prior
restraint
 Campaign Contributions and Expenditures
o Money = the Speech; symbolic speech
 The 1st Amendment generally prohibits the federal government from regulating
how much money a political candidate is permitted to spend
 But the 1st Amendment generally permits the government to impose
reasonable restrictions on the right to contribute to a political campaign
o Note:
 Leveling the playing field between wealthy and non-
wealthy is not a valid government interest
 Anti-Corruption = a valid government interest
but regulation must be narrowly tailored
o The Government cannot discriminate against speakers, whether groups or individuals
 Meaning, the Government may not suppress political speech on the basis of the
speaker’s corporate identity
 These are content-related restrictions
st
o The 1 Amendment also prohibits the government from limiting the right of
corporations to spend money to support candidates for political office
 Although Congress may restrict the total amount of money a donor may
contribute to any one candidate, Congress may not restrict the aggregate
amount of money a donor may contribute to all candidates
 Campaign finance regulations can only be justified if they are related to
“quid pro quo” corruption
o Spending large sums of money in connection with elections but
not in connection with an effort to control the exercise of the
office holder’s power does not give rise to ‘quid pro quo’
corruption
 Freedom to Associate
o Two different rights from two different parts of the Constitution:
 Intimate Associations
 A substantive Due Process liberty interest in associating with people
o Ex. family unit
 Expressive Associations
 And a 1st Amendment right to organize in groups to participate in 1 st
Amendment activity
o The freedom of association generally gives an organization a
right to choose its members
 The government may regulate this freedom if the state
has a compelling interest, unrelated to the suppression
of ideas, that cannot be achieved through other means
significantly less restrictive of associational freedoms
 Strict scrutiny
 o Ex. discrimination against women = a
compelling state interest
 However:
 The government may not prohibit an
organization from discriminating in its selection
of members if the regulation would significantly
affect the organization’s intimate associations
or expressive activity
o Expressive association trumps anti-
discrimination claims
 Therefore, the government may NOT force a group to accept a member if:
 Expressive association
 The new member would impede the message of the group
 To determine whether an organization is protected by the 1 st Amendment
expressive associational right, you must determine whether the group engages
in expressive association
 When a group has some editorial control over their message, there is a
1st Amendment right of association
 When the would-be member’s speech is incompatible with the message
of the group
o There must be some message by the group – does not have to
be coherent and express
 Note:
 Private schools, law firms, and for-profit organizations do not engage in
expressive association because their purpose is not expressive
association

The First Amendment’s Freedom of Religion Clause

 Establishment Clause – Government Aid to Religion
o Congress shall make no law respecting an establishment of religion or prohibiting the
free exercise thereof
 Everson v. Board of Education of Ewing Township
 No tax in any amount, large or small, can be levied to support any
religious activities or institutions
o However, the government may provide aid under certain
circumstances to religious organizations if the government is
neutral in its relations with groups of religious believers and
non-believers
 Ex. the government did not violate the rule of neutrality
when it pays for transporting children to schools, even if
some of the schools are private catholic schools
  The touchstone of the analysis is that the First Amendment mandates
that the Government/State must be neutral in its relations with groups
of religious believers and non-believers
o When the government acts with the predominate purpose of
advancing religion, it violations the 1st Amendment mandate of
neutrality
 Therefore, when it comes to religion:
 No government participation
 Government cannot endorse or appear to
endorse
 No government special treatment
o Lemon v. Kurtzman
 The Three-Part Lemon Test – A law will be okay if:
 It has a secular purpose
o A religious purpose = unconstitutional
 Its primary effect is not to advance religion
o Will people believe that the government endorses or
disapproves of religion by the regulation?
 Ex. state funded school requiring students to pray
 If the law does not foster an excessive entanglement between the
government and religion
o i.e., does not require a lot of government oversight and over-
regulation to ensure that religion is left out
 ex. having to make sure teachers of core curriculum
aren’t sneaking God into their science class = excessive
entanglement
 Conversely, a regulation requiring teachers to
submit their fieldtrip locations for the semester
for approval to only secular locations = not
excessive entanglement
o Zelman v. Simmons Harris
 The standard for financial aid cases:
 A program is okay (meaning, it doesn’t violate the Establishment Clause)
where it is:
o Neutral with respect to religion
o Provides assistance directly to a broad class of citizens who, in
turn, direct the government aid to religious schools
o Wholly as a result of their own genuine and independent
private choice
 The majority views “choice” broadly
 Did not have the purpose or effect of advancing religion
 Freedom of Religion – Government Sponsorship of Religious Practices
o The Government cannot do anything that has the primary purpose and effect of
advancing or endorsing religion
  The Lemon Test
o Lee v. Weisman
 The Constitution guarantees that government may not coerce anyone to
support or participate in religion or its exercise, or otherwise act in a way which
establishes a state religion, or religious faith, or tends to do so
 Coercion
o
 Endorsement
o The Government cannot endorse or appear to endorse a
religion
 Would a reasonable observer who had all of the facts
conclude that it was an endorsement of the religion?
o Marsh v. Chambers
 Legislature prayer at opening is okay because the legislature has a history of
opening with prayer History/Tradition establishes the law
 But watch out for Equal Protection violations
 Freedom of Religion – Religious Displays on Government Property
o If a display of the Ten Commandments is shown to have a “predominantly religious
purpose” it violates the Establishment Clause; otherwise it may be displayed
 McCreary County, Kentucky v. American Civil Liberties Union of Kentucky
 Taint of history and earlier displays may not dissipate fast enough
o Even if current displays appear to not have a religious purpose
 Display = unconstitutional
 Van Orden v. Perry
 Monument of the Ten Commandments on State Capitol ground
displaying 17 monuments and 21 historical markets communicated not
only a religious message but also a secular moral message, and its
setting suggested that the state intended the secular message to
predominate
o Physical setting of the monument
o The monument displayed that a particular group donated the
monument
 Free Exercise Clause – Limits on Government Regulation of Religious Practices
o The government cannot punish people solely for holding particular religious beliefs
o The government cannot impose special disabilities on the basis of religious belief or
religious status
 Ex. a statute that excluded ministers from serving as legislators or delegates to
the state’s constitutional convention would be unconstitutional
o The government cannot outlaw worship and make it a crime to attend services at, for
example, a catholic church
o Current Law:
 The Government may enforce a law that burdens a particular religious practice
only if the law is both neutral and of general applicability
  A law is not neutral if the object of the law is to infringe upon or restrict
practices because of their religious motivation
o This can be facial – where a law refers to a religious practice
without a secular meaning discernable from the language or
context, or it can be overt
o A law lacks general applicability if it is underinclusive, applying
to religious practices but not to similar non-religious practices
 Note:
 A law failing to be neutral and of general
applicability must be justified by a compelling
governmental interest and must be narrowly
tailored to advance that interest
 Employment Div., Dept. of Human Resources of Oregon v. Smith
 An individual’s religious beliefs do not excuse him from compliance with
an otherwise valid law prohibiting conduct that a State is free to
regulate
o Because Oregon’s law prohibited the unlawful ingestion of
peyote, and because that prohibition was constitution, Oregon
law could, consistent with the Free Exercise Clause, deny the
respondents unemployment compensation when their dismissal
resulted from the use of the drug
 Even though they claimed the ingestion of peyote was a
religious practice
 If Government actions substantially burden a religious practice, the law must be
justified by a compelling interest for imposing the burden and the law must be
narrowly tailored to advance that interest