CONSTITUTIONAL LAW OUTLINE

Table of Contents
I. Overview of the United States Government........................................................................................3
A. The Constitution and Its Interpretation..........................................................................................3
B. The Legislative Branch....................................................................................................................4
C. The Executive Branch......................................................................................................................4
D. The Judicial Branch.........................................................................................................................4
II. Judicial Power to Enforce the Constitution..........................................................................................4
A. Standing and Mootness..................................................................................................................4
B. Political Question Doctrine.............................................................................................................6
III. The Executive’s Powers and Their Limits.........................................................................................7
A. The Scope of the President’s Powers.............................................................................................7
B. Executive Privileges and Immunities/Impeachment......................................................................8
IV. Congress’s Article I Powers and Their Limits....................................................................................9
A. Article I Powers...............................................................................................................................9
1. Commerce Clause Power............................................................................................................9
2. Taxing Power.............................................................................................................................11
3. The Spending Power.................................................................................................................12
B. Commerce Clause Doctrinal Framework......................................................................................12
C. Federalism as a Limit: The Tenth Amendment.............................................................................13
D. Federalism as a Limit: The Eleventh Amendment........................................................................14
V. Federalism as a Limit on State Power................................................................................................15
A. Federal Preemption of State Law.................................................................................................15
B. The Dormant Commerce Clause...................................................................................................15
C. State Privileges and Immunities...................................................................................................17
D. Sanctuary Cities Executive Order..................................................................................................18
VI. Introduction to the Reconstruction Amendments.........................................................................19
A. Overview; State-Actor Doctrine.....................................................................................................19
VII. Equal Protection............................................................................................................................20
A. Traditional Rational-Basis Review; Strict Scrutiny.........................................................................20
B. Strict Scrutiny and the “Discriminatory Intent” Requirement.....................................................21
C. Intermediate Scrutiny...................................................................................................................22
D. Non-Traditional Rational-Basis Review.........................................................................................23
VIII. Congress’s Power to Enforce the Fourteenth Amendment Using § 5............................................23

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A. Congress’s Section 14.5 Power.....................................................................................................23

IX. Rule Statements............................................................................................................................26
A. Commerce Clause..........................................................................................................................26
B. Standing.........................................................................................................................................26
C. Tenth Amendment Landmine........................................................................................................27
D. Dormant Commerce Clause...........................................................................................................28
E. Art. IV Privileges and Immunities Clause........................................................................................28
F. Preemption of State Law...............................................................................................................29
G. State Sovereign Immunity..............................................................................................................29
H. Equal Protection Clause.................................................................................................................30

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CONSTITUTIONAL LAW OUTLINE

I. Overview of the United States Government

A. The Constitution and Its Interpretation
 Article I – legislative branch
 Article II – executive branch
 Article III – judicial branch
 Checks and Balances:
o Presentment: Legislation must be presented to the President, who is given a
qualified veto power (A1S7C2)
o Impeachment: President, BP and officers of the US, may be removed from office
via impeachment for treason, bribery or other “high crimes and misdemeanors”
(A2S4); House has the power of impeachment (A1S2C5) and the Senate the sole
power to try all impeachments (A1S3C6)
o Treaty Power: President may make treaties by and with the advice and consent
of 2/3rds of Senate (A2S2C2)
o Appointment power: President may appoint principal officers with advice and
consent of Senate (A2S2C2)
o Power of the Purse: President’s power to enforce the laws (A2S3) is checked by
Congress’s power over the purse (A1S9C7)
 Federalism:
o A1S1 (all legislative powers “herein granted”) – the very fact that the federal
government is limited at all is indicative of Federalism.
 Every time the government wants to do something, it has to be able to
point somewhere in the Const. that gives it the authority to do it.
o Supremacy clause (A6C2)
o A1S10 (prohibiting the states from exercising certain powers)
o 10th Amendment (powers not delegated to the US nor prohibited to the states are
reserved to the States respectively, or to the people)
o 11th Amendment (prohibiting states from suing each other)
 Individual Rights
o Bill of Rights, Amends. 1-10
o 13th, 14th, and 15th Amends. (the “Reconstruction Amendments”)
o 19th Amend (giving women the right to vote)
o 24th Amend (prohibiting poll taxes)
o 26th Amend (giving right to vote to those 18 years of age or older)
 Trump v. Hawaii - INA allowed the President to issue travel ban and it did not violate
the 1st Amend.
o Plfs had not demonstrated a likelihood of success on their Establishment Clause
claim because the Standard of Review in this context is deferential to the Stated

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Purpose of the travel ban (national security) over the alleged hidden purpose,
which was the Muslim ban.
o Standard of review was “rational basis” as opposed to “strict scrutiny,” which
might have been used if the Court had determined that the ban was
discriminating against Islam.
o There were no other cases particularly on point, in which the Courts were
analyzing whether a President’s stated purpose was untrue

B. The Legislative Branch

 INS v. Chadha - Chadha was going to be deported for overstaying visa. He admitted he
was deportable and turned himself in to INS. Rule: If the legislature wants to do
something, it has to follow bicameral and presentment requirements in Constitution
A1S7. Legislative veto unconstitutional.
 U.S. v. McIntosh – Rider in budget bill prohibits DOJ from spending funds from
relevant appropriations acts for the prosecution of individuals who engaged in conduct
permitted by state law. Executive branch can’t spend money unless authorized to do so
by Congress.

C. The Executive Branch

 Youngstown Sheet & Tube Co. v. Sawyer - After determining that the Constitution
didn’t give him any specific authority, Black states that there was “no statute that
expressly authorizes the President to take possession of property as he did here.”
 Jackson’s concurrence - sliding scale as to the President’s power
o First, when President acts with express or implied Congressional approval, his
power is at its maximum for it includes “all he possesses in his own right plus all
that Congress can delegate.”
o Second, when the President acts in the face of Congressional silence, he acts in a
“twilight zone” where he must rely on his own powers but the President and
Congress may have concurrent authority.
o Third, when President takes measures incompatible with will of Congress, his
Power is at lowest ebb and President can rely only upon his own Constitutional
powers.

D. The Judicial Branch

 Marbury v. Madison - If the Supreme Court determines that a law passed by Congress
conflicts with the Const., the Const. wins and the statute will be void (a.k.a. “Judicial
review”)

II. Judicial Power to Enforce the Constitution

A. Standing and Mootness
 Case or Controversies Limit of Supreme Court Authority – “the judicial power shall
extend to …cases…[and] controversies.” A3S2.

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 The court can decline to hear certain cases if any of the following issues are present:
o Advisory opinions – the court won’t give legal advice to the President if he asks
for their opinion on a certain matter
o Standing – the court won’t hear a case if the plaintiff lacks Article III standing,
meaning that the relief given by the court would not benefit the plaintiff because
the plaintiff can’t prove they will be harmed by the same conduct again in the
future
o Ripeness – a case is premature if the factual record isn’t fully or adequately
developed. Often federal agency court actions must be exhausted before the
parties can seek adjudication from a federal district court and eventually the
Supreme Court.
o Mootness – the court can refuse to hear a case if the dispute between the parties
has already been resolved. Sometimes an otherwise moot case can be heard if
there are issues regarding damages or if the court determines that the
controversy is one “capable of repetition, yet evading review.”
o Political questions – Controversies involving a discretionary decision made by
the President or Congress are considered political in nature and not subject to
review by the court.
 Requirements for Standing (Lujan v. Defenders of Wildlife):
o Whether the alleged injury is an “injury in fact.” (“injury-in-fact”)
o Whether the connection between the alleged injury and the allegedly unlawful
conduct is tight enough. (“causation”)
o Whether the connection between the alleged injury and the requested remedy is
tight enough. (“redressability”)
 Friends of the Earth v. Laidlaw Environmental Services, Inc. - Plfs had standing under
Article III to bring the lawsuit because the imposition of civil penalties acting as a
deterrent will bring about the relief sought by Plfs.
o Mootness and Voluntary Cessation Doctrine – “a defendant’s voluntary
cessation of a challenged practice does not deprive a federal court of its power to
determine the legality of the practice.” Otherwise, defs could be free to return to
their old ways (“capable of repetition, yet evading review”)
o To determine mootness based on def’s voluntary conduct, the standard is “a
case might become moot if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.”
o The party asserting mootness bears the burden of proof.
 Massachusetts v. EPA – Plf can have standing if relief granted redresses only a portion
of the injury, doesn’t have to redress the entire injury.
o As sea levels rise due to global warming, Mass. Will lose coastal land (concrete
and particularized injury); U.S. motor-vehicle emissions make a meaningful

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contribution to greenhouse gas concentrations (causation); Risk of rising sea

levels will be “reduced” or “slowed” if relief is granted (redressability).
o States are given “special solicitude” on standing issues. May have pushed the
court slightly in favor of Mass.’s claims, but they didn’t really explain if that was
a major factor.
 Three possible ways for a state to establish standing in a case:
 Proprietary interests (e.g. damage to land or to a state-owned
University)
 Quasi-sovereign interests (e.g. interest in protecting citizens’ well-
being against harms from things like transboundary pollution)
 Sovereign interests (e.g. state’s interest in protecting its own
sovereign laws against preemption by a federal law)

B. Political Question Doctrine

 Luther v. Borden - Court declines to hear the case because they don’t want to interfere in
a political disagreement over Rhode Island’s constitution. If the losing party doesn’t
abide by the court’s decision it would undermine the court’s legitimacy. They say that
the dispute should be governed by Congress.
 Baker v. Carr - The claim in this case neither rests on nor implicates the Guaranty
Clause, so it isn’t a political question and the court can hear it. “One person, one vote.”
o Factors for determining whether an issue presents a political question:
 Textually demonstrable constitutional commitment of the issue to a
coordinate political department;
 i.e., The Constitution says this issue is the responsibility of another
branch
 Lack of judicially discoverable and manageable standards for resolving it
(no rules);
 Impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion;
 Impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due to coordinate branches of govt;
 Unusual need for unquestioning adherence to a political decision already
made;
 Potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
o If any one of these factors is present in a case, the political question doctrine
adheres and the case must be dismissed.
o There are very few precedent-setting cases in this area.
o The first two factors are the most important and the other four essentially relate
back to the first two.

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 Vieth v. Jubelirer - “Holding” in Vieth: “Justice Kennedy’s somewhat Delphic concurring

opinion [in which he] agreed that, given the lack of ‘any agreed upon model of fair and
effective representation,’ the Court ought to ‘refrain from intervention’ but held open the
possibility of judicial relief in the future ‘[i]f workable standards’ are found.”
o Pennsylvania gerrymandering case. Following 2000 census Pennsylvania went
from 21 to 19 reps in HOR, so districts had to be redrawn.
o In Davis v. Bandemer, the Court concluded that gerrymandering cases were
justiciable, but couldn’t agree on a set of rules to govern them
o The most important factor of the Baker test is that the court have a set of rules
to guide their decision-making.

III. The Executive’s Powers and Their Limits

A. The Scope of the President’s Powers
 Bucket of Power?
o Does the president have the legal authority to act based on (1) some
constitutional power; (2) congressionally conferred power; or (3) perhaps and
inherent power?
o See Youngstown framework and Jackson’s three-tiers; see also Curtiss-Wright and
Dames & Moore
 Legal landmines (i.e., limits on the use of any power)?
o President’s actions cannot run contrary to any legal limit (e.g., EP, DP, 1 Amend.,
etc.)
 United States v. Curtiss-Wright - The President has inherent authority to make
decisions related to foreign affairs.
o Congress passed a Joint Resolution delegating lawmaking authority to the
President to decide whether selling arms to Bolivia and Paraguay is illegal. The
President then issued a Proclamation declaring arms-selling to Bolivia and
Paraguay illegal, and Defendant Curtiss-Wright then violated the proclamation.
The delegation was constitutional.
 Dames & Moore v. Regan - Court used Jackson’s framework for Presidential authority
from Youngstown.
o Did the President have the authority to:
 Nullify attachments and transfer assets: Render “null and void”
attachments on property in which Iran had an interest (and require banks
holding Iranian assets to transfer them to a new bank) so the president
could use them as a bargaining chip when dealing with Iran?
 Court holds that IEEPA services as a specific congressional
authorization (so this fits comfortably within 1st Youngstown
category – all his own powers + Congress’s delegation = authority
at maximum)

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 Suspend claims: Suspend all lawsuits pending against Iran in U.S. courts
(by sending them to binding arbitration in an Iran-United States Claims
Tribunal)?
 Court holds that suspension of claims was permissible even
though there was no specific congressional authorization:
o Congress had enacted closely related legislation such as
IEEPA and Hostage Act
o Congress cannot foresee all possible areas in which
President might need to exercise power
o Long history of congressional acquiescence in President’s
settling of international claims.
 Clinton v. City of New York - cancellation procedures in the Line Item Veto Act violated
the presentment clause in A1S7C2 of the Constitution

B. Executive Privileges and Immunities/Impeachment

 United States v. Nixon - Is the President’s right to confidentiality under the P&I clause
entirely immune from judicial review? No, the President is not entirely immune. Neither
the doctrine of SOP, nor the generalized need for confidentiality of high-level
communications, without more, enough to sustain an absolute, unqualified, presidential
privilege. The Court granted that there was limited executive privilege in areas of
military or diplomatic affairs, but gave preference to “the fundamental demands of due
process of law in the fair administration of justice.”
 Clinton v. Jones - President does NOT enjoy immunity from suit for non-official conduct
that occurred prior to becoming President. And, “[t]he doctrine of separation of powers
does not require federal courts to stay all private actions against the President until he
leaves office.”
o They distinguish Fitzgerald, on which Clinton attempted to rely. Sitting and
former Presidents are immune for suits for money damages for official conduct
while in office.
 Nixon v. United States – The Constitution grants the authority to try all impeachments
to the Senate and placed very specific limits on their process: (1) they shall be on Oath or
Affirmation; (2) the Chief Justice shall preside; and (3) 2/3 of the Senate (67) must agree
to convict. Other than those limits, the Senate has the “sole” authority to try all
impeachments.
o Chief Judge of Southern District of Mississippi was impeached and convicted by
the Senate after being sentenced to prison for perjury related to an alleged
bribery scheme.
o He sued the govt. arguing that the Senate’s Rule XI for impeachment
proceedings violated Art. I § 3, cl. 6 because it prohibited the entire Senate from
taking part in the evidentiary hearings. Rule XI gave authority to hold hearings

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to a select committee, which then presents its findings to the whole Senate, which
then hears oral argument from the parties and votes on conviction.

IV. Congress’s Article I Powers and Their Limits

A. Article I Powers
1. Commerce Clause Power
 McCulloch v. Maryland - Congress acts constitutionally so long as it (1) does not do
something expressly prohibited; and (2) the action will advance some enumerated
power, where Congress’s judgment in this respect is entitled to deference.
o In a sense, the N&P clause expands each of the other clauses in A1S8
o “If any one proposition could command the universal assent of mankind, we
might expect it would be this—that the government of the Union, though limited
in its powers, is supreme within its sphere of action.”
 Wickard v. Filburn - An activity can be regulated by Congress if, when viewed in the
aggregate, it “exerts a substantial economic effect on interstate commerce.”
o Theory of aggregation re: regulation and interstate commerce:
 Filburn argues that his wheat has nothing to do with interstate commerce
because he grows the wheat for his own consumption and it never crosses
state lines. However, the Court upholds the statute and his fine because
his operation affects commerce by reducing demand for wheat. Lower
demand decreases prices, and that hurts farmers and disincentivizes
growing wheat, which is necessary. His farm is part of a larger
“aggregation” of economic activity, therefore it can be regulated by
Congress.
o Deferring to Congress:
 Congress was capable of determining “that wheat consumed on the farm
where grown, if wholly outside the scheme of regulation, would have a
substantial effect in defeating and obstructing its purpose to stimulate
trade therein at increased prices.”
o Constitutional avoidance:
 “That an activity is of a local character may help in a doubtful case to
determine whether Congress intended to reach it.” If one interpretation of
a statute would violate the Cont. and another interpretation would not,
then the best interpretation is the one that avoids the constitutional
conflict.”
 Heart of Atlanta Motel v. United States - Racial discrimination has a “disruptive effect”
on “commercial intercourse” and that Congress could regulate discrimination by places
of public accommodation using the commerce clause.
 United States v. Lopez - Court concluded that the Gun-Free School Zone Act did not
regulate anything having to do with “’commerce’ or any sort of economic enterprise…”

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Gun possession, as opposed to gun sales, is noncommercial activity. In a way, the

majority tries to reinterpret Wickard and Heart of Atlanta to fit framework that CC only
regulates economic/commercial activity. The Act also does not contain any
“jurisdictional element which would ensure through case-by-case inquiry, that the
firearm possession in question affects interstate commerce.”
o Court emphasized need to maintain distinction between federal and local/state
governments, otherwise Congress’s power would be so unlimited that we would
essentially have one centralized government.
o Three broad categories of commercial activity Congress may regulate:
 Use of channels of interstate commerce (Direct regulation of IC)
 Waterways or freeways
 Inns, motels, and hotels
 “Instrumentalities” of interstate commerce and people and things
crossing state lines. (Direct regulation of IC)
 Actual goods in IC
 People who transport kidnapped persons in IC
 People who transport persons across state lines with intent to
have them engage in prostitution (Mann Act)
 Trains, airplanes, cars, or trucks
 Activities that substantially affect interstate commerce. (Indirect
regulation of IC)
 Home grown wheat used for personal consumption that competes
with wheat in the open market (Wickard)
 United States v. Morrison - Court holds that this type of criminal statute is beyond
Congress’s authority (bucket problem) for the same reasons they held in Lopez. This type
of criminal statute should be left to the states.
o Although there are many Congressional findings related to this legislation, the
method of reasoning used to connect gender-based violence to commerce has
already been rejected by the Court in Lopez. If the reasoning is so broad that it
would give Congress unlimited powers, the reasoning is too attenuated and
outside scope of CC.
 Four Lopez and Morrison factors re application of Commerce Clause:
o Is the regulated activity economic or noneconomic in nature?
o Is there a jurisdictional hook?
o Are there express Congressional findings that connect the regulated activity to
interstate commerce?
o If so, is the scope of the reasoning limited enough and not so tenuous that it
leaves Congress’s authority unchecked?
 Gonzales v. Raich - Like the wheat in Wickard, the government has an interest in
controlling the market for controlled substances because the worry about home-growers

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is that high demand will draw their weed into the interstate market. Regulating that
market is squarely within Congress’s powers per the Commerce Clause.
o Scalia’s concurrence: The N&P clause gives Congress the power to “regulate
even noneconomic, local activity if that regulation is a necessary part of a more
general regulation of interstate commerce.”
o When the activity being regulated is economic, it triggers application of Wickard
and Heart of Atlanta. If activity being regulated is noneconomic, then you have to
consider the factors from Lopez and Morrison.

2. Taxing Power
 NFIB v. Sebelius – CC doesn’t support individual mandate in ACA because it doesn’t
regulate “existing commercial activity. It instead compels individuals to become active
in commerce by purchasing a product, on the ground that their failure to do so affects
interstate commerce.” (Roberts opinion) BUT the Taxing Power does!
o The *** individual mandate threatens our constitutional order *** because it gives
such an expansive meaning to the Commerce Clause that all private conduct
(including failure to act) becomes subject to federal control, effectively destroying
the Constitution’s division of governmental powers. *** Article I contains no
whatever-it-takes-to-solve-a-national-problem power.” (Joint op of Scalia,
Kennedy, Thomas and Alito concurring on the CC issue)
o Congress doesn’t need to rely on all or multiple “buckets of power” to enact a
statute. They only need to point to one bucket, which is why the ACA was
evaluated under the Commerce Clause and the taxing power. A statute enacted
by Congress that is not authorized by the Commerce Clause doesn’t “violate” the
CC. It’s just that the CC doesn’t give Congress the appropriate authority (USE
THIS ON TEST!!).
o Doctrine of Constitutional Avoidance allows Roberts to find that ACA individual
mandate is valid use of Congress’s power to tax, so it isn’t unconstitutional.
 Even though the ACA calls it a “penalty,” it’s really a tax because (1) it’s a
relatively small amount of money, so not very burdensome; (2) there’s no
requirement of “acting knowingly” found in punitive statutes; and (3) the
payment is collected by the IRS.
 Takeaways re: Taxing Power:
o Congress can use its taxing power to lvey taxes even in areas where it could not
directly regulate (e.g., even in areas where the Commerce Clause or other powers
would not allow direct regulation).
o Taxes can (and often are) designed to influence conduct – rather than merely to
raise revenue.

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o At some point, a monetary exaction may become so punitive that it’s not really a
tax and the taxing power cannot be used to support it…but the individual
mandate is not that punitive; it’s fairly labeled as a “tax.”

3. The Spending Power

 The Spending Clause grants Congress the power “to pay the Debts and provide for
the . . . general Welfare of the United States.” Art. I, § 8, cl. 1.
 South Dakota v. Dole - The Court holds that the Spending Clause allows Congress to
encourage the States to do things that it can’t do on its own, and that is constitutionally
fine.
o Limitations on the Spending Power (test outlined in Dole):
 General welfare: the exercise of the Spending Power must be in pursuit
of the “general welfare.”
 Clear statement: Congress must condition the states’ receipt of federal
funds unambiguously.
 Relatedness: The conditions “might be illegitimate if they are unrelated
‘to the federal interest in particular national projects or programs.’”
 Independent constitutional bars: Other constitutional provisions (e.g., 1st
Am. Or EP) may provide an independent bar.
 No coercion: “Our decisions have recognized that in some circumstances
the financial inducement offered by Congress might be so coercive as to
pass the point at which ‘pressure turns into compulsion.’”
 Application of the Dole test to the ACA (see NFIB v. Sebelius):
o Court says that the conditions on Medicaid expansion are too coercive, because
the States aren’t given a meaningful choice, it’s more like a “gun to the head.” If
they don’t comply, not only will they not receive additional Medicaid funding,
they will lose all of the Medicaid funding that they already receive. The Medicaid
funding most states receive is such a huge part of their budget already that
there’s no way they could refuse to expand Medicaid and risk losing all of their
money.
 The first four factors of Dole test are easily met: 1) the Medicaid expansion
is for the general welfare; 2) there was a clear statement that the program
was conditional; 3) the condition of the grant (expansion of Medicaid)
was obviously related to the program for which the funds are intended
(Medicaid)

B. Commerce Clause Doctrinal Framework

 What is being regulated? See Lopez categories. (This is a threshold framing issue!)
o The use of a channel of IC, such as a river or interstate highway? Likely ok.
o An instrumentality (such as an airplane) or a thing or person in IC? Likely ok.
o An activity (see NFIB) that has a substantial effect on IC? Then need to ask more…

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 If Congress is trying to regulate an activity based on its asserted “substantial relation” to

IC, then ask:
o Is the “activity” that is being regulated really “activity” as opposed to
“inactivity”? If inactivity, then CC cannot be used (but maybe a different congressional
power could be used). See NFIB.
o Is the activity that is being regulated economic or noneconomic? If economic, then
aggregation is allowed at steps 4 and 5 below! See Wickard; HoA Motel; Raich. If
noneconomic, then aggregation is likely impermissible. See Lopez; Morrison.
o Is there a jurisdictional element in the statute? If yes, then likely ok.
o Are there congressional findings that speak to the effect on IC? Not dispositive; see
Morrison.
o Is there a sufficient nexus between what is being regulated and IC? Questions
about whether Congress gets much deference on this question. Compare Morrison (not
deferential) with Raich (deferential).
o Is what is being regulated a matter of traditional state concern? See Lopez.

C. Federalism as a Limit: The Tenth Amendment

 The Tenth Amendment = “The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states respectively, or
to the people.”
o The General Rule re: 10A is Garcia (which overruled National League of Cities)
o When fed govt is regulating states as a state, rule = New York (state leg) or Printz
(state exec.); see also Murphy
o What does “as a state” mean? When the federal govt is telling the state to do
something only a state can do, like pass a law, enforce a law or do something else
that would conflict with a state’s sovereignty
 Garcia v. San Antonio Metropolitan Transit Authority - The Tenth Amendment does
not provide states with immunity from otherwise valid, generally applicable legislation
simply because of their special status as states.
 New York v. United States - The Take Title provision of law re nuclear waste disposal
“cross[es] the line distinguishing encouragement from coercion…[T]he Act
commandeers the legislative processes of the States by directly compelling them to enact
and enforce a federal regulatory program,” and therefore is unconstitutional.
 Printz v. United States - the federal govt can’t force the states, nor state employees, to
enact, administer or enforce a regulatory scheme.
 Anti-Commandeering Doctrine:
o Under Garcia, Congress may subject states to generally applicable laws, such as
the FLSA, without violating the 10th Amend
o Pursuant to New York, however, states may not be forced to enact a regulatory
program pursuant to Congress’s directions (“commandeered”)

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o Pursuant to Printz, state officers (e.g., law enforcement officials) may not be
forced to execute federal law (“commandeered”)
o Pursuant to Murphy, any direct order to a state legislature is unconstitutional
under 10A, even telling them not to take action.

D. Federalism as a Limit: The Eleventh Amendment

 th
11 Amendment - “The judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
 Chisholm v. Georgia - Chisholm, a private individual from South Carolina, sued the
state of Georgia to recover debt allegedly owed to him from the American Revolutionary
War, based on diversity jurisdiction. Georgia doesn’t even appear because it claims it
cannot be hauled into Court. The Court rules in Chisholm’s favor.
 In response to Chisholm, Congress ratifies the 11th Amend. It restores state sovereign
immunity to its pre-Constitutional understanding.
 Hans v. Louisiana - Even though the 11th Amendment says that suits between a citizen
of one state can’t sue another state, the Court says that the concept of sovereign
immunity still applies when a citizen sues his own state. Dismisses Hans’s suit.
 Seminole Tribe of Florida v. Florida - After Congress passes 14th Amend., the Court says
Congress can abrogate SSI pursuant to § 5. But Congress still cannot use the Commerce
Clause to do so. The Commerce Clause CANNOT be used to abrogate State Sovereign
Immunity.
o Congress validly abrogates a state’s sovereign immunity when:
 Congress has unequivocally expressed its intent to abrogate immunity
(clear statement rule); and
 Congress has acted to abrogate pursuant to a valid exercise of power.
 Alden v. Maine – States’ sovereign immunity bars suits by individuals against non-
consenting states in state court.
o States can waive their immunity, and they waived it impliedly by ratifying the
Constitution (e.g., suits by the US govt or other states are allowed); they waive it
as a condition of a federal grant (spending clause!); and they can volunteer to
waive it (like Washington did).
o Under a separate doctrine (the “Ex parte Young doctrine”), individuals in certain
circumstances can sue state officials, rather than the state itself, though under this
theory relief is limited to injunctive relief, rather than money damages;
o Sovereign immunity only bars suits against states, not against lesser entities,
such as municipalities; and
o Congress can validly abrogate sovereign immunity pursuant to § 5 of the
Fourteenth Amendment.
 Severability: Doctrine re: what happens when a particular provision in a statute is ruled
unconstitutional. Does the entire statute get struck down? Or is that specific provision

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unenforceable? The answer is “whatever Congress would have wanted if Congress had
known about the defect.” But no one agrees on how to determine that.

V. Federalism as a Limit on State Power

A. Federal Preemption of State Law
 Oneok categories of Preemption:
o Express (i.e., statement in the statute that Congress intended the statute to
preempt state law).
o Implied:
 Field Preemption: Congress takes over a whole area of law and states can
no longer regulate in that area. Example: Immigration registration,
Arizona v. U.S
 Conflict Preemption
 Impossible to comply with both state and federal law: Mutual
Pharmaceutical Co. v. Bartlett – FDA said generic drugs had to have
certain labels that couldn’t be changed. State law required
additional labeling disclosures. In this conflict, federal law
preempted the state requirements.
 State law is an “obstacle” to the federal purposes: Geier v.
American Honda Motor Co. – airbag case, ordinary pre-emption
principles barred state tort lawsuits that conflict with federal
regulations.
 Geier v. American Honda Motor Co. – Even though the FMVSS contains an express
preemption statement with a savings clause that doesn’t preempt Pls’ state law tort
action, ordinary principles of preemption nonetheless apply. Therefore, the common law
action does conflict with the federal law.
 Murphy v. NCAA - PASPA is unconstitutional because it attempts to restrict the activity
of a state as a state. Any direct order to a state legislature is unconstitutional under 10A,
even an order not to do something.
o The various prohibitions in PASPA trigger different rules from either Garcia (law
is ok if it can be applied to states and private actors equally) or New York/Printz
(Congress can’t regulate States as States, only “non-sovereign” activity).
 Zervos v. Trump - “The Supremacy Clause provides that federal law supersedes state
law with which it conflicts, but it does not provide that the President himself is immune
from state law that does not conflict with federal law. Since there is no federal law
conflicting with or displacing this defamation action, the Supremacy Clause does not
provide a basis for immunizing the President from state court civil damages actions.”

B. The Dormant Commerce Clause

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 The Dormant Commerce Clause (“DCC”) limits the power of state and local
governments to regulate when Congress has failed to act (when Congress’s commerce
clause powers lie “dormant”).
o For any non-federal law burdening interstate commerce:
 First ask – Is the state or local law protectionist/discriminatory? Meaning,
does it discriminate against out-of-state economic interests?
 YES? Presumption of Invalidity. The law will be upheld ONLY IF it is
necessary to achieve an important interest.
 NO? Presumption of validity. A balancing test applies; the law will be
invalidated ONLY IF the burdens on interstate commerce outweigh the
benefits accorded to the state.
 Exceptions? (1) congressional approval and (2) market-participant
exception (see White).
 Philadelphia v. New Jersey - SCOTUS holds that the law is unconstitutional because it
discriminates against articles of commerce (Lopez category No. 2 –
instrumentalities/direct regulation of IC) coming from outside the state.
o Pike balancing test: (1) Does regulation evenhandedly promote a legitimate
public interest? (2) Is the effect on interstate commerce incidental? (3) Is the
burden imposed on interstate commerce excessive in comparison to the putative
local benefit?
o In-staters can sue for a DCC issue if their economic interests are burdened by a
discriminatory law (in-state operators of landfills had contracts with out-of-state
cities).
o Even if a state might have a non-discriminatory purpose for enacting a statute, it
will be invalid if the law uses a discriminatory means of achieving its purpose.
 Kassel v. Consolidated Freightways - Iowa’s law is unconstitutional because placing a
disproportionate burden on other states without a “significant countervailing safety
interest” violates the Commerce Clause.
 Maine v. Taylor - Main baitfish law survived even though it discriminated against out-
of-state fish because the out-of-state fish contained a parasite that harmed the Maine’s
fish. The Court upheld the law even though it was discriminatory on its face because
there was no other way to deal with the parasite problem.
 Dean Milk Co. v. Madison – Madison ordinance prohibiting milk that wasn’t bottled
within 5 miles of city limits from being sold in Madison. The law was unconstitutional
because it discriminated against out-of-state milk producers, in addition to in-state milk
producers, who were more than 5 miles away.
 White v. Council of Construction Employers, Inc. – Exceptions to DCC allowed Boston
mayor to issue executive order stating that a certain percentage of construction workers
on any project in the city had to be residents of Boston.

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o Congressional approval exception: Congress had authorized Boston’s actions

with respect to the use of federal funds, so no DCC problem as to the use of
federal funds
o Market-participant exception: State may favor its own citizens in dealing with
govt-owned business where the govt is a “market participant” rather than a
“regulator.” This applied to Boston because the govt was using its own money to
fund the construction projects.

C. State Privileges and Immunities

 “The citizens of each state shall be entitled to all privileges and immunities of citizens in
the several states.” Art. IV, § 2, cl. 1.
 The P&I clause only insists on equality of P&I, but doesn’t set a baseline or minimum
amount, or define what privileges and immunities are. So, if a state doesn’t provide any
privileges or immunities to its citizens, no one could bring a claim that it is treating in-
staters versus out-of-staters differently.
o In-staters can’t bring P&I claims against their own state.
 What is a privilege or immunity?
o Constitutionally protected rights (e.g., right to access courts and right to obtain
an abortion); AND
o Important economic activities (e.g., licensing fees paid to engage in economic as
opposed to merely recreational activities; right to engage in a trade like law)
 See New Hampshire v. Piper (bar admission)
 See South Carolina v. Toomer (shrimp boat license case)
 United Building & Construction Trades Council v. Camden – City ordinance is facially
discriminatory because the ordinance itself refers to and applies to residents of the city
of Camden and seeks to give preferential treatment to them. Court remands case to
allow Camden a chance to justify ordinance by showing that discrimination is closely
related to substantial govt. interest.
o Having decided that the P&I clause does apply, the Court develops a two-part
test:
 Has the govt discriminated against out-of-staters with respect to one of
the “P&I” it accords to its own citizens?
o P&I refers to fundamental interests
o Discrimination occurs when out-of-state citizens are
treated differently than in-state citizens
 If so, is the discrimination closely related to a substantial govt interest?
(This is like intermediate scrutiny)
o Camden is basically the same case as White, but it comes out differently because
Pls bring a P&I claim.

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 Baldwin – case allowing Montana to charge different fee for elk hunting licenses to in-
staters and out-of-staters because Congress passed statute authorizing it, so DCC claim
doesn’t apply. Doesn’t violate Art. IV P&I because recreational hunting is not a
fundamental right, although it may be an “economic interest.”
 Differences between DCC and Art. IV P&I:
o DCC can be used to challenge nondiscriminatory laws if it can be shown that it
substantially burdens IC. Then one would use balancing test SOR
 Nearly all laws could be captured by DCC, because the law just has to
affect IC in some way
o Art. IV P&I can only be used to challenge laws that affect a “fundamental
interest” such as:
 Right to access courts, enter and exit states, seek habeas corpus relief,
purchase and possess property, “pursue a common calling,” reside in any
other state.
o Anyone, including in-state citizens, corporations, etc. can bring DCC actions (see
Philly v. NJ) but only out-of-staters can have standing to bring Art. IV P&I claims,
and they can’t be corporations.
o Congress can authorize a law that would otherwise be unconstitutional under
DCC, but not under Art. IV P&I.
 Congress can regulate commerce, but not individual “fundamental
interests”

D. Sanctuary Cities Executive Order

 Three governmental actions are at play in the San Francisco and Santa Clara County v.
Trump suit.
o Congress passed the immigration legislation, including § 1373.
o Santa Clara and San Francisco passed local laws prohibiting city and county
employees from using state funds to assist federal immigration officials to
enforce immigration laws.
o Trump issues EO in January 2017.
 The counties claims are that the EO is unconstitutional because:
o EO violates Constitutional structure by attempting to impose restrictions on
money against will and without authority of Congress. President’s power is at
“lowest ebb” (Y3). Separation of Powers issue
o Even if Trump had the spending power, it has been overstepped because
conditions on federal grant monies must be:
 Unambiguous (S.D. v. Dole)
 Timely, not after-the-fact (NFIB v. Sebelius)
 Have a nexus to purpose of the federal program (Dole)
 Not coercive, no gun-to-the-head (Dole; NFIB)

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o EO violates 10th A by commandeering states to enforce and administer federal

regulations (New York v. Printz)
 Especially w/r/t civil detainer requests, which would become demands,
not just requests.
 th
9 Circuit thinks the EO is very vague and ambiguous as to how/what/when any of the
enforcement against sanctuary cities will be enforced, or the funds will be restricted.
o just tacking on “consistent with law” to an EO is not a magic bullet that prevents
judicial review
o EO cannot be interpreted as narrowly as the DOJ suggests because it is not
written in a way that implies only the DOJ and DHS grants are affected
 It specifically mentions that only grants that are necessary to law
enforcement will not be affected, which leads to the conclusion that all
other grants could be affected (the exclusion of one thing naturally
includes all others)

VI. Introduction to the Reconstruction Amendments

A. Overview; State-Actor Doctrine
 Dred Scott – Anti-canon – Three infamous rulings:
o Dred Scott could not invoke diversity jurisdiction to sue because individuals who
are slaves cannot become citizens of the United States
o Congress lacks the power to limit slavery in the territories
o Legislation limiting slavery violates the Due Process Clause—under the theory
that people who are enslaved are property (therefore Mr. Scott’s “owner” was
the person whose rights were being violated).
 The Reconstruction Amendments:
o Thirteenth Amendment – abolishes slavery (passed 1865)
o Fourteenth Amendment – Establishes a national rule of citizenship for those born
or naturalized in the U.S. and guarantees “privileges or immunities,” “due
process,” and “equal protection of law.” (passed 1868)
 § 1 – a bunch of landmines
 § 2-4 – revisions of rules re HOR apportionments, prohibition on rebels
serving in federal office, debts re civil war null and void.
 § 5 – bucket of power
o Fifteenth Amendment – Right to vote shall not be abridged on account of race,
color, or previous condition of servitude. (passed 1870)
 The Slaughter-house Cases (1873) effectively wiped out any effective force of the
privileges and immunities clause of the 14th Amend.
 The Due Process clause in the 14th A applies to States, whereas the Due Process clause in
the 5th A applies to the federal govt.
o Substantive Due Process: Cases upholding rights, like Roe v. Wade

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o Procedural Due Process: Cases addressing procedures like right to be heard prior
to deprivation of property.
 The Civil Rights Cases - The 14th A only gives Congress the right to remedy deprivation
of rights by state action because a private individual can’t impede another person’s right
to vote, to hold property, to sue in the courts or to be a witness, and if he does attempt to
violate another’s rights any remedy against that individual would have to be available
under state law.
o Congress cannot pass any legislation to remedy anything “until some state law
has been passed, or some state action through its officers or agents has been
taken, adverse to the rights of citizens sought to be protected by the fourteenth
amendment.”
 Shelley v. Kraemer - Although property sales and covenants are private contracts, the
only mechanism of enforcement is by the courts, which requires state action. Therefore,
such covenants cannot be enforced by the court because it violates the EP clause of 14A.
o Example of the state “entanglement exception” to the EP
 The general rule: Private actors cannot violate the 14th Amendment; there must be state
action.
o Two “exceptions” – (1) the public-function exception and (2) the entanglement
exception.
 The Equal Protection clause applies to federal action in addition to action by States
because of “reverse incorporation” even though the language of 14A only references
states.
o Under the theory of incorporation developed after the Reconstruction
Amendments were passed, the Court held that the protections in the Bill of
Rights were interpreted to apply to States as well as the federal govt. Then the
Court “reversed” that interpretation in order to make the 14A apply to the
federal govt.
 Bolling v. Sharpe (basically the same case as Brown v. Board, but taking
place in D.C.).
 DeShaney v. Winnebago County Dept. of Social Services - Nothing in the Due Process
clause requires states to protect the life, liberty and property of its citizens against
invasion by private actors. DP is a “limitation on the state’s power to act, not as a
guarantee of certain minimal levels of safety and security.”

VII. Equal Protection

A. Traditional Rational-Basis Review; Strict Scrutiny
 Three tiers of scrutiny used for Equal Protection Clause analysis:
o Strict Scrutiny – Govt must prove (1) it has a “compelling governmental
interest” in the subject matter about which it has made the classification and (2)
that it has “narrowly tailored” its classification to fulfill that interest.

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o Intermediate Scrutiny – Classification is constitutional only if the govt can (1)

identify an “important” governmental interest, and (2) demonstrate that the
classification is “closely related” to that interest.
o Rational Basis Review – Classification is constitutional if it is “rationally related”
to some “legitimate governmental interest.”
 Carolene Products test to determine which level of scrutiny should apply to a particular
group classification:
o The ability of the group to protect itself politically;
o Whether the group historically has been subjected to purposeful discrimination;
o Whether the trait in question is related to an individual’s ability to perform and
participate in society; and
o Whether members of the group have obvious, immutable, and/or distinguishing
characteristics that define them as a discrete group.
 Railway Express Agency v. New York – NYC traffic regulation banning advertising
vehicles challenged as violation of EP clause. Court applies rational basis review to
classification and determines that it is related to legitimate govt purpose.
 Armour v. Indianapolis – City had a rational basis to adopt new tax scheme and deny
refunds because of administrative burden. Didn’t violate state law (as opposed to
Allegheny case), therefore, didn’t violate Constitution.
 Korematsu v. United States – anti-canon – Since EO 9066 curtailed the rights of a single
racial group, it is immediately suspect and must be subjected to “the most rigid
scrutiny.” However, it was not beyond the war power of Congress or the Executive to
exclude Japanese Americans from the West Coast war area when they did. Exclusion
from the area “has a definite and close relationship to the prevention of espionage and
sabotage.”
 Brown v. Board of Education - Overruled “separate but equal doctrine” of Plessy v.
Ferguson. Since Court concluded that school segregation based on race violated EP, no
need to decide issue of DP. The Court doesn’t really rely on strict scrutiny, although
they mention it. They just conclude that the laws were irrational and unreasonable.

B. Strict Scrutiny and the “Discriminatory Intent” Requirement

 Before conducting an Equal Protection analysis, identify the type of classification
(age, gender, race, etc.) and identify the government’s interest (preventing traffic
accidents, prohibiting discrimination).
 Ways to prove purposeful or intentional discrimination:
o Review of “totality of relevant facts, including the fact, if true, that the law bears
more heavily on one race than another.” Davis. This evidence can include, e.g.:
 Historical background of challenged decision Arlington Heights (1977)
 Sequence of events leading to challenged decision. Id.
 Legislative history associated with challenged decision. Id.

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 The impact of challenged decision. Id. Indeed, “[f]requently the most

probative evidence of intent will be objective evidence of what actually
happened rather than evidence describing the subjective state of mind of
the actor. For normally the actor is presumed to have intended the natural
consequences of his deed.” Steven’s concurrence in Davis.
 Loving v. Virginia – State law prohibiting whites from marrying non-whites violates
14A, EP clause because “There is patently no legitimate overriding purpose independent
of invidious racial discrimination which justifies this classification.”
 Johnson v. California - Court says SS should apply because “racial classifications receive
close scrutiny even when they may be said to burden or benefit the races equally.” Court
determined that “the ‘necessities of prison security and discipline,’ are a compelling
government interest justifying only those uses of race that are narrowly tailored to
address those necessities.” Case remanded to determine whether CA could meet this
burden. After remand, case settled and CDC agreed to desegregate the prison reception
centers.
 Washington v. Davis - Court holds that policy requiring test doesn’t violate EP because
the test supports an important governmental interest (police having certain
qualifications), and the test is related to that interest. The disparate impact isn’t enough
to trigger any form of heightened scrutiny; there must be a discriminatory intent behind
the policy. So, if the officers could have proven that D.C. police chose that test because it
disproportionately eliminated black candidates, that would have supported strict
scrutiny and likely violation of EP.
 Yick Wo v. Hopkins - Court held that administration of the ordinance violated the EP of
14A because even though the ordinance didn’t mention race or national origin it
disparately impacted people of Chinese nationality. Of the hundreds of laundries in San
Francisco made of wood, consent of the Board of Supervisors was withheld from Yick
Wo “and from 200 others who have also petitioned, all of whom happen to be Chinese.”
There was no other plausible explanation for the disparate impact, besides racial
discrimination.
 Cf. Personnel Admin. Of Mass. v. Feeney (1979) (involving a veterans’ preference that
benefitted men more than women): “’Discriminatory purpose’…implies more than
intent as volition or intent as awareness of consequences. It implies that the
decisionmaker, in this case a state legislature, selected or reaffirmed a particular course
of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.”

C. Intermediate Scrutiny
 Craig v. Boren - Appellants challenge constitutionality of an Oklahoma law that
prohibits sale of 3.2% abv beer to males under age 21, but to females under the age of 18.
SCOTUS applies intermediate scrutiny, which means that rather than taking the
government’s word for it, that the classification is rationally related to their interest, the

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Court actually looks into the data to see if the classification is truly closely related to the
purported interest. SCOTUS does not think the statistics substantially support the state’s
goal of preventing drunk driving and holds that OK’s statute “invidiously discriminates
against males 18-20 years of age…[the statute] constitutes a denial of the equal
protection of the laws.”
 United States v. Virginia - Lawsuit brought against the Virginia Military Institute (VMI)
by women seeking admission to the all-male public school. State’s justification may not
rely on overbroad generalizations about the differences in talents and capabilities
between men and women. The history of Virginia’s public colleges and universities
shows that it hasn’t attempted to provide a diverse education to women, only to men.
Therefore, the state’s justification that they wanted to provide diverse education systems
seems made up post-hoc. State doesn’t pass the “exceedingly persuasive justification”
test.

D. Non-Traditional Rational-Basis Review

 City of Cleburne v. Cleburne Living Center - Cleburne, a city in Texas, denied a special
use permit to a group home for the intellectually disabled, pursuant to a zoning
ordinance requiring permits for such homes. Fifth Circuit held that mental disability is a
“quasi-suspect” classification and that the zoning ordinance violated EP of 14A because
it didn’t “substantially further an important governmental purpose.” SCOTUS holds
that a lesser standard of scrutiny is appropriate, but under that test, the ordinance still
violates EP. The zoning ordinance was premised on an “irrational prejudice,” which
served no legitimate purpose. Therefore, they fail the rational basis review (‘with bite”)
test, and the ordinance is unconstitutional.
 Big Takeaways from 14.1 challenges:
o State action is required for challengers to prevail on 14.1 claim. Civil Rights Cases
o Governmental intent to discriminate on basis of a suspect class is necessary for
an EPC challenge to receive heightened scrutiny. Yick Wo, Washington v. Davis
o Heightened scrutiny (of any sort) under the EPC tends to invalidate challenged
laws. Loving, Johnson
o Rational basis review (of any sort) under the EPC tends to permit challenged
laws. Armour, Railway Express

VIII. Congress’s Power to Enforce the Fourteenth Amendment Using § 5

A. Congress’s Section 14.5 Power
 Has Congress Validly Invoked 14.5?
o What is Congress’s theory as to which 14A violations it is trying to prevent or
remedy through the statute at issue?
 What is the 14.1 provision (i.e., landmine) Congress claim it is enforcing?
 What are the rules governing whether a government’s action violates that
14.1 provision?

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 Per Boerne, this sets the stage for the analysis necessary to decide
whether C & P (question 3, below)
o What relevant evidence (i.e., history and patterns of unconstitutional action by
state actors) has Congress identified in support of its conclusion that the statute
at issue is appropriate to enforce that 14.1 provision?
 In answering this Q, use your answers to Q1 above, to make sure
Congress’s evidentiary record includes actual constitutional violations,
and not just conduct the Congress happens not to like.
 Per Boerne, this is necessary to decide whether C & P (question 3,
below)
o In light of answers to Q1 and Q2, does Congress’s statute have adequate
“congruence”
 In acting to prevent or remedy unconstitutional conduct, Congress can sweep in some
constitutional conduct within the law’s reach too, so long as…
 It’s proportional and congruent to preventing or remedying the identified
constitutional violations.
o See hammer and fly metaphor, or rotten apple/apple with small rotten spot.
 “Federalist” or “remedial” view of Congress’s authority under 14.5 means that their § 5
powers are limited to remedying or preventing judicially recognizable violations of
constitutional rights. At times, Congress’s exercise of powers might include the
prohibition of conduct that is not itself unconstitutional (in order to remedy the conduct
that is unconstitutional). Congress’s power nevertheless is limited.
 14.1 applies to all people within the geographical boundaries of the U.S., regardless of
citizenship status. In Yick Wo, plf was not a U.S. citizen, but won on his EP clause claim.
 Heart of Atlanta Motel - Court says that 14.5 does not provide a bucket of power for
Congress to pass the Civil Rights Act of 1964 because 14A only prohibits violations of
the constitution by state actors, therefore remedial legislation under 14.5 can’t sweep in
actions by private individuals, which the Civil Rights Act does.
o In 1976, the Court decides in Fitzpatrick v. Blitzer that the Civil Rights Act was
supported by 14.5, because the amendment to the act that abrogated state
sovereign immunity couldn’t be supported by the CC. The amendment was
specifically intended to provide a remedy for individuals to sue their states if the
state violated their 14A rights, therefore it was only enforcing 14.5 (not
substantive), narrowly tailored and didn’t sweep in constitutional conduct.
 City of Boerne v. Flores – RFRA is unconstitutional because Congress has the power to
enforce the provisions of 14A under § 5, but it is limited to remedial action, per the
Court. Congress does not have the “power to decree the substance of the Fourteenth
Amendment’s restrictions on the States.” They can’t change what a right is by passing
legislation that alters the meaning of the Free Exercise Clause. Here, Congress has not

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provided evidence in the legislative record that generally applicable laws have recently
been passed because of religious bigotry.
o RFRA is so “out of proportion to a supposed remedial or preventive object that is
cannot be understood as responsive to or design to prevent unconstitutional
behavior. It appears, instead, to attempt a substantive change in constitutional
protections.”
o It is way too broad and sweeping, affecting every level of government and all
official actions, “regardless of subject matter.”
 United States v. Morrison – Petitioner argued that § 5 supported VAWA because of
“pervasive bias in various state justice systems against victims of gender-motivated
violence.” However, the civil action remedy provision of VAWA isn’t aimed at the state
actors, it allows victims to sue the individuals who committed the criminal acts. It also
applies nationally, but Congress’s findings didn’t demonstrate that discrimination
against victims of gender-motivated violence exists in all states. Therefore, the remedy is
not congruent or proportional to the alleged 14.5 violation.
 University of Alabama v. Garrett - In order to allow private individuals to collect
money damages against states under the ADA there must be a pattern of discrimination
by States (not local govts) which violates the 14th Amendment, and the remedy imposed
by Congress must be congruent and proportional to the targeted violation. Court says
there aren’t enough examples of State discrimination to support abrogation of SSI.
o Because of Cleburne, the law must receive rational basis “with bite” review,
which means that the court will look at the legislative record to determine if
there was a rational basis for the statute. Cleburne also says that the
discrimination against people with disabilities must be based on an irrational
prejudice to be unconstitutional.
o Only the provision abrogating state sovereign immunity was declared
unconstitutional. The rest of the statute is still valid. (Severability)
o What recourse is left to persons with disabilities who believe a state has violated
Title I of the ADA?
 Can be enforced through actions brought by United States
 Standards can be enforced through actions brought by private
individuals pursuant to Ex Parte Young (though only through injunctive
relief)
 State laws might provide relief
 Nevada Dept of Human Resources v. Hibbs - Under FMLA, private individuals have
private right of action to seek equitable relief and money damages against any employer
(including a public agency) if the employer violates the exercise of FMLA rights. Court
holds that Nevada state employees may recover money damages if the state fails to
comply with the FMLA.

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o Court applies heightened/intermediate scrutiny because of gender-based

classification. Classification must serve an important governmental objective and
be substantially related to the achievement of that objective.
o FMLA abrogation of SSI is ok because it’s narrowly tailored in scope and
remedy:
 A statute simply mandating equality in leave benefits wouldn’t have been
effective because employers could refuse to provide leave benefits to
anyone.
 The provision of the FMLA is narrowly tailored “at the fault line between
work and family” and affects only one aspect of the employment
relationship.
 The provision requires only unpaid leave and applies only to certain
employees.
 The damages recoverable are limited to actual monetary losses and
limited backpay.

IX. Rule Statements

A. Commerce Clause
For Congress to enact any legislation it must have authority from one of its enumerated
powers in the Constitution. McCulloch v. Maryland. Under the Commerce Clause (U.S. Const.
Art. I § 8 cl. 3), Congress may regulate (1) channels of interstate commerce, such as highways
and waterways; (2) instrumentalities of interstate commerce, or people and things in interstate
commerce; or (3) activities substantially affecting interstate commerce that are economic or
commercial in nature. United States v. Lopez. If Congress is regulating action, it must be an
activity in which the public is already engaged, not inactivity or future activity. NFIB v. Sebelius.
Otherwise, the Commerce Clause will not support the regulation, but one of Congress’s other
powers might do so. NFIB.

When Congress regulates an economic activity substantially affecting interstate

commerce, the statute must contain a jurisdictional hook connecting that activity to interstate
commerce. Lopez. Regulation of local, intrastate activity is necessary when, if aggregated, the
activity would affect a national market, as in Wickard, or when the regulation is necessary to
support a broader regulatory scheme, as in Raich. However, if the regulated activity is
noneconomic, aggregation is likely impermissible. United States v. Morrison. To support
regulation of noneconomic activity, congressional findings connecting the noneconomic activity
to interstate commerce must be based on reasoning limited enough in scope that it doesn’t leave
Congress’s authority unchecked. Morrison, Lopez. Furthermore, the noneconomic activity must
not be a matter of traditional state concern. Lopez.

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B. Standing
The elements necessary for Article III standing are: (1) an injury-in-fact; (2) a causal
connection between defendant’s unlawful conduct and the injury; and (3) that the injury is
likely to be redressed by the requested relief. Lujan v. Defenders of Wildlife.

Plaintiff must have suffered a cognizable injury-in-fact that is concrete, particularized

and imminent. Lujan. An injury-in-fact may not be merely hypothetical or speculative.  Laird v.
Tatum, 408 U.S. 1, 11–16 (1972); Clapper v. Amnesty International, USA, 568 U.S. 398, 409 (2013).

Plaintiff must demonstrate that its injury is a direct result of the allegedly unlawful
conduct of defendant. Lujan. Finally, plaintiff must be able to show that if granted a favorable
ruling the relief is likely to redress its injury. Laidlaw. Plaintiff must prove that it meets the
standing requirements for each type of relief sought. Laidlaw.

Lujan plaintiffs were denied standing because there was no injury-in-fact and their
injury would not be redressed by the relief sought because there was no guarantee that if the
government was forced to stop supporting projects abroad that negatively impacted
endangered species, it would prevent the projects from being completed because the
government’s contribution to those projects was only a small percentage of the cost. Lujan.
Lyons was denied standing to sue the LAPD over their chokehold policy because he couldn’t
prove that he “faced a realistic threat from the policy” and therefore wouldn’t benefit from
injunctive relief. City of Los Angeles v. Lyons. However, in Mass. v. EPA, plaintiffs were given
standing because even though U.S. vehicle emissions comprised only a small percentage of
greenhouse gases contributing to climate change from all over the world, the Court recognized
that regulation of U.S. emissions could reduce or slow the negative effects and therefore be
capable of redressing plaintiff’s injury, even if only slightly.

In Massachusetts v. EPA, plaintiffs sued the EPA for refusing to regulate vehicle
emissions which, by increasing the amount of greenhouse gases in the atmosphere, would lead
to global warming, rising sea levels and loss of coastal lands owned by plaintiff. The Court
recognized this injury, even though it rested on a chain of events. In Clapper, Plaintiffs couldn’t
show that the government was surveilling them or their contacts overseas, or that it would do
so in the future. The Court held that plaintiff could not establish that their injury was caused by
defendant’s unlawful conduct because the connection was based on “layers of speculation.”
Clapper.

An association, such as Friends of the Earth, Inc., has standing if its members would
otherwise have standing to sue on their own, the interests at stake are relevant to the
organization’s purpose and neither the claim nor the relief requested requires participation of
individual members in the litigation. Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc.

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C. Tenth Amendment Landmine

8 U.S.C. § 1373 is unconstitutional under Murphy v. Nat’l Collegiate Athletic Ass’n because
it states that despite “any other provision of Federal, State or local law,” no State or local
government agency or official “may…prohibit or in any way restrict, any government entity or
official” from maintaining, exchanging, sending or receiving information regarding individuals’
immigration status in connection with requests from the Immigration and Naturalization
Service. The Federal government may not command state governments to do anything that only
government entities can do (as opposed to activities that private actors can do). Garcia v. San
Antonio Metro Transit Authority (FLSA as applied to SAMTA did not violate state sovereignty
protected by Tenth Amendment because it applies to private employers as well as government
employers). Nor may the federal government force state or local officials to administer or
enforce federal statutes and regulations. Printz v. New York (state law enforcement officers may
not be “commandeered” into administering and enforcing a federal regulatory program
regarding gun sales). The holding in Murphy expanded the previous rule that only affirmative
commands constituted commandeering, and instead held that even prohibitions on what states
may or may not do violates the Tenth Amendment. Murphy. Since § 1373 prohibits any state or
local official from certain activities which are things that only government entities can do (not
private parties), it violates the Tenth Amendment according to Murphy and is unconstitutional.

D. Dormant Commerce Clause

The DCC limits the power of state and local governments to regulate commerce when
Congress has failed to act. If a state or local law burdens interstate commerce by discriminating
against out-of-state economic interests, the law will be upheld only if it is necessary to achieve
an important governmental interest. Philadelphia v. New Jersey. If the law is not discriminatory
on its face, the court applies the Pike balancing test, which asks (1) does the regulation
evenhandedly promote a legitimate public interest?; (2) is the burden on interstate commerce
incidental?; and (3) is the burden imposed on interstate commerce excessive in comparison to
the putative local benefit? Id. If the burdens outweigh the benefits, the law will be struck down.
Id.

A local statute does not have to frame its classification between in-state and out-of-state
residents to be protectionist under the DCC. Even local ordinances that favor people in one local
municipality over people from other areas within the state can be unconstitutional if they also
discriminate against out-of-state residents. See, Dean Milk Co. v. Madison (striking down
ordinance prohibiting milk from being sold in Madison if it came from farther than 5 miles
outside city limits).

There are two exceptions to the DCC. A protectionist state law may be upheld if it has
Congressional approval (meaning Congress has passed a law allowing states to discriminate
against out-of-state economic interests under specific circumstances). White. The market-
participant exception allows states to discriminate against out-of-state interests if the
government is engaging in the same activity as private enterprises. Id. In White, the mayor of

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Boston issued an executive order stating that a certain percentage of construction workers on
any project in the city had to be residents of Boston. The Court held that Congress had
authorized the mayor’s order with respect to the use of federal funds, so there was no DCC
violation. In addition, the city was using some of its own money to fund construction, so it was
also acting like a market-participant. Id.

E. Art. IV Privileges and Immunities Clause

The Privileges and Immunities Clause (“P&I”) prohibits states from discriminating
against out-of-state residents by giving preferential treatment to its own citizens. U.S. Const.,
Art. IV, § 2, cl. 1. To bring a P&I claim, the privilege or immunity being provided to in-state
citizens must concern a “fundamental interest,” such as constitutionally protected rights or
important economic activities related to trade or employment (not recreational activities). See,
New Hampshire v. Piper (challenging statute limiting bar admission to in-state residents). If the
challenged statute concerns a fundamental interest and discriminates against out-of-state
citizens, the statute will be upheld only if the discrimination is closely related to a substantial
governmental interest. See, Maine v. Taylor (allowing exception to dormant commerce clause
doctrine because a parasite found in bait fish from out-of-state posed a threat to Maine’s fish).

In Camden, the Supreme Court analyzed a city ordinance passed by the city of Camden,
New Jersey, which gave preferential treatment to Camden residents applying for construction
jobs because the ordinance was facially discriminatory against non-Camden residents. The
Court decided that employment in the private sector was “sufficiently basic to the livelihood of
the Nation” to count as a fundamental interest and therefore fall within the scope of the P&I
clause. Id. Camden argued that the ordinance was necessary to improve the city’s economy,
however, the Court decided not to rule on whether the ordinance was necessary to protect a
substantial interest within Camden because the factual record had not been developed. They
remanded the case for further proceedings. Id.

F. Preemption of State Law

When the constitutionality of a state or local statute is challenged, the first question to
ask is whether that statute is preempted by federal law. Under the Supremacy Clause of the
Constitution, federal law prevails in the event that it conflicts with any state or local law. U.S.
Const., Art. VI, cl. 2. Under Oneok, there are three categories of preemption: express preemption,
implied conflict preemption, and implied field preemption. Oneok. If there is a federal statute on
point, it might preempt the state law in express terms, such as the Airline Deregulation Act,
which prohibits states from enacting or enforcing any laws relating to airline carriers. Morales. If
the applicable federal statute doesn’t contain express preemption language in the text, field
preemption may be implied if Congress intended federal law to replace state regulation in a
particular area of law, such as immigration registration. Arizona v. U.S. Preemption is also
implied if it’s impossible to comply with state and federal law at the same time, or the state law
obstructs the purpose of federal regulation, which is called conflict preemption. Geier v.
American Honda Motor Co.

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If there is a federal statute that purports to preempt the state law in question, the federal
law must be constitutional. Murphy.

G. State Sovereign Immunity

The Eleventh Amendment prohibits citizens of one state from suing another state
without its consent. Seminole Tribe. Congress may abrogate SSI for certain types of claims via
legislation by (1) unequivocally expressing its intent to abrogate immunity (clear statement
rule); and abrogating pursuant to a valid exercise of constitutional authority. Id. For example,
Congress may abrogate SSI via legislation enacted pursuant to the Fourteenth Amendment.
Hibbs. However, the Court has repeatedly held that SSI may not be abrogated by Congress
pursuant to the Commerce Clause. Seminole Tribe. The civil action remedy provided by
Congress must be “congruent and proportional” to the constitutional violation that Congress is
trying to alleviate. Boerne. The Eleventh Amendment has also been construed as barring suits
against states brought by its own citizens in federal court. Hans. In Alden v. Maine, the Court
confirmed that the Eleventh Amendment also bars suits brought against non-consenting States
in state court. However, plaintiffs can still bring claims against state actors who’ve violated their
constitutional rights by suing an individual state official pursuant to the Ex Parte Young
doctrine.

H. Equal Protection Clause

Section 1 of the Fourteenth Amendment prohibits a state from denying equal protection
of the laws to anyone within its jurisdiction. This prohibition is limited to state actors, not
private parties. Civil Rights Cases. If a governmental policy or law creates a classification that
might be unconstitutional, it will be subject to judicial review based on the type of classification
at issue. For example, a policy or law containing a race-based classification will be upheld only
if the government can prove that the racial classification is necessary to achieve a compelling
governmental interest, and it is narrowly tailored to achieve that interest. Loving v. Virginia
(finding Virginia law prohibiting white people from marrying non-whites unconstitutional).

If the law is facially neutral, meaning that the text does not mention race, but it is being
challenged as racially discriminatory, the challenger must prove that the statute was enacted
with the intent to discriminate based on race. Washington v. Davis (Washington D.C. police
department policy requiring recruits to pass a language and grammar test was not
unconstitutional even though a disproportionately high number of African American recruits
failed the test). Evidence of disparate impact alone is not enough to establish discriminatory
intent. Washington v. Davis. The challenger must prove that the government enacted the law
because it achieved a discriminatory result, or that there was no other plausible explanation for
the disparate impact, besides racial discrimination. Yick Wo (ordinance requiring laundry
services to get permit if they operated in a wooden building was unconstitutional because there
was no plausible explanation for why only Chinese applicants were denied permits, other than
racial discrimination).

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Gender-based classifications are subject to intermediate scrutiny, which means that the
classification is constitutional only if the government can (1) identify an “important”
governmental interest and (2) demonstrate that the classification is “closely related” to that
interest. Craig v. Boren. The Court analyzes the legislative history to see if the classification is
truly closely related to the purported interest. Id.

Quasi-suspect classifications, such as those relating to intellectual disability, are subject

to rational basis “with bite” review. City of Cleburne v. Cleburne Living Center (zoning ordinance
prohibiting group home was premised on an “irrational prejudice,” which served no legitimate
purpose.) To determine whether a classification should be subject to a higher standard of
scrutiny, the Court uses a list of factors from Carolene Products: (1) The ability of the group to
protect itself politically; (2) Whether the group historically has been subjected to purposeful
discrimination; (3) Whether the trait in question is related to an individual’s ability to perform
and participate in society; and (4) Whether the members of the group have obvious, immutable,
and/or distinguishing characteristics that define them as a discrete group.

All other classifications are subject to rational basis review, which means that the
challenged classification will be upheld as long as the government can show that the
classification was rationally related to a legitimate governmental interest. Armour v. Indianapolis.
The plaintiff bears the burden of demonstrating that the government’s purpose is not supported
by the classification. Id.

Pursuant to its authority under § 5 of the Fourteenth Amendment, Congress is limited to

enacting legislation that prevents or remedies judicially recognizable violations of constitutional
rights. Boerne. In its attempt to remedy such a violation, it may regulate some activity that does
not violate the constitution, as long as the remedy is “congruent and proportional” to its
purpose. Id.; Katzenbach v. Morgan.

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