CONSTITUTIONAL LAW OUTLINE - CHACON

Constitution Basics
Purpose #1) 3 Branches- Checks & Balances
 Article I
o Legislative power to Congress (power to write laws)
o Creates Two chambers of congress
o Defines req for embers and composition of chambers
o Delineates Congressional legislative powers and specifies some limits on those
powers
 Article II
o Executive Power to President (power to enforce and execute laws)
o Defines qualifications for office
o Est. method for elections (plus 12th Am.)
o Delinetaes power of presidency
o Specifies means of removal
 Article III
o Judicial Power to Supreme Court
o Gives congress power to create lower fed cts
o Gives federal judicial authority over certain categories of cases
o Protects judges salaries and removals
o Purpose #2) Checks & Balances- States/Federal Governments
 Article IV
o Creates certain requirements for the relations of the states, namely “Full Faith and
Credit” to official acts and proceedings of other states.

1
 o Guarantees the citizens of each state the “privileges and immunities” of “Citizens
in the several states”
o Provides for extradition
o Provides for the return of fugitive slaves
o Permits Congress’s admission of future states and establishes Congressional authority
over other U.S. territory
o Extends federal protection to the states and guarantees to each state a “Republican
form of government
 Article V
o Specifies the method of amending the Constitution.
o Very difficult to amend
 Article VI
o Supremacy Clause: the laws and treaties made pursuant to the constitution are the
supreme law of the land. (This is known as the Supremacy Clause.)
Purpose #3) Limits federal government powers by individual rights
 Bill of Rights: First 10 Amendments
o Applies to government action only

o I: SEPARATION OF POWERS
o
o A. FEDERAL JUDICIAL POWER
 Article III Sec 2 Cl 2 grants original jurisdiction for cases involving diplomats and cases where
a state is a party
 Article II never expressly grants federal courts the power to review the constitutionality of
federal/state laws or executive actions
 Authority for Judicial Review:
o Marbury v. Madison (1803) [Chief Justice Marshall]
 Establishes the authority for the judiciary to review the constitutionality of
executive conduct/legislative acts
 Cannot increase jurisdiction of the courts or take away from it
 The Court distinguishes between ministerial and political actions. The former are
reviewable; the latter are not. This case involves a ministerial act.

2
  This means the court can strike down an act of Congress as unconstitutional
 Presumes that the Constitution is a controlling document that governs the
legality of statutes; and
 “it is emphatically the province and duty of the judicial department to say
what the law is.”
 Judiciary Act of 1789 authorized the Supreme Court “to issue writs of mandamus,
in cases warranted by the principles and usages of law, to any court appointed, or person
holding office, under the authority of the United States.”
 Marshall’s conclusion that the statute actually authorizes mandamus on
the Court’s original jurisdiction is not indisputable….
o Court has the power to review constitutionality of state court decisions
 Martin v. Hunter’s Lessee (1816): The Court overturns a state court ruling that it
found to be inconsistent with federal treaty law.
 Cohens v. Virginia (1821): The Court made clear that it had the power to review
constitutional challenges to state court convictions (although in this particular case, the Court
found that there was no basis for the petitioners’ claim).
o Court decision is binding on state laws and state actors
 Cooper v Aaron
o Gov of GA resists integration orders following brown v board of ed.
o Rule: State officials and state legislatures are bound by orders of the United States
Supreme Court based on its interpretation of the United States Constitution.
o Power vested in Judiciary in Art. VI
 Judicial Review Limits and Dangers:
o Interpretive limits – (Chacon doesn’t think this is very strong limit)
 Originalism
o Textualism, Original Intent, Original public meaning
 Modified Abstract Originalism
o Don't tether to meaning of the word as understood by original framers or public but
look to values of the framers. (e.g. due process, national ethos, etc.)
 Non-Originalism
o Process-based interpretations. (What should the role of the court be?)
 Deference to political processes. 
o Pragmatism: What are the costs and benefits of the decision.
o Historical Practice: Looking at past case law to inform on interpretation

3
 o Aspirational/Values-drive approach: Constitution gives us clues on system of values
and ty to make best society
 Judicial Tools
o Constitutional Structure 
o Use of Tradition 
o Judicial Precedent
o Historical Practices
 Dred v Scott
o Taney uses originalism to say that Black people are not citizens b/c framers did not
consider them as such.
o The citizenship question matters because only citizens can bring forward cases of
original jx. (diversity jx) By not being classified as a citizen then no original jx.
o Conflates being black with slave and property so declares ban on slavery in territories
(Missouri Compromise) unconstitutional under 5th Am.
o 14th Am. and Equal Protection Clause is direct response to Dred
 DC v Heller
o Scalia – Uses textualist approach for interpreting clause Yols used inc. historical
Practice (state consttuions) and judicial precedents (US v Miller)
o Breye and Stevens Dissent - Uses textualist approach for clause, process-based
approach in other respects (legislative deference) and judicial precdent (US v Miller)
o Congressional limits (under Art III) –
 Can expand or contract cases SCOTUS can review
o Ex Parte McCardle (1868). Congress passes a law to remove petitioner’s case of writ
of habeas corpus from SCOTUS jurisdiction. “Without jurisdiction the court cannot
proceed at all in any cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is that of announcing the fact
and dismissing the case.”
o Separation of powers
 US v Klein
o In passing a law that prohibited the federal Court of Claims from relying on
presidential pardons as evidence that the claimant had not “offered aid or comfort to
the enemy,” Congress violated the separation of powers.
o “Congress has inadvertently passed the limit which separates the legislative from the
judicial power.” Congress cannot “prescribe a rule of conformity with which the
court must deny to itself the jurisdiction” conferred to it by Congress.
o This law also “impair[s] the effect of a pardon,” thus infringing the constitutional
power of the Executive
o Justiciability limits
 Determines which matters fed cts can hear and which must be dismissed

4
  Standing
o Prevents the federal court from adjudicating the rights of those who are not parties to
a lawsuit
o Factors
 Demonstrate an injury in fact (particularized) or that an imminent injury will
occur
 Show Causal link between D’s conduct and P’s injury 
 Prove likelihood that injury will be redressed (not just speculative) by court
decision
o Lujan v Wildlife
 Litigants lacked standing because proof of injury was lacking.
o Clapper v Amnesty International
 Wiretapping laws were challenged based on the 4th Am.
 Litigants had not suffered harm yet; They only showed possible future harm
o Dept of Commerce v New York
 The district had standing b/c data showed that a citizenship question would
lead to people not participating in census (e.g. undocumented immigrants)
which would mean less funding for the district.
 Political Question Doctrine
o Baker v Carr (one person-one vote challenge)
 The challenge raised in this case was a justiciable question under the equal
protection clause.
o Rucho v Common Cause
 We conclude that partisan gerrymandering claims present political questions
beyond the reach of federal courts….”[J]udicial action must be governed by
standard, by rule,” and must be “principled, rational, and based upon reasoned
distinctions” found in the Constitution or laws. Judicial review of partisan
gerrymandering does not meet that requirement.
.

o B. FEDERAL LEGISLATIVE POWER

o 1. Congress and the States
 The Scope of Congressional Authority and Necessary and Proper Clause
o McCulloh v. Maryland (1819): [Chief Justice Marshall]

5
  broadly construe Congress’s power and narrowly limits the authority of state
governments to impede on federal government
 “In considering this question, we must never forget that it is a
constitution we are expounding"
 Article I, § 8, Necessary and Proper Clause empowers Congress to choose any
means NOT prohibited by the Constituion to carry out its express authority.
o Why can the state incorporate a bank?
 Historical practice: the bank “was introduced at a very early period of our
history, has been recognized by many successive legislatures, and has been
acted upon by the judicial department, in cases of peculiar delicacy, as a law
of undoubted obligation.”
 State opposition does not preclude this power because Congressional
power comes not from the states but from the people. (people not the
states ae sovereign)
 Constitutional silence on the bank question does not preclude a finding
of Congressional power to create the bank.
 The “necessary and proper” clause empowers Congress to achieve legitimate
ends through non-enumerated means.
 i.e. Enumerated powers  Implied powers
o Why can’t states tax the bank?
 federal laws are supreme and states may not make laws that interfere with the
federal government’s exercise of its constitutional powers.
 The power to tax is the power to destroy. The power to destroy is
incompatible with the federal power to create (and to preserve) the
bank.
 The American people “did not design to make their government
dependent on the states.”
o Necessary and Proper Clause Test (U.S. v Comstock - 2010)
 T]he relevant inquiry is simply ‘whether the means chosen are ‘reasonably adapted’ to the
attainment of a legitimate end under the commerce power’ or other powers that the
Constitution grants Congress to implement.”
 Background – federal commitment statute that gives the DOJ the ability to detain sexually
aggressive individuals beyond their sentence date
 Court – this is ok
o necessary and proper gives Congress broad powers to enact legislation
o a lot of previous similar statutes passed by Congress; history argument
o congress has implied power to criminalize conduct and reasonable to protect public
from federal prisoners
o doesn’t violate 10 Am since state can take action to release prisoner and
accommodates state interest
o statute related to enumerated powers through implied powers
o NFIB v Sibelius (2012)
 CC Morrison factors don’t apply here b/c it isn’t regulating the purchasing of

6
 insurance it’s regulating people’s failure to buy and that’s not commercial activity.
 Since individual mandate was not a valid exercise of the commer power, the NPC could not
be used as a basis for enacting it.
 Dissent: The IM is reasonably adapted to the attainment of a legitimate end under the
commerce power (otherwise, people would only get coverage once they were sick. Insurance
prices would skyrocket, and the plan would fail)

 To determine if a statute is constitutional under the necessary and proper clause, the Court will
consider:
1) the breadth of the “necessary and proper” clause;
2) the history of federal involvement in the area;
3) the soundness of the reason for the statute’s enactment in light of the Government’s interest;
4) the statute’s accommodation of a state’s interest; and
5) the scope of the statute (with a preference for narrowly tailored statutes).
United States v. Comstock (2010) (upholding statute authorizing civil commitment of sex offenders
in federal prison at the end of their criminal sentences)
the Necessary and Proper Clause gives Congress the ability to enact any law that is rationally related to
the implementation of a constitutionally enumerated power.

5. The Necessary and Proper Clause

 Necessary and Proper clause (Article 1 §8) is a grant of power, not limitation (McCulloch v.
Maryland)- means/end
 TEST: To determine if a statute is constitutional under the necessary and proper clause, the
Court will consider: (shift from means/end test)
o 1) the breadth of the N & P clause;
o 2) the history of federal involvement in the area;
o 3) the soundness of the reason for the statute’s enactment in light of the
Government’s interest;
o 4) the statute’s accommodation of a state’s interest; and
o 5) the scope of the statute (with a preference for narrow statutes).
 Applied: United States v. Comstock (2010): upholding statute requiring civil commitment of
sex offenders in federal prison; example of 5 considerations
o 1) McCulloch is broad in scope
o 2) long history of federal involvement; this statue is modest addition to what has
already been established

7
 o 3) sound reasons for the statues enactment in light of the government's interest in
safeguarding public
o 4) statute accommodates states interest
o 5) this statute has narrow scope
 National Federation of Independent Businesses v. Sebelius (2012): five justices reject the
argument that the individual mandate of ACA is constitutional exercise of N&P
o ACA creates the predicate to the exercise of an enumerated power, versus allows
Congress to exercise authority in service to a granted power
 United State v. Kibodeaux (2013): upheld Sex Offender Registration & Notification Act
(SORNA) and application to an offender who had completed his sentence prior to the
enactment because Congress could reasonably conclude this act helped the public and they
have broad power
o Dissent Scalia: argues SORNA doesn’t carry into execution any of the enumerated
federal powers and no matter how N & P it seems, Congress can’t do it unless they
are carrying into execution an enumerated power
  unclear how many steps removed it can be to be thought of as enumerated power in terms
of using N & P clause

o Interaction between federal and state power

 Prigg v Penn
o The United States Constitution grants exclusive authority to the federal government
for making laws regulating the capture and return of fugitive slave
 Art IV Sec 2
 C2: Duty of extradition of criminal offenders to state fled from
 C3: Laborers can escape to another state but shall be delivered to the
owner. 
o Penn Law requiring proving slave is owners is deemed unconstitutional

o 2. The Commerce Power

 Article 1, § 8,
o Congress has the power “[t]o regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes”
 Indian tribes are treated as dependent domestic nations
o Cherokee v GA
 Rule: Ct does not have original jx over suits by Indian tribes b/c Indian tribes
are not foreign nations per Art. I of the Constitution ( a dependent domestic
nation).
 Issues

8
  Why read about courts powers in Art I and not Art III?
 activity if there is a substantial effect on interstate activity, cumulative
 What is commerce? (Gibbons v Ogden)
o “it is intercourse.  It describes the commercial intercourse between nations, and parts
of nations”
o “The word “among” means intermingled with.
 Can go beyond state borders into the states
 Can be restricted to just commerce involving more than one state
 Internal commerce reserved to the state
o Rule: the federal law trumps conflicting state law regulating ISC
 Congress can regulate: United States v. Lopez [C.J. Rehnquist]
 the channels (highways, etc.) of interstate commerce
 the instrumentalities of interstate (methods to transport) commerce and
person/things in interstate commerce
 economic activities that have a substantial effect on interstate commerce;
 NLRB v Jones Steel (1937) – steel production labor has big indirect
impact on national economy;
 Wickard v. Filburn (1942) – private homegrown wheat can in the
aggregate negatively impact price stabilization efforts on wheat.
 Indirect activity is fair game if:
 Part of commerce
 Huge direct or indirect effect on ISC
 Doesn’t matter if its local
 Doesn’t matter if it is production, consumption, marketing, etc.
 When Congress regulates an interstate economic/commercial activity
o Rational BasisTest: whether Congress could have rationally concluded that the
regulated activity has a substantial effect on interstate commerce
 Deferential to congress; not much proof needed.
 If no reasonable connection between the regulatory means selected and the
asserted ends  unconstitutional

9
 o Can use Comprehensive regulatory scheme/Aggregate/Congressional findings
 Herat of Atlanta Motel v US (1964)
 Racial restrictions on hotel accommodations can be regulated b/c it has
a substantial and harmful effect upon ISC (e.g. travel)
 Katzenbach v McClung (1964)
 Racial restrictions on restaurant attendancecan be regulated b/c, even
though more local clientele, in the aggregate (e.g. Wickard) may have
a substantial and harmful effect on ISC (e.g. out-of-state produce).
 Gonzales v. Raich (2005):
 Marijuana grown for personal consumption must be regulated to make
the entire regulatory scheme affective (eradicate criminal market)
 Intrastate production of a commodity sold in interstate commerce is
economic activity and thus substantial effect can be based on
cumulative impact (different from Morrison)
 Return to rational basis and gov deference
 Dissent: Congress is overstepping laboratory of democracy (CA
referendum/legislature)
 When Congress regulates an interstate noncommercial/non-economic activity
o Test: requires the activity have a direct/substantial economic effect on interstate
commerce and CANNOT use aggregate if non-economic intrastate activity, findings
will help
o May be willing to uphold if statute contains a jurisdictional element that requires a
connection to interstate commerce
 United States v. Lopez (1995): invalidates Gun-Free Zone Act because it does
not regulate/affect economic activity. No study. Crime (possession of gun) is
not commercial activity. Connection is to education (state power), not
commerce. Upholding this means congress can regulate anything.
 Congress added jurisdictional element (gun had to move across state
lines).
 United States v. Morrison (2000): invalidates 13981 of Women Violence Act
(civil damages for victims of gender-motivated violence) b/c does not
regulate/affect economic activity; not enough evidence (dissent disagrees –
there is evidence and court should defer to congress).
 Result: Less deference to Congress
 NFIB v Sebellius (2012): Congress exceeds their power under the CC b/c it
requires market participation from everyone even those who don't want to
participate. Slippery slope argument ensues with the dreaded forced veggie
mandate. NPC cannot be used b/c congress is creating its own power.
 Dissent: (1)Wickard forced participation in commercial activity. (2)
Everyone will be part of the healthcare market at some point. (3)
Congressional findings show impact of those without insurance on
market. (4) Forced veggie hypo requires many inferences. It is not
ecessary like health insurance.
 Factors to consider when determining if the regulated activity substantially affects
interstate commerce
o Is the regulated activity economic [commercial] in nature?
 Cannot regulate inactivity (NFIB v Sebellius)
o Does the statute contain an express jurisdictional element?
o Did Congress make findings regarding the effects upon interstate commerce?
10
 o How close (or attenuated) is the link between the regulated activity and interstate
commerce?
 No longer can use aggregate of a non-economic intrastate activity to measure
impact on ISC, atleast if activity is traditionally in state sphere of control (US
v. Morrison)
o  10th Amendment Limits: Two approaches
 1. 10th is simply a reminder that Congress only may legislate if it has authority under the
Constitution OR
o Gilbert v Ogden - so long as Congress is acting within the scope of its commerce
clause power, the law will not be declared unconstitutional as violating state
sovereignty.
o US v Darby – The FLSA provisions on shipment of goods produced by workers
exceeding max work hours and earning below minimum wage is constitutional
based on CC power. As long as it is within the scope of congress's power. 10th Am
cannot be used as a basis for invalidating laws.
th
 2. 10 protects state sovereignty from federal intrusion and reserves a zone of activity to the
states for exclusive control [CURRENT MODE]
 Constitutional concerns at the center of approaches
o First, how important is the protection of state sovereignty and federalism?
 decrease likelihood of federal tyranny, enhance direct democracy, allow states
to be labs for new ideas, allows for political accountability, prevents cost
shifting onto states to carry out regulations
 framers hadn’t really anticipated a country with a robust national
economy
 sometimes state sovereignty leads to further tyranny and lesser
democracy
 when is it worth experimenting, when is it worth rejecting?
 who is in the best position to decide when further experimentation is
warranted or when there is enough knowledge to justify federal
actions?
 Is it the role of the judiciary to enforce 10th am or is it an issue left to
the political process?
o Second, should it be the role of the judiciary to protect state prerogatives or should
this be left to the political process?
 Unconstitutional if: [even if there is a compelling federal need for action]
o 1. Requires states to legislate (adopt laws/regulations) OR prohibits legislation
 New York v. United States (1992): invalidated Low-Level Radioactive Waste
Act (created a duty for states to provide for safe disposal of radioactive waste
in borders) because required states to take title; Take title gave only 2 options:
1. Accept ownership or 2. Regulate how Congress says to
 Impermissibly “commandeers” state governments - requires state
compliance with federal regulatory statutes would impermissibly
impose on states a requirement to implement federal legislation.
 Murphy v. NCAA: Professional and Amateur Sports Protection Act (PASPA)
prohibits state or local governments from allowing gambling on professional
or amateur sports activity.

11
  Act compels state legislation by requiring states to have laws
prohibiting sports gambling. The Court declared: “The PASPA
provision at issue here — prohibiting state authorization of sports
gambling — violates the anticommandeering rule. That provision
unequivocally dictates what a state legislature may and may not do.”
 Bottom line: Congress, if it chooses, can use its commerce clause
power to adopt a national law prohibiting sports gambling. But
Congress cannot force states to adopt laws doing so.
o 2. Forces state/local governments to administer federal mandates
 Printz v. United States (1997): invalidated Brady Handgun Violence
Prevention Act because required state/local law enforcement to implement the
law (specialized people vs. state broadly)/ issued directives requiring states to
address particular problem
 Dissent: Congress is using its cons. Powers and the reason for the
mandate is compelling.
 Constitutional if:
o 1. Congress may set standards states must meet or attach strings to grant money
 New York v. United States (1992): invalidated, but this part was okay
(incentives to dispose)
 Conditions cannot be unduly coercive (See NFIB v Sebellius)
 Political heat rationale
o 2. General applicability of laws affecting commercial activity and merely asks for
compliance not legislating (up in air)
 Garcia v SAMTA: Application of the FLSA t0 state/local govts was not a
violation of the 10th Am b/c “traditional” sphere of state power is too
subjective and the political process not the judiciary should challenge these
decisions (contested by NY)
 Reno v. Condon (2000): rejected 10th challenge, upheld Driver’s Privacy
Protection Act (DMV can’t sell information) because generally applicable to
state and private entities, does not require state to enact/enforce
law/regulation, but prohibits harmful conduct (not affirmative duties)
o 3. The Taxing and Spending Power and 10th Amendment
 Congress has broad authority to tax and spend, as long as other Constitutional provision
don’t limit it
 Power to tax for the general welfare
o General welfare can mean
 (1) to advance solely the enumerated powers OR
 (2) general; untethered from Art 1 enumerated powers
o United States v. Butler (1936) – (1) Congress’s power to tax and spend is a separate
power not confined by Congress’s other enumerated powers so long as serving the
general welfare and Congress does not violate another constitutional provision. (2)
Congress could not tax agricultural producers because production of agriculture is in
zone of state power so cannot regulate. (2 is no longer valid).
o Steward Machine Co. v. Davis (1937): upheld federal SSA unemployment tax
because enables the federal and state govts to work together ***

12
 o Sabri v. United States (2004): upheld federal law that prohibits bribery of state/local
entities because spending clause allows Congress to spend money on general welfare
and the Necessary and Proper clause authorizes them to take any rational steps to
prevent this money from being misspent; don’t have to be related
 Constitutional bars
 Might be a 10th Am bar (Murphy)
 Other Limitations:
o 1. Must be in pursuit of “general welfare”
o 2. If putting conditions on grant money must;
 a. make clear guidelines and
 b. condition must be related to federal interest
o 3. Exercised within constitutional restraints
o South Dakota v. Dole (1987): court upheld federal law imposing 21 year old drinking
age by withholding a portion of federal highway funds (5%) from any state
government that didn’t impose age limit because directly related to main purpose
(safe travel) and not coercive
 Considerations
 Defers to congress’s interpretation of what general welfare is
 Condition was openly shared with states
 Condition (increasing drinking age) was connected to purpose of
highway funding (increase public safety)
 GOOD FOR FEDERAL GOVERNMENT
o Nat’l Federation of Independent Businesses v. Sebelius (2012): regarding Patient
Protection and Affordable Care Act (PPACA), which required citizens not covered to
buy federally approved plan or face penalty
 Held: Individual mandate not justified under Commerce Clause (inactivity),
but is under Spending Power (is a tax)
 “The Federal Government may enact a tax on an activity that it cannot
authorize, forbid or otherwise control”
 Medicaid expansion is unconstitutionally coercive because Congress can’t
order states to regulate according to its instructions, but has to give states
genuine choice on accepting (this makes accept or lose ALL funding—a lot of
money vs. Dole)
 GOOD FOR STATE ARGUMENT

4. Congressional Power under the Reconstruction Amendments

 13th: §1- prohibits slavery, §2 Congress can legislate to enforce
 14th: §1- can’t abridge the privileges or immunities of citizens or deprive life, liberty, or
property without Due Process; §5 Congress can legislate to enforce
 15th: can’t deny the right to vote on race/color
 Early Cases-Slaughterhouse Cases (1872): Privileges OR Immunities Clause
o Butchers challenge monopoly; argue that monopoly abridges their privileges and
immunities in choosing a profession
o Held: this ONLY applies to the following laundry list of rights

13
  “to come to the seat of government to assert any claim he may have upon that
government, to transact any business he may have with it, to seek its
protection, to share its offices, to engage in administering its functions. He
has a right of free access to its seaports…to the subtreasuries, land offices, and
courts of justice in the several States.”
o Does not add anything different from the rights people had before passage of 14th; not
meant to protect individuals from state government actions or as a basis to invalidate
state laws
o never been expressly overruled, only ever mentioned again with Saenz and right to
travel
o  Regulating Private Conduct (look if prohibits racial discrimination OR if legislates
individuals vs. state actors)
 Early:
o US v. Cruikshank (1875): used Enforcement Act of 1870 to prosecute a group
involved in Colfax Massacre and violating freedman’s constitutional rights to
assembly, bear arms and vote. Held that 14th Am. does not apply to private conduct,
only state infringement of fundamental rights.
o Civil Rights Cases (1883): declared CRA of 1875 unconstitutional and adopted
restrictive view of Congress power.
 13th is limited to ensuring an end to slavery, but can’t be used to eliminate
discrimination (OVERRULED)
 14th § 5 only applies to government action and can’t be used to regulate
private behavior (GOOD LAW)
 Current: 13th Amendment can be used to prohibit racial discrimination
o Jones v. Alfred H. Mayor Co. (1968): upheld federal law which prohibits private
discrimination in selling/leasing property; sued under 42 U.S.C. § 1982, all citizens
have same rights as whites in property
 Held: Congress has the power under 13th to rationally determine what “the
badges and incidents of slavery” are and translate that into legislation
 Current: 14th Amendment § 5 can’t regulate private behavior
o United States v. Morrison (2000): court struck down civil damages provision of
Violence Against Women Act for exceeding § 5 ower because directed at individual
who committed criminal acts motivated by gender bias and doesn’t involve state
conduct.
 Cites Civil Rights Cases
 CA: § 5 was meant to give congress broad power, which contradicts this
narrow interpretation.
o Exceptions to Regulating Private Conduct
 § 1981 and § 1982 regulate private discrimination (purchasing land from private individuals
& contract between private individuals). 
 Possible to regulate private conduct through 13 Am. § 2 (silent on scope)
 Rationale is that Inability to contract or purchase property are vestiges of slavery so 13th Am
applies
o  Scope of Congress Power- 2 Views
 1) Congress can use §5 authority to expand rights
o Katzenbach v. Morgan (1966): upheld provision of the Voting Rights Act of 1965
(no person who completes 6th grade in Puerto Rican school, instructed in Spanish,
could be denied the right to vote for failing literacy test)

14
  Congress intent was to overturn Lassiter, where court upheld literacy test
 Held: this Act was proper exercise of §5 power because provided a remedy for
discrimination under EPC and the literacy test denied EP
 2) Congress can’t create new rights or expand the scope of 14th, but can only act to
prevent/remedy violations of rights and must be narrowly tailored
o City of Boerne v. Flores* (1997): court struck down Religious Freedom Restoration
Act, which prohibited governments from enacting any statute (even generally
applicable laws) that “substantially burdened” religious exercise unless it was the
least restrictive means to achieve a substantial governmental interest
 Congress intent to overturn Smith, which narrowed interpretation of the Free
Exercise Clause of 1st (banned ability to use peyote)
 Held: exceeded scope of § 5 because it altered the meaning of the FEC and
expanded the right; RFRA prohibited much that wouldn’t violate the
Constitution
o Key Points of Flores
 sharply limits the scope of §5 and allows/disallows:
 Congress to only prevent/remedy violation of rights already
recognized by the courts
 Justice Kennedy quoted Marbury v. Madison and wrote: “If
Congress could define its own powers by altering the
Fourteenth Amendment’s meaning, no longer would the
Constitution be ‘superior paramount law unchangeable by
ordinary means.’ It would be ‘on a level with ordinary
legislative acts, and like other acts, . . . alterable when the
legislature shall please to alter it.’ “
 Congress to create new rights or expand the scope of the 14th Am
 “Legislation which alters the meaning of the Free Exercise
Clause cannot be said to be enforcing the Clause. Congress
does not enforce a constitutional right by changing what the
right is. Were it not so, what Congress would be enforcing
would no longer be, in any meaningful sense, the ‘provisions of
[the Fourteenth Amendment].’
 TEST: Laws must be narrowly tailored by being “proportional
and congruent” to prevent/remedy EPC violations.
 A federal law that departs from the fundamental principles of federalism must be justified by
current needs.
o Shelby Ct v Holder (2013)
 Section 4(b) of VRA that required preclearance of election laws from states
with historic discriminatory election laws was unconstitutional because data
used was 40 years old and current data showed equal numbers of registration
across racial groups.
 POLICY argument: If court defers to congress then there is
infringement on state’s rights (there is equal sovereignty among the
states).
 Dissent believes race discrimination in voting is still a problem citing
records of denials by DOJ of jx requests and overall support from
Congress. Also, lack of violations is a sygn of the law’s effectiveness.
o  Authorizing Suits Against State Governments
 11th Amendment: acts a protection for states and limits federal power
15
 o adopted to strike from the Constitution clauses of Article III, §2, which authorize
suits against a state by citizens of another state/foreign countries
o Also been interpreted to bar suits of a state by one of its own citizens
 Hans v. Louisiana (1890)
 Ways around the 11th to hold state governments accountable
o 1. State officers can be sued
o 2. States can waiver 11th immunity
o 3. Congress acting pursuant to 14th §5 powers (but NOT federal powers) can
authorize suits against state governments in federal* court
 Fitzpatrick v. Bitzer (1976)
 Seminole Tribe of Florida v. Florida (1996): held the Indian Gaming
Regulation Act, which authorized suits against states was unconstitutional –
clarified can only under §5
o *Congress CANNOT authorize suits against state governments in state court without
their consent for federal violation ; Alden v. Maine (1999)
 Determining if statute is enacted under §5:
o 1. First step is explaining significance of Flores (see *1 Key Points of Flores)
o 2. Identify if Congress expressly provided individuals to sue the state within the
statute. (MUST plainly authorize)
o 3. If so, identify if this authorization is constitutional;
 If the claim receive heightened scrutiny because of the type of
discrimination/presence of fundamental right:
 Congress has BROAD authority and do NOT need to find pervasive
constitutional violations (but it’s easy)
 If the claim receives rational basis:
 Congress MUST find pervasive unconstitutional state conduct* (which
is impossible)
*Findings: Shelby County, Alabama v. Holder (2013): section 4(b) of
Voting Rights Act found exceeded scope because data was decades old
 Examples Cases with statutes that exceed scope of §5
o Kimmel v. Florid Board of Regents (2000): claim regarding age discrimination under
ADEA; no pay adjustments for older workers
o University of Alabama v. Garrett (2001): claim regarding disability discrimination
under Title I of ADA; breast cancer director of nursing fired
o In BOTH cases held exceeded scope because:
 1. Prohibits too much that would be constitutional
 2. No finding of pattern of constitutional violations
 Example Cases that do NOT exceed scope of §5:
o Nevada v. Hibbs (2003): claim regarding gender discrimination under FMLA;
unpaid leave time
 Gender is subject to intermediate, so easier for Congress to show a pattern of
constitutional violations
o Tennessee v. Lane (2004): claim regarding disability under Title II of ADA;
defendant crawled to courtroom bc no elevator
 Unlike Garnett, Title II protects individual in their exercise of fundamental
rights (access to courts)
o United States v. Georgia (2006): claim regarding disability under Title II of ADA;
paraplegic prisoner

16
  Congress can authorize suits/create remedies against States for acts that
ACTUALLY violate 14th (constitutional violation)

5. Powers of Wars and Conquest

 Power over Territories (Art. IV Section 3/4)
o United States territories are not a part of the United States for purposes of the
Constitution’s revenue clauses
 Downes v. Bidwell (1901)
 Foraker Act created civil Prican givt that imposed taxes on its goods,
which P challenged as a violation of Art I § 8’s right to uniform taxes
across the states.
 “PR is “foreign to the US in a domestic sense” (basically racist ct).
 Impact: SCOTUS very vague about which rights apply and which
don't (although, fundamental rights exist). The distinction between
unincorporated and incorporated territories matter b/c constitutional
rights would follow the flag. 
 PR citizens given right to vote by statute BUT NOT ENOUGH TO
INCORPORATE PR INTO US (Balzac)
o “Officers of the US” only deal with national matters and those that deal with local
affairs are outside scope of the Appt. Clause which would require senate confirmation
 Financial Oversight and Management Board of PR v. Aurelius Capital
(2020)
 The bd would have power to file for bankruptcy and supervise/modify
budget but would not be subject to any PR citizen accountability (and
also they have no voice in congress).
 Insular cases were not overruled or discussed as requested.
 Local/National distinction is not clear. National financial interests are
at stake so local characterization is dubious.
 Treaty-making Power (Art. IV Section 2)
o Concurrent power – Presidential Power in Art II Section 2.
 Need President and senate enacting treaty and congressional legislation
o Art. II (treaty power) + Art. VI power (supremacy power) trumps 10th Am.
 Missouri v. Holland (1920)
 Migratory Bird Treaty is enacted between GB and the U.S. Prohibits
the killing of migratory birds. U.S. passes statute based on treaty.
Miss. sues on basis of 10th Am bc they should have right over birds.
 If US mandated action from Miss. Then may violate anti-
commandeering rule
 Policy interests may have been the narrower reason for ruling
 War Power (Art. I Section 8)

17
 o Concurrent power
 The war power of Congress activated by armed conflict may extend beyond
the cessation of hostilities to permit Congress to address the negative effects
of war.
 Woods v Miller (1948)
 We conclude, in the first place, that the war power sustains this
[1947 national rent control] legislation.”
 A more limited interpretation “would render Congress
powerless to remedy conditions…of the war.”
o Con: Limitation is hard to find when purpose is to the remedy the impacts of war.
8. Nonenumerated Powers
o Immigration
 Plenary power - It is an implied power of “every sovereign nation,” and “essential to self-
preservation.”
 Concurrent power
o Legislative sources of power
 Citizenship clause - The Constitution grants congress power over citizenship
(plus NPC) to control citizenship.
 Commerce clause - The commerce clause power (plus NPC) is another source
of federal immigration power thru substantial effect on commerce
o Executive sources of power
 If we look at treaty clause and ambassador clause then executive would have
immigration power
 Preamble sets a pre-constitutional implicit plenary power in the regulation of
immigration 
 Limitations
o Judiciary is limited because these are “political questions” committed to other
departments.
 Chinese Exclusion Case/Ping v US (1889)
o Travel ban enacted on Chinese in violation of Burlingame Treaty with China. Ping is
denied re-entry into the US. Ping challenges CEA.
o Congress has broad power in matters of foreign affairs, including immigration, and
can go against treaties, based on inherent sovereign powers. (PQ)
 Ting v US (1893)
o Geary Act required people to carry a certificate when they were in the country to
show they had residency as of a specific date. Without it you could be removed by a
federal court. Need 1 credible white witness. Ting and others in the case had lived in
the U.S. for years.
o Congress has an absolute right to deport non-naturalized foreigners, just as it
has an absolute right to deny them entrance into the country. The Constitution
grants Congress broad powers to deal with all aspects of foreign affairs and the right
to deport is an inherent right of every sovereign nation.

18
  Trump v. Hawaii (2017)
o A presidential proclamation placing entry restrictions on foreign nationals of
particular countries is sufficiently justified by national-security concerns to survive
rational basis review despite evidence of racial animus.
o Law was analyzed in rational basis review b/c govt is given deference in matters
concerning foreign nationals outside the US
 CA: Plaintiffs are USC/LPR family affected within the US so we should have
a more bona fide justification for discrimination
 CA: Lack of waiver approvals and Trump statements are evidence of racial
animus underlying the law
 Takeaway: Pres has immense amount of power on immigration matters (under
INA 212(f)) president is given the power by congress to basically upend
INA’s complex legal scheme) by restricting the entry of aliens if their entry
would be detrimental to the interest of the US.
o Indiana Affairs
 Congress has plenary power over Indian affairs
 Constitutional source of power over Indian Affairs?
o Pre-1871 treaties (no power now)
o Commerce Clause power
o “Pre Constitutional power inherent to sovereignty” in the national security context
 Adoptive Couple v Baby Girl (2013)
o ICWA does not apply here when parent never had custody of child (statutory v.
constitutional decision)
 Constitutional challenge: exceeds commerce clause power
7. Nondelegation Doctrine – Congress Conferring Power onto the Executive Branch
 Previously, Congress could not delegate its legislative power to administrative agencies
o In Panama Refining Co. v Ryan (1935), the court found a provision delegating the
President the power to pass policy and rules on the production and transportation of
state oil production to be an over delegation of congressional power because no clear
standards or limitations were laid out.
o In Schechter Poultry Corps. v US (1935), a provision permitting the President to pass
local ordinances affecting the local poultry industry was deemed to be an
impermissible abdication and transfer of an essential legislative function.
 Now, all delegations, no matter how broad, have been upheld; judicial deference that broad
delegations are necessary in the complex modern world and judiciary is ill-equipped to draw
meaningful lines
o In Whitman v. American Trucking Assn., Inc., (2001) the Court upheld the
delegation and the constitutionality of the EPA’s air quality regulations because the
statute’s language that the “EPA . . . set air quality standards at the level that is
‘requisite’ — that is, not lower or higher than is necessary — to protect the public
health with an adequate margin of safety, fits comfortably within the scope of
discretion permitted by our precedent” thus satisfying the intelligible principle.
o In Gundy v. US (2019), the Court authorized the AG to enforce the Sex Offender
Registration and Notification Act against pre-act offenders, concluding that it does
not violate the nondelegation doctrine under the intelligible-principle standard
because the legislative history and text of the statute focuses on the feasibility of its
implementation not if and how someone is registered. (they read “feasibility” in).

19
  Gorsuch dissent: Seems a bit off that AG has complete discretion over what to
do with this subset of sex offenders and that he’s a prosecutor.
 Conservative justices hint to giving NDD more teeth in the future.
o See Trump v. Hawaii
 Delegation Pros and Cons
o Pros – Delegation is done by a democratically elected group, some politically
unpopular decisions should be insulated by handing them off to neutral experts,
regulations keep laws alive by updating them when needed rather than changing them
via congressional vote (i.e. more efficient)
o Cons – Delegation greatly increases the executive branch’s power and limits the
power of the other branches (they have enforcement and judicial powers on certain
issues), it is less democratic to let unelected people craft laws and conflicts with
constitutional notion of federal legislative power
7. Congress’s Checks or Grants of Power on the Executive
 Line Item Veto= unconstitutional
o Clinton v. New York (1998): struck down federal statute that created authority for
President’s line-item veto, which allowed President to cancel parts of bills
 Majority (formalist approach): This is to much like writing law; procedures
for enacting/vetoing laws contained in Constitution must be strictly adhered
to.
 Dissent (functionalist approach): The budget has become more complicated
over time and the Framers knew this.
 Legislative Veto = unconstitutional
o in the 1930s, corresponding to thegreat growth in federal administrative agencies,
Congress created the “legislative veto” as a check on the actions of administrative
agencies.
o LV is Included in statutory provision and authorizes Congress OR one of house or
committees to overturn an agency’s action
o INS v. Chadha (1983): struck down legislative veto
 The action by the House to overturn Chadha’s suspension of removal was
“was essentially legislative in purpose and effect since it “alterered the legal
rights, duties, and relations of persons, including the Attorney General,
Executive Branch officials and Chadha.”
 Majority (Formalist Approach): If Congress wants to legislate to overturn
an executive action, there must be bicameralism (passage by both houses of
Congress) AND presentment (giving the bill to the President to sign/veto);
Anything less is legislative veto and impermissible.
 White Dissent (functionalist approach): LV is a check on the broad
delegations of legislative power that also was not laid out by the Framers.
“[w]ithout the legislative veto, Congress is faced refraining from giving away
its legislative powers or the Sisyphean feat of writing specific enough laws
needed in the modern age.

C. THE FEDERAL EXECUTIVE POWER

1. Express and Inherent Presidential Powers
 Article II, §2, debate over whether intended to grant president inherent powers not expressly
enumerated
 Four Approaches:

20
   Model 1)- President has no inherent presidential power; can only act if there is express
Congressional or Constitutional authority
o grants President ONLY powers found in Constitution or Congress
o Youngstown v. Sawyer (1952): struck down executive order to take procession of
steel mills to keep them running during a strike; under Model 1 because no authority
to do this
  Model 2)- President has inherent power and can act without express authority as long as
he does not infringe on the powers of another branch
o Allows courts to invalidate President actions
o See United States v. Nixon
  Model 3) President can take any action that is not prohibited by the Constitution or
Congress; When the Constitution and Congress are silent, the President may act unless
Congress tells the President to stop.
o See it as Congress’s responsibility to act to stop Presidential infringement
o this model analyzes 3 zones of presidential authority
 1. President acts pursuant to an express/implied authorization by Congress;
authority at maximum and presumptively valid.
 2. President acts in absence of congressional grant/denial of authority and only
relies on his own independent power; sometimes permissible
 issues like executive privilege, impoundment, recession of treaties,
executive agreements, removal of executives from office
 when concurrent powers constitutionality is likely “to depend on the
imperatives of events and contemporary imponderables rather than on
abstract theories of law.”
 3.President takes measures incompatible with the expressed/implied will of
Congress; authority at lowest ebb
  Model 4) President has broad authority and can act unless violates Constitution; ex. Fight
terrorism, protect national security
o Federal laws restricting the President’s power would be unconstitutional under this
approach
o See Curtiss-Wright
2. Executive Privilege
 President’s privilege to keep conversations with advisors secret is not absolute in a criminal
trial where such privilege would interfere with judicial dutiess
o United States v. Nixon (1974) (MODEL 2): held Nixon must produce the tape
recordings from Watergate; held:
 Executive privilege is not absolute.
 Absolute privilege infringes on judiciary’s ability to do its job
 Limited to diplomatic, military, foreign affairs
 Need for evidence at a criminal trial outweighs executive privilege
 The President is not immune from a Congressional subpoena for their private papers Trump
v. Mazars (2020) (MODEL 2)
o Congress has the power “to secure needed information in order to legislate” and can
request such documents “related to and in furtherance of” a legitimate legislative task.
o Test for subpoena request:

21
  1) evaluate whether the request is justified in light of the legislative purpose;
 2) ascertain whether the request is no broader than necessary;
 3) scrutinize Congress’s justification; and
 Suggests less concern with congress’s needs than judiciary’s needs in
Nixon.
 4) carefully assess the burden on the President
5. Presidential Immunity in Law Suits
 POTUS is entitled to absolute immunity from suits for damages based on actions taken in his
official capacity. Nixon v. Fitzgerald (1982)
 POTUS should not have to walk on eggshells b/c it affects their ability to
perform their duties (although maybe there should be lesser immunity for
major fuck ups…)
 POTUS is not immune from suit for actions allegedly occurring prior to his assuming the
presidential office unrelated to his official duties. Clinton v. Jones (1997)
o (1) This is not an impermissible interference of SOP by the judiciary since POTUS is
not above the law (2) the proceedings will not be a distraction
since it can take into account POTUS’s duties and (3) harassment is not an issue since
few POTUS’s have been sued for unofficial conduct.
 No immunity from a subpoena for the President’s personal documents in a state court
criminal proceedings Trump v. Vance (2020)
o The proceedings will not be a diversion or enourcage harassment (see Clinton v.
Jones) an will not create a stigma since everyone is subject to the same laws.
o No heightened standard for subpoenas except for subpoena-specific constitutional
challenges
 Uncertain whether POTUS can be criminally prosecuted while in office
o Known remedies include election, impeachment, and removal.
 Impeachment
 Little hard law; very political
 What is a high crime and misdemeanor that would satisfy
impeachment?
 NO CONSENSUS
 Violation of law? Gross negligence of duties?
 Does criminal conviction need to be shown beforehand?

3. Appointment Power [Article II, § 2]

22
  President has exclusive power to nominate high agency officials, such as cabinet members,
ambassadors, and heads of agencies.
o Senate has power to confirm or reject nominees for such high-level nominees
 Congress can delegate the appointment of “inferior officers” (but can’t give it to itself/its
officers)
  Functional test used to distinguish “principal officers” (appointed by the President) from
“inferior officers” (who can be appointed by others).
o Factors include:
 Whether they are removable by a higher Executive Branch officer (which
suggests inferior officer status);
 Whether their duties are limited;
 Whether their jurisdiction is limited; and
 Whether their term is limited.
 Morrison v. Olson (1988): upheld constitutionality of having federal judges appoint
independent counsel for trying crimes by high ranking govt officials after AG conducts an
initial investigation because they are “inferior” and can be removed by AG for cause.
o Removable by higher exec officer, the AG (though not President)
o Can only investigate/prosecute (no judicial/rulemaking powers)
o Their investigations are assigned
o Their duties are completed once the investigation and prosecution ends
 Dissent: (CURRENT FORMALIST VIEW) IC is not an inferior officer b/c they can
decide if they should investigate (more powerful than DOJ attys), investigation can be broad,
investigation can last as long as they deem it necessary, and they can only be fired for cause.
President cannot fulfill their duty to execute the laws if they do not have full control of the
executive branch even if abuse is a risk.

4. Removal Power (mirror image of appt power)

 Article I grants limited power and power to remove is not enumerated
 Article II grants general power and the power to remove is not limited
  RULES: 1. In general, President may remove executive officials;
o Myers v. United States (1926)
 “The power of removal is incident to the power of appointment, not to the
power of advising and consenting to the appointment, and when the grant of
the executive power is enforced by an express mandate to take care that the
laws be carefully executed, it emphasizes the necessity for including within
the executive power as conferred the exclusive power of removal.”
o 2. Congress can limit by statute if:
 a) independence from president is desirable

23
  b) law merely limits removal to instances where good cause is shown (rather
than prohibits removal)
o 3. Congress can’t create double layer of removal
o 4. Congress can’t limit removal on purely executive officers (postmaster, secretary of
state, AG) because cabinet is there to carry out President’s policies (except if
independence desirable; see Wiener)
o 5) Congress can limit (with good cause) independent regulatory agencies
(COMMISSIONS)
  TEST TO USE:
o 1) Is the office in which independence from President desirable?*
 Yes= Congress may limit
 * No real case law on this, analyze from functional/contextual standpoint
exploring if there are good reasons why the office should be independent of
President
o 2) Are Congress’s limits on removal Constitutional?
 a. Can’t completely prohibit
 b. Can’t give itself power (except impeachment)
 c. Can’t create double layer of removal
 d. Purely executive officer or independent regulation agency?
 d. CAN limit to good cause
  Applied:
o *Myers v. United States (1926): upheld; Congress can limit firing postmaster
o Humphry’s Executor v. United States (1935): upheld ability of Congress to limit
Pres. removal of an FTC commissioner because it is a multi-body agency (Seila view)
although previously hinged on whether quasi-legislative/quasi-judicial in nature
o Wiener v. United States (1958): upheld the fact that President CAN’T remove
executive officers where independence from President is desirable, like War Claims
Commission (old view)
o *Bowshar v. Synar (1986): can’t give itself power to remove executive officers;
power in the hands of officer who is subject to removal only by itself
o *Free Enterprise Fund v. Public Company Accounting Oversight Board (2010):
there can be no double layer of insulation from removal (principal officer and
inferior officer)
o *Seila Law v CFPB (2020: Congress cannot limit President’s power to remove a
single director (principal officer) of a regulatory agency because it contradicts
President’s removal power and duty to faithfully execute the laws which goes against
SOP doctrine. President should have control of the executive branch.
 Dissent: Insulation and accountability is good sometimes and the judiciary is
not well-positioned to weigh the benefits/costs of this issue.

6. Foreign Policy

24
  Foreign policy considered a zone of inherent executive authority
o United States v. Curtiss- Wright (1936); upheld broad delegation of power to
President by Congress to restrict sale of arms to warring Latin American countries
 Ct’s rationale: practical, historical, functional (US speak with one voice)
 President has power to make executive agreements (agreements between US and foreign
country, effective when signed by President)
o In comparison to Treaties (agreements between US and foreign country, negotiated
by President, BUT effective AFTER ratified by Senate)
o Dames & Moore v. Regan (1981): upheld Carter’s executive agreement with Iran
where Iran would free hostages in exchange for US lifting freeze in Iranian assets in
US
 President has power to settle claims determined to be a necessary incident to
the resolution of a major foreign policy dispute
 Congress implicit support in President’s action by not forbidding it and
legislative history of allowing it.
 Article II of the Constitution grants the U.S. president the exclusive authority to formally
recognize a foreign sovereign through executive power that Congress may not contradict via
statute.
o Zivotofsky ex rel. Zivotofsky v. Kerry (Zivotofsky II) (2015): upheld State
Department policy put forth by the U.S. president, which provided that a passport
could only list Jerusalem as the place of birth in contradiction of § 214(d) of the
Foreign Relations Authorization Act.
o Majority relies on historical practice of president recognizing foreign sovereignty and
Reception Clause Art II Cl 3 whereas congress foreign powers are enumerated only.
o When President acts in contradiction to congressional act, president ONLY has
constitutional authority
7. War Powers
 The President does not have inherent power to seize property via executive order, even in
times of war. It must get permission from Congress or the Constitution.
o Youngstown Sheet & Tube Co. v. Sawyer (1952)
 Black: No Inherent Executive Power. Congress expressly rejected the use of
seizure to solve labor disputes as unconstitutional when it considered the
drafting of the Taft-Hartley. The Constitution also does not have express
language giving president this power. President does not have statutory
authority or constitutional authority
 Douglass: Interstitial Executive Power. While President might act without
express congressional or constitutional authority if they don’t usurp another
branch, here president was usurping congress’s taking/spending power.
 Jackson: Legislative Accountability. President may have power in cases
where Constitution and Congress do not prohibit the action, but here Congress
had historically denied the president control of industries.
 Vinson: Broad inherent authority. President has inherent authority in some
areas unless acts against Constitution.
 President has broad powers as commander in chief to use US troops in foreign countries
o has power to deploy military forces w/o formal declaration of war in response to at
attack upon the US; has the power to seize property during wartime, unless congress
denies him that power; but does not have power to declare war
o Unsettled:

25
  Whether can commit forces w/o congressional approval to aid US ally under
attack
 Whether President may order preemptive strike in anticipation of enemy
attack
o SCOTUS can dismiss challenges to president’s uses of war powers if deemed to be
political questions
o  Pre-September 11 Supreme Court cases
 Johnson v. Eisentrager (1950): The constitutional guarantee of habeas corpus did not extend
to “enemy aliens” detained by the United States on foreign soil.
o Matthews test: balance “the risk of erroneous deprivation of the private interest if the
process were reduced and the probable value, if any, of additional or substitute
safeguards.’”
 Ex Parte Quirin (1942): Unlawful enemy combatants captured in the U.S. – including U.S.
citizens – could be tried by military commissions for war crimes and were not entitled to the
status of prisoners of war.
 Ex Parte Milligan (1866): The use of military tribunals to try citizens when civilian courts
are still operating is unconstitutional.
o  War on Terrorism
 Detention Cases: involve rights of those being detained as part of war on terrorism to have
access to the courts
o Suspension Clause: Article I; § 9, cl. 2
o “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it.”
  An American citizen apprehended in a foreign country and held as an enemy combatant
must be accorded due process and meaningful factual hearing.
o Hamdi v. Rumsfeld (2004): Although Congress authorized the detention of a citizen
combatant with the passage of the AUMF, due process demands that US citizens held
as enemy combatants be given a meaningful opportunity to contest the factual basis
for that detention before a neutral decision-maker.
  Government probably has no authority to detain an American citizen arrest in the US as
an enemy combatant, without being charged with a crime. Hasn’t been decided.
o Rumsfeld v. Padilla (2004): New York federal court was the improper venue for a
habeas petition filed by a US citizen arrested in the US and detained as an enemy
combatant in South Carolina. [The Court declined to rule on the substantive
question.]
  Those being detained in Guatanamo Bay, Cuba have the right to have a habeas corpus
petition heard in Federal Court. (Rasul v. Bush)
o Congress passed two statutes in response:
 1. Detainee Treatment Act (DTA) of 2005: Federal courts could not hear
writs of habeas corpus by “enemy combatants. Provides for CSRT and
military commission proceedings in Guantanamo with limited review by the
D.C. Circuit for noncitizens held as “enemy aliens” and eliminates habeas
jurisdiction for these claims.
 Hamdan v. Rumsfeld (2006): The DTA does not apply to pending
habeas matters
 2. Military Commission Act of 2006: The DTA does apply to pending habeas
matter. Federal court habeas jurisdiction is eliminated in these cases.

26
   Noncitizens apprehended in foreign land, held as enemy combatants have a right to writ
of habeas corpus
o Bush v. Boudmiene (2008): Unconstitutional to deny habeas corpus to noncitizens
held as enemy combatants. (congress could have suspended habeas corpus in times of
rebellion but didn’t)
 The MCA’s retroactive application of the DTA to pending habeas matters is
an unconstitutional suspension of the writ
 Petitioners are entitled to habeas in Gitmo and the DTA procedures are not an
adequate substitute for habeas.
 Kennedy DOES NOT say that the constitution controls everywhere where US
exerts power, only where there are detainees and it is possible to exercise
judicial supervision (narrow to Gitmo)
  Post-Boumediene hearings have not been characterized by much more robust procedural
protections….

II. FEDERALISM: DIVISION OF POWER BETWEEN STATE & NATIONAL

A. FEDERAL LIMITS ON STATE POWER

o 1. Preemption (Congress has acted)
 Source of Preemption is the Supremacy Clause of Article VI provided that the Constitution,
and laws and treaties made pursuant to it, are the supreme law of the land.
o States do not have the right to impose laws on Indian nations.
 Worcester v GA
 Courts look to congressional intent to determine preemptions; base it on fragments of
statutory language/random statements in legislative history; degree of detail of the federal
regulation
o Gade v. National Solid Wastes Management(1992): summarized tests for preemption
  Express preemption: Congress enacts express preemptive language in statute
o Lorillard Tobacco Co. v. Reilly (2001): invalidated a MA law that prohibited outdoor
advertising for cigarettes, like billboards, within 1,000 feet of playgrounds or schools
because a federal law adopted in 1969 stated “any requirement or prohibition based
on smoking and health imposed under State law with respect to the advertising or
promotion of cigarettes.”
o Whiting v. Chamber of Commerce (2011): held that the Legal AZ workers act, which
prohibited employers from hiring undocumented workers with a licensing exclusion,
did not preempt the states from imposing penalties with regard to licensing
  Implied preemption: inquiry turns on the objective of Congress
o a) Conflict Preemption: complying with both federal and state regulations is a
physical impossibility; usually about types of standards set- federal set minimum
standards and can permit states to have stricter OR Fed. standard is THE standard)
 FL Lime & Avocado Growers v. Paul, Director, Dept. of Agriculture of CA
(1963: USDA standards for avocadoes, CA set stricter rule for transporting or
sale of ones less than 8% oil
 NO preemption because USDA was minimum standard, not ceiling,
and they can comply with both

27
 o b) Obstacle preemption: Compliance with both state law and fed law is possible but
the state law interferes with a federal goal
 PG&E v. State Energy Resources Conservation and Development Commn.
(1983): CA law prevented construction of any new nuclear power plants until
determined there is a safe way of disposing nuclear waste
 NO preemption because didn’t impede the objectives of the Atomic
Energy Act which was to promote nuclear power
 Congress left sufficient authority in the state to allow the development
of nuclear power to be slowed or stopped for economic reasons
 c) Field preemption: clear congressional intent that federal law should exclusively occupy a
field
o  Immigration/Foreign Policy: Federal government has exclusive authority in
dealing with foreign nations/immigration, no state can have its own foreign policy
o Hines v. Davidowtiz (1941): the Court held a federal law preempts a PA immigration
law, which required every alien over 18 years to register once a year; preempted even
though complemented federal law/absence express language because alien
registration is a field which affects international relations.
o Arizona v. United States (2012): provisions of SB 1070
 Section 2b: requires state officers to make reasonable attempt to determine
immigration status  not preempted b/c merely allows state law
enforcement officials to communicate with INS office during otherwise lawful
arrests which complements current law.
 CA: requiring immigration status checks on each arrested would go
against criminal migrant prioritization under Obama Obstacle)
 limitations exist that protect individual rights.
 Section 3a: must carry papers showing lawfully in US  field preemption
 See Hines: fed govt has an extensive regulatory scheme on alien
registration
 Section 5c: crime to work w/o authorization, which is not penalized under
federal law obstacle preemption b/c targeted employers and not employees
 If characterized as field preemption, it would be less convincing b/c
business is considered police power.
 Section 6: officers have broad arrest authority potential obstacle
preemption b/c allowing state to make own immigration policy and gives
broader authority than the powers given to federal immigration agents
 Other considerations – US wants to speak with one voice on issues
dealing with foreign matters, PO not trained to spot removable
offenses
 Executive powers, not just statutes, can preempt
 Murphy v. NCAA
o Fed law PASPA makes it unlawful for states to authorize sports gambling. Does not
make it a crime to participate in sports gamblling. Only orders states to not legalize it.
o Goes against 10th Am by issuing orders to state legislatures
o Preemption does not apply because preemption is about preempting private actors
NOT states. Here, congress did not regulate private actors, it regulated states.
o REMEDY: First regulate private actors conduct and THEN can preempt state actions

2. Dormant Commerce Clause

28
 When Congress has NOT acted (or judiciary decides federal law does not preempt state/local
law) can challenge under dormant commerce clause (inferred from Congress’s commerce
power in Article I, § 8)
• If a state law is discriminatory, there is a strong presumption that it is
unconstitutional. It will be upheld only if it is necessary to achieve an important,
legitimate state purpose.
• If a state law is nondiscriminatory, there is a presumption in favor of the
constitutionality of the law. It will be invalidated only if the burdens on interstate
commerce outweigh the benefits.
  When is a state law “discriminatory” for purposes of the dormant commerce clause?
o 1. The law is discriminatory on its face.
 City of Philadelphia v. New Jersey (1978): striking down facially
discriminatory law
 Maine v. Taylor (1986): upholding facially discriminatory law
o 2. The law has a discriminatory purpose.
 Dean Milk Co. v. Madison (1951): Madison’s prohibition on sale of
pasteurized milk bottled outside the Madison area was discriminatory and
unconstitutional
o 3. The law has a discriminatory effect.
 Compare Hunt, Governor of the State of North Carolina v. Washington State
Apple Advertising Comm’n. (1977) (discriminatory effect) with Exxon Corp.
v. Governor of Maryland (1978) (no discriminatory effect).

 Discriminatory laws
o If a state law is discriminatory, there is a strong presumption that it is
unconstitutional. It will be upheld only if it is necessary to achieve an important,
legitimate state purpose.
 “Necessary” means that the law must be the least discriminatory means of
achieving the stated goal.
o See e.g. Maine v. Taylor (upholding a ban on out-of-state golden shiner where state
established that the ban was necessary to protect Maine’s fisheries); Dean Milk Co. v.
City of Madison (striking down an ordinance that limited sales of milk where
“reasonable and adequate alternatives” existed to achieve the city’s purported health
safety goals).
 Nondiscriminatory laws
• If a state law is nondiscriminatory, there is a presumption in favor of the constitutionality
of the law. It will be invalidated only if the burdens on interstate commerce outweigh the
benefits.
• Compare Pike v. Bruce Church (1970) (striking down a nondiscriminatory law) with
Bibb v. Navajo Freight Lines, Inc. (1959) (upholding a nondiscriminatory law)

  Exceptions
o Congressional Approval: State laws burdening commerce are permissible, even
when would otherwise violate DCC, if they are approved by Congress; importation
and sale of alcoholic beverages, regulation of insurance industry, one of the few areas
where congress can overrule a SC decision (Can still bring claim under EQ or P&I)

29
  Western & Southern Life Insurance Co v State Board of Equalization of CA
(1981): state law imposing a discriminatory and retaliatory tax on out of state
insurance companies was permissible because the McCarran-Ferguson Act
removes entirely any commerce clause restriction on a state’s power to tax the
insurance business
o Market participation: A state or local government may favor its own citizens in
receiving benefits from government programs or in dealing with government-owned
businesses.
o When states are literally participants in the market
 Reeves, Inc. v. William Stake (1980): upheld a cement company owned by
SD charging less to in-state purchasers and more to out-of-state purchasers
 “The basic distinction between States as market participants and States
as market regulators makes good sense and is sound law. The
Commerce Clause responds principally to state taxes and regulatory
measures impeding free private trade in the national marketplace.
There is no indication of a constitutional plan to limit the ability of the
States themselves to operate freely in the free market.”
 Not limited to state owned businesses, can also favor citizens receiving
benefits from government programs
 White v MA Council of Construction Employers: Court upheld city
ordinance that required all construction projects financed by city must
use workforce composed of at least 50% residents of city
o Limits to the Exception: distinction btwn state as market regulator and market
participant
 South Central Timber v. Wunnicke, Commissioner, Dept. of Natural
Resources of Alaska (1984): struck down AK law that required purchasers of
state owned timber have timber processed in AK before it is shipped out of the
state. Distinction btwn ablity of a state to prefer its own citizens at initial
disposition of goods when it’s a market participant and stating attachment of
restriction on disposition subsequent to the goods coming to rest in private
hands

3. Privileges and Immunities Clause

 Article IV Section 2:”The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.”
 Rule: A State may not discriminate against out-of-state citizens with regard to fundamental
rights or earning a livelihood unless the discrimination is necessary to achieve a substantial
government interest
o Fundamental righst are (1) civil liberties or (2) important economic activities
o Corporations and aliens cannot use the privileges and immunities clause.
 What is an important economic activity?
o Livelihoods at stake: A South Carolina law that charged out-of-state residents 1000
times more for a shrimping license than in-state residents violated the Privileges
and Immunities clause. The state’s conservation goals, while an important
government interest, did not justify the discrimination because it impacted out-of-
stater’s livelihoods. Toomer v. Witsell (1948)

30
 o Livelihoods not at stake: A Montana law that charged out of state residents
substantially more for a big game hunting license than in-state residents did not
violate the clause. The Court concluded that “[i]t is not a means to a nonresident’s
livelihood” so the conservation argument prevailed. Baldwin v. Fish and Game
Comm’n of Montana. (1978)
 CA: Some livelihoods could be at stake if hunting is a supplemental income or
if surrounding businesses rely on hunting tourism.
o What are important state interests?
o The Court struck down New Hampshire’s limitation on state bar membership to state
residents. Supreme Court of New Hampshire v. Piper (1985)
 The ability to practice law was covered by the Privileges and Immunities
Clause since it was a livelihood issue.
 The state offered several justifications for the discrimination but ALL rejected
such as OOS lawyers:
 Lack familiarity with local rules and procedures;
 Are less likely to behave ethically;
 Are less available for court proceedings; and
 Are less likely to do pro bono work.

III. STRUCTURE OF CONSTITUTION’S PROTECTION OF CIVIL RIGHTS/LIBERTIES

 Today, All of the Bill of Rights are incorporated through the DPC of the 14th Am. except:
o 3rd A right to not have soldiers quartered in a person’s home
o 5th A right to grand jury indictment in criminal cases
o 7th A right to jury trial in civil cases
o 8th A right against excessive fines.
 Overturned in Timbs v. Indiana (2019)
 Selective Incorporation over Total Incorporation?
o Selective incorporation won out and we only incorporate rights that are sufficiently
fundamental.
o Practically, speaking almost all BOR apply to the states.
 Questions central to debate:
o Whether the Framers of the 14th Am intended it to apply the BOR to the states
o Whether it is desirable for state and local govts to remain autonomous by freeing
them from the application of the BOR. (federalism concern)
o Is selective incorporation too subjective regarding what is fundamental or is total
incorporation too much judicial oversight and a damper on democracy?
 In Gitlow v. New York (1925), the Court first held that the 1st Amendment right to free
speech applies to states via the due process clause.
 In Powell v. Alabama (1934), the Court first held that a state may not deny counsel in capital
cases, holding that the right to counsel in this context was required to comply with the “due
process” requirement of the 14th Amendment.
 In Ramos v. Louisiana (2020), the Court decided that state juries had to be unanimous, just
like federal juries. (The question now before the Court is whether this applies retroactively).

31
  In McDonald v. City of Chicago (2010), the Court held the 2nd amendment applies to state
and local governments. In Heller (2008), the Court held the 2nd amendment applied to the
people’s right to have guns against the fed gov, this is an expansion on that.
 Considerations for Deciding Incorporation
o Does history find the right to be fundamental?
 Dissent thinks history is subjective and advocate for living consritution
focused on current customs
1. Is it the govt?

o 1. State Action Doctrine

 The state action doctrine articulates the principle that the Constitution’s protection of
individual liberties apply only to the government (government includes government and
government officers at the state, federal and local level)
o Private action generally need not comply with the Constitution.
  Exceptions:
 1) Public Functions Exception: If a private entity performs a task that traditionally
exclusively was done by the government, the entity is performing a public function and the
Constitution applies to its conduct.
o Jury selection: A private litigant in a civil case may not use peremptory challenges to
exclude jurors on account of their race because the exercise or peremptory challenges
invokes state action. Edmonson v. Leesville Concrete Co. (1991)
o Elections: Running elections is a public function because it was traditionally done by
the state. Terry v. Adams (1953)
o Company towns are subject to constitutional constraints: Marsh v. Alabama (1946)
o Private utilities are NOT performing public functions:
 Jackson v. Metropolitan Edison Co. (1974): the Court held the public
functions exception did not apply to a highly-regulated private utility. The
court said there was no close nexus between the state and the challenged
action of the regulated entity such that the private entity’s action is effectively
that of the state. No discrimination.
 2) Entanglement Exception: If the government affirmatively authorizes, facilitates or
encourages the unconstitutional private conduct, then the Constitution applies.
o a. Applies to government enforcement
 Shelley v. Kramer (1948): held the entanglement exception applied, when a
court enforced a racially restrictive covenant. The court held that judges are
government actors and by enforcing these restrictive agreements the State
effectively is denying equal protection of the laws. Courts have rarely used
Shelley as a basis for finding state action
o b. applies to government regulation
 Burton v. Wilmington Parking Authority (1961), the Court held there was
sufficient entanglement to warrant the application of the Constitution when
the government ran a parking garage for a restaurant that refused to admit or
serve blacks. The restaurant operated as part of a public garage devoted to a
public service. Government can’t abdicate its responsibility by not acting.
o c. government subsidies

32
  Rendell-Baker v. Kohn (1982), the court held there was not sufficient
entanglement when a school that was highly subsidized by the government
fired teachers and the teachers claimed they were fired for exercising free
speech under the First Amendment and without due process under the
fourteenth Amendment
 Difference is race. Court may have been concerned that if private
schools had to comply, then any government contractor had to as well.
This means the receipt of government money, even large amounts, is
not enough for the constitution to apply.
o d. ballot initiatives
 3) Entwinement Exception: not enough case law

IV. DUE PROCESS AND THE PROTECTION OF FUNDAMENTAL RIGHTS

o 1. Substantive Due Process

 Substantive due process is violated, under DP of 5th/14 (or EQ), if the government infringes
on fundamental rights under life, liberty, and property
o Asks whether the government has an adequate reason for taking away a person’s life,
liberty, or property- looks for justification for action
o Plaintiff is seeking to have a government action declared unconstitutional as violating
a constitutional right
o
A. Economic Rights
o  Economic rights are not fundamental (freedom of contract, pursue livelihood, practice
trade/profession)
 After 1937: deference to government regulation
o 1. Court will not protect freedom on contract as liberty under DP; West Coast Hotel
v. Parrish (1937)
o 2. State can act to further any purpose not forbidden by Constitution and not limited
to further police purpose; legislature can act to equalize bargaining power; West
Coast
o 3. Courts will defer to legislature as long as it’s reasonable
 As long as Court conceive of some legislative purpose  reasonable 
UPHELD; Williamson v. Lee Optical of Oklahoma, Inc. (1955)
 The rationality of the legislation is presumed; United States v. Carolene
Products Co. (1938)
 Example Cases:
o West Coast Hotel v. Parrish (1937): upheld state law requiring minimum wage for
women employees
o US v. Carolene Products (1938): upheld Filled Milk Act, which prohibited “filled
milk” – substance of milk/veggie oil
o Williamson v. Lee Optical of OK Inc. (1955): upheld OK statute that prohibited
anyone but optometrists from making glasses
 One Exception: Punitive damages violate DP when excessive
o BMW v. Gore (1996): Court articulates a 3 part test to determine whether a punitive
damage aware is excessive:
 1. reprehensibility of the defendants’ conduct (more fraudulent the greater
punitive justified)

33
  2. the ratio between the defendant’s conduct and the punitive damages (often
seen as the ratio between the compensatory damages and the punitive
damages);*
 * In State Farm v. Campbell (2003) suggests the ratio of punitive to
compensatory damages should not exceed 9:1.
 3. the other punishments for the conduct in the state; larger disparity between
punitive and other possible sanction, more likely to be excessive

B. Fundamental Rights
 Major difference between DP/EQ is how constitutional arguments are framed; if the right is
safeguarded under:
o 1) DP= issue is whether the government interference is justified by a sufficient
purpose (denies right to EVERYONE)
o 2) EQ= issue is whether the government’s discrimination as to who can exercise the
right is justified by a sufficient purpose (denies to SOME)
 Framework for equal protection/due process analysis:
o 1) Is there a fundamental right?
o 2) Is the Constitutional right infringed?
o 3) Is there a sufficient justification for the infringement?
o 4) Is the means sufficiently related to the purpose?
o
1)Family Autonomy
 The Right to Marry
 Loving v. Virginia (1967)- DP/EQ: struck down a VA statute that prohibited interracial
marriages; no sufficient justification
o Zablocki v. Redhail (1978)- EQ: struck down a WI law that prevented an individual
from obtaining a marriage license without court approval if the person had a minor
child and past due child support payments; not sufficiently related to the end

o  The Right to Custody of One’s Children

 Stanley v. Illinois (1972)- EQ: struck down a state law that automatically made children of
an unmarried mother wards of the state at the time of her death; not sufficiently related to the
end (unwed ≠ unfit)
 c.f. Michael H. v. Gerald D. (1989)- DP: upheld a California law that created a presumption
that a married woman’s husband is the father of her child if they were living together; father
did not have a liberty interest in a relationship with his child because there was no tradition*
of protecting the father’s rights when the mother is married to someone else
o Dissent: society changes, diverse families, shouldn’t narrowly define what a family is
o *THEME: this case decided fundamental right based on tradition
 also Lehr v. Roberson (1983): affirming automatic termination of rights of biological father
with no prior involvement in child’s life

 Right to Family Unity

34
  Moore v. City of East Cleveland, Ohio (1977)- DP: struck down a zoning ordinance which
limited the number of unrelated people who could live together in one household and defined
“unrelated” to forbid a grandmother from living with her two grandsons, who were cousins;
not sufficiently related (overcrowding)
o Limits on substantive DP should be made with respect to *tradition, not arbitrary
lines

 Right of Parents to Control Upbringing of Child

 Meyer v. Nebraska (1923)- DP: struck down a NE law that prohibited people teaching
German in Public Schools because it violated the right of parents to make decisions for their
children
 Pierce v. Society of the Sisters (1925): struck down an OR Law requiring children ages 8-16
to attend public schools because violate rights of parents
 C.f. (Possible Limitation)- Prince v. Massachusetts (1944): applying child labor laws to 9-
year-old Jehovah’s Witness pamphleteer; need to protect exploitation of children
 Current= Great Deference- WI v. Yoder (1972): declining to apply state’s mandatory
education law to Amish parents of 14-15 year olds; no evidence of harm to child, based on
Amish tradition where school not necessary
 Also- Parham v. JR (1979): according deference to parents’ decisions re: child’s civil
commitment because parent’s have best interest
 Troxel v. Granville (2000): struck down WA law permitting any person to petition for
visitation rights because it violates a mother’s right to control her upbringing; tradition*
o
2) Reproductive Autonomy
 Right to Procreate
 Skinner v. Oklahoma (1942) -EQ: struck down an OK Criminal Sterilization Act which
deprived “habitual criminals” of having kids

o  Right to Purchase and Use Contraceptives/Control Reproduction

 Griswold v. Connecticut (1965): struck down CT law prohibiting the use/distribution of
contraceptives because violated the right to privacy
o Justice Douglass wrote the right to privacy was not found in 14th DP but found
implicitly in the Bill of Rights; This “penumbra” approach has not been followed.
 Eisenstadt v. Baird (1972)-EQ: struck down MA law prohibiting distribution of
contraceptives to unmarried, only allow married
o reframes Griswold as a case affirming a right to reproductive autonomy
 Carey v. Population Services (1977): struck down NY law criminalizing sale, advertisement
and certain distribution of contraception to minors

o  Right to Abortion
 Roe v. Wade (1973): stuck down TX law prohibiting all abortions except those necessary to
save life of a mother

35
 o right to privacy is protected by Constitution and “is broad enough to encompass a
woman’s decision whether or not to terminate her pregnancy.”
 Webster v. Reproductive Health Services (1989): upheld MO law declared state’s view of
life begins at conception, prohibited the use of government funds/facilities from
performing/encouraging abortion, only allowed after 20 weeks if fetus isn’t viable; no
majority opinion
  Current Law: Undue Burden Test
 Planned Parenthood v. Casey (1992): reaffirmed states cannot prohibit abortion prior to
viability, after can except when necessary to protect mother; regulations allowed unless there
is an undue burden on access to abortion
o UB exists and provision is invalid, “if its purpose or effect is to place a substantial
obstacle in the path of a woman seeking an abortion.”
 Gonzales v. Carhart (2007): upheld Partial Birth Abortion Ban Act because did not impose
an undue burden on the right to abortion
  Waiting Periods/Informed Consent= Constitutional /No UB
o Planned Parenthood v. Casey (1992): upheld 24 hour waiting period; upheld
provision requiring women be told information, provided information about medical
care for childbirth, list adoption providers
  No Requirement for Government Funding/ No UB
o Maher v. Roe (1977) : upheld state law that denied use of Medicaid funds for
nontherapeutic 1st trimester abortions
o Harris v. McRae (1980): upheld federal law that prohibits use of federal funds for
performing abortions
  Spousal Consent= Unconstitutional
o Planned Parenthood v. Danforth (1976): struck down state law that required a
husband’s written consent before married woman could get abortion
o Planned Parenthood v. Casey (1992): struck down a state law that required spousal
notification before a married woman could receive an abortion; if one needs to
sacrifice rights, shouldn’t be woman
  Parental Consent= Constitutional if alternative procedures
o Bellotti v. Baird (1979): stuck down state law preventing unmarried woman under 18
from getting an abortion unless parents consented
 State could require parental consent, only if they created a bypass procedure
(judge finds in minors best interest/mature enough)
o
o 3) Right to Autonomy as to Sexual Orientation/Activity
 Lawrence v. Texas (2005): overruled Bowers, holding the right to privacy protects a right to
engage in private consensual homosexual activity; sexual activity is a fundamental aspect of
personhood and is entitled to constitution protection
o Court did not specify what level of scrutiny for this right
 TX justified on moral grounds, which meets rational basis, so must be higher
level

36
o
o 4) Other (Potential) Constitutional Protections
 (Potential) Right for Control over Information
 Whalen v. Roe (1977): upheld NY law required physicians provide reports identifying
patients receiving prescription drugs that have a potential for abuse; argued the database
listing names/addresses of patients and identities of doctors infringed on right to privacy
o Rejected argument because state has interest in monitoring use of prescription drugs
that could be abused, but left open possibility for a right to privacy/control
information
 NASA v. Nelson (2011): upheld a requirement for background checks for employees of
government contractors working with NASA
o “We assume, without deciding, that the Constitution protects a privacy right.”
o Scalia dissent: “a federal constitutional right to ‘informational privacy’ does not
exists”
o *There is a strong argument that the Constitution should be interpreted to protect a
right to control information, but little support from SCOTUS (databases, Government
can store it but need to protect)

o  Right to Travel [protected by 14th §1 Privileges OR Immunities Clause]

 Saenz v. Roe (1999): struck down CA law that limited welfare benefits for new residents in
the state to the level of the state that they moved from for their 1st year of residence; held the
PorI Clause protects a right to travel and the citizens right to be treated equally in new state
of residence
o Right to travel embraces 3 different components:
 1. Right of citizen of one state to enter/leave another state
 2. Right to be treated as a welcomed visitor when temporarily present in
another State
 3. Right to be treated like other citizens, when permanent resident
 Implications: court applies a right to travel primarily in evaluation laws imposing a
durational residency requirement (uses strict scrutiny)
o
o  NO Right to Education
 San Antonio Independent School Dist. V. Rodriquez (1973): upheld TX financing system of
funding public schools through local property taxes, denying education as a fundamental
right
 Implications: court has recognized the importance of education, but never said is a
fundamental right; strong argument for education being essential to exercise constitutional
rights, economic opportunities, and achieving equality
o

37
o 2. Procedural Due Process
 Procedural due process is violated, under the Due Process Clause of 5th/14th, if there has been
a deprivation of life, liberty, or property without adequate procedures
o Asks what kind of notice and what form of hearing the government must provide
when it takes a particular action
o Plaintiff is seeking to have a government action declared unconstitutional because of
the lack of adequate safeguards, such as notice or hearing
 Framework for Procedural Due Process analysis:
o 1) Has there been a “deprivation”?
o 2) Is it a loss of life, liberty, or property?
o 3) What procedures are required?
 2 Approaches in determining whether there is a liberty/property interest
o 1) Finds property interest based on crucial significance of interest in a person’s life
 Goldberg v. Kelly (1970): found a property interest in the receipt of welfare
benefits because important to individual/essential to life; need notice and
opportunity to contest before take it
o 2) Finds property interest based on reasonable expectation to continued receipt of
benefit (based on relevant law)
 Board of Regents v. Roth (1972): did not find a property interest in
Government Employment when a employment contract expressly stated
termination date; no reasonable expectation to be re-hired
 “To have a property interest in a benefit, a person clearly must have
more than a need or an abstract desire for it. He must have more than
a unilateral expectation in in. He must, instead, have a legitimate
claim of an entitlement to it.”
 Bishop v. Wood (1976): in decided if there is a property interest in a
government job, the relevant inquiry is the expectations created by the law
and customs surrounding the position
 Liberty interests follow same two approaches (Importance/Reasonable Expectations)
o Roth: suggested that a reputational injury may implicate a liberty interest
o Goss v. Lopez (1975): held students have a liberty interest in not being disciplined by
a public school because would damage their reputation (reputation with other
students/ interfere with higher education)
o C.f. Paul v. Davis (1976): held that harm to reputation, by itself, is not a deprivation
of liberty (known shoplifter circulation)
 To determine what procedures are required, apply balancing test articulated in Matthews v.
Eldrige (1976)
o 1. The importance of the interest to the individual
 the more important interest of the individual, more procedural safeguards
required
o 2. The ability of additional procedures to reduce the risk of an erroneous deprivation

38
  more belief additional procedures will lead to better, more accurate decision,
more likely required
o 3. The government’s interest
 more expansive the procedures, less likely required
  Matthews v. Eldrige Test Applied
o 1. when the government terminates Social Security disability benefits, it need provide
only a post termination hearing, because SS benefits weren’t based on need, and those
people still can obtain other sources of income, like welfare.
o 2. low ability of additional procedures to reduce the risk of an erroneous deprivation
because the decision to discontinue disability benefits will turn on routine, standard,
and unbiased medical reports by physician specialists
o 3. government’s financial and administrative burden would be high because there
would be substantial expense as individual receiving benefits would likely exhaust all
appeals if they could keep receiving funds until the procedures were completed

o V. EQUAL PROTECTION
 Constitutional basis for EQ claims: 14th §1 for States, and 5th Amendment for federal
government (via Bolling v. Sharpe (1954))
o  Framework for Equal Protection Analysis:
 1) What is the classification? How is the Government drawing a distinction among people?
[face of the law OR facially neutral w/discriminatory effects]
 2) What is the appropriate level of scrutiny?
o Race/National Origin/Alienage/Immutable= strict scrutiny
 Law upheld if it is proved necessary to achieve a compelling government
purpose
 Government has burden of proof
 Must show can’t achieve purpose through a less discriminatory means
o Gender/non-martial children/history of being treated unfairly/politically
disenfranchised= intermediate scrutiny
 Law upheld if it is substantially related to an important government purpose
 Government has burden of proof
 Rational Basis Test (ex. Age, disability, wealth/poverty)= minimum scrutiny
 3) Does the Government action meet the level of scrutiny?
o What is the objective and is it legitimate/important/compelling

39
 o Is the means sufficiently related to the end
o
 The Rational Basis Test
 Law upheld if it is rationally related to a legitimate government purpose
 Challenger has burden of proof
 Strong presumption if favor of the LAWS
  Legitimate Government purpose= anything that is permissible
  Rationally related= any reasonable way to justify is permissible
o anything not forbidden by Constitution; Berman v. Parker (1954)
o law must be upheld if “any state of facts reasonably may be conceived to justify” its
discrimination; McGowan v. Maryland (1961)
o doesn’t have to be the actual purpose, just conceivable; Railroad Retirement Bd. v.
Fritz (1980)
o “Those attacking the rationality of the legislative classification have the burden to
negate every conceivable basis which might support it.” FCC v. Beach
Communications (1993)
  Since laws will be upheld (unless government action is “clearly wrong/arbitrary) this
allows both under/over inclusive laws
o Railway Express Agency v. New York (1949): upheld underinclusive ban on
advertising trucks; “It is no requirement of equal protection that all evils of the same
genus by eradicated or none at all.”
 Doesn’t have to solve the whole problem, but can be steps towards legitimate
goal (Williamson v. Lee Optical of Oklahoma, Inc.)
o New York City Transit Authority v. Beazer (1979): upheld overinclusive city law that
prohibits all methadone users from working for the transit authority, because
alternative is costly
  Rational Basis with bite (Look to the role ANIMUS played in passing law)
o Romer v. Evans (1996): struck down CO Amendment 2 which repealed all laws
protecting gays, lesbians, and bisexuals from discrimination and prohibited future
government action to protect them from discrimination; no legitimate purpose in
singling out a particular group
 Animus against a group isn’t legitimate interest (BITE)
o U.S. Dept. of Agriculture v. Moreno (1973): struck down a federal food stamp law
that barred food stamps to households with non-relatives; discriminate against
hippies; irrational relat. b/w law & purpose
o City of Cleburne, TX vs. Cleburne Living Center (1985): struck down zoning
ordinance requiring special permit for operation of mentally disabled home;
motivated by animus

o Racial Classifications
 Must use strict scrutiny (Law upheld if it is proved necessary to achieve a compelling
government purpose; narrowly tailored; least restrictive way)

40
o  Racial Classification on face of law (burden on racial minorities)
 1) Signals out Minorities
o Korematsu v. United States (1944): the Court upheld Japanese internment based on a
“serious risk to national security”
o Racial classifications that burden both whites and minorities
 2) Burdens whites & Minorities
o Loving v. Virgina (1967): struck down a state miscegenation statue that made it a
crime for a white person to marry outside Caucasian race
o Palmore v. Sidoti (1984), struck down a state court’s denying a mother custody of a
child because she had married a person of a different race.
 3) Separates the races
o Brown v. Board of Education (1954): Court deemed unconstitutional separate but
equal in public schools
o Johnson v. California (2005): recent example of application of strict scrutiny to
segregation (p. 726 T)
o  Facially Neutral (MUST show discriminatory impact and purpose; without this, subject to
rational basis)
 Washington v. Davis (1976): upheld a test for police officers which had an impact of
discriminating against blacks; impact not enough
 Palmer v. Thompson (1971): upheld ordinance to shut down public swimming pools when
they were ordered to desegregate them; purpose not enough
 Proving Purpose: Personnel Administrator of MA v. Feeney (1979): Purpose implies
MORE than intent as to decisions/awareness
o “It implies that the decision maker…selected or reaffirmed a particular course of
action ‘because of,’ not merely ‘in spite of,’ its adverse effect upon an identifiable
group.”
o Also: Arlington Heights v. Metropolitan Housing Development Corp. (1977): evidence of intent
can be gleaned from 1. historical background of the decision; 2.
Legislative/administrative history; 3. Impact of legislation; BUT impact alone not enough (may be okay
in EXTREME DISPARITY cases)
o Plaintiff bear the burden to establish racial discrimination was a “substantial” or
“motivating” factor
o Burden shifts to defendant to rebut discriminatory intent by showing that the law
would have been enacted even without the impermissible discriminatory motive
o If the court decides the purpose of the law is discriminatory, strict scrutiny applies
and the law is struck down (because the purpose is not legitimate, let alone
compelling).
o If not, the law is reviewed under rational basis review.
o
o  School Segregation Remedies
 Swann v. Charlotte Board of Education (1971): district courts have broad authority in
creating remedies for desegregation; can use math. Ratios as starting point (race in school vs.
overall school district), busing can be remedy, some one race schools are okay

41
  Milliken v. Bradley (1974): can’t have interdistrict remedies unless proof of interdistrict
violations
 Parents Involved v. Seattle School District (2007): struck down voluntarily adopted student
assignment plans relying on student’s race because districts that had not previously operated
racially segregated school; (T p.750)
o Potential compelling interest: fixing segregation caused by law
o
o  Racial Classifications benefiting minorities (strict scrutiny)
 Richmond v. J.A. Croson (1989): striking down a Richmond City Counsel plan that
required 30% of city contracts be set aside for “Minority Business Enterprises”; strict
scrutiny should be used
 Adarand Construction, Inc. v. Pena (1995): requiring the application of strict scrutiny to
federal programs aimed to benefit minorities
o -> Affirmative Action:
 Non-Compelling State interest
o 1) remedying historic incidents of racism [Wygant v. Jackson BoEdu. (1986)]
o 2) Providing role models (Wygant)
o 3) Need to serve minority communities [Regents of UC v. Bakke (1978)]
 Compelling State Interest
o 1) enhancing diversity in higher education (only)
o Grutter v. Bollinger (2003): defer to university’s judgment that diversity is essential
to its educational mission
 Benefits of diversity: “promotes ‘cross-racial understanding,’ helps to break
down racial stereotypes, and ‘enables [students] to better understand persons
of different races.’” Amici also point to the educational benefits of student
body diversity, namely, preparing students to work in a diverse workforce and
world.
o Fisher v. Texas (2013): court will defer to University’s claim that diversity is a
compelling interest, but “[t]he University must prove that the means chosen by the
University to obtain diversity are narrowly tailored to that goal. On this point, the
University receives no deference.”
 MUST demonstrate there no racially neutral ways to achieve diversity*
 *Techniques Permitted
o 1) Numerical set-asides: allowed ONLY if needed to remedy clearly proven past
discrimination (US v. Paradise) (generally not allowed)
o 2) Race can be one factor in decisions, but can’t add points (Grutter)
o 3) Can’t deviate from seniority systems (Wygant)

o Gender Classifications

42
  Use intermediate scrutiny: law upheld if it is substantially related to an important
government purpose; Craig v. Boren (1976)
 United States v. Virginia (1996): emphasized there must be an “exceedingly persuasive
justification.”
 Proving Sex Discrimination:
o 1. Discriminates on its face
 Craig v. Boren (1976): the court struck down an OK law that men can buy
low alcohol beer at 21, but women can guy it at 18 because a gender neutral
law could have achieved the same purpose
o 2. Facially Neutral (MUST show discriminatory impact and purpose; without this,
subject to rational basis)
 Personnel Administrator of MA v. Feeney (1979): upheld a State law that
gave a preference in hiring to veterans even though it had a substantial
discriminatory impact against women; there was no intent.
o  Gender Classifications Benefiting Women
 1) Generally, discrimination favoring premised on role stereotypes will not withstand
intermediate scrutiny; many based on stereotype of women economically dependent on
husbands
o Orr v. Orr (1979): struck down an AL law providing for alimony for women but not
men
o But see Michael M. v. Superior Court of Sonoma County (1981): upheld a CA sex-
specific statutory rape law; justified in terms of teen pregnancy consequences
o Rostker v. Goldberg (1981): upholding selective service requirements which pertain
to men, not women; women not eligible for combat
 2) Sex-based classifications designed to remedy past sex discrimination have been allowed
o Califano v. Webster (1977): upheld a provision of the SS Act that calculated benefits
for women in a more advantageous way than was used for men because of general
history discrimination
o
o Alienage Classification – discrimination against noncitizens (Strict Scrutiny)
 1) Congressionally Approved Discrimination; Congress decides who is/n’t a citizen- so court
largely defers; (rational basis)
o Matthews v. Diaz (1976) upheld federal statute denying Medicaid benefits to aliens
unless they are permanent residents; drew line between alienage classifications by
federal and by state
 2) Sub-federal entities (states/localities) draw distinctions on the basis of alienage, subject to
strict scrutiny; Graham v. Richardson (1971)
o Exception: Classifications relating to self-government and democratic process
(rational basis)
 Foley v. Connelie (1978): upheld state law that required citizenship to be
police officer; integral to self government and enforce laws that are product of
democratic process
 Ambach v. Norwick (1979): upheld state law requiring citizenship to be
elementary/secondary teacher; teach democratic values/influence students
o
o  Undocumented Aliens

43
  laws that discriminate against unauthorized migrants generally subject to rational basis
 Plyer v. Doe (1982): struck down TX law that provided a free public education for children
of citizens and documented aliens, but required undocumented aliens to pay
o Said using rational basis, but more like intermediate here, probably because children;
emphasized blamelessness and importance of education
o
o Non-marital Children Discrimination (Intermediate Scrutiny- Clark v. Jeter; 1988)
 1) Laws denying benefits to all nonmarital children that are accorded to all marital children
will not survive this level of review
o Levy v. Louisiana (1968)
o New Jersey Welfare Rights Organization v. Cahill (1973)
 2) Laws denying benefits to some nonmarital children but not to others, courts sometimes
uphold and sometimes strike down the laws.

o
o Other Types of Discrimination (rational basis)
o  Age
 Massachusetts Bd. of Retirement v. Murgia (1976): upheld a state law that mandated
retirement from the police force at age 50
o  Disability
 City of Cleburne, TX v. Cleburne Living Center, Inc. (1985): stuck down city ordinance
required special permit for operating a group home for mentally disabled
o  Wealth
 San Antonio School v. Rodriquez (1973): taxes/public education, held discrimination against
poor does not require heightened scrutiny
o  Sexual Orientation (Rational Basis with Bite)
 Romer v. Evans (1996): struck down CO initiative encouraging discrimination against LGBT
because animus
 US v. Windsor (2013): stuck down section 3 (defense of marriage), but not section 2 (other
states recognizing other states allowing same sex marriage); never expressly says same-sex
marriage is a fundamental right, but implies
o Seems to have a broad notion that equality/liberty that is hard to square with some
same sex marriage bans
o Identifies animus, which pervades the potential “rational” reasons
 Are state laws restricting marriage for same-sex couples unconstitutional?
o Kennedy, J.: “The differentiation demeans the couple, whose moral and sexual
choices the Constitution protects, and whose relationship the State has sought to
dignify. And it humiliates tens of thousands of children now being raised by same-
sex couples. The law in question makes it even more difficult for the children to
understand the integrity and closeness of their own family and its concord with other
families in their community and in their daily lives.”
o Scalia, J.., dissenting: “[T]he view that this Court will take of state prohibition of
same-sex marriage is indicated beyond mistaking by today’s opinion.”
o

44