Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

PART I: OVERVIEW
Class 1: Introduction to the Constitutional Text; Methods of Constitutional
Interpretation (August 26)
BASICS OF CONSTITUTION:
Where did the Constitution come from?
Who does the Constitution govern?
o State Action Doctrine:
Constitution only applies to government actors
Congress
President
Police officers
Anyone who receives a check from the government
What does the Constitution do?
o (1) Grants, allocates and limits government power (law of lawmaking)
Separation of Powers
Framers desire for new national government/equal concern
for tyranny
Federalism: Federal govt vs. State govt
Individual Rights
o (2) Sets rules for politics
o (3) Pre-commitment device [Ulysses & the Sirens]
Intended as an effort by society at Time 1 to impose restrictions
at a later time (Time 2)
Binds us from temptations to stay away from past
Why??
o We dont trust ourselves (emotions get the best of
us)
o Advances rule of law values: stability, consistency,
predictability (ensures day in and day out that there
is some degree of predictability, with reliance on no
change)
How do we figure out pre-commitments?
o INTERPRETATION
Why is the Constitution different than statutes?
o Foundational text and supreme law (kind of a big deal)
o Ratification process
o Political spotlight
o Text is old
o Multiple interpreters (Judges, President, Congress, individual people)
o Text is vague/ambiguous
Why vague?

Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

Adaptation
Ratification purposes in order to ratify with people of
different viewpoints, there need to be BROAD concerns
enumerated
METHODS OF INTERPRETING CONSTITUTIONAL TEXT: [Bobbit class exercise]
Victor Victim and the Second Amendment & District of Columbia v. Heller
Historical Argument: Need/Right to Protect oneself [Looks at the original intent
of the framers by looking at notes; articles; state constitution(s) at the time
drafted]
Textual Argument: (looking at the definitions of individual text in the Amendment
in order to frame argument)
o Downside: Different dictionaries provide different meanings
Ethical: Moral commitments embedded in traditional government
Doctrinal: Focuses on precedent (looks at US v. Miller)
Prudential: (Seeks to balance the costs and benefits of the rule).
COURSE ADMINISTRATION:
Office hours: Tues/Thurs 2:30 PM 3:30 PM or by appointment (via email)
For Next Class:
Art III and the Federal Judiciary; Marbury v. Madison; (simulations on
Blackboard*)
CLASS TWO:
I. OVERVIEW OF THE FOUNDING
a. Framers very worried about potential of tyranny (enormously paranoid)
b. In an era where states actually have their own political identities, cultures and
interests
i. Sacrifice of autonomy and identity to another, not given
c. Articles of Confederation: [not on the exam *but important as foundation]
i. Ratified 1871
ii. Article II: Each state retains its sovereignty
1. Alliance among sovereign nation states
2. League of friendship among 13 people
a. Constitution speaks for people of US
iii. Article V: state government appoint representatives; one vote per state
1. Virginia = Rhode Island
a. Gives small states with small populations a lot more
leverage vs. system with house of representatives
2. States levy taxes
a. national govt cannot raise money without the states
b. Congress has limited powers
3. Unanimous Consent for amendments
a. Rhode Island problem they hate everything (virtually
impossible for everyone else to do something about it)

Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

4. No executive branch, no president, no national judiciary, power

to tax, power to regulate interstate commerce
iv. Problems with Articles of Confederation:
1. Raising revenue (only way to get it is tax, must call states)
but states refused
2. International affairs: lack of single executive made it difficult
to resolve issues in foreign affairs
a. Congress had no power to make other states sign
treaties
3. Western expansion states staking land claims, congress has 0
power to stop them
4. Malaise and economic downturn: after revolution, mid 1780s
goodwill has ran out, local mobs, threats to overthrow govt
5. Unanimous consent requirement cannot correct any of the
above problems without consent (RI problem)
d. Constitutional Convention of 1787: fix problems of Articles on Confederation
(all men all white)
i. Representatives from 12 states (Not RI)
1. Rewrite the AOC and set up new structure for how politics on
national level can be conducted
a. Framers thoughts on politics:
i. Suspicious
1. Worried about:
a. Factions: (Groups of people
getting together and acting out of
own self interest) Becoming a
majority and use position to
oppress minority
b. Corruption and self interest:
politicians in office and advance
self interest and line pockets
b. Framers Do: [direct legal violation by negating AOC
and making a brand new one]
i. Create a much more powerful national
government
1. Regulation of interstate commerce
2. Power to tax, spend, advance national
welfare
ii. Process of lawmaking in a bicameral two house
legislature
1. Set up house of representatives to
appease large states
2. To appease small states (RI), set up
senate where all states have equal
representation

Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

3. Create brand new national executive and

judiciary branches that didnt exist under
AOC
4. Accommodation on slavery punt on this
issue at worse, endorses
5. Set up process for ratification (by 9
states)
II. OVERVIEW OF THE CONSTITUTIONAL STRUCTURE [actually written down,
set in stone] *new idea, the first and oldest written constitution in the world
a. PREAMBLE:
i. We the People of the United States [not individual states]
1. Significance: State identity at the time of ratification is a real
change
2. People themselves are the ones doing the constituting
a. Sovereignty not with King, or states, but actually with
the people themselves
ii. In Order to form a more perfect Union
1. RI is going to cause a problem
2. What was wrong with the first one to create one more perfect?
a. Why create a union at all? Corporate merger of diverse
states
i. Diplomacy improve negotiating posture with
Europe (more diplomatic leverage)
ii. Economic benefits: free trade/taxes
iii. Defense: foreign invasion is still a real risk,
coordinating with common defense increases
chance of survival
iv. Expansion
b. What does the constitution do to make the union more
perfect?
i. Separation of powers through three vesting
clauses that begin Articles 1, 2, 3
1. 1: Sets out congresses power, lawmaking
in bicameralism
2. 2: Presidency with executive powers
3. 3: Judicial function in federal courts,
creates supreme courts and authorizes
congress to make federal courts
ii. Federalism: distinctive federal structure (some
governed by Art. 4)
1. Federal and State
a. Concurrent power
b. People are ultimate sovereigns
iii. Mechanisms for protecting individual rights
(Bill of Rights/Const.)

Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

iv. New Amendment Structure: provide one for

formal constitutional change (Art. V)
b. ARTICLE V
i. Improvement no requirement for unanimous consent
ii. BUT: Hard to Amend:
1. Process: 2 stage amendment process:
a. Proposal
i. *2/3 Vote of both houses of congress; OR
ii. Constitutional Convention
b. Ratification:
i. *Vote by of state legislatures; OR
ii. Votes by conventions in of states
iii. Signoff by multiple levels of government
1. National constituency and then Individual state level
iv. Supermajority process:
1. Intentional numbers (2/3 or ) requiring wide consensus for an
amendment to be enacted
a. Suggests that only language making it through is
general vague language
v. Convention procedures not specified:
1. Limited by subject matter?
2. Pres. Signoff on any of these matters?
3. Convention representatives?
c. ARTICLE VII: Ratification process
i. State ratification conventions
1. Representatives vote on ratification of constitution
ii. 9 State requirement
iii. Supersedes Articles of Confederation and some parts of state
constitutions
iv. Yes or No Vote
1. No amendments or partial vote
v. No provisions on secession or nullifying ratification vote
1. No procedure for backing out of this deal
vi. New and novel idea
vii. People dont actually vote for constitution, but for representatives to
ratify
1. Women cannot vote
2. People who dont own property are excluded
3. Slaves cannot vote
viii. Little precedent for popular voting at that time
III. OVERVIEW OF ARTICLE III: Vesting Clause
a. Section of const. that allocates power to Judicial Branch
b. Must act pursuant to some power granted by Art. 3
c. Limited powers
i. Only Federal Judiciary constituted by this Article
d. *Listed After Congress provisions Art. 1, President 2

Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

e. Alexander Hamilton describes Federal Judiciary the weakest and least

dangerous
f. No access to perks has to rely on other needs to make sure decision was
legitimate and complied with
i. No power of sword or perks
g. Last in structure is sensible
i. Laws are written by congress
ii. Signed off by President
iii. Then Judiciary reviews them
h. Judicial Power shall be vested in one supreme court and in such inferior courts
as the congress may from time to time ordain and establish
i. AOC had no federal judiciary
1. Congress was body of last resort
i. Some evidence that Art. 3 treats Judiciary as a somewhat weaker branch than
Congress/President
j. Doesnt say:
i. About size of supreme court
ii. Require courts to issue written opinions
iii. Not a lot of power to control inner workings
iv. Congress decides when and if court sits
1. Rules of federal procedure
2. Cases heard through Apell. Jur.
3. Vast discretion over civil docket
v. Judiciary can/cannot declare unconstitutional
k. Selection of Judges: majority vote
l. Branches are perfectly free to consider politics or ideology in the selection of
federal judges
i. Nothing in the constitution that prevents it
ii. Invites politics into nomination process
m. Doesnt discuss anything about Interpretation
n. Allows judges to serve for life Good Behavior (Interpreted by Congress)
i. Must be impeached
o. Federal judges paid out of federal salary and salary increases
i. Cannot cut salary
1. Allegiance to US Govt
2. Congress Cannot use it to influence courts
p. *Sec 2: Sets out 9 categories of cases and controversies
i. Judges need a case or controversy to take action
1. Must be an active dispute between individuals in order to get
involved
a. And within 1 of 9 categories provided by Framers
q. Sets out terms of federal courts for original and appellate jurisdiction
i. Appellate: must file a case in lower case before Sup. Ct. can hear it
1. Appellate jur. Controlled by congress under exception clause
r. Focus Areas of Article III (NEED TO KNOW FOR EXAM)
i. Judicial Review

Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

ii. Exceptions Clause

iii. Justiciability Doctrines
IV. HISTORICAL CONTEXT FOR MARBURY [power to declare actions by Congress
or president unconstitutional]
a. Uncertainty about future of the Republic: no guarantee that constitution is
going to work out
b. Political instability:
i. 1798: Federalists passes law from Alien & Sedition (re: not talking
smack against govt) acts which are enforced
c. Dissatisfaction over taxes
d. Unexpected formation of political parties
i. Suspicions of factions (political parties are small groups of people who
are self interested)
e. Federalists: John Adams
f. Republicans: Thomas Jefferson
g. Voting: Person with most votes is President; 2nd most votes VP
i. Adams President vs. Jefferson as VP
h. Weak supreme Court
i. At time of founding Sup. Ct. marginal, and job sucks
i. Presidential Election after GW leaves office: Election of 1800:
i. Jefferson v. Adams:
1. Critical Highlighting risks
ii. Electoral college is tied between Thomas Jeff. and Aaron Burr
1. Directs election to House of Rep. where every state gets one
vote
j. The Aftermath of the 1800 Election:
i. Adams nominates Marshall as chief justice
1. Serves until Jeff. takes office
ii. Circuit Judge Act of 1801: 16 new circuit court judges
iii. District of Columbia Judges Act: 42 new judges in DC
1. Marbury
iv. Immediately repeal circuit judge act of 1801
1. If federal judges serve for good behavior cannot repeal them
a. Suspension of Courts 1802 term
b. Impeachment proceedings against Judges
k. Adams sends 42 names to Federal Senate for commission [Marbury]
i. Marshall stamps/seals
l. Jefferson sees commissions and Madison destroys
i. December: Attorney with Writ of Mandamus so Marbury can be seated
as a justice of DC
1. Congress canceled 1802 term but now
m. *Important:
i. Part of the Canon
ii. ***Court establishes for itself power of judicial review
1. court declares acts of congress and executive unconstitutional

Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

a. first instance of sup. Ct saying now, and forcing const.

against another coordinate branch of govt
V. MARBURY AND JUDICIAL REVIEW
a. Marshall writes opinion:
i. Does Marbury have a right to his commission?
ii. Is there an available remedy?
iii. Is mandamus the appropriate remedy, and does the Court have
Jurisdiction?
1. **The above questions are strategically misplaced by Marshall,
jurisdiction question must go first
b. Marbury:
i. Signing and Sealing is Enough
c. Madison:
i. Must be signed sealed and vested
1. But the commissions were burned somewhere so no luck.
d. If Marbury has a right to the commission, why doesnt the Court have the
power to issue a remedy to order Madison to deliver the commission
i. Jefferson argues that act of delivering commission is a political one of
discretion
1. President has discretionary exercises of power:
a. Veto
b. Cabinet
c. Pardons
e. Marbury says this is not a political act:
i. Individual right involved (my vested right of commission)
1. Courts enforce individual rights
ii. *This isnt a political act because you are required to do this by law,
executing law enacted by Congress (district of Columbia act)
1. This is a ministerial act and mandatory (Pres. Is a secretary,
execute the law as ordered by Congress)
f. Marbury has an individual right & an available remedy
i. Marshall says you have to do it, you dont have a choice
1. Ability to tell the executive branch what to do when they are
acting ministerial
g. Does Marbury have a right to his commission? YES
h. Is there an available remedy? YES
i. Is mandamus the appropriate remedy, and does the Court have Jurisdiction?
i. Article III: Sec.2
1. IN all cases affecting Ambassadors, other public ministers and
counsuls, and those in which the state shall be a party the sup.
Ct. shall have original jurisdiction. In all the other cases [to
which the federal judicial power extends] the supreme court
shall have appellate jurisdiction, both as to law and fact with
such exceptions, and under such regulations as the congress
shall make.

Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

a. ARGUMENT: Original Jurisdiction: Jefferson claims

that the list in Art. 3 is exclusive.
i. State is not a party in this case. Therefore NO
Original Jurisdiction
b. OPPOSING ARGUMENT: BUT: Section 13 of the
Judiciary Act of 1789:
c. REBUTTAL: Under such regulations as the Congress
shall make.
ii. How might you make an argument that Art. III allows congress to
expand beyond this list
1. Doesnt say exclusive in Art. III
2. With such exceptions This could be one of the exceptions
iii. Marshall sides with Jefferson: Declaring Section 13 of Judiciary Act
an Act of Congress Unconstitutional
j. Does Supreme Court have the power to declare an Act of Congress
unconstitutional?
k. Marbury has a right and remedy but Marshall gave Jefferson opinion, and won
i. But Marshall knows that there would be serious consequences to order
Jefferson and the commission
1. Marshall declares that US sup. Ct. has a larger power to declare
acts of congress unconstitutional and to order executive branch
to do things, while also avoiding political smackdown and
immediate battle with Jefferson
SIMULATION: Potential sources in constitutional text asserting power of judicial
review:
Art. VI: Supremacy Clause: if you allow congress or some other body to say what
the const. means, effectively congress would always say its constitutional
Art. III: Oath Clause
Art. III Arising under clause: Judges have the right to review (Framers envisioned
that the Court was going to engage in Const. text)
Art. III: Vesting clause:
o Judicial Power of the US (Constitution is a form of law) the Judiciary has
the power to review
Martin v. Hunters Lessee:
Sup. Ct. claims power to review state court interpretations of constitution under
federal law
*Decision:
o Questions of Fed. Law and Const. State courts must follow Sup. Court,
and Court has power to tell State Courts NO
Uniformity
State allegiances
Marbury: Reasons for Skepticism
Marshall should have recused himself from this case
o He sealed the commission
Structure of the opinion:
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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

o Jurisdiction should have been considered prior to the merits

Marshall might have been going against Framers intent
o Judiciary Act was drafted by Framers
o Language of Judiciary Act: Interpretation makes it clear otherwise
Marbury takeaways:
Court claims power to review both executive and leg acts
o Text sources
Art. III as a ceiling for the Courts original jurisdiction congress cannot add to it
Certain exec actions are discretionary and not subject to judicial review
Shows intertwining of law and politics
o Form of settlement between political branches in a way of solving disputes
Rare early case of Court declaring act of congress unconst.
Next Class:
Art. III Exceptions Clause
Justificability Doctrines
*Bar on advisory opinions
*Standing
***Sidenote: For preparation of the case: Take notes of cases with piece of paper and
articulate arguments of both sides
CLASS THREE: SEPTEMBER 2, 2014
Goals:
Why Give judges the power to review acts of Congress?
Whats problematic about judicial review?
How can other branches check the Courts exercise of judicial review?
What is the scope of Congress power to restrict the Courts Jurisdiction under the
Exceptions clause
What are the requirements for Article III standing?
*Notes:
Wednesday 9/10 at 1PM W520 RSVP
Panel Re: Impact Center Supreme Court Preview
Review of Class 2:
Textual Sources for Judicial Review
o Arising Under Clause
o Invokes Art. 6 Supremacy Clause:
Const. wont be supreme anymore because Congress will run right
over it
o Oath clause: SC justices take oath to protect const. and it wouldnt be
worth much against other branches
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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

o Vesting Clause:
Inherent in judicial power, ability to interpret law
SC must have power to say what it means
Court claims power to review both executive and legislative acts
Distinction between discretionary and ministerial acts
Art III as a ceiling for the courts original jurisdiction
o John Marshall
Interested beyond politics
Building up SC as new institution and giving national
government some credibility
Create infrastructure allowing preservation

DESCRIPTIVE FRAMEWORK NORMATIVE FRAMEWORK (take a step back

good or bad thing? Why? Is Judicial review a good idea?)
Descriptive: (arguments the way the world is)
In Marbury, SC claims power to declare acts of congress unconstitutional
Martin v. Hunter Lessee: Similar power, Court will step in if congress violates
const.
o Normative: Why give judges vs. other entity the power to declare laws
unconstitutional?
Judges have expertise in interpreting law
Law Land Promotion of rule of law values
They are independent
Pre-commitment check on politics
Justices nominated by President are more likely to be politically
biased
Larger goal beyond immediate political short turn
Counter Majoritarian difficulty
o When court acts to declare a statute unconstitutional, it acts against the
wishes of the elected representatives of the people.
Democracy is not supposed to tell majority of we the people,
NO
Violates pre-commitment
We all live in a democracy: hand over sovereignty to elected
representatives
Democracies operate by a majority rule 51/49
Problem: Federal Judges arent elected and cannot be voted out of
office
Result: Not accountable to people
o Theres a danger that judges will use their power of
judicial review to impose their personal policy
preferences without accountability
o *CLAIMS:*

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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

Destroys concept of govt

Anti-democratic
o Critiquing the Counter-Majoritarian Difficulty:
Are the legislatures really democratic?
We have representatives, interests are not of that of the
people
Does our society operate by majority rule?
Are unelected courts really counter-majoritarian?
One group of people that can actually represent we the
people = 9 judges
Theory: popular opinion represents a constraint on judicial
review
o Supreme Court Doctrine: How do these judges do a
great job channeling public opinion?
Public opinion acts as a limit on exercise of
judicial review
Judicial review vs. judicial supremacy
o 3 Models of Judicial Review:
Who the authoritative interpreter should be?
Judicial Supremacy: Court is the sole and final arbiter of
what the constitution means
No supreme Interpreter: Each branch gets to interpret the
Constitution; no single branch is authoritative
o Independent responsibility; no interpretation is
better than the other
When theres a different opinion, we the
people have final authority
Departmentalism: Each branch is authoritative in certain
areas
Ways to restrict the Courts power
o Checks on Courts power for Judicial review:
Congress can courts budget and deny salary raises
Use powers under Exceptions Clause: keep them out of session
Impeach process
Amend Constitution
Influence public opinion
Use the unique features of their offices
ARTICLE III: EXCEPTIONS CLAUSE:
Section 2 Clause 2 the Supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions, and under such Regulations as the
Congress shall make.
Ex Parte v. McCardle:
o Full of politics

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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

o Timeline: (aftermath of Civil War: Reconstruction)

Declare Marshall Law- send federal troops into 13 southern states
and divide south into military jurisdictions
Habeas Corpus Act of 1867: Confirms Fed. Judges have
power to issue Order from Judge ordering Custodian to
bring person into custody physically into court and respond
to charges unlawful
o Helpful to blacks or whites; against those not for
Reconstruction
Military Construction Act of 1867:
o Protects Southern Blacks and Union loyal sovereign
whites against upset south
McCardle taken into military custody charged for unmilitary
crimes Libel/Disturbing peace
Files for Writ of Habeas Corpus; challenging
constitutionality
1868: Congress passes Repealer Act:
o Jackson vetoes
Congress overrides
Jurisdiction Stripping (not many
cases)
o Threat of Jur. Stripping might
be enough
o Law: Pledge Protection Act: Simulation:
Constitutional:
Structural: Not expanding to State Courts; Constitutional
because they can always bring it to State Court
o Not Immune from constitutional review
Doctrinal: Act is similar to the McCardle Act; exception to
what kind of cases they can and cannot hear because unlike
Klein, not actually separating from judicial powers
o What allows Congress the ability to hear cases
Art. III Section 1; Clause 1: Congress has
ability to ordain and establish courts;
Since congress has power to
create/ordain/establish lower courts
you get the ability to restrict them
Unconstitutional:
Structural: Separation of powers problem
o System of checks and balances are infringed upon
by Congress onto Judicial dept.
Klein
Distinguishes from McCardle making it
more serious
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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

o Exceptions Clause:
Takeaways:
Unresolved areas of law
Raises important questions about Congress ability to
control the judicial branch
Outcome depends on:
o Interpretation
o Underlying policy
o Interpretations of past precedent
JUSTICIABILITY DOCTRINES:
Ways of constraining scope of judicial power and review
o Serves as an off ramp for federal courts
o Operate before a court hears the case on the merits
o JUSTICIABILITY IS DIFFERENT FROM JURISDICTION
A case can involve a federal question, diversity, but case by not be
ripe/moot, or may be a political question
o Arise from Art. III, Section 2: cases and controversies who can sue,
when a case can be brought, a plaintiff must satisfy justifiability
requirements
Bar on Advisory Opinion
o Federal Courts may not decide questions that are abstract, hypothetical or
conjectural (contingent)
o There must be an actual dispute between litigants for there to be a case or
controversy under Art. III
**A lot of state courts that allow issuance of advisory opinions, but
NOT national constitution
Standing****:
o Determination of whether a particular person is the proper party to present
a particular issue before a federal court for determination
o Constitutional standing requirements
Injury, Causation, Redressability
o Prudential standing requirements (Congress has ability to overrule if it
wants)
Prohibitions on third party standing and generalized grievances
Standing Hypo
o Governor of New York State announces that any state employee that uses
birth control will be fired.
Ways to restrict the power of the judicial branch:
Ways of limiting when the Court can get involved
o Standing: Court can restrict by themselves
o Allen v. Wright:
Background:
Defendants are group of all white public schools

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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

o Send kids to private schools

Private schools are expensive, and tax deductible status acts
as subsidy
IRS required by statute to deny tax exempt status to racially
discriminate private schools
Issue: Statute violates constitution (art. III)
Rule: Standing must exist to bring a federal case.
Injury: Must be distinct and palpable
Causation: Must be fairly traceable back to defendants
actions
Redressability: Relief likely to follow from a favorable
decision
Alleged Injuries:
Harmed directly by the mere fact of
Government financial aid to
discriminatory private schools
Federal tax exemptions to racially
discriminatory private schools in
their communities impair their ability
to have their public schools
desegregated
Racial Stigma
o Court responds by saying:
they have to be personally
denied equal treatment
Court wants to see
them apply to these
schools, get rejected
and then get
stigmatized
Communal outrage

Political Question Doctrine

Mootness
Ripeness

Next Class:
Standing:
o Lujan
o Clapper**
o US v. Richard (brief)
Political Question Doctrine
o Baker v. Carr
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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

o Goldwater v. Carter*
o Nixon
Wrap up Article III
CLASS FOUR: SEPTEMBER 4, 2014
Review:

Focused on Normative Review

Counter majoritarian difficulty:
Checks that the political branches have on exercise of judicial review focusing on
specifically exceptions clause article 3
Bar on advisory opinions
o Article 3: Standing
Three core elements:
Injury
Causation
Redressability
Allen v. Wright:
o Injury:
Generalized Grievance:
Some independent right thats violated
Stigmatic Injury
Deprived of right to receive a desegregated public school
education
Court wants to see evidence of personal denial to call it
injury
o Concerns re: floodgates opening of many others
filing
Diminished ability
Court says that there is a cognizable injury
o Problem: Not clear how many of the schools are
getting tax exemptions
Not clear whether the withdrawal of the
schools receiving the tax exemptions, would
lead white parents sending their kids back to
school
o No evidence that you get rid of tax exemption that
you will get rid of segregation
o Separation of Powers:
Since IRS is established by Executive branch, it is not up to the
Court to determine what the IRS effective should be doing
Lujan v, Defenders of Wildlife:

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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

o 1983: US Department of Interior takes a position and interpretation of the

endangered species act, to actions taken by the government in the US or
high seas
No longer applies to work done be federal agents/contractors
outside US
o Plaintiffs bringing suit under provision that Congress wrote into
Endangered Species Act
Allowed all persons to operate as deputy officials
o Facts:
Plaintiffs: Joyce Kelly; travels to Egypt to see the endangered Nile
Crocodiles
Building Oswan dam
Amy Skillbred: Traveling to Sri lanka to observe elephants and
leopards
Cannot see it due to dam
o Theories:
Ecosystem Nexus Theory: anyone adversely affected by a funded
activity has standing even if the activity is located a great distance
away.
Injury must be actual or imminent
Clapper v. Amnesty International
Law at Issue:
o FISA
Facts:
o Allows US to engage in Wiretapping noncitizens outside the US
Must get approval from FISC
o Claim of Injury:
Cannot actually communicate, must fly there in order to
communicate
Objectively reasonable likelihood that communications will be
wiretapped
If you dont find injury for people like us who think that there is no
injury/wiretapping
Court says, there must be injury that is certainly
impending
o No proof that anyone is eavesdropping on what they
are saying
o If spying on them, might be another way to get
information
o No actual knowledge
In order to have a case they would in essence have to
actually have a suit already brought against them in order to
KNOW that they have been tapped

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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

OR Verizon or service provider does it on behalf (yeah

not likely)
Piper v. Drug Enforcement Agency: [Simulation]
Injury problems
Redressability problems:
Causation:
o Did DEAs action cause VAs injury Pipers injury?
Fairly traceable
Certainly Imminent
**How important it is, when filing a complaint to think about defendant
Prudential Standing:
Third party standing
Generalized Grievances
o US v, Richardson
Article 1: Sec 9: requires publication of a regular statement and
account of receipts and expenditures of all public money
CIA fails to report
Taxpayer files suit alleging injury to a taxpayers right to know
how their money is being spent
Court finds no standing
Federal courts will not get involved on your behalf
**Ordinary tax payers that arent directly injured are still able to
challenge govt expenditures as violate of 1st am.
o Standing takeaways:
Role of standing and justibility doctrines in separations of powers
scheme
Elements of Art III standing: Injury in fact, causation,
redressability
Allen v. Wright
Lujan v. Defenders of Wildlife
Clapper v. Amnesty international
Prudential elements:
Generalized grievances (Richardson)
Political Question Doctrine:
o Name is misleading
Doctrine refers to subject mater as the court deems inappropriate
for judicial review and as a result stays out of it and leaves it to
political branches to figure it out
o Why have a political question doctrine at all?
Minimized counter-majoritarian difficulty
Allows court to be deferential to branches that know more
Paid to figure out answer to these questions

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o Political Question Doctrine: The Baker v. Carr Test:

Textually demonstrable commitment of the issue to a political
branch
Lack of discoverable and manageable standards
Involves an initial policy determination more appropriate
for non-judicial discretion
Would involve lack of respect for other branches
Would involve adherence to a political decision already
made
Would result in embarrassment from multiple
pronouncements from each department on a constitutional
question
Dismissing cases on Political question grounds does this very
rarely
Comes up on three examples:
Exercise of War power
Treaty ratification and rescission
Foreign policy: *Most common
o Goldwater v. Carter
Carter rescinds a treaty with Taiwan
If you need Senate approval to make
a treaty, it should be required to also
have Senate approval to rescind one
o No explicit rule for rescission
Therefore, Political
Question Doctrine,
and non justiciable
Court will not decide whether Carter
violated
o Textually demonstrable commitment of the issue to
a political branch
Impeachment
o Nixon v. US
Senate delegates Impeachment trial
Senate shall have the sole power to
try all impeachments
o Art. II Sec. 4:
The president, VP and
all civil officers of US
shall be removed
Congressional self governance
o Filibuster
Some electoral process question
o Partisan gerrymandering
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Article V processes
o Guidelines for constitutional convention
o When it is appropriate?
o Wrap up on Art. III
Judicial Review
Marbury v. Madison
Counter-majoritarian Difficulty
o OUTLINE: *Must identify each element
specifically, and input cases
Exceptions clause
Mccardle & Klein
Justiciability doctrines
Standing
Allen, lujan, calpper and Richardson
PQD:
Goldwater & Nixon
Next Class:
o Art. 1 Section 8
Focus on Art. 1 and legislative powers
CLASS FIVE: SEPTEMBER 9, 2014
Separation of Powers: Idea that three branches of govt exercises powers that are limited
to their spheres, what theyre vested with.
People are self interested and so are politicians, building empires designed to
serve themselves
o framers operating as backdrop against british monarchy
Check against self-interest and tyranny
Preserve individual liberty:
If one branch was powerful, the first thing they would do is
trample on individual rights
o Limit powers and lessen risk that any individual
branch will infringe on minority
Preserve federalism
Specialization: Giving one branch a specific duty/power, they will
get really good at their job
Not perfect: Const. departs from strict separation of powers: CHECKS AND
BALANCES
o Pres can veto legislation involving President in legislative process
o Senate can give nominees, involving legislative branch in executive power
to nominate representatives
States as entities of general jurisdiction: Police power:
o Empowered to regulate health, safety, welfare, and possibly morals.
Congress powers are limited to those enumerated in the constitution

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o In order for congress to pass legislation, it must be able to point to specific

authority in the constitutional text
What limits the constitution imposes on states:
o Any area where constitution says to the states NO?: Article 1; sec. 10
Policy Question Raised: Why should we have states in the first place?
o Localism: State governments are much closer to the people
o Loyalty to their state sense of pride
o States as Labs to experiment for new ideas
o Check on federal government decreases likelihood of federal tyranny
o Promotes individual rights
50 other centers of power to act as zealous guardians of individual
rights
States may have political tools to fight back against the political
government
Allocation of Power between National Govt and States: Federal Supremacy
[Cooperative Federalism] State Sovereignty
If you see a federal law: DOES CONGRESS HAVE THE POWER TO DO THIS
[UNDER ARTICLE 1]

Whenever you see a federal law:

FIRST: Ask whether it falls within the scope of Congress constitutional
powers
Then: IF YES, ask whether it violates some other provision of the
Constitution?
ARTICLE I: VESTING CLAUSE:
Section 1: All legislative powers herein granted, shall be vested in a Congress of
the United States which shall consist of a Senate and House of Representatives
o What is legislative power? What did Congress get vested with?
o Herein Granted MUST ACT WITHIN THE POWERS
ENUMERATED AND LIMITED
o ARTICLE I: Section 2:
Establishes and structures House of Representatives
Direct election
Qualifications for membership
Apportionment and 3/5 Clause
Sole Power of impeachment
Article I, Section 3:
o Establishes and structures US Senate
o VP serves as President of Senate; no vote unless theres a tie
o Sole power to try impeachments
o Election by State legislatures
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Anytime Congress acts, it must act under powers listed under Art. 1
Art. 1 Sec. 8:
o 18 Enumerated powers [only focus on]:
Necessary and Proper Clause
Commerce Clause
Taxing and Spending Powers
o **14th Am., Sec. 5: Added power
Art. 1, Sec. 9:
o List of things Congress cannot do:
Suspension Clause
Anti-Nobility Clause: Cannot confer aristocratic government (we
the people)
Ban on ex post facto laws
Art. 1, Sec. 10 (Limits on State Power)
o Cannot enter treaties, alliances with foreign nations
o Cant take more, cant coin money
o End economic warfare on states
How can Congress check the other branches?
o Pass laws that supersede federal regulation
o Adjourn Supreme Court
o Veto bill ability to override presidential veto
o Oversight

McCulloch v. Maryland:
Does the Constitution give Congress the power to charger the second bank of the
US? YES
McCulloch Simulation: Law Clerk for a justice who wants to write a dissent in
McCulloch. He has asked for your help in writing an outline:
o Let the end by legitimate, let it be within the scope of the constitution
o Recent Articulation of Necessay and Proper Clause Test:
[W]e look to see whether the statute constitutes a means that is
rationally related to the implementation of a constitutionally
enumerated power. US v. Comstock.
Supremacy clause imposes a limit on MDs ability to tax federal
entities
Does Congress have the power to create the national Bank? YES
Does Maryland have the power to tax it? NO
Takeaways on McCulloch:
o Court weighs in on the side of expansive federal power
o Necessary and proper clause is not an independent grant of authority

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o Provides Congress with means to exercise other enumerated powers

o Article VI Supremacy Clause sets limits on state interference with federal power.
CLASS SIX: SEPTEMBER 11, 2014
Necessary and Proper Clause:
Gives congress the latitude to find the means congress is using and its enumerated power
*McCulloch: States cannot tax the federal government
The Commerce Clause: The Power Congress Most relies upon within Art. 8 to get stuff
done
Federalism: National and state govt has some divvying of power
Sources of State Power
o Police Power to regulate:
Health
Safety
Welfare
Morals (?)
o Not mentioned in constitution:
Residual power that states kept when they gave over power to
federal govt when they signed and ratified federal government
Constitution limits police power:
Bill of Rights
Article 1, Section 10
Article VI Supremacy Clause
o When States exercise power over federal govt:
preemption
Federal Law TRUMPS state law
Over time Congress has used its enumerated powers in
connection with Necessary and Proper clause
o Over time see federal government get bigger and
bigger
o Role of Statutes in Constitutional Law:
Two ways to bring a constitutional challenge to statutes:
Facial Challenges: Statute is unconstitutional in ALL its
potential application; remedy is that the entire statutory
provision is struck down
As Applied Challenges: (Most common) Statute is
unconstitutional as applied to the particular facts of the
case; remedy is that statute remains valid but cannot be
forced against the parties in the case
o Can still be applied to other people who dont
have the same situation as you
Govt can still apply the law

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Doctrine of Constitutional Avoidance:

When Possible: courts should avoid issuing constitutional
rulings:
o When plaintiff brings claim that a government
action violates both a statute and the constitution;
courts more likely to rule that the action violates the
section
o When a statute violates the constitution, courts are
more likely to issue a narrowing interpretation of
the statute so that it conforms with the Constitution
rather than striking down the entire law.

Article 1, Section 8: Commerce Clause: Congress shall have the power to regulate
commerceamong the several states
Historical analysis:
o Development of Commerce Clause Doctrine:
Early Period (Gibbons 1885)
Lochner Era (1885-1937) Court Shrinks Congress Power
o Post-Lochner Era (1937-1995) Congress backs off;
adopts a broad definition of commerce
Modern Era (1995-Present)
Gibbons v. Ogden:
Facts:
o Ogden wins in state course granting exclusive license
Basis of Gibbons argument: federal license is valid
o Ogden Argument:
Falls outside; and is unconstitutional because it falls outside the
scope of congress commerce clause
Defines Commerce as: Buy and Sell commodities
Buying and selling of goods across state lines
Gibbons textual argument: Look at the original meaning at the time it was
adopted
o Congress thought it was about something broader
Federal license trumps NY license
o NY Defines the Scope on Congress Commerce Power
Whats at stake:
o Adopt Ogdens limited scope of congress and adopt Gibbons: Federal
License argument
The Court has an expansive definition of commerce; impacts how the doctrine
develops
o *No dissent (like McCulloch and Marbury) This is done on purpose;
wanted the Court to have 1 voice
Direct conflict between federal and state law: here NY law is preempted by
Federal law
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HISTORY OF COMMERCE CLAUSE:

Historical analysis:
o Development of Commerce Clause Doctrine:
Early Period (Gibbons 1885)
Lochner Era (1885-1937) Court Shrinks Congress Power
o Post-Lochner Era (1937-1995) Congress backs off;
adopts a broad definition of commerce
Modern Era (1995-Present)
EARLY PERIOD (GIBBONS -1885)
National Govt leaves states national policy makers during first 60 yeas after civil
law
o Marshall sets the stage for broad national power but
Limited Congressional activity from founding till civil war
Whats the Federal Govt doing:
o Operated post office
o Maintaining armed forces
o Building highways
o Passing tariff bills
o **Fighting about slavery**
Whether it can extend to western territories
to new states or not
o Ct doesnt declare a single act of congress
unconstitutional following Marbury until Dred Scott
Framers believed states and their constitutions would be primary guardians
o Reconstruction Amendments: 13th 14th, 15th
**Each amendment contains a clause granting federal govt a new
power to enforce these amendments
national power can now be used to protect individual
liberty
o federal govt empowered to see a state violating, to
pass legislation to say NO
o Greater economic integration
Transportation
Industrialization
Urbanization
Bigger economy
More interdependent
Congress begins to create Administrative state: All expansions of national power
Economic changes for expansion of power
o Increased focus of federal power
Progressive era: starts to usher in a new desire for government on
all levels to regulate economy

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Industrial revolution creating harsh working conditions

Greater desire on the part of the progressive era for federal
and state govts to do something about economy
Economic regulation becomes a thing
LOCHNER ERA: (1885-1937): The Courts Response
Court becomes a policeman to enact economic legislation in this era
o Court uses 1 set of tool to strike down federal economic legislation
o And another for state economic legislation

First:
o Constraining definition: 10th Amendment
o Infringing on state powers
o Court strikes down state economic legislation under: 14th amendment due
process clause
Courts actions become a HUGE problem
Great depression causes economic upheaval
o Increased demand for national action
*Much of law in Lochner Era is obsolete
Why Care?
o 1) Resolution defines the relationship between federal and state
governments
o 2) The Constitution in Exile: many ppl want to return back to Lochner
banished in 1937; pre-new deal constitution should be restored
You want to challenge Federal Law beyond scope of congress power
o Argue Commerce definition is much smaller than what congress suggests
o Even if congress is regulating congress; unconstitutional because it falls
under powers of states under 10th amendment:
Imposes a limit on what Congress can do under Art. 1
Two theories of the 10th Am.
o Truism: No real effect: 10th Amendment just
confirms that congress must act pursuant to an
enumerated power.
Who is allowed to exercise powers who
arent enumerated in Art. 1:
The list of powers Congress has is
exclusive.
o Affirmative Protector of State Sovereignty:
Force Field: Even when congress acts under
enumerated powers, it cannot legislate in areas that
are exclusively reserved to the states under the 10th
amendment (Congress in violation)
Even if you can do this under Art. 1 10th Am.
acts as a limit on what Congress can and
cannot do.
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POST-LOCHNER ERA (1937-1995) Congress backs off; adopts a broad definition

of commerce (The New Deal Era)
FDR wins 1936 Election: campaigns against Supreme Court
Constitutional meaning is solely for the Court to determine
1937: FDR Responses with Court Packing Plan
o Adds a new justice for the supreme court for every justice over the age of
70
o Proposal discusses age of Supreme Court justices
Younger blood will revitalize courts
o Due to Article 5: months or years to change Const. to a formal amendment
o 1937: Challenge to National Labor Relations Act
Protects Workers rights to unionize collective bargaining
Arguing non-regulation of workers production and
production is not commerce
o Roberts: shifts into majority and that means
Roosevelt will start winning cases
Court packing plan defeated
BUT when Court begins to uphold economic legislation; expands
instantly
US v. Darby:
Court upholds Fair Labor Standards Act
Commerce Power extends to intrastate activities that affect ISC
Congressional motive doesnt matter
10th Amendment is a truism
o Where does Const. say Employer/Employee relationship is protected?
Political Process: theory this Court is operating on
o States could defend themselves against expansive power
Wicker v. Filburn:
Law at Issue: Fair Labor Standards Act
Farmers affected after wheat being so cheap
Fillburn uses most of wheat on his own farm
o Exceeds his quota by growing too much wheat on his own land
Theory of the Case:
o Not interstate
Congress must show its a substantial economic effect:
o Argument: If everyones going to be growing their own wheat for
themselves, no ones going to be buying it across Kansas
Lower demand: Lower prices
o Shifts focus on commerce clause: aggregation allows you to establish a
substantial economic effect
o As long as congress can show that theres a substantial economic effect
o Court uses aggregation to find a substantial economic effect

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Broad: Congress can come in and regulate the amount of what you
can grow even if that wheat doesnt leave state
o Enables federal regulation to reach purely intrastate activity
1937-1995: Court doesnt overturn 1 piece of legislation based
upon commerce clause
Civil Rights Act of 1964:
Prohibits race discrimination in places of public accommodation including
restaurants and hotels
Major debate in congress over which enumerated power to use: Commerce Clause
or Section 5 of the 14th Amendment
Problem: 1883: The Court declared a similar law unconstitutional: tried to
prohibit race discrimination in 1875
Congress figured why take the chance and lets rely on commerce clause

Heart of Atlanta Motel v. United States:

Unconstitutional because Congress doesnt have the power under commerce
clause to regulate
Facts that are significant re: commerce
o Argument that Hotel is engaged in interstate commerce
o Visitors from outside state to stay at hotel
o Interstate highways
o 75% of clients are from out of state
Congress: Substantial Economic Effect
o Court relies on the activity thats being regulated is racial discrimination
o Effect: less likely to travel
Economic Effect: Decreases
Stimulate commerce; prohibit race discrimination
Pre-text: Local argument; thrown out the window; might have a
substantial and harmful effect on interstate commerce
Motive: Irrelevant so long as substantial economic effect
Congress made no findings (did not do its hw to explain race discrimination
between interstate commerce and race discrimination)
Katzenbach v. McClung: (Ollies BBQ)
No evidence that anyone from out of state went to Ollies
Buy $150,000 worth of food
o $70K local supplier buying food interstate
Representing Ollies:
o Not advertising to people from OOS
o Not close to any interstate highway
Facts necessary to establish interstate commerce argument for Govt:
o End of interstate supply chain
o Wicker: Aggregation to show a Substantial economic effect
Same rationale as Heart of Atlanta Hotel
Congress must show: As long as Congress has a rational basis
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o Some conceivable connection

Could Congressregulate the employees at public accommodations must wear
at work?
o **BROAD standard in Ollies BBQ
Question of whether theres anything CONGRESS cant do under
commerce clause
CLASS SEVEN: SEPTEMBER 16, 2014
Commerce Clause Power only comes into play when there is a federal law issue; only
empowers congress, not states.
First look for FEDERAL LAW or STATE LAW
Review from last class:
Early Period: Gibbons -1885
o Broad Commerce Power
Lochner Era: 1885 -1937
o Court limits Commerce Power
Post-Lochner Era: 1937-1995
o Broad Commerce Power
o Rational Basis scrutiny
Wickard, Gibbons, Ollies BBQ, Heart of Atlanta Hotel = all good law
o Reconcile all these cases
Court doesnt care what Congress actual motive was
o Moral outrage is what court is concerned about
Simulation: Federal Machine Gun Ban
o Possession of a Semi Automatic weapon has a Substantial affect of
interstate commerce:
Deterrence of Interstate Commerce
o Rational Basis Scrutiny must have economic activity
Congress passes a lot of federal civil rights legislation
o Takes advantage of courts expansive vision of power
Congress federalizes criminal law
The New Federalism???
o Commerce Clause
o 10th Amendment
o 11th Amendment
Ability to sue state governments in federal court
o Track Courts Commerce Clause
Court revisits 10th Am. Jurisprudence
Enforcing 10th am.
US v. Lopez:

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o Gun Free School Zones Act: [Congress makes it] a federal offense for any
individual knowingly to possess a firearm at a place that the individual
knows, or has a reasonable cause to believe is a school zone.
o Congress is generally concerned, and wants to step in
o Facts:
D is a HS senior at San Antonio Tx school
Charged with both state offense and federal offense under
Act
o Govt Theory:
Regulating these activities substantially affects interstate
commerce
Guns at school decrease quality of education
o Therefore lower paying jobs
Rehnquist:
o Congress can regulate Channels of interstate commerce (Darby)
o Congress can regulate and protect the instrumentalities of interstate
commerce or persons or things in interstate commerce
o **Congress can regulate those activities having a substantial relation to
interstate commerce
Congress has not issued any legislative findings
Slippery slope concerns concern that if this is allowed, Congress
can regulate ANYTHING
Federalism issues
Not commercial activity
Distinguishing Heart of Atlanta Hotel, etc.
o Noneconomic non commercial land
No jurisdictional element: When defining elements of crime, court
wants there to be an actual link between interstate commerce and
the act
Justice Thomas:
o At the time the original constitution was ratified, commerce, consisted of
buying selling and bartering, as well as transporting for these purposes.
o Substantial effects test written into constitution:
All American people behind you
o Pre-commitment response
Takeaways on Lopez:
3 Part test
o Channels
o Instrumentalities
o Substantial effects
Commercial non-commercial activity
Focus on
o Lack of connection to a larger regulatory scheme

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o Lack of jur. Element

o Lack of congressional findings
Re-engagement of federal courts in policing federal boundaries
US v. Morrison:
Challenge to violence against women act of 1994
VAWA allows victims of crimes of violence motivated by gender to sue their
alleged perpetrators in federal court for civil damages
o Why was congress getting involved?
Maybe states not taking action and allowing remedy for both
compensatory and punitive damages
o **Distinguishable from Lopez because there is legislative history
o **More connected
Court holds that VAWA is unconstitutional, Crimes of violence are not economic
activity
Wickard: survives
Takeaways on Morrison:
Distinction between economic and noneconomic activity
Willingness to scrutinize congressional findings for regulating non-economic
activity
Continued strength of rational basis test and aggregation?
Lopez not a one-hit wonder
Gonzalez v. Raich:
Federal Law: Marijuana is a schedule 1 substance under the controlled substance
act
State Law: Californias compassionate use act of 1996 allows possessions or
cultivate marijuana for medical purposes
*As applied challenge: Raich argues that it is grown in her house, with no selling
or buying happening, you cant touch it.
Distinguishing this from Lopez and Morrison:
o Regulating the economy/market
Are trying to regulate economic market
Even though Respondents activity is not economic
o This would affect supply and demand of MJ
More supply, price goes down, more people
using it
Within scope of Congress Commerce Clause
Court applies: Rational Basis Standard
o Court applies Rational basis scrutiny to economic activity
Defines Economic Production, distribution, and consumption of
commodities
Part of a larger regulatory scheme
o Whole scheme designed to regulate markets for illegal drugs
Bigger picture

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Even in Raichs situation, if it is part of a regulatory

scheme to decrease controlled substance

Takeaways:
Court doesnt like drugs
Aggregation lives
Larger regulatory scheme
Expansive definition of economic activity
o Production, distribution, and consumption of commodities
No requirement of particularized findings by Congress on substantial effects
For Next Class:
1) South Dakota v. Dole (Spending power)
2) NFIB v. Sebelius (Affordable care act)
a. Commerce clause
b. Taxing power
c. Spending power
CLASS EIGHT: SEPTEMBER 18, 2014
NFIB v. Sebelius:
*Both policies are ways of expanding people to have some form of health insurance
Individual Mandate:
o Requires some individuals to purchase health insurance from private
insurance providers; additional tax penalty for failure to comply.
Medicaid Expansion:
o Expands scope of state Medicaid coverage through additional grants;
states lose all Medicaid funding if they fail to expand
Simulation:
Sebelius:
o Substantially affects on Interstate Commerce because it can raise or lower
prices on insurance premiums.
o Rational Basis: *individual mandate provisions
o Larger regulatory scheme to regulate economic activity
Economic activity
NFIB:
o Every state has different needs
o Jurisdictional element problem because congress cannot (Lopez)
o Activity is not economic in nature *Morrison and Lopez
Lopez: activity is too far removed from chain of interstate
commerce
No activity here, nothing to regulate
Forcing (Wicker) farmer filburn to go and sell his wheat on
interstate commerce
Court holds congress does not have power to enact individual mandate provisions
Roberts + Dissenters

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Rationale:
o Individual mandate: Congress doesnt have the power to force people to
engage in individual activity
The Commerce Clause:
o NFIB:
Congress can only regulate commercial activity
Congress cannot force individuals to engage in commerce or
regulate inactivity
Is this dicta? Upholds individual mandate provision under taxing
power
ACA wins
Is the ACA unique?
o Congress did this in a really weird way
Taxing Power:
o Art. 1 Sec. 1: The Congress shall have the power to lay and collect taxes,
duties, imposts, and excises to pay the debts and provide for the common
defence and general welfare of the US; but all duties, imposts, and excises
shall be uniform throughout the US.
Debate
Even if congress doesnt have the power to regulate that activity, it
can still tax, so long as the dominant intent is to raise revenue
rather than regulate
o Art. 1. Sec. 9: No capitation or other direct tax shall be laid unless in
proportion to the census or enumeration
Court strikes down income tax
Response: 16th Amendment: Congress shall have power to
lay and collect taxes on incomes, from whatever source
derived without apportionment among the several States,
and without regard to any census or enumeration
If a tax is found to be a penalty it can only be upheld if justified a
valid measure
Tax vs. Penalty (NFIB)
o Tax and power arises in ACA:
Congress wants to remain on safe side so
they came up with another taxing power
(individual mandate)
Individual Mandate provision: Congress:
Tax because: Money goes to IRS
No income tax: no individual mandate penalty
o Looks walks and talks like a tax
Not a tax: Art. 1 Sec. 9
Doesnt use the word tax it uses the word penalty:

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Congressman didnt use word tax because they will be

voted out of office (constituent backlash) instead called it a
penalty
Worried that the Courts legitimacy would be in trouble Countermajoritarian difficulty
Spending power:
o Art 1. Sec. 8: The Congress shall have power to pay the debts and provide
for the common defence and general welfare of the US (spend money)
Conditional Spending:
Federal grant money contingent on a state taking a
particular action (Conditional on states doing something)
o Problem: Federalism dimension to it
o Problem: Political accountability problem (federal
officials place blame on state legislature)
o Problem: Allows Federal Govt to force states to do
an end run around those limits
South Dakota v. Dole: (1987)
o Low alcohol beer
o Conditional spending program
o Congress enacts a law directing secretary of transportation to withhold a
percentage of the states federal highway funds if they allow persons under
age 21 to drink
o Argument 1: 10th Amendment
o Must see a connection: How does withholding a percentage of states
highway funds have to do with states lowered drinking age
o Underlying federalism concerns:
If you let fed govt coerce states into doing something they dont
want to do, make a joke out of state legislatures
Must be unambiguous and transparent
Must be in pursuit of the general welfare
NFIB Spending Clause Decision
o Medicaid Expansion:
Expands scope of state Medicaid coverage through additional
grants
Medicaid: conditional spending program
o Congress tells states that they need to set up a
program to meet these requirements and they will
pay for it
States lose all Medicaid funding if they fail to expand
Old Medicaid vs. New Medicaid
o Old Medicaid:
States cover a certain amt of people, you get
money from fed govt

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New Medicaid: Want states to expand

Medicaid and if you dont, they will take
away all your old Medicaid funding.

Challenging Law:
o South Dakota v. Dole VS. NFIB v. Sebelius:
Dole says they will take away 5%; Sebelius: take away ALL
funding
Penalty re: New Medicaid:
Take away old Medicaid money and its somehow unrelated
o Court says: Unconstitutional
Need to give states a genuine choice no real option with ACA
Gun to the head
Can take away new money, they just cant take the old
money
Takeaways NFIB:
o Court upholds as a tax: places first limit on congress conditional spending
power
Never overturned anything re: beyond congress scope of
conditional spending
Places limits on Congress power on CC
Next Class: Federalism:
o 10th Am.
Truism Theory (Garcia)
o Commandeering Exception
o 11th Amendment
CLASS NINE: 9/23/14

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Goals
Does the 10th Amendment reserve certain spheres of policy
exclusive for state regulation
Are there 10th Amendment limits on Congress ability to order
states to take certain actions
Are there limits on Congress ability to allow states to be sued
for money damages for violations of federal law or the
Constitution itself?
Review from last class
Commerce Clause
o NFIB v. Sebelius
Taxing Power
o NFIB
Spending Power and conditional spending
o SD v. Dole
Court imposed rules on Congress use of spending
power
o NFIB
Court FOR THE FIRST TIME enforced limits on
Congress spending power
10th Amendment
Wording of the 10th Amendment
o The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the Sates Respectively, or to the people
State sovereignty force field?
Causes of action on a 10th Amendment Case
o Even if the action falls w/I Congress powers, it violates
the 10th Amendment in some way
Timeline
o Lochner Era (pre-1937)
10th Amendment is an independent limit on
federal power protecting areas of purely local
concern
o New Deal 1976
Truism theory
Truism - a statement that is obviously true
and says nothing new or interesting
o 1976
Challenge to FLSA Amendments
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4pm Tues/Thurs

10th Amendment prevents federal government

from regulating traditional state functions
No clear definition on what a traditional
state function is
o Garcia v. SAMTA (1985)
Overrules National League of Cities
Return to truism theory
o 1992 Present
Anti-commandeering exceptions to the rule in
Garcia
Garcia is the rule, anti-commandeering is the
EXCEPTION to the rule (listed below)

Garcia v. SAMTA (1985) Textbook p. 185

10th Amendment challenge to 1974 Amendments to Fair Labor
Standards Act
o Extends FLSAs minimum wage and maximum hour
provisions to state employees
o Congress wanted to extend the provision to state
employees
Before this, the provisions were only generally
applied to employers
Commerce Clause application
o Congress was allowed to extend this provision under the
Commerce Clause
o If people have more money to spend, theyll buy more
things
Argument against
o Under traditional state authority, states may determine
how much they pay their employees. Thus, federal
regulation is outside of Congress scope under the 10 th
Amendment.
Courts determination in opposition to this argument
o The court does not want to determine what traditional
state authority and declined to determine the
parameters of this under the 10th Amendment
o Dont argue about fixed areas of traditional state
authority on a test. Prof. Gewirtzman will think that
you have no idea what youre talking about
o States can use the political process as a safeguard of
federalism and federal encroachment on their turf:
States have equal representation in the Senate

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4pm Tues/Thurs

Small states have the same leverage in the

Senate as large states
Article I, Section IV elections and meetings
States have the ability to choose the time,
place, and manner of federal elections
(control over federal elections)
States have control over federal elections
States get grant money from the federal
government states arent as screwed as they
think
States get to draw districts in the House of
Representatives
Allows states can influence elections in the
House of Representatives
Class Discussion
o Issue of satisfaction with the Courts determination that
they refuse to define structured parameters of
traditional state sovereignty; taking a hands-off
approach and reverting to remedy through the political
process
Do your damn job criticism
o Stare decisis concerns
No stability and consistency
Take Away
o Court rejects the notion that Congress is limited in its
ability to regulate the states under the 10th Amendment
and takes a truism approach
The 10th Amendment is a truism
Read the 10th Amendment out of the Constitution
itself

New York v. United States (1992) Textbook p. 220

Background
o Low Level Radioactive Waste Policy Amendments Act of
1995 (LLRWPAA)
Not enough disposal sites for radioactive waste,
and states od not want to build them
Compromise bill negotiated by National Governors
Association and passed by Congress
LLRWPAA

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4pm Tues/Thurs

o Congress gave states the choice of building their own

waste dumps, assisted by Congress; OR states will have
to bring a federal surcharge when bringing their waste
to other states.
o Build a site that complies with federal standard; OR
compliant states can deny your waste
o Take Title Provision
You build a site that complies with federal
standards; OR you own all the waste in your
states and the financial and legal liabilities that
comes with it $$$
Requires state legislature to pass a law
New Yorks argument
o Filed a lawsuit against the federal government asserting
that the Take Title Provision violated the 10th
Amendment
o Congress cannot tell state legislatures to come in and
pass a law called commandeering (term of art)
o Distinguishable from Garcia because that case dealt
with public and private employers. It discussed a law of
general applicability. In this case, Congress is
targeting EXCLUSIVELY and ONLY states
o Political process is insufficient for NY to get a remedy
because the LLRWPAA affects a number of states, not
just one
Federal governments argument
o Under Garcia, a state cannot use the 10th Amendment
as an argument because the 10th Amendment it is a
truism
Ruling
o The Take Title Provision is declared unconstitutional and
is a violation of the 10th Amendment
o Court defines commandeering
Cannot force state legislature to pass a federal
regulatory scheme
Justified this determination under:
Structural modality argument

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4pm Tues/Thurs

Political accountability problem

created by the Take Title Provision
by forcing the states to take title and
impose a federal regulation through
state means, the federal government
is dodging accountability in the eyes
of the public
People will get mad at the state
legislature, and not the federal
government
Commandeering allows Congress to
put state legislature on the block and
take themselves off the hook
State sovereignty
The Court takes federalism seriously
and says that the federal government
cant just come in and tell states what
to do
o Options that Congress has to influence state policy
Conditional spending
Make a federal law that contradicts state laws and
enforce it under the Supremacy Clause
Class Discussion
o But the states were integral in drafting this Act!
Court takes the 10th Amendment very seriously
and determines that states are, in fact, sovereign
o Who cares though?
The Court states that the whole point of
federalism isnt to protect states. The purpose of
federalism is to protect the rights of individuals
o Balancing test
Take Away
o Anti-commandeering principle
Federal government may not compel the states to
enact or administer a federal program
Federal government can use preemption or
conditional spending to influence policy
Laws of general applicability y- where states are
regulated the same as private entities the
commandeering principle shall not apply

Printz v. United States (1997) Textbook p.

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4pm Tues/Thurs

Background
o Brady Handgun Prevention Act
Requires federal instant background check for gun
purchases by November 1998
In interim period, state CLEOs (the chief law
enforcement officer of a STATE) must make
reasonable efforts to determine whether gun
sale is lawful
o The FBI would take responsibility for background checks
but, in the meantime, the states had to regulate this
federal Act
Argument against this Act
o Violation of the 10th Amendment
State officers should not be compelled to execute
the regulations of a federal law commandeering
argument
Federal argument supporting this Act
o Distinguishable from New York because gun control is a
big deal problem; bigger than low-level radioactive
waste.
o In New York, the federal government made state
legislatures create a new law. In this case, youre just
making some police officers enforce an already-made
federal law
Ruling
o Act was unconstitutional
o The federal government cannot conscript state officers
and make the enforce a federal regulatory program
o Courts justification:
Political accountability
Administration of federal law cannot be
allocated to people not directly under the
Presidents control
Prior jurisprudence New York
Doctrinal argument that this case is just like
New York
Historical argument
Back when the 10th Amendment was
adopted, the federal government didnt do
things like this
This Act is unprecedented, especially in
early 10th Amendment history

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4pm Tues/Thurs

Simulation
Reno v. Condon (2000) Textbook p. 238
Limit to the commandeering exceptions under New York and
Printz
Background
o Drivers Privacy Protection Act of 1994
Regulates disclosure and resale of personal
information collected by the state DMVs
Regulates the states and anyone who winds up
with the information that the states are selling
o South Carolina made it very easy for their DMVs to sell
this information
Argument against this Act
o Act violates the 10th Amendment because it constitutes
commandeering in forcing state employees to
implement a federal regulatory scheme
State employees have to take the time to learn
what the law is and apply it eats up time and
money
Ruling
o The Act is constitutional
o Distinguishable from New York and Printz:
This act is a negative prohibition just telling
states to NOT do something
This act is a generally applicable law, just like
Garcia
o Go big or go home argument
Federalism summary
10th Amendment as truism Garcia
10th Amendment subtext in Commerce Clause cases (Lopez,
Morrison, NFIB)
Anti-commandeering principle for state legislatures (New
York) and State officials (Printz)
Questions to ask:
o What are the interests underlying the federalist
structure?
o Are political safeguards sufficient?
11th Amendment
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Prof. Gewirtzman

4pm Tues/Thurs

Textual and Historical Background

o Article III, Section II the judicial power shall extend
to all cases between a state and citizens of another
state
o 11th Amendment The judicial power of the United
States shall not be construed to extend to any suit in
law or equity, commenced or prosecuted against one of
the United States by citizens of another state or by
citizens or subjects of any foreign state
o At the time that the 11th Amendment was created,
sovereignty was a big deal issue in England
o 1792
States amend Article V and create 11th
Amendment
Amendment does not mean what it says! (you have to ignore
the text)
o The court has extended this to mean that you cannot
sue your own state in federal court for money damages
Exceptions to the 11th Amendment
1. Ex parte Young suits for prospective injunctive relief
money damages against federal officers in their individual
capacity
2. Suits brought by the United States
3. State waiver
4. Congressional Abrogation under Section V of the 14 th
Amendment

Next Class
Article II and Executive Power
o Constitutional text
Implied Presidential Power
o Youngstown Sheet v. Sawyer
Seizure of domestic steel mills
Pay attention to Justice Jackson
o US v. Nixon
CLASS TEN: SEPTEMBER 30, 2014

Separation of Powers:
o Executive branch can get messy
o Informal negotiations between executive and legislative branch
o Overall themes
o Separation of powers vs. checks and balances
o Prevention of tyranny vs. efficiency
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4pm Tues/Thurs

Promoting efficiency
o Formalist vs. functionalist approaches to thinking about separation of
powers
Why separate powers?
o Guard against tyranny
o Preserve individual liberty
o Support federalism by controlling federal power
o Specialization
Coordination of multiple assent for the govt to do any thing
Formalism:
o Each branch can only exercise the type of power it is vested with
i.e. congress and only congress can legislate
Dinner Plate example: Meat = Congress: if the issue is
only something that is legislative, only congress can
exercise power over it
Functionalism (Much messier dinner plate)
o Not looking to preserve rigid lines, step in only when one branch of
exercising power impeding functions
Asks whether one branchs actions interfere with the core functions
of another
Framers believed that Congress was the most powerful branch
Presidents Institutional Advantages
o Single person vs. Multi-Member body
o 24 Hour responsibility vs. periodic sessions
Vesting Clauses:
o Article II: Section 1 The executive power shall be vested in a president
o Qualification requirements:
4 Year renewable term
National constituency
Age and residency requirements
Concerns that some Euro nobles would throw their money
around to buy the office
o Well placed rich euros would be able to come in and
capture office
Fixed compensation
Congress cannot cut or raise salary
o Can veto the law by presenting the bill to congress
Veto power is significant because it expresses constitutional
objections to a bill
Pardon power: really broad: no reason toe exercise his power to
pardon, decisions are not subject to judicial review
Can pardon someone whos accused and condition it on
anything

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Constitutional Law

Prof. Gewirtzman

4pm Tues/Thurs

Pardon power is limited only to federal offenses

Cannot trump impeachment power
o Doesnt prevent congress impeachment
President gets to make treaties
Power to ratify treaties gives senate clear executive
authorities
Article II doesnt say anything about how to rescind a
treaty
President gets to appoint executive officers with advice and
consent of senate
o Gives him personal responsibility
o Not going to be overruled by cabinet officers that
are not appointed my him
Requires president to give the state of union address
Take care that laws are faithfully executed
o Where in constitution does president have the power to do this
Youngstown Sheet & Tube Co. v. Sawyer:
Truman seizing steel mills after strike from steel mill workers
Argues Truman was unconstitutional because it was outside of executive power
o Emergency
o Congress wanted to seize property
o Textual argument: No constitutional provision allowing president to seize
*Justice Black issues majority opinion of court, over time justice Jacksons
concurrent opinion that is binding law
o Black: If president can do it: An act of Congress or explicit text of the
constitution itself
No explicit constitutional authority
No act of congress that explicitly allows it, president cannot
do
o When both constitution, and congress is silent,
President cannot act
Must be affirmative source of power either
from congress or constitution itself
Blacks opinion is inefficient
Restrained view of implicit or inherent
Jacksons Concurring Opinion:
o CATEGORY 1:
Does president have express/implied authority from congress
Implied: Past circumstances
Congress fails to act and knows it
If yes: TEST:
o CATEGORY 2:

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Prof. Gewirtzman

When the president acts in absences of either congressional grant

or a denial of authority, he can only rely on his own independent
powers. But there is a zone of twilight in which he and congress
may have concurrent authority or in which its distribution is
uncertain. Therefore congressional inertia, indifference o
quiescence may sometimes, at least as a practical matter enable if
not invite, measures of independent presidential responsibility. In
this area, any actual test of power is likely to depend on the
imperatives of events and contemporary imponderable s rather than
on abstract theories of law.
Depends on different circumstances
o CATEGORY 3:***
When president takes measures incompatible with the
expressed/implied will of congress his power is at its lowest ebb
Congress is then disabled to act
o TEST: IF Congress says no, all you have is what is
in there, Enumerated [Commander in chief power,
etc.]
*Jackson says that in this case, president in this case
Only relies upon his own independent powers; Congressional
inertia invites presidents response
Simulation: Executive power
o Is this an emergency???
o Legislative history???
Youngstown Takeaways
o Branches tend to work these things out themselves
o Importance of congressional authorization
o Case of court telling the President no
Court asserts power that they in certain circumstances get to tell
president that his implied actions are not allowed
o 3 larger themes:
Separation of powers vs. checks and balances
Prevention of tyranny vs. efficiency
Federalism v. functionalism
US v. Nixon:
o When can president keep communications within executive branch?
Inherent executive power
Court could have stayed out of the dispute if the president was
operating in ways that were not constitutional
Impeachment
o Facts:
Subpoenas directing Nixon to produce tapes and docs re:
conversations to aids/advisors

4pm Tues/Thurs

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Prof. Gewirtzman

4pm Tues/Thurs

Courts rejected executive privilege because pres failed to satisfy

rule 17(c)
o Executive privilege exists
Prior to this case wasnt clear if congress had any executive power
o Even if exec. Privilege existed it wouldnt apply here:
Allow criminal justice be administered in a fair way
Need for confidential communications on one side and balance
with need for fair criminal justice system
*Aftermath of Nixon case:
o Pres had been involved in cover up, ordering FBI not to investigate break
in but subsequently resigned
Cheney vs. US District Court
o Distinction between assertion of executive privilege in civil vs. criminal
proceedings
o Court should be mindful of an unwarranted impairment of another branch
in the performance of its constitutional duties
Suggests a narrowing in Nixon in criminal practice
Takeaways on executive privilege:
Expect privilege derives from presidents inherent power under Article II
Subject to balancing test
Next Class:
*Article 1 Bicameralism and presentment requirements
Clinton v. NY
Constitutional Issues raised by the rise of the admin state

CLASS ELEVEN: OCTOBER 2, 2014

Clinton v. NY 1998
Look at questions re: executive powers and separation of powers in a diff context
o Steel Seizure (Truman)
No explicit authorization from Congress allowing president to
seize still limits
o Clinton: looking at explicitly delegated powers, but monitors and controls
exercise power to delegate
o Up to Court to enforce lines of Separation of powers?
Or should Court defer decisions made by president and congress
when they make arrangement to divvy up powers
o All questions are made much more complicated by major change
Dealing with Federal Government
Far more larger, complex than anything Framers envisions
o Line Item Veto: passed 1994:
FIRST: The president MUST sign the entire BILL into law
(including $2 Million dollar for shellfish)***
SECOND: President can then cancel provisions

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Constitutional Law

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4pm Tues/Thurs

*Incentive for president to not use big gun and then be

precise after bill passed what he wants/doesnt want in
place
o THIRD: President notifies Congress
FOURTH: Congress can enact disapproval
bill
FIFTH: President can veto
disapproval brill
o SIXTH: Congress can
override veto

o Key facts:
Bill gets signed into law before president can activate his
cancellation authority
Plaintiffs argument(s):
o Formalist Argument: Allows President to legislate
o Textualist Argument: Not enumerated in constitution
o Historical Argument: Veto or Sign the entire bill?
o Prudential Reasons for not allowing president to do this:
Actually some states are helped
Presidents Argument(s):
o Historical/Precedent: Youngstown Inc.: CATEGORY 1: Expressly gave
president power
o Courts should stay out of this there has already been a check of the
balance of powers between executive and legislative
Level of complexity has expanded dramatically
o President can cancel provisions Not legislative(y) but more of a
redaction
COURTS HOLDING: Line item veto act is unconstitutional
o Point 1: This act should be legislative(y):
If this is legislative action, should go through bicameralism process
o Point 2: Historically: Since George Washington, this is the way things
should continue to be done.
Article 1; Section 7:
o Every billshall, before it becomes a Law, be prevented to the
President; if he approves he shall sign it, but if not he shall return it,
with his Objections
Individual Liberties:
o Good enough reason for the Courts to get involved?
Raises issue of what to do with historical precedent?
o Established practice: go back to GW: only voted up or down
Prudential: Compelling good reasons re: public policy to allow Line Item Veto
Act
o Overall prudential balancing scheme?
Weighing modalities over others
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4pm Tues/Thurs

The Administrative State

Central Question: Scope of power congress can delegate to the exec branch and
whether it can delegate, can it attach strings to those powers?
Framers primary concern re: tyranny focused on congress
o Developed 2 separate schemes with dealing with congress powers being
drawn to impetuous vortexes
Separation of Powers
Executive branch has expanded dramatically starting in 1887
Growth of administrative state presents constitutional problems
o Executive agencies do things that often look legislative or judicial
th
17 Century: All state level changes
By 1887: Big federal agencies out of progressive era
o Insulate rule making from influence of rich people
1937: New Deal: New Agencies
o Agencies exist within executive powers
But powers are broad and look legislative(y)
peas and mashed potatoes problems
o Formalist perspective: Administrative Nightmare
How should law respond to this?
Messy agencies
Court not into messiness in 930s
o Non-delegation Doctrine:
Prevented congress from delegating
executive branch agencies
Not allowed to hand legislative
power off to executive agencies

o Court rejects non-delegation doctrine

Rejection because:
Congress cant oversee legislative process
Adoption would = unconstitutional
Demise of the Non-delegation doctrine:
o Congress ability to regulate agency actions without a non-delegation
doctrine
What are congress available options?
Mechanisms Congress has to overrule administrative
agencies
o Impeachment
o Legislative that agencys inexistence
What prevents congress from aggressive agency oversight?
Working relationship
Party politics: goal is to be reelected/president liking them
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Constitutional Law

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4pm Tues/Thurs

o May be in political interest for Congress to allow

President do whatever he wants
Influence agencies (polluters), trying to get elected into
office

Chaddha
Full house approves subcommittee without a recorded vote
Only went through 1 house of congress
Presentment clause:
o Bicameralism: Arugment:
Four examples: clearly framers knew about this idea
Limit congressional power by the framers
Couldnt have just one house of
Bicameralism
Legislative Veto is constitutional:
o Check with whatever powers were delegated
o Congress subject to bicameralism argument:
Branches of government worked it out
HOLDING: Legislative Veto: Unconstitutional:
o When congress is acting legislatively:
Legislative actions have the purpose and effect of altering the legal
rights
Other options available?
Legal questions:
o Chadha had any real effect
Rule: still stands
Legislative actions by congress must comply with
bicameralism and presentment provisions
Action taken by Congress: must follow and override veto by 2/3rds
margin

Simulation: Compassionate Drug Policy Act:

o Clinton: Art. 1. Sec. 7. President is effectively enacting or amending
Distinguished:
Temporary
Controlled Substance Act is a fully enacted act
o Chadha:
Giving president authority to engage in legislative action
Legislative seriously: apply broadly
Limit on legislative actions taken by congress
o When congress engages in things like this, has to go
through Congress by Presentment
Takeaways:

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Constitutional Law

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4pm Tues/Thurs

Line item veto and legislative veto violate Article I, Section 7s bicameralism and
presentment requirements
o Chadha & Clinton
President and Congress agree on (SOLIDLY Youngstown, Cat. 1)
o Article II Appointments Clause
Can congress delegate appointment of executive officers to other
people?
o Removal
o Presidential power over Foreign Affairs
Dames & Moore
CLASS 12: OCTOBER 7, 2014:

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4pm Tues/Thurs

Article II Appointments Clause Casebook page xlvi

Appointments Simulation
o Congress cannot delegate to itself the power to appoint
executive officials
o Primary/superior officers
Appointments in this category can only be made
by the President
Foreign ambassadors
Judges of the Supreme Courts
Other officers of the US
Cabinet officers
Lower federal court judges
o Inferior officers
Congress can vest the power to appoint inferior
officers in the President, courts, or heads of
departments
Takeaways
o Different rules for principal and inferior officers
o Factors for distinguishing between inferior and principal
officers (Morrison)
o Congress may not make executive appointments
o Senate advise and consent not required for all
executive branch appointment only for principal
officers

Alexia Morrison, Independent Counsel v. Theodore B. Olson

P. 354
Independent Counsel background
o The court itself determines the scope of what the
independent counsel can do
o Counsel can only be fired for good cause
o Cannot be fired by the President only the attorney
general can fire the counsel
Argument against
o Textual problem
This is a principal officer and only the President
can appoint principal officers
o Structural problem
Vesting clause this is a core executive function.
The Constitution vests all of the executive power in
the President and this interferes with that power
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4pm Tues/Thurs

Another branch is presiding over a traditionally

executive function
Argument for
o Independent counsel is an inferior officer Congress
can appoint power to the courts to create inferior officers
Ruling
o The independent counsel is an inferior officer
Rule
o Criteria for determining an inferior officer
1. Subject to removal by higher branch
2. The duties he is assigned are limited
3. Office is limited in its jurisdiction
4. Office is limited in terms of tenure
Dissent
o The vesting clause does not mean some of the executive
power, but ALL of the executive power
o Governmental investigation and prosecution of crimes is
a quintessentially executive function

Removal Power
Constitution says nothing about it in the text
Does it reside solely with the President?
o Can congress remove executive branch officials other
than by impeachment?
o Can Congress place limits on the Presidents ability to
exercise removal power?
General rule
o President can remove executive appointees at will
unless Congress imposes limits
o Congress can impose limits when:
Independence from the executive is desirable, or
Agency is performing quasi-judicial or quasilegislative functions, and
The law doesnt prohibit Presidential removal, but
only imposes good cause requirements
Takeaways
o President can remove executive officials at will unless
removal is limited by statute (Myers)
o Congress can impose for cause removal of limitations
under certain circumstances (Humphreys, Morrison)
o Congress can vest removal power for inferior officers
solely in the heads of departments
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Constitutional Law

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4pm Tues/Thurs

o Congress cannot give itself the sole power to remove

executive officials
Background cases
Myers v. United States P. 359
o Law requires Senate consent for removal
o The power of removal is incident to the power of
appointment
Since the President has the power to appoint
executive officials, they also have the power to
remove executive officials

Humphreys Executor v. United States P. 360

o Law allows removal for inefficiency, neglect of duty, or
malfeasance
o Its duties are neither political nor executive, but
predominantly quasi-judicial and quasi-legislative
o Congress intent to cerate a body which shall be
independent of executive authority
o Removal is unconstitutional and Congress can set a
good cause limit on the Presidents removal power to
quasi agents
The President still has the power to remove, they
just need a good reason to do so

Morrison v. Olson (Removal provision of the decision)

Under the act, only the Attorney General (not the President)
can remove the independent counsel
o AG can only fire counsel for good cause
Argument against
o Prosecution is a solely executive function
Distinguishable from Humphreys Executor because
this position is not quasi-anything; no good cause
requirements needed
Argument for
o Independence is desirable
Ruling
o Removal provision is Constitutional
o Counsel does not burden the Presidents power;
Presidents power is not stripped by the independent
counsel

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4pm Tues/Thurs

Attorney General reports to the President and the

AG can remove the independent counsel

Rule
o Functionalist decision you can impose good cause
removal requirements until it interferes with the core
function of the executive branch
o Not clear to which extent something is quasilegislative/quasi-executive

Foreign Policy
Many foreign policy cases become political question cases
o Non-justiciability red flag for most foreign policy cases!
Simulation - Foreign Relations Authorization Act
o Unconstitutional Presidents side
President should serve as the sole representative
here because he has better resources and better
knowledge of the situation (Curtiss-Wright)
President is the only member of the federal
government who can claim that they speak for the
entire country
Congressmen only represent a state
Representatives only represent localities
o Constitutional Congress side
Constitution assigns foreign policy power to both
the executive and legislative branch
The Framers intended for foreign policy
power to overlap
This can fall outside of the category of foreign
policy
Category 3 this is not spoken of in the
Constitution and Congress has made their
preferences very clear (Youngstown)
United States v. Curtiss-Wright Export Corp. Page 370
Issue
o Does the President have greater authority in foreign
affairs than in domestic arena?
Argument against that embargo is unconstitutional
o Non-delegation doctrine
o Textual argument President has specific powers that
apply to foreign policy and this isnt one of them
Argument for embargo within the scope of Article II powers
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Constitutional Law

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4pm Tues/Thurs

o President has expertise in foreign affairs

Rule
o President alone has the power to speak or listen as a
representative of the nation
o Into the field of negotiation the senate cannot intrude;
and Congress itself is powerless to invade it
o The very delicate, plenary, and exclusive power of the
President as the sole organ of the federal government in
the field of international relations a power which does
not require as a basis for its exercise an act of Congress
Takeaways
o This case is still good law!
o High point of inherent presidential power in foreign
relations plenary power
o Is this all dicta?
o Congress continues to act in foreign affairs all the time
Congress hasnt complied with this case
o Youngstown ignores it (Youngstown was after this case)
Subsequent courts have invoked Youngstown, not
Curtiss-Wright

Dames & Moore v. Regan, Secretary of the Treasury Page

374

Argo case
Are executive agreements constitutional?
Executive Agreement
o Agreement between the US and another country that
becomes valid when the President and the head of the
other country sign it
o Does not need 2/3 senate approval
o THIS IS NOT AN EXECUTIVE ORDER
Argument against challenging constitutionality of executive
agreement
o This is really a treaty, and treaties requires 2/3 of the
senate to sign off on it that didnt happen here
o Formalist argument
By nullifying judicial decisions, the executive
branch is unconstitutionally behaving judicially
(peas in the mashed potatoes)
Congress is silent on this action Category 2 of
Youngstown

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4pm Tues/Thurs

Argument for President allowed to make an executive

agreement under the Constitution
o In the past, Congress created a similar commission and
kept approving this kind of action (implicit/explicit
approval by Congress) Category 1 of Youngstown
o President has plenary power to do this because its
(Curtiss-Wright)
Ruling
o Constitutional
Rule
o When the president is acting to settle a major foreign
policy dispute, and Congress gives explicit ok for the
President to do this, he is acting constitutionally
The Court infers congressional approval
Congress has approved claim settlement for
similar situations in the past
Court looks to the long-standing practice
between Congress and the President over
the past 50 years
o Youngstown
The Court applies Youngstown Category 1, not
Curtiss-Wright
Distinguishable from Youngstown:
the Court here finds implicit congressional
approval when it didnt in Youngstown
In this case the President is dealing with a
foreign sovereign, not a state as he did in
Youngstown
Takeaways
o Executive agreements, with Congressional acquiescence,
are ok
o Youngstown is the authoritative framework
o Willingness to infer Congressional approval in forging
affairs arena
o Reference to political branches longstanding practices

CLASS THIRTEEN: OCTOBER 9, 2014

Last Class:
Article II: Apptments clause
o Morrison v. Olsen
Removal Power:

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4pm Tues/Thurs

o Myers
o Humphreys executor
o Morrison
Foreign Affairs Power
o Curtiss Wright
o Dames & Moore: Congressional action, rather than plenary exclusive
power to define scope
How constitute addresses power re: war and allocates its power
Context for Modern War power discussion:
Formal declarations of war are rare (last was WW2) Congress declared only 5
times
o In practice, president has sent US troops into combat without declaration
over 100+ times
Armed conflict with non-state terrorist organizations
Political Question Doctrine
o Without formal declaration from congress
Re Constitutional Text:
o Some crude division of power between Pres vs. Congress
Pres:
Commander in chief = Art. II
Emergent power
Congress War Power:
Declare war
Raise and support armies and provide and maintain a navy
Calls in militia to suppress insurrections and repel
invasions
Punish piracy on high seas
o Suspension Clause
Art. 1: section 9, clause 2
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.
o Who suspends it? Doesnt explicitly say but because
it is within Art. I: Congress
Framers wanted 2 branches signing off on military
conventions
o Congress has power to initiate war by having
explicit power to declare war

Declare war? Not Make war?

o Presidential authority to repel sudden attacks
o Constraint on congressional power over military decision making
President can, once declared, might order how to conduct it

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o Congress can choose to deny any military funding for an action as it

chooses
Even though they cannot physically stop pres from ordering troops
into combat
o Presidents ability to respond to sudden imminent attacks
o Unresolved questions in const. text
War powers resolutions:
o Provides that Pres can authorize war powers resolutions allows pres to act:
Exigent circumstances
o Categories of military intervention
o Mandatory withdrawal within 60 days absent congressional authorization
Unless congress has either declared war, or given statutory
authorization
Must pull troops if Congress does NOTHING after 60 days
Most of the time pres consults with congress
Re: War on terror: claimed to be acting within scope of
military force after 911 attacks
Simulation:
o FIRST COA:
Requirements of congressional authorization havent been met
No national emergency
No statutory declaration
Must be submitted within 48 hours
Consult with congress president did not do so
LIKELY PRESIDENT RESPONSE:
o Constitution has defined roles of congress and pres
during times of war, and further defining those roles
would require an amendment
o War powers resol violiates const. because it
infringes on presidents article II commander in
chief
Presidential executive power as CIC;
limitation; the constitutional powers of the
president as CIC to introduce US armed
forces into hostilities
Use Chadha: Not doing anything as stated in CHADHA:
If congress does nothing, that cannot imply a veto
o Chadha tells us that if congress disapproves of an
executive action, it must use bicameralism and
presentment to tell Pres. NO.
HERE, if congress doesnt do anything, that means that
Congress does not agree.
o SECOND COA:

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Congress is given power to declare war under Art. I; If Congress

doesnt declare war, Pres. Cannot act, this act of initiating is under
congress
Youngstown: Congress in not passing either bills, shows explicit
denial of the president acting unconstitutional: Category 3
PRESIDENT LIKELY RESPONSE:
o Prudential: Inherent emergency power, and congress
cannot violate
o Past Practice: EVIDENCE they have done this
before, to allow president
Curtiss Wright: President has executive plenary power and
exclusive
Congress being exclusive; Youngstown framed on both sides
o LIKELY OUTCOME:
President will be allowed to make this decision
Courts will probably stay out of this
Foreign policy is political, and the Court will stay out of it
HYPO 1:
o Congress passes law during Vietnam War ordering the president to send
American troops to take Hamburger Hill within 48 hours;
Congress can declare but not send troops; pres is commander in
chief
HYPO 2:
o Congress passes a law making it illegal for any member of the US armed
forces or govt to engage in waterboarding for any reason:
Unconst: Military powers
Const: Art. 1; sec. 8; Make rules re: armed forces
This is re: WAR NOT TROOPS
Issues have come up in the context of War:
o Complex area of law; treaty obligations
Themes:
o Relationship between separation of powers and individual liberty
Exists in no small part to protect individual liberty making it hard
for federal govt to do certain things that violate individual liberty
o Should constitution apply the same way in an emergency context?
o Application of Youngstown framework
o Constitutional law as a dialogue between the different branches
Follow story of legal background on war of terror; exchange
between all three branches
Whether a different interpretive approach should apply in an emergency situation?
o Pre-commitments should be more inherent in emergency situations
because emergency situations give rise to emotional and fear based
decision making
Issue of executive power in time of emergency or war is nothing new

4pm Tues/Thurs

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o Look at civil war: Lincoln takes position that he needs to do whatever was
necessary to save country, even if it meant ignoring const.
Unilaterally blocked ports without Congress auth.
Enlarges army and navy without consent of congress
Decides to suspend the writ of habeas corpus
Aftermath of 911 attack, congress 1 week later passes AUMF:
o Authorized to use all necessary and appropriate force against all nations
organizations or persons he determines, planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2011, or
harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the US by such nations, organizations or
persons
Youngstown Review of Categories:
o CATEGORY 1:
Does president have express/implied authority from congress
Implied: Past circumstances
Congress fails to act and knows it
If yes: TEST:
o CATEGORY 2:
When the president acts in absences of either congressional grant
or a denial of authority, he can only rely on his own independent
powers. But there is a zone of twilight in which he and congress
may have concurrent authority or in which its distribution is
uncertain. Therefore congressional inertia, indifference o
quiescence may sometimes, at least as a practical matter enable if
not invite, measures of independent presidential responsibility. In
this area, any actual test of power is likely to depend on the
imperatives of events and contemporary imponderable s rather than
on abstract theories of law.
Depends on different circumstances
o CATEGORY 3:***
When president takes measures incompatible with the
expressed/implied will of congress his power is at its lowest ebb
Congress is then disabled to act
o TEST: IF Congress says no, all you have is what is
in there, Enumerated [Commander in chief power,
etc.]
*Jackson says that in this case, president in this case
Only relies upon his own independent powers; Congressional inertia invites presidents
response
Hamdi v. Rumsfield:
o Facts:
Held as enemy combatant without any access to anyone, without
any notice of what hes been charged with for 3 years

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4pm Tues/Thurs

Files habeas petition to have explanation

o Habeas is impt check on exec branch with checks
and balances system on pres.
o Two Distinct Questions:
Does the President have the power to detain enemy combatants
indefinitely?
Are detainees entitled to have the legality of their
detentions reviewed?
If so, what sort of process does the govt have to follow in order to
detain combatants?
o Argument 1:
Youngstown Cat. 1: Explicit Authorization from Congressional;
Art. II: Pres has constitutional authority under Sect. 2
o Hamdi Argument in response:
Forbidden by 18 USC 4001(a): YOUNGSTOWN CAT. 3; anti
detention act indicates that congress explicitly disapproves of this
sort of detention
PAGE 382: Plurality opinion: Justice OConnor announced majority of the Court: 5
justices say that president has power to detain Hamdi; no majority on the OPINION
Vs.
PAGE 447: Majority opinion
Marks v. US: When a majority of the Court agrees on how to decide a case (the
judgment) but youve got less than 5 justices that agree on the rationale (opinion), the
holding of the court may be viewed as that position taken by those members who
concurred in the judgment on the narrowest grounds
--narrowest (most fact specific), opinion binds lower courts
Justice Thomas dissent**
Detain for the duration of the conflict
Whether the pres has the inherent authority under article II:
o Court seems reluctant to touch on that issue
o If you have a specific statute saying you cant detain people, and then you
Re: AUMF: President has inherent emergency power
o If Congress wants to grant inherent authority, be explicit.
Aftermath of 911 show that Congress is issuing a broad delegation
of power
PREEMPTION:
[Focus on limits of what states can do]
o States retained powers that they didnt give to federal govt
Police power
Health, safety, welfare
Do not have to operate pursuant to enumerated power
Federal govt or State govt?
Limits come from:
o Bill of rights
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4pm Tues/Thurs

o Supremacy clause
o Dormant commerce clause
o Article IV privileges and immunities clause:
The Const. and the laws of US shall be made in pursuance thereof,
and all treaties made or which shall be made, under authority of
US shall be the supreme law of the land; and the judges in every
state shall be bound thereby. Any thing in the constitution or laws
of any state to the contrary notwithstanding
Preemption is most likely encountered in constitutional law
practice
Attempting to regulate particular area or practice at the
same time
Preemption: raises interpretive questions:
Broad? Allow it to preempt state law; or
Narrow? Leaving room for states to regulate
Preemption issue: When federal govt and state govt are trying to
regulate the same thing at the same time
When a federal law trumps state law:
o Courts look to congressional intent
o Whether Congress did or did not intend to make
federal or state law
Types of Preemption:
Express:
o Easy; congress explicitly in a statute says
preempting state law (ERISA)
Implied:
o Field Preemption:
When Court concludes that congress has
occupied the field (Regulate certain kind
of law) adopting a large legislative scheme
in a particular area
o Conflict Preemption:
Impossibility of Compliance: federal and
state law conflict so it is literally impossible
to decide who has power: FEDERAL
TRUMPS
Obstacle to achieving federal legislative
goal: a state law stands to an obstacle to a
key legislative objective, preventing
congress to do what it wants to do
(COMPLIATED)
Look at statute

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4pm Tues/Thurs

Look at legislative intent to see what

congress wanted to determine
whether or not state law prevents

US v. Arizona:
Background:
o Art. I giving congress broad power to establish uniform rules of
naturalization
Congress sets up scheme re: citizenship and deportation
States with increased illegal aliens
o Arizona passes law on problem of illegal
immigration in state
SB 1070:
(3) Makes it a misdemeanor to fail to
comply with federal alien
registration requirements;
(5) Makes it a misdemeanor for
unauthorized alien to seek or engage
work in state
o Challenge to Section 3: Fail
to comply with federal alien
registration requirements
o Arizona is concerned federal
law enforcement isnt doing
it aggressively enough
Argue field
preemption; congress
has occupied the filed
of alien registration
and federal law
contains all provisions
re: alien registration
Congressional intent:
congress intended to
occupy field
o Challenge to Section 5:
Punishes employer if
employee is undocumented
Obstacle preemption
(Conflict Preemption)
Congress intent was
to punish employers
and not employees,
and Arizonas leg.
Acts as an obstacle to
that preemption
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4pm Tues/Thurs

NEXT CLASS:
*Dorman Commerce Clause
--Watch video before you do the reading***
CLASS TEN: SEPTEMBER 30, 2014

Separation of Powers:
o Executive branch can get messy
o Informal negotiations between executive and legislative branch
o Overall themes
o Separation of powers vs. checks and balances
o Prevention of tyranny vs. efficiency
Promoting efficiency
o Formalist vs. functionalist approaches to thinking about separation of
powers
Why separate powers?
o Guard against tyranny
o Preserve individual liberty
o Support federalism by controlling federal power
o Specialization
Coordination of multiple assent for the govt to do any thing
Formalism:
o Each branch can only exercise the type of power it is vested with
i.e. congress and only congress can legislate
Dinner Plate example: Meat = Congress: if the issue is
only something that is legislative, only congress can
exercise power over it
Functionalism (Much messier dinner plate)
o Not looking to preserve rigid lines, step in only when one branch of
exercising power impeding functions
Asks whether one branchs actions interfere with the core functions
of another
Framers believed that Congress was the most powerful branch
Presidents Institutional Advantages
o Single person vs. Multi-Member body
o 24 Hour responsibility vs. periodic sessions
Vesting Clauses:
o Article II: Section 1 The executive power shall be vested in a president
o Qualification requirements:
4 Year renewable term
National constituency
Age and residency requirements
Concerns that some Euro nobles would throw their money
around to buy the office
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4pm Tues/Thurs

o Well placed rich euros would be able to come in and

capture office
Fixed compensation
Congress cannot cut or raise salary
o Can veto the law by presenting the bill to congress
Veto power is significant because it expresses constitutional
objections to a bill
Pardon power: really broad: no reason toe exercise his power to
pardon, decisions are not subject to judicial review
Can pardon someone whos accused and condition it on
anything
Pardon power is limited only to federal offenses
Cannot trump impeachment power
o Doesnt prevent congress impeachment
President gets to make treaties
Power to ratify treaties gives senate clear executive
authorities
Article II doesnt say anything about how to rescind a
treaty
President gets to appoint executive officers with advice and
consent of senate
o Gives him personal responsibility
o Not going to be overruled by cabinet officers that
are not appointed my him
Requires president to give the state of union address
Take care that laws are faithfully executed
o Where in constitution does president have the power to do this
Youngstown Sheet & Tube Co. v. Sawyer:
Truman seizing steel mills after strike from steel mill workers
Argues Truman was unconstitutional because it was outside of executive power
o Emergency
o Congress wanted to seize property
o Textual argument: No constitutional provision allowing president to seize
*Justice Black issues majority opinion of court, over time justice Jacksons
concurrent opinion that is binding law
o Black: If president can do it: An act of Congress or explicit text of the
constitution itself
No explicit constitutional authority
No act of congress that explicitly allows it, president cannot
do
o When both constitution, and congress is silent,
President cannot act

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Must be affirmative source of power either

from congress or constitution itself
Blacks opinion is inefficient
Restrained view of implicit or inherent
Jacksons Concurring Opinion:
o CATEGORY 1:
Does president have express/implied authority from congress
Implied: Past circumstances
Congress fails to act and knows it
If yes: TEST:
o CATEGORY 2:
When the president acts in absences of either congressional grant
or a denial of authority, he can only rely on his own independent
powers. But there is a zone of twilight in which he and congress
may have concurrent authority or in which its distribution is
uncertain. Therefore congressional inertia, indifference o
quiescence may sometimes, at least as a practical matter enable if
not invite, measures of independent presidential responsibility. In
this area, any actual test of power is likely to depend on the
imperatives of events and contemporary imponderable s rather than
on abstract theories of law.
Depends on different circumstances
o CATEGORY 3:***
When president takes measures incompatible with the
expressed/implied will of congress his power is at its lowest ebb
Congress is then disabled to act
o TEST: IF Congress says no, all you have is what is
in there, Enumerated [Commander in chief power,
etc.]
*Jackson says that in this case, president in this case
Only relies upon his own independent powers; Congressional
inertia invites presidents response
Simulation: Executive power
o Is this an emergency???
o Legislative history???
Youngstown Takeaways
o Branches tend to work these things out themselves
o Importance of congressional authorization
o Case of court telling the President no
Court asserts power that they in certain circumstances get to tell
president that his implied actions are not allowed
o 3 larger themes:
Separation of powers vs. checks and balances
Prevention of tyranny vs. efficiency

4pm Tues/Thurs

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4pm Tues/Thurs

Federalism v. functionalism
US v. Nixon:
o When can president keep communications within executive branch?
Inherent executive power
Court could have stayed out of the dispute if the president was
operating in ways that were not constitutional
Impeachment
o Facts:
Subpoenas directing Nixon to produce tapes and docs re:
conversations to aids/advisors
Courts rejected executive privilege because pres failed to satisfy
rule 17(c)
o Executive privilege exists
Prior to this case wasnt clear if congress had any executive power
o Even if exec. Privilege existed it wouldnt apply here:
Allow criminal justice be administered in a fair way
Need for confidential communications on one side and balance
with need for fair criminal justice system
*Aftermath of Nixon case:
o Pres had been involved in cover up, ordering FBI not to investigate break
in but subsequently resigned
Cheney vs. US District Court
o Distinction between assertion of executive privilege in civil vs. criminal
proceedings
o Court should be mindful of an unwarranted impairment of another branch
in the performance of its constitutional duties
Suggests a narrowing in Nixon in criminal practice
Takeaways on executive privilege:
Expect privilege derives from presidents inherent power under Article II
Subject to balancing test
Next Class:
*Article 1 Bicameralism and presentment requirements
Clinton v. NY
Constitutional Issues raised by the rise of the admin state
CLASS ELEVEN: OCTOBER 2, 2014
Clinton v. NY 1998
Look at questions re: executive powers and separation of powers in a diff context
o Steel Seizure (Truman)
No explicit authorization from Congress allowing president to
seize still limits

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4pm Tues/Thurs

o Clinton: looking at explicitly delegated powers, but monitors and controls

exercise power to delegate
o Up to Court to enforce lines of Separation of powers?
Or should Court defer decisions made by president and congress
when they make arrangement to divvy up powers
o All questions are made much more complicated by major change
Dealing with Federal Government
Far more larger, complex than anything Framers envisions
o Line Item Veto: passed 1994:
FIRST: The president MUST sign the entire BILL into law
(including $2 Million dollar for shellfish)***
SECOND: President can then cancel provisions
*Incentive for president to not use big gun and then be
precise after bill passed what he wants/doesnt want in
place
o THIRD: President notifies Congress
FOURTH: Congress can enact disapproval
bill
FIFTH: President can veto
disapproval brill
o SIXTH: Congress can
override veto
o Key facts:
Bill gets signed into law before president can activate his
cancellation authority
Plaintiffs argument(s):
o Formalist Argument: Allows President to legislate
o Textualist Argument: Not enumerated in constitution
o Historical Argument: Veto or Sign the entire bill?
o Prudential Reasons for not allowing president to do this:
Actually some states are helped
Presidents Argument(s):
o Historical/Precedent: Youngstown Inc.: CATEGORY 1: Expressly gave
president power
o Courts should stay out of this there has already been a check of the
balance of powers between executive and legislative
Level of complexity has expanded dramatically
o President can cancel provisions Not legislative(y) but more of a
redaction
COURTS HOLDING: Line item veto act is unconstitutional
o Point 1: This act should be legislative(y):
If this is legislative action, should go through bicameralism process
o Point 2: Historically: Since George Washington, this is the way things
should continue to be done.
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4pm Tues/Thurs

Article 1; Section 7:
o Every billshall, before it becomes a Law, be prevented to the
President; if he approves he shall sign it, but if not he shall return it,
with his Objections
Individual Liberties:
o Good enough reason for the Courts to get involved?
Raises issue of what to do with historical precedent?
o Established practice: go back to GW: only voted up or down
Prudential: Compelling good reasons re: public policy to allow Line Item Veto
Act
o Overall prudential balancing scheme?
Weighing modalities over others
The Administrative State
Central Question: Scope of power congress can delegate to the exec branch and
whether it can delegate, can it attach strings to those powers?
Framers primary concern re: tyranny focused on congress
o Developed 2 separate schemes with dealing with congress powers being
drawn to impetuous vortexes
Separation of Powers
Executive branch has expanded dramatically starting in 1887
Growth of administrative state presents constitutional problems
o Executive agencies do things that often look legislative or judicial
th
17 Century: All state level changes
By 1887: Big federal agencies out of progressive era
o Insulate rule making from influence of rich people
1937: New Deal: New Agencies
o Agencies exist within executive powers
But powers are broad and look legislative(y)
peas and mashed potatoes problems
o Formalist perspective: Administrative Nightmare
How should law respond to this?
Messy agencies
Court not into messiness in 930s
o Non-delegation Doctrine:
Prevented congress from delegating
executive branch agencies
Not allowed to hand legislative
power off to executive agencies
o Court rejects non-delegation doctrine
Rejection because:
Congress cant oversee legislative process
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4pm Tues/Thurs

Adoption would = unconstitutional

Demise of the Non-delegation doctrine:
o Congress ability to regulate agency actions without a non-delegation
doctrine
What are congress available options?
Mechanisms Congress has to overrule administrative
agencies
o Impeachment
o Legislative that agencys inexistence
What prevents congress from aggressive agency oversight?
Working relationship
Party politics: goal is to be reelected/president liking them
o May be in political interest for Congress to allow
President do whatever he wants
Influence agencies (polluters), trying to get elected into
office
Chaddha
Full house approves subcommittee without a recorded vote
Only went through 1 house of congress
Presentment clause:
o Bicameralism: Arugment:
Four examples: clearly framers knew about this idea
Limit congressional power by the framers
Couldnt have just one house of
Bicameralism
Legislative Veto is constitutional:
o Check with whatever powers were delegated
o Congress subject to bicameralism argument:
Branches of government worked it out
HOLDING: Legislative Veto: Unconstitutional:
o When congress is acting legislatively:
Legislative actions have the purpose and effect of altering the legal
rights
Other options available?
Legal questions:
o Chadha had any real effect
Rule: still stands
Legislative actions by congress must comply with
bicameralism and presentment provisions
Action taken by Congress: must follow and override veto by 2/3rds
margin

Simulation: Compassionate Drug Policy Act:

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4pm Tues/Thurs

o Clinton: Art. 1. Sec. 7. President is effectively enacting or amending

Distinguished:
Temporary
Controlled Substance Act is a fully enacted act
o Chadha:
Giving president authority to engage in legislative action
Legislative seriously: apply broadly
Limit on legislative actions taken by congress
o When congress engages in things like this, has to go
through Congress by Presentment
Takeaways:
Line item veto and legislative veto violate Article I, Section 7s bicameralism and
presentment requirements
o Chadha & Clinton
President and Congress agree on (SOLIDLY Youngstown, Cat. 1)
o Article II Appointments Clause
Can congress delegate appointment of executive officers to other
people?
o Removal
o Presidential power over Foreign Affairs
Dames & Moore

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4pm Tues/Thurs

Article II Appointments Clause Casebook page xlvi

Appointments Simulation
o Congress cannot delegate to itself the power to appoint
executive officials
o Primary/superior officers
Appointments in this category can only be made
by the President
Foreign ambassadors
Judges of the Supreme Courts
Other officers of the US
Cabinet officers
Lower federal court judges
o Inferior officers
Congress can vest the power to appoint inferior
officers in the President, courts, or heads of
departments
Takeaways
o Different rules for principal and inferior officers
o Factors for distinguishing between inferior and principal
officers (Morrison)
o Congress may not make executive appointments
o Senate advise and consent not required for all
executive branch appointment only for principal
officers

Alexia Morrison, Independent Counsel v. Theodore B. Olson

P. 354
Independent Counsel background
o The court itself determines the scope of what the
independent counsel can do
o Counsel can only be fired for good cause
o Cannot be fired by the President only the attorney
general can fire the counsel
Argument against
o Textual problem
This is a principal officer and only the President
can appoint principal officers
o Structural problem
Vesting clause this is a core executive function.
The Constitution vests all of the executive power in
the President and this interferes with that power
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4pm Tues/Thurs

Another branch is presiding over a traditionally

executive function
Argument for
o Independent counsel is an inferior officer Congress
can appoint power to the courts to create inferior officers
Ruling
o The independent counsel is an inferior officer
Rule
o Criteria for determining an inferior officer
5. Subject to removal by higher branch
6. The duties he is assigned are limited
7. Office is limited in its jurisdiction
8. Office is limited in terms of tenure
Dissent
o The vesting clause does not mean some of the executive
power, but ALL of the executive power
o Governmental investigation and prosecution of crimes is
a quintessentially executive function

Removal Power
Constitution says nothing about it in the text
Does it reside solely with the President?
o Can congress remove executive branch officials other
than by impeachment?
o Can Congress place limits on the Presidents ability to
exercise removal power?
General rule
o President can remove executive appointees at will
unless Congress imposes limits
o Congress can impose limits when:
Independence from the executive is desirable, or
Agency is performing quasi-judicial or quasilegislative functions, and
The law doesnt prohibit Presidential removal, but
only imposes good cause requirements
Takeaways
o President can remove executive officials at will unless
removal is limited by statute (Myers)
o Congress can impose for cause removal of limitations
under certain circumstances (Humphreys, Morrison)
o Congress can vest removal power for inferior officers
solely in the heads of departments
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4pm Tues/Thurs

o Congress cannot give itself the sole power to remove

executive officials
Background cases
Myers v. United States P. 359
o Law requires Senate consent for removal
o The power of removal is incident to the power of
appointment
Since the President has the power to appoint
executive officials, they also have the power to
remove executive officials

Humphreys Executor v. United States P. 360

o Law allows removal for inefficiency, neglect of duty, or
malfeasance
o Its duties are neither political nor executive, but
predominantly quasi-judicial and quasi-legislative
o Congress intent to cerate a body which shall be
independent of executive authority
o Removal is unconstitutional and Congress can set a
good cause limit on the Presidents removal power to
quasi agents
The President still has the power to remove, they
just need a good reason to do so

Morrison v. Olson (Removal provision of the decision)

Under the act, only the Attorney General (not the President)
can remove the independent counsel
o AG can only fire counsel for good cause
Argument against
o Prosecution is a solely executive function
Distinguishable from Humphreys Executor because
this position is not quasi-anything; no good cause
requirements needed
Argument for
o Independence is desirable
Ruling
o Removal provision is Constitutional
o Counsel does not burden the Presidents power;
Presidents power is not stripped by the independent
counsel

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4pm Tues/Thurs

Attorney General reports to the President and the

AG can remove the independent counsel

Rule
o Functionalist decision you can impose good cause
removal requirements until it interferes with the core
function of the executive branch
o Not clear to which extent something is quasilegislative/quasi-executive

Foreign Policy
Many foreign policy cases become political question cases
o Non-justiciability red flag for most foreign policy cases!
Simulation - Foreign Relations Authorization Act
o Unconstitutional Presidents side
President should serve as the sole representative
here because he has better resources and better
knowledge of the situation (Curtiss-Wright)
President is the only member of the federal
government who can claim that they speak for the
entire country
Congressmen only represent a state
Representatives only represent localities
o Constitutional Congress side
Constitution assigns foreign policy power to both
the executive and legislative branch
The Framers intended for foreign policy
power to overlap
This can fall outside of the category of foreign
policy
Category 3 this is not spoken of in the
Constitution and Congress has made their
preferences very clear (Youngstown)
United States v. Curtiss-Wright Export Corp. Page 370
Issue
o Does the President have greater authority in foreign
affairs than in domestic arena?
Argument against that embargo is unconstitutional
o Non-delegation doctrine
o Textual argument President has specific powers that
apply to foreign policy and this isnt one of them
Argument for embargo within the scope of Article II powers
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o President has expertise in foreign affairs

Rule
o President alone has the power to speak or listen as a
representative of the nation
o Into the field of negotiation the senate cannot intrude;
and Congress itself is powerless to invade it
o The very delicate, plenary, and exclusive power of the
President as the sole organ of the federal government in
the field of international relations a power which does
not require as a basis for its exercise an act of Congress
Takeaways
o This case is still good law!
o High point of inherent presidential power in foreign
relations plenary power
o Is this all dicta?
o Congress continues to act in foreign affairs all the time
Congress hasnt complied with this case
o Youngstown ignores it (Youngstown was after this case)
Subsequent courts have invoked Youngstown, not
Curtiss-Wright

Dames & Moore v. Regan, Secretary of the Treasury Page

374

Argo case
Are executive agreements constitutional?
Executive Agreement
o Agreement between the US and another country that
becomes valid when the President and the head of the
other country sign it
o Does not need 2/3 senate approval
o THIS IS NOT AN EXECUTIVE ORDER
Argument against challenging constitutionality of executive
agreement
o This is really a treaty, and treaties requires 2/3 of the
senate to sign off on it that didnt happen here
o Formalist argument
By nullifying judicial decisions, the executive
branch is unconstitutionally behaving judicially
(peas in the mashed potatoes)
Congress is silent on this action Category 2 of
Youngstown

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Argument for President allowed to make an executive

agreement under the Constitution
o In the past, Congress created a similar commission and
kept approving this kind of action (implicit/explicit
approval by Congress) Category 1 of Youngstown
o President has plenary power to do this because its
(Curtiss-Wright)
Ruling
o Constitutional
Rule
o When the president is acting to settle a major foreign
policy dispute, and Congress gives explicit ok for the
President to do this, he is acting constitutionally
The Court infers congressional approval
Congress has approved claim settlement for
similar situations in the past
Court looks to the long-standing practice
between Congress and the President over
the past 50 years
o Youngstown
The Court applies Youngstown Category 1, not
Curtiss-Wright
Distinguishable from Youngstown:
the Court here finds implicit congressional
approval when it didnt in Youngstown
In this case the President is dealing with a
foreign sovereign, not a state as he did in
Youngstown
Takeaways
o Executive agreements, with Congressional acquiescence,
are ok
o Youngstown is the authoritative framework
o Willingness to infer Congressional approval in forging
affairs arena
o Reference to political branches longstanding practices

CLASS THIRTEEN: OCTOBER 9, 2014

Last Class:
Article II: Apptments clause
o Morrison v. Olsen
Removal Power:

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o Myers
o Humphreys executor
o Morrison
Foreign Affairs Power
o Curtiss Wright
o Dames & Moore: Congressional action, rather than plenary exclusive
power to define scope
How constitute addresses power re: war and allocates its power
Context for Modern War power discussion:
Formal declarations of war are rare (last was WW2) Congress declared only 5
times
o In practice, president has sent US troops into combat without declaration
over 100+ times
Armed conflict with non-state terrorist organizations
Political Question Doctrine
o Without formal declaration from congress
Re Constitutional Text:
o Some crude division of power between Pres vs. Congress
Pres:
Commander in chief = Art. II
Emergent power
Congress War Power:
Declare war
Raise and support armies and provide and maintain a navy
Calls in militia to suppress insurrections and repel
invasions
Punish piracy on high seas
o Suspension Clause
Art. 1: section 9, clause 2
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.
o Who suspends it? Doesnt explicitly say but because
it is within Art. I: Congress
Framers wanted 2 branches signing off on military
conventions
o Congress has power to initiate war by having
explicit power to declare war

Declare war? Not Make war?

o Presidential authority to repel sudden attacks
o Constraint on congressional power over military decision making
President can, once declared, might order how to conduct it

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o Congress can choose to deny any military funding for an action as it

chooses
Even though they cannot physically stop pres from ordering troops
into combat
o Presidents ability to respond to sudden imminent attacks
o Unresolved questions in const. text
War powers resolutions:
o Provides that Pres can authorize war powers resolutions allows pres to act:
Exigent circumstances
o Categories of military intervention
o Mandatory withdrawal within 60 days absent congressional authorization
Unless congress has either declared war, or given statutory
authorization
Must pull troops if Congress does NOTHING after 60 days
Most of the time pres consults with congress
Re: War on terror: claimed to be acting within scope of
military force after 911 attacks
Simulation:
o FIRST COA:
Requirements of congressional authorization havent been met
No national emergency
No statutory declaration
Must be submitted within 48 hours
Consult with congress president did not do so
LIKELY PRESIDENT RESPONSE:
o Constitution has defined roles of congress and pres
during times of war, and further defining those roles
would require an amendment
o War powers resol violiates const. because it
infringes on presidents article II commander in
chief
Presidential executive power as CIC;
limitation; the constitutional powers of the
president as CIC to introduce US armed
forces into hostilities
Use Chadha: Not doing anything as stated in CHADHA:
If congress does nothing, that cannot imply a veto
o Chadha tells us that if congress disapproves of an
executive action, it must use bicameralism and
presentment to tell Pres. NO.
HERE, if congress doesnt do anything, that means that
Congress does not agree.
o SECOND COA:

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Congress is given power to declare war under Art. I; If Congress

doesnt declare war, Pres. Cannot act, this act of initiating is under
congress
Youngstown: Congress in not passing either bills, shows explicit
denial of the president acting unconstitutional: Category 3
PRESIDENT LIKELY RESPONSE:
o Prudential: Inherent emergency power, and congress
cannot violate
o Past Practice: EVIDENCE they have done this
before, to allow president
Curtiss Wright: President has executive plenary power and
exclusive
Congress being exclusive; Youngstown framed on both sides
o LIKELY OUTCOME:
President will be allowed to make this decision
Courts will probably stay out of this
Foreign policy is political, and the Court will stay out of it
HYPO 1:
o Congress passes law during Vietnam War ordering the president to send
American troops to take Hamburger Hill within 48 hours;
Congress can declare but not send troops; pres is commander in
chief
HYPO 2:
o Congress passes a law making it illegal for any member of the US armed
forces or govt to engage in waterboarding for any reason:
Unconst: Military powers
Const: Art. 1; sec. 8; Make rules re: armed forces
This is re: WAR NOT TROOPS
Issues have come up in the context of War:
o Complex area of law; treaty obligations
Themes:
o Relationship between separation of powers and individual liberty
Exists in no small part to protect individual liberty making it hard
for federal govt to do certain things that violate individual liberty
o Should constitution apply the same way in an emergency context?
o Application of Youngstown framework
o Constitutional law as a dialogue between the different branches
Follow story of legal background on war of terror; exchange
between all three branches
Whether a different interpretive approach should apply in an emergency situation?
o Pre-commitments should be more inherent in emergency situations
because emergency situations give rise to emotional and fear based
decision making
Issue of executive power in time of emergency or war is nothing new

4pm Tues/Thurs

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o Look at civil war: Lincoln takes position that he needs to do whatever was
necessary to save country, even if it meant ignoring const.
Unilaterally blocked ports without Congress auth.
Enlarges army and navy without consent of congress
Decides to suspend the writ of habeas corpus
Aftermath of 911 attack, congress 1 week later passes AUMF:
o Authorized to use all necessary and appropriate force against all nations
organizations or persons he determines, planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2011, or
harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the US by such nations, organizations or
persons
Youngstown Review of Categories:
o CATEGORY 1:
Does president have express/implied authority from congress
Implied: Past circumstances
Congress fails to act and knows it
If yes: TEST:
o CATEGORY 2:
When the president acts in absences of either congressional grant
or a denial of authority, he can only rely on his own independent
powers. But there is a zone of twilight in which he and congress
may have concurrent authority or in which its distribution is
uncertain. Therefore congressional inertia, indifference o
quiescence may sometimes, at least as a practical matter enable if
not invite, measures of independent presidential responsibility. In
this area, any actual test of power is likely to depend on the
imperatives of events and contemporary imponderable s rather than
on abstract theories of law.
Depends on different circumstances
o CATEGORY 3:***
When president takes measures incompatible with the
expressed/implied will of congress his power is at its lowest ebb
Congress is then disabled to act
o TEST: IF Congress says no, all you have is what is
in there, Enumerated [Commander in chief power,
etc.]
*Jackson says that in this case, president in this case
Only relies upon his own independent powers; Congressional inertia invites presidents
response
Hamdi v. Rumsfield:
o Facts:
Held as enemy combatant without any access to anyone, without
any notice of what hes been charged with for 3 years

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Files habeas petition to have explanation

o Habeas is impt check on exec branch with checks
and balances system on pres.
o Two Distinct Questions:
Does the President have the power to detain enemy combatants
indefinitely?
Are detainees entitled to have the legality of their
detentions reviewed?
If so, what sort of process does the govt have to follow in order to
detain combatants?
o Argument 1:
Youngstown Cat. 1: Explicit Authorization from Congressional;
Art. II: Pres has constitutional authority under Sect. 2
o Hamdi Argument in response:
Forbidden by 18 USC 4001(a): YOUNGSTOWN CAT. 3; anti
detention act indicates that congress explicitly disapproves of this
sort of detention
PAGE 382: Plurality opinion: Justice OConnor announced majority of the Court: 5
justices say that president has power to detain Hamdi; no majority on the OPINION
Vs.
PAGE 447: Majority opinion
Marks v. US: When a majority of the Court agrees on how to decide a case (the
judgment) but youve got less than 5 justices that agree on the rationale (opinion), the
holding of the court may be viewed as that position taken by those members who
concurred in the judgment on the narrowest grounds
--narrowest (most fact specific), opinion binds lower courts
Justice Thomas dissent**
Detain for the duration of the conflict
Whether the pres has the inherent authority under article II:
o Court seems reluctant to touch on that issue
o If you have a specific statute saying you cant detain people, and then you
Re: AUMF: President has inherent emergency power
o If Congress wants to grant inherent authority, be explicit.
Aftermath of 911 show that Congress is issuing a broad delegation
of power
PREEMPTION:
[Focus on limits of what states can do]
o States retained powers that they didnt give to federal govt
Police power
Health, safety, welfare
Do not have to operate pursuant to enumerated power
Federal govt or State govt?
Limits come from:
o Bill of rights
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o Supremacy clause
o Dormant commerce clause
o Article IV privileges and immunities clause:
The Const. and the laws of US shall be made in pursuance thereof,
and all treaties made or which shall be made, under authority of
US shall be the supreme law of the land; and the judges in every
state shall be bound thereby. Any thing in the constitution or laws
of any state to the contrary notwithstanding
Preemption is most likely encountered in constitutional law
practice
Attempting to regulate particular area or practice at the
same time
Preemption: raises interpretive questions:
Broad? Allow it to preempt state law; or
Narrow? Leaving room for states to regulate
Preemption issue: When federal govt and state govt are trying to
regulate the same thing at the same time
When a federal law trumps state law:
o Courts look to congressional intent
o Whether Congress did or did not intend to make
federal or state law
Types of Preemption:
Express:
o Easy; congress explicitly in a statute says
preempting state law (ERISA)
Implied:
o Field Preemption:
When Court concludes that congress has
occupied the field (Regulate certain kind
of law) adopting a large legislative scheme
in a particular area
o Conflict Preemption:
Impossibility of Compliance: federal and
state law conflict so it is literally impossible
to decide who has power: FEDERAL
TRUMPS
Obstacle to achieving federal legislative
goal: a state law stands to an obstacle to a
key legislative objective, preventing
congress to do what it wants to do
(COMPLIATED)
Look at statute

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Look at legislative intent to see what

congress wanted to determine
whether or not state law prevents

US v. Arizona:
Background:
o Art. I giving congress broad power to establish uniform rules of
naturalization
Congress sets up scheme re: citizenship and deportation
States with increased illegal aliens
o Arizona passes law on problem of illegal
immigration in state
SB 1070:
(3) Makes it a misdemeanor to fail to
comply with federal alien
registration requirements;
(5) Makes it a misdemeanor for
unauthorized alien to seek or engage
work in state
o Challenge to Section 3: Fail
to comply with federal alien
registration requirements
o Arizona is concerned federal
law enforcement isnt doing
it aggressively enough
Argue field
preemption; congress
has occupied the filed
of alien registration
and federal law
contains all provisions
re: alien registration
Congressional intent:
congress intended to
occupy field
o Challenge to Section 5:
Punishes employer if
employee is undocumented
Obstacle preemption
(Conflict Preemption)
Congress intent was
to punish employers
and not employees,
and Arizonas leg.
Acts as an obstacle to
that preemption
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NEXT CLASS:
*Dorman Commerce Clause
--Watch video before you do the reading***
CLASS FOURTEEN: OCTOBER 14, 2014

Express Pre-emption:
Implied Preemption
o Field Preemption
Congress has occupied the field
o Conflict preemption
Impossibility of compliance
Arizona v. US:
o Sec. 3: Field preemption:
Failure to comply with federal alien registration requirements =
state misdemeanor
o Sec. 5: Obstacle preemption:
Unauthorized alien seeking or engaging in work
o Sec. 6: Warrantless arrest permissible if state officer has probable cause to
believe the person is in the US illegally
o Sec. 2: In some circumstances, officers must check immigration status of
the people they stop or detain
Takeaways on preemption
o Types of preemption
o When to spot a potential preemption issue
o Tests to determine whether a state law is preempted under each type
o Focus on congressional intent
****Critical factual issue: what did congress intend
What is the dormant commerce clause?
o Negative implications of the commerce clause
If congress is given the power under Art. 1 to regulate interstate
commerce, implies that maybe states have limits on their ability to
do the same thing
States might have some limits on their ability to regulate
also
A combination of supremacy clause and commerce clause takes
care of this problem (When states decide to pass law s on their own
to pass laws re: interstate commerce)
Under preemption doctrine, state law will be invalid
o Congress passes law; regulates interstate commerce; state laws conflicting
with that law = invalid
Only in cases where congress is SILENT.

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When congress has done nothing, but states step into that
regulatory void and pass a law that interferes with IC in one
way or another
o Whether the Court should step in and deal with
these regulations re: IC despite Congress saying
NOTHING re: doing anything about this
FACT PATTERN: Does it involve a law
involving federal govt or state
If passed by Congress: NO
DORMANT CC ISSUE
o Must be a STATE LAW
Dormant CC conceptually:
o Separation of powers:
Clause expands power of federal courts
Entering into picture when congress hasnt done anything
Invites federal courts to come in and act as police men
when congress hasnt asked them to act
Federalism:
Has potential to restrict power of states and place
constitutional limits toe exercise police power in ways that
interferes with commerce
Pass laws to benefit their citizens and hurt citizens in other states
Empowering congress to create a free trade zone in US
o Protectionism? Why so bad?
Trade war
Court invents it to deal with situations where
congress doesnt do anything
Why cant political process solve this problem
States internalize benefits, out of staters do not benefit
Concerns do you have about the Dorman Commerce Clause:
o Not at all in the constitution: Textualist
o Congress is given power to regulate interstate commerce: formalism
Indication that strict test applies
Whether a law discriminates against out of staters
o Facial discrimination:
Does the law discriminate against out of
state interests?
Facial Disc.: Kentucky forbids
tobacco grown in Virginia from
being sold in Ky.
Facially neutral but discriminatory in
purpose and effect: Ky only allows
Cavendish variety tobacco to be sold
in the state and Cavendish only
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grows in Bluegrass Mountains of Ky.

clearly benefits Ky tobacco growers
Non discriminatory purpose or effect but
burdens interstate commerce: pike balancing
test
Pike balancing test:
o Reserved for laws, directed to
legitimate local concerns,
with effects upon interstate
commerce that are only
incidental. Under the pike
test, we will uphold a
nondiscriminatory statute like
this one unless the burden
imposed on interstate
commerce is clearly
excessive in relation to
putative local benefits
Pay attn. to what state
interest is behind the
law
Why state legislature
passes the law it
passed.
**State interests
Standard of review:
how closely court is
going to examine and
scrutinize what
congress has done
Whether it discriminates on its face against IC.
o Disc: differential treatment of instate and out of
state economic interests that benefits the former and
burdens the latter. Discriminatory laws motivated
by simple economic protectionism, are subject to a
virtually per se rule of invalidity
City of Philadelphia v. NJ:
o No importation of out of state solid or liquid waste into the state
What is the state interest advanced by the legislation
What standard of review applies (facially discriminatory law)
NJs argument for why they passed law:
o Violative of Dormant CC:
Facially discriminatory: Discriminates on its
face:

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Explicit violation of Dormant CC

because impeding market for solid
and liquid waste disposal
Protectionism: worried about retaliation
If nj shuts down waste, states are
going to retaliate against NJ
Who is hurt by this law?
Landfill operators
Out of staters
Who are winners?
New Jersey residents
o Cheap: more space in land
fills and lower prices because
demand has fallen
Out of state landfills getting all waste
from NJ goers
Court says statute is facially discriminant: from the face of
the statute, protectionist, not going to cut it.
State sovereign decision: legislative decision;
o Courts interfering with legislation and negating
authority of state legislature, and police power
Court applying harsh per se rule of invalidity?
o Justice Thomas on Dormant CC:
Because this court has no policy role in regulating interstate
commerce, I would discard the courts dormant cc jurisprudence
I believe the power to regulate interstate commerce is a power
given to Congress and not the Court.
o Facial discrimination is going to be absolutely fair: court is going to infer
a protectionist motive, (state law with a distinction between inter state and
out of state what NJ v. Philly stands for****)
Hunt v. Washington Apple:
Closed container of apples in state of NC USDA grade or nothing
Washington Growers challenging
o Theory: discriminatory against out of state apples
Packaging would have to be removed, and customers would not be
able to recognize and appreciate Washington apples
Not discriminatory on its face: neutral
Purpose and effect
o Motive and effect on interstate commerce
Rule: When discrimination against
commerce of the type we have found is
demonstrated (PURPOSE AND EFFECT)
the burden falls on the State to justify it both
in terms of the local benefits flowing from
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the statute and the unavailability of the

nondiscriminatory alternatives to preserve
the local interests at state (nothing we can do
to solve consumer confusion problem)
Sophisticated Consumers who can handle multiple grades
Court thinks NC is lying and it smells protectionism
Stands for proposition that even if a statute isnt facially discriminatory and
doesnt specifically distinguish in state and out of state if it believes a statute was
passed for a discriminatory purpose and effect (if court smells protectionism, will
apply aversion of strict test)

Exxon:
Exxon during gas shortage was supplying only gas stations, and MD passes a law
to prohibit
MD trying to protect mom and pop small independent gas station owners that are
from MD, in order to hurt Exxon
MD gas market:
o Group 1: Independent dealers (Mom and pop station)
3547
99% in state
o Group 2: Owned by producers/refiners
233
36 in state
197 out of state
o Group 3: Interstate marketers
36
2 in state
34 out of state (like 711, chains, but dont actually refine or
produce gasoline)
o Winners:
Group 1 (in staters)
Group 3: dont refine gasoline (out of staters)
o Losers:
Group 2:
All out of state
Exxon Argument:
o Must prove that statute is discriminatory:
Motive (purpose) and Effect
Motive: Protectionism
Effect: OOS refineries will not have opportunities
MD Argument:
o Statute is neutral on its face
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o And OOSers are still benefitting

Court argues no discriminatory:
o In state dealers are not always winners
Out of staters are still benefitting
o Vs. Washington apple:
Clear concept of protectionism
No oosers winning
Distinguishable: Court seems to infer a protectionist view in one, and not the
other
Takeaways:
o Difficult to explain this case in reconciliation vs. Hunt case
West Lynn Creamery v. Healy:
Law at issue:
o 1st part: Tax: Sale to Massachusetts retailer Tax from farms to retailers
(TAX)
o 2nd Part: Tax fund is distributed to only the Massachusetts dealers
(SUBSIDY)
Farmers from Mass. Are financially suffering
o Competing with lower costing producers in other states
Subsidy allows mass. decrease prices to keep milk
o Dairy farmers in state are winning
o Out of state farmers are losing because they are getting taxed and milk
became competitive
o Milk consumers are also losing because milk is not cheap anymore
Discrimination: PURPOSE AND EFFECT
o Purpose: Want to help out mass. dairy producers
o Effect: OOS producers are getting shorter end of stick because they are not
equally receiving tax benefit that in state farmers are
State argument:
Has the right to impose tax, in order to help their own
subsidy
Police power: states can tax however they want
o Nothing wrong with states using their money to
help their team
CLASS FIFTEEN: OCTOBER 16, 2014
How should I outline for this class?
Have textbook, class notes, syllabus, commercial outline
o Solve legal problems (solve simulations)
Not a laundry list of rules
Show knowledge of cases (not feelings)
Articulate legal rules and apply to facts

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o Analogies and distinctions

o Use cases not just as examples of legal rules applied
but use them to analogize and distinguish

Last Class:
o Dormant Commerce Clause:
State passes law affecting interstate commerce and congress is
inactive
FIRST: Does the law discriminate against out of state businesses or
consumers?
If so, strict test applies, and difficult to survive const.
review
o Is it facially discriminatory?
If yes, per se rule of invalidity (Philidelphia)
BUT if not facially discriminatory
still be discriminatory purpose and
effect: PROTECTIONISM (Hunt v.
Washington Apple)
o THEN: Even in some cases
where this doesnt happen
(discriminatory purpose) still
negative effect: PIKE
BALANCING TEST
o Pike balancing test: operates
with strong assumption,
unless clearly excessive to
local benefits
Preventing protectionism
How do you determine if a law is discriminatory
Facial discrimination (strict)
Discriminatory purpose and effect (strict)
Incidental effect (pike balancing)
How do we distinguish where cases find discriminatory vs. those that arent?

West Lynn Creamery (cont.):

Mass has two part law:
o Part 1: Tax all milk farmers (in state and out)
Neutral tax applied to everyone
o Part 2: Subsidy: take tax money and hand it only to instate farmers
States can do whatever it wants with its own money
PROBLEM: tax combined with using tax revenue as a
subsidy only going to instate milk farmers
o Court says this is operating as a protectionist tariff
(Cleverly tax everyone and then hand it back
to state farmers being taxed)
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REPRESNTATION
REINFORCEMENT problem:
deterrent for passing tax is you get
voted out of office by people dont
want to be taxed
o But OOS dairy farmers dont
have a way to assert their
interests (lobbying)
Judicial review must
kick in because
politics cannot solve
problem. Unelected
judges tune in.
States can issue uniform taxes on their own, and subsidize, but put
together protectionism, court finds a problem

State of Minnesota v. Cloverleaf:

Statute at issue Sec. 81
o Purpose: promote environmental benefit, plastic bad for the environment
Protectionist: Competition for milk containers, a lot of plastic
produced OOS
o Winners: Minnesota: (In state) Container industry (paper)
And OOS container industry (paper)
And the dairy producers that use same containers
o Losers: OOS plastic industries
Farmers that produce milk in plastic cartons
Holding: Constitutional
o Court applies rule: Pike Balancing test:
Burdens and benefits are spread across in state and out of state
Relatively minor
Substantial benefits from energy conservation
Environmental concerns and even spread between burdens and benefits across in
state and OOS
o District court spends much time analyzing: found statute protectionist
Court overturns dist. Ct. finding
Dean Milk v. City of Madison:
Facts:
o City ordinance passed re: milk, pasteurization within 5 mi radius.
o Illinois
Ct. Says no, if state interests are available, and lists all alternatives that are avail
o One state in dealings w another may not place itself in a position of
economic isolation**

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Kassel v. Consolidated Freightways Corp.: PIKE BALANCING TEST

Similar to clover leaf but with a diff result
o Test applies: when court does not believe that theres a discriminatory
purpose, but an affect on interstate commerce
Regulation: type of trucks that travel into Iowa
If youre a double wide truck cannot travel into Iowa
Purpose:
1) Damage to roads money to fix those roads
2) Promotes safety increased risk of accident
Facts:
o Consolidated trucking company brings suit because one of their major
routes goes through Iowa
In order to comply with Iowas law would have to drive around
Iowa, or load into a smaller truck, and then when get to border,
reload to a larger truck
o At trial court level:
Larger trucks are more likely to jack knife but smaller trucks have
other issues no real safety benefit
Cost: $12.6 mill to trucking industry and $2mill to consolidate
(how much interstate commerce is burdened)
*Caption: plurality not a full Marx analysis
Court concluded: Unconstitutional
o Responds to safety:
Deferred to district courts findings re: issue on safety
Should district court be able to substitute its judgment?
o Iowa may be expert in safety, but guarding against protectionism is more
impt.
Pike Balancing Test: significant that it involves interstate trucking very strong
interstate interest, court seems willing to weigh interests heavily and be skeptical
to why states are doing what theyre doing
o Re: Deferential treatment to Dist. Ct., behavior is erratic, supposed to
defer to facts except when they dont.
Simulation: What rules should apply; What facts material in application to that rule and
telling you what rule to apply; and what the outcome should be?
FIRST: Is it discriminatory?
SECOND:
Facially discriminatory? No (if yes, per se invalidity rule applies, and bye)
o Why? Because it applies to both in state and out of state wineries
by mail
Neutrally discriminatory?
o Purpose and Effect:

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Relevant Facts determining that this was discriminatory

(PROTECTIONIST)
Small farms protected from big factory wines
Effect:
Out of state wineries benefit
o Relevant to show argument supporting nonprotectionist ideals from this statute (OOS
winners)
Exxon case: OOS winners enough
Pike Balancing Test: Standard CLEARLY EXCESSIVE

Market participant exception: Govt owned business or when a state is buying or

selling something
i.e.: State schools offering lower tuition facially discriminatory but exception applies

Whether the state is acting as a participant or as a regulator:

o Participant: State buying and selling
o Regulator: if state is regulating what OOS buyers

Reeves v. Stake (1980):

Facts:
o Plant producing cement --- State of South Dakota owns and operates plant
o Built it because they had a cement shortage
o Sells to also OOS-ers
1978: SD gets hot and has a shortage
o Sells to SD residents, and then whatever left will be sold to OOSers
Reeves says SD discriminatory:
o Loss in revenue
**City of Philadelphia facially discriminatory
Ct. Says:
o No commerce clause violation because it acts as a market participant so
exception applies
o Purpose/Rationale:
Tradition that if youre not operating discriminatory, you can sell
goods according to preference
SD Tax payers should benefit over OOS-ers who dont have to pay
tax
South-Central Timber v. Commissioner:
Facts: State of Alaska owns timber
o Rule: Buying timber from Alaska must be processed in state first
Why? Promote discreet unidentifiable activity: Protectionist
benefit timber industry forcing ppl that buy timber to process in
state
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Alaska Argument: No Dormant CC:

o Market Participant Exception applies: Market participant can sell
whatever they want to whomever with taxes imposed
Court says no:
o Alaska acts as a regulator not a participant
As a regulator it regulates the downstream market
Alaska is a participant in timber sales, not a participant in
timber processing
o Cant use that to try to regulate things that it is not a
market participant in
EXCEPTION DOES NOT APPLY
because it is a LIMIT on market
participant

ARTICLE IV: Seeks to bind states together as a Union (Set of rules how State A
should relate to State B) -- Comity, respecting other laws of other states
Full Faith and Credit Clause: Requires state courts must recognize and enforce
final judicial decrees of other states (binding state courts together) cannot treat
judgments of other states as advisory or foreign
o Empowers congress to set rules as exceptions to other state judgments
regulating recognition
Privileges and Immunities Clause:
o Two Privileges and immunities clause (Art. IV Privileges AND
Immunities)
The citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states
o What are the privileges and immunities????
o Who is a citizen??
Free slave in the north?
Privileges?
o Carrying a gun and going back to the
south??
Widely accepted: FUNDAMENTAL privileges and immunities
guaranteed to own citizens (New York cannot treat NYers
differently with respect to ppl from NJ regarding fundamental
things privileges and immunities)
o I.E. NYers cannot vote in NJ
o Denying people to serve on NJ jury
o Equal access to state properties
th
o 14 Am. Privileges OR immunities**
Extradition Clause: Requires states to deliver fugitives from their state back to
the state where they committed the crime
o Work with one another to serve larger

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Fugitive Slave Clause: Returns slaves back to states where their masters are
o Constitution accepts tacit approval of institution of slaver
o Free states want to make it a felony from someone from south to come up
and kidnap slave and return them back
Northern stats made it felony making it difficult to do
Was this proper?
Is there not some obligation under circumstances to ignore
mandates when constitutional requires something evil to happen?
Statehood Admission and Territories Clause: New states shall be admitted by
Congress into this Union
Guarantee Clause: Requires union to have a republican form of government
and protect each state against invasion;
o What is a Republican government???
Invocation of Political Question doctrine
Privileges and Immunities vs. Dormant Commerce Clause:
o Fundamental Rights and privileges conferred to State citizens:
Discriminating: against out of staters ability to exercise
constitutional rights
Right to practice particular profession
Scope: Limited (vs. DCC kicks in anytime re: interstate
commerce)
o Only protects citizens (FLESH AND BLOOD)
o Requires overt facial discrimination against non-residents to be triggered
(No motive)
o No market participant exception: (more active)
Where DCC might not apply, Priv. and Imm. Might apply
o Diff standard of review:
State has to show a substantial reason for the differential
reason, and statutory shows why substantial reason
o No congressional validation

CLASS SIXTEEN: OCTOBER 21, 2014

Office moved: 1055
Last class:
Privileges and Immunities:
o State has to show a substantial reason for discrimaitnon against OOS
Discrimination must show a substantial relationship to that reason
Not all privs and immunitiesn proteted against clause
McBurney v. Young:
What is fundamental privilege and immunity of state citizenship under Art. 4?
o Whats fundamental?
File a lawsuit with 4 sep. claims re: which privs and immunities were violated?
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o Opportunity to pursue a common calling

Not allowing CA getting info that he wants
Court says not violated
o Ability to own or transfer property
Court says, yes, but fundamental priv and immunity = no violation
o Access to state court
Court says yes, States cannot discriminate between in state and non
state res, but no violation
o Access to public information
Court says, no. Has the right at all times, been enjoyed by citizens
of the several states which compose this union, from the time of
their becoming free, indepdentnt and sovereign (historical inquiry)
is it basic to the maintenenance or well being of the union
Look at that moment to determine whether fundamental
priv or immunity
o If it didnt exist then, not a FUNDAMENTAL claim
Or Basic to maintenance or well being of
union (COMITY values)
Access to public information does
not win on that case
Reconstruction Amendments: Aftermath of Civil War
o Individual liberty: an action falls within scope of governments power to
do something,
Does it violate some OTHER provision in constitution? One of
individual liberty clauses
Prior to civil war and reconstruction amendments
th
o 13 Amendment
o 14th Amendment
o 15th Amendment
Why Dred Scott?
o Centrality of race
o Constitutional deficiencies
Background:
Slavery Pre-Revolution
o 10-11 million Africans brought across Atlantic
o Slavery legal in all 13 colonies
o Lifelong and hereditary
Self reproducing slave population not as dependent
o Slavery is legal and established in all 13 colonies
Institution isnt as important in the north
40 percent in south
References in the text:
3/5 clause: Article 1, Sec. 2

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Importation: Slave Trade Clause: Article 1, sec. 9

o One of two unamendable provisions in 1777 const.
Fugitive slave clause: art. IV., sec 2
o Required states to deliver escaped slaves from their
state back to their masters
Const. is at best silent and at worst, approves const.
Leaves a lot to be resolved through political process
o Missouri Compromise (attempt to resolve)
Maine and Mis. Want to enter union
Maine is Free state
Mis. Not
o Drew line: everything North:
Free states
o Everything south: slave states
Dred Scott timeline: 1833: Emerson acquires Dred scott in Mis.
o 1834: Relocates to Illinois and Minnesota*** whether this trip
emancipated Scotts
Scott v. Emerson:
We are almost persuaded that the into of slaver amongst us
was, in the providence of God who makes the evil passions
of men subservient to his own glory, a means of placing
that unhappy race within the pale of civilized nations
o Scott sold to NY Citizen
Legal Basis: Scott was liberated following his move to Minnesota:
Sandford: Scott is not a citizen and therefore has no
jurisdiction
o Art. III Sec. 2: cl. 1: The judicial power shall extend
to all cases, in law and equitybetween citizens of
different states
Being deprived of property as a result of
Missouri compromise (being
unconstitutional)
Court says: we dont have jurisdiction
Original public meeting theory: Historical modality: looks
at what framers wanted, pervasive ideology
o all men created equal
The people signing all had slaves
Therefore slaves were not considered all
men created equal
Then that calls into question the freed slaves
up north
Missouri compromise unconstitutional
Running into right to property

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Whats wrong?
o Treats people as property
o No need to overturn Missouri compromise because no Jurisdiction anyway
o Judicial overreach
Should have been decided by politics
o Morally problematic
o Historically inaccurate
3/5ths comp: some were citizens
o Lack of Textual support
o Counter majoritarian difficulty
Reactions to Dred Scott:
o At time decision was read from bench Scott was still a hired slave for 11
years
Part of the canon: in order to understand basic constitution
o Historical
o Social
o Textual
Demonstrates real flaws
o Political: when should court step in? or stay out?
o Philosophical?
Whether const. should ever be interpreted: morality playing some
role?
Little impact on status of free blacks
o Emerson remarries to outspoken abolitionist
Scotts freed 2 months after
Barron v. Baltimore: [BAD LAW]
Who do Bill of Rights apply to?
o Pre-reconstruction, bill of rights only applies to the federal government
o Very little constitutional involvement in individual rights
o Post barron historical developments
Bill of rights:
o Best way to deal with individual liberty was to constrain congress power
o Federalism: State constitutions were going to be primary guardians of
individual liberty
o Actions on state constitution and state level
Barron says that this is his private property: Just compensation: take my wharf?
Pay me
o Treat Baltimore as a state
o Argument: 5th amendment does not apply for actions by states/cities
Only acts as a limit for federal government
Court says: 5th amendment does not apply to states, barron
booted out of court, no just compensation

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o Marshall supports this by: intent of bill of rights, people who wrote the
Bill of rights were part of national government
Textualist argument: Congress shall make no law NOT States;
Specifically federal government
Role of states in the constitutional system:
o Worried that federal const. will come in and be
more important than states, and states are primary
guardians, restricts federal government
o Interesting coming from Marshall; ruling in favor of
states
Bill of rights doesnt apply to you: JUST
THE GOVERNMENT
o Nothing in US const. to prevent states from making
rules
States const. have analogous laws
o Concerns: Provides a lot of space for states to violate (individual liberty)
Do not treat Barrons as good law
Immediate effect: Very little action (legally) involving civil
liberties
o Fed. Govt isnt doing much
Only time Sup. Ct. invokes supreme court
overturning federal law is DRED SCOTT
Causes of the Civil War:
o Ideological conflict
Slavery v. free labor
Westward expansion
Fugitive slave laws
Abolitionism: social movement; takes off; and exerts
influence over party politics leading to election of Abe
Lincoln as president
o Catalyzing moments:
Uncle Toms Cabin
Dred Scott
o 1961-1865: 2% of Am. Population dying from Civil War
Social dislocation caused by end of civil war
Reconstruction: 1865-1876
Reconstruction Amendments:
Ideology of state sovereignty
o Tries to inscribe that into constitution
3 amendments passed immediately after civil war
Rights Provision: Teslls states some things they cannot do
o 13th, 14th, 15th: gives congress ability to do
something if it turns out southern states are not
getting into line
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Not just individual liberty; but expands

congress power

13th Am.:
o Abolishes slavery
*limited amendment dealing with slavery and invol. Servitude
th
14 Am.
o Passed in response to southern resistance to reconstruction
Section 1: clause 1:
All persons born or naturalized in the US and subject to the
jurisdiction thereof, oare citizens of the US and of the state
wherein they reside (overrules Dred Scott)
Sec. 1: Clause 2:
No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of US**
(Interpretive problem)
Sec. 1: Clause 3:
Nor shall any state deprive any person of life, liberty or
property without due process of law: must figure out term
liberty
Sec 1: Clause 4:
Nor deny to any person within its jurisdiction the equal
protection of the laws
Section 5: The congress shall have the power to enforce, by
appropriate legislation, the provision of this article: empowers
congress to pass laws if states do not get in line
th
15 Am.
o Sec. 1: The right of citizens of
The 2 Privileges and Immunities Clauses:
o Artivle IV: the citizens of each state shall be entitled to all privs and
immunities of citizens in the several state
What are the privileges or immunities protected under the 14th amendment?
All rights essential to national citizenship?
The bill of rights?
o Only some of the bill of rights?
Slaughterhouse cases:
Picked a case that would not be so political
13th Am.
Privileges and immunities
Equal protection
Due process
Facts:
o Butchers cannot slaughter at house; but had to bring them to the Louisiana
slaughter house and pay a fee

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Benefit political friends (Mean reason)

Health reason (nice reason)
o Louisiana argument: police power; part of state law
Butchers Legal Claims:
13th Am. Claim:
o Court says: No.
Interprets 13th Am. To specifically deal with
race and things that look like slavery
White butchers do not fall into that
narrative
Abridges privileges and immunities
o Privilege to pursue my livelihood
Not enumerated in constitution
Court says: owning and running your
own slaughterhouse is not a privilege
or immunity under 14th am.
o Reluctant to include that
privilege within scope of that
amendment (interpreted
narrowly) asserted
fundamental rights of
national citizenship
o To come to the seat of govt
to assert any claim he may
haveto the right of free
access to the seaportsto the
sub-treasuries, land offices,
and courts of justice in
several states
o If interpreted expansively,
constitutional claim
o Court is saying, that the shift
to a new federalism vision
not so fast
o Real concerns with
interpreting this amendment
expansively
o Purpose of 14th am. Was to
deal specifically with race
discrimination
o Implications of a broad
interpretation: broadens
scope of what congress can
do under Sec. 5

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o Court fighting back against

vision of reconstruction
amendments
o *the first and most important impact of this case;
rendering dead leg; striking out privileges and
immunities clause (LAME LIST)
If you see this as an answer usually a
distracter doesnt serve as a robust source
for enumerated rights or bill of rights
Equal Protection: Must argue being treated differently
o Being treated unequally
Compared with present city slaughterhouse
(monopoly)
o Court says: Purpose: race discrimination
Due process: Property being violated:
o Property in business not being able to do what you
want with property of business (economic liberty
being read into due process clause)
o Court says no, not going to treat property that way
Barron v. Baltimore: Pre civil understanding of rights
Slaughterhouse: 14th am. Narrow interpretation (frist time)
*Do the reconstruction am. Change relationship between fed. Values on one hand vs.
commitment to rights on other?
No, not going to commit post civil war paradigm shift acting as a nature of protection for
states outside of race discrimination
Re: Priv and immunities clause:
Dead letter for:
o Locating unenumerated rights
o Asserting bill of rights against the states **
Court says cant use priv and immunities clause to do that
Widely criticized by Historians
Court says holding on Priv and imm clause still GOOD law
o Shifts action to the Due process clause
o Limitations on sec 5.
Arguable upside:
o Racial equality as central purpose of reconstruction amendments
Race discrimination treated very differently
o Seanz v. Roe:
Cali statute requires families to live in state for 12 mos to receive
max welfare benefits
Held unconstitutional
Violation of right to travel under 14A privileges or immunities
clause
Incorporation: Schools of thought:

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o Total incorporation (black)

14th a incorporates all of the bill of rights
Selective incorp (Frankfurter)
14th A incorporates some of the bill of rights
o Takeaways:
Rights are incorporated against the states if they are fundamental to
our scheme of ordered liberty or deeply rooted in this nations
history and tradition
*most of bill of rights apply to actions by state governments
CLASS SEVENTEEN: OCTOBER 23, 2014
Why State Action?
How broadly do you want Con to be applied?
o Or how narrowly?
Constitution only confines to state actors
o Private institution 1st amendment doesnt apply
o Public institution? 1st amendment applies
Nothing prevents NYS legislature or congress saying everyone has
to live by rule
Constitution only applies to civil right actors
Why have State Action Doctrine?
Why are setting limits only on state actors a good idea?
Rationales for State Action
o Constitutional Text
Except for 13th am. All rights and liberties apply to states
The Text of 14th: No state shall deprive you of due process
of law
o Textual signal about state action doctrine
o Preserving liberty
o History
o Federalism
The Civil Rights Cases: (1883)
o The Civil Rights Act of 1875: no full and equal enjoyment
Requires public accommodations to grant equal access to citizens
of any race
Passed by Congress under its section 5 power
o South is bitter following civil war; fighting back
Discriminatory; southern states doing nothing
State governments arent doing anything about it
o First Question Asked re: Federal Law: CAN THEY DO THIS?
Does it violate an individual right
o Congress has this power under Sec. 5 power
New power Congress gets to enforce substantive 14th amendment

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Race discrimination
Civil Rights Act is unconstitutional: Congress doesnt have the power by Sect. 5:
o Federalism:
o Fourteenth am. Says:
Sec. 1 No state shall deny to any person within its jurisdiction the
equal protection of the laws
Sec. 5: The Congress shall have the power to enforce, by
appropriate legislation the provisions of this article.
Congress cannot use its power to regulate private conduct
Give a cause of action to sue states if they engage in race
discrimination

Federalism:
o The Thing Congress is trying to remedy is what could be argued, states are
doing nothing, that might call congress and get them involved
Textual modality: Textualist vs. Purposivist (placing it in historical context)
o Congress has different ways to regulate private action
Commerce clause
Congress cannot regulate private action through Sect. 5 and
substantive provisions cannot tell them how to regulate
each other
Decision about the scope of congress power
Supreme Court shuts it down right after civil war, declaring end
of reconstruction
Congress had to start relying on other sorts of constitutional power
o State action in context:
State power is implicated in most private conflicts
Some state action cases are easy
State action is state passing law
o Any time state leg passes law; state action
o The more govt actions get privatized gets really confusing
o Context is court is trying to do something about race discrimination
State action in context
o Role of race discrimination in development of the doctrine
Prior to the civil rights act of 1964, there was no federal law
regulating private race discrimination
Marsh v. Alabama:
Distribution of religious pamphlets
Outside of post office
Anyone can walk around the shopping center where marsh arrested, open to
public
Material facts that Alabama was state actor
o Owner opened up property in general

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o A lot of people live in company towns

Lloyd Corp. v. Tanner:
Privately owned shopping center
o Anyone can hang out at the mall
Public
No state action, no right to distribute at the mall
o Distinguishable from Marsh: alternate sidewalks, you can go there and
distribute
o Not engaging in view point discrimination
Fundamentally private in character
Company towns: State action
Privately owned corporations: No state action
Jackson v. Metropolitan Edison: Sets the rule for state action
Cutoff of service
o Due process clause
o Cant be deprived of entitlement
Life liberty and property; entitlement to electricity
Due process requirements: Notice and hearing apply to
metropolitan Edison
Met Edison: says no, were privately owned company, no state action
o Metro has a monopoly by having multiple owned companys given to them
by state
o Court says no state action:
Test applied:
Whether sufficiently close nexus between the state
(entanglement exception)
***Public function exception: Not something state
normally do: Traditional and exclusive state function
performed by government
o Constitutional Question: LOOK FOR WHETHER OR NOT PUBLIC
OR PRIVATE ACTOR
I.e. WHETHER STATE OWNED LAW SCHOOL OR PRIVATE
IF STATE; whole set of laws
o Balancing Test or Public Exception:
Lower courts; apply Jackson
Company towns: State action
Private: non state action
Shelley v. Kraemer (1984):
Entanglement Exception:
Whether state action exclusively or traditionally
Facts:

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o 30/34 owners on the street sign onto restrictive covenants

Can only sell houses to white citizens
White members of the community are filing suit to enforce restrictive covenant
o Under 14th am. The right to own and dispose of property
Unequal protection (sec. 4)
o State action doctrine: Court comes in and enforces restrictive cov.
Arguments against: Fundamentally lease; not state action private
Find state action anywhere
o Courts involved in all sorts of stuff
Court says: yes there is state action
o Violates 14th am. For court to enforce restrictive covenant
Hypo:
o I bestow my entire 100 mill estate to my son. My 5 daughters who I love
dearly, are inferior because they are women and are entitled to nothing.
Their husbands, no doubt, will provide for them when they are married.
Does the will violate the equal protection clause?
Underlying purpose of the 14th amendment (state action re: private
action)
o **Still good law; but court has relied on other cases to apply entanglement
exception
very broad rule
When you have govt involvement in private race discrimination,
evem if judge courts inclined to interpret state action in expanded
context
Moose Lodge v. Irvis:
Irvis brings suit for race discrimination for not being allowed in club
o Under 42 USC 1983:
Every person who under color of any statute ordinance, regulation,
custom or usage, of any state or territorysubjects or causes to be
subjects.
o Argues private club has to violate constitution
Refers to licensing obtaining liquor
Licensing scheme is somehow enough
Abide by by laws; state clubs need to abide by bylaws; and moos
lodge violates because forced to abide by bylaws
o Symbiotic relationship:
Court says that a licensing scheme is not enough to create a
symbiotic relationship
**licensing alone is not enough to create that symbiotic
relationship
Rendall Baker v. Kohn: (Entanglement case)
Non profit private school located on private property
No public officials on board
School receives 90-99% of operating budget from state
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o School is so entangled by the state by that subsidy

No tuition
o Court says NO: school is no diff than private contractor
Doesnt trigger constitution
o Entanglement exception should not be triggered here
Even very heavily subsidized subsidies is not sufficient to create symbiotic
relationship to trigger entanglement exception
Licensing/Subsidies: not enough for entanglement
State action Takeaways:
Const. does not apply to actions by private actors
Congress may not use its section 5 power to regulate private actors
Exceptions to state action doctrine
o Public function
o Entanglement
Facilitating private race discrimination as a factor

Overview of legal framework:

Main question always asking in 14th am. Context is standard of review or level
of scrutiny court is going to apply
o Skeptical or deferential hands off approach???
Standard of review composed of:
o Ends:
What is the government interest being advanced by legislation
Ex. Govt passes law that no one under age 18 can purchase
spray paint
o Ends: Preventing graffiti
o Means: Look at the relationship
Fit between means and ends
How does interest that state chosen advance that state
interest?
o Ex. Kids under age of 18 is more likely to engage in
graffiti, therefore that is how govt meet that interest
Govt must show diff level of govt interest
And differenet releationship depending on
level of scrutiny
Levels of scrutiny: ***MUST KNOW
o Strict: Narrowly tailored to further a compelling state interest
1) Govt must show a compelling state interest
2) And the law must be narrolwly tailored to serve that state
interest
o Intermediate Scrutiny:

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1) Means are Substantially related and

2) IMPORTANT STATE INTEREST
o Rational Scrutiny:
1) Rationally related
2) Legitimate state interest
Strict Scrutiny: Less deferential more likely to be found unconstitutional
(STRICT SCRUTINY)
o Intermediate scrutiny: laws based on discrimination of sex
Rational Basis Scrutiny: More Deferential (Less likely to be found
unconstitutional) (RATIONAL SCRUTINY)
Next class: Rational basis review: is the court applying something a little more? With
bite???
CLASS EIGHTEEN: OCTOBER 28, 2014

Last Class:
o 14th Am.:
State Action Doctrine
Public Functions (Exception)
Entanglement (Exception)
How to approach Constitutional problems
o FIRST: Does the Govt have the power to enact the law?
Federal Law: Look to Const.
State Law: Police power
o If YES: THEN Ask whether the law violates any other constitutional prov?
Overview of 14th Am.:
o Equal Protection:
Rational Basis
Strict Scrutiny
Intermediate Scrutiny
o Substantive Due Process: Economic Liberty
o Substantive Due Process: Non Economic
th
14 Am. Equal Protection Clause:
o NO STATE, shall deny to any person within its jurisdiction the equal
protection of the laws
THE FED. Govt through 5th Am. Cannot violate life, liberty or
due process of law; BUT Equal prot. Clause not stated, inferred
Therefore APPLIES To Fed. Govt too
The Problem:
o All laws classify and treat people differently
AKA Discriminate

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4pm Tues/Thurs

Ex. Parking regulation: Tix to ppl illegally (discriminatory

against illegal parkers)

o Interpretive:
What classifications, what kinds of discrimination are permissible
under the eq. protection clause (EPC) and which violate EPC
Laws that treat similarly situated people different?
Laws that treat people differently based on their race?
o EPC doesnt use race at all
EPC has a problem with classifications that somehow harm
discrete and insular minorities?
o Court solves this problem with tiered scrutiny: (Court made this up, NOT
in const. text) MUST MEMORIZE LEVELS OF SCRUTINY
Think of ends and means
What is purpose: state interest being advanced
And Means: classification of that law and that purpose

o Default rule = RATIONAL BASIS

Easy to satisfy
Most EPC challenges will fail
How to tell which classifications are subject to which level of scrutiny:
o STRICT:
Race
National Origin
Religion
Alienage (with exceptions)
o INTERMEDIATE:
Sex
Illegitimacy
o RATIONAL BASIS:
Age
Wealth
Mental Disability
.and almost anything else
How do you determine to apply to a classification?
o (Not exclusive, nor applicable in every court/weighted equally)
When heightened scrutiny:
History of Invidious discrimination
Characteristic bears no relation to ability to perform
Immutability (cant change the trait)
Political powerlessness
FRAMEWORK: How to Deal with EPC Analysis:
o FIRST: What is the classification?

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Who is being discriminated/basis who the law applies to and who

it doesnt
o SECOND: What level of scrutiny applies to classification?
o THIRD: What is the state interest?
What are the ends?
Why did the state pass this law?
o FOURTH: What is the FIT between means and ends?
How do classifications help advance govt purpose
o FIFTH: Do state interest and fit satisfy the level of scrutiny?
Rational: Rational/legitimate
Intermediate: Significant
Strict: Narrow/Compelling
CASES THAT APPLY THE RATIONAL BASIS TEST:
Review is deferential to govt action
Very rare for a court to overturn law for EPC once determined rational basis
applies
o Rationally related to a legitimate govt interest*****
Normative: The court opted for a deferential test under EPC:
o Institutional Competence reason
Congress knows more re: reasons why classification
o Framers intent: not opening floodgates; did not want a wide application
o Efficiency concerns
o Counter-Majoritarian difficulty: Federal judges telling elected
representatives
o Concerns:
Govt can do anything so long as they have a justification
Very easy
o Purpose under Rational Basis Review:
FRITZ: Where as here, there are plausible reasons for Congress
action, our inquiry is at an end. It is, of course, constitutionally
irrelevant whether this reasoning in fact underlay the legislative
decision
FCC: Those attacking the rationality of the legislative
classification have the burden to negate every conceivable basis
that might support it
Difficult to win that case
o In Rational Basis Scrutiny: Court doesnt care what motivated congress;
so long as theres some state legitimate interest advanced by legislation
NYCTA v. Beazer:
o Re Fit: Law fails to treat similarly situated people the same way
Overinclusion: The classification captures all of the persons who
cause the harm, plus some that dont
Underinclusion: The classification captures some, but not all, of
the persons who cause the harm

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Ex.:
o Underinclusion:
City ordinance prohibits loudspeakers near
hospitals to avoid disturbing patients
Underinclusion: law allows cars near
hospitals to honk horns
o Overinclusion:
State law to prevent drunk driving prevents
anyone under age 21 from drinking alcohol
Many persons under age can drink
responsibly
Harm: Irresponsible young people
Classification: all young ppl

Rule:
o If you use narcotics you cannot apply for employment with NYCTA
As applied here: ppl who use methadone
State interests:
o Safety
o Efficiency:
Costs a lot of money for individual assessment
Blanket rule

ARGUMENT:
FIT: No rational relationship between the means and the purpose:
o Overinclusive re: safety rationale:
Some methadone users present no safety risk at all
o Underinclusive:
People who are similarly situated re: safety risk presented are not
covered by classification
State has legitimate interest:
o Tolerance of overinclusion: too costly to amend law
o Tolerance of Underinclusive:
Deference to the state:
Ct. says willing to tolerate vast amounts of overinclusiveness
o If it is tough for an individual assessment, court says thats okay
Underinclusion: tells the state, it is okay to set a law piece by piece
Simulation:
o NYC Law prohibits any ads on commercial vehicles that are unrelated to
the vehicles business
o State interest (justification): Safety risks
Ads distracts drivers and pedestrians
o What is the classification and what is the appropriate level of scrutiny?
Rational Basis

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o Fit: is the law over inclusive and/or underinclusive?

Overinclusive:
Not all advertising distracts drivers
Underinclusive:
Commercial vehicles advertising their own business
o Just as distracting
Regular vehicles with bumper stickers do the same thing
o Ct. will most likely uphold law because it serves to the state as a
legitimate interest
CLEBERNE-MORENO-ROMER-TRILOGY (UNICORN LAW)
Ct. Maintains application of Rational Basis Scrutiny
o Declares govt action unconstitutional
Rational basis with bite
Magical fourth tier of scrutiny
Court has barely any clarity here
o What level of scrutiny is ct. claimants applying?
o What level do you think ct. is actually applying?
City of Cleberne v. Cleberne
Special use permit:
o For insane, feeble minded, alcoholics, drug attics
NO application for special use:
o Hospitals, dwellings, apartments, frat/sorority houses
Denied special use permit for:
o 1) negative attitudes of surrounding property owners (Safety)
o 2) Location
Across street from junior high school (not very nice)
Flood
Argument for approval of special use permit:
o Underinclusive:
Does not apply to other homes, facilities/frat houses
Not necessary to have a Special use permit
o Mere dislike/fears is not a legitimate interest.
Heightened level of scrutiny might apply?
o History of discrimination against them: Strict scrutiny might apply
Underinclusion is okay if its a case by case basis: See NYCTA v. Beazer
Doesnt matter what the state is doing, so long as there is a plausible reason thats
legitimate, not the job of the Court to figure out situation.
Holding:
o Violated EPC with special use permit
Political powerlessness:
o Dont need the court to step in and help because theres already acts
implemented asserting their rights
Congress is fit to determine legislation re: mentally retarded
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Ct. Applies Rational Basis Standard (pg. 738)

o Normative:
Higher scrutiny?
Regulation falls short of Rational Basis
o Underinclusive: flunks because it is underinclusive
And Court fails to apply holding in Beazer case those people
were not within classification; and that was still accepted
Similar to Beazer with underinclusion;
Re: Vague and undifferentiated:
o No legitimate purpose served here
Takeaways:
o Is the Court ACTUALLY applying rational basis scrutiny?
Probably not.
Underinclusion (as seen in Beazer)
Rational basis with BITE:
o If vague and undifferentiated fears underlying
reasons for law, not happening not rational
legitimate state interest
Leg. Based soley on vague fears against part. Group of ppl
NOT legitimate state interest
US Dept. of Agriculture v. Moreno:
Regulation at issue: Food Stamp Act Sec. 3(e) excluding any household composed
of unrelated people.
Congress forbids: Minimizing fraud (unrelated ppl all applying)
Actual reason: Congress wants to stop Hippies from using Stamp Act to their
advantage
o A bare congressional desire to harm a politically unpopular group cannot
constitute a legitimate state interest
Court knows this: Legislative history showing congress hate
against hippies
o Overinclusive:
Some unrelated ppl live together BECAUSE of limited financial
means, who are all eligible
o Underinclusive: Some people who are related and use this to their
advantage and included
Does not constitute a legitimate state interest
o Clearly a bare desire to harm
o Animus towards particular group is not a particular state interest
CLASS NINETEEN: OCTOBER 30, 2014
Last Class:
Rational Basis Scrutiny
o Purpose
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o Fit
Overinclusion
Underinclusion
Can bring suit for EPC under either
Cleburne-Moreno-Romer Trilogy
o Rational Basis (with bite???)
o Legitimacy of states interest
Each case focuses (mostly) re: purpose
Unicorn Law
o Moreno:
a bare congressional desire to harm a politically unpopular group
cannot constitute a legitimate state interest.
This does not cut it under rational basis test
o Default Rule: rational basis
Some legitimate reason
Romer v. Evans:
Amendment in State of Colorado:
o Enactment at issue: Amendment to Constitution of the State of Colorado,
which was adopted in a statewide referendum.
Due to ordinances passed in Co. municipilities banning
discrimination based on sexual orientation re: housing,
employment, education, public accommodations and health and
welfare services
Explicitly: More than repeal or rescind provisions.
o Prohibits all leg, executive or judicial action at any
level or state or local govt designed to protect the
named class of homosexual persons, gays and or
lesbians.
Passed by referendum
In order to have some sort of protection under the act, would have pass more laws
Being classified: set of laws
State interest:
o Promoting freedom of association
o Save money
o Moral disapproval
In order to attack States Argument:
o Want to apply Strict Scrutiny Test
Court says we want to apply rational basis test
o No legitimate state interest because of:
Purpose
BUT Animus is not a legitimate state interest (See Moreno)

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Re: Breadth of this Amendment: is discontinuous with the reasons

offered for it that the am. Is seemingly inexplicable by anything
but animus toward the class affected
Court Held: Unconstitutional:
o Lacks the rational basis to legitimate state interest
Attacking on Purpose grounds
Purpose: Animus
o Animus does not in itself constitute as a legitimate
state interest
Dissent:
o Scalia in Romer: This court has no business imposing upon all Americans
the resolution favored by the elite class from which the Members of this
institution are selected, pronouncing that animosity towards
homosexuality is evil.
Wrap Up:
Ct. maintains rational basis scrutiny:
o BUT it seems to be applying rational basis with bite??
actual purpose inquiry
Closer scrutiny on fit
**Ct. says animus does not satisfy leg. Govt interest
o Rational basis takeaways
Rational basis test applies to most social and economic legislation
Willing to tolerate underinclusion and underinclusion
Overview of Strict Scrutiny:
Highest level
Requires a compelling state interest
Classification must be narrowly tailored to advance that interest
o There must be no less discriminatory alternative to advancing the interest
Burden of proof is on the state
When does Strict Scrutiny apply?
o Race
o National origin
o Religion
o Alienage (with exceptions)
o Classifications that affect ability to exercise a fundamental right (hybrid
claim)*
Primary focus:
o Race based classifications: When examining think of 3 diff categories:
Constitutional test associated with them:
o Invidious race discrimination: (easiest)
based on race on its face
operates on the disadvantages racial minorities
o Disparate impact:

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No facial race based classification

Effect of the law disadvantages a racial group
Ex.: Civil service test; race determines who passes and
fails
o Except: if the law is passed for a racially
discriminatory purpose; even if its
discriminatory on its face
o Non-invidious race discrimination:
Based on race on their face
Operates to the advantages on racial minorities
Ex.: Hiring, applying to public law schools
o Look at this category at different lengths
Why under the EPC courts give race based classifications a second look:
o *When should strict scrutiny actually apply?
All race based classification and why?
THEORIES:
o History: original intent of 14th amendment
o Inherently irrational: Race has no relationship to
ability
o Stigmatizing: Promotes racial stereotypes, and they
are harmful
o Immutability: no way to opt out of the classification
o Anti-Subordination: Racial classifications cause
suspicion because they set up a caste system
Korematsu v. US:
Japanese Internment:
o Last time explicit race based classification was upheld by the Court
110,000 Japanese Americans placed in internment camps in
Western interior states for an average of three years
o Govt agencies prepare possible war v. Japan; prepare a list of potentially
dangerous Japanese Americans
o Following attack on Pearl Harbor;
o Curfew imposed immediately of all Japanese Americans
o Roosevelt issues executive order authorizing exclusion of Japanese
Americans within those areas.
o Subsequent order reporting to internment camps, avg. of 3 years
o No charges filed, never accused of crime
Korematsu: arrested for violating exclusion order and convicted of federal crime,
not order to report to internment camps
ARGUMENT:
o Korematsu: Unconstitutional because discriminatory shown by Strict
Scrutiny:
This interest is not compelling because no evidence of national
security threat

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Animus is not enough to compel

Fit Argument:
Overinclusive:
o Not all Japanese American citizens are all enemies
Underinclusion:
o Italian, Germans, may be enemies and not included
by exclusion order
o State interest: Preventing espionage and sabotage
Legal standard: must be compelling
State Argument:
Military Deference argument: Time of war, emergency,
lower standard
Constitution is not a suicide pact: cannot read it in a way
that prevents the protection of country and safety
Deference should be given because executive has greater
knowledge
Economic argument
Strict scrutiny applies
Court Holding: Constitutional
Takeaways:
o No legal impact other than a symbol of what should be avoided
o Became the subject of a redress movement
o Vacated decision on the grounds of incorrect information
Loving v. Virginia:
Background Facts:
o Racial Integrity Act: criminalized all marriages between white persons and
non-white persons;
o White man and non-white woman traveled out of Va., and got married in
DC
o Come back to home and were arrested for violating Va.s law
ARGUMENT:
o Loving:
Re: Purpose: Fit
Underinclusion
o Apply rational basis: everyone allowed right to
marriage, equal application argument
Doesnt treat them all the same way between
white people and non-whites
o State: Maintain racial integrity
COURT SAYS: This is the definition of invidious discrimination based on race
Is it constitutional?
Re: Only Asian American actors in production of State University production:
o One argument: Equal opportunity: non-equal outcomes

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Re: Racial tensions between communities of color and local police officers, the
police chief assigns officers to certain neighborhoods based on their race
Re: After a prison riot triggered by racial tension, prison officials decided to
segregate based on their race
Purpose of 14th am.
o Race based classifications as non-invidious, 14th am. Should not be
concerned
Anti-subordination vs. Anti-Classification (classifications are bad, regardless of
winning or losing)

Plessy v. Ferguson: NOT GOOD LAW

Facts:
o Racial segregation; Jim Crow
o Got here because of Election of 1876; and compromise of 1877
o No need for formal segregation
o Louisiana has a statute requiring railway companies to provide equal but
separate accommodations based on race of the passenger
Law determined who was white vs. who was black for legal
purposes
Why is segregation race discrimination:
o Classification
o Discrimination based on race
ARGUMENT:
o Louisiana:
Separate but equal, everyone gets to ride the railway
10th Am., Segregation was somewhat pervasive
Doesnt say anything about being separate, just talks about equality
Court upholds regulation, saying constitutional
o Talks about the Purpose of the 14th amendment
To enforce absolute racial equality BUT not
designed to abolish all racial classifications
Re: Social sphere: law cannot
micromanage people and how they
interact in social sphere
o PLESSY:
Stigma
Court:
o Ignores tool of racial subordination (Jim Crow)
Dissent:
o There is no caste here. Our constitution is color-blind, and neither knows
nor tolerates classes among citizensin my opinion, the judgment this
day rendered will in time, prove to be quite as pernicious as the decision
made by this tribunal in the Dred Scott case
CLASS TWENTY: NOVEMBER 4, 2014
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Last Class:
Rational Basis Scrutiny
o Romer v. Evans
Strict Scrutiny:
Invidious Racial Classifications
o Korematsu
o Loving v. Virginia
Plessy v. Ferguson:
Harlans Dissent:
What was so terrible about segregation?
o EPC doesnt say anything about separateness. All it talks about is
equality.
Anti Classification theory: Problem with segregation is act of classifying, all
raced based classifications stigmatize and not good to classify race in any
purpose, regardless of anyone who benefits and regardless of whos harmed by it
Anti Subordination Theory: Different way of thinking of harm suggests by
segregation; by one group to subordinate another group
o Classifications are not necessarily bad/problematic; only when they are
used by one team to harm another team
Which vision is correct?
The Road to Brown:
The product of years of gradual attacks of school segregated
Argument that social movements are the engines of effective legal change
Marks a point of transformation of US supreme Court
Revolutionized const. law; voting rights, death penalty
o What did the Warren Court do during late 50s and 1960s in an effort to
reconcile with text + history of the constitution
Brown v. Board of Education:
Background Facts:
o The original split on the Brown Court:
4 Justices want to invalidate segregation
2 votes to uphold segregation
Reed and Vinson
o Vinson just before vote dies
Earl Warrant appointed as Chief Justice
1953
5th vote to strike down segregation so
long as the Court speaks with one
vote
3 undecided votes (Frankfurter, Jackson & Clark)
Frankfurter tries to have a reargument based on the original
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When is it appropriate for a judge to go along with decision for political reasons?
Unanimity vs. Compromising principles?
o Unanimity is critical for countrys acceptance of decision
1) Regulation at issue?
o Segregation of public laws within state schools based on rules
Argument:
o For the State:
Textualist: All the equal protection clause requires is that everyone
gets the same equal education, doesnt have to be separate or
integrated
Historical: Segregated schools (and segregation) was common
place;
Congress required segregation in district of Columbia
schools
Whatever 14th am. Was designed to do, hard to believe that
Congress wanted desegregation when they were legally
requiring segregation
o Plaintiffs argue schools are not equal
Court says:
o There is a problem with historical argument;
o What does living constitution mean?
o Justifying its decision for rejecting segregation:
Segregation denotes inferiority as a result of segregation;
Relies on social science
o Segregation causes stigma;
o Stigma creates negative effects
Classifications in Brown were designed to support segregation
Following brown:
o Criticism against NAACP Legal strategy
o Argument: alt. strategy was: Just make the schools EQUAL, doesnt need
to be integrated. But at least ensures equality.
Whats wrong with the Brown opinion?
o Although rightly decided, as a model decision: is not one
o Textual: Not entirely clear that text requires integration
o History: At the time the 14th am. Adopted, segregated schools were legal in
other states
o Doctrinal: Stare Decisis?? None.
o Prudential: Kenneth Clark Doll Study problems: if decision is based on
that study being true, it is to weak to base this opinion
Questions case leaves unanswered?
o Not really clear how much Plessy is overruled
o Following: widespread per curiam decisions overruling state laws bc
unconstitutional based on 14th EPC

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o Theory of EPC?
Anti Subordination? Vs. Anti Classification?
Classification: Bad when used for racial subordination
o Does Brown apply to federal govt?
Boiling v. Sharpe (yes 5th am.)
Ct. Reads equal protection clause holding Brown applies to
fed govt
Reactions to Brown:
o Long term resistance
o Resurgence of KKK
o Civil Rights Act of 1964: at that time national political consensus to stand
behind brown
Maybe Court when operating alone, limited in its ability to take on
an ideology
Once the Court has a natl political consensus (public opinion
shifting on an issue) thats when we can rely on courts to shift
social vision and serve as beacons of social justice

DISPARATE IMPACT CLASSIFICATIONS: No Facial race based classification;

Laws effect
1) What level of Scrutiny
a. Rational basis scrutiny will apply except where Plaintiffs can show that
there was a discriminatory purpose: strict scrutiny will then apply
i. STANDARD: Must be a motivating factor to get into strict
scrutiny (Arlington)
2) Chances of success:
a. Low: Based on caselaw because Plaintiffs did not satisfy their burden
i. I.e. Massachussets veterans law:
3) Caselaw that shows what would improve the chances of success:
a. Arlington: Factors Applied:
a. Impact of official action: bears more heavily on one race than
another (clearly pattern unexplainable on grounds other than
race, etc.)
i. In Arlington: Minorities are 18% of Chicagos pop
b. Historical background of decision: a series of official actions
taken for invidious purposes (specific sequence of events leading
up to the challenged decision, departures from normal procedural
sequence, if factors usually considered impt by decision maker
strongly favor a contrary decision):
i. In Arlington: Court says usual procedures
c. Legislative or administrative history: contemporary statements
from members, minutes, meetings reports:
i. In Arlington: 2 additional hearings to accommodate
MHDC and permit it to supplement its presentation
with answers to questions generated at the first

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hearing. Failed to carry burden of proving

discriminatory purpose was motivating facto
b. Problems:
i. Hard to determine subjective intent of legislature
ii. Slippery slope concerns: opens the flood gates to more racially
disparate impact claims
Washington v. Davis:
Background: DC police require all applicants to pass an exam that has a
discriminatory impact on black applicants
o Number of black officers doesnt reflect city population mix
o Test is not validated
Court says No.
Personnel Administrator v. Feeney:
Challenge to constitutionality of Mass. veterans preference statute on the ground
that it discriminates against women in violation of EPC of 14th am.
Court says: Congress motive that they love veterans is okay, but strict scrutiny
applies; discrimination must be motivating factor even though discriminatory
impact was foreseeable.
Arlington Heights:
City denies rezoning application filed by group that wants to build affordable
multi family housing
Discriminatory purpose must be a Motivating factor
o Once proven: burden to state that the law would have been enacted
anyway; race was not motivating factor
Methods of proof:
Clear pattern of administration (only being administered
towards African Americans)
History surrounding the action
Departure from normal procedure
Substantive departures
Legislative/Administrative history
NON-INVIDIOUS RACIAL CLASSIFICATIONS: Statutes Classify based on race
but operate to benefit of racial minorities
Approach these cases with 3 different hats:
1) Lawyer: Rational legal perspective: how are legal arguments constructed and
whether they are strong or not
2) People: personal experiences
3) Citizen: How would you like a room full of citizens to discuss and engage in these
issues
Background of legal history before Crosson:
Unclear whether to apply same rule re: invidious discrimination or a lower
standard

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o *Strict Scrutiny applies to non-invidious discrimination

If strict scrutiny applies: what constitutes a compelling state
interest?
In an employment context?
In an education context?

Crosson in Doctrinal context:

o 4 Justices: Committed to anti classification vision of EPC
o 4 other justices: tolerant to affirmative action; subscribing to anti
subordination vision of EPC
Richmond v. Crosson:
Regulation at Issue: MBE (the Plan) requiring contractors from city awarded
contracts to subcontract 30%
Argument:
o Richmond: Racial Quota
Purpose of Strict Scrutiny is to smoke out past discrimination
State interest: remedy past discrimination
Fit Argument:
Overinclusiveness: Remedy may apply to laws for
businesses over the country; ppl who would not ordinarily
be included are included
o Purpose shows maybe not remedial
Court struck down statute because violated EPC
o Concerned about evidence;
o Promote racial inferiority stigmatize
o Remedying general race discrimination in the K industry
If State interest is racial discrimination in K law all over the country = NOT
COMPELLING
o Compelling: Actual race discrimination taking place in Richmond
presently
Court says:
No considerations towards race neutral means to increase
Must be narrowly tailored to discriminated
Doesnt like quotas, theres no evidence of 30% being tied
to an injury suffered
CLASS TWENTY-ONE: NOVEMBER 6, 2014

Invidious Discrimination
o Brown v. Board of Ed
Discriminatory Impact
o Washington v. Davis
o Personnel Administrator v. Feeney

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o Arlington Heights
Richmond v. J.A. Croson:
o Purpose: Is to smoke out illegitimate uses of race by assuring that the
leg body is pursuing a goal impt enough to warrant use of a highly suspect
tool
What state interest in an employment context be sufficient to be
considered remedial
o Ct. says: Taking Fit inquiry Seriously
o Strict scrutiny to race based programs
Put in place to remedy specific race based discrimination
Unlikely court find other state interests
Simulation:
o Strict Scrutiny:
Narrowly tailored
To a compelling state interest
What is a compelling state interest?
o Education & Diversity in education, and the
benefits
o What would demonstrate?
Race cannot be primary variable
Individualized:
No separate track for minority students
Grutter v. Bollinger (838)
Michigan law school admissions looks at factors in addition to race (Plus
factor)
o ARGUMENT:
Strict Scrutiny Applies:
Standard: Narrowly tailored to Compelling States
interest
o States interest in achieving diversity is not
compelling;
o Rules in Crosson apply in law school
admissions policy just like they did with
employment
No compelling state interest
For the STATE:
Diversity is compelling
Diverse legal environment
Exposure to diverse culture
No racial classification
o OPINION:
Strict scrutiny applies to all racial classifications regardless
of benefit or burden to minorities

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Smokes out illegitimate uses of race

Strict scrutiny doesnt automatically mean govt
going to lose
Strict in theory fatal in fact is NOT TRUE
o Compelling state interest is diversity:
Remedial justifications backwards
looking justifications to fix wrongs
Here, open to forward remedies
Grutter v. Crossen: Diversity is beneficial
o Construction company is a much smaller
population with a broader remedy
o No quota
A program like this furthers objective for EPC to
remedy race discrimination
o Freedmans Bureau: Takes land giving it
solely to free slaves
Text to purpose argument
Crossen
o Strict scrutiny?
Court applies deference
But in strict scrutiny there should be no deference
o Dissent: Issue of subordination
Notes from Grutter:
o Quotas unconst. But this is not a quota
o Other race neutral alternatives
o OConnor says state doesnt have to exhaust all racial alt.
Suggests in 25 years Grutter goes up in flames
Gratz v. Bollinger (pp. 855-861)
Fixed number of points to underrepresented minority groups
No individualized considerations
Fisher v. Univ. of Texas (pp. 57-63 Supp.)
Same plan in Grutter
Court applies strict scrutiny but diversity still compelling state interest
Court says Fit inquiry
o Judges will inquire whether university could achieve diversity using non
racial factors
o No workable race alternatives
o University is not entitled to deference re: means of diversity
Universities are best judges of means to achieve compelling state
interests in diversity
Simulation:
Race as a factor in determining where 6 year olds are placed
Sex Discrimination

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Gender Classifications (pp. 866-867)

Background:
o Most action happened through Article V: 19th am. (vote to women)
o Traditionally:
Provided women constrained set of rights
Not allowed vote, sit on jury, access to courts
Common law: marriage merged whatever woman had to
husbands property
No mention of extending suffrage to women
Historical evidence re: drafters adamantly not caring about sex
equality
Women mobilize which leads to passage of 19 th am. Extending
right to vote to women
Court willing to tolerate a range of sex based classifications under
EPC
Only allowed men to practice law in Bradwell v. Illinois
Allowing women to work behind bar only if she was wife
or daughter of owner of that bar
Overview of Intermediate Scrutiny:
o Applies to classifications based on sex or illegitimacy
o Requires important state interest
o Classification must be substantially related to that interest
o Underlying concern with sex stereotyping
Craig v. Boren (pp. 872-875)
OK statute prohibiting sale of low alcohol beer to males under 21 and women
under 18
Discriminates against underage men
Standard for the first time: (increasing level of scrutiny)
o Also happening in the middle of an Art. V proceeding (equal rights)
State interest: concerned about traffic safety
o Evidence: More males killed in accidents aged 18-20
o Traffic safety is important governmental objective
o Consumption of buying not the SALE
Overinclusive and underinscluive:
Underinclusive: Re: only low alcohol and sale
Overinclusive: Punishes a group of men for only 2%
Similarly situated?
o Data says NO.
Analysis:
o Intermediate Scrutiny:
Impt. State interest: public Indecency
Classification:
United States v. Virginia (pp. 875-880)

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VMI only admits men

o Uses adversative method
State establishes Virginia Womens Institute for Leadership (VWIL) as a remedy
Dist. Ct. rules for VMI
State interests:
o Educational benefits
Adversative method not work in opposite sex environment because
women learn differently
Legal rule:
o Exceedingly persuasive justification
Heightening Intermediate scrutiny towards strict scrutiny
o Court rejects state interests
How men and women learn is based on stereotypes and doesnt
believe them to be true
o Actual States Purpose Review:
Ct. doesnt believe Virginias rationalizations
Ct. looks at purpose provided and scrutinized what the
actual purpose may be
o Virginia alleges remedy VWIL offers equal oppty for Virginia
Court says NO. Different facilities, funding, criteria, etc.
Intermediate scrutiny vs. Strict:
o Might allow non-invidious sex discriminations
Sex Discrimination Takeaways:
o Intermediate Scrutiny
Underlying concern with sex stereotyping
For next class:
o Due process clause
No state shall deprive any person of life, liberty, or property
without due process of law
Method of finding un-enumerated rights
o Rights as force fields
Types of conduct/behavior
Economic liberties:
Fundamental Rights:
o Enumerated rights and some unenumerated rights
o Strict scrutiny applies
Least restrictive means
Non-Fundamental Rights
o Rational basis scrutiny
o Applies to most social and economic legislation
Economic Substantive Due process rights:
Lochner Era:

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o Court uses due process clause to overturn economic

legislation
o Court overturns lochner
o Limited 14th amendment protection for economic
liberty
CLASS TWENTY-TWO: NOVEMBER 11, 2014

Alienange Discrimination:
o Classifications against persons based on citizenship status
o General rule: Strict scrutiny applies
Look at text of EPC: 14th am. Talks about persons
Protections of 14th am. Might extend to ppl NOT citizens
o Exception: State regulations: classifications based on alienage, self govt
and democracy
Rational basis scrutiny applies: (Laws that discriminate against
noncitizens in their ability to vote, non-juries, political office,
certain jobs)
Congressional approval
Plyler: Scrutiny
o Broad and narrow versions of holdings of cases read
o Facts:
Tx law denies education
Declares unconstitutional
**For outlines: Separate from everything
Court was dealing with vulnerable population, decided that
the law being so broad, applied across board, rational basis
with bite
Other Classifications:
o Illegitimacy intermediate scrutiny
o Age: rational basis
o Wealth: Rational basis
o Disability: rational basis
o Sexual orientation: rational basis
INDIVIDUAL RIGHTS: What is Liberty
Positive Rights
o Affirmative right to something
Ex. Housing, food, shelter
Generally not recognized
Negative Rights
o Right preventing the govt from doing something to you
o Force field against govt regulation
Area of conduct that govt cannot touch
What is textual source of the right?

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o Rights listed in bill of rights

o Free speech
o Bear arms
o Free exercise of religion
Unenumerated Rights?
Substantive vs. Procedural Due Process
Substantive Due process:
o Is the right a liberty guaranteed by due process clause
Do you have a const. right to custody of your children?
Procedural Due Process:
o What process does govt have to go through if wants to deprive you of
life liberty
What process does govt have to follow to deprive a person of
that liberty?
When State infringes on fundamental right: STRICT SCRUTINY APPLIES
o Enumerated rights and some unenumerated rights
o Strict scrutiny
Lease restrictive means (must be narrowly tailored)
o Non fundamental rights:
Rational basis scrutiny
Applies to most social and economic legislation
Substantive Due Process:
o What is the right at issue?
Has the right been infringed?
Is the state interest sufficient
o Are the means sufficiently related to purpose?
Substantive Due Process: Economic Liberty and Substantive Due Process:
o Can govt interfere with
The amt an employer must pay employees?
The number of hours employees may work?
A persons ability to practice a profession?
1890-1937: Lochner Era:
o Court uses Due process clause to overturn economic legislation
Historical context:
1872: Restrictive definition of economic liberty in
Slaughterhouse
o increased federal ad state economic regulation
Lochner Era:
Federal Regulation overturned
under Commerce clause
State regulation overturned under
substantive due process
1937:
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o Court overturns Lochner (West Coast Hotel)

Post 1937:
o Limited 14th Am. Protection for economic liberty

Lochner:
Statute at issue: Law limited amount of hours bakery employees work
State Interest:
o Public health advanced:
Protects:
Workers that are tired, safety issues, flour dust inhaled
People buying bread: contamination
o State taking sides of economic group between employees and employers
Argument:
o Right to Contract: Textual source:
State using power
Court says unconstitutional: violating 14th am. Due process clause:
Analysis:
o Court reviews to see if its fair, reasonable, appropriate exercise of the
police power of the state or is it an unreasonable unnecessary and arbitrary
interference
Court says there is no direct relation between means and health
Court thinks this is labor law: govt getting involved in private economic
relationships and taking sides
o Court says bakers can protect themselves in bargaining power
Unenumerated rights: no liberty to K
Liberty of K limits state legislatures to regulate certain
types of economic relationship
Skeptical towards laws not exactly passed for a specific
purpose
o Impact: every economic relationship infringes on
liberty of K
Dissent: Harlan:
o This is a valid law about health
o Courts should be more deferential
Dissent: Holmes:
o 14th am. Does not enact Herbert spencers social status
o A constitution is not intended to embody a particular economic theory
whether paternalism and the organic relation of the citizen to the state or
of laissez faire
Lochner Decision Critiqued:
o Made up liberty of K and gave a lot of power and not in const.
Is it wrong to eliminate right to K, how is it wrong to term
pregnancy?
o Review of means and relationship?

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Data showing flour dust not good for health, court overstepped
bounds by not relying on legislative reports

Takeaways:
o Known for est. liberty of K under due process clause
o BAD LAW
o Neutrality principle
Court should not take sides
o Careful scrutiny of means and ends under the due process clause
1930s pressures causing demise of Lochnerism
o Economic pressure
Great depression
Bargaining power becomes a major joke
o Political pressure:
Court packing plan: trying to get Sup. Ct. to back away and allow
states to regulate economy
o Intellectual pressure:
Legal realism:
Questioned whether judges are formalistic arbitrators
neutrally applying law
Formalism:
o Law reflects a set of neutral principles
o Judges can apply these principles in a formalistic
way
Legal realism:
o Law reflects political choices with winners and
losers
o Political choices should be made by legislatures
rather than courts
West Coast Hotel v. Parrish:
o Law est. minimum wage for women and minors
o Court upholds minimum wage law, overturning lochner
Liberty of K argument: Court says not based in text anymore
Ct says: legitimate public purpose
Legislature thinks minimum wage law helps solve problem, apply
deference, get out of legislatures business
Rational basis scrutiny applies
o Nullify economic liberty due process clause provided
o Economic liberty: presume constitutional
Presumption of Constitutionality:
o Post Lochner era deference to legislature
Why a presumption of constitutionality?

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Are there situations where presumption should not apply?

What does someone challenging legislation need to do to override
presumption?
US v. Carolene Products:
o Law: Congress passes law forbidding shipment of filled milk across state
lines
Purpose? Health reasons
Regular milk asking for them to take sides between milk
producers
Standard:
The existence of facts supporting legislative judgment is to
be presumed, for regulatory legislation affecting ordinary
commercial transactions is not to be pronounced
unconstitutional unless in light of the facts made known or
generally assumed is of such a character as to preclude the
assumption that it rests upon some rational basis within the
knowledge and experience of the legislators
o No countermajoritarian issues: Court doesnt want
to Lochnerize
o Re: Footnote 4: Theory of judicial review: representation reinforcement
about when appropriate for court to second guess 14th am. Re: what the
govt is doing
After taking hit from lochner era being countermajoritarian
Court says: next time they say No its going to be
different and not about values
o Protects political process; appropriate for court to
step in only when somehow obstacle group getting
what they want through political ends
Once court can guarantee that group can
access what they want, then court backs
away
o Also, if political process broken
o Or if group affected is legally excluded or
prejudiced
Raises questions:
1) Why protect minorities at all?
2) Isnt point of democracy that
majority wins?
Okay for discrete minorities to lose in
political process but should lose for good
reasons NOT because of prejudice or animus
How do you know if/when a
minority or losers in political process
lost?

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Footnote 4 is the response: Help minorities that are discreet and

insular
Discreet: Suggests that it is still identifiable
Insular: Suggests group is internally cohesive and separate
from society; const. may not apply and then the court will
then take a look
Why discreet and insular?
Counterargument: The last groups that need protection are
not discreet and insular minorities?
o Insular: organizing advantage; communal
organization meetings?
o Minorities: might already have your own
protections
o Discreet: really hard to exit; everyone knows who
you are
Cannot assimilate because everyone can tell
Cannot exit either
Only option is to organize
Edge in political process and
motivated to organize because no
other options
o Protections to losers in political process vs.
Protecting more diffused groups?
Are majorities really that dangerous?
Unlike discreet and minorities have their
own built in purpose
3 Exceptions of general presumption of constitutionality:
1) Legislation explicitly prohibited by constitution: law
violated enumerated rights:
o Ex. Law violates 1st am.
2) Legislation that restricts political processes: Laws that
somehow limit ability of particular group of political office
o Ex. Laws preventing group from voting
3) Laws motivated by prejudice against discrete and insular
minorities:
o Ex. Statutes that target religious minorities for
differential treatment
o Theory: Policies political process; steps in when given group is
disadvantaged; and gets what they want
Carolene Products case advances:
1) Rational basis scrutiny; applied to economic liberty
2) Exceptions to General presumption of constitutionality
Next class:
o Economic substantive due process

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Williamson v. Lee Optical

Punitive damages
o Family Autonomy
Right to marry
Loving v. Virginia
Zablocki v. Redhail
Right to custody of Ones Children
Stanly v. Illinois
Michael H

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Goals
o What makes for a good exam?
Whats on the Exam?
Four hours long, 2 parts
Part 1: 2 essays, 3 hours
o In role as a law clerk or attorney
Part 2:20 multiple choice questions, 1 hour
o How would the judge resolve the question, and why.
How do I study for the exam?
Draft your own outline that integrates:
o Casebook
o Class notes
o Commercial outline
o Syllabus
Take practice exams
What does a good exam do?
Show deep understanding of the law and relevant authority
o What do you know about substantial effects? How
has it been applied in case law?
Identified material facts in fact pattern
Analogizes and distinguishes between fact patterns and
relevant case law
Does more than spot the issue
States the rule and applies, also apply the rules to the facts
Show good judgment on what to focus on
Clear topic sentences and headings
Well planned out essay
Present arguments on both sides
o What do poor exams do?
They contain no detailed analysis
They fail to identify or apply relevant case law
They dont answer the questions asked
They dont identify material facts in the fact pattern
They are poorly written
They misstate relevant law
They fail o spot critical issues
o Hat un-enumerated rights are protected under the Due process Clause?
o How should the court define the scope of the right to marry ans the right to
custody of ones children?

Is it a Fundamental Right?
o Is the right deeply rooted in the nations history and tradition?
Yes
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Strict Scrutiny applies

o Is the law necessary to serve a compelling interest?

No

Rational Basis Scrutiny

o Is the law a reasonable way to serve a legitimate state
interest?
Fundamental Rights Analysis
o What is the right at issue?
Level of abstraction: broad vs. narrow
o What are prosper sources of history and tradition?
Where does the court find history and tradition?

Hybrid EP/DP Cases

o Classifications that interfere with an individuals ability to exercise a
fundamental right to get strict scrutiny
Only omen born on Thursdays may obtain abortions

Non-Economic
o The Right to Marry
o The Right to Custody of Ones Children

Simulation: John and Kristen

o Arcadia Criminal Code 321(b) forbids any individual from being married
to more than one person at any given time. John and Jane got married in
Arcadia 10 years ago, and have been engaged in a romantic relationship
with Kristen for the past 7 years. Last month, john and Kristen applies for a
marriage license at the Citys Clerks office and were denied based on
321(b). they recently filed suit in Federal District Court claiming that the
statute violates the 14th Amendments Due Clause. Since weve been
assigned to represent the state on the case, Id like your advice on three
questions:
How will you frame the right at issue?
What level of scrutiny applies?
Rational basis scrutiny applies:
o Reasonably related to a legitimate state interest:
Preserving family structure
Protection of stigmatized children
Economic basis (i.e., Wills)
What are your three strongest arguments that the law satisfies the
constitutional rule?

Williamson v. Lee Optical (pp. 628-629)

o Background:

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Dist. Ct. held unconstitutional under due process clause of 14 th;

sec. 2; Unlawful for any person not a licensed opt. to fit lenses to a
face or to duplicate or replace frames except upon written
prescriptive authority of an Oklahoma licensed opt.
Effect of sec. 2: Forbid optician from fitting or duplicating lenses
without a prescription
No opt. can fit old glasses into new frames without a prescription
Dist. Ct. held that in the competence of the police power of a state
to regulate examination of eyes BUT did not hold that state cold
require a prescription from an optometrist to take old lenses and
place them in new frames
Such requirement was not reasonably and rationally related
to the health and welfare of the people
It is for the legislature, not courts to balance Advantages and
disadvantages of the new requirement
o ARGUMENT:
Legislature might have concluded frequency of occasions when a
prescription is necessary was sufficient to justify this regulation of
the fitting of eyeglasses
When necessary to duplicate a lens, a written prescription may or
may not be necessary.
Leg. Might have concluded that one was needed often
enough to require one in every case
OR: leg might have concluded that eye examinations were
so critical not only for correction of vision but also for
detection of latent ailments
o Every change in frames and every duplication of a
lens should be accompanied by a prescription for a
medical expert.
RE: Unlikely it is that any economic regulation will be fond to
violate due process:
States could legislate against injurious practices in their
internal commercial and business affairs, so long as their
laws do not run afoul of some specific federal
constitutional prohibition or of some valid federal law
o For protection against abuses by legislatures the ppl must resort to the
polls, not to the courts
BMW of North America v. Gore (pp. 630-635)
o Due process clause of 14th am. Prohibits state from imposing a grossly
excessive punishment on a tortfeasor
Wrongdoing: decision by a natl distributor of cars not to advise its
dealers and their customers of a predelivery damage to new cars
when the cost of repair amounted to less than 3% of the cars
suggested retail price

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o ISSUE: whether 2 million dollar punitive damages award to the purchaser

of one of these cars exceeds the constitutional limit?
o FACTS:
Respondent bought BMW sports sedan at $40K from authorized
BMW dealer
9 mos of driving took car to slick finish to make it look snazzier
than normally
independent detailer saw repaint job on the car
o ARGUMENT:
Respondent: failure to disclose that the car had been repainted
constituted suppression of a material fact
BMW: If car repair exceeded 3% of suggested retail, sold
as used
o If did not exceed 3% car sold as new without
informing dealer of repair
$601.37 cost of repaint job = 1.5%, BMW
did not disclose
Respondent: Repainted car was worth less than a car that had not
been refinished
Damages of $4,000, relied on testimony of former BMW
dealer, value of repainted BMW was 10% less than the
value of a new car without repaint/repair
o Punitive damages: Evidence since 1983 BMW sold
983 refinished cars as new, 14 in Alabama, without
disclosing repaint more than $300: actual damage =
$4,000 per car.
o 4 million would provide appropriate penalty for
selling approximately 1,000 cars for more than they
were worth
o Procedural Background:
Jury verdict BMW liable for compensatory damages of $4k; 4mill
in punitive based on determination that nondisclosure policy
constituted gross, oppressive or malicious fraud
Appeal:
Sup. Ct. rejected BMW claim that award exceeded
constitutionally permissible amount
Sup. Ct. favored: Jury improperly computed the amount of
punitive
damages
by
multiplying
Respondents
compensatory damages by the number of similar sales in
other jurisdictions.
o Verdict tainted: Const. reasonable punitive damages
= $2,000,000. = remittitur
o Analysis:

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Punitive damages properly imposed to further states legit interests

in punishing unlawful conduct and deterring repetition
Federal Excessiveness inquiry:
1) Identifcation of the state interests that a punitive award is
designed to serve
o FIRST: The scope of Alabamas legitimate interests
in punishing BMW and deterring future conduct
No uniform matter from states
No single state can enact policy for entire
nation
o One states power to impose burdens on interstate
market for cars subordinates to thefederal power
over IC and constrained by need to repsect itersts of
other states
o Holding: Follows from these principles of state sovereignty and comity
that a state may not impose economic sanctions on violators of its laws
with intent of changing tortfeasors lawful conduct in other state
Alabama cannot alter nationawide policy
Must be supported by states interest in protecting
consumers and economy; they can ask to disclose but
CANNOT impose penalties for lack thereof.
o No sanctions to deter either, when lawful in other
jurisdictions
Three Guideposts that no adequate notice of magnitude of sanction
imposed = grossly excessive:
Degree of reprehensibility of nondisclosure;
o *Most important indicium of reasonableness
o enormity of offense
none of aggravating factors associated,
present
economic harm
presale refinishing of car no effect on its
performance or safety features or even its
appearance
no indifference to or reckless disregard for
health and safety of others
no substantial penalty
no conversion of acts that cause economic
harm into torts that are sufficiently
reprehensible to justify a significant sanction
in addition to compensatory damages
Disparity between the harm or potential harm suffered by
Respondent and his punitive damages award; (Ratio)

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o Whether there is a reasonable relationship between

punitive damages and the harm likely to result from
Ds conduct and the harm that actually occurred
Amount awarded is 500xs amount of actual
harm
No suggestion of threat with any additional
potential harm by non-disclosure policy
Disparity is greater
Award must raise a suspicious judicial
eyebrow
Differences between this remedy and civil penalties
authorized or imposed in comparable cases
o 2mill is substantially greater than statutory fines
avail in Alabama and elsewhere for similar
malfeasance
o Max for Deceptive trade practices act is $2,000 In
Alabama
Other states 5K 10K
None provide out of state distributor with
fair notice that the first violation or even 14,
might = multimillion dollar penalty
No other judicial decision indicating
application of that policy might = that
punishment
Would a lesser remedy achieve the
same goal and adequately protect the
interests of Alabama consumers
DISSENT:
o Unjustified court intervention in state govt
o 14th am. Procedural guarantee assures an oppty to
contest the reasonableness of damages judgment in
state court; no federal guarantee that damages =
reasonable
TEXTUALIST VIEW
o When const. doctrine adopted by court is not only
mistaken but also insusceptible of principled
application not bound for stare decisis
Fairness: re: a punishment to a principle of
substantive due process: every punitive
award
unreasonably
imposed
is
unconstitutional; award is by definitionexcessive, since it attaches a penalty to
conduct undeserving of punishment
If court is correct: must be that every
claim that a states jury award of
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compensatory
damages
is
unreasonable (no evidence) amounts
to an assertion of constitutional
injury
Every dispute re: evidentiary sufficiency in a
state civil suit poses question of const.
moment; subject to a review in this court.
Introduction & Framework (pp. 933-939)
o Little depends on whether Court uses due process or equal protection as
basis for protecting a fundamental right
Under either provision: must decide whether claimed liberty is
sufficiently important to be regarded as fundamental, even though
it is not mentioned in the text of const.
Once determined fundamental, strict scrutiny is used
Due process vs. equal protection (as basis for protecting
fundamental rights is in how constitutional arguments are
phrased.)
If right is protected under equal protection: issue: whether govts
discrimination as to who can exercise the right is justified by
sufficient purpose
Distinction: if a law denies right to some, while allowing it
to others, discrimination can be challenged as offending
equal protection or violation of right can be objected to
under due process
o 9th Am.:
Not source of rights, rights not protected under it.
Used to provide textual justification for the court to protect
non-textual rights (right to privacy)
Justification for the Court to safeguard unenumerated
liberties
o Procedural Due Process:
Existence of right triggers 2 distinct burdens on govt:
Substantive: Justify an infringement by showing that its
action is sufficiently related to an adequate justification
(necessary to achieve compelling purpose
Procedural: If taking away persons life liberty or property,
must provide adequate procedures
o I.E.: Custody of children:
Termination of custody:
Must show necessary to achieve
compelling purpose
Procedural: govt must provide
notice and a hearing before
termination

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o Analyzing Fundamental Rights:

FIRST: Is there a fundamental right?
Originalists: Limited to liberties explicitly stated in text or
clearly intended by framers
Nonorginialsim: Permissible for Court to protect
fundamental righs not enumerated in Const. or intended by
drafters
Moderate Originalism: judiciary should implement the
framers general intent but not necessarily specific views
History/Tradition in deciding what rights not mentioned in
text are fundamental (deeply rooted in nations history and
tradition)
o Question of abstraction at which right is stated
Court role: perfecting processes of govt and only recognize
nontextual rights that concern ensuring adequate representation
and effective operation of political process
SECOND: IS the Constitutional right infringed?
No question if exercise of right is prohibited
o Evaluation:
The directness and substantiality of the
interference
What constitutes infringement?
Under what circumstances is govts
action infringement?
THIRD: Is there a sufficient justification for the govts
infringement of a right?
If Fundamental: must be compelling interest to justify
infringement
o If not fundamental, only a legitimate purpose
required to sustain law
Govt has burden to show truly vital interest served by law
in question
FOURTH: Is the means sufficiently related to purpose?
Law must be necessary to achieve objective
Govt cannt attain goal through any means less restrictive of
the right
o Vs. Rational basis review: means must be
reasonable to achieve goal and govt not required to
use least restrictive alternative
o Court must ask:
What is is impt enough to be a fundamental right
What is intrusive enough to be deemed an invasion
What is significant enough to be regarded as compelling interest

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What is narrowly tailored enough o be regarded as necessary

means?
Loving v. Virginia (pp. 939-940) The Right to Marry
o Right to marry fundamental right protected under due process clauses
Issue: Whether a stattory scheme adopted by state of va to prevent
marraiges between persons solely on basis of racial classifications
violates EPC and DPC of 14th
Holding: Statutes cannot stand consistently with 14th am.
o Background facts:
Marriage, returned to Va., arrested
Circuit court: Indictment; violation of ban
Trial judge suspended sentence 25 yrs; leave state and not return
Filed motion to vacate judgment
Sup. Ct. of Appeals upheld constitutionality of statutes
o Holding: Sup Ct. held Va. Law impressible race discrimination in violation
of EPC of 14th
o Deprive liberty without due process of law in violation of DPC of 14th
o Freedom of choice to marry cannot be restricted by invidious racial
discrimination; not infringed by state.
Zablocki v. Redhail (pp. 940-945): Right to Marry
o Issue: Constitutionality of Wisconsin Statute: 245.10: Members of certain
class may not marry within state or elsewhere without first obtaining a
court order granting permission to marry
o First: What burden of justification the classification created must meet:
Nature of classification and individual interests affected
o Background Facts:
Appellee filed app for marriage license w appellant Z, county clerk
of Milwaukee cty, app denied bc no court order granting
permission to marry required by 245.10
Did not petition state court but didnt satisfy requirements:
Not satisfied the support obligations for illegitimate child
o Arrears
Child being public charge since birth, received benefits
under Aid to Families with Dependent Children program
o Payments meant public charge regardless of no past
due support
o Court analysis:
Critical examination of state interests advanced in support of
class., required
Fundamental right of privacy (marriage)
Right to procreate
Marriage goes hand in hand with procreation
Stat. classification at issue, clearly interferes directly and
substantially with right to marry

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Under challenged statute no Wisconsin resident in affected

class may marry in Wisconsin or elsewhere without court
order; and any in violation of statute are void and
punishable
Here: appellee never able to obtain court order; absolutely
prevented from getting married.
Others able to satisfy (in theory) the statutory requirements
will be sufficiently burdened by having to do so, coerced
into foregoing their right to marry
o Those who can meet, serious intrusion into freedom
of choice
o ARGUMENT:
Appellant asserts state interests:
Permission to marry proceeding furnishes oppty to counsel
applicant as to necessity of fulfilling prior suppt obligations
Welfare of the out of custody children protected
o Court says yes, they are legitimate and substantial
but bc of the means impinge on right to marry,
cannot be sustained.
245.10 protects ability of marriage applicants to meet suppt
obligations to prior children by preventing applicants from
incurring new suppt obligations
FIT:
Underinclusive: Do not limit in any way new financial
commitments by the applicant other than those arising out
of the contemplated marriage
Overinclusive: Possibility that the new spouse will actually
better applicants financial situation, by contributing
income from a job or otherwise
o Statute may prevent affected individuals from
improving their ability to satisfy their prior support
obligations
o HOLDING: statutory classifications created by statute cannot be justified
by interests advanced in support of it.
Concurring opinion:
o Disagrees that there is a right to marry in constitutional sense
Privilege
States can prohibit right to marry
o Issue: whether state interests that suppt abridgement can overcome
substantive protections of const.
o State law irrational means of achieving objectives of state
Dissenting opinion:
o Rejects that marriage is fundamental right which must invariably trigger
strict scrutiny

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o Only rational basis test applies

o State has power to exercise regulation of family life and assure support of
minor children
Simulation: John & Kristen (Blackboard)
Stanley v. Illinois (pp. 946-948)
o Facts:
JS lived with PS for 18 years, 3 children
JS died, PS lost children
o Statute: Illinoi: children of unwed fathers become wards of state upon
mothers death
o Background:
PS Argument: Never been shown to be unfit parent and since
married fathers and unwed mothers not deprived, he was deprived
of equal protection of laws of 14th am.
Sup. Ct. accepted that no showing of unfitness;
Rejected equal protection claim: since not married
PS interest in retaining custody is cognizable and substantial
o State registers no gain toward declared goals separating children from fit
parents
State: Most unmarried fathers are unsuitable and neglectful parents
FIT: Overinclusive: All unmarried fathers are not in this
category as unfit parents
Michael H. v. Gerald D. (948-954)
o Statute: A child born to married woman living w husband, child of the
marriage
Issue: presumption infringes upon due process rights of a man who
wishes to est paternity of child born to wife of another man;
infringes upon const. right of child to maintain relationship with
natural father
o Facts:
Intl model, and French oil exec, married, live in Playa del Rey
Cali
Adultery with neighbor, and had child
Husband listed as father
Wife informed bf that he might be father
o ARGUMENT:
Michale:
Seeking declaratory being father of victoria
Immediate benefit: visitation rights
o If determined to be the father: more rights, right to
be custodial parent, and decision making
1: Substantive due process, established a parental
relationship w V; marital union is insufficient state interest
to protect
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o Const. protected liberty interest in relationship w V

o Court analysis:
Liberty in DPC extends beyond freedom from physical restraint
IN ADDITION: interest must be traditionally protected by society
Legal issue: whether the relationship between persons in the
situation of M and V has been treated as a protected family unit
under historic practices of society; or whether on any other basis it
has been accorded special protection
Court says NO. quite the opposite, protects marital family

CLASS TWENTY-FOUR: NOVEMBER 18, 2014

If necessary to meet with professor prior to exam, need to set up apt prior to week
of exams, but can meet prior to week of exams
*available by e-mail
Re Exam:
o No const. text provided during exam
o Level of knowledge re: bad caselaw?
I.e.:
Lochner is bad law (KNOW THIS)
Michael H. v. Gerald D:
o Carole and Gerald married:
Victoria (daughter) father, wanted to see Victoria
But cali has irrefutable presumption that married couple are
biological parents of child of marriage
Argument:
Michael: Fundamental right to be with biological child
See eg. Stanley
Narrowly: Adulterous relationship, product of adulterous
affair
Court says:
Scalia:
o Do states traditionally award rights to unmarried
fathers when mother is married to someone else?
NO.
Presumption of paternity goes to husband
Tries to frame rule
o Refer to specific level relevant protection denying
asserted right to be identified
o Tension between this case and Stanley
Stanley:
Court cares a lot about biological relationship between
father and child

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Whereas Michael H: Do not CARE

Right to marry + Right to Custody over children + Right to Keep family together
Simulation: Jules and Jim:
Belle Terre: Not related by blood adoption or marriage
o Upheld
May have some limits to
Moore v. City of East Cleaveland:
Facts:
o Outside of scope of limited definition of family east cleaveland
Argument:
o East cleaveland:
Overcrowding, minimizing traffic and parking and avoiding undue
financial burdens on school
Limits number of ppl in household, and therefore wouldnt
have those kinds of issue
Moore:
Tradition of aunts uncles and living together
o Freedom of choice may be entitled to protection
East cleaveland: decides to define themselves as upwardly mobile community
o Did not want to identify community as ghetto
Village of Belle Terre v. Boraas:
o Zoning ordinance limits land use to single family dwellings
Family = blood, adoption or marriage
o Restriction challenged by a group of unrelated college students that want
to live together
o Court upholds the statute limiting scope of the right to keep a family
together
Pierce v. Society Sisters:
o Oregon cannot require that all students attend public school
Setting up force field around state regulation of particular decision
making
Simulation: Visitation Battle
o How do you think Jane and State each describe holding in Troxel
o How should judge decide
Might allow some sort of balance
Closely related to Due process clause
o Moore v. City of East Cleaveland
Narrow vs. Broad way of constructing case
Troxel v. Granville:
o Facts:
Grandparent lobby is strong
o Minimalism:

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Technique that Court has in some ways to address cases that dont
necessarily fall into this trap
o Takeaways:
Focus on family as defined by blood, adoption or marriage (moore,
belle terre)
Focus on parents right to control certain aspects of a childs
upbringing (meyer peirce troxel)
Braod and narrow constructions of the troxel holding
Buck v. Bell:
o Movement for compulsory sterilization began recently
o By 1930s 30+ states passed laws for ppl insane or idiotic
Skinner v. Oklahoma:
o Oklahomas Habitual Criminal Sterilization Act:
Habitual criminal as a person who having been convicted of two or
more times for crimes, amounting to felonies involving moral
turpitude, either in Ok or in a court of another state, is thereafter
convicted of OK felony and sentenced to a term of imprisonment
o Similarly situated ppl, one for larceny and one for embezzlement, one gets
sterilized, and one doesnt
Griswold v. Ct.:
o *Significant: brings substantive due process to light
o Statute at issue:
Any person who uses any drug medicinal article or instrument for
purpose of preventing conception
o State interest:
Prevent extramarital relations
Procreate
Moral disapproval
o Appellant argues:
Decisions re: health
Right to privacy
Right to make important decisions re: procreation
Decisions are made in home, bubble around your home
o Combination of rights:
1st am., 3rd, 4th, 9th, 14th
o Fit argument:
Overinclusive & Underinclusive
Less restrictive alternatives: seeks to achieve its goals by means
having max destructive impact upon relationship
Criminalize adultery
o Majority Opinion: (Douglas)
List of different rights
1st, 3rd, 4th, 5th, 6th, 9th, 14th

4pm Tues/Thurs

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o all covering right to priacy

out of these rights come penumbras
out of penumbras come emanations
o out of emanations comes
right to privacy
o not resurrecting substantive
due process, infers larger
values from enumerated
rights within constitution
o Lochnerizing?
o Robert Bork on Griswold:
An unprincipled decision:
Both in the way in which it derives a new constitutional
right and in the way it defines that right or rather fails to
define it
We are left with no idea of the sweep of the right to privacy
and hence no notion of the cases to which it may or may
not be applied in the future
o Justice Goldbergs Concurring opinion:
Doesnt buy Douglas opinion
Grounds it solidly around 9th am.
o The enumeration in the constitution of certain
rights, shall not be construed to deny or disparage
others retained by the people
o Look to traditions and collective conscience of our
ppl
th
9 am not viewed as source of individual rights
o Court has never relied on 9th am. As a textual source
for unenumerated right
o Justice Harlan II
Concurring: Finds right in 14th am. Due process clause
Right is implicit in the concept of ordered liberty
o Justice White (Concurring)
Flunks rational basis scrutiny
o Justice Black (dissent)
No machinery with which to take a gallup poll, and scientific
miracles of this age have not yet produced a gadget which the
Court can use to determine what traditions are rooted in the
collective conscience of our people
o Right to marital privacy, re: use of contraceptives to married couples
Embrace substantive due process, embedding all of this in 14th am.
o What happens after Griswold?
Eisenstadt v. Baird:

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Extends Griswold to potect contraception distribution to

unmarried people
o If right to privacy means anything it is right of
individual, married or single to be free form
unwarranted govt al intrusion into matters so
fundamentally affecting a person as the decision
whether or not to bear or beget a child
Carey v. Population Services:
Extends Grisolwold to contraceptive use by everyone

Next Class
o Abortion
Roe v. Wade
Planned Parenthood v Casey**
Gonzales v. Carhart

CLASS TWENTY-FIVE: NOVEMBER 20, 2014

Last Class:
o Right to keep fam together
Moore
Belle
o Parental rights to control childrens upbringing
Troxel
o Right to Contraception
Griswold
Following Griswold:
o Extends to unmarried people
o Then Carey: Right to contraceptive use
Prior to Roe v. Wade: [TIMELINE]
o Substantive DP Cases Leading to Roe:
Skinner: Right to procreate (infringed when state forces you
Griswold: Right to contraception
o Loving: Right to Marry
Stanley: Right to custody over ones
children
Why is this hard to talk about:
o Interdisciplinary
o Strong political convictions
o Personal experience
Roe v. Wade:
o Historical Context:
As of 1960 all 50 states and district of Columbia outlaw abortions
Shift in early 1970s

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o Public opinion
o Doctrine
o Legal reform
At time of Roe, many states started liberalizing, or making
exceptions re: life of mother
Ongoing reform process
o Question: is it appropriate for Court to step in and
shut down?
o Statute at issue:
Art. 1196 of Texas penal code
Prohibits abortions except for the purpose of saving the life
of the mother
o What are state interests?
Decreases extramarital affairs or unmarried
people having sex
Protect women: abortion procedure presents
a risk to health of women
Concern of unsafe procedure
Protects life of fetus
o If you represent Jane Roe, how would you describe
your clients liberty interest in this case?
Theory 1: Right to bodily integrity
Look at skinner: Invasion of body
(right to protect themselves from
unwanted sterilization)
Ability to make decisions about your
family Griswold
Troxel: Right to Care Custody and
Control of children
o Blackmun overturns
In constitution locates 14th Am. Substantive Due Process:
(Similar to Lochner) Right to privacy
o Legal Standard: Strict scrutiny
Pg. 483: Where certain fundamental rights
are involved court has held that regulation
limiting these rights may be justified only by
a compelling state interest, and that
legislative enactments must be narrowly
drawn to express only the legit state interests
at stake
Simulation:
o Not a fundamental Right
No basis in text (unenumerated)
Not deeply rooted in History
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****At the time that 14th am. Was passed, states regulated
abortion, not trying to protect this right for a woman to be
able to have an abortion (states regulation of abortion)
o State has a compelling interest to protect safety of woman and fetus
14th Am. Due process clause; nor shall any state deprive any person
of life, liberty, or property, without due process of law
Implications:
o ALL abortions caused by rape, incest, medical
issues, are still illegal
Roes Trimester Framework: NOT GOOD LAW
o Compelling state interests: life of mother and life of fetus
When does life begin?
First trimester: Neither state interest is compelling, so state
cannot regulate
Second Trimester: State interest in maternal health becomes
compelling as abortions become riskier
o State can regulate in ways that are reasonably
related to the protection of maternal health
Third Trimester: Point of violability, riskier, and fully
developed, STATE CAN PROHIBIT ABORTIONS
o As abortions became safer, states interest in
protecting maternal life began to move later in
pregnancy
But, viability occurs earlier, since science
can maintain life of fetus earlier in
trimesters
Planned Parenthood v. Casey: THIS IS GOOD LAW
o Change in personnel
o Asks overturn Roe v. Wade
o Statute at issue:
PA Passes abortion law that doesnt flatly prohibit it but chip away
access to abortions
24 hour waiting period prior to abortion
Doctor needs to provide information
Minors getting abortion: must get parental consent
o BUT can get judicial bypass if cannot get parents to
consent
Spousal notification:
o Must notify spouse with judicial bypass
Reporting requirements
o Weird aspects of this case:
Joint opinion: OConnor, Kennedy, Souter all appointed by
Republican presidents

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Souter convinced Kennedy to write opinion (who was

about to vote democratic)
o Want to preserve judiciary
Liberty finds no refuge in a jurisprudence of doubt
Stability in law
Criteria for overruling past precedent
If it is unworkable
Reliability
Change in facts
o Facts earlier
Change in Doctrine
Stare Decisis comes from common law:
Simulation: Constitutionality of four restrictions:
o Prohibition on all abortions after 12th week of pregnancy when first fetal
heartbeat is detected: Unconstitutional
o Prohibitions on all abortions post viability: provided it does not pose a
health risk: Unconstitutional
o Requirement that all doctors provide women seeking abortions with
counseling.constitutional (pg 993)
o Requirement that all women seeking abortions view an ultrasound
constitutional (?) Pg 994
Basics of casey rule:
o Viability:
State may not prohibit previability abortions
State can restrict post viability abortions except where necessary
for the preservation of her health
o Undue burden:
Legitimate interests in maternal health and fetal life from outset of
pregnancy
o Casey and Undue Burden:
Unless it has the effect on her right of choice a state measure to
persuade her to choose childbirth over abortion will be upheld
o Dissent:
Rehnquist in casey
Unlike marriage, procreation and contraception, abortion
involves the purposeful termination of a potential life. The
abortion decision must therefore be recognized as a sui
generis, different in kind from the others that the court has
protected under the rubric of personal or family privacy and
autonomy
Scalia:
States may if they wish permit abortion on demand but the
constitution does not require them to do so.

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The permissibility of abortion and the limits upon it are to

be resoled like most situations: vote of citizens
o Application of Undue Burden:
Waiting period:
24 hours not undue burden
Informed Consent
States may provide women with truthful, nonmisleading
information about nature of the abortion procedure, the
attendant health risksand probable gestational age of
fetus
Fetal viability tests
Spousal notification and consent even with judicial bypass
Both are unconstitutional
Parental notice and consent
Court says constitutional, provided law provides minor
with judicial bypass
Abortion funding:
Govt is not constitutionally required to subsidize abortions
Pre-Gonzales v. Carhart ** Most important Post-Casey Decision
o Provides a particular type of procedure *D&E
o Decided in 2007
Context:
2000 sup. Ct. in Stenberg v. Carhart: overturns Nebraska
partial birth abortion law
o 2 probs:
Law lacked exception for health of mother
Definition of procedure for Statute of Ne.
was broad enough to encompass another
Statute (D&E)
Scalia in dissent:
What I consider to be an undue burden is different from
what the majority considers to be an undue burden a
conclusion that cannot be demonstrated true or false by
actual inquiry or legal reasoning
Congress responds:
Pass a federal law: partial abortion act 2003: Congressional
response to Stenberg
o Different from the law: national
Congress acts NOT Nebraska state
legislature
Contains factual findings about why
the law is needed (Congress does this
better than state leg.)

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Does not contain a health exception

o Exception for LIFE but not
HEALTH
Congressional factual findings:
o Include in Congressional and federal law, partial
birth abortions are never necessary to preserve
mothers health
o There is a moral medical and ethical consensus that
intact D&E is never medically necessary
o Sen. Santorum: We are here because sup. Ct.
defended the indefensiblewe have responded to
the sup. Ct. I hope the justices read this record
because I am talking to youthere is no reason for
a health exception
CLASS TWENTY-SIX: NOVEMBER 25, 2014

Last class:
o Abortion:
Roe v. Wade
Planned Parenthood v. Casey
Gonzales v. Carhart:
*forbid a particular kind of abortion
Contained no health exception
o Requirements: Post-viability abortion must allow
exception that allows for protection of mothers
health
o State interests: respecting dignity of human life
o Act doesnt contain health exception but court
upholds law
Lack of medical consensus re: safety of
procedure
Access to the method is available f you go to
court and challenge as applied method
Court gives weight re: moral disapproval of procedure
Talks about states legit interests not fundamental rights
Cruzan:
Missouri state law that requires clear and convincing evidence of the
incompetent persons wishes
o What are state interest?
o What constitutional right or liberty interest is infringed?
Facts:
o Parents want to terminate hospital preservation
o Hospital says no
o Statement made to roommate stating wouldnt want to live as a vegetable
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Suggestive but not clear and convincing

State interest:
o Heightened evidentiary standard to protect interest in protect/preserving
life
State of Missouri asserting life as morally fundamental
o Protects against incompetent family members with another motive
Cruzan argument:
o Right to refuse medical treatment
Arguments surrounding:
Right to refuse unwanted medical treatment : Right to
bodily integrity (Casey)
Right to contraception
Right to equal protection
Deference given to biological parent to make decision for
their child (Troxel)
o Court upholds Missouri rule
Clear and convincing evidence standard
Court does not say standard required by constitution
o Balancing test:
Whether a respondents constitutional rights have been violated
must be determined by balancing his liberty interests against the
relevant state interests
o Liberty interest: competent interest in refusing life preserving treatment
Bodily integrity is an interest needed to be preserved
Court looks at bodily touching battery
o Scalia: Federal courts have no interest
Court should stay out of when state wants to take measures
Takeaways:
o Leaves level of scrutiny unresolved
Liberty interest in being for a competent person to withdraw life
sustaining treatment but not clear what level of scrutiny applies
o Higher standards than clear and convincing?
o Decisions by designated health care proxy?
Outcome:
o State attorney general did not contest petition
Withdrew treatment and died
Unresolved question of right to seek assistance in accelerating
death
Prohibits causing or aiding suicide
Doctors can withdraw life sustaining treatment
Glucksberg:
State interest advanced by Washington law prohibits causing or aiding a suicide
o Facial challenge (which is hard to win)

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Preservation of human life (Cruzan)

Shielding people that are terminally ill hindered to make decisions based on their
life
Concern re: involuntary right to life through euthanasia
Right to make choices re: healthcare
o Fundamental choices
State: Right to assisted suicide
o The due process clause specifically protects those fundamental rights and
liberties which are objectively deeply rooted in this nations history and
traditional implicit in the concept of ordered liberty
o We have required in substantive due process a careful description of the
asserted fundamental liberty interest
Not about assisted suicide but that the Court is narrowly defining
protected liberty in most limited fundamental way
Right to physician assisted suicide doesnt exist
Right to order medical treatment withdrawn vs. one providing drugs to aid in
death
Bodily integrity argument: my body my choice
Court says if state wants to criminalize, not hitting on any force fields
Wrinkle in Glucksberg opinion:
o Suggestion of viable const. claim
Leaves room for as applied challenged (re: those who are in
incredible amounts of pain)
o takeaways:
no absolute right to physician assisted suicide
states are free to pass laws allowing physician assisted suicide
competent individuals have assumed liberty interest in ordering
withdrawal of life saving treatment (Cruzan)
Bowers v. Hardwick:
Changes since Bowers
o Gradual reform of state sodomy laws
o Changes in court personnel
o Changes in society
Simulation:
o After Lawrence: use it to define right or liberty interest involved
Right to self actualization
o Legal test Lawrence requires court to apply
Rational basis
No deep rooted history
Other alternatives that dont involve the use here
o Look at nations history and tradition
o And look at narrow interpretation
However, re: history:

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Lawrence: History and tradition are the starting point but

not in all cases the ending point

Glucksberg approach
o HISTORY

VS.

LAWRENCE:
o History is starting point, but not an ending point but it is not always
standard
Lawrence v. Texas:
Texas statute criminalizing only sex sodomy
o (Different than bowers)
State interests:
o Moral disapproval
o Limiting transmission of sexually transmitted diseases
Problem:
o Kennedy is unclear in what right is being protected
Kennedy: on history
o History and tradition are the starting point but not in all cases the ending
point of the substantive due process inquiry
Simulation:
o Re: Same sex marriage prohibition:
Lawrence is about location
Not about bedroomapplicability??
o Acts involved in Lawrenceconnected to statute?
o Rights stemming from conception and sodomy, distilled as cultural and
traditional in constitution
o Rational basis with bite:
Kennedys historical analysis:
o Last 50 years matter, all sorts of regulated behavior
o European Court to help define what liberty means
Legitimacy of legal authority
CLASS TWENTY-SEVEN: DECEMBER 2, 2014

Questions about Lawrence:

o What level of scrutiny if any, did the Court use?
o Not clear what the nature of liberty interest or fundamental right was?
o What does Lawrence say about legitimacy of states interest in preserving
or protecting morality?
o What does Lawrence do to history and tradition inquiry?
Background on Windsor:
o EPC case, also could be DPC or EPC?

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Theme: Federalism
One of 2 same sex marriage cases decided in 2013; decade long legal
strategy to challenge laws
Initial strategy was to challenge based on violations of state constitutions
Federal claim could end up in sup. Ct., and be a loser
Cultural, legal and doctrinal evolution;
Bans violated state constitutions, but legislatures began to amend
on their own
Romer and Lawrence didnt exist; doctrinal infrastructure
needed to begin making arguments for viable const.
challenge for prohibition on same sex marriage
Hollingsworth v. Perry
Challenge to calis ban on same sex marriage
Court held appeal nonjusticiable bc didnt have standing
Decided Windsor on merits.
Deals with Sect. 3 of defense of marriage act: defines marriage under
federal law as a legal union between one man and one woman
States can recognize, but not federal
Married in Canada, recognized in state, but not legally recognized under
sect. 3 under DOMA, but now has to pay $$$ on estate taxes that she
would have not had to pay
STATE interests:
Uniformity
Moral Disapproval/Moral Approval of opposite sex marriage
Economic interests
Windsor Argument:
EPC claim based on sexual orientation
Stigmatizes for the purpose of suggesting strict scrutiny
Animus is not a legitimate state interest
Sex discrimination claim: (automatically be heightened to
intermediate scrutiny)
Reframe most equal protection claims as substantive due process
claim: Right to marry is a fundamental right regardless of sex
Loving
Can congress do this?
Art. 1
10th Am. (truism and arguments are losers)
Commerce Clause
Holding:
Found section invalid;
Federalism decision: Court is placing a limit on federal power;
Case is about moral disapproval? Not federalism; not going to be a
sufficient state interest

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Statute is invalid for no legitimate purpose overcomes purpose and

effect
Careful consideration

Simulation:
o Windsor supports; State of Arcadia has right to define marriage
Affirmative Rights: US const. has been determined that you are not afforded ANY
affirmative rights (positive rights)
o Not recognized under federal constitution
Right to housing
Right to food
Right to shelter
San Antonio:
o Texas school financing scheme
Based on local property taxes
Constitutional Bases:
o EPC claim
Law discriminates based on wealth
Fundamental right (substantive due process)
o Texas Argument:
Not explicitly stated in const.
Not deeply rooted in history
Court:
o If they recognize one affirmative right, will
recognize more affirmative rights
Holding: Property rights does not violate DP rights
o Institutional competence concerns
o If viable claim, litigation will continue re:
independent financing scheme
o Normative:
Need right to education to enhance other rights like right to vote
Takeaways:
o No fundamental right to education under Due process clause
o Wealth classifications are going to be subject to rational scrutiny
Procedural Due Process:
Liberty Rights, whether State is justified in infringing that liberty
What process it has to give you if it wants to take away your property
Theory 1 of Due Process:
o Belief that purpose of due process is to make them feel okay Dignitary
Theory (not taken seriously) (Normative)
o Utilitarian Theory: Make sure got it right; receiving the right outcome
(normative)
Use of an impartial decision maker
Transparency

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Explanation of decision
Procedural Due Process Overview:
o FIRST: has the govt deprived a person of a life, liberty, or property under
Due Process Clause?
Pre late 60s: Question is common law
Property deprivation and procedural due process kicked in
o But there was no disability, property, social security,
etc. benefits
Nothing that would be called property in
modern administrative state
The new property in Goldberg v. Kelly (Court abandons but
only after termination, claim that they have a property that was
been taken away) rejects common law argument, deprivation of
property sufficient to trigger procedural due process guarantees
IF YES: SECOND: What process is Due?
o What does the Govt have to give you in terms of
process
Goldberg v. Kelly:
Hearing must be at a meaningful
time in a meaningful manner
o Timely and adequate notice
(detailing reasons for a
proposed termination)
o AND effective oppty to
defend by confronting any
adverse witnesses and by
presenting his own
documents and evidence
orally
After Goldberg:
o What other procedures are
you given before taking away
property benefits
o What is actually considered
to be a deprivation
**Deprivation of govt benefit (being withdrawn)
modern admin. State generated benefits: welfare, drivers
license; but then takes them away
Board of Regents v. Roth:
o Wisconsin State University decides not to rehire Roth after his one year
contract ends
Is there a deprivation of life, liberty, or property?
If so, what process is due?

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o Test: To have a property interest in a benefit, a

person must have a legitimate claim of entitlement
to it:
Do law and customs surrounding benefit
show that recipient had a reasonable
expectation of continued receipt of the
benefit?
o SECOND QUESTION: What process is due?
Goldberg/Roth: Deprivation of Life, liberty property
Matthews: Deprivation of process
Eldridges disability benefits are terminated without a full
evidentiary hearing prior to termination
o Wants better process (What Goldberg had)
o Deprivation of welfare benefits was provided by
Court already, now disability benefits??
3 factor test:
FIRST: Private interest affected by
official action (how much suffering
if taken away)
SECOND: Risk of an erroneous
deprivation (Risk of govt not
getting it right)
THIRD: Governments interest
including function involved and
fiscal and administrative burdens
(How much it is going to cost)
o Eldridge: Three factors applied:
How does process for appealing withdrawal of disability benefits
differ from process for appealing withdrawal of benefits?
Private interest affected by action
o Deprived of benefits until he gets hearing
Could also apply for welfare (reliance on
other benefits)
Risk of erroneous deprivation
o Disability: neutral doctor afforded
More complicated, risk will be greater here
Govt interest
o Hearings are expensive
Dignitary concerns?
NOTE: Matthews v. Eldridge test kicks in when Procedural due process is in
question
For Thursdays Class: Section 5 of 14th Am.

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o Reconstruction am.s adopted after civil war

o Unique structure
o Substantive provisions: No state shall(Restrictions on what states can
do)
Each of reconstruction am give new power to enforce substantive
provisions of am. Against states
How much power given to congress
o 1) WHO can congress regulate?
o 2) HOW BROAD is congress power to enforce?
Substantive provisions of 14th am. Only
applies to states
When congress wants to use sect. 5?
o Only regulate state actors but
use its other enumerated
powers
o 3) WHAT is Congress allowed to DO?
How far can it regulate what states can and
cannot do?
Ex. Congress used sect. 5 power to
pass a law preventing states from
discriminating against methadone
users:
o Is congress still enforcing
substantive provisions of 14th
am?
o 14th am. Is not designed to
cover Meth users, Sect. 5 to
protect meth users, its not
enforcing, its reinterpreting?
Maybe stepping on
sup. Ct. territory
Congruence and Proportionality Standard:
(City of Boerne): Congress must identify a history and
pattern of unconstitutional discrimination
Remedial scheme must be congruent and proportional to
the documented discrimination
o What is the substantive constitutional violation
congress is trying to remedy
o Has congress identified a history and pattern of
unconst. Violations by states?
Congress can provide federal remedy
th
11 am.:
o Prohibits individuals from suing states for $ damages of violations of fed
law unless congress abrogate state immunity

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ONLY when it is passing leg. Under sect. 5

Ex. Americans with disabilities act:
o Public concern re: people being fired for
disability
State sov. Immunity; only way to get $$ by
state of al., must show Congress passed
ADA under sect. 5
State violation of federal law
o Individual sues state for
money damages in fed court
for violation
State claims 11th am.
Immunity from claims
Sect. 5:
Can congress pass fed
law under section 5
power?
IF YES valid
abrogation and suit
moves forward
IF NO: then state is
immune and suit is
dismissed

CLASS TWENTY-EIGHT: DECEMBER 4, 2014

Goals:
What is the scope of Congress power to pass legislation under Section 5 of the
14th Am.
What does the Congress need to do in order to satisfy the congruence and
proportionality requirement imposed in City of Boerne?
Last Class:
Substantive Due Process
o Windsor (Same Sex marriage)
o Rodriguez (right to education)
Procedural Due Process
o Goldberg, Roth (deprivation)
o Matthews (process)
Section 5 of the 14th am. (Congressional Power)
o Things that congress can use as a basis for action
Section 5 Questions:
o WHO can congress regulate under its section 5 power?

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Civil right cases

United States v. Morrison
o What is the scope of congress power to ENFORCE the substantive
provisions of the 14th am. Under section 5
City of Boerne
Garrett
Hibbs
US v. Morrison:
o VAWA gives victims of gender based violence of cause of action
o Idea:
Counteract failure of state authorities to do anything about gender
motivated violence
Congress:
In the alternative, can pass this law under 14th am.
Congress does not have the power under VAWA
Section 1 of 14th am. Specifically references the actions of
States
o NO STATE shall deprive.
Problem: VAWA doesnt involve action of state; a victim of gender
motivated violence suing another perpetrator for gender motivated
violence
If congress wants to regulate one person, cannot regulate them
under section 5
STATE actors
o Slam civil rights cases on the table
If congress wants to regulate private action, some other
enumerated power
Section 5: Remedial Power
o Setting up federal laws that provide remedies allowing constitutional
actions
Simulation:
o Invokes its section 5 power to pass a law making it illegal for state
employers to discriminate against job applicants because of current or past
methadone use
o Separation of powers?
o Federalism concerns
o Easier for national standard
TEST:
o Congruence and Proportionality:
In order to determine whether in the scope of congress section 5
power; (GARRETT)
FIRST: What is the substantive constitutional violation
congress is trying to remedy?

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SECOND: Has congress identified a history and pattern of

unconstitutional violations by states?
o Look at what evidence congress has provided in
Garrett to show history
How bad is the history and pattern?
THIRD: Is the remedy congruent and proportional to the
documented discrimination?
o What kind of remedy congress has provided

Section 5 Overview:
o Congress has better leeway WHEN THE COURT APPLIES
HEIGHTENED SCRUTINY to the constitutional violation (Hibbs)
o Congress has less leeway, WHEN THE COURT APPLIES RATIONAL
BASIS SCRUTINY to the constitutional violation (Garrett)
City of Boerne: 1997
o Congress response to Smith
Congress uses Section 5 authority to pass RFRA
RFRA requires that substantially burden the exercise of religion
through generally applicable laws must show COMPELLING state
interest and that the means used are the least restrictive
o RFRA: Legislative Findings:
Congress found that framers of const. recognizing free exercise of
religion as an unalienable right, secured its protection in first
amendment
o Statutory claim
o Passed by congress under section 5
o Strict scrutiny
o Background:
Boernes historic preservation law prevents church from expanding
Church invokes RFRA
City of boerne argues that RFRA is beyond the scope of Congress
section 5 powers
o Congress is interpreting not enforcing
o Court says: RFRA not constitutional
Not enforcing a right, it is changing the meaning of that is
o Looked at Legislative History:
First drafted a draft way too much power but nixed that
Then a more specific document with limited power
If congress is able by ordinary legislation to interpret its
constitional power, it means that the constitution wont be
surpreme
Tiny little bit of evidence, that states are running around
passing laws motivating religious bigotry
Breadth of law is so sweeping; RFRA is applicable to
challenge virtually any of these laws
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o Congruence and Proprotionality in City of Boerne

Genearlly applicable laws that vilate the free exercise clause under
Smith
Laws covered by RFRA

11th am: Prevents states from being sued in federal court by citizens of their own
state or other states for money damages unless
o Congress abrogates 11th am immunity
o Congressional abrogation ONLY under section 5 of the 14th am.
Signals that you have an 11th amendment issue:
o Citizen suing a state
o In federal Court
o For money damages
o For state violation of a federal law
Board of Trustees v. Garrett:
o Title 1 of the Americans with Disabilities Act (ADA) prevents state
employers from discriminating based on disability and requires state to
make reasonable accommodations
o Congress abrogates the 11th amendment: state employees can sue state
employers for money damages in federal court if state violates the ADA
Congress
could not have abrogated it;
because
they could not have passed it
under
section 5 of 14th am.
Court
holds: congress went beyond
section 5
immunity when it abrogated 11th
am.
o STEPS COURT
USED:
FIRST: Substantive Constitutional Violation Congress is trying to
remedy?
To prevent disability discrimination
SECOND: History of pattern of state constitutional violations?
43,000,000 people with disabilities;
4.3 mil people are employed by state employers of ppl with
discrimination
o Specific discrimination by state employers
Court applies City v. Boerne Test: Congruence and Proportionality:
Finds ADA is not congruent in the proportionality
o Evidence is not enough
Dissent says that Congress evidence was
dismissed based on legislative findings
Should the court be more deferential when congress issues
these findings
o Courts rejection of Congress homework
Nevada Dept of Human Resources v. Hibbs:
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4pm Tues/Thurs

o Congress abrogates 11th am. And allows state employees to sue their
employers for money damages in federal court for family and medical
leave act violations
o Substantive Constitutional Rights at issue?
Gender discrimination reinforced stereotypes of men and women
Violations by private employers
Some evidence that states are applying policies in different ways
Evidence of general discrimination in the area
Holding: Court says it is congruent and proportional (vs. Garrett)
o Maybe range of conduct could fall in target
o Remedy is limited in scope
Doesnt apply to employees of higher ranking positions
Advanced notice
With evidence of their leave
o Certification of medical professionals
12 weeks was of limited grounds
o Outer circle is a little bit smaller
o Nature of injury and then looking at scope of remedy
Congress validly abrogated state sovereignty and allows suit to go
forward
Distinguishes garrett bc underlying nature of const. is different
If constitution is trying to remedy; courts going to be different than
findings; give deference
Court would be more deferential to congressional findings to the
legislative history of that sort of violations by states
o Simulation Penda:
When providing an answer you give your answer: I.e. Congress is
likely to have exceeded their scope of section 5 power
Then apply 3 part congruent and proportionality (Boerne)
test provided in Garrett
o First state the substantive constitutional right at
issue?
Second state/identify a history and pattern of
Constitutional violations
Third: Is the remedial scheme
congruent and proportional to the
documented violation?

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