OUTLINE

Judicial Review – What is the jurisdiction of the Supreme Court?

• Marbury v. Madison (1803)
o Doctrine of judicial review
o Article III of the Constitution never expressly grants the federal courts the power to
review the constitutionality of federal or state laws
 Marshall used his decision to assert the Supreme Court’s role as an equal player
in the separation of powers and claim the power to review federal statutes and
executive actions
• Marbury didn’t consider state statutes
o “It is emphatically the province and duty of the judicial department to say what the law
is”
o Take Away: 1) Establishes the Supreme Court’s power to consider the constitutionality
of federal laws 2) the Court promises not to interfere in the discretionary duties of the
executive
• Ex Parte McCardle (1868)
o McCardle is a newspaper man who is taken into custody for criticizing Reconstruction
efforts in the South
o SC used to have review for writs of habeas corpus, Congress repeals the part of the
statute that authorized SC appellate review of writs of habeas corpus.
o Supreme Court upholds limitation of jurisdiction, saying there is no jurisdiction because
Congress took away its appellate power
o “We are not at liberty to inquire into the motives of the legislature. We can only examine
in to its power under the Constitution; and the power to make exceptions to the appellate
jurisdiction of this court is given by express words”
 Nevertheless, Congress ability to limit the SC’s appellate jurisdiction is not
unlimited and the SC (as in Marbury) has declared attempts at limiting its
appellate power unconstitutional
• US v. Klein (1872)
o People with presidential pardons after Civil War are entitled to their property
o Although Congress has the right to limit Court’s jurisdiction, it cannot do so in a way that
would direct the results in particular cases
 SC holds the statute limiting its power unconstitutional
 Decision here goes counter to that in McCardle … McCardle is considered by
some to be an aberration
• It is one of the only cases that SC genuflected to Congress when it tried
to limit its appellate power
• Bush v. Gore (2000)
o SC holds that the question of counting votes can be an issue under its jurisdiction because
of the Equal Protection Clause – recount process different, no uniform standards =
violation of EPC
 Opponents argued political question – not justiciable
o Strikes of Marbury … It is the job of the SC to say what the law is
o Importance: 1) Not much… “our consideration is limited to the present circumstances”
2) A weak rule would be that there are some equal protection limits in how much
variation is tolerable in the standards for determining whether a ballot is a legal vote
• Martin v. Hunter’s Lessee (1816)
o Establishes the SC’s authority to review state court decisions where there is federal
constitutional question – such as supremacy of a treaty -- involved
o Court of Appeals of VA states that US SC doesn’t have authority to review state court
decisions
o SC doesn’t try to flex muscle, but simply tells VA are incorrect without any threats
 o Justice Story Argument: 1) Constitution presumed that SC could review state court
decisions… Con. creates SC, allows Congress to create lower fed. courts, if Congress
doesn’t do that, then SC would only be allowed to hear cases within its original
jurisdiction unless it can review state rulings 2) state prejudices and state jealousies
would obstruct administration of justice 3) SC review is necessary to uniformity in
interpretation of fed. law
• Michigan v. Long (1983)
o Appeal from a conviction of marijuana possession involving appeal of individual rights
under the Constitution
o Issue: Does SC have “adequate and independent” state ground for its review?
o To the extent that state court says clearly and unequivocally they are deciding case on
basis of state constitution, and not federal, SC will defer to state courts on basis of
“adequate state ground”
o Here O’Connor: 1) they have to make it clear 2) here it is obvious that state court is
dealing with the meaning of the 4th amendment
 State did not make it clear they were only dealing with Michigan Constitution
o Holding: Michigan SC’s reading of the Constitution was incorrect and police officer’s
seizure of marijuana was not unconstitutional
o Generally state court is inviting SC to interpret the law when it basis its decision on fed.
Con.
Justiciability
• No justiciability if
o Political question
o Parties are asking for an advisory opinion – “no case or controversy”
o When the case is not yet ripe
o When the question sought to be adjudicated has been mooted by subsequent
developments
o When there is no standing to maintain the claim
• Standing
o In order to have standing:
 1) P must allege that he or she suffered or imminently will suffer an injury –
“injury in fact”
 2) The injury is fairly traceable to the D’s conduct – “causation”
 3) P must allege that a favorable decision will likely redress the injury –-
“redressability”
• Standing cannot be waived – It is possible a case will go through trial
and appellate levels and reach SC and SC will say “no standing”
• At times SC has been more liberal in saying standing has been met…
More recently courts have made reqs. for standing harder to meet
o Flast v. Cohen (1968)
 Taxpayers challenge the use of their money for religious studies in school …
Warren Court holds taxpayers have standing
• Prior to this class court was hesitant to provide standing to “taxpayers”
as a class
 Court holds that there has to be a “logical nexus between the status [of
taxpayer] and the claim” which is met here
• For taxpayer standing it is required that:
• 1) the statute relies on Congress power under Taxing and Spending
Clause (Art. I, § 8) and not an “incidental expenditure of tax funds in
the administration of an essentially regulatory law”
• 2) the challenged law violates “specific constitutional limitations”
imposed on tax and spending power
  Although the Burger and Rehnquist courts have never overruled Flast, they have
refused any broadening whatsoever of Flast exception, and no case after Flast
has been able to come within the exception
o Warth v. Seldin (1975)
 3 groups bring suit against town of Penfeld, claiming zoning ordinance, by its
terms and enforced by D board members, excluded persons of low and moderate
income from living in the town
 Court holds all 3 groups fail causation element necessary for standing
 1st group (minority groups of low income) – no direct injury to them, but simply
part of a class which was injured
 Taxpayers in Rochester claim they are injured by having to bear the burden that
there is no housing for those people in Penfield – no direct injury
 Building association -- claiming indirect injury
o Craig v. Boren
 Male under 21 … beer can be sold to women over 18, men over 21
 Craig turns 21 issue becomes moot to him
 Whittier (licensed vendor of 3.2% beer) her business is being impacted… has to
use Craig to assert her claim … court allows this
 Importance: Usually can’t assert rights of 3rd party; Craig stands for the notion
that a 3rd party whose adherence to a statute would indirectly violate the rights of
3rd parties (here males 18-21) will have standing.
• W thus has standing to raise equal protection claim
o Lujan v. Defenders of Wildlife (1992)
 Scalia argues members of DoW didn’t suffer injury in fact based on destruction
of endangered species abroad
 Endangered Species Act provided “any person may commence a civil suit”
• Court held that Congress cannot create standing in that manner
• Scalia: “to permit Congress to convert undifferentiated public interest
in executive officers compliance with the law into an “individual” right
vindicable in the courts is to permit Congress to transfer from the
president to the courts the Chief Executives most important
constitutional duty, to take Care that laws are faithfully executed”
o Importance: Whatever Congress does, it cannot do away with
the “injury in fact” component of standing
o Raines v. Byrd (1997)
 Line item veto
 SC holds that injury to Congressmen is not personal enough, particularized or
concrete: there is no standing to bring suit
• Congressmen and Senators were not harmed themselves in any way
that the rest of the members as a class weren’t harmed by line item veto
• Members of a political body cannot bring a suit saying act “takes away
the power of that body”
o FEC v. Akins (1998)
 Voters suffered injury in fact from their inability to obtain information that
would help them evaluate candidates for public office, the harm was fairly
traceable to Commission’s actions, and could be redressed by judicial decision
 Bryer writing for majority holds that there is standing to sue
• Voters as a group have been injured – like mass tort litigation
• Injury is concrete enough for standing
o Clinton v. NY (1998)
  People bringing suit suffered injury in fact (people suing were a farmer’s
cooperative and NY city who was forced to pay funds to federal government
under Medicaid program)
• Whatever gaps there were in Raines have been eliminated because
Clinton used class action veto
• Issue is now ripe
o Walker v. Cheney (2002)
 Cheney is in charge of a task force, Comptroller General (head of GAO) asks for
documentation of how the office is spending its money
 Cheney’s office refuses to turn over everything
 GAO is arguing that by not turning over paperwork his investigative power is
being harmed… “injury in fact”
 SC applies Raines and says there is no standing, because of no direct injury to
Comptroller General in particular
• “Here the Comptroller General has suffered no personal injury as a
private citizen, and any institutional injury exists only in his capacity as
an agent of Congress – an entity which itself has issued no subpoena to
obtain the information and given no expression of support for the
pursuit of this action.”
• Ripeness – Seeks to separate matters that are premature for review, because the injury is
speculative and may never occur
o City of Los Angeles v. Lyons
 P has standing for a damage claim against the police, but cannot seek injunction
against all future uses of the choke hold
 Court holds there is no real or immediate threat to show an existing controversy
• White: All P’s have to do to not encounter instances of abuse (police
use of choke hold) is to stay on the right side of the law and not
provoke police
o In order for the issue to be justiciable P would have to prove
high likelihood of being a victim of a choke hold again… thus
relief requested is only for future injury … lacks ripeness
• Mootness – If events subsequent to the filing of the case resolve the dispute, the case should be
dismisses as moot
o DeFunis v. Odegaard (1974)
 Law student is denied admission at Washington law school, claiming
discrimination (he’s white) because WLS has affirmative action program
 By the time the case got to the SC, DeFunis is in his 3rd year (school allowed
him to take classes and said he would graduate)
• SC decides the issue is moot – the case will not be decided
• Political Question – Subject matter court deems inappropriate for judicial review – even though
there is an allegation of Constitutional allegation, fed. courts leave the issue to be resolved by the
political process
o 6 kinds of political questions (Baker v. Carr)
 1) a textually demonstrable constitutional commitment of the issue to a
coordinate political department
 2) a lack of judicially discoverable and manageable standard for resolving it
 3) the impossibility of deciding without an initial policy determination of a kind
clearly for nonjudicial discretion
 4) the impossibility of a court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of government
 5) an unusual need for unquestioning adherence to a political decision already
made
  6) the potentiality of embarrassment from multifarious pronouncements by
various departments on one question
o Baker v. Carr (1962)
 Members of TN state legislature say the way seats were reapportioned denied
them equal protection of the law
 Holding: Constitutionality of legislative appointment schemes is not a politial
question and one that can be decided by the SC
 Frankfurter dissent: the decision places omni-competence onto the justices; it
isn’t necessarily the place of the SC to decide every problem that is presented to
it; this is clearly a political question
 Importance: A revolution in justiciability; Warren court thought one person on
vote was most essential issue that came before his court; Proponents argue it
was a necessary and proper decision in the scheme of democracy; Opponents
argue it is a huge grab by the courts and decision better left to the legislature
 Political question doctrine continued to be toned down in the following
years
o Powell v. McCormack (1969)
 Congressman Powell was denied his seat in the House of Reps. and brought suit
against House Speaker McCormack
 Congress argued (under Article I, § 5) they have a “textually specific
constitutional commitment to decide whether Powell takes his seat and that the
SC should stay out of the controversy
 SC held (written by Warren) that “the Constitution does not vest in the Congress
a discretionary power to deny membership by a majority vote” – “textual
commitment cannot be arbitrary”
 Importance: The Supreme Court may review the exclusion of an elected
representative to Congress, if that person was denied a seat for reasons other
than the standing qualifications prescribed in Article 1, § 5
 Marbury gets cited to show the SC is the ultimate interpreter of the Constitution,
“We conclude petitioner’s claim is not barred by the political question doctrine,
and having determined that the claim is otherwise generally justiceable, we hold
that the case is justiciable”\
o Goldwater v. Carter (1979)
 Court holds that issues regarding treaties are political questions refuses to
consider the case – issue involves President’s conduct over foreign relations and
Senate’s ability to negate his action
 Court believes its key to provide a “single, unified voice in foreign affairs”
 Rehnquist is the strongest proponent that this is a none justiciable PQ
 Brennan (dissent) is the complete opposite saying Carter is okay and could
terminate a treaty with Taiwan with congressional approval
o Nixon v. United States (1993)
 Nixon (district court judge) argues the whole Senate must “try” impeachments
under Article I, §3… Senate committee hearing followed by Senate voting isn’t
enough
 Rehnquist writing for majority states that “the Senate, not the courts, should
determine what procedures validly constitute a trial”
• The court here is withdrawing from the potential thrust of Powell and
puts forward the Court’s current position that unless it is the specific
responsibility of the SC they are not going to get involved in the issue
 Importance: It shows the approach taken by the Rehnquist court, as contrasted
by the Warren court in Powell in deciding justiciability surrounding political
 questions... Although many argued this case was exactly like Powell, Rehnquist
firmly holds the question in this case is “committed to other branches”
Federalism – Sources and Limits of National Power
Necessary and Proper Clause – Article 1, § 8, Clause 18
• McCulloch v. Maryland (1819)
o Marshall looks at whether the Congress has power to establish a bank of the US
 Nowhere does it say so in the Constitution – “Inclusio unis, exclusion alterus”
o However, Marshall holds Congress has choice of methodology of implementing powers it
does have
 Marshall thus interprets the Constitution as giving Congress almost
limitless power
 As long as Congress talked about post office, ability to coin money, collect
taxes… national bank fits in the general idea of all this
o The real question should be “is it convenient” or “is it appropriate” not… “is it written”
 “We have to remember that it is a Constitution we’re expounding”
o Importance: Certain powers of the federal government don’t have to be explicitly
spelled out in the Constitution, they can be implied as long as they don’t conflict with
enumerated powers
 As long as the means are rationally related to a constitutionally specified
object, the means is also constitutional
• This is contrasted with states which have general police powers” set
up to provide for the welfare of its citizens… there is no “general
federal police power”
Commerce Power – Article 1, § 8, Clause 3
• Gibbons v. Ogden (1824)
o “No area of interstate commerce is reserved for state control”… thus a state may not
undertake to pass conflicting regulations affecting commerce without violating Congress’
Constitutional mandate
 Congress can also regulate commerce occurring within a state so long as the
activity had some commercial connection with another state
 “If an external voyage either commences or terminates within a state then the
plenary and exclusive power of Congress to regulate it may extend within that
state as well.”
o Importance: Began the steady broadening of the plenary federal commerce power which
culminated in the use of the power to justify public accommodation civil rights laws.
• Cooley v. Board of Wardens (1851) – Birth of Dormant Commerce Clause
o While not using the term Curtis is credited with having created the dormant commerce
clause
 Curtis: “It doesn’t make sense to have a sweeping rule that says states can’t do
anything with regard to regulation of commerce just because Congress was
given the authority to regulate Commerce under Article I, § 8”
• There are cases where the clause is sufficient to restrict state authority,
but there shouldn’t be a bright line rule, but the courts should follow
the practice of taking cases as they arise, and if it requires single federal
regulation, then the commerce clause will be construed to regulate…
Otherwise, the states will be give a pass
• The states are free to regulate those aspects of interstate commerce that
were of such local nature as to require different treatment from state to
state. But the states cannot regulate aspects of interstate commerce
which, because of their nature, required uniform national treatment
o The court focused on whether the subject matter being
regulate was of ‘local’ or ‘national’ scope
• Carter v. Carter Coal Co. (1936)
 o Last time SC struck down a federal statute on the grounds that it was beyond Congress’
Commerce powers to regulate
 Court held that production of coal, which was being regulated under the statute,
was a ‘purely local activity’ and thus did not deal with interstate commerce
• Wickard v. Filburn (1942)
o SC found that farmer who grew wheat for his family was engaged in commerce and
subject to quotas set by Agricultural Adjustment Act
o Cumulative effects test – although the farmer himself might not affect commerce in a
substantial way, the combined effect of all farmers like Wickard clearly had a substantial
effect on interstate commerce
• US v. Darby (1942)
o SC unanimously upheld Fair Labor Standards Act of 1938 which set minimum wages and
maximum hours for employees engaged in the production of goods for interstate
commerce
 Court rejected the view that production was to be left completely up to state
regulation… ‘while manufacture is not of itself interstate commerce, the
shipment of manufactured goods interstate is such commerce and the prohibition
of such shipment by Congress is indubitably a regulation of commerce”
o Importance: Shows beginning of shift towards of complete SC deference to Congress
and great expansion of commerce clause regulation
• Heart of Atlanta Motel Inc. v. United States (1964)
o Heart of Atlanta operated a single motel in Atlanta, close to the highway, argues
application of Civil Rights Act of 1964 is unconstitutional against local business such as
it… Hotel did not give rooms to blacks
o Commerce compiled anecdotal (not scientifically determined empirical date) which tied
discrimination to the effect on commerce
o 14th amendment: “no state shall discriminate…” … Government brings suit under
commerce clause in order to circumvent entire state action v. private action issue
o Court defers to Congress and allowed it to regulate local business, if the activity in some
way impacts commerce
 Clark holds: “that Congress was legislating against moral wrongs in many of
these areas rendered its enactments no less valid. In framing Title II of this Act
Congress was also dealing with what it considered a moral problem. But that
fact does not detract from the overwhelming evidence of the disruptive effect
that racial discrimination has had on commerce intercourse.”
o Importance: This case signified the end of the federal government instituted by the
founding fathers… the case established the principal that the Commerce Clause is so
broad that any activity could be touched, even private businesses… Congress’ regulatory
power is almost unlimited, a result certainly not intended by founding fathers
• Katzenbach v. McClung (1964)
o Ollie’s restaurant refuses service to blacks, located far from interstate highway and great
distance from bus stations and railroads
 Nevertheless, 46% of its food was purchased from a supplier who bought from
out of state
o SC held that the unavailability of accommodations dissuaded blacks from traveling in
interstate commerce
 Also, as in Wickard, the restaurant’s behavior was representative of a large
amount of similar conduct throughout the nation… “cumulative effect” of
which clearly had an effect on interstate commerce
• The Supreme Court from 1937-1995 felt it had to defer to the federal government
o 1937 NLRB v. Jones & Laughlin Steel Corp. started the modern trend
 Although not a great departure (J&L Steel was a large steel manufacturer and
clearly affected commerce) but it made room for Wickard & Darby (1941)
 o Congress had plenary power and anything that Congress would say involved commerce
was okay to be regulated by the Supreme Court as long as SC felt Congress’ was being
rational i.e. there is a ‘rational basis’ for regulation
• United States v. Lopez (1995)
o 1st time in 60 years SC invalidated a federal statute on the grounds that it was beyond
Congress’ Commerce powers to regulate – since Carter Coal (1936)
o Congress thought it could curve school violence by banning guns within a certain
distance of schools
o SC holds statute is has nothing to do with commerce on
o 2 arguemnts
1) jurisdictional nexus: Congress did not ban the possession of a gun that had
traveled in, or affected Commerce, but “any guy”
 2) No factual findings
o Commercial v. non-commercial conduct is key… Guns are “commercial” activity
 SC held that there must be a ‘substantial effect’ (effects test) on commerce by
the statute and not merely an ‘effect’
• Gun near a school is not enough to ‘substantially effect commerce’
• If no ‘substantial effect’ it would lead to a parade of horribles with NO
limitation on Congress’ regulation of commerce – it would lead to a
general police power
o Dissent: Majority overlooks 60 years of precedent; test should not be ‘substantial effect’
on commerce, but ‘rational basis’ for regulation
o Importance: 1st time in 60 years to invalidate a federal statute, however case does
nothing more than set the outer limits of where Congress can invoke commerce power…
SC would have been complacent in deferring to Congress but it wanted to see findings to
which it can defer (findings didn’t show how gun violence was implicated in shaping the
statute. Finally, case leaves many questions unanswered: 1) How far can Congress go 2)
what is ‘substantial effect on commerce 3) to what extent will Congressional fact-finding
sway SC 4) what’s the distinction to be drawn between statutes regulating commercial
and non-commercial behavior?
• United States v. Morrison (2000)
o Federal statute provides civil remedy for victims of gender based violence… Congress
introduces statute which depends on commerce clause saying violence against women
effects commerce …. Says Congress has power under Article I, § 8
o Rehnquist (for the majority) “Due respect for the decisions of a coordinate branch of
government demands that we invalidate a congressional enactment only upon a plain
showing that Congress has exceeded its constitutional bounds.”
o 3 broad categories of activity Congress can regulate under the Commerce Clause:
 1) the use of channels of interstate commerce (highways, waterways, air traffic)
 2) the instrumentalities of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from interstate activities
(people, machines and other things used in carrying out commerce e.g. trucks)
 3) those activities having a substantial relation to interstate commerce (economic
v. non-economic
 4) In Emmanuel’s – articles moving in commerce
o Rehnquist rejects the argument that Congress can regulate violent criminal acts under the
guise of the Commerce Clause “based solely on the conduct’s aggregate effect on
interstate commerce”
 In Lopez the problem was no findings by Congress; here there are ample
Congressional finding, but Rehnquist gives no deference because they
provide too attenuated a causal claim
 • “If accepted the reasoning would allow Congress to regulate any effects
on employment, production, transit or consumption. Indeed, if
Congress may regulate gender-motivated violence, it would be able to
regulate murder or any other type of violence” (clearly reserved for the
states)
o Importance: 1) Effects must be significant… incidental effect on commerce is not
enough 2) if the transaction is a commercial one, court will probably allow Congress to
regulate, even if intrastate, as long as its part of a class that might in the aggregate
substantially affect commerce; Non-commercial: court will not regard aggregate effect
as being sufficient unless a) casual link is extremely direct b) item although non-
commercial crosses state lines or enters stream of commerce 3) findings probably won’t
be dispositive; here, majority essentially disregarded findings although substantial 4)
jurisdictional hook: has to distinguish between item that came in through commerce and
that which didn’t… e.g. “all guns” is not sufficient for regulation to fly with SC
o Thomas concurrence: Has problem with substantial effects test; “it is inconsistent with
Congress’ powers and early commerce clause jurisprudence, perpetuating the federal
government’s view that the Commerce Clause has no limits”
 Until the standard is replaced, we will continue to see Congress appropriating
state police powers under the guise of regulating commerce
o Souter dissent
 Critical of majority’s rejection of copious factual findings
 States record is ‘far more luminous’ than those in prior cases such as Heart of
Atlanta
 “Commercial v. non-commercial is at odds with Wickard’
 Majority is sending commerce doctrine back in time
• Pierce County – Thomas Pussycat (2003)
o “As part of its efforts to improve nation’s highways…”
 Congress has met the standards in Lopez mantra from the 1st line of Thomas’
opinion
o As long as it is connected with ‘safety on the highways’ Thomas believes that this falls
within Congress’ power despite that he made the threat in the Morrison case
 Thomas retreats despite the case that he made the threat against “substantial
effects test”
o The battleground regarding commerce is a mix between Morrison, Lopez a and Pierce
County
o Regulating highways and making them safer falls within Congress’ commerce power
because it deals with regulating “channels and instrumentalities” of commerce
Taxing Power – Article I, § 8, Clause 1
• “Congress shall have the power to lay and collect taxes”
• Sozninsky v. United States (1937)
o As long as there is some ‘reasonable relation’ to revenue raising, a statute calling for a
tax will be upheld, even though it is “oppressive” to the object taxed
 The motive of Congress is not relevant
o P claimed the tax required by National Firearms Act is not a tax but a penalty for the
purpose of suppressing traffic in firearms the regulation of which is not granted to the
national government
 “every tax is in some measure regulatory … A tax is not any less a tax because it
has a regulatory effect”
• SC gives Congress a nod of support in using their constitutional power
• US v. Ptasynski (1983)
o Congress taxes oil except “exempted Alaskan oil”
 Argument: Uniformity clause requires an excise tax apply at the same rate in all
parts of US where the subject of the tax is found
  SC defers to Congress’ need to protect Alaskan reserves
• “the uniformity clause gives Congress wide latitude in deciding what to
tax and does not prohibit it from considering geographically isolated
problems”
Spending Power – Article I, § 8, Clause 1
• United States v. Butler (1936)
o Congress attempted to regulate crops by giving them an incentive to grow less
o SC finds that regulating agriculture is outside power of federal government and thus court
found the Agricultural Adjustment Act unconstitutional
 Nothing in commerce clause says Congress can regulate production… this
infringes on states’ rights to do so (violates 10th amendment)
o Importance: Congress may not regulate in a particular area merely on the ground that it
is thereby providing for the general welfare… no general federal police power
 Through taxing, Congress cannot coercively purchase compliance with a
regulatory scheme
 However, Congress can use its spending power conditionally to reach a result
indirectly, depriving a state of money if it doesn’t achieve the regulatory result
• E.g. depriving states of federal $$$ if they don’t raise the drinking age
• Helvering v. Davis (1937)
o As opposed to the holding in Butler the SC says that Social Security and the elderly is
“clearly national in area and dimensions”
o States cannot deal with the issue sufficiently
• Chas C. Steward Machine Co. v. Davis
o Change from Butler
o P (employer) sues the IRS because he believes unemployment tax is the equivalent of
coercion to comply
 If they don’t cooperate the states will be cut out of federal funds
o P got it wrong, Federal government uses the taxes as inducement and not coercion
 The 5 justices in the majority believe there is no coercion, because nobody is
COMPELLED to do anything here, but only encouraged conditionally
o Importance: Court is given more authority… reaffirmation of broad spending power of
Congress
 Abandons distinction between “conditional appropriations” and appropriations
requiting binding promises by recipient
Foreign Affairs, War and Treaty Powers
• War and Treaty Powers
o President has the right to; make treaties with 2/3 of Senate consent, appoint ambassadors
with ‘advice and consent’ of Senate, appoint ambassadors and other ‘Ministers and
Councils (Art. II, § 2)
o Congress has the power to regulate commerce with foreign nations, establish ‘a uniform
rule of naturalization, to declare war, to maintain and army and navy, and to make rules
for the regulation of the armed forces (Art. I , § 8)
o Untied States v. Curtis-Wright Export Co. (1936)
 SC held presidential embargo on certain nations engaged in conflict
constitutional
 Stands for the notion that the President has broader powers over international
affairs than over domestic ones in order to provide for a ‘united front”
o Woods v. Miller (1948)
 Rule: The war power includes the power to remedy the evils which have arisen
due to the war and does not necessarily end with the cessation of hostilities
• International Agreements
o Article IV, § 2 declares that treaties shall be the supreme law of the land
 o Article II, § 2 grants the President the power to make treaties
o Missouri v. Holland (1920)
 Conflict between treaty and valid congressional statute whichever was enacted
later controls
 Rule: No tenth amendment rights (relegating whatever is not relegated to the
federal government to the states) should stand in the way of the treaty rights
given to Congress
 Holmes: the treaty power is broader than the authority Congress possess to
enact statutes
 Importance: Stands for the notion that a law that a law that would be
unconstitutional under the 10th as infringing on state’s rights might be
considered unconstitutional if it is in the form of a treaty because treaties are
‘Supreme law of the land’
• People were concerned that SC interpreted treaty power so broadly that
all constitutional limitations can be overridden by use of the 10th
amendment
o United States v. Belmont (1937), United States v. Pink (1942)
 An executive agreement is given the same degree of authority as is given a
treaty in implementing major foreign policy agreements
 Executive agreements, like treaties, prevail over state law and policy
 “Complete power over international affairs is in the national government and is
not and cannot be subject to curtailment or interference on the part of the several
states.
o Reid v. Covert (1957)
 A treaty cannot violate the Constitution
 “No agreement with a foreign nation can confer power on the Congress, or any
other branch of Government, which is free from the restraints of the Constitution
Property Power
• Art. IV, § 3, Clause 2: “The Congress shall have the power to dispose of and make all needful
rules and regulations respecting the territory or other Property belonging to the United States
• Kleppe v. New Mexico (1976)
o Rule: Congress has broad power under the property clause and it can apply it to both the
users and uses of the property – the power of Congress under the Property Clause is
without limitations
 This power extends to the power to regulate and protect the wildlife living on
the land
Power to Coin Money
• Art. I, § 8, Clause 5: “Congress has the power to coin money and regulate value thereof”
• Norman v. Baltimore & Ohio Railroad Co. ( 1935)
o Court upholds federal law abolishing the gold standard for currency as part of the power
of Congress to “regulate the coin” and its value
Regulation of Aliens
• Kleindienst v. Mandel (1972)
o Congress has the authority over the admission of aliens
Admiralty Power – In re Garnett
State Sovereignty – 10th Amendment
• 10th amendment: “The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively or to the people”
• For 40 years after Carter Coal (1936), the SC did not invalidate a single federal statute on the
grounds that it violate state sovereignty
o Some believed that the 10th amendment was completely dead as an independent check
upon federal power under the commerce clause
• National League of Cities v. Usery (1976)
 o Holding: The 10th amendment bars Congress from making federal minimum-wage and
overtime rules applicable to state employees
o Rule: The prerequisite for governmental immunity under the 10th amendment is that the
federal statute not tread on ‘traditional state governmental functions’
o “Congress may not exercise power in a fashion that impairs the States’ integrity or their
ability to function in the federal system
o Importance: brings the 10th amendment to the fore-front as a check on federal power
under commerce
• Garcia v. San Antonio Metropolitan Transit Authority (1985)
o Overrules National League of Cities
o Rule: The test for determining state immunity from federal regulation under the
Commerce Clause is not whether the state activity sought to be regulated is a traditional
state function, but rather whether the regulation as applied to the state activity is
destructive of state sovereignty or violative of any constitutional provision (much
tougher standard)
o Blackmun says that state transit authority isn’t immune from federal Fair Labor
Standards Amendments
 This however doesn’t mean that there are no limitations upon the federal
government’s rights to use its delegated powers to impair state sovereignty
o Dissent (Rehnquist) : Majority is not recognizing the limitations of the federal
government under the Constitution (states rights argument)
• New York v. United States (1992)
o Takes some life out of Garcia
 Congress cannot compel (coerce) a state to enact a particular type of law
 O’Connor (majority): “Congress cannot commandeer the legislative processes
of the States by directly compelling them to enact and enforce a federal
regulatory program
o This case looks at the constitutionality of the disposal of radioactive waste
o The third proposal offered by the federal government to NY (‘taking title’ to its waste)
borders on “coercion” and is thus unconstitutional
 Either the states accept ownership of the waste or Congress is to impose
regulations
• Inducement is okay however, coercion is unconstitutional
• O’Connor believes this crosses the line and is a violation of the 10th
o Importance: Breathes new life into the 10th Amendment … O’Connor: “Congress cannot
use its authority to override the vestiges of sovereignty that have been retained by the
states pursuant to other parts of the Constitution that have been codified in the 10th”
 Majority thinks its unfair for state officials to have to face “political heat” for
decisions made in Washington
• Printz v. United States (1997)
o Similar to NY v. US, here Congress cannot compel a state’s executive branch to perform
certain functions
o Brady Handgun Bill -- in the interim of buying a gun, a CLEO (state official) has to
perform a background check
o Scalia: Congress doesn’t have the right to force state officials to work for them regarding
the Brady Handgun Bill
 “It is incontestable that the Constitution established a system of “dual
sovereignty” … “concurrent authority over the people” (focuses on the
conceptual state sovereignty argument of the Tenth Amendment”
o Rule: It is not the job of state officials to perform the ministerial tasks of the federal
government… even if they are simple ones or for the public benefit
 o Dissent (Stevens) – “When Congress exercises the powers delegated to it by the
Constitution, it may impose affirmative obligations on executive and judicial officers of
state and local governments as well as ordinary citizens…. This conclusion is firmly
supported by the text of the Constitution, the early history of the Nation, decisions of this
court and a correct understanding of the basic structure of the federal government.”
State immunity from suits – 11th amendment
• 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 any Foreign State”
• Pennhurst State School & Hospital v. Halderman (1984)
o P sues in federal court regarding violation of the PA Mental Health and Retardation Act
o Rule: A federal court may not provide injunctive relief against state officials on the basis
of state law
 Powell: Federal courts may enjoin state officials from acting in violation of the
Constitution or of federal law in order to preserve the supremacy of federal law
 However, a federal court’s grant of relief on the basis of state law does not
vindicate the supreme authority of federal law
• Such relief would constitute a blatant and impermissible intrusion on
state sovereignty
o Dissent (Brennan): the 11th Amendment bars federal court suits against states only by
citizens of other states and does not apply in this case
o Dissent (Stevens): Conduct exceeding a state official’s power is not entitle to sovereign
immunity… injunctive relief was proper
• Seminole Tribe of Florida v. Florida (1996)
o Rehnquist: the 11th amendment provides that states are immune from suits by the
citizens of the United States
 Congress cannot abrogate the states’ immunity from suits by e.g. allowing
Seminole tribe to bring suit against states in federal court
o The court has said that under the 14th amendment there can be an overriding of the 11th
amendment (Ex Parte Young) because the 14th amendment specifically gave to Congress
the power to take action
• Alden v. Maine (1999)
o Seminole extended --Can’t sue states in federal or state courts for monetary damages
• Board of Trustees of the University of Alabama v. Garett (2002)
o The question is when does the Supreme Court defer to Congress
o Issue: § 5 of the 14th amendment and its bearing on the 11th amendment
 § 5 of 14th Amendment: “the Congress shall have power to enforce, by
appropriate legislation, the provisions of this article
o 2 ways Congress will implement provisions of 14th
 1) deferential – if Congress decides that something is necessary to support the
14th, the court will defer to Congress, unless they engage in egregious actions
• Court said Congress can implement what the court has done in
implementing the 14th, but can’t simply interpret it their own way
 2) If an issue involves a fundamental right or a suspect class SC will apply strict
scrutiny
Dormant Commerce Clause
• Dormant Commerce Clause: The regulatory effect of the commerce clause on state activity
affecting interstate commerce, where Congress itself has not acted to control the activity; a
provision inferred from, but not expressly present in the language of the Commerce Clause
• General Rule for dormant commerce clause cases
o 1) Look for discrimination against interstate commerce (usually statute unconstitutional)
o 2) Balancing test – effect on interstate commerce versus benefit to the state
 o 3) Whether alternative means exist that can promote the local purpose as well without
discriminating against interstate commerce
• Market Participant Doctrine – distinguishes between state acting in a governmental capacity
(subject to limitations) and a state acting as a participant in a market
o Opponents argue effect is the same… why should a state be subject to a more lax
standard
• Discrimination Against Interstate Commerce
o New Energy Co. of Indiana v. Limbach (1988)
 Ethynol credit to Ohio gas producers – Indiana didn’t give credits to ethanol gas,
thus gas produced by P was not given tax-credit and thus made uncompetitive
 The commerce clause doesn’t allow a state to economically discriminate against
other states
 Black letter: A direct imposition of a tax contingent on another state instituting
reciprocity is a violation of commerce clause because it entails discrimination
based on interstate commerce
• In order for the state law to be justified it must “be unrelated to
economic protectionism”
 Scalia (majority) – When a state is imposing a tax-credit (as is the case here),
the state is NOT acting as a market participant but as a regulator
• Thus, tax-scheme is found as violative of Commerce Clause
o Wyoming v. Oklahoma (1992)
 Oklahoma required at least 10% Oklahoma mined coal to be used by coal-fired
generating plants
• Court cites New Energy and declares statute unconstitutional under
Commerce Clause as discriminatory against out of state producers
(amount Oklahoma required (10%) didn’t matter)
• State Economic Regulation of Transportation Businesses
o South Carolina State Highway Dept. v. Barnwell Brothers (1938)
 South Carolina statute forbade the use of over-sized trucks on state highways
 SC upholds South Carolina law although it excludes certain trucks used in
interstate commerce
• SC shows judicial deference to states – there is a state interest in
highway safety by eliminating large trucks
• States are allowed to fill in gaps where Congress regulated in the past
(highways built and maintained by states)
• Key Regulation is applicable to interstate and intrastate commerce alike
o South Pacific Co. v. Arizona (1945)
 Arizona law forbade railroads to have more than a certain number of cars
 Arizona claims by limiting size of trains it is reducing accidents (safety)
 Court balances state interest in reducing accident v. effect on commerce
 Court looks at ‘cumulative burden’ and declares AZ law unconstitutional
• Total effect of the law a safety measure v. national uniform effect on
interstate train travel
 Importance: Even though a railroad can simply follow the shortest limit, it
gives the state with the shortest limit (here AZ) control over commerce outside
their borders… a seemingly state function (transportation) can be regulated if its
effects are felt outside the state
o Bibb v. Navajo Freight Lines, Inc. (1959)
 Illinois statute requires a certain type of mud-guard on trucks
 They are making illegal in Illinois mud-guards required in other states
 Statute places a great burden on interstate commerce and is unconstitutional
  Cases such as this where statutes contradict each other, SC will likely strike
down at least one because national uniformity outweighs the individual state’s
interest in regulating its own highways
o Kassel v. Consolidated Freightways Corporation (1981)
 CFC prefers to use the bigger 65 foot trucks which are illegal in Iowa
 Iowa presents findings of safety from shorter trucks
 Lawyers for CFC present the Iowa governor’s statement which said he’s
interested in limiting the number of trucks that enter Iowa rather than safety
 Rule: A state restriction on the kind of vehicles permitted to use the state’s
highways with the sole safety benefit being a reduction in the amount of traffic
on those highways is an unconstitutional burden on interstate commerce
• SC didn’t find safety argument compelling
 Dissent (Rehnquist): Majority is treading on the turf of the state… Rehnquist
argues you must examine what the state has done, not empirically, but look at
whether the state has acted rationally
• Implied Restriction on Commerce – Production and Trade
o Dean Milk v. City of Madison, Wisconsin (1951)
 Madison law said you can’t sell milk unless it was pasteurized within a five mile
radius of Madison (justification is to promote sanitation and keep milk clean)
 Clark (majority): A locality cannot discriminate against interstate commerce,
even to protect health and safety of its people, if reasonable alternatives exist
which do no discriminate
• The statute is in reality protecting local businesses under the guise of
health concerns thus discriminating against interstate commerce
o Minnesota v. Clover Leaf Creamery Co. (1981)
 MN statute disallowed sale of milk in plastic non-returnable, non-refundable
containers
 SC court holds there is no discrimination here… the statute is even-handed
• SC was somewhat interested in state’s concern about environment…
says environmental concerns are legitimate and don’t violate CC
o West Lynn Creamery v. Healy (1994)
 Massachusetts milk tax is paid out to Massachusetts mil farmers
 Rule: An assessment scheme that levies a tax on all distribution of a good but
disburses its assets to local producers only is constitutional
• Although all producers pay tax equally, the assets go to local producers
only – this is clearly discrimination
 Majority (Stevens) – Taxes are okay and subsidies are okay, but putting the two
together it becomes a tariff and is considered discrimination against Commerce
o Pike v. Bruce Church, Inc. (1970)
 No packing facilities in Arizona, cantaloupes get packaged in California
 SC holds AZ cannot require Bruce Church to construct a warehouse in AZ
 Reasonable alternative issue is at the forefront
• The court looks at the availability of other alternatives which become
more important than economic purposes or protectionism
• SC is suspicious of state regulations requiring processing take place
within the home state even though it is more economical to do so
elsewhere
o Such activity is illegal per se
o C & A Carbone v. Town of Clarkstown (1994)
 Clarkstown orders all solid wasted be processed by one private cotractor
  Discrimination against interstate commerce in favor of local business is per se
invalid unless the municipality can demonstrate there is no other means to
advance a legitimate local interest
• Local governments cannot use their regulatory power to prohibit
patronage from out of state competitors
 This case can be distinguished from the rest because it not only discriminated in
favor of local business, but in favor of ONE business
o Hood v. Du Mond (1949)
 NY refuses to give Hood another license to operate in NY because it is fearful
NY milk will be diverted to Massachusetts
 Holding: Refusal violates commerce clause because it is discriminatory – NY is
seeking an economic advantage to help local interests… SC doesn’t buy health
and safety argument
o Philadelphia v. New Jersey (1978)
 NJ law not accepting waste from PA and NY is unconstitutional
 Importance: Even if a state is trying to protect itself for environmental and
non-economic reasons, the Court will apply strict scrutiny and not allow
discrimination
 Dissent (Rehnquist) : NJ has no responsibility in taking everyone’s garbage;
garbage will become health problem in the future
o Hughes v. Oklahoma (1979)
 No one can export natural minnows to sell outside the state
 Court overrules doctrine of public ownership of wildlife and treats minnows like
any other resource and thus the state cannot hoard it for its own consumption
 Legitimate state interest in conservation was not advanced by least
discriminatory means possible
o Maine v. Taylor (1986)
 Importance: Discriminatory law is sometimes necessary to serve an important
purpose – case gets passed 1st prong of test (and is discriminatory) but still
constitutional
 Here Maine statute provided for a legitimate state interest (not allowing
imported baitfish and thus protecting its fish industry from disease) that could
not be adequately served by any other non-discriminatory alternative
• Market Participant Doctrine
o Reeves v. Stake
 Rule: In the absence of congressional action, nothing in the Commerce Clause
prohibits a states from being a market participant (as opposed to regulator) and
acting in that capacity to favor its own citizens over others
 During a time of shortage, South Dakota enacted a plan to confine the sale of
cement it produced in its plant to South Dakota residents
 Market Participant Doctrine allows states acting as market participant (i.e.
businesses) and not regulators to be exempt from dormant commerce clause
and discriminate
o White v. Massachusetts (1983)
 Boston – any construction done with city funds must be comprised with at least
50% Boston resident
 SC holds that market participant doctrine is not limited to state- owned
businesses; states may also favor their citizens in receiving benefits from
government programs
• IN this case Boston is allowed to favor its residents because it is a
market participant … “when the municipality decides to use local funds
to build, that is enough to make it a market participant”
  Privileges and Immunities (Article IV,§ 2) was not argued before the SC, thus
the SC only answers the commerce clause question and finds Boston is a market
participant
• Market Participant would not apply under P & I and P’s would
probably have won under P & I
o South Central v. Wunnicke (1984)
 Limitation on Market Participant Doctrine
 Alaska statute requires purchasers of state-owned timber to have timber
processed in Alaska before it is shipped out of state
• SC court holds this requirement unconstitutional
 Holding (plurality): Although state businesses may favor in-state purchasers
(under market participant), they may not attach conditions to the sale that
discriminates against commerce
 State cannot impose conditions that a substantially regulatory effect outside
particular market in which the state is a participant in
 Nevertheless, MPD is still in large part in effect
o CTS v. Dynamics Corp. (1987)
 Criticism of balancing approach used by the court in dormant commerce
clause cases
 SC holds that Indiana statute is not considered discriminatory – it affects in
staters and out of staters alike… there is also a legitimate state interest
 Concurrence (Scalia) : Advocates upholding all statutes that don’t discriminate
– thus throwing out balancing test for state interest
• The balancing test is to be done by Congress and not by the courts
(Scalia thinks this is Congress’ job under the Commerce Clause)
o Nevertheless, balancing test is still firmly established and
frequently applied in dormant commerce clause cases
o Bendix v. Midwesco (1988)
 To be read with CTS (above) for Scalia’s view on balancing test
 Court held Ohio statute unconstitutional because: “even though it can be
argued to be discrimination – the burden imposed on interstate commerce
by the statute exceeds any local interest for the state”
 Scalia argues that the statute is on its face discriminatory because it applies to
out of state corporations… the analysis should end there, because looking at
local interest for the state is the Congress’ job
• Privileges & Immunities Clause (Article IV, § 2, Clause 1): “The citizens of each state shall be
entitled to all the Privileges and Immunities of Citizens in the several states”
• Effect of Other Constitutional Provisions on State Regulatory Powrer
o United States v. Camden (1984)
 Camden ordinance required 40% of contractors working on city construction to
be Camden Residents
 The court says that whenever there is a privileges and immunities claim there is
a 2 step process
• 1) whether the ordinance burdens one of those privileges and
immunities protected by the Clause… Not all forms of discrimination
against citizens of other States are constitutionally suspect.
o Some distinctions will always exist because this nation is built
of 50 states, “only with respect to those ‘privileges’ and
‘immunities’ bearing upon the vitality of the Nation as a single
entity must the state treat all citizens, resident and non-
resident, equally”
 • 2) Whether an out-of-state resident’s interest in employment on public
works contracts in another state is sufficiently “fundamental” to the
promotion of interstate harmony so as to “fall within the purview of
the Privileges and Immunities Clause”
o (the right to be employed, the right to practice one’s
profession and the right to be engaged in business are all
fundamental… non-economic rights are not… e.g.
recreation)
 In the present case, the resident’s interest in employment is “fundamental”
• A non-resident of Camden and an out of stater do not enjoy the same
privileges as a resident of Camden under the present statute
 Court holds this statute violates P&I clause because it violates the fundamental
rights of citizens and thus the statute is unconstitutional
• Rehnquist rationalizes the ability to give a pass under commerce clause,
but a flunk under P & I clause
o “The Privileges and Immunities Clause, on the other hand
imposes a direct restraint on state action in the interests of
interstate harmony. This concern with comity cuts across the
market regulator-market participant distinction that is crucial
under the Commerce Clause.”
• Under the commerce clause, Camden could have been considered a
market participant and been allowed to discriminate
o Supreme Court of Virginia v. Friedman (1988)
 Court looks at two steps to see whether a residency classification offends P
& I clause
• 1) “the activity in question must be ‘sufficiently basic to the livelihood
of the Nation”
• 2) “If the challenged restriction deprives nonresidents of a protected
privilege, we will invalidate it only if we conclude that the restriction is
not closely related to the advancement of a substantial state interest”
o Since an important privilege (the ability to practice one’s
profession by studying law in Virginia) is taken away without
an important state interest to be advanced, the statute is in
violation of the Privileges and Immunities Clause
• st
21 Amendment
o Bacchus Imports, Ltd. v. Dias (1984)
 Hawaii enacted an excise tax on sale of liquor although some local liquor was
exempted
 Issue: Do provisions of the 21st amendment give renewed authority to states to
do what they will with alcohol regulation?
• Majority says NO
 Rule: The 21st amendment doesn’t allow states to enact regulation which
discriminates against out of state businesses in violation of Commerce Clause
 Importance: 21st amendment doesn’t trump commerce clause when dealing
with alcohol
o Brown-Forman Distilleries v. New York (1986)
 Reinforces Bacchus
 SC finds alcohol statute violative of commerce clause because it had “the
practical effect of controlling liquor prices in other states”
 SC takes view that 21st amendment gives states very limited authority over
liquor
• Majority: “21st amendment did not entirely remove state regulation of
alcohol from the reach of the Commerce Clause’
 o Capital Cities v. Crisp (1984)
 OK passed a statute asking (under 21st) to take wine commercials off cable feeds
which come from other states
 Brennan thinks because OK is going for wine commercials only, it is too
narrow a concern, and does not trump the federal interest of providing
widespread cable services
• Fed. law serves more important service so OK statute is
unconstitutional
• Preemption doctrine: Arises out of Supremacy Clause stating all state laws have to yield if they
conflict with a federal law
• Under dormant commerce state regulation can be pre-empted even if Congress has done noting; if
the subject matter is inherently national in scope, state regulation is invalid even if Congress has
not entered the area
o Gade v. National Solid Wastes Management Association (1992)
 O’Connor’s decision is somewhat differential to Congress
 Holding; Because Illinois did not opt out of the federal program, it may not
regulate worker safety itself
 O’Connor is convinced by the word “shall” in the Occupational Safety and
Health Act of 1970 which says that if a state wants to opt out of federal plan it
must submit a plan of its own
• This shows Congress’ intent to regulate if the states don’t bow out
 O’Connor’s view on pre-emption
 1) express – Congress expressly states federal law pre-empts in the statute
 2) implied – Important to look at Congressional intent
• a) field pre-emption – the scheme of federal regulation is so pervasive
as to make reasonable the inference that Congress left no room for the
states to supplement it
• b) conflict pre-emption – compliance with both the federal and state
regulations is a physical impossibility
• c) where a state law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress
 Here it is quite clear Congress intended to preempt the field of worker safety
o Geier v. Honda (2000)
 NY statute interferes with Congressional intent and is pre-empted
 State believes this is an unprecedented expansion of federal power
SPERATION OF POWERS
• 3 main branches of Constitutional law
o Federalism
o Concept of separation of powers
o Limitations on Government (what neither the national government nor the states can do)
• 2 diagrams of separation of powers
o 1) Three separate vacuum packed cans (each unit of government stands as separate and
independent source of power)
o 2) Three interlocking circles (the three powers are not entirely separate from one another,
they overlap and intersect to a degree)
• Prize Cases (1863)
o April 1861 Lincoln orders a blockade of Southern ports
o Court looked at the fact that Congress alone has the right to declare a national or foreign
war
o Holding: Although the President doesn’t have the power to declare war, he has the right
to resist insurrection
 Court defers to Congress and allows him to respond an attack situation
• Youngstown v. Sawyer (1952)
 o Truman turned the steel industry over to the Secretary of Commerce to run in order for
there not to be an interruption of steel production (steel industry was threatening to strike)
as not to hurt war in Korea
 Truman argues he was working to pre-empt a national disaster
o Court says such action should arise from Congress and Truman is acting outside of his
constitutional power
o Black: President’s actions are legislative efforts, and President exceeded his authority
within separation of powers
o Rule: President must act within his executive power and cannot usurp the lawmaking
power of Congress
 Truman immediately complied
• Mora v. McNamara (1967)
o Black Letter: SC refuses to decide whether the executive can constitutionally order
citizens to participate in military activity when no war has been declared
 Majority seems to be deferring to Executive branch
 Dissent believes all are important issues and should be addressed
• United States v. Nixon (1974)
o Nixon evoked ‘executive privilege’ to justify his refusal to disclose certain information
which he claimed to be confidential
o The court recognizes the constitutionally-protected doctrine of executive privilege but
qualifies it by saying that the pending criminal investigation is more important and
trumps the privilege
o Balancing test – Both privilege and the criminal prosecution have constitutional values,
however, allowing for production of materials is rare and necessary here and will not
impact the candor of discussions between the President and his advisors
 Military secrets, issues of national security are an exception
• Dames & Moore v. Regan (1981)
o P claims that presidential executive orders against Iran in American courts are the
equivalent of takings of property
o SC holds that executive orders do not exceed presidential powers
o Importance: Along with Belmont and Pink, the three cases can be read narrowly as
saying that executive agreements have strong authority equal to law… However the
opinions are all narrow and leave open the possibility that in the future executive
agreements can be invalidated as usurping the Senate’s treaty making power
• Separation of Powers – Presentment Clause
o INS v. Chadha (1983)
 Congress can veto (only one house necessary) the suspension of deportation
after its been approved by INS
 Court rules that legislative veto is unconstitutional
 Presentment Clause – All legislation must be presented to the president who
then decides whether to veto or not
• Unicameral, legislative veto doesn’t go through president and violates
Article I requirements
• SC rejects Congress’ arguments of efficiency and convenience
 Standing Issue – INS agreed with Chadha that he shouldn’t be deported, thus
Attorney General tried to argue there was no case or controversy for the SC
 Dissent: Legislative veto is a necessary check on the broad delegations of
legislative power
o Morrison v. Olson (1988)
 Issue: Whether appointment of special prosecutor is unconstitutional
 Ethics in government Act of 1978 allowed for appointment of independent
counsel to investigate wrongdoing of high government officials
  Rehnquist writing for majority holds that appointment of independent counsel
isn’t unconstitutional because he is an inferior rather than principal officer
• Article II: “Congress has the authority to empower federal courts
to appoint inferior officers”
• Rehnquist argues IP is inferior because 1) can be removed by Attorney
General 2) only has limited powers compared to Attorney General’s
broad powers
 Scalia (lone dissent) – 1) inferior = subordinate; here IP is in no way an inferior
officer because the IP is not even subordinate to President because he isn’t under
the supervision of President 2) power to prosecute is “quintessentially an
executive authority”
o Mistretta v. United (1989)
 Sentencing Reform Act of 1984 – Put together to promulgate sentencing
guidelines for federal crimes
 Issue: Does Act violate separation of powers?
• Here judges are given legislative authority in establishing sentencing
policy
 SC holds that Act doesn’t violate separation of powers
 Blackmun (majority): “Congress may delegate to the Judicial Branch
nonjudicatory functions that do not trench upon the prerogatives of another
Branch and that are appropriate to the central mission of the Judiciary”
 After Minstreatta, sentencing judges no longer have discretion in handing out
sentences
• Judges must follow the guidelines of this agency and only in the most
exceptional circumstances deviate from guidelines
 Scalia (dissent): “Today’s decision follows the regrettable tendency of our
recent separation of powers jurisprudence…”
o Clinton v. New York (1998)
 Line-item veto violated the Presentment Clause to the Constitution
• 1) President’s veto came after the bill had been signed into law rather
than before as required by Constitution
• 2) The cancellation applied only to the part of the bill rather than the
whole as required
 Dissent (Scalia) – All the line item veto does is allow the President the power to
appropriate (spend) which he is entitled to anyway
• “There is not a dime’s worth of difference between Congress’
authorizing the President to cancel a spending item, and Congress
authorizing money to be spent on a particular item at the President’s
discretion. The latter has been done since the Founding of the Nation.”
o Clinton v. Jones (1997)
 Rule: There is no immunity, not even qualified immunity, that is completely
unrelated to the carrying out of the President’s job
• Clinton argued he should have temporary immunity at least until he is
out of office
o SC unanimously rejects this argument because immunity
arising from an unofficial act does not “serve the public
interest in enabling officials to perform designated functions
without fear that such actions may give rise to personal
liability” which is the reason for immunity in the first place
 Counter-argument – The Constitution’s provision of impeachment as a means
of removing federal officers bars any criminal prosecution of such officers at
least until they have been removed from office
Incrporation of the Bill of Rights into the 14th Amendment
• Barron v. Baltimore (1833)
o P claims city of Baltimore cause damage to his wharf and did not compensate him –
“taking of property” under the 5th amendment
o Marshall – Held that Bill of Rights applied only to the federal government and that had
the founding fathers intended the Bill of Rights to apply to the states, “they would have
declared their purpose in clear and intelligible language.”
 The 1st amendment says “Congress shall pass no law”
 Argument was made that 5th didn’t include such language so it applied to the
states as well as the federal government
• Marshall rejects this argument saying that every state wrote its
constitution to provide for these liberties and thus the 5th amendment
applies only to the federal government and not to the states
• Dred Scott v. John Sanford (1857)
o Chief Justice Taney states the Missouri Compromise was unconstitutional
 Congress can’t pass Missouri Compromise because by outlawing slavery in
certain states, it is taking away property without the due process of law
o Slaves are not given rights under the Constitution because they were not citizens when
the Constitution was crafted, also Framers were slave owners…
 “I aspire to be better than I am”
• Distinction between Privileges & Immunities Clause (Article IV v. 14th)
o 14th Amendment P & I Clause: Bars a state from abridging any US citizen’s rights of
“national” citizenship (of which importance after Slaughterhouse is pretty worthless)
o Article IV: Protects rights of “state” citizenship, but only when non-resident of the state
is not treated the same as a resident with respect to an important state right, essentially a
right involving commerce
• Slaughterhouse Cases (1872)
o First Supreme Court case to interpret 14th amendment
 14th P & I Clause: “No state shall make or enforce any law which shall abridge
the privileges and immunities of citizens of the United States…”
o Louisiana passes statute that only allows slaughtering of livestock in one place
 Butchers sue saying this is a violation of the 13th and 14th amendments (denial of
P& I of Louisiana citizenship – the right to practice one’s trade)
o SC says such concerns (economic practices of the states) are not what those amendments
are for
 The amendments were written to deal with slavery
 Thus, P & I clause merely forbade state infringement of the rights of national
citizenship, not state citizenship
o Holding (narrow ruling): 1st sentence of 14th amendment distinguishes between US
citizenship and state: “Fundamental civil rights (including one’s trade) was the domain of
the states, not the federal government… P’s should look to Louisiana for protection;
because there was no protection for them under Lousiana law, P’s were out of luck
because P & I clause adds nothing to their rights
 Majority ruling worked to rob the P & I clause of all its meaning
o Dissent argued Majority’s ruling made P & I useless…. P & I clause protected
“fundamental rights” cannot be infringed by any state
o Importance: Later the 14th amendment began being used for discrimination cases but
only through the due process and equal protection clauses because Slaughterhouse
made the P & I useless
• Saenz v. Roe (1999)
o The court invoked the P & I clause of the 14th amendment for the 1st time in 125 to
invalidate state law
  SC cites Slaughterhouse cases declaring CA’s acts restricting welfare to some
individuals who had recently become citizens in violation of P & I clause of 14th
o Importance: P & I clause requires states to satisfy strict scrutiny before the state may
treat newly-arrived residents less favorably than those who have lived in the US for a
longer period of time … “right to travel”
o Thomas and Rehnquist dissent on the grounds that the court is breathing new life into
the P & I clause that hasn’t been used in 125 years and wasn’t meant when the 14th
amendment was passed
• 2 views on incorporation
o a) selective incorporation (“fundamental rights”) approach – (Cardozo & Frankfurter)
o b) total incorporation (Black and Douglas)
• Palko v. Connecticut (1937)
o Issue: What part of Bill of Rights in incorporated into 14th amendment?
o Cardozo (selective view) – “Only those rights which are of “fundamental importance”
are incorporated into 14th
o Case deals with the ‘double jeopardy’ of the 5th amendment
 Cardozo finds protection against double jeopardy isn’t incorporated
o Test: “Whether something is incorporated into the Bill of Rights is if something
addresses the “very scheme of ordered liberty” and whether the right is one of those
“fundamental principles of liberty and justice which lie at the base of all our civil and
political institutions”
o Importance: “Ordered liberty” is still the standard that is applied into whether
something is incorporated into the 14th amendment
• Adamson v. California (1947)
o D argues denial of his 5th amendment privilege against self-incrimination denied him a
fair trial in contravention of the due process clause of the 14th amendment
 Majority upheld selective incorporation by holding that the right against ‘self-
incrimination’ is not a right of national citizenship protected by the 14th
amendment
• Frankfurter concurrence – “The notion that the 14th amendment was a covert way of
imposing upon the States all the rules which it seemed important to 18th century
statesmen to write into the Federal Amendments, was rejected by judges who were
themselves witnesses of the process by which the 14th Amendment became part of the
Constitution.”
• Black dissent– “I would follow what I believe was the original purpose of the 14th
Amendment – to extend to all the people of the nation the complete protection of the Bill
of Rights. To hold that this Court can determine what, if any, provisions of the Bill of
Rights will be enforced, and if so to what degree, is to frustrate the great design of a
written Constitution.”
o P. 482 – “My study of the historical events … were intended to accomplish was
to make the Bill of Rights applicable to the states… interpreting the
Amendment.”
• Black believed that all of the guarantees specified in the Bill of Rights are applicable to
the states through the 14th amendment
o Thus the procedural guarantees which applied to the federal government by the
5th amendment automatically applied to the states through the 14th
o Otherwise the fundamental rights approach would allow the courts to trespass
too freely on the legislative domain of the states and the federal government
• Duncan v. Lousiana (1968)
• Rule of incorporation changes from “the very essence of a scheme of ordered liberty”
to any guarantee which is “fundamental in the context of the judicial processes
maintained by the American states” – more lax standard of incorporation
 • Appellant alleges that his 6th and 14th amendment rights were violated because he was not
tried by a jury in a Louisiana case where he was convicted of simple battery
• P deserved a trial by jury – Any criminal action which is serious (court doesn’t address
where that line is drawn) deserves trial by jury
• Black’s concurrence – He wanted to add the entire Bill of Rights to the states through
the 14th amendment
o This can be seen as Black’s triumph because it displayed a significant shift from
the majority opinion in the Adamson case
• Importance: Even though the SC has never endorsed the total incorporation
approach, advocates of total incorporation won because one by one most of the Bill of
Rights guarantees were incorporated into the 14th amendment
• Today only 5 provisions of the Bill of Rights haven’t been incorporated
1) 2nd amendment “right to bear arms”
2) 3rd amendment right not to have soldiers quartered
3) 5th amendment right to a grand jury indictment in criminal cases
4) 7th amendment right to jury trial in civil cases
5) 8th amendment prohibition of excessive fines has never been ruled upon
• Due Process As a Limitation on Procedures Not Forbidden by the Bill of Rights
o Pacific Mutual v. Haslip (1991)
 Prior to this case it was considered that punitive damages under tort law
was purely the concern of the states and there wasn’t a constitutional level of
consideration
 In Haslip the Court decided that “the Due Process Clause does
circumscribe state procedures for awarding punitive damages.”
 However, the SC held that Alabama had not violated due process – thus
most people thought it was all lip service and the court was going to stay out of
it
• Honda Motor Co. v. Oberg (1994)
o SC declared unconstitutional an Oregon law that precluded judicial review of
punitive damage awards
o Judicial review as a safeguard against excessive verdicts was an established
common law tradition that Oregon violated
o SC once again emphasized that punitive damages are limited by due process and
that the constraint is procedural
 SC held that judicial review of punitive damage awards is an essential
constitutional prerequisite
• BMW v. Gore
o For the first time SC strikes down punitive damages as eccessive
 Up until recently SC dealt with issue of punitive damages entirely from
a procedural perspective – all of a sudden SC decides excessive
punitive damages violate substantive due process
• NY Times v. Sullivan
o Rule: The 1st amendment requires that a public official may not recover
damages for defamatory falsehoods relating to his public official conduct unless
he proves that the statement involved was made with ‘actual malice’ – that is
with knowledge that it was false or with reckless disregard of whether it was
false or not
• Substantive due Process
• Lochner v. New York (1905)
o State law prevents bakers from working more than 60 hours a week
o Contract law v. police power
  Majority argues there is no rational reason why state would use its
police power to disallow bakers from working as much as they want –
declares law unconstitutional in violation of the due process clause
of the 14th amendment
 Nevertheless, it could be the case that police power is used to limit
contracts and protect public health
o Majority holds that actual motive (regulate labor conditions) and not
hypothetical motive (health and safety of bakers) is to be looked at when
evaluating a statue to a substantive due process attack.
o Lochner test
 1) very close ‘fit’ between statute and its objective (“real and
substantial”)
 2) limited objectives were acceptable
o Harlan Dissent – working in a bakery is different than working outside in the
fresh air, thus the statute is necessary to protect the health and safety of bakers
o Holmes dissent – a lot of things have been passed that are regulatory in effect,
but as long as there is a rational relationship the Court has accepted that
 Argued against a “laissez-faire” economy and in favor of government
regulation
 “The 14th Amendment does not enact Mr. Herbert Spencer’s Social
Statics”
• British conservative – strongly opposed to all forms of social
legislation
• United States v. Carolene Products Co. (1938)
o Statute doesn’t allow the shipment of milk that includes any kind of fat other than
milk fat
o Famous footnote 4 – Supreme Court establishes “the scrutiny game”
• Footnote 4 – 3 occasions where increased scrutiny is used
o 1) legislation restricts a political process
o 2) legislation is directed at particular ethnicity or religion
o 3) legislation deals with Bill of rights
• The Court does not use increased scrutiny here; instead rational basis is applied
and the law is found to be constitutional (Carolene has not met the burden in
showing that no rational basis exists for the “Filled Milk Fat” Act
o The court in this case attempted not to apply economic considerations
to their decision
Levels of Scruitiny
• Lowest (“rational basis test”) – In order for a law to be upheld it needs to be
rationally related to a legitimate government purpose
o all laws challenged under the due process clause or equal protection
clause must meet at least rational basis
 The goal of legislation need be a goal that is legitimate for the
government to pursue
 The goal doesn’t even have to be the actual purpose of the
litigation but any conceivable legitimate purpose is sufficient
• Means chosen need be a reasonable way of achieving
the goal
 Challenger has the burden of proof -- SC is highly deferential
to Congress
• Rational basis test is extremely differential to the
government, only rarely has SC struck down a government regulation
based on rational-basis test
 • Intermediate scrutiny – a law will be upheld if it is “substantially related to an
important government purpose.”
o More of a burden on government than rational basis test; here, court
has to think the purpose is important
o The means chosen to achieve the goal need to be more than a
reasonable way of attaining the end; the court must believe that law is substantially
related to achieving the goal
 It appears nowadays the government has the burden of proof
in cases of intermediate scrutiny
• e.g. of intermediate scrutiny application – gender
discrimination, regulation of commercial speech, discrimination of
undocumented alien children with regard to discrimination
• Strict scrutiny – a law will be upheld if “if it is necessary to achieve a
compelling government purpose”
o Court must regard the government’s purpose as vital (“compelling”)
o The law must be shown to be “necessary” as a means of accomplishing
the end
o Proof is required that the law is the least restrictive or least
discriminatory alternative
 Otherwise, it is not considered “necessary” to accomplish an
end
o Government has the burden of proof
 Laws generally are declared unconstitutional when strict
scrutiny is applied
• Used when the Court evaluates discrimination based
on race, national origin, gender and the marital status of one’s parents
(immutable characteristics, interference of fundamental rights, the
right to travel, right to privacy and interference with freedom of speech
• Post- Lochner SC took the position that economic regulations will be upheld as
long as they are rationally related to serve a legitimate purpose; the court would defer to the
legislature as long as their choices were reasonable
o The goal can be any purpose not prohibited by the constitution; as long
as the law is related to the objective in a rational way, it need not be narrowly tailored to
achieving the goal
o This happened because some conservative justices left the court;
Roosevelt appointees worked at repudiating Lochner era jurisprudence and deferring to
government economic regulations
• Williamson v. Lee Optical of Oklahoma, Inc. (1955)
o Oklahoma law held that opticians cannot fit or duplicate lenses without
prescriptions from an optometrist or ophthalmologist
o Suit is brought under the due process clause of the 14th amendment
o The court concluded that the law might be illogical and tedious
however it held that “the day is gone that it uses the due process clause of the 14th
amendments as an economic regulator”
o The court refuses to act as a legislature
 Says such issues are better addressed at the polls rather than
the courts
 It is the role of the legislature to balance the pros and cons of
regulations
• The court in an opinion by Justice Douglas stressed the need for judicial
deference to legislative choices and held that the law does not violate the due process
clause
 o It is probable that the Oklahoma law was motivated by a desire to
improve the businesses of optometrists and ophthalmologists and not by an
interest in improving health, but court held that as long as the Court can
conceive some legitimate purpose, as long as it is reasonable, a law will be
upheld
• Ferguson v. Skurpa (1963) – Extension of Williamson’s doctrine of deferrence
o Kansas statute made “debt adjusting” a misdemeanor unless done by a
lawyer
o Suit is brought arguing the statute is in violation of due process clause
o “The doctrine that holds that due process authorizes courts to hold laws
unconstitutional when they believe the legislature has acted unwisely has long been
discarded”
 The SC holds that the Kansas legislature was free to decide for
itself that legislation was needed to deal with the business of debt adjusting
 The court refuses to sit as a ‘superlegislature’ and says that
such concerns must be taken to the legislature
• Importance: Shows that the SC no longer interpreted the due process clause to
protect practice or profession, or freedom of contract
o Even though Kansas law worked to give lawyers a monopoly in debt
adjustments, the courts deferred to the legislature
* Griswold v. Connecticut (1965)
• Doctors found guilty of violating a statute that says contraception cannot be used
and anyone distributing contraceptives can be put in jail
• Issue: Does the Constitution allow for a right to privacy?
o Douglas uses the 1st, 3rd, 4th and 5th amendment to strike down the
Connecticut legislation… he refuses to decide the issue based on the 14th
amendment’s due process clause
 Argument: There are penumbras to each of the bill of rights
and these penumbras are the result of emanations from those guarantees that
help give them life and substance… various guarantees create zones of privacy
o However, the penumbral approach is ultimately a due process analysis
• Concurrence (Goldberg joined by Brennan and Warren) – 9th amendment
doesn’t establish any new rights but recognizes that there are rights other than those that have been
asserted in the Bill of Rights which lead to the right to privacy
• Concurrence (Harlan) believes that privacy should be protected under the due
process clause – because statute “violates basic values implicit in the concept of ordered liberty”
• Dissent (Stewart) – there is no right to privacy in the Constitution
• At the time it was argued that the statute wasn’t really enforced, you can walk
into a store and buy contraceptives
o The court have refused to hear the case because of a lack of a case and
controversy
o However because it was in the books, the SC decided to hear it and
strike down the statute
• Importance in Griswold (and Eisenstadt and Carey after that) is that the ability
to control procreation is constitutionally protected even though it is not mentioned specifically in
the Constitution and subject to the strictest scrutiny
Roe v. Wade (1973)
• Statute disallowed the right to abortion unless the life of the mother was in peril
• Issue: Does 14th amendment protect a woman’s right to abort?
• The Court said it does because the 14th amendment establishes a right to privacy
o The Roe decision is based in the right to privacy developed in Griswold however the
court here used the 14th due process clause rather than the penumbra of the Bill of Rights
 • The Court also holds that the right is not simply a right, but a fundamental right which requires
strict scrutiny
o Privacy must be balanced against the state’s interest in protecting “prenatal life”
• If it were an ordinary right in order to challenge the legislation on would have to show the
legislation is irrational and the challenger would have the burden of proof
• Because it is a fundamental right, the strict scrutiny standard puts the burden on the state to show
that the state has a compelling state interest and that the state has narrowly tailored its action to
fit that state interest
o The majority says that the state has not justified the state interest which violates a
woman’s right to privacy
• Majority – Fetus is not a person as described in the Constitution; “we need not resolve the
question as to when life begins”
o Also, splits pregnancy into 3 trimesters; 1st no right to regulate, 2nd ‘may affect abortion
procedures in ways reasonable related to maternal health, 3rd – no abortions
• In Roe there were only two dissenters
• Dissent: Rehnquist (p. 611) – “The fact that a majority of the States, … have had restrictions on
abortions for at least a century is a strong indication, it seems to me, that the asserted right to an
abortion is not “so rooted in the traditions and conscience of our people as to be ranked as
fundamental.”
Harris v. McRae – 1980 (no federal funding for abortions)
• McRae who was a Medicaid recipient sought an abortion
• She was enforcement of restriction of the Hyde amendment which basically did not allow
abortions to be funded with federal funds
• McRae argues that she was being denied equal protection
o Majority argued that ‘the constitutional right for an abortion, does not mean there is a
constitutional duty for the government to subsidize abortions”
• The 2 claims explored in detail
o 1) due process clause of the 5th amendment
o 2) there is also the state interest in protecting the health of the mother, established by Roe
v. Wade, which is being ignored here
Planned Parenthood v. Casey – 1992 (PA abortion case – changes standard for review)
• O’Connor wrote for the plurality
• She followed the precedent of Roe (stare decisis) for the recognition of the abortion right
• There was however a re-iteration of Roe v. Wade, but they were getting a reversal of two other
cases under the strict scrutiny standard
• Casey affirmed the basic abortion right in Roe v. Wade, but began giving a test that provided the
state more leeway as long as the plaintiff couldn’t show an undue burden
o Court also got rid of trimester distinctions in Roe… however it kept vitality standard –
before; no prohibition --- after; can prohibit except life of mother
• Casey wasn’t about “the right to privacy” that provided the abortion right, but the “right to
liberty”
• However, by substituting the undue burden test rather than the strict scrutiny test, there was a
watering down in the scope
o This is opposite the fact that there was a growing in scope based on the fact that the court
held that the right to liberty and not privacy that provided for abortion rights
o Undue burden – “if its purpose or effect is to place a substantial obstacle in the path of a
woman seeking an abortion before the fetus attains viability.”
 The law imposes an undue burden if it is “calculated to hinder”… and not if its
purpose is “to persuade the woman to choose childbirth over abortion”
• The fact that both sides disagreed with the decision in O’Connor, shows that she was seeking more
of a consensus in America
 • Concurrences in part (Stevens and Blacknum) would have upheld strict scrutiny standard and
trimester standard
• Dissents (Rehnquist) – Roe was wrongly decided and should be overruled consistent with stare
decisis
• Dissent (Scalia) Right to abortion should be overruled 1) Constitution says nothing about it 2)
long standing history have allowed it to be legally outlawed
Stenberg v. Carhart – 2000 (partial birth abortions)
• The majority says there is a compelling state interest in not allowing partial birth abortions
o Majority (Breyer) held it as an unconstitutional undue burden on a woman’s right to
abortion
 Statute was meant to disallow ‘dilation and extraction’ which involves removal
of a fetus before ending its life, but also ended up prohibiting ‘dilation and
evacuation’ because the physician would not know whether the fetus was still
alive, the law would prohibit this common abortion proceudre
 The statute lacked exceptions for the preservation of life of mother
 Made no distinction between previability and postviability
• O’Connor concurrence is interested in protecting the health of the mother and not only the life of
the mother
• O’Connor states that in Roe that health should be the issue, not only life
o O’Connor signaled she would be willing to uphold a narrower partial birth abortion
statute and thus sent a message to legislatures on how to draft legislation in order for it to
be upheld
• It was feared that O’Connor would be the vote that would get rid of Roe v. Wade
• However, when O’Connor moved to ‘undue burden’ O’Connor jumped on the side of pro-choice
• Dissent (Thomas): The supreme court’s decision makes it impossible for a state to constitutionally
prohibit a method of abortion that millions can’t distinguish from infanticide
Bowers v. Hardwick – 1986 (sodomy)
• Majority: No fundamental right to engage in homosexual behavior thus only rational basis review
was applied
o Right to privacy doesn’t cover homosexual acts either
 No connection between family, marriage or procreation on one hand and
homosexuality on the other has been demonstrate… the right to privacy was for
those purposes
• The court fails to use strict scrutiny in this case because no equal protection challenge was brought
• Here the scrutiny game gets a shift in approach by the majority of the court
• Critics argue that 1) this case wasn’t about the fundamental right to homosexual activity, but
whether there is constitutional protection of sexual intimacy in the home of consenting adults
because the sodomy statute dealt with both heterosexuals and homosexuals 2) rights in Bowers are
no different than any other right the court found as ‘fundamental’ such as abortion, contraceptives,
which again weren’t written into the constitution
Romer v. Evans – 1996 (Colorado statute against gays)
• Colorado statute – banned discrimination in many transactions (employment, education, housing)
afforded to persons discriminated against by reason of sexual orientation
• Majority (Kennedy): SC decides this is an improper amendment because it ‘homosexuals as a
class are put in a solitary class … the amendment withdraws from homosexuals, but no other,
specific legal protections from injuries caused by discrimination.”
o The SC used “rational basis test” but still found that the statute failed this standard
of review
• This case calls into question whether the court is ready to move away from its ruling in Bowers
• Dissent (Scalia) – scathing dissent, state has the right to discriminate against gays
 • Importance: First time the Court invalidated discrimination based on sexual orientation…
Although the court only used rational basis and not strict scrutiny (not fundamental right)… but at
least showed some willingness to protect gays and lesbians.
o Animus against gays even when presented from a moral perspective cannot be used to
pass “rational basis test”
Washington v. Glucksberg (1997)
• Does the 14th amendment allow for the right to commit suicide?
• Majority opinion written by Rehnquist says no… Washington law prohibiting assisted suicide
does not violate a fundamental right under the due process clause
o Thus the court applies ‘rational basis test’… law is upheld
o Majority looks at history and tradition to say that there is no right to suicide
• The Supreme Court doesn’t rule that there is no circumstance under which assisted suicide should
be allowed
• When there are circumstances of acute pain, it very well may be that a fundamental right exists to
allow to end one’s life
• This case is also an ode to legislative authority saying it’s a good thing that states are free to make
their choices when it comes to a frontier issue such as this one
• The Netherlands also comes into the opinion because it is the one country that dealt extensively
with an assisted suicide law
• However, the challenge in this particular case is rejected, but to say that this case rejects all
assisted suicide is an exaggeration
• The court discusses the Kuzan case
o The difference with the Kuzan case is that in that case the court held that the right to
refuse treatment is allowed
o The Court in Glucksberg is drawing the fine line between refusing treatment and assisting
suicide
o At the end of Rehnquist’s decision he states, “throughout the nation Americans are
engaged in an earnest debate about the morality of physician assisted suicide; our holding
permits this debate to continue as it should in a democratic society.”
Civil Rights Cases (1883)
• “State Action Doctrine” – The Constitution’s protections of individual liberties applies only to the
government… Private conduct doesn’t have to comply with the Constitution
• The question was whether the Civil Rights Act (which prohibited private race discrimination)
adopted after the 13th and 14th amendment was unconstitutional
• The majority holds that state action is required, individual invasion of individual rights is not the
subject-matter of the amendment
o “the wrongful act of an individual, unsupported by any such authority is simply a private
wrong, or a crime of the individual”
• Dissent (Harlan): both the 13th and the 14th amendments we passed to redress exactly these types
of problems
• IF you look at the majority position in the Civil Rights cases you get the idea that state action is
required; however Justice Bradley also referred to custom as state action
o Civil Rights cases continue to this date to resonate for the requirement of showing a state
action… “state action” is still required, however the concept of what constitutes state
action has changed as to encompass a number of actions which would not have been
considered ‘private’ under the rationale of the Court in the Civil Rights cases
o Exceptions – times when private action can be considered under the 14th
 1) private performance of a public function
 2)judicial enforcement of private agencies
 3) joint activity between a state and a private party
 4) state endorsement of private conduct
 5) A person acting on the behalf of the state (“color of state”)
• State action -- Warren Court (expansive), Burger and Rehnquist court (narrow)
 • Basic question – “Is the state sufficiently implicated in the challenged activity to warrant an
application of the 14th amendment?”
Korematsu v. U.S. (1944)
• The last case in which racial or ethnic classification survived strict scrutiny
• Held: Despite the suspect class involved, the court held that there was a compelling need to
prevent espionage and sabotage and there was no practical way for the military to distinguish the
loyal from the disloyal
o Issue of over-inclusion (which along with under-inclusion) today often means there is
discrimination
• Japanese American violated exclusion orders during WWII
• Rule (Black): All legal restrictions that curtail the civil rights of a single racial group are
immediately suspect and must be subjected to the most rigid scrutiny. In some cases, as there was
here, pressing public necessity can justify such classification-based exclusions

Yick Wo v. Hopkins
• The San Francisco statute is facially neutral
• However out of 200 Chinese applications, none of them received permits; Out of 80 white
applicants only one doesn’t get a permit
• Court rules, “though the law itself be fair on its face, and impartial in appearance, yet, if it applied
and administered by public authority with an evil eye and an unequal hand, so as practically to
make unjust and illegal discriminations between persons in similar circumstances, material to their
rights, the denial of equal justice is still within the prohibition of the constitution.”
• How can it be proven that a facially neutral law is motivated by a discriminatory purpose?
o 1) the impact of the law may be so clearly discriminatory as to allow no other explanation
that that it was adopted for impermissible purposes
o 2) the history surrounding the government’s action
o 3) the legislative or administrative history of a law
Plessy v. Furguson (1896)
• Upheld laws that mandated “separate but equal facilities”
• Plessy, 7/8th Caucasian refused to leave a railroad car designed for whites
• Majority held that the law was not in violation of the 14th amendment
o “fact that the plaintiff assumes separate but equal places a badge of inferiority on blacks
is not by reason of anything included in the act, but solely because the colored race
chooses that construction”
o The purpose of the 14th amend. was to enforce absolute equality between whites and
blacks, but not to enforce social (dist. from political) equality or the ‘commingling’ of
the 2 races.
• Lone Dissent by Harlan
o True purpose of stat is to exclude blacks from occupying cars for whites and thus
interferes w/personal freedom of citizens
o “Our Constitution is color blind and does not tolerate classes among citizens...”
Brown v. Board of Education (1954)
• Rejection of Separate But Equal doctrine
• Equal Protection Clause
o The Court does not specifically apply strict scrutiny test – court doesn’t look at
compelling state interest, or narrow tailoring
 Reason being the states never argued they had a legitimate, much less
compelling interest, instead they argued, the P’s failed to make a prima facie
case of discrimination
• Constitutionality of segregation cannot be resolved based on the Framers’ intent
• The court did not focus on the obvious inequalities between white and black schools, however the
Court said they must look at the effect of segregation itself on public education
 • Issue: Does segregation of children in public schools solely on the basis of race, even though the
physical facilities of other ‘tangible’ factors may be equal, deprive the children of the minority
group of equal education opportunities?
o Court decided that state-mandated segregation inherently stamps black children as
inferior
o “separate educational facilities are inherently unequal”
Bowling v. Sharpe (1954)
• P was denied admission to a white school in DC
• It was argued that the 14th amendment did not apply to DC
• Equal Protection and due Process are not always interchangeable
• Courts engaged in a reverse incorporation – the 14th amendment into the Bill of Rights
o 14th contains Equal Protection Clause
o The court says that Equal protection applies to the federal government through the due
process clause of the 5th amendment
 5th applies to federal government, 14th does not – in order to keep DC from
discriminating when the rest of the states can’t the Court interpreted the 5th as
including an implicit requirement for equal protection
In General: The Supreme Court has declared that “equal protection analysis in the 5th Amendment area is
the same as that under the 14th amendment.”
However technically, equal protection applies to the federal government through judicial
interpretation of the due process clause of the 5th Amendment and to state and local governments through
the 14th amendment.
UC Board of Regents v. Bakke (1978)
• UC Davis had a quota to fill -- a small group of seats was kept for minorities which had lower
standards for admission
• Bakke (a white student) sues for discrimination
• There are 2 opinions –
• Powell with the concurrences of 4 Justices (Brennan, White, Marshall, Blackmun)
o Race can be used as a consideration
o Intermediate scrutiny should be used for racial classifications benefiting minorities
• Powell (with Burger, Rehnquist, Stevens, Stewart )
o Quota itself is unconstitutional
o Didn’t discuss level of scrutiny
• Powell doesn’t spell out to what level race can be used in admission, only that it can be used to
some extent
o Powell argued that race distinctions of any sort are suspect and the highest level of
scrutiny should be used
• Vote was 5-4 that the set-aside (quota) is unconstitutional
• 5-4 that it is permissible to use race as a factor in admissions
o Powell wrote race can be used as a ‘plus’ admissions
• Some saw the decision in Bakke as only holding that the quota system was unconstitutional
• However, the Powell opinion has been cited in subsequent cases, thus giving cognition to the
ruling in Bakke
• Rehnquist, looking at US v. Virginia and some commerce cases, can make it possible for him to
switch sides
Palmore v. Sidoti (1984)
• Because a woman remarried African-American man, that justified having her child taken away
from her
o This is because the lower court wants to look after the best interest of the child, and says
racial tensions will be bad for the child
• The SC votes unanimously to allow the mother to keep the child