Constitutional Law Spring 1999

(SFPIF this was being forwarded around last year, Im not sure who made it, but it looks like it is for Koppelman)
Federalism - Vertical distribution of government power
A government of enumerated powers - Why does federalism matter?

Why reserve powers to states?

1.

Promotes efficiency

2.

Promotes individual choice

3.

Encourages experimentation

4.

Promotes democracy

5.

Prevents tyranny

Why unite into federations at all?

6.

Reduces threat of internal war

7.

Provides common defense, solves other collective action problems

(tariffs) as AC conspicuously failed to do.
8.
Facilitates activities in which there are economics of scale (defense,
research programs, highway system, redistribution)
9.

Promotes free flow of commerce (as AC failed to do)

10.

Regulates externalities that one state may impose on others.

11.

Protects individual human rights (14th Amendment No state can deny

any one equal protection of laws)

Why enumerated powers?

12.
At Philadelphia, Convention resolved that Congress could legislate in
all cases to which separate States are incompetent, or in which harmony of U.S. may be interrupted by
exercise of individual legislation.

13.

This was then translated by Committee of Detail into present Article I,

8 (enumerated powers).

14.

Is Article I, 8 an improvement from the resolution?

15.

Would functional definition of enumerated powers have been better

than enumeration of those powers?

16.

How much of a limit is the enumeration of powers? Was Hamilton

right (Federalist 84) that separation of powers is such a reliable limit that a Bill of Rights is
unnecessary and potentially pernicious (because it implies powers beyond those enumerated)?

Implied powers - McCulloch v. Maryland Bank of the U.S.

Marshall 1819. Held that (1) Congress has the power to charter a bank, even though that power is not
specifically enumerated in USC; (2) Maryland has no power to tax that bank.

Doctrine of Implied Powers. Although the federal government may act only where it is affirmatively authorized
to do so by USC, the authorization does not have to be explicit. That is, by the doctrine of implied powers,
the federal government (especially Congress) may validly exercise power that is ancillary to one of the powers
explicitly listed in the Constitution, so long as this ancillary power does not conflict with specific Constitutional
prohibitions (e.g. those of the Bill of Rights).

Necessary and proper clause. This notion of implied powers is itself explicitly stated in the necessary and
proper clause of Art. I, 8: Congress may make all Laws which shall be necessary and proper for carrying
into Execution the specific legislative powers granted by Art. I, 8, or by other parts of the USC. McCulloch
was the first case to make an important interpretation of necessary and proper.

Setting of McCulloch. Congress chartered the second Bank of the United States in 1816. The Bank was
designed to regulate the currency and help solve national economic problems. However, it soon encountered
substantial political opposition, mostly as the result of the Panic of 1818 and corruption within the various
branches of the Bank. As a result, a number of states enacted anti-Bank measures.

17.

The Maryland Act. One of these anti-Bank statutes, enacted by

Maryland, was at the center of the McCulloch dispute. Maryland imposed a tax upon all banks
operating in the state that were not chartered by the state. The measure was intended to discriminate
against the national bank, and its Maryland branch. The state then brought suit against the Bank and
its cashier (McCulloch) to collect the tax. SCt held the tax constitutionally invalid in McCulloch.

Structure of opinion. This opinion (one of most significant ever written by Marshall) had two main portions:
(1) a determination that the chartering of the Bank was within the constitutionally-vested power of the federal
government; and (2) a finding that since the Bank was constitutionally chartered, Marylands tax upon it was
unconstitutional.

Marshalls use of text and other modes of argument (AK). Marshall did not strictly rely on text for either part of
the decision. [the opinion here, like Hunters Lessee, was a lot more deferential to Congress than Marbury
was.]

18.

Congressional power. Marshall did not say what enumerated powers

the bank is necessary and proper for carrying out. Marshall started out with text, but then moved
quickly to considerations of political theory and prudence. To extent that Marshall relied on original
intent, he inferred it from these other considerations.
19.
State tax. There was no text prohibiting taxation of bank.
argument against the tax was purely structural.

The

Constitutionality of the Bank. In concluding that the Bank was constitutionally chartered, Marshall first
disposed of the Marylands argument that the powers of the national government were delegated to it by the
states, and that these powers must be exercised in subordination to the states. Marshall concluded that the
powers come directly from the people, not from the states qua states.

20.

Grant need not be explicit. Marshall then turned to the issue of whether
the constitutional grant of the particular power (here, the power to charger a bank or a corporation) was
required to be made explicitly in the USC. Marshall concluded that particular powers could be implied
from the explicit grant of other powers: A constitution, to contain an accurate detail of all the
subdivisions of which its great powers will admit, and of all the means by which they may be carried
into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the
human mind . . . . We must never forget that it is a constitution we are expounding.

(a) Corporation allowed. More specifically, Marshall found that Congress had the power to create a
corporation (in this case, the Bank), if this was incidental to the carrying out of one of the
constitutionally-enumerated powers, such as the power to raise revenue.

(b) Necessary and proper clause. Marshall relied upon the necessary and proper clause as a
justification for Congress right to create a bank or corporation even though such a power was not
specifically granted in the USC. In perhaps the most significant part of the opinion, Marshall
rejected the contention that necessary meant absolutely necessary or indispensable. Instead,
he stated that: let the end be legitimate, let it be within the scope of the constitution, and all
means which are appropriate, which are plainly adapted to that end, which are not prohibited, [and
which are consistent] with the letter and spirit of the constitution, are constitutional.

i. Summary. Thus, so long as the means is rationally related to a constitutionally-specified

object, the means is also constitutional (assuming that it does not violate any specific
prohibition, such as those from Bill of Rights).

21.

Support for conclusion. To support his liberal interpretation of

necessary and proper, Marshall pointed to a number of situations where Congress power to carry out
constitutionally-specified objectives had been liberally interpreted. For instance, USC does not contain
any specific grant of the power to punish the violation of federal laws, yet this power had always been
inferred. Similarly, the power to establish post offices and post roads had been substantially
expanded, to include the federal prohibition on mail theft. Yet these exercises of power could not be
termed indispensable to a carrying out of the constitutionally-specified ends.

22.

Separation of powers rationale. Marshall also based his opinion upon

separation-of-powers principles: An examination by the judicial branch into the degree of necessity
justifying a statute would be an invasion of Congress domain. Thus Marshall felt that SCt should
strike down a law as being beyond powers of Congress only where it was quite clear that no
constitutionally-specified object was being pursued; in any closer case, the final decision should be left
to Congress, not the courts.

Conclusion. Marshall thus concluded that the act chartering the national bank was valid, because it bore a
reasonable relationship to various constitutionally-enumerated powers of the government (e.g. the power to
collect taxes, to borrow money, to regulate commerce, etc.)

AK Critique:

23.

What is left of the idea of enumerated powers after this opinion? How
reliable safeguard is the pretext proviso (64): Should Congress . . . adopt measures which are
prohibited by USC; or should Congress, under pretext of executing its powers, pass laws for
accomplishment of objects not entrusted to government; it would become painful duty of this tribunal,
should a case requiring such decision come before it, to say that such an act was not the law of the
land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted
to the government, to undertake here to inquire tint the degree of its necessity, would be to pass the line
which circumscribes the judicial department, and to tread on legislative ground.

24.

Why does Marshall think it important (58) to deny that USC emanated

from sovereign states?

(1) In constitutional interpretation, the framers intent is irrelevant to the extent that the ratifying states
did not know about it. Ratifiers of the USC the only people with the authority to make it into
binding law had no idea what went on in the Philadelphia Convention, and could not reasonably
be said to have ratified a legislative history of which they were unaware.

Federal immunity from state taxation. The Bank of the United States was immune from a Maryland tax against
it. Marshalls argument against the tax was purely structural.
25.

No taxation without representation.

(a) USC structurally protects people from governmental abuse of powers by giving people control
over government.

(b) Tax is unconstitutional because citizens of other states (e.g. federal government) do not have
power to remove state legislature if tax becomes onerous.

26.

Sovereignty argument; federal supremacy:

(a) Federal government is supreme and cannot be controlled by subordinate sovereign institutions.
(b) USC, and federal government, derive authority not from states, but rather from people. It is true
that states have sovereignty, but people took some of that sovereignty away and vested it in federal
government.

(c) The power to tax is the power to destroy.

(d) If state taxation were permitted to destroy or harm the Bank, the federal governments exercise of
its powers under USC (especially the Necessary and Proper Spending Clauses) would be
thwarted.

(e) The federal USC must be preserved against such state interference.
27.
Why is Maryland still allowed to tax the banks real property in
common with the other real property within the State?

(a) Evidently, because the interests of Maryland citizens are reflected in any such common tax; there
are political safeguards here that make the legislative process more trustworthy than the one that
produced a bank-specific tax.

(b) This paragraph anticipated Elys representation-reinforcement theory, which we encounter

repeatedly throughout the class.

Commerce clause
Three regulated categories under commerce clause
CHANNELS

Congress can regulate the use of the channels of interstate commerce. Thus Congress can regulate in a way
that is reasonably related to highways, waterways, and air traffic. Presumably Congress can do so even though
the activity in question in the particular case is quite intrastate.

INSTRUMENTALITIES

Congress can regulate the instrumentalities of interstate commerce, even though the threat may come only
from intrastate activities. Lopez. This category refers to people, machines, and other things used in carrying
out commerce. So, for instance, presumably Congress could say that every truck must have a specific safety
device, even if the particular truck in question was made and used exclusively within a single state.

SUBSTANTIALLY

AFFECTING COMMERCE

The biggest (and most interesting) category is that Congress may regulate those activities having a substantial
effect on interstate commerce. Lopez. Key question: what does it mean to substantially affect interstate
commerce? Lopez cites 3 factors (unclear as to what weight is assigned to each factor)

Activity is commercial. If the activity itself is arguably commercial, then it doesnt seem to matter whether
the particular instance of the activity directly affects interstate commerce, as long as the instance is part of a
general class of activities that, collectively, substantially affect interstate commerce. Thus, in the Wickard v.
Filburn type of fact pattern Ds own wheat-growing activities are in a sense commercial, but they are
entirely intrastate; however, when taken together with all other wheat-growing we have a substantial effect on
interstate commerce Congress can regulate even the solely-intrastate events.

Activity is not commercial. But if the activity itself is not commercial, then there will apparently have to be a
pretty obvious connection between the activity and interstate commerce. (We know from Lopez that the link
must be more obvious than the link between guns-in-schools and commerce, anyway). This is probably the
main legacy of Lopez.

Congress must make findings on regulated activitys impact on the national economy. Little deference to
Congress in this regard. SCt wont give much deference (as it used to) to the fact that Congress believed that
the activity has the requisite substantial effect on interstate commerce. SCt will basically decide this issue for
itself, from scratch. It certainly will no longer be enough that Congress had a rational basis for believing that
the requisite effect existed the effect must in fact exist to the SCts own independent satisfaction.

Traditional domain of states. If whats being regulated is an activity the regulation of which has traditionally
been the domain of the state regulation, and as to which the states have expertise, the SCt is less likely to find
that Congress is acting within its Commerce power. Thus education, family law, and general criminal law are
areas where the SCt is likely to be especially suspicious of congressional interference.
28.
National solution. However, the fact that the activity has traditionally
fallen within the states domain can be outweighed by a showing that a national solution is needed.
This would be so, for instance, where one states choice heavily affects other states. Activities
affecting the environment are an example, since air and water pollution migrate across state
boundaries.

29.

Room for different solutions. Conversely, if its apparent that theres

room for a number of different state solutions with the best one able to attract different state
adherents over time the SCt is more likely to find the federal regulation invalid. (Thus, in Lopez, it
seemed to have been significant to majority that one states treatment of the guns in schools problem
did not interfere with any other states treatment.) This ties in with the commonly-expressed view that

the strength of federalism is its ability to have each state serve as a separate laboratory performing its
own experiments.
Pre New Deal
GIBBONS V. OGDEN NEW YORK

STEAMBOAT MONOPOLY

Marshall 1824. This was the first major case construing the Commerce Clause. Although the Gibbons opinion
contained some discussion of the Commerce Clause as a limitation upon state powers, its principal interest is for
its broad-sweeping view of congressional power under that clause. [Discussion of Congressional power here
arguably is all dictum.]

Facts: Ogden acquired, by a grant from the NY legislature, monopoly rights to operate steamboats between NY
and NJ. Gibbons began operating steamboats between NY and NJ, in violation of Ogdens monopoly; Gibbons
boats were licensed, however, under a federal statute. Ogden obtained an injunction in a NY court ordering
Gibbons to stop operating his boats in NY waters.

Holding: Marshall found the injunction against Gibbons invalid, on the ground that it was based upon a
monopoly that conflicted with a valid federal statute, and thus violated the Supremacy clause. [Koppelman: the
relevant federal statute licensing vessels in coasting trade is clearly constitutional, though it is not clear as to
whether it is preemptive. Marshall probably stretched federal statute to get it to conflict with state policy.]

Broad view of commerce power: In reaching this conclusion, Marshall took a broad view of Congress powers
under the Commerce Clause. Under that clause, Congress could legislate with respect to all commerce which
concerns more States than one. Commerce included not only buying and selling, but all commercial
intercourse.

30.

May affect intrastate matters. Ogden apparently argued that insofar as

his NY-granted monopoly affected his rights in NY waters, this monopoly was superior to any federal
rights regarding those NY waters. But Marshall answered that the congressional power to regulate
interstate commerce included the ability to affect matters occurring within a state, so long as the
activity had some commercial connection with another state. Thus federal law could affect NY waters,
if voyages beginning in NY ended in NJ. [But Marshall conceded that the completely internal
commerce of a State may be considered as reserved for the State itself. (Koppelman: but even in
1824, there is almost no commerce that does not affect other states.)]

31.

May be used to utmost extent: In the most important portion of his

opinion, Marshall stated that no area of interstate commerce is reserved for state control. That is, the
mere existence of the states does not by itself act as a limit upon Congress power to govern
commercial matters that affect more than one state: This power, like all others vested in Congress, is
complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than
are prescribed in the USC.

i. 10th Amendment no bar: Thus Marshall implicitly rejected the argument that the 10th
Amendment (which provides that the powers not delegated to the U.S. by USC, nor prohibited by
it to the States, are reserved to the States respectively.) acts as an independent limit on Congress
power to regulate interstate commerce.

Koppelman critique.

32.

Marshall attempted to draw bright line category, but he did not do so

coherently both sides of debate use Gibbons to support their arguments.

33.

Marshall indicated that there were limits in CC, but future courts must
decide exactly what those limits are.

Interlude. From Gibbons until late 19th century, SCt had practically no occasion to consider Congress powers
under the Commerce Clause. There were many years during which Commerce Clause was not used
expansively. Slavery controversy limited possibilities for federal law because it was dangerous to suggest that
Congress could prohibit interstate shipment of slaves. It was not until enactment of the Interstate Commerce
Act (1887) [could penalize RRs for unjust charges] and the Sherman Antitrust Act (1890) that Congress powers
under the Commerce Clause were again seriously scrutinized by the SCt. When this scrutiny did occur, the
result was much more hostile to congressional power than it was in the Marshall Gibbons approach.

UNITED STATES V. E.C. KNIGHT - MANUFACTURE

VS. COMMERCE

SUGAR

MONOPOLY

Fuller 1895. Federal government sued under the Sherman Antitrust Act to force a major sugar refiner (which
controlled 98% of sugar refining market) to divest itself of other refiners that it had recently acquired.

Holding: The SCt held that Congress could not, under the Commerce Clause, forbid a monopoly in
manufacture. The refinery was a manufacturing operation, and was therefore left to state control. A
monopoly on manufacturing was not subject to the Sherman Act. The fact that the refined sugar was eventually
sold in commerce was irrelevant, since the manufacturing operations relation to commerce was only
incidental and indirect. What was required was a direct logical relationship with Commerce.

Rationale. SCts rationale for its holding was the protection of states rights to regulate local activities. The
majority opinion contended that if the federal commerce power extended to all contracts and combinations in
manufacture, agriculture, mining and other productive industries, whose ultimate result may affect external
commerce, comparatively little of business operations and affairs would be left for state control. Thus, while a
monopoly may certainly affects interstate commerce, SCt held that the line must be drawn somewhere.

Role of Congressional intent. Intent seemed to play role in Fullers decision, but not clear exactly what role.
(derived from McCulloch v. Maryland stipulation)

Dissent - Harlan. Federal government should have power to regulate any subject that states could not
competently regulate. This vision would not eliminate concept of enumerated powers because SC has power to
decide whether powers exerted by Congress are constitutional.

SUBSTANTIAL

ECONOMIC EFFECTS AND STREAM OF COMMERCE

Other cases not long after Knight, without repudiating that case, followed an approach that was more hospitable
to congressional power. In these cases, congressional regulation was found to fall within the commerce power
so long as the activities being regulated had a substantial economic effect upon interstate commerce. That is,
these cases did not focus on whether the logical relationship between the activity and commerce was direct or
indirect, but rather, looked at whether the practical economic effects of the activity upon interstate commerce
were quantitatively substantial.

The Shreveport Rate Cases Substantial economic effects Railroad rates

Houston, East & West Texas Railway v. U.S. Hughes 1914. Best known example of the substantial economic
effect approach.

Facts. Interstate Commerce Commission, after setting rates for transport of goods between Shreveport,
Louisiana and various points in Texas, sought to prevent railroads from setting rates for hauls totally within
Texas which were less per mile than the Texas-to-Shreveport rates. The Commissions theory was that
Shreveport competed with certain Texas cities for shipments from other parts of Texas, and that the lower Texas
intrastate rates were unfairly discriminating against the Texas-to-Shreveport interstate traffic. The railroads
countered that it was beyond Congress power to control intrastate rates of an interstate carrier.

Commission upheld. SCt rejected the railroads challenge, and upheld the ICCs right to regulate intrastate
charges, at least of interstate carriers. The opinion held that the commerce power necessarily included the right
to regulate all matters having such a close and substantial relation to interstate traffic that control is essential or
appropriate to the security of that traffic. The fact that the activity being regulated was intrastate did not place
it beyond congressional control, since the ultimate object was protection of interstate commerce.

Koppelman. It makes difference that this is a RR case.

Stafford v. Wallace - Stream of commerce

Taft 1922. Test is whether issue at hand involves stream of commerce; Congress can regulate throat through
which current flows.

Chicago stockyards fall within stream of commerce. Reasoning here was driven by realism. Felt necessity
drives development of CC (as it does in other constitutional doctrines).

Problem with functional test seems to blur judicial/legislative decision-making. Functionalism/realism allows
SC to make up law, contrary to JR.

POLICE

POWER

Police power regulations and the commerce-prohibiting technique. In E.C. Knight, Congress attempted to
regulate local activities directly (e.g. sugar refinery monopoly). But Congress also developed a separate
technique; instead of regulating intrastate activities directly, Congress used the technique of prohibiting
interstate transport of certain items or persons. This commerce-prohibiting technique was used not only for
pure economic regulatory matters, but also for police power or moral regulation. During first two decades
of 20th century, SCt was substantially more sympathetic to this commerce-prohibiting/police power technique
than to direct regulation of intrastate affairs.

Champion v. Ames - The Lottery Case

Harlan 1903. Facts. Congress passed the Federal Lottery Act, which prohibited the interstate shipment of
lottery tickets.

Holding. SCt upheld this statute, thereby allowing Congress to prohibit shipment of immoral objects in
interstate commerce. Majority opinion began on the assumption that lotteries were clearly an evil which it
was desirable for Congress to regulate; since Congress regulated only the interstate shipment of these evil
articles, it could not be said to be interfering with intrastate matters reserved for state control. Harlan argued
that prohibition is a subset of regulation.

Koppelman. Is promotion of morality an appropriate goal of federal government, of state government?

Dissent. Contended that only commerce itself could be regulated, and that lottery tickets were not articles of
commerce. This holding leads to a slippery slope to regulation of anything (e.g. Child Labor Act)

Hammer v. Dagenhart - Child labor

Day 1918. SCt was relatively hostile to congressional interference with the employer-employee relationship.

Holding. By 5-4 vote, SCt struck down a federal statute which prohibited the interstate transport of articles
produced by companies which employed children younger than certain ages or under certain conditions.

Rationale. Power to regulate commerce does not mean power to stop commerce from moving. Congress
power to prohibit exists only if goods are not ordinary commodities. Majority distinguished this statute from
other police power/commerce-prohibiting statutes which the SCt upheld; in those cases, the SCt argued, the
interstate transportation being prohibited was part of the very evil sought to be prohibited (e.g. the prohibition
on the interstate shipment of lottery tickets, where the tickets themselves were viewed as evil.) Here, by
contrast, the goods shipped in interstate commerce were themselves harmless; it was only the employment of
child labor which was an evil, and this employment was not directly related to interstate commerce.
34.
Powers reserved to states. The majority reasoned further that if a
prohibition on interstate commerce were permitted in this situation, all manufacturing intended for
interstate shipment would be brought under federal control, encroaching unconstitutionally on the
authority of the states.

Holmes dissent. But it was the classic dissent by Holmes that in the long run became the more significant
opinion in Hammer. Holmes argued that so long as the congressional regulation falls within power specifically
given to the Congress (here, the power to regulate interstate commerce), the fact that it has a collateral effect
upon local activities otherwise left to state control does not render the statute unconstitutional.

35.

10th Amendment of no force. Thus Holmes dissent implicitly rejected

the 10th Amendment as a source of limitations on federal authority so long as congressional action
technically comes within a constitutionally-enumerated power, it is valid no matter how substantially it
impairs the states ability to regulate what would otherwise be local affairs. This highly restrictive
view of the 10th Amendment became the majority view beginning 1937 and has endured to the
present.

Koppelman.

36.

Given Lottery Case, this case probably is pretext decision following

McCulloch dictum. Congress was really trying to regulate intrastate transaction that had nothing to do
with commerce.

(1) C/A. Child labor poses disadvantages economically to other states. Majority responded USC
wanted to foster competition among states.

37.

Critique of cases reasoning. SC seems to be arrogating to itself power

to say what goods are or are not in themselves harmless. Child labor has not traditionally been
regarded as regulable in way that lotteries were.

(1) C/A. SC needed to establish lines to prevent Congress from exerting police power.
SUMMARY

OF PRE-NEW

DEAL

LAW ON COMMERCE CLAUSE

Congress can only regulate

38.
traditionally state concerns).

Commerce, not manufacturing, production, or agriculture (which are

39.
interstate commerce.

Intrastate activities that directly, and not merely indirectly, affect

40.
Intrastate transactions that are in stream of commerce, not those that
precede or follow that stream.

41.

For purposes that actually carry out enumerated powers, not as a

pretext for ends not assigned to Congress (McCulloch v. Maryland)

42.
altogether.

Regulation did not include power to bar innocent items from commerce

The New Deal Crisis and the Rise of the Welfare State

Great Depression
43.

1929-1933: real output fell by 29%

44.

Unemployment (1929: 3.2% 1933: 21-25%)

45.

S&P (1929: 26.02 1932: 6.93)

The New Deal threatened. Initially, SC refused to uphold congressional action. When Congress and FDR
began implementing New Deal in 1933, SCts view of congressional power under the Commerce Clause stood
in an ambiguous state. The commerce-prohibiting technique was of doubtful validity, in view of Hammer v.
Dagenhart. The validity of the effect upon commerce rationale was unclear: the Shreveport Rate Case
indicated that intrastate activity having a substantial practical effect on interstate commerce could be regulated;
but the Knight case suggested that there must be a direct and logical relationship between the intrastate
activity being regulated and interstate commerce. Within a few years, it became apparent that the Knight
rationale would carry the SCt., and that a majority of the SCt would strike down congressional regulation of any
area which the majority felt was reserved by the 10th Amendment to state control.

SCHECHTER POULTRY CORP. V. UNITED STATES

Hughes 1935. At issue was the validity of the National Industrial Recovery Act (NIRA). The NIRA authorized
the President to adopt codes of air competition for various trades or industries; the codes regulated such items
as minimum wages and prices, maximum hours, collective bargaining, etc.

Facts. This case involved the conviction of Schechter Poultry Corp. on charges of violating the wage and hour
provisions of the NY Metropolitan Area Live Poultry Industry Fair Competition Code. Although the vast
majority of poultry sold in NY came from other states, Schechter itself bought within NY City, and resold its
stock exclusively to local dealers. The government argued hat Schechters conduct could constitutionally be
reached under the Commerce Clause, on the alternative theories that: (1) Schechters activities were within the
stream of commerce of the chicken trade (rationale of Stafford v. Wallace; and (2) Schechters activities,
though themselves completely local, substantially affected commerce (the rationale of the Shreveport Rate
Case).

Act held unconstitutional. SCt unanimously rejected both of the governments arguments, and held the NIRA
unconstitutional as applied to Schechter.

46.

Not in current of commerce. Schecters activities were not within the

current or stream of commerce, because the interstate transactions ended when the shipments
reached Schecters NY City slaughter-houses (unlike the cattle in Stafford, which were ultimately
reshipped out of state after being slaughtered).

47.

Not affecting commerce (established direct/indirect effects

distinction). Nor was the affecting commerce rationale applicable; what was required was a direct,
not indirect, effect on commerce. Although Schechters wage and price policies might have forced
interstate competitors to lower their own prices, this impact was much too indirect to allow for
Congressional control if wage policies of an intrastate enterprise were deemed to have a sufficiently
direct impact upon interstate competitors, so would all other cost components of the intrastate
enterprise, so that no facet of intrastate enterprises would be beyond congressional control, or left for
state control. Hughes argued that extraordinary conditions do not enlarge constitutional power. Even
Cardozo (Palsgraf), who was more prepared than majority to use balancing test, concurred, arguing
degree of causation was too weak here.

10

CARTER V. CARTER COAL CO.

Sutherland 1936. Much more significant blow to New Deal.

Facts. This case involved a challenge to the Bituminous Coal Conservation Act of 1935, which set maximum
hours and minimum wages for workers in coal mines.

Held unconstitutional. The Act was found not to be a valid use of the commerce power. The SCt returned to
the distinction (espoused in Knight) between production and commerce. Production, which was what was
being regulated here, was a purely local activity, even though the materials produced would nearly all
ultimately be sold in interstate commerce. Nor did the production directly affect interstate commerce; the
issue was not the extent of the effect produced on interstate commerce, but the existence or non-existence of a
direct logical relation between the production and the interstate commerce.
48.
Local evil. Furthermore, the SCt held, the issue was the link between
the employer-employee relationship (the precise matter being regulated) and interstate commerce; it
could not be said that this relationship had a sufficiently direct effect upon interstate commerce. Also,
the employer-employee relationship was a local relation, and whatever evils currently characterized
that relationship in the coal industries were all local evils over which the federal government had no
legislative control.

Dissent - Cardozo. The majority opinion did not give separate consideration to the validity of other aspects of
the Act, such as the setting of minimum and maximum prices on coal sales. Majority viewed these price rules
and wage-hour rules as being inescapably intertwined, so that the invalidity of the latter made the entire Act
invalid. But Cardozos dissent contended that (1) regulating wages may be necessary to protect interstate
commerce, and (2) at least the price rules were valid, even as applied to intrastate sales. He argued that the
prices for intrastate coal sales had such a direct impact on those for interstate sales that regulation of the latter
could not be successfully carried out without regulation of the former. Hughes agreed in separate opinion that
price regulations were valid, but argued that labor provisions were severable.

Modern Trend

Modern trend in SCts Commerce Clause analysis began in 1937 decision NLRB v. Jones & Laughlin Steel
Corp. Beginning with that case, SCt showed vastly greater willingness to defer to legislative decisions. Under
present doctrines, SCt will uphold commerce-based laws if SCt is convinced that the activity being regulated
substantially affects interstate commerce. In fact, in only one case since 1937 has SCt found that Congress
went beyond its Commerce Clause powers (Lopez). SCt expanded reach of Commerce power by recognizing
three theories upon which a commerce-based regulation may be premised: (1) an expanded substantial
economic effect theory; (2) a cumulative effect theory; and (3) an expanded commerce-prohibiting
protective technique.

NLRB V. JONES & LAUGHLIN STEEL CORP. - EXPANDED SUBSTANTIAL

ECONOMIC EFFECT

Hughes 1937. In pre-1937 cases, SCt had insisted upon a direct and logical relationship between the
intrastate activity being regulated and interstate commerce. However, beginning in NLRB v. Jones, the SCt
substantially relaxed the nexus required between intrastate activity being regulated and interstate commerce.

Facts. This case tested the constitutionality of the National Labor Relations Act of 1935 (NLRA). The case
involved the NLRBs attempt to prevent Jones & Laughlin (a large integrated steel producer) from engaging in
unfair labor practices by the discriminatory firing of employees for union activity.

NLRA upheld. Majority held that NLRA, as applied to Jones & Laughlin, lay within the commerce power. The
SCt noted that while Jones & Laughlin manufactured iron and steel only in Pennsylvania, it owned mines in two
other states, operated steamships on the Great Lakes, held warehouses in four states, and sent 75% of its product
out of Pennsylvania.

49.

Conclusion. Because of this multi-state network of operations, the SCt

concluded, a labor stoppage of the Pennsylvania intrastate manufacturing operations would have a

11

substantial effect on interstate commerce. Therefore, labor relations at the Pennsylvania plants could
constitutionally be regulated by Congress. [this was essentially Cardozos dissent in Carter]
50.
Current of commerce rationale not needed: SCt expressly declined to
rely on the current of commerce theory. SCt indicated that current of commerce cases were
merely particular, not exclusive, illustrations of the commerce power.

51.

10th Amendment rejected as limitation. SCt also rejected the

manufacture vs. commerce distinction (previously made in Knight). SCt implied, though it did not
expressly state, that the 10th Amendment would no longer act as an independent limitation on federal
commerce-clause powers.

Koppelman. SCt did not abandon doctrinal notion that CC imposed limits, but argued that industrial-labor
relations have such a close and substantial relation to interstate commerce that their control is essential or
appropriate to protect that commerce from burdens and obstructions.

This case was decided two weeks after West Coast Hotel v. Parrish (and two months after FDR announced
court-packing plan), reversing itself and upholding minimum wage laws.

Good confusion. How broad is Congressional power? Was it labor industrial relations generally, or steel
industry in particular, that prompted decision?

WICKARD V. FILBURN - THE CUMULATIVE

EFFECT THEORY

Jackson 1942. This theory provides that Congress may regulate not only acts which taken alone would have a
substantial economic effect on interstate commerce, but also an entire class of acts, if the class has a substantial
economic effect (even though one act within it might have virtually no interstate impact at all). As a result of
this cumulative effect principle, it is not only the type of regulation sustained in Jones & Laughlin (regulation
of a large steel producer, where that producers labor problems would by themselves have a substantial effect on
interstate commerce) which may be regulated. Wickard is the furthest the SCt has gone in sustaining
Commerce-Clause powers, at least in the economic, as opposed to police power, area.

Facts. This case involved the Agricultural Adjustment Act of 1938, which permitted the Secretary of
Agriculture to set quotas for the raising of wheat on every farm in the country. The Act allowed not only the
setting of quotas on wheat that would be sold interstate and intrastate, but also quotas on wheat which would be
consumed on the very farm where it was raised. Wheat raised in excess of the quota was subject to a per-bushel
penalty.
52.
Home consumption. Filburn (P) owned a small farm in Ohio. He
challenged the governments right to set a quota on the wheat which he raised and consumed on his
own farm, on the grounds that this was a purely local activity beyond the scope of federal control.

Statute upheld. But a unanimous (SCt (whose composition had changed radically since days of Carter Coal
case just six year before) upheld the Act, even as it applied to home-consume wheat. SCt reasoned as follows:
53.
distinctions.

SCt abandoned here both commerce/manufacturing and direct/indirect

54.
Consumption has market effect: First, the consumption of home-grown
wheat is a large and variable factor in the economics of the wheat market. The more wheat that is
consumed on the farm where it is grown, the less wheat that is bought in commerce (e.g. from other
farmers), whether interstate or not.
55.
Cumulative effect: SCt argued that class of similarly situated people
of which Filburn was part has substantial aggregate effect on price of wheat and interstate commerce.
Ps own effect on the market, by his decision to consume wheat grown himself, might be trivial. But
this decision, taken together with that of many others similarly situated, is far from trivial. That is,
homegrown wheat supplies a need of the man who grew it which would otherwise be reflected by
purchases in the open market, and the home-grown wheat thus completes with wheat in commerce.

12

Protection of the interstate commercial trade in what clearly falls within the commerce power, and the
regulation of home-grown wheat is reasonably related to protecting that commerce.

Koppelman.

56.

SC consciously abdicated and gave Congress power to regulate

anything it wanted to under CC, at least until Lopez. If this was allowable, then what isnt?

57.

Jackson had been FDRs attorney general and solicitor general.

58.

Marshall likely would not have supported this opinion.

UNITED STATES V. DARBY -

POLICE POWER REGULATIONS

- MINIMUM

WAGE

Stone 1941. Apart from the affecting commerce line of

(ambiguously) with Congress right to use prohibitions on the
furtherance of police power or general welfare regulations.
affecting commerce principle, was substantially broadened
Hammer.

Minimum wage regulations upheld. SCt unanimously upheld the Fair Labor Standards Act of 1938, which set
minimum wages and maximum hours for employees engaged in the production of goods for interstate
commerce. The Act not only prohibited the shipment in interstate commerce of goods made by employees
employed for more than the maximum hours or not paid the prevailing rates, but it also made it a federal crime
to employ workmen in the production of goods for interstate commerce at other than the prescribed rates and
hours.

Direct ban upheld. SCt first upheld the direct ban on interstate shipments; it disposed of the argument that
manufacturing conditions are left for exclusive state control, by stating that the power of Congress over
interstate commerce [can] neither be enlarged nor diminished by the exercise or non-exercise of state power.
The 10th Amendment states but a truism that all is retained which has not been surrendered.

cases, another pre-1933 line of cases dealt

interstate transportation of items or people in
This commerce-prohibiting technique, like the
shortly after 1937. Darby flatly overruled

59.

10th Amendment irrelevant: Thus, the 10th Amendment will no

longer act as an independent limitation on congressional authority over interstate commerce. As the
result of Darby, Congress is completely free to impose whatever conditions it wishes upon the
privilege of engaging in an activity that substantially affects interstate commerce, so long as the
conditions themselves violate no independent constitutional prohibition.

Motive irrelevant. SCt also disavowed any interest in Congress motive: The motive and purpose of a
regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the USC
places no restriction and over which the courts are given no control.

60.

Present rule. The irrelevance of motive remains a feature of the

Commerce Clause, and most other sorts of constitutional analysis. (But motive may be relevant where
a preferred right, such as the right of free expression or freedom from racial discrimination, is
concerned).

Reasonable means to achieve end. Finally, SCt upheld the portion of the Act making it a crime to employ
workers engaged in interstate commerce in violation of the wage/hour provisions.
61.
Rationale. Given Congress right to impose direct prohibitions or
conditions on interstate commerce, Congress may choose the means reasonably adapted to the
attainment of the permitted end, even though they involve control of intrastate activities. Thus, the
outright criminalization of employer conduct was a reasonable means of implementing the ban on
interstate transactions.

62.

Bootstrap. This portion of the Darby opinion has been referred to as

the super-bootstrap suggestion. If it is taken seriously, it means that Congress may attack any
problem (even one of overwhelmingly local concern) by prohibiting all interstate activity associated in

13

any way with it; then, the local activity itself could be prohibited as a means of implementing the ban
on interstate transactions. Realize that Lopez limits the extent to which Darbys holding here can be
utilized by Congress.
Civil rights cases and the commerce clause
HEART

OF

ATLANTA MOTEL V. UNITED STATES LOCAL

INCIDENT OF INTERSTATE COMMERCE

Clark 1964. Congress can regulate the local incidents of interstate commerce.

Facts. P was a motel located in downtown Atlanta, which refused to rent rooms to blacks.

Contacts with interstate travel. The motel was near two interstate highways, derived 75% of its occupancy from
out-of-state guests and solicited business in national media.

Holding. SCt held that the motel could constitutionally be reached by the Civil Rights Act, under the
Commerce Clause. SCt took note of Congress findings that racial discrimination discouraged travel on the part
of a substantial portion of the black community, and that such discrimination discouraged travel on the part of a
substantial portion of the black community, and that such discrimination could therefore be regulated by
Congress in the aggregate. Furthermore, SCt held, the power of Congress to promote interstate commerce also
includes the power to regulate the local incidents thereof, including local activities in both the States of origin
and destination, which might have a substantial and harmful effect upon that commerce.

Police powers motive acceptable. Nor was the SCt troubled by the fact that Congress motive for this
legislation was not purely economic, but rather, principally moral and social.

KATZENBACH V. MCCLUNG OLLIES BBQ

Clark 1964. Demonstrates even more clearly SCts approval of the use of the Commerce Clause to reach what
seemed to be overwhelmingly local activities.

Facts. This case involved a Birmingham, Alabama restaurant called Ollies Barbecue. The restaurant was
relatively far from any interstate highway or train or bus station, and there was no evidence that any appreciable
part of its business was in serving out of state travelers. However, 46% of the food purchased by the restaurant
during the previous year had been bought from a supplier who had bought it from out of state. (Recall that the
Civil Rights Act applies to any restaurant a substantial portion of whose food has moved in commerce).

Application of Act upheld. SCt upheld the Act as applied to the restaurant. As in Heart of Atlanta case, SCt
observed that unavailability of accommodations dissuaded blacks from traveling in interstate commerce. The
SCt returned to the Wickard v. Filburn rationale. Even though Ollies itself was small, and the value of food it
purchased from out of state had only an insignificant effect on commerce, the restaurants discriminatory
conduct was representative of a great deal of similar conduct throughout the country, and this conduct in the
aggregate clearly had an effect on interstate commerce. Therefore, Congress was entitled to regulate the
individual case.

Deference to Congress findings. Nor did the fact that the bill contained no congressional findings about the
impact of restaurant discrimination on commerce render the Act unconstitutional. The SCt would not scrutinize
the facts to make a de novo determination of whether restaurant discrimination affected commerce. Rather,
where we find that the legislators, in light of the facts and testimony before them, have a rational basis for
finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.
Such a rational basis was present here.

Koppelman:

63.

Unclear as to which factor determined SCts holding that Title II of

1964 Civil Rights Act applied to family-owned restaurant which was close to interstate highway and
which bought meat from supplier who purchased it out of state. [eh? Doesnt opinion make it clear

14

that racial discrimination is the factor?]: (1) Where Ollies Barbecue purchased its supplies; or (2) who
its customers are.

64.

This case was a stretch; these cases should be under 13th, 14th
amendments, rather than stretching CC. SC used CC because of favorable precedents (e.g. Wickard)
whereas Civil War precedents were bad.
65.
EFFECT

OF

This case implies absolutely limitless Commerce power.

LOPEZ

Its not clear whether Lopez would change the result in either Heart of Atlanta or Katzenbach. Katzenbach
seems to be the more constitutionally suspect of the two, in light of Lopez.

If the governments belief that businesses wont locate in areas with poor schooling (including schooling marred
by gunfire) wasnt enough of a connection to interstate commerce in Lopez, it may well be that Congress belief
that discrimination in accommodations dissuades blacks from traveling interstate wouldnt be enough either, if
todays SCt were revisiting Katzenbach.

On the other hand, the core activity being regulated in Katzenbach the furnishing of restaurant meals is
clearly commercial in a way that possessing a gun in a school is not.

On balance, Katzenbach would probably be decided the same way today, because of the more obviously
commercial nature of the activity being regulated.

Judicial abdication during New Deal

Justice Jackson (Wickard) We have returned to Marshalls original understanding of CC as broad enough to
reach any activity that, together with other activities similarly situated, has substantial economic effect on
interstate commerce.

66.

C/A.

Marshall

never

contemplated

anything

like

modern

administrative state.

Professor Bruce Ackerman USC was effectively amended during New Deal, giving Congress what amounts to
general police power.

67.

It would be strange to think that SC, at point in American history, got

con law wrong for decades at a time; only Ackermans theory avoids this implication.

68.

Every judge except Thomas accepts that Congress has a lot more power
than it did before New Deal, and that its power over national economy is plenary.
69.
C/A. There was no formal Article 5 Amendment in 1930s.
arguably, 1936 election accomplished Article 5s requirement of consent by supermajority.

But

Professor Lawrence Lessig Background culture has changed, making preexisting doctrinal categories look less
persuasive than they previously had, but basic idea of federalism remains part of USC.
70.
C/A. It is not clear that background cultural assumptions have changed
so much that SCs reversal of course was compelled. Abdications as well as assumptions of authority
need principled justification.

Justice Thomas (Lopez) New Deal was unwarranted abdication of judicial responsibility; preexisting case law
should not have been overruled, and its categories should be reintroduced into constitutional doctrine. C/A:
71.

Odd to think that SC got con law wrong for 50 years.

72.
Even if SC did get con law wrong, returning to old categories would
dismantle much of federal government as we know it, with unpredictable consequences.

15

73.

Lack of compatibility between 18th century political theory and modern

necessities is not sufficient for Court now to throw country into constitutional crisis. This is why no
one else joins Thomas's opinion.
United States v. Lopez Latest word Guns and schools do mix

Rehnquist 1995. SCt for the first time in 60 years invalidated a federal statute on the grounds that it was beyond
the Congress Commerce power. Statute struck down. By 5-4 vote, SCt struck down the statute.

Gun Free Schools. The statute was the Gun-Free School Zones Act of 1990, in which Congress made it a
federal crime for any individual knowingly to possess a firearm at a place that the individual knows, or has
reasonable cause to believe, is a school zone.

Little connection to commerce. The statute clearly had less explicit connection to interstate commerce than
most federal statutes premised on the Commerce power. For instance:
74.
No findings. The statute did not include any explicit findings by
Congress that the activity being regulated (possession of guns in schools) affected commerce.
75.
No jurisdictional nexus. Moreover, the statute did not include a
jurisdictional nexus. For instance, Congress could have made it a crime only to possess a gun that
had moved in (or otherwise affected) interstate commerce. [e.g. 1964 Civil, Rights Act regulates
restaurants that buy food a substantial part of which has moved in interstate commerce.] But here,
Congress banned even possession of a gun that had never traveled in, or even affected, interstate
commerce.

Substantial effect required on Commerce. The majority opinion first resolved a prior uncertainty, by holding
that it is not enough that the activity being regulated merely affects interstate commerce. Instead, the activity
must substantially affect interstate commerce.

Requisite effect not present. Then, the majority concluded that the possession of guns in schools had not been
demonstrated to substantially affect commerce.

76.

Not commercial. Majority seemed to think that it was important that

the particular activity being regulated possession of guns in schools was not itself a commercial
activity. The majority distinguished Wickard (which it called perhaps the most far reaching example
of Commerce Clause authority over intrastate activity) from the activity at issue here, saying that
Wickard involved economic activity in a way that the possession of a gun in an school zone does not.
Also, unlike the wheat-growing regulation in Wickard, the regulation here was not part of a larger
regulation of economic activity, in which the regulatory scheme could be undercut unless the intra-state
activity were regulated.
77.
Governments argument. The federal government, in defending the
statute, had argued that gun possession in schools does have a substantial effect on commerce. The
government asserted the following syllogism: (1) the possession of a firearm in a school may result in
violent crime; and (2) violent crime affects the functioning of the national economy in several ways
(e.g. (a) the costs of crime are insured against, and thus spread across state lines because of the
interstate nature of the insurance market, (b) violent crime reduces individuals willingness to travel to
areas of the country they believe are unsafe, and (c) violent crime in schools reduces the schools
ability to educate their students, who thus become less economically-productive.
78.
Argument rejected. But majority rejected this argument, essentially
because it proved too much. For instance, under the economic productivity argument, Congress
could regulate any activity that it found was related to the economic productivity of individual citizens:
family law (including marriage, divorce, and child custody), for example. In general, under the
governments approach, It is difficult to perceive any limitation on federal power, even in areas such
as criminal law enforcement or education where States historically have been sovereign. Thus, if we
were to accept the Governments arguments, we are hard-pressed to posit any activity that Congress is
without power to regulate.

16

79.
Parade of horribles. Majority went on to describe some of the types of
federal regulation that would fall within the Commerce power, if the governments approach were
accepted: Congress could mandate a federal curriculum for local and elementary schools because
what is taught in local schools has a significant effect on classroom learning, and that, in turn, has a
substantial effect on interstate commerce. Similarly, Congress could . . . look at child rearing as
falling on the commercial side of the line, because it provides a valuable service namely, to equip
children with the skills they need to survive in the workplace. Such results would make the
Commerce power limitless.

80.

Summary. To uphold the Governments contentions here, we would

have to pile inference upon inference in a manner that would bid fair to convert congressional authority
under the Commerce Clause to a general police power of the sort retained by the States. Prior cases
may have extended the Commerce power to great lengths, but we decline here to proceed any
further. To uphold the act here would require us to conclude . . . that there never will be a distinction
between what is truly national and what is truly local.

Concurrence - Kennedy.

81.

As summarized by Koppelman. Kennedys concurrence does not

provide clarity. Does not want to compromise stability of CC jurisprudence as it has evolved to this
point. But he is particularly troubled by law at issue because it seeks to intrude upon an area of
traditional state concern. Rejects any bright line rule; he wants to keep his options open.

82.

Suggested that he and OConnor were less eager than Rehnquist to cut
back the SCts Commerce Clause interpretations. He said that he had some pause about joining the
majoritys opinion, and that this was a necessary though limited holding.

83.

Commercial transactions untouched: More than Rehnquist, Kennedy

seemed eager to leave untouched prior cases holding that Congress has full power to regulate what are
truly commercial transactions, even if the transaction being regulated is a very local one: stare decisis
mandates against returning to the time when congressional authority to regulate undoubted
commercial activities was limited by a judicial determination that those matters had an insufficient
connection to an interstate system. Congress can regulate in the commercial sphere on the assumption
that we have a single market and a unified purpose to build a stable national economy.

i. Not commercial. But the activity being regulated here was not essentially commercial.
ii. Traditionally left to states. Furthermore, activities that had been traditionally left to the states to
regulate should be further off-limits to the federal commerce power than activities that had not
been so limited. Education was one of those traditional concerns of the states. To allow the
federal government to interfere would foreclose the States from experimenting and exercising
their own judgment in this area traditionally left to them.

Concurrence - Thomas. Substantial relation test allows Congress too much power. He wants to revive
manufacturing-commerce distinction.

Dissent - Breyer. As summarized by Koppelman: Breyer

84.
Argues there is substantial relation between law here and interstate
commerce. His argument shows at best weak connection between guns and commerce.
85.
Promulgates rational basis test which does not demand strong
connection between regulated activity and commerce.
86.

Supports idea that Congress should have general police power.

87.

Breyers stronger arguments:

(1) SC should not presume to draw line between commerce and non-commerce.

17

(2) States can fend for themselves.

88.

Rational basis test. Test was whether Congress could have had a
rational basis for finding a significant (or substantial) connection between gun-related school violence
and interstate commerce. (The majority had not mentioned rational basis to the majority, the
question was whether there actually was a substantial connection, not merely whether Congress could
rationally have believed that there was.) With the issue formulated this way, Breyer had no trouble
concluding that the answer was yes.

89.

Governments arguments accepted. Breyer accepted the Governments

arguments on this point. There was ample evidence available to Congress that guns-related violence in
the schools interfered with the quality of education. And there was also extensive evidence that
education was intimately tied to the economic viability of not only individuals but whole areas (since
many firms base their location decisions upon the presence, or absence, of a work force with a basic
education.
90.

Majoritys view rejected.

i. Contrary to case law. First, Breyer found that approach contrary to modern cases upholding
congressional action regulating activities that (in his opinion) had less connection with interstate
commerce than the guns-in-schools at issue here. For instance, he thought that a single instance of
racial discrimination at a local restaurant, found regulable in Katzenbach v. McClung, had no
greater connection with interstate commerce than the instance of gun possession being regulated
here.

ii. Commercial/non-commercial distinction rejected: Second, Breyer rejected the majoritys

distinction between commercial and non-commercial transactions, believing that the line
would prove hard to draw. He also thought that the majority drew the line in the wrong place here
if the majority was holding that education as a whole was a non-commercial activity, the
majority was mistaken because Congress . . . could rationally conclude that schools found on the
commercial side of the line.

iii. Stare decisis. Finally, Breyer believed that the majority was unwise to threaten . . . legal
uncertainty in an area of law that, until this case, seemed reasonably well-settled.

Dissent - Stevens. Simply invokes traditionally deferential approach to commerce clause.

Dissent - Souter.

91.

Any rule for judicial review of commerce power that has teeth in it is
just like Lochner (states) and therefore is bad.
Nothing in CC compels judicial activism; SCt has no special competence in this area.
Reconciling Lopez with New Deal

Rehnquist establishes substantial effects test, yet approvingly cites Wickard, which gave Congress unlimited
power.

SC was reluctant to undo New Deal powers that Congress had, because they feared consequences thereof.

Reasonable distinction between New Deal and Lopez

92.

New Deal Depression was national problem that states could not

handle on their own.

93.

Guns states can handle handguns in schools.

94.

Civil Rights Congress did not trust states to solve problems.

18

95.

Lessig before there were reasons for formalistic distinctions in early

cases, but now there is movement toward legal realism.
Current status of commerce clause

Even after Lopez, Congressional power is broad.

Perez v. U.S. (1971). SC upheld federal statute outlawing intrastate extortion credit transactions.

Lopez cites Perez as example where intrastate commerce substantially affected interstate commerce.

Does Lopez provide workable rule of law?

Steven Calabresi
96.
We did not need grand and unified theory of commerce power in
order to decide this case. Lopez was not remotely a close case.
97.
We will worry about close cases when they come up and when new
body of CC case law has been assembled.

Lawrence Lessig
98.
There is no good way in principle to sustain lines that SC drew, most
especially line between commercial and non-commercial activity.
99.
As line is drawn in SC opinion, examples of what Congress cannot
reach (family law, school curricula) are all areas of local concern.

100.

However, under National League of Cities v. Usery (SC sought to

protect from federal regulation, on federalism grounds, state government actions that involved matters
that were traditionally local concern) lower courts fell into confusion attempting to define boundaries
of protected category case was overruled by Garcia.

101.

Thus, tools provided by Lopez will surely fail, even though aim of
protecting federalism is worthy.
Spending power
UNITED STATES V. BUTLER - BEYOND

ENUMERATED POWERS

Roberts 1936. Background: Prior to 1937, it was not clear whether Congress could spend for whatever purpose
it wished (so long as the general welfare was being served), or whether Congress could only spend in order to
carry out one of the other enumerated powers listed in Article I, 8. But Butler Court held that no such
limitation exists the spending (and taxing) powers are themselves enumerated powers, so Congress may spend
(or tax) to achieve the general welfare, even though no other enumerated power is being furthered.

Facts. This case involved the validity of the Agricultural Adjustment Act of 1933, a New Deal measure which
sought to raise farm prices by cutting back agricultural production. The scheme was to be carried out by
authorizing the Secretary of Agriculture to contract with farmers to reduce their acreage under cultivation in
return for benefit payments; the payments were in turn to be made from a fund generated by the imposition of a
processing tax on the processing of the commodity.

Holding. SCt invalidated AAA because (1) it pursued an unconstitutional end, namely federal regulation of
agriculture; and (2) it sought to purchase a compliance which Congress was powerless to command.

102.

Separate spending power. SCt first concluded that the power to tax
and spend for the general welfare existed as a power separate and distinct from the other powers
enumerated in Article I, 8. Thus the taxing-and-spending power stood on equal footing with, say, the

19

power to regulate interstate commerce. By this standard, there was no difficulty with the Agricultural
Adjustment Act.
103.
Not usable for regulation. But SCt rejected the contention that
Congress had an independent power to provide for the general welfare apart from the power to tax
and spend. Thus Congress may not regulate in a particular area merely on the ground that it is thereby
providing for the general welfare; it is only taxing and spending which may be done for the general
welfare. Otherwise, SCt noted, the federal government would be one of general and unlimited
powers, rather than enumerated and limited ones.

i. States rights infringed. Therefore, SCt concluded, Congress had no right to regulate areas of
essentially local control, including agriculture. Because Congress could not directly regulate
agricultural production, it also could not coercively purchase compliance with a regulatory
scheme.

(1) Conditional appropriation distinguished.

SCt distinguished this Act from a conditional

appropriation of money (which would be valid, even under SCts view). What was impermissible
in the Act was the fact that the farmer contractually binds himself to obey the regulations (which
regulations he could not be directly commanded to obey). The use of contracts in this way, SCt
argued, would tend to nullify all constitutional limitations upon legislative power.

20

Dissent - Stone. Stone contended that majoritys second argument is dead weight because all acts of spending
are such. Rejected majoritys distinction between conditional appropriations and spending premised upon
contracts. He pointed out that if Congress could constitutionally make payment to farmers on condition that
they reduce their crop acreage, it was absurd to hold that the measure becomes unconstitutional merely because
the farmer is required to promise to reduce the acreage.

STEWARD MACHINE CO. V. DAVIS

Cardozo, 1937.
Reversed course; abandoned distinction between conditional appropriations and
appropriations requiring binding promises by the recipient.

Upheld provision of the Social Security Act which allowed employers to receive a credit against federal tax for
any contribution to a state-enacted unemployment plan. Even though the credit was given only where the state
passed a plan meeting congressionally-defined (certainly an arrangement having aspects of an agreement
between the state and the federal government), the plan was held valid, in view of the need to combat
employment, a federal problem.

Cardozo observed congressional action here was necessary because unemployment was a collective action
problem. [zqn is this functional argument a legitimate mode of constitutional argument?]

SCt here left open question of limits on congressional power.

Cardozo purported to distinguish rather than overrule Butler, but distinguished it into oblivion.

SOUTH DAKOTA V. DOLE - NATIONAL

DRINKING AGE

Rehnquist 1987. Held that there is little limit on conditional use of spending power. But how can this holding
be reconciled with Lopez?

Facts. Congress, in order to prevent drivers under the age of 21 from drinking, withheld federal highway funds
from states that permit individuals younger than 21 to purchase or possess in public any alcoholic beverage.
South Dakota attacked the statute on the grounds that this condition interfered with its own exclusive powers
under both the 10th and 21st Amendments.

Holding. SCt upheld the statute. Even if, arguendo, direct congressional setting of the drinking age for the
entire country would be unconstitutional, Congress indirect use of its conditional spending power to achieve
the same results is permissible. Only if, by the use of that conditional spending power, Congress induced the
states to pass laws that would themselves violate the constitutional rights of individuals would that
congressional action be unconstitutional. Thus, for example, a grant of federal funds conditioned on
invidiously discriminatory state action or the imposition of cruel and unusual punishment would be an
illegitimate exercise of the Congress broad spending power. Here, by contrast, if South Dakota responded to
Congress inducement by raising its drinking age to 21, the states action would not violate anyones
constitutional rights, so Congress attempt to persuade the state by use of its spending power is not
unconstitutional.

PENNHURST STATE SCHOOL & HOSPITAL V. HALDERMAN

1981. Added limit to Congressional spending power in form of rule of statutory construction:

If Congress intends to impose a condition on grant of federal moneys, it must do so unambiguously.

Rationale. It would be unfair (and perhaps unconstitutional) to impose obligation on state, following its
acceptance of federal funds, unless Congress spoke so clearly that we can fairly say that state could make an
informed choice.

Dormant commerce clause (DCC) Protection against facial discrimination

21

These cases present question of powers on border between exclusive federal powers and concurrent powers.

DCC doctrine is an inference from Congressional silence. Any limitation imposed on state law by doctrine (i.e.,
SCt. strikes state statute) is waivable by Congress.
It is merely a presumption, a tool for interpreting
Congressional silence, given that there is no mechanism for Congressional review of state legislation. (Unlike
federal judiciary, Congress does not have to hear cases that come to it.)

Gibbons v. Ogden New York steamboat monopoly

Marshall. Seemingly of two minds regarding exclusivity of federal power over interstate commerce
Marshall left behind good confusion.

There is bright line distinction between intrastate and interstate commerce. Federal government had exclusive
power in interstate commerce. (even where federal government is silent, states cannot regulate)

However, perhaps inconsistently, Marshall also approved of local inspection and quarantine laws, which he
regarded as legitimate exercise of state police power.

Willson v. Black Bird Creek Marsh Co.

1829. Marshall held state regulation establishing dam on stream was constitutional because as long as states do
not intend to obstruct interstate commerce state law is constitutional.

Cooley v. Board of Port Wardens (1851) Cooley test That which is by nature national

Cooley Test. Held that Congress has exclusive power to legislate on matters that are in their nature national, or
admit only of one uniform system.

Scalia argued this distinction is useless because metaphysical.

However, it was clear from Cooley test that any state law clearly intended to obstruct interstate commerce (e.g.
benefit in-staters at expense of out-of-staters) will be struck down.

Modern DCC doctrine

Based on distrust of states (Stone 294) combined with view that Congress is too busy to police the states
(Jackson 296).

Since no one else can be trusted to prevent abuses of state regulatory power, SCt must.

Koppelman: Even if this rationale makes sense pragmatically, does it explain why SCt has constitutional
authority to invalidate state laws on this basis? If authority is not explicit, does this mean that framers in
Philadelphia made a whopping error? If so, what ought SC do about it?

City of Philadelphia v. New Jersey DCC No solid waste

Stewart 1978. Most basic black letter law of DCC.

Facts. This case involved a NJ statute prohibiting the importing of most solid or liquid waste into the state. The
law was enacted in response to the use of NJ landfills for disposal of waste from cities in Pennsylvania and NY.
Several NJ operators and out-of-state users of the landfill sites (including Philadelphia) sued to have the statute
invalidated on the ground that it discriminated against interstate commerce.

Holding

104.

Statute stricken. By 7-2 vote, SCt struck the statute as violative of

Commerce Clause. Stewart concluded that the law was basically a protectionist measure, rather than
a way of resolving legitimate local concerns.

105.

Stewart noted two ways in which states could violate DCC.

(1) Simple Economic Protectionism, for which there is a virtually per se rule of invalidity.
22

(2) Incidental burdens on interstate commerce that are clearly excessive in relation to the local benefit
[a balancing test from Pike v. Bruce Church, Inc. (304)]. State bears burden of showing that
burdens on interstate commerce are incidental rather than intentional, and that local benefit is not
excessively outweighed by burden on interstate commerce.

106.

Stewart held NJs law was discriminatory on its face and therefore
flunked test of simple economic protectionism.

(1) Purpose unclear. The opinion declined to decide whether the main purpose of the statute was to
protect the states environment and its inhabitants health and safety (as NJ claimed) or to stabilize
the costs of waste disposal for NJ residents at the expense of out-of-state interests (as Ps claimed).
(2) Discriminatory means. However, it was unnecessary to decide this issue because the evil of
protectionism can reside in legislative means as well as legislative ends. Since NJ had chosen a
discriminatory means of furthering its objectives (whatever those objectives were), it was a
protectionist measure. That is, it imposes on out-of-state commercial interests the full burden of
conserving the States remaining landfill space. It is an attempt by one State to isolate itself from
a problem common to many by erecting a barrier against the movement of interstate trade.
(3) Per se rule of invalidity. In striking the statute, SCt suggested, though it did not explicitly state,
that the same virtually per se rule of invalidity which had previously been applied in cases of
protectionism should be extended to non-economic regulations such as the one at hand.
107.
Quarantine laws distinguished.
Stewarts opinion attempted to
distinguish quarantine laws (e.g. laws preventing the importation of diseased or otherwise dangerous
livestock or goods into a state), which had often been upheld by SCt. Such quarantine laws banned
importation of materials which, at the moment of importation, were hazardous. Here, by contrast, the
solid waste whose importation was prohibited by NJ endangered health (if at all) only when buried in
landfill sites, by which time there was no valid reason to differentiate between out-of-state and
domestic garbage.

Dissent - Rehnquist. Contended that quarantine law cases supported NJ law. He saw no reason why NJ may
ban the importation of items whose movement risks contagion, but cannot ban the importation of items which,
although they may be transported into the State without undue hazard, will then simply pile up in an ever
increasing danger to the publics health and safety. Dissent found it reasonable for NJ to guard against a
worsening of its own waste disposal problem by banning addition of out-of-state waste.

West Lynn Creamery, Inc. v. Healy Milk tax subsidizes in-state farmers

Stevens 1994. Facts. MA (1) taxed all milk sales within the state, and (2) used proceeds of tax to subsidize instate dairy farmers. Each part of program was probably constitutional.

Holding. Taken together, these provisions were unconstitutional, because entire scheme was intended to protect
MA farmers from competition of out-of-staters.

Concurrence - Scalia. This case marks outer boundary of DCC jurisprudence; subsidy standing alone would be
permissible even though economic effect of subsidy would be same as this statute.

Dissent - Rehnquist. Program here was constitutionally indistinguishable from any other subsidy. United
States v. Butler shows folly of attempting to limit spending power.

Bobbitts modalities and the DCC?

Historical modality
108.
Prevention of state protectionism was one of the underlying purposes of
USC, because one of principal defects of AOC was that they permitted such protectionsim.
109.
C/A. There is no evidence that Framers specifically intended that
judiciary invalidate laws that hadnt been prohibited by Congressional statute. Moreover, if text does

23

not support judicial power, this reinforces conclusion that Framers did not mean for judges to have this
power.

Textual modality

110.

Article I, 8, cl. 3 gives Congress the power to Regulate

Commerce . . . among the several States. Other provisions in 9 prohibit duties on articles exported
from any state, and 10 prohibits states from laying imposts or duties without Congress consent.

111.

Marshall thought that Congress commerce power was exclusive but he

wasnt willing to push this position to its logical conclusion, which would have invalidated quarantine
laws and prevented states from damming navigable waterways.

(1) If Congressional power is not absolutely exclusive, then is there a limited sphere of exclusive
power over Commerce?

(2) Cooley said yes in 1851, holding that Congress has exclusive power to legislate on matters that
are in their nature national, or admit only of one uniform system.

(3) But this categorys boundaries are hard to define. Moreover, this position leaves USCs text
behind, and is in realm of judicial gloss. Once one is willing to entertain Cooleys solution, one
has already conceded that (a) text is indeterminate and (b) it is legitimate to go beyond text.

(4) Thus, text does not support DCC doctrine. At best, it is permissive insofar as it does not prohibit
courts from assuming this power.

Structural modality
112.
It is inconsistent with overall constitutional scheme for states to be able
to enact protectionist laws that obstruct interstate commerce. It is not just original intent that is
thwarted by such laws; textual provisions enumerated above indicate a purpose to maintain free trade
among the states a purpose we would be entitled to infer even if we did not know the history.

113.

C/A. It is not clear that this purpose will be thwarted if federal courts
get out of DCC business. Maybe this is Congress job.

114.

Response (another structural argument): Congress is less well-suited to

do policing function than is SC. DCC is based on distrust of states; see Stone (294) drawing on
representation-reinforcement rationale first seen in McCulloch, combined with view that Congress is
too busy to police states (Jackson 296). Both of these arguments together infer, from overall USC
structure, that this job needs to be done and that SC is the entity that must do it.

Doctrinal modality DCC doctrine is well established in precedent, having been endorsed by Marshall himself.
However, question being addressed today is whether precedent is justified.

Ethical modality

115.

American cultural ethos of common citizenship: U.S. is a single

nation, not an expedient alliance between otherwise hostile powers. Thus, it follows that people of one
state ought not to treat interests of fellow Americans as irrelevant or treat them as resources to be
exploited. But this is how outsiders are treated by protectionist laws SC cannot tolerate such laws.
116.

C/A. This argument has limitation: it says nothing about judicial role.

Prudential modality
117.
Bad things will happen if states are allowed to do whatever they want:
free trade will break down, trade wars will ensue, and political and economic consequences will be
bleak.

24

118.
to intervene.

C/A. If results are that bad, then Congress can probably be relied upon

119.
consequentialist reasoning.

Historical, structural, ethical, and prudential arguments all rely on

Analysis

120.

Because consequentialist reasoning depends on predictions about

future, and because such predictions are necessarily contestable among reasonable people, there will
always be room for disagreement about validity of DCC doctrine.
MARKET

PARTICIPANT EXCEPTION UNDER COMMERCE CLAUSE

If a state acts as a market participant rather than a market regulator (e.g. operates a business and sells goods)
then it may discriminate in favor of its own residents.

Reeves, Inc. v. Stake

1980. When SD owned and operated a cement plant, it was constitutionally permissible (e.g. is free of DCC
limitations) for it to supply SD customers first before furnishing cement to out-of-state customers in times of
shortage.

10th Amendment - Implied limitations on congressional power National League of Cities v. Usery - Traditional government functions test

1976. Barred federal government from doing anything that would impair the states ability to perform their
traditional functions.

Holding. SCt held by 5-4 vote that 10 th Amendment barred Congress from making federal minimum-wage and
overtime rules applicable to state and municipal employees.

Rationale. Majority conceded that minimum-wage/overtime rules, as applied to state employees, clearly
affected commerce. Thus these wage/hour regulations could unquestionably be constitutionally applied to
private employers, under the commerce power. But when these wage/hour rules were applied to state
employees, they violated the independent requirement, imposed by the 10 th Amendment, that Congress may
not exercise power in a fashion that impairs the States integrity or their ability to function effectively in the
federal system.

Garcia v. San Antonio MTA - Overruled National League of Cities Minimum wage

Blackmun 1985. Facts. The issue here was whether the minimum-wage and overtime provisions of the federal
Fair Labor Standards Act (same statute at issue in National League of Cities) should apply to employees of a
municipally-owned and-operated mass-transit system. Under National League of Cities and cases later decided
under it, the issue translated into the issue: Is municipal ownership and operation of such transit system a
traditional governmental function?

Holding. SCt held that state governments are not immune from generally applicable federal laws [key phrase];
thus, federal government cannot pass laws singling out state governments.
121.

Thus, this was yet another judicial abdication.

122.

Note this is analogous to argument in McCulloch v. Maryland that state

government cannot single out federal government.

25

Difficulty of line-drawing. Majority contended that the 8-year period following National League of Cities had
shown that it was difficult, if not impossible, to identify an organizing principle that would distinguish
between those functions that are traditional governmental functions and those that are not. For instance,
federal courts of appeal had held that the licensing of automobile drivers was a traditional government
function (as to which the 10th Amendment therefore protected state sovereignty from federal control), but that
the regulation of traffic on public roads was not.

Problem of subjectivity. An additional, but related problem was that the National League of Cities approach
inevitably led to judicial subjectivity. Any rule of state immunity that looks to the traditional, integral, or
necessary nature of governmental functions inevitably invites an unelected federal judiciary to make decisions
about which state policies it favors and which ones it dislikes.

Procedural safeguards. Yet, the majority insisted, its rejection of National League of Cities did not mean that
there are no limitations upon the federal governments right to use its delegated powers to impair state
sovereignty. However, state sovereign interests are protected by procedural safeguards inherent in the
structure of the federal system, not by judicially created limitations on federal power. [Wechsler-Choper
argument]
123.
Examples of structural protection. For instance, the requirement that
each state have two Senators, the fact that the states are given general control over electoral
qualifications for federal elections, and the fact that the states have a special role in presidential
elections by means of the electoral college, are all indications that the structure of the federal
government has been constitutionally arranged so as to protect state sovereignty.

Dissent. Four dissenters asserted that the majority approach effectively reduces the 10 th Amendment to
meaningless rhetoric when Congress acts pursuant to the Commerce Clause.

124.

Dissent - Powell.

(a) Contended that National League of Cities was correctly decided and that it articulated a workable
standard. The Garcia majoritys approach, by contrast, established no effective standard at all, in
Powells opinion. Powell was especially troubled by the fact that under the majority approach,
federal political officials, invoking the Commerce Clause, are the sole judges of the limits of their
own power. He contended that the majority position was inconsistent with the rule, in force since
Marbury v. Madison, that it is up to the federal judiciary to say what the law is with respect to
the constitutionality of congressional actions.

(b) As during Founding Fathers era, democracy is more effective at state/local levels where officials
are more accessible and responsive. Special interest groups significantly influence Congress with
campaign contributions such a political process that functions this way is unlikely to
safeguard sovereign rights of States and localities. Staffs in Congress are hardly as
accessible/responsive/mindful of local concerns as staffs in state and local government.

125.

Dissent - OConnor.

(a) Doubted whether structural or procedural factors would be enough to prevent Congress from
trampling upon state sovereignty. She observed that a number of recent changes in how Congress
works (e.g. the direct election of Senators, as well as the expanded influence of national interest
groups) had probably lessened the weight Congress gives to the legitimate interests of States as
States. This was all the more true in view of the unprecedented growth of federal regulatory
activity in the last two decades. True essence of federalism is that states have legitimate interests
which federal government must respect even though its laws are supreme. Thus, SCt cannot
abdicate its constitutional responsibility to oversee federal governments compliance with its duty
to respect legitimate interests of states.

(b) Not private litigant. OConnor believed that the majority was holding that the States as States
retain no status apart from that which Congress chooses to let them retain. The majority was
analyzing the constitutionality of congressional regulation of the states pursuant to the Commerce

26

power by asking only: would the same regulation be valid if enforced against a private party?
OConnor believed that it was wrong to equate a State with any private litigant for the purposes
of this analysis.

Koppelman. Does Blackmun or dissenting justices have better grasp of political reality?

Use of states lawmaking mechanisms

One aspect of state sovereignty is a states ability to make and apply law, through legislative, judicial, and
administrative functions. Even after Garcia, there are limits to Congress right to interference with these state
legislative or executive processes, and Congress will violate the 10 th Amendment if it exceeds those limits. In a
pair of cases, SCt has held that the federal government may not: (1) compel a state to enact or enforce a
particular law or type of law (New York v. United States); or (2) compel state/local officials to perform
federally-specified administrative tasks (Printz v. U.S.)

NEW YORK V. UNITED STATES - WASTE

DISPOSAL

OConnor 1992. Dramatically illustrates the principle that Congress may not simply force a state to enact a
certain statute or to regulate in a certain manner.

Regulatory scheme. Congress enacted the Low-Level Radioactive Waste Policy Amendments Act of 1985. The
Act attempted to force each state to make its own arrangements for disposing (either in-state or out-of-state) of
the low-level radioactive waste generated in that state. The Act tried to do this with three types of incentives:
(1) monetary incentives, by which each state that made such waste-disposal arrangements would receive
federally-collected funds, and states that didnt wouldnt; (2) access incentives, by which states that did not
make arrangements would be denied access to the few disposal facilities in existence before the Act was passed;
and (3) most significantly, the take title incentive, whereby any state which did not arrange for waste disposal
would be required to take title to the waste (upon request by the waste generator), and would be liable for
damages in connection with disposal of this waste.

New York attacks statute. NY, unlike most states, made little progress in solving its waste disposal problems,
because local residents of each community where the state proposed to put disposal sites fiercely objected. NY
then sued the federal government, arguing that all three of the provisions, especially the take title provision,
violated the 10th Amendment, by effectively forcing the state to regulate in a particular area.

10th Amendment found violated. Majority of SCt agreed with NY position as to one of the provisions. SCt
found that the take title provision violated the 10th Amendment: Congress may not simply commandeer the
legislative processes of the States by directly compelling them to enact and enforce a federal regulatory
program.
126.
Explanation.
NY was being put to the choice of two
unconstitutionally coercive regulatory techniques: either it could choose to regulate on its own by
making arrangements for disposal of waste generated inside the state, or be forced to indemnify wastegenerators against tort damages. Because Congress could not employ either of these methods alone, it
could not escape the problem by giving the state a choice between the two.
127.
Incentives allowed. But the other two incentives set forth in the
federal statute were allowable. The use of monetary incentives was a valid conditional use of the
federal spending power. Similarly, the denial of access to out-of-state facilities was a valid exercise of
Congress power to regulate interstate commerce.

27

OConnors concern about accountability. OConnors formalism is justified by realist concern for preserving
accountability: it may be state officials who will bear the brunt of public disapproval, while the federal
officials who devised the regulatory program may remain insulated from the electoral ramifications of their
decision. [C/A: federalism has political safeguards against this result: state officials can educate electorate
about true source of their burdens.]

Koppelman. It would be more effective to use Lopez argument that certain substitute areas are reserved to
states.

Dissent - White.
128.
Argued that this was not an instance where Congress was forcing its
will upon the states. Rather, Congress had responded to a request by many of the states to ratify a
compromise worked out among themselves, so that the waste-disposal problem could be solved. The
SCts refusal to force NY to accept responsibility for its own problem inevitably means that some other
States sovereignty will be impinged by it being forced, for public health reasons, to accept NYs lowlevel radioactive waste. I do not understand the principle of federalism to impede the National
Government from acting as referee among the States to prohibit one from bullying another.

129.

Functionalism, realist, practical necessity, collective action problem: If

the concern is about Congress unnecessarily taking over state functions, then question should not be
whether states have categorical immunity against imposition of this kind, but whether this legislation
was necessary. If it is necessary that activity be done, and cannot be done any other way then
Congress should be able to tell states what to do.

i. Koppelman: But White did not show that there was no other way for problem to be addressed

Dissent - Stevens. Formalist argument: Congress necessarily can do anything that was permissible under AC,
which gave Congress power to issue commands to states.

Alternative methods. Is Congress powerless to make each state deal with its radioactive waste (or any other
specific problem)? Probably not. Whites dissent suggests several methods that are apparently still open to
Congress, notwithstanding NY v. U.S.
130.
Spending power. First, Congress clearly may condition the receipt of
federal funds on a states solving the problem (provided that the funds in question have something to
do with the problem).
131.
Threat of regulation. Second, Congress could directly regulate the
conduct in question, and could therefore take the less drastic step of telling the states that this direct
regulation will follow if the states do not take care of the problems themselves.

132.

Summary. Congress may have to be a little more clever about how it

accomplishes its regulatory purposes and it will not be able to escape the political heat for
unpopular decisions by forcing state officials to make those decisions. But Congress, by careful use of
its enumerated powers (including the spending and commerce powers) can achieve practically any
regulatory end it wants without running afoul of the 10th Amendment.

Critique by Jefferson Powell

133.
Inconsistency. Even though Congress cannot directly regulate states, it
can indirectly do so through spending power. [analogous to spending cases in CC section]
134.

Two possibilities (depends on next few elections)

i. SC will impose more restrictions on spending power than it has in past 50 years; or
ii. NY, Printz will end up being toothless.

28

iii. Good Confusion: It remains to be seen whether this federalism-based limitation on Congress will
be expanded beyond these 2 cases (New York, Printz)

OConnors procedural federalism

135.

OConnor did not conform with pre-New Deal Federalism. She did not
say there are substantive areas reserved to states (e.g. regulating radioactive waste), but rather that
states have reserved their procedural mechanisms.

136.

Stevens: Ironically, OConnors opinion suggests federal government

will have to grow.

137.

Perhaps OConnor should have been bolder, as in Lopez, and hold that
substantive areas are reserved to states.
PRINTZ V. UNITED STATES BRADY BILL DONT NO

COMMANDEER STATE EXECUTIVE

Scalia 1997. SCt held that Congress may not compel a state or local governments executive branch to perform
functions.

Brady Bills provision. In 1993, Congress enacted the Brady Bill, aimed at controlling the flow of guns. As a
temporary 5-year measure, the law ordered local law enforcement officials to conduct background checks on
prospective purchasers, until a national computerized system for doing these checks could be phased in. Printz
and Mack, country sheriffs in Montana and Arizona respectively, objected to the background-check requirement
and sued. They argued that under New York v. U.S., Congress could not force them to conduct background
checks on the federal governments behalf.

Decision. By 5-4 margin, SCt agreed with Ps. Majority noted that in NY v. U.S., SCt had said that the federal
government may not compel the States to enact or administer a federal regulatory program. Scalia then
concluded that the background-check portion of the Brady bill violated this prohibition; also violates separation
of powers by reducing powers of President.

138.

Rationale. Scalia rejected the dissents distinction between compelling

a state to make policy (such as the compelled enactment of a regulatory scheme, like the take title
scheme at issue in NY v. U.S.) and compelling state executive-branch officers to perform ministerial
tasks (such as the background checks at issue here). Even if no policy-making was involved here, this
did not prevent Congress action from being an intolerable incursion into state sovereignty: It is an
essential attribute of the States retained sovereignty that they remain independent and autonomous
within their proper sphere of authority. It is no more compatible with this independence and autonomy
that their officers be dragooned into administering federal law, than it would be compatible with the
independence and autonomy of the U.S. that is officers be impressed into service for the execution of
state laws.

139.

Basis unclear. Its not clear whether Scalia believed that any particular
constitutional provision had been violated. He seemed to be relying on general, non-textual, principle
of state sovereignty, rather than on any specific clause (e.g. the 10th Amendment, which he referred to
only occasionally and in passing). But two concurring opinions specifically said that the backgroundcheck requirement violated the 10th Amendment.

Concurrence - Thomas. Brady Act may constitute 2nd Amendment violation.

Dissent - Stevens.

140.

First pointed out that the federal commerce power gave Congress the
authority to regulate handguns. He then concluded that this being so, the necessary and proper
clause gave Congress the right to implement its regulation by temporarily requiring local police
officers to perform the ministerial step of identifying persons who should not be entrusted with
handguns. This was especially true since Congress could have required private citizens to help with

29

such indemnification: The 10th Amendment provides no support for a rule that immunizes local
officials form obligations that might be imposed on ordinary citizens.
141.
SCt holding here will accomplish opposite of what it intends by
creating incentives for aggrandizement of federal power.

Dissent - Souter. Distinguished New York because state legislators are entitled to discretion in a way that state
law enforcement officials are not.

Dissent - Breyer. Comparative law shows that conscription of local officials is not necessarily oppressive.
[Scalias C/A: comparative law analysis is inappropriate once USC is already ratified.] Koppelman: who is
right here? Breyer: viewed SC as attempting to solve problem of reconciling national authority with local
autonomy.

142.

USC does not specifically prohibit Congress from doing what it did in

New York and Printz.

143.
prudential concerns.

Thus, every rule here is necessarily judge-made and based on

144.

Thus, Breyer rejected Scalias bright-line distinction between

drafting/interpreting USC. If there have to be limitations on federal power, and such limitations are
unclear, SC must imply a limit that makes most practical sense. Thus, question becomes: is bad thing
going to happen that USC was intended to prevent? Given fear of tyranny, Breyer suggested we look
at other countries experiences to see if tyranny really does arise.

145.

Scalia was concerned about letting Congress do whatever it wants.

30

POSSIBLE MCCULLOCH

THEORY UNDERLYING

NEW YORK

AND

PRINTZ

McCulloch says that if MD can single out Bank for special taxes not borne by MD citizens generally, it can
unduly pressure federal government to have policy that it likes. But generally applicable taxes were okay.

Possibly, there is a corresponding nondiscrimination limit on ability of Congress to single out states for special
burdens that federal government need not bear. This theory may underlie New York and Printz.

NY and Printz distinguished from Garcia. Garcia seems to apply mainly to generally applicable federal
lawmaking; that case holds that where Congress passes a generally applicable law (e.g. minimum wage law that
applies to all or nearly all businesses), the 10 th Amendment does not entitle a states own operations to an
exemption, merely because it is a state that is being regulated along with all the other private entities. But
where the federal government tries to force a state or local government to enact legislation or regulation, or tries
to force state or local officials to perform particular governmental functions, this is not part of a generallyapplicable federal scheme, and is instead directed specifically at the states basic exercise of sovereignty: the
states right to carry out the business of government. NY and Printz say the federal government may not use
such coercion.

U.S. Term Limits v. Thornton

Stevens 1995. Nullified state law that imposed term limits on states representatives in Congress. Stevens held
that states cannot supplement qualifications laid down in Article I.

Significance. This case illustrates how tenuous the once-settled view of federal authority and the nature of our
Union is on todays SCt. The vote was so close! Justices who provided Thomas four votes remain on SC.

Facts. Voters of Arkansas modified the Arkansas State Constitution to prohibit any person from appearing on
the ballot for Congress from that state if he/she had previously served three terms in the House or two in the
Senate. This provision was similar to term limit provisions that had been adopted either by statute or state
constitutional amendment in 22 other states.

Formalist holding. Stevens and Kennedy argued that this holding follows from fact that Congress is national
institution and does not represent the states.

Formalist C/A by Thomas. Congress is an assembly of representatives from distinct political entities, who
retain reserved powers to prescribe qualifications for those representatives.

This debate gave rise to dispute, rare in SCs modern history, regarding nature of the federal union. Which side
has better understanding of sovereignty?

Realist perspective. Would any bad consequences result from term limits that USC sought to prevent?

Key Questions
146.
they joined Union?

To what extent do states retain sovereignty that they possessed before

147.

To what extent is a measure of retained autonomy a necessary check on

federal power, in order to prevent the federal government from going beyond its enumerated powers?

148.

What conception of the role of individual states in making USC did

Marshall rely on in McCulloch.

(a) Stevens. McCulloch rejected idea that because USC was silent on question, states had reserved
power to tax the bank.

(b) Thomas. This makes most of McCulloch opinion surplusage, because MD would have lacked tax
power even absent conflicting federal law.

31

(c) Kennedy: cited McCulloch for proposition that the National Government is and must be
controlled by the people without collateral interference from states.

(d) Thomas C/A. But the people of each state retained their separate political identities. Voters of
AK act as citizens of AK, not as citizens of U.S.

149.

Marshalls account of meaning of ratification of 1787 USC, is given

rather different readings by different justices.

(a) Stevens/Kennedy: emphasized that the language that describes creation of new nation.
(b) Thomas emphasized language that describes continuing importance of state boundaries.
(c) In Term Limits, is Stevens or Thomas misreading McCulloch, or is Marshalls opinion ambiguous
enough to support either reading?
150.

Scope of each sides opinion.

(a) If states are as constrained as Stevens says, are they disabled from preventing prisoners or mental
incompetents from running for Congress?

(b) If Thomas is right that members of Congress are agents of their states, can states control their
representatives in other ways for example, by instructing them how to vote?

32

Other Federalism premises

The treaty and war powers
MISSOURI V. HOLLAND MIGRATORY

BIRDS

Holmes 1920. Treaty power implies an unspecified ability of Congress to agree to that which it cannot directly
legislate. [What if Congress had passed Gun Free Zones Act in order to comply with treaty?]

Facts. Congress attempted to regulate the killing of migratory birds within the United States. This statute was
struck down as not being within any enumerated congressional authority. A treaty was then enacted between the
U.S. and Great Britain, governing migration of birds between the U.S. and Canada; the act prohibited the killing
or capture of certain birds within the U.S. The state of Missouri claimed that the treaty invaded rights
guaranteed to it under the 10th Amendment.

Holding. The treaty and its regulations are valid, and do not violate any states 10th Amendment rights. The
treaty power is explicitly given to Congress, and thus furnished authority for this particular treaty. Furthermore,
migration of wild birds is a national problem, best dealt with by a national solution; therefore, no 10th
Amendment rights of individual states will be allowed to stand in the way of such a solution.

WOODS V. CLOYD W. MILLER CO.

1948. The war powers impact on federalism has principally arisen in a context of economic regulations
promulgated during wartime. This case broadly construed Congress right to promulgate such economic
regulations as an adjunct to the war power. This case suggests that Congress war power implies ability to enact
domestic legislation that otherwise is ordinarily beyond its competence.

Facts. This case involved the constitutionality of the Housing and Rent Act of 1947, by which Congress sought
to impose rent controls because of the post-war housing shortage.

Holding. The SCt held that although actual combat had terminated, a state of war still technically existed.
Furthermore, the shortage directly resulted from the war; therefore, Congress could act to combat the shortage
under its power to take all necessary and proper steps to enforce an enumerated power (the war power).

The taxing power

BAILEY V. DREXEL FURNITURE CO.

1922. Holds that taxes as a pretext cannot be used for purposes that Congress could not pursue by direct
regulatory legislation.

Background. Recall Congress attempt to prohibit the shipment of products of child labor in interstate
commerce was struck down by the SCt in Hammer.

Facts. Shortly thereafter, Congress tried to achieve a similar result by enacting the Child Labor Tax Law of
1919, which imposed a federal excise tax of 10% of annual net profits on every employer of child labor in
specified industries. The constitutionality of this use of the taxing power was attacked in this case.

Act struck down. SCt invalidated the law, holding that it was really a penalty, not a tax. SCt conceded that
taxes are often enacted with incidental regulatory motives. But here, the taxs prohibitory purpose was clearly
paramount; for instance, the amount of the tax was not proportional to the extent to which child labor was used,
and the tax was only payable if the employer had scienter (e.g. only if he knew that the child was underage).
Since the measure was really for regulatory purposes, it had to be judged by the same standards as the original
Child Labor Law invalidated in Hammer; as such, the tax was invalid because it invaded regulatory areas left by
the 10th Amendment to the states.

Koppelman:

33

151.

Critique how can we distinguish between tax and penalty?

152.

Bailey was overruled by Darby and Heart of Atlanta Motel.

153.

But tax on guns near schools probably would not be upheld given

Lopez.
The guarantee clause and the reconstruction amendments

Threshold question: Are reconstruction amendments part of USC?

Status of Southern states in 1865.

154.
Southern states theory. We never left union, so we can resume our
place in Congress with no strings attached.
155.
President Andrew Johnson.
Southern states were temporarily
disqualified from full membership because of treason of their officers, but can be readmitted by
presidents power of pardon and war power.
156.
Congressional radicals. Secession was illegal, but is an accomplished
fact; therefore, the former southern states are conquered provinces with no constitutional rights
whatsoever.
157.

Disorganized-states theory:

(a) States never left union, but are without governments, which Congress can now provide via
guarantee clause.

(b) However, they continue to exist as states, and that remains a limit on Congressional power. This
theory underlies Military Reconstruction Act of 1867 and Texas v. White.
TEXAS V. WHITE

Texass newly reconstructed government sought to recover U.S. bonds that were in its treasury before Civil War,
and that rebel government had paid out in exchange for war supplies. The bonds were transferable only if
endorsed by Governor of Texas. Texas will not be readmitted into Union until 1870; when this case was
brought, Texas was under provisional government, under continuing military supervision, and had no
representation in Congress.

Issue. Was petitioner authentically state of Texas? Is this a suit in which state is a party, and thus subject to
SCs original jurisdiction under Article 3? SC ultimately ruled in favor of TX.

Holding. Yes. Secession was unconstitutional and Congress had power under Guarantee Clause to reconstruct
state governments.

VALIDITY

OF

13TH

AND

14TH AMENDMENTS

This legitimacy issue resembles that of New Deal. As shown by chronology below, how can 13A and 14A both
be part of USC? 13As ratification depended on votes of southern governments which were then declared void
by Congress and excluded from Union until they ratified 14A.
158.
Feb/Dec 1865. 13A ratified by Southern states at Johnsons insistence,
simultaneously with Congressional elections in South.
159.
Congress.

Dec 1865.

13A proclaimed valid; southern reps excluded from

160.
June 1866. 14A proposed by (rump) Congress. Tennessee ratified in
July and was admitted to Congress; other 10 seceded states rejected and were excluded.

34

161.
Fall 1866.
Johnson, now allied with Democrats, argued
unconstitutionality of Southern exclusion from Congress and illegitimacy of 14A. 14A was central
issue in election. Sweeping victory for Congressional Republicans: more than 2/3 of both houses of
Congress (enough to override any presidential veto), every Northern state legislature, every northern
gubernatorial contest.
162.
March 1867.
Military Reconstruction Act
governments under military supervision. Cant get back in until they ratify 14A.

placed

Southern

163.

1868. 14A ratified.

164.
impeachment.

March 1868. Johnson stopped obstructing Reconstruction and avoided

Reconstruction is another keystone of Ackermans constitutional theory. As in 1787 and 1937, a radical change
in the nature of the federal government, achieved by legally questionable means, and ratified by a landslide
election.

THE

POWER TO ENFORCE THE RECONSTRUCTION AMENDMENTS

Amendments 13,14,15 all give Congress power to enforce, by appropriate legislation, the provisions of
amendments.

However, given that Amendments 13,14,15 are self-executing, it is not clear what exactly Congress power to
execute them is. [Brown v. Board of Education did not invoke federal statute.]

Katzenbach v. Morgan Spanish speaking voters

Brennan 1966. Issue. How can Congress interpretation of 14th amendment legitimately differ from SCs?

Lassiter v. Northampton Election Board (1959) held that English-language literacy requirement did not violate
14th or 15th amendment. Then Congress enfranchised Spanish-speaking persons (largely New Yorkers) who had
completed 6th grade in Puerto Rico.

Possible Interpretations of Katzenbach

165.
Remedial Interpretation. Congress can fashion remedies too complex
for courts, or prevent constitutional violations before they happen (which courts cannot do because
there is not yet a case/controversy), or find facts that it would be hard for court to find.

166.

Substantive Interpretation. Congress can adopt any reading of 14 th

amendment that is within reason. Or, SCt should reconsider its earlier decision in light of Congresss
considered disagreement.

167.

Underenforcement. Venn diagram. Judicially enforceable part of 14 th

amendment is not entire amendment. Because institutional considerations prevent SC from completely
enforcing USCs commands, Congress can step in and do what courts cant. (Sager at 56) This theory
is especially powerful in explaining validity of laws reaching private action. (See Jones v. Alfred H.
Mayer Co.)

i. Substantive interpretation does not bind courts to one-way ratchet set by Brennan (e.g. Congress
has power to enforce, but not to dilute constitutional guarantees). However, under enforcement
does bind courts to one-way ratchet.

35

CITY

OF

BOERNE V. FLORES RFRA UNCONSTITUTIONAL

Kennedy 1997. Landmark case in which SCt found that Congress has no right to specify substantive contours
of constitutional rights.

Holding. Congress could not use its 14 th Amendment enforcement powers to prevent local governments from
unintentionally burdening individuals religious freedom in certain ways. The decisions effect was to prevent
Congress from effectively overruling a prior SCt decision about the meaning of the Free Exercise clause.

Statutory and case law background.

168.

First Amendment says Congress can make no law abridging free

exercise of religion. 14th amendment makes this apply to states as well.

169.

1963-1990.
Compelling Interest Test (Sherbert v. Verner)
government regulations imposing substantial burden on exercise of religion were constitutional only if
justified by compelling state interest. Under this test, acts were periodically struck down.

170.

Facially neutral statutes. In 1990, SCt decided Employment Division v.

Smith, a case about the meaning of the First Amendments guarantee of the free exercise of religion.
SCt held that facially neutral regulations were constitutional no matter what their impact on exercise of
religion. SCt held that where a state enacts a criminal ban that is generally applicable, the state may
automatically enforce that ban without any balancing of the governments interest against the
individuals interest even where the ban has the effect of substantially interfering with an individuals
exercise of his religion. (The ban at issue in Smith prevented Native Americans from making their
traditional religious use of the drug peyote.) However, facially neutral regulation designed to suppress
religious exercise and nothing else is unconstitutional. (Church of the Lukumi Babalu Aye v. City of
Hialeah).

171.

Congress response. The Smith decision was very unpopular. Congress

responded in 1993 by overwhelmingly passing the Religious Freedom Restoration Act (RFRA).
RFRA forced federal, state, and local governments to apply pre-Smith law, by which no government
action that had the effect of substantially burdening a persons exercise of religion could be taken
unless that action was the least restrictive means of accomplishing a compelling governmental
interest. (In other words, Congress was effectively saying that any governmental action that
substantially burdened the exercise of religion had to exercise strict scrutiny.)

172.

Based on Congress 14th Amendment enforcement power: In applying

its new rule to state and local governments, Congress relied on its 14 th Amendment enforcement
powers: since the 1st Amendment (including the guarantee of free exercise of religion) is made
applicable to the states through the 14th Amendments guarantee of due process, Congress reasoned that
it could tell the states how to enforce that free-exercise guarantee as a means of enforcing due
process. (Analogous to Voter Rights Act after Lassiter).

Result. SCt held that RFRA was unconstitutional. Majority said that Congress has been given the power to
enforce, not the power to determine what constitutes a constitutional violation. (In fact, even the three
dissenters agreed that Congress did not have the power to define substantive aspects of the 14 th Amendment.)

173.

Rejection of Katzenbach v. Morgan. Majority admitted that there was

language in a prior opinion, Katzenbach v. Morgan, which he said could be interpreted as
acknowledging a power in Congress to enact legislation that expands the rights contained in 1 of the
14th Amendment. But he said that this was not the best interpretation of what Katzenbach was saying.

174.

Effects would be unbounded: Majority then argued that allowing

Congress to expand or contract the scope of constitutional guarantees would produce an unstable,
easily-changed USC: If Congress could define its own powers by altering the 14 th Amendments
meaning, no longer would the USC be superior paramount law, unchangeable by ordinary means. It
would be on a level with ordinary legislative acts, and, like other acts, alterable when the legislature

36

shall please to later it [citing Marbury v. Madison] Under this approach, it is difficult to conceive of a
principle that would limit congressional power. Shifting legislative majorities could change the USC
and effectively circumvent the difficult and detailed amendment process contained in Article V.

RFRA struck down. Majority then concluded that RFRA in fact modified the scope of the free exercise clause,
rather than merely enforcing that clause.

175.

Congress can sometimes prohibit state statutes.

Majority
acknowledged that Congress could, in certain circumstances, prevent states from enacting certain types
of statutes that were not facially unconstitutional, as a method of preventing likely constitutional
violations. For instance, in the Voting Rights Act provision upheld in Katzenbach v. Morgan, Congress
could, and did, prohibit states with a history of voting-rights violations from applying literacy tests.

176.

RFRA out of proportion. But RFRA, majority said, was so out of

proportion to any supposed remedial or preventive object that it cannot be understood as responsive to,
or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change
in constitutional protections. Therefore, it was invalid.

Dissent. Three justices dissented here. But even the three dissenters agreed that Congress cant expand or
contract the scope of constitutional guarantees, even the scope of the 14 th Amendment guarantees as to which
Congress has an explicit enforcement power. (These Justices dissented only because they disagreed with the
Smith decision, and therefore didnt believe that Congress was in fact modifying the scope of the Free-Exercise
clause from what these dissenters believed that scope should be.

Koppelman discussion. Issue. Can RFRA be justified under any of 3 possible defenses of Morgan?
177.

Substantive interpretation.

i. SC takes this up first and rejects this. Held Congress must not be permitted to advance its own
substantive interpretation of 14th Amendment, because under this approach it is difficult to
conceive of principle that would limit congressional power.

ii. SC rejected without discussion possibility that Congresss substantive disagreement should
occasion revisiting of Smith decision. SC casually rather casually invoked stare decisis. This was
hypocritical, given that Smith itself rejected large body of precedent; demonstrates that SC is not
bound by its own precedents when it does not want to be.

iii. SC did not consider possibility that it could retain power to review rationality of Congresss
interpretation of its own powers, as it did in Jones v. Alfred H. Mayer Co. (264).
178.

Remedial Interpretation:

i. SC accepts this interpretation; namely, that RFRA is merely device to prevent constitutional
violations that are recognized as such by Smith (intentional religious persecutions).

ii. But SC observes Congress has not documented/alleged contemporary religious persecution of
magnitude sufficient to justify such a sweeping statute.

iii. This implies that Morgan power contains requirement of proportionality: The appropriateness of
remedial measures must be considered in light of the evil presented. (23) This statute is beyond
Congresss powers because it is so disproportionate to evil presented.
179.

Under enforcement

i. Extremely complex argument which SC did not raise here.

ii. In Smith, Scalia argued it was inappropriate for judges to weigh social importance of all laws
against centrality of all religious beliefs (1603).

iii. However, it would not be inconsistent with Scalias opinion here to say that Congress have
obligation, under free exercise clause, to place great weight on religious liberty and to enact

37

religious exemptions (e.g. Native American peyote users got their exemption from legislature after
judiciary rejected one). Thus, while it is inappropriate for judges to be doing balancing, Congress
could pass laws specifically carving out certain religiously-based exemptions from state laws.

iv. Problem with RFRA was that it instructed courts to balancing laws against religious beliefs as
under Smith, which Scalia said was inappropriate.

v. Under enforcement thesis allows Congress to step in where courts cannot go, but it does not
clearly say whether SC should defer to Congresss judgment about limitations of judicial
competence. Neither Smith nor Boerne courts explained whether/why SCs judgment about its
institutional competence was one of constitutional magnitude which Congress could not override.

Good Confusion. It is not clear what scope of Congressional power is in aftermath of Boerne. SC was less
deferential here to Congressional power than it was in the past, but it is difficult to say exactly how less
deferential.

Koppelman: SC did not persuasively distinguish Boerne from Katzenbach v. Morgan.

Limitations on state regulation

Judicial efforts to protect the expansion of the market from assertions of local power.

Clearest limitation on state power supremacy clause. When state statute conflicts with federal statute,
federal statute preempts state statute.

Primary issue. Do states have the power to regulate in certain areas that are within federal power?

Threshold question. Is subject matter of regulation one that Congress can regulate? If yes, then two possible
questions arise:

180.

Preemption problem. If there is federal statute, does it nullify a state

statute related to the same subject? [this is not strictly a constitutional question, but rather a question
of statutory interpretation]

181.

Dormant commerce clause doctrine. If there is no conflicting federal

statute, is the state law nonetheless disabled from regulating? [Other doctrines as well.]
Typology of Powers

Exclusive federal powers: war, treaties

Concurrent powers (either states or federal government can act independently of other): taxation

State powers, conditional on federal permission: interstate compacts

Shared powers (neither states nor federal government can act independently of the other): amend the USC.

Exclusive state powers: 10th and 21st amendments

Powers nobody has: the power to set up custom house on an internal state border, to enact an ex post facto law
or bill of attainder.

Preemption

Three ways federal statute may preempt state law:

182.

Express preemption. Federal statute says that it preempts state law.

There will still be interpretive questions concerning the reach of the express preemption. [see Shaw v.
Delta Air Lines, 381]

38

183.
Conflicting regulations. It may be impossible to comply with both
laws, or state law my frustrate purposes of federal statute.

i. Example: Perez v. Campbell (1971): AZ statute suspending drivers license of people who have
not satisfied judgments against them in accident cases conflicted with federal bankruptcy law,
which relieves debtor of duty to satisfy judgment.

184.

Occupying the field. Scheme of federal regulation may be so

pervasive as to make reasonable the inference that Congress left no room for the States to supplement
it. (Rice v. Santa Fe Elevator Corp. at 374).

i. There is some ambiguity about what constitutes a field. Definition of field is often
determinative of cases, and doctrine does not make clear how SC resolves this problem of
characterization there is judicial discretion in identifying breadth of field.
THE PRIVILEGES

AND IMMUNITIES

CLAUSE

OF

ARTICLE IV

PIC of Article IV. The Citizens of each State shall be entitled to all the Privileges and Immunities of Citizens
in the several States.

In any case in which out-of-staters are discriminated against by the state acting as a market participant, the
statute may be vulnerable to an attack based on PIC.

United Building Council v. Camden - No market participant exception for PIC

SCt has held that there is no market participant exception to PIC. Facts. Camden ordinance required that at
least 40% of employees of contractors and subcontractors on city projects be Camden residents.

Grounds for distinction of commerce clause. Commerce clause challenge to this kind of discrimination had
previously been rejected by SCt under market participant exception, which held that state can burden
interstate commerce when it does so in its capacity as a participant, rather than as regulator of market.
Majority reasoned that the rationale for a market participant exemption in the PIC context was not nearly as
strong as in the Commerce Clause context. The Commerce Clause deals only with regulation, and a state acting
as market participant is simply not regulating. But PIC bars any type of state conduct, regulatory or
otherwise, which discriminates against out-of-staters on matters of fundamental concern.

Holding: SCt held that Camden statute was discrimination against out-of-state residents.

185.

Discrimination against municipal residence barred: SCt broke major

new ground by holding that PIC bars discrimination based on municipal residence, just as it bars such
discrimination based on state residence. SCt conceded that a regulation that discriminates against outof-towners burdens some in-staters as well as out-of-staters. But it reasoned that while in-staters at
least have a chance to remedy at the polls any discrimination against them, out-of-state citizens have
no similar opportunity, so there is violation of PIC as to them.
186.

Two-step inquiry: This discrimination triggers 2-step inquiry.

(1) Did the law burden a privilege that is sufficiently fundamental to be protected by the clause? [yes,
because pursuit of common calling is a fundamental privilege.]

(2) Is there substantial reason justifying the difference in treatment? [need to remand case for
findings of fact on this question.]:

(a) SCt emphasized that ban on discrimination against out-of-staters is not absolute; all that is
required is that there be a tight fit between the particular discrimination used and a significant
evil that the state is combating.

(b) Here, Camden claimed that it was attempting to reverse wide-spread local unemployment and
middle-class flight. SCt remanded to TC for consideration of whether this was an
appropriate purpose, and whether the particular discriminatory measure chosen was

39

sufficiently closely linked to attainment of that objective. But SCt implied that, especially
since the City was spending its own funds, the City would prevail if it could show that
emigration was indeed a peculiar source of the Citys economic decline.

Dissent - Blackmun. PIC did not prohibit discrimination among state residents because Elys process theory
(45, and Stones long quotation on 294) did not indicate any representational failure that warranted judicial
intervention.

Metropolitan Life Insurance Co. v. Ward

1985. Held that some discrimination against out-of-staters, even if consented to by Congress under CC, may
still violate equal protection clause of 14th Amendment.

FACIALLY

NEUTRAL STATUTES WITH SIGNIFICANT EFFECTS ON INTERSTATE COMMERCE

Problem. Both cases below agree that proof of discriminatory impact can be a basis for a claim of
discrimination, but differ on whether discrimination has been proven. Not clear what discrimination means.
If it does not mean discriminatory purpose (Hunt), and it is not demonstrable simply by discriminatory impact
(Exxon), then what else could it mean?

Exxon Corp. v. Governor of Maryland

Stevens 1978. A statute which is evenhanded on its face may nonetheless turn out to be disproportionately
burdensome to some or all out-of-state businesses. Where this disproportionate impact is truly accidental, and
does not directly derive from the fact that the burdened firms are out-of-staters, SCt will normally uphold the
statute. This is what happened here.

Facts. Maryland passed a law prohibiting oil producers or refiners from operating retail gas stations in
Maryland. The law was enacted because of evidence that gas stations operated by producers and refiners had
received preferential treatment during the 1973 oil shortage. Since no gas is produced or refined in Maryland,
the rule against vertically-integrated operations affected out-of-state companies exclusively. Conversely, the
vast majority (but not all) of the non-integrated retailers, who were not harmed and were probably helped by the
statute, were in-state business people.

187.

Statute attacked. Exxon and several other out-of-state integrated oil

companies sued. They made a three-pronged Commerce Clause argument: (1) that the measure
impermissibly discriminated against interstate commerce; (2) that the measure unduly burdened such
commerce; and (3) that because of the nationwide nature of oil marketing, only the federal government
may regulate retail gas sales.

Statute upheld. SCt upheld this statute (forbidding any producer or refiner of petroleum products from
operating a retail gas station) against each of these attacks:
188.
No discrimination. First, majority held that statute did not discriminate
against interstate commerce. Most significantly, not all out-of-state companies were affected by the
statute; Sears Roebuck, for instance, was an out-of-state company which was selling gas at retail
within Maryland, yet was not involved in refining it and was therefore not affected by the statute. The
mere fact that the entire burden of the statute fell on some out-of-state companies was insufficient to
establish that interstate commerce was discriminated against.

189.

Not burdened. Similarly, SCt found that interstate commerce was not
impermissibly burdened by the statute. The opinion conceded that the statute might cause sales
volume to shift from refiner-operated stations to independent dealers. But, SCt held, Commerce
Clause protects the interstate market, not particular interstate firms, from prohibitive or burdensome
regulation. Furthermore, SCt noted, in all probability the same percentage of gasoline would come
from out-of-state suppliers after the statute as before it (e.g. 100%), so that the flow of goods in the
interstate market would not be decreased.

40

190.

Not preempted. Finally, SCt quickly dismissed contention that because

the market for gasoline is nationwide, no state may regulate its retail marketing. DCC may preempt an
entire field from state regulation only when lack of national uniformity would impede the flow of
interstate goods. What Ps were complaining of here was not lack of uniformity, but rather that many or
all of the states would pass exactly the sort of divestiture law that Maryland did. Thus, the problem
was not one of national uniformity.

Dissent - Blackmun.
191.
Protectionist device. Viewed statutory scheme as a protectionist device
designed to protect in-state retail service station dealers from the competition of out-of-state
businesses. More than 99% of local retailers were protected from competition by more than 98% of
interstate retail gas stations.

192.

States burden of proof. Blackmun proposed that discriminatory impact

shifted burden of proof onto state: state should justify its statute. He felt that this protectionist
objective was not justified by any legitimate state interest that could not be satisfied by more
evenhanded regulation. [but Blackmun is not sure that discrimination was intentional.]

193.

Universal discrimination requirement. Also, Blackmun interpreted

majoritys opinion as requiring that discrimination be universal before a Commerce Clause violation
would be found. Under this interpretation, he foresaw that States will be able to insulate in-state
interests from competition by identifying the most potent segments of out-of-state business, banning
them, and permitting less effective out-of-state actors to remain. (He found the facts of this case
indistinguishable from those of Hunt, where North Carolina had discriminated only against the
powerful Washington growers, but where the SCt had nonetheless found the Commerce Clause to have
been violated.)
Hunt v. Washington State Apple Advertising Commn

Burger 1977. Invalidated NCs law requiring that closed containers of apples shipped to state from elsewhere to
bear either USDA grade or no grade at all.

Facts. North Carolina required that all closed containers of apples shipped into or sold within the state bear the
applicable U.S. grade or no grade at all. A group of Washington state apple growers attacked the North Carolina
statute, since it prohibited the display in NC of Washingtons stringently-policed apple grades. The Washington
manufacturers had to either obliterate the printed labels on containers shipped to North Carolina, or repack
apples bound for NC in special containers.

Holding:

194.

SCt found that NC statute unconstitutionally burdened interstate

commerce. Here, like Exxon, SC declined to attribute a protectionist motive to the law (355).
However, SC had three objections:

i. NCs statute discriminated against Washington apple growers in that Washington apple growers,
but not NC apple growers, have to bear additional costs by altering their marketing practices.
Washington growers had to repack their apples or obliterate their labels, whereas NC growers
were unaffected.

(1) C/A. However, this is precisely the disparate impact argument rejected by SC in Exxon.
ii. Regulation stripped away Washingtons competitive and economic advantage that it has earned
for itself. Whereas NC had no grading requirements at all, Washington State had very strict ones;
the NC statute hurt Washington by stripping from it the competitive advantages it had earned
through its rigorous and well-known inspection and grading system.

(1) C/A. What is earned about Washingtons advantage? If there is national acceptance of
Washington standard, why hasnt FDA regulation changed?

41

iii. The law has an insidious leveling effect on the heretofore free market forces at work.
(1) C/A. But why is the market created by Washington states participation free, while NC
regulation isnt.
195.
Intentional. SCt attached substantial weight to the fact that the NC
scheme was apparently intentionally discriminatory. There was evidence that it was the NC apple
growers who were responsible for the passage of the statute. Also, the states declared purpose for the
statute (to safeguard consumers against fraud) was suspect, since (1) the statute applied only to labels
of closed shipping containers, and retail sales are generally not made while the apples are still in their
shopping containers; and (2) the state permitted the sale of apples with no grading at all. [note: this
differs form AKs analysis above. Check this out!!]
196.
Balancing test. Finally, SCt applied a balancing test, and concluded
that the burdens on interstate commerce far outweighed the limited benefit to NC consumers. As part
of this balancing, the SCt considered the availability of non-discriminatory alternatives (e.g. permitting
out-of-state growers to utilize their state grades only if they also mark the applicable federal labels on
the containers).
197.
Significance of discrimination. SCt claimed that the probably
intentional nature of the discrimination was not dispositive of SCts analysis, and that the same result
would have followed even if the hardship on Washington producers was truly an incidental by-product
of a scheme intended to protect consumers (which the SCt doubted). Nonetheless, it seems clear that
the presence of an intent to discriminate weighed heavily in the SCts balancing process.

42

Separation of powers - Horizontal distribution of national power

Distribution of national power - Why does separation of powers matter?

Separation of Powers vs. Checks and Balance

198.

Separation of Powers.

Independence of legislative, executive, and

judicial branches.

199.

Checks and Balances. Interdependence of branches, each needing help

of other to accomplish its ends.

Historical Context
200.
These devices were not present in AOC, but got added in USC in order
to ameliorate expansion of central power.
201.
These two devices and federalism are the two big restraints on federal
government: which is more important?

Federalist 47(Madison)
202.

Three branches are not totally separate and distinct.

203.
risk tyranny.

However, if any two branches were totally combined, then we would

Federalist 48 (Madison)

204.

Congress needed most checking, because some of constraints

envisioned by Federalist 10 would not operate against Congress.
Congress is sufficiently numerous to feel all the passions which actuate a multitude, yet not so
numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes.

As with federalism, point of SOP and CAB is to protect individuals, not institutions.
205.
Various checks secure realm of private liberty by preventing
government from becoming strong enough to invade those liberties.
206.
promote those liberties?

What if vigorous government action is necessary to preserve or

Political Safeguards argument (JR is unnecessary because each of these institutions can take care of itself.)
Does this have more or less persuasiveness here than in context of federalism?

Formalism vs. functionalism

Formalism separation of powers doctrine is governed by relatively clear rules that demarcate separate spheres
of governmental authority.

207.

Formalism is defended on originalist grounds.

208.
Some formalists argued that SC has good reason to decide cases in
formalist way so as to ensure against various problems presented by modern legislative initiatives,
even if formalism is not defensible historically.

43

Functionalism advocates more fluid approach that prohibits an aggrandizement of power or undue
mingling of functions, but that allows some overlap and is more receptive to changing boundaries so as to deal
with changing situations.

209.

Some functionalists use originalism to criticize formalism (shown by

Flahertys argument below).

210.
Other functionalists concede that formalism is defensible on originalist
grounds, but defend functionalism as best way to make sense of constitutional structure under modern
circumstances, in which presidents power threatens to undermine constitutional structure.

Flaherty originalist defense for flexible approach to separation of powers: Judiciary should not be shielding
presidency (most powerful office in nation) from congressional regulation.

211.

Founders intended for separation of powers to fulfill several goals:

balance among branches, accountability to electorate, energetic/efficient government.
212.
Balance cuts against unitary presidency, but accountability and energy
cut in favor of unitary presidency.
213.
Examination of founders intentions shows we do not need to consider
balance and accountability/energy as mutually exclusive goals.

i. Founders took balance very seriously. Thus, given rise of administrative state, congressional
regulation of executive branch is more crucial than ever before.

ii. Contrary to usual assumptions, Founders sought to tame, not further empower, those divisions of
government claiming special responsiveness to electorate. Thus, need for congressional regulation
is necessary precisely because of modern presidents claim to electoral accountability.

Werhan. Proposal for reconciling formalism and functionalism

214.

Separation of powers concept is sufficiently flexible to allow

government to make a showing that its departure from the norm is justified and therefore legitimate.

215.

Government action violating separation norm would survive judicial

review only if it were (1) explicitly authorized by USC, or (2) narrowly tailored to achieve an
important, overriding government interest.

44

Judicial review
Marbury v. Madison Supreme Court review of congressional statutes

Marshall 1803. Which branch of the federal government shall have the final say in interpreting the USC?]; this
case held unconstitutional one provision of Judiciary Act of 1789. This was pivotal case in constitutional law
because it established judicial review, the power of federal courts to declare statutes unconstitutional.

Historical background: There was a political struggle between John Adams and the Federalists, and his
successor Thomas Jefferson and the Republicans. Just before leaving office, Adams appointed a number of new
judges, including several justices of the peace for D.C. Commissions for these justices of the peace had been
signed by Adams, but not yet delivered by the time he left office. Jefferson Administration then refused to
honor the appointments for which commissions had not actually been delivered prior to the end of Adams term.

Subject of suit: Several of the would-be justices of the peace, including William Marbury, brought suit directly
in the SCt. They sought a writ of mandamus compelling Jeffersons Secretary of State (James Madison) to
deliver their commissions.

Marshalls decision: Marshall decided Marbury did have a right to his commission, and there is a remedy for
the violation of this right, but Marshall dismissed the case for lack of jurisdiction because the SCt was not the
correct court to provide that remedy.

216.

Ordering of the issues: Marshalls way of ordering the issues was

extraordinary. Ordinarily, question of whether the court has jurisdiction should be considered first. If
answer is no, then there is no occasion to reach substantive issue, such as whether Marbury had right to
his commission. Best argument on behalf of Marshall is that, since judicial review is also a delicate
matter, it was important for Marshall to demonstrate that he could not avoid the constitutional question.

217.

Right to commission: Marshall decided that Marbury and the other

justices did indeed become entitled to their commissions once these had been signed by the President
(and sealed by Secretary of State, who was Marshall himself!). Marshall could have short-circuited the
whole problem by ruling that delivery was required for validity, but he did not take this route.

218.

Remedy: Moreover, Marshall (too?) quickly concluded that this case

was a proper case for the court to issue the writ of mandamus. Marshall distinguished between
political acts, which are not reviewable by the courts, and acts specifically required by law, which are
reviewable. The refusal to deliver the commissions fell into this latter category.

219.

Mandamus not allowed: Marshall had to decide whether the particular

remedy sought by Ps, an application for a writ of mandamus directly to SCt, could be granted.

(a) Judiciary Act allows: The then-effective Judiciary Act provided that the SCt would have
jurisdiction to issue . . . writs of mandamus . . . [to] persons holding office under the authority of
the U.S. Thus the Act itself explicitly authorized the relief being sought by Ps.

(b) At odds with USC: However, Marshall concluded that this grant of jurisdiction was in conflict
with Article III. 2, of USC, which grants the SCt original jurisdiction only [i]n all Cases
affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be
Party. Since issuance of mandamus is not among the types of cases as to which original
jurisdiction is conferred on SCt, the congressional statute was at odds with the USC.

220.

Supremacy of USC (holding for which Marbury v. Madison) is

principally known today): If SCt identifies a conflict between a constitutional provision and a
congressional statute, SCt has the authority (and the duty) to declare the statute unconstitutional and to
refuse to enforce it. Therefore, the requested writ of mandamus could not be issued. In reaching this
conclusion, Marshall made two interlocking arguments:

(a) USC is paramount: The very purpose of a written constitution is to establish a fundamental and
paramount law. It follows from this that any act of the legislature repugnant to USC must be void.

45

(b) Who interprets: It is emphatically the province and duty of the judicial department to say what
the law is. That is, it is the court, and not the legislature, which must make the determination
whether, in a particular case, an act of Congress is in conflict with the USC. To deny the
permissibility of judicial review of the constitutionality of a congressional statute would be to say
that this courts must close their eyes on the USC, and see only the law. This doctrine would
subvert the very foundation of all written constitutions.

221.

What Marbury does not say:

(a) SCt was only branch of government that could make constitutional decisions.
(b) Congress and the president were obligated to follow SCts interpretations.

Critique. In order to exercise judicial review in this case, Marshall found it necessary to stretch his reading of
both 13 and Article III. Unless both of these texts were read in the way that Marshall read them, there is no
conflict between them, and therefore the case would not present an occasion for SCt to exercise power of
judicial review. In each case, Marshall rejected without discussion or explanation the reading of the provision
that would avoid the constitutional conflict.

222.

Marshall stretched 13 of Judicial Act of 1789 to say it conferred

original jurisdiction on SC for writs of mandamus. 13 can be read as adding either to the SCts
original jurisdiction or to its appellate jurisdiction. It depends on how you read the semicolon in last
sentence in footnote on p. 27. If you regard mandamus power as expanding SCts appellate
jurisdiction, then Marshall is right. But you can also read that power as applicable only in class of
cases listed before semicolon.

223.

Marshall stretched USC Article III to say original jurisdiction could not
exist for writs of mandamus. Article III, 2 can be read either as forbidding Congress from adding to
SCts original jurisdiction (USC describes maximum amount of original jurisdiction that SCt can
possess) or as permitting Congress to add to SCts original jurisdiction (by one reading of the
exceptions clause, Congress has power to grant Court original jurisdiction over cases over which it had
appellate jurisdiction under USC).

Who determines constitutionality? Most critics concede that the USC is superior to statutes and that where
there is a conflict, USC must be respected. However, critics argue that nowhere in the USC is it stated that the
courts, not Congress, ought to decide whether a given statute does in fact conflict with USC.

Theoretical foundation of judicial review

Interpretations just reviewed look like pretty transparent manipulations of legal sources, hardly the work of a
great legal mind.

The part of Marbury that has lasted is the part establishing judicial review. Logic below continues to be
followed by modern courts. It is the theoretical foundation of judicial review.

224.

USC is supreme law;

225.

any statute that conflicts with USC is therefore not the law;

226.

it is the judiciarys job to say what the law is;

227.
conflicts with USC.

therefore, it is the judiciarys job to decline to enforce any law that

Judicial supremacy:

228.

Nothing in this logic implies the kind of judicial supremacy asserted by

SCt in cases such as Cooper v. Aaron. Perhaps there is a case to be made for judicial supremacy, but it
would have to be defended on other grounds.

46

229.

Other interpreters of the USC also matter. Note, for example, Lincolns
first inaugural address. His holding that the union is indissoluble had more important historical
consequences than any decision in the history of the SCt.

What do you think of power of judicial review established by Marbury a power that is nowhere specified in
USC?
230.
Is it appropriate for SCt to declare congressional legislation
unconstitutional? How about state legislation?
231.
Ought Congress and President defer to SCts interpretations of USC?
Ought state governments do so?

232.

If judicial review is ever appropriate, how can it be justified? How

does ones choice of justifications (if one is persuaded by any of them) affect the way in which
judiciary review is actually practiced?

Countermajoritarian difficulty with judicial review: This involves two difficulties:

233.
Frustrating present majority. Courts are suppressing the will of a
present majority, merely because some past majority has said that a particular course of action is
impermissible. This is really an intertemporal difficulty; it applies even if judicial interpretation is
purely mechanical.
234.
Judicial discretion. There is a discretionary element in interpretation,
so that the values of (unelected) judges will enter into the political decisionmaking process. In order to
respond to this difficulty, courts must rest their decision on some legitimate source of decision in order
to ensure that judges are not acting like legislators. What those sources of decision should be is, of
course, a matter of continuing debate.

Martin v. Hunters Lessee Supreme Court review of state court decisions

Story 1816. Upheld as constitutional 25 of 1789 Judiciary Act, which allowed SCt to hear appeals of
constitutional issues decided by highest court of a state. (court reversed contrary conclusion of Virginia Court
of Appeals)

Background. In Marbury, SCt held that it had the power to review acts of Congress for constitutionality. In
Martin, SCt confronted similar, and perhaps even more important question, of whether SCt is constitutionally
authorized to review the constitutionality of state court decisions.

Virginias argument. This case involved the issue of whether a particular Virginia statute conflicted with a
federal treaty. The Virginia courts took the position that if litigation commenced in state courts, then it was up
to the state court to say whether the state action violated the federal USC, and the SCt had no right to review
whatever conclusion the state court reached.

Holding. SCt flatly rejected Virginia courts view, and held that the SCt could review the constitutionality of a
decision by a states highest court. Judiciary Act 25, giving SCt appellate jurisdiction over cases pending in
state courts, is supported by letter and spirit of USC.

Components of Storys argument: Story started by nothing that Article III, 2 of USC gave SCt jurisdiction over
all constitutional cases, regardless of their origin. Story relied on:
235.

structural argument that final judgment must reside somewere,

236.

consent argument that the American people granted this power,

(a) Sovereignty argument rejected: Virginia courts assertion that it was sovereign was rejected, on
the grounds that the federal USC cut back upon state sovereignty in numerous respects. There was
no reason to presume that state judiciaries were immune from this set of limitations.

237.

prudential argument that uniformity of decisions is important,

47

(a) There is a need for uniformity in decisions throughout the nation interpreting the USC: If there
were no revising authority to control these jarring and discordant judgments, and harmonize them
into uniformity, the laws, the treaties and the USC would be different in different states . . . The
case, not court, gives jurisdiction. It is clear that state courts would hear cases that involve USC,
federal laws, treaties, etc.

238.

Another prudential argument is to prevent forum shopping.

Evaluation Storys opinion:

239.

Ubiquity of prudential argument here gave us opportunity to begin

considering whether prudential argument is ever appropriate in constitutional law.

240.

Storys deference to Congress in this opinion contrasts strikingly with

Marshalls lack of deference in Marbury.

241.

How important is prudential argument in constitutional law? Why is it

even appropriate?
242.

What does argument from uniformity imply about SCts role?

(a) Is it argument against the sort of departmentalism advocated by Easterbrook, Jefferson, Madison,
Jackson, and Lincoln?

(b) How do claims of Cooper v. Aaron compare with those of Lincolns inaugural?
(c) Under Meeses departmentalist theory, how can it be flatly claimed (as Meese does at 56) that the
executive branch is bound to enforce a court order? If uniformity in decision is important here,
why doesnt it justify the dictum in Cooper v. Aaron?
Judicial exclusivity
Cooper v. Aaron - Federal judiciary is supreme SCt binds states

Facts. Arkansas state officials claimed that they were not bound by a lower federal court desegregation order.

Dictum(?)/Holding. SCt went out of its way to state that the federal judiciary is supreme in the exposition of
the law of the Constitution, and that the SCts interpretation of the USC is binding on state legislatures and
executive and judicial officers.

Does judicial review imply judicial supremacy?

Counter-majoritarian nature of judicial review makes judicial supremacy problematic.

Two perspectives

243.

History of JR has been deplorable SC should exercise JR with

reluctance.

244.

History of JR has protected our civil liberties SC should readily

exercise JR.

History of JR
245.
Dred Scott (1857) invoked as example of judicial overreaching. SC
held that blacks could not be citizens of U.S., and that Congress had no power to exclude slavery from
territories.

48

246.

14th Amendment (1868) overruled Dred Scotts holding that blacks

were not citizens. Imposed broadly-worded constraints on states gave judiciary more power to
regulate state behavior.

247.

Lochner (1905)

(a) Cited as example of judicial overreaching. SC held maximum hour laws violated peoples rights
to be free from economic regulations.

(b) Generally, during New Deal, SC collided with Executive and Congress, which promulgated
sweeping regulations that SC overruled.

(c) But SC then allowed these regulatory laws, overturning Lochner.

248.

Brown v. Board of Education (1954) cited as example in support of

JR. SC imposed desegregation on states violating individual liberties.

249.

Roe v. Wade (1974) created constitutional right to abortion.

(a) Exemplifies differing historical analyses regarding JR.

(b) Supporters analogized Roe to Brown.
(c) Opponents analogized Roe to Lochner (no explicit right to abortion or freedom from economic
regulations; judicial preference) and Dred Scott.
Departmentalism

Most important piece of constitutional interetation in U.S. history Lincolns first Inaugural: I hold that in
contemplation of universal law, and of the USC, the Union of these States is perpetual. This seems to qualify
judicial supremacy.

Lincoln is stretching it here

250.

AC provided for perpetuity as well, but

251.

USC preamble intended to create more perfect union

Lincolns argument works if and only if there was some overriding moral imperative not found in USC, such as
need to prevent spread of slavery.
252.

But USC protected slavery!

253.

This begs issue of extent to which USC is source of authority.

Jurisdiction and standing

Need for political constraints on SC: alternative views

254.
powerful/dangerous.

Because judicial branch can only hear cases, branch is not very

255.

Since so much of JR rests on judiciarys prerogative to check

legislative branch we should examine whether judiciary is well-suited to the task.
256.
Does Congress power of reprisal allay the countermajoritarian
difficulty? Is the exceptions clause too broadly worded?

49

Limitations on judicial power

257.

Case or Controversy Requirement (USC Article III, 2) SCt can

resolve only actual cases/disputes. SCt cannot grant advisory opinions.

258.

Appellate Jurisdiction

(1) Congress can make exceptions to SCts appellate jurisdiction.

(2) Congress does not have to create lower federal courts Congress can stipulate what their
jurisdiction is and is not.

(3) Federal judicial power extends to diversity jurisdiction, whose minimal required amount ($75K) is
set by Congress. The minimum amount for diversity jurisdiction was raised to $75K effective
1/17/97.
Ex Parte McCardle - Congressional control of appellate jurisdiction

1869. SCt affirmed that Congress does indeed have at least some power to control the boundaries of the SCts
appellate jurisdiction.

Facts. McCardle was imprisoned by a military government imposed by Congress as part of post-Civil War
Reconstruction. He brought a habeas corpus action in federal circuit court, charging that the Reconstruction
Acts under which he was imprisoned were unconstitutional. The circuit court rejected his claim, and he then
appealed under an 1867 Congressional statute, authorizing the grant of habeas corpus by federal circuit courts
and also authorizing appeal to the SCt in such cases.

Congress restricts appeal. After SCt heard arguments in this case, but before it handed down its decision,
Congress passed a law repealing the portion of the 1867 Act which allowed appeals to the SCt. (Congress did
this out of fear that the SCt would hold that the Reconstruction Acts were unconstitutional). Thus Congress
purported to deprive the SCt of its right to decide the McCardle case and any other habeas corpus case coming
to it by appeal form the circuit courts.

Holding. SCt upheld Congress restriction of the SCts jurisdiction. Opinion noted that the appellate
jurisdiction of SCt is conferred with such exceptions and under such regulations as Congress shall make. The
limitation enacted by Congress here was such an exception. Therefore, it had no jurisdiction to decide the case.
259.
This case, which seems to hold that Congress has unlimited power to
strip SCt of its jurisdiction, is pure text, but does structure and prudence cut another way?
260.
It depends on how broad the holding is. It might be that Congress can
restrict jurisdiction only if theres some other way of getting to the SCt with ones constitutional claim.

(a) The 1789 Judiciary Act gave federal courts the power to issue writs of habeas corpus to federal
prisoners; 1867 Act let federal courts issue writs to any court, state or federal.

(b) McCardle didnt plead the 1789 Act; after he sued, Congress repealed the 1867 Act. (83)

Limited withdrawal. Observe that in the statute involved in McCardle, Congress was not completely
withdrawing the SCts right to hear habeas corpus cases. Rather, it was withdrawing that right only where the
SCt got the case by appeal from the lower courts; under the jurisdictional statutes of the time, an original
petition for habeas corpus could be commenced in the SCt itself. Furthermore, even if only the lower courts
had jurisdiction, this would still not leave the litigant without the possibility of federal habeas corpus relief; the
lower court decision would simply be final.

Some argue this case showed Congress usurpation of authority by preventing SCt from exercising JR.

Contrast with McCulloch.

261.

Ex Parte McCardle SC would not examine Congress motives

50

262.

McCulloch SC would examine Congress motives

263.

Question can we chalk this distinction up to fact that USC explicilty

grants Congress power to set judiciarys jurisdiction through exceptions clause; while necessary and
proper is more subjective analysis?
United States v. Klein

1872. Limited Congressional power approved in McCardle. How? Perhaps Congress can control jurisdiction,
but it cant instruct the SCt how to decide cases. But its not altogether clear what Klein holds.

Good confusion

Congressional power to strip SCt of its jurisdiction remains uncertain. Doubts about the constitutionality of
jurisdictional limitations partially account for Congresss failure to adopt such statutes. This is because many
people accept structural argument that SCt must check Congress when it violates USC.

Debate is mainly in academia; there is not much case law here.

Case or Controversy Requirement

SCt cannot issue advisory opinions. It must wait for an actual controversy to appear before it before it can
decide a constitutional question. This fact may assuage our worries about the possibility of judicial tyranny, and
so may help to justify judicial review.

On the other hand, case/controversy requirement may cut in the other direction. James Bradley Thayer
famously argued that this limitation of judicial power entailed an obligation of the judiciary to defer to the
legislature. Here is his argument:
264.
It is only as litigation springs up and raises the point of
constitutionality, that any question for the courts can regularly emerge.
265.
Thus, it may be that the mere legislative decision will accomplish
results throughout the country of the profoundest importance before any judicial question can arise or
be decided.
266.
It is plain that where a power so momentous as this primary authority
to interpret is given, the actual determinations of the body to whom it is intrusted are entitled to a
corresponding respect; and this not on mere grounds of courtesy or conventional respect, but on very
solid/significant grounds of policy and law.
267.
Judiciary may well reflect that if they had been regarded by the people
as the chief protection against legislative violation of the USC, they would not have been allowed
merely this incidental/postponed control. They would have been let in, as it was sometimes
endeavored in the conventions to let them in, to a revision of the laws before they begin to operate.

268.

Koppelman.
Marbury answer this argument?

Is Thayer correct here?

Does Marshalls opinion in

Standing

Background
269.
standing.

This prohibiting of advisory opinions is the source of the law of

270.
In order to be able to compel judicial decision, a litigant must have a
legally cognizable stake in the controversy. If a federal court decision will not redress an injury, either
because what is complained of is not an injury or because the decision will have no effect, then the
decision would be an advisory opinion.

51

271.

Standing doctrine goes back to Marshalls claim that individual rights

and nothing else is the SCts business:

272.

Although the requirements of standing must be met in every lawsuit

filed in federal court, the issue frequently arises in cases presenting important constitutional and public
law statutory questions. As such, standing is crucial in defining the scope of judicial protection of
constitutional rights. Because standing is jurisdictional, federal courts can raise it on their own and it
may be challenged at any point in the federal court proceedings. (Erwin Chermerinsky)

Standing Requirements. Standing has constitutional and prudential components which must be satisfied to get
into any federal court (98-99). Prudential components can be overruled by statute; constitutional components
cannot be overruled by statute.
273.

Constitutional

(a) P must allege that he has suffered or imminently will suffer an injury
(b) P must allege that injury is fairly traceable to Ds conduct,
(c) P must allege that a favorable decision is likely to redress the injury.
274.

Prudential modality

(a) P must assert own rights, not those of third parties,

(b) Court wont adjudicate abstract questions or generalized grievances,
(c) Ps complaint must fall within the legally protected zone of interests.
ALLEN V. WRIGHT - IRS

TAX-EXEMPT STATUS FOR SEGREGATED PRIVATE SCHOOL

OConnor 1984. Dismissed, for lack of standing, a suit by parents of black school children who claimed that
the IRS had not fulfilled its duty to deny tax-exempt status to racially discriminatory private schools.

Tax breaks for discriminatory private schools. P will generally find it hard to establish the cause-in-fact aspect
of standing for a claim that tax breaks have caused some third party not before the court to injure him. The
difficulty of establishing standing for such a claim was illustrated when SCt found the cause-in-fact requirement
unsatisfied in a case in which parents of black public school pupils attacked the IRSs grant of tax-exempt status
to discriminatory private schools.

Facts. Parents claimed that the tax breaks enabled discriminatory private schools to offer cheaper tuition, thus
inducing more parents of white students than would otherwise be the case to withdraw their children from the
public schools to place them in these private schools. These withdrawals in turn deprived the black students of
their constitutional right to attend integrated public schools.

Holding. By 5-3 vote, SCt concluded that the line of causation from the IRSs conduct to the continued
segregation of the public schools was so attenuated that the latter was not fairly traceable to the former.
Government aid to racially discriminatory schools caused too abstract a harm to be cognizable. The impact of
the allegedly improper exemption on school desegregation was too speculative a harm.
275.
Speculative elements. For there to have been standing, the parents
would have had to make 3 showings: (1) that there were enough racially discriminatory private
schools receiving tax exemptions in Ps communities for withdrawal of those exceptions to make an
appreciable difference in public-school integration, (2) that a significant number of schools would, if
threatened with loss of the tax exemption, change their policies; and (3) that a significant number of
parents of children attending such schools would transfer their children to public school if the
exemption were withdrawn. According to the majority, Ps had not alleged any of these three elements.

52

276.

AK Commentary. The upshot was that even if the granting of the

exemptions is unconstitutional, no one can challenge this unconstitutional action in federal court. Is
that a bad result? Does it mean that the doctrine should be changed?

AK. Constitutional requirements, especially causation, are difficult to satisfy where P seeks to change state of
world (e.g. desegregate schools) and action is not typical C/L action.

Dissent - Brennan. Case has standing because it is clear that there would be at least some degree of
desegregation if SC held against IRS.

Exception to rule of no taxpayer standing (Flast v. Cohen, 1968). Taxpayer standing exists where there is a
logical nexus between the status [of taxpayer] and the claim.

277.

What nexus requires. The requisite nexus will be found to exist

only where two showings are made: (1) that the statute relies on Congress power under the Taxing
and Spending Clause of Article I, 8, rather than being merely an incidental expenditure of tax funds
in the administration of an essentially regulatory [law]; and (2) that the challenged law violates
specific constitutional limitations imposed on that Taxing and Spending power, not simply that the
statute is generally beyond the powers delegated to Congress by Article I, 8.

278.

Establishment Clause cases (e.g. government subsidization of

religion.), passes this 2-part test. Ps claim was that a federal-aid-to-education act, by giving financial
aid to religious schools, violated the First Amendments Establishment Clause. This Clause operates as
a specific constitutional limitation upon Congress Taxing and Spending powers.

Separation of powers. SCt has several times stated that the standing requirement reflects the idea of separation
of powers:

279.

If bystanders could obtain injunctions from federal court, this would

have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive
action, (Allen).

280.

This would permit Congress to transfer from the President to the

courts the Chief Executives most important constitutional duty, to take Care that the Laws be
faithfully executed. (Lujan).

281.

AK: is this a persuasive argument? Assuming that Ps would prevail if

they were granted standing, doesnt this argument interpret separation of powers to mean that the
executive has a right to break certain laws with impunity?

53

USC is judicially under enforced. The standing requirement means that even if there is a constitutional
violation, there may be no redress in federal court. This conclusion strengthens Sagers claim (56) that the USC
is judicially under enforced.

LUJAN V. DEFENDERS

OF THE

WILDLIFE ENDANGERED SPECIES ACT

Scalia 1992. SCt denied standing to a public interest group that sought to question an interpretation of the
Endangered Species Act.

Must be actual or imminent. The injury in fact must be actual or imminent. Thus, if the threatened harm
is far in the future, or too speculative, the actual or imminent element will not be satisfied, and standing will
not be found.

Facts. Ps challenge certain federal agency action that will have the effect of endangering certain species abroad.
D (U.S. government) argues that the Ps do not have standing. Ps retort that they have in the past, and will
again, travel to the habitats of the potentially affected species, in order to observe/study those species.

Holding:

282.

Scalia held that Ps cannot sue because they are not the objects of the
government action. Ps have not shown the requisite actual or imminent harm. Such someday
intentions without any description of concrete plans, or indeed any specification of when the
someday will be do not support a finding of the actual or imminent injury that our cases require.

283.

Scalias language seemed to imply an absolute constitutional barrier,

but it is easily crossed: Ps could have brought plane tickets, or Congress could have created a $1
bounty for anyone who successfully sued. The latter suggests that injury in fact isnt an Article III
requirement at all.

Concurrences.

284.

Kennedy. Concurring in part, Kennedy concluded that the Ps havent

demonstrated a concrete injury. He suggested that SCt needed to be sensitive to new rights of action
that are not analogous to common law rights of action.

285.

Stevens. Concurring in judgment, Stevens thought that the Ps have

standing, but that they lose on the merits.

Dissent - Blackmun. Argued that the plurality opinion invited executive lawlessness and made unfounded
assumptions about causation.

RAINES V. BYRD - LINE

ITEM VETO

Rehnquist 1997. Dismissed, for lack of standing, a challenge to the Line Item Veto Act brought by six members
of Congress.

Majority. No interest in avoiding institutional loss of power. SCt held that the abstract dilution of
institutional legislative power is not sufficient injury to permit standing.
286.
Members of a political body, such as a legislature, do not have standing
to litigate against an action that they say takes away the political power of that body.
287.
Thus members of Congress who unsuccessfully voted against a bill
allowing line-item by the President were held not to have standing to litigate the constitutionality of the
resulting statute, where their only claim was that the bill causes a type of institutional injury (the
diminution of legislative power), which necessarily damages all Members of Congress, and both
Houses of Congress equally.
288.
Rationale. Majority reasoned that P congressmen were not alleging
injury to themselves as individuals, merely injury to the position of Member of Congress. And the

54

institutional injury they alleged was wholly abstract and widely dispersed. Therefore, the Ps did not
have the concrete and particularized interest required for standing.

289.

Votes needed to pass bill. But a different situation would be presented

if a Congresspersons vote were truly cancelled, in the sense of deprived of all of its effect. Thus the
Raines Court distinguished a prior case, Coleman v. Miller (1939) in which the Kansas legislature had
deadlocked 20-20 on whether to ratify a particular constitutional amendment, and in which the
Lieutenant Governor had broken the tie. When the 20 members who voted no sued on a claim that
the tie meant that the legislature had not in fact ratified the amendment, the SCt found that they had
standing. But the Raines Court held that Coleman stands only for the proposition that legislators
whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to
sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes
have been completely nullified. In Raines itself, by contrast, the Ps simply lost by being outvoted, so
their votes had not been completely nullified, and they thus had no standing.

Concurrence - Souter. Wants to keep SCt out of what is essentially an inter branch controversy.

Dissents.

290.

Stevens. Thought that this law denies every member of Congress his
right to vote on the measures that ultimately become law.

291.

Breyer. Thought that this statute immediately affects the legislators

ability to do their jobs. But he concedes that this is a hard case, because in order to fall within Article
IIIs judicial power, a dispute must be at least somewhat similar in form to matters that were the
traditional concern of the courts at Westminster.
PERSPECTIVE

ON CASES

Deep problem with standing doctrine is the difficulty of discerning what constitutes injury. As Easterbrook
noted on 105, bystanders may have vital interests in whether the police are doing their jobs or not. Because
we all have real interests in living in a certain kind of world, the standing question tends to get tied up with the
underlying question of the merits of Ps claim.

Example: I am outraged because I know that, in a house down the street, A is showing a pornographic movie to
B, which B is watching with avid interest. Do I have a right to complain, or am I a mere meddlesome
busybody? It depends.

292.
cognizable than if

If B is my seven year old daughter, then my interest seems more

293.

B is an adult married to A.

Criticism of standing doctrine:

294.
Critics argue that the doctrines application is wholly dependent on how
the court chooses to characterize Ps injury, and there is no principled constraint on courts choice.
[Circularity: to evaluate whether jurisdiction exists, court must examine merits of actual claim.]
295.
Second, related criticism is that there is no principle that can determine
what is a sufficient likelihood of solution to justify standing. Nor, even if the court knew how much
likelihood was enough, would it have any basis for determining likelihood (other than guessing), since
courts must make these decisions on the pleadings, before the trial, and therefore they have no
evidence on which to base their determinations.
296.

Standard C/A:

i. Standing is an Article III requirement, and courts just need to do the best they can.
ii. AK: is that a necessary reading of Article III? Cases here seem to impose standard that is more
strict than requirements from plain language of Article 3. This is because of SCs conception of

55

judiciarys role: courts must address constitutional issues and violations of law only where
specific people are injured.
Political question doctrine

Some big constitutional questions never get to court (e.g. secession). Should SCt ever refuse to decide a
political question that is properly presented to it because it is not SCts role to decide such constitutional
questions? Political question doctrine is not frequently invoked; but do be aware that cases come up.

BAKER V. CARR - APPORTIONMENT

OF THE

TENNESSEE ASSEMBLY

Brennan 1962. Background. Classic description of political question doctrine. This case set forth the modern
SCts approach to political questions. SCt held that the constitutionality of legislative apportionment schemes is
not a political question. Thus, SCt evaluated Tennessees apportionment scheme for electing representatives,
thereby paving the way for the SCts one person, one vote ruling.

SCt announced a series of factors, at least one of which must be present in order to make an issue a nonjusticiable political question. Each of these factors relates in some way to the separation of powers. [Realize
that the black letter law here is mushy here, so we examine other cases].

Contrast these factors with Marshall in Marbury, who thought that political questions were those about which
USC simply had nothing to say (25).

In Baker, it is not clear where the limits are. These are not bright-line factors. Consider question whether 27 th
amendment is part of USC.

Factors:
297.
Commitment to another branch.
A textually demonstrable
constitutional commitment of the issue to a coordinate political department (e.g. to Congress or to the
President).
298.
Lack of standards. A lack of judicially discoverable and manageable
standards for resolving the issue.
299.
Unsuitable policy determination. The impossibility of deciding [the
issue] without an initial policy determination of a kind clearly for non-judicial discretion.
300.
Lack of respect for other branches. The impossibility of a courts
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government.
301.
Political decision already made. An unusual need for unquestioning
adherence to a political decision already made.

302.

Multiple pronouncements. The potential for embarrassment from

multifarious pronouncements by various departments on one question. (Similar to Hunter v. Martins
Lessee: once one department has made decision, there must be uniformity).

Facts. Challenge was to the apportionment of the Tennessee Assembly, which had not been reapportioned in 60
years, despite a state constitutional requirement of representation based on population, and despite significant
changes in population over the years.

Holding. SCt concluded that the claim, which was the malapportionment violated the Equal Protection Clause,
did not present a political question.

303.

Brennan simultaneously (1) made judicial supremacy claim, but (2)

said there are certain questions that SCt will not decide.

56

304.

Rationale. SCt reasoned that not all cases involving politics present
non-justiciable political questions. The SCt listed a catalogue of political factors, at least one of
which had always been present in true political-question cases. The equal protection claim here did not
involve any of these factors. For instance, the issue had not been textually committed by the USC to
another branch of government; nor were judicially discoverable and manageable standards for
resolving it lacking.

305.

Not Guaranty Clause claim. SCt rejected claim that issue here was a
non-justiciable political question under the republican form of government (or guaranty) clause
[Article IV, 4]. (SCt conceded that guaranty clause claim would not be justiciable). What makes
Guaranty Clause claims non-justiciable political questions is that they involve the relations between
the judiciary and the other branches of the federal government, not the relations between the judiciary
and the states (the relation at issue here).

57

Dissent - Frankfurter. Argued that the claim here was really a Guaranty Clause claim masquerading under a
different label and contended that the Ps claims that their votes had been diluted by malapportionment could
not be adjudicated unless the SCt first defined a standard of reference as to what a vote should be worth. To
do that, the SCt would have to choose among competing bases of representation ultimately, really among
competing theories of political philosophy . . . This was not a suitable judicial function.

LUTHER V. BORDEN - GUARANTY

CLAUSE NON-JUSTICIABLE

Holding. It is not SCs job to decide which is lawful government of Rhode Island; Congress has that power.
This is a question of policy. It would create anarchy for court to overrule presidents decision to militarily
intervene. [USC, Article 4 U.S. shall guarantee to every State in this Union a Republican Form of
Government.]

AK. Are the arguments persuasive?

Always ask in political question case: is this case like Luther v. Borden?

WHY

IS THERE A POLITICAL QUESTION DOCTRINE?

Judicial review is undemocratic. Redish. Maybe this is right, but it does not distinguish political questions
from any other questions that might be presented for judicial review. In a constitutional regime, a majority may
not be permitted to do everything it wants to do.

It is hard to resolve some questions in a principled way. Redish. Again, there are some quite difficult questions,
such as the meaning of due process or equal protection, that SCt has little reluctance to take on if it thinks
the job worth doing. Some questions are matters of discretion, but these are clearly identified in the text.
When USCs framers intended that one of the political branches has discretion to act without principles, the
document effectively says so, by vesting decision making power in those branches without simultaneously
indicating how that power must be exercised. But if the document provides, for example, that it is Congress
province to declare war, one may ask why it is appropriate for the courts, interpreting and enforcing the
document, to overrule USCs allocation of power by concluding that the conduct of military affairs, even to the
point of waging war, must lie in the executives uncontrolled discretion.

Judges are not politicians, and cannot understand the broader political situation in which their decisions operate,
so they should defer to those who can assess the practical consequences of their decisions. Redish. This, once
more, proves too much. If the constitutional limitations on majoritarian power are to mean anything, at some
point the judiciary must be able to question the political branches assertion of factual necessity.

Court orders might be ignored by the political branches. Redish. But this is not a real danger in many of the
political question cases, and even when it is, it is not clear that the judiciary enhances its authority by slinking
away before the confrontation has a chance to occur.

DAVIS V. BANDEMER - UNCONSTITUTIONAL

White 1986. SCt held that claims of unconstitutional gerrymandering are justiciable. SCt found that there were
indeed judicially discernible and manageable standards by which political gerrymander cases [may] be
decided. Such claims involve the adequacy of representation and are therefore no different in a general sense
from claims involving population apportionment, found to be justiciable in the Reynolds one man one vote
decision.

NIXON V. UNITED STATES - IMPEACHMENT

GERRYMANDERING JUSTICIABLE

NON-JUSTICIABLE

Rehnquist 1993. This case strongly indicates that most controversies relating to impeachment will be found to
fall within the committed to other branches category and thus to be non-justiciable political questions.

58

Facts. After Judge Nixon was convicted of making a false statement to a federal grand jury, he was impeached
by the House. Instead of trying him before the entire Senate, however, Senate referred the articles of
impeachment to a committee, which then reported to the full Senate, which did not itself take any evidence.
Nixon was convicted by the full Senate, and sought judicial review of the manner in which the Senate tried him.

Argument. Nixon argued that the Senate, by having a committee rather than the full Senate hear the evidence,
violated the requirement of Article I, 3, Clause 6 that the Senate try all impeachments.

Held non-justiciable. But the SCt held that Nixons argument presented a non-justiciable political question.
SCts argument seemed to be that, because impeachment is a check on the judiciary, the judiciary ought not to
review it.

306.

SCt relied mainly on the plain text of the Senate Impeachment Clause,
which provides that the Senate shall have the sole Power to try all Impeachments. SCt interpreted
this reference to sole Power, along with the history behind the provision, to mean that the Senate, not
the courts, should determine what procedures could validly constitute a trial.

307.

The SCt also reasoned that a lack of finality problem dictated that the
courts not hear Nixons claim: Opening the door of judicial review to the procedures used by the
Senate in trying impeachments would expose the political life of the country to months, or perhaps
years of chaos, especially if it were the President who was being impeached.

Concurrence.

308.

White. Thought the matter was jusiticiable, but that Nixon lost on the

merits.

309.

Souter. Also concurred, but thought that in an extreme case judicial

interference might be appropriate.
COLEMAN V. MILLER - CONGRESS

GETS TO SAY WHETHER

USC

HAS BEEN AMENDED

What does this imply about 27th amendment? Is it part of USC or not?

310.

Question of what constitutes ratification of constitutional amendment

(lt. Governors tie-breaking vote) tie vote on SC.

311.

Question of what is reasonable period of time between proposal and

ratification held this was political question.

312.

So it is still a live question as to whether 27 th Amendment is part of

USC.

This case suggests that political question doctrine extends to deciding what the Constitution is.

In Baker, Brennan alluded to Coleman v. Miller

TIMING

AND CERTIORARI

Timing. Ripeness and mootness.

Certiorari. SCts discretionary control of its docket

313.
Be aware of the rule of four. If four of the nine members of SCt vote
to grant certiorari, then it will be granted.
314.
Justices sometimes dissent, in writing, from the denial of certiorari
when they feel strongly that the lower court erred and that SCt ought to intervene.

59

Executive authority - domestic

Article II, 1 Vests the executive power in the President of the United States.

Article III, 3 Provides that the President shall take Care that the Laws be faithfully executed.

Does above language impose duty on president to execute any law that Congress adopts, or does it grant a
power to president to decide how laws will be executed?

Executive-Legislative conflicts
YOUNGSTOWN SHEET & TUBE V. SAWYER - THE STEEL SEIZURE CASE

Black 1952. Despite its willingness to infer existence of broad presidential authority, SCt has adhered to one
over-arching limitation on presidential power: the President may not make laws; he may only carry them out.

Facts. During Korean War, President Truman sought to avert a strike in the nations steel mills. He therefore
issued an executive order directing his Secretary of Commerce to seize the mills and operate them under federal
direction. Congressional approval of the seizure order was not requested. The steel companies sought an
injunction to prevent the seizure.

SCt. Struck down seizure. SCt struck down the seizure order, concluding that it was an unconstitutional
exercise of the lawmaking authority reserved to Congress. Although the decision was 6-3, four of the six
Justices on the majority side wrote separate concurring opinions, making it difficult to summarize the doctrine
of the case.

Blacks opinion. This is a legislative and not an executive act, and therefore the president cannot do it. Black
flatly stated that the Presidents seizure order, coming as it did without the consent of Congress, was a clear
usurpation of congressional lawmaking power. The order could not be justified under the Commander-inChief power; the taking of private property in order to keep labor disputes from stopping production of war
material was too far removed from the actual theater of war in which the President had the right to set policy.
Nor could the seizure be justified under the Presidents power to see that the laws are faithfully executed the
very language of the clause shows that the President must merely carry out the laws, not make them.

Concurring opinions. These opinions attached principal importance to the fact that Congress had previously,
and repeatedly, explicitly rejected plant seizure as a means of handling labor disputes.

315.

Frankfurter. Congress chose, in the Taft-Harley Act, not to give

president this power, therefore he does not have it. [why is this not within political question doctrine
which Frankfurter invoked in his dissent in Baker v. Carr? (125)

316.

Jackson (most influential opinion): Presidents powers are not fixed

but flucutate, depending on their disjunction or conjunction with those of Congress. President can
exercise power in three situations.

i. where the President acts pursuant to express or implied authorization of Congress, in which case
his authority is at a maximum. (he acts for entire federal government, and exercise all of the
power that the federal government has).

ii. where the President acts in the absence of either a congressional grant or denial of authority, in
which case there is a zone of twilight in which he and Congress may have concurrent authority,
or in which its distribution is uncertain. President still has some independent power, the scope of
which cannot be defined by abstract theories:

(a) Many presidential acts fall into this category.

(b) W/in this category, what limits presidential power?

60

iii. Where the President acts in contradiction to the express or implied will of Congress; President acts
only if the subject is one that Congress has no authority to act upon. In this case, his power is at
its lowest ebb. Jackson felt that the steel seizure fell into this third category, and that it could
therefore not be constitutionally justified.

(1) Inherent presidential power asserted here is dangerous because it is inherently limitless.
Allowing such inherent authority improperly amends USC.

(2) Why did Jackson approve vast expansion of Congressional powers in Wickard v. Filburn, but
not here?
(3) Probably because legislative process is so cumbersome. Because legislative action is so hard
to obtain, Congress is less dangerous than president.
317.
Douglas. This order seized property; property cannot be taken without
compensation (5th amendment); only Congress can appropriate money to compensate for taking
property; therefore only Congress (and not president) can authorize seizure of this sort.

Dissent - Vinson. Contended that temporary seizure was justified because of the emergency nature of the
situation, and in order to preserve temporarily the status quo until Congress could act.

DAMES & MOORE V. REGAN - IRAN

HOSTAGE SETTLEMENT

Rehnquist 1979. Overview. Congress may sometimes be found to have impliedly acquiesced in the Presidents
exercise of power in a certain area. Where such acquiescence exists, this fact may be enough to tip the balance
in favor of a finding that the President acted within the scope of his constitutional authority. SCt relied on such
a theory in of implied congressional acquiescence in upholding President Carters power to take certain actions
for the purpose of obtaining the release of American hostages from Iran.

Facts. As part of the settlement of the Iranian hostage situation, President Carter took a number of actions
affecting the claims of American creditors against Iran. The action which posed the most difficult constitutional
issue was his suspension of all contractual claims against Iran then pending in American courts; such claims
were to be later arbitrated by an international tribunal.

Suspension upheld. SCt upheld agreement with Iran that provided that all legal proceedings in U.S. involving
claims against Iran would be transferred to Iran-United States Claims Tribunal. SCt found that the claims
suspension was within the Presidents constitutional authority. While Congress had never explicitly delegated
to the President the power to suspend such claims, it had implicitly authorized that practice by a long history of
acquiescing in similar presidential conduct. (For instance, Congress had implicitly approved the use of
executive agreements between the President and foreign powers to settle all claims.)

Limited scope. SCt Carefully stressed the limited scope of its holding. It was not holding that the President has
constitutional authority to settle or suspend all claims; the SCt was simply deciding that where such settlement
or suspension is a necessary incident to the resolution of a major foreign policy dispute, and Congress has
acquiesced in that type of presidential action, the action will be deemed within the Presidents constitutional
authority.

Not dispositive. In any event, the fact that Congress has impliedly consented to Presidential action will almost
certainly not by itself bring the action within the scope of his constitutional authority; it will merely be a factor
in the analysis of close cases. In Dames & Moore, the Presidents general executive authority in foreign policy
matters (and perhaps his Commander-in-Chief powers) were probably also part of the equation.

How can we distinguish this case from Youngstown?

318.

Rehnquist distinction. (a) IEEPA, while it does not specifically

authorize what president did, indicates congressional acceptance for a broad scope for executive
action in circumstances such as those presented in this case. Thus, Congressional silence seems to
reflect mood supporting the president. (b) In Youngstown, Congressional silence is read to have
opposite implication.

61

319.

Koppelman distinction (more salient). (a) Dames & Moore was

decided at beginning of term of politically popular president (whose popularity was partially derived
from role in ending Iran hostage crisis.) (b) Youngstown was decided toward end of term of politically
weakened president.

Note also, in this context, that Lincolns Emancipation Proclamation freed all slaves w/o compensation for
slaveholders, in those parts of U.S. which were in rebellion. Justifications provided by Lincoln:
320.
best subdue enemy.

Military Necessity. President has right to take any measure which may

321.
Duty to preserve Union. Any act which would normally be
unconstitutional became constitutional if it was indispensable to preserving USC through preserving
union.

These cases show tension between constitutional legality vs. imperative of politics (e.g. formalism vs. realism).
322.
Government must have capacity to respond to emergency, and
president more than any other branch, can respond instantly to needs of moment.
323.
are of presidential power?

If this is so, then how can law possibly specify in advance what limits

324.
the country?

Can it be unconstitutional for president to do what is necessary to save

(a) If yes, then doesnt president have responsibility, under some circumstances, to disobey USC?
(b) Jefferson may have endorsed this view in defense of Louisiana Purchase. Military Necessity must
overcome any constitutional obstacles.

(c) What, then, is left of constitutional law?

Executive privilege
UNITED STATES V. NIXON WATERGATE

TAPES

Burger 1974. Several presidents (including George Washington) have invoked what they described as the
doctrine of executive privilege to justify their refusal to disclose information which they claimed to be
confidential. The only SCt case to give any definitive scope to the doctrine of executive privilege was U.S. v.
Nixon, the famous Watergate Tapes case.

Facts. In March 1974, a federal grand jury indicted seven Nixon aides on charges of conspiracy to obstruct
justice and other Watergate-related offenses. The president was named as an unindicted co-conspirator. The
Watergate Special Prosecutor then persuaded the federal trial court to issue a subpoena duces tecum to the
president requiring him to produce various tapes and documents relating to certain meetings involving the
president; these documents and tapes were to be used during the trial of the indictments. The president released
transcripts of some of the tapes, but refused to produce the tapes themselves, and moved to quash the subpoena.
The trial court rejected the presidents claim of privilege, and the matter was heard by the Supreme Court on an
expedited basis.

Holding. In unanimous decision, although SCt upheld the general doctrine of executive privilege, SCt held that
in this case, the privilege did not apply, and ordered the president to comply with the subpoena.

325.

Court, not President decides. First, SCt rejected presidents claim that
the separation of powers doctrine precludes judicial review of a Presidents claim of privilege. The
SCt quoted Justice Marshalls statement in Marbury v. Madison that it is the duty of the judicial branch
to say what the law is. Thus, the Court, and not the President, must evaluate claims of presidential
privilege.

62

326.

Privilege Exists. SCt then held that there was indeed a privilege for
confidentiality of Presidential communications in the exercise of Article II powers. The SCt noted
that confidentiality was required by the fact that those who expect public dissemination of their
remarks may well temper candor with a concern for appearances and for their own interests to the
detriment of the decision-making process. Therefore, the SCt concluded, the privilege of
confidentiality can be said to derive from the supremacy of each branch within its own assigned area
of constitutional duties. The privilege is fundamental to the operation of Government and
inextricably rooted in the separation of powers under USC.
327.
Privilege only qualified. However, SCt rejected Presidents claim that
executive privilege was absolute. At least where the claim of privilege was (as in the present case) a
general one, and not related to a particular need to protect military, diplomatic, or sensitive national
security secrets, the Court held that the privilege was merely a qualified one. As such, it was
outweighed by the need to develop all relevant facts in a criminal trial. Rationale:

(1) Article III Argument. SCt observed that both Presidents claim of privilege, and the criminal
justice systems need for access to all relevant evidence, were of constitutional dimension.
However, the latter outweighed the former, in part because the SCt did not believe that the
possibility of infrequent subpoenas like the one here would often have an adverse impact on the
candor of discussions to which Presidents are parties.

(2) Rights of Defendants. Moreover, D in criminal trial has right to subpoena witnesses; he cannot be
deprived of liberty without due process of law, and to guarantee these Ds due process, court must
be able to consider relevant evidence.

328.

Duty of Trial Court. President was therefore ordered to deliver the

subpoenaed tapes and documents to the federal district court. However, the district court was ordered
to perform a close in camera (non-public) examination of all of the materials. Statements that were
both admissible and relevant to the criminal prosecution were to be isolated, and all other statements
were to be disregarded and kept secret.
Reviewability of executive privilege decisions

Counter arguments to SCts holding in Nixon that separation of powers doctrine did not preclude judicial
preview of presidents claim of privilege.

329.

Gunther C/A.
Burger misused Marbury here and conveyed
misleadingly broad view of judicial competence, exclusivity, and supremacy. There is nothing in
Marbury precluding constitutional interpretation which gives final authority to another branch.

330.

Tribe C/A. Law might be executive discretion. SCs opinion simply

rejects w/o extended discussion any notion that as general rule executive discretion is applicable rule
of law in matters of evidentiary privilege. (Tribe)

331.

Koppelman C/A (1). Does SCts holding here mean that President is
obligated to comply with SCts order, even if he thinks that executive privilege is absolute? Given that
presidency was at one of its weakest points in American history, this was unusually convenient
opportunity to assert judicial supremacy. Relevance of this precedent to presidential privilege in more
normal times is doubtful.

332.

Koppelman C/A (2). SCt should not have granted certiorari before
Circuit Court could review district courts decision. While waiting would have been stressful, such
stress was contemplated by USCs impeachment procedures.

i. Congress had also subpoenaed tapes, so there was a constitutionally contemplated process of
review already underway. (failure to obey subpoena was basis of third article of impeachment.)

ii. Congress need for information was much stronger than Jaworskis.

63

Does Cooper v. Aaron support SCs holding in Nixon?

Was Nixons position here different from positions of Jefferson and Lincoln about presidential power to
interpret USC independently of courts?

In other contexts, courts have sometimes held that executive branch decisions about how to enforce law are
unreviewable (using take Care clause for support). (Heckler v. Chaney, 1985; failure of FDA to regulate
drugs used in human executions is not subject to judicial review under Administrative Procedure Act).

333.

By this view, separation of powers prevents courts from ordering

executive to execute laws.

334.
This permits president effectively to nullify, through non-enforcement,
laws enacted by Congress, including those enacted over his veto. Are political checks sufficient
safeguard against this possibility?
Scope of executive privilege

Note that although President lost Nixon case, the presidency may have won a great victory. After all, for the
first time, decision established the existence of executive privilege. The question whether USC implicitly
created such a privilege had for a long time been subject of heated debate among Congress, President, and
academic commentators.

What are the limits of privilege recognized in Nixon? Nixon Court held that the privilege was presumptive,
not absolute, and that it could be overcome by the interests of the criminal justice system. This is clearly a
balancing test.

Koppelman Critique of SCts qualification of executive privilege:

335.

Article III Argument. This argument proves too much. Every

privilege, including those cited by SC (attorney, priest, self-incrimination) prevents production of
relevant evidence in criminal trials. If SC were correct that need for relevant evidence in trials is an
overriding one, then these privileges would have to be discarded as well. This seems to leave nothing
at all of the privilege, since evidence is never admissible except on showing of relevance. In fact, SC
had no intention of discarding those privileges, even though some of them (e.g. priest) unlike executive
privilege, are not inextricably rooted in the separation of powers under USC. (415). Common law
privileges are not discarded simply because as privileges they interfere with search for truth. In short,
SC cannot possibly believe what it argues here (argument is simply dishonest).
336.
The Rights of Defendants. This argument might be relevant if it were
defendants trying to get evidence, but even then it would not authorize such rights to override
privileges noted above because privileges should not be any less strong. But here, it is prosecutor
trying to obtain evidence. If prosecutor cannot get evidence needed to make case, result is not that
defendant is deprived of liberty but rather that defendant is mistakenly acquitted. It is disingenuous to
rely on rights of defendants in this case, when defendants seek SC to uphold privilege.

Possible narrower interpretation of Nixon decision (Tribe)

337.

Since grand jury had named Nixon as an unindicted co-coconspirator in

Watergate coverup, SCt could have held that presidential privilege did not extend to conversations
identified by extrinsic evidence as likely to be part of criminal conspiracy.
338.
But if SC rested its judgment on this narrow theory, SC would have
had to address issue of presidents likely guilt or controversial issue whether a grand jury could
lawfully brand president as co-conspirator. But SC finding that grand jury could so act, or that
president was probably a co-conspirator, and that presidential privilege was consequently inapplicable,
would have been widely construed as SC decision that president was in fact guilty of participation in
criminal conspiracy.

64

339.
Thus, SCs adoption of legally broader position narrowed the political
consequences of its decision.

Koppelmans general critique of Nixon case

340.
SCt took advantage of presidents position in order to grandstand. SCt
bypassed Court of Appeals and granted case on expedited review. This was extraordinary procedure
(almost never invoked), and it was hard to justify invocation here.

341.

In Marbury, SC evaded issuing order to president because it was sure

president would avoid it.

342.

In Nixon, SC reached for opportunity to issue an order because it

wanted to bring Watergate case to rapid close. But Congress could have said what SC could not:
namely, that Nixons refusal to produce tapes gave rise to an inference of his own guilt and so was
appropriately punishable.
343.
If it was not politically possible for SC to write good opinion, that does
not excuse its reaching out to write bad one.
NATIONAL

SECURITY INTERESTS

United States v. AT&T

1977 Congress sought to obtain information from D concerning wiretaps ordered by executive branch. SCt
rejected executives claim that national security barred the subpoena and held that USC does not confer on
executive absolute discretion in area of national security, and that USC confers on Congress powers equally
inseparable from national security.

LEGISLATIVE INVESTIGATIONS

AND

CIVIL PROCEEDINGS

Senate Select Committee on Presidential Campaign Activities v. Nixon

1974. Under what circumstances may president successfully claim executive privilege where House/Senate
committee seeks material in connection with investigation into certain conduct by President and his
subordinates?

Committees need to know was insufficient to outweigh the privilege.

Dellums v. Powell

65

1977. Presidential privilege was outweighed in a civil action brought by people who alleged they had been
unconstitutionally arrested during demonstration on Capitol Hill.

LOWER

LEVEL OFFICIALS

Do lower-level officials in executive branch have same privilege as president?

In 1983, EPA Administrator Anne Gorsuch Burford asserted executive privilege as basis for resisting disclosure
to U.S. Senate of law enforcement files regarding possible criminal investigations.

Argument is that EPA Administrator is merely an agent of president, and acts with presidents
powers/responsibilities. Thus, if president can claim executive privilege, then so can EPA Administrator, as
long as president directs her to do so.

Do you agree?

Presidential immunity

It is frequently argued that impeachment is exclusive sanction for improper conduct by sitting president. (is
there structural argument for this view, based on USC text?)

Note that USC does not create any express presidential immunity from judicial process.
344.

Is such immunity a proper inference from impeachment provision?

345.
acts by president?

Is impeachment too blunt/crude instrument for handling isolated illegal

346.

To what extent does Nixon reject inference that impeachment is

exclusive route?

347.

Note that while Truman was not named defendant in Youngstown, his
order was in fact subject of SCs injunction.
Mississippi v. Johnson

1867. SC refused to hear suit attempting to enjoin presidents enforcement of reconstruction laws. SC
concluded that courts did not have power to issue injunction against president, given difficulties of enforcement
and alternative route of impeachment.

Nixon v. Fitzgerald

Powell 1982. The President has absolute immunity from civil liability for his official acts. SC held by 5-4 vote
that Nixon was immune from action for damages from P claiming he was discharged from government position
because he exercised his right to freedom of speech.
348.
SC reasoned that prominence of presidents office makes president easy
target for suits for civil damages; vulnerability to such suits would distract president from his public
duties to detriment not only of presidency as office, but also the nation.
349.
In response to suggestion that absolute immunity would leave nation
unprotected against presidential misconduct, SC argued that numerous safeguards are already in place:
impeachment, scrutiny by press, Congressional oversight, desire to win re-election, need to maintain
prestige as element of influence, presidents concern for historical stature.
350.
SC left open question whether Congress might constitutionally subject
president to liability for damages.

351.

White Dissent:

66

(1) Speech and Debate Clause (which provides protection for members of Congress) has no
counterpart in USC giving any sort of immunity to members of Executive Branch. Thus, any
presidential immunity is derived from constitutional separation of powers and public policy.

(2) Courts had previously held that president was not immune from suits for injunctive relief or other
sorts of judicial process.

(3) President should have same remedial obligations toward those whom he inures as any other
federal officer. Result of this rule should be to deter unconstitutional, or otherwise illegal,
behavior.
Harlow v. Fitzgerald

1982. Nixon v. Fitzgerald ruling above should not be extended to presidential aides.

Clinton v. Jones

What is the implication of Nixon v. Fitzgerald for the adjudication of claims of presidential misconduct that do
not relate to service in office? SC rejected presidents claim of temporary immunity from civil suit while he is
in office.

Stevens (majority. Unpersuaded that effective performance of presidents office will be impaired, because he
deems case highly unlikely to occupy any substantial amount of presidents time.

Breyer Concurrence. Trial judge may have good reason to postpone trial date if president offers reasoned
explanation for necessity of such postponement.

Koppelman. Does the Lewinski matter have any relevance to our assessment of the result reached by the SCt
here?

Law and politics

Should scope of executives authority be determined legally or politically?

LAW

VERSUS POLITICS

Gunther. SCs Nixon decision substituted legal judgment for what was really a political judgment capable of
being made by House through impeachment process.

Note that in Nixon and Youngstown, SC was not called upon to decide whether final determination of
constitutional scope of executive power should be in judicial hands. In both cases, political constraints
prevented president from asserting more expansive interpretations of Article II. Thus, in both cases, politics,
rather than law, were ultimate determinant of presidents Article II authority.

Nixon v. Administrator of General Services

Brennan 1977.
SC sustained statute instructing Administrator of General Services to return
documents/recordings to Nixon that were private in nature and to determine terms of public access for those
documents that were retained. SC rejected Nixons assertion that statute violated separation of powers and that
potential disclosure of communications would adversely affect ability of future presidents to obtain candid
advice. There is no reason to believe that restrictions on public access to be articulated by regulation will not be
adequate to preserve executive confidentiality.

352.

Did this case go beyond Youngstown and Nixon by overriding

presidents determination that statute unconstitutionally invaded his Article II authority?
353.
Arguably, no, because only executive branch employees would have
access to documents and Nixon was no longer in office when suit was brought.

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LAW

AS POLITICS

Do Nixon and Youngstown support idea that judicial enforcement of USC provides bulwark against dictatorial
executive overreaching? or

Did Youngstown, Nixon, and Dames & Moore decisions merely ratify judgments previously made by country
through political processes?

Impeachment

House may impeach president, and remove him from office, for Treason, Bribery, or other high Crimes and
Misdemeanors. (USC, Art. II, 4)

Andrew Johnson is alone among Presidents in having been impeached; he escaped conviction by a single vote.

Key question: what is the meaning of the phrase high Crimes and Misdemeanors? May the president be
impeached for activities that are not criminal offenses?
354.
Legislative Discretion an impeachable offense is whatever a majority
of House considers it to be at given moment in history. (Gerald Ford)
355.
Crimes no impeachment will lie except for a true crime or breach of
common or statute law, which would be subject of indictment. (Dwight)
356.
Words of Art High crimes and misdemeanors do not have roots in
ordinary criminal law. Charges drawn from impeachment cases disclose that impeachable conduct was
patently not criminal in ordinary sense. But Framers intention was to preclude resort to
impeachment of president for petty misconduct. (Berger)

Should JR of decisions to impeach be available when president maintains that charged conduct did not amount
to high Crimes and Misdemeanors? [See Nixon v. United States (1993)]

Articles of Impeachment voted against Nixon

357.

Article I obstruction of justice (crime theory)

358.
Article II conduct violating constitutional rights of citizens and
impairing administration of justice (crime theory)
359.
Article III failure without lawful cause to produce papers and things
as directed by subpoenas issued by House Committee on Judiciary. (seems that all 3 theories apply
here)

68

Bicameralism and presentment

INS v. Chadha - One house veto provision stricken

Burger 1983. Majority. SCt held that a typical one-house legislative veto was unconstitutional because it
violated both Presidents veto power and the bicameral structure of Congress. If the House or Senate wants to
reserve power to undo the action of an administrative agency, both houses will have to pass the same bill and
present it to the President for a possible veto.

Facts. Article I, 8 of USC gives Congress the right to establish rules of naturalization and, by implication,
immigration. Congress has always possessed, and has frequently exercised, the power to allow an alien who
would otherwise be deportable under existing immigration rules to remain in the country; typically, this has
been done by means of a private bill applicable to one or a few particular aliens. In an effort to relieve itself
of the burdens of considering numerous private bills, Congress delegated to the Attorney General, in the
Immigration and Nationality Act, the authority to suspend deportation of aliens in certain situations. However,
in order to retain some control over this delegated power, Congress reserved to itself a legislative veto over each
decision by the Attorney General suspending deportation. The veto could be exercised by a resolution passed
by either house within a certain time after the Attorney Generals decision to suspend deportation. Chadha, the
plaintiff, was one of several aliens as to whom the House of Representatives used its veto power to reverse the
Attorney Generals suspension of deportation.

Veto Provision Stricken. SCt struck down this legislative veto as a violation of two distinct constitutional
requirements. First, the veto violated the Presentment Clause (Art. I, 7, cl. 2) which requires that every bill be
presented to the President for his signature, so that he may have the opportunity to veto it. Secondly, this
particular veto provision, since it could be exercised by a single house, violated the bicameral requirement of
Article I, 1 and 7, by which both houses must pass a bill before it can become law.

Essentially Legislative Act. The real issue in the case was whether the Houses issuance of the legislative veto
here itself constituted the exercise of legislative power. Not all acts by a house fall into this category, and only
the ones that do require presentment and bicameral approval. However, in the Courts view the overruling of
the Attorney Generals decision on a deportation matter did constitute the exercise of legislative power, since it
had the purpose and effect of altering the legal rights, duties, and relations of persons . . . outside the legislative
branch.

Consequently, Congress could reverse the Attorney Generals decision on a deportation matter only by passing a
law, in the constitutionally-prescribed manner (passage by both houses, presentment to the President and either
signature by him or the overriding of his veto). The fact that the legislative veto mechanism may be a more
efficient means of controlling administrative action was irrelevant.

Two-House Veto Provisions. In the vast majority of instances, legislative veto clauses allowing a veto only
where both houses act concurrently are just as unconstitutional as a single-house veto provision, since both
types of clauses deprive the President of his veto power.

Koppelman critique.

360.

Does it make sense to deem such decisions essentially legislative?

Under nondelegation doctrine, that label would probably have meant that INS could not suspend
Chadhas deportation, because INS cannot make law.

361.

Why is bicameralism and presentment necessary when Congress

delegates essentially legislative power to itself or its members, but not when it delegates such power
to someone else?

69

Dissent - White. White and Rehnquist dissented. Main dissent was White, who argued that a houses use of the
legislative veto was simply not the functional equivalent of passing a law. The legislative veto no more allows
one House of Congress to make law than does the presidential veto confer such power upon the President.

362.

Administrative agencies lawmaking function (functionalist argument):

In Whites view, majoritys holding is inconsistent with the abandonment of the nondelegation doctrine
and the recognition of independent agencies, both of which were based on a flexible approach to
separation of powers issues. Executive agencies engage in a sort of lawmaking function, and no one
contends that every agency decision of a lawmaking nature need be confirmed by subsequent vote of
both houses of Congress and by presidential signature. Since executive power has grown far beyond
anything contemplated in original USC, it is appropriate for Congress to craft a new check on that
power. If Congress may delegate lawmaking powers to independent executive agencies, it is most
difficult to understand Article I as forbidding Congress from also reserving a check on legislative
power for itself. In Whites view, it was enough that the initial statutory authorizations comply with
the Article I requirements.

363.

Formalistic Argument regarding change in status quo: Finally, White

argued that the legislative veto provision in this case did not violate the separation-of-powers
principles behind the bicameral and presidential-veto requirements. White contended that the net
result of Congress delegation of authority to the Attorney General plus its reservation of veto power
was that a departure from the status quo occurs only upon the concurrence of opinion among the
House, Senate, and President. That is, if the determination that an alien is deportable is viewed as a
change in the legal status quo, this change can be consummated only with the approval of each of the
three actors (assuming that the Attorney General is treated as embodying the Presidents authority).
This result preserved the required separation of powers, in Whites opinion.

Dissent - Rehnquist.

364.

Legislative veto is not severable from rest of law, so Chadha should be

deported anyway. In other words, if entire statute is invalid, then INS had no authority to suspend
Chadhas deportation.
365.
Severability:

This dissent is based on doctrine of severability.

Doctrine of

i. In determining whether the invalid portion of a statute may be severed from the valid portion, the
question is whether the legislature, if partial invalidity had been foreseen, would have wished the
statute to be enforced with the invalid part excised or rejected altogether.

ii. An entire statute should be invalidated if, by sustaining only a part of the statute, the purpose of
the act is changed or altered.

iii. Residue of statute should be upheld, on other hand, if it is independent of the invalid portion and .
. . form[s] a complete act within itself.

iv. There is a presumption that a legislative body generally intends its enactments to be severable,
especially in the case where it will preserve the constitutionality of the enactment.

v. Application to Chadha:
(1) Question is whether Congress would have given this broad authority to executive branch even
if it had retained no means of controlling executive branchs exercise of that authority.

(2) This question may be unanswerable, which is why majority and dissent arrive at different
answers to it.

70

GENERAL

CRITIQUE BY

KOPPELMAN

None of opinions address whether legislative veto was actually an effective tool for checking administrative
agencies.

366.

Tribe. legislative vetoes may not have substantially enhanced

governmental efficiency, but may instead have simply given special interest groups that lose battles
before agencies ways to win favors from committees of Congress.
367.
Could majority perhaps be thinking that it was not an effective tool, and
hoping that eliminating this illusory check will induce Congress to delegate less.

It is not clear that decision has had much effect on actual practice.

368.

From Chadha end of 103rd Congress on 12/1/94, Congress enacted

more than 300 new legislative vetoes, most of which require executive branch to obtain approval of
specified committees.
369.
Because Congress can place onerous restrictions on funding, it has
been able to bargain for informal, nonstatutory agreements that certain agency actions will not be taken
w/o approval of specified committee. These understandings were first articulated in committee reports
but have now often been incorporated into agency manuals, and would therefore remain in effect even
if legislative vetoes were removed from statutes.

370.

Fisher and Devins: Predictable and inevitable result of Chadha is a

system of lawmaking that is now more convoluted, cumbersome, and covert than before. In many
cases the Courts decision simply drives underground a set of legislative and committee vetoes that
used to operate in plain sight.
SINGLE-HOUSE

ACTIONS APPROVED BY

USC

There are four actions that USC permits a single house to take, without possibility of presidential veto.
[Houses power to initiate impeachments, Senates power to conduct trials following impeachment, Senates
power over presidential appointments, and Senates power to ratify treaties.]

In these four situations, a single-house legislative veto would presumably be constitutional. For instance, since
Senate alone is given power to approve/disapprove presidential appointments, Senate could presumably pass
resolution that all presidential appointments shall be deemed approved by Senate if that body does not vote to
reject them within a certain period of time. However, such a provision might be attacked on the theory that it
delegates to Executive Branch powers which must be affirmatively exercised by Senate itself.

CHADHA

IN CONTEXT

- LEGISLATIVE

CONTROL OF THE BUREAUCRACY

The legislative veto is one of a number of means by which Congress has attempted to control administrative
agencies to which Congress had delegated substantial discretionary authority.
371.
Hearings. Congressional committees/subcommittees hold oversight
hearings; publicity may lead to informal pressure for changes in executive policy.
372.
Appropriations Rider.
An attachment to an authorization of
expenditure of federal funds that prohibits agency from engaging in certain courses of conduct.
373.
Budget. Similarly, Congress can simply increase/decrease a given
agencys budget in the annual appropriations process to express its views on the agencys mission and
whether more or less enforcement is desirable.
374.
Sunset Legislation. Provides that agency authority will terminate after
certain period unless Congress reenacts substantive statute.
375.
Ordinary Legislation modifying agencys authority. Repeal of agency
authority, through ordinary legislation, to engage in particular course of conduct. Even more extreme,
Congress might rewrite statute itself to limit agency authority.

71

THE

REACH OF

CHADHA

Should Chadha apply to all legislative vetoes? Two cases below involving independent agencies confirm
Whites suggestion that the reach of Chadha is quite broad.

Process Gas Consumers Group v. Consumers Energy Council of America

1983. SCt summarily affirmed, on authority of Chadha, a decision invalidating legislative veto as applied to
certain Federal Energy Regulatory Commission regulations of natural gas pricing.

United States Senate v. FTC

1983. SCt summarily affirmed decision invalidating legislative veto as applied to rulemaking by FTC. This
case involved a two-House veto, in which both Houses of Congress must agree before any veto can become
effective.
RETURN TO THE TEXT?

Chadha decision might fit within category of interpretivist or originalist approaches to USC in that decision
considers USC as self-contained, with clear answers to at least some problems.

White complained that this approach was inconsistent with its previous flexible attitude toward separation of
powers disputes. If this is true, should we consider SCts analysis here nave and mechanical, or an honest
adherence to USCs text and underlying intent?

Perhaps we could argue that in light of enormous expansion of the bureaucracy, application of the framers
views on distribution of national powers counseled in favor of, rather than against, the legislative veto
arrangement.

FUTURE

DIRECTIONS

The executive does not merely enforce the law, but also makes it. What consequences should this have for
separation of powers? What solutions are available for this problem:

376.

Report-and-wait provisions. Congress might require that, before

rules may become effective, they must be submitted to Congress to allow it an opportunity to legislate
on the subject (e.g. Federal Rules of Civil Procedure). Would report-and-wait provisions be
constitutional after Chadha?
377.
Statute might provide that no agency rule may become effective unless
enacted by Congress with participation of President. This statute would convert administrative
agencies largely into advisory bodies.
378.
Congress might provide that agency authority would lapse after a
certain number of years, requiring a new statute to permit the agency to continue to exist.

379.

Congress might provide that action taken pursuant to a certain statute

could be taken only if it is approved by both Houses of Congress; such approval could consist of a
joint resolution. Would this be constitutional under Chadha?
380.
House of Reps recently initiated Corrections Day to correct
uncontroversial statutory gaps and mistakes made by drafters or by administrative agencies interpreting
federal statutes. These bills require 3/5 vote for passage. Consider extent to which this functions as a
legislative veto.

72

Administrative agencies and the separation of powers

The basic idea of separation of powers as applied to Congress is that the maker of the law should not control
how the law is applied; it must be applied equally to everyone. Separation of powers is bound up with the
notion of rule of law.

381.

Legislature. One explanation of the result in Chadha (though it does

not appear in any of the opinions) is that the law was bad because Congress was attempting to control
the application of its own standard, so that it mean one thing when applied to its friends and another
thing when applied to its enemies.
382.
Judiciary. Similarly, the judiciary applies the law, but does not get to
say what standards it will apply.
383.
Executive. No such limitation on the executive is possible. Police
officers routinely decide which infractions to penalize and which to ignore. Prosecutors pursue some
cases vigorously and dismiss others. The inevitable discretion of law enforcement officers means that
executive is well placed to benefit his friends and persecute his enemies. The control against
executives abuse of power is primarily political.

Article II vests executive power in one person (unlike the legislative and judicial powers). Power is vested in
the President, not in subordinate officials. Framers rejected notion of a plural executive. (Federalist No. 70).
384.
Unitary executive helps to ensure (1) expeditious action, (2)
coordination, and (3) accountability.
385.

The rise of administrative agencies threatens all these purposes.

USC does not explicitly resolve the question whether Congress may immunize subordinate officials from
presidential control.

Would a statute making the EPA free from interference by the President under the Necessary and Proper
Clause? Would this statute be inconsistent with framers decision to create unitary executive, e.g. vest all
executive power in one person?

MEYERS V. UNITED STATES

Taft 1926. This case suggested that agencies must be subject to presidential control, in order that the
bureaucracy be kept politically accountable.

SCt held that a statute which limited Presidents ability to remove a postmaster was unconstitutional under
Article II. SCt here relied on several conclusions:
386.
performed by the President;

Act of removal is itself executive in nature and must therefore be

387.
Under the take Care clause, it is the President, not his subordinates,
who must take care that the laws be faithfully executed; and
388.
officials.

Article II vests executive power in the President, not subordinate

Historical Basis of Meyers

389.

Meyers derives considerable support from vesting of executive power

in President and basic decision to have unitary, rather than plural, executive branch.
390.
On the other hand, there is evidence that at least some of the founders
distinguished between executive and administrative authority, and that they believed that Congress
should share in the power to remove some of what we now treat as executive officials.

73

THE

RISE OF INDEPENDENT AGENCIES

The two cases below recognize a congressional power to create independent agencies governmental entities
that are free from presidential removal power, and to some uncertain degree, presidential power to supervise
and control the decisions of their officers. (e.g. Federal Trade Commission, Federal Energy Regulatory
Commission, Federal Communications Commission)

Humphreys Executor v. United States - FTC member removal

1935. Decided during a time of great faith in bureaucratic expertise, held that an agencys proper functioning
will be impaired if it is too vulnerable to political interference.

SCt unanimously upheld a statute limiting the Presidents authority to remove members of the FTC; such
members could be removed by the President for inefficiency, neglect of duty, or malfeasance in office.

SCt distinguished this case from Myers by noting that Myers involves purely executive officers restricted to the
performance of executive functions.

In contrast, FTC is an administrative body created by Congress to implement legislative policies in accordance
with legislative standard in the statute, and to perform other specified duties as a legislative or judicial aid. FTC
acts in part quasi-legislatively and in part quasi-judicially.

Wiener v. United States - War Claims Commission removal

1958. Held that, although statute creating the War Claims Commission was silent on the question of removal,
the commissions adjudicatory nature implied a limitation on Presidents power to remove.

Buckley v. Valeo - Appointments Clause and FEC Officer of the U.S.

1976. This is the principal modern case on the Appointments Clause. SCt invalidated the composition of the
Federal Election Commission (FEC), established by the Federal Election Campaign Act.

The Act provided that a majority of the FECs members were to be appointed by the President Pro Tem of the
Senate and the Speaker of the House.

Congress gave the FEC broad powers to enforce the Act, including the right to bring civil actions against
violators. Congress also gave the FEC extensive rule-making authority.

Holding. SCt held that the tasks performed by the FEC were executive in nature, and could only be exercised
by Officers of the United States. Since Congress had no constitutional right to appoint such federal officers,
the FEC as presently constituted was invalid, and could not exercise most of its statutory powers.

391.

Definition of Officer of U.S. SCt defined Officer of the United

States to include any appointee exercising significant authority pursuant to the laws of the Unites
States.
VARIOUS

ASSESSMENTS OF

MYERS, HUMPHREYS EXECUTOR,

AND

BUCKLEY.

Analysis. Note that Myers, on the one hand, and Humphreys Executor and Wiener, on the other hand, point in
opposite directions.
392.
Should there be a unitary executive?
government be subject to presidential control?
393.
the president?

Should all branches of the

Or is there sometimes a good reason to insulate certain officers from

74

After the decline of the non delegation doctrine, it is arguable that Humphreys Executor makes things worse:
not only cant agency rulemaking decisions (which have the force of law) be laid at the feet of Congress; they
cant be laid at the feet of the President, either. Humphreys Executor creates a headless fourth branch of
government subject to the control of none of the three constitutionally recognized branches. The result is
unchecked bureaucratic power.
394.
Together with commerce power, does this mean that the U.S. is run by
an oligarchy that is immune to democratic control? Even if the answer is yes, should we care if the job
of regulation is being performed well? If job of regulation is being done badly, can Congress do
anything about that?

395.

There is no constitutional basis for administrative agencies exercising

power without presidential supervision. Humphreys Executor should be overruled.

Humphreys Executor was a necessary response to the growth of administrative agencies and the grant of
legislative and judicial functions to those agencies.

396.

If those powers were to be exercised by the President, system of

separation of powers would be skewed in favor of executive branch. Thus, this case was a necessary
quid pro quo for downfall of nondelegation doctrine.
397.
Devices such as legislative veto and congressional participation in
appointment of administrative officers should therefore be upheld as modern efforts to maintain
constitutional balance in context of the administrative state.

Myers and Buckley are based on a formalistic effort to catalogue those functions that are necessarily executive
in character.
398.

Any such categorization is bound to be arbitrary.

399.
Moreover, Congress is under no obligation to create subordinate bodies
in the first place, so it follows that when Congress chooses to create these bodies, it is under no
obligation to make their members subject to presidential control.
Bowsher v. Synar - Good-bye Gramm-Rudman

Burger 1986. This case invalidated the Gramm-Rudman Act because the Act violates the separation of powers.
Congress may not reserve to itself the power to remove an executive officer for cause, at least where the
definition of cause is fairly broad.

Facts. The Gramm-Rudman Act, Congress attempt to reduce federal budget deficits, set a maximum deficit
amount for each of the fiscal years 1986-1991. The size of the maximum allowable deficit was reduced each
year, until it was to become zero in 1991. In any year in which the deficit exceeded the maximum deficit
amount, the Act required across-the-board cuts in federal spending to meet the targeted amount. These cuts
were automatic in the sense that they were essentially pro-rata (half to defense programs and the other half to
non-defense programs).
400.
Role of Comptroller-General. The Act gave a key role to the
Comptroller General of the U.S. in carrying out the automatic cut provisions. The Comptroller was to
review budget estimates given to him by two federal agencies, and then submit to the President a report
stating on a program-by-program basis how much needed to be cut. The President was then required
to issue an order mandating the reductions specified by the Comptroller. Congress could then, by
special legislation, reduce spending to eliminate the need for some or all of the cuts; if it did not do so,
the cuts called for in the presidential order were to be automatically carried out.
401.
Right to Remove Comptroller. By separate, much older, legislation,
Congress reserved to itself the right to remove the Comptroller General from office for five specified
reasons (permanent disability, inefficiency, neglect of duty, malfeasance, or a felony or
conduct involving moral turpitude.) In the 80-odd years since the post of Comptroller General was

75

established, Congress had never exercised, or even made a serious move to exercise, this removal
power.

Statute struck down. By a 7-2 vote, SCt struck down the automatic-reduction provisions of the Act. In doing
so, the SCt applied the following reasoning:
402.

Act uses the Comptrollers executive powers;

403.
Executive powers may not be vested by Congress in itself or its agents,
because Congress is limited to legislative rather than executive functions.
404.
Congress;

Because Congress can remove the Comptroller, he is an agent of

405.
Therefore, the Comptroller may not constitutionally exercise the
executive powers given to him in the Act, and
406.
The Acts automatic budget reduction mechanism, which is based on
the Comptrollers exercise of his executive powers, must be invalidated.

Nature of Removal Power. The most novel aspect of majoritys reasoning is its assertion that the retention by
Congress of the right to remove an executive officer for certain specified types of cause converts that officer
into an agent of Congress. The majority stressed that several of the types of cause (inefficiency, neglect of
duty, and malfeasance) are very broad and, as interpreted by Congress, could sustain removal of a
Comptroller General for any number of actual or perceived transgressions of the legislative will. Also, it was
not clear to the majority that there could be judicial review of any removal. Furthermore, there was evidence
that both Congress and the Comptroller General himself view him as being an office of the Legislative
Branch.

Concurrence - Stevens, Marshall. Agreed with majority that Comptroller was an agent of Congress. But they
disagreed that it was Congress right to remove him that made him such rather, it was the fact that the bulk of
his duties are directed at, and for the benefit of, Congress instead of the executive branch.

407.

The concurring justices sharply disagreed with the majoritys view that
the powers exercised by the Comptroller under the Act are executive. They believed that these powers
were legislative, because they involved the making of broad policy determinations. Consequently,
just as Congress could not delegate part of its legislative authority to the Attorney General for
deportation decisions (as SCt held in Chadha), so it could not delegate these powers to the Comptroller
General. In particular, these legislative functions could only be carried out via the passage by both
Houses of a law that is then signed by the President (bicameral and presentment requirements of USC).

Dissent - White. White argued the majority opinion was too formalistic and ignored the realities of the problem
that Congress is trying to address.

408.

The SCts technical argument has nothing to do with the concerns that
underlie the separation of powers. The constitutional test should be whether the Act so alters the
balance of authority among the branches of government as to pose a genuine threat to the basic
division between the lawmaking power and the power to execute the law.

409.

No such threat is presented here: White contended that Congress

retention of the right to remove the Comptroller for specified causes did not convert him into an agent
of Congress. Common sense indicates that the existence of the removal provision poses no such threat
to the principle of separation of powers. So the statute should be upheld.

410.

Whites reasoning here was much like that of his dissent in Chadha. It
avoids the vices of formalism, but it id not clear whether White has any theory of separation of powers
that could predictably determine whether, in any given case, there has been a violation.

76

Commitment and the budget

Gramm-Rudman Act invalidated in Bowsher is one of a number of structural or quasi-constitutional statutes

enacted by Congress in recent years designed to control federal spending. These statutes raise fundamental
questions concerning the constitutional authority of the political branches to restructure the political process so
as to favor certain outcomes.

One commentator suggested that the Gramm-Rudman act does not and cannot reduce legislative power to
spend. Specifically, under the Act, if Congress and the President prefer to evade the consequences of automatic
budget cuts, they may readily do so.

Why didnt Congress simply enact an ordinary law accomplishing the result it favored instead of proceeding
indirectly through the Gramm-Rudman Act.

Appointments power - Congressional control over administrative officials

CHADHA

AND

BOWSHER

While these two cases both invalidated innovative schemes designed to preserve congressional control of
delegated authority, the two decisions utilize different approaches.

Chadha. Invalidated statute (legislative veto) because it failed to comply with presentment and bicameral
requirements for enactment of statutes. Problem with this approach is that in absence of legislative veto,
Chadhas deportation status would be determined by INS, yet the INSs decision also fails to comply with
bicameralism requirement.

Bowsher. Avoids this difficulty by reversing the analysis; SCt treated Comptroller Generals budget-cutting
authority not as legislative, but rather as executive power. SCt. Held that Congress unconstitutionally trenched
on executive authority by vesting this authority in an officer under legislative control.

MORRISON

AND

BOWSHER

Koppelman: Taken together, these cases are puzzling. According to what account of separation of powers does
the law challenged in Bowsher present a danger to the constitutional plan, while no such danger was presented
in Morrison or Mistretta?

SCt distinguishes between

411.

Statutes designed to assert congressional control over administrative

officials (prohibited in Meyers, Chadha, and Bowsher);

412.

And statutes designed to protect administrative officials from executive

control (permitted in Humphreys Executor and Morrison and Mistretta).

77

According to this view, while Congress may make some executive officers independent, Congress may not itself
control them. Thus, this shields administrative officers from accountability to either of the popularly elected
branches of government.

KOPPELMAN

ON

MORRISON

AND

MISTRETTA

Two concerns regarding separation of powers: (1) concentrated power, (2) unaccountable power.

In these two cases, while majority concerns itself primarily with concentrated power, Scalias dissent concerns
itself primarily with unaccountable power.

Both of these cases represent a triumph of anti-formalism.

NON-PRESIDENTIAL

APPOINTMENTS

Exactly when can cross-branch appointments be made? Since Morrison, the SCt. Has rejected three additional
constitutional challenges to non presidential appointments.

Freytag v. Commissioner of Internal Revenue

Blackmun 1991. Held that the appointment of special trial judges by the Tax Courts chief judge did not violate
the appointments clause. The special tax judges had sufficient discretion/importance to be inferior officers to
whom the appointments clause applied. Although the Tax Court was not an Article III court, its exclusively
judicial role qualified it as a Court of Law within the meaning of the appointments clause

Weiss v. United States

Rehnquist 1994. Held it was not unconstitutional for the Judge Advocate General to appoint military judges to
serve on special and general courts martial. Although the officers in question received judicial assignments
from the Judge Advocate General, rather than the President, they had already been appointed as commissioned
officers by the President.

Edmond v. United States

1997. SCt upheld authority of Transportation Secretary to appoint civilian members of Coast Guard Court of
Appeals. Inferior officers are officers whose work is directed and supervised at some level by others who
were appointed by presidential nomination with the advice/consent of Senate. SCt held that civilian judges on
Coast Guard Court of Appeals were inferior officers who could be appointed by head of department because
they were supervised by JAG and by Court of Appeals for Armed Forces.

JUSTICE SCALIAS BOWSHER

AND

MISTRETTA

DISSENTS

In Bowsher and Mistretta, Scalia objects to results reached by SCt because they permit Congress to establish
arrangements that minimize political accountability.

413.

Is Scalias position consistent with his willingness to use courts to

police separation of powers decisions made by politically accountable branches?

414.

Is Scalia correct in asserting that SCts balancing approach fails to

provide a clear standard for what sorts of congressional limitations on executive authority are
constitutionally permissible?

415.

Is there any answer to Scalias argument that USC vests entire

executive power in the President, and that SCts balancing approach is therefore profoundly mistaken?

78

CONGRESSIONAL

CONTROL OF ADMINISTRATIVE AGENCIES AFTER

CHADHA

AND

BOWSHER

Buckley court upheld FEC Act insofar as powers that it delegated to FEC were essentially of an investigative
and informative nature, falling in the same general category as those which Congress might delegate to its own
committees.

416.

Does this holding survive Chadha?

417.

Would this opinion survive Stevens concurring opinion in Bowsher?

Consider possibility that centralization of executive power actually weakens the presidency. If this is the case,
then in order to strengthen the presidency, perhaps there should be selected cutbacks in direct presidential
oversight of agencies, and select creation of commissions that operate with less direct presidential control.

Metropolitan Washington Airports Authority

Stevens 1991. This case illustrated the Presentment Clause (giving President opportunity to veto any bill) and
the bicameral requirement (whereby both Houses must pass a bill before it can become law). SCt held that if a
review board (or other oversight board) staffed by Members of Congress is carrying out what are properly
viewed as legislative functions, the boards own actions must be approved by both Houses and presented to the
President for his veto.

Facts. Congress passed a statute saying that Dulles and National Airports would be transferred from the federal
government to the Metropolitan Washington Airports Authority, provided that the Authority set up a Board of
Review composed of nine Members of Congress. The Board of Review would have veto power over any
decisions made by the Authority. Challengers to the Act argued that if the Board of Review were set up with
that composition, Members of Congress would in effect be administering the airports, a function entrusted to the
Executive Branch.

Board struck down. SCt agreed that the creation of the Board staffed by Members of Congress would violate
separation of powers principles. SCt did not decide which of two constitutional violations would occur, but did
decide that one or the other would definitely occur:

418.

Improper lawmaking. If the Boards actions were viewed as legislative

in nature, the Congress was violating the presentment and bicameralism requirements, since the
congressionally-staffed Board would be making individual decisions that would that would not be
approved by each House or presented to the President for his possible veto. The Board action in that
instance would be similar to the legislative veto invalidated in Chadha.

419.

Improper execution of laws. Alternatively, the Board might be viewed

as giving the Board the power to execute or administer the laws. In that event, the Board would be in
effect an arm of Congress performing Executive functions. This would violate the separation of
powers principle that only the Executive Branch, not Congress, may carry out the laws. (Bowhser
established this rule.)

Dissent - White. Board is a creature of state law, and separation of powers does not apply to state laws. More
generally, the SCt shouldnt worry so much about legislative encroachment. These days, the executive is the
more dangerous branch of government.

Critique of Metropolitan Washington Airports Authority

420.

Assuming that Board of Review was exercising executive authority,

what did Court ignore relatively clear requirements of appointments and ineligibility clauses in favor
of more amorphous, arguably nontextual Bowsher principle (unconstitutional because Board of Review
was an agent of Congress)? This contrasts with Burgers textualism in Chadha.
421.
Assuming Board of Review was exercising legislative authority, then
why was it constitutional for Federal Aviation Administration to run the airport prior to the transfer?

79

Non delegation doctrine and quasi-constitutional statutes

INTRODUCTION

Under current doctrine, there are very few, if any, constitutional restraints on Congresss power to delegate.

Historical conventional understanding that Congress is exclusive lawmaker no longer reflects reality. In
every industrialized nation, administrative agencies (part of executive branch) have been granted considerable
lawmaking power.

Possible reasons why Congress delegates broad discretionary power to administrative agencies:
422.

Administrators have necessary expertise

423.

Area changes rapidly

424.
Severe political costs to precise solutions of problems; no such costs
attach if Congress merely identifies problem and asks administrators to solve it.

425.

Only an administrative agency staffed by experts and combining

legislative, adjudicative, and executive authority has flexibility to engage in regulatory and
redistributive activity necessary in a post-New Deal regulatory state.

Constitutionality of broad delegations of discretionary power to administrative agencies.

426.
Some argue that such delegations violates original constitutional
structure by allowing combination of legislative and executive power.
427.
Others argue there is no historical basis for this view, and that early
congresses often delegated discretionary power to the executive.
428.
Our opinion here may depend on our position over extent to which
government interference with private economic ordering is constitutionally permissible. Two views:

(1) Framers created sharp divisions between legislative and executive authority in order to make such
interference difficult.

(2) Framers left questions about substantive ends of government to democratic processes.
NON-DELEGATION

DOCTRINE

Article I, by vesting legislative power in Congress, imposed constraints on Congresss authority to delegate that
power to others. This doctrine was thought to serve several functions:
429.
Ensured that fundamental policy choices would be made by legislature
and not by officials w/in executive branch (less accountable).
430.

Promoted predictability for those benefited/burdened by regulation.

431.
enforcement process.

Prevents arbitrariness on part of administrators by confining them to

NON-DELEGATION

AND

NATIONAL INDUSTRIAL RECOVERY ACT

OF

1933 (NIRA)

NIRA sought to permit representatives of labor and management in each industry to design codes of fair
competition in order to stabilize wages and prices. Following two cases are only decisions that invalidated federal
statutes on non-delegation grounds in nations history.
Panama Refining Co. v. Ryan

80

1935. SC invalidated provision of NIRA authorizing president to prohibit, as part of petroleum code,
transportation in interstate commerce of oil produced in violation of state-imposed production quotas. SC
argued that statute did not supply standards that would tell president when to exercise power.

Schechter Poultry Corp. v. United States

1935. SC invalidated live poultry code which contained maximum hour and minimum wage provisions and
prohibited various practices said to be unfair methods of competition. It is unconstitutional for Congress to
delegate lawmaking authority regarding what constitutes fair competition to trade/industrial associations.

DEMISE

OF NON-DELEGATION DOCTRINE

The growth of administrative state killed the non-delegation doctrine. Non-delegation has all but disappeared as
constraint on delegation of authority to administrative agencies.

Why did the non delegation doctrine fail?

432.

Judicially under enforced constitutional norms.

433.

Has USC changed? (e.g. Bruce Akerman)

434.

Are there any situations in which it would be appropriate to invoke the

non-delegation doctrine? Suppose a statute paraphrases Trumans pre-Youngstown press conference
and declares the president shall have the power to do whatever he thinks is best for the country.

Statutes authorizing regulation of unreasonable risks or administrative action in the public interest appear
immune from attack.

On rare occasions, non-delegation doctrine is invoked as aid to statutory construction: fear of broad delegation
is reason to construe administrative authority narrowly.

Schecter itself has not been overruled, and massive delegation of authority as in that case might be struck down
today. But non-delegation doctrine has not been invoked in modern cases, notwithstanding breadth of
delegations to administrative agencies.

Amalgamated Meat Cutters v. Connally

1971. Court upheld statute authorizing president to impose wage/price controls on ground that implicit
standards of borad fairness and avoidance of gross inequity were sufficient. Key factors: temporary
character of delegation, president could not discriminate unreasonably among industries, implicit requirement
that president come up with standards to limit his own discretion.

Touby v. United States

1991. Controlled Substances Act authorized Attorney General to make criminal manufacture, possession, or
distribution of any dug that met statutory criteria relating to history and current pattern of abuse and risk to
public health. SC rejected non delegation doctrine challenge to this Act.

Loving v. United States

Kennedy 1996. Statute stipulated that punishment which a court-martial may direct for an offense may not
exceed such limits as President may prescribe for that offense, and that court martial may, under such
limitations as President prescribes, adjudge any punishment not forbidden by statute, including death penalty.
SCt rejected argument that statute failed to establish intelligible principle guiding Presidents discretion and
thus violated non delegation doctrine. SCt argued that guidance telling President how to formulate regulations
was not needed because delegation was set within certain boundaries and because President is Commander in
Chief.

ARGUMENTS

IN FAVOR OF REVIVING NON-DELEGATION DOCTRINE

D. Schoenbrod

81

Delegation allows legislators to claim credit for benefits which a regulatory statute promises yet escape blame
for burdens it will impose because they do not issue laws needed to achieve those benefits.

USC prohibits delegation of legislative power. Since New Deal, SC has argued that delegation decision should
be left to Congress and president because Congresss concern for its power will prevent it from delegating too
much. This reasoning is simplistic; in reality, Congress enhances its power by delegating.

Industrial Union v. American Petroleum Institute Rehnquist dissent

1980. Case involved interpretation of OSHA statute. First provision defined occupational safety and health
standards as those reasonably necessary or appropriate to provide safe or healthful employment. Second
provision required Labor Secretary to set standard which most adequately assures, to extent feasible, on basis
of best available evidence, that no employee will suffer material impairment of health.

Plurality concluded that reasonably necessary or appropriate language required Secretary to show significant
risk before undertaking to regulate.

However, Rehnquist would have decided case on non-delegation grounds.

435.

Rehnquist argued that when fundamental policy decisions underlying

important legislation about to be enacted are to be made, buck stops with Congress and president
insofar as he exercises his constitutional role in legislative process.
436.
C/A. If Congress is forced to confront hard choices, its ability to
enact legislation declines and more activity is left unregulated in private sphere.
Ely (Democracy and Distrust)

Distribution of the franchise and other political rights is irrelevant unless important policy choices are made by
elected officials.

Response to argument that delegation is necessary given complicated policy problems:

437.
Congress can call on staffs as expert, and Congress is entitled to
assistance of executive departments technical staffs.

438.

Non-delegation doctrine does not require Congress to put more detail in

legislation than was feasible. Nondelegation doctrine requires Congress to provide policy direction in
its legislation. However, much contemporary legislation lacks policy direction.
Stewart against non delegation doctrine

In many government endeavors, it is inherently impossible to identify particular course of action to be adopted.

There are many institutional constraints on Congresss ability to specify regulatory policy in meaningful detail.

Judicial enforcement of non delegation doctrine is problematic because judgment as to degree of policy
specificity that is possible in given case is quite subjective.

Lowis assessment of the new Constitution

82

Article II Separation of powers notwithstanding, center of national government is presidency. President is

authorized to use real or imagined powers to set our nation to rights by making any rules president deems
appropriate; president may subdelegate authority to any other official/agency.

Article III Congress exists but only as consensual body. Congress has all legislative authority but should limit
itself to broad grants of unstructured authority to president.

Article IV There exists separate administrative branch composed of persons whose right to govern is based on
(1) delegation of powers from Congress and (2) authority inherent in expertise.

Article VII Actual policymaking comes not from voter preferences or congressional enactments but from
process of tripartite bargaining between administrators, Congress members, and representatives of interest
groups.

STRUCTURAL

STATUTES

If non-delegation doctrine is not revived, and if it is impossible for Congress to set forth clear standards to
govern decisions by administrative agencies, are there alternative means by which Congress might establish
original position as lawmaker?

Congress has sporadically attempted to reassert its authority by enacting structural or quasi-constitutional
statutes.

Legislative Veto A legislative veto provision is typically included as part of a congressional statute delegating
certain powers to federal agencies. The legislative veto allows one or both houses of Congress to pass a
resolution invalidating decisions made by administrative agencies. The resolution is not presented to the
President (as a statute must be), and President does not receive an opportunity to veto the resolution.

439.

The legislative veto enabled Congress to retain some control over the
authority which it broadly delegated to president.

440.

The demise of the legislative veto by Chadha has not prevented

Congress from granting broad authority to executive.

441.

Moreover, it is arguable that Chadha has not seriously limited

Congress power to control the exercise of the authority which it grants to executive branch.

Structured prosecutorial decisions when wrongdoing is alleged against high executive officials by mandating
appointment of independent counsel.

Attempted to control future spending decisions by

442.

enacting balanced-budget provisions,

443.
funds,

structuring executive decisions regarding spending of appropriated

444.

granting president line-item veto,

445.

limiting its own ability to foist unfunded mandates on states.

Attempted to control presidents use of armed forces by enacting War Powers Resolution.

How should SC respond to these experiments in governance? Two views:

446.
Structural statutes unconstitutionally expand Congresss powers.
Congress cannot bind us to new structure of governance w/o amending USC.
447.
Structural statutes merely preserve original balance between Congress
and president in regulatory context where broad delegations to executive are fact of life.

83

Executive authority foreign

Control of foreign affairs

Comparison with domestic affairs.

448.

In domestic sphere, SCt has at least sporadically asserted that

separation of powers questions can be guided by the textual division of authority among the executive,
legislative, and judicial branches.

449.

In foreign sphere, allocation of authority is not determined by any

natural division. Much of the law in this area is the product of historical practice and practical
accommodations, formal and informal, between executive and legislative branches.
UNITED STATES V. CURTISS-WRIGHT CORP. FOREIGN

ARMS SALES EMBARGO

Sutherland 1936. Facts. A joint resolution of Congress authorized the President to ban the sale of arms to
countries engaged in a particular conflict. FDR proclaimed such an embargo, and Curtiss-Wright was charged
with conspiring to sell arms to Bolivia, one of the countries to which the embargo extended. Curtiss-Wright
challenged the joint resolution as being an unconstitutionally broad delegation of legislative power to President.

Upheld by SCt. SCt upheld the resolution, and the resulting presidential embargo. SCt stressed the very
delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of
international relations. The need for negotiation, plus the Presidents special access to sources of information,
required a degree of discretion and freedom from statutory restriction which would not be admissible were
domestic affairs alone involved. Here, for instance, President would be better able than Congress to determine
whether Bolivia was in fact engaged in the conflict. Thus the delegation to the President was not overly broad,
regardless of whether such delegation would be permissible with respect to a domestic issue (a question which
SCt did not decide).

SCt here claimed that a political society cannot endure without a supreme will somewhere. Is this true? Is it
truer of foreign rather than of domestic affairs? If it is true, then why does Congress have all the foreign affairs
powers enumerated in USC. [see below]

Why does SCt here believe that the President is the sole organ of the federal government in the field of
international relations?

Text, history, and presidential power

Text. But USC text does not make President the sole organ of federal government. USC text vests in Congress
a number of foreign affairs powers: power to declare war; power to regulate commerce with foreign nations;
power to raise/support armies, power to provide/maintain navy; power to provide for
organizing/arming/disciplining militia; and power to make rules for calling forth the militia to repel invasions.

History. First, the history is ambiguous and thus only arguably supports SCts conclusion here. Second, it is
not clear that historical practices are a valid basis of constitutional argument if such practices involved
usurpation original allocation of constitutional authority.

Functionalism and the autonomy of constitutional interpretation

84

SCt also made functionalist argument by asserting that only the President can know the conditions which
prevail in foreign countries, has confidential sources of information, and can maintain secrecy.

This argument parallels argument for delegation of legislative power to executive in domestic affairs.

SCts functionalist conception of the executive adopted here is ironic since at the same time SCt was
invalidating much of the New Deal on formalist grounds. SCt wanted a foreign policy that would be vigorous
and interventionist, while preventing domestic policy that would be vigorous and interventionist.

How valid are such functionalist arguments in constitutional interpretation? Are these arguments independent
from controversial political judgments about appropriate role of federal government?

ALLOCATION

OF WAR MAKING AUTHORITY

USC is ambiguous on allocation of war making power as between President and Congress.
450.
President is made commander-in-chief of armed forces; no doubt that
framers intended President to play principal role as representative of U.S. in relations with other
nations.
451.

But Congress is expressly empowered to declare war.

452.
Does inherent presidential power include the power to send troops into
combat abroad and to keep them there without Congressional authorization? If so, what is the practical
significance of Congress Article I power to declare war?
453.
How can vesting of power to declare war in Congress be reconciled
with presidential necessity that president be able to respond to emergencies?
454.
For that matter, how can judicial protection against racial
discrimination, or of private property, or of freedom of the press, be reconciled with that necessity?
Approaches toward reconciling these provisions

Evidence shows that framers believed President should be able to act to repel sudden attacks. But in other
contexts, President could not initiate war without a congressional declaration.

In modern circumstances, notions of repel sudden attack and war mean something different from what they
meant for framers. Here are some different views on this issue:
455.
Underlying constitutional language is long-range purpose authorizing
President to protect Americans from external force in an emergency. Given increasing mobility of
weapons, President may sometimes conclude that offense is the best defense. Though his
characterization may be debatable, President must necessarily be accorded a broad discretion. (Ratner)

456.

Enemy actions today not amounting to an attack can more obviously

threaten U.S. national security than when USC was adopted. Thus, a sound functionalist interpretation
of Presidents power to repel sudden attacks should probably permit him to take any military action
necessary to preserve our national security when there is not time to consult Congress but subject to
stipulation that President come to Congress for approval as soon as possible and terminate military
action if Congress does not provide approval. (Ely)
457.
Historical development of self-defense rationale would limit
independent presidential power to engage in war to certain cases involving direct attacks against U.S.
But there may be some cases where violence abroad poses a threat so inimical to U.S. security that
defense of U.S. itself is immediately involved. How do we decide which cases fall into that category?
Should courts have a role here?
458.
Framers recognized that not every involvement of armed forces can be
a war requiring congressional action. Meaning of war must be determined with reference to
purpose of war-declaring clause: to safeguard U.S. against unchecked executive decisions to commit

85

country to a trial of force. Two reasons for requiring Congress (not President) to approval declaration
of war:

(1) Such decision involves risk of great economic/physical sacrifice.

(2) Very act of using force involves moral and legal consequences significant enough to require
popular approval.
Prize Cases - Presidents power to use armed forces

Grier 1863. At issue was the lawfulness of President Lincolns proclamation establishing a blockade of
southern ports after the secession of the southern states.

SCt upheld the blockade on grounds that a state of war existed between northern and southern sates. By Acts of
Congress, President is authorized to use military/navy in case of invasion by foreign nations and to suppress
insurrection against government of State or United States.

Koppelman. What practical difference is there between Congressional power to declare war and presidential
power to recognize that a state of war exists? When, if ever, is the president obligated to get Congress
permission before he takes military action? What is a war, anyway?

Orlando v. Laird Vietnam non-justiciable

1971. SCt held that USC required participation on part of Congress for Vietnam War, but that Congress had
provided sufficient authorization to the President.

Ely make functionalist argument that courts should have been more receptive to lawsuits here because in realm
of war, Congress seldom has either the incentive or the moral standing to do anything about an unconstitutional
war.

Dellums v. Bush The Persian Gulf War

1990. District court said in dicta that an offensive entry into Iraq by several hundred thousand U.S. servicemen
could be described as a war within the meaning of the USC, and that in principle, an injunction may issue at
request of members of Congress to prevent conduct of war which is about to be carried on without
congressional authorization.

Congress passed a joint resolution authorizing use of American military force against Iraq after 1/15/91 as long
as President determined/reported to Congress that all diplomatic efforts had failed. Was this resolution
sufficient to constitutionally authorize Operation Desert Storm? Two views:
459.

No, joint resolution was a legal nullity.

460.
Yes, it is difficult to see what additional accountability would have
been gained had the resolution been styled as a declaration of war.
UN peacekeeping or peace enforcement

Recently, President has authorized use of American forces in UN-sponsored military actions in Bosnia, Haiti,
and Somalia without obtaining prior congressional approval.

Whether or not prior congressional approval is constitutionally required depends on character and risks of war
in each mission.
461.
authorization.

Peacemaking missions entail war and thus require congressional

462.
Peacekeeping missions pose little risk of hostilities; while Congress can
impose limitations, President can argue that no authorization is necessary because analogous to
presidential peacetime troop deployment.
463.
Peace enforcement missions.
hostilities are involved on a limited scale.

86

Ambiguous middle ground where

Legislative authority - foreign

THE WAR POWERS RESOLUTION

Background. Before enactment of resolution, President had considerable discretion in use of military force to
accomplish foreign policy objectives. Resolution was enacted after Vietnam and Watergate to define and
enlarge the congressional role in use of military power.

Summary. Requires President in every possible instance to consult with Congress before introducing U.S.
armed forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by
the circumstances. Presidents ability to conduct hostilities without affirmative authorization from Congress is
limited to at most 90 days. Whenever American forces are engaged in hostilities without Congressional
authorization, such forces shall be removed by the President if the Congress so directs by concurrent
resolution.

Interpretation Issues:
464.
What does act mean by introduction of U.S. armed forces into
hostilities? When is imminent involvement in hostilities clearly indicated by the circumstances?

465.

It is questionable whether the legislative veto provision here is

constitutional after Chadha. If it is not, then we are presented with same severability problem raised
by Rehnquists dissent in Chadha. Should the entire statute be invalidated?

466.

We can argue that even if the legislative veto is unconstitutional, such a

veto could still suffice under Justice Jacksons analysis in Youngstown to place the Presidents power at
its lowest ebb.
War Powers Resolution is unconstitutional

USC gives President authority to introduce armed forces into hostilities without congressional declaration of
war.

In cases of effort to repel sudden attack, resolution allows congressional role where such a role is
constitutionally proscribed.

Rostow argues there is nothing constitutionally illegitimate about undeclared wars; U.S. fought them
frequently in 18th, 19th, and 20th centuries. This resolution would turn clock back to Articles of Confederation
and destroy presidency.

The War Powers Resolution is constitutional

Resolution merely restores constitutional balance that had been upset by long period of congressional inactivity
before its passage. Resolution allows Congress to ensure there is no undeclared war.

If anything, resolution allows President to wage war without declaration in far too many circumstances.

Mere historical acquiescence by Congress in Presidents exercise of war does not by itself prove that Congress
lacks authority to exercise of that power when it gathers wisdom/courage to do so.

Practice under the Resolution

Many commentators agree that resolution has been ineffective in constraining executive discretion.

Congress reduced resolutions effectiveness by failing to address two new types of military action arising during
1980s:
467.
Covert wars. Resolution covers U.S. Armed Forces but not private
activities of former CIA operatives. (e.g. Oliver Norths operatives)
468.
Short-term military strikes.
resolutions 60-day time limit (e.g. Grenada and Panama)

87

Could be completed well within

469.
Ironically, resolution has also failed to prevent even type of creeping
escalation that it was expressly enacted to control: e.g. U.S. troops in Lebanon and American ships
patrolling Persian Gulf.

Could Congress have crafted a more effective resolution?

470.

Yes, as long as Congress still has the will to be held accountable. (Ely)

471.
No. No modification of the resolution will in itself ensure that
collective judgment of both Congress and President will apply to introduction of U.S. Armed Forces
into hostilities. No statute is even required for members of Congress to have the insight and courage to
stand up to Presidential exercise of war. (Glennon)
THE CONSTITUTION

WITHOUT COURTS

WAR POWERS

AND

BOLAND

Both War Powers Resolution and Boland Amendments represented efforts by Congress to utilize self-help in
enforcing constitutional boundaries. Does experience here suggest that judicial review is essential to
constitutional government in this area?

Actually, note that SCt has regularly tipped the balance of foreign policy making power in favor of the
president, both on the merits or on justiciability grounds.

Following conclusions might be drawn from SCts record here:

472.
Judicial review is not the solution to the inadequate enforcement of
constitutional limitations on executive power. Rather, constitutional requirements are best enforced
through the give-and-take of political process.
473.
Constitutional limitations have been inadequately enforced precisely
because SCt has mistakenly remitted these questions to political process.
474.
Constitutional limitations have not been inadequately enforced.
Framers deliberately created strong executive. Moreover, USC is flexible enough to accommodate
changed circumstances that have caused our political system to tilt toward a powerful president.

Other separation of powers premises

TREATIES

Article II, 2 of USC grants to President the power by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of Senators present concur, and Article V, 6 makes all Treaties made, or which
shall be made, under the Authority of the U.S., the supreme law of the land.

Conflict of Laws

475.

If treaty is inconsistent with U.S. law, the one last in date will control
the other, provided always the stipulation of the treaty on the subject is self-executing. [Whitney v.
Robertson (1888)].
476.
Treaty must be a bona fide agreement between states. For example,
U.S. cannot write into a treaty with Canada a uniform divorce law for U.S.
EXECUTIVE AGREEMENTS

Although there is no express constitutional authority for executive agreements, USC indirectly recognizes
possibility of non-treaty international agreements in Article I, 10, which prohibits states from entering treaties
but authorizes them to enter an Agreement or Compact with a foreign Power with consent of Congress.

Dames & Moore v. Regan - Constitutional limits on scope of executive agreements

88

Upheld constitutionality of presidential action taken pursuant to an executive agreement with Iran only after
finding congressional authorization for (or at least acquiescence in) Presidents decision. Deal to settle claims
as part of the Iran hostage release.

United States v. Belmont

1937. Upheld terms of executive agreement surrounding U.S. recognition of Soviet Union, even though
agreement was reached without prior congressional authorization. SCt relied heavily on Presidents express
constitutional authority to receive Ambassadors.

Can the President act unilaterally in cases where he lacks express constitutional authority? According to
Henkin, we must conclude that there are agreements which President can make on his sole authority and others
which he can make only with consent of Senate, but neither Belmont nor anyone else has told us which are
which.

CONGRESSIONAL-EXECUTIVE

AGREEMENTS

Approved by simple majorities of both Houses of Congress, rather than by a two-thirds majority of Senate.
(e.g. NAFTA, GATT).

Are congressional-executive agreements constitutional in absence of approval of 2/3 of Senate?

477.

Tribe. Because of broad delegation in Article II, President is

understood to have inherent power to perform all executive acts, subject to limitations in Articles I and
II and other constitutional provisions. Authority to make international agreements that do not rise to
level of treaties has long been correctly recognized as one such inherent executive power. However,
this does not suggest that Congress may plan an ex post role in approving such agreements with
foreign nations on behalf of U.S.
Ackerman & Golove. In approving GATT, Congress enacted a law that is formally identical to all others passed
under Article I. USC text creates multiple legislative procedures for accomplishing same end. Articles I and II set
up alternative systems through which nation can commit itself internationally one with, and one without, the
cooperation of the house.
IMPOUNDMENT

During 1970s, Nixon claimed the authority under article II powers to impound funds previously authorized by
Congress.

Congress responded by passing Congressional Budget and Impoundment Control Act of 1974 governing two
kinds of impoundment.
478.
Deferrals of budget authority were permissible only to provide for
contingencies, achieve savings made possible by changes in requirements or greater efficiency in
operations, or as specifically provided by law.
479.
Rescission of budget authority (decision that all or part of any budget
authority will not be required to carry out full objectives/scope of programs) proposal to rescind will
not take effect unless within 45 days after notification, Congress has enacted a rescission bill
rescinding all or part of the amount proposed to be rescinded.

Impoundment Control Act of 1974 has little legal effect.

480.
Regarding rescissions, Congress did not need prior legislation to allow
it to pass bill mandating expenditure of funds.
481.
Regarding deferral, either Nixon was constitutionally right or wrong to
assert deferral authority. If Nixon was right, it was unconstitutional for Congress to invade presidents
authority with legislation. If Nixon was wrong, legislation was unnecessary.

89

482.
problem?
LINE

If Act has little legal effect, why has it been successful in resolving the

ITEM VETOES

For many years, Presidents have sought from Congress the authority to veto specific spending provisions (a
specific line item) included within comprehensive legislative appropriations.

Argument that line-item legislation would not have legal consequences.

483.
If Congress wanted to subject individual appropriations to a veto, it
could do so by passing each appropriations measure as a separate bill.
484.
If Congress wanted to shield individual appropriations from a line-item
veto, it could do so by pro tanto repealing the presidents rescission authority as part of the very bill the
president wishes to veto.

If line item veto did have legal consequences, is it constitutional for Congress to rewrite the veto procedure
outlined in Article I? Would the rescission authority granted to president be sufficiently constrained to avoid a
non delegation doctrine attack?

UNFUNDED

MANDATES

Federal legislation imposing costly requirements on the states without providing funds to pay for them.

New York v. United States No unfunded mandates 10th Amendment

1992. SCt held that when unfunded mandates were directed solely to the states and were not part of generally
applicable laws, they might under some circumstances violate 10th Amendment.

Unfunded Mandate Reform Act of 1995.

Purports to further limit power of federal government to impose unfunded mandates. Bills imposing more than
$50M/year mandate on state governments are subject to a point of order.
485.
Does this Act have any legal effect, in light of the fact that either House
could overrule a point of order?

486.

Is the role assigned to the Director of the Congressional Budget Office

constitutional after Bowsher?

Contract with America

In 1995, House implemented provision in Contract with America by adopting a rule requiring 3/5 majority of
those present/voting to pass increase in income taxes. Is this rule constitutional?

Unconstitutional by Chadha because it changes method of enacting ordinary legislation without a formal
constitutional amendment.

Constitutional for two reasons: (1) USC fails to specify proportion necessary to pass a bill, (2) USC delegates
authority to each House under Rules of Proceeding Clause.

CONSTITUTIONAL

AMENDMENT TO BALANCE THE BUDGET

Argument against the amendment.

487.
To extent amendment forces this generation to restrict borrowing, it is
unnecessary because Congress can accomplish this goal by ordinary legislative processes.
488.
To extent that amendment attempts to bind future generations, it is
illegitimate because these generations have no role in the ratification process.

90

Argument in favor of amendment.

489.
Ordinary political process is ill-adapted to control of federal spending
because costs of deficit spending are diffuse and borne by future generations, while benefits are
concentrated on groups that can exercise effective political power.
490.
Process through which amendments are adopted gives amendments
legitimacy that may have important and advantageous political consequences.

Morrison v. Olson Special prosecutor laws

Rehnquist 1988. Until 1988, the rule seemed to be that if a purely executive officer had been appointed by the
president, Congress may not limit the Presidents right to remove that officer.

But in a case upholding the Ethics in Government Act, a post-Watergate statute setting up a system of special
prosecutors to investigate alleged wrongdoing by executive officials, SCt seems to have changed this rule. Rule
now seems to be that Congress may limit the Presidents right to remove even a purely executive officer, so long
as the removal restrictions are not of such a nature that they impede the Presidents ability to perform his
constitutional duty.

Facts. The statute in Morrison required the Attorney General to investigate any allegations of wrongdoing
against certain high level members of the Executive Branch (including members of the Cabinet), and to apply to
a special federal court (the Special Division) for the appointment of a special prosecutor if he found
reasonable grounds to believe that further investigation or prosecution is warranted. Once the special
prosecutor was appointed, she could only be removed by the Attorney General, and only for good cause,
physical disability, mental incapacity, or any other condition that substantially impairs the performance of [her]
duties.

Holding. By a 7-1 vote,

491.

SCt rejected claim that the Act violated Article II, 2s appointments
clause. The independent counsel is an inferior officer, not a principal officer who must be appointed
by the president. This is because: (1) the independent counsel can be fired by the attorney general
(although only if certain conditions are met), (2) the independent counsel performs very limited duties;
(3) the independent counsel has only limited jurisdiction; and (4) the independent counsel has a limited
tenure.

492.

Appointment by the judiciary is permissible: Congress can determine

appointment of inferior officers as they think proper, and nothing in Article III prohibits the judiciary
from receiving this power. The independent counsel does not interfere with the presidents executive
authority, so the law does not violate separation of powers.

493.

the SCt also held that neither the removal provisions nor the act taken
as a whole so restricted the Presidents powers as to violate the separation of powers principle.

i. Removal Provision. Because the Attorney General could terminate the special prosecutor for
good cause, the Executive Branch retains ample authority to assure that the counsel is
competently performing her statutory responsibilities.

ii. Law taken as a whole. Similarly, the Act taken as a whole did not unconstitutionally take away the
Presidents executive powers, even though his freedom to control the special prosecutor was
somewhat limited. True, the President could not select the prosecutor, determine her jurisdiction
or remove her except for cause. But the Act reserved to the President the right to decide whether
to apply for appointment of a prosecutor, imposed on the prosecutor the obligation to abide by
Justice Department policy except where not possible, and as noted, allowed the Attorney
General to remove her for cause. These powers gave the Executive Branch sufficient control
over the [special prosecutor] to ensure that he President is able to perform his constitutionally
assigned duties.

91

Koppelman critique. Majoritys interpretation of the inferior-officers clause is puzzling. To whom, precisely, is
the independent counsel inferior? He usually stays in office longer than most cabinet secretaries, and he gets to
investigate the president. Does investigating the president not interfere with his authority?

Dissent. Scalia contended that the separation of powers principle required that the President maintain complete
control over the investigation and prosecution of violations of law. Since even by the majoritys reasoning the
Presidents control over the special prosecutor was curtailed, in Scalias view the Act was clearly a violation of
the constitutionally-required separation of powers.

494.

Separation of powers is intended to prevent precisely the sort of

unaccountable coercive governmental power that is created by this statute.

495.

The unitary executive is important, in Scalias view, not only because it

coordinates governmental action, but also because its accountability protects individual liberty by
preventing an unreasonable and judgments of reasonableness are not applications of any fixed
standard investment of legal resources in the prosecution of a single person.

496.

When investigative resources are mechanically concentrated on a single

person, that person is immediately in deep trouble. If that person is a government official, the trouble
is likely to interfere with her performance of her duties. The statute here thus appears to Scalia to be a
mechanical device that randomly attacks innocent people and deranges the operation of the executive
branch. Scalia concedes that his answer does not solve the conflict-of-interest problem, but argues that
the answer to that problem must be political, not legal.

497.

Possible C/A to Scalia: In a certain sense, the independent counsel

really isnt immune to presidential control (as Scalia claims). After all, president has pardon power
(e.g. could pardon Lewinski and thus deprive Starr of any leverage with which to compel her
testimony). The limitations on the use of this power are purely political (exactly the sort of limitations
that prevented Nixon from firing Jaworski).

92

Significance. Morrison seems to have major significance for the separation of powers doctrine. It is hard to
imagine a more purely executive function than the right to investigate and prosecute violations of the law. The
case thus seems to stand for the proposition that the Executive Branch may be deprived of the power to appoint,
and the untrammeled power to remove, an inferior officer, even where the appointment relates to purely
executive powers. Apart from the issue of restricting the Presidents right of removal, the case seems to herald a
Court that will view even fairly substantial interference with the Presidents ability to exercise unfettered
control over executive functions as violating the separation of powers.

Top Level Officers. It is not clear whether the rationale for Morrison would even allow Congress to limit the
Presidents right to appoint or remove principal officers of the U.S. such as cabinet officers. Recall that the
Morrison court determined that the special prosecutor was an inferior officer rather than a principal officer.
It probably continues to be the case after Morrison that Congress may not take away the Presidents right to
appoint such principal officers the Presidents right to make such appointments seems directly/unequivocally
guaranteed by the Appointments Clause of Article II. Also, even post-Morrison, the Court would probably be
much less willing to allow Congress to limit the Presidents right to define the duties of such principal officers,
or to allow Congress to limit the Presidents right to discharge such an officer.

Mistretta v. United States U.S. Sentencing Commission

Blackmun 1989. Sentencing Commission does not violate separation of powers. Congress has considerable
flexibility to assign judicial branch tasks that might be considered law-making ones as it sees fit, at least where
the subject matter relates to the role of the courts.

Congress set up the U.S. Sentencing Commission to develop mandatory guidelines that federal judges would
have to apply in setting sentences for federal crimes. Congress provided that of the seven voting members (all
to be appointed by the President with the advice and consent of the Senate), at least three must be federal
judges. Plaintiffs claimed this was an unconstitutional delegation of law-making power to the Judicial Branch.
That is, Congress was assigning to the judges on the Commission not the job of interpreting the law (proper
judicial role) but the job of making sentencing policy, a classic legislative function.

Delegation attack rejected. SCt here was troubled by the requirement that three of the seven presidential
appointees to the Commission be judges, but the requirement is somewhat supported by history and (because
the powers are administrative rather than judicial in nature) is not barred by the structure of the USC:
498.
SCt. Rejected the claim of unconstitutional delegation of law-making
authority to the Judicial Branch. It is true that non-judicial duties may generally not be given to the
Judicial Branch. But there are some exceptions, and this was one. Because the judiciary plays the
major role in sentencing, allowing some judges to participate in the making of guidelines for sentences
does not threaten the fundamental structural protections of the USC.
499.
SCt. Also rejected a second argument that the judiciarys entanglement
in the political work of the Commission undermines public confidence in the disinteredness of the
Judicial Branch. Since the sentencing process itself is carried out by the Judicial Branch, allowing
judges to help set the guidelines is an essentially neutral endeavor and one in which judicial
participation is peculiarly appropriate.

Dissent - Scalia. This was a pure delegation of legislative power to the Judicial Branch, and as such violated
separation of powers principles. Commission gets to decide how long individuals will have to go to jail for
certain crimes, narrowing the range of sentencing discretion specified by Congress. Power this broad needs to
be accountable.

Final thoughts on separation of powers

Has the separation of powers served its intended function?

500.

Has it limited factional control over governmental processes?

501.

Has it served as an important safeguard of liberty?

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502.
Has it created so many checks that [recall here debate between
Jefferson and Madison about value of stability in government]

(1) democratic processes are unable to bring about substantial reform, or

(2) the government is prevented from taking necessary action.

What consequences does growth of administrative state have on these issues? Perhaps these developments
suggest that original understandings of separation of powers must be radically changed.

Institutional issues.

503.

To what extent has judicial review contributed to the development of

the present distribution of national powers?

504.

What has been the effect of structural legislation such as the Unfunded
Mandate Reform Act or the War Powers Resolution?
505.

Consider possibility that USC has played surprisingly small role here.

506.
Does the process of bargaining between Congress and executive branch
provide sufficient safeguard against abuse?

Is there a good reason for supporting a particular allocation of power that is not grounded in the belief that over
a range of cases, the allocation is likely to produce sound policy?

507.

This question can usefully be asked in relation to ALL of the federalism

and separation of powers cases discussed in this outline. [It also applies to the individual rights
questions below.]
508.
Any time power is apportioned, it is done for a reason, and the
allocation of power can thereafter be judged, and perhaps adjusted, in light of the underlying reasons.

94

Individual rights
Overview

Distinguished from federalism and separation of powers. Rather than demanding that government is structured
in a certain way, the judiciary intervenes directly to invalidate laws that violate certain protected rights.

Original conception did not give much of a role to federal courts in this area: the principal guarantor of
individual rights was the limitation of the power of the federal government. [but even during this period, states
were subject to federal court supervision via the Contracts Clause]

Factors detracting from state power over individual rights

509.
After the Civil War, it appeared that increasing states power in order to
protect individual rights might have perverse results: the newly freed slaves needed a strong federal
government to protect them from state tyranny.
510.
States rights were again cast into disrepute by the desegregation
struggles of the 1950s and 1960s.

The recent tendency in constitutional law has been to emphasize rights strategies rather than institutional
strategies, though some recent cases (e.g. U.S. v. Lopez and New York v. United States) suggest a partial reversal
of this trend.

But realize that even the rights strategy is an institutional one, inasmuch as it depends on the SCt to act as the
guarantor of rights. Thus, as with all institutional strategies, the question arises whether the institution will
perform according to plan and carry out the function that it was hoped that it would perform. There are two
possible types of failure:

511.

Judicial tyranny: if the court abuses its power.

512.

Judicial inadequacy: if the SCt fails to intervene when it should.

Individual rights should be evaluated through the lenses of federalism and separation of powers.
513.
Federalism. Whenever a court finds that a new right exists, that court
prevents states from experimenting, and arriving at different solutions, with respect to that right. It
imposes uniformity and suppresses diversity.

514.

Separation of powers. We have already seen that sometimes Congress

may have a good reason to interfere with states autonomy, but here it is courts that are deciding to
interfere. There may be limitations on courts decisionmaking capacity that make it unsuitable for
them to find certain new rights.
515.
Thus, in making any argument in favor of a constitutional right, it is not
enough to show that recognizing the right is a good idea. One must also explain:

(1) why the decision whether to recognize that right should be made at a national, rather than a local,
level; and

(2) why the SCt, rather than Congress, ought to be the federal actor who decides whether to impose
that right on the states.

95

Equal protection
UTILITY

OF EQUAL PROTECTION ANALYSIS

Many of the rights asserted under privacy are better asserted as equality claims (e.g. abortion, gay rights in
Bowers v. Hardwick).

In both cases, it is relevant that these are groups of people who have been historically discriminated against.

EPC does not have problem of privacy as a right: namely, that people doubt whether such a right exists in USC
(e.g. notion that substantive due process does not exist).

The equal protection rights asserted by women and gays are parasitic on reason why blacks are entitled to equal
protection.

RACE

AND THE

CONSTITUTION

Ambiguous meaning of discrimination

516.

Recall from discussion of Exxon Corp. v. Governor of Maryland and

Hunt v. Washington State Apple Advertising Commn that there is ambiguity in the SCts understanding
of discrimination. Both cases agree that proof of discriminatory impact can be a basis for a claim of
discrimination, but differ on whether discrimination has been proven.
517.
These cases leave doubt as to what discrimination means. If it
doesnt mean discriminatory purpose, and its not demonstrable simply by discriminatory impact, then
what else could it mean?
518.
SLAVERY

AND THE

There is a similar problem in the race cases.

CONSTITUTION

Slavery poses ultimate questions about constitutional interpretation.

519.
allegiance?

Should we regard USC as a good document, one that deserves our

520.
William Lloyd Garrison famously wrote that, because the USC
specifically protected slavery, it was a covenant with Death and an agreement with Hell. Was
Garrison right?

521.

John Hart Ely. Slavery was a substantive value protected from ordinary
legislative process by the original USC.
State v. Post

NJ, Nevius 1845. NJ SCt held that the states 1844 constitution, which includes a clause making all persons
free and equal, does not make slavery unconstitutional, and thus an 1804 statute providing for the gradual
emancipation of slaves remains in effect.

Rationale. Court reasoned that no one is absolutely free. In a civilized state, all residents give up a portion of
their freedoms in exchange for the benefits of civilization. Freedom, then, must be looked at in the context of
its society. At the time the NJ constitution was adopted, slavery was an accepted party of society, and was not
considered incompatible with a free society. This court was not inclined to change that view.

Koppelman.
522.

Which approach ought to be determinative here: text or original intent?

523.
equal clause more broadly?

Would the court have exceeded its power had it read the free and

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524.

If not, is the decision defensible?

525.
correctness?

Do the practical consequences of the decision matter in assessing its

526.
The court here criticized some of the parties arguments as rather
addressed to the feelings than to the legal intelligence of the court. Do feelings have no appropriate
place in legal reasoning?
Dred Scott v. Sanford

Taney 1857. Facts. Scott was born a slave. He had been taken from Missouri to Illinois, a free state, by his
master. Scott was taken to several other free states or territories. Scott was then taken back to Missouri (slave
state), and sold to Sanford. Scott then sued for his freedom, contending that his having been taken into free
states made him free. Jurisdiction was predicated on diversity of citizenship.

Two holdings.
527.
Dred Scott was not a citizen of a state. Citizens, for constitutional
purposes, refers to the sovereign people of the U.S. as they were understood to be at the time of the
USCs adoption. At that time, the Negro was considered to be an inferior class, one having no inherent
liberty or property rights. A state may confer rights upon individuals living in it as it sees fit. It
cannot, however, confer rights as a U.S. citizen by virtue of state law. The fact that in Illinois Scott
could not be a slave does not alter the fact that Illinois ability to make Scott a free man extends no
further than its borders and does not confer upon Scott rights and privileges of U.S. citizenship.
Therefore, Scott was not a citizen of a state in U.S. constitutional sense, and therefore the SCt had no
jurisdiction over the case.

528.

SCt went on (in dicta?) to hold that the Missouri Compromise of 1820,
which barred slavery from any territory north of the 36:30 latitude, violated the due process clause of
the 5th Amendment.

(1) Note that if Bill of Rights were applicable to all states at the time, then Dred Scott would apply
everywhere. However, since Bill of Rights did not apply to the states, Dred Scott did not apply in
free states like Massachusetts.

Dissent - Curtis. Disputed Taneys account of the framers intent. Curtis argued that at the time the USC was
ratified, a number of Northern states had black citizens, who voted on ratification. It would be strange, if we
were to find in that instrument anything which deprived of their citizenship any part of the people of the United
States who were among those by whom it was established.

Historical Context by Koppelman. SCt here was attempting to solve the most divisive political issue of the day:
whether individual territories should be permitted to abolish slavery.
529.
SCts intervention here was not necessarily countermajoritarian.
President James Buchanans 1857 inaugural address described slavery in the territories as a judicial
question, which legitimately belongs to the SCt of the United States. Nothing would have made
Buchanan unhappier than a SCt holding that slavery was a question for the political branches.
530.
divisive issues?

Is it ever/never appropriate for the SCt to attempt to resolve such

531.

Dred Scott is of continuing doctrinal relevance. One could argue that it

is the negative twin of modern equal protection doctrine, defining the normative propositions that are
now to be expelled from political decisionmaking: specifically, that blacks, and perhaps other classes
as well, are beings of an inferior order, who have no rights which [other citizens are] bound to
respect.
RECONSTRUCTION

AND RETREAT

Strauder v. West Virginia Invalidated law barring blacks from juries

97

Strong 1879. Invalidated Virginias law barring blacks from juries. Facts. A state statute provided that all
white male persons who are twenty-one years of age who are citizens of this State shall be eligible to serve as
jurors. P, a black, is convicted of murder by a jury from which all blacks have been removed pursuant to this
statute.

Holding. Act on its fact discriminates against blacks, and therefore violates the Equal Protection Clause.

Note. Where a law is found to discriminate on its face, the SCt will not require that it be shown to have had
an actual discriminatory impact in the case at hand. Thus, in Strauder, P was not required to show that he
would not have been convicted by a jury containing blacks, or even to show that some blacks would have been
seated on the jury had the statute not been in force. The mere risk of discriminatory impact was sufficient,
given the facial discrimination.

Koppelman

532.

Strongs opinion, despite its (racist?) description of the freed slaves as

mere children, is the highwater mark of judicial protection of blacks after the Civil War.

533.

Note how limited the pool of potential jurors may be, according to
Strong. There is, for example, no problem with excluding women. Then again, there is some textual
warranty for this sex discrimination (the 14 th amendment itself specifically countenances the exclusion
of women from voting.)

534.

To what extent does the SCts conclusion here flow from the text of the

14th Amendment?

(1) Why does Strauder have standing to challenge the exclusion of blacks from his jury how was he
harmed by being tried by an all-white jury?

(2) Can one denounce racial classifications because they rest on irrelevant or nonexistent distinctions
and simultaneously assert that outcomes would be different if the perspectives of the excluded
group were recognized? (Brest and Levinson)
535.
weight:

There is ambiguity in SCts opinion as to which argument carries more

(1) Opposition to ideology of black inferiority endorsed by Dred Scott;

(2) Opposition to unfriendly legislation derived from McCullochs notion that Congress intent by
legislation must be in accord with constitutional norms. (AK:
legislation is unfriendly to blacks?)

how does SCt tell whether

536.
How important is the SCts conclusion that the freed slaves were
abject and ignorant? If that conclusion were wrong, would the case come out differently?
Plessy v. Ferguson Separate but equal Railroad cars

98

Brown 1896. Established separate but equal doctrine.

Initially, SCts view was that separate but equal treatment did not violate equal protection. SCt upheld a
Louisiana law requiring segregation of railroad passenger cars; a law calling for separate-but-equal
accommodations for white and black railroad passengers.

Rationale. Majority reasoned that laws such as this one related only to social equality, not to political or civil
equality. Brown concluded that the 14th Amendment mandates political, not social, equality. The object of
the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the
nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as
distinguished from political equality. SCt held that social equality was not a goal of the Equal Protection
Clause, and could be attained only through voluntary action by individuals, not by statutes.
537.
Not badge of inferiority. Moreover, the law itself did not stamp . . .
the colored race with a badge of inferiority. If African Americans felt inferior under the law, it is not
by reason of anything found in the act, but solely because the colored race chooses to put that
construction upon it.

Dissent - Harlan.
538.
The distinction between social and political equality, and the exclusion
of the former from antidiscrimination concerns, is taken for granted by the sole dissenter as well:
Every true man has pride of race, and under appropriate circumstances when the rights of others, his
equals before the law, are not to be affected, it is his privilege to express such pride and to take such
action based upon it as to him seems proper.

539.

However, the first Justice Harlan argued that the law here did indeed
violate equal protection. Although it appeared facially neutral, every one knows that it had its origin
in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to
exclude colored people from coaches occupied by or assigned to white persons. The statute therefore
interfered with the personal freedom of African Americans.

540.

Harlans dissent has become a canonical source of contemporary

antidiscrimination doctrine, though the overt racism of his discussion of the Chinese suggests that this
source ought to be relied on with caution. He looks both to formal equality and to the political reality
that these statutes were enacted to oppress blacks, leaving some doubt as to the fundamental
constitutional ground for his dissent.

541.

Is Harlans essential claim that

(1) Our USC is color-blind, so that the government is centrally prohibited from classifying on the
basis of race, or

(2) is it his claim that There is no caste here, so that the problem is the underlying political reality.
(3) These two different readings may have very different implications for, for example, affirmative
action. Some have argued that Harlan meant his color-blind remark to include benign or
reverse discrimination based on race.

How does the majority distinguish Strauder?

542.

On the one hand, we can argue that Plessy was rightly decided because
the 14th Amendment protects political, not social, equality. In accordance with the Locher method of
evaluating laws, the law at issue in Plessy was constitutionally valid because it did not deny anyone the
right to use, control, or dispose of his property. The law requiring segregated railroad cars imposed a
badge of inferiority on blacks only to the extent that blacks believed this to be the case; thus, the law
did not violate Strouder.

99

543.

On the other hand, it is more sensible to conclude that Plessy was

wrongly decided because the law was clearly intended to discriminate against blacks; it legally
codified society's hostility toward blacks. This violates Strouder's notion that blacks are exempt from
unfriendly legislation against them distinctively as colored -- exemptions from legal discriminations,
implying inferiority in civil society . . ." By legally permitting social inequality, the Plessy court
inevitably permits legal inequality as well.
February 29, 2000
EQUAL

PROTECTION METHODOLOGY

STRICT SCRUTINY

Korematsu v. United States (Black 1944) Japanese WWII interment

Held that the interment of Japanese-Americans was justified by military necessity. This case was the first to set
forth the strict scrutiny standard for laws that discriminate on the basis of race.

Background. This was the last case in which a racial or ethnic classification survived strict scrutiny. Ironically,
this was the first case in which race was explicitly referred to as a suspect criterion.

Facts. This case involved a post-Pearl Harbor military order excluding all persons of Japanese ancestry from
certain areas of the West Coast, and resulting in their effective imprisonment. The order was applied against
citizens as well as non-citizens.

Holding. SCt upheld the order, despite its suspect nature. It did so on the theory that there was a compelling
need to prevent espionage and sabotage, and that there was no practical and sufficiently rapid way for the
military to distinguish the loyal from the disloyal.

Concurring Frankfurter. Actions may be legal when they occur during war time even though they would be
illegal during peace. A distinction needs to be made, but the USC must allow for the military to act like a
military. To recognize that military orders are reasonably expedient military precautions in time of war and
yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subleties not
reasonably to be attributed to the hard-headed Framers, of whom a majority had actual participation in war.

Koppelman. The SCt did not seem to scrutinize the classification very strictly here. It accepted the assertion of
military necessity without many questions. Should it have done more? Jacksons dissent suggests that the SCt
could never be competent to evaluate such a claim. If he is correct, when would strict scrutiny be appropriate?
Korematsu should be an easy case It HAS to be unconstitutional!! Jacksons dissent is the best answer out of
a batch of bad choices.

Dissent:

544.

Murphy. Argued that the majoritys view relied on the assumption

that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and
espionage. Murphy argued the regulation here was obviously racist, and therefore that it is just as
obviously constitutional. He contended that individualized loyalty hearings, at least for those persons
who were American citizens, could have been held.

545.

Jackson.

(a) Observed that no attempt was made anywhere in the U.S. to exclude German or Italian aliens (thus
suggesting that the order was based at least in part on racial prejudice, though Jackson did not
explicitly so charge).

(b) Said, let the military be the military. He would not uphold the order even if it is justified by
military necessity. If Jackson is right that the judiciary should not worry about military necessity,
then is the SCts decision a good reason for the military to obey its order?

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OVERVIEW

OF EQUAL PROTECTION DOCTRINE

Equal protection clause of 14 th Amendment states that no State shall deny to any person within its jurisdiction
the equal protection of the laws.

SCt has interpreted this provision as prohibiting arbitrary discrimination, or treating similar things dissimilarly.

Minimal Scrutiny Test. Without more, this produces a very deferential standard of judicial review. The
general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the
statute is rationally related to a legitimate state interest. (City of Cleburne v. Cleburne Living Center 1985)

Strict Scrutiny Test: Because this stress on mere rationality threatens to transform the clause into a minor
protection against legislative carelessness (and according to Robert Nagel, perhaps not even against that, since
any statutes terms suggest a purpose that the statute rationally serves), the clause has been given teeth in cases
where the challenged classification is based on race:

546.

All legal restrictions which challenge the civil rights of a single racial
group are immediately suspect. (Korematsu v. United States, 1944)

547.

When legislation employs such classifications, these laws are

subjected to strict scrutiny and will be sustained only if they are suitably tailored to serve a compelling
state interest. (City of Cleburne v. Cleburne Living Center, 1985)
548.
This higher level of scrutiny has been justified with the explanation that
race is so seldom relevant to the achievement of any legitimate interest that laws grounded in such
considerations are deemed to reflect prejudice and antipathy a view that those in the burdened class
are not as worthy and deserving as others.
549.
Almost no legislation has been able to satisfy this test, whereas almost
any legislation can meet the minimal scrutiny which asks whether the statute is rationally related to a
legitimate state interest.

Quasi-suspect standard. In the 1970s, SCt devised a third, intermediate level of scrutiny: classifications based
on sex (Craig v. Boren, 1976) or illegitimacy (Mathews v. Lucas, 1976) are what has been infelicitously called
quasi-suspect; they will survive equal protection scrutiny to the extent they are substantially related to a
legitimate state interest. (Mills v. Habluetzel, 1982).
550.
SCt has not, however, explained how it is determined whether a given
type of classification is suspect or quasi-suspect.
551.
Moreover, it has been noted that the insistence on close fit between
means and end, varying in strictness with the level of scrutiny, has only an indirect relation to the evils
of racial oppression against which the clause was originally enacted.

Disproportionate impact. As for cases in which a law does not overtly employ a suspect classification, but
disproportionately harms blacks, SCt has said that there is no constitutional violation unless the legislators were
motivated by discriminatory intent. (Washington v. Davis, 1976)

Historical development of equal protection doctrine.

552.

The prevailing understanding of equal protection builds on the famous

Carolene Products footnote four, which declared that prejudice against discrete and insular minorities
may be a special condition, which tends seriously to curtail the operation of those political processes
ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more
searching judicial inquiry.
553.
SCt eventually developed this suggestion into doctrine: all legal
restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to
say that all such restrictions are unconstitutional. It is only to say that courts must subject them to

101

more rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions;
racial antagonism never can.

554.

Settled doctrine today: the invidious quality of a law claimed to be

racially discriminatory must ultimately be traced to a racially discriminatory purpose. (Washington v.
Davis, 1976).

(a) This view draws its power from the fact that the idea of equality does not entail that any specific,
substantive right should be guaranteed.

(b) As John Hart Ely, the leading scholarly exponent of the theory that the 14 th Amendment is
concerned primarily with prejudice infecting the legislative process, puts it: unconstitutionality
in the distribution of benefits that are not themselves constitutionally required can intelligibly
inhere only the way that distribution was arrived at.

Intent, then, obviously plays an important role in at least one part of the SCts equal protection doctrine the
part that deals with suspect classifications. [For a long time, confusion has reigned as to whether motive
mattered at all in determinations of the constitutionality of law. SCt has often stated that legislative motive is
not subject to judicial review, but it has also handed down many important decisions that can be explained only
in terms of motive. Washington v. Davis may have ended this confusion, at least to the extent of declaring
conclusively that motivation is relevant.]

Ely has argued, moreover, that even the formalistic, levels-of-scrutiny approach that applies to suspect or quasisuspect classifications is best understood as a handmaiden of motivation analysis: Racial classifications that
disadvantage minorities are suspect because we suspect that they are the product of racially prejudiced
thinking of a sort we understand the 14 th Amendment to have been centrally concerned with eradicating. Even
if a challenger cannot prove the discriminatory intent behind a statute, a classification that in fact was
unconstitutionally motivated will nonetheless thanks to the indirect pressure exerted by the suspectclassification doctrine find itself in serious constitutional difficulty. For an unconstitutional goal obviously
cannot be invoked in a statutes defense. That means, where the real goal was unconstitutional, that the goal
that fits the classification best will not be invocable in its defense, and the classification will have to be
defended in terms of others to which it relates more tenuously. The special scrutiny that is afforded suspect
classifications insists that the classification in issue fit the goal invoked in its defense more closely than any
alternative classification would. There is only one goal the classification is likely to fit that closely, however,
and that is the goal the legislators actually had in mind. If that goal cannot be invoked because it is
unconstitutional, the classification will fall. Thus, functionally, special scrutiny, in particular its demand for an
essentially perfect fit, turns out to be a way of flushing out unconstitutional motivation, one that lacks the
proof problems of a more direct inquiry and into the bargain permits courts (and complaints) to be more politic,
to invalidate (or attack) something for illicit motivation without having to come right out and say thats what
theyre doing.

Koppelman. Is this a sensible way to proceed? Is inappropriate classification the central wrong that the 14 th
Amendment ought to be concerned with?

THE

ATTACK ON JIM

CROW

Brown v. Board of Education of Topeka (Brown I) School desegregation

102

Warren 1954. SCt explicitly rejected the separate but equal doctrine, at least insofar as public education was
concerned.

Holding. SCt held that (1) public education is so important today that it must be provided on equal terms, (2)
racially segregated education is per se not equal because black children get worse educations in segregated
schools, and therefore (3) segregated schools are unconstitutional.

Rationale. SCt reasoned that even where all-black and all-white schools were equal in terms of tangible
factors, intangible factors necessarily prevented children who were restricted to all-black schools from receiving
equal educational opportunities. In particular, racial segregation generates [in African American students] a
feeling of inferiority as to their status in the community that my affect their hearts and minds in a way unlikely
ever to be undone. Separate educational facilities are inherently unequal. [SCt reasoned this way because it
did not want to impugn the motives of southern state legislatures.]
555.

Expert Opinion:

(a) What does footnote 11 imply about the basis of the decision?
(b) In reaching this conclusion, SCt relied on findings of psychologists and educators who had
concluded from their research that segregation gave African American pupils a sense of inferiority,
which in turn impaired their motivation to learn and their success at learning.

(c) If the sociological evidence now pointed in a different way, would the constitutional result
change? SCts empirical claim was very contested; weakest component of SCts argument.

556.

Fourteenth Amendments history irrelevant. One factor upon which the

Brown court did not particularly rely was the legislative history of the 14 th Amendment itself. SCt
noted that, at the time that the Amendment was adopted, blacks in the South were not educated at all,
and even in the North there was no compulsory public education system for whites, let alone blacks.
Therefore, nothing in the legislative history of the Amendment gave the SCt any real clue about what
Congress intended with respect to school segregation. Instead, the SCt decided to focus on public
education as it stood in 1954, not as it stood when the Amendment was adopted in 1868.

Koppelman. This case is arguably at the center of the modern constitutional law canon.

557.

Cass Sunstein has claimed that an approach to constitutional

interpretation is unacceptable if it entails the incorrectness of Brown v. Board of Education.

558.

Does Warrens opinion identify the aspect of the case that gives it its
enduring power? Would it have been better if the SCt had been as intellectually honest as Charles
Black was in defense of that decision?

559.

What does Professor Black think that the 14 th Amendment prohibits?

[What (if anything) does his argument imply about judicial protection of groups other than blacks? ]

(a) True reasoning of Brown: 14th Amendments neutral principle is that blacks cannot be
discriminated against or disadvantaged. There is something deeply unconstitutional about a
system of racial hierarchy/segregation that extends beyond the schools.

(b) It is obvious that segregation was intended to disadvantage blacks.

(c) Browns sociological reasoning was not as effective an argument; completely misses the point. By
writing an education-specific opinion, SCt missed areas that are equally applicable; point was that
segregation per se was contrary to 14th Amendment.
Bolling v. Sharpe - 14th Amendment equal protection federal via 5th Amendment

103

1954. SCt unanimously held school segregation in D.C. unconstitutional.

Applied similar reasoning of Brown regarding 14th Amendment to the federal government, and seemed to
incorporate the 14th Amendments equal protection clause into the 5th Amendment.

According to Guido Calabresi, this case, not Korematsu, is the decision that caused Justice Black the deepest
pangs of conscience at the end of his life.

Borks critique of Bolling:

560.
If SCt were guided by USC, it would have had to rule that it had no
power to strike down D.C.s laws.

561.

Instead, it seized upon due process clause of 5th Amendment, which

does apply to federal government, and announced that this due process clause included the same equal
protection of the laws concept as the equal protection clause of the 14th Amendment.

562.

This reasoning rested on no precedent or history. In fact, history

compels the opposite conclusion. Framers of 14 th Amendment adopted due process clause of 5th
Amendment but though tit necessary to add the equal protection clause, obviously understanding that
due process, the requirement of fair procedures, did not include the requirement of equal protection in
the substance of state laws.

563.

Thus, Bolling was a clear rewriting of USC by Warren Court. Bolling

was a substantive due process decision in same vein as Dred Scott and Lochner.

(1) Only justification offered in opinion was that it would be unthinkable that the states should be
forbidden to segregate and the federal government allowed to.

(2) This was indeed unthinkable as matters of morality and politics. Most certainly, Congress would
not and could not have permitted that ugly anomaly to persist, and would have had to repeal
D.C.s segregation statutes. But there is no way to justify Warren Courts revision of USC to
accomplish its reforms.

Koppelmans critique of Bork.

564.

Bork anachronistically uses framers intent of 14th amendment as guide

to interpreting 5 amendment (an objection that can be made against Bolling).
th

565.

Bork offers no evidence to support his speculation that Congress

would have had to repeal D.C.s segregation statutes. In fact, after Brown, Senate came within one
vote of stripping SCt of jurisdiction over segregation cases.

566.

Nonetheless, Borks basic point is sound. It is hard to justify Bolling

on any basis other than substantive due process. Does this mean (as Bork claims) that the case is
wrongly decided? Is SCts holding defensible? On what basis?
Brown II

Warren 1955. Background. SCt in Brown I, by pronouncing official segregation to be a violation of equal
protection, did not by that pronouncement alone do much to modify the actual educational patterns of Kansas or
any other state. It has only been by a long series of implementation decisions that a significant reduction in
school segregation has come about.

The first of these implementation decisions was a continuation of Brown itself. In Brown II, SCt did several
significant things:
567.
Lower federal courts. It gave the federal district courts primary
responsibility for supervising desegregation because of their proximity to local conditions and the
possible need for further hearings.

104

568.
Equitable principles. The SCt gave no precise guidelines for carrying
out desegregation. Instead, it directed the district courts to use general equitable principles.

569.

All deliberate speed:

(1) A plaintiff whose constitutional rights have been violated by state action would normally be
entitled to immediate relief. But, apparently because it feared the chaos and violence that might
develop if attempts were made to carry out desegregation instantly, SCt authorized the district
courts to take into account the public interest in eliminating desegregation in a systematic and
effective manner.

(2) SCt held that school desegregation should proceed, not immediately, but with all deliberate
speed, in order to enable authorities to cope with complexities arising from the transition to a
system of public education freed from racial discrimination. Among the factors the SCt deemed
relevant was the physical condition of the school plant. However, the burden of proving any
need for delay was placed upon the school boards.

(3) Critique of SCts with all deliberate speed holding:

i. Richard Wasserstrom argues this holding was a fantastic nonsense. There was nothing so
complicated about the dual school systems of the southern states that they could not have been
desegregated immediately: it would have been easy enough to order that each student attend
the nearest school. He concluded the SCt may unconsciously have been influenced by the
fact that the black schools throughout the South were utterly wretched when compared to the
white schools. SCt was simply unwilling to order white children to go to those schools.
SCts solution assumed that the correct way to deal with this problem was to have black
children go to their schools until the black schools were brought up to par or eliminated.

ii. If Wasserstrom is right, what does that imply about the judiciarys supposed role as neutral
umpire of the political process, policing that process for invidious racist influence?

Casebook notes make clear that Brown accomplished little until Congress and Presidency decided to put their
own weight behind school desegregation.

570.

What does this suggest about the efficacy of judicial review?

571.

There is lively debate among proponents of racial equality about

whether Brown did more good than harm.
FACIALLY

NEUTRAL LAWS THAT DISADVANTAGE MINORITIES

Washington v. Davis

White 1976. Significance.

572.
Held that a facially neutral law with a racially discriminatory impact is
not unconstitutional unless it was enacted with a racially discriminatory purpose.

573.

This finally resolved what was left ambiguous in Strauder: the core
wrong that the equal protection clause prohibits is discriminatory purpose.
574.
Upshot of present doctrine is that discriminatory impact alone cannot
violate equal protection clause, but (see the cases cited above) it may violate dormant commerce
clause. Do these rules, taken together, make sense? Why should impact matter more in commerce
context than in context of race?

105

Facts. This case involved a suit brought by a unsuccessful black applicants for positions as Washington, D.C.
policemen. They had failed a written test of verbal ability and reading comprehension, which blacks failed for
times as frequently as whites. Ps claimed that this differential impact made the hiring process violative of equal
protection even though those who composed or selected the test had no intent to discriminate against blacks.
(Ps also produced evidence suggesting that performance on the test did not necessarily correlate with job
performance.)

Holding. SCt held that racial discrimination violative of the Equal Protection Clause exists only where it is a
product of a discriminatory purpose. While a showing of disproportionate racial impact is certainly one factor
in ascertaining intent, it can never by itself be sufficient to prove discriminatory intent. Here, other facts,
including the D.C. Police Departments affirmative efforts to recruit more black policemen, negated any finding
of a discriminatory purpose in the use of the test (which was used throughout the Federal Civil Service).

575.

Comparison to Title VII. SCt conceded that under Title VII of 1964
Civil Rights Act, a hiring practice which disqualifies a substantially disproportionate number of blacks
will be stricken, even without a showing of discriminatory intent. But SCt declined to establish a nointent standard where the source of the discrimination claim was simply the Equal Protection Clause,
as distinguished from a specifically-worded congressional statute.
576.
Rationale. SCt was especially concerned that absence of an intent
requirement might invalidate a whole range of tax, welfare, public service, regulatory, and licensing
statutes that may be more burdensome to the poor and to the average black than to the more affluent
white. In a footnote, the SCt listed numerous statutory schemes that might be open to attack under
such a standard, including such items as sales taxes, bridge tolls, minimum wage laws and professional
licensing requirements.

Koppelman
577.
SCts decision was heavily driven by concerns about the institutional
limitations of the judiciary. (this notion expressed directly above)
578.
Do these concerns justify the conclusion that, absent discriminatory
intent, there can be no constitutional violation whatsoever?

i. Consider Sagers view (56) that USC is judicially under enforced.

ii. It is arguable that institutional concerns cut against the doctrine that the SCt adopted: Karst
argued that because judges are reluctant to impugn motives of other officials, such doctrine will
inevitably tend to validate official decisions. [further reasoning in footnote]

iii. Koppelman: because SCts approach promises only that decision makers will act with pure
hearts, it implies that the only harm that the USC recognizes is the harm caused to the souls of
white people when they commit sin of racism.

iv. Alan Freeman (CLS critic of anti discrimination law)

(1) Castigated SCt for devising a doctrine of anti discrimination law on basis of the perpetrator
perspective, from which racial discrimination appears to be merely the misguided conduct
of particular actors in a world where, but for the conduct of these misguided ones, the
system of equality of opportunity would work to provide a distribution of the good things in
life without racial disparities and where deprivations that did correlate with race would be
deserved by those deprived on grounds of insufficient merit.

(2) By requiring that any civil rights claimant show that he is the individual victim of intentional
discrimination, the perpetrator perspective allows the SCt to say that Black Americans can be
without jobs, have their children in all-black, poorly funded schools, have no opportunities for
decent housing, and have very little political power, without any violation of anti
discrimination law.

106

(3) Instead, anti discrimination law should be based upon the victim perspective, which would
ask in each case whether the particular conditions complained of, viewed in their social and
historical context, are a manifestation of racial oppression. Rather than searching for a guilty
perpetrator, such perspective would entail a demand for results. From victim perspective,
the problem will not be solved until the conditions associated with it have been eliminated.
To remedy the condition of racial discrimination would demand affirmative efforts to change
the condition.

(4) Is this a judicially-manageable view of 14th Amendment? How would one know when
amendment was violated?
Privileges or immunities 14th Amendment

Text. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of
U.S.

The Slaughter-House Cases New Orleans slaughtering monopoly

Miller 1873. Held that a law granting a slaughtering monopoly in New Orleans did not violate the Privileges
and Immunities of other butchers whose business was harmed by the law.

Ps argument:

579.

PIC of Article IV, 2, which protects out-of-staters, protects the right to

pursue a calling;

580.

PIC of 14th Amendment extends the reach of the corresponding Article

IV clause by applying it to state actions directed at a states own citizens; and therefore
581.
the law is unconstitutional, because the affected butchers are citizens of
the U.S., and their right to pursue a calling has been abridged by the law.

SCt rejected this argument because

582.

first sentence of 14th Amendment distinguishes between state and

federal citizenship;

583.

PIC applies only to the privileges derived from federal citizenship;

584.
therefore

the right to pursue a calling is not derived from federal citizenship; and

585.

the law is constitutional.

Analysis.

586.

Millers reading of the provisions renders PIC of 14th Amendment a

nullity, because none of the privileges he places within the clauses protection could have been
abridged before the clause was enacted.

587.

Miller nonetheless insisted on his interpretation because a contrary

reading, which would empower the federal courts to protect individuals from their own state
governments, radically changes the whole theory of the relations of the State and Federal
governments to each other and of both these governments to the people.

107

SLAUGHETER-HOUSE

REMAINS GOOD LAW

Although its reasoning is widely criticized, Slaughter-House is still good law.

Part of the reason may be that modern judges are less confident than Field and Bradley were that they can
determine which rights are fundamental, and so they shy away from the broad and vague power that PIC seems
to confer.

On the other hand, because of the strengthening of the other provisions of the 14 th Amendment, the parade of
horribles that Miller sets forth (797) pretty accurately describes the regime we now inhabit:

588.

Any state law may be subject to constitutional challenge, and Congress

can pass laws limiting states legislative power when it reasonably decides that this is necessary to
enforce 14th Amendment rights (Katzenbach v. Morgan).

589.

SCt now routinely engages in what John Marshall dismissed as the

extraordinary occupation of affording the people additional protection from the exercise of power by
their own governments. (Barron v. Baltimore)

Specific result of Slaughter-House was reversed de facto during the Lochner era, when SCt protected economic
liberty via the due process clause.

590.

This made possible a textual defense of Lochner.

591.

Even if substantive due process really is an oxymoron, it is still

arguable that these decisions are justified, because they would have been appropriate under PIC.
Incorporation

Incorporation controversy involves lengthy debate over whether the bill of rights is applicable to the states.

Present law holds that only certain provisions apply to the states, but SCt has now incorporated almost all of the
bill of rights into the 14th Amendment.

Note the importance of fear of judicial discretion in this debate. Black-Frankfurter debate:

592.

Black and Frankfurter (both FDR appointees) agree that such discretion
must be limited, but they disagree on how the thing is to be accomplished.

593.

Black wanted total incorporation because it allows for so little

discretion.

594.

Frankfurter thought that it was possible rationally to decide which

rights were incorporable.

108

BARRON V. MAYOR & CITY COUNCIL

OF

BALTIMORE

Marshall 1833. Not applicable to the states. SCt held that, although the word Congress only appears at the
beginning of the First Amendment, the entire Bill of Rights were not directly binding upon state governments.
The Bill or Rights applies only to the federal, and not to state, action.

Reasoning. Marshall supported his argument by reference to text, history, structure, and consensus. Marshall
reasoned that had the framers of the Bill of Rights Amendments intended them to be limitations on the powers
of state governments, they would have expressed that intention in plain and intelligible language. This
conclusion has generally been accepted as being historically justified.

MURRAY V. HOBOKEN LAND & IMPROVEMENT CO.

Curtis 1856. Construing the due process clause of the 5 th Amendment, this case held that the meaning of due
process must be ascertained by reference to those settled usages and modes of proceeding existing in the
common and statute law of England.

On this reading, the ambiguous textual provision incorporates by reference certain traditions of fairness, and
guarantees that those traditions will not be violated.

TWINING V. NEW JERSEY

1908. Pointed to a less historical approach to the fundamental-liberties question, asking whether the asserted
right inheres in the very idea of free government.

Here, the source of the SCts reasoning appears to be political philosophy rather than history: the great first
principles in the social compact invoked by Justice Chase over a century earlier in Calder v. Bull.

PALKO V. CONNECTICUT DOUBLE

JEOPARDY

Cardozo 1937. Continued the philosophical approach of Twinning, asking whether the asserted right is of the
very essence of a scheme of ordered liberty, so that there could not be a fair and enlightened system of justice
without it.

However, he also gestured toward history by mentioning the tradition and conscience of our people as to be
ranked fundamental.

Cardozo expressly adopted the idea of a hierarchy of rights, with only the most highly valued rights being
enforceable by the federal courts.

The right at issue in Palko, the ban on double jeopardy, was found not to be sufficiently fundamental (at least in
the way the ban was violated here, by permitting the state to appeal from an acquittal in a criminal case and then
to retry the D.)

ADAMSON V. CALIFORNIA BLACK

DISSENT

- TOTAL

INCORPORATION

1947. Total incorporation view. This case was notable mainly for Blacks dissent, in which he set forth the
case for total incorporation. Namely, that all of the guarantees specified in the Bill of Rights are made
applicable to the states by the 14th Amendments Due Process Clause. He did not want SCt to have the power to
pick and choose which rights are more fundamental.

Frankfurter invoked the historical modality, which turned on those canons of decency and fairness which
express the notions of justice of English-speaking peoples.

DUNCAN V. LOUISIANA

109

White 1968. Held that the Sixth Amendment right to a jury trial applies to the states. It moved away from the
political philosophy approach, which investigated imaginary and theoretical schemes, and asked instead
whether . . . a procedure is necessary to an Anglo-American regime of ordered liberty.

Perhaps one can imagine a fair system of justice without jury trials, White argued, but American criminal
processes have developed in connection with and in reliance upon jury trials.

Duncan formulation seems to be neither historical nor philosophical, but a hybrid. It asks whether, given the
system we have inherited, liberty is possible unless citizens have the asserted right.

Contracts clause - Protecting economic liberties - Textual

FLETCHER V. PECK CORRUPT

LAND SALE CONTRACT NOT VOIDABLE BY

STATE

Marshall 1810. Holding. Held that a state cannot abrogate its own contracts, even if the contracts were the
product of corruption.

It thus did exactly what Brennan worried about in United States Trust v. New Jersey: although the voters threw
the rascals out, those same rascals might perpetuate their policies simply by locking them into binding
contracts. (1640)

Historical background. This was one of the most important decisions of the Marshall Court, and it had an
interesting history. Bribery that led to land sale was open and notorious. One legislator went so far as to
respond to criticism that he was selling his vote for $600 when his colleagues were getting $1,000 by saying
that it showed he was easily satisfied and was not greedy. When one of the sale bills was passed, only one of
the legislators voting for it had not been bribed. On the other hand, since the land was clouded by claims from
Spain, the federal government, and Indian tribes, it is not clear that the land was worth more than the
speculators paid for it. It is unclear as to whether the purchasers (as Marshall assumes) had no notice of the
fraud; it is clear that the suit was collusive in that both parties shared a common interest in having the land title
upheld.

Reasoning.

595.

Marshalls opinion relied on the Contracts Clause, but it also implied

that the law would be unconstitutional even without this express prohibition.
596.
Johnsons constitutional transcendentalism went even further: he
disclaimed any reliance on the text, instead invoking principles that will impose laws even on the
Deity.
597.
property from its owners.

Both argued that the social contract prevented government from seizing

Significance. This was arguably the most important case in 19th century Constitutional Law (C. Peter McGrath).

598.

Until near the end of the 19th century the contract clause was the major
constitutional limitation on state legislatures in a period when the states were the source of most laws
regulating business interests.

599.

Between 1810 (year of Fletcher v. Peck and 1889 the contract clause
was invoked in almost 40% of all cases challenging the validity of state legislation. In 75 decisions,
nearly of the total number voiding state laws, it was the justification for declaring the legislation
unconstitutional.

600.

Constitutionally, the 19th century was the century of the contract clause.

110

OGDEN V. SAUNDERS STATE

BANKRUPTCY LAW VALID PROSPECTIVELY

1827. Held that states are able to prescribe terms for contracts not yet in existence at the time legislation is
enacted.

Majority held that the contracts clause only prohibits states from modifying contracts already in existence at the
time of legislation. States remain free to prescribe rules that limit the ability to enter into certain contracts in the
future.

Thus, a bankruptcy law (which establishes procedures for releasing an insolvent person from contractual
obligations) may not retroactively diminish the obligation of contracts that were already in existence when the
law was passed, but such a law could restrict the obligation of contracts made in the future.

Marshalls only constitutional law dissent unsuccessfully attempted to establish the Lochner principle a century
early.

Calder v. Bull Ex post facto - Historical Modality Criminal only

1798. Prohibition on ex post facto laws (Article I, 10) applies only to criminal laws. First case where
historical source is relied on to make constitutional argument.

This decision was a seriatim opinion, of kind that Marshall eventually managed to do away with. There was no
majority opinion; each judge wrote for himself. All judges reached same conclusion, but by very different
routes. Common Holding: USC prohibits ex post facto laws, which in context of USC includes only criminal
laws.

Chase

601.

Originalist/Historical Argument At time of adoption of USC, ex post

facto was conventionally understood not by literal meaning, but rather by Blackstones definition.

602.

Ethical Argument (General Principles of Law and Reason ):

Legislatures are limited, not only by the constitutional text, but also by the very nature of free
republican governments.

(a) Law in question did not directly take property from A and give it to B. Moreover, historically,
legislatures functioned as legislative, executive, and judicial branches.

(b) Thus, since CTs law here does not violate principle of free republican government law should
not be invalidated.

Iridell. Disagreed with Chase, not because such philosophical views were mistaken, but because they invited
too broad a field for judicial discretion: The ideas of natural justice are regulated by no fixed standard: the
ablest and the purest men have differed on the subject. No one can agree what principles of natural justice are
courts should not impose their views on legislatures.

Significance of debate.
603.
This debate shows how questions of what (courts should say that) the
constitution is are intertwined with questions of how the constitution is to be interpreted and who the
interpreter is to be.

604.

Political theory is part of Chases constitution, but not Iredells, and

institutional concerns about who gets to make decisions undergird Iredells decision to read political
theory out of the document. Iridell highlights countermajoritarian problem of JR.

605.

Arguably, Iredell misinterpreted Chase slightly.

(a) Natural justice, a transcendent standard that applies to all forms of government, isnt exactly the
same thing as the vital principles in our free republican governments.

111

(b) The latter is a local phenomenon, having to do with the kind of government that we have around
here. This debate thus anticipates the traditions vs. political theory debate in the discussions of
selective incorporation (806-811).

Historical modality. Several judges thought that the language, taken literally, supported petitioners claim, but
they concluded that original intent overrode the literal text. Thus Blackstone and other British sources relied
upon by the framers ended up being treated as if they were part of USC.

HOME BUILDING

AND

LOAN ASSN. V. BLAISDELL

Hughes 1934. Facts. This case involved an emergency modification of debtors obligations. A Minnesota
statute, enacted at the height of the Depression, postponed mortgage foreclosures and extended periods of
redemption. The statute permitted courts to give extensions from mortgage foreclosure sales, if the mortgagor
paid all or a reasonable part of the propertys fair income or rental value. The measure was intended to apply
to mortgages issued prior to the date of the law (e.g. the statute was retroactive).

Holding. SCt upheld the law; although what Minnesota had done appeared to be a paradigm violation of the
Contracts Clause, SCt refused to invalidate the law.
606.
Right to protect public interest. SCt upheld statute on the theory that
the state had at least the right to temporarily delay enforcement of a mortgages literal terms, where
vital public interests would otherwise suffer. In view of the enormous economic emergency which
gave rise to the statute, the modification was a limited and reasonable one. SCt stressed that principal
remained due, interest continued to run, the right of foreclosure would ultimately be restored, and the
statute would (SCt assumed) be rescinded once the economic emergency was over.

607.

Implied power to modify. In justifying this limited right to modify

contracts in order to protect the public interest, the Blaisdell Court noted that the reservation of
essential attributes of sovereign power is read int contracts as a postulate of the legal order.

Relevance of New Deal, Cardozos unpublished opinion:

608.

Here, as was the case in Commerce Clause cases, we see the

transformative effect of the New Deal on constitutional law. It is hard to imagine this statute being
upheld even ten years earlier. The most unprecedented depression that the country faced almost
certainly played a large role in the SCts decisionmaking.

609.

This was less clear in the published opinions than in Cardozos

concurrence, which he ultimately chose not to publish. Cardozo argued that in the 19 th Century
Contracts Clause cases, only the rights of individuals seemed to be at stake.

i. In the 19th century, the rights and interests of the state itself were involved, as it seemed, only
indirectly and remotely, if they were thought to be involved at all.

ii. However, in modern times, the welfare of the social organism in any of its parts is bound up more
inseparably than ever with the welfare of the whole. Laissez-faire theory is inadequate for
economic life today.

iii. Statute in question is not designed to further either individual or class interests, but rather the good
of the state by maintaining the economic structure on which the good of all depends. This
attainment of this august and impersonal end will not be barred by obstruction of a contract set
up along the way.

112

MODERN

CONTRACTS CLAUSE LAW AND

AK

ANALYSIS

Later cases indicated that the Contracts Clause is not entirely dead, but that states may abrogate contracts, their
own or others, if they do so for reasons that the SCt is persuaded are good ones (and the SCt has been pretty
deferential toward the states reasons, though not absolutely so).

AK Analysis. Should SCt be doing more with the Contracts Clause than it has been doing?

610.

One argument against the Fletcher rule (providing that states must be
held to their own contracts) is that states can enter into some pretty loony contracts, which they may
later have excellent reasons to want to get out of.

611.

An extreme example is presented by El Paso v. Simmons, where a

Texas contract created a set of claims on land (not the claims of the owners) that could be activated at
any time, apparently until the end of time. Many of the purposes of guaranteeing property and contract
would be thwarted by protecting property and contract here.

113

Substantive due process - Protecting economic interests - Redistribution

Why, in the period from Reconstruction through the New Deal, did the SCt focus so much on freedom of
contract as the central liberty protected by the 14th Amendment?

LOCHNER V. NEW YORK TIME

TO MAKE THE DONUTS

NO

MAXIMUM HOURS FOR BAKERS

Peckham 1905. Facts. This case involved a NY law that limited the hours a bakery employee could work to 10
per day and 60 per week.

Holding. SCt struck down this law as an abridgment of liberty of contract , and therefore a violation of the
Due Process Clause of the 14th Amendment

State offered two defenses of statute. (1) It was a valid labor law. (2) It protected the health and safety of the
workers.

Not valid labor law. SCt quickly rejected the labor law justification for the statute. The police power extended
only to protection of the public welfare. The readjustment of bargaining power between bakery employees
and their employers, the SCt implied, was not of sufficiently public (as opposed to private) concern, especially
in view of the laws infringement of the liberty of contract. (The SCt suggested that if bakers were not as
intelligent as other workers, or for some reason needed unusual protection, the statute might be valid as a labor
law; but the SCt found no reason to believe that bakers as a class needed such special protection.

Not safety or health measure. Nor did the SCt accept the health and safety rationale advanced for the statute.
The SCt did not find bakers to be an especially endangered group (as it had found miners to be in a case a few
years previously). And long working hours did not affect the public health and safety by making the baked
goods less fit to eat. In any event, the SCt indicated, any interest the state had in guarding the wholesomeness
of the baked goods could be satisfied by measures which interfered less with freedom of contract (e.g.
inspecting premises, requiring that washrooms be furnished, etc.)

Legislatures motives suspected. Majority clearly disbelieved that the legislature had in fact acted in part for
safety and health reasons. The laws natural effect was to regulate labor conditions, not to protect anyones
health and safety. SCt thus implied that only the legislatures actual motive, not a hypothetical motive, would
be looked to in evaluating a statute subjected to substantive due process attack.

No deference to legislative fact finding. Another key element of the SCts holding was its refusal to defer to
legislative findings of fact. SCt insisted on reaching its own conclusions on the factual issue of whether the
health and safety of bakers, or of the bread-eating public, needed special protection. For instance, SCt stated
that in our judgment it is not possible in fact to discover the connection between the number of hours a baker
may work in the bakery and the healthful quality of the bread made by the workman.

Dissent

612.

Harlan. Argued that there was enough evidence that the statute would
promote the health and safety of bakers that the legislatures judgment on this issue should have been
accepted.

613.

Holmes. Contended that SCt had no right to impose its own views
about correct economic theory on legislatures. He made one of the most famous remarks in
constitutional law: The 14th Amendment does not enact Mr. Herbert Spencers social statics, a
reference to a then popular social Darwinism/laissez faire theory. Holmes went on to say that a
constitution is not intended to embody a particular economic theory, whether of paternalism and the
organic relation of the citizens of the state or of laissez faire. Liberty, as the term is used in the 14 th
Amendment, should be found to be violated only when a rational and fair man necessarily would
admit that the statute would infringe fundamental principles as they had been understood by the
traditions of our people and our law. By that test, the statute was valid.
AKs lecture on Lochner

114

Liberalism. Idea of fundamental rights that is a recurrent theme in constitutional law is an artifact of liberalism ,
the political philosophy that holds that the purpose of government is not the promotion of religious, moral, or
martial virtue, but rather peace, prosperity, intellectual progress, and personal liberty. This philosophy has
dominated American political thought since DI, which states that the protection of liberty is the purpose of
government.

Evolution of meaning of liberalism. Basic concept, then and now, was that the individual was autonomous
within a certain sphere which government could not violated. But it has been understood differently at different
times.

614.

John Locke. Original, liberal conception of rights. Fundamental right

was that of property, which he understood to mean ones power over ones own person as well as over
the tangible objects that one possessed. The fundamental idea was that a boundary existed between
public and private power. Within the zone of each individuals property, the capacity for rational selfdirection, which Locke regarded as a great virtue, could be developed.

615.

Beginning of U.S. From the beginning, there were judges who

understood property rights to be part of USC. Property rights were very much on Justice Chases mind
when, in Calder v. Bull, he read certain vital principles in our free republican governments, which will
determine and overrule an apparent and flagrant abuse of legislative power. He gave as an example
a law that takes property from A and gives it to B

Modern critique of Lochner.

616.

Black claimed in Ferguson v. Skrupa that Lochner was illegitimate,

judge-made law, and that we have returned to the original constitutional proposition that courts do not
substitute their social and economic beliefs for the judgment of legislative bodies. [not in casebook]

617.

John Hart Ely observed that the Lochner line of cases are now
universally acknowledged to have been constitutionally improper.

618.

How could SCt have gone so far wrong? Is there a charitable reading
of the opinion that can explain how it was persuasive to generations of lawyers? yes! Examine
Civil War Era and beyond.

After Civil War. Defense of property rights really took off in the SCt after the Civil War in the now infamous
Lochner line of cases.

619.

Anti-slavery movement. Relied on a property-centered notion of rights

in its critique of the South. The cherished values on which the Republican party was built were
economic development, social mobility, and political democracy, and all three appeared to be violated
in the South.

620.

North. In the North, it was believed, there was virtually limitless social
mobility. According to Lincoln, The man who labored for another last year, this year labors for
himself, and next year he will hire others to labor for him. In this view, which at the time reflected
economic reality, the government could best promote prosperity by getting out of the way and
respecting peoples rights.

621.

South. Republicans argued that the South was economically backward

because the slaves were deprived of both the education/incentives to improve it. Seward said that
slavery reduced the slave to a brute . . . incompetent to cast a shuttle, to grease or oil a wheel and keep
it in motion, and Lincoln charged that the Southern vision of a laborer was a blind horse upon a
tread-mill. Greeley said Enslave a man and you destroy his ambition, his enterprise, his capacity. In
the constitution of human nature, the desire of bettering ones condition is the mainspring of effort.

115

622.
Virtues of abolition. What abolition promised for blacks was a
fundamental change in the slaves relationship to property: blacks would have the same right to
acquire and sell property and labor that whites had long taken for granted. It was in this context that

i. Justice Field wrote in Slaughter-House dissent that PIC protects right to pursue lawful
employment in a lawful manner, and

ii. Bradley wrote that the right to choose ones calling is an essential part of that liberty which it is
the object of government to protect.

iii. Modern view (14th Amendment does not protect freedom of contract) is reflected only in Millers
opinion, which read PIC out of USC altogether.
Civil War makes Lochner look less crazy

The crazy-Lochner thesis is a strange way of reading law:

623.
A sizable number of the best American lawyers, and for 30 years a
majority of SCt, thought that freedom of contract was protected by USC.
624.
It would be odd to say that generation after generation could be
fundamentally misguided about the most fundamental elements of the law that it is their professional
responsibility to interpret.

625.

The number of contemporary commentators who approved Lochner

was at least equal to number who opposed it.
626.
Generally, whenever you read any argument, its a good idea to begin
with charitable assumption that it makes sense, and that you just havent yet seen the sense that it
makes.

Peckham had a good textual and historical basis for his Lochner holding:

627.

The protection of liberty in the 14th Amendment invites him to

inquire into what this liberty is.

628.

He wrote that the right to purchase and sell labor is part of the liberty

protected by this amendment.

629.

Peckham did not keep USC in tune with the times. Justice Sutherland,
who was wholly in sympathy with Lochner, wrote in dissent in West Coast Hotel v. Parrish (not in
casebook) that the meaning of USC does not change with the ebb and flow of economic events.

630.

Peckham was sincere, at least in his intentions, when he said that This
is not a question of substituting the judgment of the court for that of the legislature. (818)

631.

Peckhams modality is textual to the extent that the word liberty is

there for construction, and historical to the extent that he is being true to the framers intent.
Structural and ethical basis for Lochner holding

But the Lockean vision that animates Peckham points him toward structural and ethical modalities, so that
reliance on moral and political philosophy (and more accurately, his particular political theory) immediately
appears most appropriate. This approach in turn led him to balancing, and it is because he balances that he is
charged by later generations with importing his own values into USC.

Liberalism and state police power:

632.

Liberal political philosophy that animated the antislavery movement,

and so in turn the 14th Amendment, held that there were clearly defined spheres of governmental and
private power.

116

633.
Liberty could be limited by the police powers, the powers enjoyed by
governments of general jurisdiction (unlike the government created by USC, whose powers are limited
and enumerated) to protect public health, safety, and morals.

634.

However, as Peckham noted, there is a limit to the valid exercise of

the police power by NY. Otherwise the 14th Amendment would have no efficacy and the legislatures of
the States would have unbounded power.

Boundaries of state police power

635.

Lochner established the boundaries of state police power based on its

conception of the purpose of police power.

636.

Lochner used familiar formulation, that police powers relate to the

safety, health, morals, and general welfare of the public. This seemed broad enough to encompass
concern for health of bakers, which might be harmed by overwork.
637.
But SCt interpreted policy power to concern primarily the protection of
private rights again, understood as property rights and freedom of contract. Any statute whose
purpose was to redistribute resources and thus benefit some persons at the expense of others would
extend beyond the boundaries of legislative authority.
638.
SCt could see no reason why bakers freedom of contract should be
interfered with. There is no contention that bakers as a class are not equal in intelligence and capacity
to men in other trades . . . (818) SCt was not persuaded that this was a health regulation.
639.
In deciding whether the state had met its burden of showing that the
police power can be exercised in this case, SCt necessarily relied on its own notions of reasonableness:
it balanced the liberty sacrificed, which was given very great weight, against the public interest that
was served.

640.

If there is truth in the modern critique of Lochner, it is this: the

balancing technique cannot be carried out without the judges own views influencing the weight that is
given to each of the factors.
Dissent - Harlan

Argued there was a reasonable basis for the legislation, but the court is having none of it.

SCt had recently sustained an 8-hour law for miners (Holden v. Hardy), but courts had traditionally regarded
mining as ultrahazardous. Miners were an exception to the rule that adults were presumed competent to take
care of themselves in the marketplace.

Women were also an exception. In Adkins v. Childrens Hospital, the majority (and not Holmes) was the
advocate of womens equality.

Harlan actually had a lot in common with Lochner majority.

641.

He agreed that liberty of contract is protected by USC, and that the

issue is whether the state had adequately justified its limitation of that liberty.

642.

Harlan simply thought that the state had met its burden of proving the

necessity of the limitation.

Dissent - Holmes

117

Took a radically different approach.

Claimed that a constitution is not intended to embody a particular economic theory.

It was not clear from Holmes dissent whether any infringement of economic liberty, per se, would violate USC
in his view.

Courts should simply defer to the legislatures expertise, unless (but this is a big unless) it can be said that a
rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles
as they have been understood by the traditions of our people and our law. It is not clear whether Holmes was
interested in doing anything with this escape hatch.

Forming an opinion of Lochner

Depends on whether we think that redistribution is a legitimate governmental purpose. There are different
conceptions of contract; property rights can be defined in many different ways.

Inequality is a natural result of private property: In fact, maximum hours laws tended to redistribute wages to
workers, who had to be paid a subsistence wage no matter how long they worked. A reduction of hours thus
often meant a de facto increase in the hourly wage. SCt thought that it is impossible to uphold freedom of
contract and the right of private property without at the same time recognizing as legitimate those inequalities of
fortune that are the necessary result of the exercise of those rights. (Coppage v. Kansas).

Private property and redistribution are not mutually exclusive. It is certainly logically possible to think that
property and contract produce great social wealth and so should be protected, but that those who gain from
these institutions ought to share their gains with those who lose (and who would have done better under
different economic arrangements).

Lochner Era - most significant judicial interventions in American history

With possible exception of Dred Scott.

One explanation as to why there has been no organized working-class political party in U.S. (as there has been
in most other advanced industrial countries) is that U.S. has had a stronger judiciary; judicial intervention made
collective political action futile here.

Law was abandoned as instrument of social transformation, and instead labor attempted to win gains through
collective bargaining on an industry-by-industry basis, with gains predictably concentrated among the most
skilled workers in key, bottleneck industries such as coal, steel, and autos.

Predictable consequence was a smaller and smaller proportion of labor was organized, and an increasing lack of
sympathy for labor movement, because that movement was generally understood to benefit only a privileged
few.

What you think of Lochner ultimately depends on what you think of the marginalization of labor in American
politics.

Munn v. Illinois - Escape hatch from Lochner Public interest

Held that government could regulate private property that was affected with a public interest.
The
boundaries of this category were, of course, highly contestable, and this exception started to swallow the rule in
Nebbia v. New York.

Muller v. Oregon Another escape hatch Women special class

Women were a special class who were entitled to special protection from the market, and thus maximum-hours
laws were permissible as applied to them. This escape hatch had a price (Forbarth):
643.
Constitutional segmentation of labor into a dependent class of
children, women, and men in certain dangerous or especially vulnerable callings, and an independent

118

class of free adult workers who ought not to rely on state paternalism helped fragment not only
labor legislation but also workers group identity.
644.
The courts relative hospitality toward hours laws for women and
children encouraged and ratified within labor circles a gender-based division of the working class. The
labor movement had once favored universal hours laws, signifying its class-wide constituency; now
it supported hours legislation for those dependent groups now deemed outside the movement,
because they could not look after themselves through collective self-help.

Examine Adkins v. Childrens Hospital again when we turn to sex equality cases.

BAILEY V. ALABAMA PERSONAL

SERVICE CONTRACTS ENFORCED BY JAIL TIME NO MORE

Hughes 1911. Showed the attractive side of Lochner logic. Still good law.

This case constitutionalized the old rule that personal service contracts cannot be enforced by ordering specific
performance.

Dissent - Holmes. Argued that this interfered with the freedom of contract of black laborers, and would
ultimately make them worse off.

Historical background is relevant to evaluating Holmess claim:

645.
Ever since Reconstruction, wealthy white landowners had striven to
maintain their supply of cheap and reliable agricultural labor by foreclosing all other options to blacks.
For the most part, the white landowners had won.
646.
harness.

The legal system connived with the planters to keep the blacks in

i. Those not already under contract could be arrested on any of a number of vague charges failing
all else, vagrancy whereupon they would only be able to pay their fines by signing labor
contracts and getting advances; the alternative as the chain gang, where annual death rates for
prisoners were staggering typically around 20% and in some places approaching 50%.

ii. Enticement statutes established the proprietary claims of employers to their Negroes by making
it a crime to hire away a laborer under contract to another man. Sometimes, if white farmers
were short of hands at harvest, the police would simply sweep through the streets arresting every
able-bodied black they saw.

This historical background made Bailey a very easy case, but also diverted attention from the deep problem in
contract theory that Holmes perceived:
647.

Does liberty include the right to sell oneself into slavery?

648.

13th Amendment, as interpreted by SCt, says no. Is that a violation or

vindication of liberty?

119

NEBBIA V. NEW YORK

Roberts 1934. Holding. SCt sustained a NY regulatory scheme establishing minimum and maximum prices for
mil during the Great Depression.

Nebbia recognized some redistributive ends as permissible. SCt did not explicitly reject the Lochner
philosophy. However, the majority noted that due process required only that the law shall not be unreasonable,
arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought
to be attained. A state was free to adopt whatever economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislation adapted to its purpose.

Broader than public interest businesses. Majority also explicitly rejected the contention that only businesses
involving a special public interest, such as utilities or monopolies, could be subjected to governmental price
regulation.

Significance. Nebbias requirement of a substantial means-end relationship was essentially the test of Lochner.
But the Nebbia Court was clearly determined not to impose upon legislatures its own views about correct
economic policy, as the Lochner Court had done. On the other hand, this case was less clear in its abandonment
of the previous framework than West Coast Hotel Co.

WEST COAST HOTEL CO. V. PARRISH THE

DEATH OF

LOCHNER FEMALE

MINIMUM WAGE

Hughes 1937. SCt explicitly overruled one of the major Lochner-era precedents.

Holding. SCt upheld a state minimum wage law for women, and thereby explicitly overruled the Adkins case.

SCts argument turned, not on judicial usurpation, but on the substantive justice of minimum wage legislation.
The language denouncing a subsidy to unconscionable employers departs from the assumption that the
common law baseline is a natural fact rather than a government creation. With this decision, Lochner was
clearly dead.

SCt mentioned the states interest in protecting the health of women. But it gave substantial weight to the
states interest in redressing womens inferior bargaining power as well. SCt conceded that the minimum wage
law interfered with freedom of contract, but unlike Adkins (or Lochner), the decision concluded that a
readjustment of economic bargaining power in order to enable workers to obtain a living wage was a legitimate
limitation on that freedom of contract.

UNITED STATES V. CAROLENE PRODUCTS CO. FILLED

MILK

Stone 1938. A presumption of constitutionality would be applied in the case of an economic regulation
subjected to due process attack.

Holding. SCt sustained against a due process attack a federal prohibition on the interstate shipment of filled
milk (e.g. skimmed milk mixed with non-milk fats).

Rationale. SCt noted that Congress had acted upon findings of fact (e.g. committee reports) showing a public
health danger from the filled milk. But even in the absence of explicit legislative findings, SCt held, the
existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting
ordinary commercial transactions is not to be pronounced unconstitutional it is of such a character as to
preclude the assumption that it rests upon some rational basis within the knowledge and experience of the
legislators. This test might be characterized as a minimum rationality standard, coupled with a presumption
of constitutionality.

Significance. This case provides maximum deference to the legislature, presuming that facts support the
legislation. The case thus stands for a rule of judicial abdication.

120

Footnote 4. However, the famous footnote 4 [certainly the most important footnote in all Constitutional Law],
sets forth three exceptions, each in a separate paragraph. Each became the basis of an important line of
subsequent case law.
649.

First paragraph. Described the incorporation of the bill of rights.

650.
Second paragraph. Refused to presume the constitutionality of
legislation which restricts those political processes [such as voting, expression, and political
association] which can ordinarily be expected to bring about repeal of undesirable legislation,
anticipates

i. the representation-reinforcing cases (e.g. Baker v. Carr); and

ii. the representation-reinforcing approach proposed by Ely. The difficulty with Elys approach is
that it involves just the kind of value judgments that he finds so indeterminate in the other
approaches, as Brests critique observes.
651.
Third paragraph. Worried about legislation that reflects prejudice
against discrete and insular minorities. This anticipates the equal protection cases below.
WILLIAMSON V. LEE OPTICAL - FULL

EMPLOYMENT FOR OPHTHALMOLOGISTS

Douglas 1955. Holding. SCt upheld an Oklahoma statute that, inter alia, prevented opticians from fitting
eyeglass lenses into frames (even old lenses into new frames) without a prescription from an ophthalmologist or
optometrist.

The purpose of the law seemed obviously to be full employment for ophthalmologists and optometrists, but
Douglas strained to find other purposes.

The statute was a rational health measure, SCt found, because the legislature might have concluded that in
some instances prescriptions were necessary to permit accurate fitting, or that eye examinations were so
critical, not only for correction of vision, but also for detection of latent ailments or diseases, that every change
in frames and every duplication of a lens should be accompanied by a prescription from a medical expert.
Similar hypothetical justifications were given for restrictions on advertising by opticians.

FERGUSON V. SKRUPA

Black 1963. Holding. Sustained a Kansas law prohibiting non-lawyers from engaging in the business of debt
adjusting.

Rationale. Black stated that SCt had abandoned the use of the vague contours of the Due Process Clause to
nullify laws which a majority of the SCt believed to be economically unwise. SCt would not refuse to sit as a
superlegislature to weigh the wisdom of legislation.

AK. This was precisely the sort of monopoly upheld in Slaughter-House, which suggests that SCt has come full
circle here. Against, SCt saw the lesson of history as involving the limits of judicial authority.

SUMMARY

OF SUBSTANTIVE DUE PROCESS

- ECONOMIC

RIGHTS

Should SCt go further than it has in protecting economic liberty?

652.

The answer depends in part on whether you think New Deal revolution
was constitutionally and/or democratically legitimate.

653.

Also depends on whether you think that an unregulated economy

maximizes individual liberty. Cardozo (in Blaisdell), argued that unprecedented economic regulation
was necessary to maintaining the economic structure on which the good of all depends. At the time,
millions of people who found themselves unemployed did not feel especially free, and aggressive
government action to put them back to work did not feel especially oppressive.

121

Without a doubt, SCt has cheerfully upheld some abusive legislation.

654.

Carolene and Williamson both have little to do with protecting the

public or regulating the economy, and as much to do with creating monopolistic advantages for certain
undeserving special interests.
655.
Should the courts do anything about this? Answer depends not only on
how severe the problem is, but also on the courts institutional capacities.

i. Once it is conceded that redistributive and paternalistic purposes are acceptable, it is hard for
courts to rule out in advance any category of legislation.

ii. Policing the legislative process would require courts to evaluate the case for each one of the
thousands of interferences with economic liberty that the modern regulatory state undertakes daily.
This may be the principal consideration that has moved SCt to abdicate this field altogether.
Privacy, personhood, and family - Modern Substantive due process
West Virginia State Board of Education v. Barnette - Overview

Jackson 1943. Principles from the Bill of Rights grew in soil which also produced a philosophy that the
individual was the center of society, that his liberty was attainable through mere absence of governmental
restraints, and that government should be entrusted with few controls and only the mildest supervision over
mens affairs.

We must now transplant these rights to a soil in which laissez-faire concept of non-interference has withered at
least as to economic affairs, and social advancements are increasingly sought through closer integration of
society and through expanded and strengthened government controls.

These changed conditions often deprive precedents of reliability and cast us more than we would choose upon
our judgment. However, we act in these matters not by authority of our competence but by force of our
commissions.

AK. Bruce Ackerman gets a lot of mileage from this quotation.

The right of privacy

INDIVIDUAL

RIGHTS AFTER THE

NEW DEAL

If the New Deal revolution had a single message for the courts, it was. Thou shall not Lochner. This rule was
given such constant (at least verbal) obeisance from the judiciary that it might as well be part of the USC. The
problem the courts faced after the New Deal, then, was what (if anything) remained of unenumerated individual
rights.

Two important precedents from Lochner period are the wellspring of the modern privacy doctrine. Lochner is
dead, but Meyer and Pierce remain not only alive, but fecund.

Lawyers have different views as to what the New Deal actually was:

656.

the rediscovery of the true USC, ending an anomalous period in which

SCt illegitimately imposed its own laissez-faire philosophy on the American people. [e.g. Lochner was
wrong the day it was decided.]
657.
a true constitutional revolution, in which the people, by supporting
FDR with supermajorities, exercised their power to change the USC; or
658.
an illegitimate usurpation of power which should be overturned by the
judiciary. [held by some academics, but doesnt seem to have much political future; Senate rejected
nomination of Siegan to federal judgeship.]

122

Problem that judges faced after New Deal was what is left of the 14th Amendment?

659.

General rule is now judicial abdication. Holmess view has prevailed.

660.

Before and after the New Deal, courts have asked whether a challenged
laws infringement of liberty was reasonable, given all the circumstances. But Carolene Products
presumed the existence of facts that support the legislatures judgment. The upshot is a rubber stamp
in favor of legislation. Carolene Products footnote appears to provide the only exceptions.

661.

The problem now is that the fundamental rights cannot be equated with
property rights. What, then are the unenumerated fundamental rights (if there are any)? This is the
problem that the post-New Deal court faces.

662.

This is the modern situation of Thou shalt not Lochner in which the
enterprise of discovering fundamental rights is situated.
Meyer v. Nebraska Okay to teach foreign language to school children

1923. SCt struck down a state law that prohibited the teaching of foreign languages to young children. SCt
held that the term liberty, as used in the 14 th Amendment, included many non-economic, but nonetheless
important, rights; the right of teachers to teach, and that of students to acquire knowledge, were among these.
SCt applied what appears to have been a mere rationality test (rather than any kind of strict scrutiny), but
nonetheless concluded that the statute was without reasonable relation to any end within the competency of the
State.

Pierce v. Society of Sisters

1925. SCt struck down a state statute requiring children to attend public schools, and thus preventing them
from attending private and parochial ones. This decision rested on the liberty of parents and guardians to
direct the upbringing and education of children under their control. SCt denied the power of the state to
standardize its children by forcing them to accept only public instruction.

Griswold v. Connecticut - Condommania

Douglas 1965. First major modern-era case which used a substantive-due-process-like approach to protect a
fundamental right; invalidated a statute that prohibited the use of contraceptives.

Facts. The statute at issue was a Connecticut law which forbade the use of contraceptives (and made this use a
criminal offense); the statute also forbade the aiding or counseling of others in their use. The Ds were the
director of the local Planned Parenthood Association and its medical director; they were charged with aiding
and abetting the violation of the statute. Before the decision, Planned Parenthood operated buses to shuttle
women to NY, where they could legally visit birth control clinics. What was really at stake was whether the
organization could provide birth control information within the states boundaries. Ds were convicted of
counseling married persons in the use of contraceptives. No users, married or single, were charged in the case.

Relevance to Lochner.

663.

Griswold might have been conceptualized in Lochner terms: the sale

of contraceptives involved willing buyers, willing sellers, and a meddlesome interference by the state.

664.

That argument was a sure loser in 1905: one of the most important
exceptions to Lochners libertarianism was the protection of public morals. [but realize that in
litigation in 1939, Planned Parenthoods citations to Lochner-like cases persuaded lower CT court to
strike down statutes as unconstitutional, before 1940 decision of CT SCt upheld statute as legitimate
regulation of public morals.]

665.

In 1965, Lochner itself was long dead. But Bruce Ackerman

emphasizes the unresolved question of how much of the old order had been slain. How sweeping was
the New Deal transformation?

123

i. Should it be interpreted as completely obliterating the Founding affirmations of private ordering

previously expressed in the rhetoric of freedom of contract? Or

ii. Should the courts continue to re-present the Founding concern for personal liberty by marking off
for special protection areas of life that seem far removed from the New Dealers demand to
regulate free markets for the general welfare?

Majority strikes statute. SCt, by a 7-2 vote, struck down the statute.

666.

Douglas began by rejecting the invitation to follow Lochner; majority

opinion declined to make explicit use of the substantive due process doctrine. Instead, he turned to the
text, specifically the guarantees of the bill of rights. He held that these have penumbras, formed by
emanations from those guarantees that help given them life and substance. (942). The SCt then
concluded that the right of married persons to use contraceptives fell within this penumbra. For him,
the text, once again, points beyond itself to a larger principle. That principle, however, is in the text.
[Douglas, no more than Peckham, adopts any notion of a living constitution.].

667.

The text led Douglas to a structural and purposive analysis from which,
through inductive reasoning, he arrived at the right to privacy. Argument on 942 can be summarized
thus.

i. Purpose of the guarantees of the first, third, fourth, and fifth amendments is to protect the privacy
of the home.

ii. This law could not be enforced without violating that privacy.
iii. Therefore, the law is unconstitutional.
668.

Examples. Thus the SCt claimed that 1 st Amendment, by its explicit

protection of the freedoms of speech and of the press, has emanations which create a penumbra; it
is this penumbra which protects, for instance, the freedom of association, a freedom not explicitly
mentioned in the USC. Similarly, the 4 th Amendments ban on unreasonable searches has a penumbra
which protects privacy interests, as do the 3 rd, 5th, and 9th Amendments. Collectively, these
Amendments establish a zone in which privacy is protected from governmental instrusion.

669.

Why the statute was invalid. Douglas majority opinion did not specify
exactly how the Connecticut ban on contraceptives violated this penumbra of privacy. But a good part
of the rationale seemed to have to do with the privacy implications of proof in prosecutions. Thus the
SCt asked: Would we allow the police to search the sacred precincts of marital bedrooms for telltale
signs of the use of contraceptives? Douglass concluded that [t]he very idea is repulsive to the
notions of privacy surrounding the marriage relationship.

670.

Critique. Douglas argument is vulnerable. As Blacks dissent insists,

none of these specific provisions protects a general right to privacy. The penumbras argument works
only if ,as with freedom of association, the liberty in question is indispensible to the exercise of an
enumerated liberty.

i. For example of a penumbra argument that works, consider NAACP v. Alabama, which Douglas
cites at 942. This case involved an attempt by Attorney General of Alabama to force NAACP to
disclose names of its members. SCt held that the NAACP did not need to disclose names, because
such compelled disclosure could restrain the organizations constitutionally protected freedoms of
speech and association. SCt noted that NAACP had shown that on past occasions, revelation of
the identity of its rank-and-file members has exposed these members to economic reprisal, loss of
employment, threat of physical coercion, and other manifestations of public hostility. NAACP v.
Alabama really was a case in which an unenumerated right -- here, the right to keep ones
membership secret was necessary to the exercise of an enumerated right. Indeed, it was clear
that the real reason Alabama wanted the list was that, by disclosing the names, it could stifle
unwelcome dissent.

124

ii. No such argument seems available in Griswold. Douglas acknowledged at the end of his opinion
that marriage promotes a way of life, not causes; a harmony in living, not political faiths. This
would seem to take it outside the protection of the first amendment. Douglas is left with the claim
that the marriage relationship is specifically protected in its privacy because it is an association
for as noble a purpose as any involved in our prior decisions. The issue, as he has formulated it,
is not, however, whether the privacy right is for a noble purpose, but whether it is necessary to the
exercise of an enumerated right and therefore qualifies as an implied right.

iii. The concern about police searches at the end is pure makeweight. As noted above, the police did
not need to search any bedrooms in order to prove their case. What was at issue here was ability
of Planned Parenthood to operate a birth control clinic near the center of town in New Haven.

Concurrences. There were three separate concurring opinions. None of the concurrences focus on the problem
of reconciling the 14th Amendment with the New Deal to the extent that Douglas does. All agreed with the
Douglas opinions basic conclusion that the Connecticut statute violated the 14 th Amendment interest in liberty,
but each reached this conclusion by different means.

671.

Goldbergs concurrence, which relies on the 9 th Amendment, and

Harlans concurrence, which looks to the due process clause, both envision a living, evolving
constitution, and read these provisions as giving effect to values that are rooted in the traditions of our
people.

672.

Goldbergs Ninth Amendment View. Goldberg believed that the 14 th

Amendments Due Process Clause protected all fundamental rights, whether or not these were
explicitly listed in the Bill of Rights. He contended that the 9 th Amendment (which provides that [t]he
enumeration in the USC, of certain rights, shall not be construed to deny or disparage others retained
by the people) supported this view, because it shows a belief of the USCs authors that fundamental
rights exist that are not expressly enumerated in the first eight Amendments. Just as the 9 th
Amendment showed that certain rights not enumerated in the Bill of Rights were protected as against
the federal government, so the 14th Amendment should be found to protect against state action
fundamental rights, including some not enumerated in the Bill of Rights. Goldberg found the right of
marital privacy to be among such fundamental rights, and argued that the statute unconstitutionally
violated that right, because it was not necessary for the fulfilling of a compelling state objective.

673.

Harlans ordered liberty approach. Harlans concurrence was

essentially in accord with Goldbergs. Harlan argued that the 14 th Amendment Due Process Clause
does not merely incorporate the specific Bill of Rights guarantees, but instead stands . . . on its own
bottom, to protect those basic values implicit in the concept of ordered liberty. He then relied on
his prior dissent in Poe v. Ullman (1961), which had contended that the same Connecticut statute
violated the due process interest in marital privacy.

i. Harlan quoted the test of Palko, which asked whether the right in question is implicit in the
concept of ordered liberty and thus appears to look more to political philosophy, a la Calder v.
Bull, than to tradition.

ii. But the rest of his opinion is tradition-based, and his Poe dissent is the classic defense of that
approach.

iii. AK: Do Harlans references to tradition and settled norms help alleviate concerns about judicial
subjectivity? What makes the right in question here fundamental? Why should the SCt be the
bulwark against departures from a well-established status quo?

iv. No protection outside of marriage: Harlans Griswold/Poe opinions stopped carefully short of
finding a general right to privacy for sexual relations. He explicitly rejected the idea that adultery,
homosexuality, fornication and incest were protected by the same right to privacy. He
distinguished these from the marital relations situation by nothing that the state allows (even
encourages) the marital relation, and should therefore not be permitted to use the criminal law to
regulate the intimate details of that relation. By contrast, the state completely forbids the other

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types of sexual relations, so that it may permissibly regulate the details of those forbidden
relations as well.

674.

Whites means-end test. Whites concurrence focused on the meansend relationship. He would apparently have upheld the statute had it been reasonably necessary for
the effectuation of a legitimate and substantial state interest. But the Connecticut statute, which
supposedly served the states policy against promiscuity and illicit sex, was drawn too broadly: there
was no need to ban the use of birth control by married couples in order to achieve this objective. Thus
White would presumably have upheld the ban as applied to the use of birth control by unmarried
couples.

Dissent. Both of the dissenters think that footnote four of Carolene Products exhausts the protection from
governmental intrusion that USC affords. For Black, this is just Lochner all over again. Is it?

675.

Black. Reiterated his familiar argument that only those rights explicitly
protected by a specific Bill of Rights (or other constitutional) provision were protected by the 14 th
Amendment; he felt that no right of privacy, in the broad and general way the majority used that
term, was protected by any specific provision.

676.

Stewart. Similarly failed to find a right of privacy in any specific

guarantee, and also rejected the Goldberg 9 th Amendment rationale (claiming that it limited only the
powers of federal government).
Eisenstadt v. Baird

Brennan 1972. Extended the right of contraception to single persons.

Holding and Significance. Much of the expansion of the meaning of Griswold came in this case, where SCt
invalidated a statute which, by permitting contraceptives to be distributed only by registered physicians and
pharmacists, and only to married persons, discriminated against the unmarried.

Rationale. In striking down the statute, the majority invoked equal protection as well as substantive due process
grounds. SCt observed that whatever the rights of the individual to access to contraceptives may be, the rights
must be the same for the unmarried and married alike. If the right of privacy means anything, it is the right of
the individual, married or single, to be free from unwarranted government intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child.

Critique - AK. This holding is hard to reconcile with Griswolds emphasis on the sanctity of marriage. If
marriage is the reason why contraceptive is protected in that case, then it doesnt make much sense to say that
there is an equal protection violation when the state discriminates in favor of married people in authorizing
contraception.

ABORTION

Cases following Eisenstadt have followed Harlans line more than Douglas, by looking to whether the right in
question is deeply rooted in our nations history and traditions.

The big exception is abortion. But there has also been a tendency to ask, without any particular reference to
history, how important the asserted liberty is. Roe surveyed history and shared morality in good Harlanesque
fashion, but made no connection between them and the right in question. Instead, it looked to the importance to
the individual of the decision involved. The key text here is Planned Parenthood v. Casey [part II of OConnor
plurality]. Is the following an appropriate description of constitutionally protected liberty?
677.
state cannot enter.

Our precedents have respected the private realm of family life which

678.

These matters, involving the most intimate and personal choices a

person may make in a lifetime, choices central to personal dignity and autonomy, are central to the
liberty protected by the 14th Amendment.

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679.
At the heart of liberty is the right to define ones own concept of
existence, of meaning, of the universe, and of the mystery of human life.
Roe v. Wade

Blackmun 1973. Held that there is a fundamental right to abortion, and that there is no state interest sufficiently
fundamental to override that fundamental right.

Holding. Blackmuns majority opinion held, without much explanation, that a womans right to privacy is a
fundamental right under the 14th Amendment, and that this right of privacy is broad enough to encompass a
womans decision whether or not to terminate her pregnancy. Therefore, the legislature has only a limited right
to regulate and may not completely proscribe abortions. The actual result of this case was to invalidate, on
privacy grounds, Texas nearly-complete ban on abortions.

Precise Holding. Majority held that abortion is a matter of right in the first trimester, can be regulated in the
second trimester, and can be prohibited in the third trimester.

680.

First Trimester. During the first trimester, a state may not ban, or even
closely regulate, abortions. The decision to have an abortion, and the manner in which it is to be
carried out, are to be left to the pregnant woman and her physician.

i. Rationale. At present, the mortality rate for mothers having abortions during the first trimester is
lower than the rate for full-term pregnancies. Therefore, the state has no valid (or at least no
compelling) interest in protecting the mothers health by banning or closely regulating abortions
during this period. (But the statute may require that abortions be performed only by licenses
physicians.) (no compelling health risk to the mother;

681.

Second Trimester. During the second trimester, the state may protect
its interest in the mothers health, by regulating the abortion procedure in ways that are reasonably
related to her health. Such regulation might include a requirement that the operation take place in a
hospital rather than a clinic. (SCt here implied that during this second trimester, the risk of maternal
health through abortion was higher than that in full-term pregnancies.) (some aspects of regulation is
acceptable)

i. No protection of fetus. The state may protect only the mothers health, not the fetus life, during
this period. Therefore, a flat ban on second trimester abortions is not permitted. Nor may the state
regulate in ways that protect the fetus rather than the mothers health.

682.

Third Trimester. At the beginning of the third trimester, the fetus

typically becomes viable. That is, it has a capability of meaningful life outside the mothers womb.
Therefore, after viability the state has a compelling interest in protecting the fetus. It may therefore
regulate, or even proscribe, abortion. However, abortion must be permitted where it is necessary to
preserve the life or the health of the mother. (Compelling state interest to regulate/prohibition of
abortion to prevent health risks to mother; unless there is serious risk to mother)

Rationale. Decision was premised upon the right of privacy. SCt here pointed to Griswold, as well as to other
privacy-derived holdings (Pierce v. Society of Sisters and Meyer v. Nebraska), recognizing freedom in childrearing and education. This right of privacy, which the SCt found to be part of the liberty guaranteed by the
14th Amendment, was broad enough to encompass a womans decision whether or not to terminate her
pregnancy.

683.

Standard of Review. In fact, a womans interest in deciding this issue

was a fundamental one, which could only be outweighed if (1) there was a compelling state
interest in barring or restricting abortion; and (2) the state statute was narrowly drawn so that it
fulfilled only that legitimate state interest.

684.

Countervailing state interest. SCt found that the state had two interests
which, in particular circumstances, might be compelling: protecting the health of the mother, and
protecting the viability of the fetus. The former would only be compelling after the first trimester

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(when abortion-related dangers outweigh the live-birth-related ones); the latter only applied during the
last trimester, when the fetus was viable. From these two postulates, the SCt drew its three-part rule.

i. Fetus not person. SCt explicitly rejected the argument that the state had a compelling interest,
even before viability, in protecting the fetus as a person as that term is used in the 14 th
Amendment. The SCt reached this conclusion largely on historical grounds.

Concurrences

685.

Stewart. Reversed his dissenting position in Griswold, and accepted

both Griswold and Roe as substantive due process cases; substantive due process is alive and well;
these and other decisions make clear that freedom of personal choice in matters of marriage and
family life is one of the liberties protected by the Due Process Clause of the 14th Amendment.
Prohibition of abortion violates the privacy right described in Eisenstadt.

686.

Douglas. Asserted broad judicial role in the protection of liberty. 14 th

Amendment protected freedom of choice in the basic decisions of ones life respecting marriage,
divorce, procreation, contraception, and the education and upbringing of children. Douglas conceded
that this freedom of choice was subject to regulation where there was a compelling state interest, but
found that Texas nearly-complete proscription of abortion in Roe went beyond such state interest.

687.

Burger. Tried to construe the majority opinion as narrowly as possible,

arguing that SCt has rejected abortion on demand. This is, of course, precisely what the decisions
did amount to. It seemed likely that the only thing that prevented Burger from dissenting was the
prospect that Douglas would then be the senior judge in the majority, that Douglas would then have
assigned the decision to himself, and that the result would be a far broader opinion of SCt than the one
Blackmun wrote.

Dissents. Both White and Rehnquist argued that this was Lochner again.

688.

White. Objected to what he called the SCts imposition of its own

value scheme, preferring the convenience, whim or caprice of the putative mother [over] the life or
potential life of the fetus prior to viability. He though that the relative weights should be assigned to
these two interests and should be left to the people and to the political processes.

689.

Rehnquist. Argued that only a mere rationality test, rather than a

strict scrutiny one, ought to be used here. At least some of the abortion prohibitions and regulations
forbidden by the majority could meet a minimum rationality standard. Criticized the majoritys 3-part
result as judicial legislation.
Roe and Griswold

Is the right to abortion a fair inference from Griswold? Put another way, can Griswold be distinguished?

In a sense, Roe is a stronger case than Griswold, because the right to bodily integrity has always been
recognized as a core liberty interest.

Perhaps abortion is different because pregnancy is in some sense voluntary. On the other hand, (1) some
intercourse is not always voluntary; and (2) voluntary intercourse is not always voluntary pregnancy. When a
woman consents to intercourse, is it fair to say that she assumes the risk of pregnancy?

What about the governments interest? SCt said that fetal life is not an important enough interest, but it offered
little argument for that assertion.

Is it relevant that, in other contexts, people are not required to be good Samaritans? Is it relevant that outlawing
abortions does not seem to reduce the frequency of abortions much, but forces poor women to resort to
dangerous, unlicensed procedures? Is the status of the fetus a religious question, on which the state may not
take a position?

Planned Parenthood v. Casey Abortion waiting period and other restrictions

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1992. This was a watershed case, because it was thought that the new Republican appointees (OConnor,
Souter, and Kennedy) might vote to overrule Roe. Instead, they joined in a plurality opinion reaffirming it.
However, important aspects of Roe including abortions status as a fundamental right, the states almost
complete inability to regulate first-trimester abortions, and in fact the whole trimester framework of Roe were
all overturned. As a result of Casey, the states may restrict abortion so long as they do not place undue
burdens on the womans right to choose.

Pennsylvania Statute. This statute placed a number of significant restrictions on abortion, such as a requirement
that the woman wait for 24 hours after receiving from a doctor certain information about abortion, and a
requirement that a married woman notify her husband of her intent to abort. Several of these restrictions were
clearly unconstitutional judged by the standards of the SCts post-Roe decisions.

Holding. SCt voted by 5-4 to maintain Roe v. Wade as precedent, but by 7-2 to allow states to regulate more
strictly than Roe and its progeny had allowed.

Significance of Casey.

690.

Abortion as protected interest. The case seems to ensure that a

womans right to decide whether to terminate her pregnancy will be an interest that receives special
constitutional protection. For example, it seems completely clear that a state may not simply forbid all
abortions, or even all abortions occurring, in, say, the second trimester. Similarly, it seems clear that a
state may not forbid all pre-viability abortions except those necessary to save the life or health of the
mother. Any such regulation would certainly be considered by five Justices to be an undue burden
on abortion.

691.

Regulations easier to sustain. On the other hand, state provisions that

in some way regulate the abortion process are much more likely to be sustained than they were prior to
Casey. The pre-abortion counseling requirements of the Pennsylvania statute, the 24-hour notice
provision, and the requirement that a minors parent give informed consent, are all provisions which
either were, or would almost certainly have been, struck down under SCt case law that existed prior to
Casey. Assuming that the state is really attempting to regulate abortion rather than proscribe it, only
the most severe kinds of regulations the spousal notification requirement struck down in Casey is one
of the few actually-existing state restrictions that comes to mind will constitute such an obstacle that
it will be found to be an undue burden by the standard announced and applied in the joint opinion.

Joint opinion. Three centrist judges (OConnor, Souter, Kennedy) formed a plurality opinion, which spoke
for SCt on all points.

692.

Roe reaffirmed. Joint opinion began by stating broadly that it was

reaffirming the essential holding of Roe v. Wade. The opinion saw this essential holding as having
three parts: (1) the recognition of the right of the woman to choose to have an abortion before
viability and to obtain it without undue interference from the state, (2) a confirmation of the States
power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies
endangering the womans life or health; and (3) a recognition of the states legitimate interests from
the outset of the pregnancy in protecting the health of the woman and the life of the fetus.

i. Rationale. The joint opinion appeared to agree not only with the essential holding of Roe, but
with the constitutional analysis that gave rise to that decision. The opinion said it remains settled
that the USC places limits on a States right to interfere with a persons most basic decisions
about family and parenthood. Cases upholding the right to use contraception (e.g. Griswold)
continue to be relevant to the abortion situation as well. Both the contraception and the abortion
contexts involve personal decisions concerning not only the meaning of procreation but also
human responsibility and respect for it.

ii. Decision personal to the woman. Joint opinion also emphasized that the special nature of the
abortion decision required that it be left to the woman alone, for it impacts upon her in a uniquely
personal way. The liberty of the woman is at stake in a sense unique to the human condition and

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so unique to the law. The mother who carries a child to full term is subject to anxieties, to
physical constraints, to pain that only she must bear . . . Her suffering is too intimate and personal
for the State to insist, without more, upon its own vision of the womans role, however dominant
that vision has been in the course of our history and our culture. The destiny of the woman must
be shaped to a large extent on her own conception of her spiritual imperatives and her place in
society.

693.

Stare Decisis. However, the joint opinion also suggested that its
authors might not have endorsed the principles of Roe if the issue were appearing before the SCt for
the first time. The opinion referred to the reservations any of us may have in reaffirming the central
holding of Roe. But what tipped the scales in favor of reaffirming Roe was the force of stare decisis,
the doctrine that says that courts should not lightly overturn precedent. Where a constitutional decision
has not proven unworkable, and where overturning it would damage reliance interests, stare decisis
dictated that the decision not be overturned.

i. Not unworkable. By this standard, Roe was a decision that should not be discarded. The
decision had not proven to be unworkable. It was true that some of the factual assumptions
underlying Roe had changed. For instance, the point of viability (after six months of pregnancy, at
the time of Roe) had been advanced to a somewhat earlier time due to medical progress. But the
core aspects of the Roe holding such as the principle that a womans right to decide on whether
to carry a pregnancy to term is a constitutionally-protected liberty interest, or the principle that
viability is the earliest point at which the state may institute a general ban on abortions had not
proven unworkable during the 19 years following Roe.

ii. Reliance. Similarly, there was a significant reliance interest in upholding Roe. People have
organized intimate relationships and made choices . . . in reliance on the availability of abortion in
the event that contraception should fail. The ability of women to participate equally in the
economic and social life of the Nation has been facilitated by their ability to control their
reproductive lives.

iii. Shouldnt overrule under fire: Finally, the legitimacy of the Court would be undermined if it were
to overrule Roe. Where, in the performance of its judicial duties, the SCt decides a case in such a
way as to resolve the sort of intensely divisive controversy reflected in Roe, its decision has a
dimension that the resolution of the normal case does not carry. It is the dimension present
whenever the SCts interpretation of the USC calls the contending sides of a national controversy
to end their national division by accepting a common mandate rooted in the USC. In this respect,
the only other comparable case from our lifetime was Brown v. Board of Education. If the SCt
overruled Roe without a compelling reason to do so, it would be seen as surrendering to political
pressure, a result that would subvert the SCts legitimacy beyond any serious question.

694.

The undue burden standard. The joint opinion abandoned two

aspects of Roe, the trimester framework and (at least implicitly) the principle that any pre-viability
abortion regulation must survive strict scrutiny.

i. Trimester approach rejected. The joint opinion noted that Roe used a trimester approach to govern
abortion regulations; joint opinion did not agree that the trimester approach was a necessary
method of safeguarding a womans right to choose. The biggest vice of the trimester approach
was that it undervalues the States interest in potential life, because it completely ignores that
interest during the first two trimesters.

ii. The undue burden standard. In place of the trimester approach, the joint opinion articulated a
new undue burden standard: Only where state regulation imposes an undue burden on a
womans ability to make [the decision whether to abort] does the power of the State reach into the
heart of liberty protected by the Due Process Clause. A state regulation will constitute an undue
burden if the regulation has the purpose or effect of placing a substantial obstacle in the path of
a woman seeking an abortion of a nonviable fetus. Under this standard, if state regulations
merely create a structural mechanism by which the state may express profound respect for the
life of the unborn, and do not place a substantial obstacle in the womans path, the regulations

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will be upheld. Similarly, the state may regulate to further the health or safety of the woman, as
long as the regulation does not unduly burden the right to abortion. After viability, the state may
proscribe all abortions not needed to protect the health or life of the mother (a holding that does
not represent any change from Roe or later cases).

iii. Fundamental rights and strict scrutiny. The joint opinion implicitly rejected Roes view that the
right to abortion is a fundamental right, and Roes concomitant rule that every pre-viability
restriction on this fundamental right must survive strict scrutiny. The opinion did not discuss
either the fundamental rights or strict scrutiny issue, but it is clear that the opinion did not in
fact apply strict scrutiny to the Pennsylvania statute (and applied the undue burden test instead).
So we must assume that abortion is no longer a fundamental right, and restrictions on it are no
longer to be strictly scrutinized.
695.
Application to Pennsylvania Statute. The plurality then applied its new
undue burden analysis to the Pennsylvania statute. All but one of the Pennsylvania restrictions were
upheld as not being unduly burdensome:

i. Informed Consent. The statute contained an elaborate informed consent requirement, which the
joint opinion upheld. First, at least 24 hours before performing an abortion, a physician must
inform the woman of the nature of the procedure, the health risks of both abortion and childbirth,
and the probable gestational age of the unborn child. (The waiting period was subject to an
exception for medical emergencies, defined as situations where an immediate abortion is
required to avert serious risk of death or major bodily impairment to the woman.) Second, either a
physician or a qualified non-physician must inform the woman of the availability of state-printed
materials describing the fetus and providing information about non-abortion alternatives (e.g.
adoption, child support, etc.) The joint opinion found that these informed consent requirements
did not unduly burden the womans right to choose to abort. The closest question came as to the
24-hour waiting period: here, the joint opinion relied mainly on the absence of any strong findings
by the district court that the increased costs and potential delays which might stem from this
waiting period were truly substantial obstacles. (The opinion acknowledged that the waiting
period might well most heavily burden women with the fewest financial resources, those who
must travel long distances, and those who have difficulty explaining there whereabouts to
husbands, employers, or others. However, on the record before us, and in the context of this
facial challenge, the joint operation was not prepared to say that the waiting period constituted an
undue burden.

ii. Spousal Notification. But the joint opinion struck down the statues spousal notification
provision. Under that provision, a married woman could not receive an abortion without signing a
statement that she had notified her spouse that she was about to undergo the procedure. The
provision contained several exceptions, including one for the situation where pregnancy was the
result of spousal sexual assault (provided that the assault was reported to the police within 90
days), and one applicable if the woman believed that notifying her husband would cause him or
someone else to inflict bodily injury upon her. The joint opinion found that this spousal
notification requirement was a substantial obstacle to abortion for some women: many fear that
they will be psychologically abused by the husband, or that he will abuse their children (neither
situation was covered by an exception in the notification requirement); others may fail to be able
to use the exception for sexual assaults because they will be terrified to report the episode to the
police, as was required for the use of that exception. The fact that the overwhelming majority of
married women do notify their husbands was irrelevant; what counted was that as to that small
percentage who do not voluntarily notify spouse, the requirement that they do so was a substantial
impediment. The three Justices concluded their ruling on the spousal-notification requirement by
asserting that the requirement reflected an outmoded view of the position of women in society:
the requirement embodies a view of marriage consonant with the common-law status of married
women but repugnant to our present understanding of marriage and of the nature of the rights
secured by the USC. Women do not lose their constitutionally protected liberty when they marry.

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iii. Parental Consent. The joint opinion upheld the statutes parental consent provision, by which
except in medical emergencies, an unemancipated young woman under 18 may not obtain an
abortion unless she and one of her parents provides informed consent. The statue allowed for a
judicial bypass, by which a court could authorize performance of the abortion without parental
consent, if the judge determined that the young woman had given informed consent and that an
abortion would be in her best interest. The three justices had little trouble upholding this provision
because it matched other parental consent with possibility of judicial bypass provisions that the
SCt had previously upheld. One difference was that here, the parents consent must be shown to
have been informed (which under the statue required the parent to listen to the alternatives to
abortion and to hear about available state literature, 24 hours before the procedure). But the three
Justices believed that the parental informed consent requirement was constitutional just as the
requirement that an adult woman give her own informed consent was now constitutional; neither
represented an undue burden on the right of abortion.

iv. Record Kepping. Pennsylvania required each facility performing abortions to comply with
detailed record keeping provisions (e.g. the filing of a report for each abortion, identifying the
physician, the facility, the referring physician, the womans age, the number of prior pregnancies
and prior abortions she had had, gestational age, type of abortion procedure, date of abortion,
medical complications, weight of the aborted fetus, etc.) The provisions did not require disclosure
of the mothers identity. Because all elements of the record keeping were reasonably directed to
the preservation of maternal health, they were all upheld by the joint opinion, except the one
requiring disclosure of whether spousal notice was given.

696.

AK Critique. Plurality opinion had two parts. First reaffirmed Roes

holding, invoking a broad reading of the privacy right. The second offered a theory of stare decisis,
and explained why the Roe precedent should be adhered to. The two parts of the opinion are in some
tension with each other:

i. If it is clear that Roe was correctly decided, then there is no need to rely on stare decisis, because
the SCt would come out the same way even if it were writing on a blank slate. Stare decisis is
only relevant when there is some doubt about the validity of the earlier precedent.

ii. How persuasive is the pluralitys stare decisis argument? Is it ever appropriate to rely on
precedent in constitutional decision making? Is Rehnquist right that any traditional notion of
reliance is not applicable here?

The Stevens and Blackmun opinions. Each concurred in part and dissented in part. Each agreed that Roe
should be maintained as precedent, but each disagreed with the plurality as to how tightly the states may
regulate abortion, and each believed that some of the Pennsylvania regulations upheld by the plurality were
unconstitutional.

697.

Stevens. Argued that the right to abortion must be understood at a very

high level of generality (why?) Agreed with the joint opinion that the state has a legitimate interest in
protecting potential life. But he did not believe that this interest was directly protected by the USC,
and believed it was therefore a less weighty interest than the womans constitutional liberty interest in
deciding whether to bear a child. Stevens believed that the state could express a preference for
normal childbirth, but that the state could not force the woman to receive the states obviously pro-life
materials just at the moment she was considering her decision. So for Stevens, the requirement that a
physician tell the woman about alternatives to abortion, and disclose the availability of state-printed
pro-life materials, was unconstitutional there was no evidence that the requirement truly furthered the
states interest in making sure the woman had given informed consent, and the states interest in
protecting potential life could not justify the result, because the state cannot further its interests by
simply wearing down the ability of the pregnant woman to exercise her constitutional right. Stevens
did not expressly say whether he agreed with the joint opinions undue burden standard, but believed
that correct application of this standard would produce the same result as strict scrutiny, that the preabortion counseling and 24-hour waiting period requirements were unconstitutional.

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698.

Blackmun. Concurring and dissenting in part, Blackmun argued for

complete reaffirmation of Roe. As the result of prior court decisions, All that remained between the
promise of Roe and darkness was a single, flickering flame. But now, just when so many expected the
darkness to fall, the flame has grown bright. He argued that the standard imposed by Roe that any
regulation of abortion be subject to strict scrutiny should be maintained, which he believed the
undue burden standard did not do. Similarly, he believed that Roes trimester framework should be
maintained. For Blackmun, all of the challenged regulations were infirm: the pre-abortion counseling
requirement, the 24-hour waiting period, the requirement that consent by a minors parent be
informed (which the trial court found would require an in-person visit by the parent to the facility),
the detailed record-keeping and disclosure provisions none of these could survive strict scrutiny.

i. Attack on dissent. Blackmun then attacked the dissenters, especially Rehnquist. He noted that
under Rehnquists view, restrictions on abortion should be upheld so long as they are rationally
related to a legitimate state interest. Under this extremely deferential standard, not even women
who became pregnant through rape or incest would be constitutionally entitled to an abortion . He
also attacked Rehnquists reliance on tradition as the only source of fundamental rights: In the
Chief Justices world, a woman considering whether to terminate a pregnancy is entitled to no
more protection than adulterers, murderers, and so-called sexual deviates. Given the Chief
Justices exclusive reliance on tradition, people using contraceptives seem the next likely
candidate for his list of outcasts.

ii. Succession. Blackmun closed his opinion in an even more personal way. He noted the precarious
balance by which the Justices following the pro-choice approach of the SCt in Casey narrowly
outnumbered those following the wildly differing approach of the dissent: The distance between
the two approaches is short the distance is but a single vote. He went on to say that I am 83
years old. I cannot remain on this SCt forever, and when I do step down, the confirmation process
for my successor may well focus on the issue before us today. That, I regret, may be exactly
where the choice between the two worlds will be made.

Dissent - Rehnquist. Argued that SCts precedents in the fundamental rights area should be understood at a very
narrow level of generality, and thus that Roe should be overruled. The joint opinion retains the outer shell of
Roe but beats a wholesale retreat from the substance of that case. He indicated that he and the other dissenters
believe that Roe was wrongly decided, and that it can be and should be overruled. Dissenters would have
upheld all the challenged provisions of the Pennsylvania statute.

699.

Not a fundamental right. The right to terminate a pregnancy was not,

and should not have ever been declared to be, fundamental. Abortion was quite different from
marriage, procreation and contraception (other rights found to be fundamental), because it involved
the termination of life and was thus a unique situation. Nor was the right to abort rooted in the
historical traditions of the American people, which Rehnquist believed was the only way in which a
right could become fundamental. Rehnquist believed that a womans interest in having an abortion is a
form of liberty protected by the Due Process Clause, but that since that interest was not a fundamental
right, the states could regulate it in ways rationally related to a legitimate state interest.

700.

Stare Decisis. Rehnquist also attacked the joint opinions reliance on

the doctrine of stare decisis. First, he did not believe that the joint opinion in fact applied the doctrine.
Stare decisis means to adhere to decided cases, but the joint opinion so revised Roe that it was being
overruled more than adhered to: Roe stands as a sort of judicial Potemkin Village, which may be
pointed out to passers-by as a monument to the importance of adhering to precedent. Nor did
Rehnqhist believe that stare decisis should be applied in this case. Certainly the fact that there was
substantial public opposition to Roe should not make any difference: Just as the SCt should not
respond to [anti-Roe] protests by retreating from the decision simply to ally the concerns of the
protesters, it should likewise not respond by determining to adhere to the decision at all costs lest it
seem to be retreating under fire. Public protests should not alter the normal application of stare decisis,
lest perfectly lawful protest activity be penalized by the SCt itself. To Rehnquist, Roe was like Plessy
v. Ferguson (legitimizing separate but equal treatment of blacks): both were decisions that the

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passage of time had shown to be clearly wrong, and the SCt should definitively overrule Roe just as it
had overruled Plessy in Brown v. Board of Education.

701.

Application to statute. Given Rehnquists belief that the regulations

merely needed to be rationally related to a legitimate state interest, it was not surprising that he
found them all to be valid. For instance, the spousal notice requirement was a rational attempt by the
State to improve truthful communication between spouses and encourage a collaborative decision
making, and thereby fosters marital integrity.

Scalias dissent. Thought that Roe was just Lochner again, and that it is bad law for similar reasons. He also
attacked what he regarded as SCts exaggerated view of its own importance in the American polity.

702.

Right to abortion is not protected by USC. The right to terminate an

unwanted pregnancy was simply not a liberty interest protected in any way by the USC. I reach this
conclusion for the same reason I reach the conclusion that bigamy is not constitutionally protected
because of two simple facts: (1) the constitution says absolutely nothing about it, and (2) the long
standing traditions of American society have permitted it to be legally proscribed. The nonhistorically-oriented factors relied on by the majority to support abortions special protected status
for instance, the fact that it is among a persons most basic decisions and involves most intimate
and personal choice could be applied equally to homosexual sodomy, polygamy, adult incest and
suicide, all of which can constitutionally be proscribed because it is our own unquestionable
constitutional tradition that they are proscribable.

703.

Stare decisis. Like Rehnquist, Scalia was especially scornful of the

joint opinions reliance on stare decisis, and on the reasoning that the SCt should not overrule an
unpopular precedent lest it be seen to be caving in to popular pressure. The notion that we would
decide a case differently from the way we otherwise would have in order to show that we can stand
firm against public disapproval is frightening . . . [T]he notion that the SCt must adhere to a decision
for as long as the decision faces great opposition and the Court is under fire acquires a character of
czarist arrogance. To Scalia, the majority was simply making value judgments, and value judgments
should be voted on by citizens and their elected representatives, not dictated by an Imperial
Judiciary. Scalia concluded by saying that we should get out of this area, where we have no right to
be, and where we do neither ourselves nor the country any good by remaining.

Levels of generality debate between Scalia and Brennan.

704.

Scalia: rely on tradition at the most specific level at which a relevant

tradition protecting, or denying protection to, the asserted right can be identified.

705.

C/A. Many of SCts cases (e.g. Griswold) would come out other way

under such a test.

706.

Scalia would respond that they have no better means of confining

judicial discretion, and that a rule of law that binds neither by text nor by any particular, identifiable
tradition, is not rule of law at all.
AKs approach to abortion question

Right to abortion is protected by 13th Amendment.

Basis in case law for this argument is two cases suggesting that 13 th Amendment protects both liberty and
equality

707.

Personal liberty. Bailey v. Alabama held that personal service cannot

be compelled

708.

Equality: Jones v. Mayer held that Congress can abolish the badges
and incidents of slavery because those badges and incidents are part of what the amendment forbids).

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Personal liberty. Abortion prohibitions violate 13th Amendments guarantee of personal liberty because forced
pregnancy and childbirth, by compelling the woman to serve the fetus, creates that control by which the
personal service of one man is disposed of or coerced for anothers benefit which is the essence of involuntary
servitude.

709.

The pregnant woman may not serve at the fetus command it is the
state that, by outlawing abortion, supplies the element of coercion but she is serving involuntarily for
the fetus benefit, and this is what the Court has said that the amendment forbids.
710.
If citizens may not be forced to surrender control of their persons and
services, then womens persons may not be invaded and their services may not be coerced for the
benefit of fetuses.

711.

The injury inflicted on women by forced motherhood is lesser in degree

than that inflicted on blacks by antebellum slavery, since it is temporary and involves less than total
control over the body, but it is the same kind of injury. When abortion is outlawed, the pregnant
woman must serve the fetus, and that servitude is involuntary.

712.

Baileys definition of involuntary servitude encompasses the burden

imposed on women by laws against abortion, since the natural operation of a statute prohibiting
abortion is to make it a crime for a woman to refuse to render service to a fetus.
713.
Even had the decision been differently worded, any decision in Baileys
favor would a fortiori protect the woman who seeks to abort, since the servitude to which Bailey was
subjected was considerably less (less taxing, less intrusive, and less total in its probable impact on the
course of his whole life) than that which forced pregnancy imposes on her.

Equality. Abortion prohibitions violate the amendments guarantee of equality, because forcing women to be
mothers makes them into a servant caste, a group which, by virtue of a status of birth, is held subject to a special
duty to serve others and not themselves.

714.

The class imposed upon by abortion prohibitions consists entirely of

women. If indeed there can be no doubt that our Nation has had a long and unfortunate history of sex
discrimination, this discrimination has consisted primarily of the systematic use of motherhood to
define and limit womens social, economic, and political capacities. Anti-abortion laws continue and
ratify that practice. The issue here is analogous to that of badges of slavery.
715.
Because the subordination of women, like that of blacks, has
traditionally been reinforced by a complex pattern of symbols and practices, the amendments
prohibition extends to those symbols and practices.

Dual nature of 13th Amendment. The 13th Amendment is both libertarian and egalitarian, because the
paradigmatic violation (e.g. slavery) deprives its victims of both liberty and equality. Neither Jones nor Bailey
entailed paradigmatic violations of the 13 th Amendment; however, compulsory pregnancy does entail
paradigmatic violation of 13th Amendment.

States interest in protecting the fetus:

716.

Under 14th Amendment, laws that impinge on personal rights protected

by USC will be sustained only if they are suitably tailored to serve a compelling state interest. ( City
of Cleburne v. Cleburne Living Center). Once it is shown that a law impinges on such a right, the
burden is on the state to show that the right is overcome by a compelling state interest.

717.

Because the 13th Amendment is worded much more strongly, the states
burden is even heavier than this.

i. It is arguable that due process and equal protection are preserved even when a fundamental right is
impinged upon or a disadvantaged group is discriminated against, so long as a compelling state
interest is shown.

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ii. But involuntary servitude is involuntary servitude no matter how compelling the states interest is,
and the amendment declares that involuntary servitude must note exist. Slavery could not be
justified simply by showing that a compelling state interest is served.

718.

It is hard to say just what level of emergency would be necessary to

overcome the amendments absolute prohibition, but at the very least, it would have to be clear that
human lives are at stake. But a fortiori a law forbidding abortion cannot be sustained if the state is
unable to carry the burden of persuading the court that a fetus is, or should be considered to be, a
person. While its opinion has many weaknesses, Roe court was surely correct to conclude that this
burden had not been met: When those trained in medicine, philosophy, and theology are unable to
arrive at any consensus, the judiciary, at this point in the development of mans knowledge, is not in a
position to speculate as to the answer.
BOWERS V. HARDWICK - SODOMY

White 1986. Significance. Actual holding is fairly narrow: the states may, without violating substantive due
process, proscribe homosexual sodomy. Case does not even resolve the issue of whether enforcement of such a
ban on homosexual sodomy without similarly banning heterosexual sodomy would violate the Equal Protection
Clause, or the issue of whether imprisonment for homosexual sodomy would violate the 8 th Amendments
proscription of cruel and unusual punishment. Majority expressly declined to consider whether these
constitutional arguments might have merit. (Powell stated in separate concurrence that a prison sentence for
such conduct would create a serious 8th Amendment issue.)

Facts. Plaintiff, an avowed homosexual, challenged a Georgia statute making it a crime to perform or submit to
any sexual act involving the sex organs of one person and the mouth or anus of another . . . The statute did not
on its face distinguish between heterosexual and homosexual behavior. Violations were punishable by a prison
sentence of up to 20 years.

Statute upheld. By 5-4 vote, SCt upheld the statute against plaintiffs substantive due process attack. The
majority phrased the issue as being whether the Federal USC confers a fundamental right upon homosexuals to
engage in sodomy.

719.

Precedent. Majority began by concluding that the cases recognizing a

right of privacy for matters of family, marriage, or procreation did not bear any resemblance to the
right of homosexuals to practice sodomy.

720.

Not a fundamental right. Apart from precedent, majority drew from the
early privacy and incorporation decisions to craft a two-pronged test for whether conduct is protected
by the right to privacy: in order for conduct to be protected as a fundamental right, the conduct
must be either (1) implicit in the concept of ordered liberty (Palko), or (2) deeply rooted in this
Nations history and tradition (Moore v. East Clevland). Homosexual sodomy was not such a liberty
under either of these formulations. In view of the fact that until 1961, all 50 states outlawed sodomy,
and 24 still do, any claim that the right to practice sodomy is implicit in the concept of ordered
liberty or deeply rooted in this Nations history and tradition is at best, facetious.

721.

Privacy of home irrelevant. Plaintiff in Bowers asserted that whatever

right the state might have to police public sexual practices, conduct occurring in the privacy of the
home should be protected; he relied on Stanley v. Georgia, in which SCt had held that a person could
not be convicted of possessing and reading obscene material in the privacy of his own home. The
majority rejected this argument on the grounds that Stanley was based on the 1st Amendment, not the
14th Amendment.

(a) Parade of Horribles. Majority believed that plaintiffs Stanley-based argument, insofar as it
claimed a constitutional protection for all voluntary sexual conduct between consenting adults in
the home, would make it logically impossible to protect the claimed right to homosexual conduct
while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they
are committed in the home. The majority was unwilling to start down that road.

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722.

Reluctance to recognize new rights. Decision here showed a selfconscious concern about judicial overreaching, citing battle of 1930s on 1031. Not only did majority
reject plaintiffs constitutional claim, it went out of its way to make a broad statement about the proper
role of the SCt in handling assertions that new fundamental rights should be recognized. The SCt is
most vulnerable and it comes nearest to illegitimacy when it deals with judge-made constitutional law
having little or no cognizable roots in the language or design of the USC . . . There should be,
therefore, great resistance to expand the substantive reach of [the Due Process Clauses of the 5th and
14th Amendments], particularly if it requires redefining the category of rights deemed to be
fundamental.

(a) Does this concern justify the SCts decision?

(b) Is SCts basis for distinguishing earlier decisions persuasive?
(c) How would abortion fare under majoritys 2-part test here? White said that abortion would fail the
test.

i. History/tradition: Roe itself refutes notion that abortion liberty is deeply rooted in the history
or tradition of our people, as does the continuing and deep division of the people themselves
over the question of abortion.

ii. Ordered liberty: It seems apparent that a free, egalitarian, and democratic society does not
presuppose any particular rule or set of rules with respect to abortion.

(d) If SCt was so concerned about judicial overreaching, it did not make sense to recharacterize the
case as one involving homosexual sodomy. The statute does not distinguish between homosexual
and heterosexual sodomy. The sex of Hardwicks sex partner was not an element of the crime that
the prosecution had to prove.

Concurrences:

723.

Burger. Relied on Judeo-Christian moral and ethical standards. Is

this an appropriate source of judicial decision?

724.

Powell. Thought that, if Hardwick were actually sent to jail, that might
be cruel and unusual punishment in violation of the 8th Amendment.

Blackmuns dissent. Disagreed not only with result reached by majority, but also with the proper framework for
analyzing the Georgia statute.

725.

What case is about. The case was not about a fundamental right to
engage in homosexual sodomy as majority argued. Rather, it was about the much broader right to be
let alone. The statute was not limited to homosexual sodomy; by its terms, heterosexual conduct was
equally covered.

726.

Two strands to privacy right.

Blackmun offered a different
interpretation of the earlier privacy cases. Certain rights are protected because they form so central a
part of an individuals life. (1033) The dissenters noted that this right to be let alone has two
different strands recognized in prior SCt decisions: (1) a right to be free of governmental interference
in making certain private decisions (the decisional aspect of the privacy right); and (2) the right to
privacy of certain places without regard to the activities that go on there (the spatial aspect). Georgia
statute violated each of these statutes.

(a) Decisional aspects. Decisional privacy guarantees the freedom an individual has to choose the
form and nature of these intensely personal bonds. Argued that sexual intimacy is a sensitive,
key relationship of human existence, central to family life, community welfare, and the
development of the human personality and that much of the richness of a relationship will come
from the freedom an individual has to choose the form and nature of these intensely personal
bonds. The majority decision did not merely refuse to recognize a fundamental right to engage in

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homosexual sodomy what SCt has really refused to recognize is the fundamental interest of all
individuals have in controlling the nature of their intimate associations with others.

i. AK critique. This looks a lot like (most pejorative possible characterization of) Lochner. It
requires judges to decide, with no apparent guidance from any authority outside of their own
personal moral beliefs, what parts of an individuals life are so central as to warrant
protection.

(b) Spatial privacy - Protection for the home. Furthermore, activities that take place in ones own
home deserve special protection. Blackmun argued that majority mischaracterized Stanley v.
Georgia, which held that one could possess obscene material in ones own home. In Stanley, SCt
relied on Ds right to satisfy his intellectual and emotional needs in the privacy of his own
home. Rebutting majoritys assertion that Stanley v. Georgia was based solely on 1 st Amendment
rather than privacy grounds, dissenters contended that decision derived in large part from 4 th
Amendments special protection of the home. Therefore, the right to be left alone in ones house,
because it is expressly granted by the 4 th Amendment, is perhaps the most textual of the various
constitutional provisions that inform our understanding of the right to privacy . . . The right of an
individual to conduct intimate relationships in the intimacy of his or her own home [is] the heart of
the USCs protection of privacy.

i. AK critique. Even if Blackmun was right about this, though, the result would be a very
modest victory for gays. Much of what is at stake in the gay rights issue is public equality
and recognition, not simply a right to conduct secret liaisons undisturbed by the law. Spatial
privacy is achievable in a closet.

(c) States justification. Dissenters believed that, in light of strength of privacy interests implicated by
statute here, states justifications for statute were inadequate. Neither the length of time a majority
of society has objected to a practice, nor fact that many religious groups condemn the practice, can
have any relevance to whether the state may ban it. Nor did the majority identify any concrete
harm ensuing from private adult consensual activity such as that proscribed by the statute.

Stevens dissent. Thought there is an equal protection problem in selective application of this law to gays.
Emphasized that the statute banned both homosexual and heterosexual conduct, and banned it whether the
parties were married or unmarried. Therefore, state must either (1) show why the statue is valid in its
application to all types of banned conduct, or (2) show why selective enforcement against homosexuals alone
does not constitute unconstitutional discrimination.

727.

Married couples. When individual married couples are isolated from

observation by others, the way in which they voluntarily choose to conduct their intimate relations is a
matter for them not the State to decide. Georgia itself conceded that the statute would be
unconstitutional if applied to married couples because of the right to marital privacy identified in
Griswold.

728.

Selective application. A policy of selective application of statute solely

against homosexuals must be supported by a neutral and legitimate interest something more
substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither Georgia nor
the majority had identified any such interest in disfavoring unmarried homosexuals over married
couples with respect to sodomy.

Decisional privacy. This right to define oneself has become central to arguments that seek to expand the right to
privacy.
729.
Jed Rubenfeld has argued that this argument reproduces assumptions
that women and gays should not unquestionably accept.

730.

Homsexuality. Notion of homosexual identity begins with the notion of

an essential division separating those who engage in homosexual as opposed to heterosexual sex.
Moreover, that identity is assumed to be deviant. There is no notion of heterosexual identity.
Persons dont define themselves when they engage in heterosexual sex, because heterosexuality is

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merely normality, and the heterosexual must make some further, more particular decisions pursuing
certain kinds of partners or forms of sexual pleasure before he will be said to have defined his
identity according to sexual criteria.

731.

Abortion. Do we really want to say that a womans decision not to bear

a child is a cataclysmic, life-defining event? Doesnt that reproduce all the ideas about womens
natural destiny that we were trying to get away from?

732.

All of this suggests that even those who want to find constitutional
arguments for the protection of abortion and/or homosexual sex ought to look somewhere other than
the privacy doctrine for support.
WASHINGTON V. GLUCKSBERG - PHYSICIAN-ASSISTED

SUICIDE

Rehnquist 1997. SCts latest word on unenumerated rights.

No generalized right to commit suicide: Case clearly establishes that there is no generalized right to commit
suicide, let alone a right to enlist the assistance of others in doing so. And in fact, its pretty clear that even the
class of terminally ill patients in severe pain do not have such a generalized right.

Right to be free of pain. But Glucksberg was a facial challenge, essentially a claim that the statute could not
constitutionally be applied to any terminally-ill competent patient. SCt here carefully left the door open to as
applied claims. Thus, a future plaintiff might well succeed with a claim that a particular state ban on suicide or
suicide-assistance has infringed that particular patients autonomy-based due process interest. For instance a
terminally-ill, competent patient, whose pain cannot be reduced by any method that wouldnt bring about death,
might well succeed with a constitutional claim if the state prevented him from getting any relief.

733.

Five justices leave open possibility. Five justices (OConnor, Stevens,

Souter, Ginsburg, Breyer) seemed to explicitly leave open possibility that such an as applied claim
might succeed.

States free to permit. Lastly, the states are free to permit assisted suicide if they want to. A particular state
statute permitting assisted suicide might violate some constitutional provision. But in general, there ought to be
no constitutional problem with a states letting a competent patient voluntarily decide to commit suicide, and
with letting her enlist a willing doctor in that action.

Upshot. SCt remains quite unsettled about the scope of constitutional privacy. It appears to go beyond the 2pronged test of Hardwick, but how far remains to be seen.

Statutory ban. Washington banned promoting suicide attempt. The state defined this crime as knowingly
caus[ing] or aid[ing] another person to attempt suicide, and made it a felony.

Rehnquists majority opinion:

734.

Broad level of generality. Rehnquist phrased the issue at a very high

level of generality: whether the liberty specially protected by the Due Process Clause includes a
right to commit suicide which itself includes a right to assistance in doing so.

735.

No historical right. To answer this question, Rehnquist began by

canvassing past and present laws on the subject. He noted that for over 700 years, the AngloAmerican common-law tradition has punished or otherwise disapproved of both suicide and assisting
suicide. And today, in virtually every state and in almost every western democracy it was a crime
to assist in suicide. Although the states had begun to re-examine this prohibition in light of modern
medical technology, the prohibition remained on the books practically everywhere.

736.

Not a fundamental right. Rehnquist then concluded that any due

process liberty interest in committing suicide was certainly not a fundamental interest.

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(a) Rationale: He noted that the SCt had always been reluctant to expand the list of fundamental due
process interests because guideposts for responsible decision making in this uncharted area are
scarce and open-ended. Only rights or interests that were deeply rooted in this Nations history
and tradition could be fundamental. And, in view of the nearly universal past and present
prohibition of suicide or assisting suicide, the asserted interest in committing suicide did not come
close to meeting this deeply rooted test.

(b) Cruzan distinguished. Rehnquist then distinguished the interest recognized in Cruzan from the
one asserted here. Cruzan may have recognized a liberty interest in declining unwanted lifesustaining treatment, but that interest was not simply deduced from abstract concepts of personal
autonomy. Rather, the interest recognized in Cruzan derived from the common-law rule that
forced medication was a battery, and the long legal tradition protecting the decision to refuse
unwanted medical treatment. So the right recognized in Cruzan was entirely consistent with this
Nations history and constitutional traditions. The interest in committing suicide with anothers
assistance may be just as personal and profound as the decision to refuse unwanted medical
treatment, but it has never enjoyed similar legal protection.

737.

States interest in regulation was rational. Having decided that the

liberty interest in assisted suicide was not fundamental, Rehnquist then turned to the issue of whether
there were any limitations at all on the states right to ban such suicides. Rehnquist ducked the issue of
whether there was a non-fundamental liberty interest in assisted suicide. Instead, he seemed to say that
even if such a non-fundamental interest existed, the state merely had to show that its ban was
rationally related to legitimate government interests. Rehnquist quickly concluded that the state
easily satisfied this test.

(a) Interest in preserving human life. First, Rehnquist said that the state had an unqualified interest
in the preservation of human life. He noted that many people who desire to commit suicide are
clinically depressed (often because of untreated pain), and that of this group many who receive
proper treatment withdraw their suicide request. Thus, legal physician-suicide could make it
more difficult for the State to protect depressed or mentally ill persons, or those who are suffering
from untreated pain, from suicidal impulses.

(b) Protecting integrity of medical profession. Also, the state had an interest in protecting the integrity
of the medical profession: a physician-assisted suicide could undermine the trust that is essential
to the doctor-patient relationship by blurring the time-honored line between healing and harming.

(c) Protecting the vulnerable. Next, Rehnquist wrote, the state had an interest in :protecting
vulnerable groups including the poor, the elderly, and disabled persons from abuse, neglect,
and mistakes. There was a real risk of subtle coercion and undue influence in end-of-life
situations. Apart from the state interest in combating coercion, the state had an interest in
protecting these vulnerable groups from societal prejudice: the states suicide ban reinforces its
policy that the lives of terminally ill, disabled and elderly people must be no less valued than the
lives of the young and healthy.

(d) Slippery slope. Finally, the state could rationally fear that legalizing physician-assisted suicide
would set it down a slippery slope towards voluntary and perhaps even involuntary euthanasia.
For instance, family members would inevitably begin to participate in the suicide, if the patient
was unable to self-administer the drugs. And the experience of the Netherlands the only western
nation to allow even voluntary euthanasia suggested that voluntary euthanasia had led to the
involuntary variety for such groups as severely disabled newborns and elderly persons with
dementia. Thus recognizing a right to physician-assisted suicide for the competent, terminally-ill
patient is likely, in effect, a much broader license, which could prove extremely difficult to police
and maintain.

(e) State interests were rational. These various interests were unquestionably important and
legitimate. And Washingtons outright ban on assisted suicide was at least reasonably related
to the promotion of these interests.

140

OConnors concurrence. Agreed that there was no generalized right to commit suicide. But she seemed to
leave open the possibility that a terminally-ill patient suffering great pain might have a limited right to have a
physician prescribe medication to alleviate that suffering, even where this would hasten death. OConnor
thought there was no need to address that question here, since Washington (and NY, the state whose statute was
at issue in the companion case) did not forbid such prescriptions. OConnor thereby deprived Rehnquist of his
5th vote for the proposition that there is no such right.

Stevens concurrence. Although Stevens concurred in the result, he disagreed with the majoritys reasoning.
Agreed that statutes like those of Washington and NY were not always unconstitutional, so that the plaintiffs
facial attack on the statutes had to fail. However, Stevens believed that there are situations in which an interest
in hastening death is legitimate . . . I am also convinced that there are times when it is entitled to constitutional
protection.

738.

Broader view of Cruzan. Whereas Rehnquist said that Cruzan derived

mainly from the common-law rule that forced medication was a battery, Stevens thought that Cruzan
established a much deeper principle: that some individuals who no longer have the option of deciding
whether to live or to die because they are already on the threshold of death have a constitutionally
protected interest that may outweigh the States interest in preserving life at all costs. That interest
was an interest in deciding how, rather than whether, a critical threshold shall be crossed. Some
terminally ill patients may have a constitutionally protected right to decide how to die.

739.

Particularized challenge: Posture of assisted suicide was similar to the

posture of capital punishment 20 years previously: Just as our conclusion that capital punishment is
not always unconstitutional did not preclude later decisions holding that it is sometimes impermissibly
cruel, so it is equally clear that the [SCts present] decision upholding a general statutory prohibition of
assisted suicide does not mean that every possible application of the statute would be valid. Thus,
Stevens did not . . . foreclose the possibility that an individual plaintiff seeking to hasten her death, or
a doctor whose assistance was sought, could prevail in a more particularized challenge.

Souters concurrence. Concurred in result only. Would not say whether the individuals autonomy interest is
fundamental, because he thinks the states interest in preventing abuses is sufficiently persuasive to overcome
that interest. Souter would have applied a somewhat different test for determining whether the statute violated
plaintiffs substantive due process rights. Viewed issue as whether the statute sets up one of those arbitrary
impositions or purposeless restraints at odds with the Due Process Clause. In Souters view, if a statute did
this, it would violate due process even if it didnt burden a fundamental interest, and even if it wasnt wholly
irrational. In other words, Souter seemed to be advocating a sliding scale approach to due process (though he
didnt use the phrase), by which the stronger the individuals interest, the stronger the states countervailing
interest had to be.

740.

Legsilature has greater competence. In any event, Souter agreed that

for the present, the legislatures judgment recognizing that a right to assisted suicide posed major
dangers, should not be disturbed. But he left open the door for some future claim, when the factual
realities were better understood.

Breyers concurrence. Breyer, concurring in result only, disagreed with Rehnquists description of the
plaintiffs claimed liberty interest as a right to commit suicide with anothers assistance. Breyer said that he
could not be precise about what the plaintiffs interest truly consisted of, but that his formulation would use
words roughly like a right to die with dignity, and that at its core would lie personal control over the manner
of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering
combined.

741.

More direct challenge. So Breyer, like several of the concurring

justices, thought that in a different case, the SCt might some day have occasion to find that a states
ban on assisted suicide infringed a constitutional right. He suggested, for instance, that this might be
the case if a state prohibited physicians from dispensing drugs needed to avoid pain at the end of life.

141

Sex and sexual orientation

Reed v. Reed

1971. SCt struck down a statute preferring men over women as administrators of estates. SCt purported to
apply the traditional mere rationality standard. But in rejecting the states contention that the preference
reduced the workload of probate courts by eliminating hearings on the merits, SCt was clearly putting more bite
into the traditional standard than it had done previously.

Frontiero v. Richardson Classification based on sex inherently suspect

1973. SCt explicitly rejected the mere rationality standard for gender-based classifications. In fact, that case
went virtually to the other extreme, with a plurality holding that classifications based on sex, like
classifications based upon race, alienage, or national origin, are inherently suspect and must therefore be
subjected to strict judicial scrutiny.

Craig v. Boren Beer sales to 18 20 year-old women only, not men

1976. SCt settled on an intermediate level of scrutiny for gender-based classifications, whether benign or
not.

Facts. This case was a successful challenge to an Oklahoma statute which forbade the sale of 3.2% beer
(supposedly non-intoxicating) to males under the age of 21, and to females under the age of 18. The
constitutional claim was that the statute denied equal protection to males aged 18 to 20.

Holding
742.
Standard articulated. SCt articulated the applicable standard as being
that classifications by gender must serve important governmental objectives and must be substantially
related to achievement of those objectives.

i. New standard not explicit. Majority did not explicitly announce that it was applying a new
standard different from either the traditional mere rationality test or the strict scrutiny reserved
for suspect classifications and fundamental rights. In fact, SCt purported merely to be applying
standards established in previous cases, including Reed and Frontiero. But the concurring and
dissenting opinions clearly viewed the majority as having formulated a third, middle, level of
scrutiny.
743.
Defense of statute. Oklahoma defended statute on grounds that it
promoted traffic safety, since, statistically, 18-20 year old males were arrested for drunken driving
much more frequently than females in the same age group (2% of males and .18% of females in that
age group were arrested for drunk driving.)
744.
insufficient.

Insufficient correlation. Majority found this statistically-based defense

i. Maleness not proxy. First, since such a small portion even of males in the relevant age group
were convicted of drunken driving, maleness could not serve as a proxy for drinking and
driving.

ii. Non-intoxicating beverage. Secondly, even if 18-20 year old males did drive while drunk with a
sufficiently greater frequency than similarly-aged females, this did not establish that the states
regulation of 3.2% beer was reasonable, since that beverage was supposedly non-intoxicating.

iii. Only sale prohibited. Lastly, the statute only prohibited the selling of the beer to males, not their
drinking it once they acquired it (perhaps via a purchase by an 18-20 year old female companion).

iv. Poor overall fit. Thus, overall, the fit between the means of regulation selected (ban on sale of
3.2% beer to 18-20 year olds) and the end sought to be achieved (promotion of traffic safety) was
simply too tenuous to constitute the required substantial relation between means and end.

142

Dissent - Rehnquist. Argued that the case should be judged according to a mere rationality standard. He
apparently would not have objected to intermediate-level scrutiny for discrimination against women, but saw
not reason why discrimination against males should be given any greater scrutiny than that given to the great
majority of other statutes attacked on equal protection grounds.

745.

Means-end fit. Rehnquist also objected to majoritys conclusion that

the statute was invalid because the fit between being an 18-20 year old male and driving while drunk
was unduly tenuous. In his opinion, what counted was not the relative size of the percentage of young
males who drank, but whether this percentage was higher than for females. Since there was evidence
that, however few young males were arrested for drunken driving, it was far more proportionately than
the number of females, he found the connection between regulation of 3.2% beer and promotion of
traffic safety rational, meriting upholding of the statute.
United States v. Virginia VMI gender integration

Ginsburg 1996. Held that Virginias publicly-operated men-only military academy, Virginia Military Academy,
violated equal protection.

Facts. Virginia had operated VMI as a men-only institution since its founding in 1839; the schools purpose was
and is to develop citizen-soldiers. VMI was the only single-sex school among Virginias 15 public
universities. Virginias principal defense of its single-sex policy was that three aspects of VMIs approach its
extremely rigorous physical training, its technique of depriving students of privacy, and its adversative
approach (under which entering students are extensively hazed, in a manner comparable to Marine Corps boot
camp) would have to be materially changed if the school were made co-ed. Instead, the state sought to create
a less rigorous program for women but still one in theory devoted to developing citizen-soldiers at a preexisting all -women private liberal arts college, Mary Baldwin College.

Holding. By 7-1 majority, SCt held that (1) Virginias policy of excluding women from VMI was a violation of
womens equal protection rights; and (2) the program at Mary Baldwin College was not sufficiently comparable
to the VMI program to redress the injury.
746.
No overbroad generalizations. Ginsburg began by noting that
gender-based classifications must not rely on overbroad generalizations about the different talents,
capacities or preferences of males and females. [Gender-based] classifications may not be used, as
they once were . . . to create or perpetuate legal, social, and economic inferiority of women.

i. Suitable for some women. Ginsburg rejected Virginias claim that VMI program would have to be
materially changed if women were admitted. It may be true that, as Virginia asserted, most
women wouldnt like the rigorous, adversative martial VMI program, and would prefer a more
cooperative program. But the experience of women in the U.S. military academies, and in the
U.S. military, suggested that these fears were overblown. In any event, there were clearly some
women for whom the existing VMI program was an attractive and suitable program, and Virginia
could not deprive these unusual women of the opportunity to attend VMI. Generalizations about
the way women are, estimates of what is appropriate for most women, no longer justify denying
opportunity to women whose talent and capacity place them outside the average description.

ii. Diversity policy. Virginia had also defended its men-only rules as being in furtherance of a state
policy of diversity of educational approaches. But majority rejected this objective, concluding
that this was not an actual state purpose, given that Virginia had no women-only public
universities, and that the no-women policy of VMI dated from a time when Virginia did not offer
any sort of public higher education for women.
747.
Mary Baldwin program insufficient. Majority then concluded that the
proposed women-only program at Mary Baldwin would not constitute an adequate remedy for the
equal protection violation caused by VMIs men-only status. To remedy an equal protection violation,
the solution would have to place victims in the position they would have occupied in the absence of
discrimination, and to eliminate so far as possible the discriminatory effects of the past. The Mary
Baldwin program would not be in any way the equivalent of VMI: it would not give its students the
same intense military and leadership training (for instance, it would not use the adversative method); it

143

should not have a student body or faculty of the same quality; it would not benefit from the same
strong alumni ties, etc. It would, in sum, be a pale shadow of VMI.
748.
Exceedingly persuasive justification needed. Majority opinion was
also notable for the stricter tone with which it applied mid-level scrutiny. Clinton Administration had
asked SCt to change course, and apply strict scrutiny, instead of traditional mid-level review, in gender
cases. Majority did not do this. But it said that sex-based classifications would have to undergo
skeptical scrutiny, and would be upheld only if the state demonstrated an exceedingly persuasive
justification for any gender-based governmental action.

i. Objective must be one that really motivated state. Perhaps the most important aspect of the new
skeptical scrutiny is that when the government articulates a justification for the gender-based
classification, this justification must describe actual state purposes, not rationalizations for
actions in fact differently grounded. Thus, when Virginia asserted that its policy fulfilled the
objective of diversity-in-education, SCts response was not that this wasnt an important objective
(or that the men-only program wasnt closely related to achieving that objective), but that this
wasnt the real objective, merely a pretext.

Dissent - Scalia.

749.

Objection to majoritys standard. Scalia objected first to majoritys

choice of standard. He claimed that while majority admitted to having changed the traditional
intermediate level of review, it was in fact substituting a new and improper exceedingly persuasive
justification standard that contradicted the reasoning of the SCts prior gender cases. In Scalias view,
this standard was an unacknowledged adoption of what amounts to (at least) strict scrutiny.

750.

Satisfies mid-level review. Scalia believed that operation of VMI as an

all-male school satisfied mid-level review when that standard was properly applied. The state had an
important interest in achieving the educational diversity provided by single-sex colleges. And when
Virginia elected to have an all-male school that used the adversitive model (VMI) and an all-female
school that used the cooperative model (the new Mary Baldwin program), it had selected a strategy
that was substantially related to the achievement of that interest in diversity.

751.

End of single-sex public education. Scalia said that the majoritys

approach ensures that single-sex public education is functionally dead. In fact, this approach even
endangered private single-sex colleges, since the governments furnishing of all-important financial
assistance (e.g. tax deductions for private donations) might be held to be state action in support of
discrimination, as it had been in cases involving private racially-discriminatory colleges.
OTHER CANDIDATES

FOR HEIGHTENED SCRUTINY

Romer v. Evans Special rights for gays

Kennedy 1996. SCt struck down a Colorado constitutional amendment that would have prevented the state or
any of its cities from giving certain protections to gays or lesbians. SCt found that the measure flunked mere
rationality review on two separate grounds: there was no legitimate state interest in fact being served, and the
means chosen by the state were not rationally related to the (possibly legitimate) interest that the state asserted.

Facts. Colorado provision, known as Amendment 2, modified the Colorado constitution to provide that
neither the state nor any subdivision (including state agency, city or school district) shall enact, adopt or
enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation,
conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of
persons to have or claim any minority status, quota preferences, protected status, or claim of discrimination.
752.
Bans anti-discrimination laws. Main practical impact of Amendment 2
was that it prevented both the state legislature and any city from passing statutes or ordinances that
would protect gays and lesbians from discrimination. For instance, the cities of Aspen, Boulder and
Denver had all passed ordinances barring discrimination against gays in housing, employment,
education, public accommodations, and the like; each of these ordinances would apparently have been

144

wiped out by Amendment 2. Only by re-amending the state constitution something requiring a statewide referendum could gays obtain any protection against discrimination on the basis of sexual
orientation.

Holding. By 6-3 vote, SCt struck down Amendment 2, even though majority used only mere rationality
review.

753.

Gays not put in same position as others. Colorado defended

amendment on grounds that it merely puts gays and lesbians in the same position as all other persons
and does no more than deny homosexuals special rights. But Kennedy found this interpretation
implausible. The amendment in fact singled gays out for worse treatment than other groups:
Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in
both the private and governmental spheres. The amendment withdraws from homosexuals, but no
thers, specific legal protection from the injuries caused by discrimination.

(a) Wide protection of other groups. Kennedy noted that existing state and municipal laws in
Colorado protected many groups, not just the racial, ethnic or gender groups to which the SCt has
given heightened Equal Protection review. For instance, various ordinances protected persons
from discrimination based on age, military status, marital status, pregnancy, parenthood, custody
of a minor child, political affiliation, or physical or mental disability of an individual or of his or
her associates. So Amendment 2 was not simply withdrawing special rights from gays, it was
forbidding them the safeguards that others enjoy or may seek without constraint. These are
protections taken for granted by most people either because they already have them or do not need
them.

754.

Desire to harm is not a legitimate interest. Kennedy then asserted that

Amendment 2 seems inexplicable by anything but animus toward the class that it affects. He quoted
approvingly a prior case (Dept. of Agriculture v. Moreno), If the constitutional conception of equal
protection of the laws means anything, it must at the very least mean that a bare desire to harm a
politically unpopular group cannot constitute a legitimate governmental interest. Amendment 2, by
identifying persons by a single trait and then denying them equal protection across the board, was
unprecedented in our jurisprudence and not within our constitutional tradition. Central to the
guarantee of equal protection is the principle that government and each of its parts remain open on
impartial terms to all who seek its assitance.

755.

Protection of liberties of landlords or employers rationale is rejected:

Colorado argued that Amendment 2 was rationally related to the protection of other citizens freedom
of association, in particular the freedom of landlords or employers who have personal or religious
objections to homosexuality. Kennedy did not reject this as a legtimate state interest. But he found the
means-end fit to be fatally loose: The breadth of the Amendment is so far removed from these
particular justifications that we find it impossible to credit them.

756.

Conclusion: Kennedy concluded by saying that Amendment 2

classifies homosexuals not to further a proper legislative end but to make them unequal to everyone
else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.

Dissent - Scalia. Scalia accused majority of taking sides in the cultural wars, and said that its striking down
of Amendment was an act, not of judicial judgment, but of political will.

757.

No singling out. Scalia rejected majoritys view that Amendment 2

singled out homosexuals for unfavorable treatment. All the Amendment did was to say to gays that
they may not obtain preferential treatment without amending the state constitution. If it was a
violation of equal protection to force gays to resort to the state-constitutional-amendment level when
others dont have to, then it would also violate equal protection to force any group to have recourse to
a more general and hence more difficult level of political decisionmaking than others. He posed the
example of a state law prohibiting the award of municipal contracts to relatives of mayors or city
councilmen: Once such a law is passed, the group composed of such relatives must, in order to get

145

the benefit of city contracts, persuade the state legislature unlike all other citizens, who need only
persuade the municipality. It is ridiculous to consider this a denial of equal protection.

758.

Inconsistent with Bowers. Scalia also believed that the majoritys

reasoning was inconsistent with Bowers v. Hardwick, in which SCt had held that states may make
homosexual conduct a crime. If it is constitutionally permissible for a State to make homosexual
conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely
disfavoring homosexual conduct, and Amendment 2 was at most a very slight disfavoring of that
conduct, in his view.

759.

Not politically unpopular. Scalia noted in passing that it was nothing

short of preposterous to call politically unpopular a group which enjoys enormous influence in the
American media and politics. And he accused the majority of siding with the views and values of
the lawyer class, whose tolerant views of homosexuality are reflected by the fact that law schools
require interviewers to pledge their willingness to hire homosexuals.

760.

Rationally related. Lastly, Scalia believed that the Amendment was in

fact reasonably related to a legitimate governmental interest. That interest was the prevention of
piecemeal deterioration of the sexual morality favored by a majority of Coloradans. And a measure
that merely denied homosexuals preferential treatment was surely an appropriate means of achieving
that end.

146

Case Summaries
Strauder v. West Virginia (1880): 14th Amendment

761.

Majority: STRONG: Laws prohibiting blacks from serving on jury (for

a black defendant) violates DUE PROCESS, under the 14th Amendment
Peters v. Kiff (1972): 14th Amendment

762.

Majority: MARSHALL: Law prohibiting blacks from juries (for a

white defendant) violates DUE PROCESS, under the 14th Amendment
Plessy v. Ferguson (1896): 13th, 14th Amendments

Louisiana law that required SEPARATE BUT EQUAL railroad cars for blacks and whites. Plessy, 1/8 th black,
tried to sit in white railroad car.

763.

Majority: BROWN: In the nature of things (the 13th and 14th

Amendment) could not have been intended to force the commingling of the two races. Laws requiring
separation of races do not necessarily imply the inferiority of either race to the other and are within
the police power of the states.

764.

Dissent: HARLAN: 13th amendment prohibits any burdens or

disabilities that constitute badges of slavery or servitude, and the 14 th amendment confirms all other
civil rights that pertain to freedom and citizenship. Laws are colorblind.
Brown v. Board of Education (1954): 14th Amendment, Equal Protection

After chipping away at the foundations of Plessy v. Ferguson, a unanimous court resolved that SEPARATE
BUT EQUAL doctrine has no place in the field of education. In deciding that the history of the 14 th
Amendment is inconclusive as to its intended effect on public education, the court held that the use of race to
segregate white and black children in the public schools is a denial to black children of the EQUAL
PROTECTION of the laws guaranteed by the 14 th Amendment. Brown was prohibited from attending public
school in Topeka, Kansas

765.

Majority:
WARREN: In approaching the problem of school
segregation we can not turn the clock back to 1868 when the 14 th Amendment was adopted, or even to
1896 when Plessy v. Ferguson was written. Segregation generated a feeling of inferiority among black
children: Whatever may have been the extent of psychological knowledge at the time of Plessy, this
finding of inequality is amply supported by modern authority.

766.

In Brown II, (1955) the Court announced guidelines for implementing

desegregation. The Court largely deferred to local school authorities, leaving the Federal courts to
determine only if the schools were acting in good faith. Obstruction and procrastination was caused
by phrases such as: practical flexibility, as soon as practicable, a prompt reasonable response,
and all deliberate speed.

147

Bolling v. Sharpe (1954): 5th Amendment, Equal Protection, Due Process

In Brown, the Supreme Court struck down separate but equal public schools in the states, relying on the
EQUAL PROTECTION clause of 14th A. The District of Columbia is not subject to the 14 th A., the Court could
evoke the 5th A., but the 5th lacks an EQUAL PROTECTION clause. Politically, the Court could not
invalidate segregated schools in the states and allow them to operate in D.C.

767.

Majority: WARREN: The court finessed the problem by holding that

racial segregation in D.C. schools denied black children DUE PROCESS of law under the 5 th A. The
concepts of EQUAL PROTECTION and DUE PROCESS, both stemming from our American ideal of
fairness, are not mutually exclusive.
Marbury v. Madison (1803): Judicial Review, Interpret Constitution

Marbury and others were nominated by President Adams to be justices of the peace in D.C. The Senate
confirmed their names. Adams signed the commissions and the seal was affixed, but the commissions were not
delivered. When Jefferson took office, he ordered for commissions not to be delivered. It was a tough
situation, if the court ruled against Jefferson, the decision would have been ignored, and the power and prestige
of the Court would suffer greatly. Marshall took a short term loss for a long term victory

768.

Majority: MARSHALL: The opinion acknowledged the merits of

Marburys case but denied to that the Court had power to issue a mandamus. Through a strained
reading, Marshall concluded that Section 13 expanded the original jurisdiction of the Court, and
thereby violated Article III of the Constitution. Congress can alter the boundaries of only appellate
jurisdiction. Marshall claimed that the power of CONSTITUTIONAL INTERPRETATION was vested
in judiciary.
Cooper v. Aaron (1958): Judicial Review, Interpret Constitution

After Brown, a major confrontation occurred in Arkansas, where Gov. Faubus defied three court orders to
integrate Little Rock Central H.S. President Eisenhower sent in troops to prevent the obstruction of justice. The
Supreme Court held a special session to affirm the decisions of the lower courts

769.

Majority: WARREN: The court said that Marbury declared the basic
principal that the federal judiciary is supreme in the exposition of the law of the Constitution. This
claim exaggerates and distorts the opinion of Marshall.

148

Swann v. Charlotte-Mecklenburg Bd. Ed. (1971): 14th Amendment, Segregation

By 1971 there had been little progress in desegregating public schools, despite Brown. School boards were
under pressure by courts to produce their plans. The court focuses on remedies available to federal courts to
produce a unitary school system free of state-imposed segregation.

770.

Majority: BURGER: A unanimous court held that district courts have

broad power to fashion remedies for desegregated schools. To achieve greater racial balance, judges
could alter school district zones, reassign teachers, or bus students. The Court also struck down state
anti-bussing laws.

771.

Theses rulings appeared to clash with language in Civil Rights Act of

1964, which defined desegregation as the assignment of students to public schools without regard to
their race, color, religion, or national origin, and stated that desegregation shall not mean the
assignment of students to public schools in order to overcome racial imbalance. In fact, race was
regularly taken into account by courts to devise desegregation plans. The act also did not empower
federal officials or courts to issue any order seeking to achieve a racial balance in any school by
requiring the transportation of pupils The court finessed this potential conflict by arguing that the
busing provision was directed at DE FACTO, not DE JURE segregation.
Freeman v. Pitts (1992): 14th Amendment, School Desegregation

The trend towards accepting schools that are largely all white or all black was furthered. Massive bussing was
not considered an option

772.

Majority: KENNEDY: Federal courts have the authority to relinquish

supervision and control of school districts even if full compliance with desegregation plans has not
been achieved in every area of school operations. A school district has a duty to eliminate DE JURE
segregation, not de facto. It held that when a racial imbalance is the result of population shifts, school
districts and judges are not required to adopt awkward, inconvenient, and even bizarre measures
(language taken from Swann) to achieve integrated schools.

773.

Concurring: SOUTER, BLACKMUN, STEVENS, OCONNER:

concur only with judgement, b/c court paid insufficient attention to Swann and the connection between
schools and housing.
Martin v. Hunters Lessee (1816): Supremacy Clause, Judicial Review

A state district court upheld Martins land claim, which was based on a treaty between America and Great
Britain. The Virginia Court of Appeals regarded the issue as solely a STATE ISSUE, and reversed the district
court. The Supreme Court set aside the state ruling, and the state court refused to obey. The Virginia court
claimed that the Supreme Court had no authority to review its judgement, and that Section 25 of Judiciary Act
of 1789, which gave Supreme Court appellate jurisdiction over state courts, was unconstitutional.

774.

Majority: STORY: An ardent defender of national interests, Story

established the power of S. Court to review state courts. There is nothing in constitution which
restrains or limits power of congress to establish courts under every variety of form of appellate or
original jurisdiction.

149

McCulloch v. Maryland (1819): Implied Power, 10th Amendment

Congress passed legislation in 1816 to create a Bank of the US, a power not expressly granted in the
Constitution. One issue, therefore, was whether an IMPLIED POWER existed. In 1818 Maryland passed
legislation to impose a tax on all banks in the state not chartered by the legislature.

775.

Majority: MARSHALL: It was impossible (as under Articles of

Confederation) to confine a government to the exercise of express powers for there must necessarily
be admitted powers by IMPLICATION, unless the Constitution descended to recount every minutiae.
Marshall relied on this LEGISLATIVE HISTORY when he upheld the power of Congress to establish
a national bank, even though such power is not expressly included in the Constitution. Marshall also
rejected the argument that the words Necessary and proper in the 10 th A. serves as a limit to the
federal governments power, and the Maryland tax was ruled unconstitutional. This endorsement of
INCIDENTAL or IMPLIED POWERS signaled a major advance for both National and Congressional
powers.
US Term Limits v. Thornton (1995): 10th Amendment, Term Limits

Arkansas voters amended the state constitution to apply term limits to federal offices. The Court overturns the
statute.

776.

Majority: STEVENS: States only have powers they had preConstitution, and that the framers intended the Constitution to be the exclusive source of qualifications
for members of Congress

777.

Concurring: KENNEDY: Federal and State Governments must BOTH

be protected from each other (contrary to McCulloch), but the term limits for federal office by state
laws steps over the line

778.

Dissent: THOMAS, REHNQUIST, OCONNOR, SCALIA: The

ultimate source of the Constitutions authority is the consent of the people of each individual State, not
the consent of the undifferentiated people of the Nation as a whole. This suggests that because the
federal government is a creature of State agreement, its powers are narrowly limited to those
enumerated in the Constitution.

150

Gibbons v. Ogden (1824): Commerce Clause, Federal v. States

Boats of other states had to pay for a NY license, which started commercial warfare between states similar to
that prior to Constitution. Was the power to require licenses for state within power of states, or did it infringe
upon COMMERCE power given to Congress?

779.

Majority: MARSHALL: The state license requirements violated the

previously dormant commerce clause of Constitution. When a State proceeds to regulate commerce
with foreign nations or other states, it is exercising a power that is granted to Congress, and is doing
the very thing Congress is authorized to do. There is no analogy, then, between the power of taxation,
and the power of regulating commerce

780.

This decision by Marshall is significant for three reasons. First,

although Marshall was a strong defender of private property and contractual rights, he advanced a
broad interpretation of the power of congress to regulate commerce. Commerce was more than
discreet transactions. Commerce was intercourse. Congress had the power to regulate economic life
in the nation to promote the FREE FLOW of INTERSTATE commerce, including actions WITHIN
state borders that interfered with the flow. Second, his decision averted potential economic warfare
among the states, which would have revived the destructive practices of before the Constitution.
Third, the decision represents one of the most articulate rebuttals of STRICT
CONSTRUCTIONISM.
US v. E.C. Knight (1895): Commerce, Anti-Trust

The Congress passes the Sherman Anti-trust laws. The Court had to determine if the Sherman act could be used
to break up the sugar monopolies

781.

Majority: FULLER: The production of sugar is MANUFACTURING,

which is not commerce. Sugar was not a direct restraint on trade, although it may secondarily affect
trade. No direct relation to interstate commerce-- no Sherman Anti-trust

782.

Dissent: HARLAN: Harlan said the monopoly had a direct effect on

interstate commerce, which became an issue in the 1896 election the court quickly retreated form
such a broad decision

151

Champion v. Ames [lottery case] (1903): Commerce

In 1895, congress passed legislation to prohibit lottery tickets from interstate or foreign commerce. Is selling of
lottery tickets subject to regulation under commerce clause? Does the power to regulate commerce include the
authority to prohibit it? May congress exercise a national police power to protect citizens from immoral
transactions, or is that responsibility reserved to the states?

783.

Majority: HARLAN: congress can PROHIBIT national and interstate

traffic of lottery tickets (commerce) even if its motivation such as morality competed with state
policing power. Each state has to evaluate evil (of lottery) on its own, and should not be polluted by
other states. 10th A. not violated b/c the ability to have lottery within the state is not prohibited.

784.

Dissent: FULLER, BREWER, SHIRAS, PECKHAM: Restraints and

burdens on persons and property in consideration and promotion public health, good order and
prosperity is a power originally belonging to the States. This decision in effect breaks down all the
difference between that which is, and that which is not, an article of commerce a long step in erasing
state lines in creation of a centralized Gov.
785.
The dissent shows amazing foresight, the commerce clause will later be
stretched for other moral policing, such as Civil Rights regulations.
Swift & Co. v. US (1905): Commerce, Current of Commerce

There was a Sherman Anti-trust injunction against a meat packing plant for restraint of trade. The cattle
apparently came to rest within the same state.

786.

Majority: HOLMES: The cattle were being sent from a place in the
state, with the expectation that they will end their transit after a purchase in another state stopping
for a time to find a buyer. This practice is constantly recurring course, the current thus existing is a
current thus existing is a CURRENT of commerce among the states, and the purchase of cattle is a part
and incident of such commerce. Animal stockyards can be regulated because they are in the
STREAM OF COMMERCE that congress could regulate
The Shreveport Rate Case (1914): Commerce, close and substantial relation

The Interstate Commerce Committee directed the railway to equalize rates between cities, both between and
within states

787.

Majority: HUGHES: authority extending to these interstate carriers as

instruments of interstate commerce, necessarily embraces the right to control their operation in all
matters having such a CLOSE AND SUBSTANTIAL relation to interstate traffic, tot he efficiency of
the interstate service but should not be used to cripple, retard, or destroy it. Wherever the
interstate and intrastate transactions are so related that the government of one involves control of the
other, Congress and not the State is entitled to prescribe the final and dominant rule.

152

Hammer v. Dagenhart (1918): Commerce, 10th Amendment

In 1916 congress passed legislation to prohibit the transportation in interstate commerce of goods made at
factory where children worked to young (or worked too often for their age).

788.

Majority: DAY: The statute is intended to stop those manufacturers

who employ children from engaging in interstate commerce. The act in its effect does not regulate
transportation among states, but aims to standardize the ages at which children may be employed in
manufacturing. The goods being shipped are harmless, unlike the decisions in the past (i.e. Lottery
tickets). There is no power vested in Congress to exercise their police power so as to prevent possible
unfair competition. This statute exceeds the power of commerce clause, and invades states
responsibilities.

789.

Dissent: HOLMES (with 3 others): The statute confines itself to

prohibiting interstate commerce which is allowed. The act does not meddle with anything belonging
to the States. They may regulate their internal affairs and their domestic commerce as they like. But
when they seek to send their products across the state line they are no longer within their rights. If
there was no Congress and no Constitution, it would be up to the neighboring states, but under
Constitution, Congress can regulate. Congress may carry out its views of public policy whatever
indirect effect they may have upon the activities of states.
NLRB v. Jones & Laughlin (1937) Commerce Clause, New Deal legislation

In 1935, Congress passed the National Labor Relations Act, concluding that labor disputes had a direct burden
on interstate commerce, and could therefore be regulated under the commerce clause. Congress relied on the
close and substantial relationship of act wholly with in the state to interstate commerce to control those also.
In the 1936 election, Roosevelt would pack the court to pass New Deal legislation, but in this case, Hughes and
Roberts supported the 3 liberals (Brandeis, Cordozo, Stone) in allowing the NLRB

790.

Majority: HUGHES: The court accepted Congresss argument that

labor disputes directly burdened or obstructed interstate and foreign commerce and could be regulated
under the COMMERCE clause. The National Labor Relations Act gave employees in industry the
fundamental right to organize and engage in collective bargaining, and any intrastate commerce with a
CLOSE and SUBSTANTIAL to interstate commerce could be regulated. The Court allowed Congress
to give the NLRB power to prohibit unfair labor practice effecting commerce

791.

Dissent: McREYNOLDS, VAN DEVANTER, SUTHERLAND,

BUTLER: The close and substantial as well as the stream of commerce test step over he
constitutional bounds of Commerce Clause. Also, people have the right to contract with whomever
they want, and to freely select those who work for him, which the right to collective bargaining would
take away.

153

US v. Darby (1941): Commerce Clause, Child Labor, Manufacturing

The Fair Labor Standards Act of 1938 provided for minimum wages and maximum hours for employees
engaged in production of goods for interstate commerce. The statute forced the Court to rethink its doctrine on
manufacture. If manufacture is not in itself interstate commerce, would the shipment of manufactured goods
to other states bring it within the authority of Congress to regulate? The statute, also included Child Labor laws,
so the court had to revisit Hammer v. Dagenhart. The composition of the court has drastically changed and
Hammer is overturned.

792.

Majority: STONE: The power over interstate commerce is complete in

itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed
in the constitution. (Language borrowed from Gibbons v. Ogden.) The power can neither be enlarged
nor diminished by the exercise or non-exercise of state power. This answers Hammer, which said that
the product being shipped must be harmful or the any shipment of product prohibited.
Heart of Atlanta Motel (1964): Commerce Clause, Civil Rights Act 1964

Title II of Civil Rights Ac prohibits racial discrimination in places of public accommodation affecting interstate
commerce. The act covered inns, hotels, restaurants, cafeterias and movie theaters. The motel limited its
clientele to white persons, and claimed the act exceeded the power of Congress

793.

Majority: CLARK: The hotel advertised on Interstate highways, known

to have interstate travelers on it. Also, 75% of clientele were from out of state. The Court also
reaffirms McCulloch stating that Congress could regulate intrastate commerce that has an effect on
interstate commerce.
Katzenbach v. McClung (1964): Commerce Clause, Civil Rights Act 1964

Another Civil Rights case, a BBQ joint in Alabama, locate near an interstate was on trial for not serving blacks.
The argument was made that food was bought from other cities, as well as the effect on blacks attempting
interstate travel.

794.

Majority: CLARK: discrimination in restaurants had a direct and

highly restrictive effect upon interstate travel by Negroes. He said Negroes had a right to prepared
food while traveling, or interstate travel was obstructed. Also, the amount of food purchased was still
not significant to the meat industry (following Wickard v. Filburn), it was a substantial part of this
BBQ.

795.

Concurring: BLACK: recognized that some isolated and remote

lunchroom which sells to local people and buys supplies locally may be out of reach of the power of
congress to regulate commerce.

154

US v. Lopez (1995): Commerce Clause, Guns in school zone

Lopez, a senior in high school brought a gun into a school zone, violating the Gun-Free school zone Act of
1990. The court, 5-4 rejects the Gun-Free act is authorized by commerce clause

796.

Majority: RHENQUIST: Commerce clause must be considered in the

light of our dual system of government and may not be extended so as to embrace effects upon
interstate commerce so indirect and remote to embrace them Rehnquist set up the three broad
categories of activities Congress could regulate under the commerce clause. 1) Use of channels of
interstate commerce (Darby, Heart of Atlanta) 2) regulate and protect instrumentalities of interstate
commerce, even though the threat is from intrastate activities (Shreveport Rate) 3) Those activities
with a substantial relation to interstate commerce (Jones & Laughlin). "Guns in school zones" does
not have this affect.

797.

Concurring: KENNEDY, OCONNOR: This is a criminal statute, and

the conduct of the actors is not commercial. Also, stresses the importance of Federal v. State interests
as a fundamental concept to framers of Constitution.

798.

Concurring: THOMAS: Thomas argues for a strict definition of

commerce as the was intended at writing. He talks of the problems of giving commerce a
definition to accommodate modern advances. Thomas would not apply commerce to manufacturing or
agriculture.

799.

Dissent: BREYER, STEVENS, SOUTER, GINSBURG: when

determining a significant (substantial not broad enough) affect on interstate, do not consider single
act, consider all similar acts. Also, Congress should determine if commerce clause is reasonably
applied, and should be given lead way. The opinion claims that the majority opinion runs contrary to
previous Supreme Court decisions (Perez, McClung). Also, the opinion points out the legal uncertainty
of the hundreds of (criminal) statutes Congress has passed relying on the commerce clause.

155

South Dakota v. Dole (1987): Commerce Clause, 21st Amendment

Congress passed legislation in 1984 directing the Sec. of Transportation to withhold a percentage of federal
highway funds from states that refuse to adopt age twenty-one as the minimum drinking age. An issue before
the Court was the extent to which congress can use its spending power, and more particularly conditions
attached to federal funds, to achieve national objectives

800.

Majority: REHNQUIST: The exercise of spending power must be in

pursuit of the general welfare of the country. Second, if the congress wants to condition the receipt
of federal funds, it must do so unambiguously enabling the states to exercise their choice
knowingly. Third, must be a federal interest. (There are also other constitutional bars to conditioned
grants). This bill is directly related to main purpose of SAFE interstate travel. While congress can not
pass the point where pressure turn into compulsion, this case only calls for a state to lose a relatively
small percentage of certain highway funds.

801.

Dissent: BRENNAN: the minimum age of liquor is power given to

states in 21st A.

802.

Dissent: OCONNOR: 21st A. argument, and also, the drinking age is

not closely related to the construction oh highways
Missouri v. Holland (1920): 10th Amendment

1916 treaty between US and Great Britain, preventing the killing and capturing of migratory birds. Missouri
sued on grounds of 10th Amendment

803.

Majority: HOLMES: 10th A. as merely declaratory of a general

relationship between federal Gov. and states. The 10 th A. does not restrict the treaty power in any way,
treaty power not restricted by some invisible radiation from the general terms of the 10th Amendment
Katzenbach v. Morgan (S.Car.) (1966): 14th A., Due Process, Literacy to Vote

At issue is an act that provides that no person who had completed the sixth grade in school in Puerto Rico who
could not read English could be denied the right to vote. This act was aimed at stopping NY city from using the
state literacy test to stop Puerto Ricans from voting

804.

Majority: BRENNAN: The right to vote is essential to protecting other

rights. This enhanced political power will be helpful in gaining nondiscriminatory treatment in public
services for the entire Puerto Rican community. Congress can expand rights found by court, but can
not restrict rights one way ratchet test. (Note from Katzenbach v. S. Carolina:) The enforcement
clause of the 15th A. gave Congress "full remedial powers" to prevent racial discrimination in voting,
the Act was a "legitimate response" to the "insidious and pervasive evil" which had denied blacks the
right to vote since the 15th A.s adoption in 1870.

805.

Dissent: HARLAN, STEWART: In view of this Courts holding in

Lassiter that an English literacy test is a permissible exercise of state supervision over its franchise, I
do not think it is open to Congress to limit the effect of that decision as it has undertaken to do.
Basically, Lassiter says it is up to States to decide on literacy tests, and within their power, so why can
Congress now have the power to limit that?
Boerne City v. Flores (1997): 1st A. Free exercise v. 14th A. Legislative authority

156

In 1990 (Employment Div, DHR v. Smith), a closely divided court held that in the context of criminal statutes, a
regulation of conduct that is neutral on its face that incidentally inhibits a religious practice is not subject to a
stringent constitutional standard (under 1st A.). Congress responded in 1993 (under Morgan power of remedial
interpretation) with the Religious Freedom Restoration Act (RFRA). Under RFRA, facially neutral laws that
substantially burden a persons exercise of religion are legal only if the Government demonstrates that
application of the burden to the person is in furtherance of a compelling governmental interest. Congress
relied on the power of the FREE EXERCISE CLAUSE of the 14th A.

806.

Majority: KENNEDY: The Court declared the RFRA unconstitutional,

and says that the power of FREE EXERCISE extend only to enforcing the provisions of the 14 th A.
The Court has described this power as remedial (South Carolina v. Katzenbach), as opposed to the
substantive authority of the 14th A. Legislation which alters the meaning of Free Exercise Clause
cannot be said to be enforcing the Clause.

807.

Dissent: OCONNOR, BREYER, SOUTER: All agree that RFRA is

unconstitutional under Smith, and argue for Smith to be reconsidered.
Jones v. Mayer Co. (1968): 13th Amendment, Equal Housing

Jones, black, says Mayer refused to sell him a home because of race. He relied on 42 USC 1982, which
provides that all citizens shall have the same right, in every state as is enjoyed by white citizens. There was a
question if that applied to private people or just to the States.

808.

Majority: STEWART: The 13th A. allowed the court to pass the 1866
legislation that prohibited racially motivated refusals to sell or rent property. The 13 th A. forbade not
only slavery, but also the badges and incidents of slavery. Congress may prohibit both state action
and private action that restrict the right of blacks to purchase, lease, and use property. (a year later the
court would say that questions of fair housing may not be put up for a vote of approval.)

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Garcia v. San Antonio Metro Transit Auth. (1985) 10th A., Federalism

The Federalism doctrine of Nat. League of Cities v. Usery (1976) rested on a narrow 5-4 decision, with
BLACKMUN supplying the 5th vote. The doctrine was the first to halt the trend of a stronger national
government. Through the use of the commerce clause, and tried to distinguish between TRADITIONAL and
NONTRADITIONAL government functions, which cause confusion in the courts. Now, ten years later,
BLACKMUN changes his mind, and decides the doctrine is unworkable and inconsistent with the
established principles of FEDERALISM. By switching sides, the doctrine was overturned by another 5-4 vote.
This case deals with the Fair Labor Standards Act, because SAMTA was not in compliance.

809.

Majority: BLACKMUN: the opinion points to the difficulty lower

courts have had in deciding what is TRADITIONAL and NONTRADITIONAL functions of
Government. Blackmun decided that the protection of FEDERALISM should be left to the political
process of Congress

810.

Dissent: REHNQUIST, OCONNOR, POWELL, BURGER: The sharp

dissents imply that, in time, they may form a new majority and overturn Garcia.

811.

Since Garcia, Rehnquist has been elevated to Chief Justice, and Scalia,
Kennedy, Souter, Thomas and Ginsburg have been added to the court. The numbers to overturn
Garcia are apparently there, but reversing Garcia and reviving National League would only highlight
the political nature of the Court, giving the public a clear view the Courts reading of the Constitution
is little more than the temporary reflections of who sits on the court at any particular time. Despite the
return to favoring the Federal Gov., the previously forgotten about 10 th A. is still used to protect states
rights.
New York v. United States (1992): 10th Amendment, Supremacy Clause

In 1985, Congress passed a statute designed to force states to find disposal sites for low-level radioactive waste.
At question was a portion of the statute forcing the state to take possession of the waste if they failed to discover
other solutions

812.

Majority: (6-3) OCONNOR: The statute was an invalid effort by

Congress to commandeer the states legislative process and thus inconsistent with the 10 th A. The
Court said that states are not mere political sub-divisions of the United States, nor are state
governments regional offices or administrative agencies of the federal gov.

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Printz v. United States (1997): 10th A., Commerce Clause, Original Intent

This case involves a provision in the Brady Act of 1993, which restricts the ability to buy a gun. Under the Act,
state Chief Law Enforcement Officers (CLEOs) are forced to do background tests on gun buyers. Three CLEOs
challenged the statute, claiming that congressional action compelling state officers to execute federal laws is
unconstitutional. The court struck down the provision of the statute in a 5-4 vote. More important than the
decision is the debate over the ORIGINAL INTENT of the framers of the Constitution. Both sides rely on their
interpretations of the Federalist Papers, and both claim to be following the original intent of the founders.

813.

Majority: SCALIA: the conclusion follows New York v. US, and says,
The Federal Gov. may not compel the States to enact or administer a federal regulatory program, and
that the mandatory obligation imposed on CLEOs runs afoul of that rule. Scalia relies on Federalist
No. 27, 39, 51, 33. Scalia also feels that the necessary and proper clause is answered in New York,
saying that the COMMERCE CLAUSE authorizes Congress to regulate interstate commerce directly,
it does not authorize Congress to regulate the state gov. regulation of interstate commerce. (Congress
can do it, but cant make the States do it!)

814.

Dissent: STEVENS, SOUTER, GINSBURG, BREYER: Stevens

asserts that the Founders intended to enhance the capacity of the Fed. Gov. by empowering it as part
of the new authority to make demands directly on individual citizens to act through local officials.
Stevens says, There is not a clause, sentence, or paragraph in the Constitution that supports the
proposition that a local police officer can ignore a command contained in a statute enacted by Congress
pursuant to an express delegation of power in enumerated in Article 1. The dissent refers to Federalist
No. 27, 36, 45, 44 to show ORIGINAL INTENT. The dissent also says that the majority view would
undermine most of the post-New Deal COMMERCE CLAUSE decisions

159

Cooley v. Board of Wardens (1852): Federalism, Concurrent Powers

A Pennsylvania State law provided that all ships of a certain type that came into port needed to employ a pilot
for safety. All ships that didnt would need to pay a fee. Cooley argued that the state law was a regulation of
Foreign Commerce, and an act solely within the authority of congress, which had passed regulating legislation
on 1789. The question is one of CONCURRENT Jurisdiction, the Court, now under TANEY, moved away
form the broad nationalistic interpretations of the Marshall court.

815.

Majority: CURTIS: The court distinguished the fees of the statute

from the imposts and duties on foreign vessels forbidden by Article 1, section 10. The regulation of
foreign commerce was not an exclusive power of Congress. States could exercise CONCUURENT
jurisdiction over portions of power, especially when invited by congress.

816.

Later, the court would devise a Dual Federalism saying that the
powers of the Nat. Gov. and the State where mutually exclusive. The Supreme Court then said that
the Nat. Gov. interests over Commerce appeared to override the state police powers and local
operation, but then upheld legislation intended to over-ride the Courts decision. The subsequent
history sounds confusing, but it is important to show the significance of the dormant Commerce
Clause, which is better explained in the next case, Philadelphia v. New Jersey.
City of Philadelphia v. New Jersey (1978): Dormant Commerce Clause

A New Jersey law prohibited most solid or liquid waste which originated or was collected outside the
territorial limits of the State. Private landfill operators challenged the statute on preemption and DORMANT
COMMERCE CLAUSE grounds. The Dormant Commerce Clause principal states that in cases when Congress
does not exercise its commerce power, and the authority is considered silent or dormant. In such situations,
the Court may decide that a state action is forbidden by the Commerce Clause, which is the case here.
However, if Congress then enacts legislation to permit the state action, the court will acquiesce to the
congressional policy.

817.

Majority: STEWART: The Court accepted that the purpose of the

statute was to deal with nearly full landfills. However, the Court said that the purpose may not be
accomplished by discriminating against articles of commerce from outside the state unless there is a
reason, apart from their origin, to treat them differently. The Court said that New Jersey could stop
ALL waste form going into the landfills, but the State is without power to prevent privately owned
articles owned articles of trade from being shipped and sold in interstate commerce on the ground they
are required to satisfy local demand, or because they are needed by the people of the state.

818.

Dissent: REHNQUIST, BURGER: The dissent focuses on the danger

of waste, instead of the commerce issue. Rehnquist treats the law as a quarantine law, and says the
Commerce clause was not intended to put the states in the no win situation of not being able to put its
own waste in landfills, as the majority suggests.

160

Kassel v. Consolidated Freightways Corp. (1981): Safety v. Commerce

Consolidated, a large common carrier, argues that an Iowa law restricting the length and size of Trucks on
interstates is an Unconstitutional burden on INTERSTATE COMMERCE. Iowa contends that the law is valid
because it is based on safety justifications. The court ruled the statue unconstitutional (6-3)

819.

Majority: POWELL: State regulations on SAFETY, and especially

highway safety, if not illusory will not be second-guessed in comparison with burdens on Interstate
Commerce. Those who challenge such bona fide safety regulations must overcome a strong
presumption of validity. However, the incantation of a purpose to promote public health or safety
does not insulate a state law from Commerce Clause Attack. There must be a sensitive consideration
of the weight and nature of the state regulatory concern in light of the burden on interstate commerce.

820.

Dissent: REHNQUIST, BURGER, STEWART: Again, appearing to

look past the commerce clause to the specific issue: The result in this case suggests, that the only state
truck length law that is valid is one which this court has not been able to get its hands on. The dissent
is a strong support for States power.
West Lynn Creamery, Inc. v. Healy (1994): Interstate Commerce

Massachusetts imposed a nondiscriminatory tax on wholesale milk, but coupled the tax with a subsidy to Mass.
dairy farmers that was greater than the tax. The Court declared the tax and subsidy a burden interstate
commerce.

821.

Majority: STEVENS: This tax and subsidy has same effect as a tariff,
which makes out of state milk more expensive. The tax alone is constitutional, However, when a
nondiscriminatory tax is coupled with a subsidy to one of the groups hurt by the tax, a states political
process can no longer be relied upon to prevent legislative abuse, because one of the in-state interests
which would otherwise lobby against the tax has been mollified by the subsidy.

822.

Dissent: REHNQUIST, BLACKMUN: did not like defense of Dormant

Commerce Clause based on interest group alignment
Corfield v. Coryell (1823): Privilege and Immunity Clause

New Jersey passed a law saying only citizens could clam in state waters. WASHINGTON, a federal circuit
judge, dismissed the claim for Immunities. Basically, States can not deny citizens of other states the
Fundamental rights that belong to all citizens of all free governments. ** Among these rights are the right of a
citizen of one state to pass through, or to reside in any other state, for the purposes of trade, agriculture,
professional pursuits, or otherwise; the right to take, hold, and dispose of property, either real or personal; and
an exemption from higher taxes or impositions than are paid by other citizens of the state.

161

United Bldg. v. Camden (1984) Privilege & Immunity v. Commerce Clause

A Camden ordinance required that 40% of employees of contractors working on city construction projects. The
State tried to argue that the Privileges & Immunities clause only effects STATES, and not CITIES. The Court
rejects such a literal interpretation, but explains the difference between the P & I and the Commerce clause.

823.

Majority: REHNQUIST: There is no difference between the States

infringement on P & I and a citys infringement. The court must determine if the right to work on
public works projects is fundamental. The Commerce Clause allows the state to favor its own
citizens, but the Commerce Clause only relates to when there is a conflict between federal and state
regulations. The PRIVILEGE and IMMUNITIES clause imposes a direct restraint on state action in
the interests of interstate harmony.

824.

Dissent: BLACKMUN: distinction between state and city is

important.
Youngstown Co. v. Sawyer (1952): Separation of Powers, Emergency power

In 1952, President Truman used the emergency power to seize steel mills to fill the needs of the Korean War.
The importance of this case is not the decision of this case. The court rejected Trumans seizure (6-3) but the
court was even more divided on the use of an emergency power. 4 concurrences and 3 dissents recognized that
implied emergency powers might have to be invoked.

825.

Majority: BLACK, DOUGLAS: Only Black, who wrote the opinion,

and Douglas advocated a doctrine of express and enumerated powers, and rejected emergency power.

826.

Concurring: JACKSON: Jacksons opinion is significant because it

developed a theory of three scenarios of invoking emergency power. The highest level is when the
President acts pursuant to congressional authorization. The lowest level is when the President takes
measures incompatible with Congress. In between those categories lay a zone of twilight in which
Congress neither grants or denies in that case, congressional inertia, indifference or quiescence may
sometimes, at least in a practical matter, enable, if not invite, measures of independent presidential
responsibility.
US v. Curtiss-Wright Corp. (1936) Separation of Power, External v. Internal

In 1934, Congress authorized the President to place an embargo on sale of arms and munitions against countries
engaged in armed conflict, clearly a LEGISLATIVE power. The court upheld the statute partly on the
distinction drawn between external and internal affairs.

827.

Majority: SUTHERLAND: Legislation over the international field

must often accord to the President greater discretion than would be admissible for domestic affairs.
Sutherland included a lot of Dicta to describe far-reaching dimensions of executive power in foreign
affairs. He assigned the president a number of powers not found in Constitution. Curtiss-Wright is
cited frequently to justify broad grants of legislative power to the President and also to exercise
inherent, extra constitutional powers.

828.

This issue resurfaced when Congress investigated Iran Contra. The

majority rejected the position that the Reagan administration was justified based on Curtiss.
Dames & Moore v. Regan (1981): Implicit powers

When Iran tool hostages, President Carter declared an emergency and blocked the removal and transfer of all
Iranian property subject to Jurisdiction of the US. Then Carter agreed to suspend all claims pending in
American courts. In this case, a private party seeks to prevent enforcement of various executive orders. The
opinion Court demonstrates how POLITICS effects the Court.

829.

Majority: REHNQUIST: Although the Supreme found no specific

authority for the suspensions of claims, legal justifications were discovered somewhere in the
combination of past presidential practices to settle claims by executive agreement, the history of
implicit congressional approval, and the failure of congress to contest the Iranian agreement. The

162

Court, straining to uphold an agreement it could not possibly overturn, limited the reach of its opinion
by confining it to the specific circumstances in the case.
Korematsu v. United States (1944): Emergency Executive Order

During WWII, Roosevelt issued an executive order issuing a curfew and the exclusion of Japanese-Americans
from West Coast military areas. Exclusion meant the placement in imprisonment camps. The order, and later a
congressional statute, was aimed at US Citizens of Japanese dissent, and was based on the belief that the
Japanese are subversive and an enemy race. A unanimous Court upheld the curfew, although MURPHY
remarked that it bears a melancholy resemblance to the treatment accorded to the members of the Jewish race
in Germany and in other parts of Europe. The court upheld the imprisonment camps by a vote (6-3), with sharp
dissents.

830.

Majority: BLACK: Nothing short of apprehension of the gravest

imminent danger to the public safety can constitutionally justify either (the curfew or exclusion). The
military authorities considered that the need was for action was great, and time was short. We cannot
by availing ourselves of the calm perspective of hindsight now say that at the time these actions were
unjustified.

831.

Dissent: MURPHY, ROBERTS: The discretion of military must have

limits, especially when there is not a state of martial law. There was no immediate, imminent, and
impending public danger to justify such racial discrimination.
United States v. Nixon (1974): Executive Privilege

The Special Prosecutor investigating the Watergate affair filed a motion for a subpoena to produce certain tapes
and documents relating to conversations with President Nixon. Nixon claimed EXECUTIVE PIVILEGE,
stating that he should have be able to shield documents that would injure the public, as George Washington
suggested would be appropriate.

832.

Majority: BURGER: A unanimous Court rejected the argument that the

decision to release such documents is up to the President, not the courts. To permit Nixon absolute
control over the documents would have prevented the judiciary from carrying out its duties.

163

Clinton v. Jones (1997): Separation of Powers, Presidential Immunity

A unanimous court rejected President Clintons claim that Fitzgerald immunity could be invoked for claims that
arose before President took office. Jones alleged that the then Governor sexually harassed her. The President
said that the uniqueness of his office demands that he be free of damage law suits while sitting.

833.

Majority: STEVENS: The litigation of questions that relate entirely to

the unofficial conduct of the individual who happens to be the President poses no perceptible risk of
misallocation of either judicial power or executive power. In sum, it is settled that the separation-ofpowers doctrine does not bar every exercise of jurisdiction over the President of the United States
(from Fitzgerald). Ironically, Stevens found little reason to believe that the lawsuit, and the prospect
of similar ones in the future, would actually distract the President.
Mistretta v. United States (1989) Non delegation of Congressional Power

Congress gave a Sentencing Commission the power to help set sentencing guidelines, which was challenged on
the grounds the nondelegation principle (that Congress can not delegate its power to legislate. However, that
argument was rejected because Congress ordered the commission to set standards based on the current codes,
and clearly stated the objectives of Congress. It appears as if the Court wanted to reject the commission, but
could not find a way to give teeth (Scalia) to the nondelegation doctrine

834.

Majority: BLACKMUN: The earlier cases invoking the nondelegation

doctrine would be narrowly read to apply only in cases where congress made crimes of acts never
before criminalized or delegated regulatory power to private individuals. In recent years, the
application has been limited to the interpretation of statutory delegations that might otherwise be
thought unconstitutional.
INS v. Chadha (1983): Legislative Veto

Congress authorized the Attorney General to suspend the deportation of aliens, subject to disapproval from one
of the Houses of Congress. The Supreme Court held oral arguments twice, and under rare circumstance,
representative from the House and Senate participated in the argument.

835.

Majority: BURGER: The Court held all legislative vetoes were

unconstitutional because they violated the PRESENTMENT Clause. In addition, the one-House veto
was unconstitutional because it violated the principle of bicameralism (which requires action by both
Houses). Whenever congressional action has the purpose and effect of altering the legal rights, duties
and relations of persons outside the legislative branch, Congress must act through both Houses in a
bill presented to the President.

164

Clinton v. City of New York (1998): Separation of Powers, Line Item Veto

This case consolidates two separate challenges to the constitutionality of two cancellations, made by President
Clinton, under the Line Item Veto Act. The issue is whether the President's ability to selectively cancel
individual portions of bills, under the Line Item Veto Act, violates the Presentment Clause of Article I.

836.

Majority: STEVENS: The challengers suffered sufficiently immediate

and concrete injuries to sustain their standing to challenge the President's actions. The Court then
explained that under the PRESENTMENT Clause, legislation that passes both Houses of Congress
must either be entirely approved or rejected by the President. The Court held that by canceling only
selected portions of the bills at issue, the President in effect "amended" the laws before him. Such
discretion, the Court concluded, violated the "finely wrought" legislative procedures of Article I as
envisioned by the Framers. The court believes that the act violates the LITERAL text of Constitution.

837.

Dissent: BREYER, OCONNOR, SCALIA: The literal interpretation is

wrong because Congress, by a majority, allowed the President to reject a provision, as if Congress has
placed the phrase within each and every provision. Congress can take it back with a simple majority
vote. (What would happen if one house no longer wanted it?) Second, there is a difference between a
spending provision and tax provision because it is no longer feasible for Congress pass each
provision separately.
Bowsher v. Synar: (1986): Separation of Powers

In 1985, Congress passed the Gramm-Rudman-Hollings act which stated that of the budget was not balanced by
1991, the Comptroller would order program cuts, through a sequestration process, which the President would
have to sign unchanged.

838.

Majority: BURGER: The administration claimed that Congress could

not give executive duties to a legislative officer. The Supreme Court agreed that the Comptroller
Generals sequestration duties were unconstitutional because Congress could not vest executive
functions in an officer removable by Congress.

839.

Dissent: WHITE: Considered this a response to a crisis similar to the

New Deal legislation. Urged the Court not to impose their judgement on the wisdom of a statute the
Congress and President assent too.
Morrison v. Olson (1988): Separation of Powers, Independent Counsel

Following the scandals of Watergate, Congress established an independent special prosecutor to investigate
charges against the President, Vice-President and high-level executive branch officials. Congress concluded
that the Atty. Gen. may be faced with a conflict of interests. The independent counsel is to be appointed by a
panel of federal judges, and can only be removed by the president for good cause.

840.

Majority (7-1): REHNQUIST: The Court rejected the constitutional

arguments based on: the appointment power, the removal power, the separation of powers doctrine, and
the Presidents obligation to see that the laws are faithfully executed.

841.

Dissent: SCALIA: The executive power shall be vested in the a

President of the United States (Art. II) (T)his does not mean some of the executive power, but all of
the executive power.
Northern Pipeline Co. v. Marathon (1982): Separation of powers, delegation

165

The Bankruptcy Reform Act of 1978 created a federal bankruptcy court in each district. The act had judges
elected for terms, and controlled by Congress. The Act was challenged as unconstitutional on the ground that it
conferred Article III judicial powers on judges who lacked the protection of life tenure and irreducible salaries.
The Courts opinion did not attract a majority. Brennan wrote a four-justice plurality. Rehnquist and OConnor
concurred with Brennan, but on narrower grounds. White, Burger, and Powell dissented.

842.

Majority: BRENNAN: The Court declared the bankruptcy courts to be

legislative courts. The Court denied that Congress could create specialized courts to carry out one if
its Article I powers. Although Congress had power to create uniform law on Bankruptcy, this authority
did not permit Congress to rely on a non-Art. III court. Such reasoning threatens to supplant
completely our system of adjudication in independent Art. III tribunals and replace it with a system of
specialized legislative courts. The Court concluded that the Act had removed essential attributes of
judicial power form Art. III courts and gave them to Non-Art. III courts.
Commodity Futures T.C. v. Schor (1986): Separation of Power, delegation

The Commodity Exchange Act authorized CFTC to entertain state law counterclaims in adjudicatory
proceedings in which disgruntled customers sought compensation from professional commodity brokers for the
violation of statute

843.

Majority: OCONNOR: Upheld the Act, insisting that the Court would
not adopt formalistic and unbending rules that might also unduly constrict Congress ability to take
needed innovative action pursuant to Art. I powers. The turning point seemed to be that unlike the
Bankruptcy Reform Act, CTFC orders are only enforceable by order of the district court.
Ex Parte McCardle (1869) Separation of Powers, Exceptions clause

It was suspected that the Supreme Court was going to use this opportunity to declare the Reconstruction Acts
unconstitutional. Congress had already begun the impeachment of Andrew Johnson for his opposition to the
Reconstruction Acts. To prevent the decision on the Reconstruction Acts, Congress passed legislation to
withdraw the appellate jurisdiction of the Supreme Court in McCardles case

844.

Majority: CHASE: The Court unanimously upheld the repeal statute

and dismissed for jurisdiction. The Court was not at liberty to inquire into the motives of the
legislature. We can only examine into its power under the Constitution; and the powers to make
EXCEPTIONS to the appellate jurisdiction of this court is given by express words.
845.
Later the Court agreed that the Exceptions Clause gave Congress the
power to deny the right of appeal in a particular class of classes, but it could not withhold appellate
jurisdiction as a means to an end if the end was forbidden under the Constitution.

166

Baker v. Carr (1962): Limits on Judicial Power, Political Questions

In this case, the Supreme Court accepts jurisdiction over the apportionment of legislative seats, the Court sets
forth the criteria for determining whether a case falls within the category of a POLITICAL QUESTION

846.

Majority: BRENNAN: The court identified six criteria indicate the

kinds of questions not subject to judicial resolution: 1) A textually demonstrable constitutional
commitment of the issue to a coordinate political department. 2) A lack of judicially discoverable and
manageable standards 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 courts undertaking
independent resolution without expressing lack of the respect due coordinate branches of government.
5) An unusual need for unquestionable adherence to a political decision already made. 6) The
potentially of embarrassment from multifarious pronouncements by various departments on one
question.
Nixon v. United States (1993): Limits, Political Question

The House of Rep. impeached Walter Nixon, a federal district judge, following his federal conviction and
imprisonment for making false statements to a federal grand jury. Pursuant to Senate Rule XI, the Senate
delegated much of its role in trying the impeachment to a committee of Senators.

847.

Majority: REHNQUIST: The Court decided that the controversy was

nonjusticiable, because it involved a political question. The Court relied on the textually
demonstrable coordinate political department test, and also the no discoverable and manageable
standard to resolve it test. Article I, sec. 3 says the Senate has the sole authority to govern the
impeachment.
Raines v. Byrd (1997): Limits, Standing

Case involved a challenge to legislation authorizing a line item veto, under which the President could strike a
particular provision in tax and appropriations bills. The suit was brought by legislators who voted against the
bill and argued that it violated the PRESENTMENT clause (Art. 1 Sec. 7). The Supreme Court dismissed for
lack of standing.

848.

Majority: REHNQUIST: Existence of a controversy is a bedrock

requirement, of which standing is an element. The Court has always insisted on strict compliance
with this jurisdictional standing requirement, and the standing inquiry has been especially rigorous
when reaching the merits of the dispute would force us to decide whether an action taken by one of the
other two branches of the Fed. Gov. was unconstitutional. Stressing the overriding and time-honored
concern about keeping the Judiciarys power within its proper constitutional sphere. The Court relied
on Coleman where there was no personal injury.

849.

Dissent: STEVENS, BREYER: Breyer argued that the statute deprived

legislators of the right to vote for or against the truncated measure that survives the exercise of the
Presidents cancellation authority. Because the right to cast a vote is guaranteed by Art. I. legislators
should have standing to protest the violation of that right.

167

Allen v. Wright (1984): Limits, Standing

The IRS holds certain charitable institutions are tax-exempt, and contributions to those institutions taxdeductible. In this action, a class of Af. Am. parents alleged that the IRS was not complying with its obligation
to investigate potentially discriminatory private schools and deny tax-exempt status. The Court dismissed the
action for lack of standing.

850.

Majority: OCONNOR: The Court rejected that the class was injured
by the aid to discriminatory private schools, and also rejected the assertion that the tax exemptions
impair the ability to have segregated schools. This Court has repeatedly held that an asserted right to
have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction
on a federal court. Neither do they have standing to litigate their claim based on the stigmatizing
injury often caused by racial discrimination because the class was not personally denied equal
treatment.
Lujan v. Defenders of Wildlife (1975): Limits, Standing

The facts of this case are fairly insignificant. The important outcome of this case is the culmination of a
minimum standard for determining STANDING.

851.

Majority: SCALIA: Over the years, our cases have established that the
irreducible constitutional minimum of standing contains three elements: 1) The Plaintiff must have
suffered an injury in fact an invasion of a legally-protected interest which is (a) concrete and
particularized, and (b) actual or imminent, not conjectural or hypothetical 2) There must be a
causal connection between the injury and the conduct complained of the injury has to be fairly
traceable to the challenged action of the defendant, and not the result of the independent action of
some third party not before the court. 3) It must be likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.
Missouri v. Jenkins (II) (1990): Limit, Scope of remedy

The Kansas City School district and a class of students sued the state for allowing the District to become
rundown. The district court realigned the district as defendant and said that the district violated Brown v. Bd.
Ed. The Court ordered improvements and a tax to pay for them.

852.

Majority: WHITE: the district judge raised a local property tax, which
was too intrusive a remedy, instead the court should have enjoined the operation of the state laws that
interfered with the school districts efforts to raise taxes. Such an injunction would be proper under
Art. III and the 10th A., because the Court had repeatedly ruled that the Federal courts could issue writs
of mandamus to compel local gov. to levy taxes to support their debt obligations. However, When a
constitutional justification existed, courts had the authority to order tax increases despite statutory
limitations. The Court reasoned that "[t]o hold otherwise would fail to take account of the obligations
of local governments, under the Supremacy Clause, to fulfill the requirements that the Constitution
imposes on them."

168

Missouri v Jenkins (III) (1995): Limits Jurisdiction

The court elevated two other issues in Jenkins that were previously denied. A narrow Majority (led by
REHNQUIST) ruled that the district courts efforts to attract white students to the school district were beyond
the scope of the constitutional violation of the school district. The court remanded the issue for evaluation of the
scope of its remedial jurisdiction under Freeman v. Pitts.

Justice THOMAS said there was nothing constitutionally questionable about all black schools.

The dissenters (STEVENS, GINSBURG, BREYER, SOUTER) all say that the district court is battling centuries
of entrenched official discrimination.

*** This case is set up differently in this outline because it may require special attention. The final could compare
the social reconstruction of Brown to a parallel situation in modern times. Perhaps even saying how the role of the
Court, or more like power or prestige of the Court has changed. I will adjust this analysis after seeing how it is
approached in class.
Fletcher v. Peck (1810): Economic Liberties, Property Rights

In 1795, the Georgia State legislature passed a land grant awarding territory to four companies. The following
year, however, the legislature voided the law and declared all rights and claims under it to be invalid. In 1800,
John Peck acquired land that was part of the original legislative grant. He then sold the land to Robert Fletcher
three years later, claiming that past sales of the land had been legitimate. Fletcher argued that since the original
sale of the land had been declared invalid, Peck had no legal right to sell the land and thus committed a breach
of contract. The issue is could the contract between Fletcher and Peck be invalidated by an act of the Georgia
legislature.

853.

Majority: MARSHALL: The Court held that since the estate had been
legally "passed into the hands of a purchaser for a valuable consideration," the GA legislature could not
take away the land or invalidate the contract. The Constitution does not permit bills of attainder or ex
post facto laws, so the Court held that laws annulling contracts or grants made by previous legislative
acts were constitutionally impermissible.

169

Ogden v. Saunders (1827): Economic Liberties, Contracts Clause

Saunders, a Kentucky citizen, sued Ogden, a Louisiana citizen, on a contract which Ogden, then a citizen of
New York, had accepted in 1806. Saunders claimed that Ogden had not made payment on his obligation. Ogden
claimed bankruptcy as his defense under the New York bankruptcy law enacted in 1801. The issue is whether a
state bankruptcy law applying to contracts made after the law's passage violates the Obligation of Contracts
Clause of the Constitution?

854.

Majority: (?): No. This is not a violation of the Contracts Clause. The
state law remains controlling. The obligation of a contract made after the enactment of a bankruptcy
statute is subject to the bankruptcy statute provisions. In effect, the bankruptcy statute becomes part of
all subsequent contracts, limiting their obligation but not impairing them.

855.

Minority: MARSHALL, STORY, DUVALL: Marshalls only dissent in

a constitutional case. Argued from principal of Natural law and the words of contract clause, asserting
that the government should not be able to dictate the terms of private contracts. The right to contract is
natural right that precedes government and private law. States should however be able to affect
contract remedies. He feared that the contract clause would become inoperative.
Calder v. Bull: (1798): Economic Liberties, Ex post facto

Mr. and Mrs. Caleb Bull, the stated beneficiaries of the will of Norman Morrison, were denied an inheritance by
a Connecticut probate court. When the Bulls attempted to appeal the decision more than a year and a half later,
they found that a state law prohibited appeals not made within 18 months of the original ruling. The Bulls
persuaded the Connecticut legislature to change the restriction, which enabled them to successfully appeal the
case. Calder, the initial inheritor of Morrison's estate, took the case to the Supreme Court. The question is, was
the Connecticut legislation a violation of Art. 1, Sec. 10, of the Constitution, which prohibits ex post facto laws?

856.

Majority: CHASE: In a unanimous decision, the Court held that the

legislation was not an ex post facto law. The Court drew a distinction between criminal rights and
"private rights," arguing that restrictions against ex post facto laws were not designed to protect
citizens' contract rights. Justice Chase noted that while all ex post facto laws are retrospective, all
retrospective laws are not necessarily ex post facto. Even "vested" property rights are subject to
retroactive laws. Chase asserted that Natural Property rights can not be altered by acts of Congress,
which are not laws, because they violate vested property laws.

857.

Concurring: IREDELL: Opposes Chase by saying, the Court can not

declare a statute void because it violates principles of natural justice. Must follow Legislature.

170

The Slaughter House Cases (1873): Economic Liberties, 13th, 14th A, Monopolies

Louisiana had created a partial monopoly of the slaughtering business and gave it to one company. Competitors
argued that this created "involuntary servitude," abridged "privileges and immunities," denied "equal protection
of the laws," and deprived them of "liberty and property without due process of law." Did the creation of the
monopoly violate the Thirteenth and Fourteenth Amendments?

858.

Majority: MILLER: No. The involuntary servitude claim did not forbid
limits on the right to use one's property. The equal protection claim was misplaced since it was
established to void laws discriminating against blacks. The due process claim simply imposes the
identical requirements on the states, as the 5 th A. imposes on the national government. The Court
devoted most of its opinion to a narrow construction of the privileges and immunities clause, which
was interpreted to apply to national citizenship, not state citizenship.

859.

Dissent: FIELD, SWAYNE, BRADLEY: All grants of exclusive

privilege violates the equal pursuit of the ordinary avocations of life among citizens. The dissents
influenced future proponents of property rights and liberty of contract. The same police power would
be used to abolish the monopoly and reintroduce competition
Palko v. Connecticut (1937): Double Jeopardy, Due Process (14th A.)

Frank Palko had been charged with first-degree murder. He was convicted instead of second-degree murder and
sentenced to life imprisonment. The state of Connecticut appealed and won a new trial; this time the court found
Palko guilty of first-degree murder and sentenced him to death. Does Palko's second conviction violate the
protection against double jeopardy guaranteed by the 5th A. because this protection applies to the states by virtue
of the Fourteenth Amendment's due process clause?

860.

Majority: CARDOZO: The Supreme Court upheld Palko's second

conviction. In his majority opinion, Cardozo formulated principles that were to direct the Court's
actions for the next 3 decades. He noted that some Bill of Rights guarantees--such as freedom of
thought and speech--are fundamental, and that the 14 th A.s due process clause absorbed these
fundamental rights and applied them to the states. Protection against double jeopardy was not a
fundamental right. Palko died in Connecticut's gas chamber in April 1938.

171

Adamson v. California (1947): 5th A. not part of Due Process (14th A.)

Adamson was convicted in California of murder in the first degree. During the trial, the prosecutor, in
accordance with a California law, made comments to the jury which highlighted Adamson's decision not to
testify on his own behalf. Is a defendant's Fifth Amendment right not to bear witness against himself applicable
in state courts and protected by the 14th A.'s DUE PROCESS clause?

861.

Majority: REED: The Court found that the 14 th A.'s due process clause
did not extend to defendants a 5 th A. right not to bear witness against themselves in state courts. Citing
Palko, Justice Reed argued that the 14th A. did not extend carte blanche all of the immunities and
privileges of the Bill of Rights to individuals at the state level.

862.

Dissent: BLACK, DOUGLAS, MURPHY, RUTLEDGE: In a lengthy

dissent which included a deep investigation of the 14 th A.s history, Justice Black argued for the
absolute and complete application of the Bill of Rights to the states.
Skinner v. Oklahoma (1942): Due Process , Sterilization

Oklahoma's Criminal Sterilization Act allowed the state to sterilize a person who had been convicted three or
more times of crimes "amounting to felonies involving moral turpitude." Did the Act violate the Due Process
and Equal Protection Clauses of the 14th A.?

863.

Majority: DOUGLAS: The Court held that the Act violated the Equal
Protection Clause of the 14th A. Since some crimes such as embezzlement, punishable as felonies in
OK, were excluded from the Act's jurisdiction. Douglas reasoned that the law had laid "an unequal
hand on those who have committed intrinsically the same quality of offense." Douglas viewed
procreation as one of the fundamental rights requiring the judiciary's strict scrutiny.

864.

Concurring: STONE: The State could, after appropriate inquiry,

sterilize someone to prevent the transmission by inheritance of his socially injurious tendencies.

865.

Concurring: JACKSON: There are limits to the extent that legislatures

may conduct biological experiments at the expense of the dignity and personality and natural powers
of a minority even those who have been guilty of what the majority defines as crimes. Jacksons
reservations have been underscored by more recent cases involving rights of MARRIAGE, FAMILY,
and PRIVACY.

172

Lochner v. New York (1905): Substantive Due Process , Freedom to Contract

NY passed laws prohibiting employees from working over 60 hours in 10 days. Designed to protect workers
threatened by health and safety. This is a case where the power of the state to regulate economic activity
conflicts with the liberty protected by the 14th A. to contract without unreasonable interference by the state.

866.

Majority: PECKHAM: Laissez-faire rigidity He found no

reasonable grounds to interfere with the liberty of a person to contract for as many hours as desired.
The statute seemed to serve no purpose in safeguarding public health or the health of the worker. Such
laws were mere meddlesome interferences with the rights of an individual to enter into contracts.

867.

Dissent: HOLMES, HARLAN, WHITE, DAY: The majority

interpreted police power generously to support economic regulation. Holmes accused the majority of
deciding upon an economic theory which a large part of the country does not entertain. He said the
Constitution is not intended to embody a particular economic theory, whether of paternalism and the
organic relation of the citizen to the state or of laissez faire. However, laissez faire did not mean free
market. Corporations were busily involved in forming pools, trusts, community of interests, and
other devices to protect themselves form competition.
868.
It is interesting to see how the laissez-faire attitude of the Court is
changed by the New Deal legislation.
Bailey v. Alabama (1910): 13th A., Race Discrimination

Bailey contracted to work on a farm for a year at $12 a month. He quit after a month and did not return $15
advanced to him. Under Alabama law, Bailey's act was criminal. He was sentenced to 136 hours of hard labor
under the Alabama peonage law. Did the Alabama law violate involuntary servitude of the 13th A.?

869.

Majority: HUGHES: The Court, argued that the law was a restriction
on personal rights. Judged by its effect and not by its pretense, the law violated the 13 th A. Involuntary
servitude meant more than slavery. The state may impose involuntary servitude as a punishment for
crime, but it may not compel one man to labor for another in payment of a debt, by punishing him as a
criminal if he does not perform the service or pay the debt.

870.

Dissent: HOLMES, LURTON: Breach of a legal contract without

excuse is wrong conduct, even if the contract is for labor; and if a state adds to civil liability a criminal
liability to fine, it simply intensifies the legal motive for doing right; it does not make the laborer a
slave.

173

West Coast Hotel v. Parrish (1937): 5th, 14th A., Freedom to Contract

This case overruled the doctrine that courts can second guess legislative judgements about the statutes
governing wages, hours, and other working conditions. This case rejects the notion of liberty of contract.
This issue in this case is did the minimum wage law violate the liberty of contract as construed under the Fifth
Amendment as applied by the Fourteenth Amendment?

871.

Majority: HUGHES: The Court noted that the Constitution did not
speak of the freedom of contract and that liberty was subject to the restraints of due process. The Court
also noted that employers and employees were not equally "free" in negotiating contracts, since
employees often were constrained by practical and economic realities. This was found to be especially
true in the case of women.

872.

Dissent: SUTHERLAND, VAN DEVANTER, MCREYNOLDS,

BUTLER: The decisions of the Supreme Court should not be reconsidered because of economic
conditions: the meaning of the Constitution does not change with the ebb and flow of economic
events.

873.

JUSTICE ROBERTS, who had been in the majority establishing

freedom of contract, changed his mind to overrule the doctrine. Since the case was decided only two
months after FDR unveiled his Court packing plan, much has been made of Roberts switch in time
that saved nine. Both liberal and conservatives welcomed the decision, because it preserved the
independence and prestige of the Court, which would have been threatened by FDRs plan. By 1941,
the Court had been radically altered, as Reed, Murphy, and Black replaced Sutherland, Van Devanter,
and Butler.
Williamson v. Lee Optical (1955): 14th A., Due Process, Judicial Power

An Oklahoma law prohibited persons who were not licensed optometrists or ophthalmologists to fit lenses for
eyeglasses. Non-licensed individuals were also prohibited from duplicating optical instruments without written
prescriptions from licensed ophthalmologists. Did the Oklahoma law violate the Due Process Clause of the
Fourteenth Amendment?

874.

Majority: DOUGLAS: In a unanimous decision, the Court held that

while the law may have been "needless" and "wasteful," it was the duty of the legislature, not the
courts, "to balance the advantages and disadvantages of the new requirement." The Court emphasized
that "[t]he day is gone when this Court uses the Due Process Clause of the 14th A. to strike down state
laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or
out of harmony with a particular school of thought."

174

Meyer v. Nebraska (1923): 14th A., Due Process, Privacy

Nebraska, along with other states, prohibited the teaching of modern foreign languages to grade school children.
Meyer, who taught German in a Lutheran school, was convicted under this law. Does the Nebraska statute
violate the 14th A.s Due Process clause?

875.

Majority: McREYNOLDS: Yes, the Nebraska law is unconstitutional.

Nebraska violated the liberty protected by due process of the 14 th A. Liberty means more than freedom
from bodily restraint. State regulation of liberty must be reasonably related to a proper state objective.
The legislature's view of reasonableness was subject to supervision by the courts. The legislative
purpose of the law was to promote assimilation and civic development. But these purposes were not
adequate to justify interfering with Meyer's liberty to teach or the liberty of parents to employ him
during a "time of peace and domestic tranquillity."

876.

Dissent: HOLMES, SUTHERLAND: N/A, but peculiar alliance

Poe v. Ullman (1961): 14th A., Due Process, Individual Rights, Ripeness

An old Connecticut law prohibited the use of contraceptive devices and the giving of medical advice in the use
of those devices. The law also applied to married couples. The Conn. Atty. Gen. threatened to enforce the law
against three individuals in this case including Jane Doe (Doe v. Pullman). Mrs. Doe, having recovered from a
tough pregnancy that threatened her life and left her with several emotional and physical disabilities, was
informed by her physician that any additional pregnancies could be fatal. She challenged the Connecticut law
since it criminalized her use of contraceptives.

877.

Majority: FRANKFURTER: The court sidestepped the issue for

ripeness, which is a term that means the case was brought too early, or because not all avenues of
relief have been explored. The Court said that the record suggested that the sate was unlikely to
prosecute the offenders, and the Court lacks the jurisdiction to decide hypothetical cases. Since the
statute had been on the state's books for over three-quarters of a century without ever having been
enforced, the Court found no sense of "immediacy which is an indispensable condition of
constitutional adjudication."

878.

Dissent: BLACK, DOUGLAS, HARLAN, STEWART: There are two

issue here, whether the Court should decide the issue of the Constitutional effect on birth control and
privacy, and what the decision of the Court should be. While some justices made their point of view
clear, others were not so clear.

175

Griswold v. Connecticut (1965): 14th, 1st, 3rd, 4th, 5th, 9th A., Privacy

Griswold was the Ex. Dir. of the Planned Parenthood League of Conn. Both she and the Medical Director for
the League gave information, instruction, and other medical advice to married couples concerning birth control.
Griswold and her colleague were convicted under a Conn. law that criminalized the provision of counseling and
other medical treatment, to married persons for purposes of preventing conception. Does the Constitution
protect the right of marital privacy against state restrictions on a couple's ability to be counseled in the use of
contraceptives?

879.

Majority: DOUGLAS: The Court held that the law violated the Due
Process Clause of the 14th A.; Emanations and penumbras from the 1 st A. (including association
and privacy); and other privacy values derived from the 3 rd, 4th, 5th, and 9th A. Goldberg, Warren, and
Brennan primarily relied on the 9th A.

880.

Dissent: BLACK, STEWART: Evil qualities of the law do not make it

unconstitutional. There is no specific prohibition on Gov. not to invade privacy. It is not the Courts
job to change the Constitution.
Roe v. Wade (1973): Privacy, Abortion (9th, 14th A.)

Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law prohibited abortions except to
save the pregnant woman's life. After granting cert., the Court heard arguments twice. The first time, Roe's
attorney, Sarah Weddington, could not locate the constitutional hook of her argument for Justice Stewart. Her
opponent, Jay Floyd, misfired from the start. Weddington sharpened her constitutional argument in the second
round. Her new opponent, Robert Flowers, came under strong questioning from Justices Stewart and Marshall.
Does the Constitution embrace a woman's right to terminate her pregnancy by abortion?

881.

Majority: BLACKMUN, The Court held that a woman's right to an

abortion fell within the right to privacy (recognized in Griswold) protected by the 14 th A. the decision
gave a woman total autonomy over the pregnancy during the first trimester and defined different levels
of state interest for the second and third trimesters. As a result, the laws of 46 states were affected by
the Court's ruling. [The Court's majority opinion received sharp criticism from all quarters on the
ground that it was not a constitutional decision. In a 1993 interview, the Blackmun sought to convince
the public, if not his critics, that he was on firm constitutional ground.]

882.

Dissent: REHNQUIST, WHITE: The Court simply fashions and

announces a new constitutional right for pregnant mothers with scarcely any reason or authority for
its action. The Court apparently values the convenience of the pregnant mother more than continued
existence and development the life or potential life that she carries.
883.
GINSBURG, in an address in 1993, wrote that the Court should have
just overturned the statute without going further. Then the debate would have been reduced, and the
legislature would still be in control of the political question.

176

Planned Parenthood v. Casey (1992): Privacy, Abortion

Five provisions of the PA Abortion Control Act required that a woman seeking an abortion give her informed
consent prior to the procedure, be provided with certain information at least 24 hours before the abortion is
performed, required informed consent of one parent for a minor to obtain an abortion, provided that women first
notify their husband, and imposes certain reporting requirements on facilities providing abortion services. A
three-Justice plurality (OConnor, Kennedy, Souter) joined with STEVENS and BLACKMUN to preserve a
central principle of Roe v. Wade and strike down the provision for spousal notification.

884.

Majority: OCONNOR, KENNEDY, SOUTER: In a bitter, 5-4

decision, the Court again reaffirmed Roe, but it upheld most of the PA provisions. For the first time, the
justices imposed a new standard to determine the validity of laws restricting abortions. The new
standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue
burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before
the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the
husband notification requirement.

885.

Dissent: REHNQUIST, WHITE, SCALIA, THOMAS: Abortion should

be treated differently than other privacy cases. The right to terminate ones pregnancy is not a
historically fundamental right. The joint opinion does not follow precedent, it revises precedent. The
states can permit abortion, but the constitution does not require them to do it (Scalia). We should get
out of this area, where we have no right to be, and where we do neither ourselves nor the country any
good by remaining. (Scalia)

177

Bowers v. Hardwick (1986): Fundamental Rights, Sodomy, 8th A.

Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual
homosexual sodomy with another adult in the bed room of his home. After being charged with violating a
Georgia statute that criminalized homosexual sodomy, Hardwick challenged the statute's constitutionality in
Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. The Court
of Appeals reversed and remanded, holding that the statute was unconstitutional. Georgia's Atty. Gen., Bowers,
appealed. Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy,
thereby invalidating the laws of many states which make such conduct illegal?

886.

Majority: WHITE: No. The Court found that there was no

constitutional protection for acts of sodomy, and that states could outlaw those practices. White argued
that the Court has acted to protect rights not easily identifiable in the Constitution only when those
rights are "implicit in the concept of ordered liberty" (Palko) or when they are "deeply rooted in the
Nation's history and tradition" (Griswold). The Court held that the right to commit sodomy did not
meet either of these standards. White feared that guaranteeing a right to sodomy would be the product
of "judge-made constitutional law" and send the Court down the road of illegitimacy.

887.

Concurring: POWELL: Suggested that had Hardwick been tried,

much less convicted and sentenced and had he raised the 8 th A., he might have decided differently.
Powell later admitted that he switched his vote to create a majority upholding the Ga. statute. The
Court wanted to avoid the issue, and suggested that state legislatures could repeal the old laws, or State
Supreme Cts. could strike down the laws on state constitutional grounds.

888.

Dissent: BLACKMUN, BRENNAN, MARSHALL, STEVENS: This

case is about the right most valued by civilized men, namely, the right to be left alone ( Olmstead,
Brandeis dissenting) Ga. can not selectively enforce the statute against homosexuals, and there are
questions concerning the right to enforce it against all.

178

Washington v. Glucksberg (1997): Privacy, Right to Die, 14th A.

Dr. Glucksberg, along with terminally ill individuals contemplating physician assisted-suicide, brought this suit
challenging the state of Washington's ban on physician assisted-suicide. Washington has historically
criminalized the promotion of suicide attempts by those who "knowingly cause or aid another person to attempt
suicide." Did Washington's ban on physician assisted-suicide violate the 14 th A. Due Process Clause by denying
competent terminally ill adults the liberty to choose death over life?

889.

Majority: REHNQUIST: No. Analyzing the guarantees of the Due

Process Clause, the Court focused on two primary aspects: the protection of our nation's objective
fundamental, historically rooted, rights and liberties; and the cautious definition of what constitutes a
due process liberty interest. The Court held that the right to assisted suicide is not a fundamental liberty
interest protected by the Due Process Clause since its practice has been, and continues to be, offensive
to our national traditions and practices. Moreover, employing a rationality test, the Court held that
Washington's ban was rationally related to the state's legitimate interest in protecting medical ethics,
shielding disabled and terminally ill people from prejudice which might encourage them to end their
lives, and, above all, the preservation of human life.
Railway Express Agency v. New York (1949): 14th A., Rational Basis review

Section 124 of the Traffic Regulations of New York prohibits people from having advertisements on the side of
their vehicle. However, the statute does allow people to advertise their own business. Suit was brought on
EQUAL PROTECTION grounds because theoretically, one company is allowed to have the same sign that
another company can not, despite the equal distraction to other drivers, causing traffic

890.

Majority: (split court) DOUGLAS: The Court upheld the statute. The
Court should not judge wisdom of statute, or its effectiveness. The city has to determine what it feels
will solve the traffic problem. The type of discrimination is not the type against which the Equal
Protection Clause affords protection. It is no requirement that all evils of the same genus be eradicated
or none at all.

891.

Concurring: JACKSON: The Court must be weary of statutes that only

effect a minority, BUT there is a real difference between doing in self-interest and doing for hire, so
that it is one thing to tolerate action from those who act on their own and its another thing to permit the
same action to be promoted for a price.

2 principles for minimum rational basis (Prof argument this is just rubber stamped and cant be
explained)
1. Speculative purposes for legislature makes up a phantom purpose (saw this in
Williamson as well) (Very minimal)
2. Legislature may reform the problem 1 step at a time.

179

3.

FCC v. Beach Communications (1993): 5th, 14th A, Rational Basis Review

Act provides that cable television systems be franchised by local governmental authorities, but exempts,
facilities serving "only subscribers in 1 or more multiple unit dwellings under common ownership. The FCC
ruled that a satellite master antenna television (SMATV) system is also subject to the franchise. Does this
violate the equal protection guarantee of the 5 th A. Due Process Clause because there is no RATIONAL BASIS
for distinguishing between those facilities exempted by the statute and SMATV systems linking separately
owned and managed buildings.

892.

Majority: THOMAS: Statute upheld. The Court discussed the

methodology of minimal scrutiny review. Whether embodied in the 14th A or inferred from the 5th,
Equal Protection is not a license for courts to judge the wisdom, fairness, or logic of legislative
choices. In areas of social and economic policy, a statutory classification that neither proceeds along
suspect lines nor infringes on fundamental constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that could provide a RATIONAL BASIS
for the classification. The democratic process will rectify the problem.
Bradwell v. Illinois (1873): 14th A., Gender Discrimination

Myra Bradwell asserted her right to a license to practice law in Illinois, which women were prevented from
doing. Bradwell argued that the privileges and immunities guaranteed under Sec. 2, Art. IV and under Sec. 1 of
the 14th A.

893.

Majority: MILLER: While the Court agreed that all citizens enjoy
certain privileges and immunities which individual states cannot take away, it did not agree that the
right to practice law in a state's courts is one of them. There was no agreement that this right depended
on citizenship.

894.

Concurring: BRADLEY: The paramount destiny and mission of

woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And
the rules of civil society must be adapted to the general constitution of things, and can not be based on
exceptional cases.

895.

Dissent: CHASE, Chief Justice, was the lone dissent

180

Frontiero v. Richardson (1973): 5th A., Gender Discrimination

Frontiero, a lieutenant in the Air Force, sought a dependent's allowance for her husband. Federal law provided
that the wives of members of the military automatically became dependents; husbands of female members of
the military, however, were not accepted as dependents unless they were dependent on their wives for over onehalf of their support. Frontiero's request for dependent status for her husband was turned down. Did a federal
law, requiring different qualification criteria for male and female military spousal dependency, discriminate
against women thereby violating the 5th A.s Due Process Clause?

896.

Majority: BRENNAN: Yes. Brennan basis his opinion on the idea that
classifications based on sex are inherently invidious: and subject to strict scrutiny. The Court held that
the statute in question clearly commanded "dissimilar treatment for men and women who are similarly
situated," violating the Due Process Clause. Applying a strict standard of review to the sex-based
classification, the Court found that the gov.s interest in administrative convenience could not justify
discriminatory practices. The Court held that statutes that drew lines between the sexes on those
grounds alone necessarily involved "the 'very kind of arbitrary legislative choice forbidden by the
Constitution.'"

897.

Concurring: POWELL, CHASE, BLACKMUN: It is unnecessary to

classify sex as a suspect classification. Democratic institutions are weakened, and confidence in the
restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad
social and political importance at the very time they are under consideration within the prescribed
constitutional process. (In reference to the ERA, which was being considered by the states, and
acknowledged by BRENNAN)

898.

Dissent: REHNQUIST: For Reasons in District Court(?)

899.

Note: Ruth Bader Ginsburg argued the case for the ACLU.
th

Craig v. Boren (1976): 14 A., Gender Discrimination

An Oklahoma law prohibited the sale of "nonintoxicating" 3.2 percent beer to males under the age of 21 and to
females under the age of 18. Curtis Craig, a male then between the ages of 18 and 21, and a licensed vendor
challenged the law as discriminatory. Did an Oklahoma statute violate the 14 th A.'s Equal Protection Clause by
establishing different drinking ages for men and women?

900.

Majority: BRENNAN: the Court held that the statute made

unconstitutional gender classifications. The Court held that the statistics relied on by the state of
Oklahoma were insufficient to show a substantial relationship between the law and the maintenance of
traffic safety. Generalities about the drinking habits of aggregate groups did not suffice. The Court also
found that the 21st A. did not alter the application of the Equal Protection Clause in the case. This is
somewhat of a retreat from the suspect classification in Frontiero.

901.

Dissent: REHNQUIST, BURGER: First, the court should not give men
a more stringent standard of review than most classifications. Second, the Court enunciates this
standard without citation to any source, as being that classifications by gender must serve important
governmental objectives and must be substantially related to achievement of those objectives.
U.S. v. Virginia (1996): 14th A., Gender Discrimination

181

The Virginia Military Institute (VMI) boasted a long and proud tradition as Virginia's only exclusively male
public undergraduate higher learning institution. The U. S. brought suit against Virginia and VMI alleging that
the school's male-only admissions policy violated the 14 th A.s equal protection clause. The 4th Cir. found VMI's
admissions policy to be unconstitutional. Virginia proposed to create the Virginia Women's Institute for
Leadership (VWIL) as a parallel program for women. On appeal, the 4 th Cir. ruled that despite the difference in
prestige between the VMI and VWIL, the two programs would offer "substantively comparable" educational
benefits. Does Virginia's creation of a women-only academy, as a comparable program to a male-only academy,
satisfy the 14th A.'s Equal Protection Clause?

902.

Majority: GINSBURG: No. The Court held that VMI's male-only

admissions policy was unconstitutional. Because it failed to show "exceedingly persuasive
justification" for VMI's gender-biased admissions policy, Virginia violated the 14 th A's equal protection
clause. Virginia's VWIL could not offer women the same benefits as VMI offered men, including the
same rigorous military training, faculty, courses, facilities, financial opportunities, or alumni reputation
and connections that VMI affords its male cadets. Finally, the Court held that the 4 th Cir.'s "substantive
comparability" standard was a displacement of the Court's more exacting standard, requiring that "all
gender-based classifications today" be evaluated with "heightened scrutiny." When evaluated with such
"heightened scrutiny," Virginia's plan to create the VWIL would not provide women with the same
opportunities as VMI provides its men and so it failed to meet the requirements of the equal protection
clause.

903.

Dissent: SCALIA: this most illiberal Court, which has embarked on

a course of inscribing one after another of the current preferences of the society (and in some cases
only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law. Today
it enshrines the notion that no substantial educational value is to be served by an all-men's military
academy-so that the decision by the people of Virginia to maintain such an institution denies equal
protection to women who cannot attend that institution but can attend others. Since it is entirely clear
that the Constitution of the United States -the old one- takes no sides in this educational debate, I
dissent. As to precedent: it drastically revises our established standards for reviewing sex-based
classifications. And as to history: it counts for nothing the long tradition, enduring down to the present,
of men's military colleges supported by both States and the Federal Government.

904.

Not participating: THOMAS

182

Watkins v. U.S. Army (1989): 14th A, Gay Discrimination, Status v. Conduct

This is a 9th Circuit case (NOT S. CT.), sitting en banc, the circuit ruled that the army could not discriminate
based on sexuality.

905.

Majority: The Armys policy of excluding gays violates the Strict

Scrutiny of equal protection. According to precedent, Strict Scrutiny should be used when: 1) The
group has suffered a history of purposeful discrimination (which the army conceded). 2) When the
discrimination embodies a gross unfairness that is sufficiently inconsistent with ideas of equal
protection to term it invidious. 3) When the group lacks effective political representation to protect
itself from state prejudice (which gays are because they are in the closet, and the public cant identify
with them. The opinion focuses on the STATUS of gays.

906.

Dissent: The dissent reluctantly agrees that most homosexuals are

sodomists, and sodomy is a major military crime wholly constitutional under Hardwick. Therefore,
gays are not a suspect class (which requires high scrutiny) because they are criminals. This judges by
CONDUCT, not status.
Romer v. Evans (1996): 14th A., Gay Discrimination, political participation

Colorado voters adopted A. 2 to their State Constitution precluding any judicial, legislative, or executive action
designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation,
conduct, practices or relationships." Does A. 2 of Colorado's State Constitution, forbidding the extension of
official protections to those who suffer discrimination due to their sexual orientation, violate the 14 th A's Equal
Protection Clause?

907.

Majority: KENNEDY: Yes. The Court held that A 2 singled out

homosexual and bisexual persons, imposing on them a broad disability by denying them the right to
seek and receive specific legal protection from discrimination. Kennedy noted oftentimes a law will be
sustained under the equal protection clause, even if it seems to disadvantage a specific group, so long
as it can be shown to "advance a legitimate government interest." "If the constitutional conception of
'equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a
politically unpopular group cannot constitute a legitimate governmental interest."

908.

Dissent: SCALIA, REHNQUIST, THOMAS: The constitutional

amendment before us here is not the manifestation of a "`bare . . . desire to harm'" homosexuals, but is
rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against
the efforts of a politically powerful minority to revise those mores through use of the laws. That
objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional
doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness
rather than judicial holdings); they have been specifically approved by the Congress and by this Court.
Baehr v. Lewin (1993): Gay Marriage, Equal Rights

violated equal rights A.

under Hawaii const. (The prohibition did not violate right to privacy.) Marriage has benefits,
and is also a vital right essential to orderly pursuit of happiness.
The Hawaii Supreme Ct. (NOT the S. Ct.) remanded law prohibiting gay marriage

183

CONSTITUTIONAL LAW SPRING 1999 - MAJOR PREMISES

FEDERALISM - VERTICAL DISTRIBUTION OF GOVERNMENT POWER............................................................................1
Implied powers - McCulloch v. Maryland Bank of the U.S...............................................................................1
Commerce clause..................................................................................................................................................4
Spending power...................................................................................................................................................18
Dormant commerce clause (DCC) Protection against facial discrimination...................................................19
10th Amendment - Implied limitations on congressional power -......................................................................23
Other Federalism premises..................................................................................................................................30
SEPARATION OF POWERS - HORIZONTAL DISTRIBUTION OF NATIONAL POWER.........................................................39
Judicial review.....................................................................................................................................................40
Jurisdiction and standing.....................................................................................................................................45
Political question doctrine...................................................................................................................................51
Executive authority - domestic............................................................................................................................54
Executive privilege..............................................................................................................................................56
Presidential immunity.........................................................................................................................................59
Impeachment.......................................................................................................................................................61
Bicameralism and presentment...........................................................................................................................61
Administrative agencies and the separation of powers.......................................................................................65
Non delegation doctrine and quasi-constitutional statutes..............................................................................72
Executive authority foreign..............................................................................................................................76
Legislative authority - foreign.............................................................................................................................79
Other separation of powers premises..................................................................................................................80
INDIVIDUAL RIGHTS..................................................................................................................................................86
Equal protection..................................................................................................................................................87
Privileges or immunities 14th Amendment.......................................................................................................97
Incorporation.......................................................................................................................................................98
Contracts clause - Protecting economic liberties - Textual.................................................................................99
Privacy, personhood, and family - Modern Substantive due process................................................................110
CASE SUMMARIES...................................................................................................................................................134

184

CONSTITUTIONAL LAW SPRING 1999..............................................................................................................1

FEDERALISM - VERTICAL DISTRIBUTION OF GOVERNMENT POWER............................................................................1
A government of enumerated powers - Why does federalism matter?.............................................................1
Implied powers - McCulloch v. Maryland Bank of the U.S...............................................................................1
Commerce clause..................................................................................................................................................4
Three regulated categories under commerce clause.........................................................................................4
Channels......................................................................................................................................................4
Instrumentalities..........................................................................................................................................4
Substantially affecting commerce............................................................................................................4
Pre New Deal....................................................................................................................................................5
Gibbons v. Ogden New York steamboat monopoly..................................................................................5
United States v. E.C. Knight - Manufacture vs. commerce Sugar monopoly..........................................6
Substantial economic effects and stream of commerce...............................................................................6
The Shreveport Rate Cases Substantial economic effects Railroad rates.........................................6
Stafford v. Wallace - Stream of commerce.............................................................................................7
Police power................................................................................................................................................7
Champion v. Ames - The Lottery Case...................................................................................................7
Hammer v. Dagenhart - Child labor........................................................................................................7
Summary of pre-New Deal law on commerce clause.................................................................................8
The New Deal Crisis and the Rise of the Welfare State...................................................................................8
Schechter Poultry Corp. v. United States.....................................................................................................9
Carter v. Carter Coal Co............................................................................................................................10
Modern Trend.................................................................................................................................................10
NLRB v. Jones & Laughlin Steel Corp. - Expanded substantial economic effect................................10
Wickard v. Filburn - The cumulative effect theory................................................................................11
United States v. Darby - police power regulations - Minimum wage......................................................12
Civil rights cases and the commerce clause...................................................................................................13
Heart of Atlanta Motel v. United States Local incident of interstate commerce....................................13
Katzenbach v. McClung Ollies BBQ.....................................................................................................13
Effect of Lopez..........................................................................................................................................14
Judicial abdication during New Deal.............................................................................................................14
United States v. Lopez Latest word Guns and schools do mix................................................................15
Reconciling Lopez with New Deal.................................................................................................................17
Current status of commerce clause.................................................................................................................17
Does Lopez provide workable rule of law?....................................................................................................17
Spending power...................................................................................................................................................18
United States v. Butler - Beyond enumerated powers...............................................................................18
Steward Machine Co. v. Davis..................................................................................................................19
South Dakota v. Dole - National drinking age...........................................................................................19
Pennhurst State School & Hospital v. Halderman.....................................................................................19
Dormant commerce clause (DCC) Protection against facial discrimination..................................................19
Gibbons v. Ogden New York steamboat monopoly...........................................................................20
Willson v. Black Bird Creek Marsh Co................................................................................................20
Cooley v. Board of Port Wardens (1851) Cooley test That which is by nature national.............20
Modern DCC doctrine...........................................................................................................................20
City of Philadelphia v. New Jersey DCC No solid waste...............................................................20
West Lynn Creamery, Inc. v. Healy Milk tax subsidizes in-state farmers.........................................21
Bobbitts modalities and the DCC?.......................................................................................................21
Market participant exception under commerce clause..............................................................................22
Reeves, Inc. v. Stake.............................................................................................................................22
10th Amendment - Implied limitations on congressional power -......................................................................23
National League of Cities v. Usery - Traditional government functions test.................................................23
Garcia v. San Antonio MTA - Overruled National League of Cities Minimum wage................................23
Use of states lawmaking mechanisms...........................................................................................................24

185

New York v. United States - Waste disposal..............................................................................................24

Printz v. United States Brady Bill Dont No commandeer state executive.........................................26
Possible McCulloch theory underlying New York and Printz...................................................................28
U.S. Term Limits v. Thornton.........................................................................................................................28
Other Federalism premises.................................................................................................................................30
The treaty and war powers.............................................................................................................................30
Missouri v. Holland Migratory birds......................................................................................................30
Woods v. Cloyd W. Miller Co....................................................................................................................30
The taxing power............................................................................................................................................30
Bailey v. Drexel Furniture Co....................................................................................................................30
The guarantee clause and the reconstruction amendments.............................................................................31
Texas v. White............................................................................................................................................31
Validity of 13th and 14th Amendments........................................................................................................31
The power to enforce the reconstruction amendments..............................................................................32
Katzenbach v. Morgan Spanish speaking voters................................................................................32
City of Boerne v. Flores RFRA Unconstitutional...................................................................................32
Limitations on state regulation.......................................................................................................................35
Typology of Powers........................................................................................................................................35
Preemption......................................................................................................................................................35
The Privileges and Immunities Clause of Article IV.................................................................................36
United Building Council v. Camden - No market participant exception for PIC.................................36
Metropolitan Life Insurance Co. v. Ward..............................................................................................36
Facially neutral statutes with significant effects on interstate commerce.................................................36
Exxon Corp. v. Governor of Maryland.................................................................................................37
Hunt v. Washington State Apple Advertising Commn........................................................................38
SEPARATION OF POWERS - HORIZONTAL DISTRIBUTION OF NATIONAL POWER.........................................................39
Distribution of national power - Why does separation of powers matter?.....................................................39
Formalism vs. functionalism..........................................................................................................................39
Judicial review....................................................................................................................................................40
Marbury v. Madison Supreme Court review of congressional statutes.......................................................40
Theoretical foundation of judicial review......................................................................................................42
Martin v. Hunters Lessee Supreme Court review of state court decisions.................................................43
Judicial exclusivity.........................................................................................................................................44
Cooper v. Aaron - Federal judiciary is supreme SCt binds states...............................................................44
Does judicial review imply judicial supremacy?............................................................................................44
Departmentalism.............................................................................................................................................44
Jurisdiction and standing....................................................................................................................................45
Ex Parte McCardle - Congressional control of appellate jurisdiction............................................................45
United States v. Klein...........................................................................................................................46
Good confusion.....................................................................................................................................46
Case or Controversy Requirement..................................................................................................................46
Standing..........................................................................................................................................................47
Allen v. Wright - IRS tax-exempt status for segregated private school.....................................................47
Lujan v. Defenders of the Wildlife Endangered Species Act..................................................................49
Raines v. Byrd - Line item veto.................................................................................................................49
Perspective on cases..................................................................................................................................50
Political question doctrine..................................................................................................................................51
Baker v. Carr - Apportionment of the Tennessee Assembly......................................................................51
Luther v. Borden - Guaranty clause non-justiciable..................................................................................52
Why is there a political question doctrine?................................................................................................52
Davis v. Bandemer - Unconstitutional gerrymandering justiciable...........................................................52
Nixon v. United States - Impeachment non-justiciable.............................................................................52
Coleman v. Miller - Congress gets to say whether USC has been amended.............................................53
Timing and certiorari.................................................................................................................................53
Executive authority - domestic............................................................................................................................54
Executive-Legislative conflicts......................................................................................................................54

186

Youngstown Sheet & Tube v. Sawyer - The Steel Seizure Case...............................................................54

Dames & Moore v. Regan - Iran hostage settlement.................................................................................55
Executive privilege..............................................................................................................................................56
United States v. Nixon Watergate tapes..................................................................................................56
Reviewability of executive privilege decisions..............................................................................................57
Scope of executive privilege..........................................................................................................................57
National security interests..........................................................................................................................58
United States v. AT&T..........................................................................................................................58
Legislative Investigations and Civil Proceedings......................................................................................59
Senate Select Committee on Presidential Campaign Activities v. Nixon.............................................59
Dellums v. Powell.................................................................................................................................59
Lower level officials..................................................................................................................................59
Presidential immunity.........................................................................................................................................59
Mississippi v. Johnson..........................................................................................................................59
Nixon v. Fitzgerald................................................................................................................................59
Harlow v. Fitzgerald..............................................................................................................................60
Clinton v. Jones.....................................................................................................................................60
Law and politics.............................................................................................................................................60
Law versus politics....................................................................................................................................60
Nixon v. Administrator of General Services.........................................................................................60
Law as politics...........................................................................................................................................61
Impeachment.......................................................................................................................................................61
Bicameralism and presentment...........................................................................................................................61
INS v. Chadha - One house veto provision stricken......................................................................................61
General critique by Koppelman.................................................................................................................63
Single-house actions approved by USC....................................................................................................64
Chadha in context - Legislative control of the bureaucracy......................................................................64
The reach of Chadha..................................................................................................................................64
Process Gas Consumers Group v. Consumers Energy Council of America.........................................64
United States Senate v. FTC.................................................................................................................64
A return to the text?...................................................................................................................................65
Future directions........................................................................................................................................65
Administrative agencies and the separation of powers......................................................................................65
Meyers v. United States.............................................................................................................................66
The rise of independent agencies...............................................................................................................66
Humphreys Executor v. United States - FTC member removal..........................................................66
Wiener v. United States - War Claims Commission removal...............................................................66
Buckley v. Valeo - Appointments Clause and FEC Officer of the U.S..............................................67
Various assessments of Myers, Humphreys Executor, and Buckley........................................................67
Bowsher v. Synar - Good-bye Gramm-Rudman............................................................................................68
Commitment and the budget..........................................................................................................................69
Appointments power - Congressional control over administrative officials..................................................69
Chadha and Bowsher.................................................................................................................................69
Morrison and Bowsher..............................................................................................................................69
Koppelman on Morrison and Mistretta......................................................................................................70
Non-presidential appointments..................................................................................................................70
Freytag v. Commissioner of Internal Revenue.....................................................................................70
Weiss v. United States...........................................................................................................................70
Edmond v. United States.......................................................................................................................70
Justice Scalias Bowsher and Mistretta dissents........................................................................................70
Congressional control of administrative agencies after Chadha and Bowsher..........................................71
Metropolitan Washington Airports Authority.................................................................................................71
Non delegation doctrine and quasi-constitutional statutes............................................................................72
Introduction................................................................................................................................................72
Non-delegation doctrine............................................................................................................................72
Non-delegation and National Industrial Recovery Act of 1933 (NIRA)...................................................72

187

Panama Refining Co. v. Ryan...............................................................................................................72

Schechter Poultry Corp. v. United States..............................................................................................72
Demise of non-delegation doctrine............................................................................................................73
Amalgamated Meat Cutters v. Connally...............................................................................................73
Touby v. United States..........................................................................................................................73
Loving v. United States.........................................................................................................................73
Arguments in favor of reviving non-delegation doctrine..........................................................................73
D. Schoenbrod.......................................................................................................................................73
Industrial Union v. American Petroleum Institute Rehnquist dissent................................................73
Ely (Democracy and Distrust)..............................................................................................................74
Stewart against non delegation doctrine............................................................................................74
Lowis assessment of the new Constitution......................................................................................74
Structural statutes.......................................................................................................................................75
Executive authority foreign..............................................................................................................................76
Control of foreign affairs................................................................................................................................76
United States v. Curtiss-Wright Corp. Foreign arms sales embargo......................................................76
Text, history, and presidential power....................................................................................................76
Functionalism and the autonomy of constitutional interpretation........................................................76
Allocation of war making authority...........................................................................................................77
Approaches toward reconciling these provisions.................................................................................77
Prize Cases - Presidents power to use armed forces............................................................................78
Orlando v. Laird Vietnam non-justiciable.........................................................................................78
Dellums v. Bush The Persian Gulf War.............................................................................................78
UN peacekeeping or peace enforcement.......................................................................................78
Legislative authority - foreign.............................................................................................................................79
The War Powers Resolution......................................................................................................................79
War Powers Resolution is unconstitutional..........................................................................................79
The War Powers Resolution is constitutional.......................................................................................79
Practice under the Resolution...............................................................................................................79
The Constitution without courts War Powers and Boland......................................................................80
Other separation of powers premises.................................................................................................................80
Treaties.......................................................................................................................................................80
Executive Agreements...............................................................................................................................80
Dames & Moore v. Regan - Constitutional limits on scope of executive agreements..........................80
United States v. Belmont.......................................................................................................................80
Congressional-executive agreements.........................................................................................................81
Impoundment.............................................................................................................................................81
Line item vetoes.........................................................................................................................................82
Unfunded mandates...................................................................................................................................82
New York v. United States No unfunded mandates 10th Amendment.............................................82
Unfunded Mandate Reform Act of 1995..............................................................................................82
Contract with America..........................................................................................................................82
Constitutional amendment to balance the budget......................................................................................82
Morrison v. Olson Special prosecutor laws.................................................................................................83
Mistretta v. United States U.S. Sentencing Commission............................................................................84
Final thoughts on separation of powers..........................................................................................................85
INDIVIDUAL RIGHTS..................................................................................................................................................86
Overview........................................................................................................................................................86
Equal protection..................................................................................................................................................87
Utility of equal protection analysis............................................................................................................87
Race and the Constitution..........................................................................................................................87
Slavery and the Constitution......................................................................................................................87
State v. Post...........................................................................................................................................87
Dred Scott v. Sanford............................................................................................................................87
Reconstruction and retreat.........................................................................................................................88
Strauder v. West Virginia Invalidated law barring blacks from juries...............................................88

188

Plessy v. Ferguson Separate but equal Railroad cars......................................................................89

Equal protection methodology - strict scrutiny.........................................................................................90
Korematsu v. United States (Black 1944) Japanese WWII interment...............................................90
Overview of equal protection doctrine......................................................................................................92
The attack on Jim Crow.............................................................................................................................93
Brown v. Board of Education of Topeka (Brown I) School desegregation.......................................93
Bolling v. Sharpe - 14th Amendment equal protection federal via 5th Amendment...............................94
Brown II................................................................................................................................................95
Facially neutral laws that disadvantage minorities....................................................................................96
Washington v. Davis.............................................................................................................................96
Privileges or immunities 14th Amendment........................................................................................................97
The Slaughter-House Cases New Orleans slaughtering monopoly.............................................................97
Slaugheter-House remains good law.........................................................................................................98
Incorporation......................................................................................................................................................98
Barron v. Mayor & City Council of Baltimore..........................................................................................98
Murray v. Hoboken Land & Improvement Co..........................................................................................99
Twining v. New Jersey...............................................................................................................................99
Palko v. Connecticut Double jeopardy...................................................................................................99
Adamson v. California Black dissent - Total incorporation....................................................................99
Duncan v. Louisiana..................................................................................................................................99
Contracts clause - Protecting economic liberties - Textual................................................................................99
Fletcher v. Peck Corrupt land sale contract not voidable by State.......................................................100
Ogden v. Saunders State bankruptcy law valid prospectively..............................................................101
Calder v. Bull Ex post facto - Historical Modality Criminal only..........................................................101
Home Building and Loan Assn. v. Blaisdell............................................................................................102
Modern contracts clause law and AK analysis........................................................................................102
Substantive due process - Protecting economic interests - Redistribution...............................................103
Lochner v. New York Time to make the donuts No maximum hours for bakers..............................103
AKs lecture on Lochner.....................................................................................................................104
Civil War makes Lochner look less crazy...........................................................................................105
Structural and ethical basis for Lochner holding................................................................................105
Dissent - Harlan..................................................................................................................................106
Dissent - Holmes.................................................................................................................................106
Forming an opinion of Lochner..........................................................................................................106
Lochner Era - most significant judicial interventions in American history........................................106
Munn v. Illinois - Escape hatch from Lochner Public interest.....................................................107
Muller v. Oregon Another escape hatch Women special class..................................................107
Bailey v. Alabama Personal service contracts enforced by jail time no more......................................107
Nebbia v. New York.................................................................................................................................108
West Coast Hotel Co. v. Parrish The death of Lochner Female minimum wage..............................108
United States v. Carolene Products Co. Filled milk............................................................................108
Williamson v. Lee Optical - Full employment for ophthalmologists......................................................109
Ferguson v. Skrupa..................................................................................................................................109
Summary of substantive due process - Economic rights.........................................................................109
Privacy, personhood, and family - Modern Substantive due process...............................................................110
West Virginia State Board of Education v. Barnette - Overview..................................................................110
The right of privacy......................................................................................................................................110
Individual rights after the New Deal........................................................................................................110
Meyer v. Nebraska Okay to teach foreign language to school children...........................................111
Pierce v. Society of Sisters..................................................................................................................111
Griswold v. Connecticut - Condommania...........................................................................................111
Eisenstadt v. Baird...............................................................................................................................114
Abortion...................................................................................................................................................114
Roe v. Wade.........................................................................................................................................114
Roe and Griswold................................................................................................................................116
Planned Parenthood v. Casey Abortion waiting period and other restrictions.................................116

189

AKs approach to abortion question...................................................................................................122

Bowers v. Hardwick - Sodomy................................................................................................................124
Washington v. Glucksberg - Physician-assisted suicide..........................................................................126
Sex and sexual orientation............................................................................................................................129
Reed v. Reed.......................................................................................................................................129
Frontiero v. Richardson Classification based on sex inherently suspect.........................................129
Craig v. Boren Beer sales to 18 20 year-old women only, not men..............................................129
United States v. Virginia VMI gender integration...........................................................................130
Other Candidates for heightened scrutiny...............................................................................................132
Romer v. Evans Special rights for gays...........................................................................................132

190

CASE SUMMARIES...................................................................................................................................................134
Strauder v. West Virginia (1880): 14th Amendment...........................................................................134
Peters v. Kiff (1972): 14th Amendment..............................................................................................134
Plessy v. Ferguson (1896): 13th, 14th Amendments............................................................................134
Brown v. Board of Education (1954): 14th Amendment, Equal Protection.........................................134
Bolling v. Sharpe (1954): 5th Amendment, Equal Protection, Due Process.......................................135
Marbury v. Madison (1803): Judicial Review, Interpret Constitution................................................135
Cooper v. Aaron (1958): Judicial Review, Interpret Constitution......................................................135
Swann v. Charlotte-Mecklenburg Bd. Ed. (1971): 14th Amendment, Segregation.............................136
Freeman v. Pitts (1992): 14th Amendment, School Desegregation.....................................................136
Martin v. Hunters Lessee (1816): Supremacy Clause, Judicial Review............................................136
McCulloch v. Maryland (1819): Implied Power, 10th Amendment.....................................................137
US Term Limits v. Thornton (1995): 10th Amendment, Term Limits.................................................137
Gibbons v. Ogden (1824): Commerce Clause, Federal v. States........................................................138
US v. E.C. Knight (1895): Commerce, Anti-Trust..............................................................................138
Champion v. Ames [lottery case] (1903): Commerce.........................................................................139
Swift & Co. v. US (1905): Commerce, Current of Commerce.......................................................139
The Shreveport Rate Case (1914): Commerce, close and substantial relation...............................139
Hammer v. Dagenhart (1918): Commerce, 10th Amendment.............................................................140
NLRB v. Jones & Laughlin (1937) Commerce Clause, New Deal legislation...................................140
US v. Darby (1941): Commerce Clause, Child Labor, Manufacturing..............................................141
Heart of Atlanta Motel (1964): Commerce Clause, Civil Rights Act 1964.......................................141
Katzenbach v. McClung (1964): Commerce Clause, Civil Rights Act 1964......................................141
US v. Lopez (1995): Commerce Clause, Guns in school zone...........................................................142
South Dakota v. Dole (1987): Commerce Clause, 21st Amendment...................................................143
Missouri v. Holland (1920): 10th Amendment.....................................................................................143
Katzenbach v. Morgan (S.Car.) (1966): 14th A., Due Process, Literacy to Vote.................................143
Boerne City v. Flores (1997): 1st A. Free exercise v. 14th A. Legislative authority.............................143
Jones v. Mayer Co. (1968): 13th Amendment, Equal Housing............................................................144
Garcia v. San Antonio Metro Transit Auth. (1985) 10th A., Federalism..............................................145
New York v. United States (1992): 10th Amendment, Supremacy Clause..........................................145
Printz v. United States (1997): 10th A., Commerce Clause, Original Intent.......................................146
Cooley v. Board of Wardens (1852): Federalism, Concurrent Powers...............................................147
City of Philadelphia v. New Jersey (1978): Dormant Commerce Clause...........................................147
Kassel v. Consolidated Freightways Corp. (1981): Safety v. Commerce...........................................148
West Lynn Creamery, Inc. v. Healy (1994): Interstate Commerce.....................................................148
Corfield v. Coryell (1823): Privilege and Immunity Clause...............................................................148
United Bldg. v. Camden (1984) Privilege & Immunity v. Commerce Clause....................................149
Youngstown Co. v. Sawyer (1952): Separation of Powers, Emergency power..................................149
US v. Curtiss-Wright Corp. (1936) Separation of Power, External v. Internal...................................149
Dames & Moore v. Regan (1981): Implicit powers............................................................................149
Korematsu v. United States (1944): Emergency Executive Order......................................................149
United States v. Nixon (1974): Executive Privilege...........................................................................150
Clinton v. Jones (1997): Separation of Powers, Presidential Immunity.............................................151
Mistretta v. United States (1989) Non delegation of Congressional Power....................................151
INS v. Chadha (1983): Legislative Veto.............................................................................................151
Clinton v. City of New York (1998): Separation of Powers, Line Item Veto.....................................152
Bowsher v. Synar: (1986): Separation of Powers...............................................................................152
Morrison v. Olson (1988): Separation of Powers, Independent Counsel...........................................152
Northern Pipeline Co. v. Marathon (1982): Separation of powers, delegation...................................152
Commodity Futures T.C. v. Schor (1986): Separation of Power, delegation......................................153
Ex Parte McCardle (1869) Separation of Powers, Exceptions clause................................................153
Baker v. Carr (1962): Limits on Judicial Power, Political Questions.................................................154
Nixon v. United States (1993): Limits, Political Question.................................................................154
Raines v. Byrd (1997): Limits, Standing............................................................................................154
Allen v. Wright (1984): Limits, Standing...........................................................................................155

191

Lujan v. Defenders of Wildlife (1975): Limits, Standing...................................................................155

Missouri v. Jenkins (II) (1990): Limit, Scope of remedy...................................................................155
Missouri v Jenkins (III) (1995): Limits Jurisdiction...........................................................................156
Fletcher v. Peck (1810): Economic Liberties, Property Rights..........................................................156
Ogden v. Saunders (1827): Economic Liberties, Contracts Clause....................................................157
Calder v. Bull: (1798): Economic Liberties, Ex post facto.................................................................157
The Slaughter House Cases (1873): Economic Liberties, 13th, 14th A, Monopolies...........................158
Palko v. Connecticut (1937): Double Jeopardy, Due Process (14th A.)...............................................158
Adamson v. California (1947): 5th A. not part of Due Process (14th A.).............................................159
Skinner v. Oklahoma (1942): Due Process, Sterilization...................................................................159
Lochner v. New York (1905): Substantive Due Process, Freedom to Contract..................................160
Bailey v. Alabama (1910): 13th A., Race Discrimination....................................................................160
West Coast Hotel v. Parrish (1937): 5th, 14th A., Freedom to Contract...............................................161
Williamson v. Lee Optical (1955): 14th A., Due Process, Judicial Power...........................................161
Meyer v. Nebraska (1923): 14th A., Due Process, Privacy..................................................................162
Poe v. Ullman (1961): 14th A., Due Process, Individual Rights, Ripeness......................................162
Griswold v. Connecticut (1965): 14th, 1st, 3rd, 4th, 5th, 9th A., Privacy..................................................163
Roe v. Wade (1973): Privacy, Abortion (9th, 14th A.)..........................................................................163
Planned Parenthood v. Casey (1992): Privacy, Abortion....................................................................164
Bowers v. Hardwick (1986): Fundamental Rights, Sodomy, 8th A.....................................................165
Washington v. Glucksberg (1997): Privacy, Right to Die, 14th A.......................................................166
Railway Express Agency v. New York (1949): 14th A., Rational Basis review..................................166
FCC v. Beach Communications (1993): 5th, 14th A, Rational Basis Review......................................167
Bradwell v. Illinois (1873): 14th A., Gender Discrimination...............................................................167
Frontiero v. Richardson (1973): 5th A., Gender Discrimination..........................................................168
Craig v. Boren (1976): 14th A., Gender Discrimination......................................................................168
U.S. v. Virginia (1996): 14th A., Gender Discrimination.....................................................................168
Watkins v. U.S. Army (1989): 14th A, Gay Discrimination, Status v. Conduct...................................170
Romer v. Evans (1996): 14th A., Gay Discrimination, political participation.....................................170
Baehr v. Lewin (1993): Gay Marriage, Equal Rights.........................................................................170

192

CASES
Adamson v. California-------------------------------------------------------------------------------------------------------130, 199
Adkins v. Childrens Hospital-----------------------------------------------------------------------------------------------139, 141
Allen v. Wright-------------------------------------------------------------------------------------------------------------63, 64, 196
Amalgamated Meat Cutters v. Connally-------------------------------------------------------------------------------------82, 97
Baehr v. Lewin----------------------------------------------------------------------------------------------------------------------209
Bailey v. Alabama------------------------------------------------------------------------------------------------------141, 161, 201
Bailey v. Drexel Furniture Co------------------------------------------------------------------------------------------------------40
Baker v. Carr---------------------------------------------------------------------------------------------------------67, 71, 143, 195
Barron v. Baltimore-----------------------------------------------------------------------------------------------------------------128
Barron v. Mayor & City Council of Baltimore---------------------------------------------------------------------------------130
Bolling v. Sharpe-------------------------------------------------------------------------------------------------------------123, 179
Bowers v. Hardwick----------------------------------------------------------------------------------------------------164, 177, 204
Bowsher v. Synar---------------------------------------------------------------------------------------------------------------89, 194
Bradwell v. Illinois-----------------------------------------------------------------------------------------------------------------206
Breyer-------------------------------------------------------------------------------------------------------37, 66, 79, 168, 171, 196
Brown II------------------------------------------------------------------------------------------------------------------------124, 178
Brown v. Board of Education------------------------------------------------------------------59, 122, 123, 156, 160, 178, 197
Buckley v. Valeo----------------------------------------------------------------------------------------------------------------------88
Carter v. Carter Coal Co-------------------------------------------------------------------------------------------------------------12
Champion v. Ames--------------------------------------------------------------------------------------------------------------9, 182
Church of the Lukumi Babalu Aye v. City of Hialeah--------------------------------------------------------------------------43
City of Boerne v. Flores--------------------------------------------------------------------------------------------------43, 46, 186
City of Cleburne v. Cleburne Living Center------------------------------------------------------------------------------------163
City of Philadelphia v. New Jersey------------------------------------------------------------------------------------------28, 189
Clinton v. City of New York------------------------------------------------------------------------------------------------------193
Clinton v. Jones-----------------------------------------------------------------------------------------------------------------79, 192
Coleman v. Miller---------------------------------------------------------------------------------------------------------------65, 70
Commodity Futures T.C. v. Schor------------------------------------------------------------------------------------------------194
Cooley v. Board of Port Wardens--------------------------------------------------------------------------------------------27, 188
Cooper v. Aaron-------------------------------------------------------------------------------------------------------56, 58, 75, 179
Coppage v. Kansas------------------------------------------------------------------------------------------------------------------140
Corfield v. Coryell------------------------------------------------------------------------------------------------------------------190
Craig v. Boren-----------------------------------------------------------------------------------------------------------120, 171, 207
Dames & Moore v. Regan----------------------------------------------------------------------------------------------72, 106, 191
Davis v. Bandemer-------------------------------------------------------------------------------------------------------------------69
Dellums v. Bush---------------------------------------------------------------------------------------------------------------------103
Dellums v. Powell--------------------------------------------------------------------------------------------------------------------77
Dept. of Agriculture v. Moreno---------------------------------------------------------------------------------------------------176
Dred Scott v. Sanford-----------------------------------------------------------------------------------------------58, 59, 115, 116
Duncan v. Louisiana----------------------------------------------------------------------------------------------------------------131
Edmond v. United States------------------------------------------------------------------------------------------------------------93
Eisenstadt v. Baird------------------------------------------------------------------------------------------------------------------150
El Paso v. Simmons----------------------------------------------------------------------------------------------------------------134
Employment Division v. Smith----------------------------------------------------------------------------------------------------43
Ex Parte McCardle-------------------------------------------------------------------------------------------------------------60, 195
Exxon Corp. v. Governor of Maryland--------------------------------------------------------------------------------------48, 114
FCC v. Beach Communications--------------------------------------------------------------------------------------------------205
Ferguson v. Skrupa-----------------------------------------------------------------------------------------------------------136, 144
Flast v. Cohen-------------------------------------------------------------------------------------------------------------------------63
Fletcher v. Peck---------------------------------------------------------------------------------------------------131, 132, 134, 197
Freeman v. Pitts---------------------------------------------------------------------------------------------------------------180, 197
Freytag v. Commissioner of Internal Revenue-----------------------------------------------------------------------------------93
Frontiero v. Richardson------------------------------------------------------------------------------------------------------171, 206

193

Garcia v. San Antonio Metro Transit Auth---------------------------------------------------------------------------------31, 187

Gibbons v. Ogden-----------------------------------------------------------------------------------------------------7, 27, 182, 184
Griswold v. Connecticut-----------------------------------------------------------------------------------------146, 147, 153, 203
Hammer v. Dagenhart------------------------------------------------------------------------------------------10, 11, 40, 183, 184
Harlow v. Fitzgerald-----------------------------------------------------------------------------------------------------------------79
Heart of Atlanta Motel v. United States-------------------------------------------------------------------------------------18, 184
Heckler v. Chaney--------------------------------------------------------------------------------------------------------------------75
Holden v. Hardy---------------------------------------------------------------------------------------------------------------------139
Home Building and Loan Assn. v. Blaisdell------------------------------------------------------------------------------------133
Humphreys Executor v. United States--------------------------------------------------------------------------------------------88
Hunt v. Washington State Apple Advertising Commn-------------------------------------------------------------------50, 114
Industrial Union v. American Petroleum Institute-------------------------------------------------------------------------------97
INS v. Chadha------------------------------------------------------------------------------------------82, 85, 86, 91, 92, 108, 193
Jones v. Alfred H. Mayer Co---------------------------------------------------------------------------------------------------43, 45
Jones v. Mayer----------------------------------------------------------------------------------------------------------------162, 187
Kassel v. Consolidated Freightways Corp--------------------------------------------------------------------------------------189
Katzenbach v. McClung-------------------------------------------------------------------------------------------------------23, 185
Katzenbach v. Morgan-------------------------------------------------------------------------------------19, 42, 44, 46, 128, 186
Korematsu v. United---------------------------------------------------------------------------------------------------118, 120, 192
Lassiter v. Northampton Election Board------------------------------------------------------------------------------------------42
Lochner v. New York-----------------------------------------------58, 59, 118, 128, 132, 135, 136, 137, 138, 142, 147, 200
Loving v. United States--------------------------------------------------------------------------------------------------------------97
Lujan v. Defenders of the Wildlife-------------------------------------------------------------------------------------------64, 196
Marbury v. Madison--------------------------------------------------------------------------------32, 44, 53, 54, 57, 74, 75, 179
Martin v. Hunters Lessee-----------------------------------------------------------------------------------------------------57, 180
Mathews v. Lucas-------------------------------------------------------------------------------------------------------------------120
McCulloch v. Maryland-----------------------------------------------------------------------------------------32, 38, 39, 60, 181
Metropolitan Life Insurance Co. v. Ward-----------------------------------------------------------------------------------------48
Metropolitan Washington Airports Authority--------------------------------------------------------------------------------94, 95
Meyer v. Nebraska------------------------------------------------------------------------------------------------------146, 152, 202
Meyers v. United States-------------------------------------------------------------------------------------------------------------87
Mills v. Habluetzel------------------------------------------------------------------------------------------------------------------120
Mississippi v. Johnson---------------------------------------------------------------------------------------------------------------78
Missouri v. Holland------------------------------------------------------------------------------------------------------------39, 186
Missouri v. Jenkins-----------------------------------------------------------------------------------------------------------------197
Mistretta v. United States----------------------------------------------------------------------------------------------------111, 193
Moore v. East Clevland------------------------------------------------------------------------------------------------------------164
Morrison v. Olson------------------------------------------------------------------------------------------------------------109, 194
Munn v. Illinois---------------------------------------------------------------------------------------------------------------------140
Murray v. Hoboken Land & Improvement Co---------------------------------------------------------------------------------130
NAACP v. Alabama----------------------------------------------------------------------------------------------------------------148
National League of Cities v. Usery---------------------------------------------------------------------------------24, 31, 32, 187
Nebbia v. New York----------------------------------------------------------------------------------------------------------140, 142
New York v. United States-------------------------------------------------------------------------------33, 35, 36, 108, 113, 188
Nixon v. Administrator of General Services-------------------------------------------------------------------------------------79
Nixon v. Fitzgerald--------------------------------------------------------------------------------------------------------------78, 79
Nixon v. United States----------------------------------------------------------------------------------------------------69, 80, 195
NLRB v. Jones & Laughlin Steel Corp-------------------------------------------------------------------------------------14, 184
Northern Pipeline Co. v. Marathon-----------------------------------------------------------------------------------------------194
Ogden v. Saunders------------------------------------------------------------------------------------------------------------132, 198
Orlando v. Laird---------------------------------------------------------------------------------------------------------------------103
Palko v. Connecticut---------------------------------------------------------------------------------------------------130, 164, 199
Panama Refining Co. v. Ryan------------------------------------------------------------------------------------------------------96
Pennhurst State School & Hospital v. Halderman-------------------------------------------------------------------------------26
Perez v. Campbell--------------------------------------------------------------------------------------------------------------------47
Perez v. U.S.--------------------------------------------------------------------------------------------------------------------------24

194

Peters v. Kiff-------------------------------------------------------------------------------------------------------------------------178
Pierce v. Society of Sisters--------------------------------------------------------------------------------------------------146, 152
Pike v. Bruce Church, Inc.----------------------------------------------------------------------------------------------------------28
Planned Parenthood v. Casey-----------------------------------------------------------------------------------151, 153, 154, 204
Plessy v. Ferguson------------------------------------------------------------------------------------------------------------160, 178
Poe v. Ullman-----------------------------------------------------------------------------------------------------------------149, 202
Printz v. U.S.---------------------------------------------------------------------------------------------------------------33, 36, 188
Prize Cases---------------------------------------------------------------------------------------------------------------------------103
Process Gas Consumers Group v. Consumers Energy Council of America-------------------------------------------------85
Railway Express Agency v. New York------------------------------------------------------------------------------------------205
Raines v. Byrd------------------------------------------------------------------------------------------------------------------65, 196
Reed v. Reed-------------------------------------------------------------------------------------------------------------------------171
Reeves, Inc. v. Stake-----------------------------------------------------------------------------------------------------------------31
Rice v. Santa Fe Elevator Corp-----------------------------------------------------------------------------------------------------47
Roe v. Wade---------------------------------------------------------------------------------------59, 151, 153, 154, 160, 203, 204
Romer v. Evans---------------------------------------------------------------------------------------------------------------175, 208
Schechter Poultry Corp. v. United States-------------------------------------------------------------------------------------12, 96
Senate Select Committee on Presidential Campaign Activities v. Nixon----------------------------------------------------77
Shaw v. Delta Air Lines-------------------------------------------------------------------------------------------------------------46
Sherbert v. Verner--------------------------------------------------------------------------------------------------------------------43
Skinner v. Oklahoma---------------------------------------------------------------------------------------------------------------200
Slaughter-House Cases------------------------------------------------------------------------------------127, 128, 137, 144, 199
South Dakota v. Dole----------------------------------------------------------------------------------------------------------26, 185
Stafford v. Wallace----------------------------------------------------------------------------------------------------------------9, 12
Stanley v. Georgia------------------------------------------------------------------------------------------------------------164, 166
State v. Post--------------------------------------------------------------------------------------------------------------------------114
Steward Machine Co. v. Davis-----------------------------------------------------------------------------------------------------26
Strauder v. West Virginia----------------------------------------------------------------------------------------116, 117, 118, 178
Swann v. Charlotte-Mecklenburg Bd. Ed.--------------------------------------------------------------------------------------180
Swift & Co. v. US------------------------------------------------------------------------------------------------------------------183
Texas v. White------------------------------------------------------------------------------------------------------------------------41
Touby v. United States---------------------------------------------------------------------------------------------------------------97
Twining v. New Jersey-------------------------------------------------------------------------------------------------------------130
United Building & Constr. Trades Council v. Camden-------------------------------------------------------------------47, 190
United States Senate v. FTC--------------------------------------------------------------------------------------------------------85
United States Trust v. New Jersey------------------------------------------------------------------------------------------------131
United States v. AT&T---------------------------------------------------------------------------------------------------------------77
United States v. Belmont----------------------------------------------------------------------------------------------------------106
United States v. Butler----------------------------------------------------------------------------------------------------------25, 29
United States v. Carolene Products Co------------------------------------------------------------------------------------142, 144
United States v. Curtiss-Wright Corp--------------------------------------------------------------------------------------100, 191
United States v. E.C. Knight---------------------------------------------------------------------------------------------------8, 182
United States v. Klein----------------------------------------------------------------------------------------------------------------61
United States v. Lopez------------------------------------------------------------------------------------------20, 23, 26, 113, 185
United States v. Nixon---------------------------------------------------------------------------------------------------------74, 192
United States v. Virginia-----------------------------------------------------------------------------------------------------173, 207
US v. Darby---------------------------------------------------------------------------------------------------------------------16, 184
Washington v. Davis----------------------------------------------------------------------------------------------------------121, 125
Washington v. Glucksberg---------------------------------------------------------------------------------------------------167, 205
Watkins v. U.S. Army--------------------------------------------------------------------------------------------------------------208
Weiss v. United States---------------------------------------------------------------------------------------------------------------93
West Coast Hotel v. Parrish---------------------------------------------------------------------------------------15, 138, 142, 201
West Lynn Creamery, Inc. v. Healy------------------------------------------------------------------------------------------29, 190
West Virginia State Board of Education v. Barnette---------------------------------------------------------------------------145
Whitney v. Robertson--------------------------------------------------------------------------------------------------------------106
Wickard v. Filburn---------------------------------------------------------------------------------------------5, 15, 18, 19, 72, 185

195

Wiener v. United States--------------------------------------------------------------------------------------------------------------88

Williamson v. Lee Optical---------------------------------------------------------------------------------------------------144, 202
Willson v. Black Bird Creek Marsh Co-------------------------------------------------------------------------------------------27
Woods v. Cloyd W. Miller Co.-----------------------------------------------------------------------------------------------------40
Youngstown Sheet & Tube v. Sawyer (The Steel Seizure Case)--------------------------------------------------------71, 191

196

STATUTES
13th Amendment-------------------------------------------------------------------------------------141, 161, 162, 163, 178, 187
14th Amendment---58, 117, 118, 120 - 123, 127 - 128, 130, 135 - 138, 146, 149 - 152, 163 - 165, 178, 180, 199, 203,
205
21st Amendment--------------------------------------------------------------------------------------------------------------------185
2nd Amendment----------------------------------------------------------------------------------------------------------------------37
5th Amendment---------------------------------------------------------------------------------------------------115, 123, 130, 179
8th A----------------------------------------------------------------------------------------------------------------------164, 165, 205
Agricultural Adjustment Act of 1933----------------------------------------------------------------------------------------------25
Art. II, 4------------------------------------------------------------------------------------------------------------------------------80
Article I, 8--------------------------------------------------------------------------------------------------1, 2, 25, 29, 63, 64, 82
Article I, 10------------------------------------------------------------------------------------------------------------------106, 132
Article I, 3, Clause 6---------------------------------------------------------------------------------------------------------------69
Article II, 1--------------------------------------------------------------------------------------------------------------------------71
Article II, 2-------------------------------------------------------------------------------------------------------------------105, 109
Article III, 3-------------------------------------------------------------------------------------------------------------------------71
Article III. 2------------------------------------------------------------------------------------------------------------54, 55, 57, 59
Article IV---------------------------------------------------------------------------------------------------------------47, 68, 99, 127
Article IV, 2------------------------------------------------------------------------------------------------------------------------127
Article V, 6-------------------------------------------------------------------------------------------------------------------------106
Bill of Rights---------------------------------------------------------------------------1, 2, 3, 115, 130, 145, 149, 150, 199, 200
Brady Bill-----------------------------------------------------------------------------------------------------------------------------36
Child Labor Tax Law of 1919------------------------------------------------------------------------------------------------------40
Civil Rights Act of 1964-----------------------------------------------------------------------------------------------------------180
Ethics in Government Act---------------------------------------------------------------------------------------------------------109
Gramm-Rudman Act------------------------------------------------------------------------------------------------------------89, 92
Housing and Rent Act of 1947-----------------------------------------------------------------------------------------------------40
Impoundment Control Act of 1974-----------------------------------------------------------------------------------------------107
Low-Level Radioactive Waste Policy Amendments Act of 1985-------------------------------------------------------------34
National Industrial Recovery Act--------------------------------------------------------------------------------------------------96
Ninth Amendment------------------------------------------------------------------------------------------------------------------149
Religious Freedom Restoration Act-----------------------------------------------------------------------------------------43, 187
Sixth Amendment-------------------------------------------------------------------------------------------------------------------131
Stewart----------------------------------------------------------------------------------------------------------28, 98, 150, 152, 203
Taft-Harley Act-----------------------------------------------------------------------------------------------------------------------71
Title II of 1964 Civil Rights Act---------------------------------------------------------------------------------------------------19
Unfunded Mandate Reform Act--------------------------------------------------------------------------------------------108, 112
War Powers Resolution------------------------------------------------------------------------------------------------------------104

197

OTHER AUTHORITIES
Ackerman-------------------------------------------------------------------------------------------------------19, 42, 106, 145, 147
Blackmun-------------------------------------------------------65, 93, 111, 151, 153, 159, 160, 165, 166, 180, 187, 203, 205
Bork-----------------------------------------------------------------------------------------------------------------------------123, 124
Brennan-------------------------------------------------------------------63, 67, 68, 70, 80, 131, 150, 161, 194, 203, 205, 206
Brown--------------------------------------------------------------------------------------------------------------------------------117
Burger-----------------------------------------------------------------------------------------50, 74, 75, 82, 89, 95, 153, 165, 180
Calabresi-------------------------------------------------------------------------------------------------------------------------24, 123
Cardozo---------------------------------------------------------------------------------------------------14, 26, 130, 134, 144, 199
Chase---------------------------------------------------------------------------------------------------------132, 133, 136, 198, 199
Chermerinsky-------------------------------------------------------------------------------------------------------------------------62
Clark-----------------------------------------------------------------------------------------------------------------------------------18
Curtis---------------------------------------------------------------------------------------------------------------------------------130
Day-------------------------------------------------------------------------------------------------------------------------------------10
Douglas-------------------------------------------------------------------------72, 144, 147, 148, 149, 151, 152, 153, 191, 200
Easterbrook-----------------------------------------------------------------------------------------------------------------------58, 66
Ely------------------------------------------------------------------------------------5, 48, 98, 102, 103, 105, 114, 121, 136, 143
Federalist 47(Madison)--------------------------------------------------------------------------------------------------------------52
Federalist 48 (Madison)-------------------------------------------------------------------------------------------------------------52
Flaherty--------------------------------------------------------------------------------------------------------------------------------53
Frankfurter------------------------------------------------------------------------------------------------------68, 71, 128, 129, 131
Fuller------------------------------------------------------------------------------------------------------------------------------------8
Golove--------------------------------------------------------------------------------------------------------------------------------106
Grier----------------------------------------------------------------------------------------------------------------------------------103
Harlan-------------------------------------------------------------------------------8, 10, 117, 118, 135, 139, 149, 150, 151, 182
Holmes----------------------------------------------------------------------------------------------10, 39, 136, 139, 141, 146, 200
Hughes-------------------------------------------------------------------------------------------------9, 12, 14, 133, 141, 142, 184
Iridell---------------------------------------------------------------------------------------------------------------------------------133
Jackson-------------------------------------------------------------------15, 16, 19, 28, 30, 58, 71, 72, 104, 119, 145, 191, 200
Jefferson Powell----------------------------------------------------------------------------------------------------------------------35
Kennedy--------------------------------------------------------------------------------65, 97, 154, 175, 176, 180, 188, 204, 209
Lessig----------------------------------------------------------------------------------------------------------------------------------24
Lincoln---------------------------------------------------------------------------------------------------------------------------------59
Locke---------------------------------------------------------------------------------------------------------------------------136, 138
Lowi------------------------------------------------------------------------------------------------------------------------------------98
Marshall----2, 3, 4, 7, 8, 16, 19, 27, 30, 39, 53, 54, 55, 57, 61, 62, 67, 74, 90, 128, 130, 131, 132, 179, 181, 182, 189,
198, 203, 205
Miller---------------------------------------------------------------------------------------------------------------------127, 128, 137
Murphy-------------------------------------------------------------------------------------------------------------------------------119
OConnor-----------------------------------------------------------------------------------63, 151, 154, 168, 170, 180, 194, 204
Peckham-----------------------------------------------------------------------------------------------------------------135, 138, 147
Powell------------------------------------------------------------------------------------------------32, 35, 78, 164, 165, 194, 205
Rehnquist- -65, 69, 72, 73, 83, 93, 97, 98, 104, 109, 153, 158, 159, 160, 161, 167, 168, 169, 170, 171, 173, 185, 188,
189, 194, 205
Roberts---------------------------------------------------------------------------------------------------------------------25, 142, 184
rpretat--------------------------------------------------------------------------------------------------------58, 59, 73, 75, 103, 137
Sager-----------------------------------------------------------------------------------------------------------------------------64, 126
Scalia-------------------------------------------------------------64, 93, 94, 110, 111, 161, 174, 175, 176, 177, 188, 193, 204
Schoenbrod----------------------------------------------------------------------------------------------------------------------------97
Souter-----------------------------------------------------------------------------------66, 70, 154, 168, 170, 171, 180, 188, 204
Stevens--------------------------------------------------------------65, 66, 79, 90, 94, 159, 166, 168, 170, 180, 188, 192, 205
Stone-----------------------------------------------------------------------------------------------------16, 25, 28, 30, 48, 142, 184
Story------------------------------------------------------------------------------------------------------------------------------57, 180
Strong---------------------------------------------------------------------------------------------------------------------------------116

198

Sutherland-----------------------------------------------------------------------------------------------------12, 100, 138, 191, 202

Taft------------------------------------------------------------------------------------------------------------------------------9, 71, 87
Taney---------------------------------------------------------------------------------------------------------------------------115, 116
Thomas--------------------------------------------------------------------------------------------------22, 36, 38, 39, 53, 185, 188
Tribe---------------------------------------------------------------------------------------------------------------------75, 76, 84, 106
Vinson----------------------------------------------------------------------------------------------------------------------------------72
Warren--------------------------------------------------------------------------------------------------------122, 123, 124, 178, 203
Wechsler-Choper---------------------------------------------------------------------------------------------------------------------32
Werhan---------------------------------------------------------------------------------------------------------------------------------53
White--------------------------------------------------69, 70, 79, 83, 85, 86, 91, 95, 125, 131, 150, 153, 164, 165, 194, 204

199

1
10th Amendment....................................................................................................7, 10, 15, 16, 31, 33 - 36, 38, 40, 108
A
Abortion...............................................................................................................59, 114, 151 - 163, 165, 167, 203, 204
Adams...........................................................................................................................................................................53
Agricultural Adjustment Act.........................................................................................................................................15
Appellate Jurisdiction...................................................................................................................................................59
Appointments Clause....................................................................................................................................................88
B
bakery..........................................................................................................................................................................135
Bank of the United States...............................................................................................................................................4
bicameralism and presentment......................................................................................................................................83
Bituminous Coal Conservation Act..............................................................................................................................12
Boland Amendments...................................................................................................................................................105
C
Case or Controversy......................................................................................................................................................61
Case or Controversy Requirement................................................................................................................................59
Certiorari.......................................................................................................................................................................70
Chadha.............................................................................................................................82 - 86, 91, 92, 94, 95, 99, 104
Checks and Balances.....................................................................................................................................................52
Child Labor Case..........................................................................................................................................................10
class of acts...................................................................................................................................................................15
Commerce Clause.......................7, 8, 11, 12, 14, 17, 18, 21, 22, 27, 28, 31, 32, 46 - 49, 134, 182, 184, 185, 188 - 190
Concurrent powers........................................................................................................................................................46
Congressional-Executive Agreements........................................................................................................................106
contraceptives.....................................................................................................................................147, 148, 150, 159
Contracts Clause.........................................................................................................................113, 131, 133, 134, 198
Counter-majoritarian.....................................................................................................................................................58
Countermajoritarian difficulty......................................................................................................................................56
critique..........................................................................................8, 77, 83, 84, 110, 123, 124, 136, 137, 139, 143, 166
Critique........................................................................................................4, 11, 35, 40, 55, 76, 95, 125, 148, 150, 158
cumulative effect...........................................................................................................................................................15
D
DCC.................................................................................................................................................................27 - 31, 49
Departmentalism...........................................................................................................................................................59
desegregation order.......................................................................................................................................................58
Disproportionate impact..............................................................................................................................................121
Doctrinal Modality........................................................................................................................................................30
Doctrine of Implied Powers............................................................................................................................................2
Dormant Commerce Clause..........................................................................................................................27, 189, 190
Double Jeopardy.........................................................................................................................................................199
Due Process.........................131, 135, 144, 149, 152, 156, 160, 165, 168, 170, 179, 186, 199, 200, 202, 203, 205, 206
E
Economic Rights.........................................................................................................................................................144
enumerated powers........................................................................................................................1 - 4, 8, 11, 25, 35, 39
Equal Housing.............................................................................................................................................................187
Equal Protection....................................................................................................68, 114, 116, 117, 120, 126, 164, 176
Establishment Clause....................................................................................................................................................64

200

Ethical Argument........................................................................................................................................................132
Ethical Modality............................................................................................................................................................30
ex post facto..........................................................................................................................................................46, 132
Ex post facto.......................................................................................................................................................132, 198
Exceptions clause........................................................................................................................................................195
Exclusive federal powers..............................................................................................................................................46
Exclusive state powers..................................................................................................................................................46
Executive Authority..............................................................................................................................................71, 100
Executive Privilege........................................................................................................................................74 - 76, 192
F
Federal Election Commission.......................................................................................................................................88
Formalism.....................................................................................................................................................................52
Formalistic Argument...................................................................................................................................................83
Functionalism........................................................................................................................................9, 35, 52, 53, 101
G
GATT..........................................................................................................................................................................106
gay marriage................................................................................................................................................................209
Gender Discrimination........................................................................................................................................206, 207
gerrymandering.............................................................................................................................................................69
Good confusion.............................................................................................................................................................61
Guarantee Clause..........................................................................................................................................................41
guaranty clause..............................................................................................................................................................68
Guaranty Clause............................................................................................................................................................68
Gun Free Schools..........................................................................................................................................................20
H
habeus corpus................................................................................................................................................................60
Historical Modality.......................................................................................................................................................29
homosexual........................................................................................................161, 164 - 167, 175, 177, 204, 208, 209
I
Impeachment...........................................................................................................................................................69, 80
Implicit powers...........................................................................................................................................................191
Impoundment..............................................................................................................................................................107
Incorporation Controversy..........................................................................................................................................128
independent counsel......................................................................................................................................99, 109, 110
Independent Counsel...................................................................................................................................................194
Interstate Commerce...................................................................................................................................8, 9, 183, 190
Iranian hostage..............................................................................................................................................................72
J
Judicial Exclusivity.......................................................................................................................................................58
judicial review..............................................................23, 53 - 56, 58, 61, 68 - 70, 74, 76, 90, 105, 112, 120, 121, 125
Judicial review..............................................................................................................................................................68
Judicial Review...................................................................................................................................................179, 180
JUDICIAL REVIEW....................................................................................................................................................53
L
Legislative authority...........................................................................................................................................104, 186
legislative veto..............................................................................................................................................................99
Legislative Veto....................................................................................................................................................99, 193
liberalism.....................................................................................................................................................................136
Liberalism...........................................................................................................................................................136, 138
liberty of contract................................................................................................................................................135, 139

201

line item veto...............................................................................................................................................................108

Line Item Veto...............................................................................................................................................................65
Lochner.......................................................................................................................................124, 142, 145, 147, 200
lottery....................................................................................................................................................................10, 182
Lottery Case..............................................................................................................................................................9, 11
M
Market Participant Exception.......................................................................................................................................31
migratory birds..............................................................................................................................................................39
milk.......................................................................................................................................................................29, 142
minimal scrutiny review.............................................................................................................................................206
Minimal Scrutiny Test.................................................................................................................................................120
Minimum wage.............................................................................................................................................................16
N
NAFTA.......................................................................................................................................................................106
National Labor Relations Act........................................................................................................................................14
natural justice..............................................................................................................................................................133
Necessary and proper..................................................................................................................................................2, 3
Necessary and proper clause.........................................................................................................................................2
New Deal.........................................................11, 12, 19, 20, 23, 25, 35, 41, 58, 95, 97, 101, 134, 135, 144 - 147, 149
NJ landfills....................................................................................................................................................................28
Non delegation......................................................................................................................................................95, 193
nondelegation doctrine......................................................................................................................83, 89, 96 - 99, 108
Nondelegation doctrine...........................................................................................................................................96, 98
Nondelegation Doctrine................................................................................................................................................95
non-justiciable...........................................................................................................................................67, 68, 69, 103
O
Officer of U.S................................................................................................................................................................88
Ollies Barbecue......................................................................................................................................................18, 19
Originalist...................................................................................................................................................................132
Originalist/Historical Argument..................................................................................................................................132
OSHA............................................................................................................................................................................97
P
personal service contract.............................................................................................................................................141
PIC..................................................................................................................................................47, 48, 127, 128, 137
Planned Parenthood............................................................................................................................147, 149, 151, 153
Political Constraints on SC...........................................................................................................................................59
Political Question........................................................................................................................................................195
Political Question Doctrine...........................................................................................................................................67
Preemption....................................................................................................................................................................46
Presidential Immunity.................................................................................................................................................192
Privileges and Immunities.....................................................................................................................................47, 127
prudential argument................................................................................................................................................57, 58
Prudential Modality................................................................................................................................................31, 62
Q
Quasi-suspect standard................................................................................................................................................120
R
Race Discrimination....................................................................................................................................................201
Rational Basis review.................................................................................................................................................205
Rational Basis Review................................................................................................................................................205
Reconstruction Amendments..................................................................................................................................41, 42

202

reserve powers................................................................................................................................................................1
RFRA................................................................................................................................................................43, 44, 45
Right of Privacy..........................................................................................................................................................145
Ripeness................................................................................................................................................................70, 202
S
separation of powers............1, 3, 36, 52, 53, 64, 67, 74 - 76, 79, 80, 83, 86, 89, 91 - 95, 99, 100, 109 - 113, 191 - 195
Shared powers...............................................................................................................................................................46
Slaughter-House Cases...............................................................................................................................................127
Slavery............................................................................................................................................................8, 114, 163
sodomy......................................................................................................................................................161, 164 - 167
Sovereignty.....................................................................................................................................................................4
Sovereignty argument...................................................................................................................................................57
Spatial privacy............................................................................................................................................................166
special prosecutor................................................................................................................................................109, 110
Special prosecutor.......................................................................................................................................................109
Spending Power............................................................................................................................................................25
Standard of Review.....................................................................................................................................................152
Standing........................................................................................................................................................................61
STANDING................................................................................................................................................................197
Stare decisis..................................................................................................................................................................23
Stare Decisis........................................................................................................................................................155, 160
State powers, conditional on federal permission..........................................................................................................46
Sterilization.................................................................................................................................................................200
Strict Scrutiny Test......................................................................................................................................................120
Structural Modality.......................................................................................................................................................30
Substantive Due Process.....................................................................................................................135, 144, 145, 200
suicide........................................................................................................................................................161, 167 - 171
Supremacy Clause.................................................................................................................................46, 180, 188, 197
T
tax breaks......................................................................................................................................................................63
Taxing Power................................................................................................................................................................40
Taxpayer Standing........................................................................................................................................................63
Textual Modality...........................................................................................................................................................29
Treaty and War Powers.................................................................................................................................................39
Truman..............................................................................................................................................................71, 78, 96
U
U.S. Sentencing Commission......................................................................................................................................111
Unfunded Mandates....................................................................................................................................................108
V
Validity of 13th and 14th Amendments...........................................................................................................................41
W
War Powers.........................................................................................................................................100, 104, 105, 112
Watergate..........................................................................................................................................74, 76, 77, 104, 109

203