Constitutional Law: Separation of Powers, Federalism, and Fourteenth Amendment Fried

Spring 2015
INTRODUCTION
Why is the Constitution Our Law?
It says we the people but included within the document
States ratified it but it was ratified by conventions, an invention of the
Constitutional draft; a convention is not a legislature
Its the law because it says its the law but this is illegitimate, illegal, usurpatious
The Constitution is illegitimate
Colonies States is a revolutionary break: The states get the power from the
state constitutions which they inherited from common law from GB everything
started in the illegitimacy of the Declaration of independence
States Federal government is a revolutionary break: drafters of the Constitution
were just supposed to amend the Articles of Confederation
The Constitution Gives Itself Power
Art 6, Supremacy Clause: This Constitution and the Laws of the United States
which shall be made in pursuance thereof . . . shall be the Supreme Law of the
Land; and the Judges in every State shall be bound thereby
Art 6.: Every government employee of state, city, federal government shall be
bound by Oath or Affirmation to support the Constitution
THE FEDERAL JUDICIAL POWER

I. Authority for Judicial Review

Art. III does not grant power of judicial review
Marbury v. Madison (1803, Marshall): Judicial review. Commissions were signed but not
delivered for judicial appointments before TJ was inaugurated. TJ disregarded those
commissions.
1) Marbury has a right to the commission because it was signed and sealed.
o But didnt have to come out this way court could have decided it also had
to be delivered.
2) Marbury had a right to remedy. The Court can provide the remedy when a duty
is assigned by law and individual rights depend on performance of that duty.
However, when the executive possesses constitutional or legal discretion, then its
acts are only politically examinable.
3) Mandamus is the appropriate remedy when executive has legal duty to act or
refrain from acting.
4) The Judiciary Act is repugnant to the Constitution so is void. The Act grants the
Court the ability to grant mandamus on original jurisdiction, but OJ is already set
forth in the Constitution and Congress cannot alter it. Establishes the power of
judicial review of constitutional actions.
o Reasoning: Constitutional limits on governmental power are meaningless
without judicial review; by deciding cases, have to decide which law applies;
Court decides cases arising under the Constitution so determines

constitutionality; judges take oath of office to uphold constitution;

Constitution is the supreme law of the land
II. Supreme Court Authority to Review State Court Actions regarding federal
law
Martin v. Hunters Lessee (1819, Story): Supreme Court review of state court
actions regarding federal civil law. SCOTUS reverses VA court regarding who has
right to land (had interpreted U.S. treaty)
Under Article III, Sec. 2, Cl. 2, Supreme Court has AJ in all other cases, meaning it
has AJ over high state court decisions
Supremacy Clause says that federal interpretation trumps states interpretation
SCOTUS has power to review state court actions in the interest of uniformity.
State Court judges are not independentalso uphold the constitution, right of last
decision will always be abused. (State court judges may also be bias.)
Cohens v. Virginia (1821, Marshall): Supreme Court review of state court actions in
criminal proceedings. Cohens argued that they were immune from state laws for
selling congressionally-authorized lottery tickets because of the Supremacy Clause.
Judicial power extends to all cases arising under the constitution or laws of the U.S.
Doubts independence of state judges
III. Supreme Court Interpretive Strategy
Hunters Lessee: First parole evidence decision, not only textual.
See also, Obama making recess appointments to fill up vacancies that werent
confirmed. Didnt happen during the recess. But DCCir still allows him based
on course of performance.
Look to (1) actual language, (2) analysis of language in context, (3) what
happened after the language was drafted / how it was understood.
Example: Gun Control laws1111111111111
THE FEDERAL LEGISLATIVE POWER
I. Scope of the Legislative Power

ARTICLE I: All legislative powers herein granted shall be vested in a

Congress of the United States. . .
Amendment X: The powers not delegated to the United States by the
constitution, nor prohibited by it to the States, are reserved to the States,
respectively, or to the people.

Congress must have express or implied powers

Evaluating Federal Power: (1) Does Congress have authority under the Constitution
to legislate? (2) Does the law violate another constitutional provision or doctrine
(i.e. separation of powers or individual liberty)?
Evaluating State Power: Does the legislation violate the Constitution?

ARTICLE I. Section 8: The Congress shall have Power . . . To make all

Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof.
McCulloch v. Maryland (1819, Marshall): Broad federal powers: (a) federal govt is
supreme over the states and states cant negate federal actions, (b) court expansively
defines federal powers; (c) limits on states ability to interfere with federal actions. MD
tries to tax the bank of the US.
(1) Congress can charter a bankcertain fed. powers implied from N/P
(but not unlimited)
o Historical practice
o State do not retain power just because they ratified the constitution, the
people ratified the constitution
o Every power does not need to be enumerated. It would be impossible.
(This is a Constitution were expounding). Congress is not limited only to
those powers enumerated in the Constitution. Congress may choose any
means, not prohibited by the Constitution, to carry out its lawful authority.
If govt has such broad powers, it must have the means to execute them.
Textual argument: no limiting word in Xth Amend.
Structure/intent: if giving Congress some powers, assume that
framers wanted them to be able to exercise them
o Read necessary and proper cause broadly. Necessary is useful or desirable,
not indispensable. In 8 (expanding powers) not 9 (limiting powers).
RULE: Deference as long as tended directly to the execution of
delegated powers, or appropriate and plainly adapted to
achieving legitimate ends.
(2) State cannot tax bank
o Power to create bank includes power to preserve it.
o State could tax bank out of existence.
o Potentially self-interested motives of legislators to hoard benefits for their
own constituents.
Comstock v. United States (2010; Breyer): Federalism Limits on N/PCongress can
enact statute allowing federal court civil commitment of sexually dangerous
persons post-sentence
Regulation of commerce drying up items of trade by criminalizing possession of
things which are often but not inevitably moved in interstate chain criminal
conviction imprisonment right to keep you in prison beyond sentence
N/P is read very broadly for any useful legislation to exercise enumerated powers
Thomas (dissent): chain of inference is too expansive
United States Term Limits v. Thornton (1995, Stevens): State amendment creating term
limits for Federal Congress.
Term limits are not a time, place, or manner issue (Art.1, 4).
Not reserved by the 10th amendment because States cannot reserve
something they didnt possess. Ability to elect legislators was created by the
Constitution.
o (But lots of things States didnt possess, like airplanes)

Framers envisioned a uniform National legislature.

Kennedy (concurrence): Americans have state identity and national identity, and
states cannot interfere on the national one
Thomas (dissent): Constitutional authority from consent of the people of
each individual state, not the consent of the undifferentiated people of the
Nation. When constitution is silent, state has the power (see 10th and limited and
enumerated powers). Electing Congress is done by individuals of a state, not the
entire nation.

II. Power Under Specific Provisions

A. Commerce Clause

ARTICLE I. Section 8: The Congress shall have power . . . To regulate

Commerce with foreign Nations, and among the several States, and with
the Indian Tribes.

Questions: (1) What is commerce? (2) What does between the states mean?
(3) Does the Tenth Amendment limit Commerce Power (addressed in later
section)?
Beginnings
Traffic, but also
intercourse
including
transportation
and navigation
(Gibbons).

Pre-1937
Mining,
manufacturing, and
production are for the
states. (E.C. Knight;
Carter Coal; Kidd)

Among
the States

Involving more
than one state,
but can be
internal.
(Gibbons).

10th
Amendmen
t

Congress has
complete
authority to
regulate all
commerce.
(Gibbons)

Only when there is a

substantial effect on
interstate commerce.
(Shreveport vs
Schechter); or within
stream of commerce
(Swift; but see
Railroad Retirement
Board)
10th Amend. reserves
a zone of privacy for
states (like
production)

Commerc
e

1937-1995
No more
distinction
between
production
and
commerce.
(Wickard;
Jones &
Laughlin)
Substantial
effect on
interstate
commerce
(J&L;
Darby;
Wickard)

Modern
Use of channels
or
instrumentalities
of interstate
commerce
(Lopez). Must be
economic
activity
(Morrison).
Substantially
related /
substantial effect
(Lopez).

Return to
Gibbons
view. 10th
Amend. is
no longer a
limitation.

10th
Amendment as
limit (Printz; New
York)

1. Commerce Clause: Beginnings

Expansive View

Gibbons v. Ogden (1824, Marshall): NY legislatures monopoly on steam boats is

unconstitutional because conflicts with federal law (license to Gibbons) and because its
an impermissible restraint on interstate commerce.
Defining Commerce: broadly, all phases of business, including navigation (not
just traffic, buying/selling, and interchange of commodities).
Defining Among the States: not just among, but can be in the interior. But
limited, purely internal commerce is reserved for the states. But, Congress can
regulate intrastate commerce if affects interstate activities.
State Sovereignty: is not a limit. Congress has complete authority to regulate
all interstate commerce.
o Distinguish taxation (two entities can do at once) and inspection laws
(before commodity enters commerce).
o Pre-emptionstates have power of governance/police power and exercise of
these powers is ok as long as they dont interfere with some exertion of
federal power
2. Commerce Clause: Pre-1937
i. General:
Narrower construction
Laissez-faire economics, opposed to government economic regulation, laws
invalidated as interfering with freedom to contract
Court more likely to uphold laws dealing with morality and strike down laws
dealing with economics
What is commerce: Manufacturing, mining, agriculture are local
What is among the states: usually direct / indirect test, but sometimes use the
stream of commerce test
ii. Case LawInvalid Under Commerce Power (economic mechanism, purely local):
Kidd v. Pearson (1888): IA forbids the manufacture of alcohol for export. Court
upholds the law. Manufacture, mining, and agriculture are purely local.
U.S. v. E.C. Knight Co.: Direct v. Indirect effect test. Sherman Act prohibits
conspiracy in restraint of trade and monopolies. Government cannot reach a
monopoly in manufacture under the commerce clause (monopoly is in
production of sugar, not commerce). Restraint on trade is an indirect result.
Manufacture is not commerce.
Carter v. Carter Coal (1936): Act regulates maximum hours and minimum wages in
coal mines. Congress does not have the power to promote the general
welfare of the people even if it is an issue that affects the whole nation and only
a uniform national law can remedy it. Provisions effect production, local
activity, a commodity is not a part of IC until it enters IC. Indirect, not a direct,
effect on commerce
o Extent of effect doesnt matter, look to relation between the activity or
condition and the effect. Here, the Court reasoned that since production of
coal by a single person does not affect IC, so many people producing coal
also does not
Hammer v. Dagenhart (1918, The Child Labor Case): Act barring the interstate
transportation of goods produced by children is unconstitutional. The goods
shipped are harmless. The purpose of the Act is to regulate how goods are
produced before interstate commerce begins. Congress doesnt have the
power to regulate competition

Holmes (dissent): evils in Hammerstate can regulate internal affairs as

they want, but once they send products across state lines they are no longer
within their rights

iii. Case LawInvalid Under Commerce Power (economic mechanism, indirect relation):
Railroad Retirement Board v. Alton Railroad (1935): Invalidates Railroad Retirement
Act. Congress doesnt have the power to establish compulsory retirement and
pension plans. Pensions not related to efficiency of transportation but
to social welfare of works.
Schechter Poultry (1935): Act allows president to regulate industry including unfair
trade practices, minimum wages, maximum hours, prices, etc. The wages and
hours of employees are not subject to federal control. Interstate commerce
ends when reaches final destination. Wages and prices are too attenuated.
No federal power to stimulate economy by regulating prices.
iv. Case LawValid Under Commerce Power (economic mechanism, but close relation to
interstate commerce):
Shreveport Rate Case: Congress has the power to regulate purely intrastate rail
rates that discriminate against interstate railroad commerce. There is a close and
substantial relation to interstate commerce. Interstate and intrastate transactions
are so related that one involves the control of the other, so Congress can regulate.
The mechanism is economic.
Swift & Co. v. U.S.: Sustain Sherman Act injunction against price fixing by meat
dealers. Some local activities can be regulated because they are an integral
part of the current [stream] of commerce. Stop was only temporary for
the cattle
o But See Railway Retirement Board, clearly within stream of commerce
v. Case LawValid Under Commerce Power (moral mechanism):2
Injurious to public health
o Diseased Cattle: germs affect cattle being moved interstate
o Hipolite Egg: preserved eggs confiscated after leaving interstate commerce.
Power to regulate after they have left commerce.
Injurious to public morals
o Champion v. Ames (1903, lottery case): Court upholds federal act
prohibiting importing, mailing, or interstate transportation of lottery tickets.
Suppression of nuisances injurious to the public health or morality.
(DissentCongress does not have the general police power, states should
regulate lotteries).
o Hoke: Upholds Mann Act (transportation of women in interstate commerce
for immoral purposes). Carrying contagion into other states like the lottery.
o But an exception: See Hammer above
3. Commerce Clause: 1937-1995
Unlimited View
o Congress can regulate anything that has a cumulative substantial and
close relation to interstate commerce.
Why the change?
o Bad economicsneed to uphold New Deal Legislation
o Political reaction to FDRs reelection
o Arbitrary distinctions in doctrine (commerce v. production; direct v. indirect)

o FDRs court packing

Results
o Regulatory Law: Congress can broadly regulate anything that rationally may
effect interstate commerce
o Civil Rights Law (Heart of Atlanta; Katzenbach)
o Criminal Law (Perez)

i. Case LawValid Under Commerce Power (substantially affecting commerce)

NLRB v. Jones & Laughlin Steel Co. (1937, Hughes) (expanded Carter Coal)
substantially affecting commerce
o Act prevents any person from engaging in unlawful employment practices.
o Act is Constitutional because it regulated commerce. Activities have
a close and substantial relation to interstate commerce.
o Question of degree. Production here is not determinative because the effect
of a labor strike would be immediate and catastrophic. The company is
very large and its operations sprawl all throughout the U.S.
United States v. Darby (1941, Stone) (overrules Dagenhart)in commerce;
substantially affecting commerce
o Prohibits shipment of goods in interstate commerce made by employees
paid less than minimum wage (also regulated the hiring of workers).
o (1) Congress has the power to prevent shipment of goods in
interstate commerce. Even if the purpose of the Act is to prevent
substandard working conditions.
o (2) Congress can regulate workers who are engaged in production
of a good destined for interstate commerce. Intrastate activities
which have a substantial effect on commerce.
Wickard v. Fillburn (1942): the outer limits of substantially affecting commerce;
aggregation
o Large problem with wheat production. Purpose of the Act is to increase the
market price of wheat.
o Alone, an individual farmers consumption is not much, but in aggregate it
asserts a substantial effect on interstate commerce
o Rejects direct-indirect and production-manufacturing distinctions
Perez (1971): Loansharking may be local each time, but organized crime is
interstate. Aggregation is large.
ii. Case LawValid Under Commerce Power (substantially affecting commerce, civil rights
laws)
Heart of Atlanta Motel (1964): Discrimination based on race burdens interstate
commerce by discouraging travel by Blacks (upholds CRA which prohibited
discrimination by places of public accommodation)
o Activity is commerce when it concerns more States than one and has a
real and substantial relation to the national interest.
o Congress has a rational basis for finding that racial discrimination by motels
affected commerce and the means it selected to eliminate the evil are
responsible and appropriate.
o Not regulated under 5 because Court had held that 14th only applied to
government conduct, not private behavior.
Katzenback v. McClung (1964): BBQ joint that only serves Blacks via take-out
discourages travel and obstructs interstate commerce (cant eat at restaurants

while travelling). Deters professional and skilled people from moving into area.
Substantial amount of food from interstate commerce.
Daniel v. Paul: Amusement park in rural area. But, some of the snack bars food
came from interstate commerce. This was enough to subject it to the federal Civil
Rights Act

4. Commerce Clause: Modern View

What Congress Can Regulate (Lopez)
o (1) Things / People in interstate commerce (Champion v. Ameslottery;
Mann Act)
o (2) The use of channels of interstate commerce (Darby; Heart of Atlanta)
o (3) The instrumentalities of interstate commerce (Shreveport Rate;
Federal Safety Appliance Acttravelling on the same tracks as an interstate
train, making sure they arent stopped based on derailment)
o (4) Activities having a substantial relation to interstate commerce which
either affect or substantially affect interstate commerce
If economicvery deferential even if local because local market will
effect interstate commerce (Perez; Gonzalez)
Non-economicmust be very close, not too remote and not too local
(Lopez; Morrison)
i. Case LawInvalid Under Commerce Power (not substantially affecting commerce)
Lopez (1995, Rehnquist): Gun control act is too attenuated to have a substantial
relation
o Act makes it a federal offense to possess a firearm in a school zone.
o Economic effects (not interstate effects, more broadly) on interstate
commerce are too attenuated. Would have to pile inference upon inference.
(govt argued costs of crime and national productivity).
o Accepting govts argument would allow it to regulate anything.
o Thomas (concurrence): keep distinction between manufacturing and
commerce
o Kennedy (concurrence): importance of federalism
o Breyer (dissent): Congress could have a rational basis for believing that the
regulated activity significantly affected interstate commerce; look to effect
in the aggregate
Morrison (2000, Rehnquist): Gender-motivated crimes are not an economic activity
(economic v. non-economic distinction) and do not have a substantial
effect on interstate commerce; rejects aggregate effect test (invalidates part of
VWA which gives federal civil remedy to victims)
o Congressional findings alone are not enough to sustain legislation.
o Goes further than Lopez: narrows ability of Congress to regulate based on
findings of substantial effect; Congress cannot regulate based on
cumulative substantial effect
o Thomas (concurrence): even substantial effect test is too lenient
o Souter (dissent): aggregate has a substantial effect on interstate commerce;
national problem; defer to Congressional fact-finding
o Breyer (dissent): economic / non-economic distinction is difficult to apply
(every activity has an economic aspect, especially in the aggregate)
o Fried: If no economic/non-economic distinction then Congress could
regulate anything

ii. Case LawValid Under Commerce Power (economic activity, substantially affecting
commerce)
Gonzalez v. Raich (2005, Stevens): prohibits the local cultivation and use of
marijuana while CA law allows it for medical use
o Activities can be purely local if part of an economic class of activities
that have a substantial effect on interstate commerce (like Wickard)
Activity can be economic even if not commercial (i.e. goods that are
not produced for sale; as long as it is production, distribution, and
consumption or commodities)
o CSA directly regulates economic, commercial activity: comprehensive
framework for regulating production, distribution, and possession of
controlled substances; prohibiting the intrastate possession or manufacture
of an article of commerce is a rational means of regulating commerce in
that product
o Doesnt overturn Lopez or Morrison: intrastate production of a
commodity sold in interstate commerce is economic activity and
thus substantial effect can be based on cumulative impact
o Scalia (concur): activities that substantially regulate commerce must come
from the Commerce Clause and the Necessary and Proper Clause; test
whether means chosen are reasonably adapted to the attainment of a
legitimate end under the commerce power (the legal marijuana is going to
leak into the illegal marketany amount of cultivation in any market no
matter how local and restricted will affect interstate commerce)
o OConnor (dissent): federalism encourages states to be laboratories; police
power with the states; indistinguishable from Lopez; mere possession is not
commerce; no showing of substantial effect
o Thomas (dissent): possession is not commerce, Congress could regulate
anything, state powers
iii. Case LawValid Under N/P and Commerce Power
Comstock (2010, Breyer):
o Statute allows courts to order civil commitment of mentally ill, sexually
dangerous federal prisoners
o Valid under necessary and proper clause: useful to exercise of
Congress powers (to create federal criminal laws, imprison, maintain
security of outsiders), only a modest addition, individuals are already in
custody, reasonably adapted, accounts for states interests, limited in scope
(not general police power)
Regulating commercedrying up items in commercen/p making
possession of things which often but not inevitably moved in chain
criminal conviction imprisonment the right to keep you in prison
beyond your sentence
Possession of Child Porn: If we shut down, then the interstate
commerce in child porn will dry up. So, possession of child
pornography is a federal crime under the N/P clause related to the
regulation of commerce regulating items in commerce
o Kennedy (concur): rational basis testtangible link not just rational relation
o Thomas (dissent): N/P must support an enumerated power; power to care
for the mentally ill and protect the community are powers of the states

United States v. Kebodeaux (Breyer, 2013): Congress has authority under N&P
clause to require convicted member of Air Force to register as a sex offender under
SORNA
o N&P used in furtherance of Congress independent power to regulate
land/naval forces here (Art. I, 8, cl. 14)
o Roberts (concur): All that matters is Congress rationally determined that the
registration requirement would further the Uniform Code of Military Justice
o Thomas (dissent): Does not carry any enumerated power into execution; is
instead aimed at protecting society from sex offenders

iv. Case LawInvalid Under N/P and Commerce Power

NFIB v. Sebelius (2012, Roberts)
o Cost-shifting problem in healthcare market, everyone will eventually need
healthcare, but not everyone buys health insurance.
CF: Unlike Social Security, where not everyone is covered
o Commerce clause does not allow Congress to compel individuals to
engage in commerce. The power to regulate commerce presupposes the
existence of commercial activity to be regulated. Power reaches activity
not inactivity. (In Wickard farmer was already engaged in commerce)
o Cannot regulate under necessary and proper clause unless it is in
service of an enumerated power. Because cant regulate under CC,
cant regulate under NP.
o Scalia (concurring here): Congress is reaching those the furthest removed
from the market (healthy individuals); the decision not to participate in
interstate market is not a commercial activity (or any activity)
o Ginsburg (dissenting here): healthcare market is different (high cost,
unpredictability inevitability; inability to pay doesnt mean you wont receive
care); national solution needed; Congress can use CC based on practical
considerations and actual experience N/P: minimum coverage provision
is an essential part of the whole scheme
o CF: Simple argument is best that Congress can regulate (make the rule for)
commerce that concerns more states than one. No one disputed that was
commerce/affected more states than one.
Also, Constitution does not prevent Congress from making people
enter commerce.
Not a deprivation of liberty to tax someone.
B. Taxing and Spending

ARTICLE I. Section 8: The Congress shall have power To lay and collect
Taxes, duties, Imposts and Excises to pay the Debts and provide for the
common Defence and general welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States.
Summary: Congress has expansive power to spend for the general welfare (Helvering,
Constitution), as long as it does not violate another Constitutional provision by
being explicitly prohibited by the provision (Butler; Dole). Congress may impose
conditions on grants to state and local governments as long as they relate to the
purpose of spending and are clearly stated (Dole, ACA). It must at least raise some
revenue (Sonzinksky; Kahriger) and cannot be a penalty.

10

1. Defining the Taxing Power: Anything Constitutional that Promotes the General Welfare
Madison: Taxation is only incidental to exercise of other enumerated powers.
Hamilton: Taxation is a separate power limited only by the general welfare of the
United States (accepted in Butler Congress taxing and spending power is a
distinct Constitutional power, fully effective without reference to other
granted powers)
Butler (1936, Roberts): Tax violates the 10th amendment and is coercion by
economic pressure
o To stabilize farm prices: processors pay commodity tax and proceeds go to
farmers who had to reduce area and crops
o Congress may not appropriate money to coerce an individual into
doing something Congress does not have the power to do
(regulating production). Congress may provide for the general welfare
but not in this way.
o Tax and appropriation are a means to an unconstitutional end, infringes on
the rights of states to regulate and control agricultural production. (violates
the 10th Amend.)
o Coercion by economic pressure (would lose all benefits) so not achieved
by cooperation.
o Stone (dissent): economic coercion is a threat, not a hope of a gain;
condition and promise are both in the furtherance of the national welfare
Charles C. Steward Machine Co. v. Davis (1937, Cardozo): Tax and credit are not
coercive
o Payroll taxes on employers. If state has approved unemployment
compensation plan, the taxpayer can credit 90% of tax paid to the
unemployment fund.
o Not coercivenot forcing states to have unemployment laws
o Distinguish Butler: proceeds not earmarked for a special group;
unemployment compensation law has the approval of the state; condition
not linked to an irrevocable agreement; condition is not directed to the
attainment of an unlawful end
Helvering v. Davis (1937)
o Social Security Tax Act imposes payroll taxes on covered employers and
uses these to finance payments to retirees
o Promotes general welfare: problem is national in area and dimensions; give
discretion to Congress
NFIB v. Sebelius (2012, Roberts), individual mandate
o Its a tax: mechanism by which money is being collected (IRS), isnt an
exceedingly heavy burden (in no event can be more than the price of
insurance and is usually less)
o Even though: referred to as a penalty in the statute and not a tax for antiinjunction purposes
2. Regulatory and Revenue-Raising Taxes
Bailey v. Drexel Furniture Co (1992, The Child Labor Tax Case, Taft)
o Background: Hammer invalidates law prohibiting shipment in interstate
commerce goods manufactured by children; so govt passes law putting 10%
tax on income of those who use child labor

11

Distinction between tax and penalty: if its a tax it can be regulated

under the taxing power, if its a penalty it has to come under another power
(like commerce, which wasnt available here because of Hammer)
But, Congress can tax under tax power even if punishment is an
incidental motive. Revenue-raising must be the main purpose, but it
wasnt here.
o This is a penalty: purpose to punish. Tax not apportioned to amount of
child labor; merely punishing it whenever it exists
Tax is alloweddont look at motives
Veazie Bank v. Fenno: law increasing tax on circulatory notes of persons and
state banks is within Congress power to regulate currency. Its a tax in form
so it is valid (even if purpose is to drive out of existence state-issued paper
money).
McCrary: increase of excise tax on colored margarine upheld. A motive to
discourage sale does not invalidate the tax.
Doremus: Act imposing tax on sale of opium and cocoa still valid even if
there is another motive.
Kahriger (1953): Occupational tax imposed on gambling is upheld.
Registration requirements make the tax easier to collect. (Real purpose was
to create a class of federally punishable criminals who did not register).
o Rule: Unless penalty provision is extraneous to any tax need, Court
cant limit exercise of taxing power.
o Jackson (dissent): Congress can regulate what has been left to the
state just by putting it in revenue measure wrapping
Tax not allowedlook at motives
o Bailey v. Drexel Furniture
o Constantine (1935): excise tax on liquor sales is NOT allowed because
tax is only on those who violate the law. Shows intent to punish not
raise revenue.
o

3. Conditions on Grants to State Governments

TEST (Dole):
o (1) must be in pursuit of the general welfare (constitution, Helvering);
o (2) must make condition unambiguous so states can exercise choice
knowingly;
o (3) Germaneness/Relatedness: conditions might be illegitimate if they are
unrelated to the federal interest in particular national interests or programs
(Helvering)
o (4) Other constitutional provisions might provide an independent bar
(Butler), but need not be explicitly granted by constitution, just not explicitly
prohibited (Dole)
o (5) Pressure cannot turn into compulsion / coercion
South Dakota v. Dole (1987, Rehnquist)
o National minimum drinking age, withhold 5% of federal highway funds if
dont raise drinking age.
o Congress may act indirectly under the spending power to
encourage uniformity in state drinking ages, even if Congress may not
regulate drinking ages directly
o In pursuit of general welfare (drinking and driving), unambiguous, related
(safe interstate travel frustrated by various drinking ages among the
states). Not coercive because only 5% of general highway funds.

12

o
o

NFIB
o
o
o
o

Can condition federal funds as long as not prohibited by the

Constitution does not have to be explicitly granted by the
constitution
OConnor (dissent): Congress doesnt have power in spending clause to
require anything other than how the money should be spent; this is a
regulation
v. Sebelius (2012, Roberts), Medicaid expansion
States must expand Medicaid up to 133% of poverty line or lose all Medicaid
funding
Unduly coercive, cant tell states they will lose all existing funding if they
dont comply; more than the mild encouragement in Dole
Changing the whole program, not just an expansion in the existing program
Ginsburg (dissenting here): This is an expansion of a program not a new
program, doesnt increase state spending like a lot, Medicaid is a
partnership between states and federal government; not coercive (they can
get out if they want)

C. The War and Treaty Powers

Missouri v. Holland (1920, Holmes): Treaty power can be exercised without reference to
other constitutional grants of power. Upholds constitutionality of treaty even though
similar federal statute was struck down under the 10 th Amendment.
Because migratory birds between US and Canada are in danger of extinction,
closed seasons and protection in other forms.
Treaties are the Supreme Law of the Land (an Article VI treaty), and this trumps
state-level concerns with regard to provisions of the treaty
o Even if this is not ok under the Commerce Clause, it can be done through
treaty (today, this would have been allowed under the CC)
o Acts of Congress are Supreme only if done pursuant to the Constitution, but
treaties are valid when made under any authority of US (as international
sovereign) as long as they dont contravene any prohibitions in the
Constitution
The Constitution grants the federal government the power to create treaties, so
that power cannot be reserved to the States under the 10th.
Ware v. Hylton: treaty supreme to state law
But see: Reid v. Covert: treaty provided for military jurisdiction over civilian
dependents of US soldiers overseas. Invalid because treaty cant give government
power that is free from Constitutional restraints like the DPC (Constitution is
supreme over treaties). Maybe different when it comes to individual rights as
opposed to government set up?
NAFTA: Argument over whether constitutional because did not go through treaty process.
Was a legislative-executive agreement that went through both houses, but no
supermajority.
Treaties are different than legislation because President has the initiative
John Yoo argued that do not need broader treatymaking power for certain
agreements because Commerce Clause already gives power to regulate commerce
with foreign nations
III. External Restraints on Congressional Power
Lopez and Morrison deal with internal restraints on Congressional power but there
are also external restraints

13

A. 10th Amendment

Amendment X: The powers not delegated to the United States by the

constitution, nor prohibited by it to the States, are reserved to the States,
respectively, or to the people.

10th Amendment makes clear that when the Constitution says Congress shall
have the power it means Congress shall only have the power
Two interpretations:
o (1) 10th Amendment is not a separate Constitutional restraint but only a
reminder that Congress can only legislate if it is granted a power. A law
could never be held unconstitutional under the 10th.
1800s; 1937-1990s
o (2) 10th Amendment protects state sovereignty from federal intrusion.
Reserves a zone of activity for the states exclusive control. Federal laws
intruding on that zone should be declared unconstitutional.
1900-1937; post 1990s
Actively protect state sovereignty to: (1) protect against federal tyranny (but
now judicial review is a check); (2) enhance democratic rule with a govt close to
the people (but what if people want tyranny; factions are more likely in smaller
governments); (3) allow states to be laboratories (but what if federal legislation
preempts state laws; why cant Congress decide to experiment?); (4) deal with
problems that vary geographically and allow citizens to vote with their feet; (5)
Constitution mandates federalism limits; (6) state authority and loyalties are
already there; (7) prevent federal government from getting mandates unfunded by
political responsibility
Federal regulation is good for: (1) dealing with negative externalities the flow
across state boundaries; (2) provide certain public goods (common defense) and
avoid free riders; (3) better social insurance against catastrophes that vary
geographically; (4) redistribute resources among states; (5) prevent destructive
competition (child labor); protect basic rights against the tyranny of local
majorities (more diverse viewpoints)
Should judiciary enforce? No: the political process will adequately protect state
governments interests (But, states no longer directly elect senators, see Powells
dissent in Garcia)
****Rule: Can tell states to manage their own property (Reno) but cannot tell
states to regulate their own people, enforce federal laws, or choose their capital
(Coyle). Congress can prohibit state governments from engaging in harmful
conduct (Reno) but cannot impose affirmative duties (Printz) on state
governments.****
o Old rule: Congress violates the 10th Amendment when it interferes with
traditional local and state functions (National League)
o New rule: Congress may not commandeer state governments by requiring
state legislatures to adopt laws or state agencies to adopt regulations (New
York, Printz)

i. Case LawValid Under Xth, Congress acting within power, Judiciary wont enforce
Gibbons v. Ogden: as long as Congress is acting within commerce clause power,
law wont violate state sovereignty

14

Darby (1941): upholds prohibition on shipment in interstate commerce of goods

produced by workers making less than minimum wage; Court declares that a law
is constitutional as long as it is within the scope of Congress power

ii. Case LawInvalid Under Xth, traditional state regulation

Coyle v. Okla. (1911): strikes down federal law conditioning admittance to the
union on condition of locating state capital. Federal government cannot choose
the state capitolstates have the power to locate their own seat of government
Child Labor Case: regulating the hours of labor of children is state authority; Bailey
v. Drexel Furniture; Butler: production of agriculture is traditionally left to the
states
National League of Cities v. Usery (1976, Rehnquist, overruled in Garcia):
amendment to FLSA extending minimum wage and maximum hour provisions
to employees of state and local governments violates the 10th;
impermissibly interferes with the integral functions of state bodies; activities are
typical of those performed by state government.
o Blackmun (concurrence, final vote): majority is adopting a balancing
approach that doesnt outlaw federal power in areas where federal interest
is demonstrably greater
iii. Case LawValid Under Xth, not traditional state regulation
U.S. v. California (1936): state-owned railroads can violate a federal act; running
a railroad is not part of the states public/sovereign capacity; state does not have
immunity from federal regulation for activities in which it has traditionally
engaged
New York v. U.S. (1946): upheld application of sales tax to NY sale of bottled
mineral water from state-owned springs; Congress can tax if the activity is not
one that can only be run by the state
Garcia v. San Antonio Metro. Transit Authority (1985, Blackmun): overrules Usery;
municipal transit authority properly subjected to minimum wage and
overtime requirements; rejects traditional state function test
o Usery approach is unworkable: to try and define traditional government
functions immune from regulation
o Unelected judiciary should not decide what functions are necessary, leave to
political process
o Powell (dissent): federal political officials are not the sole judges on the
limits of their own power; Congress is less responsive to state and local
interests; laws drafted by federal staffs
iv. Case LawInvalid Under Xth, federal government commandeering
New York v. U.S. (1992, OConnor): cant regulate states regulation (i.e. cant
commandeer state legislatures)
o No state on its own could keep out low-level radioactive waste. Federal Act
provides incentives for states to adopt federal regulations: monetary
incentives, access incentives, take-title sanction (requiring them to take title
and assume liability if not regulated properly). It is unconstitutional for
Congress to compel state legislatures to adopt laws or state
agencies to adopt regulations.
o Congress has the power under the commerce clause to regulate here
o Congress has power to encourage state to provide for the disposal of waste,
but cant compel states to do so.

15

Choice between two unconstitutionally coercive things (forced

transfer--commandeering or regulate using federal standards
requires states to implement federal legislation) is not a choice
o Here, Congress is directly regulating states, not just applying a generally
applicable law to states.
Congress can regulate interstate commerce directly but cannot
regulate state governments regulations of interstate commerce
o Ensures accountability is in the right place.
o White (dissent): this was not preemption or federal intervention but
cooperation agreement between the states; national government was a
referee
o Stevens (concur/dissent): Congress has the power to issue a command that
state governments implement federal legislation; federal governments
direct state governments in many realms
o Alternatives to commandeering: (1) spending power (condition payment of
federal funds on states agreement to take title); (2) commerce power
(directly regulate producers of waste or impose federal tax on interstate
commerce); (3) conditional preemption (threaten to pass law unless states
choose to regulate)
Printz v. U.S. (1997): invalidated provisions of handgun act requiring state and
local law enforcement to conduct background checks. Cant commandeer state
executive branch officials to enforce federal law.
o Forces state law enforcement to participate in federally enacted regulatory
scheme; could make state officials do its work with no cost to itself
o Accountability issuesblame the state government officials

v. Case LawValid Under Xth, federal government not commandeering

Reno v. Condon (2000): upholds federal law preventing DMVs from selling
information
o Doesnt require states to regulate their own citizens, regulating states as
owners of databases. Generally applicable to anyone who supplies motor
vehicle info.
o Prohibition of conduct, not an affirmative mandate, states not required to
enforce laws.
vi. Case Law--Other
South Carolina v. Baker (1988, Brennan): upholds removal of an exemption from
federal income tax for bonds issued by states; state did not allege that it was
deprived of any right to participate in the national political process or singled
out for harm in any way
Gregory v. Ashcroft (1991) age employment discrimination act applied to state
employees including judges; SCOTUS dodged the questionmust write clearly
and say legislation explicitly applies to judges.
o Fried: not commandeering, but could fall into Coyles dignity framework
B. 11th Amendment

Amendment XI: The judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United states by citizens of another state or
by citizens or subjects of any foreign state.
16

Sovereign immunity prohibits:

o suits in federal courts (for diversity or federal questions, Hans) against
state governments
in law, equity, or admiralty
by a states own citizens (Alden), by citizens of another state, by
citizens of foreign countries
o suits in state court against state governments without their consent
o suits in a regulatory agency (S.C. State Port Authority)
Court circumvents sovereign immunity by (1) permitting suits against officers (ex
parte Young); (2) allowing states to waive their sovereign immunity; (3) allowing
suits under the 14th (can always sue for civil rights); federal government can also
sue on your behalf
Two theories: (1) 11th as a restriction on SMJ of the federal courts that bars all
suits against state governments v. (2) 11th as restricting federal courts SMJ only in
diversity cases

Cases:
Chisolm v. Georgia (1793): Court took jurisdiction of a SC citizens suit against
Georgia, so 11th is adopted in response
Hans v. Louisiana (1980): expands from diversity jurisdiction to federal question;
Ex parte Young (1908): federal court can issue injunction against state officials
attempting to enforce an unconstitutional state law because enforcing against
an official, not the state
Edelman v. Jordan (1974): permits lawsuits for prospective relief but not
damages
Fitzpatrick v. Bitzer (1976): Congress can abrogate immunity and allow states to be
sued directly for retrospective damages (through 5)
Pennsylvania v. Union Gas Co. (1989, overruled by Seminole Tribe): environmental
law permitting suits for monetary damages against states (legislating pursuant to
the commerce clause)
Seminole Tribe of Florida (1996): overrules Union gas; Congress cannot
abrogate state sovereign immunity without the states consent even when
legislating under the commerce clause.
Alden v. Maine (1999): extends sovereign immunity to state courts. Based on
constitutional structure and history.
Federal Maritime Commission v. South Carolina State Ports Authority (2002):
extends sovereign immunity to federal administrative agencies. Cruise ship
admin complaint against S.C. port authority.
Central Virginia Community College v. Katz (2006): federalism principles do not bar
Congress from subordinating a state to other creditors in federal bankruptcy
proceedings. When Constitution was adopted bankruptcy clause was also,
limiting subordination of state sovereign immunity in bankruptcy.
IV. Federal Limits on State Power
A. Preemption

-Types of preemption

1. Express preemption Congress may explicitly preempt the power of state to

alter a Congressional act the only issue is whether a state statute falls within
the area preempted
2. Implied preemption Field Preemption

17

The court requires a clear showing that Congress meant to occupy a field
Rice v. Santa Fe Elevator Corp., (1947, 319)
Federal regulation may be so pervasive, or Act of Congress may touch a
field in which the federal interest is so dominant, it will be assumed that
states cant legislate on same subject
3. Implied preemption Conflict Preemption
Florida Lime & Avocado Growers, Inc. v. Paul (1963, 320): conflict preemption
is where compliance with both federal and state regulations is a physical
impossibility
Hines v. Davidowitz (1941, 319): State law cannot pose an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress.
Gade v. National Solid Wastes Management Assn (1992): Even though
federal regulations aimed only at worker safety and the state regulations
aimed both at worker safety and public health, plurality opinion found
conflict preemption, reading the federal scheme to forbid duplicative
regulation
Crosby v. Nat. Foreign Trade Council (2000): Struck down MA law
forbidding trade w/ companies doing business w/ Burma. More stringent MA
provisions posed obstacle to Congresss objectives under the federal Act.
Importance of one diplomatic voice from U.S.
B. The Privileges and Immunities Clause

Art. IV. Section 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States. . .

Protects fundamental rights

Examples:
o YES: United Building & Construction Trades Council v. Mayor and Council of
Camden: working on pipelines cant be limited to local residents; Eggen:
cant deny out-of-staters meaningful access to courts; Blake v. McClung:
right to own and dispose of property; Piper v. New Hampshire: practicing
law in a state
o NO: Baldwin v. Fish and Game Commission of Montana: Montana sells the
right to hunt elk at a much higher price to out-of-staters (whatever a
privilege and immunity is, the privilege of hunting elk is not one of them)

C. The Dormant Commerce Clause

Main idea: Commerce is a subject for Congress to regulate and thus not the states.
State and local laws are unconstitutional if they place an undue burden
on interstate commerce.
o If Congress has legislatedpreemption
o If Congress has not legislatedstate or local law can be challenged on the
ground that it excessively burdens commerce among the states (courts
decide)
TEST: Is the law facially discriminatory against interstate commerce? Does it have
an impermissible purpose or effect?
o If yes, then: valid only if they are necessary to achieve an important
government purpose and is the least discriminatory alternative

18

If no, then: invalid only if burden on interstate commerce exceeds

benefits (disproportionate adverse effect on interstate commerce is
clearly excessive in relation to local benefits)
o And exceptions if: (1) Congress approves, (2) market-participant
Theoretical Basis: negative implication from Commerce Clause
o Supremacy Clause + Commerce Clause: Supremacy Clause includes the
DCC because Congress has power to regulate Commerce and any regulation
makes it supreme
o Export / Import Clause (Art I., 10, p. 2): would have to make the jump that
regulation is imposing a custom or duty; but early law says only refers to
international trade (not trade between states)
o Founders intended to make the U.S. one economic unit, but not explicit in
the Constitution
DCC Agency: but not really an improvement, and then Congress
would have been acting by creating an agency
DCC State: Sherman Anti-Trust Act
DCC Statute: pass something like the treaty of Rome
o ExclusivityCongressional grant of interstate commerce is an exclusive
power
Should there be a DCC?
o Should the judiciary, in the absence of congressional action, invalidate state
and local laws?
o Justifications for DCC:
Historic: framers were creating a unified whole where states wouldnt
act for their own self-interest
Economic: Protectionist legislation would stifle production and harm
the economy (not considering the nation as a whole)
Political: States and citizens should not be harmed by laws in other
states where they lack political representation.
o Arguments Against a DCC:
Textual: Framers could have included the DCC in the constitution like
they did with P&I
Separation of Powers: Unelected federal judiciary should not be doing
Congresss job (but, unrealistic to expect Congress to act on all laws
that might interfere with interstate commerce)
Impedes ability of states to implement locally-appropriate legislation
(Congress has limited resources)
o

1. Early DCC
i. Police v. Commercial Regulation
Congress has power over interstate commercial regulation, state has power of
police regulations designed to protect the health, safety, or welfare of citizens
Shifts: Marshallpolice regulations are ok but not purely economic relations v.
Taneystate commercial regulation are ok unless they conflict with federal laws
Problem with Marshalls approach: assumes two distinct categories: police power
and commerce power that are not at all separate
State Laws Upheld as Police Regulation
o Wilson v. Black Bird Creek Marsh (1829): DE law authorized BBCM to
build a dam across a stream and a sloop broke and injured the dam
to pass through. Dam increases the property and health of
citizens + Congress has passed no conflicting act = law upheld.

19

Mayor of NY v. Miln (1837): police regulation, not commercial

regulation, requiring master of vessel arriving in NY to report the
names and residences of passengers
o License Cases (1847): sustains law requiring licenses for
intoxicating liquors as public health legislation
o Smith v. Alabama (1888): sustains state exam requirement applied to
engineers on interstate trainslaw rests on safety considerations and
impact on commerce is merely indirect
o Bradley v. Public Utilities Commn (1933): Upholds OH denial of
certificate to operate between Cleveland and Flint because it was too
busy and would be a hazard to the safety and security of the
travelling public. The effect on interstate commerce was incidental.
State Laws Struck Down as Commercial Regulation
o Gibbons v. Ogden (1924, Marshall): Marshall gets the DCC out of the
Supremacy Clause; state and federal govt can both regulate in this
area, but state regulates with a different grant of power; it doesnt
matter what power states use to pass their laws, they cant interfere
with federal laws passed under the CC (Supremacy Clause requires
this)
Although state can exercise police power (inspection laws,
quarantine laws, health laws) even if it has a considerable
influence on commerce
CC is looked at as both a grant to federal government and limit
on state governmentany state regulation of commerce is
inconsistent with federal power
o Passenger Cases (1849): invalidates two states laws requiring out-ofstate ships to pay tax
o Buck v. Kuykendall (1925): Denial of certificate to applicant seeking to
operate an auto stage line because territory was already being
adequately served. States purpose was not safety but a prohibition
on competition.
o

ii. National v. Local Subject Matter

Crucial question: does subject matter require uniform national regulation
or diverse local regulation
Problems: (1) allow state regulations as long as they are local no matter how
protectionist or how much they interfere with interstate commerce; (2) no clear
distinction between what is national and what is local
Cooley v. Board of Wardens (1851): PA law regulates navigation activities of ship
pilots; 1789 Congressional Act provides that pilots shall continue to be regulated
in conformity with the existing laws of the states
o Question: whether the grant of the commerce power to Congress per se
deprived states of power to regulate?
o Holding: when subjects of the commerce power are national by nature,
requiring one common, uniform system, Congress has exclusive power.
When the interest is local and requires local expertise, States and Congress
have concurrent legislative power.
PA law is local in nature as reflected in nature of 1789 statute;
therefore constitutional
o FRIEDon the continuum of federal and state power, here is an example
where federal government power doesnt run out but states have

20

overlapping power
o If the Constitution excludes the states from making any law regulating
commerce, then Congress could not regrant that power to the state through
the law. (This portion of Cooley has been overruled: Congress is now viewed
as having authority to consent to state regulations of commerce that would
otherwise be barred by the dormant commerce power). Prudential
Insurance Co. v. Benjamin, N.Y. v. U.S.
Wabash v. Illinois (1886): State Law Struck Down as National Subject; state ban on
freight rate discrimination by railroads is national; requires national uniformity

iii. Direct v. Indirect Effect on Commerce

Falsely assumes that there is a clear, in kind, difference between laws that directly
burden commerce and those with only an indirect effect
Smith v. Alabama (1888): State law upheld because state exam requirement
applied to engineers on interstate trains has only indirect effect on commercelaw
rests on safety considerations and impact on commerce is merely indirect
Di Santo v. PA (1927): State law struck down as a direct effect on commerce: law
imposing a license fee on travel agents selling steamship tickets for foreign
travel.
o Dissent: direct-indirect distinction is too mechanical and too remote from
actualities
2. Current DCC: Balancing Tests
Court has abandoned categorical distinctions like police vs. commerce, local vs.
national, and direct vs. indirect
If Court concludes that there is discriminationpresumption against the law and
only upheld if necessary to achieve a legitimate local purpose (unrelated to
economic protectionism) and is the least discriminatory alternative
o Mostly per se rule of invalidity
If Court concludes that there is no discriminationpresumption in favor of
upholding the law and invalidated only if it is shown that burdens outweigh
benefits
Exceptions: (1) Congress approves; (2) Market-participant doctrine
i. Facially Discriminatory Laws
(a) Law Overruled:
Baldwin v. G.A.F. Seelig Inc. (1935): Facially discriminatory, overruled (no important
purpose)
o Law: restricts prices of milk produced out-of-state and prevented it from
being sold at a price lower than in-state milk.
o Facially Discriminatory: The barrier is a customs duty / price differential. It
discriminates against outside markets, like Vermont, that can sell more
cheaply
o Balance: Purpose was not healtheconomic welfare is always related to
health.
Hughes v. Oklahoma (1976): Facially discriminatory, overruled (less restrictive
means).
o Law: OK law forbidding transportation or shipment of minnows for sale
outside of state is unconstitutional.

21

Balance: There were less restrictive means for conservation. When a

wild animal becomes an article of commerce, its use cannot be limited to
citizens of one state.
Geer v. Connecticut (1896, overruled by Hughes): Court upholds
prevention of killing certain game `1s for shipment out of state.
Based on property rightsgame birds are collectively owned by the
people of the state.
Philadelphia v. New Jersey (1978, Stewart): Facially discriminatory, no legit govt
purpose
o Law: NJ law prohibits importation of waste.
o Issue: Whether is protectionism or a law directed to legitimate local
concerns.
o Balance: There is no reason, apart from origin, that the state should want to
treat these articles differently. This was only done to benefit local interests.
o Rehnquist (dissent): Waste is a health / safety issue, and the state should be
allowed just like it can quarantine germ-infected rags
Oregon Waste Systems (1994): Facially discriminatory, no legit govt purpose
o Law: Surcharge on disposal of out-of-state solid waste.
o Balance: no state interest, no proof that costs were actually based on actual
costs imposed on the state in disposing of waste from other states
o Dicta: differential tax might be permissible if it merely compensated for
costs changed in other ways.
Lewis v. BT Investment Managers (1980): facially discriminatory, no legit govt
purpose
o Law: prohibits ownership of local investment advisory business by outof-state banks
o Balance: Cannot be justified by legitimate local concerns
(b) Law Upheld
Maine v. Taylor (1986): Facially discriminatory, upheld as least restrictive means
o Law: law banning import of out-of-state baitfish.
o Balance: Has legitimate environmental purpose that could not be served
with nondiscriminatory means.
o

ii. Facially Neutral Laws with a Protectionist Purpose or Effect

Likely to be discriminatory if.
o Effect is to exclude virtually all out-of-staters from a particular
state market, but not if it only excludes one group of out-of-staters (Exxon;
Clover Leaf Creamery)
o Imposes a cost on out-of-staters that in-staters will not have to bear
(Hunt)
o Law is motivated by a protectionist purpose
(a) Law Struck Down for Protectionist Purpose or Effect
H.P. Hood & Sons v. Du Mond (1949, Jackson):
o Law: License for new milk plants will only be granted if it wouldnt make the
market too competitive.
o Discrimination: The purpose of the licensing scheme is to protect in-state
suppliers and the direct effect of the licensing law is an obstruction on
interstate commerce.
o Balance: The statute, as applied, violates the commerce clause because a
state may not protect its own inhabitants from competition by forbidding

22

licensure to out-of-state suppliers. This violates the notion of a common

market where states sink or swim together.
Dean Milk Co v. Madison (1951, Clark):
o Law: ordinance bans the sale of pasteurized milk until processed and bottled
at an approved plant within five miles of Madison
o Discriminatory: Plainly discriminating against interstate commerce.
o Balancing: Reasonable nondiscriminatory alternatives that would still
protect health (including inspection of milk, milk rating)
Other Home Processing requirements also invalid: Home
processing requirements invalid: requiring in-state inspection for
meat (Minnesota v. Barber); shrimp having heads and hulls removed
in state (Foster-Fountain); and same for oysters (Johnson v. Haydel);
unload/pack/stamp catch before shipping shrimp (Toomer v. Witsell)
Hunt v. Washington State Apple Advertising (1977):
o Law: requiring apples in NC bear only US grade or equivalent. Wash.
apples have a more stringent grading system and did not include the US
grade.
o Discriminatory: Discriminatory effect even if not a discriminatory purpose
by raising the cost of doing business for Wash growers.
o Balancing: Other nondiscriminatory alternatives: use state grades only
if also marked with US grades. Even if this was used to prevent confusion,
there is a poor connection.
C&A Carbone v. Clarkstown (1994, Kennedy)
o Law: direct solid waste to one facility to meet a waste-flow guarantee to
finance construction
o Discriminatory: deprives out-of-state businesses access to local market
o Balancing: Other nondiscriminatory alternatives to address health and
environmental problems.
o Dissent (Souter): falls out of DCC because favors one business, not a
geographic region
But see, United Haulers, no discriminatory effect even if clear
discriminatory purpose
Bacchus Imports v. Dias (1984):
o Law: HA statute exempts liquor distilled from native plants from tax.
o Discriminatory: protectionist purpose and effect

(b) Law Found Not to have Protectionist Purpose/Effect

United Haulers v. Oneida (2007, Roberts)
o Law: Flow control ordinance to deliver solid waste to a particular
facility owned and operated by a state-created public benefit corp
o Not discriminatory: Disposing of trash is a traditional government
activity. Laws that favor government in such areas but treat all other
private business the same do not discriminate against interstate commerce.
o Alito (dissent): this is the same as Carbone, no exception for state-owned
businesses
o Distinguish from Carbone bc disposing of trash is a traditional govt activity
Exxon: No disparate treatment because there are no in-state oil producers.
Not having a free market is ok as long as its not discriminating.
Minnesota v. Clover Leaf Creamery: upholds state law prohibiting sale of milk in
plastic containers. This benefited the in-state paper industry and hurt out-of-state
plastic industry, but did not discriminate against out-of-state paper industry.

23

iii. Facially Neutral Laws with Disproportionate Adverse Effect on Commerce

Pike balancing test: Where the statute regulates even-handedly to effectuate a
legitimate local public interest, and its effects on interstate commerce are only
incidental, it will be upheld unless the burden imposed on such commerce is
clearly excessive in relation to the putative local benefits.
Least Restrictive Alternative? Pike test requires it, but Court has never
invalidated a nondiscriminatory state law on the ground that the goal could be
achieved using means less burdensome on interstate commerce.
(a) Law Struck Down
Southern Pacific Co v. Arizona (1945): invalidated because not enough benefit
o Law: Prohibits railroad trains that are too long
o Balance: as a safety measure there is only a dubious advantage
o Dissents: presumption of validity (Douglas); real safety concerns (Black)
Bibb v. Navajo Freight Lines (1959): invalidated because not enough benefit
o Law: requires use of contour mudguards and prohibits straight guards
o Balance: Disproportionate effect on interstate commerce. Trucks would
either have to avoid IL or stop at the border to change their mudguards.
Pike v. Bruce Church (1970):
o Law: AZ-grown cantaloupes must advertise state-of-origin on each package,
even when packed out-of-state.
o Balance: Spreading the good name of AZ cantaloupe cannot justify building
a $200,000 new plant to pack and label.
Not the same as home processing requirement because law does not
prevent packing in CA, so long as bear AZ label.
o Scalia (not in this case): Not within the judiciarys institutional competence
to do balancing.
Kassel v. Consolidated Freightways Corp (1981, Powell):
o Law: IA statute prohibits the use of certain large trucks.
o Balance: No safety purpose and might actually increase the number of
accidents. Substantial burden on interstate commerce because out-ofstep with other state laws and trucks must either reroute or detach trailers
Exemptions for Iowans and govt statements show that motivation
was to promote IA business, not safety
Also trying to avoid costs of interstate commerce, but by
disproportionately placed on out-of-state residents
Balancing test gets rid of need to discern congressional motives and
forces sides to marshal their best evidence
o Brennan (concurrence): focus on the regulatory actual purpose of the
lawmakers and what was actually in front of them, not their post-hoc
justification (like Powell); actual rationale was to discourage interstate truck
traffic so safety advantages and disadvantages are irrelevant
o Rehnquist (dissent): the statute is a valid highway safety regulation and
entitled to the strongest presumption of validity. Dont look for purpose and
only for a rational connection (rational basis review, whereas Brennan
decides that basis is)
Edgar v. Mite Corp (1982)
o Law: Sec of State adjudicates the fairness of tender offers for the purchase
of corporate stock and rejects the transaction if offer is inequitable.

24

Balance: Direct restraint on interstate commerce because state

controls conduct beyond the boundary of the state. Burdens commerce
by hindering the reallocation of economic resources.

(b) Law Upheld

South Carolina State Highway Dept v. Barnwell (1938):
o Law: prohibits use on state highway trucks over 90 wide or over 20,000
lbs
o Balancing: judicial deference to state highway regs, use of state
highway is of local concern (built, maintained, by state). Width restrictions
could enhance safety.
Exxon Corp v. Maryland (1978):
o Law: prohibits producers or refiners of petroleum from operating retail
service stations in MD. Reaction to oil companies favoring their own
stations.
o No Discrimination: No disparate treatment or facial discrimination
because there are no in-state oil producers. Not having a free market is ok
as long as its not discriminating.
o Balance: law had a minimal burden on interstate commercesource of
supply may switch but interstate commerce is not subjected to an
impermissible burden simply because an otherwise valid regulation causes
some business to shift from one interstate supplier to another
CF: Effect was equivalent to discrimination (getting rid of half of outof state retailers).
EU Court of Justice Case: Cant sell retail goods below cost. Hurts
consumers and helps small shop keepers who cant sell below cost.
Not having a free market is not discriminating, or impeding the free
passage of goods across borders.
Minnesota v. Clover Leaf Creamery (1981):
o Law: law banning retail sale of milk products in plastic containers but
permitting sale of paper containers. Paper containers are made in MN.
o No Discrimination: All milk container producers are regulated in the same
way.
o Balancing test: The burden on out-of-state plastic industry is not clearly
excessive in light of the substantial state interest in promoting
conservation of energy and other natural resources
CTS Corp v. Dynamics Corp (1987)
o Law: Regulates how purchasers who buy stock in IN corps can acquire
voting rights.
o Not Discriminatory: same effect no matter where offeror is from.
o Balance: State interest in promoting stable relationships among parties
involved in corporations and ensuring that investors have an effective voice
in corporate affairs. Small impediment to interstate commerce: doesnt
prohibit anyone from offering to purchase or from purchasing shares in an IN
corp.
3. Current DCC: Exceptions
i. Approved by Congress
DCC is one of the places Congress can overrule the Court. If Court deems a matter
to violate the DCC ,Congress can respond by enacting a law approving the action,

25

effectively overruling SCOTUS (unless the law somehow violates another

Constitutional Provision)
ii. Market Participant Exception
Criticisms:
o DCC is supposed to stop protectionist actions so protectionism should not be
allowed regardless of whether the state is acting in a proprietary or
regulatory capacity.
o There is not a clear distinction between situations where govt is acting as a
regulator and when its acting as a market participant.
Support:
o Market participant exception allows citizens in a state to recoup the benefits
of the taxes they pay.
o State spending programs are less coercive than regulatory programs and
seem less hostile to other
o Private parties would be able to contract in a certain way otherwise
Rule: A state or city may discriminate in favor of its own residents when acting as
a market participant, not a regulator.
o Hughes v. Alexandria Scrap (1976): Market participant exception for MD
program designed to reduce junk autos. Required more proof of ownership
from out-of-state cars being sold to the state. State is a market
participant by purchasing the cars so discriminatory actions against
out-of-staters does not violate DCC.
o Reeves v. Stake (1980): Market participant exception for restriction on sale
of cement from state-owned plants to state residents.
o White v. Mass Council of Construction Employers: Market participant
exception for order of Mayor of Boston requiring all construction projects
funded by city funds to be performed by work force of at least half city
residents (all working for the city)
But an exception: states may favor in-state purchasers but may not attach
conditions to a sale that require discrimination against out-of-state
parties
o South Central Timber Development v. Wunnicke (1984, White)
Law: AK will sell state-owned timber if purchaser processes timber in
Alaska first
Distinguish: Alexandria/Reeves (AK is not purchasing scrap, imposing
constraints downstream, no choice); White (?).
State may not impose conditions that have a substantial
regulatory effect outside of the particular market. AK is
participating in the timber market, not the timber processing market.
Dissent (Rehnquist): Overly formalistic opinion because state could
achieve same end in other ways, like subsidizing processors or
vertically integrating itself.
4. State Taxation of Interstate Commerce
Discriminatory taxes are virtually per se invalid, but nondiscriminatory taxes on
interstate commerce are much more likely to be upheld
Historical approach (1987-1977): states may not directly tax interstate commerce
but may tax if only has an indirect burden.
Current law (Brady), state tax does not violate commerce clause if it:
o Is applied to an activity with a substantial nexus to the taxing state;

26

It is fairly apportioned so as to tax only the activities connected to the

taxing state
o It does not discriminate against out-of-staters and
o It is fairly related to services provided by the state
Discriminatory laws
o Camps Newfound/Owatonna v. Harrison (1997): Discriminatory. Provides
property tax exemption to charitable institutions incorporated in the state
but not for those that benefit individuals outside of the state. Functionally
serves as an export tariff.
o Chemical Waste Mgmt v. Hunt: Discriminatory to impose taxes on only outof-state waste
Not discriminatory:
o Dept of Rev. of Kentucky v. Davis (2008, Souter): KY law exempts interest on
public bonds from state income taxes but imposed taxes on bond interests
from other state. Not discriminatory: traditional government function
Subsidies v. Taxes
o New Energy Co of Indiana v. Limbach (1988): Discriminatory subsidies
are OK, but discriminatory taxes are not. Invalidated statute awarding
tax credit for sales of ethanol produced in OH. Uphold subsidy for in-state
ethanol.
o West Lynn Creamery v. Healy (1994): Cannot give rebates from taxes to instate-purchasers. Non-discriminatory tax is constitutional and instate subsidy is constitutional, but combination is not OK.
Would be ok to take subsidy out of general funds, which is more
transparent
o

SEPARATION OF POWERS
Inherent in the structuring and wording of Constitution (executive Power,
legislative Power)
For protection of individual, so cannot be waived by a branch (Boumediene; New
York v. U.S.)
Look to: (1) abdication (branch improperly gives up power); (2) aggrandizement
(taking others power); (3) encroaching (interference with powers of another
without taking power)

I. Executive and the Separation of Powers

Art. II. Section 1. The executive Power shall be vested in a President of

the United States of America . . . .

Presidential Powers (Art II)

o Sec 2: commander-in-chief of armed forces, pardons, makes treaties,
appoints judicial and federal officers
Includes removal powers, foreign affairs power
o Sec 3: recommend measures to Congress, receive ambassadors, take care
that the laws be faithfully executed
o Sec. 1: vested executive power
o Art I. Sec. 7: veto legislation
Does language grant pres inherent powers not expressly enumerated in Art. II?

27

o Hamilton: Different wording in Arts I and IIArt II doesnt limit president to

o

powers herein granted. Might have powers outside of Constitution

Madison: Art. II is just saying there will be one executive; would be
inconsistent with Constitution creating a government of limited authority

Youngstown Sheet & Tube Co. v. Sawyer (1952, Black, The Steel Seizure Case)
1. Steel company employees threatening nation-wide strike. Truman orders
Secretary of Commerce to take possession of the companies to keep steel for the
war effort through executive order. Sends it to Congress, they do nothing
2. Majority (Black): Truman lacks both the statutory and inherent
constitutional power to seize the mills. If there was express statutory
authorization, it would be permitted, but there is not.
a. No statutory authorization, only Constitutional
b. Part of the Executive Power
i. Executive Power is all the power of which a president could be
capable (look throughout history)
c. Take Care Power
i. Congress asks the President to make procurements for war measures,
make sure inflation doesnt go too high, and now has to take steps to
ensure it happens
ii. Court: President is acting as a lawmaker, but only gets to
execute Congress will, not make laws
d. Army specific power
i. Has power to control and direct army, and needs steel mills to do this
ii. Court: Congress is supposed to provision for the army, not President,
and it is one thing to have power abroad to organize army, but
another to organize at home
3. Jackson (concur): framework for understanding strength of claim for Constitutional
authority (understood in terms of what Congress says about claim)
a. Zenith: President acts and has express authorization of Congress, either just
executing Congress will or has power independently and Congress tells to
exercise that power.
i. Here the President is at the zenith of his authority because has
Presidential and Congressional power.
b. Twilight: President acts but Congress is silent the twilight zone. He may
have to rely on his independent authority, or Congress/President may have
concurrent powers. The distribution is uncertain.
i. Here the imperatives of action tell more about what should happen
than law.
c. Lowest Ebb: President acts and Congress is disapproving.
i. Here the President is at the nadir of his power because only has
Presidential power minus Congressional power to restrict.
d. Thus, ask if Constitutional authorization, then see how Congress treats that
act. Youngstown seems to be lowest ebb because Congress refused to act
and court mixes a number of statutes to imply disapproval.
4. Dissent (Vinson): There is no statue prohibiting Trumans actions so we are in
twilight. Without a clear prohibition, the court should not stop Truman from acting.
Notes on Youngstown

28

Biggest difference between Black (formalistic, rigid separation of powers analysis)

and Jacksons opinions (functionalist) is that J allows for, within the zone of twilight,
what presidents have done in the past may be relevant.
Four different opinions on presidential power
o 1) There is no inherent presidential power; the president may act only if
there is express constitutional or statutory authority (Black); inherent
authority is inconsistent with a Constitution establishing a govt of limited
powers
o 2) The president has inherent authority unless the president interferes
with the functioning of another branch of government or usurps the
powers of another branch (Douglas); Pres here is unconstitutionally usurping
Congress spending power by forcing expenditure of federal funds to
compensate the steel mill owners
o 3) The president may exercise powers not mentioned in the Constitution so
long as the president does not violate a statute or the Constitution
(Jackson, Frankfurter)
o 4) The president has inherent powers that may not be restricted by
Congress and may act unless the Constitution is violated (Vinson)

A. Treaties and Executive Agreements

Art. II. Section 2. The president shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two thirds of

Questions: (1) When may executive agreements be used instead of treaties? (2)
What limits, if any, exist on the ability of the president to negotiate or rescind a
treaty?
Treaty: agreement between the U.S. and foreign country that is negotiated by the
president and is effective when ratified by the Senate.
Executive Agreement: an agreement between the United States and a foreign
country that is effective when signed by the president and the head of the other
government.
o Never explicitly mentioned in the constitution but accepted
o Look for: What zone the agreement is in, whether traditionally within
competence of President and if other powers support what is done in the EO

United States v. Belmont (1937): establishing diplomatic relations allowed in an EO

Sustained validity of executive agreement: Roosevelt recognized USSR in
exchange for USSR assigning to the U.S. its interests in a Russian insurance
company in New York. US would use assets to pay claims that they and others had
against the Soviet Union.
Recognition, establishment of diplomatic relations, and assignment are
all part of one transaction within the competence of the president (can
receive ambassadors, Zone 3)
States must enforce EO, and it takes precedence over state law.
Dames & Moore v. Reagan (1981, Rehnquist): President acting in Zone 1broad view of
Congressional authorization; doesnt have to authorize in that particular situation
Challenge to various EOs and regulations by which pres nullified attachments and
liens on Iranian assets in U.S., directed assets be transferred to Iran, suspended
claims against Iran that may be presented to an International Claims Tribunal.

29

Jacksons categories are helpful but oversimplified. Strongest presumption of

validity here. Zenith because Govt acted pursuant to IEEPA actions.
But, presidents ability to suspend claims isnt authorized specifically. But, the act
shows Congressional acceptance of broad scope for executive action in these
circumstances. Would be impossible for Congress to legislate in every area they
expect the president to touch.
History of settling claims with foreign countries; Congress has implicitly approved
Notes: Compared with Youngstown: Taft-Hartley had only been passed a few years
ago and Congress had explicitly rejected the power that Truman wanted. But,
here, Congress had never explicitly rejected this power and it was a power that
had been used for generations.

B. Presidential Power and the War on Terrorism

Hamdan v. Rumsfeld (2006, Stevens): President acting in Zone 3
Hamdan held at Gitmo and over a year later Pres. deems him eligible for trial by
military commission.
President does not have ability to convene military commission. Not mentioned in
Constitution or created by statute.
Uniform Code of Military Justice: Congress sanctioned Pres to convene military
commission but only when justified by the Constitution and laws, including the
laws of war. Must therefore follow the same rules as a court martial (or as closely
as possible) and Geneva Convention.
o Procedures were not the same as would have been followed in a regularlyconvened trial (allows hearsay, statements obtained by coercion).
Government did not demonstrate necessity, either.
o Also tried Hamdan for conspiracy, which is not a violation of a law of war.
Kennedy (concur): Separation of powers concernsoffenses can be defined,
prosecuted, and adjudicated by executive without any independent review. UCMJ
provides authority for certain forms of commissions but also limits. President has
acted in a way that conflicts with Congressional law (third category).
Thomas (dissent): Court is not positioned to decide on the military necessity of a
tribunal. President is in first zone, acting with express or implied authority from
CongressAUMF authorizes pres to use all necessary and appropriate force
against terrorists after 9/11. Dont need to comply with the laws of war because
Hamdan is an unlawful combatant.

C. Presidential Immunity to Civil Suits

Presidential immunity relies on general SoP claims, not any specific Constitutional
provision
Nixon v. Fitzgerald (1982): Absolute immunity from civil liability during Presidents term
and checks are political, impeachment, press
Clinton v. Jones (1997, Stevens)
Woman sues Clinton alleging sexual harassment when he was governor and she
was state employee. Clinton argues presidential immunity (temporary immunity
from civil damages litigation arising out of events that occurred before he took
office).
Misconduct is unrelated to Clintons official duties as president and
occurred before he was elected. The purpose of immunity is to allow pres to

30

function without fear that his decisions will lead to personal liability, so immunity is
inapplicable to unofficial conduct.
No separation of powers problem. Presidential job is hard but this litigation is
unlikely to take up too much time. Court is not encroaching on ability to perform
executive functions or aggrandizing executive functions.
Breyer (concur): Constitution doesnt grant president automatic immunity and
neither does separation of powers but president can show that proceedings would
conflict with public duties. President has a crazy schedule and duties and there is
only one of him. Pres would be an easily identifiable target for law suits.
o Fried: Breyers proposed solution is show then defer

D. Presidential Signing Statements

Dont really have a legal status, just explains how executive intends to exercise
discretion or instructions to administrative agencies.
o Scalia does not believe that they have any interpretative value similar to
Chadha, Pres only has two options: sign or not sign
o But, if these are marching orders then they govern the laws effect
Examples:
o U.S. v. Lovett: Congress thinks that US is full of spies so passes a 1500-page
appropriations that FDR desperately needs to fund the war but says none
can be used to pay Secretary Lovett unless he resigns and is re-confirmed
by the Senate. Invalid as bill of attainder.
o Bush signing statement said that he would withhold information that would
interfere with his constitutional duty not to jeopardize relations with foreign
nations
o Detainee Act prohibiting cruel, inhumane and degrading treatment was
signed by Bush except as interferes with his duties as Commander in
Chief
Meant he was going to exercise the extent of executive powers
granted to him by the Constitution and the legislation cannot restrict
those

E. Duty for President to Execute the Law

Duty to defend is different than the duty to enforce. Take care means that he shall
enforce them but not necessarily defend them in courts (DOMA)
o Solicitor General must defend constitutionality of all laws duly passed and
signed (or overridden by Congress) unless there is no colorable argument
that can be made for their constitutionality

F. Impeachment

Art. II. Section 4. The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

What are High Crimes and Misdemeanors?

o Just acts that violate criminal law?
o Gerald Ford: whatever a majority of the House of Representatives considers
it to be?
What procedures must be followed?

31

Andrew Johnson (1869): for unilateral dismissal of Sec. of War in violation of Tenure
of Office Act. Impeached by House but escaped conviction by one vote in the
Senate. Acting in executive function.
Richard Nixon (1974): does High Crimes and Misdemeanors only include criminal
offenses? Impeachment can reach serious abuses of office or breaches of trust
even if not criminal acts. Resigned. Acting in executive function.
Bill Clinton (1998): impeached for obstructing justice in the course of discovery in
Clinton v. Jones and providing perjurous, false, and misleading testimony. Fell
short of Senate votes needed to convict. Criminal violation but didnt involve him
acting as an executive.

II. Legislature and the Separation of Powers

Art. I. Section 7. (Presentment Clause): Every Bill which shall have

passed the House of Representatives and the Senate, shall, before it
become a Law, be presented to the President of the United States . . . .
Every Order, Resolution, or Vote to which the Concurrence of the Senate
and House of Representatives maybe necessary (except on a question of
Adjournment) shall be presented to the President of the United States; and
before the Same shall take Effect, shall be approved by him, or being
disapproved by him, shall be repassed by two thirds of the Senate and
House of Representatives, according to the Rules and Limitations
Art. I. Section 1. All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and a House
of Representatives.
A. The Legislative Veto
Enacted in response to growing administrative state. Allowed Congress to put a
check on agency without passing a new law.
I.N.S. v. Chadha (1983, Burger): One-house veto is unconstitutional
Challenge to constitutionality of Immigration and Nationality Act authorized
either House or Senate to overrule AGs decision to suspend deportation.
o Before this: private bills could be passed by Congress to suspend
deportation. Constitution only rules out bills of attainder (declaring person
guilty of crime, depriving them of right without trial)
o Bill created this arrangement in order to delegate difficult, individual
decisions (executive reorganization), but still retain some control over the
results
Congress may only legislate if there is bicameralism and presentment.
o Fried: Congress has no existence except when acting in specific ways.
One-house veto is legislative in character and effect. House took action that
had purpose and effect of altering legal rights, duties, and relations of persons.
Without the veto it only could have been achieved through legislation requiring
deportation.
Framers narrowly and precisely defined when either house could act outside of
legislative role: impeachment, presidential appointments, ratifying treaties.
o Fried: but legal rights are not yet established according to the statuteonly
established after this whole procedure has been completed

32

Powell (concur): decides on narrower groundHouse is deciding about specific

people which is a judicial function
White (dissent): Court should decide on separation of powers.
o Importance of legislative veto in securing accountability, Congress has not
used veto to get more power and exec has been ok with the leg. veto
o Legislative veto is consistent with the purposes of Art. 1 and the principles
of separation of powers: Constitution doesnt explicitly authorize or prohibit,
framers knew that govt would grow in size and complexity and were being
flexible.
o Legislative veto is not the power to write a new law. If Congress can
delegate powers to an agency, it may also reserve a check on those powers.
Note: Burger formalistic and White functional

B. The Line-Item Veto

Clinton v. New York (1998, Stevens)
Line Item Veto Act gives president the power to cancel in whole provisions that
have been signed into law if they meet certain criteria. Congress then had to get
enough votes to override.
The procedure is not authorized by the Constitution. Problems:
o The president has amended Acts of Congress by repealing portions of each.
He is substituting his policy judgment for that of Congress and changing the
statute (future presidents dont have discretion then), whereas normally just
has discretion to not spend.
o This is different than the Constitutionally-authorized veto: occurs after the
bill has become law, and cancels only part, not an entire bill.
Scalia (concur / dissent): no absolute prohibition, but look instead to
unconstitutional delegation of legislative authority. There is no difference
between a president being able to cancel an item of spending and being
authorized to determine what money is being spent on (Congress has always
made lump sum appropriations). Action is not a line-item veto so does not offend
Art I. 7, and is no different from what Congress has authorized the president to
do since the formation of the union.
Breyer (dissent): pres did not repeal or amend any law, he just followed the law.
The Act was enacted in accordance with those procedures. The power the act
conveys is executive (like deciding whether to spend appropriations). Does not
encroach upon Congress power (Congress can reinstate vetoed item). Line item
veto is needed because of the crazy budget process
Notes on Clinton v. New York
Fried: There IS a change in balance of power with line item veto
o Difference between deciding not to spend money and using the line item
veto: (1) president is presumed to have the discretion not to spend the
money; (2) line item veto happens quickly and there is bargaining time
when pres decides not to spend; (3) if Congress cant get enough votes to
overcome the line item veto it sticks
o Presidents only power is to sign or veto, not cancel parts of the budget like
a legislator. This is a Chadha case.
Fried: Congress was probably passing the buck here so that pres could get rid of
earmarks
Stevens formalistic and Breyer functionalist

33

C. Appointments and Removal Powers

Art. II. Section 2. The president. . . with the Advice and Consent of the
Senate shall appoint Ambassadors, other public Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provided for, and which
shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the

Appointment
o Principal officers appointed by President (w/ A&C, meaning majority of
Senate); inferior officers (limited jurisdiction, limited duties, temporary
officers, (Morrison)) can have appointment power vested in president alone,
courts or heads of departments
Removal
o RULE: All factors are considered in light of whether the restriction trammels
on Presidential authority (Morrison):
Nature of the office (the less purely executive, the more likely
restrictions are OK)
Significance of the officers functions to the Presidents ability to
faithfully execute (look at tenure, jurisdiction, duties, breadth)
Amount of control left to President to remove
Policy justifications
o Other notes:
Older rule: cannot limit removal of purely executive officers, but can
limit removal of inferior officers or non-purely-executive officers
(Myers, Humphreys)
The power to appoint is incidental to the power to remove
Congress cannot give the removal power to itself (other than by
impeachment) (Bowsher, Myers)
Congress cannot prescribe a double-layer of protection (PCAOB)

Morrison v. Olson (1988, Rehnquist): Congress creates independent counsels who can
only be removed by AG for-cause to investigate criminal wrongdoings by exec officers.
For this, IC needs to be an officer
o Has significant authority because prosecuting President mostly comes down to
this when distinguishing between officer/employee/independent
contractor
o Not legislative function because prosecuting
o Not a lesser functionary because has discretion (tension because have to
establish is officer and also inferior officer, who does not have as much
power)
The IC needs to be an inferior officer, otherwise would get chosen by President
with advice and consent if principal
o Subject to supervision by AG
Removal for good cause by someone below President (if had been
at-will, then higher odds of being inferior officer)
Only exists when AG asks to investigate/prosecute
o Limited jurisdiction (only can prosecute one type of case)

34

Limited duties (all does is prosecute)

Relative to principals, has much more limited scope
o Limited tenure (only limited to case at hand)
Problem that tenure could extend to entire presidential term
Problem that not permanent employment and could be treated like
an independent contractor
Precedent:
o Under Myers, IC is an inferior officer so can limit removal
o Under Humphreys, cannot limit removal because IC is a purely executive
officer (being a prosecutor)
Rejects rigid executive framework of Humphreys executor. Good cause
standard does not unconstitutionally impede on the Presidents
functions and duty to Take Care.
o Inferior officer doesnt need to be controlled as closely, has limited
breadth in duties, AG can still remove for good cause, and must follow
Judicial Department policies
o No separation of powers problem: Congress is not trying to increase its
own power, no judicial usurpation, does not undermine powers of exec
branch
Scalia (dissent): statute deprives pres of exclusive control over the exercise of
exec powermust have all control. Sep. of powersprimary check against
prosecutorial abuse is removal by president. Accountability, pres will not be
blamed for mistakes of IC.
o Fried: Problems with ICs discretion cannot be reduced to for cause
often they are political judgments
o

Bowsher v. Synar (1986, Burger): Congress cannot give itself power to remove an
executive officer except by impeachment.
Congress wanted to delegate decisions to neutral expert who could tell President
whether to cut budget between competing estimates of OMB and CBO, so made
Comptroller General the expert. He could only be removed by statute (with B/P)
for permanent disability, inefficiency, neglect of duty, malfeasance, or felony
conduct.
Congress cannot give itself power to remove an executive officer (like the
CG because he has ultimate authority to determine what budget cuts are made),
except by impeachment because it would give Congress the power over
execution of the laws. It would lead to a Congressional vetoCongress could
remove or threaten to remove an officer because removal only happens by
Congressional initiative and they can withhold that.
Stevens (concur): Real problem is that CG becomes an agent of Congress and that
Congress cannot exercise legislative power by delegating it to an individual agent.
White (dissent): Legislative theme is of minimal practical significance and presents
no substantial threat to basic scheme of separation of powers. CG is an executive
and Congress cannot remove executive officers but Congress is not executing the
laws simply by controlling a for-cause removal of an officer. Satisfies
bicameralism and presentment because can only be removed through joint
resolution passed by both Houses and signed by the president.
Frieds oral arguments with OConnor: his argument made her scared that the
argument for presidential oversight requirement would go beyond CG and extend
to independent agencies (appointees can only be removed for cause), and Fried

35

argued to her that CG had sweeping powers that extend into the execution while
other independent agencies are much more limited
Free Enterprise Fund v. PCAOB (2010, Roberts): two-level for-cause removal prevents
president from being able to oversee the officers who execute the laws
Board: 5 members appointed by SEC; inspects and investigates private accounting
firms; removable by SEC for good cause and pres may remove SEC
commissioners for inefficiency, neglect of duty, or malfeasance in office
Violates separation of powers because of the extra level of removal. No
member is subject to Pres direct control (two levels, both for good cause). Pres
cant hold commission accountable.
Breyers (dissent): Functional approach. For-cause restriction will not restrict press
powerslimits powers of an already independent agency, not pres powers. Forcause insulates adjudicative board members from fear of purely political removal.
Other Removal Cases:
Myers v. United States (1926, Taft): Statute providing that certain groups of
postmasters could not be removed by the president without a/c Senate is
unconstitutional. There is a reasonable implication from Presidents power to
execute laws that he should be able to select those who act for him. If selection is
essential to execution of the laws than his ability to remove them must also be
essential. Power to appoint = power to remove. Any Congressional limits on
removal power are unconstitutional.
Humphreys Executor v. United States (1935): FDR wanted to remove FTC
Commissioner, and while Congress did not give itself removal power (like Myers), it
specified for cause, and FDR did not provide a reason such as bad decision or not
faithfully executing
o Court says Myers confined to whether Congress could require advice and
consent for purely executive officers, but here have quasi-legislative
(determines fair rules of conduct) and judicial functions (FTC can rule on
whether someone has violated their regulations and fine if did violate) which
can be limited to for cause removal due to separation of powers.
Weiner v. United States (1958): War Claims Commission has an intrinsic judicial
character so no removal without cause. Functional need to keep Commission
independent.
Nondelegation
Mistretta v. United States (1989, Olson): Congress may delegate nonjudicial functions to
the judicial branch as long as they dont trench upon the prerogatives of another branch
and are appropriate to the central mission of the judiciary
Non-delegation doctrine: Congress may not constitutionally delegate its legislative
power to another branch of government
Congress delegates power to commission partially comprised of federal judges to
make uniform sentencing standards for federal crimes in federal courts [US
Sentencing Commission]
Blackmun: delegation is constitutional
o Congress, to function in complex society, must delegate power under
broad directives
o Separation of powers challenge rejected: judicial rulemaking falls in
acceptable twilight area

36

Since substantive judgment in field of sentencing has been and

remains appropriate to Judicial Branch, no separation of powers
violation
Moreover, does not interfere with impartiality of judiciary: cant imagine that
federal judges will comport their actions to wishes of president for purpose of
receiving an appointment
Scalia: Law cant be made but by Congress, this is the pure delegation of
legislative powerconcern about the creation of a junior varsity Congress

Recess Appointments Clause

NLRB v. Noel Canning (2014): President cannot make recess appointments unless the
recess is of sufficient length and the Senate is unavailable for deliberation
President made recess appointments while Senate was in a recess punctuated with
pro forma sessions
For purposes of the Recess Appointments Clause, the Senate is in session
when it says it is, provided that it can transact Senate business. President
can make intra-session appointments so long as the recess is of sufficient length
(10 days because of historical practice).
FOURTEENTH AMENDMENT

Amend. XIV. Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the United
States and of the state wherein they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of the
citizens of the United States; nor shall any state deprive any person of life,
liberty, or property, without due process of the law; nor deny to any
I. Due Process
A. Background
Types:
o Substantive due process (privacy, family)
o Procedural due process
Goldberg v. Kellydeprivation of welfare benefits is deprivation of
property without due process of the law
But not in Roth (tenure case)
o Fundamental implied rights/interests coming from both DP and EP (voting,
access to justice, marriage/procreation)
o Also: equal protection w/ respect to suspect classes (race, religion, ethnic
origin)
RULE:
o If non-fundamental liberty interest or property/economic liberty interest,
gets rational basis review (rational relation between a legitimate
governmental interest and regulation)
o If fundamental liberty interest then strict scrutiny. Strike down unless
least burdensome means (narrowly tailored) of achieving a compelling
governmental interest.
o Fundamental rights come from:
Enumerated rights BOR

37

Framers general intent

Basic values implicit in the concept of ordered liberty
History and tradition
Question about how specific/general must the tradition be
Question about whether look at if tradition is deeply rooted or
its vector (where its moving) (Lawrence)
Frieds notions of substantive due process
o Notion of rights did exist at framingthere are rights in unamended
constitution and others in documents that predated constitution
o DPC, because of Slaughterhouse cases has been recruited to perform a
function that would have been better served by the P&I clause, and in doing
so has invented a whole new jurisprudence about what rights are
fundamental enough so that any law against them is no law at all

B. Pre-14th Amendment Application of the BoR to the States

The Bill of Rights applied only to the federal government, not to state or local
governments.
o Barron v. Mayor & City Council of Baltimore (1833) (p.426) (upholding that a
municipal taking of personal private property without just compensation was
not a violation of the Fifth Amendment, which only applies to the federal
government)
The Bill of Rights and other rights in the Constitution did not apply to slaves.
o Dred Scott v. Sandford (1857) (p.429) (denying a slave the ability to become
a citizen of the United States with the ability to bring a lawsuit in court;
holding that slaves were property which could not be taken away without
due process or just compensation; striking down the Missouri Compromise
as unconstitutional for prohibiting slavery in northern territories) (overruled
by Amend. XIV, 1 (1868)).
C. Incorporation
The Due Process Clause of the 14th Amendment has been used to incorporate
almost all rights guaranteed by the Bill of Rights to apply to state and local
governments. (Four exceptions: (1) 3rd Amendment, (2) 5th Amendment right to a
grand jury indictment in criminal cases, (3) 7th Amendment right to a jury trial in
civil cases; (4) 8th Amendment prohibition of excessive fines)
o Palko v. Connecticut: what we protect under DP are only those limits which
are necessary for ordered liberty. (Double jeopardy case, state given right
to appeal from dismissal of criminal prosecution.)
o Lochner: DP is not the same thing as the Bill of Rights. If it happens to be
some overlap its only because the BOR is an expression of liberties.
Reverse Incorporation: the 5th amendment incorporates the EPC of the 14th
amendment to apply to the federal government

Amend XIII. Section 1. Neither slavery nor involuntary servitude, except

as punishment for crime whereof the party shall have duly convicted shall
exist within the United States, or any place subject to their jurisdiction.

38

Amend. XV. Section 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any state on
account of race, color, or previous condition of servitude.
A. Privileges and Immunities Clause of 14th Amendment

Amend. XIV, 1, states, No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States
o Cf. Art. IV, 2, stating The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States
o Difference from Art. IV P&I: that clause says citizens of the several states,
meant for state laws to apply equally to citizens of all states
o Difference from DPC: P&I says that shall not abridge P&Is of citizens of the
U.S., whereas DP clause is a categorical prohibition of deprivation
The Privileges or Immunities Clause does not apply the Bill of Rights to the states.
The Privileges or Immunities Clause only protects a stingy list of fundamental
rights that were protected under the Constitution even before the Privileges or
Immunities Clause was adopted, such as right to travel and access to government
(Slaughter-House Cases)

Slaughter-House Cases (1873, Miller): Monopoly granted by the state does not violate P&I
Clause because it doesnt cover a fundamental right. Privileges and immunities clause
not meant to protect individuals from state actions or to be a basis for federal courts to
invalidate state laws. Nullifies privileges and immunities clauseonly laws that
existed originally are fundamental rights.
LA law chartered a corp and granted it a 25-year right to maintain slaughterhouses
around New Orleans, requiring all competitors to close.
The Constitution protects only fundamental rights (rights that belong to
citizens of all free governments). All other rights are the domain of the
states.
Field (dissent): 14th covers deprivation of common rights by state legislation.
Doesnt create privileges and immunities but recognizes they exist already and
must be respected. Right to pursue lawful employment in a lawful manner.
Right to Travel
There is a fundamental right to travel so any law that prohibits or burdens
travel must pass strict scrutiny. But, no right to foreign travel (must just pass
rational basis)
Closely related to commerce clause (especially dormant commerce clause) policy
and privileges and immunities clause of Article IV. Involve free flow of goods and
services throughout the US and the full access of every person to the markets of
every state.
Political significance: right to relocate to a different political environment and
climate.
Saenz v. Roe (1999, Stevens): Fundamental right to travel/to be treated as a state
citizen if you move to a new state. Used privileges and immunities clause to
invalidate state law for first time.
State law distinguished among state residents in distribution of welfare benefits
according to duration of residence in the state

39

Strict scrutiny: States legitimate interest in saving money provides no

justification for decision to discriminate among eligible citizens in a way that is not
narrowly tailored: duration of residence/prior state resided in have no bearing on
need for benefits.
Right to travel has three components: (1) The right to enter and leave
another state; (2) The right to be treated as a welcome visitor; (3) The right to be
treated like other citizens of that state who elect to become permanent residents
o Protected by rights as BOTH state/U.S. citizens
Rehnquist (dissent): Dont want them to take benefits and run (like tuition rates,
divorce)
Thomas (dissent): The original understanding of the privileges and immunities
clause protects only fundamental rights, not civil rights

Other Case Law Involving the Right to Travel (see also fundamental rights)
U.S. v. Guest: no explicit mention of the right to travel across state lines because it
is so elementary, it was conceived from the beginning to be necessary. Indicted
those attempting to prohibit blacks from travelling on state highways.
Crandall v. Nevada: invalidated tax on passengers leaving the state because of a
right to come to the seat of the national government
Edwards v. California: invalidated law prohibiting bringing indigent non-residents
into state. Majority relied on commerce clause and concurrence suggested that
the right of persons to move was more important than the right of products and
goods to move, invoking privileges and immunities clause.
C. Substantive Due Process in the Lochner Era: Economic Liberties
The constitutional right to enter into and enforce contracts, pursue a trade or
profession, acquire, possess, and convey property.
Constitutional basis:
o Contracts Clause, Art. I, 10: no state shall pass any law impairing the
obligation of contracts
o Takings Clause Amend. V: nor shall private property be taken for public use
without just compensation
o Amends V & XIV: neither the federal nor state governments can take a
persons property (or life or liberty) without due process of the law
History:
o Early 1800s: natural law principles to protect property rights
o 1800s: use of the contracts clause to limit the ability of states to interfere
with existing contractual obligations
o Late 1880s 1937 (Lochner Era): freedom of contract is a basic right under
the liberty and property provisions of the DPC. Invalidated tons of laws (but
also would have been declared unconstitutional under Amend X)
o Post 1937: extreme deference to government economic regulations
1. Lochner Era
Established:
o (1) Freedom to contract is a basic right protected as liberty and
property rights under the DPC.
o (2) Government can only interfere with freedom of contract to
serve a valid police purpose (protecting public health, safety, morals).
o (3) Judicial role to carefully scrutinize legislation interfering with
freedom to contract. Many laws that purport to be exercises of the police

40

power in reality are to redistribute wealth or to help a particular group at the

expense of others.
Criticisms
o Court should not protect freedom to contract. Erred in concluding that
government can only interfere to protect public health, safety, and morals.
Must be able to regulate to protect other goods.
o Unequal bargaining power makes freedom to contract illusory.
o Inconsistent application (minimum wage v. maximum hours; women v. men)
o Judicial activism. Need more deference to legislative decisions.

Antecedent: Dred Scott (1857, Taney): Slave claimed that he was free after traveling to IL
with owner.
The Missouri Compromise did not make slaves citizens because Congress did not
have the power to deprive masters of their property without DP.
A law that would take from a man his property by virtue of him having carried
it elsewhere is so arbitrary as to not be law at all. While some process, too
arbitrary to have been due process (no law had been invalidated since Baron).
Lochner v. New York (1905, Peckham): maximum hours limit for bakery employees was
an unconstitutional inference with liberty including right to contract in relation to ones
business (and did not serve a valid police purpose)
Inhibits freedom of contract to work for as many hours as they wish.
State has no good interestdoesnt involve safety or morals. Bakers are no less
healthy than any relationship. Could regulate anything to make population strong
and robust. Real purpose was to regulate relationship between employer and
employee.
Harlan (dissent): liberty of contract is subject to reasonable police regulations
including protecting the physical well-being of those who work in bakeries. Court
should not legislate, just determine whether there is a real and substantial
relationship to health. Need for judicial deference.
Holmes (dissent): other state laws equally interfere with liberty; A constitution is
not meant to embody a particular economic view (laissez-faire); reasonable
regulation
Difference from Slaughterhouse cases: Those were brought through P&I
clause, this was DP. Slaughterhouse cases established that the P&Is are only as
citizens of the U.S., which are not very much. The DP clause does not allow states
to make any law that deprives
Regulation Invalid under DPC: Regulating Labor
Laws prohibiting Yellow Dog Contracts (prohibiting joining labor unions) are
unconstitutional
Adair v. U.S. (1908): Federal law prohibiting yellow dog contracts for interstate
railroad employers invalid under 5th. Right of person to sell labor on such terms
as he deems proper.
Coppage v. Kansas (1915): Prohibition of yellow-dog contract unconstitutional.
Right of personal liberty includes the right to contract. State should not try to
remedy inequality.
New State Ice Co v. Liebmann (1932): Cannot regulate business entry.
Invalidates law treating manufacturing ice like a public utility, requiring certificate
of convenience and necessity as a prerequisite to enter business.
Regulation Valid under DPC: Protecting Women

41

Muller v. Oregon (1908): sustained law providing that no female shall be employed
in a factory for over 10 hours a day because of her physical structure,
importance of healthy mothers and vigorous offspring. Justified as protective
legislation to secure a real sense of equality. Difference between men and
women justify a difference in legislation.
Bunting v. Oregon (1917): extended Muller by upholding a law establishing
maximum 10-hour day for male and female workers
But see, Adkins v. Childrens Hospital (1923, overruled in West Coast Hotel): law
prescribing minimum wages for women violates DPC. Since Muller, 19th
amendment was adopted so civil inferiority of women was almost at a vanishing
point. Violates freedom to contract without serving a valid police purpose (like
maximum hour laws). Dissentwhy can you prohibit minimum wage but uphold
maximum hours?

2. The Demise of Lochner

Principles:
o (1) Freedom of contract is no longer a fundamental right.
o (2) Government can regulate to serve any legitimate purpose.
o (3) Judiciary will defer to governments choice.
RULE NOW: Economic regulationslaws regulating business and employment
practiceswill be upheld when challenged under the due process clause so long as
they are rationally related to serve a legitimate government purpose and
the judiciary will defer so long as the legislatures choices are reasonable.
o Government purpose: can be any goal not prohibited by the Constitution;
does not need to be proved that asserted purpose is legislatures actual
objective (any conceivable purpose is ok); only must be a reasonable way of
attaining the end; does not need to be narrowly tailored.
Nebbia v. New York (1934, Roberts): Price-fixing law is constitutional because it
affects the public interest in health and is not unreasonable, arbitrary, or
capricious.
o NY establishes Milk Control Board with power to fix prices at retail stores
because prices received by farmers for milk was below the cost of
production.
o Public health: milk is an essential part of the diet and farmers will stop
producing if they dont get enough return.
o The states are free to adopt policies that they deem to promote the
general welfare.
o McReynolds (dissent): poor people have to pay more money for milk; leg will
not achieve the proposed end; interferes with the rights of the little grocer
and liberty of customers
West Coast Hotel v. Parrish (1937): Upholds state minimum wage law for
women. Constitution doesnt protect freedom to contract, only liberty.
o Liberty isnt absoluteregulation which is reasonable in its relation to
subjects and adopted in the interests of the community is due process.
o Protecting women is close to the public health. When a group of workers
loses wages, taxpayers have to pay to support them.
o Dissent: Constitution doesnt protect against economic effects; shifts the
burden of maintaining indigent persons from taxpayer to employer.
United States v. Carolene Products (1938): rejects challenge to federal prohibition
on the interstate shipment of milk. Debatable whether commerce in filled milk
should be left unregulated, so defer to legislature. Look to legislative justification,
not the real intent.

42

Stones Footnote 4: distinguishes cases with rational basis scrutiny and

those that may need a higher level: first 10 amendments, restrictions on
political process, statutes directed at particular religious or racial minorities
Williamson v. Lee Optical (1955, Douglas): Statute prohibits anyone other than a
licensed optometrist to fit glasses or replace frames. Minimum rational basis
reviewdefer to legs judgment about what is necessary. Court
hypothesizes potential rational purposes (even though the law was probably
adopted to protect optometrists, not for public health).
o

Substantive Due Process and Takings

BMW of NA v. Gore (478, 1996) Struck down excessive damages claim on
procedural DP grounds, with element of SDP.
Eastern Enterprises v. Apfel (1998), s.p. 57, 58: invalidated provisions of Coal Act
that required companies that had previously employed coal miners to bear a
certain portion of the miners health care costs in retirement even if they had long
since left the business.
o Four justices based their decision on regulatory takings
o Kennedys concurrence found taking analysis inapposite but found that the
Act violated substantive due process retroactive laws change the legal
consequences of transactions long closed, such change can destroy the
reasonable certainty and security which are the very objects of property
ownership. As a consequence, due process protection for property must be
understood to incorporate our settled tradition against retroactive laws of
great severity.
State Farm v. Campbell (2003): Supreme Court tosses out punitive damages which
were 100x compensatory damages. Any statute that would award this furthers no
legitimate purpose and is an arbitrary deprivation of property in violation of
Fourteenth Amendment.
D. Substantive Due Process: Fundamental Rights
Fried explains the difference between Lochner and Griswold/Roe
o (1) Stones Carolene Products Footnote 4: judicial deference to the
legislature is the rule, with three exceptions with more exacting judicial
scrutiny: (a) violates Bill of Rights, (b) restricts political process, (C)
particular religions or national or racial minorities
o (2) Lochner was about property and commerce while Griswold/Roe are about
personal liberty
But, Fried says the difference doesnt work because judges in Lochner
thought the freedom to contract was personal liberty
o (3) Due Process is not the same as the BOR, if there is an overlap then its
because the BOR is an expression (but only an expression) of a right of basic
liberties
Must pass strict scrutiny: narrowly tailored to achieve a compelling government
purpose
Many rights are protected under both DPC and EPC
o Under Due Process the question is whether the governments interference
is justified by a sufficient purpose
o Under Equal Protection the question is whether the governments
discrimination as to who can exercise the right is justified by a
sufficient purpose
TEST:

43

o
o

o
o

Is there a fundamental right? (1) In the text of the constitution

(originalists), (2) in the framers general intent, or (3) in history and tradition
Is the constitutional right infringed?
Consider the directness and substantiality of the interference
(Zablocki)
Cannot require someone forego a right to get a benefit
Is there a sufficient justification for the governments infringement
of a right? Must be compelling (vital) if fundamental interest, but just
legitimate purpose if not
Is the means sufficiently related to the purpose? The law must be
necessary to achieve the objective. The government must prove it could
not attain the goal through any means less restrictive of the right.

1. Constitutional Protection for Family Autonomy

i. Right to Marry (but also think through EPC for gay marriage)
Loving v. Virginia (1967): strikes down ban on interracial marriage. Relies
mostly on EP but alternative grounds could be DP. Marriage as a fundamental
right and freedom to marry lies with the individual.
o Fried: Easier case than Brown because freedom of association more directly
at stake here
Zablocki v. Redhail (1978): invalidates law preventing marriage if there is
unpaid child support for children who get support from the state.
o Fundamental right to marry. If the right to procreate means anything at
all it must involve the right to enter the only relationship where the state
allows sexual relations to take place.
o State has interest in making sure that child support is paid but it is not
sufficiently related or closely tailored (less intrusive means including wage
assignments, civil contempt proceedings, criminal penalties).
Turner v. Safley (1987): strike down prison regulation requiring approval of
superintendent before marrying.
o Marriage is an expression of emotional support and public commitment,
religious and spiritual significance, required for govt benefits, expectation
that marriage will eventually be consummated.
o Almost complete ban on marriage is not reasonably related to a legitimate
penological interest.
ii. Right to Custody of Ones Children
Michael H v. Gerald D. (1989, Scalia plurality): Presumption of legitimacy does not
violate due process right of unmarried father of child who wanted visitation rights.
o Due process requires that liberty interest be fundamental and
traditionally protected by society
o Relationship between bio dad and child has not been protected historically
(must use most specific level of generalityrelating to adulterous fathers,
not parents more generally).
o Brennan (dissent): tradition is malleable (no set tradition) and times have
changed (blood tests, illegitimacy no longer stigmatized)
E.N.O. v. L.M.M. (Mass. 1999): two women in committed relationship had AI plan
that non-biological parent would adopt the child; broke up; biological mother broke
off contact w/ non-bio mother and child. Probation officer ordered visitation rights.
SJC upheld and Fried dissented.

44

iii. Right to Keep the Family Together

Moore v. East Cleveland (1977): zoning ordinance limiting occupancy of dwelling to
members of a single family (not including grandmother and two cousin
grandsons) is invalid. A family includes an extended family.
o Stricter scrutiny. City interests in preventing overcrowding, minimizing
traffic and parking congestion are served marginally at best.
o History/tradition of extended families living together is equally deserving of
constitutional recognition.
o Stevens (concur): decide on right to enjoyment of property
o White (dissent) tradition doesnt cover the extended family
Belle Terre v. Boraas (1974): privacy right does not extend to unrelated
family. Ordinance is economic and social legislation. Marshall (dissent): strict
scrutiny, who to live with is deeply personal.
iv. Right to Control the Upbringing of Ones Children
Meyer v. Nebraska (1923): Read liberty broadly reversing conviction of a teacher
for teaching German. Mixture of ability to educate children the way parents
wish and right to contract and pursue any employment you wish.
Pierce v. Society of Sisters (1925): Unconstitutional to require children to attend
public schools. Interferes with liberty of parents and guardians to direct the
upbringing and education of children under their control. (Today would be thrown
out on first amendment grounds.)
Troxel v. Granville (2000, OConnor plurality): state court decision granting
grandparents visitation rights violates mothers DP right to make
decisions about her children.
o Fit parents have an interest in care, custody, and control of children. Must
give parent special weight.
o Stevens (dissent): parents liberty interest is not absolute
o Kennedy (dissent): family courts should decide
2. Right to Beget or Not Beget a Child
i. Development of the Right
Skinner v. Oklahoma: Invalidated statute providing for compulsory sterilization
after a third conviction for a felony. Marriage and reproduction as basic liberty.
But, did so on EPC groundsonly some felonies.
Progression from here:
o Right to privacy in marital bedroom (Griswold, Poe dissent)
o Right to privacy in decision to have a child (Eisenstadt)
o Right to privacy of body in all decisions affecting childbirth (Roe, Casey)
Poe v. Ullman (1961): notable for Harlans Dissent which called for the establishment of
a right to privacy that covers reproductive autonomy.
CT legislature prevents married couples from using contraception
Majority: Plaintiffs do not have standing to challenge CT law
Dissent: The 14th amendment is more than a shorthand reference to the Bill of
Rights, its broader
o SDP demands respect for the teachings of history and recognition of basic
values that underlie society. Liberty is a continuum involving freedom from
all substantial arbitrary impositions and purposeless restraints.
o Privacy in home found in the third amendment (quartering soldiers) and
fourth (searches and seizures) and applies to states through the 14 th

45

o
o

States have the ability to regulate morality, but there is a problem here with
how they are regulating morality.
Allows the state to inquire into the most intimate details of marital
relations. Fundamental libertyprivacy in ones home.

Griswold v. Connecticut (1965, Douglas): right to privacy in penumbras to the Bill of

Rights protects married couples ability to get contraception
CT law criminalizes, for married couples, contraceptive use or helping someone get
contraceptives.
Zone of privacy found in penumbra of various Amendments: right of
association in 1st Amendment, prohibition against quartering of soldiers in 3 rd, right
against unreasonable search and seizure in 4 th, self-incrimination clause in 5th.
Also, 9th Amendment authorizes query because it says rights are not just those set
out
Law concerns a relationship lying within the zone of privacy; by forbidding
the use of contraceptives rather than regulating their manufacture or sale, seeks
to achieve its goals by means having a maximum destructive, sweeping
impact upon that relationshipwould we have the police search the marital
bedroom for telltale signs of contraceptive use?
Goldberg (concur): Privacy in other liberty decisions, Ninth Amendment (certain
rights shall not be construed to deny or disparage others retained by the people)
shows that BOR could not include all rights and that others remained protected
Harlan (concur): requires strict scrutiny because infringes on the liberty interests
of privacy within the home (not penumbras and emanations); problem is not
with regulating morality but with the choice of means (intruding on most intimate
details of marital relation with the full powers of the criminal law); privacy in home
found in the Third and Fourth Amendments; look to history, basic values
implicit in the concept of ordered liberty (institution of marriage is
important), federalism and SOP
White (concur): strict scrutiny; policy against promiscuous or illicit sexual relations
could be a legitimate sexual goal but not furthered by a complete ban on
contraceptives by married couples
Black (dissent): Fourth Amend. protects some privacy but not all types of
privacy(too broad); the government has a right to invade privacy unless
protected by a specific Constitutional provision; 9th Amendment was intended to
limit the fed. gov. to use the powers granted expressly or necessarily by
implicationused only to protect state powers against federal invasion
Stewart (dissent): no general right of privacy in the BOR, any part of the
Constitution, or any previously decided case
Eisenstadt v. Baird (1972, Brennan): expands Griswold to unmarried couples
because it violates equal protection standard even under minimum rationality
If the right of privacy means anything, it is the right of the individual, married or
single, to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a child
o CF calls this the underground tunnel from Griswold to Roe. Decision to
bear a child. Griswold dealt only with begetting, not bearing.
Roe v. Wade (1973, Blackmun): abortion is a fundamental right under the Constitution,
and all decisions affecting it are subject to strict scrutiny

46

The Fourteenth Amendments concept of personal liberty and restrictions

on state action encompasses a womans fundamental right to terminate
her pregnancy
o Not Ninth Amendment, not penumbras, ordered liberty
Strict scrutiny
o Pregnant woman has a fundamental right to rid herself of these
consequences, and there is a mental, physical, and emotional detriment to
her if she cannot choose
o Government has two legitimate, competing interests:
Protecting the health of the pregnant woman
Protecting the potentiality of human life
o Must decide if government interest is compelling (more powerful than
fundamental right) based on means chosen
Fetus is not a person under the 14th, but court is reluctant to define where life
begins
Trimester framework:
o First: No regulation because not compelling: safer for mother to have
abortion than alternative. Physician and patient determine. Abortion is a
medical decision and state may only require that a doctor be involved /
provide medical advice.
o Second: State interest in maternal health. Mortality in abortion now equals
mortality in child birth. State may regulate abortion as long as it relates to
maternal health.
o Third: After viability, the states interest in potential life becomes
compelling. State may proscribe abortion except when necessary to protect
the life and health of the mother.
Rehnquist (dissent): transaction resulting in an operation is not private and is not
even a distant relative of the 4th/5th amendments. Rational basis testliberty is
not absolute. Court shouldnt adopt a compelling interest standard for economic
and social welfare legislationcourt will have to examine legislative policy.

Fried: abortion is different from contraception; (1) Rehnquistabortion is not a private

transaction (its a contractual one); (2) conflict/balance between interests of women and
rights of another entity; (3) DP protects life so why does the life of the fetus get no
protection; (4) This is a broader view of privacy
ii. Spousal and parental consent requirements
Danforth: Struck down required spousal consent and parental consent for woman
under 18
Bellotti v. Baird: Parent could be involved in minors decision so long as there is
alternative judicial bypass procedure which allows minor to demonstrate
competence to make decision
Matheson: Sustained law requiring physicians to notify parents of any minor upon
whom an abortion was to be performed
iii. Regulation of medical practices
Akron v. Akron Center for Reproductive Health (1983): invalidated (1) requirement
that abortions be performed after first trimester in hospital (more expensive); (2)
set of detailed guidelines physician had to convey that were designed to persuade
rather than inform; (3) 24-hour waiting period

47

iv. State funding of abortion

Not paying for it is not prohibiting it
Sunstein: how free you are is just what you are entitled to. If everyone is entitled
to a certain level of medical care then not providing it amounts to a prohibition.
Sinking below this is a penalty or prohibition.
Fundamental Difference: right to choose? Or right to have an abortion?
Maher v. Roe (1977, Powell): Upholds regulation granting Medicaid benefits for childbirth
but not for medically unnecessary abortions because state valuing an alternative to
abortion does not prevent a woman from having an abortion
Upheld under rational basis. State can choose to value childbirth over abortion
without interfering with the fundamental right recognized in Roe.
Decision doesnt prevent a woman from having an abortion (although may
influence).
Wide latitude for government to decide how to use public funds.
Brennan (dissent): distinction in state funding is coercion forcing indigent pregnant
woman to bear children they would otherwise choose not to have.
Marshall (dissent): regulations impose a moral viewpoint that no state may
constitutionally enforce.
Harris v. McRae (1980, Stewart): Hyde Amendment, barring federal funding for all
abortions except for rape, incest, or endangerment of the mother is constitutional.
Right to choose does not include constitutional entitlement to financial
resources to avail herself of all protected choices. Substantive due process
guarantees do not translate into affirmative funding obligations.
Abortion restricted because of indigency, not because of government regulation.
Leaves women with the same choice as if government had not subsidized any
healthcare.
Brennan (dissent): discourages exercise of fundamental liberties as effectively as
outright banning the exercise
Stevens (dissent): distinguishes Mayerfunding denial reaches medically
necessary abortions. Government must use neutral criteria when distributing
benefits if it has decided to alleviate the burdens of poverty by subsidizing
necessary medical care.
Webster v. Reproductive Health Services (1989, Rehnquist): government can prohibit
state employees / public facilities from providing abortions
Puts woman in the same place as if state had not chosen to operate any hospitals
at all (though might be different if all health care was provided in state facilities,
such that would be a denial of abortions)
v. The Undue Burden Standard
Roe was strict scrutiny but this is less, an undue burden. It also draws line at
viability, not third trimester
The purpose and effect cannot be to place a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus.
o A state can persuade and assert, though
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992, OConnor; separate
opinions by Stevens, Blackmun)

48

Does not overturn Roe: has not proven unworkable, women rely/have ordered their
lives around the ability to have an abortion, Roe is not obsolete, facts have not
changed to make Roe unreasonable
Undue Burden Standard: because of medical advances; purpose or effect of
placing a substantial obstacle in the path of a woman seeking an abortion before
viability.
o Means chosen by state must be calculated to inform womans choice, not
hinder; can express respect for life so long as not a substantial obstacle to
right to choose.
o But, state measure persuading her to choose childbirth over abortion will be
upheld if its reasonably related to that goal. (look at p. 519)
o State can restrict post-viability, with exception to protect female life or
health
Challenged statutory provisions:
o 24-hour waiting period: travel is difficult, expensive, and hard to hide but
not an undue burden (can enact persuasive measures which favor childbirth
over abortion, even if they do not further a health interest). Facially it
serves a real purpose that cant only be to prevent choice. Would consider
an as-applied challenge.
o Spousal notification: is an undue burden. DV. Husband should not have
veto over wifes decisions.
o Parental consent: is not an undue burden (as long as there is a judicial
bypass)
o Public report: is not an undue burden. All provisions relate to the
collection of info to improve health so serve alternate purpose.
Practically, Casey has been an invitation for states to limit abortion (must be
substantial obstacle)
Blackmun (separate): abortion should be subject to strict scrutiny. Compelled
continuation of pregnancy infringes upon a womans right to bodily integrity and
deprives a woman of the right to make her own decisions about reproduction and
family planning. Gender equalitystate conscripting womens body. Roe
framework is more administrable and less manipulable.
Rehnquist (mostly dissenting): overrule Roe. Abortion involves a purposeful
termination of potential life.
Scalia (mostly dissenting): uphold under rational basis. Plurality threw out Roe
while pretending they didnt.

vi. Post-Casey decisions

Stenberg v. Carhart (Breyer, 2000): Struck down Nebraska law prohibiting late term D&X
without an exception to preserve the mothers health
D&X may be healthier in some situations so a statute that altogether forbids
the procedure without an exception for health creates a significant
health risk
Statute could also be reasonably interpreted to ban D&E procedures which would
create an undue burden
Stevens (concur): state cannot have a legitimate interest in requiring a doctor to
follow any procedure other than one that will best protect the woman
Ginsburg (concur): trying to chip away at Roe
OConnor (concur): would be constitutional with sufficient life and health exception
Kennedy (dissent): state interests were disregardedwhat about the unborn?
Thomas (dissent): abortion-on-demand

49

Gonzales v. Carhart (2007, Kennedy): upholds federal ban on D&X, distinguishing from
Stenberg because of Congressional finding that D&X was never medically necessary and
doesnt include D&E
No showing of undue burden for a large fraction of women
Governments interest in preventing partial-birth abortion is sufficient to uphold
the law: prevent the medical profession from looking like its killing babies
(dismemberment in uterus better because alternative of taking fetus out whole is
like infanticide); showing respect for human life; informed decision making of the
woman
Ginsburg (dissent): no life/health exception; procedure that ACOG approves of;
second trimester abortions are more likely to be minors and indigent women; D&X
can benefit the health of the woman; state doesnt actually preserve fetal life;
depriving women of ability to making an autonomous choice (ancient notions
about the womans place in the family)
3. Right to Sexual Activity and Sexual Orientation
Bowers v. Hardwick (1986, overruled in Lawrence): Court upholds GA law prohibiting all
sodomy
Look narrowlyno fundamental right to homosexual sodomy. Previously
protected rights (marriage, bear/beget children) are not relevant here.
o Only protect rights as fundamental if: supported by Constitutions text,
framers intent, or tradition of being safeguarded (sodomy has historically
been banned).
Rational basis: state interest in morality
Blackmun (dissent): right defined too narrowly, should be the right to be left alone.
Sexual intimacy is a sensitive, key relationship of human existence forming a
central part of an individuals life
Stevens (dissent): state must justify targeted use of law (gay men) under
heightened scrutiny
Lawrence v. Texas (2003, Kennedy): law prohibiting same-sex sodomy is unconstitutional
They were free as adults to engage in the private conduct in the exercise of liberty
under the DPC. Touches on the most private human conduct, sexual
behavior in the most private of places, the home.
o Significance: Recognizes that sexual activity is a fundamental part of
personhood and is entitled to constitutional protection
No history of law directed at homosexual sexual conduct, but nonprocreative
sexual conduct. In fact, homosexuality as a concept didnt even emerge until the
late 19th century. Increased acceptance: Bowers hasnt been followed
Case history of Griswold, Roe those proclaimed right to privacy as a protected
interest.
o Fried: H/t is just to declare something a fundamental right. If no H/t, then
does not help attack the statute because statutes do not need h/t to sustain.
H/t seems here to shift the burden from person attacking legislation to state
to defend.
No legitimate state interest. (Seems to suggest that fails rational basis, even)
o No fundamental rights or strict scrutiny mentioned
OConnor (concur): doesnt overrule Bowers but holds unconstitutional on EPC
grounds (bans only homosexual conduct).

50

Scalia (dissent): Belief that a behavior is immoral / unacceptable is a rational basis

for regulation. An emerging awareness is not a fundamental right. Court has
bought into the homosexual agenda.
Thomas (dissent): law is silly but cant be helped through the Court

5. Right to Physician Assisted Suicide

Types of physician assistance:
o Suicide when one is healthy or only temporarily ill
o Withdrawal of life support when one is terminally ill (Cruzan)
o Physician-assisted suicide when one is terminally ill (Glucksberg)
o Active euthanasia by a physician when one is terminally ill
Rule: States may still enact statutes prohibiting or allowing physician-assisted
suicide largely unconstrained by the Constitution
Five justices left open the possibility that laws prohibiting physician-assisted death
might be declared unconstitutional as applied in specific cases
o Strongest challenge: state law prevents the provision of pain-relieving
medication that likely would hasten a terminally ill patients death
Cruzan v. Director, Missouri Department of Health: a state may condition exercise of a
patients right to terminate life-support on a showing of clear and convincing evidence
that the patient desired such treatment
Competent adults have a constitutional right to refuse medical care. But,
here the individual is not competent.
o The individuals right comes from history and tradition of right to control
body, as seen from CL battery
The state may require clear and convincing evidence that a person wanted
treatment terminated before it is cut off (narrow decision)
o Rational basis (seemingly): State just has to have reason to protect life,
which it wants to do by preventing abuse of situation by conflicted family
members
Brennan (concur): State only has interest in establishing what the person wants.
Any interest cannot overcome individuals interest in life
Washington v. Glucksberg (1997, Rehnquist): no fundamental right to assisted
suicide
Two statutes: (1) a felony to promote a suicide attempt or help suicide and (2)
Natural Death Act which says that withholding or withdrawing life sustaining
treatment at a patients discretion is not a suicide
Not deeply rooted in nations history: Long tradition of criminalizing assisted
suicide, prohibited by MPC, reaffirmed even with changing technology. Cruzan is
the limit
Passes rational basis: State interests are legitimate and reasonably related to ban:
preserve human life, prevent suicide and treat causes, protecting integrity and
ethics of medical profession, protecting vulnerable groups including poor, elderly,
disabled
Souter (concur): TEST: (1) expressed by constitutional text or exemplified by
traditions of the nation, or revealed by contrast with traditions from which it broke;
(2) legislations justifying principle is so far from being commensurate with the
individual interest as to be arbitrarily or pointlessly applied.
Breyer (concur): Liberty interest is a right to die with dignity. Combined right
to personal control of the manner of death, professional medical assistance, and
the avoidance of unnecessary and severe physical suffering. Under these legal

51

circumstances, the state law did not infringe directly upon the (assumed) interest
in dying with dignity (doctor can still control the pain despite the risk that the
drugs will kill more quickly).
OConnor (concur): Might be constitutional right in certain circumstances to
physician-assisted suicide but dont have to decide now when dont have case
before court. Example: if palliative care cannot alleviate suffering while in extreme
pain, or maybe palliative care can lead to death.
Notes: Rehnquist calls it the right to refuse medical care and Souter calls it the
freedom from arbitrary restraint while Breyer calls it the right to die with
dignity

Vacco v. Quill (1997): NY did not violate EPC by prohibiting assisted suicide while
permitting patients to refuse lifesaving medical treatment
Logical and rational distinction between withdrawing life support and assisted
suicide.
Causation: withdraw treatment and killed by disease v. administer drug and killed
by drug.
o Philosophers Brief: no act/omission distinction; in criminal law omission is
still murder because doctor has duty to act. Intent and result are the same
so morally there is no distinction. Soldier in battle accepting death is not
murdered; Jehovahs Witness
Intent: Palliative care where doctor intends to help and honor the patients wishes
and administer drug where doctor intends to kill and patient has specific intent to
die.
Everyone treated equally: everyone has a right to refuse treatment and everyone
is prohibited from assisting suicide.
Gonzalez v. Oregon (2005)
Oregon passed a statute giving right to assisted suicide to terminally-ill patients,
where individual doctors were not required to perform. Interpretative ruling of U.S.
AG says that physician-assisted suicide is not a legitimate medical purpose, and
any doctor that administers federally-controlled substances for that purpose is in
violation of CSA
No Chevron deference to AG ruling because not within AGs expertise
6. Other Privacy Rights
Personal Appearance: Kelly v. Johnson (1976): no heightened scrutiny for
matters of personal appearance
Control Over Information: Whalen v. Roe (1976): court rejects privacy claim
against NY law where state recorded in a centralized computer file names and
addresses of all patients obtaining prescriptions for certain dangerous but
legitimate drugs. No privacy violation.
Rights When Institutionalized: Youngberg v. Romero (1982): involuntarilycommitted mentally retarded man had a constitutionally protected liberty interest
in safety and in freedom of movement and to minimally adequate or
reasonable training to ensure safety and freedom from undue restraint
Indefinite Imprisonment: Kansas v. Hendricks (1997): court uphold statute
providing for the involuntary civil commitment upon release from prison of any
person convicted of a sexually violent offense. Interest in avoiding physical
restraint may be overridden by civil commitment statutes when they have coupled
proof of dangerousness with proof of some additional factor like mental interest.

52

II. Equal Protection

A. Background
Amendment XIV, 1: No state shall deny to any person within its jurisdiction the
equal protection of laws
Questions:
o What is the classification?
Facially discriminatory
Facially neutral with discriminatory impact and discriminatory
purpose
o What is the appropriate level of scrutiny?
Types
Rational Basis (disabilities, sexual orientation): Classification
has a rational relationship to legitimate objective
Intermediate Scrutiny (gender, illegitimacy): regulation
serves important governmental objectives and is substantially
related to the achievement of those objectives
Strict Scrutiny (race, national origin): Classification serves a
compelling government interest and is narrowly tailored to
those interests (least restrictive means)
Factors in determining level of scrutiny
Immutable characteristicsunfair to penalize a person for
characteristics that the person did not choose and the
individual cannot change
Ability of group to protect itself through the political process
History of discrimination against the group / likelihood that the
classification is done because of prejudice
Are the means narrowly tailored to the ends?
Underinclusive laws dont include all who are similarly
situated with respect to the laws purpose. More deferential
(doing all it can).
Overinclusive laws impose a burden on too wide a range of
individuals
General notes:
o Differences from DPC: legitimacy of rule/purpose but attacking classification
used to implement it, more about protecting process rather than liberty
itself, and based on rationale that if there is going to be regulation, it has to
be done equally
o Equal Protection applies to federal government through the DPC of 5th
(Bolling v. Sharpe)
o There is a claim under EPC even if discrimination is against a class of one
(Village of Willowbrook v. Olech)
B. Rational Basis
Two requirements:
o Legitimate purpose: Will uphold law if it can conceive any legitimate
purpose, even if it is not the governments actual purpose (Fritz)
But cant be animus (Moreno)
o Reasonable relationship of classification o purpose: laws will be upheld
unless government action is clearly wrong, a display of arbitrary power, not
an exercise of judgment

53

1. Case Law Law upheld with legitimate purpose

Kotch v. Board of River Pilot Commissioners (1947): upholds LA statute allowing
only relatives and friends of incumbents to get harbor pilotage license because
of entirely unique nature of pilotage and rationale of preserving a close-knit
community.
Railway Express Agency v. New York (1949, Douglas): public health
o Trucks may only advertise their own business, not rent out space.
o Rational basis: local authorities may have concluded that those
advertising their own wares are less dangerous. Public safety rationale.
City might perceive that the prohibited advertisements could be more
distracting.
o Jackson (concur): no appropriate relationship to the object of regulation
(regulating some advertisements not others) but there is a real difference
between those who do something on their own and those who do it for a
price (easier to tolerate the former)
Jacksons point: we have to be careful about saying something
violates substantive due process because then the government cant
regulate at all. If its equal protection then the government can still
regulate in the field but if they do it to someone they have to do it to
everyone.
Similar rationale to OConnor concurrence in Lawrence: only bans
homosexual conduct
o But see, City of Cincinnati: ordinance prohibited newspaper boxes on street
except for daily newspapers. Violates EP because citys reasons that boxes
are unsightly and dangerous would make it so city would have to get rid all
of the boxes or leave some.
Williams v. Lee Optical (1955, Douglas): Deference to legislature about regulating
opticians. Clearly a protectionist purpose but Court holds that law could be
promoting public health.
o Legislatures can act one step at a time (i.e. start under-inclusively)
New Orleans v. Dukes (1976): upheld provision exempting pushcart vendors
operation for over 8 years from prohibition on vending in New Orleans. Rational
basis of preserving historical charm of French Quarter.
o Morey v. Doud (1957, overruled in Dukes): exemption for a particular
company against a general regulatory scheme created a closed class so
bore no reasonable relationship to the law.
U.S. Railroad Retirement Board v. Fritz (1980, Rehnquist): preventing certain
people from continuing to draw dual benefits was not an arbitrary line.
o Congress prevents people from receiving dual benefits from SS and
railroad jobs but grandfathers some employees (if they were active in
1974, had worked for a specified period of time, or were already receiving
dual benefits).
o Congress can withdraw from all people so can draw lines and withdraw from
only some people.
o Line was not drawn arbitrarily. There are plausible reasons even if
they werent the actual reasons. People who were active in industry are
more likely to pursue careers in the railroad industry.
o Stevens (concur): Congress must have more than a conceivable or plausible
explanation when a small class of people are deprived of a vested right.
But, actual purpose doesnt have to be known. Look to correlation between

54

classification and actual purpose of statute or legitimate purposeif

adverse impact on disfavored class is an apparent aim then it is suspect.
Actual purpose was to limit retirement benefits and Congress drew an
impartial line.
o Brennan (dissent): Court prevents judicial review of social or economic
legislative classifications. Purpose was to preserve benefits for those
retirees who had earned them. Purpose directly conflicts with the Act (which
takes away benefits). Cant accept post hoc justifications, look to
actual purpose. Text of statute/given explanations do not state actual
purpose.
Similar to Iowa trucking case: Was a substantial burden on interstate
commerce to restrict the size of trailers and no safety purpose. Used
things like governors statement to discern actual purpose, then
shifted the burden to state. This is what Brennan wanted here, but
EPC is much more permissive.
Nordlinger v. Hahn (1992): Narrows Allegheny exception. Upholds CAs Prop 13
imposing property taxation rates based on price of property at time of acquisition.
Doesnt discriminate on basis of property ownershipenacted to achieve benefits
of acquisition-value system. Possible purposes include encouraging stable
neighborhoods by offering economic disincentives for people to move, avoiding
taxes on appreciation that was the result of inflation, allowing people to know their
tax burden at the time of purchase.

2. Case Law Law struck down because of animus (no legitimate government purpose)
Village of Willowbrook v. Olech (2000): Village requires a larger easement for water
for a family who has previously sued because of animus. Court recognizes a
class of one that was discriminated against. Allegations of arbitrary
government action are sufficient to state a claim.
U.S. Dept of Agriculture v. Moreno (1973): Provision of federal food stamp program
limits households to groups of related persons. Exclusion of unrelated persons is
irrelevant to government goal of raising levels of nutrition among low-income
housing. Harming a group (hippie communities) is not a legitimate
government interest.
3. Case Law Law upheld with reasonable relationship
Railway Express Agency v. New York (1949, Douglas): banning outside truck
advertisements was an ok way to get at public safety even though vastly
underinclusive--there were many more distracting things that went unregulated
New York Transit Authority v. Beazer (1979): uphold exclusion of all methadone
users from Transit Authority employment. Rational that a degree of uncertainty
persists as long as drug treatment is still occurring. Upheld even though vastly
overinclusivenot all methadone addicts are a danger to public safety and vastly
underinclusive-extends employment to other safety risks
o Lower level of scrutiny because not racial prejudice
o Dissent: irrational and based on animusTA was worried about public
opinion after hiring former drug addicts.
Armour v. City of Indianapolis (2012, Breyer)
o City apportions public improvement costs on residents but changes system
soon after. Those who paid the lump sum do not get refunded, but those
who paid in installments are excused from future payments.

55

Rational basis: Administrative concerns ordinarily justify a tax-related

distinction. Choose a new system and would be administratively difficult to
continue to administer the old system. The line the city drew is well known
to law. City does not need to use the best system, only a rational system.
o Roberts (dissent): same as Allegheny Pittsburghadministrative costs is not
a justification. Had three options: (1) continue collection installments, (2)
forgive debts and refund, (3) forgive future payments and not refundcity
chose the third which is unconstitutional.
FCC v. Beach Communications: Upheld statute which distinguished between cable
facilities that serve separately owned and managed buildings and those that serve
one or more buildings under common ownership. Assumptions underlying
plausible rationales are arguable and that is sufficient.
Liquor Sale Problem: MA allows liquor stores in counties located 10 miles away
from NH border to sell liquor on Sundays. One county is within the 10 miles, but
an individual store is 25 miles away and can still sell liquor. Another store is just
across the street, but in a county that is not within the 10 miles.
o No animus, should be highly deferential
o Done as a matter of administrative convenience dont want to measure
distance from every store to the border
o

4. Case Law Law struck down as arbitrary and unreasonable

Allegheny Pittsburgh Coal v. Webster County (1989, narrowed in Nordlinger): No
rational basis for WV constitution taxing properties based on price at last
transfer. Company has been systematically paying more taxes than other
similarly situated businesses. County assessors practices were arbitrary and
not supported by law. Administrative costs is not a justification.
o Why is this different from Nordlinger?: Facts here preclude any possibility
that city wanted to realize the benefits of acquisition-value tax system
C. Race
Strict Scrutiny: regulation narrowly tailored to achieve a compelling
government purpose
Post-Civil War Amendments
o 13th is race specific (addresses slavery directly)
o 14th is more general. But, makes clear that the reasons it was passed was
to overrule Dred Scott and guarantee rights to former slaves
o 15th is race specific (race, color, previous servitude)
Why isnt rational basis enough?
o (1) a history of race as subordination
The court: makes it very likely that racial classifications will be based
on stereotypes and prejudices and creates political powerlessness
CF: we feel guilty
o (2) race classifies us and puts us into categories and there is a constitutional
right not to be categorized
o (3) race is an immutable traitunfair to discriminate against those for a
characteristic acquired at birth that cannot be changed
1. Facial Discrimination
i. Law Burdens Minorities
Law Struck Down:

56

Strauder v. West Virginia (1880, Strong) Black man convicted by an all-white jury.
State law limits jurors to white males over the age of 21.
o The purpose of the Fourteenth Amendment was to give blacks equal rights.
Can prescribe jurors based on other classifications, but not race.
o Doing so is practically a brand upon them, affixed by the law, an assertion
of their inferiority
Palmore v. Sidoti (1984): Cannot make custody determinations based on
race; wont ratify private discrimination. Custody awarded to father
because its in the best interests of the child not to grow up in an interracial
household. Classification based on race is more likely to reflect racial prejudice
than a legitimate concern. Constitution cannot control private biases and neither
can it tolerate them.
Law Upheld:
Korematsu v. United States (1944, Black): racial classification survives strict
scrutiny. Sustain conviction for violating military order excluding all persons of
Japanese ancestry from designated West Coast areas. First time court uses the
term most rigorous scrutiny
o Pressing public necessity; military authorities found it impossible to
segregate disloyal from loyal so had to segregate the whole group.
Fried: What about least restrictive means? Can engage in racial
profiling, but must be as little and as short as possible
Fried: Also, have to ask if EP is a group or individual right. Should
Orthodox Jewish charities be allowed to only match babies with
Orthodox Jewish parents?
o Murphy (dissent): fails reasonableness standardreal fear of invasion and
sabotage but exclusion of everyone with Japanese blood doesnt address the
problem. Vastly overinclusive (all Japanese) and underinclusive (not all
threats)
o Jackson (dissent): military orders may be necessary but should not be
enforced by civil courts committed to the Constitution. Creates
precedent for racial segregation going forward. May not have been a
mistake for military to enforce segregation, but a mistake for the court to
uphold it as constitutional.
ii. Laws burdening all races
McLaughlin v. Florida (1964): court invalidates statute prohibiting cohabitation by
interracial unmarried couples. 14th amendment made racial classifications
constitutionally suspect and subject to the most rigid scrutiny and in most cases
irrelevant to any constitutionally acceptable legislative purpose.
Loving v. Virginia (1967, Warren)law applying equally to all races doesnt serve
racial classification
o Black man marries white woman in DC and returns to VA where they were
convicted of violating a ban on miscegenation.
o Equal application of a statute including racial classifications is not
enough to remove all classifications from the 14ths proscription of all
invidious racial discrimination.
o State has no legitimate purpose independent of invidious racial
discrimination. Promotes white supremacy (only prohibits interracial
marriage when it involves a white person)

57

o Fried: change unit of comparison from black couple to mixed couple to get

EP violation; change to liberty argument (black partner is deprived of liberty

to choose whatever color partner he wishes to marry)
Johnson v. California (2005): strict scrutiny applied to segregating prisoners
by race even when they effect all races the same way. Preventing racial
violence is not an adequate justificationhousing prisoners with only those of their
race may breed further hostilities.

iii. Segregation
(a) Separate but Equal:
Plessy v. Ferguson (1896, Brown): upholds segregation in train cars
o LA law segregated railroad passengers into equal but separate
accommodations
o 14th amendment was to make all races equal but not to abolish all
distinctions. Within competency of state legislature to separate in exercise
of police power so long as reasonable, just as they do with education,
marriage, etc.
o Rational basis: promote comfort and preservation of public peace and
good order.
o Separate does not imply inferiority. Only stamps with badge of
inferiority if colored race chooses to put that construction upon it.
o Distinguish political laws (like juries) from social laws. Equality must be
achieved by people choosing to recognize the merits of all races, not
through social legislation.
o Harlan (dissent): purpose is to exclude blacks from white cars, not whites
from black cars. Legislation increases hatred by continuing to segregate.
(b) Initial Attacks:
Missouri ex rel. Gaines v. Canada (1938): MO law school offers to pay for Gaines
out-of-state tuition instead of admitting him. Must furnish the ability to a legal
education within the state.
Sweatt v. Painter (1950): Must admit blacks to TX law school even though
there is an allblack law school in the state. Law schools are not equal in terms of
educational opportunities. Doesnt question Plessy, but holds that schools arent
equal.
McLaurin v. Okla. State Regents (1950): Cannot force black student to sit in a
separate room. Must have ability to study, engage in discussion, and exchange
views with other students.
(c) Separate but Equal is Inherently Unequal:
Brown v. Board of Education (1954, Warren): No more separate but equal
because separate educational facilities are inherently unequal.
o Effect of segregation on public education: tangible factors are important, but
many have been equalized. Focus on intangible aspects including
feelings of inferiority decreased motivation to learn deprive of
opportunities they would have had in an integrated school system (social
science evidence footnote)
o History of the 14th: purpose is uncertain. Possible interpretations of
opinion:
Race is never a permissible basis to distribute public benefits or
burdens

58

Not a permissible basis when has social or psychological effect of

stigmatizing or subordinating a group.
Segregations laws are the product of white supremacy
Decrease in racial separation promotes racial integration
Bolling v. Sharpe (1954): Racial segregation of DC public schools violates
the DPC of the 5th. Liberty includes complete freedom from restraint and
segregation is a restraint that is not reasonably related to any proper
governmental objective.
(d) Remedying School Segregation
Resistance:
Griffin v. County School Board of Prince Edward County (1964): Public school
closing scheme involves grants to white children to attend private school.
Whatever nonracial grounds may be supported, the object of the statute
must be constitutional and here it was based on race and opposition to
desegregation. Unconstitutional for schools to close rather than
desegregate.
o Fried: distinguish from Palmer v. Thompson: inferring intent from
circumstancesmoney given to help white kids go to private school, so
there is a system of publically financed education which is segregated. Also,
here there is already Brown on the books demanding desegregation
Green v. County School Board (1968, Brennan): freedom of choice plan does
not comply with desegregation requirements. Still majority black schools (no
white student had chosen to attend a former black school). School district must
take steps that realistically promise to convert the system.
o Fried: Schools still have affirmative duty to create unitary system, rectifying
previous transgressions
Proving Discrimination:
Rule: There must be proof of laws that mandated segregation or evidence of
intentional acts to segregate the schools. Proof of intentional discrimination as to
a substantial part of the school system will justify a system-wide remedy, unless
the school system can demonstrate that the segregation in those areas was not a
consequence of its segregative acts.
Keyes v. School District (1973, Majority): even if there is no background of
state-mandated discrimination you can show intentional segregation in only
part of a district and then have a district-wide remedy.
o Powell (concur): Court should abandon distinction between de jure and de
facto segregation and require that all schools act to end segregation.
o Rehnquist (dissent): court shouldnt make schools affirmatively achieve
racial mixing when neutral line drawing hasnt already achieved it.
Judicial Power to Impose Remedies
Swann v. Charlotte-Mecklenburg Board of Education (1971, Brennan): geographic
zoning and free transfers (busing). Courts have broad equitable powers to
remedy past wrongs. There is a presumption against schools with a history of
segregation and that have substantially disproportionate racial compositions.
Millikin v. Bradley (1974): Court draws line at inter-district bussing. Absent
an act of state or local authorities that has contributed to inter-district segregation
there is no basis for inter-district remedy.
o Note: some argue that this along with Rodriguez results in separate and
unequal schools.

59

Note: can prove inter-district violation by showing intentional government

discrimination that led to inter-district effects (district line drawing,
discriminatory housing policies, etc.)
o Note: integration had been ineffective because of white flight
Board of Education of Oklahoma City v. Dowell (1991, Rehnquist): segregated
system busing neighborhood schools. Federal supervision of local school
systems was only intended as a temporary measure. Federal courts jurisdiction
to remedy segregation does not extend beyond time needed to remedy past
intentional discrimination. Blackmun (dissent): 13 years of desegregation is not
enough (stigma). Remedial decree is required until effects have been finally
eliminated.
o

2. Facially Neutral Laws with Discriminatory Purpose, Impact, Administration

Laws that are facially neutral will receive heightened scrutiny only if
there is proof of discriminatory purpose (Washington v. Davis) AND proof of
discriminatory effect (Palmer v. Thompson) (otherwise you get rational basis)
Determining discriminatory purpose
o Can use circumstantial evidence to determine a racially discriminatory
purpose (Arlington Heights):
Clear pattern unexplainable on grounds other than race (Yick Wo;
Gomillion)
History surrounding governmental action (Griffin)
Legislative or administrative history
o Must show that the government desired to discriminate not just that it
took action with knowledge that it would have discriminatory consequences
(stricter standard than in torts)
If decision was racially motivated then the burden of proof shifts to the
state to show that the same decision would have resulted even had the
impermissible purpose not been considered. (Arlington Heights; Hunter v.
Underwood)
o If the Court accepts the justification then rational basis is used
o If Court rejects the justification the law is struck down. No need to use
strict scrutiny because the purpose was discrimination so government can
have no compelling interest.
Should discriminatory purpose be required?
o Yes: equal protection clause is concerned with stopping discriminatory acts
by the government, not in bringing about equal results; affirmative action
o No: proving discriminatory purpose is very difficult; equal protection should
be concerned with the results of government actions and not just underlying
motivations
i. Proof of Discriminatory Purpose and Effect Required
Washington v. Davis (1976, White): proof of discriminatory purpose required
o Qualifying test of police officers in DC. Black respondents rejected for failing
to perform satisfactorily on written portion. Discriminatory in effect but not
on purpose.
o May infer discriminatory purpose from the totality of the circumstances.
Disproportionate impact is not irrelevant, but it not the sole
touchstone of invidious racial discrimination.

60

Police officer test is neutral on its face, serves a legitimate government

purpose, and does not have a discriminatory intent (police actually have an
affirmative action plan)
Jefferson v. Hackney: No proof of discriminatory purpose. Disparate impact in
benefits/entitlements; while unequal effect, needed to show intent to get violation
(legislature didnt know about the disparate impact)
o Many federal programs have disproportionate impact. Do not want courts to
have that much power over them (have to make policy decisions about
govt.s compelling interest/being narrowly tailored)
o But see: Griggs v. Dukes Power: company had program allowing promotion
for those with a high school education, but grandfathered people who were
already working there. Violation because the grandfathered jobs were
already segregated.
Palmer v. Thompson (1971, Black): proof of discriminatory effect required
o Jackson MS did not act unconstitutionally when closing public swimming
pools after desegregation had been ordered. No affirmative duty to
operate swimming pools.
o No act is unconstitutional just because of the motivation behind it
cant infer the states motivation.
o White (dissent): closing pools is an expression of policy that blacks are unfit
to associate with whites. Racial animus is a common focus of judicial
inquiry.
o

ii. Determining Discriminatory Purpose

Arlington Heights v. Metropolitan Housing Corp (1977, Powell): racial discrimination
was not the motivating factor behind refusal to rezone
o Challenge to Chicago suburbs refusal to grant a request to rezone certain
property from single-family to multiple family
o There is always more than one purpose for legislation. Discrimination
must be the motivating factor.
o No threshold showing that sequence of events leading up to decision would
spark suspicion (used usual procedures).
Rogers v. Lodge (1982, White): racially discriminatory vote dilution from
circumstantial evidence surrounding at-large election system
o Large majority district, no black person ever elected.
o The system was being maintained for the invidious purpose of diluting the
voting strength of the black population. Evidence of historical
discrimination.
o Powell (dissent): sociological evidence isnt enough. Federal courts
shouldnt subjectively evaluate local governments.
(a) Clear Statistical Pattern, Explained only by Discrimination
Yick Wo v. Hopkins (1886, Matthews): a facially neutral law can violate EPC
because of the manner of its administration. Ordinance prohibits owning
laundry without Boards consent. All but one non-Chinese applicant get permit, no
Chinese. Administration of the law is discriminatory and there is no reason shown
except for hostility to race and nationality.
Gomillion v. Lightfoot (1960, Frankfurter): Racially disproportionate effect
when AL redefines city boundaries to create a 28-sided figure and
disenfranchise blacks. Removed all but a few black voters and no white voters.
(b) History Surrounding Governments Action

61

Griffin v. County School Board of Prince Edward County (1964): Public school
closing scheme involved grants to white children to attend private school.
Whatever nonracial grounds may be supported, the object of the statute
must be constitutional and here it was based on race and opposition to
desegregation.
(c) Legislative or Administrative History
Hunter v. Underwood (see below)
iii. If Evidence of Discriminatory Purpose: Burden Shifts to Government
Hunter v. Underwood (1985, Rehnquist): Facially neutral law has discriminatory
purpose. Disparate impact and circumstantial historical evidence.
o AL Constitution disenfranchises all persons convicted of crimes involving
moral turpitude.
o Intentionally adopted to disenfranchise blacks. Provision would not have
been enacted without discriminatory intent. History of white
supremacy.
o Discriminatory impact. And not legitimate interest
6. Affirmative Action
Adopting Strict Scrutiny
o Arguments
For strict scrutiny: the Constitution requires every person to be
treated the same way without regard to race; racial classifications
stigmatize and breed hostility
Against strict scrutiny: difference between racial classifications to
discriminate (long history of discrimination against blacks) and to
remedy discrimination (no history of discrimination against whites);
achieving social equality requires affirmative action at this point;
difference between majority discriminating against a minority and a
majority discriminating against itself
o Korematsu (1944): any use of race is suspect and subject to strict scrutiny
o Bakke (1978): 4 justices intermediate scrutiny, 4 justices avoid
constitutional decisions, Powell says strict scrutiny
o Croson (1989): formally adopts strict scrutiny
o Adarand (1995): stresses that adopting strict scrutiny does not mean fatal in
fact, remands after stating that strict scrutiny must be used
o Grutter (2003), Gratz (2003), Parents Involved (2007): applied strict scrutiny
Sufficient Purpose
o (1) Remedying past discrimination
Types
An individual who violated the law can be required to provide a
benefit to an individual who personally suffered past
discrimination
A proven violator of the law can provide a remedy to a class of
persons
Those in a field or industry where there is proved discrimination
provide a remedy
To remedy societal discrimination (reparations)

62

Court will require proof that there was discrimination by the entity or
proof that the particular recipients rights were violated
Wygant: This Court has never held that societal discrimination alone
is sufficient to justify a racial classification. Rather, the Court has
insisted upon some showing of prior discrimination by the
governmental unit involved before allowing limited use of racial
classifications in order to remedy such discrimination.
Note: None of these cases involve institutions remedying de jure
segregation.
o (2) Enhancing Diversity
Bakke: Powell (writing for himself): Educational benefits from an
ethnically diverse community is a constitutionally permissible goal.
Grutter: colleges and universities have a compelling interest in
creating a diverse student body and education of all students is
enhanced through diversity.
But Thomas dissent: Educational benefits, not diversity is the
state interest. Diversity is just improving aesthetics.
Parents Involved in Community Schools: diversity is not a compelling
interest for elementary schools
But dissents disagree
o (3) Providing Role Models for Those in Minority Communities
Wygant: Rejected. Role model theory allows Board to engage in
discriminatory hiring and layoff procedures. Doesnt bear a
relationship to the harm cause by past discriminatory hiring practices.
Could be used to escape obligation to remedy such practices by
justifying the small percentage of black teachers by small number of
black students
o (4) Increasing services for minority communities
Rejected in Bakke: no proof that training more black doctors will
mean that there will be more doctors actually practicing in minority
communities; may be ways of achieving this goal more directly like
providing incentives to doctors to work in underserved communities
Appropriate Techniques
o (1) Numerical Set-Asides / Quotas
Numerical set asides will be allowed, if at all, only if needed to
remedy clearly proven past discrimination.
Bakke: setting aside 16 slots is unconstitutional
Croson: 30% of government contracts to minorities--Speculation
about what percentage to go to minorities if there wasnt past
discrimination.
o (2) Using race as one factor in decision making
Can be used
Bakke: race can be used as a plus factor
Grutter: colleges and universities have a compelling interest in
creating diverse student body and they may use race as one
factor, among many, to benefit minorities and enhance
diversity
Cannot be used
Parents Involved: struck down policy that used race as a plus
factor

63

o
o

(3) Deviations from Seniority Systems

(4) Re-drawing election districts

Griggs v. Duke Power Co. (1971, Burger)

After Title VII, Duke Power Co. requires a HS diploma and an IQ test. AfricanAmericans were selected at much lower rates under these criteria
Court says that with disparate impact (not disparate intention), business must
show tests are reasonably related to job for which required
Diploma and IQ tests not reasonably related to job performance white people
who had worked at company without those qualifications were performing job just
as well
U.S. Steelworkers v. Weber (1979, Brennan): Title VII does not preclude affirmative action
programs
Training program at Kaiser Steel in AL with preference for minorities
Title VII (outlaws employment discrimination based on race) was intended to
overcome racial discrimination in hiring, and this is doing just that
Rehnquist (dissent): legislative history says people dont get a preference
because of race
Regents of California v. Bakke (1978, Powell): quotas not ok, but race can be a
plus
Med school reserves 16/100 spots for minority groups. Administered by a special
committee.
Apply strict scrutiny. Framers of the 14th guaranteed equal protection to all,
not just Blacks (whatever the initial motivation). Racial distinctions are inherently
suspect.
Government interests: Assuring specified percentage of racial group in student
body discrimination. Reducing deficit of traditionally disfavored minorities in
medical school and medical professionunconstitutional to decide to favor one
group over another. Countering effects of social discriminationbut a decision for
the legislature. Increase number of physicians practicing in underserved
communitiesno evidence.
Educational benefits from an ethnically diverse community is a constitutionally
permissible goal. Academic freedom is an important protection of the First
Amendment, and students with different backgrounds will be able to enrich the
student body in different ways.
Tailoring: Racial classifications not necessary to promote interest.
Diversity encompasses a broad range of qualifications and characteristics
(not just racial/ethnic).
Harvard admission program is oklots of different factors and no quota
(individualized). Race as a factor not facial intent to discriminate.
o CA plan has (1) two separate panels and (2) minority status is dispositive
Brennan (concur/dissent): Applies intermediate scrutiny. Race is like gender
when its linked to the stereotypes and stigmatization of the powerless. Interest in
remedying the effects of past discrimination is important enough to use a raceconscious admissions process. Program is valid because doesnt stigmatize,
Bakke is not inferior (wont affect him throughout his life in the way that
segregation affected black school children), doesnt discriminate (compensates
qualified candidates for disadvantages based on discrimination; from a

64

Constitutional perspective no difference between using quotas and race as a

factor.
Marshall (concur/dissent): Constitution failed to protect racial minorities for
hundreds of years. Its crazy that it now wont provide remedies for that
discrimination.
o Fried: Marshall would say that black people have all been treated the same
way by society
Blackmun (concur/dissent): some day racial affirmative action wont be necessary.
Court is upset about racial preferences when couldnt care about athletic skills,
alums, etc.
Stevens (concur/dissent): if this program is illegal, all consideration of race is
illegal.

Wygant v. Jackson Board of Education (1986, Powell)

White teacher laid off because school board had entered into an agreement not to
lay off minority teacher. At no time would the percentage of minorities to be laid
off exceed the percentage of minorities employed at the time of the layoffs.
Rejects role model theory. Role model theory allows Board to engage in
discriminatory hiring and layoff procedures. Doesnt bear a relationship to the
harm cause by past discriminatory hiring practices. Could be used to escape
obligation to remedy such practices by justifying the small percentage of black
teachers by small number of black students.
Although prior discrimination was proved this was not a constitutionally
acceptable way of achieving the compelling purpose of remedying prior
discriminationnot narrowly tailored.
Writing for three, fails strict scrutiny
OConnor (concur): qualms about standard and whether you could only have a
remedial system when you have confessed or have been adjudicated to have had
a discriminatory system in the past
Richmond v. J.A. Croson Co (1989, OConnor)
Richmond law requires prime contractors on city projects to subcontract at least
30% to minority business enterprise.
Congress can identify and redress the effects of society-wide discrimination but
this doesnt mean states can.
Apply strict scrutiny to any race-based classification.
City has failed to establish a compelling interest. Must identify
discrimination with some specificity before they may use race-conscious belief.
Not narrowly tailored: grossly over-inclusive (no evidence of past discrimination
against Spanish-speaking, Oriental, etc.). No showing of attempting to use a race
neutral program (i.e. financing smaller construction firms)
Stevens: disagree with the idea that racial classification can only be constitutional
if based on past wrong but agrees that ordinance is over-inclusive and
stereotypical.
Kennedy: rejects automatic invalidity for racial preferences, instead rigorous
scrutiny. This regulation is not a remedy but a preference that will cause the same
corrosive animosities that the Constitution forbids.
Scalia: strict scrutiny to all race-based classifications but state may never
discriminate based on race to ameliorate the effects of past discrimination.

65

o Use victim specificitycan only remedy discrimination when the

person you preference was himself a victim of racial discrimination.

Harm is to the individual, not the group.
Marshall: its awesome when the capitol of the former confederate states works to
remedy past discrimination. State interest in eradicating the effects of past
discrimination and prospectively preventing the citys own spending decisions from
reinforcing and perpetuating the exclusionary effects are substantially related.
But dont adopt strict scrutinydifference between racist governmental actions
and government actions that seek to remedy the effects of past discrimination.

66

Adarand Constructors Inc v. Pena (1995, OConnor)

Fed govt gives financial incentives for contractors to hire subcontractors
controlled by socially economically disadvantaged individuals, using race as a
proxy.
Apply strict scrutiny to federal government programs. Principles from
Croson: skepticism (most searching examination), consistency (standard of review
not based on the race of those burdened), congruence (EP analysis should be the
same under the 5th and 14th).
Remands because holding that all racial classifications are subject to strict
scrutiny changes the field
Scalia (concur): a government can never have a compelling interest in
discriminating based on race for remedial purpose
Thomas (concur): Constitution prevents all discrimination based on race, irrelevant
what the underlying purpose is. No such thing as benign discriminationracial
paternalism can be just as destructive to society as invidious discrimination.
Stevens (dissent): Courts concept of consistency is wrong, there is no moral or
constitutional equivalence between racial discrimination and eradicating
subordination. Courts concept of congruence is wrong, a Congressional decision
is made by the entire nation while a local decision can affect those who didnt vote
for it.
Ginsburg (dissent): strict scrutiny is fatal to affirmative action laws which are
necessary to help realize equal protection of the laws.
Grutter v. Bollinger (2003, OConnor)
Admissions program at UMich Law Schooldiversity contributions are given
substantial weight.
Student body diversity is a compelling state interest and plan is narrowly tailored
o Not a quota but race as a plus, does not unduly burden those who are not
members of the favored class
o Enrolling a critical mass of minorities is defined relative to educational
benefits
o Defer to universitys judgment that diversity is important
o Diversity is important to deal with the challenges of the modern world
Scalia (concur/dissent): Too confusing, would any benefit flow from racial diversity?
What is critical mass? Constitutions proscribes discrimination based on race.
Thomas (concur/dissent): Whenever government uses race it demeans us all.
Educational benefits, not diversity is the state interest. Diversity is just improving
aesthetics. Affirmative action students arent prepared for such a selective school.
Programs stamps minorities with a badge of inferiority.
Rehnquist (dissent): comparing racial minorities in the admissions pool and those
that are admitted shows the law school is paying more than some attention
Gratz v. Bollinger (2003, Rehnquist)
Challenge to U.Mich. undergraduate college admissions program. Admissions
committee considers several factors but minority applicants are automatically
awarded 20 points.
Policy is not narrowly tailored because doesnt require individualized
consideration.
Thomas (concur): no affirmative action ever

67

Souter (dissent): System is closer to Grutter than Bakkeno quota, race is not
separate from other considerations, race not converted to a decisive factor. At
least Mich is being honest about what its doing.
Ginsburg (dissent): dont apply strict scrutiny to remedial measures. Plan is
constitutionalno one who is not qualified is admitted, groups with special
consideration have been relegated to inferior status, no suggestion that policy
adopted to limit enrollment by a particular group, no quotas, no showing that
program unduly constricts admissions opportunities for non-favored students.
Fried: Rehnquist and Ginsburg agree that Grutter and Gratz cant both be right.
o Ginsburg: undergrad school was just trying to produce same results as in
grad school (just being honest), but could not have achieved it in the same
way because too many applicants
o Rehnquist: cant do it with big or small class; what does critical mass
really mean?

Parents Involved in Community Schools v. Seattle School District (2007, Roberts plurality)
School districts adopt student assignment plans that rely on race to determine
which public schools certain children may attend. Rely on race so that racial
balance at school falls within a predetermined range.
Racial classifications get strict scrutiny.
State interests: two have been recognized as compelling(1) remedying the
effects of past intentional discrimination (but Seattle schools were never
segregated by law); (2) interest in diversity in higher education (but this isnt
higher education)
o Fried: Roberts ignores that people have to be assigned to a public school
somehow, unlike with college admissions
Not narrowly tailored: race is the only factor; only directed toward racial
balance; other means would be effective
Thomas (concur): neither school threatened with resegregation. Racial imbalance
is not segregation. No proof that forced racial mixing has any educational
benefits.
Kennedy (concur): If school districts decide that the compositions of certain
schools interfere with objectives of offering an equal educational opportunity they
can use race-conscious measures to remedy the situation. But, they cant define
students by race.
Breyer (dissent): Purpose of EPC was to bring black people into American society
as a whole. This type of thing was used after Brown all the time. Strict scrutiny
has not been applied equally for all racial classifications: when classification is to
exclude it is fatal in fact, when classification is to include it is not fatal in fact but
plurality would re-write it so all were fatal in fact. Compelling interests are
historical, remedial, educational, democratic and is narrowly tailored (race is an
outer-bounds, other criteria used).
Fisher v. University of Texas
TX law requires University of TX to admit all high school seniors in top 10% of
high school class. TX then has a separate process that also evaluates race.
Wide disparity in high school based on socioeconomic base of those schools. Top
10% was a way to increase both the racial and economic diversity.
Remands for strict scrutiny review. No deference on whether plan narrowly
tailored. Court must verify that it was necessary for university to use race to get
benefits of diversity (whether there are race-neutral alternatives)

68

Petitioner argues: apply strict scrutiny; no compelling interesttrying to mirror the

composition of TX is unconstitutional racial balancing, not interested in educational
diversity & classroom diversity is not compellingshould measure based on
student body not individual classroom; not necessary (UT already has diverse
student body); not narrowly tailoredminimum effect is antithetical to narrow
tailoring
Respondents argue: strict scrutiny but may consider race of students in an
individualized and modest manner, admission is holistic and individualized; no
attempted racial balancing; objective is educational benefits of diverse student
body

Schuette v. Coalition to Defend Affirmative Action (2014, Kennedy): upholds Michigan

state constitutions ban on affirmative action
Case

Year

Facts

Scrutiny

Bakke

197
8

Med school
reserves
spots for
minority
groups.
Administered
by separate
committee.

Intermedia
te

Wygant

198
6

Croson

198
9

Adaran
d

199
5

White
teacher laid
off in favor
of keeping
black
teachers
with less
seniority.
Prime
contractors
must
subcontract
at least 30%
to minority
business.
Federal
government
favors
additional
payment to
socially
economically
disadvantag
ed
subcontracto
rs.

Government
Interests
Accepted
Educational
benefits
from
ethnically
diverse
community

Remedying
prior
discriminatio
n

Strict

Strict

Past
discriminatio
n (but what
percentage?
)

Government
Interests
Rejected
Reducing
deficit of
disfavored
minorities in
medical
school and
medical
profession.
Countering
effects of
social
discriminatio
n.
Role model
theory

Narrowly
Tailored

Upheld

No.
Diversity
encompasse
s a broad
range of
qualification
s and
classificatio
ns.

No

No.

No

Nooverly
inclusive.
No attempt
at less
restrictive
means

No

Reman
d

69

Grutter

200
3

Gratz

200
3

Parents
Involve
d

200
7

Law school.
Diversity
contributions
given
substantial
weight
Undergrad.
Minority
applicants
automaticall
y awarded
20 points.
School
assignment
plan that
uses race as
a tiebreaking
factor.

Strict

Student
body
diversity

Strict

Strict

Remedying
effects of
past
discriminatio
n (schools
were never
segregated),
interest in
diversity in
higher
education
(not higher
education)

Yesnot a
quota but a
race plus

Yes

Nodoesnt
require
individualize
d
consideratio
n
No
directed
only at
racial
balance not
diversity

No

No

D. Gender
Similarities between race and gender:
o History of discrimination
o Immutable characteristic that is immediately visible.
Difference between race and gender:
o Race is socially constructed while gender has genetic differences
o People interact with those of the opposite gender frequently but may not
interact with those from different races
o Fourteenth amendment only enacted to prevent racial discrimination
Broad principles:
o Gender classifications benefiting women based on role stereotypes
generally will not be allowed (Mississippi v. Hogan)
o Gender classifications benefiting women designed to remedy past
discrimination and differences in opportunity generally are permitted.
o Gender classifications benefitting women can be based on biological
differences between men and women.
Rule: Gender classification must be substantially related to an important
governmental purpose; burden on state
o Cannot rely on archaic or overbroad generalizations (Mississippi v. Hogan)
o Objectives are genuine in that they describe the actual state purposes, not
just rationalizations (VMI)
o No gender-neutral alternatives that might have accomplished the objective
equally well
o Gender cant be used as a proxy for other factors that are gender neutral
(Craig v. Boren)
1. Developing Intermediate Scrutiny

70

Bradwell v. Illinois (1873): woman cant be a lawyer in Illinois. Majority rejects

contention that ability to practice law is a privilege protected by the privilege
and immunities clause.
o P&I gutted by Slaughterhouse cases a few days before. Only protects very
important rights of U.S. citizens, and this is a P&I of Illinois citizens.
o Bradley (concur): State can discriminate against women in the practice of
law because the role of woman is to be wife and mother.
Goesart v. Cleary (1948, Frankfurter): woman cant be a bartender in Michigan
unless is wife or daughter of the male owner. Majority accepts because has a
basis in reason for protecting barmaids.
Reed v. Reed (1971): two qualified people trying to be administrators of the same
estate. Law gives preference to the male person. Invalid using rational basis
review because gender was irrelevant to the ability to administer an estate.
Frontiero v. Richardson (1973, Brennan plurality): strikes down welfare benefits
rules say that a woman would be presumed to be dependent on her husband but a
husband was not presumed to be dependent on his wife.
o Brennan moving toward strict scrutiny for gender because
classifications based on gender are inherently suspect because of history
of discrimination, especially in the political arena and because it is an
immutable characteristic
o Decided on rational basis because 4 votes for heightened scrutiny, 3 for
rationally, and 1 (Rehnquist) dissenting.
Craig v. Boren (1976, Brennan)
o Statute bans sale of non-intoxicating liquor to men under 21 and women
under 18.
o Adopts intermediate scrutiny:
Objective: enhancement of traffic safety
Relation: the statistics showing that 2% of men in this age range were
arrested vs. 0.18% of females is not enough to show that sex is a
legitimate, accurate proxy for regulating drinking. Not
substantially related
o Stevens (concur): There is only one EPC so there should not be a two-tiered
system.
o Rehnquist (dissent): Problems:
Men not subject of discrimination and do not need stringent review
Intermediate scrutiny too subjective and invites judicial prejudices
Stats pass the rational basis test

2. What is discrimination?
Geduldig v. Aiello (1974, Stewart, essentially overruled by PDA)
Exclusion of disability that accompanies pregnancy and childbirth from CA
disability insurance
Classification isnt based on gender but on pregnancy so does not get
heightened scrutiny. Questionable because pregnancy is a sex-based
classification, but benefits flow to non-pregnant people (members of both sexes).
Brennan (dissent): gender-linked disability peculiar. One set of rules applied to
men (all disabilities covered) and another to women.
3. Stereotypes of Women
Mississippi University for Women v. Hogan (1982, OConnor): law struck down based on
occupational stereotype

71

Male applicant challenges Miss Univs policy of only admitting women to the
nursing school.
That statute discriminates against men does not reduce the standard of
review.
Must have exceedingly persuasive purpose (noteeven higher
review?)
State argument: Objective is to compensate for discrimination against women.
Majority says failed to establish this was the actual purpose underlying the
discrimination; actually entrenches occupational stereotype that nursing is
a womans job.
Rejected, state has not shown that exclusion of men is necessary to reach
educational goals (many, many women in nursing)
Powell (dissent): Object to heightened scrutiny; expands womens choices

United States v. Virginia (VMI) (1996, Ginsburg): All-male military academy uses
adversative training to build citizen-soldiers. Virginia planned to set up a parallel
program at Mary Baldwin College.
Hogan standard used: no exceedingly persuasive justification.
o Must use genuine objective, not post hoc objective single-sex education
argued to diversify educational options, but this was not the purpose of the
academy
o VMI methodology could be used to educate women
o Not proven that admitting women would destroy adversative method
Remedy of separate womans school is inadequate: different method of education,
a pale shadow in terms of facilities, history, prestige, etc.
Rehnquist (concur): consider state justifications only after Hogan was decided and
VMI was put on notice that single sex ed. might violate the EPC and would have to
reconsider its reasoning and policy. The womans school fails because it is inferior
not because it is different.
Scalia (dissent): Court is really applying strict scrutiny (intermediate scrutiny never
required least restrictive means). Should be rational basiswomen are not a
discrete and insular minority unable to employ the political process. VA has an
important interest in providing effective college education and single-sex
education furthers that interest.
o Fried: Exceedingly persuasive goes to evaluation of important
objective/substantial relation (i.e., proving that that there is a 70% relation
has to be proven 90%). Either the numbers, legislature statements, etc.
have to overwhelmingly persuade
Michael M. v. Superior Court (1981, Rehnquist plurality): Upheld CA statutory rape law
punishing male but not female participant in sexual intercourse when female is under 18
Recognized heightened scrutiny, but equal protection does not require that
different things be treated in exactly the same way.
State interest: prevention of unwanted pregnancy. Almost all consequences fall on
the woman so leg. is protecting young women by excluding them from
punishment. Risk of pregnancy itself deters young females.
Brennan (dissent): Gender classification based on outmoded sexual stereotypes
(protecting young womens chastity). Even if less people would report under
gender neutral law, twice as many people would be subject to arrest. Any
speculative justification for single-sex enforcement would be outweighed by
interests in even-handed enforcement of the law.

72

E. Other Candidates for Heightened Scrutiny

1. Disability
In Cleburne, rejects heightened scrutiny for the disabled, but rational basis with
a bite?
o Under-inclusiveness is usually ok under rational basiscould regulate these
homes now and other types of homes later
Cleburne v. Cleburne Living Center (1985, White)
TX city denies special use permit for operation of a group home for mentally
disabled. Municipal zoning ordinance requires permits for such homes
Mental retardation is not a quasi-suspect classification
o Heightened scrutiny involves substantial judgment about legislative decision
but mental retardation is so varied the court should not decide.
o Heightened scrutiny may invalidate some laws that have been enacted to
protect the mentally retardedflexibility is key.
o Not a suspect class because
Mentally retarded are not politically powerless.
Slippery slopewhat about aging, disabled, mentally ill?
Legs have been protecting mentally retarded so wont automatically
assume legislation is invidious discrimination.
Ordinance fails rational basisno govt. interest. Govt interest: other
property owners nervous (fear is not a permissible basis), located on a flood plain
(but why distinguish), high school across street (with mentally retarded students),
size of home and number of occupants (no other regulations on similar homes).
Stevens (concur): tiered system is continuum, not categories. Always look to a
rational basiswill almost always invalidate racial classifications, make economic
classifications valid, and mixed back in the middle. Intermediate review means
that characteristics of these groups are sometimes relevant and sometimes
irrelevant. Every law that puts mentally retarded in a special category is
presumptively invalid
Marshal (concur/dissent): rational basis test used today is rational basis with bite.
2. Wealth
Griffin v. Il: violated EP to deny free trial transcripts to indigent criminal Ds
Harber v. Election Board: no poll taxes
Dandridge v. Williams: cap on welfare benefits; wealth only gets rational basis
review because related to economics and social welfare
San Antonio School District v. Rodriguez: poverty is not a suspect
classification; law isnt even discriminating against the poor as a groupno
proof that the poorest people live in the poorest district and lack of personal
resources hasnt resulted in an absolute deprivation of a benefit
Maher v. Roe: Govt doesnt need to fund abortions
Poverty should be suspect because: lack political power, long history of
discrimination, Constitution may have right to minimum entitlements for survival
Poverty should not be suspect because: not immutable, discrimination against
poor is a result of effects of the law not intentional discrimination, avoid creating a
constitutional right to governmental benefits
3. Sexual Orientation

73

Sexual orientation should get heightened scrutiny: long history of discrimination;

reflect prejudices and stereotypes; immutable, but it is not clear what standard is
applied
Chemerinksy Says: But, all courts have used rational basis except 9th Cir. In
Watkins v. U.S. (vacated on other grounds) which adopted strict scrutiny
But in real life: The Supreme Court of CT (Kerrigan) and the Supreme Court of IA
(Varnum) and 2d Cir (Windsor) says sexual orientation gets intermediate
scrutiny

Romer v. Evans (1996, Kennedy)

Local CO municipalities ban discrimination based on sexual orientation. CO adopts
referendum (Amendment 2) prohibiting all legislative, executive, or judicial action
designed to protect gays and lesbians.
Amendment does not put gays and lesbians in the same position as all
other persons. It is withdrawing protection from broadly defined antidiscrimination law. Gays and lesbians may not be able to find protection in laws of
general application (most laws arent general but list groups protected). Doesnt
grant special right but imposes a special disability.
Fails rational basis: too narrow (identifying persons by one trait) and too broad
(denies protection across the board). Lacks reasonable relationshipmust be
animus (not respect for other citizens freedom of association like landlords
prohibiting renting to homosexuals).
Scalia (dissent): Amendment is not meant to harm homosexuals but to preserve
traditional sexual mores against the efforts of a politically powerful minority.
Court is ruling based on righteousness not precedent. General laws that prohibit
arbitrary discrimination would continue to prohibit discrimination on the basis of
sexuality.
Lawrence v. Texas (2003): TX statute that outlaws homosexual sodomy violates DPC of
14th Amendment. No ruling on EPC because even if applied to all sexualities then would
not pass muster
Essential to Griswold, Eisenstadt is freedom of choice between consenting adults
within the privacy of home
Moral disapproval is not a legitimate justification for criminalizing sodomy
Court doesnt state a level of scrutiny
OConnor (concur): Invalidate on EPC grounds
Scalia (dissent): Moral disapproval is an appropriate grounds; Court is not a neutral
observer anymore
Goodridge v. Department of Public Health (Mass. 2003)
Prohibition on same sex marriage violates the MA constitution on DP and EP
grounds. Prevents same sex couples from entering into a rewarding and cherished
institution.
No rational relationship between state interest in promoting procreation and
establishing optimal child-rearing situation.
Fundamental place of marriagethey seek to be married, not undermine the
institution of marriage.
Use rational basis review.

74

Hollingsworth v. Perry (2013, Roberts): No standing for petitioners (groups that enacted
law) to appeal CA Supreme Courts overturning of ban on same-sex marriage. No role in
enforcement, answer to no one, no fiduciary obligation to CA, generalized grievance
insufficient.
United States v. Windsor (2013, Kennedy): Invalidates estate taxes paid by surviving
spouse of same-sex marriage that would not have been paid by surviving spouse of
heterosexual marriage (DOMA)
DOMA departs from history and tradition of state law defining marriage; by
defining marriage itself, it denies benefits to class New York seeks to protect
It has the purpose and effect of disapproval of gays (found in legislative history),
stigmatizing them
Deprivation of liberty (not clear what basis was-federalism, DPC, or EPC)

F. Equal Protection: Implied Fundamental Rights

There are two types of fundamental rights
o Due process fundamental rightsyou can never take them away, e.g. right
to marry
o Equal protection fundamental rightsno requirement to give them, but if
you do, you have to give them to everyone
Come from EPC itself
Limited to voting, court access, and interstate migration
1. Voting

Amendment XIX. The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any state on account
of sex.
Amendment XXIV. Section 1. The right of citizens of the United States
to vote in any primary or other election for President or Vice President, for
electors for President or Vice President, or for Senator or Representative in
Congress, shall not be denied or abridged by the United States or any
state by reason of failure to pay any poll tax or other tax.
Amendment XXVI. Section 1. The right of citizens of the United States,
who are 18 years of age or older, to vote, shall not be denied or abridged
by the United States or any state on account of age.

Original constitution contains no right to votestates determine qualifications

Amendments expand franchise and limit state power (14, 19, 24, 26)
Carolene products footnote includes restrictions on the right to vote as an
example.
The right to vote is a fundamental right under equal protection so laws
infringing on the right to vote must meet strict scrutiny

Harper v. Virginia State Board of Elections (1996, Douglas)

Poll tax of $1.50.

75

A state violates the EPC whenever it makes the affluence of the voter or
payment of any fee an electoral standard. If the right is a fundamental right
then the distinctions have to be more than just rationally drawn.
No explicit right to vote in the Constitution, but once the right is granted, lines
cant be drawn that violate equal protection. So use strict scrutiny.
States can ask for fees in other places but can only limit voting qualifications and
wealth cannot be a voting qualification (not germane to the ability to participate
intelligently in the electoral process)
Black (dissent): poll taxes are rationally related to states desire to connect
revenue, belief that voters who pay poll tax will be interested in furthering states
welfare when they vote.
Harlan (dissent): property qualifications and poll taxes have been a traditional part
of our political structure. Rational relationship to promoting civil responsibility,
weeding out those who dont care enough. People with some property have a
deeper stake in community affairs, more
responsible/educated/knowledgeable/worthy of confidence.
**Note: poll taxes made unconstitutional with the 24th Amendment for fed.
this invalidates state taxes**
Kramer v. Union Free School District No. 15 (1969, Warren)
NY Education Law limits those voting in school district elections to property owners
or parents.
Use a close and exacting examination (strict scrutiny). Any unjustifiable
discrimination limiting the franchise undermines the legitimacy of representative
government.
Compelling state interestlimiting the franchise to those who have primary
interest in such elections
But, no relationship: over- and under- inclusive (allow those to vote who have no
interest in votes and denies those who do)
Stewart (dissent): Rational basis. States can assume residents have a greater
stake in the outcome of elections and are better informed.
2. Education
No fundamental right to education (Rodriguez; Kadrmas) but more important
than some other things (Plyler)
o Fried: this is a completely arbitrary, messy, undisciplined area of law.
Courts are hesitant to find constitutional rights to affirmative services provided by
the government, but argument that education is necessary to exercise other
Constitutional rights.
Several state courts have found a fundamental right to education in their state
constitutions and have held inequalities in school funding unconstitutional (Cal, NJ,
Tenn, Mass, KY, Tex).
San Antonio Independent School Dist. V. Rodriguez (1973, Powell)
Challenge to TX system of financing of public schools resulting in inter-district
disparities in per pupil costs/expenditures because of differing property taxes.
No suspect classification. District cannot be a class because it is too
amorphous and diverse; there is no evidence poorest people are concentrated in
poorest districts. Class is not saddled with disabilities, political powerlessness
such that would need protection.

76

No fundamental interest. Education is not a right implicitly or explicitly

guaranteed in the Constitution. Even if it is related to exercising First Amendment
rights, Constitution doesnt require the most effective speech or informed electoral
choice.
Passes rational basis. All taxes have some discriminatory impact. State
interest in local control.
o Equal protection does not guarantee absolutely equal treatment; children
are given the opportunity to acquire the basic minimal skills necessary for
the enjoyment of rights of speech and participation in the political process
o Tradition of deferring to state legislatures in this area
Stewart (concur): Equal protection confers no substantive rights or substantive
liberties.
Marshall (dissent): Continuum of scrutiny. The closer the right gets to a
fundamental right, the higher the level of scrutiny should be. Strict scrutiny. State
concern for local control is an excuse, not a justification and local control does
nothing.
o Note: some argue that this along with Millikan results in separate and
unequal schools.

Kadrmas v. Dickinson Public Schools (1988):

Fee to use school buses upheld.
Poverty is not a suspect classification so discrimination only has to meet
rational basis.
Education was not denied because fee didnt prevent from being
educated/attending school.
Plyler v. Doe (1982, Brennan): Court applies heightened scrutiny to hold that exclusion
of undocumented children altogether from TX public schools violates EPC using
mix of status of children and education as a fundamental right. Heightened scrutiny
with quasi-suspect class and quasi-fundamental right
Undocumented immigrants are not a suspect class (in footnote). But wont
impose disabilities on the minor children of those who broke the law. While status
is a product of voluntary action (illegal entry), should not penalize children who
had little control.
Education isnt a fundamental interest but it is also more important than
other things (more than just a governmental benefit). Allows people to lead
productive lives to the benefit of society.
States interest inadequate in discouraging illegal immigration, avoiding
burdens on public schools, reserving public education for those likely to reside
later in the state
o While no violation of EP fundamental right or suspect class, you are creating
a permanent underclass of people completely unable to participate in
political and social system. Can take into account the high costs of denying
rights to this group of people and if so high then you get heightened
scrutiny
Blackmun (concur): classifications that deal with education strike at the heart of
equal protection. Heightened scrutiny as fundamental right
Powell (concur): heightened scrutiny because children have been singled out for
lifelong penalty and stigma. NO state interest, just punitive discrimination.
Burger (dissent): court is creating a quasi-suspect-class and quasi-fundamentalright category. Result-oriented decision. Children are not a suspect class and

77

education is not a fundamental right so rational basis. It is not irrational for state
to conclude it doesnt owe the same responsibility to those in the country illegally.
3. Public Benefits
Dandridge v. Williams (1970, Stewart)
MD grants most eligible families their standard of need but impose a maximum
grant limit regardless of family size.
Reasonable basis: interest in encouraging employment and in avoiding
discrimination between welfare families and families of the working poor.
The same as all other economic regulation.
Marshall (dissent): could not be sustained even under a reasonableness test, but
should use a stricter standard. Vital interests of a powerless minority (poor
families) has nothing to do with business regulation. Benefit is necessary to
sustain life, so stricter constitutional standards.
o Fried: If it comes out Marshalls way, if right to welfare, difficulty re
fundamental right. How much welfare do you have a right to receive? What
is the minimum standard of well-Rbeing?
4. Shelter
Lindsey v. Normet (1972, White): sustains ORs forcible entry and wrongful detainer
procedure for eviction of tenants after nonpayment of rent
No heightened scrutiny. Need for decent shelter and right to retain peaceful
possession of ones home are not fundamental interests. Constitution doesnt
provide judicial remedies for every social and economic ill.
5. Marriage and Family Relationships
Being argued on Tuesday:
o Can a state deny a marriage license to a couple because they are samesex?
o Must a state give full faith and credit to marriages sanctioned by other
states?
2. State/Private Discrimination

Constitution rarely regulates the conduct of private parties. The only section that
mentions explicitly is the Thirteenth Amendment; the rest grants individuals
protection from the State
o Thus, State Action doctrine states that 14th Amendment protections are only
applicable to the government
Rule: whether there is a sufficiently close nexus between the State and the
challenged action so that the action is like that of the State itself

1. The basic doctrine

Civil Rights Cases: SC strikes down Congressional act prohibiting private

discrimination
Morrison: strikes down VAWA as an impermissible exercise of 5 power because
they it cannot be enforced upon private conduct

2. State action

78

Shelley v. Kraemer:
African-Americans attempted to purchase property subject to racially restrictive
covenants
Restrictive covenants in private agreements do not violate 14 th Amendment rights
(no action by the State)
However, judicial enforcement of the covenants involves the full coercive
power of the State. State power is then being used to deny full enjoyment of
property rights to just some people
The States have denied equal protection of the laws and the court actions
cannot stand
Other cases:

Evans v. Abney: State judicial action reverting property to heirs (will had otherwise
wanted a park restricted to whites) did not violate 14 th Amendment because
eliminated discrimination against blacks by getting rid of park, hurting whites and
blacks equally
Burton v. Wilmington Parking Authority: African-American could not be excluded by
restaurant who leased land from a public parking building.
o Restaurant gained benefits from public land and agency gained benefits
from leasing the State has made itself a party to discrimination through
interdependence
o Stewart (concur): State law allows restaurants to exclude patrons who are
offensive, and state court violated EPC by construing this to mean based
on color
Moose Lodge No. 107 v. Irvis: racial discrimination by private club with state liquor
license was not unconstitutional because it did not sufficiently implicate the State
Reitman v. Mulkey: state action present when ballot initiative repealed a fair
housing law which barred racial discrimination in the sale of private dwellings.
o The proposition conferred constitutional authorization to privately
discriminate
o Harlan (dissent): Repeal is no worse than failing to pass antidiscrimination
statute in the first place. Majoritys encouragement rationale means that
all state laws which passively permit discrimination give them
encouragement.

3. Private actions other than race discrimination

State action doctrine also applies to DPC (procedural and substantive)
Rule: under the Public Function exception, the Constitution does apply when a
private entity exercises powers traditionally reserved to the State
Jackson v. Metropolitan Co. (Rehnquist, 1974): running a utility is not traditionally the
exclusive prerogative of a state
State-regulated utility company terminated service without notice, hearing, or
opportunity to pay amounts due (procedural due process deprived)
Case law: Burton vs. Moose Lodge
o No indication of any connection between monopoly status and challenged
action
o No affirmative sanctioning of practice, just failure to overturn
o Heavy regulation does not indicate symbiotic relationship like in Burton

79

Marshall (dissent): Monopoly status and extensive interaction are important;

Majority should use a different standard for non-race cases

Other cases where no state action:

Flagg Bros., Inc. v. Brooks: selling bailed goods to satisfy lien under newly-enacted
UCC is not state action or encouragement statutory decision not to act does
not compel just by acquiescence
o Stevens (dissent): States could authorize any private action it wanted by
simply choosing not to act in statutory form permitting, but not
compelling
o Fried: Without state action there would be no federalism/SoP, federal courts
would become a forum for adjudication of everything (an apocalyptic
scenario)
Blum v. Yaretsky: private nursing homes receiving state reimbursements were not
state actors in claim of procedural due process violation
Rendell-Baker v. Kohn: private school receiving most of budget from public money
and regulated publicly not engaged in state action when discharging certain
employees
o Acts of private contractors do not become acts of government just by
performing public contracts
Deshaney v. Winnebago County Social Services Department: Failure to protect boy
from violent father did not trigger 14th Amendment protections
o DPC does not guarantee minimal levels of safety; it is a restriction on State
power
o States affirmative duty to protect does not arise from knowledge of
predicament, but only when the State itself has imposed the constraint
(prison)
o Brennan/Blackmun (dissent): State actively intervened/participated in boys
life by giving custody to father, and this triggered a fundamental duty to
protect

Other cases where state action present:

Lugar v. Edmondson Oil Co.: state action when creditor attached debtors property
in an ex parte proceeding, through state clerk/Sheriff, pursuant to state law
o Distinguished from Flagg because required participation of state officials
Edmonson v. Leesville Concrete Co.: use of peremptory challenges by private
litigant in civil proceeding to exclude jurors by race was state action
o Challenges were creatures of statute, used to select governmental body
Brentwood Academy v. Tennessee Secondary School Athleti Assn: statewide
interscholastic athletic association comprised of public/private schools was a state
actor
o Public school officials perform almost all necessary functions public
entwinement in management and control

4. Congress power to enforce the 14th Amendment

The Fourteenth Amendment is often Congress sole source of remedial authority;
that is, authority to make states enforce antidiscrimination provisions. Otherwise,
it is a breach of state sovereign immunity

80

City of Boerne v. Flores (Kennedy, 1997) NOT ON EXAM

RFRA prohibits government from substantially burdening a persons exercise of
religion unless the government can demonstrate the burden is in furtherance of a
compelling government interest and is the least restrictive means of furthering it
RFRA contradicts the federal balance and separation of powers
Congress does not have a substantive, non-remedial power under the Fourteenth
Amendment. It cannot define its own powers by altering the As meaning; it can
enforce 14th A rights identified by the court
This is not an appropriate remedial measure. The ends to be achieved (preventing
religious persecution) do not warrant Congressional invalidation of state laws and
a substantive change in constitutional protections (federal govt. can limit itself,
however)
o Is a severe intrusion into state law using a demanding test
o Not limited to where persecution may actually occur
Fried: Similar to Marbury v. Madison
United States v. Morrison (Rehnquist, 2000):
Virginia Tech student sued alleged rapists in federal court for damages under the
provisions of VAWA after school did not punish/suspended others sentence
o VAWA creates liability for crimes of violence motivated by gender
In Harris and the Civil Rights Cases, the Court invalidated statutes which regulated
private action, without reference to state power (this is what the 14 th A is directed
against)
There must be congruence between the means and the ends. But, the act is not
directed at unequal state administration of laws, but individuals who committed
criminal acts
EPC does not allow Congress to enact this statute
Breyer (dissent): The remedy is not disproportionate; it restricts private actors
from engaging on conduct already forbidden by state law. Congress should be
able to take action without finding problems in all 50 states.
Congress authority to remediate other classifications: (1) Look at evil/end ; (2)
means adopted; (3) whether conduct transgressed 14 th provisions; (4) congruence and
proportionality between means/ends (Coleman)
Kimel v. Florida Board of Regents: Congress exceeded authority in allowing state
employees to sue states for violation of the ADEA (age discrimination)
o Court uses rational basis review for age discrimination cases. The ADEA is
not congruent to the 14th because it far exceeds rational basis requirement
of EPC
o Lack of evidence that there were state violations yet Congress forces
heightened scrutiny here
Board of Trustees of The University of Alabama v. Garrett: invalidated Congress
attempt to abrogate sovereign immunity for violations of the ADA
o Rational basis review for disability-based classifications
o Record not strong enough to show unconstitutional state action, and ADA
goes far beyond what is constitutionally required (employers must make
facilities usable)
o Breyer (dissent): Congress just needs an appropriate way to enforce EPC
and the record is sufficient, even if just inferring from general societal
practices

81

Tennessee v. Lane: upholds other provision of ADA which prohibits exclusion of

handicapped from public programs/services/activities
o More important than Garrett because provision protects fundamental rights,
like access to courts (DPC), jury trial (6th)
o Harm of unequal treatment more pervasive in provision of public services
o Is appropriate just because its appropriate under 14 th to enforce access to
courts a reasonably prophylactic measure, reasonably targeted to a
legitimate end
o Rehnquist (dissent): Not enough evidence of DPC violations specifically; cost
considerations are enough a rational basis not to accommodate
United States v. Georgia: Disabled inmate could sue under ADA for actual
violations of 14th (which incorporates 8th guarantee against cruel and unusual
punishment)
Nevada Department of Human Resources v. Hibbs: Upholds Congress power to
apply family-care provision of FMLA to states under 14 th
o Gender discrimination uses heightened scrutiny, so easier to show pattern
of violations
o Persistence of unconstitutional discrimination against women justifies
prophylactic legislation
o Given significant discrimination, remedy is congruent and proportional
o Scalia/Kennedy (dissents): Need more evidence of discrimination pattern
Coleman v. Court of Appeals of Maryland: FMLAs provision allowing employees to
take leave of absence to treat illness invalidly abrogated state sovereign immunity
o Remedy was not drawn narrowly to prevent problem

82