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CONSTITUTIONAL LAW

BERNSTEIN

I. Background Info
a. Declaration of Independence
i. Never cited as authority for con law question
ii. presumes acceptance of natural law theory
1. enlightenment: certain universal principles of morality that can be discovered
through reason
iii. One ideology
1. underlying/founding principles of US morality
a. relied on by abolitionists, women’s rights movements, civil rights
movements
2. not underlying ideology of SCOTUS
iv. Never a formal part of Constitutional Theory
1. Conservatives opposed to using Declaration in jurisprudence
a. judicial restraint
i.
Declaration too broad  judges should be confined to 4 corners of
document
ii. terms such as liberty and equality have varying terms would give
judges too much discretion to putting their own values into
interpretation
b.
not a legal document  justification for colonies to leave Britain
c. General belief that America is a Christina nation w/ a Christian founding
i. underlying principle
ii.
Declaration doesn’t mention Christianity  undermine argument
d.
Revolutionary document  don’t want to encourage people to rebel
2. Liberals opposed to using Declaration in jurisprudence
a.
Lochean document
i. set up to protect life, liberty, and pursuit of happiness
ii. modern liberal believe in activist government
1. Declaration is negative liberty rather than positive liberty
b. life of law is not logic, it is experience
i.
modern liberal believe in living Constitution  allow for social
change
ii. Declaration has unchanging self-evident truths
b. Articles of Confederation 1781-1787
i. 1 weak legislative branch
ii. each state had 1 vote
iii. No judicial branch, not supreme court
1. similar to England, legal disputes went to House of Lords (part of Parliament)
iv. Article II

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1. limited Congress to expressly delegated powers
v. union perpetual
vi. Weak Taxing power
1. legislature had to ask States to send money based on property value
a. State told legislature property value (under appraisal)
2. later changed to population
vii. Unanimous approval needed
viii. Problems
1. raising revenue through taxes
a. local interest, states might be unwilling to give money to assist other states
2. b/c of revenue problem difficult to raise army to protect settlers and control
settlers from encroaching on Indian lands
3. no national trade policy
4. Britain refused to vacate from various forts
c. Constitution 1787
i. required ratification of 9 of 13 states
1. popular vote
ii. amendments don’t need to be unanimous
iii. legality of document
1. questioned
2.
Bernstein  legally superseded
a. permissible to amend a treaty or come up w/ new agreement
i. the Articles were a treaty among 13 states, simply amending them
b. if legislators agree to new superseding legislation then the old legislation
dies
i. Constitution undid prior legislation of Articles
iv. Union of People not just the States
1. “We the people in order to form a more perfect union”
2.
promote general welfare of all the people of the US
3.
setting up a new country  citizen of state and US
4. ratified by the people acting through state conventions
v. less higher law conceptions
1. not a justificatory document
vi. Functions
1. establishes national government
2. allocates power
a. Article I
i. legislature
1. Congress has powers “herein granted”
th
b.
10 Amendment powers not given to Congress given to States
c. Article II
i. executive
ii. electoral college
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1. not popular vote
2. chosen by state legislature
d. Article III
i. judiciary
3. no single branch can dominate or function on its own
a. strong bias towards stasis
4. dictates relationship between federal and state government
a. anti-federalists: opposed Constitution
i. opposed strong fed govt.
vii. Purpose
1. Establish nation govt.
2. Organize relationship between fed and state govt
3. Protect Individual Rights
a. no bill of attainder
b. no ex-post facto laws
c. no suspension of habeas corpus by Congress
d. contracts clause
viii.
Thurgood Marshall’s view
1. Constitution not impressive, tainted by slavery
a. compromising principals
2. disagree w/ Marshall
a. structurally designed a document w/ an amendment process to change the
document to grow with the times
b. founders forced to compromise or South never would have joined
c.
establishment of democracy even if only for white men  step forward
d. inherent tensions which led to Civil War, but still together for decades
3. Connection between Declaration and Constitution
a. traditional view: Declaration underlying principles Constitution is
supposed to effectuate
b. Marshall: slavery not enough of an evil to stand in the way of establishing
Union
i.
we have new Constitution, the 14th Amendment replaced original,
improved by New Deal etc etc
ii. living document
iii. protect individual rights from the states
ix. Clarence Thomas’s view
1. slavery at odds w/ Constitution, Constitution as it was written would eliminate
slavery
x. Montesquiew’s Theory of govt. in the Constituion
1.
separation of powers  separate judiciary
2. bi-cameral legislature
3. checks and balances
4. representatives represented geographically not at large
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a. representatives from all over act as counter-weights to each other
b. balance interests of different regional groups
xi. Ideological debate
1. system not set up to encourage virtue (system is problem) vs.
a. Solution: campaign finance reform, so people of virtue can afford to run,
not just the rich who are at the whim of lobbyists who give them money
2. People inherently power hungry (people are the problem)
a. good people don’t last long in Washington DC b/c incentives are to
increase power
b. people naturally seek as much power as the can
c. solution: limit terms in office
xii. Senate in charge of confirming presidents’ judicial appointments
1.
less political b/c no up for re-election  less subject to passions of public
2. balance interests of national and state government
3. concern more populous states would dominate
II. Judicial Philosophies
a. Originalism
i. interpret Constitution according to original meaning
ii. interpret Constitution as a contract
iii. don’t want a living interpretation b/c that is a reflection of the judge’s own values
1. no judicial activism
iv. free to amend, but interpret the document as it was written
v. Scalia (feint-hearted originalist)
vi. original public meaning
1. what words of document would have meant time to people who wrote and were
reading it
b. Thomas
i. Constitution is a sound theory of government
ii. meant to promote underlying ideals of Declaration
1. social issues forced compromise
2. read Constitution in light of Declaration, the Constitution is a culmination of
ideals the Constitution was meant to adhere to
3.
Declaration consistent with Constitution
4.
Construe constitution in the view of individual/natural rights
a. amendments enforcing the original properly understood principles of the
Constitution
c. Living Constitution
i. framer’s purposefully left the Constitution vague to allow for moral development
1. vague clause interpreted in modern lens
ii. Constitution establish basis of government, Americans fill in the details
iii. general set of guiding principles
1. flexible and responsive
iv. adhere to originalism when practical
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1. ex President needs to be 35
d. Common Law Constitutionalism
i. meaning evolves through common law process of S.Ct. decisions
ii. Pros
1. judicial opinions explain what actually happens pretty well
iii. Cons
1. decisions building on decisions until not understandable
2. words of Constitution end up meaning completely different
3. don’t want Constition to be wholly separate from Institutionalism
e. Quasi-legislative pragmatism
i. balancing test, resolve current issue right now and figure out related issues later
ii. case by case pragmatic decision making
iii. Sandra Day O’Connor
f. Natural Rights
i. Constitution meant to protect natural rights from arbitrary govt. interference
g. Democracy and Distrust
i. protecting equal rights of minorities and individual rather than focusing on limited fed
govt and separation of powers
ii. changed during New Deal era
iii. Marshall
III. Federal Court Jurisdiction and Justiciable Cases
a. all judge made law
i. interpretation of Article III
b. SCOTUS can NOT issue advisor opinions
i.
reading of “case and controversy” (article III § 2)
ii. Advantages of Advisory Opinions
1.
more efficient  if Congress knows SCOTUS will deem a certain bill
unconstitutional, it won’t be proposed/passed
iii. Disadvantages of Advisory Opinions
1. Fed Courts should take sides in political debate
2. each branch of govt. supreme of constitutional interpretation within its own
sphere
a. executive branch and legislative branch must still determine
constitutionality in their own rights
b. Separation of Powers
3. potential liability under section 1983 for doing something SCOTUS has deemed
unconstitutional
4. law might be unconstitutional as applied rather than facially
c. Ripeness – Immediate Threat of Harm
i.
typically plaintiff not entitled to review of a state law before it is enforced
1. fed court can only hear case following plaintiff’s harm UNLESS
ii.
there is an immediate threat harm
1.
when review is appropriate  determine when actual a controversy is present
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a. hardship to the parties of withholding court consideration
b. fitness of the issues for judicial decision
2. on the “horns of a dilemma” either plaintiff complies w/ law at some great
expense, or she refuses to comply and runs a great risk
3. don’t want to wait for accident to occur
4. delay would not put court in better position to resolve case
5. however if statute on books for 100 years and never enforced not ripe b/c no real
threat of enforcement
d. Mootness
i. a real, live controversy must exist at all stages of review
ii. if personal interest disappears the case is dismissed as moot
1. ex criminal dies, civil suit settles
iii. Exceptions
1. collateral injury remains
a. wrongs capable of repetition by evading review
i.
ex Roe v Wade
1. duration of pregnancy short than time required for federal
review
b. defendant voluntarily ceases unlawful behavior, but is free to resume it at
any time
c. class action may continue even if the named plaintiff’s claims are rendered
moot
e. Standing
i. def: a party’s right to make a legal claim or seek judicial enforcement of a duty or right
1. preserves separation of powers, serves efficiency, improves judicial decision
making, promotes fairness
ii. 3 Constitutional barriers to standing
1. Plaintiff must allege an injury
a. assures an actual dispute between adverse litigants
b.
injunctive or declaratory relief  must show injury in future
c. imminent or already occurred, not to speculative
i. physical injury, monetary
ii. environmental concerns (sometimes)
d. must be specific
e. need not be economic
2. Causation
a. injury must be fairly traceable to defendant’s conduct
3. Redressability
a. plaintiff must show a favorable outcome is likely to redress the injury
iii. 3 Prudential barriers
1.
* a federal statute may create new interests, injury to which may be sufficient for
standing
2.
Prohibition of 3rd party standing
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a.
plaintiff may only assert injuries she has suffered
b. exceptions
i.
substantial obstacles to 3rd party asserting own rights AND reason
to believe advocate will effectively represent interests of 3rd party
1. ex racial covenants, black community wouldn’t have
standing b/c not party to contract
ii.
close relationship between advocate and 3rd party
1.
ex religious school and parents, doctors and patients,
vendors and customers, parents and children
iii. overbreadth doctrine
1.
allows a party to challenge a statute on the ground that it is
overly broad and violates the 1st amendment speech rights
of 3rd parties not before the court even though the law is
constitutional as applied to actual litigant
3.
Can Not be a generalized grievance shared in substantially equal measure by all
or a large class of citizens
a.
prevents individuals from objecting as tax payers or citizens
b. Policy
i. pro
1. fear of collusive litigation
a.
parties don’t have real stakes  deterioration of
adversarial system
ii. Con
1. interest groups represent public interest
a. similar to designating private attorney general
c. exception
i.
tax payer can challenge a government expenditure as violating the
Establishment Clause (Flast)
1. two part nexus
a. 1. challenge a congressional appropriation under
taxing and spending clause (Article I, § 8)
b. 2. Expenditure violate a specific constitutional
limitation on the taxing and spending power
i. ex establishment of religion
ii. standing to pay tax you are required to pay
4.
Plaintiff must be within zone of interests (not particularly demanding)
5. prudential restrictions can be overridden
iv.
Ex Mass v EPA
1. Mass claiming EPA should be regulation emissions from new cars
2. Mass has standing
3. Injury
a. global retreat of mountain glaciers cause retreating shorelines
b. particularized: Mass has right as a sovereign to protect its citizens’ land
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i. sovereign rights to protect against pollution
ii. aspect that relates to control of land/waterways
c. this is a relaxed standard
4. Causation
a. regulating greenhouse gas emitted by cars is a small incremental step to
reducing climate change
5. Redressability
a. thinking in geological times
6. Dissent: no evidence of actual injury, not imminent (loss by 2100), can’t trace
back to vehicle emissions
f. Jurisdiction
i.
The Constitution gives SCOTUS appellate jurisdiction, but it also gives Congress the
express power to take it away
1. SCOTUS must first determine jurisdiction before deciding a case
2. Article III § 2 Exceptions Clause
a.
In all cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be a Party, the S. Ct. shall have original
Jurisdiction. In all other cases, the S. Ct. shall have appellate Jurisdiction,
both as to Law and Fact, [giving jurisdiction] with such Exceptions, and
under such Regulations as the Congress shall make [taking jurisdiction
away]

b. cons

i. congress inferring w/ certain classes of litigants

1. restricting due process

ii. directly challenging authority of S. Ct.

iii. Congress destroying the essential role of the S. Ct. in the


constitutional plan (Prof Hart)

iv. limiting jurisdiction of a specific right is the equivalent of


Congress passing the law restricting those rights

1. ex abortion

c. Pro

i. congress limiting political judgment

ii. S. Ct. not constitutionally entitled to decide cases, only decide


cases within jurisdiction

ii. Congress possesses power to regulate and limit appellate jurisdiction

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1. text of Article III does not suggest limitation of Congress’ power regulate
2.
ex McCardle

a. McCardle arrested for published articles in newspaper opposing fed govt.s


Reconstruction policies

b. sough writ of habeas corpus


c.
at time of appeal statute gave SCOUTS appellate jurisdiction  Congress
repealed the statute (removing jurisdiction)

d. SCOTUS did not have jurisdiction to hear case

iii. biggest limitation on the Court


1. Congress has authority to establish # of Justices
2.
Congress cannot fire a Justice currently on the Court  life tenure
IV. Judicial Review
a. Court can review actions of Congress AND Executive
i. Constitution is enforceable legal document
ii. power to declare legislation unconstitutional
1. nothing in Constitution explicitly gives S. Ct. authority to declare laws
unconstitutional
iii.
Federal Courts may review executive ministerial conduct to determine constitutionality in
non-political cases
1.
ex Congress passes legislation mandating president to do something
a. how president enforces congressional legislation
i. legal duty to act or refrain from acting
2. cannot review president’s political discretion
a. ex veto, who to appoint to an office, authority as commander and chief
iv. S. Ct. cannot enforce a statute it deems unconstitutional
1.
even if the other branches say it is  don’t defer to other branches
b. Marshall’s justification of judicial review
i. duty of judicial department to declare the law
ii. those who apply the rule to cases must expound and interpret the rule
iii. Constitution supreme law of land, duty of judiciary to say what law is
1. conflict between legislation and constitution, constitution triumphs
c.
Historical Justification  Hamilton 78
i. the judiciary form the nature of its functions is the least dangerous to political rights in
the Constitution b/c it has the least capacity to annoy or injure them
1. no influence over sword or purse
2. intermediary body to keep legislature within the limits of their authority
ii. court won’t substitute own personal opinion for interpretation of the Constitution
1. Hamilton didn’t follow this statement w/ reasoning
iii. must depend on aid of executive
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1. ex needed President to send national guard for desegregation in Little Rock
2. theoretically President could go against decision
a. President Jackson threw Cherokees off their land in contrasts to S. Ct.
decision
d. The least powerful branch has a lot of power
i.
power of persuasion  declare laws unconstitutional
ii. review actions of other branches of govt. (both fed and state)
e. Marbury v Madison
i. Adams’ midnight appointment of judges
ii. Marbury’s commission was not delivered in time
iii. Jefferson ordered Secretary of State not to deliver the commissions
iv. Marbury sued directly to S. Ct.
v. Marbury had right to commission, but doesn’t get the commission b/c S. Ct. doesn’t have
original jurisdiction issue writs of mandamus b/c congressional statute unconstitutional
1. Marshall attempting to soften readers into complaisance by acknowledging acts
that are not subject to judicial review
2.
if Marshall grants the writ  Jefferson would prob refuse to enforce
vi.
establishes judicial review
V. Legislative Power
a. Legislative Vetoes are unconstitutional
i.
violates Constitution
1. presentment clause
2. Bicameral legislative Process
3. President’s option to veto legislation
ii.
if a law is presented to both houses of Congress and signed by the president, to be
repealed it must be presented to both house of Congress and signed by President
iii. Exception
1. constitutional exceptions authorizing 1 house to act alone and are an exercise of
legislative power
2. House: initiate impeachments
3. Senate: conduct impeachment trials and convict following trial
4. Senate: final unreviewable power to approve or to disapprove presidential
appointments
5. Senate: unreviewable power to ratify treaties negotiated by president
b.
Regulations enacted by administrative agencies are not “legislation”  don’t go through
formality of being voted on by both House and signed by President
i. Congress delegates authority to executive to exercise discretion the agency isn’t making
law but just doing what Congress ordered it to do
ii. Congress can control administrative state
1. threaten to take away funding
2. legislative hearings

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3. require agencies to report proposed regulations to a committee and wait a
reasonable time before putting them into effect, thereby allowing Congress to
respond through legislature
4. Special Prosecutors to investigate executive officials
5. Congress votes on rules and can make adjustments
c.
ex INS v Chada 1983
i.
Congress authorized AG to use his discretion in suspending deportation proceedings for
selected hardship cases among illegal aliens
ii. AG discretion subject to disapproval by either house of Congress
iii. findings of AG went to Congress, House voted to deport Chadha
1. resolution not sent to Senate or President
iv.
unconstitutional  legislative veto
v. Dissent: not making new law, necessary for the modern state w/ complex problems
VI. Executive Powers
a.
Determining the validation of presidential actions with regard to internal affairs (Jackson)
i.
1. Acting w/ Congressional authorization
1.
President possesses own constitutional powers plus those Congress can delegate
ii.
2. Congressional vacuum
1. situation where Congress hasn’t granted nor denied power
2. own constitutional powers independent from Congress
3. interpret actions more expansively in light of practicalities of certain situation
iii.
3. Actions incompatible w/ expresses or implied will of Congress
1. actions highly scrutinized
2. evaluate only in light of own powers subtracting those of Congress
a.
Article II
iv.
ex Steel Seizure
1. Truman, w/out congressional authorization, ordered to seize US steel mills when
impending strike threatened national defense
2. seizure unconstitutional
a. category 3
i.
no constitutional power to perform this act from Article II
ii. no authority from congress
b. despite a military emergency, the president still couldn’t act
i. however, the S.Ct. knew it wasn’t a real emergency
3. Dissent: historical argument, activist president’s are usually influential
4. Hypo: Argument for Category 2 authority
a. Truman asked for action and Congress did nothing
i. evidence that Congress neither granted or rejected authority
b. just b/c Congress didn’t grant doesn’t mean they didn’t deny
i. not great argument: giving a non-law effect
b. Declaring Martial Law
i. As long as civilian courts are operating and the defendant is charged with a civilian
crime, the defendant must be tried in civilian court
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1. courts MUST be closed
a. impossible to administer criminal justice according to law
2. until civilian govt. overthrow, military cannot take charge
3. Must be actual and present threat
a. threatened invasion is not enough
4. Prisoners of War
a. member of enemy forces
i. part of enemy army = enemy combatant
b. cannot be charged w/ civilian crimes
c. US citizenship does not relieve an enemy combatant for consequences of
belligerency when his actions were in violation of the laws of war
5.
ex Ex Parte Milligan
a. plot to steal Union weapons and invade Union POW camps to fight
against govt. of Indiana
b. tried and found guilty by military court
c. military commission did not have jurisdiction to legally try and sentence a
man who had never been in military and was not in State involved in Civil
war
d. Civilian courts were still opened, so he should be tried in civilian court
e.
fear of presidential acting as dictator  military courts not subject to
constitutional safe-guard
i. response if Congress grants authority then no reason to worry of
dictatorship
c. President is commander and chief: authority to set up military tribunals when US is in an official
declared state of war
i.
inherent authorization b/c Congress declared war
ii. power to conduct war and adopt measures to repel and defeat the enemy, seize and
subject enemy to discipline when they have violate the laws of war
iii.
ex Ex Parte Quirin
1. Quirin and 7 members of German armed forces secretly came to US
2.
arrived in military uniform and changed to civilian dress  instructed to destroy
US war industry
3.
1 turned self in, others arrested  tried by military commission  constitutional
4.
distinguished from Milligan
a. Germans are belligerents and Milligan was a civilian
b. part of German armed forces, lived in enemy territory
5.
Court was under extreme political pressure from Roosevelt, does this invalidate
precedence?
iv. Hypo: Sympathetic American contacts German embassy and offers to blow something up
in US
1. American would be tried as a civilian
2. never in enemy territory, never part of enemy forces

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d. President has power to wage war successfully
i. extends to every matter and activity so related to war as substantially to affect its conduct
and progress
ii. embraces every phase of national defense
e.
Deference to President’s military action in time of military necessity/urgency when Congress
gives authority
i. Hirabayashi
1. Executive order ratified by Congress gave military commanders and Secretary of
War power to exclude people from military areas
2. constitutional
3. court looks at all facts and circumstances surrounding curfew order
a. military claimed curfew protective measure to meet threat of sabotage and
espionage which substantially effect war effort and aid enemy invasion
b. apprehension: could not know danger until too late to meet it, number and
strength could not be quickly ascertained
c. could not say military did not have reasonable belief of threat
4.
Douglas Concurrence: assume good faith of military, but war does not suspend
bill of rights
ii. Korematsu
1.
detention of Japanese Americans  constitutional
a. balancing racial prejudice and military necessity and urgency when
Congress grants authority
b. passes strict scrutiny
c. Dissent: if such a true emergency why didn’t govt. take swifter action
i. only limited proof of sabotage or espionage
ii. should be reasonable connection between threat and actions taken
f.
The govt. may detain an American citizen apprehended in a foreign country in a theater of war as
an enemy combatant (Hamdi plurality)
i. Authorized through AUMF
1. AUMF provides broad vague powers
2. Court modifies to limit to hostilities in Afghanistan
3.
policy: avoid giving President indefinite authority w/out any new legislation
ii. exercise of necessary and appropriate force Congress authorized President to use
iii. even if you are a citizen you can still be an enemy
iv.
if you can try and execute an American citizen caught in America, you can certainly
detain an American caught abroad (relying on Ex Parte Quirin)
v. Due Process required
1. citizen-detainee seeking to challenge his classification as an enemy combatant
must receive
a. notice of the factual basis for his classification
b. fair opportunity to rebut govt’s factual assertions
c. before a neutral decision maker
2.
basis Mathews v Eldridge
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a. case about govt. deny social security benefits
b. odd to rely on (social security is a privilege not a right)
vi. Hamdi
1.
American citizen, captured in Afghanistan and brought back to US as enemy
combatant to be detained indefinitely  claims he was a relief worker
2. Congress authorized detainment through AUMF (clear and unmistakable)
3.
distinguish Milligan
a. Milligan not a POW, civilian engaged in criminal acts, NOT caught in
theater of war
b.
Hamdi is a POW, caught in theater of war , being detained not punished
4.
favorably cites Quirin, limits Milligan to facts (opposite in Hamdan)
5. Scalia’s dissent
a. either suspend writ or try for treason
6. Thomas
a.
acknowledges concern of placing power in hands of President to detain
Detention Hearing (6-1)
O’Connor (Plurality) Yes w/ limits Yes
Thomas Yes no limits No
Souter No Yes
Scalia No Not addressed
g. Military Tribunals
i. Hamdan
1. Hamdan charged w/ conspiracy, Bin Laden’s driver
2. trying Hamdan by military commission planned by President Bush violates the
UCMH and Article 3 of Geneva Convention
3. a military commission is lawful only if it is authorized by 10 USC 821
a. trial must be authorized by the law of war
b. Geneva Conventions are part of the law of war
c. Article 3 is violated b/c the commission before which he would be tried is
not a regularly constituted court
d. although US rejected article 75 of Geneva Conventions S.Ct. applies this
rule of law to US via UCMJ
4.
favorably cites Milligan, but limits Quirin to its facts
a.
opposite result in Hamdi
b.
Quirin only applies to overt acts of conspiracy
5.
Habeas corpus statute not binding b/c statute didn’t apply to individuals who had
already been detained  S.Ct. had jurisdiction
6. precedent that an individual detainee cannot claim protections of Geneva
Convention
a. UCMJ already existed
b. throws wrench in plurality’s reasoning
7. once a statute requires President to enforce international law S.Ct. has authority to
interpret
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a. enforcing UCMJ against President
i. domestic law incorporating international law
b. not claiming authority to interpret international treaty
c. enforcing domestic law necessarily involves interpretation of international
treaty
8. Kennedy (concurrence)
a. category 3: Congress specifically prohibited executive action
i. personal liberty at peril
ii. Executive branch becomes judge, jury, and executioner
iii.
UCMJ imposes limitations  President exceeding limits
9.
Thomas (dissent)
a. category 1: Congress expressly authorized executive action
i. President’s decision demands deference
ii. AUMF gives President power to use all necessary and appropriate
force
iii. Article 21 of UCMJ provides congressional authorization for
military commissions and AUMF
10. Policy
a. vindicated importance of international law of armed conflict
b. Geneva Conventions apply to Al Qaeda
11. Liberal Justices w/ majority, Conservative Justices w/ dissent
h. Habeas Corpus
i. Suspension Clause
1. The privilege of the writ of habeas corpus shall not be suspended, unless when is
cases of rebellion or invasion the public safety may require it
2. very vague
a. doesn’t define who can suspend, who is eligible, or geographic region
3. language may suggest it only applies to US sovereign territory
a.
“rebellion or invasion” relates to US territory  rejected
ii.
3 factors relevant to determining scope of suspension clause
1. citizenship and status of detainee and adequacy of the process through with that
status determination was made
2. nature of sites where apprehensions and detention took place
3. practical obstacles inherent in resolving the petitioner’s entitlement to the writ
4. *living constitutionalism
a. pragmatic and vague
b. balance factors depending on political climate of time
iii.
Habeas corpus review applies to persons held in Guantanamo and to persons designated
as enemy combatants on that territory
1.
If Congress intends to suspend the right, an adequate substitute must be offered
a.
prisoner meaningful opportunity to demonstrate he is held pursuant to an
erroneous application or interpretation of relevant law, AND

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b. the reviewing decision-making must have some ability to correct errors,
to assess the sufficiency of the government's evidence, and to consider
relevant exculpating evidence
2. DTA 2005 did not meet the burden of adequate substitute
iv. Boumediene v Bush
1. Boumediene non-US citizen held in detention in Guantanamo
2. Boumediene can exercise writ from Guantanamo
3. Kennedy majority
a.
protection of the writ is one of the few safeguards of liberty specified in
the Constitution prior to bill of rights  apply broadly
b. however, other clause in original Constitution interpreted narrowly
i. ex contracts clause
c. separation of powers necessary to protect individual rights
i.
meant to protect persons not necessarily citizens
ii. Suspension clause does not say either persons or citizens
iii. not clear separation of powers is meant solely for the judiciary to
have per se power to restrain executive
d. English common law
i. just because there wasn’t a case where the writ was extended to
aliens being detained overseas doesn’t mean there wasn’t one
e.
distinguished from Quirin
i.
minor factual distinction  adversarial structure
ii. potentially problematice
1. foreign POWs tried quickly by military tribunal and
executed
2. if you can execute you can merely detain
f.
Hamdi distinguished
i. no argument that writ was suspended
ii.
S.Ct. could not define necessary scope of habeus review for enemy
combatant detention
4. Roberts dissent
a. judiciary is protecting its own power, not protecting separation of powers
or rights of detainees
5.
Scalia dissent
a. majority suggest detainee must have access to exculpatory evidence
b. district judges might potentially order that classified evidence be turned
over to detainee
c. ex names of co-conspirators leaked to Bin Laden during discovery
d. Response: other options to avoid turning over confidential info
i. keep detainees in Afghanistan
1. even less access to lawyers
ii. turn over to allies w/ even worse due process standards or torture
practices
16
iii. US be more discriminatory of who they capture
1. Scalia response: Bush administration had released detainees
who once released joined enemy forces
e. English tradition
i. writ did not extend beyond sovereign territory of crown
ii. if such a case existed it would have been a big deal and it would
have been recorded or it was so ridiculous no one would have
brought one
f.
no distinction between Johnson v Eisentrager
i. case held that Constitution does not ensure writ for aliens held by
US in areas over which govt. is not sovereign
i. Appointment
i.
Article II, Section 2: President is empowered with the advice and consent of the Senate to
appoint all ambassadors, other public ministers and consuls, judges of the S.Ct., and
all other officers of the US, whose appointments are not herein otherwise provided for…
but the Congress may by law vest the appoint of such inferior officers, as they think
proper, in the President alone, in the courts of law, or in the heads of departments
ii.
Congress can authorize the President, the Federal Courts, or the Heads of Departments to
appoint inferior officers w/out advice from Senate
1.
Presidents other appointees must be confirmed by Senate
iii.
Under the Appointment Clause, Congress is free to vest the power to appoint a special
prosecutor in the judiciary (Morrison v Olson)
1. Appointments Clause literally does not foreclose inter-branch appointments
2. no incongruity between the functions normally performed by the courts and the
performance of their duty to appoint
3. inferior officer
a. removable for cause by the AG
b. duties limited and they do not involve policy-making or large-scale
administering of programs
c. jurisdiction is limited, not general
d. time in office temporary, confined to the length of the project she has been
assigned to work on
j. Removal
i. the Constitution is silent on power to remove appointees except for ensuring tenure of all
Article III judges “during good behavior”
ii. President
1. probably can remove high level, purely executive officers (cabinet members) at
will
2.
Congress may provide statutory limitations on the President’s power to remove all
other executive appointees
a. ex removal for good cause
b. President’s power to remove is limited to cause enumerated
i. however, congress can control by removing funding
17
3. “independent” agencies are not subject to President’s removal power
a. not responsible to anyone but selves
i. neutral non-partisan expertise established by Congress
ii. quasi judicial/legislative
b. Originalists think all agencies should be abolished
4. however purely executive branch positions can be removed by the President at
will
5. Myers v US
a.
Myers appointed postmaster of the 1st class by President w/ advice and
consent of Senate for 4 years  fired by President after 2 years
b. by default the power to appoint includes the power to remove, absent
express language this default rule governs
i. “advise and consent” clause was to assuage the less populous states
ii. small states managed to limit appointment power, not removal
power
c. Congress can say under what conditions inferior officers can be removed,
but Congress cannot remove them
d. McReynolds’ Dissent: removal of officer is an executive action, but
conditions of removal are legislative
i. no direct authority to remove
e. departments action as agent of President
6. Humphrey’s Executor v US
a.
Humphrey appointed to FTC by Hoover, removed by Roosevelt for
political reasons  opposed to New Deal
b.
distinguishes Shurtleff
i. holding: can remove for causes other than enumerated
ii.
statute in Shurtleff vague and ambiguous, preventing life tenures
iii. here statute was clear and unambiguous
c.
distinguishes Myers
i. postmaster is executive officer, FTC is administrated body created
by Congress
d. FTC is quasi-legislative quasi-judicial so President can only remove for
cause enumerated in statute
e. Originalist
i. preserving balance of authority between branches of gov.
ii. don’t want President to have law making authority w/out
Congressional limitations
f.
creating a 4th branch of govt. ?
7.
Independent Counsel (Special Prosecutor) Morrison v Olson
a. purpose: to investigate and prosecute high ranking govt. officials for
violation of fed crim law (exec branch usually does this)
b. power to remove is confined to Act of the AG
c. no violation of separation of powers
18
i. good cause limitation on the AG’s power to remove is not
unconstitutional
1.
b/c Independent Counsel is inferior officer  does not
interfere w/ ability to faithfully execute the laws b/c good
cause provisions makes sure the counsel is still performing
their duties and AG can remove if otherwise
d. Act does not unduly interfere w/ role of Executive Branch
i. no increase of powers
ii. Congress retained no powers over Independent Counsel
iii. doesn’t undermine powers of executive
iv. executive has some power in the initiation of the investigation
e. Scalia’s dissent (academic reason why Ind. Counsel Act permitted to
lapse)
i.
all of the executive is vested in the President
ii. object of statute to deprive President of exclusive control of ind.
counsel
f. Ind. counsel not subordinate to anyone in exec. branch
iii. Congress
1. cannot give itself the power to remove an officer charged with the execution of
laws except through impeachment
2. cannot give a government employee who is subject to removal by Congress any
powers that are truly executive in nature
k. Executive Privilege
i. executive privilege is not a constitutional power, but rather is an inherent privilege
necessary to protect the confidentiality of presidential communications
1. the court defines scope of executive privilege
a.
See Marbury v Madison  emphatically the province and duty of the
judicial department to say what the law is
ii. might recognize an absolute, unqualified Presidential privilege from judicial process
under a claim of need to protect military, diplomatic, or sensitive national security
interests
iii. balancing test: between the need for privilege and the sixth amendment need to present
all evidence for litigation
iv. purpose:
1.
need for protection of communication  those who expect public dissemination
of their remarks might self-censor to the detriment of decision making process
v. President not immune from civil cases while in office
1. Clinton v Jones
vi. US v Nixon
1. Nixon attempting to prevent the Watergate special prosecutor from obtaining
access to “Watergate tapes”
2. Nixon’s arguments

19
a. intra-branch dispute so S.Ct. doesn’t have jurisdiction
i. Response: judiciary is reluctant to intrude on such matters, but they
are not the basis of eliminating jurisdiction
b.
subpoena violation of Fed Rule Crim. Proc. 17 limiting subpoenas to
specific matters
i. Response: tapes contained material relating to offenses, could be
used to impeach defendants’ testimony
c. Executive Privilege
i. Response: Nixon not relying on communications between officials
in the performance of their duties
ii. only invoking the broad claim of public interest
iii.
generalized interest in confidentiality not enough  cannot prevail
over the fundamental demands of due process of the law in the fair
administration of criminal justice
1. no national security claim
l. Impeachment
i. used rarely
1.
method House has to check President  no permanent bureaucracy to allow it to
regularly investigate public officials
2.
in a sense congress delegate impeachment investigatory role to executive branch
AG better suited to investigate
m. National Security
i. Treaties
1. International law obligations do NOT automatically become binding domestic law
2. Self-executing: do not require implementation by Congress
3. Non-self-executing: not effective until Congress passes legislation
a. can be independent basis for Congress to adopt legislation
b.
President does not have independent power to issue a memorandum
ordering compliance w/ non-self-executing treaty that has not been
effectuated by Congress  category 3 from Youngstown
i. President acting unilaterally cannot make law
4. Medellin
a. Mexican citizen committed murder
b.
International Rule: must notify a foreign national that they can go to
consulate for assistance  didn’t raise til too late, denied
c. Medellin files writ of habeas corpus
d. Bush issues memorandum that he is enforcing treaty
e.
treaty not self-executing  no law passed by congress
f. Bush memorandum does not make treaty domestic law
ii.
President has authority to require citizens to obey embargo when authorized by Congress
1. enumerated powers are important when it comes to legislative power
a. Congress has domestic legislative power

20
2. distinguished from executive power and foreign policy
a. control over foreign power is inherent of sovereignty so inherent to
executive
3.
ex US v Curtiss-Wright Export Corp
a. Congress authorized President to prohibit the sale of arms to countries
engaged in armed conflict in Bolivia
b. defendant charged w/ conspiracy to violate statute
c.
category 1 of Youngstown
d. court possibly exaggerating powers b/c about to declare war
e.
Sutherland wrote Humphrey’s Executor which limited executive power
i.
WWII  need to negotiate w/ foreign power
VII. Implied Powers
a. The National government has primary control over the question of the extent of its powers
b. The source of the Constitution’s power is the people NOT the states
i.
conventions of people gathered in states ratified constitution
c. Necessary and Proper Clause
i. 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 the
Constitution in the Government of the US, or any department or officer thereof
ii. Necessary = convenient
1. where framers wanted necessary to mean indispensable they used absolutely
necessary
2.
end needs to be legitimate, within scope of constitution  act within sphere
d.
Ex McCulloch v Maryland
i. MD imposed tax on all banks except state-owned banks
ii.
Congress has power to charter bank  necessary
1. borrow money to go to war, power to coin money, regulating Congress, must have
money to carry out responsibilities
iii. MD tax is unconstitutional
iv. giving MD the power to tax is the power to destroy
1. when acting in its sphere fed govt. is superior
v. “dissent” Jackson’s veto message
1. even if necessary bank is not proper
a.
Congress giving away authority to bank  independent body w/ no
overriding control
b. monopoly
i. long tradition to govt. chartered monopolies
ii. Congress expressly forbade competition
iii. find a way to coin money w/out creating monopoly
2. not necessary
a.
inherent govt. function to coin money, improper for congress to delegate
to private entity

21
b. founders didn’t want to give Congress power to grant monopoly charters
i. power granted to copyrights and patents NOT bank
VIII. Commerce Clause
a. Article I, Section 8, Clause 3 empowers Congress to “regulate commerce with foreign nations
and among the several states, and with the Indian tribes”
b. Historical NOT GOOD LAW
i.
direct/indirect effects test (wooden ship)
1.
direct: shipping goods across state lines  regulated by fed govt.
a. shipping goods across state lines
2.
indirect: producing goods to ship across state lines  no fed regulation
a. manufacturing, mining, and production
ii.
ex EC Knight
1. Sugar company acquired nearly complete control of manufacture of refined sugar
2. Sherman Act, no monopolies
3.
Sherman Act unconstitutional, b/c this is production not commerce
c. def of commerce: commercial intercourse between nations, and parts of nations, in all its
branches, and is regulated by prescribing to carry on that intercourse
i. commerce is “undoubtedly” traffic
ii.
includes navigation  includes embargos (restriction on navigation)
1. original intent argument: everyone at time of constitution knew commerce
included navigation
iii. doesn’t stop at state lines
iv.
ex Gibbons v Ogden (very broad authority)
1. Gibbons running steam boats between NY and NJ licensed by Feds
2. NY gave Ogden exclusive right to water
3. Gibbons permitted to run ships
4.
Gibbons’ license constitutional  commerce clause, this is commerce
5. Supremacy clause, Fed license trumps state license
6.
Justice Marshall a nationalist  does not strictly construe constitution
a. Congress won’t abuse power, if overstep removed through elections
v. hypo: canal going from West NY to east NY
1. everyone on boat going to Philly
2.
logical extension from Gibbons  fed govt. can regulate (slippery slope?)
vi. Champion v Ames
1. interstate shipments of lottery tickets
2.
Majority thinks of lottery as a pestilence , a moral plague that will affect all the
states  only Fed govt. can control
vii. Hamber v Dagenhart
1. child labor
2.
fed govt. can’t regulate goods made by child labor  the goods themselves are
not inherently bad  distinguished from lottery tickets
d. “Substantial Economic Effect”
22
i.
Congress has power to regulate any activity, local or interstate, that either in itself or in
combination with other activities has a substantial economic effect upon or effect on
movement in interstate commerce
1.
ex Wickard v Filburn 1942
a. farmer growing wheat on own land to feed family and livestock
i. purely local, non-commercial activity
b. Agricultural Adjustment Act limited supply of wheat
c. commercial activity: keeping wheat out of interstate market, in the
aggregate, will have substantial effect on interstate commerce and
undermine the agricultural regulatory scheme of Congress
2.
ex Katzenbach v McClung
a. Ollie’s BBQ only served blacks in carry-out window, refused to seat them
although whites were allowed to dine in
b. this act exerted substantial impact on interstate commerce
i. aggregation: if all restaurants refuse to serve blacks it will have a
substantial impact on their ability to travel interstate
e. Power Not Unlimited – 3 options
i.
Regulate the channels of interstate commerce
1. navigable highways or waterways
ii.
Regulate the instrumentalities of interstate commerce and persons and things in
interstate commerce; OR
iii.
Regulate activities that have substantial effect on interstate commerce
1.
Ex Lopez 1995
a.
no guns in school zone act
b. guns in school zone do not substantially effect interstate commerce
c. 1. criminal statute
i. nothing to do w/ commerce/broader regulatory scheme
ii.
distinguished from Wickard
1. holding a gun is not inherently tied to economic like wheat
d. 2. Congress does not have plenary police power
i. state regulation, 48 states have laws like this, no advantage that fed
govt. has in prosecuting those w/ guns in school zone
ii. local police will be catching gun carriers in school zones
e. 3. no factual findings made by Congress on the affect of guns in school
zones
i. no jurisdictional hook, statute didn’t even specify guns that moved
in interstate commerce
f. * placing restrictions on commerce power was huge impact on legal
community
2.
Ex Morrison 2000 (more limitations on Commerce power)
a. VAWA Morrison raped
b. not substantial impact on interstate commerce
i. criminal activity is local not commercial activity
23
1. even in aggregate, not good enough
2. aggregation principle only involves something that involves
commercial activity
3. overarching regulatory scheme MUST be about commerce
ii. findings of Congress that VAWA effects commerce rejected by
Court
iii.
distinguished from Lopez: State AG’s asking feds for help
3.
Ex Gonzales v Raich 2005 (expanding commerce power)
a. applied rational basis test
b.
medical marijuana grown in CA and given to CA residents authorized by
state law to use medical marijuana  commerce clause gives Congress to
regulate under CSA
c.
part of economic class of activities that has a substantial effect on
interstate commerce - Congress rational basis for believing failure to
regulate intrastate marijuana would have negative effect on CSA
i.
difficult to distinguish between local marijuana and marijuana
grown elsewhere  diversion into illicit channels
d.
cites Wickard: can regulate if undercuts broad regulatory scheme
i. similar aggregate effect
ii. weakness: farmer was clearly a commercial farmer, pot not being
sold
e.
distinguishes Lopez and Morrison: neither regulated economic activity
i. marijuana is a commodity with an established interstate market
f. economic: b/c Raich consumed marijuana engaging in economic activity
i. weakness: there can be economic that is not commercial
g. Dissent: O’Connor
i.
Raich isn’t engaging in commercial activity, and if she is that
means everything can be regulated ex staying home in watching
kids b/c you are not paying for day care
ii.
Federalism: results of rational basis test is assuming CA won’t be
able to enforce its own laws
h. Dissent: Thomas
i. commerce clause not about regulating economic activity, but
regulating commerce
i. Concurrence: Scalia
i. broad interpretation of necessary and proper
ii. if you can regulate all marijuana you can regulate trivial instances
iii.
need to regulate trivial instances to protect overarching regulatory
scheme  legal pot creeping into illegal pot market
1. doesn’t need to be substantial
f. Implied Powers
i.
US v Comstock

24
1. Comstock deemed sexually dangerous individual before release
2. fed govt. has authority under the Necessary and Proper Clause to require the civil
commitment of individuals already in Federal Custody
a. no enumerated power in constitution
b. fed govt. already has custody in fed prison, so fed govt. has responsibility
for the criminal’s potential danger to others
3. necessary and proper for fed govt to say that once they have custody, the feds are
responsible for them while they are in prison
4. congress has authority to create jails to punish violators of fed crim statutes, so it
is necessary and proper to assert custody if the individuals are not ready to be
released due to mental illness
5.
additional assertion of federal authority  rehab starts after sentencing
6.
similar to statutes of committing fed inmates who are not mentally competent 
long history of behavior by bureau of prisons
a. S.Ct. previously stated long practice irrelevant ie line veto
7. does not infringe on state authority
a.
10th amendment truism
b. states have option to take custody of prisoners
8.
part of commerce power: necessary and proper to have jails to effectuate
commerce power  necessary and proper to civilly commit people in those jails
who are not fit to re-enter society
9. N & P proper for 5 reasons
a. 1.breadth of N & P clause, 2. long history of federal involvement in this
area, 3. sound reasons for statute’s enactment in light of the government’s
custodial interest in safeguarding the public from dangers posed by those
in federal custody, 4. statute’s accommodation of state interests, 5.
statute’s narrow scope
10.
Kennedy (concurrence)
a.
approved of rationale basis in Raich, but not here
b. commerce clause requires tangible line, not mere conceivable link
11.
Thomas (dissent)
a.
no enumerated power to set up fed prison system
b. if not enumerated power then N&P can’t give you power
c.
wants to narrow N & P  typical Thomas
12. Alito (concurrence)
a.
committed crime in GA, transferred to 3 prisons, jail for 15 years  no
domicile
b. fed govt. created this problem for defendant, so now it is their problem
i. unclear which state is responsible, so under that limited
circumstance, it makes sense for fed. govt. to take responsibility
13. Scalia (joined Thomas in dissent)
a.
joined narrowest opinion after writing broad opinion in Raich

25
b. distinction: dangerous sexual crimes not inherently commercial
c. persuaded by Thomas’s essentially twice removed from commerce power
d. this is a facial challenge v an as applied challenge
g. Spending Power
i. Congress can tax and spend for the general welfare
1. the term “general welfare” is “not limited by the direct grants of legislative power
enumerated in the Constitution” (Hamilton’s view)
2. cannot violate any specific constitutional prohibition
a.
ex Butler
i. S.Ct. concluded that Congress could not regulate local agriculture
through Commerce clause, so it could not regulate through taxing
and spending
ii.
before 10th amendment was mere truism, recognized as a
constitutional prohibition
3. South Dakota v. Dole
a.
SD permits persons under 21 to buy beer, statute directs Sec of
Transportation to withhold highway funds from states who allow persons
under 21 to buy alcohol
b. 5 limitations on spending power
i.
general welfare  defined by Congress
ii. Congress must unambiguously condition the States’ receipt of
federal funds
iii. must be related to federal interest in particular national projects of
programs
iv. other constitutional provisions may provide an independent bar to
conditional grant of federal funds
1.
at this point in time 10th amendment mere truism
a.
10th amendment not a bar
b.
independent constitutional bar limitation on the
spending power is not a prohibition on the indirect
achievement of objective which Congress is not
empowered to achieve directly
2.
not a violation of 21st amendment
a.
21st amendment seems to ban Congress from
regulating alcohol market
b.
not regulating  taxing and spending
v. non-coercive
1. here pressure NOT compulsion only deprivation of 5%
c. case is about spending power NOT commerce power
d. O’Connor Dissent
i. not related to federal interest
ii. the statute is not about safe highways, it is about alcohol regulation
iii. teens are not the only drunk drivers
26
iv. should look at how the money is spent
1. no restriction on how money is spent, it just limits drinking
age
IX. Dormant Commerce Clause
a. States permitted to regulate interstate commerce to some extent
b. Congress can delegate its interstate commerce regulation to the states
i. power is not explicitly declared “exclusive” in Constitution
ii. power over national subjects demanding a nationally uniform scheme of regulation
belong exclusively to Congress
iii. the power over local subjects in interstate commerce is an interstate commerce power, so
Congress can regulate it if it wants to, but in the absence of fed. regulation the states are
free to act
iv.
ex Cooley v Board of Wardens
1. state pilotage law
2. Congress did not delegate anything, pilotage is not a national subject and
therefore can properly be regulated by the states
3. Daniel concurrence
a.
pilotage regulations are usually safety-related and not particularly
commerce-related  within state police powers
c.
States prohibited from passing legislation that
i.
inordinately burdens OR
1. does not treat out-of-state commercial entities differently from in-state
commercial entities, but the burden is too high on interstate commerce
2. courts more lenient
3. Pike balancing test
a. incidental effects on interstate commerce are valid unless the burden
imposed is clearly excessive in relation to the putative local benefits
b. weigh local interests and fed interests
4. Ex Hypo tractor trailer law
a. state law banning double and triple truck-trailer rigs
b.
non-discriminatory  burdens in and out of state trucks
c. burden out of state commercial entities
i. long detours around state
ii.
discriminates against interstate commerce
1. more serious infraction
2.
treating out-of-state commercial entities differently from in-state commercial
entities to the advantage of the in-state commercial entities
3. prevent states from undermining common market/expanding police powers
4. standard of review: strict scrutiny, difficult for states to meet
a. legitimate local interest
b.
no adequate alternative
i.
courts don’t care if alternative is twice as much or less effective
5.
Ex United Haulers v Oneida-Herkmer
27
a. law requiring all trash and recyclables generated within the 2 counties to
be delivered to state owned processing facilities
b. Not a violation of dormant commerce clause
c. Not discriminatory: all private companies being treated equally
d.
sovereign act of the state, doing what states traditionally do, which is
dispose of garbage  no protectionist interest
e.
distinguishes Carbone
i.
law required to bring waste to private processing facility, here
waste facilities owned and operated by state-created public benefit
corporation
f. Alito dissent
i.
there is a protectionist local interest  sanitation workers
protection jobs
ii. most trash is actually disposed of in private places by private
companies, so majority is incorrect in saying disposing of trash is
inherent job of state
iii. traditional state function doctrine is unworkable
d. UNLESS the state is a market participant (rather than a regulator), it can discriminate or burden
as long as it doesn’t fall into 1 of the 3 exceptions
i. no downstream regulation
1. state can put any restrictions on sale of goods
2. can’t use role as a market participant to regulate something else
ii. natural resources limits
iii.
existence of foreign commerce not just interstate commerce  implicates federal foreign
trade agreements
iv.
Ex South-Central Timber Development v Wunnicke
1.
state of Alaska had proprietary ownership of logs and timber, sold timber on the
market  only sold timber to buyers who would bind selves contractually to have
the timber processed in Alaska
2.
NOT a market participant  Imposed downstream regulation
a. the processing condition had a substantial regulatory effect outside of the
sale of timber market
e.
if congress explicitly allows a regulation that would otherwise violate the dormant commerce
clause judicial precedent, states are allowed to regulate
i. Congress can also claim that something is an exclusive area of fed regulation ex ERISA
X.
State Control Over Federal Elections (US Term Limits v Thronton 1995)
a. Article 1 Sections 2 and 3
i. House: 25 years old, citizen for 7 years, inhabitant of state in which elected
ii. Senate: 31 years old, citizen for 9 years, must reside in State they represent at time of
election
iii. minimal qualifications
1. no property, wealth, criminal background qualifications

28
b. States are not permitted to adopt their own qualifications for congressional service
i. an amendment is required to change the qualifications set out in the text of the
constitution
c.
Reasoning (Stevens Majority)
i. Qualifications in Constitution are meant to be exclusive
1.
framers considered adding a pro-term limits clause  rejected
2. Federalists: didn’t want states interfering w/ fed elections
a. if put a restriction on a fed election, must put it on state
b. Bernstein: weak, didn’t do this for anything else
3.
*unusual argument for Stevens  living constitution
4.
Powel Precedent
a. Congress could not add additional qualifications beyond qualifications
clause
b.
weakness: Powel about Congress not states
5. Fed govt. sovereign in own sphere
th
ii.
10 Amendment
1. reserved powers to the states only applies to powers possessed by the states at the
time of the amendment
2. at time of amendment states exercised no powers over qualifications
3. states could not have reserved this power b/c Senators and Reps didn’t exist until
Congress came into existence
4. basing this on idea that states reserved only those powers not ceded to the national
govt., Constitution created national sovereignty, so states could have no claim to
national sovereignty
iii. Congressmen owe allegiance to the people of the US as a whole and not the people of the
states
1. paid out of state treasury
iv. States reserve time, places, and manner of elections
1. power delegated to states by Constitution
2. any other power regarding elections would also have to be delegated
v. “Rotation” (ie term limits) was rejected at Constitutional convention
vi. Arkansas statute is an attempt by the states to do indirectly that which they could not do
directly
d. Thomas dissent
i. relying on the same constitutional principles and background to reach opposite
conclusions
ii. Constitution derives authority from the consent of the people
1. incoherent to assert that the people of the states could not reserve any powers that
they had not previously controlled
iii. questions majority’s interpretation of the work “reserve”
1. can reserve things prospectively ie reserve a table in a restaurant
2.
if power isn’t give to fed govt. it is given to states under 10th amendment
a. fed govt. is one of enumerated powers
29
3. even if states did not reserve power, people reserved power
a. any powers not given to fed govt. and not reserved by the states are given
to the people of the states
th
4.
10 amendment a barrier from fed govt infringing on powers of state AND people
iv. electoral college undermines majority’s uniformity argument
v. democratic: this is what people of Arkansas choose to do
e. Kennedy concurrence
i.
consistent w/ Lopez
1. pointed out fed govt sovereign in own sphere
2.
this is fed elections  fed sphere  fed sovereign
ii. weakness
1.
assuming fed elections are inherently matter of fed sovereignty  Thomas only
things in fed sphere are enumerated powers
XI. Dual Sovereignty
a.
Rule: State sovereign interests protected by procedural safeguards within the structure of the
federal system, rather than judicially created limitations
b.
National League of Cities: congress can regulate states, but not within “traditional state
functions”
c.
Garcia: S.Ct. has abandoned “traditional state function” doctrine  overruled National League
of Cities
i.
facts: San Antonio Transit System did not adhere to Fair Labor Standards Act
ii.
holding: transit authority not immune from minimum wage requirements of Act
iii.
Blackmun joined majority in National League of Cities, but writes majority Garcia
1. 5-4 decision
iv. unworkable
1. the line between traditional state functions and non-traditional state functions is
impossible to draw in any coherent way
2. States are laboratories of democracy
a. all states regulated, so all equally able to pursue activities even if
unorthodox
b. Bernstein’s response: states want sovereignty
i. state laboratory is byproduct of federalism not reason for it
v. Inconsistent w/ established principles of federalism
1. sovereignty of states limited by Constitution
vi. not clear if any zone of activity that is reserved for the states free from congressional
legislation
1.
state sovereign interest protected by procedural safeguards within the structure of
the federal system, rather than judicially created limitations
2. weakness
a. Senate is elected by popular vote not state legislatures
b. Electoral college: although still vote state by state, presidential election
not based on state interests

30
c.
16th Amendment: fed income tax  larger fed govt. growing at expense of
states
d. history has shown there needs to be active protection of states
vii. Powell’s dissent
1. ignoring principles of stare decisis
2.
attack S.Ct. for overruling Wertz with National League and then overruling it in
Garcia
3. attacking Blackmun for switching teams
a. Powell modern conservative, Blackmun growing liberal
4.
should not let political process police a constitutional boundary
5. S.Ct. should state the law
d.
New York v US: US can tax the states/state entities
i. must tax the states the same way it taxes private enterprises
e.
Maryland v Wertz: Fed govt. can regulate states so long as the regulations would not lead to utter
destruction of the state
f. overall trend: expansion of fed govt. power over state
g.
No commandeering Allowed  the States are not Sub-agencies of the Fed Government
i. Congress cannot give a state legislature a direct order to enact a particular law
1. New York v US
ii. Congress cannot give a state’s executive branch to enact or enforce a federal law
iii.
Printz v United States (Scalia Majority 5-4)
1.
Brady Handgun Act required state CLEO to do background check on prospective
handgun purchaser
2.
if the CLEO chose to notify the dealer of an illegal sale, she had to provide
written reasons of why the sale was illegal
3.
Brady Act unconstitutional  commandeering
4. Constitution only requires state Judicial branches to apply fed law
a.
Supremacy Clause  doesn’t mention state legislature/exec branch
5. Textual argument: under Articles of Confederation there really was no national
exec branch so state exec branches were used
a.
the very existence of an exec branch at national level implies the exec and
not the states are relied upon to execute national laws
6.
the law is not proper for executing laws so can’t rely on necessary and proper
clause for authority
a. not proper to directly interfere w/ state authority
7. residual state sovereignty
a.
10th amendment made explicit residual state sovereignty in conferral of
enumerated powers of congress
8. Stevens Dissent
a.
looks to Garcia that protection of state sovereignty lies in the structure of
fed govt. itself

31
b.
majority decision harms federalism  now create vast bureaucracies to
implement policies
h.
Underlying principles of Garcia challenged by Printz
i.
make-up of court is changing, 2 conservative justices left  don’t know how similar
cases will go down
ii.
Reno v Condon 2000
1. Driver’s Privacy Protection Act
2.
Printz didn’t govern b/c states weren’t being forced to do anything, they were
being prohibited from doing something
3. 9-0 decision
4.
is Garcia being accepted 9-0, court not willing to broadly expand Printz?
XII. Sovereign Immunity
a.
11th Amendment
i. applies to diversity jurisdiction
ii. each state is sovereign in federal system
iii. in the nature of sovereignty the state cannot be sued w/out State consent
b. States have Sovereign Immunity UNLESS
i. explicit statement from congress; AND
ii. acting within power that allows congress to abrogate
1.
law passed under section 5 of 14th amendment (enforces 1st 4 sections)
c.
Ex Seminole Tribe v Florida
i. statute: tribes permitted to sue states in fed court when process of negotiating a gambling
compact between state and tribe breaks down b/c of state’s alleged bad faith
ii.
statute met 1st abrogation requirement, provided unmistakably clear state of intent to
abrogate
iii.
2nd requirement not satisfied
1.
Congress must be acting pursuant to section 5 of 14th amendment
2.
court overrules Pennsylvania v Union Gas
a. case relied on interstate commerce clause to abrogate state sovereignty
b. allowing this would eliminate almost all state sovereignty at the whim of
congress b/c almost anything is considered a commerce power
c.
5th in Union Gas agreed w/ conclusion not reasoning
iv. recognized common-law doctrine of state sovereignty
v. Souter dissent
1. common law always subject to legislative amendment
2. new constitutional structure should inform common law and change it to conform
to dual sovereignty
3.
Ex parte young does apply, majority putting a novel gloss on it
d.
Ex parte Young: if state official doing something illegal, not action on behalf of state
i. thus plaintiff can sue state official for injunction to prohibit state official to continue the
behavior which indirectly restrains state
ii.
does not apply to Seminole Tribe
e. Alden v Maine
32
i. Kennedy majority
1.
the doctrine of state sovereign immunity from suit by private individuals in its
own courts is unalterable except w/ constitutional amendment
f.
When Congress abrogating states’ sovereign immunity from suits for money damages its
exercise of powers under section 5 of 14th amendment must be congruent and proportional
i.
Nevada Department of Human Resources v Hibbs (Rehnquist 6-3)
1. family medical leave act that authorizes one who alleges a violation to sue his
employer
2.
congruence: only abrogate on the strength of finding a widespread pattern of state
activity that violates 14th amendment
3. intermediate scrutiny used for sex discrimination cases
4.
Congruence  discrimination here  widespread discrimination by private
sector
5. Proportional: points to unspecified limitations on applicability of FMLA
6. Scalia dissent
a. Majority grouping all states as discriminators on the actions of only some
b.
11th amendment applies to states individually
i.
just b/c some states violating 14th amendment does not mean all
state sovereign immunity should be abrogated
7. Kennedy Dissent
a.
not a remedy for violations of 14th amendment  entitlement program
b. connection to violations is tenuous
8. Why is Rehnquist writing this opinion
a. big federalist and not known for stretching for sex discrimination
b. sides w/ majority to assign opinion to self?
c. prevent O’Connor from flipping?
d. principles not disturbed
i. application of underlying doctrine
ii. later opinions can be factually distinguished
ii. Garrett
1.
ADA provision that allowed a private lawsuit against states for monetary relief in
cases where employment discrimination was alleged was unconstitutional
(beyond § 5 14th amendment power)
2. unlike racial discrimination, discrimination based on disability status must only
meet rational basis test
3. discrimination likely justifiable under rational basis test
iii. Tennessee v. Lane
1.
involved an interference w/ due process  heightened standard of review
2.
followed Hibbs looser showing of congruence and proportionality
XIII.
Individual Rights and State Power -- Contracts Clause
a. purpose: states that subvert private contract invite discord and even civil war
i. Federalist #44

33
1. citizens can expect govt. to enforce contracts
2. protecting Americans’ personal security and private rights
ii. Joseph Story
1.
illustrates morality of keeping obligations  states should encourage
2. people can’t be secure if property is dependent on whims of govt.
3. rights of personal property should be held sacred
b.
Contracts Clause prohibits states from passing legislation that applies retrospectively
i. a state can pass legislation that affects future contracts
ii. Ogden v Saunders
c. the state cannot impair the obligations of a contract for which the state bears responsibility
i.
Fletcher v Peck (Marshall)
1.
Gunn buys land from GA through land grant, sold to Peck, who sold to Fletcher
2. GA legislature rescinded prior land grants
3. natural law reasoning
4. Rescission of prior land grants unconstitutional
a.
law that negates all property rights established under an earlier law is
unconstitutional for violating the Contract Clause
5.
Johnson’s concurrence
a.
contrary to reason and natural law the state should be permitted to revoke
contracts  response: would always claim to be revoking b/c of
corruption
b. worried about interfering w/ state police/eminent domain powers
d.
Impairment clause applies to executory and executed contracts
e. State Legislature cannot bargain away police power and contracts clause can’t prevent this
i. Stone v Mississippi
1.
Miss legislature gave charter to run lottery  later revoked
2.
permitted to revoke  acting within police power
a. includes right of state to protect morals of state citizens
b. lotteries area moral pestilence
ii. problem: police power is somewhat undefined
f.
Since contract clause is general, you can interpret it broadly in an emergency to protect public
interest as part of police power
i. 5 criteria
1. the state legislature had declared in the Act itself that an emergency protection
was needed
2. state law was enacted to protect a basic societal interest, not a favored group
3. the relief was appropriately tailored to the emergency that it was designed to meet
4. the imposed conditions were reasonable
5. legislation was limited to the duration of the emergency
6.
* all 5 must NOT be met to be constitutional  balancing test
ii.
Home Building & Loan v Blaisdell 1933
1. depression

34
2.
Minnesota law delayed period of time in which mortgage foreclosures could be
finalized, extend the period of time in which those in default could redeem and
allow defaulters to remain in home
3.
met all 5 factors so not an impairment on contracts
4. Southerland Dissent
a. emergency does not furnish the occasion for fed govt to seize authority
they couldn’t otherwise exercise
b. constitution can’t mean 1 thing in an emergency and 1 thing during
another time
iii. Allied Structural Steel Company v Spannus
1. Allied gave pensions plan, didn’t meet new state pension law
2. law did not meet any of 5 characteristics so violation of impairment clause
a. retroactively modified compensation that Allied agreed to pay, changed
obligations in an area where reliance was vital
3. adds additional factor
a. operating in an area already subject to a lot of regulation
b. No, pension benefits not generally subject to state regulation
XIV.
Individual Rights Limitations and State Power – Applying Bill of Rights to States
a. Principle reason for adoption of Constitution and rejection of Articles of Confederation was the
need to curtail state sovereignty
b.
Prior to the 14th Amendment, the Bill of Rights applied only to the federal govt NOT states
i. Barron v Baltimore
1.
the 5th amendment did not prevent the City of Baltimore from taking private
property w/out just compensation
ii. textual reason
1. in constitution specific provisions that explicitly say they apply to states
2. nothing in bill of rights that says it applies to states
3. framers knew how to specify amendments to the states if they wanted to
a. ex post facto clause, contracts clause
4. weakness
a. the clauses that specifically mention the states ONLY apply to the states
iii. Historical reason
1. bill or rights was enacted to protect people from fed govt.
2. applying to states would defeat original purpose of bill of rights
iv. despite this, several states determined bill of rights applied to states
c. Now, Selective Incorporation Test
i.
protect rights in Bill of Rights that are essential in the scheme of liberty
1. fundamental rights
2. rights implicit in order of liberty
3.
ex not fundamental
a.
right to an indictment in 5th amendment
b.
right to trial by jury 7th amendment
ii. Palko
35
1.
Palko appealing being tried twice for murder  double jeopardy
2. double jeopardy did not subject him to hardship so acute and shocking that polity
could not endure it
3. double jeopardy does not violate those fundamental principles of liberty and
justice which lie at the base of all our civil and political institutions
4. not incorporated against states
5. *later overruled
6. weakness
a.
if due process includes freedom of speech, why is there a 1st amendment
i. emphasis
ii. explain what due process means and includes
iii. possible redundancy, but not contradiction
b. not protected under privileges and immunities
i. would have eliminated redundancy
ii.
didn’t do this b/c contradictory to Slaughterhouse
iii. Adamson v California
1. CA commented on his failure to take stand and testify during murder trial
2.
5th amendment right against self-incrimination was not implicit in the concept of
ordered liberty
a. not incorporated against states
3. Frankfurter concurrence
a. if framers wanted to incorporate against states they easily could have said
so
b. looking to natural rights (unusual for him)
c. believes test to be subjective to ideals of justices
d. look to heritage of past to determine which rights are fundamental
4. Black dissent
a. every right in bill of rights protected from states, but only rights in bill of
rights
b. creating bright-line objective test
i. avoid subjective judicial activism
c. bill of rights is an objective source
i. framers wrote down most essential rights
ii. these rights are fundamental
d. weaknesses
i. argument against BOR was fear that people would think list was
exhaustive
ii. framers describe BOR as “chiefly defined” meaning not
exclusively defined
iv.
Duncan v Louisiana 1968
1.
14th amendment guarantees a right of jury trial in all criminal cases which were
they to be tried in fed court would come within the 6th amendment’s guarantee
2. Duncan, black, convicted of battery, denied jury trial
36
3. S. Ct. tended to incorporate criminal procedures when faced w/ sympathetic black
defendants from the south
4. Harlen dissent
a.
nothing fundamentally unfair about trial  no particular reason jury trial
would be inherently fairer than bench trial
b. disagrees w/ selective incorporation
d. Congruence and proportionality test
i.
When Congress passes a remedial law that intrudes into the legislative sphere of the
states, there must be a congruence between the means used and the ends sought to be
achieved. The appropriateness of remedial measures must be considered in light of the
evil presented
ii.
exercising authority under Section 5 14th amendment
iii. City of Boerne v Flores
1.
Congress passed RFRA as reaction to Smith decision allowing states to outlaw
peyote in applicable rationally based drug laws although peyote used in religion
a.
Smith facially neutral law aimed at problem that also involved religious
rights  not entitled to accommodation
b. RFRA required strict scrutiny whenever a state law of federal application
substantially burdens free exercise of religion
2. church wanted to tear down building, violated historic building zoning laws
3.
S. Ct. did not defer to president’s or congress’s constitutional interpretation and
held RFRA unconstitutional  exceeded § 5 14th Amendment powers
4. RFRA not proportional to evil presented
a.
last case over religious discrimination was over 40 years old, distinguished
from voting rights  no direct analogy between racial discrimination and
religious discrimination
b. Bernstein’s response: minority religions don’t get what they want
legislatively and are often excluded
i. ex Sabatarian couldn’t be a fireman if firemen are required to work
on Saturday
c.
prior acts like FMLA in Hibbs pretty discrete issues
i. RFRA extremely broad and attacks ability of states to enforce all
kinds of laws
ii. the case is about zoning, doesn’t really relate to religious
discrimination
iii. every possible regulation could potentially interfere w/ someone’s
ability to exercise their religion
d.
in this context, Congress does not have a type of necessary and proper
power  need strong showing of need for remedial legislation
i. different than in racial discrimination contest
nd
e.
2 amendment is incorporated against states
i.
Heller: ban on firearms unconstitutional at federal level

37
ii.
McDonald v Chicago(plurality)
1.
S.Ct. ignores 19th Cen. precedent that 14th amendment does not protect right to
bear arms
a.
cases occurred prior to selective incorporation  jurisprudence evolving,
not reason to adhere to these precedents when haven’t done so when
interpreting other amendments
2.
use standard from Palko  whether right is fundamental to liberty
a.
2nd amendment is fundamental
i.
long recognized, in many state constitutions, right to self-defense,
historical fundamental right to American people, King George III
attempted to de-arm colonists  huge outcry
b. plurality
i. look to history, don’t look to moral philosophy or other western
societies
ii.
doesn’t really look to modern society  ancient right w/ modern
resonance
c. dissent
i. lead to carnage in the streets, must look to modern realities relating
to right at issue
ii.
temper history w/ modern realities
3. Scalia Concurrence
a. mocks originalist argument that privileges and immunities clause should
be used to incorporate right to bear arms during oral argument
b. more concerned w/ effects of the interpretation
i. locate nexus of substantive rights in privilege and immunities
clause could lead to gay marriage, health care, etc
4. Thomas Concurrence
a.
suggested overturning Slaughterhouse  right to bear arms privilege of
American people
b. more pure form of orignalism
c.
quotes various people from founding era that 14th amendment
incorporates bill of rights and other rights
d. distinguished from Black
i. not making original public meaning of drafters and average voters
argument
5. Stevens dissent
a. dislike for gun rights
6. Breyers dissent
a. this right puts people’s lives in danger
XV. Individual Rights and State Power --State Action
a.
13th Amendment abolishes slavery or involuntary servitude
i. also abolishes “badges of slavery”

38
1. protects against exclusions from very basic rights, due process, contracts, etc
th
b.
14 amendment does not control private action only state action
i. do not want to give police power to Congress
c.
Civil Rights Act Cases 1883
i. public accommodations portions of Civil Rights Act of 1875 unconstitutional
1.
beyond § 2 of 13th amendment and § 5 14th amendment
ii. exclusion from public accommodations not a badge of slavery
1. customs that have force of law that take something from individual w/out consent
2. ex serfdom, slavery, Black Codes, sun-down towns
3. free people of color prior to civil war were not slaves and had basic rights of free
people, but didn’t have civil rights
th
iii.
14 amendment only protects against state action
1. gives people basic civil rights
iv. Harlan Dissent
1. being excluded from public accommodations is a badge of slavery
2. public accommodations exist through public license, essentially a state actor, so
must act in non-discriminatory way
3.
civil rights include not just traditional rights to inns and trains but more peripheral
access to theaters
a.
if have a license then acting as a state  can’t discriminate
4.
13 and 14th amendment not redundant  14th amendment clarifying
th

a. freedom from racial discrimination


d. Shelley v Kramer
i.
restrictive covenants  can’t sell to blacks  neighbors can sue to enjoin
ii. discriminatory state action
1. judges in state courts enforced covenants
2. not merely enforcing a contract as a contract
3. enforcing terms of contract against someone who is not a party to the contract
a.
buyer and seller parties, 3rd party would need legitimate interest to
intervene  racial discrimination is not legitimate interest
4. restraints and alienation strongly disfavored
5. restrictive covenants only enforced against minorities
a.
if they were operating against whites, courts would not enforce  equal
protection problem
6. system of encouragement of discrimination by local, state, even fed govt
a. states cannot have explicit racial zoning
b. states circumvented
i. building highways to separate races
iii. limited to facts b/c of 1 statement
1. equal protection of the laws is not achieved through indiscriminate imposition of
inequalities
2.
Bernstein  need to enforce everyone’s rights

39
a.
if we took this seriously all the rules that applied to govt. would apply to
private actors
e. Due process does not provide individuals affirmative rights to governmental aid
i. even if the aid may be necessary to secure the life, liberty, or property interests of which
the government itself may not deprive the individual
f.
Unless Special relationship  state must take action
i. must be in govt. custody
1. ex prisoners, those in mental institutions
g.
DeShaney (Rehnquist)
i. child abused by father, social workers reason to believe child was abused, but did not
remove child
ii. father beat child so bad he is now brain damaged
iii.
No special relationship  child not in custody of state
iv. state’s failure to protect individual against private violence is not a violation of Due
Process
v. motivation
1.
cabining prior liberal courts discretion of 14th amendment
2. don’t want to turn courts into social service agencies
vi. Dissent
1. Special relationship did exist
2. if govt. prevents you from allowing to engage in self-help they must intervened
3. here govt. has crowded out others from assisting child
a. only thing to do when there is abuse is call state services
b. relationship prevented anyone else from helping child
4. govt. did violate due process by not protecting child
XVI. Individual Rights and State Power--Procedural Due Process
a. Liberty Interest
i.
not just freedom from bodily restraint
ii. also the right of individual to contract, engage in common occupations, acquire useful
knowledge, marry, establish home, bring up children, worship God in own way, and
enjoy privileges long recognized as essential to the orderly pursuit of happiness by free
men
b. Property interest
i. must have legitimate claim of entitlement
c. Board of Regents v Roth
i. hired as assistant professor for 1 year, contract not renewed
ii. Roth did not have a constitutional right to a statement of reasons and a hearing on the
University’s decision not to rehire him for another year
iii. no violation of liberty interest
1. in declining to re-employ Roth, Univ. did not impose such a stigma or disability
that foreclosed his freedom to take advantage of other employment opportunities
2. Univ. gave Roth what they agreed to, 1 year of employment
iv. no violation of property interest
40
1. terms of employment secured property interest for 1 year
2. no provision for renewal, no property interest
v. Dissent
1. at this time movement to include positive rights
2. Marshall
a. every citizen who applies for govt. hob is entitled to it unless the govt. can
establish some reason for denying employment
3. Douglas
a.
discuss violation of 1st amendment for Roth’s view on civil rights
b. says he was fired
d. Goldberg v Kelly
i. Due process requires pre-termination hearings for welfare recipients
1. right to trial, cross-examine witness, right to counsel
2. S.Ct. just coming up w/ what it thinks is a fair system
ii. violation of property right
1. termination of aid pending resolution of a controversy over eligibility may
deprive an eligible recipient of the very means by which to live while he waits
2. court assuming welfare a property right (conceded by NY)
3. court using constitution to interpret own morals and ideal
a. purpose to give well-being to all people in the borders
i.
ridiculous  fugitive slave act
iii. balancing test
1. the extent to which procedural due process must be afforded the recipient is
influenced by the extent to which he may be condemned to suffer grievous loss,
and depends upon whether the recipient’s interest in avoiding that loss outweighs
the governmental interest in summary adjudication
2. here government interest of conserving essential resources are not overriding in
welfare context
iv. Black’s dissent
1.
objects to judicial law-making  majority just inserting own morals and ideals
into the opinion
v. somewhat limited to facts
e.
Mathews v Eldridge (Berger Court)
i.
challenging act of fed govt., not state, so Due Process Clause in 5th Amendment, not 14th
ii.
Eldridge disability benefits were terminated after review of medical records  right to
seek reconsideration
iii.
Evidentiary hearing is not required prior to the termination of disability benefits
iv.
Distinguishing Goldberg
1. if you’re on welfare you have no other means of income, but if you are on
disability you have other means of income ie welfare
2.
more conservative justices than on Goldberg court
3.
more elaborate procedures available than in Goldberg

41
a.
medical examiner  assuming neutral party
b. no right to oral presentations, benefits cut off for 1 year w/out hearing
4. interpreting facts/evidence in way so they don’t have to give benefits
v. this case is the standard
vi. TEST
1. how elaborate opportunity to review is
2. nature of review process
a. was it objective
3. weigh societal and administrative costs against benefits to individual
4. *pretty subjective test
XVII. Numerical Equality-One Person One Vote
a. Voting Reapportionment
i. Equal Protection Context
ii. Rule: Once you grant individuals the right to vote for a particular office, each vote must
be worth the same
1. no vote dilution
iii. Gray
1. one person/one vote principle
iv.
Reynolds v Sims 1964 (Warren Court-liberal)
1.
Alabama state legislature malapportioned  no action in decades
2. devised new reapportionment schemes
a. neither came close to achieving numerical equality
b. representation by county
3. Schemes deemed unconstitutional
4.
S.Ct. doesn’t care what your reasoning is  must draw lines by population
a. no vote dilution
5. not extended past 1 person 1 vote principle
6. Equal Protection rationale
a. constitution’s equal protection rights are individual and personal in nature
b. 1 person, 1 vote, no dilution
7. both houses in state bi-cameral legislature must be apportioned as nearly as is
reasonably possible
a.
no federal analogy, political-subdivision boundaries can be taken into
account, but not when doing so detracts appreciably from that population
ideal
8. Dissent: Harlan
a. critiques living constitutional jurisprudence of majority
b. voting not considered a civil right
c.
political right protected by 14th and 15th amendment
d.
no one thought the federal system was inherently unjust to have different
apportionment in the Senate than in the House
b. Bush v Gore

42
i. still in Equal Protection context
ii. Florida recount unconstitutional
iii. rational basis review
1. persons classified on non-suspect basis
2. fails
iv. classification: disparate treatment
1. disparate treatment given those voters whose defective ballots were counted in re-
count compared to those voters whose defective ballots were not counted in re-
count
2. re-count teams using different standards
a. Majority thinks this is arbitrary and irrational not to have a mandated
uniform system
3. not race or sex discrimination so rational basis
4. Souter and Breyer although in dissent agreed with this analysis
a. just wanted to remand to Florida courts and have them create uniform
system
v. pur curiam Majority
1. addressing deadline problem
a.
can’t re-count votes after deadline  violate Florida constitution
vi. individual citizen has no federal constitutional right to vote for electors for the President
1. states decide how the electors for the Electoral College are chosen
2. state can choose method although all have chosen voting method
vii.
Distinguish from Sims
1. Sims concerned about votes being worth less, here we are concerned about votes
not being counted
XVIII. Privilege and/or Immunities Clause
a.
Article IV: Privileges and Immunities
b.
14th Amendment: Privileges or Immunities
c. distinction seems to be irrelevant in grand scheme
d. residents and non-residents must receive equal treatment by the states
e. exception
i. state governments are allowed to discriminate with regard to their own natural resources
1. resources are owned by state/tax payers so if they want to reserve the resources
for the state they can
2. states inherent authority over natural resources
f.
RULE: limited to fundamental rights that bear on the vitality of the nation as a single entity
i.
Exception: States can discriminate when
1. substantial reason for difference in treatment
2. the discrimination against non-residents bears a substantial relationship to the
State’s objective
a. Court may consider availability of less restrictive means
3. ex Fundamental Rights
a. right to travel
43
b.
right to practice law
ii. * Typical Berger Court Balancing
g. Supreme Court of New Hampshire v Piper
i. New Hampshire’s residency requirement for bar membership unconstitutional
1. deprives nonresidents their rights under Privileges and Immunities Clause
ii.
*S. Ct.’s current approach
iii. the practice of law is a fundamental right
1. important to national economy
2. out-of-state lawyers represent unpopular claims
iv.
Piper lives very close to New Hampshire  undermines state’s arguments
1. even if Piper lived far away could have local counsel for emergency hearings
h.
Shapiro v. Thompson 1968
i. welfare applicant denied benefits b/c lived in state less than 1 year
1.
part of Goldberg v Kelly welfare is a right movement
ii.
Denying welfare assistance to needy families who do not meet a residency requirement,
but would otherwise qualify is unconstitutional unless the denial is supported by a
compelling interest.
iii.
fundamental right is right to travel from state to state  receive strict scrutiny
1. she is a traveler who decided to stay in the state, so here right of travel is being
infringed if she can’t receive welfare
2.
if you know a state has passed a policy that will make it impossible to survive the
state is discouraging you from setting up residence in that state
i. Saenz v. Roe
i.
plaintiffs can’t just rely on Shapiro  new more conservative court that doesn’t want to
give strict scrutiny to fundamental rights
ii.
California passed a law that awarded less welfare benefits to residents who lived in
California for less than 12 months than it paid other residents.
iii.
Under the Privileges and Immunities Clause, a State must provide the same benefits to
new residents as it does to other residents.
iv.
Expanded the understanding of the right to travel interstate (did not find constitutional
right to welfare)
1.
right of a citizen of one State to enter and to leave another State
2.
the right to be treated as a welcome visitor rather than an unfriendly alien when
temporarily present in the second State
3.
for those travelers who elect to become permanent residents, the right to be
treated like other citizens of that State
rd
v.
3 component of right to travel at issue
1. CA discriminating against new residents
2. need for welfare unrelated to length of time that they have resided in CA
3.
CA’s fiscal savings justification does not wash when the citizenship rights
guaranteed by the 14th Amendment are implicated
4.
distinct from tuition  benefit not immediately consumed

44
vi. Thomas dissent
1. right to travel not at issue
2. the right at issue is the right to receive equal benefits
3. this is not a fundamental right privileges and immunities clause was meant to
protect
a. a benefit established by positive law not a fundamental negative right
vii. Rehnquist dissent
1. welfare and right to travel are unrelated and two separate rights
2.
durational residency requirement are allowed on the rational basis for the state to
verify recipients are not trying to de-fraud the system

45