Article III Cases

Marbury v. Madison and Notes (pp. 1-9)  a law repugnant (Section 13 of the
Judiciary Act of 1789) to the constitution is void, and courts, as well as other departments, are
bound by that instrument. The court can have jurisdiction over the case but not the particular
case in controversy, “because this is a political decision regarding the executive appointment
power  see Article III, § Cl. 2 – this case not among the original jurisdiction as specified
in Art. III. Judicial Review is established here.

• It creates the authority for judicial review of executive actions. Individual rights and
government duties clash along with those duties that the executive has discretion to act.
The only political process is the check on the executive branch (so as to prevent abuse of
power?).

• Congress cannot expand the original jurisdiction of the Supreme Court. Article III
authorizes the maximum jurisdiction of the federal courts. Congress cannot authorize
federal courts to hear cases beyond what is specified in Art. III, and federal courts cannot
gain jurisdiction by consent.

• Establishes the authority for judicial review of legislative acts. It declares

unconstitutional a provision of federal law (The judiciary Act of 1789, that authorizes the
supreme court to grant mandamus on original jurisdiction.)

• Mainly, it establishes the authority for judicial review of executive and legislative acts.

• Holds that Art. III is a ceiling for the court’s jurisdiction to hear “cases and
controversies” to only those enumerated by the constitution.

• Caveats: Judges are the counter majority, they are not accountable, and we worry about
them imposing their own policies on the public without being responsible for their
actions politically.

Cases and controversies:

-congress cannot allow original jurisdiction beyond the situations enumerated in the constitution.
Enumeration marks the extent to which the court has jurisdiction over cases.
-the judge’s oath to uphold the constitution allows for judicial review and the judge would not be
doing that if he were to uphold unconstitutional laws.
-constitution reigns supreme as the constitution is held a s the supreme law of the land.
-the duty of the judicial department is to determine what the law is.
-Marshall established judicial review while declaring unconstitutional a statute (judiciary act of
1789) that he read as expanding the court’s power (before being struck down the court, the act
held that the court could review political decisions and grant mandamus). He basically said that
we have the power to strike down laws as unconstitutional that expand our power. We are
making a power and taking a power simultaneously, however, the power that allowed them to
take a power away from themselves proved to be an enormous power for the history of the court
and our nation.

Martin v. Hunter’s Lessee  “The constitution creates a supreme court and gives congress
discretion whether to create lower federal courts…state attachments, prejudices, jealousies,
interests might sometimes obstruct, or control, or be supposed to obstruct or control the regular
administration of justice. Furthermore, supreme court judicial review is essential to ensure
uniformity in the interpretation of federal law.” The supreme court can review state decisions
because otherwise the court could not hear any decisions other than those within original
jurisdiction.

McCardle v. U.S.  congress’s intention to restrict the courts jurisdiction for appellate review
pursuant to the exceptions clause is constitutional and the court finds it irrelevant to question
congress’s intent to impact subsequent laws, as the court will not have jurisdiction to hear the
case anyway as the constitution allows for its jurisdiction to be stripped. In this case, the court
held that congress’ repeal of their jurisdiction on a particular issue was express and precluded
them from hearing this case.
VS.

United States v. Klein (pp. 37-39) President could pardon those who had property
seized in the civil war so they could have their property returned. Congress adopted a statute that
said a pardon was inadmissible as evidence for a claim because it was an express disclaimer of
guilt, therefore, the supreme court would have no jurisdiction over claims for the return of
property.
The court does not have jurisdiction here so it must dismiss the case and cannot rule any which
way because it does not have the authority to hear the case. The court notes that the congress is
infringing on the executive branch by trying to restrict its powers by saying that pardons will be
deemed invalid. The issue was not justiciable by the courts

Can Congress strip the federal courts of jurisdiction pursuant to the "exceptions clause" in
Art. III?

• -In McCardle the court held congress can limit the court's appellate jurisdiction, where
congress repealed a law that granted the court jurisdiction to hear habeus corpus cases,
and because congress did not have the authority to hear McCardle's case, the takeaway
was that congress has the authority to prevent the supreme court review of constitutional
issues. Therefore, the fact that congress intends to change the substantive law by limiting
jurisdiction is deemed irrelevant, as the court can only examine congress power under the
constitution--and the power to make exceptions to the appellate jurisdiction is express.
Some proponents argue that McCardle holds that congress has the authority through the
exceptions clause to limit the court's jurisdiction to not hear constitutional issues. This
would essentially overrule Marbury and preclude the court from checking the
 congressional power and subject the executive branch to blindly enforce unconstitutional
laws that the court could have no power to review.

• -In Klein, however, the court found that congress cannot limit the court's jurisdiction in a
manner that violates other constitutional provisions, like due process and takings without
just compensation, and it cannot limit an executive power, like the pardon power."

This issue remains unresolved in a couple of respects. While under the exceptions clause,
congress can legislate limitation on the court's appellate jurisdiction to hear certain cases,
however, it cannot do so if congress is seeking to advance its goals to violate other constitutional
provisions like DPC or takings or infringe on solely executive powers like the "veto power" or
"pardon power."

Justiciability Doctrine (5)

 most important limit on the federal judicial power. constrains courts
power of judicial review and operate before the court hears the case based on the merits. While
jurisdiction might be good, the court lacks the ability to hear it.
“Cases and controversies” – enumeration constrains the courts actions and determine who
can sue and where they can sue.
The prohibition against:
1. Advisory opinions – courts cannot offer prospective commentary because that is
breaching the lines of the legislative branch and this does not include giving congress
advice on what is constitutional. The court can only decide something when a case is in
dispute.
2. Standing - ELEMENTS:

a. a plaintiff must allege personal injury;

b. fairly traceable to the defendant’s allegedly (CAUSATION); and

c. unlawful conduct and likely to be redressed by the requested relief.

i. Generalized Grievance doctrine: claim cannot be based on what is
hypothetical. Damage or harm must be based on ACTUAL HARM or
IMMINENT HARM. See MA v. EPA cases must show clear injury
that the plaintiff will suffer personally or will suffer imminently. Global
warming injury upheld for MA against EPA because harm was imminent,
despite the court having definitive proof that MA was actually being
harmed by greenhouse emissions.
3. Ripeness – determines when review is appropriate and when litigation may occur. The
plaintiff must demonstrate that harm has occurred or will occur imminently. Its unfair to
 require a person to violate a law in order to challenge it, therefore the Declaratory
Judgment Act permits people to avoid this option and obtain pre-enforcement review of
statutes and regulations. EXCLUDES MATTERS THAT HAVE YET TO BE
ENFORCED. WHEN SOMEONE CHALLENGES A LAW THAT HAVE NOT BEEN
ENFORCED YET, IT’S NOT RIPE TO LITIGATE.

4. Mootness – a plaintiff must present a live controversy at all stages of the court litigation
for the legal issue to not be deemed moot. If an event subsequent to the initiation of the
lawsuit occurs that resolves the matter, the conflict is moot.
a. There are three exceptions to the mootness doctrine:

• wrongs capable of repetition but evading review.

• Short injuries that will be resolved before the case is heard
• if there is an injury likely to recur in the future and it is possible that it
could happen to the plaintiff again.

5. Political Question: Baker v. Carr  Test determined for knowing

when an issue falls under the Political Question Doctrine of non-
justiciability:

• Textually demonstrable commitment of the issue to a political branch

o Impeachment

o Foreign Policy

o Executive War powers

• Lack of discoverable and manageable standards

• Involves an initial policy determination more appropriate for non-judicial

discretion

• Would involve lack of respect for other branches

• Would involve adherence to a political decision already made

• Would result in embarrassment from multiple pronouncements from each

department on a constitutional question
ESSENTIALLY:
1. FOREIGN POLICY
2. IMPEACHMENT
3. CONGRESSIONAL SELF-GOVERNANCE
4. SOME ELECTORAL PROCESS QUESTIONS
 5. ARTICLE V. PROCESSES.
6. VETO POWER

These arguments are prudential as they define separation of powers and prevent the court from
interfering in other branches.

****

Commerce Clause Cases

Gibbons v. Ogden (pp. 141-145)  “NY/NJ Ferry” Case defines congress’s
commerce power  court says that the federal government has broad power here. See
Amendments 13-15. The court uses commerce clause and the 10th amendment. (PRO
FEDS)

Carter v. Carter Coal Co. (pp. 145, 147-149)  Case invalidates an important piece
of New Deal legislation. Interstate commerce is not directly affected here! (PRO STATE)

A.L.A. Schechter Poultry v. United States (pp. 151-154)  Rejects the stream of
commerce approach that would allow federal regulation to intrastate trade. (PRO STATE)

Hammer v. Dagenhart (pp. 154-157)  YES, they do have the power per the
Commerce Clause in the constitution. And, the court notes that congress has the incidental
power to prohibit movement of ordinary commodities between states. This is a matter of
LOCAL regulation. So, basically, if they do actually cross state lines, then the Feds get
them, but if they are just being made and nothing else, then it’s subject to the state’s
authority. PRO TENTH AMENDMENT CASE; LAST OF IT’S KIND. (THIS IS BAD
LAW) (PRO STATE)

NLRB v. Jones & Laughlin Steel Corp. (pp. 159-163)  This case is distinguishable
from Carter Coal because this corporation is a HUGE presence in the national product
distribution. EXPANSIVELY DEFINE THE SCOPE OF CONGRESS’S
COMMERCE POWER. They reject the 10th amendment. (PRO FEDS)
United States v. Darby (pp. 164-166)  Without a national standard, the states
would engage in a “race to the bottom” (issue 1: goods)(issue 2: employees).
CONGRESS CAN REGULATE BOTH GOODS AND EMPLOYEES ENTERING
AND MAKING PRODUCTS ENTERING INTERSTATE COMMERCE because
every state undercutting each other in trade process would have a
“SUBSTANTIAL EFFECT” on Interstate commerce. EXPANSIVELY
DEFINE THE SCOPE OF CONGRESS’S COMMERCE POWER. They
reject the 10th amendment. THIS CASE IS STILL GOOD LAW (PRO FEDS)
Wickard v. Filburn (pp. 166-168)  (BROADEST CASE) “wheat farmer
case.” AGGREGATION JUSTIFIES GOVERNMENT ENCROACHMENT. THE COURT
CONSIDERS THE “SUBSTNTIAL EFFECTS TEST:” “THAT HIS EFFECT ON THE
DEMAND MAY BE TRIVIAL IS NOT ENOUGH TO REMOVE HIM FROM THE
SCOPE OF FED REG WHERE HIS CONTRIBUTION ALONG WITH OTHERS IS FAR
FROM TRIVIAL.”EXPANSIVELY DEFINE THE SCOPE OF CONGRESS’S
COMMERCE POWER. They reject the 10th amendment. (PRO FEDS)
INSERT  The 14th Amendment of the Constitution

Heart of Atlanta Motel Inc. v. United States (pp. 169-171)  “Civil Rights
Case of 1964” The court uses evidence that expresses the disruptive effect racial
discrimination has on interstate commerce. Court upholds the act as constitutional. (PRO
FEDS) (GOOD LAW)

Katzenbach v. McClung (pp. 171-172)  THE COURT APPLIES HERE A

“RATIONAL BASIS” THAT BROADLY ALLOWS CONGRESS TO FIND A WAY TO
IMPART ITS LAWS OVER THE STATES IF COMMERCE IS FOUND TO BE
AFFECTED ON A RATIONAL BASIS GIVEN THE CIRCUMSTANCES. Just because
the food purchased alone from out of state does not, by itself, meaningfully affect interstate
commerce, under Wickard, if considered among all of the other places that also
discriminate, the aggregate would disrupt interstate commerce and therefore Congress
does have authority here. The court finds that there is a rational basis under Gibbons to
interfere as the government is protecting commerce on the whole even if each of the
infractions are occurring within the states. (PRO FEDS)

National League of Cities v. Usery (pp. 174-178)  – (CATEGORY GAMES) the

10th amendment between 1937 & 1990’s: this case invalidates a federal law for violating the
10th amendment. Court holds that the roles of fire, police, sanitation and public health
should be left to the states to control. If Congress were to step in here, there would be little
left of the separate and independent existence. There is also a historical argument to be
made here about how states have always governed their own government entities.
CONGRESS INFRINGES ON STATES ABILITY TO MAKE POLICY DECISIONS
THEREBY AFFECTING THAT BUDGETS OF THE STATE. TAKEAWAY HOLDING:
the commerce clause does not empower congress to enforce the minimum wage and
overtime provisions of the FLSA against the state in areas of traditional governmental
functions (Distinguishing Factor from Darby). THE FEDERAL GOVERNMENT
CANNOT GOVERN THESE EMPLOYMENT DECISIONS. (THIS IS BAD LAW) (PRO
STATE)

Garcia v. San Antonio Metropolitan Transit Authority (pp. 178-183) 

(OVERRULES USERY) (THIS IS STILL GOOD LAW) The court should rule on
a case by case development that would lead to a workable standard for determining
whether a particular governmental function should be immune from federal reg under the
CC. The court rejects the rule of state immunity from federal regulation that turns on a
judicial appraisal of whether a particular government function is “traditional” or
“integral.” The 10th amendment asks unelected judges to make decisions that should be
deferred to the states. The political process will work out the issues affecting the state when
congress imposes laws on them. (PRO FEDS & PRO COMMERCE CLAUSE).

United States v. Lopez (pp. 183-196)  (Gun Free School Zone Act 
UNCONSTITUTIONAL) federal law exceeds congress’ commerce clause authority. Looks
to (1) Channels of interstate commerce; (2) Instrumentalities; (3) Substantial Effects… (1)
Congress may regulate the use of the channels of interstate commerce. Darby, Atl hotle (2)
Congress is empowered to regulate and protect the instrumentalities of interstate commerce
or persons or things in interstate commerce, even though the threat may come only from
interstate activities. (3) Congress’ commerce authority includes the power to regulate those
activities having a substantial relation to interstate commerce. (In the past it’s been unclear
whether an act must affect or substantially affect.) This court holds that is must
“SUBSTANTIALLY AFFECT”). LAW IS UNCONSITTUTIONAL the government’s argument
to be too far reaching as if the government is interested in the national productivity, there’s no
stopping as to where they would be able to influence with its laws (e.g. family law). This
slippery slope argument stretches to the government then trying to make a federal educational
curriculum. -Too many inferences would have to be made to link the guns in schools to
interstate commerce. (PRO STATE)

United States v. Morrison (pp. 196-201)  congress cannot regulate non-economic

activity based on a cumulative impact on interstate commerce. The 14th amendment only
prohibits state action. So basically, in my own words: under the commerce clause and the
“appropriate legislation” clause of the 14th amendment, congress can only pass laws that
deal with regulating state government behavior that will have an effect on interstate
commerce, and NOT laws that deal with private individual actions that have no substantial
or direct affect on interstate commerce. The amendment only applies to Government
conduct. See Congress’ commerce authority includes the power to regulate those activities
having a substantial relation to interstate commerce. (In the past it’s been unclear whether an
act must affect or substantially affect.) This court holds that is must “SUBSTANTIALLY
AFFECT”). gender crimes are not, by themselves, sufficient to sustain a the constitutionality of
the commerce clause. (PRO STATE)
1. there is no link between gender violence and interstate commerce.
2. Gender crimes are not economic at all
3. And they do not “substantially affect” interstate trade.
4. While congress argues that it prevents business transactions and national productivity,
there is no evidence to prove that and the inferences are too extenuated.
5. If congress were to regulate this kind of crime, they would be able to regulate any
type of crime. The congress wants to use the commerce clause to obliterate the
relationship between states and federal authority.

Pierce Country, Washington v. Guillen (pp. 203-205) (DID NOT DISCUSS)

Gonzales v. Raich (pp. 205-216)  (POT CASE) (COURT FOLLOWS

WICKARD) (RATIONAL BASIS TEST; SUBSTANTIAL AFFECTS TEST)
(ECONOMIC v. NON-ECONOMIC CATEGORIES) THE JURISDICTIONAL
HOOK – needs to have some kind of travel in interstate commerce. It must have some kind
of substantial affect; instrumentality; where the words of the act are constitutionally based.
Court says congressional categories of regulation under the CC are broken into 3 groups:
1. congress can regulate CHANNELS of interstate commerce.
2. congress has authority to regulate and protect the
INSTRUMENTALITIES OF INTERSTATE COMMERCE, and persons or
things in interstate commerce
3. congress has the power to regulate [a class of] activities that
SUBSTANTIALLY AFFECT interstate commerce. THIS CATEGORY IS
AT ISSUE.
Court cites WICKARD as noting that even the aggregate can be considered to equate to a
substantial affect and therefore falls on the commerce clause.
THE COURT HOLDS THAT: it need not determine whether the patients’ activities taken
in the aggregate, substantially affect interstate commerce in fact, but only whether a
rational basis exists for concluding. RATIONAL BASIS STD. Because pot is a “fungible
commodity” and difficult to distinguish what is grown in state and out, congress worries
about a black market that might form that would affect governmental economic activity
and therefore the necessary and proper clause allows for commerce to step in and regulate
interstate commerce.
IF ACTIVITY HAS A SUBSTANTIAL AFFECT ON INTERSTATE COMMERCE, THE
RATIONAL BASIS STANDARD WILL BE IMPLEMENTED SO THAT COURTS CAN
REGULATE INTRA-STATE COMMERCE.

IF NON-ECONOMIC THE COURT WILL APPLY A TON OF SCRUTINY OF HOW

ITS ALL NON-ECONOMIC
YES, the CSA is a valid exercise of fed power. (PRO FEDS) (STILL GOOD LAW)

New York v. United States (pp. 216-226)  Held for NY, congress cannot compel
the states to enact a federal regulatory program. congress may encourage and influence
states to act but they cannot compel them to do anything. Congress does not have the
constitutional authority to compel states to dispose of radioactive waster generated within
its boarders. (PRO STATE)

Printz v. United States (pp. 226-236)  (FBI Background Check on

handgun sales by state agencies w/o pay from gov’t DMV disclosure of
personal records is not allowed to be sold, also, no one can sell personal information that is
required to get a license. State argues: enforcing this would take time out of our budget and
money to enact. The state legislature would have to pass a new law to enforce this one. )
THIS IS UNCONSTITUTIONAL BECAUSE STATE OFFICIALS CANNOT BE
FORCED. (PRO STATE)

Reno v. Condon (pp. 236-238)  (DMV Info Case) THIS IS

CONSTITUTIONAL BECAUSE THIS IS A LAW OF GENERAL APPLICABILITY. IT
RELATES TO ALL DATABASES AND ITS DOESN’T TELL THEM THAT THEY
MUST AFFIRMATIVELY DO SOMETHING; ONLY THAT THEY CANNOT DO
SOMETHING. Upheld fed law that prohibited states from selling personal
info collected by DMV b/c sale of info is considered interstate commerce as
used for marketers for solicitation. (PRO FEDS)

The Taxing and Spending Power; Post

Civil War Amendments XIII-XIV( pp. 238-
239)
South Dakota v. Dole (pp. 245-247)  affirms congress’s power to place conditions on
grants to state and local governments. Reasoning for holding for Fed Gov’t: The power of
congress to condition/withhold the allocation of its monies is “incidental” to the powers granted
by the spending clause of the constitution. the exercise of the spending power must be in the
pursuit of the general welfare. To determine what this is, the court should defer to the
judgment of congress
1. if congress does condition the states’ receipt of federal funds, it must do so
unambiguously and allow the states to exercise their choice knowingly cognizant of the
consequences of their participation.
2. Grants will be illegitimate if they are unrelated to the federal interest in national projects
or programs
3. Other constitutional provisions may provide an independent bar to the conditional grant
of fed funds.

INSERT  The 14th Amendment of the United States Constitution

Katzenbach v. Morgan (pp. 253-257)  under section 5 of the 14th amendment,

congress may independently interpret the constitution and even overturn the supreme
court!! This accords congress the right to define the meaning of the 14th amendment. 14TH
AMENDMENT IS A FLOOR. THE LINE IS WHAT IS LEGAL UNDER 14TH AMENDMENT.
IF CONGRESS WANTS TO REGULATE WHAT IS ABOVE BOARD IN 14TH
AMENDMENT TERMS; THE COURT WILL TAKE A LOOK @ CONSTITUTIONALITY
WITH A RATIONAL BASIS.
SO; COURT SAYS LITERACY TESTS ARE ABOVE THE LINE (OKAY).
CONGRESS IS REGULATING WHAT IS ABOVE THE LINE AND THEREFORE
PROTECTING MORE CITIZENS’ RIGHTS. WHAT IS THE ENUMERATED POWER
HERE?
THIS FIGHTS THE COUNTERMAJORITARIANISM DIFFICULTY BECAUSE
IT ALLOWS ELECTED CONGRESSMEN TO SAY WHAT IS CONSTITUTIONAL
REGARDLESS OF WHAT THE COURT HAS TO SAY. SEPARATES THE POWERS
BECAUSE THIS GIVES PEOPLE MORE RIGHTS BY CONGRESS DECLARING
UNCONSTITUTIONAL COURT HOLDINGS THAT SAY WHAT IS
CONSITITUTIONAL. THIS IS A NATIONALIST PERSPECTIVE THAT THE COURT
TOOK:
CONGRESS IS ACCORDED THE POWER TO USE §5 AUTHORITY TO EXPAND
THE SCOPE OF RIGHTS. (PRO FEDS)

City of Boerne v. Flores (pp. 258-264)  RFRA: THE COURT DECLARES THIS
ACT UNCONSTITUTIONAL as it exceeds congress’s power. this case rejects the
NATIONALIST view and holds that congress may not use its section 5 powers to expand
the scope of rights or to create new rights. Congress’s section 5 powers may NOT create
new rights or expand the scope of rights, and congress is limited to laws that prevent or
remedy violations of rights recognized by the supreme court and these remedies must be
narrowly tailored as “proportionate and congruent” to the constitutional violation.
Congress has been given the power to enforce, not the power to determine what constitutes
a constitutional violation. Therefore, congress is limited to enacting laws that prevent or
remedy violations of rights already recognized by the supreme court.
There must be a CONGRUENCE and PROPORTIONALITY between the injury to be
prevented or remedied and the means adopted to that end. This makes the court the
authoritative interpreter of the constitution (see Marbury v. Madison). If congress wants
to change the constitution (like giving itself more power under the 14th amendment section
5, then it should go through the arduous amendment process. RFRA was unconstitutional
because it makes any law subject to challenge at any time by any individual who alleges a
substantial burden on his free exercise of religion. This remedy was not determined to be
congruent or proportional to the harm that the law enacted to address. As such, this was
not “appropriate legislation” that could be passed under the §5 of the 14th amendment
pursuant to the court’s Equal Protection Clause Enumerated power.
General Rule: the constitution’s protection of rights is a floor; meaning that if the court
reads the constitution to not include a right, congress or the states may act to create and
protect that right.

Congress’s Power to Authorize Suits

Against State Governments
INSERT  The 14th Amendment (§5) of the United States
Constitution

INSERT  The 11th Amendment of the United States Constitution

Fitzpatrick v. Bitzer (pp. 264-268)  (held that Congress in acting pursuant to its §5
powers of the 14th amendment may authorize suits against state governments. we think that
congress may in determining what is “appropriate legislation” for the purposes of enforcing the
provisions of the 14th amendment, provide for private suits against states or state officials which
are constitutionally impermissible in other contexts. (MINORITY VIEW, PRO FEDS, PRO 14th
Amend)

Seminole Tribe of Florida v. Florida (pp. 268-273) (RACE) (1996) CONGRESS

CAN ONLY AUTHORIZE SUITS AGAINST STATE GOVERNMENTS AND
OVERRIDE THE 11TH AMENDMENT WHEN IT ACTS PURSUANT TO SECTION 5
OF THE 14TH AMENDMENT So, even when the constitution vests in congress complete law
making authority over a particular area, the 11th amendment prevents congressional authorization
of suits by private parties against un-consenting states (MAJORITY VIEW, PRO STATE, PRO
11th Amend). STATE OFFICER CANNOT BE SUED TO ENFORCE A FEDERAL LAW
THAT CONTAINS A COMPREHENSIVE ENFORCEMENT MECHANISM. THE GUISE OF
SUING A STATE OFFICER CANNOT PREVAIL IF IT ESSENTIALLY HALES A STATE
INTO FEDERAL COURT THIS IS PRECLUDED BY THE 11TH AMENDMENT.
-majority determines that §5 is meant to limit states and that the 14th amendment modifies the
11th amendment.
-questions whether congress can authorize, at all, in federal statutes, the abrogation of state
sovereign immunity in federal court. Or, should the supreme court protect state sovereignty?

INSERT  See, City of Boerne v. Flares (1997)  the court limited the scope of congress’s
power under §5 of the 14th amendment. Congress only may provide remedies for rights
recognized by the courts and that congress may not create new rights or expand the scope of
rights. Any law must be NARROWLY tailored to solving constitutional violations, therefore it
must be “proportionate and congruent” to preventing and remedying the constitutional violation.
Here RFRA was considered unconstitutional because it exceeded the scope of congress’s power
under §5 of the 14th amendment, as its purpose was not proportional and congruent to the
religious discrimination that the statute was enacted to remedy.
Following this case came:

1. Kimel (Age Discrim.) (2000) the law enacted exceeded congress’ §5 power and states
court not be sued for age discrimination. Age discrimination receives only a rational
basis review, and the legislative record did not document a pattern of unconstitutional age
discrimination by state governments.

2. Garrett (Disability Discrim. Under ADA Title I) (2001) the law enacted exceeded
congress’ §5 power, and states could not be sued for disability discrimination. Disability
discrimination only receives a rational review under the EPC. The legislative record did
not document unconstitutional disability discrimination by state governments that made
the law enacted proportionate or congruent to the problem the law was addressing.
****

3. Hibbs (Gender discrim.) (2003)  constitutional because it was within congress’ §5

powers because it involved a gender discrimination claim that would receive heightened
 judicial scrutiny under the EPC.
4. Lane (Disability Discrim under ADA Title II) (2004) with regard to fundamental rights
with access to the courts…NARROW constitutional because it was within congress’
§5 powers because it involved a claim that would receive heightened judicial scrutiny
under the EPC & DPC. Because there is a fundamental right of access to the courts, and
congress may enforce that right via §5 to ensure Due Process and Equal Protection under
the laws.

Kimel v. Florida Board of Regents (pp. 278-282)  (AGE DISCRIMINATION)

STATES MAY DISCRIMINATE BASED ON AGE WITHOUT
OFFENDING THE 14TH AMENDMENT IF THE AGE CLASSIFICATION
IS RATIONALLY RELATED TO LEGITIMATE STATE INTERESTS.
THEREFORE THE BROAD PROHIBITION AGAISNT AGE DISCRIM
EXCEEDS CONGRESS’S SCOPE OF §5 POWER. Only state courts will be
able to entertain age discrimination suits by their employers. the court holds that
the ADEA is not “appropriate legislation” under §5 of the 14th amendment because age is not a
suspect classification under the equal protection clause, as older people have not been subjected
to a “history of purposeful unequal treatment. Therefore, state that age discriminate can do so
without violating the 14th amendment unless the age classification is rationally related state
interest. Race and Gender are special, as they perpetuate discrimination, whereas states could
have a legitimate role or interest in hiring elderly people.
The ADEA, therefore, is so out of proportion to a supposed remedial or preventative object that
it cannot be understood as responsive to, or designed to prevent unconstitutional behavior. There
is no evidence that congress had reason to believe that broad prophylactic legislation was
necessary in the private sector of age discrimination.
THE ADEA’S ABROGATION OF THE STATE’S SOVEREIGN IMMUNITY IS INVALID
(PRO STATE; PRO 11th Amdnement)

Board of Trustees v. Garrett (pp. 282-289) (Disability discrimination) court

holds that such suits are barred by the 11th amendment. If congress truly understood that
there was a pattern of unconstitutional behavior by the states, they would have made mention in
the act’s legislative findings. Legislative history in crafting the statute that looks to remedy a
discriminatory problem in light of the EPC, is importing in determining what is appropriate
legislation for the court to enforce §5 of the 14th amendment.
In order for individuals to recover money damages against the States, there must be a pattern of
discrimination by the states that violates the 14th amendment and the remedy imposed by
congress must be congruent and proportional to the targeted violation.
As such, since that is not present here, and the act is prophylactic, § 5 cannot enlarge
constitutional authority to make a federal remedy to make a state susceptible to recovery by
individuals
Garrett (Age discrimination) and Kimel (Disability discrimination) comparison: in these cases
there is no heightened standard applied. In order to impugn the constitutionality of state
discrimination against the disabled or the elderly, Congress must identify, not just the existence
of age or disability based state decisions, but a wide spread pattern of irrational reliance on such
criteria. There was no such showing in these two cases. The laws were upheld as constitutional
as the discrimination was not wide spread enough.

Nevada Dept. of Human Resources v. Hibbs (pp. 289-295)  statutes were

within the scope of §5 powers because they concerned claims that would
receive heightened judicial scrutiny  basically, congress has a much broader
authority to legislate if it is a type of discrimination or a right that receives
heightened scrutiny. But if it is a type of discrimination or a claim that
receives only rational basis review, congress’s ability to legislate under §5 is
very narrow.
employees of NV may recover money damages in the event of the state’s failure to comply with
the family case provision of the act.
1. THERE MUST SHOW A PATTERN OF UNCONSTITUTIONAL DISCRIMINATION
2. MUST SHOW THAT THE REMEDY OFFERED IS CONGRUENT AND
PROPORTIONAL TO THE HARM CAUSED.

Tennessee v. Lane (pp. 295-302)  statutes were within the scope of §5

powers because they concerned claims that would receive heightened judicial
scrutiny  basically, congress has a much broader authority to legislate if it is
a type of discrimination or a right that receives heightened scrutiny. But if it is
a type of discrimination or a claim that receives only rational basis review,
congress’s ability to legislate under §5 is very narrow.
Alden v. Maine (pp. 303-314)  Holds that congress cannot authorize suits against state
governemnts in state court. State gov’ts may not be sued in state court, even on federal claims
without their consent. Because ME has not consented to suits for overtime pay and liquidated
damages under FLSA, the court affirms the judgment of the lower court and sustains dismissal of
the suit against the state. SOVEREIGN IMMUNITY BARS SUITS AGAINST STATE
GOVERNMENTS IN STATE COURT WITHOUT THEIR CONSENT. (STATES CANNOT
BE SUED IN STATE COURT WITHOUT CONSENT!  UPHELD FOR THE STATES)

UNDER THE 11TH AMENDMENT THERE MUST BE A CLEAR STATEMENT

TO ABROGATE STATE’S SOVERIGN IMMUNITY IN THE ACTUAL
STATUTE ITSELF.
14TH AMENDMENT:
KATZENBACH: CONGRESS HAS BROAD POWER UNDER § 5
BORNE: CONGRUENCE AND PROPORTIONALITY TEST THAT WAS
APPLIED IN KIMEL AND GIBBS:
1. WHEN LOOKING AT TEST, YOU MUST LOOK AT EVIDENCE
OFFERED BY CONGRESS
2. SCRUTINY OF THE COURTS:
a. HEIGHTENED: NEED TO SHOW. GARRETT SAYS THAT
ENFORCEMENT POWER IS APPLIED NARROWLY: LEWAY
IS GIVEN TO ISSUES THAT CLEARLY FALL UNDER STRICT
SCRUTINY.
b. RATIONAL BASIS: ONLY FOR SUBSTANTIVE PORTION OF
THE 14TH AMENDMENT.
3. 2 STREAMS:
a. THE FIRST IS: HIBBS/LANE

b. THE SECOND IS: KIMEL/GARRETT.

Executive Power Cases

Youngstown Sheet & Tube Co. v. Sawyer (See other sheet) (Jackson’s
concurrcence and the tripartite approach)

Nixon v. United States (pp. 327-333) : the right to presidential confidentiality is

strong, but when weighed against the interests of criminal justice, justice prevails. Without
access to facts specific to a criminal prosecution, justice is frustrated. The generalized assertion
of privilege must yield to the demonstrated, specific need for evidence in a pending
criminal trial.

Cheney v. U.S. District Court (pp. 333-334)  The Sup Ct. did not address executive
privilege and remanded. But it DISTINGUISHED NIXON. -Nixon did not satisfy exec privelege
in a Criminal case, regarding confidentiality of presidential conversations. And, the need for
information in a criminal case is much weightier.-this is a civil case, and does not share the
urgency or significance of a criminal subpoena. The stickiness and precariousness of the
weighing process undertaken by the courts in an executive privilege case should be avoided at all
costs as it questions the separation of powers.

INSERT  Article I, Section 7 of the United States Constitution

Clinton v. City of New York (pp. 334-340)  The president was granted the power to
“line item veto” by congress. This allowed him to cancel particular parts of bills while allowing
the rest to go into effect. THE PRESIDENT IS VIOLATING FORMALISM THEORY. The
constitution is silent on this but if there is to be a new procedure in which the president plays a
different role in the law making process, the constitution must be amended pursuant to the
amendment procedures. LINE ITEM VETO ACT IS UNCONSTITUTIONAL.

INS v. Chadha  Unless enumerated, in a legislative action, bicameral approval and

presidential presentation is required to pass a law constitutionally. The presentation clause: all
legislation must be “presented to” the president and congress before any law is passed pursuant
to Art I. §7. This acts as a check to prevent oppressive law making. Bicameralism: the law must
be voted on an passed by a majority vote in both houses. By doing this the interests of both the
majority and minority for larger and smaller states will be considered.

Appointment & Removal Powers Cases

Morrison v. Olson (pp. 355-361) II (pp. 367-369)  Court holds that the Ethics in
Government Act of 1978 does not interfere with the appointments clause of the constitution and
does not interfere with the president’s power in violation of separation of powers.

Myers v. United States (pp. 361-362)  SINCE REMOVAL IS NOT MENTIONED

IN ART. 1 THEN CONGRESS IS NOT INTENDED TO REMOVE. ONLY THE
PRESIDNET CAN REMOVE BECAUSE THE POWER TO APPOINT AND REMOVE
IS INCIDENTAL TO APPOINTMENT

Humphrey’s Executor v. United States (pp. 363-364)  Even though the FTC
allows for the president to remove a member of the commission, congress did not intend this, as
congress explicitly set a term limit that was supposed to act independently of the president’s
discretion.

Wiener v. United States (pp. 364-366)  upholds Humphrey’s Ex. The

commission was to operate independently of congress and the president and had a set term limit.
It must be inferred that congress set this limit and did not want the president’s authority to
infringe on the decision-making of the commission. They were to act independently.

Bowsher v. Synar (pp. 366-367)  ONLY WHEN THE ACT IS EXECUTIVE IN

NATURE CAN CONGRESS ATTACH STRINGS UNLESS IT PREVENTS THE PRESIDENT
FROM DOING HIS JOB. Court says that sure, in some circumstances where the president must
‘take care” he can remove some executive officials in order to complete his constitutional duty.
But in other circumstances, when officials’ duties are “quasi-legislative” or “quasi-judicial” the
president cannot exercise complete control over their abilities to be removable at will.
Separation of Powers and Foreign Policy
Cases
United States v. Curtiss-Wright Export Corp. (pp. 369-373)  FUNCTIONAL
APPROACH APPLIED HERE. VERY EXPANSIVE OF PRESIDENTIAL AUTHORITY
IN FOREIGN POLICY. He is allowed to have confidential information and secrecy with
foreign affairs. TAKEAWAYS: -HE IS THE SOLE ORGAN AND DOES NOT REQUIRE AN
ACT OF CONGRESS TO ACT IN THE FIELD OF INTERNATIONAL OPINIONS; -HE
ENJOYS A LOT OF INHERENT AUTHORITY;-HIS POWER IS PLENARY AND
EXCLUSIVE.
-The federal government can exercise no powers except those specifically enumerated in the
constitution, and such implied powers as are necessary and proper to carry into effect the
enumerated power, is categorically true only in respect of our internal affairs.

Dames & Moore v. Regan  EXECUTIVE AGREEMENTS WITH CONGRESSIONAL

ACQUIESENCE IS OKAY. -JACKSON’S YOUNGSTOWN OPINION IS THE
AUTHORATIVE FRAMEWORK FOR EXECUTIVE ORDERS. Executive agreements are
common from a functional approach.

Presidential Power and the War on

Terror
Hamdi v. Rumsfeld (pp. 381-393)  this is Youngstown at work. This falls under
Jackson category 1, as congress approved the president’s acts in the AUMF!!

The Bybee Memo (Blackboard) 

-Arguments for the president; for the BYBEE memo:

-commander in chief
-AUMF trumps this in Youngstown article 1.
-youngstown 2 as congress has never restricted detention.
-also frankfurter’s argument re: acquiscences is okay.

-unitary executive in curtis-wright  congres cannot

-if pres exempted then anyone under the executive is also exempted from sanction

-this is non justiciable pursuant to political question defer to the president

-violates the separation of powers as congress cannot tell the president to act in military setting
Arguments against the BYBEE memo:

-youngstown Jackson 3  congress explicitly acts against the statute on torture.

-congress declares war (structural argument)
-look at the welfare clause of the constitution in article 1.
-EMERGENCY is not in our constitution.
-we need to stay close to our pre-commitments vs. the constitution is not a suicide pact.

Boumediene v. Bush (393-411) 

Pursuant to the SUSPENSION CLAUSE in Art.1, there is not invasion or rebellion.

-the fact that the executive is taking away the court’s judicial power under Art. III
-Political Question? Argument that the issue is not justiciable.
-Gitmo is outside of the U.S. fed court jurisdiction
-Youngstown approach for gov’t: part 1 of congress’s approval for the president to deny HC to
detainied based on the MCA.
-congress stands up to the executive
-questions regarding the combatants, classified evidence, process go unanswered.

Prosecution and Impeachment Cases

INSERT  Article I, Section 3 of the Constitution

Nixon v. Fitzgerald (pp. 354-357)  absolute immunity from civil suits for a
president for all official action taken while in office. (5-4 split). Functional argument: the
court by entertaining this infringes on the core executive function as written in the
constitution.

Clinton v. Jones (pp. 357-360)  while yes, it’s a unique office, it won’t take up too
much of his time, and looking at history, (this being the third suit involving a president), this
wouldn’t be an over burdensome precedent to make.

Materials on Impeachment (pp. 360-364)  Art. 1I § 4: The P, VP and all civil

officers of the U.S. will be removed from office on impeachment for and conviction of treason,
bribery and other high crimes and misdemeaoners.
Art. 1 § 2: The HOR has the sole power to impeach. Then the trial is held by Senate
Art. 1 § 3: The senate has the sole power to try impeachments and no person will be convicted
without the concurrence of 2 thirds of the members present.
Issues:
1. What are high crimes and misdemeanors?
2. What procedures must be followed when there is an impeachment and removal
proceeding?
3. Is the president’s actions in some regards a “political question” and non justiciable by the
court?

Dormant Commerce Clause Cases

Philadelphia v. New Jersey (pp. 464-467)  “facially discriminatory law
therefore it’s per se invalid. The legitimate goal cannot be achieved by illegitimate means
of isolating the State from the national economy. The court therefore holds that NJ may not close
its boarders to other states who seek to dump its garbage in state because it cannot isolate itself
from an interstate problem. (PROTECTIONISM  DCC VIOLATION FOUND)

C & A Carbone v. Clarkstown (467-471)  unconstitutional, as the ordinance is a

financing measure. Meaning its discriminatory for the purpose of protectionism. The state
cannot overcome burden of per se invalidity by proving that the benefits to local
governments does not exceed the minor impact on ISC. - DEALT WITH PRIVATE
CORPS. (PROTECTIONISM  DCC VIOLATION FOUND)

United Haulers v. Oneida Hermicker (pp. 471-478)  DEALS WITH STATE

CREATED PUBLIC BENEFIT CORPORATIONS. The ordinances are upheld as
constitutional, as the balancing test is applied and found that any incidental burden that the
ordinance has on interstate commerce does not outweigh the benefits they confer on the citizens
of the counties. “If the legislative means are themselves discriminatory, then regardless of
how legit and non-protectionist the underlying legislative goals may be, the legislation is
subject to strict scrutiny.” Only discriminatory laws will be upheld if there is no other way to
achieve goals other than through non-discriminatory means. This law should be subject to strict
scrutiny and should be constitutional, even though it has an “incidental” discriminatory burden
imposed by the state on ISC. (NO PROTECTIONISM  UPHELD FOR STATE)

Hunt v. Washington State Apple Advertising Commission (pp. 479-482) 

Sets the 2 part burdens test under strict scrutiny for discriminatory laws that affect ISC.
COURT DETECTS PROTECTIONISM MOTIVE (SMOKE OUT THE ISSUE). the
burden falls on the state of NC to justify in terms of the (1) local benefits flowing from the
statute and (2) the unavailability of nondiscriminatory alternatives adequate to preserve the local
interests at stake. (PROTECTIONISM  DCC VIOLATION FOUND)

Exxon Corp. v. Governor of Maryland (pp. 482-485)  Court finds that because the
act does not discriminate against other retails interstate, that it does not discriminate against
interstate commerce. This case is distinguishable from Hunt in that the statute in Hunt raised the
cost of doing business for out—of-state dealers and favored the in-state dealer in the local
Market. This is not the case here, however. THIS IS A LAW OF GENERAL APPLICABILITY
& ITS FACIALLY NEUTRAL. (NO PROTECTIONISM  UPHELD FOR STATE)

West Lynn Creamery v. Healy (pp. 485-487)  In response to dairy farmers being
undercut by out of state dealers in state, the governor instituted the tax to support the local dairy
farmers. This is protectionist and has a discriminatory AFFECT & PURPOSE; it’s not
FACIALLY discriminatory because everyone is paying tax on all milk everywhere.
(PROTECTIONISM  DCC VIOLATION FOUND)

Minnesota v. Clover Leaf Creamery (pp. 487-489)  The court finds that the MN
law discriminates against every plastic producer, both in state and out of state, therefore the court
must look to see if the act is “clearly excessive in relation to the putative local benefits.” The
court finds that the incidental effect on ISC is not clearly excessive to the local benefits and finds
the law constitutional. Plastic was not all together considered prohibited. (NO
PROTECTIONISM  UPHELD FOR STATE)

Dean Milk Co. v. City of Madison (pp. 489-490)  This is unconstitutional, as this
prevents milk from other states to be sold in the town. The town says its for its health, but the
milk sold by appellant is approved by the USPHS. By allowing the town’s standards to be the
only standard (instead of U.S.’s), this prohibits sales by other states and is against the commerce
clause as it discriminates against ISC, and the town cannot overcome the strict scrutiny standard
imposed on it for discriminatory standards. (PROTECTIONISM  DCC VIOLATION
FOUND)

Maine v. Taylor & United States (pp. 490-492)  this is the ONLY case where the
court finds that a statute has a discriminatory affect and purpose, but one that surmounts
the burden of essentially the Phila v. NJ Test and the court holds that its constitutional
anyway. Because the law is discriminatory and affects ISC, the state bears the burden of
proving that the law:
1. serves a legitimate local purpose;
2. the purpose could not be served by available nondiscriminatory means.
The act is constitutional because ME’s parasite fear is legitimate to protect its waters and there is
no way of testing for parasites from all out of state fishes because its “basically impossible.” The
state satisfied the burdens here so the act is constitutional even though it affects ISC.
PROTECTIONISM FOUND BUT FOUND TO BE LEGITIMATE AND THE COURT
UPHOLDS FOR THE STATE.

Pike v. Bruce Church Inc. (pp. 493-494)  where the state regulates even-handedly
to effectuate a legit local interest, and its effects on ISC are incidental, it will be upheld
unless the burden imposed on ISC is clearly excessive in relation to putative local interests.
The extent of the burden will be tolerated if the nature of the local interests involved is
great and if the interest can be promoted with a lesser impact (REASONABLE
ALTERNATIVE) on ISC. (PROTECTIONISM  DCC VIOLATION FOUND)
Bibb v. Navajo Freight Lines (pp. 495-496)  Mudflapp case that was wrong.
the law is unconstitutional as the alleged safety measures do not outweigh
the burden on interstate commerce. The court affirms the injunction on the
plaintiff truckers’ behalf. (PROTECTIONISM  DCC VIOLATION FOUND)

Kassel v. Consolidated Freightways Corp. (pp. 497-500)  RULE: a law is

unconstitutional if it regulates the conduct of out-of-state businesses. If the
practical inquiry is whether the law controls beyond the boundaries of the
state, then the law is unconstitutional. DCC Summary:  state laws that
discriminate against other state law are unconstitutional. If the law is not
discriminatory then the court weighs its burdens on ISC against its benefits.
discriminatory purpose, as the statute is neutral with discriminatory
affects on out-of-staters. (PROTECTIONISM  DCC VIOLATION FOUND)

Exceptions to the Dormant Commerce

Clause
Reeves, Inc. v. William Stake (pp. 503-506)  Market Participant
Exception. Cement shortage case. Because the state is acting like a
participant in the market by actually doing the selling like a private
organization, and its not passing legislation that discriminated on other
states, it is excepted from the DCC violation. (NO PROTECTIONISM  UPHELD
FOR STATE BECAUSE IT MET THE MARKET PARTICIPANT EXCEPTION TO THE
DCC)

South-Central Timber v. Commissioner (pp. 506-509)  The state many not

avail itself of the market participant doctrine to immunize its
downstream regulation of the timber processing market in which it is
not a participant. [this, in essence, exceeds AK’s participation in the market.
(PROTECTIONISM  DCC VIOLATION FOUND)

State Action Doctrine

INSERT  The 13th and 14th Amendments of the United States

The Civil Rights Cases (pp. 548-552)  congress doesn’t have §5 power
to regulate private conduct; but they can regulate private conduct
pursuant to an enumerated Article 1 power under the Commerce
Clause or under a comparable power. these cases held that federal
constitutional rights do not govern individual behavior and furthermore, that
congress lacks the authority to apply them to private conduct. Therefore,
structuring the legal relationships of private citizens for the states and not
for the national government. (UNCONSTITUTIONAL  AGAINST FEDS).

Marsh v. Alabama (pp. 552-555)  is private property used for a public

purpose? If so, then it meets the public function exception and is
subject to the constitution. LARGER CONSIDERATION: THE TOWN A
PART OF THE LARGER NATIONAL ECONOMY. Because there is a
deprivation of liberty, the state cannot allow a corporation to restrict
people’s fundamental liberties and restrain them pursuant to a state statute.
This is unconstitutional, and the town is subject to state of AL law and U.S.
law. (HELD FOR FEDS)

Jackson v. Metropolitan Edison (pp. 555-558)  has the activity been

traditionally, exclusively done by the government? If so, then it
meets the public function exception. If not, then it’s a private
function and is untouchable under the reaches of the constitution.
-Yes, the corporation is providing a service in the public interest but it is a
private organization, and has disconnected service in accordance with the
laws of the commission. There is nothing sufficient to connect the state with
the company’s actions so as to make the company’s actions attributable to
the state for purposes of fitting within the exception of the SAD under the
14th amendment.

Evans v. Newton (pp. 560-562)  The park is considered a Public function

here because it is maintained by the municipality. If the park is granted
municipal maintenance then it is not private. Here the park is municipal in
nature and serves the community. The park is as vital to the community just
as a police or fire department. Therefore, the 14th amendment of the
constitution applies here under the public function exception of the SAD.

Lloyd v. Tanner (pp. 564-565)  The court holds that on private property, the
constitution’s preservation of 1st amendment and 14th amendment rights are
not enforceable per se. Because the distribution in this case was on private
property and not on the easily accessible public streets, the distribution of
handbills can be properly prohibited pursuant to the owner’s request without
being termed as a public function simply because it is a large piece of
property that attracts a large public crowd.

Shelley v. Kramer (pp. 567-570)  courts are judicial officials and are part of
the state and therefore the amendment applies to them. By using the court’s
coercive power to deny the petitioner’s their rights, is unconstitutional
because the government cannot deny people equal protection under the law.
Notes: shelly is controversial because if any decision by a state court
represents state action, then ultimately all private actions must comply with
the constitution. Anything can be considered as a state action. MAKE
SPECIAL NOTE: THE COURT EXPANDS STATE ACTION DOCTRINE
WHEN PRIVATE RACE DISCRIMINATION IS INVOLVED. (HELD AGAINST
THE CONDUCT THAT WAS DEEMED S.A.D.)

Lugar v. Edmonson (pp. 570-572)  Courts will consider 2 things:

1. the deprivation must be caused by the exercise of some right

or privilege created by the state or by a rule of conduct
imposed by the state of by a person whom the state is
responsible
2. the party charged with the deprivation must be a person who
may fairly be said to be a state actor.

Burton v. Wilmington Parking Authority (pp. 575-577)  when the state

leases property to a private tenant, the private tenant must comply with the
provisions of the 14th amendment as it is acting on government property.

Moose Lodge v. Irvis (pp. 577-580)  (DISTINGUISHABLE FROM BURTON)

Because the club is private and does not hold itself out to be public at all and
because it also is on private property, the benefit the state gives it is of no
consequence, and the court cannot attribute its conduct with that of the
state to subject it to SAD under the 14th amendment. The club is, therefore,
constitutional. STATE LICENSES TO BUSINESSES THAT PRIVATELY
DISCRIMINATE ARE NOT CONSIDERED UNDER STATE ACTION DOCTRINE
THEREFORE SUBSCRIBING THE PRIVATE ORGAINIZATION TO THE
CONSTITUTION.

Norwood v. Harrison (pp. 580-582)  the court holds that the state is
violating the constitution by funding schools that engage in discriminatory
practices and the state’s facilitation is barred by the constitution. The state
must steer clear of private RACE discriminatory practices. This is most
certainly UNCONSTITUTIONAL, as the state action doctrine applies and
therefore the EPC of the constitution is imposed on private organizations.
MAKE SPECIAL NOTE: THE COURT EXPANDS STATE ACTION
DOCTRINE WHEN PRIVATE RACE DISCRIMINATION IS INVOLVED.

Rendell-Baker v. Kohn (pp. 582-585)  (DISTINGUISHABLE FROM NORWOOD

could be because racial discrimination was not taking place….hmmm) Simply
because a private entity performs a function which serves the public does
not make its acts state action, even though it is funded and regulated by the
state. The school’s funding and regulation does not amount to being a public
function. THIS CASE SHUTS DOWN THE PUBLIC FUNCTION ARGUMENT AND
SHOWS THAT THE ENTANGLEMENT HERE IS NOT SUBSTANTIAL.

Other topics that should be studied

Article I  McCulloh v. Maryland  broad interpretation of the necessary
and proper clause. MCCULLOGH TAKEAWAYS: Court acknowledged size of
federal power. Broad interpretation of NECESSARY AND PROPER CLAUSE. Limits on
STATE INTERFERENCE WITH FEDERAL POWER

Article II 

• Advisory Opinions 

• Justiciability Doctrines:

o Standing Ripeness,

o Mootness, and

o Political Question Doctrine  Goldwater v. Carter (breaking

treaty was non justiciable by the courts and could not arise under
the “cases and controversies” clause of Article III). This matter is
a political question, and this was a dispute between the political
branches. The constitution is silent on the rescission of treaties
and the matter is a dispute between the branches that dies not
concern the courts.

• Preemption

• Privileges & Immunities Clause. Applies only to U.S. citizens,

not corporations or aliens.