Constitutional Law Outline 2/28/09 2:57 PM

INTRODUCTION
•What does the Supreme Court do?
oDecides constitutional issues
oSits as highest appellate court which may decide on federal questions
oCan review both state and federal laws
oOriginal jurisdiction limited to
Ambassadors, public ministers/counsels, state is a party
All other cases are appellate jurisdiction only

•Federalist Papers
o51
Checks and balances
Government separated into three branches
Controls abuse
o78
Separation of powers
“Least dangerous branch”
Completely independent from Congress
Life tenured so they wouldn’t be influenced
 •Stages
oContinental Congress
oArticles of Confederation
Ratified by Second Continental Congress
oConstitutional Convention
Two opposing viewpoints
Federalists
•Favored stronger, more centralized government
Anti-federalists
•Thought strong, centralized government was too dangerous
oConstitution ratified

BASIC FRAMEWORK
•Creation of Judicial Review
oMarbury v. Madison (Adams appointed judge; Jefferson refused to deliver appointment papers)
Created judicial review
The Supreme Court, not Congress, reviews the constitutionality of statutes by Congress
It is the province and duty of the judicial department to say what the law is
Supreme Court does not have original jurisdiction here so it exercised judicial restraint

•Review of State Court Decisions

 oMartin v. Hunter’s Lessee (Land confiscated from Martin, British citizen, and granted to Hunter
by Virginia)
Supreme Court can review state court decisions
Treaty between Great Britain and US trumps state law

oCohens v. Virginia (Two brothers were selling lottery tickets in Virginia, where they had no license
to do so)
The power to review state court decisions extends to criminal cases and to cases in which the
state is a party
Can also review decisions in state civil cases

oCooper v. Aaron (Arkansas refused to enforce a desegregation order)

Supremacy Clause (Art. VI): Federal court decisions are the supreme law of the land and
are binding upon the states

•Doctrine of Implied Powers

oMcCulloch v. Maryland (Branch of federal bank gets taxed under Maryland state law)
Necessary and Proper Clause (Art. I, §8(18)): Makes all laws which shall be
necessary and proper for carrying into execution the foregoing enumerated powers
Necessary – Much deference is given to Congress; for exam purposes almost
everything is necessary; if Congress says its necessary, it’s necessary; necessary =
useful
Proper – Constitutional test; it is within the scope of Congress as long as it doesn’t
violate any Constitutional laws
The power to tax is the power to destroy
Flexible interpretation to endure over time – “Never forget it is a Constitution we are
expounding”
Collaboration over confrontation
State can’t assert sovereignty over federal government, but federal government will
allow it to some extent
LIMITING THE POWER OF THE SUPREME COURT
•Five Ways to Limit
oConstitutional amendment
oImpeachment
oElection returns – Court probably won’t stray too far from political consensus
oAppointment by president
oNonjusticiable questions

•Ex Parte McCardle (Congress repealed act that would have allowed for appellate jurisdiction over denial of
habeas corpus)
oHabeas corpus – Writ that requires a person under arrest to be brought before a court to prevent
unlawful detention
oCongress has the power to limit the Supreme Court’s appellate jurisdiction
oIf Congress can give Supreme Court power to hear certain cases, it can also remove it
oExceptions Clause (Art. III, §2(2)) – In cases where the Supreme Court has appellate jurisdiction,
it has that jurisdiction with such exceptions and under such regulations as Congress shall make

•United States v. Klein (President granted pardons and restored full property rights to former Confederates
who pledged an oath of allegiance)
oIf congress enacts a statute that prescribes rules of decision for pending cases, the statute is invalidated
for violating separation of powers

“CASES OR CONTROVERSY”
•Article III, §2(1) – Justiciable requirements
oCases – arising under the constitution, the laws of the US, and treaties
oControversies – to which the US is a party; between citizens of different states; between a state and
citizens of another state; between a state or its citizens and foreign states or their citizens
•Non-justiciable situations
oPolitical questions
oWhere standing requirements are not met
oAdvisory opinion; can’t offer advice
oWhere the case is not ripe; too speculative or remote; and it’s moot

•Standing
oTest
Injury-in-fact
Cannot be generalized, abstract, or based on injury to a third party.
Immediate, actual, and imminent
Causation (nexus requirement)
P must allege a fairly traceable injury from D’s unlawful conduct
Redressability
The injury can be redressed by claimant’s requested relief
Ex. Injunctions or monetary relief

oAllen v. Wright (Parents of black school children brought suit against IRS for not taxing schools that
admitted students in a discriminatory manner)
Doesn’t meet case or controversy requirement because there is no standing
Injury must be personal to plaintiff for standing
Court holds injury is not fairly traceable to IRS and no certainty that P would be put in the
position it wanted to be put in
 oLujan v. Defenders of Wildlife (P sought to enjoin the U.S. from acting in a way that would be
endangered species in foreign countries at risk)
Injury was not concrete or imminent, causations was too attenuated, and the redressability was
too speculative

oElk Grove Unified School District v. Needow (Father objected to daughter being forced to say
“under God” in pledge of allegiance under First Amendment)
Court uses standing to dodge having to decide this case on the merits, specifically school
prayer
Since father didn’t have sole custody, no standing
No redressability
•Tax Payer Standing
oFlast v. Cohen (Congress had given money directly to a religious organization)
In this case, since Congress had violated the Constitution by directly giving taxpayer money to
a religious organization, there was standing

oAmericans United For Separation of Church and State v. Christian College (Congress
put land on open market and religious group bought it)
This did not violate the Constitution because it was not a direct appropriation of money to a
religious organization; therefore no standing
Here the church just happened to buy the land

•Political Questions
oAn issue is a non-justiciable political question if:
The Constitution has committed it to another branch of government
Ex. Foreign relations granted to president
If there is a lack of judicially manageable standards of resolving it
oPowell v. McCormack (P was reelected, but Congress refused to seat him)
This was not a political question because although Congress was able to expel him for any
reason, they still were required to seat him after being reelected
It is not within Congress’s power to refuse to seat him

oLuther v. Borden (Violent controversy in Rhode Island over who was in control of Rhode Island
state government)
Guaranty Clause (Art. IV, §4(1)) Every person in the US is entitled to a republican form
of government
Court holds this is a non-justiciable political question because it’s up to Congress and the
President to enforce it

oBaker v. Carr (Apportionment of members of the Tennessee Assembly gave rural votes more weight
than urban votes because population had shifted significantly since previous apportionment)
Legislative apportionment cases involving equal protection claims are justiciable
There is a clearly judicially manageable standards here since they can just do the census
Normally, Guaranty Clause is a non-justiciable political question (Luther v. Borden),
however here it involves an equal protection claim, so it is justiciable
Feres Case (Medical malpractice from military doctor)
Non-justiciable because it is the purview of other branches of government

oPolitical Gerrymandering Note

Normally non-justiciable except
When the sole motivation is racial discrimination

oGoldwater v. Carter (Dispute over whether President had power to unilaterally withdraw
recognition from Taiwan and recognizing the People’s Republic of China)
 The court held this to be a non-justiciable political question because it is within Congress’s
power to accept or reject the treaty

COMMERCE CLAUSE (Art. I, §8) – (Federal government puts regulation on commerce)

•Congress has the power to regulate commerce among the several states
•Three broad categories of activities which Congress can constitutionally regulate under the Commerce Power
oChannels (highways, waterways, air traffic); even if completely intrastate
oInstrumentalities – Persons, goods, and services moving through interstate commerce
oActivities that substantially affect commerce – Interpretation has oscillated throughout time
Activity that is commercial – If activity is arguably commercial, than it doesn’t seem to matter
whether the particular instance of the activity directly affects interstate commerce as long as
the instance is part of a general class of activities that collectively, substantially affect
interstate commerce
Activity that is not commercial – Has to be obvious connection between activity and interstate
commerce
If what’s being regulated is traditionally the domain of the states, the court is less likely to find
Congress acting within its commerce powers (Stafford v. Wallace)
Ex. Public health, safety, welfare, and anything in state’s police power

oGibbons v. Ogden (NY legislature prohibited NJ defendant from operating its ferry in NY waters)
Congress’s power under the Commerce Clause is a plenary power, meaning it is complete and
can be exercised to the utmost extent
States cannot exceed their authority by regulating to serve commercial ends
Balkanization: The idea that you don’t want states to compete against themselves because it
would lead to instability and a lack of continuity
Johnson’s Concurring Opinion
Even if there was no federal law, the plenary commerce clause power of Congress
would necessarily nullify the NY statute because of its negative and unconstitutional
substantial affect on interstate commerce.

oHammer v. Dagenhart (Child labor case) – Overturned by U.S. v. Darby and Holmes’ dissent
becomes law
 The court found that the goods shipped were harmless themselves
It was only the employment of child labor which was an evil, and this employment was not
directly related to interstate commerce
The lawsuit is not about the goods themselves, but about the goods being made by a certain
type of labor
Formalistic approach

oChampion v. Ames (Lottery ticket case)

Here it is the object which is forbidden, therefore Congress has the power to regulate it
(Instrumentalities)
Paternalistic approach to commerce – trying to impose moral law.

oUnited States v. E.C. Knight Co. (US used Sherman Antitrust Act to prohibit sugar monopoly)
Formalist approach
Manufacturing is a prelude to placing a good in interstate commerce, but not interstate
commerce itself
Therefore it does not have a direct effect on interstate commerce and thus not subject to federal
regulation

oThe Shreveport Rate Case (The railway charges a higher rate for interstate travels from Texas
even though it may be a closer distance than travels within the state)
Congress may regulate intra-state commerce instrumentalities if their use bears a close and
substantial relation to interstate commerce
Intrastate rates can affect interstate rates
Realist approach

oStafford v. Wallace (Congress regulated the shipment of meat through Chicago stockyards)
Stream of commerce approach, essentially realist approach
 Federal government could regulate because stockyards had substantial affect on health and
safety
Had to check intrastate because it would have been impossible to check at every interstate
destination
“Throat of commerce”
Realistic in its view of the impact on national health
Formalist in its segmentation of where the animals came from, to Chicago, to where
it’s going

•The New Deal Cases

oALA Schecter Poultry Corp. v. US (NIRA regulates labor and basic standards in poultry industry)
Court struck down the code because the chickens had left interstate commerce already
Just because goods once were in interstate commerce, doesn’t mean they always stay in
interstate commerce
Activities were not within the “current of stream of commerce” because interstate
transaction ended when the shipments reached NYC
Direct effect required for “affecting interstate commerce”
Formalistic approach

oWickard v. Filburn (Agricultural Adjustment Act set quotas for the raising of wheat on every farm in
the country, Filburn produced more than his allotment)
Issue between commerce clause and individual rights
Cumulative Effects Test: Congress can regulate truly intrastate events if taken in
aggregate with all the same activities going on would have substantial affect on interstate
commerce, even in the impact of the activity in question is trivial
National marketplace argument

oNLRB v. Jones & Laughlin Steel Corp. (Employees of D attempted to unionize and were fired, D
charged for violating NLRB, did with away with direct/indirect effect on IC test)
The act sets a baseline that the states can’t go below, but they can give more protections if they
want
 Realist approach; didn’t segment, but looked at overall approach
Test: Activity occurring within a state must impose a substantial burden/effect on
interstate commerce
Congress can regulate intrastate production if the activity has affect on interstate commerce
It is irrelevant whether the activity being regulated occurs before, during, or after the
interstate movement.
Rule: Congressional power may be used to reach activities that are deemed to merely burden
or obstruct interstate commerce
Striking employees would have cumulative affect on interstate commerce

oUnited States v. Darby (Fair Labor Standards Act set maximum hours and minimum wages;
overturns Hammer v. Dagenhart)
Realist approach
While manufacturing is not in itself IC, the shipment of such manufactured goods is commerce
Regulations of commerce which do not infringe on some constitutional prohibition are within
plenary powers of Congress
Rule: Congress may choose the “means reasonably adapted to the attainment of
the permitted end”, even though they involve control of intrastate activities
Goes farther than NLRB

•Civil Rights Cases

oHeart of Atlanta Motel v. United States (Motel refused to allow blacks in Motel; violation of
Civil Rights Act of 1964)
The intrastate activities are affecting interstate commerce because it was hindering an entire
segment of the population from traveling interstate, created a marketplace of exclusivity
Makes blacks less competitive for employment because it makes it very difficult for them to
travel
Civil Rights Act created a constitutional tort
This was a declaratory judgment actions
Used if you know you’ll be facing imminent injury; normally wait until after injury,
but in this case court takes action before injury occurs, since it’s likely to occur
 oKatzenbach v. McClung (Restaurant refused to serve blacks inside the restaurant)
If the restaurant got a substantial amount of their supplies from interstate commerce, they were
subject to act
They would have also had to have been sufficiently remote from interstate highways; virtually
impossible because interstate traveler is everywhere

•Limiting Commerce Power/New Federalism

oUnited States v. Lopez (Student came to school with gun violating the Gun-Free School Zones Act
of 1990)
Statute held unconstitutional because gun possession in school zones was not substantially
affecting interstate commerce; some nexus between the activity and IC must exist
The activity being regulated here was not itself a commercial activity
Stein disagrees because he said it’s hard to be educated with people walking around
with guns; and education is tied to the economy and thus commerce
Breyer dissent looks at entire education process
Resurrection of the 10th Amendment, which says that any power not enumerated in the
Constitution is left to the states

oUnited States v. Morrison (Violence Against Women Act had a civil remedy provision that was
held unconstitutional)
Act created a constitutional tort for violence against women similar to the Civil Rights Act
There is a problem with the dilution effect
Women were not kept from working or traveling from fear of abuse in the same way
that blacks were in instances seen in the civil rights cases
Too great an intrusion of sovereignty
Activity being regulated is essentially a non-economic activity
Women can still sue for common-law torts in state court, however if they’re traveling it is
likely to be a diversity case and end up in federal court
DORMANT COMMERCE CLAUSE (State puts regulation on commerce)
•Protectionism
oStates erecting barriers to trade to protect the economic activities of local residents
•Discrimination
•Three Part Test for a State regulation to avoid violating the DCC
oRegulation must pursue a legitimate state end
oRegulation must be rationally relation to that legitimate end
oState’s interest must outweigh the burden imposed on interstate commerce
If there is undue burden, you look at the least restrictive means
•DCC involves case by case analysis
oWeigh the state interest in regulating its local affairs against the national interest in uniformity and
integrated national economy
oEven if there is already a state regulation, Congress has the ability to regulate by preemption
•Balancing Test – Even if three part test above is satisfied, still apply balancing test
oProtection on economy
If regulation protects in-state producers at the expense of out-of-state producers to strengthen
local economy, not allowed
oHealth and Safety regulations
If state in good faith is pursuing health and safety regulations, court will balance against
burden on interstate commerce
•In dormant commerce clause cases, P is usually a private entity and D is usually a State or part of a State (BoE,
planning board, etc)
•Sovereigns (U.S. and states) cannot be sued without their consent and they may withdraw their consent at
anytime
oAll states surrendered their sovereign immunity with tort and contract law
oNo punitive damages against a sovereign
 oCounterproductive to refuse consent because no one would contract with a sovereign

•Protection Against Discrimination

oCity of Philadelphia v. New Jersey (NJ enacted statute that prohibited out-of-state trash from
being brought in)
Court held this statute unconstitutional because it was seen as discriminatory and protectionist
States have the sovereign to ban certain items if they determine them to be too unsafe
It has to be uniform and even to the product everywhere
The burden of the out-of-state residents outweighed the burden on New Jersey residents
Even though Congress has not preempted, state laws are still subject to the commerce clause,
unless it can show that there is no other alternative that is less discriminatory
Future possibilities
Could use Compact Clause (Art. I, §10) to complete a common purpose

oC & A Carbone v. Clarkstown (Local waste transfer station built and town enacted ordinance that
required all waste to go through this station to pay a fee)
Carbone would have sent their waste out-of-state at a lower cost otherwise
Articles of commerce also include services, not just goods
Generating revenue is not a legitimate local interest
Court said that statute was discriminatory against everyone that was not the one waste transfer
station
Attempted to create a monopoly

•Facial and/or Intentional Discrimination

oMaine v. Taylor (Maine enacted statute that prohibited out-of-state fish bait being used while fishing
in Maine to protect native fish species)
 The court held for Maine because they said the threat to them was so great, that exception
would be made
Burden on Maine outweighed burden to out-of-state bait interests

•Facially Neutral Statutes Affecting Interstate Commerce

oKassel v. Consolidated Freightways Corp. (Iowa enacted statute that banned trucks longer than
60 feet from traveling on their highways; included border cities exception)
Court normally gives states great deference on highway regulations, but in this case the court
found that the burden to out-of-state interests outweighed the safety interest of the state
A state can set reasonable, rational, and verifiable limits on the use of facilities even if there is
a direct effect on interstate commerce
Safety purpose must be weighed against interference with interstate commerce

oHunt v. Washington Apple Advertising Commission (NC required all apples to be shipped
using US grade or no grade at all. This in effect prohibited the display of WA stringently-graded
apples)
States can regulate matter of local concern even if the regulation affects interstate commerce
unless the regulation is discriminatory and unduly burdensome
Congress has not preempted the field here
Court attached substantial weight to the fact that the NC scheme was intentionally
discriminatory
Subsides that make another state’s industry no longer competitive are still okay

oExxon, Corp. v. Governor of Maryland (MD passed a law prohibiting oil producers or refiners
from operating retail gas stations in MD; this case is an exception)
The Commerce Clause is in place to protect interstate commerce as a whole, not to ensure
particular companies participate
A state law that discriminates against some out-of-state companies does not necessarily unduly
burden interstate commerce

•Market Participant Doctrine

oWhen a state acts as a market participant by operating a state-run business, and just a law-making entity
(or market regulator), the state may favor local interest
 oHowever, a state may not impose regulations that have a substantial regulatory effect outside its
particular market
oCan regulate anything so long as regulation is not based on discrimination regarding race, gender,
origin, sexual orientation, etc.
oDeals with a specific good and is very rarely used
oSouth Central Timber case
Alaskan legislature began selling timber directly to people
They put a clause in their timber contracts requiring the customers to process the timber within
Alaska
Once they put restrictions on what buyer can do, they are a regulators and no longer a market
participant
This in effect discriminates against out-of-state processors to protect the in-state processors

OTHER POWERS OF CONGRESS

•Preemption (Means the federal government takes over)

oExpress
The federal statute specifically mentions that its intended to preempt state law
Requires no analysis whatsoever and almost never challenged
Ex. Standards for aircraft and granting of flight routes
oField
Federal law is “so pervasive as to make reasonable the inference that Congress left no room for
the state’s to supplement it”
The court decides if Congress’s statute permeates the area
It’s important, leaves room for interpretation
Requires the most analysis
 Piecemeal preempting, but court must declare the preemption is complete
Argument in favor of it is that if the court finds the field is so controlled by federal legislation,
infers Congress would prefer uniformity
Ex. If Congress had enacted several pieces of legislation controlling the airspace over different
regions in the U.S., you might as well combine them for uniformity purposes
oConflict
Occurs if either:
Compliance with both state and federal law is impossible
State law creates an obstacle to the execution of full purpose and objective of federal
law
Ex. Federal law says you can’t hunt wooly mammoths from August to September and there’s a
state law saying that you can hunt from May to August.
The conflict occurs in the month of August; can’t obey one law without disobeying
another
Federal law wins because of Supremacy Clause
Requires some court analysis

•Spending Power
oArt. I, §8: Congress has the power to lay and collect taxes…to pay the debts and provide for the
common defense and general welfare of the United States
Madison: Spending power was limited to enumerated powers
Hamilton: Spending power was not limited to enumerated powers so long as it goes toward
the “general welfare” (the court agrees with this view)

oScope of Conditional Spending Power Test

The exercise of the spending power must be in pursuit of the general welfare; complete
deference to Congress
There must be a rational nexus between the condition imposed on the state and the spending
program
The amount withheld in case of non-adherence must not be so great as to be coercive but
enough to be an inducement
 oUnited States v. Butler (AAA paid farmers to reduce their crop output)
Took Madisonian view in that it can only act on its enumerated powers
The court rejected the government’s contention that “to provide for the general welfare” was
an independent power

oSteward Machine Co. v. Davis (Social Security Act imposed a tax on employers but if they
contributed to a state unemployment fund the contributors were credited against the tax)
Takes the Hamiltonian view; overturned Butler
This is inducement, not coercion because it does not force states to surrender their powers
Deference to Congress
Congress was no longer constrained by the enumerated powers, as long as it was for “the
general welfare”

oSouth Dakota v. Dole (Court upheld federal statute that would take away 5% of highway funding if
state did not adopt a 21-year-old drinking age)
Congress is free to use its power to tax and spend for the general welfare
It may do this by giving incentives to the states to get them to do the regulating
The penalty of loss of funds must be related to the Congressional program and the amount
cannot be excessive
There is a line between coercion and inducement that Congress cannot cross
Inducement – The act or process of enticing or persuading another person to take a
certain course of action
Coercion – Conduct that constitutes the improper use of economic power to compel

•14th Amendment Limitation on Congressional Power

oKatzenbach v. Morgan (Statute enacted in NY that required a literacy test to be able to vote; Voting
Rights Act of 1965 forbade this)
Violates the separation of powers
Voting standards are discriminatory
14th Amendment, §1: Framers levied upon the states to give all persons equal protection and
due process
Persons include human beings and corporations
States must act rationally
Rational means there is an explanation that can be understood even if not liked,
appreciated, or respected; highly deferential and the lowest standard
Reasonable means determining a choice of behavior, conduct, or rule against other
possibilities
§5 of the 14th Amendment can be used by Congress in a complimentary role to the Supreme
Court
§5 – Enforcement Clause – Congress shall have power to enforce by appropriate
legislation the provisions of this article
•Supreme Court has identified categories of people that may be protected by this
(race, gender, national origin)
•Prophylactic remedy cannot be created by the Court, but it can be by Congress
(Ex. Title IX)
EXECUTIVE POWERS
•Few powers explicitly granted to President
oEnumerated powers in Article II, §2 as commander in chief, treaty making, and the right to appoint
ambassadors
President must take care that the laws are faithfully executed (Take Care Clause)
•Most of the power is implied
oDerived mostly from Article II, §1, which provides that, “the executive Power shall be vested in the
President…”
oSo if Supreme Court says that the action is in the executive sphere, it won’t be held unconstitutional
merely because it’s not enumerated

•Youngstown Sheet & Tube Co. v. Sawyer – (Truman seized the steel industry after they threatened to
strike because he believed it would cause a steel shortage in the Korean War)
oTaft-Hartley Act – Would forbid the strike for 80 days as a cooling off period
Truman could have invoked this but chose not to because if it didn’t work he would have
seemed weak
 oCourt struck down the executive order, concluding that it was an unconstitutional exercise of the
lawmaking authority reserved to Congress
oCourt said it was not an emergency situation where the President could act beyond his powers
oIssue also was around Article 1, War Making Powers – Only Congress can declare war
A declaration of war is a legal notice to the other side and to the international community
oJackson’s concurrence
3 Categories of Presidential Power
Where the President acts pursuant to express or implied authorization of Congress,
in which case his authority is at its MAXIMUM
•He can enforce the statute anyway he wants as long as it’s Constitutional
Where President acts in the absence of either a congressional grant or denial of
authority, in which case “there is a zone of twilight in which he and Congress may
have CONCURRENT authority, or in which its distribution is uncertain
Where the President acts in contradiction to the express or implied will of
Congress, his power is “at its LOWEST.” Jackson felt that the steel seizure fell into
this category

•Executive Agreements
oNot submitted to Congress at all
oThis has undercut the treaty-making process
oThere is very little check on money being spent overseas
oThere has been compromise to let a few senators and congressmen have access to top secret
intelligence, but they are not allowed to tell anyone else in Congress

•Dames & Moore v. Regan - (To settle the Iran hostage crisis, President suspended all contractual actions
against Iran that were then pending in American courts)
oPresident deprived the people of their property without due process of law
oPresident worked off of two separate acts
Trading with the Enemy Act
 Allows president to prohibit trading with the enemy by breaking contracts, taking
property, etc
International Emergency Economic Powers Act (IEEPA)
If an emergency is declared by Congress, it gives the Presidents more powers
There is not an explicit authorization to do what the President did
oThe claims suspension was within the President’s constitutional power; while Congress had never
explicitly delegated to the President the power to suspend such claims, it had implicitly authorized
that practice by long history of acquiescing in similar presidential conduct
oLimited scope of the holding
Where such settlement is a “necessary incident to the resolution of a major foreign policy
dispute,” and Congress has acquiesced in that type of presidential action, the action with be
deemed within the President’s constitutional authority

•Impeachment
oStandards for impeachment set forth in Article II, §4, which says
The President, Vice President, and all civil officers of the United States, shall be removed from
office in impeachment for, and conviction of, treason, bribery, or other high crimes and
misdemeanors
Essentially a political crime
Even though impeachment is found under the Constitution, can be accused of a
statutory crime still
oBill of attainder is a legislative act that is meant to punish a person or group of people without the
benefit of a trial
oProcedure
Decision by the House of Reps to subject the President, or other federal official, to a trial in the
Senate
If the House votes (by majority vote) to impeach, the trial itself occurs in the Senate, and a 2/3
vote of those Senators present is required to convict
oMeaning of High Crimes and Misdemeanors
Serious crimes
Abuse of power
oPresident is 100% immune from all criminal proceedings while in office, arguably so is the VP
 oIf impeached, President can be made ineligible to hold office again, but still get his pension
oAny Art. III judge can be removed
oAll civil officers can be removed (high civil officers)
oChief Justice, not VP presides over President’s impeachment because of conflict of interest
oImpeachment hearing is non-reviewable

•Domestic Affairs
oPresidential Immunity
Nixon v. Fitzgerald – (Fitzgerald blew the whistle on massive cost overruns for an Air
Force project and was demoted. Sued President Nixon directly.)
President has absolute immunity from civil liability for his official acts
Presidential assistant do not have absolute immunity but they do get fairly qualified broad
immunity which is immunity from a civil suit for conduct arising from their performance of
office, except where the official violated a clearly established right
There is no immunity if the President’s act is completely unrelated to carrying out his job
There is no executive immunity, either of a common-law or constitutional nature, from
criminal prosecution

oExecutive Privilege
United States v. Nixon – (Watergate related offenses, Nixon claimed his tapes, letters,
notes, etc were his personal property)
The decision had to be made whether or not these materials were discoverable,
relevant and probative
•Some materials were never discoverable, like state secrets
•Prejudicial value must not outweigh the probative value
The government presumptively owns all of the materials (tapes, notes, etc) that the
President used
Any claim for immunity can be overcome by the need to develop all relevant facts in a
criminal trial
 Separation of powers does not bar the judiciary from evaluating the President’s claim
of privilege

oLegislative Veto
Device which enables Congress to monitor actions by the executive branch, including federal
administrative agencies

INS v. Chadha – (Attorney General (AG) suspended deportation of D and Congress used its
legislative veto to invalidate the suspension)
Art 1, §8 gives congress the right to establish rules of naturalization and immigration
Congress can also deny deportation of an alien through a “private bill.”
Congress delegated authority to suspend deportation of aliens in certain situations to
the AG
•Delegated the power through the Immigration and Naturalization Act
Congress reserved for itself a legislative veto over all of the AG’s deportation
decisions
Veto could be exercised by resolution from either house
Every law can only come about through (SC struck down legislative veto for violating
these)
•The Presentment Clause (Art. I, §7, cl. 2)
oRequires that every bill be presented to the President for his signature,
so that he may have the opportunity to veto it
•The Bicameral requirement (Art. I, §§1 and 7)
oRequires that both houses must pass a bill before it becomes law – here
the veto provision could be exercised by a single house

•War Powers
oPresident’s war-making power is not the same as declaring war, but not much of a practical difference
oThe concern was that Congress would have no say at all
 What Congress Can Do
Withhold funds, but has never happened
Impeachment is also a possibility, but rarely happens
oConflict: Congress v. Presidential powers
Art. 1, §8: Congress is given the power to declare war, and to tax and
spend for national defense. Also given the right to raise and support
armies
Art. II, §2: President is given power as Commander-in-Chief of the armed
forces – power to deploy troops and declare military engagement
Congress: Control the money
oWar Powers Act
Created by Congress to put a brake on presidential power (presidential wars)
1. Required the President to report to the Speaker of the House within 48 hours setting
forth the President’s objective and why he’s doing it. Congress must also be warned
if there is an imminent involvement of hostilities in foreign territories or if President
is adding forces
2. Within 60 days of the written report to Congress, President must terminate the use
of armed forces unless he is given a declaration of war extension. Exception is if we
are attacked on our soil
3. Concurrent resolution – Forces must be removed if he is informed by Congress
The issue with the act is whether or not it constitutes a legislative veto

EQUAL PROTECTION
•Rational Basis (Mere Rationality)
oLegitimate governmental objective
Great deference – Practically any type of health and safety or general welfare goal will be
found to be legitimate
Burden on P
oRationally related means
Easy to satisfy – Only if government has acted in a completely arbitrary and irrational way will
this rational link between means and ends not be found
 Difference between rational and reasonable
•Reasonable is higher level of scrutiny
•Rational – Can a person of ordinary intellect be able to understand why
something is being done
oWhen Used
Dormant commerce clause
Equal protection Cases
So long as no suspect or quasi-suspect classification is being used and no fundamental
right is being impaired
Generally used for statutes that deal with economic issues, but also education, housing,
unrelated people living together, bankruptcy, age, poverty, wealth, mental retardation,
necessities of life
•Strict Scrutiny
oCompelling governmental objective
oLeast intrusive or narrowly tailored means
oWhen used
Substantive due process/fundamental right e.g.: vote, travel, privacy
Equal protection review – If the classification relates to a suspect classification e.g. race,
origin, alienage, religion
Burden on D
•Intermediate Scrutiny
oImportant governmental objective
oSubstantially related means
oWhen used
Equal protection for semi-suspect class: gender and illegitimacy
Burden on D
RACE-BASED DISCRIMINATION
•Slavery
oEach slave worth 3/5 of a vote
oRendition clause
States required to use their police power to return state slaves
This was the only time that the Constitution ever put a requirement on the states
oNon-Importation Clause
Granted to Congress the authority to ban slave trade 20 years after the ratification of the
Constitution
oDred Scott v. Sandford – (Scott made a claim for his freedom based on the fact that he sojourned to
a free state and that his slave status was not reinstated when he returned to Missouri)
The court held that Congress exceeded its bounds with regard to citizenship
Unconstitutional to label some states free states and some slave states
The court ruled that blacks have no citizenship rights, regardless of whether they are free or
not

•Amendments
o13th Amendment
Abolished slavery
Removing the badges and incidents of slavery
o14th Amendment
Only applies to state and local governments
Equal Protection
 Only applies to state action; doesn’t apply to private action, but the Commerce Clause dealt
with that
Privileges and Immunities Clause
No state shall deny to any citizen the immunity of its laws
Due Process Clause
No state shall deny to any person the due process and equal protection under the laws
For a valid Equal Protection Claim
P belonging can maintain a claim where she alleges that she has been intentionally
treated differently from others similarly situated and that there is no rational basis for
that treatment
o15th Amendment
Voting rights
o5th Amendment
Where the federal government makes a classification which, if it were by a state, would violate
the 14th Amendment Equal Protection Clause, the court has treated this as a violation of the 5th
Amendment. Due Process Clause (Bolling v. Sharpe)

•Suspect Classifications
oGroup that has historically been the victim of discrimination are subjected to “strict scrutiny”
oA classification will not be deemed to be “suspect” and therefore subject to strict scrutiny unless the
Court find that there was a legislative intent to discriminate against the disfavored group
oA demonstration of disproportionate impact is a factor in the analysis but is never sufficient by itself to
prove intent
oThree ways to show invidious discrimination
On its face
By explicit terms
Congress will not require that it be shown that the law had an actual discriminatory
impact in the case
As applied
 The law, although neutral on its face, is administered in a discriminatory way
Purpose
The law, although neutral on its face and is applied in accordance with its terms, was
enacted with a purpose of discriminating, as shown by the law’s legislative history,
statements made by legislators, the law’s disparate impact, or other circumstantial
evidence of intent
oTwo types of discrimination
De jure discrimination
In any situation where actual laws mandate discrimination
•Statute or ordinance – Formal act of positive legislation
•State action – Doesn’t have to be written
De facto discrimination
The discrimination is not a direct or intended result of the law, but merely incidental
•There is never a remedy for de facto discrimination – NO CAUSE OF ACTION

•Plessy v. Ferguson – (A man who was 1/8 black was denied access to a white car on a train)
oSEPARATE BUT EQUAL
Overturned

•Brown v. Board of Education I – (Black schoolchildren denied admission to public schools attended by
white children under law requiring segregation according to race.)
oOverruled Plessy v. Ferguson
oSeparate but equal is inherently unequal
oDealt with de jure segregation
oBrandeis brief is submitted to court to show the intangible effects of segregation of the public schools
 Brief here by a sociologist argues that discrimination creates a sense of inferiority in black
children, even if the facilities themselves are equal

•Bolling v. Sharpe – (Segregation of schools in D.C.)

oCourts had to rely on the 5th Amendment since this was federal action
oThe court found that the due process clause of the 5th Amendment had an equal protection component in
it
oSegregation was not reasonably related to any proper governmental objective, and thus was an arbitrary
deprivation of African American students’ liberty

•Brown v. Board of Education II – (Remedy for Brown I)

oCourt held that desegregation had to be carried out with all deliberate speed
oIt gave the federal district courts primary responsibility for supervising desegregation because of their
proximity to local conditions and the possible need for further hearings
oNo precise guidelines given to carry out desegregation
oSegregation of schools is a badge of inferiority, and therefore all other places should be integrated as
well
oTo avoid integration, some white parents took their children out of public schools

•Swann v. Charlotte-Mecklenburg Board of Education – (Supreme court came up with specific

remedies in order to bring about desegregation)
oJudicial imposition of a ratio
Exact ratio is never required because it’s unrealistic
Tipping Point - Too many black kids in school accelerates white flight
Not quota
•Quota seems to suggest ceiling
•Words of exclusion
 Ratio creates a minimum
oBusing
A judge needs to consider the practicality of the situation depending on distances, age, terrain,
volatility of community
Both blacks and whites may oppose busing
oRedistricting
Draw new lines
oMagnet schools
Schools with certain characteristics will attract white students to black schools
Draws in students from other areas
oReplaced all deliberate speed with immediate requirement of compliance

•Keyes v. School District #1 – (Segregation in Denver public schools)

oDe jure segregation
oThe finding of intentional segregation of a substantial portion of the district would create a prima facie
case that there was a dual school system
The only way to rebut this is if the school board showed that the segregated part should be
viewed as a separate, unrelated area, and that the segregation in that one part had no effect on
the others
This is very difficult for D to rebut
They must prove a lack of intent or a lack of causal connection

•Simple Injunction
oThis cannot work
oCommand or prohibits or both – implementing is difficult
•Structural Injunction
oTo make sure the person whose right is violated, restored to their rightful positions
i.e. equitable relief
oTo make sure that the violator who has been engaged in systemic violation of rights would not be able to
easily return to their old ways of being unconstitutional

•Milliken v. Bradley – (Dealt with segregation in the Detroit school system. However, the problem with the
remedy was that the school population was 70% black.)
oRemedy they had was to bus inner city kids into the suburbs and vice versa (interdistrict remedy)
oMilliken II
Court struck down this saying it didn’t allow local control and was taxation without
representation
The parents wouldn’t have a voice in the schools that their kids were sent to
The only way this would have worked is if there was an interdistrict violation (conspiracy)
The only real remedy was to put more money in the Detroit schools to improve them

•Korematsu v. United States – (Japanese-American citizen refused to comply with executive order to move
from the west coast to an internment camp)
oStrict scrutiny derived from this case
Compelling governmental objective
Means most narrowly tailored
oPresident relied on Article II power as commander-in-chief to sign this executive order
oCongress also passed legislation endorsing this order
President’s powers are greatest when his own powers are mixed with Congress’s
This test only comes up when P claims they are in a class entitled to the highest scrutiny AND
the government responds to the suit by admitting the act, but seeking to justify it
NON-RACIALLY BASED DISCRIMINATION
•New York City Transit Authority v. Beazer – (Beazer was denied a job as a subway platform sweeper
based on the fact that he was using methadone.)
oRational basis applied
Beazer is part of an easily identifiable group of people (methadone users; must have been
using some sort of illegal substance earlier)
Not a class the Supreme court has chosen to be entitled to heightened scrutiny,
therefore falls into rational basis methodology
Legitimate governmental purpose
Safety
Efficient operation of the transit system
Action rationally related to that governmental purpose, even if unreasonable

•Fortune Teller Hypo

oCould the statute be struck down as unconstitutional?
Yes, expresses a societal disapproval of a certain practice
This is a legitimate government interest

•Romer v. Evans – (Colorado enacted a constitutional amendment prohibiting local governments from
enacting antidiscrimination measures protecting gays)
oSupreme Court invalidated the amendment because it didn’t pass the rational basis test
oGovernmental purpose is to express societal disapproval, but the amendment doesn’t rationally relate to
this

•Affirmative Action
 oAny form of affirmative action that is not of a displacement nature raises not constitutional question
whatsoever, whether or not they are wise or stupid
oAdmitting based solely on race is not allowed

•Gender
oWomen are a quasi-suspect class (Intermediate Scrutiny)
Important governmental objective
Must be actual – Must be one that actually motivated the legislature, as opposed to one
that is articulated after the gender-based scheme was adopted
Means are substantially related to that objective
Means must be exceedingly persuasive (Virginia Military Institute) (Not always applied)
This places a major burden on D to prove to judge that the means are substantially
related
oReal differences
Black and whites: There are real differences between blacks and whites, such as skin color
and susceptibility to diseases, but the law holds they are of no legal significance
Men and women: There are real differences but they must be relevant; otherwise there is no
justification for disparate treatment
Need to have countervailing alternatives so that a woman’s career won’t be harmed
oHypos
Woman dressed in male uniform for Civil War reenactment
Woman would raise the equal protection component of the due process clause of the 5th
Amendment
The court finds in favor of P reasoning that people are visiting the park for theater, not
actually believing that the reenactors served in the Civil War
Woman police officer put on desk duty immediately after becoming pregnant
Burden shifts to D once they admit they are treating someone differently
Examine real differences
 •Court holds there is a real difference between pregnant women and non-
pregnant women allowing the policy to stand because there is a fear that her
partner will be too busy protecting her instead of going after danger
Woman prison guard cannot get tour in supermax section of prison
Stereotyping and stigmatizing are the two key words
Courts have held that prisons cannot shortchange women for her career and that they
must show alternative methods for women to advance if they don’t let them serve in
the supermax section

SUBSTANTIVE DUE PROCESS

•Griswold v. Connecticut – (Married couple charged under statute that prohibited the use of contraceptives)
oHolding: Constitutional right to privacy for contraception
oRight to privacy comes from the emanations of certain amendments
1st, 3rd, 4th, 5th, 9th, 14th

•Eisenstadt v. Baird – (Non-married person charged under statute that prohibited the use of contraceptives
between non-married people)
oHolding: Any single person seeking contraception should be able to get it
oStein says: Essentially facilitated the commission of a crime since premarital sex was illegal in almost
every jurisdiction at this time
oPersonal autonomy
An area of your life that is so personal that the government can’t regulate it
There is continuous of “line drawing”

•Roe v. Wade – (ABORTION)

oThe court announced a fundamental right, therefore strict scrutiny applies
oCourt bases decision on the trimester system, which is a medical model doctors use
 1st Trimester – Woman’s right to choose is unfettered, no matter the woman’s rationale
2nd Trimester – State can regulate in ways that are reasonably related to the mother’s health, but
woman still has right to choose
3rd Trimester – The states can regulate and forbid abortions unless necessary to preserve life of
mother
o“Boost of technology” by allowing abortions to be practiced
oState has the right to favor a live birth over an abortion, and are not required to fund abortions
oState can still require the normal medical regulations and licenses that they would for any other medical
procedure

•Planned Parenthood of Southeastern Pennsylvania v. Casey

oAbortions for minors
Cannot get without parental consent, but an exception is a judicial bypass
Minor has to state with particularity why they will suffer emotional or physical harm if
they reveal their pregnancy to their parents
o24 Hour Waiting Period after speaking with medical expert
Policy to make women think twice to possibly change their minds
oIs abortion a fundamental right after this case?
The standard of review is changed (an abortion only review)
If substantial obstacle creates an undue burden
•Means whatever the court says it means
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