Constitutional Law Outline

Spring 2008

THE ENUMERATED POWERS

I. JUDICIAL POWERS

a. Constitutional Basis - Article III,

i. Section 1: The judicial power of the United States shall be vested in one Supreme Court, and in such
inferior Courts as the Congress may ordain and establish.
ii. Section 2: Judicial power shall extend to all cases in law and equity arising under the Constitution, US
laws, and treaties made…Supreme Court shall have original jurisdiction when Ambassadors and States are
parties. Supreme Court shall have appellate jurisdiction over all other cases.

b. Judicial Review  FEDERAL ACTIONS (Congress/Executive)

i. “It is emphatically the province and duty of the judicial department to say what the law is. A law repugnant
to the Constitution is void ” Marbury.

ii. Judicial Review – It is the duty of the judiciary to say what the law is.

iii. Marbury v. Madison

1. Before the end of Adam’s term as President, he appointed Marshall as Justice to the SC. Congress
then doubled the number of judges so as to have full Federalist control. The appointments were
confirmed by the Senate but they were not delivered by the time Jefferson took office. Jefferson
told Madison to withhold their delivery. Marbury was to be appointed and sought a mandamus
order to compel delivery as authorized under the Judiciary Act of 1789. The new Congress then
acted to repeal the Federalist action.
a. Holding –
i. Supreme Court can decide acts of Government to be Unconstitutional
1. Marbury had a right to the commission But the Judiciary Act was
deemed Unconstitutional b/c it authorized mandamus by the SC while
the Constitution as read by Marshall allows for mandamus only in
appellate review. Article III is interpreted as exclusive.
2. This is why judges take an oath to protect the C.

c. Judicial Review  STATE ACTIONS

i. Supreme Court has appellate jurisdiction over ALL cases involving Federal Law (Art. III).
1. There exist other such limitations on state powers (Art. I, Sec. 10).
2. State courts are bound to obey the Constitution – Supremacy Clause
3. Uniformity of the law is necessary

4. Martin v. Hunter’s Lessee (Civil Suit)

a. Lord Fairfax willed his Virginia land to his nephew Martin (resided in Britain). Virginia
granted that land to Hunter pursuant to a state law to confiscate land owned by British
subjects. Hunter sued to eject Martin. VA state court argues that the US SC does not
have appellate jurisdiction over a state issue.

i. Holding: Judgment for Martin based on US Treaties

1. Appellate power must extend to state tribunals – the Constitution limits
the powers of the states and there is a need for uniformity on
Constitutional issues from state to state.

5. Cohen’s v. Virginia (Criminal Proceeding)

a. Judicial review extends to criminal proceedings as well so long as there is a Federal Issue

ii. Types of Review:

1. Federal Courts – Reviewing congressional/executive act in light of federal law
2. Federal Courts – Reviewing state act in light of federal law
3. State Courts – Reviewing state act in light of federal law
4. State Courts – Reviewing state act in light of state law
 iii. Supreme Court Jurisdiction
1. Original Jurisdiction (Art. III, Sec. 2, cl. 2)

2. Appellate Jurisdiction
a. Independent and Adequate State Ground – Long Presumption
i. Supreme Court has jurisdiction over State Cases when they raise federal law – it
will not decide cases on state law grounds, even if they cite federal law cases so
long as there is a plain statement of such.
1. State courts have their own Constitutions and statutes.
2. What if someone raises a claim in state court that there is a violation of
federal law? How does the court make sure it is reviewing Federal
Law? (SC has no authority to review state law).
3. Court does NOT want to issue advisory opinions
4. Uniformity

ii. Michigan v. Long – Police searched Long’s car b/c they had reason to believe it
contained weapons. Protective search of the passenger compartment was
reasonable. Long argues the SC has no jurisdiction b/c the decision rests on an
adequate and independent state ground and federal law (MI courts provide
greater protection from search/seizure – a 4th Amendment issue).

1. Holding – Supreme Court has Jurisdiction

a. When a state court decision rests on federal law OR is
interwoven with federal law, and when the adequacy and
independence of any possible state law ground is not clear
from the face of the state court opinion – it will be presumed
that the state court’s decision is based on federal law and the
Supreme Court has jurisdiction

2. Plain Statement Requirement - State court ought to issue a plain

statement that its decision rests on adequate and independent state
grounds and the use of federal precedent is only for guidance and is not
controlling

b. Congress can limit (make exceptions to) but not expand (except by scope of matters
regulated by federal statutes. – Ex parte McCardle

c. Congress must declare limitations expressly and probably cannot eliminate appellate
review entirely. – Ex parte McCardle

d. LIMIATIONS ON FEDERAL COURT REVIEW

i. The Case or Controversy Requirement – There must be a real dispute with adverse parties abd real
interests at stake. The court tries to avoid unnecessary decision of substantial, complex and controversial
Constitutional questions.

ii. Advisory Opinions - Not Issued by the Supreme Court. Muskrat v. United States

iii. JUSTICIABILITY – A question subject to judicial resolution (there are identifiable standards) and
appropriate for such resolution (separation of powers concerns).

1. Five Categories of Non-Justiciable Subjects: Baker v. Carr

a. Foreign relations issues
b. Dates and duration of hostilities
c. Procedural Validity of Enactments/Constitutional Amendments
d. Status of Indian Tribes
e. Guarantee Clause questions (Art. IV, Sec. 4).

2. Six Non-Justiciable Conceptual Categories:

 a. Political Questions
b. Lack of judicially discoverable and manageable standards
c. Impossibility of deciding issue without an initial policy determination of a kind clearly
for non-judicial discretion
d. Impossibility of a court’s undertaking independent resolution without expressing lack of
respect due other branches of government
e. Unusual need for unquestioning adherence to a political decision already made
f. Potentiality for embarrassment from multifarious pronouncements by various
departments on one question.

3. Baker v. Carr – The challenge was on the apportionment of voting districts. Permitted judicial
review of a question under the Equal Protection Clause.
a. If there is a lack of a justiciable standard then the court will stay out of the decision-
making (Politics). Courts are wary of getting involved in political questions.

4. Nixon v. United States – Judge Nixon was convicted for taking bribes and refused to resign. To
remove him he must be impeached. The Senate formed a fact finding committee but D complains
that this process violates Art. I, Sec. 3, cl. 6 (The Senate shall have sole power to try all
impeachments)  the entire Senate should serve as a fact finding party.
a. Holding: Courts cannot decide what it means to “try impeachments”. There is no
identifiable textual limit. The terms in the Constitution are clear – the Senate has the
SOLE power, therefore the courts are out.
i. Checks on the Senate: House must charge and Senate must pass a super-
majority.

5. Vieth v. Jubelirer - Gerrymandering (dividing a state into voting districts so as to give one party an
advantage) will violate the Constitution if it goes “too far”, but the courts lack sufficiently clear
standards for determining when partisan scheming exceeds Constitutional bounds.
a. Supreme Court declined review b/c there is no standard to review. Political
gerrymandering is a political question.

iv. DISCRETIONARY REVIEW

1. Original Jurisdiction
a. Controversies between two or more states (boundaries and water)

2. Appellate Jurisdiction
a. Exists over Federal Courts and State Supreme Courts
b. Done through a Writ of Certiorari – allows the court to decide which cases deserve the
most attention  Discretionary
i. AC Conflicts across the country about meaning of Federal law (common)
ii. Important unsung issues (big issues)
iii. State Supreme Court conflicts in federal law

c. Maryland v. Baltimore Radion Show – When the Supreme Court denies a case, there is
no explanation. There are too many cases and it is not always the same reason for all the
justices.

v. STANDING – A party must have a personal and concrete stake which sharpens the presentation of the
issues. It is a decision whether the litigants are entitled to have the courts decide an issue. Know the
requirements below, BUT that the cases are all over the board.
1. Ensures the scarce resources of the federal courts are devoted to those disputes in which the
parties have a concrete stake

2. Article III Standing Requirements:

a. Generally:
i. Injury in Fact (concrete and particularized, actual/imminent)
ii. Injury directly traceable to challenged conduct of D, not the result of
independent acts of 3rd parties not before the court
iii. Injury likely to be redressed by court granting relief on the merits.
 b. Taxpayer Standing:
i. Generally not permitted, but an exception is for Establishment Clause situations
– Flast v. Cohen.

3. Prudential Limitations
a. Third Party Standing – Generally not permitted. State’s generally cannot assert standing
on behalf of citizens, Massachusetts v. Mellon.

i. Exceptions:
1. Special relationship between 3rd party and P,
2. Statutory authorization for P to sue on behalf of 3rd party
3. 3rd party rights indirectly violated by enforcement against P or vice
versa.

b. No Generalized Grievances – even if Article III requirements are met

4. Friends of the Earth v. Laidlaw – P’s claimed they cannot swim in the water anymore because of
water pollution. Court upheld the standing b/c of the injury to the plaintiff not to the environment.
Pollution damages lands they otherwise would have used.

5. Massachusetts v. EPA – Does Mass. have standing to compel the EPA to regulate itself? Court
upheld standing of Massachusetts to challenge the refusal of the EPA to issue regulations
governing greenhouse gas emissions by motor vehicles. Congress authorized this action in a
statutory provision, “a litigant to whom Congress has accorded a procedural right to protect his
interests can assert that right without meeting all the normal standards.”
a. While the issue is procedural, EPA may find that they can decrease the risk
i. Injury: Loss of stated owned coastal property
ii. Causation: Traceable to greenhouse gas emissions
iii. Redressability: Risk of catastrophic environmental damage would be reduced
b. Dissent – This is generalized harm and Global warming affects everyone. How do we
really know what the cause is.

vi. MOOTNESS
1. Rule – There must be actual controversy at the time court renders a decision, otherwise the case
will be rendered moot.
a. Outcome in the case will not matter to THIS plaintiff (advisory opinion).

b. Exceptions:
i. Class Actions – If named representative becomes moot, other may not be
ii. Repetition – If D could be affected by the issue again, evading review.
(pregnancy – 9 months)
iii. Voluntary change in conduct – Court makes judgment call
iv. Repeal of statutes
1. Not moot if altered, amended or substituted – Jacksonville
2. Moot is COMPLETE repeal – Hill v. Printing Indus.

c. Standing v. Mootness –
i. Standing – When you start the lawsuit there must be an injury
ii. Mootness – You had standing/injury, but things have changed

2. Friends of the Earth v. Laidlaw - D ceased its illegal conduct upon issued suit by P and argued the
case is moot. AC dismissed the claim as moot b/c not all of the three elements of standing existed
throughout the litigation.
a. Holding: Reversed – Not Moot
i. There are circumstances in which the prospect that D will engage in (resume)
harmful conduct may be too speculative to support standing but not too
speculative to overcome mootness
ii. Penalties for past behavior keep the case alive bu the court is concerned as to
whether cessation is permanent.
 vii. RIPENESS
1. A Justiciability doctrine determining when review is appropriate. It seeks to separate matters that
are premature for review b/c the injury is speculative and never may occur, from those cases that
are appropriate for federal court action
a. There must be present adverse impact OR attempted enforcement of statute.
b. Must exhaust administrative remedies.
c. To challenge the law you must violate it

d. Exception – First Amendment “Chilling” Effect

i. If the laws existence will deter people from exercising their 1st Amendment
rights, they can sue without violating the laws
ii. The mere presence of the law deters conduct
1. Applies to speech and felony prosecution

2. Ripeness v. Mootness – Difference in Timing

Ripeness -----------------------------------------Standing--------------------------------------------Mootness

Law is created and you want to sue Poole Gov’t said

Law not yet broken - Too hypothetical Hatch Act is bad idea

a. Threat of injury from conduct is too remote  Not RIPE

II. LEGISALTIVE POWERS

a. Constitutional Text
i. Purpose of the Constitution was to create a stronger legislative body than existed under the Articles of
Confederation.
1. Enumerated – Article 1, Sec. 8
a. Federal government has no power except what the Constitution grants

2. Reconstruction Amendments – (13- sec 2), (14, sec 5), (15, sec 2)

3. Inferior Courts – Article 3, Sec 1

4. Article IV
a. Sec 1 – Full Faith and Credit
b. Sec 3 – Power to admit states, Govern Territories
c. Sec 4 - Guaranty Clause

5. Article V – Proposing Constitutional Amendments

6. The Tenth Amendment

7. The Sixteenth Amendment

b. NECESSARY AND PROPER CLAUSE – Art. 1, Sec. 8, cl.18

i. Constitution gives Congress the power to effectuate its enumerated powers. Therefore, Congress can do
whatever is necessary and proper to affect its powers. The Clause augments and expands the powers of
Congress rather than limits them.

1. “We must never forget that it is a Constitution we are expounding” – McCulloch.

a. A broader reading is appropriate because the clause is among the powers of Congress.
Congress must have some discretion.

ii. Limitation:
1. Congress must be acting in some way to connect the powers which are enumerated to its actions.
How they implement the enumerated powers gives them more power though.
 iii. McCulloch v. Maryland – Maryland taxed banks operating within the state but without state authority. The
US created a bank which operated in Maryland and refused to pay the tax.
1. Holding:
a. While there is no express grant to Congress of the power to create a bank, it does have
the power to do other things such as wage war and collect taxes.
b. A bank would assist in these purposes  making it necessary and proper.
c. 10th Amendment is not appropriate b/c it doesn’t answer the question of what is given to
the federal government.

iv. US Term Limits v. Thornton – Like Congress, States have no power to add to the qualifications for
members of Congress – it is not reserved to the states in the 10th Amendment. The right to choose
representatives does not belong to the states, but to the people.
1. Holding: Article 1 imposes restrictions and states themselves cannot add to them.

c. COMMERCE CLAUSE
i. Constitutional Text – Art. 1, Sec. 8, Cl. 3
1. The single most important power of Congress.
2. The power to regulate commerce among foreign nations, the several states and with Indian tribes

ii. What is Commerce?

1. Commerce is traffic but something more  It is interaction, commercial intercourse, exchange,
goods moving in commerce. (navigation included).

2. The manufacture of a good is not commerce, Hammer v. Dagenhart

iii. What Power does Congress have over Commerce?

1. Power to regulate commerce among the several states (intermingled), between states.
a. Plenary Power - It can do whatever it thinks is necessary to regulate, including bans,
charging fees, etc.

2. No power generally when commerce is purely intrastate.

a. Congress CAN regulate intrastate activities if it has an EFFECT on interstate commerce.

3. Congress power is an exclusive grant over interstate commerce, so even when Congress has not
acted, States cannot act with regard to interstate commerce. States are excluded from imposing
such requirements.

4. Gibbons v. Ogden
a. NY statute granted Ogden the exclusive right to navigate boats in state waters. He
operated between NY and New Jersey. Gibbons was operating boats licensed under an
act of Congress in the same area. Ogden sought an injunction.
i. Holding: Congress acted properly and Gibbons has a right to be there too.

iv. Regulating National Economic Issues Through Commerce (Through 1936)

1. Child Labor Laws – Congress wants to control/prevent child labor. It creates and incentive
financially for manufacturers.

a. Hammer v. Dagenhart – Congress acted to End Child Labor through the commerce
clause. Purpose was to standardize the ages at which children may be employed in
mining and manufacturing.
i. Holding: Congress exceeded its powers.
1. The mere fact items were intended for interstate transportation does not
make their production subject to federal control.
2. This is something states should regulate.
3. The goods themselves are harmless to interstate commerce.

v. Regulating National Economic Issues – The New Deal & Modern Power
1. The Great Depression
a. Times were terrible and FDR was very aggressive. Federal Government created
programs to help the economy recover. The court however struck many of the programs
down (not commerce power).

b. FDR threatened the “Switch in time at saved 9” – A means of replacing older judges
with some that would allow his programs to pass.

2. Overruling Dagenhart with Darby

a. Congressional Motive is irrelevant. Congress’ power is plenary if it substantially affects

interstate commerce.

b. Who decides if it substantially affects interstate commerce?

i. Congress decides and the Courts defer to Congress.

c. 10th Amendment is NOT relevant to the Commerce Power. It is a truism, but the
Commerce power is established to reach any activity that has a substantial affect on
interstate commerce.

d. United States v. Darby -

i. Congress passed the Fair Labor Standards Act to exclude goods from interstate
commerce which were made in sub-standard conditions. It was meant to
regulate wages and hours worked. It did not regulate the good themselves.
1. Holding: Constitutional
a. Congress power extends to the regulation of intrastate
activities which have a substantial effect on the interstate
commerce or the exercise of Congressional power over it

3. Cumulative Affects Doctrine – Actions by one person are insignificant, but actions of all will
substantially affect interstate commerce.

a. Wickard v. Filburn - Filburn raised 239 bushels of wheat, in excess of his marketing
allotment. He would sell some, feed some to livestock and use some for home-consumed
purpose. Government wants to restrict how much wheat you can keep
i. Regulation Permitted
1. Cumulative Effects Doctrine – Home-consumed wheat adversely
affects the markets if everyone does this.

b. Maryland v. Wirtz - Congress expanded regulation to cover (1) all employees of any
enterprise engaged in production of goods for commerce and (2) include hospitals,
nursing homes and schools.
i. These institutions are major users of goods imported through interstate
commerce and work stoppages would interrupt this flow of goods across state
lines.
ii. Court is very deferential here.

c. Heart of Atlanta Motel v. United States

i. Motel was readily accessible to interstate and state hwy’s and 75% of its guests
were from out of state. Before 1964, it had a policy to refuse to rent rooms to
blacks. Civil Rights Act entitles everyone to full enjoyment of public
accommodations.
1. Holding: Congress has the power to prohibit racial discrimination by
“local” motels. Such discrimination impedes interstate commerce, it
discourages blacks from traveling.
a. Evaluate all the factors cumulatively
 d. Katzenback v. McClung – Ollie’s BBQ is 11 blocks from the interstate. It caters to white
collar families and has take-out for blacks. There is no claim that interstate travelers
frequent it.

i. Holding: Congress CAN Regulate under Civil Rights Act

1. Cumulative Effects - Practice taken as a whole across the country
impedes interstate commerce.
a. Fewer customers, less sales, less food ordered
b. Artificial restriction on market
c. Depressant Effect on business conditions

4. Rational Basis TEST -

a. Whether Congress had a rational basis for concluding that the regulated activity affects
interstate commerce?
i. If so, whether there is a rational connection between the regulatory means
chosen and asserted goals?

b. Hodel v. Virginia Surface Mining – Supreme Court upheld Federal Act regulating mining
operations – Diminish utility of the land, Cause erosion/floods, pollute the water, etc.
i. Rehnquist – There must be a limit to the commerce power
1. It must be a substantial effect on commerce AND
2. Must be reviewable by the courts as to whether that is true

vi. Modern Limitations on the Commerce Power

1. Lopez Standards - Congress MAY Regulate the Following:

a. Use of channels of interstate commerce.
i. Roads, bridges, ships
ii. Deferential Review, Guillen

b. Instruments of interstate commerce OR persons/things, even when the threat comes from
intrastate acts.
i. Airplanes, trains, buses
ii. Deferential Review, Guillen

c. Activities having a substantial relation to interstate commerce – Those that substantially

effect interstate commerce. Look to the FACTORS:

i. Is it commercial/economic activity?
ii. Whether there is an express jurisdictional element relating to interstate
commerce – “She can have a civil remedy if…”
iii. Legislative history and Congressional findings about a connection
iv. Nature of the causal link - Direct or Attenuated?

d. United States v. Morrison

i. Petitioner alleged D assaulted and repeatedly raped her. She sued under
Violence Against Women Act of 1984. The act was passed according to
commerce, but is that appropriate?
1. Holding: Commerce Clause does NOT apply
a. Gender motivated crimes are not economic activity.
b. There is no jurisdiction element
c. Legislative Findings – Reasoning is too attenuated and would
allow Congress to regulate any crime (a right reserved to the
states).

e. United States v. Lopez

i. Gun-Free School Zone Act made it a crime to possess a gun in a school zone. D
argued this was not applicable to the commerce clause and the government
argued that education affects commerce – through a chain of causation.
 1. Court held the act exceeds the authority under the commerce clause b/c
it was criminal (not economic) in nature, there was no legislative
history related to commerce.
2. Act did not satisfy the factors under the 3rd Commerce Power.

f. Opinions of the Justices:

i. Thomas (Concurring) – Court has drifted far from the original understanding of
the commerce clause and the court should reconsider the “substantial effects”
test. The Commerce Clause deserves a more narrow reading. If it is read too
broadly, there is no need for the enumerated powers.

ii. Breyer (Dissent) –

1. Principles to Consider:
a. Congress has the power to regulate activities that significantly
affect I/C
b. Court must consider the Cumulative Effect of conduct
c. Courts must give Congress considerable leeway in
determining whether there is a sufficient connection between
the activity and interstate commerce.
2. Must judge the matter independently (no deference)

iii. Souter (Dissent) – Apply the two-step Hodel Test. Rational Basis should be the
standard. Could Congress rationally conclude an effect on interstate commerce.
This is a deferential approach.

g. Gonzalez v. Reich – Substantial Effects of Local activities

i. Court upheld Federal Act combating traffic of marijuana by prohibiting the local
cultivation and use of the drug (even when state authorized for medical
purposes). Congress can regulate a purely intrastate activity when a failure to do
so would undercut the regulation of the interstate market. Leaving this pot
outside Federal control would draw the stuff into the national market.
1. Analogize to the Wickard case. (wheat regulation)
2. Concurring – uses the Necessary and Proper Clause
3. Dissent – If Congress can regulate this, it negates the police powers

d. TAXATION AND SPENDING POWERS OF CONGRESS

i. Taxation –
1. Express Power - Article I, Sec. 8, cl. 1
a. Grants Congress the power to lay and collect taxes, to pay debts, and provide for the
common defense and general welfare of the US.
b. Tax and pay the debts of the US.
c. 16th Amendment allows for collection of individual income taxes
d. Congress can tax and spend on anything for the general welfare

ii. Spending –
1. Express Power - Article I, Sec. 8, cl. 1
a. Grants Congress the power to lay and collect taxes, to pay debts, and provide for the
common defense and general welfare of the US.
b. Tax and pay the debts of the US
c. Congress can tax and spend on anything for the general welfare

2. Conditional Grants of Money

a. A means for Congress to do indirectly what it cannot do directly

b. Congress offers state’s money if they do various things Congress wants, Otherwise they
don’t get the money.
i. Congress cannot tell KU it must teach certain subjects but it can offer money to
KU and put a condition on that money that KU teach those subjects.
ii. This is okay because there is a choice on the part of the state (university)
 3. Four Part Test – Dole
a. The power must be used in pursuit of the “General Welfare”
b. Any conditions must be declared unambiguously
c. Conditions must be related to the “Federal Interest”
d. Other Constitutional provisions must not prohibit the spending.

e. South Dakota v. Dole – Regulating State Drinking Age

i. State permits 19 year olds to purchase 3.2 beer. Congress passed a law
withholding 5% of federal highway funds from states that permitted the sale of
alcohol to those under 21.

1. Holding: Regulation Upheld (Encouragement not Coercion)

a. The enactment of the law remains the prerogative of the states,
they have the ultimate choice.
b. Highway safety is the government interest

e. OTHER CONGRESSIONAL POWERS

i. TREATIES –
1. Express Power – Article II, Sec. 2, cl. 2, and Article VI
a. All treaties made under the authority of the US are Supreme

b. Congress can enact laws implementing the treaty – If the President and required Senate
vote believe it is important enough, the court is not in a position to deny the power to
enact such a law.
i. Courts are Deferential

c. Missouri v. Holland - Upheld a treaty between US and Canada obligating both countries
to seek legislation protecting birds that traversed both countries. Power to make treaties
is expressly delegated and treaties are declared the supreme law of the land (Art 2 Sec 2
and Art. 6). The issue is whether the treaty is forbidden by the 10th Amendment. Court
held it not sufficient to rely upon the states and upheld the treaty.

ii. OTHER POWERS

1. Enumerated Power – Article I
a. Borrow money, Coin money, Aliens, Bankruptcies, Post offices, Patents/Copyrights,
Lower federal courts, US territories, War powers

2. Enforcement of Civil Rights

a. 13th Amendment, Sec. 2
b. 14th Amendment, Sec. 5
c. 15th Amendment, Sec. 2

III. EXECUTIVE POWERS

a. EXPRESS POWERS
i. Article II –
1. Section 1 –
a. Executive power shall be vested in the President
2. Section 2 –
a. Commander in Chief, Pardon Authority, Treaty Power, Appointments of Ambassadors,
Judges, Principle Officers, Recess Appointments
3. Section 3 –
a. State of the Union, Recommend/Propose legislation, Convene both Houses of Congress,
Receive Ambassadors, Faithfully execute the laws, Commission all officers of the United
States
4. Section 7 –
a. Sign laws – Veto and Pocket Veto
b. GENERAL CONSTITUTIONAL FRAMEWORK – EXPRESS AND IMPLIED POWERS

i. President’s power extends only to the Constitution and whatever Congress designates

1. Youngstown Sheet & Tube v. Sawyer –

a. Steel industry had a labor dispute. Before they planned a strike, Truman made an
executive order to have the Secretary of Commerce take possession of and operate the
nation’s steel mills. Make sure production doesn’t stop. Lawsuit is brought arguing he
doesn’t have the power to do.

b. Holding – Must find express power either (1) in the Constitution, (2) in a federal statute,
or (3) Congressional authorization. None of these existed and this is a category 3
according to Jackson.

c. Concurring (Jackson) – There are three categories:

i. Express Grant –
1. Power is at a maximum and the court will be deferential

ii. Congress and Constitution are silent (Neutral)

1. President must rely on his own independent powers, statutes may
provide implicit Congressional approval. Zone of Twilight

iii. Expressly Forbidden by Congress

1. President’s powers are at their weakest and he must point to some
enumerated power

d. Concurring (Frankfurter) – “Life’s gloss” affects Constitutional interpretation. History

and tradition matter. Long-standing practices should be considered.

c. SPECIFIC POWERS

i. Executive Lawmaking Delegation – President cannot legislate, but it is true that in many statutes,
Congress leaves all the details to the President to implement.

ii. Executive Orders – Governing the Executive Branch.

1. Presidents have asserted power to issue orders relating to organization of the executive branch, use
of federal property, and terms on which the Government will enter into contracts. Emancipation
Proclamation

2. Dames & Moore v. Regan –

a. President Carter made an agreement with Iran and wiped out all attachments Americans
made on Iranian property in US courts. He also suspended all claims in American courts
against Iran. They wanted to create an arbitration tribunal in the Netherlands. Carter did
this under executive agreements and orders. Some people challenged this saying he
doesn’t have this power.
i. Holding: Power is permitted
1. Nullifying the attachments was permitted under Congressional statute –
Jackson #1
2. Suspending the claims was Jackson #2. Court looked at history and
found other examples

iii. Foreign Affairs and War –

1. Constitutional Sources of Power to wage war – War Powers are divided:

a. Congress has power to tax and spend for common defense and power to declare war,
raise and support armies, make rules and regulations for military.
b. President is Commander in Chief. The relationship is uncomfortable.
 2. Executive Agreements – Allows President to enter into agreements with foreign nations without
Senate or Congressional approval. Presidents enter into these all the time. New presidents may
rescind executive orders. These rarely get litigated.

a. United States v. Curtiss-Wright Export:

i. Congress authorized the President to prohibit the sale of arms to Bolivia and
Paraguay if he found such prohibition would contribute to the reestablishment of
peace. The President proclaimed an embargo and Curtiss-Wright was indicted
for violating its terms. Congress turned its authority over to the President.
1. Holding: Permitted.
a. Court will be deferential when actions relate to foreign affairs
b/c he is the sole representative of the country. (Congress has
primary role in domestic affairs)
b. Delegation – Court has never struck down a Congressional
delegation since the New Deal.

3. War on Terrorism – What is the President’s authority regarding post-9/11captured enemy

combatants?

a. Hamdi v. Rumsfeld –
i. D is an American in Afghanistan following 9/11/01. Congress authorized
President to use “all necessary and appropriate force” against those he
determined planned, authorized or aided the attacks. D was seized and turned
over to the US as a Taliban fighter. His father argues he was being held in
violation of Due Process and the Non-Detention Act (forbids any imprisonment
or detention of American citizens, except pursuant to an act of Congress.
1. Holding: Initial detention was authorized but he cannot be held
indefinitely – he has Due Process rights.

b. Hamdan v. Rumsfeld –
i. D was captured in Afghanistan and transported to Guantanamo (not US citizen).
D argued that the military commission, convened by the President, lacked
authority to try him. The President had issued a exec. order (authorized by
Congress) that governed the detention treatment and trial of non-citizens.
1. Holding: This is a Jackson #3. Congress passed an act precluding
such Presidential action.

iv. Executive Immunity / Privilege

1. Key Concepts:
a. Privilege is Presumptive – NOT Absolute
b. President has no right to control his Presidential papers
c. President has absolute immunity from civil liability extending from official duties of the
office
d. Absolute immunity doesn’t extend to non-official conduct.

2. United States v. Nixon –

a. Pres. Nixon claimed executive privilege when his appointed independent prosecutor
sought pres. tapes / documents. The Court rejected the claim.

i. The President has a presumptive privilege to protect communications between

high government officials, but NOT Absolute and does NOT outweigh
compelling interests.
1. It applies when there is need to protect the military, diplomatic, or
sensitive national security interests.
2. Here it was overcome by the interests of criminal justice

3. Nixon v. Fitzgerald –
a. Fitzgerald sued claiming Nixon caused him to lose his job for “whistle-blowing”. Court
affirmed the dismissal of the action – Executive Privilege.
 i. President has absolute immunity from civil liability for any acts within the
“outer perimeter” of his official duties.
ii. Applies whether or not he is currently in office.
iii. Pres. Is checked politically in other ways – media, impeachment, Congressional
oversight, re-election

4. Clinton v. Jones –
a. Can President be sued civilly while in office for non-Presidential related reasons? Ark.
state employee sued for sexual advances by President Clinton. Clinton contends that the
case and additional litigation may impose an unacceptable burden on his time and energy
and impair effective performance of his office.

i. Holding: Suit may proceed b/c it relates to his unofficial conduct, but
Presidential schedule must be considered.

IV. SEPARATION OF POWERS

a. Two Ways to Approach These Cases

i. Formalism – Article II gives all executive powers to the President. Lines are clear and distinct.

ii. Functionalism – Separation of Powers is to ensure no branch gets too powerful but there ought to be some
flex in the joints. Acknowledges that the separation is not all that clear.

b. The Legislative Veto

i. The rise and proliferation of administrative agencies and Congress’ desire for some control led to the
advent of this post-enactment mechanism where Congress could “veto” executive branch/agency decisions.
Congress enacted both one-house and two-house vetoes in many federal statutes. They are
Unconstitutional.

1. INS v. Chada –
a. Involved one-house legislative veto of a deportation decision of the AG, the court held
such vetoes unconstitutional across the board, as violations of the Presentment &
Bicameralism Clauses of the Constitution (Art. 1, Sec. 7, cl. 2, 3). They required any law
to be presented to the President and that laws be passed by both houses of Congress.
i. Legislative veto violated this process. Unilateral action is only permitted during
impeachment process.
b. This is a Formalist analysis.
c. Functionalists disagree – bicameralism was satisfied when the law was initially passed
and Congress should retain the veto power

2. Fourth Branch of Government - Without the veto power, there is very little which oversees
government agencies.

c. The Line Item Veto

i. Allows the President to cancel spending. This occurs after the bill becomes a law and is only of part of the
statute (not the entire thing).

1. Clinton v. New York –

a. Court invalidated the Line Item Veto Act. This act did not qualify the President’s
discretion to act to cancel; there was no Bicameralism and Presentment.
b. Formalistic

d. Congressional Delegation
i. The Court has long recognized the concept that Congress cannot delegate its legislative power to other
entities, but can enact legislation giving others authority to implement if the law provides substantial
guidance to the implementing agency or officials. Non-Delegation Doctrine.

ii. The Court has never found any act of Congress to violate this doctrine:

1. Mistretta v. United States –

 a. The US Sentencing Commission was created by Congress as an independent body in the
Judicial Branch with the power to determine sentencing ranges for all federal crimes.
Three of the 17 members must be judges.
i. Holding: Permitted. Congress charged the Commission with three goals,
specified four purposes for them to pursue and identified a number of factors
and characteristics for the commission to consider.
b. This is a Functional Approach – considered okay despite line blurring.

e. Appointment and Removal of Officers –

i. Appointment - Article II, Sec. 2, cl. 2

1. Principal Officers –
a. President nominates and Senate confirms
b. Who is a Principal Officer?
2. Inferior Officers –
a. Congress may vest these appointments in the President’s, Courts, or in the Heads of
Departments.

i. Mistretta v. United States –

1. Giving the President the authority to appoint the members of the
Sentencing Commission – including judge members – did not violate
Article II.

ii. Edmond v. United States –

1. Upheld authority of the Secretary of Transportation to appoint civilian
members of the Coast Guard Court of Appeals.
a. Inferior Officers - They were supervised by other judges, who
could remove them without cause.

ii. Removal – Constitution is silent

1. Bowsher v. Synar – Removing Comptroller General

a. To get a balanced budget, Congress created a system where the Comptroller General will
go through the budget and figure out what cuts will be made, and send it to the President.
i. Holding: Unconstitutional usurpation of executive power b/c it empowers
Congress to terminate the Comptroller General for his performance.
1. The comptroller would be exercising executive power while technically
removable by Congress. CG is a legislative official b/c interpreting the
budget is legislative in nature. Congress cannot control the execution
of its laws
ii. Formalistic

2. Morrison v. Olson –
a. Court upheld Act providing for Independent Counsel to be appointed by a “special
division” court to investigate high level executive branch officials.
i. Holding: Independent Counsels are Inferior Officers
1. They do not have to be appointed by the President
2. Removal by AG for “Good Cause” did not violate presidential
prerogatives.

3. Humphrey’s Executor v. United States –

a. Congress created the FTC. Court found that Congress could limit the grounds for
removal of a Commissioner of the FTC. President argues they are executive officers, but
court said they are quasi-judicial b/c they make decisions in a judicial fashion.
i. Congress may limit removal power over officials exercising quasi-
legislative/judicial powers.

V. FEDERALISM

a. INTRODUCTION –
 i. States have general Police Powers. Therefore the question is not whether the Constitution authorizes States
to act, but whether it prohibits the States from acting.

ii. Major Areas of Federalism Concern

1. State immunity from Federal Regulation – 10th Amendment
2. State immunity from suits to enforce Federal Law – 11th Amendment
a. States cannot be sued without their consent for violating Federal Law
3. The Negative/Dormant Commerce Clause
4. The Supremacy Clause and Federal Preemption of State Law
a. Federal law prevails, unless Congress never had the power to act initially
5. Privileges and Immunities of State Citizenship (Art. IV, Sec. 2, cl. 1 – 14th Amendment)
6. Others – State Term Limit effort

b. THE 11TH AMENDMENT – State Immunity from Suit

i. Language – “The judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another state, or by
Citizens of Subjects of any foreign state.

ii. General Rules:

1. The 11th Amendment does NOT:
a. Bar suit by one state against another in Federal Court, S. Dakota v. N. Carolina

b. Bar suit by the U.S. against a state in Federal Court, United States v. Mississippi

c. Apply to suits based on state law brought in state courts

i. Nevada v. Hall

2. 11th bars a foreign government from suing a state in Federal Court, Monaco v. Mississippi

3. States have sovereign immunity from suits based on Federal Law brought in state court (though
this is not derived from the 11th.), Alden v. Maine

4. A state may consent to suit in Federal Court, but must make its intent to do so clear. There is no
constructive or implied consent/waiver.

iii. History
1. Ratified to overrule Chisholm v. Georgia, where the Supreme Court held a citizen of South
Carolina could sue Georgia in Federal Court.

iv. THEORIES OF THE 11TH AMENDMENT

1. Diversity Theory – (Narrow View)
a. Purpose of the 11th was to limit Article III jurisdiction and prohibit suits in Federal Court
between citizens of States A against State B, when diversity of citizenship was the sole
basis for federal jurisdiction.

2. Immunity Theory – (Broad View)

a. The Framers intended to preserve sovereign immunity of states in Federal Court and the
error of Chisholm was a failure to recognize that fact

3. Separation of Powers/Federalism Theory – (middle ground)

a. Purpose was to prevent federal courts from unduly interfering in matters of state
government. Perhaps not all suits against state officials should be barred in federal court
and the 11th places NO limit on Congressional powers of federal courts vis-à-vis the
States.

v. Case Law Concepts

1. 11th does NOT bar suit against a state official when seeking injunctive relief – Young
 2. Waiver of immunity must be clear – Seminole Tribe

3. States have immunity in state courts from Federal claims – Alden v. Maine
a. Suits against states under state laws are up to the states

b. Several ways to make sure federal law gets enforced

i. Good faith of the states will take us a long way in following the law
ii. States may consent to suit
iii. Congress can cite spending power (drinking age)
iv. US can sue
v. Use Sec 5 of the 14th Amendment
vi. Immunity does not apply to local government. If City of Lawrence violates Fed
Law you can sue them.
vii. You can sue officials for injunctive relief – Ex Parte Young.

vi. Ex Parte Young

1. MN legislature passed laws fixing RR rates, but the companies did not comply. S/H filed suit to
enjoin enforcement of the laws by the AG, they were afraid of losing money. Court found the
rates Unconstitutional and enjoined AG. AG gets a mandamus order from state court stating that
he has to enforce the laws, federal court holds him in contempt.

2. Does the 11th bar an action for injunctive relief against a state official?

3. Holding – 11th does NOT bar suit against a state official when seeking an injunction. If the act
which official seeks to enforce is Unconstitutional, he is stripped of his official character and is
subjected in his person to the consequences of his individual conduct.
a. Holding otherwise would leave the state and officials free to violate federal law.

b. Dissent – He is the state & that’s what the 11th prohibits. Opens the door to federal court
supervision of state gov’t institutions.

vii. Seminole Tribe of Florida v. Florida

1. Does Congress have the power to abolish a state’s immunity?

2. Seminole Tribe wants gaming activities authorized and they can do it so long as they negotiate in
good faith with Florida. They sued the state and the Governor claiming they can name the state
b/c the federal statute allows them to name the state to compel compliance.

3. Holding: Court overrules Penn Gas (case that abolished immunity)

a. Article I does not authorize Congress to override immunity
b. Ex Parte Young is not available to sue the Governor for remedy b/c the statute has
provisions for remedy built in, which they have not complied with
c. Waiver must be clear

viii. Alden v. Maine -

1. State employees of Maine sued Maine in Federal Court – after Seminole Tribe their case was
dismissed in Federal Court. So the filed suit in state court. State Courts dismiss on state
sovereignty. They claim immunity b/c this issue is on a Federal Act.

2. Holding – States have immunity in state courts from federal claims.

a. Immunity predates the Constitution. States were understood to have immunity before the
Constitution.
b. The 11th only reaffirmed what already existed
c. Congress acted to restore the Constitutional design
 3. States sued under their own laws – that is up to the State

ix. What Relief if Possible?

1. 11th Permits removal of officials

2. 11th DOES bar the payment of money damages from the state treasury, but not prospective
injunctive relief. This applies even if the State will ultimately be indemnified from a non-state
source. – Regents Univ. Cal v. Doe

3. 11th does NOT bar injunctive relief that requires the State to spend $$$ in order to comply, so long
as the expenditure is incidental to the primary injunctive relief – Milliken

4. 11th BARS federal court from ordering injunctive relief against the State when the basis of the
order is solely state law – Halderman

5. 11th does NOT preclude the SC from reviewing decisions coming from State courts in cases which
the State is a party and dollars are at stake.
a. Challenges to state taxes under the dormant commerce clause where state waived
immunity.

x. Can Congress Override the Immunity?

1. Congress can override a State’s 11th Amendment immunity pursuant to its powers under the 14th
Amendment, Sec. 5. But it must make clear it intent to do so.

2. Congress CANNOT override States 11th Immunity under the Commerce Clause power. Or any
other Article I power.

xi. Does the 11th Amendment apply to Municipalities?

1. The 11th Amendment is NOT APPLICABLE to suits against counties, cities, or other local
government entities in federal court.

c. THE 10TH AMENDMENT – Does it mean anything? What can Congress do/not do to the States?

i. Text – The powers not delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.

ii. Case Law Concepts:

1. If federal law does not target the states, it applies to the states unless Congress and the political
process exempt the states – Garcia
2. Congress cannot “commandeer” states to pass laws – New York
3. Congress cannot compel State enforcement of federal law - Printz

iii. Garcia v. San Antonio Metropolitan Transit Authority –

1. Issue whether minimum wage provision of federal law should apply to city mass transit system.
The law at issue is labor and employment and is not targeting the states. Since there is no
targeting, leave it to the political process

2. 10th provides no enforceable limitation on federal power nor independent protection of state
sovereignty. Congress and the political process should decide the limits not the courts

3. Congress will exempt the States in the laws when they think it necessary

4. Gregory v. Ashcroft – Courts will assume Congress did not mean to effect the State’s interest
unless Congress explicitly says so.
 iv. New York v. United States –
1. 10th prevents Congress from compelling states to pass laws. Congress may however attach
conditions to federal spending or preempt state regulation altogether under the Commerce Power.

v. Printz v. United States –

1. Congress passed gun law directing state police to regulate it. The court found that Congress
cannot compel state and local officials to enforce federal law.
a. There is no historical practice of this
i. Testa v. Katt - State judges must apply federal law though when required due to
the Supremacy Clause

b. Structure of the Constitution:

i. Dual sovereignty
ii. Congress regulates people not States
iii. This would allow Feds to implement and pay nothing – no accountability

c. Dissent – This is appropriate in a National Emergency

d. PREEMPTION
i. When does Federal Law preclude the application of State Law?

ii. Constitutional Basis – Supremacy Clause, Article VI

1. The question is typically not Congressional power, but its Intent.

iii. Types:
1. Express in Federal Statute –
a. Look to the intent of Congress (clarity of language, savings clause)
b. Presumption against Preemption?
c. “Savings Clause”

2. Implied –
a. Field Preemption – Scheme of federal law is so pervasive as to make a reasonable
inference that Congress left no room for the State to supplement
b. Conflict between state and federal law
i. Compliance with both is impossible
ii. If State law impedes the federal objective – if it serves as an obstacle

c. Frustration of Federal Purpose / Need for National Unity

e. NEGATIVE/DORMANT COMMERCE CLAUSE – Two Tier Approach

i. Overview –
1. IMPLIED PREEMPTION
a. The fact that Congress has the power means the court has to protect the power even when
Congress has not yet acted, but the states have. What do you do when Congress hasn’t
spoken?

2. Commerce Power is exclusive

a. States have general police powers. But, if the state impacts Commerce too much, it can
be unconstitutional.

ii. TEST 1 - Does the State Law Discriminate Against Interstate Commerce on its Face?
1. If YES - Per Se Invalid
 a. Apply strictest scrutiny and uphold only if state has chosen least onerous means to
address legitimate local purpose.
b. State legislation here will RARELY be upheld

2. What is Discrimination?
a. Differential treatment of in-state and out-of-state economic interests that benefits the in-
state and burdens the other.
b. The Key is whether it exists, not the extent of discrimination (a few cents difference in
prices qualifies).

iii. TEST 2 - Does the State Law regulate even-handedly with only incidental effects on Interstate
Commerce? (Facially Neutral)
1. Apply the Pike Balancing Test –
a. Compare the burden imposed on interstate commerce with the local benefits.

b. The law is Unconstitutional only if the burdens are clearly excessive.

c. “Where the statute regulates evenhandedly t effectuate a legitimate local public interest,
and its effects are only incidental on interstate commerce, it will be upheld unless the
burden imposed in interstate commerce is clearly excessive.”

2. Gibbons v. Ogden –
a. States posses the concurrent power to regulate commerce. State activity may be
unconstitutional even when Congress has not exercised its powers

iv. Cases Deemed Unconstitutional

1. Philadelphia v. New Jersey –

a. NJ law prohibits anyone from bringing into NJ solid or liquid waste that originated or
was collected outside the state.

b. Court Preempted – It is discriminatory on its face b/c it discriminates against out-of-state

sources. There is no basis to distinguish between waste sources b/c the environmental
impact will be the same

v. Market Participant Exception –

1. The tests may NOT apply if the State is discriminating against interstate commerce in the State’s
capacity as a market participant (rather than regulator). If the State is enaged in commerce.
a. Ex: Choosing to sell state-produced cement only to State residents – Reeves Inc.

f. PRIVILEGES AND IMMUNITIES – Article IV, Sec. 2

i. Text – The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the
several States.”

ii. Purpose and Scope

1. Non-Discrimination Provision – Based on State Residency
a. Applies when non-residents are discriminated

2. Not-applicable to corporations or aliens – they cannot sue for violations

iii. Relationship to Dormant Commerce Clause

 1. Overlaps – a law might violate both
2. Differences :
a. PI – only implicated by discrimination whereas DC also is implicated by laws that burden
interstate commerce, even if neutral on its face.
b. DC applies to corporations/aliens
c. PI has no Market Participant Exception

iv. Relationship to 14th Amendment Privileges and Immunities Clause

1. 14th – Protects Federal citizenship
a. Right to vote in federal elections, use navigable waters, access to federal courts
b. Also includes right of interstate travel
c. There may be overlap between the two and Dormant Commerce.

v. ANALYSIS - Two Step Approach:

1. Is the activity at issue a protected privilege?

a. Protected Privileges and Immunities:
i. Constitutional Rights/Bill of Rights
ii. Doing business, Employment, Earning a Living

2. If so, (a) is there a substantial reason for the difference in treatment and (b) does the
discrimination bear a substantial relationship to the State’s objective?
a. If so, the State may discriminate
i. Higher university tuition for non-residents
ii. Hunting

g. STATE TERM LIMITS

i. U.S. Term Limits v. Thornton –

1. States cannot add to the Constitutional requirements for members of Congress set forth in Article I
by imposing term limits on their own Senators/Representatives.

INDIVIDUAL RIGHTS – Bill of Rights and 14th Amendment Due Process/Equal Protection

I. STATE ACTION

a. 14th Amendment Requirement – Participation of State Actors with Private Citizens

i. 14th Amendment Due Process Clause applies the Bill of Rights to the States

ii. 14th is the primary restraint on States impeding individual rights, Not Federal Government

iii. Civil Rights Statutes

1. Enacted in 1883 – Made racial discrimination in public accommodations (private entities
- hotels/restaurants) unlawful.
a. Court justified this on the Commerce Power though. Private entities are
NOT State Actors and therefore the 14th Cannot apply.

b. TEST – One of Two Requirements:

i. Is the Private Actor performing a government function OR

1. Conspiracy – private parties who conspire with state actors may engage in state action
2. Historical/Exclusive power of the State
3. Direct involvement of State Actor
 ii. Sufficiently involved with or encouraged by the State so as to be held to the State’s
Constitutional obligations?
1. Symbiotic Relationship / Joint Enterprise

c. CASES – Performing a Government Function

i. Terry v. Adams –
1. The Jaybird Democratic Association (all white) excluded blacks from pre-primary
elections. They were not merely a private club, they were part and parcel of the
Democratic party. Having elections and nominating candidates is part of the government.

ii. Marsh v. Alabama –

1. Jehovah’s Witness sought to distribute literature in a privately owned town contrary to
the town’s wishes. She was warned, she refused to leave and she was arrested for
trespass. Court held the town was de facto government
a. Having and running a town is a governmental function

iii. Evans v. Newton –

1. Senator leaves property for park to be used by Whites only. Court held the park to be a
governmental function b/c it is municipal in nature. State courts that aid private parties to
perform that function implicated prescribed conduct.

iv. Jackson v. Metropolitan Edison Co. –

1. A heavily regulated private utility with a state certificate to sell electricity, terminated
service petitioner for nonpayment. Petitioner claimed that termination without adequate
notice deprived her property without due process.
a. No State Action – Providing power isn’t a traditional/exclusive State
Action.

v. Adickes v. SH Kress –
1. Custom / usage of using state criminal trespass statute to refuse service to minorities and
conspiracy between state and private actors is State Action.

d. CASES – Encouragement by the State

i. Shelly v. Kraemer –
1. White neighborhood has a covenant that no blacks can live there. Black people bought a
home and neighbors sued. This is all private – No state Action.
a. Court Cannot Enforce the Covenant because that is state action and
enforcement would violate Equal Protection

ii. Evans v. Abney –

1. (Prior Case) Park is open only to whites. What happens to the park since it is in
violation? Park goes back to senator’s heirs and the court enforced this.
a. State court’s ruling here was NOT State action. There may be neutral
rules that have an undesired effect. The state is not promoting or encouraging
the effect
 iii. Reitman v. Mulkey –
1. CA Constitutional amendment prohibited any state law restricting the right of a
homeowner to sell their property to any person they wish. IF the reason is to encourage
or facilitate discrimination then it will be State Action.
a. Here, private discrimination was encouraged

iv. Moose Lodge v. Irvis –

1. Black man was refused service at the lodge. He claims that since PA issued the lodge its
liquor license, the refusal to serve him was State Action
a. Court: Licenses alone do not make clubs state actors

e. Debtor/Creditor Self-Help Remedies

i. Purely self-help remedies, even though expressly authorized by State law, are NOT State Action
when carried out by private parties.

ii. Self-help remedies with State Actors present or actively assisting is Always State Action.

1. Flagg Bros. v. Brooks –

a. P was evicted and city had her stuff stored by D. D demanded her
account be brought up to date or he would sell P’s stuff. P sued to enjoin the
sale. The State has a law that authorizes the sale by a private company. P
argues the State has delegated its function to a private party.

i. NOT STATE ACTION – the law has long allowed private resolution.
The state acquiesced but did not encourage or compel.

ii. State law authorization is NOT enough for State Action

f. Contracting Out / Delegating State Duties – May constitute State Action

i. West v. Adkins – Private doctor treats State prison inmates under contract with prison to provide
medical services is a State Actor

ii. Black v. Indiana Area School District – No State Action when schools bus driver employed by
private company that contracted with public schools, molested children who rode the bus.

iii. Yeager v. City of MacGregor – No State Action for volunteer fire department whose building and
equipment are furnished by the State because firefighting is NOT an exclusive public function.

g. Federal Government / Foreign States / Tribes – Generally not State action unless such officials
conspire with State Actors.

h. Private Schools
i. KU is a State Actor, Harvard is NOT.
 ii. Consider funding, Extent of regulation controlling decision-making, Whether activity is an
exclusive prerogative of the government, symbiotic relationship.

1. Rendell-Baker v. Kohn –
a. Private school specializes with students who suck at school. Public
funds have accounted for 90% of the operating budget and the school must also
comply with various state regulations. Petitioners are teachers who were
discharged from the school for supporting student criticisms against school
policies. Was the firing State Action?

i. NOT STATE ACTION – Funding is important but not determinative,

Regulation is not determinative, educating kids is not an exclusive
prerogative of the government and the relationship is no different than
with a governmental contractor.

i. Private Associations / Quasi Public Organizations:

i. San Francisco Arts v. US Olympic Comm. –

1. Court upheld Congressional grant of the right to prohibit certain uses of the word
“Olympic” and enjoined petitioner from calling its athletic competitions the “Gay
Olympic Games”. P claimed the enforcement violated equal protection.

a. USOC is NOT a State Actor but an independent organization despite US

President being the honorary President.

ii. NCAA v. Tarkanian –

1. NCAA imposed sanctions on UNLV and recommends suspension of coach. UNLV
suspends. The NCAA is a Private Organization but many of its member schools are
public universities. Coach says he was denied Due Process.

a. NOT STATE ACTION – The NCAA is not a state actor because (1)
large number of private school members, (2) schools are not required to
participate, (3) no delegation to the NCAA of authority to discipline member
school employees.

iii. Brentwood Academy v. Tennessee Secondary School Athletics –

1. TSSA regulates interscholastic sports among public and private TN high schools. Its
rules (approved by the state) governed student eligibility and academic standards. It
penalized Brentwood for violating a rule. TSSA says it is a private corp., not a state
actor

a. STATE ACTION – Entwinement

i. Most of the TSSA Board members were public school officials and most
of the members were public schools.

j. Legally Related Activities/Actions

i. Public Defenders -

1. Polk County v. Dodson –

 a. Public defender sued by his client as a State Actor b/c the State pays his
salary.

b. NOT STATE ACTION – His job is to be adverse to the State and

exercises independent judgment

ii. Excluding Jurors –

1. Edmonson v. Leesville Concrete Co –

a. Two private parties strike jurors in a civil case on the basis of race and
juror claimed it violated his Equal Protection. Is this state action or a private
choice?

b. STATE ACTION – Occurs when the judge excuses the juror. The
private party invoked the authority of the court

k. When is the State Responsible for Private Actions?

i. DeShaney v. Winnebago County Dept. of Social Services –

1. Father denied abusing his child to the State Social Services. The child was repeatedly
admitted to the hospital and doctors suspected abuse – Soc. Serv. Didn’t have enough
evidence. Later the kid fell into coma, Dad was convicted of abuse. Mom sues the State
Agency

2. NO STATE ACTION – State never took custody or created the danger. 14th is not
designed to protect citizens from each other, but from the State. State has no 14th duty to
protect citizens from private violence.

ii. Exception –
1. Special Relationship: If the State has a special relationship with the person there may be
an obligation (prisoner). When the government is responsible for one’s safety.

2. Created Danger – If the Government creates a situation where private citizens get hurt
there is a duty to protect. (Police Activity).

l. Off Duty Police Officers –

i. May engage in State Action but not automatically. Important factors:
1. Policy requiring officers to be on duty at all times
2. Policy requiring officers to carry weapons at all times
3. Display of official authority (uniform, weapon, badge)
4. Purported exercise of authority – arrest or search

ii. Problems arise when off-duty officer is involved in personal altercation.

1. State Action where off-duty officer assaulter ex-wife’s lover with service weapon and ran
victim out of town in a squad car.
II. DUE PROCESS

a. INTRODUCTION
i. State Action Requirement

ii. Incorporation
1. 1833 – Bill of Rights did not apply to the States.
2. 14th Amendment is created with Due Process and Equal Protection
a. Some rights are so fundamental, they are part of Due Process and the
Bill of Rights should apply to the States.

b. Due Process includes everything in the Bill of Rights, Except:

 i. 7th Amendment Civil Jury Trial Right
ii. 5th Amendment Grand Jury Right

iii. Procedural Due Process v. Substantive Due Process

1. Procedural – Procedural regularity and adequacy.

a. There must be a life, liberty, or property interest
b. Must be intentional misconduct – negligence is NOT enough

2. Substantive –
a. Protection against irrational, arbitrary, fundamentally unfair
government action
b. Identifying fundamental rights not enumerated, but implied in the
Constitution.

b. PROCEDURAL DUE PROCESS

i. Three Questions:
1. Is there a LIFE, LIBERTY, or PROPERTY interest at issue?
2. If so, did the Government act with the requisite state of mind?
3. If so, were the procedures followed adequate?

ii. What are Protected Property (State law recognized) and Liberty Interests?

1. Entitlement to Welfare - Protected property interest requiring compliance with due

process requirements prior to termination.

2. Driver’s License – State cannot revoke or suspend driver’s license once issued without
satisfying due process requirements.

3. Public Education – Child has a property/liberty interest here such that suspension of 10
days must be preceded by compliance with due process requirements

4. Continued Employment – NO Protected Interest for continued employment for a non-

tenured professor with only a year-to-year contract.

5. Reputation – Itself alone is not a protected liberty interest

6. Potential Legal Action – It is a “species of property” and is protected by the 14th

iii. Culpability Requirement – State of Mind on the Part of the State Official

1. TRIGGER - Intentional Misconduct

a. Due Process is not implicated by Negligent conduct – Daniels v.
Williams
 2. Recklessness - Court leaves open the result of whether a state of mind of more than
negligence but less than intent would suffice.

iv. What Process is Due?

1. NOTICE –
a. Must reasonably apprise parties of their interests and rights.

b. General Rule: Pre-Deprivation Notice – Government must tell you

beforehand what it intends to do.

2. OPPORTUNITY TO BE HEARD –
a. Need not be a full trial but something in a meaningful manner at a
meaningful time. It depends on what is at stake.

b. How elaborate do the procedures need to be?

i. May be okay to use hearsay or use presumption in favor of government

c. Three Part Balancing Test: Matthews v. Eldridge

i. The nature of the private interest affected

ii. The risk of an erroneous deprivation through the procedures utilized, and
the probable value of any additional or substitute procedures

iii. The Government’s interest and the costs of additional or substitute

procedures.

3. Examples:
a. No hearing required if completely impractical or if the decision is too
subjective to provide a meaningful hearing. Ingraham v. Wright; Board of
Curators v. Horowitz

b. Due Process requires State to pay for simple paternity test when
putative father is indigent and test will be virtually conclusive of claim. Little
v. Streater

c. Parent is not automatically entitled to counsel in parental termination

proceeding. Lassiter v. Dept. of Social Services.

d. State must provide impartial decision-maker, not one with a financial or

other stake in the outcome. Tumey v. Ohio.

e. There is no Constitutional right to an appeal, even n criminal cases

c. SUBSTANTIVE DUE PROCESS  ECONOMIC RIGHTS

i. Textual Support –
1. Art. I, Sec 10 – Contracts Clause – States cannot impair the obligation of K
2. 5th Amendment – Takings Clause (Due Process)
3. 14th Amendment – Due Process, Privileges and Immunities

a. Barron v. Mayor and City of Baltimore – Court holds the Bill of Rights
(issue over the takings clause) applies only to the federal government, not the
States.

i. Result: Before the ratification of the 14th, there were virtually no textual,
Constitutional limits on State’s ability to regulate economic rights.

b. Slaughter House Cases – The Court rejects the Privileges and

Immunities Clause as a significant limitation on State power. They apply only
to the privileges of US Citizenship. Privileges and Immunities does NOT
apply

i. The 14th Privileges and Immunities Clause was considered the most
important provision by proponents. History has not borne out that view.

ii. Federal Citizenship Privileges include:

1. Right to vote in federal election
2. Petition government for redress
3. Access to seaports
4. Habeus Corpus
5. Use navigable waters
6. Rights secured by treaties

ii. Non-Enumerated Rights

1. Some laws of the States are Unconstitutional even though they do not violate the express
provisions of the Constitution.

2. There are rights that exist outside the Constitution. Clader v. Bull
a. Dissent – Unless it is expressly prohibited there is nothing judiciary can
do.

iii. The Lochner Era – Height of Substantive Due Process

1. As a result of this decision, the court struck down 159 state statutes without giving
deference to the legislative policy judgments.
a. Minimum wage laws, regulation of prices, and hours of labor.

2. Standard: Fair, Reasonable or Appropriate

a. Lochner v. New York -

 i. NY statute forbade more than 60 hours /week to be worked in a bakery.
Study’s suggested the temps and flour led to shorter life expectancy. The
Court held the law Unconstitutional b/c it infringed on the freedom to
contract and found the law not to be reasonable, fair or appropriate.

ii. There is a limit to State police power and the Courts will decide where
the limit is by judging fairness, reasonableness and appropriateness.

iii. Dissent (Harlan) – Reasonable minds could differ. Freedom to K is not

an absolute right and has been regulated in the past. It is not the choice
of the court to decide if the law is good or bad. Court should intervene
only if no reasonable person could see validity of the law.

iv. Dissent (Holmes) – States have police powers to use regardless of

whether or not they are wise b/c there is a difference between what is
Constitutional and what is wise/good. Court should look to liberty
interest in tradition, not its belief in good/bad.

iv. Abandoning Lochner: The Rational Basis Test

1. Normally property and contract matters are private, not public concerns. But such rights
are not absolute.
2. The guarantee of Due Process demands only that the laws NOT be unreasonable,
arbitrary or capricious.

3. Reasonable Relation to Legislative Purpose – A State is free to adopt whatever

economic policies to promote the general welfare and Courts are without the authority to
override those policies so long as the laws have a reasonable relation to a proper
legislative purpose.

a. Court no longer ignores the legislature (Lochner). The court will be

deferential so long as there is a rational basis to pass the law.

b. Nebbia v. New York –

i. NY law established a Milk Control Board which could fix milk prices. P
sold milk for less than permitted and sued arguing the law is
unconstitutional.

ii. If there is a reasonable purpose it is Constitutional. The state can

regulate for the public interest.
1. Interest in ensuring a local supply of milk and protecting local
dairy farmers.
2. If the business implicates public interest, government can
regulate.

c. West Coast Hotel v. Parrish –

 i. Sustained the state minimum wage for women. The Constitution does
not speak of freedom of contract. But liberty under the Constitution is
subject to the restraints of Due Process. Liberty is not absolute or
uncontrollable.

d. United States v. Carolene Products - (Most celebrated footnote in Con

law)
i. Upheld statute prohibiting the shipment of “filled milk” in interstate
commerce. Statutes are entitled to a presumption of Constitutionality
and should be upheld if supported by any rational basis.

ii. Regulatory legislation affecting ordinary commercial transactions is

not unconstitutional unless it si of such character as to preclude that
it rests upon a rational basis within the knowledge and experience of
the legislators.

e. Two Types of Review:

i. Economic Laws – Very Deferential
ii. Individual Rights – More Rigorous Review

4. What if legislative Purpose is Unknown or Unclear?

a. Court will generally sustain the law if any rational basis for the law can
be articulated.

v. Limits on State Punitive Damage Awards:

1. BMW of North America v. Gore – Court invalidated a state court punitive damages award
as “grossly excessive”. D was assessed $2 million punitive for failing to tell the owner of
a $40,000 car he painted it decreasing its value by 10%.

a. Three Guideposts for Punitive Damages:

i. How reprehensible is the D’s conduct?
ii. What is the ratio of punitive to compensatory
iii. What other penalties could be imposed

2. State Farm v. Campbell – Invalidated punitive award of $145 million when

compensatory damages were $1 million. Due Process prohibits imposing grossly
excessive punishments. Few awards exceeding a single digit ratio between punitive and
compensatory will satisfy due process.

3. Philip Morris v. Williams – A heavy smoker died of lung cancer and widow sued
cigarette manufacturer. Actual damages were $821,000 and punitive of $79.5 million
were assessed. The TC instructed the jury to award to punish misconduct and deter
misconduct.
 a. Punitive award based on harm to others who are not parties is a taking
without due process. Harmed caused to others would be relevant to
reprehensibility consideration.

vi. Taking Property without Just Compensation – “Takings Clause”

1. Government cannot take your property unless it is taken for public use and you receive
just compensation – The 5th Amendment.

2. Any physical invasion is a taking, even if it doesn’t bother the landowner much. Applies
to any specific interest in physical or intellectual property.

a. Kelo v. New London –

i. Government wants to revitalize an area and hire a development group
and it purchased property from residents. Kelo doesn’t want to sell.
Phizer will bring in a $300 million facility. This attracts local
government b/c it will stimulate economy. P’s don’t think this is a public
use b/c they are bringing in a private company.

ii. Review is Deferential

1. Whether the facility is public is not an issue for the court,
certainly there are public benefits.

vii. Contracts Clause – Art. 1, Sec 10

1. No state shall make any law impairing the obligation of Contracts.

2. NOT APPLICABLE to the Federal Government.

3. Dead letter clause –

a. It’s about things the states were doing about Revolutionary war debt.
Most states had their own monetary systems and many were not trustworthy.

4. TEST – Is the impairment minimal or severe?

i. If minimal the law is constitutional

ii. If Severe, then apply the Allied-Blaisdell Criteria

1. Strong needs, such as emergency?
2. Broad societal interests?
3. Relief appropriately tailored?
4. Conditions imposed reasonable?
5. Duration of the law – permanent/temporary
6. Area already subject to state regulation?

5. This is not something the court is eager to invoke and its difficult to succeed. It is a limit
in State’s ability to regulate economic interests.
d. SUBSTANTIVE DUE PROCESS  RIGHT TO PRIVACY

i. Textual Support – There is none. Court relies on Due Process to protect privacy interests.

1. Griswold v. Connecticut –
a. P is director of Planned Parenthood. State law makes it a crime to use
drugs to prevent conception and to assist another under the first. P’s are
charged with providing information and instruction to married persons. Law
implicates the intimate relation of husband and wife.

b. Zone of Privacy – Penumbras are found in the 1st, 3rd, 4th, 5th, and 9th
Amendments. Together these protect the marital relationship.

c. Concurring (Harlan) – This is a 14th Amendment Due Process case.

No penumbra’s or 9th. It is 14th only. He is aware his view opens up for
decisions like Lochner – self-restraint is critical and they must rely on history.
i. Right to Privacy is a Natural Law – older than the Bill of Rights. It is so
deeply rooted in tradition that it violates Due Process.

d. Concurring (White) – We look to “Liberty” in the Due Process

Clause.
i. Harlan and White together create the modern view.

ii. Analysis of Liberty Interests –

1. When you articulate liberty interests, how specifically do you describe those interests?

a. Look for the most specific and narrow description and ask if that is
deeply rooted in tradition

b. Right to die OR right to refuse life saving medication / physician

assisted suicide.

iii. ABORTION CASES:

1. History of Abortion Regulation
a. Creature of late 17th century, since then government didn’t regulate it
and it was permissive.
 b. Majority tries to show tradition and history, what is recognized from
the past. If you go back to when the C was adopted, there was no prohibition
on abortion.

2. What is the legal status of a fetus?

a. The 14th Protects persons from deprivation of life, liberty and property.
b. Fetus is not a person – this is consistent with the common law in tort.

3. Roe v. Wade –
a. Roe is unmarried and pregnant and is unable to get a legal abortion in
TX because her life was not threatened. TX law prohibits abortions unless
mom’s life is at risk.
i. Holding – TX Law is Unconstitutional. State may only regulate when
compelling interests exist

b. Woman’s liberty interest is NOT ABSOLUTE.

i. State has an interest in the neo-natal life

c. State’s Interests:
i. Health of Mother –
1. First Trimester –
a. NO State Regulation
b. Woman’s interests prevail
2. After 1st Trimester
a. State may regulate for the woman’s health/safety.
3. Third Trimester
a. Viability makes State’s interests strong for the potential
life
b. State may regulate to protect potential life
c. Banning abortion is permitted, with 2 exceptions:

- If necessary for health of woman

- If necessary to save life of woman
ii. The Potential Life
1. Viability triggers protection – when potential life can survive
outside mother’s womb.
2. Court need not decide when life begins – question for medicine,
religion, and morality

4. Doe v. Bolton –
a. GA law permitted doctor to perform abortion when based solely upon
doctor’s medical judgment that the abortion is necessary.

i. Holding – Constitutional, but invalidated the following requirements

because they were too significant of intrusions:
1. Must be performed in a hospital.
2. Procedure must be approved by hospital staff committee
3. The performing doctor’s opinion must be confirmed by two
others
5. Abortion Funding –
a. Maher v. Roe –
i. Indigent people want abortions and the state will fund everything but
abortion. Court said the government can choose NOT to fund elective
abortions through Medicaid funds unless they are medically necessary.

ii. Roe v. Wade did not establish an unqualified Constitutional right to an

abortion, only a right protecting the woman from burdensome
interference with her freedom to decide.

6. STANDARD - The Undue Burden Analysis Test, Casey

a. Essential Holding of Roe is retained / reaffirmed  Viability

i. Rejection of the trimester framework, but three principles prevail:

1. Woman has a dominant interest BEFORE viability
2. Balance changes after fetal viability (more state regulation)
3. Throughout, the state has interest in the mother’s health

ii. Liberty extends to marriage, contraception, family, child rearing and

education
1. Abortion is unique because of consequences on others (fetus)
2. Courts obligation is define liberty (includes right to choose but is
unique) for all not mandate our own moral code.

b. Viability
i. Pre-viability – Woman’s interests are paramount but State has an interest
1. Regulation permitted – Court will use Undue Burden Standard
2. Cannot ban abortion

ii. Post-viability – State’s interest in the potential life is HIGH

1. State can go so far as to ban abortion but there must be an
exception for the life/health of the woman

2. If the State is regulating post-viability but has not banned

abortion – the standard is unknown – the court has not decided
this issue.

c. Undue Burden Standard

i. Applies Pre-Viability ONLY

ii. State can regulate so long as it doesn’t impose an undue burden on the
mother’s choice:
1. Such burden exists if it “Places a substantial obstacle in the path
of the woman seeking an abortion pre-viability.”
2. State action must be calculated to inform the woman’s free
choice, not hinder it.
 iii. State cannot ban abortion pre-viability

d. Planned Parenthood of PA v. Casey –

i. PA Abortion law required (1) mom to give informed consent, (2)
provided with all information 24 hours before, (3) Minors must gain
parental consent – judicial bypass, (4) Married women must notify
spouse, (5) Reporting requirements on facilities, (6) Definition of
medical emergency – which exempts these requirements.

1. Holding – All are Constitutional except the spousal notice

requirement. Court adopts the Undue Burden Standard.
a. 24 hour Wait – No undue burden
b. Spousal Notice – Undue Burden
- Domestic Violence is an obstacle
c. Minors – No burden with judicial bypass
d. Reporting Requirements – No undue burden

7. Banning Methods Partial Birth Abortions

a. Procedures:
i. During First Trimester – Vacuum Method
ii. After First Trimester – Standard D&E or Intact D&E

b. Gonzales v. Carhart –
i. Congress enacted the Partial Birth Abortion Ban Act (Commerce Power)
in response to the intact D&E procedure where doctors will deliver the
living fetus through the uterus, pierce/crush the skull and then extract the
whole fetus through the cervix.

ii. 2000 NE case debated the methods for abortions as well. Court struck
down the law b/c there was not a health exception for women and the
description of the procedure was too vague and ambiguous – doctors
could fear prosecution.

1. Gonzales Holding: Constitutional

a. Law is specific as to what is prohibited – Requires intent
b. Other methods can be used. Here Congress sought to:
- Protect medical community reputation
- Avoid infanticide
- Protect morality concerns

2. Pre-Viability – State may not prohibit any woman from making

the decision or impose an undue burden.
a. Undue Burden applies to State Regulation.
Regulations which create a structural mechanism by
which the State/Parent may express respect for the
 potential life are permitted if they are not a substantial
obstacle

3. Health Exception for the Woman?

a. Roe required exception for life and health
b. No need to have a health exception if the evidence
suggests it is never necessary. The health exception
could swallow the rule – if health is too broad, there
really is no rule.
c. Who determines whether the exception applies? The
doctor performing the procedure. BUT their judgment
will always be just what they are willing to do. Don’t
want the exception to swallow the rule.

iv. FAMILY LIVING ARRANGEMENTS - Limiting Occupancy

1. Belle Terre v. Boraas –

a. Zoning ordinances limiting the number of unrelated persons living in a
single family residence. This does not restrict someone’s choice. This is
Constitutional. There is no deeply rooted tradition when it is outside the
context of blood family.

2. Moore v. East Cleveland –

a. Cousins living with common grandmother. She sues and court finds in
her favor. City has no business defining and regulating blood family living
together. Court has long recognized that freedom of personal choice in matters
of family and marriage is one of the liberties protected by Due Process

v. RIGHT TO MARRY

1. Central Issue – There is something fundamental about the right to marry but there is a
tradition on regulating types of marriage. Marriage is a special relationship.

a. Loving v. Virginia
i. VA banned inter-racial marriage. Court found violations of (1) Equal
Protection - race discrimination, and (2) Due Process - liberty in
choosing who to marry.

b. Zablocki v. Redhail –
i. Law stated a man cannot marry until he pays child-support. Court said
this violates Due Process b/c it conditions marriage on whether or not
you have money. There are other ways for the state to collect child
support

c. Turner v. Safley –
 i. State regulation permitted inmates to marry only upon permission of the
prison superintendant. Court held the right to marry is still fundamental
in prison. Court was wary of state having too much control whether
inmates can marry. Even though the general rule is deference to prison
administrators - not here.

vi. PARENTAL RIGHTS

1. Basic Presumption – Relationship between the parent and child is constitutionally

protected. A fit parent is able to decide what is in the child’s best interest.

a. Troxel v. Granville –
i. Grandparent visitation dispute. Mom wants to decide the visitation
rights. State law allows “any person” to petition for visitation and the
court to grant when in the best interest of the child. Does Mom have a
liberty interest in deciding what is best for her kids?

1. Holding – State law is too broad, must be a premise of fit parent.

2. Adoption

a. Quilloin v. Walcott –
i. Under GA law, if natural father has not legitimized his offspring, only
mom’s consent is required for the kid’s adoption. Dad here attempted to
block the adoption of his illegitimate son.

ii. Holding – Adoption is in the best interest of the child. It recognizes a

family unit already in existence – desired result of all but natural father.

b. Michael H. v. Gerald D. –
i. CA law says a child born into marriage is presumed to be the child of the
relationship. Michael claims to be the father of Victoria. She lives with
Carol and Gerald. Gerald is listed as father on birth certificate. Mom
had an affair with Michael and someone else, resided with Michael and
Gerald. Michael sues saying the law is Unconstitutional

ii. Holding – Constitutional - CA law is traditional and most states have

similar approach.

vii. RIGHT TO DIE / ASSISTED SUICIDE

1. Presumption – Competent person has a liberty interest in refusing life savings treatment

a. Cruzan: Family wanted to stop feeding lady in veggie state. She is

not competent. Family must prove what she would have wanted.
 b. Casey (Abortion case) - At the heart of liberty is the right to define
one’s own existence of meaning

2. History and Tradition Analysis – Two Parts

a. Whether the liberty is protected - is it a fundamental right deeply

rooted in tradition and history?

i. There must be a careful description of what the liberty interest is

1. Right to assisted suicide v. right to die

b. Regulation of liberty interest must be rationally related to legitimate

government interests

c. Washington v. Glucksberg –
i. State law bans assisted suicide. Four doctors declared they would assist
terminally ill patients sought declaration that the law is unconstitutional.

ii. Holding – Physician Assisted Suicide is NOT a fundamental right

1. Deeply rooted history prohibiting assisted suicide
2. Related to compelling state interests:
a. Preservation of human life
b. Serious public-health problem (depression/mental
disorders)
c. Integrity/ethics of medical profession
d. Protecting vulnerable groups
e. Voluntary and Involuntary euthanasia.

d. Vacco v. Quill –
i. Party argued that a person’s permission to refuse life saving medical
treatment in NY is essentially the same thing as physician assisted
suicide. Equal Protection is argued for permitting one and not the other

ii. Holding – They are not the same thing and neither law treats anyone
differently. There is a difference between causation and intent.

viii. SEXUAL CONDUCT

1. Presumption – Liberty presumes an autonomy of self that includes freedom of thought,

belief, expression an certain intimate conduct.

2. Fundamental Right to Sodomy?

a. Bowers v. Hardwick –
 i. Court UPHELD a Georgia statute which criminalized sodomy.
Hardwick was charged with committing sodomy against another man.
Can GA make this a crime?

ii. Holding – Conduct here is NOT Protected – No fundamental right

1. There is no connection between family, marriage, procreation
and a homosexual activity.

2. No deeply rooted tradition or history

b. Lawrence v. Texas –
i. Police responded to a weapons disturbance, entered home and saw two
men having anal sex. Both men were arrested. TX law punishes deviate
sexual intercourse. Are people free as adults to exercise a sexual liberty?

ii. Holding – Unconstitutional Law

1. Morality is not a rational basis for the TX Law

iii. Overrule Bowers – Courts obligation is to define liberty, not mandate its
moral code.

iv. History and Tradition:

1. It is a factor, but not conclusive.
2. There is no tradition of laws against gays – sodomy laws existed
against all people. Gay laws are more modern – hardly deeply
rooted.

ix. LIBERTY INTERSTS - STANDARD OF REVIEW

1. History and Tradition

2. Rational Basis – Standard for any liberty interest challenge. So long as there is a
rational basis for Congress to pass the law – a rational relation to governmental interest,
the law will be upheld.
III. EQUAL PROTECTION – States shall not deprive Equal Protection of the laws

a. Requirements:
i. State Action
ii. State of Mind
1. Discriminatory Intent for Constitutional Violation.

a. Discriminatory Effect is not sufficient for a Constitutional claim. It

may serve as evidence of intent.

iii. Compliments Due Process – Not substantive however:

1. It doesn’t tell states what to do, but States must treat people equally
2. Maybe the State can act, but its application to groups of people is challenged

b. Levels of Review:
i. Strict Scrutiny
1. Must show a compelling governmental interest, AND
2. Law is narrowly tailored to serve the interest

a. Said to be “Fatal in Fact” because rarely do laws subjected to it

withstand the Constitutional challenge.

ii. Intermediate Scrutiny

1. Must show an important governmental interest, AND
2. Law substantially furthers and is closely related to that interest

iii. Rational Basis Review (Deferential)

1. Legitimate governmental interest, AND
2. Law is rationally related to achieving that interest

a. Rarely results in the law being Unconstitutional

b. Is there a heightened rational basis standard?

c. Categories
i. Strict Scrutiny
1. Suspect Classifications
a. Race
b. Alienage/Nationality – For non-political functions and non-
immigration / naturalization matters
c. Gender?
2. Fundamental Rights
a. Voting
b. Interstate Travel
c. Religion / Speech

ii. Intermediate Scrutiny

1. Gender?
2. Wealth – if requirement impacts fundamental rights (voting/marriage)
3. Illegitimacy
 4. Sexual Orientation?

iii. Rational Basis Review (Deferential)

1. Police Power Regulations Generally (economic / social)
2. Age
3. Disability
4. Alienage/Nationality - Immigration/Naturalization when Congress regulates
5. Wealth – if no impact on a fundamental right (bankruptcy fee)

d. RATIONAL BASIS REVIEW

i. Railway Express Agency v. New York –

1. Traffic law regulates advertisements on trucks. You can advertise about your own
business but not others. Someone who sold ad space to another sues.

a. This is not Due Process because there is a rational basis that such a law
regulates government interest in traffic safety.

b. Equal Protection challenge based on who can advertise – are one’s own
ads less distracting? Court says no but the number of ads will be reduced.
i. Court does not need to eradicate the problem (complete ban)

c. Distinctions must be rational, real and related to the law being

challenged
i. Court is very deferential
ii. The law is broad and evenhanded. Applies to everyone equally

ii. New Orleans v. Dukes –

1. Ban on street food vendors – you cannot be a vendor unless you have worked there for 8
years. P’s have only been around for 2 years and only 2 people have been around for 8.
The purpose of the law is to clean-up the area. Challenge: Grandfather Clause is Equal
Protection Violation.

a. Court – Those grandfathered in are part of the French Quarter

i. Very Deferential
ii. Not arbitrary / irrational. No need to eradicate the problem.
iii. No facial issue of gender or race

iii. NY City Transit Authority v. Beazer –

1. NY law requires State not to hire anyone as employee if they use methodone
(replacement for heroin addicts). P’s here argued this is not rational b/c some of these
people would be fabulous employees.

a. Court – No Violation
i. It is rational for the court to impose ban – safety risk
ii. Law need not be perfect, only rational.
 b. Dissent – There is no safety risk – concerned about race/poverty
pretext b/c of the type of people on methodone.

iv. United States RR Retirement v. Fritz –

1. Federal Law - if you were not active in the RR as of 1974 you could not receive its
retirement benefits. They were trying to make it financially sound. Many of the workers
were getting benefits and social security. Government feared there was a windfall from
both sources.

2. Classifications:
a. If you were retired and got both, you could continue to receive them
b. If you were about to retire, then you could continue to receive them
c. If you were working as of 1974 or had a connection as of then, then
you could stay qualified

3. Challenge – The 1974 date is arbitrary and irrational

4. Holding – Upheld the Federal Law

a. Congress had the power to stop all benefits. Therefore they certainly
have the power to limit who gets the benefits.

b. When there are plausible reasons for what Gov’t did, Congress’
actual intent is irrelevant. Court can speculate on its own to find a
rational basis.

e. STRICT SCRUTINY – Court is very suspicious of violation

i. RACE
1. History – Constitution had recognized slavery
i. 3/5 vote requirement
ii. Slaves must be returned to the south
iii. Congress can ban importation of slaves

b. Dred Scott v. Sandford –

i. MO slave escapes to the north. MO Compromise of 1820 established the
free states of the north. Scott argues that he is a free man having escaped
to the north. HE sues in Federal court under diversity citizenship.

ii. Holding – Scott is NOT a citizen, cannot claim rights and privileges.

1. Court rationalized the decision by asserting the MO Compromise

was Unconstitutional – It effectively took property (slaves)
without just compensation.
2. This led to war and Constitutional Amendments, 13, 14, 15

2. Strauder v. West Virginia – WV did not allow blacks to serve on a jury. D complains that
this is not equal protection. Court agreed. WV cannot legally ban people from serving
 on jury based upon race. BUT there can be qualifications for the jury: Males, educated
people, citizens, age qualifications, property owners

3. Plessy v. Ferguson –
a. 1890 Louisiana law required train passengers to have equal but
separate accommodations for white and colored people. P was 7/8 white and
was arrested for refusing to vacate a seat for whites only.

b. No violation of the 13th – Not considered slavery or a badge of it.

c. Holding – Separate but Equal

i. Social prejudices cannot be overcome by legislation
ii. Legislation is powerless to eradicate racial instincts
iii. 14th was not meant to change segregation practices – If one race be
inferior to another socially, the Constitution cannot put them on the same
plane.

iv. Dissent (Harlan) – Constitution is Color Blind

4. Korematsu v. United States -

a. FDR gave orders to protect against sabotage and espionage. Subjected
all people from Japan to a curfew and into evacuation centers. P is US citizen
of Japanese consent. He was convicted of violating the Order. He claims
violation of Equal Protection b/c is targets only the Japanese.

b. Court adopts Strict Scrutiny for Racial Group Issue – Suspect Class
i. (Not yet to the modern application)

c. Holding - Constitutional
i. Law is narrowly tailored
1. Exclusion from a threatened area has a definite and close
relationship to the prevention of sabotage/espionage.
ii. Based upon war powers – deference to military decision

5. Brown v. Board of Education –

a. Issue is over school desegregation. Kansas case suggested that
facilities were equal – but is segregation Constitutional?
i. Parties argued over the history of the 14th – what the drafters though
about segregation in schools. Results were inconclusive.

b. Holding – “Separate is inherently Unequal” - Unconstitutional

i. Education is crucial in modern society and an important role of
government to provide.
1. More than buildings, curriculum and salaries
2. Equality in tangibles is not enough

ii. Intangibles matter

 1. Sense of inferiority of status in community
2. Affects the motivation of the child to learn.
3. Deprives them of benefit they would receive with whites

c. Remedy – District courts should decide because every district is

unique and they are proximate to the issue. Guideposts:
i. Must make a prompt and reasonable effort
ii. Admit students with all deliberate speed

6. Bolling v. Sharpe –
a. Congress required segregated schools in DC. The question is whether
Congress is subject to the 14th, because No State shall… The answer is NO.
Could it be Constitutional for Congress to do this?

b. The 5th Amendment has a due Process clause too. Therefore the 5th has
an equal protection component.

c. Equal Protection applies to the Federal Government.

7. Loving v. Virginia –
a. State law bans inter-racial marriage. P married in DC and were
convicted upon their return to VA. VA offered to suspend charges if they left
the state forever. Law only applied to whites marrying blacks (not
Asians/Hispanics).

b. Purpose of the law was to prevent corruption of the blood and preserve
racial integrity – Endorsement of White Supremacy. VA argues no Equal
Protection because penalty applies to blacks and whites equally.

c. Race classifications cannot define a crime.

i. There is no valid legislative purpose
ii. Race is never a rational basis for defining a crime.
iii. There is a substantive due process issue – freedom of marriage

8. Johnson v. California -
a. CA prison system assigns new prisoners to blocks by race. The
purpose was to reduce fighting and violence. Court said this violates equal
protection and was purely a race distinction.

b. Dissent – There is a rational basis and there should be deference to

prison administrators.
ii. REQUISITE STATE OF MIND

1. Intentional Discrimination – May exist despite facially neutral law. What about when
the law makes no facial distinctions but the law is applied in a discriminate manner or
impacts people of a certain race over another?

2. Yick Wo v. Hopkins –
a. SF passed ordinance banning laundry in wooden buildings. They were
concerned about fires. On its fact it is not discriminatory. TO get a license you
must pass a Board. P is Chinese and brings suit b/c 240 Chinese businesses
have not been granted licenses but whites had despite owning wooden
facilities.

i. Holding – Unconstitutional
1. Practical denial of Equal Protection
2. Applied with an evil eye and unequal hand

3. Washington v. Davis –
a. DC police dept. required prospective officers take a test to become a
police officer. Four time as many blacks as whites fail – test had a significant
impact on blacks. The Dept. however had systematically sought to enroll black
officers. There is no allegation the dept. acted with discriminatory intent.

i. Holding – No Equal Protection Violation

1. Rational Basis for the law – YES. It is reasonable to require
officers to read, write, and communicate.

2. To violate Equal Protection  Discriminatory Intent

a. Disparate impact /effect alone is insufficient. It is

relevant as evidence of possible intent but not
conclusive.
 - Taxes, welfare, licensing, etc would all be
violations otherwise.

4. Personnel Administrator v. Feeney –

a. Upheld Mass law giving hiring preference for state jobs to veterans.
This group is almost entirely men. Argument was gender discrimination – the
effect will occur.

i. Holding – No Equal Protection Violation

1. There was a legitimate reason to have the preference.
2. Law was not passed in spite of women  NO Intent

iii. AFFIRMATIVE ACTION

1. General Principles –
a. Level of Scrutiny – Strict when race is a factor

b. Justifications / Government Interests:

i. Justifying past discrimination by the entity engaged
ii. Achieving diversity in schools
1. If schools are already diverse, this argument is gone
2. Court is more deferential to law schools/military than
elementary schools

c. Narrow tailoring:
i. Individualized consideration of every file – Not Quotas
ii. Set numbers and racial balancing are inappropriate
iii. Entity need not use other methods before using race, Grutter

2. Analysis –
a. Step 1 – Identify Compelling Interest

b. Step 2 – Is the procedure narrowly tailored to achieve that interest

3. Regents of University of CA v. Bakke –

a. Med School reserves 16 of its 100 spots for members of minority
groups. P is a white student who was rejected even though some applicants
were admitted under affirmative action that had a significantly lower GPA and
test score.

i. Holding – Reserving spots based on race is Unconstitutional

1. You can look to race to cure historical exclusion by race or
diversity in education
 2. Race can be a factor so long as everyone is evaluated
individually  Narrowly tailored

4. Grutter v. Bollinger –
a. Michigan law admissions are challenged by a white resident who was
denied admission. The admissions office sought the “critical mass” of students
in underrepresented areas to be students and participate in the classroom. It is
a number which encourages underrepresented minorities to participate.

i. Court Upheld Procedure

1. Rule - If it furthers a compelling interest, it doesn’t violate the
Constitution so long as it is narrowly tailored to that interest.

2. Compelling Interest – Diversity in the classroom

3. Narrowly tailoring doesn’t require exhaustion of every

conceivable race-neutral alternative.
a. Critical mass was the narrow tailoring.

5. Gratz v. Bollinger –
a. P was a white resident denied admission to University of Michigan.
Undergrad admissions office used a point index system (max 150 points).
There were various factors and a “Miscellaneous” section. Minority students
automatically get 20 points under this special category and there is no
individualized consideration.

i. Holding – Unconstitutional
1. Point system has the effect of making race a decisive factor. It is
too automatic – more careful consideration of each file is
required.

6. Parents Involved in Community Schools v. Seattle School Dist. –

a. At secondary schools, kids are allowed to preference where they go.
But administrators could force people to go elsewhere to balance diversity.
They looked at the racial balance of the schools and the race of the child.

i. Holding – Unconstitutional

1. Diversity as Compelling Interest?

a. There is already strong racial mix

2. Not Narrowly Tailored to the goal of achieving educational and

social benefits asserted to flow from diversity - plans are directed
only to racial balance.
iv. GENDER DISCRIMINATION

1. Uncertain Standard of Review – Originally the court applied a rational basis review.

a. Reed v. Reed – Law preferred men to women when two persons were
equally entitled to be the administrator of an estate. Court held the
classification must have a rational relationship to a state objective sought to be
advanced.
i. Court held the classification to be arbitrary

b. Frontiero v. Richardson – Court invalidated federal law permitting

men to receive an automatic dependency allowance for their wives, but
required servicewomen to prove their husbands were dependent.

i.
Classification based upon gender are inherently suspect and must be
subjected to “close judicial scrutiny”
ii. There is a tradition of gender discrimination
2. Intermediate Scrutiny ??

a. Craig v. Boren –
i. OK law allows women over 18 can purchase beer, but men cannot until
age 21. Men can possess and consume, but they cannot purchase. Is this
an equal protection violation

ii. Intermediate Scrutiny –

1. Law must serve and important governmental interest AND

2. Substantially further / closely relate to that interest

iii. Holding – Violation of Equal Protection

1. Traffic safety is an important governmental interest but statistics
alone that show men are more likely to drink and drive are not
sufficient to further the interest.

2. It can’t substantially further the interest if men can still possess

and consume.

b. United States v. Virginia –

i. VMI admissions clause is at issue. Virginia sets the admissions
requirements and admits men only – goal is to produce citizen-soldiers.
Female sought admission and was denied. VA proposed a plan to adopt
a parallel program for women
 ii. “State must show at least that the law serves important governmental
objectives and that the discriminatory means employed are substantially
related to achieve those objectives.” Approaches strict scrutiny

1. Holding – Admissions Practice is Unconstitutional

2. Remedy – Parallel program is not equal

a. Alumni, resources, money, opportunities

3. Remedial Discrimination

a. Califano v. Webster –
i. Law makes it possible for women to get higher retirement benefits. This
is a gender distinction. They are giving women benefits that they
wouldn’t give men. They do this as a remedial measure – Typically
women were paid lower wages for so long.

ii. Test – Intermediate Scrutiny

iii. Holding – Constitutional

1. Important Gov’t objective – Redressing Past Discrimination
2. Substantially furthers – Yes – directly compensates them

b. Mississippi Univ. for Women v. Hogan –

i. Man wants to be admitted to an all women’s nursing school. He was
rejected and sues based on Equal Protection.

ii. Governmental Interest – Remedial discrimination

1. Court says NO – this does not fix discrimination against women.
There is no evidence of past discrimination against men as
nurses.

v. ALIENAGE DISCRIMINATION – Suspect Class

1. Standard of Review – Strict Scrutiny

a. Exception - Governmental Function (Rational Basis)

2. Ambach v. Norwick –
a. The state law that prohibited the hiring of public school teachers who
are aliens and not intending to become citizens.

b. General Rule – Strict Scrutiny

c. Gov’t Function Exception Applies Here - Rational Basis Scrutiny:

 i. When an important governmental function is at issue (police officers and
teachers) rational basis review is appropriate

ii. Other areas are not important and do not apply – Too Broad
1. All state employees, lawyers, engineers.

3. Illegal Aliens – No strict Scrutiny, Plyler v. Doe

4. Federal law governing Immigration / Naturalization – No Strict Scrutiny

a. Congress has plenary authority to decide how one becomes a citizen

vi. SEXUAL ORIENTATION

1. Standard of Review – Intermediate Scrutiny / Rational Basis

a. NOT a Suspect Class

2. Romer v. Evans –
a. CO Constitution Amendment prohibits protective status for
homosexuals in Colorado. Some communities before this said you cannot
discriminate against gays, the amendment overruled such ordinances.
Amendment was challenged based on Equal Protection.

i. Holding – Amendment is Unconstitutional

1. Rational Basis Review

a. Law does not burden a fundamental right or target a
suspect class – No Strict scrutiny

b. It is a restraint on what local government can do to

protect a class of people and denies them access to the
legal system
 c. Disability to class of people - To gain protection, they
would need another Amendment. Anyone else would
just have to get the city council to pass an ordinance

d. Desire to hurt a class of people is NOT a legitimate

governmental interest  Fails rational basis

vii. ILLEGITIMACY - (Child Born out of Wedlock)

1. Standard of review – Intermediate Scrutiny

2. Mathews v. Lucas –
a. Discrimination based on birth is out of an individuals control, but it has
never reached the pervasiveness of discrimination based on race and gender.
Thus it does not command extraordinary protection

b. It is not a suspect class but ought to review at least intermediate

scrutiny, Jeter.

viii. AGE DISCIMINATION

1. Standard of review – Rational Basis

2. Mass Board of Retirement v. Murgia – We all age and there is nothing inherently
discriminatory about it. There is no indication anyone of a particular age is without
political power.

ix. MENTAL RETARDATION / DISABILITY

1. Standard of review – Rational Basis

2. Cleburne v. Cleburne Living Center –

a. Zoning ordinance required special permit for group home for the
mentally retarded. City refused to grant the permit. They said this violates
equal protection and court agreed. City cannot distinguish between their home
and other living arrangements not subject to the ordinance (frats, dorms, apts,
etc).

b. Rational Basis Review –

i. Not Politically Powerless - Legislative bodies are responsive to their
needs and demands.
ii. Ought to be heightened though
 iii. Unconstitutional – There is no rational basis to believe the home poses a
special threat to the city’s legitimate interests.

x. WEALTH DISCRIMINATION

1. Standard of Review –
a. Rational Basis when standing alone

b. Intermediate - If combined with fundamental right such as voting or

marriage
f. FUNDAMENTAL RIGHTS

i. Standard of Review – Strict Scrutiny

ii. Types of Fundamental Rights:

1. Voting
2. Interstate Travel
3. Religion
4. Speech

iii. Voting – Denial / Qualification of the right to vote

1. Fundamental Right – One Person, One Vote

a. Harper v. Virginia Board of Elections – Poll taxes are not appropriate.

Voting is a fundamental right.

b. Kramer v. Union Free School District - Law Limits who can vote in a
school district election. Only those who own property (schools are financed by
property taxes) and who have kids in schools are eligible.

i. Strict Scrutiny – Voting is a fundamental right

1. Compelling Interest – making sure people who vote are
interested
2. Not Narrowly Tailored – Excludes people who are interested and
includes people who are not interested

2. Apportionment – Drawing of district lines. Political Question?

a. Baker v. Carr – Equal Protection violation if the challenge is that the

district lines are not equal in size. Votes must carry equal weight across
districts

b. Reynolds v. Sims – State failed to reapportion the districts.

i. Alabama requires reapportion every 10 years – but none had taken place
for 60 years. 25% of the state’s population was electing a majority of the
senators and nearly members of the house.

ii. Districts with power were all white – this motivates the court to get
involved instead of claiming political question

iii. Strict Scrutiny:

1. State must justify why they allow for such differentiation in size.
2. If more than a single digit disparity – no justification.
 3. Equal Protection requires states to make honest and good faith
efforts to construct districts of roughly equal population as
possible.

3. Partisan Gerrymandering – Drawing lines according to political party / racial lines

a. Davis v. Bandemer –
i. Redistricting was done by republican house. Democrats challenged it b/c
it was designed to favor republicans. This is an equal protection claim.
The republicans argued that the court shouldn’t hear it b/c it is a political
question. They say there is no objective baseline to measure the
districting. It is not justiciable

ii. Holding – Issue is Justiciable

1. Two-Prong Test:
a. Intent to discriminate against an identifiable political
group
b. Actual discriminatory Effect (success)

2. Here there was no success, but one election is not enough to

make a determination. It must be a consistent disadvantage.
This will be difficult to prove.

b. Vieth v. Jubelirer –
i. PA 2000 census involved political gerrymandering by the republicans.

ii. Holding – NOT JUSTICIABLE

1. Overrule Davis v. Bandemer

2. There is no standard and it is a political question.

c. Mobile v. Bolden –
i. The majority always controls drawing districts. The court says that it
does not violate equal protection to have at-large districts. But if you can
prove the reason behind it is discrimination then it violates equal
protection.

d. Shaw v. Reno –
i. The opposite occurs. They pocketed blacks in voting districts to have
majority minority districts. The court said if the only justification is race,
 then it violates equal protection. If you draw crazy lines to make it
happen, then that is a problem.

e. Bush v. Gore –
i. There are no constitutional requirements on how states conduct voting.
Even within states it is not uniform. Issues include that one person may
have voted for multiple candidates and some votes were not clearly
indicated (hanging chads).

ii. FL SC – Direct a re-count of under-votes (hanging chads)

1. Recount to determine the will and intent of the voter. No other
instructions were given. Bush challenges the procedure.

iii. US SC – Takes the case and decides over the course of a few days.
1. Equal Protection – votes will not be treated equally.

2. There is no guidance as to how to count the votes – which chads

will be counted? No consistency.

3. Violation of Equal Protection

iv. Voting methods are not subject to strict scrutiny

iv. Right to Travel – Fundamental Right

1. Textual Support – Not expressly in the Constitution.

a. Implied in Commerce Power - Citizens can enter / leave another State
anytime
b. Privileges and Immunities – Right to be treated as a welcomed visitor
c. 14th Amendment – Right to be treated like other citizens if becoming
resident

2. Saenz v. Roe –
a. CA limited the max welfare benefits to newly arrived residents. Its
benefits are higher and it fears people will come just for that reason – it will
cost them more money. Law says CA will not pay more in welfare for their
first 12 months than citizen would have gotten from the state they left. Purpose
is to eliminate the financial incentive.

b. Holding – Unconstitutional

i. Strict Scrutiny –
1. Law doesn’t treat new citizens the same – creates classes of
residents, which is not permitted
 2. Financial reasons are not compelling – they could solve the
problem by reducing amount offered.

v. Welfare and Education

1. Fundamental Right / Suspect Class?

a. No Fundamental Right to a Public Education
b. Wealthy are not a suspect class

2. Standard of Review – Rational Basis

3. San Antonio Ind. School Dist. v. Rodriguez –

a. P’s are parents of kids in low-income families. They are suing for
wealth discrimination because a TX program provides funding to schools based
on property taxes. Wealthy districts get more money than poorer districts.

b. Is Education a Fundamental Right?

i. No explicit guarantee in the Constitution

ii. Freedom of Speech and Right to Vote do not imply right to an education
1. Education may help to exercise those rights

c. Rational Basis Review

4. Plyler v. Doe –
a. Texas law says no education for illegal alien children. There is no
fundamental right to education. Illegal aliens are not a suspect class.

i. Holding – Unconstitutional
1. The law is irrational b/c evidence suggests illegal aliens do nt
use the services, and there is not showing they impose greater
costs

5. Montoy v. Kansas (Handout) –

a. Challenging the Kansas School funding program. Bullock decided
school funding was unconstitutional.

b. Rational Basis Review – No Suspect Class or Fundamental Right

 i. It has a disparate effect on minority students BUT must show
discriminatory intent

c. State Constitution provides greater protection

i. “The legislature shall provide for education and finance of educational
interests of the State.”

ii. Education is a fundamental right in Kansas.

iii. Level of Scrutiny – Rational Basis for finance issues, but more scrutiny
if issue rises to denial of public education.

IV. CONGRESSIONAL ENFORCEMENT OF THE 14TH AMENDMENT

a. 14th Amendment Textual Basis:

i. Section 5 – “The Congress shall have power to enforce this article by appropriate legislation.”

ii. Affirmative Grant of Power – what is the power?

b. Fundamental Question – What does it mean to enforce Sec. 1 of the 14th?

i. Can Congress prohibit actions that are not violations of the 14th? OR

ii. Can Congress only prohibit and provide remedies for actual violations of the 14th?

iii. Is Congress enforcing the Amendment or trying to change the substance?

c. Defining the Enforcement Power – 13th, 14th , 15th

i. Remedial, NOT Substantive

ii. Jones v. Alfred H. Mayer Co. –

1. Jones complained that D refused to sell them a home b/c they are black. They relied on
Federal law to be able to buy the home. Provision provides that everyone gets equality of
treatment according to contract / property. There is a remedy if there is discrimination
for contract or property.

a. Here there are two private actors, 14th does not apply – No State
Action.
i. Rely on 13th – applies to everyone

b. How does the Court decide what the “badges and incidents of slavery”
are?
i. Similar to rational basis review – Defer to Congress
 ii. Opens the door to Congress defining the substance of the 13th

c. Congress can reach private racial discrimination.

iii. South Carolina v. Katzenbach –

1. The 15th Amendment is the basis for the Voting Rights Act. Court held Congress can act
if a state is not currently discriminating. Similar to the Necessary and Proper Clause
because States have discriminated in the past.

iv. Katzenbach v. Morgan –

1. Federal law says no one who completed 6th grade in Puerto Rico where English was not
primary language shall be denied the right to vote for inability to read/write in English.
Its effect nullified NY law requiring voters to read/write in English.

2. Can Congress nullify state law by legislating under Sec. 5?

a. YES – Drafters granted the same power as the Necessary and Proper
Clause provides. Congress can act at its discretion.

b. Standard of Review –
i. Could Congress rationally conclude the law might result in an Equal
Protection violation?
ii. Court will defer to Congress

3. Federal Law is Constitutional

a. Literacy tests have been used in the past to discriminate and could be
used in the future

d. The Congruence and Proportionality Test

i. Describe / define the Constitutional right at issue

1. How likely is it that there will be a violation of the Constitution

a. Rational Basis  almost anything will be disproportional

b. Suspect Class/Fundamental Right  Most things will be proportional

and reasonable for Congress to provide remedies

ii. Examine the congressional record for evidence of a pattern or history of discrimination on the
prohibited basis.

iii. Apply the Congruence and Proportionality Principles

e. Context – The most common context for recently litigated cases is when Congress has attempted to
subject States to suit for violations of federal statutes, thus purporting to abrogate the State’s
constitutional immunity.

i. Boerne v. Flores –
1. City denied church a building permit and the church challenged under RFRA, which
prohibits Govn’t from burdening a person’s exercise of religion unless (1) its in
furtherance of compelling Govn’t interest and (2) is the least restrictive means to do so
(strict scrutiny).

a. Holding – RFRA is Unconstitutional

i. Congressional Power to enforce applies:

1. If there is an actual violation, Congress can act
2. If there is not an actual violation – Much more scrutiny.

3. Congress doesn’t have power to re-define the substance of the

14th. It is remedial.

ii. What Congress wants to accomplish must be proportional and congruent

to the authorized power.
1. RFRA is out of proportion to any remedial purpose, it is not
trying to prevent religious discrimination by States.

2. Congress is trying to change the substance of 1st Amendment

ii. Kimel v. Florida Board –

1. Age discrimination case. When can employers discriminate on the basis of age? State
says you cannot do it but here the state is the employer and the statute says states can be
sued.

a. Remember, age distinctions get Rational Basis Review

i. Violates the Constitution only if it is irrational

ii. History or pattern of discrimination of age? NO

iii. Is it proportionate? NO

b. Congress lacks power to make States subject to suit

iii. Board of Trustees of Univ. of Alabama v. Garrett –

1. What about disability distinctions regarding employment? Rational Basis Review.
Federal Law allows for punitive damages and other things.
 a. Unconstitutional
i. No pattern or history
ii. It is disproportional

iv. Hibbs –
1. Family Medical Leave Act. State employer must allow either parent the opportunity for
unpaid leave. Someone sues Nevada for not getting the required leave. Can Congress
subject NV to suit?

a. Gender discrimination at issue – Intermediate Scrutiny

i. There is a long history of men being discriminated on the basis of
stereotypes

ii. Proportionality – YES

1. Remedy is unpaid leave (not paid), for 12 weeks with other
limitations – some people are exempt from its benefits.
2. Remedies are modest and narrow.

b. Constitutional – Congress exercised valid power

v. Tennessee v. Lane –
1. Title II of Disability Act and access to courthouses. Person was unable to access the
court and he had to crawl upstairs. Access to the court is a fundamental right. While
disability is not a suspect class, when paired with a fundamental right a more rigorous
review is necessary.

a. There is a pattern of discrimination of access to courts

b. Remedies – Injunctive relief and require states to take reasonable steps

for accessibility. This is proportional b/c the remedies are modest.

vi. United States v. Morrison –

1. Can congress create a civil claim for domestic violence?

a. NO because the cause of action is between two private parties.

b. State Action is missing to justify Section 5. It requires government

conduct.