Judicial Review and Justiciability Limits

Tension!
Broad/Narrow Brown
Big/Little Marbury
States Ints + [Narrow] Tailoring for CAs
Standard of Review?
N+P Level of GENERALITY

Formal/Function
SOP
JUDICIAL REVIEW
Exclusive SCOTUS ability to (1) Interp. Constn; (2) Invalidate laws by Cong (legisv) or axns by Pres (execv)
repugnant to Constn
Judicial Review in Constn! However . . .
1. Art. III, 2: Judicial Power (limited, original jdxn)
Over cases + controversies:
Arising under the Constn, laws, treaties of U.S.
Admiralty & Maritime jxdn
When U.S. = party
Bw 2+ states
Bw a state and citizens of another state
Bw citizens of different states
Bw citz of same state claiming lands under grants of diff.
states
Bw a state/its citz, and foreign states, citz, subjects
2. Art. VI, 2: Supremacy Clause
This Constn [ Art. Confed.], and the Laws of the U.S.
[federal] which shall be made in Pursuance thereof [made accord.
to Constn]; and all Treaties made [still binding], or which shall
be made, under the Authority of the U.S., shall be the supreme
Law of the Land [over what? STATE LAWS]; and the Judges in
every State shall be bound thereby, any Thing in the Constn or
Laws of any State to the Contrary notwithstanding.
3. Marbury MAJOR versus Marbury MINOR/MODEST:
Is Constn supreme law?
Courts exclusive/ultimate interprs of Constn?
BROAD
NARROW
M regards the courts as having
Marshall wrote Constn is a
special competence to interp.
rule for the govt of courts as
well as the legr
law EXCLUSIVE interprs
Judl rev as BYPRODUCT of

Hamiltons #78:
SCOTUS duty to decide
If actually deciding constty
cases in accord. w/ Constn
of exec + leg then actually
(system has two levels of
pwr (puppet strings over
law: statry + constl)
sword + purse)
Unclear why SCOTUS interps

Exercise jgmt will (Jgs =
binding o/s 4 corners of ctrm
robots)
Judiciary = shield of Constn, to
block legisr passing unconstl
laws
4. POLICY:
Why entrust Constn to Judiciary?
REVIEW ACTS OF CONGRESS: Combine cases + controversies

clause, Supremacy clause, Marbury SCOTUS has judl review over
Congl acts + to declare them void for contravention of Constn.
Marbury v. Madison (1803, Marshall) (Horizontal uniformity)
It is emphatically the province and duty of the judl dept. to say
what the law is.
Strikes down a congl law extending additl power for SCOTUS to
hear cases involving execv officers (re: Mandamus); BUT execv
and legv branch have discretion (Exec. acting as Exec, etc . . . )
Art. III is exclusive/exhausting, or else meaningless (expresio
unius); provides origl jxdn to SCOTUS in limited circs + appellate
jxdn for all others
If Cong were to interp. Constn, fox in hen house; too much power
REVIEW STATE COURT DECISIONS
Martin v. Hunters Lessee (1816, Story) (Vertical uniformity)
Issue: VA accept SCOTUS interp of U.S. Treaty (attempt at
vertical deptsm) SCOTUS has final rev over state
holdings based on fedl law/Constl issues, upheld
Judiciary Act of 1789 25
Need Vertical Judl Review!
1. Uniformity of laws (ex: have a treaty interpd 50 diff ways in
50 states)
2. Avoid state jealousies/biased interests (Marshall asserts state
courts capable of dealing with fedl Constl issues w/o being
swayed by politics)
3. Art. IIIs in all other cases before mentioned the SC shall
have appellate jdxn (nature of the CASE not the court system)
Cong. estd SCOTUS but other fedl cts; if hear state
cases, what is it meant to hear?
4. Entitles s power of removal to Fedl Ct (fairness/rights!)
Cohens v. VA (1821, Marshall)
Issue: brothers in VA sold DC lottery tix in violation of VA law
(jdxn question) SCOTUS sustained 25 jdxn to review
validity of state laws in criminal proceedings that have
fedl Constl elements
LEGAL PRINCIPLES: SUPREMACY CLAUSE + BINDING O/S CT
ROOM
Cooper v. Aaron (1958, Warren)
Issue: School board in Little Rock AK postpones legally mandated
desegn (response to Brown v. Board) b/c turmoil States
must follow SCOTUS decisions; What SCOTUS decides
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
Least dangerous branch; politicized or involved in legn
Restraints: Justiciability, Art. IIIs internal limitns,
Congress
o SOP; each branch has its own duties
o Efficiency;
Dangers of Judl Rev? WHO WATCHES THE WATCHMEN
o Counter Majoritarianism, judl activism, lifetime tenure
Fedst Pprs #78: Cts enforcing ppls will ctr-majn, judl
activism
o
o

Formal/Function
SOP
lmtd to facts of a single case; obligate decs of other

branches (Pres can pardon/veto)
Big Marbury! SCOTUS as exclusive interpr of Constn, and
SCOTUS decisions binding
But! Lincoln/Dred Scott (binding on that case, not every case
like it)
Little Marbury in that what SCOTUS decides for a particular
case is supreme law for those particular parties, but if
SCOTUS creates law to rule people as a whole via one case
b/w two parties, that is overextension of SCOTUS power
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
LIMITATIONS ON SCOTUS: POLICY + SUMMARY

POLITICAL RESTRAINTS
Art. II 2 cl.2 Judl Selection: Exec. Appoints, Senate
confirms
Art. III 1, Art. II 4 Behavior/Impeachment: Justices
apptd to hold Offices during good behavior (life
tenure); Impeachable for treason, bribery, high crimes &
misdemeanors
Packing/Budgets
Art. III 2 Jdxn Stripping: Cong can make exceptions to
app. jdxn
Legv overriding of Statutory Interps
Art. II 2 cl.1 Pardon Power
Vetos of Constl Legn
Art. V Constl Amendments: either/or
o 2/3 Congl vote to propose amdmt, Ratifn by 3/4
states
o 2/3 states apply to Cong to call Constl Convention
JUSTICIABILITY
SCOTUS self-imposed limitation, cases + controversies
of Art. III 2
Judicially created doctrines define/limit circs under which
Art. III fedl ct may exercise Constl authority.
Why?
o Broadly, concerned w/ SOP
o Conserve Judl Resources
o Judl Efficiency (prevent ideoll suits, limit cts pltcl
activity)
o Improve Judl Decision-making
o Promote Fairness
o Adversaries bring out the FACTS
o Policy AGAINST: burdening courts ability to adjudicate
RIGHTS by keeping out cases that need justice!
ADVISORY OPINIONS
Will not comment until there is a case, between parties.
No moot cases, collusive cases, theoretical cases
Even though an advisory opinion would not be binding,
Who: StandingSCOTUS will not hear constl challenge unless

person challenging the law meets Standing reqts
Art. III 2: extends judl pwr to all cases in law and equity, but not
all questions in law; restrictions promote fairness + check SOP
Need
1. Injury in-fact
Real, imminent;
probable, general
2. Causation
Burden of proof on
Harm must be fairly traceable to s axn
3. Redressability
Overlaps w/ causation;
Connection b/w alleged injury and judl relief reqd;
Must be likely speculative that injury redressed by
favorable decision;
Partial redress may be sufficient
Prudential Standing DoctrineGoes above and beyond case +
controversy reqts, based on prudential fedsm and SOP notions
1. Third-Party ( must assert own interests)
2. Generalized Grievances (no abstract question of pub. sig.)
3. Zone of Interest (s complaint must fall within ZOI
protected/regd by statute or Constl guarantee in question)
What: Political QuestionExists if (1) There is a textually
demonstrable commitment of the issue to another branch; OR (2) a
lack of judly manageable standards (inherently incapable of
resolution by judicial process)
Baker Six Factor Test:
1. Textually demonstrable commitment (in Constn)?
2. Lack of judicially discoverable/manageable standards
3. Turns on POLICY DECISION?
4. Unusual need for adherence to already made political
decision?
5. Potential for embarrassment from different branches saying
diff. things?
6. Disrespect for another political branch (foreign policy, step on
s/os toes)?
When: Mootness/Ripeness
Mootness: its too late to bring the case; must be an actual
controversy at all stages of trial (under Big Marbury, matter
b/c clear issue to adjudicate)
EXCEPTION: Capable of Repetition but Evading Review
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
SCOTUS will not issue legal advise to execv, legv
branch due to unintended consequences. (SCOTUS
make law!)
o Not advisory if:
1. Actual dispute b/w adverse parties/litigants
2. Substl likelihood that decision will bring
change/FX

Formal/Function
SOP
Reasonable expectation that same will be subj. to same axn

again + resolve issue b/c of short duration of axn (ex:
Pregnancy Roe)
Ripeness: Its too early to bring the case; seeking anticipatory
relief
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
JUSTICIABILITY: THE WHOSTANDING

ART. III 2 Cases + Controversies; Subj-matter Jdxn
1. Injury In-Fact: Concrete + Particularized; Actual or Imminent
Specifically: physical bodily injury, financial harm;
Broadly: Vote dilution, loss of opp to participate in racially neutral procedure

Lujan v. Defenders of Wildlife (1992, Scalia)
FACTS: Enviro group suing over lack of adherence to the ESA; claimed physical
injury by # dangered species (elephant/leopard habitat)
SCOTUS says imminent harm ( give time frame for total of habitat) + too
general (hurts everyone equally special harm); s essentially challenging
policy FX
Congl Conferral of Standing: Cong created citz suit in stat itselfIf clearly o/s
Art III judl pwr, Cong create it; b/c Cong get around other Constl provns by
statute, shouldnt be able to here; SOPLegr decides what law is absent
individualized case (standing essentially); Judl make law! To make decn absent
standing judry is making law; TOO BROAD MARBURY
o
Private attny genl in conflict w/ Pres attny genl if create a right
to such a thing, youre creating the rt to challenge Pres ability to do his job
o
Konto ex: W tries to enforce contempt order (DAs discretion) of exBF who
pay ch supp; enforcing supp if allowed, overburden DA
On the other hand . . .

o
If s/t harming entire country, shouldnt SCOTUS address?
o
If hurts everyone in general, shouldnt legr address?
Legr deals with whole sale issues; judry a/b retail issues
o
Legr already created this law what suppd to do now? (amend ESA to
impose stricter sanctions . . . ?)
o
spending time/money on prepng this litigation must actually be injured?
Massachusetts v. EPA (2007, Stevens)
FACTS: global temps CO2 Group of states, local govts, priv. orgs. allege EPA
abdicated responsty under Clean Air Act to reg emissions of greenhouse gases;
EPA claims harms so widespread, standing presents insuperable jdxnl obstacle
SCOTUS says
1. Just b/c climate change risks + harms widely spread, mean Mass has <
interest in litigations outcome;
2. Global warming swallow Ms coastal land as landowner, M has special
particularized injury
Compared to Lujan, where s directly harmed + show imminent harm

FEC v. Adkins (1998)
Where harm is concrete, tho widely shared, Ct finds injury in-fact.
Here, injury directly reld to voting (most basic pltcl rt) suffly concrete +
specific
Raines v. Byrd (1998)
Senators suing Pres to strike down Line Item Veto Act
No standing b/c injury wholly abstract and widely dispersed
Concurring: political issue for SCOTUS

US v. Richardson (1974)
SCOTUS held that a taxpayer have standing to claim that a law keeping CIA
expenditures secret violated Statement of the Account Clause (Cong/Govt
periodically make acctng to ppl of budget show how $ spent)
s interest is non-differentiated, has no bigger interest than anyone else
Think Lujan counter-args here . . .
Broad Marbury likely like, What!?

Schleisinger v. Reservists Committee to Stop the War (1974)
2. Causation: s burden to show harm fairly traceable to s axn

Allen v. Wright (1984)
AA parents sued IRS, claiming IRS failed to fulfill obligation to deny tax-exempt
status to racially discrimry priv schools.
SCOTUS held that injury fairly traceable to IRS conduct; problem belongs to
the school, not to IRS
s asking for relief that solve problem

Counterarg to any traditional narrow standing question:
Mass v. EPA (2007, Stevens)
EPA dispute causation DESPITE . . .

o
Greenhouse gases from new vehicles insignificant
o
India/China produce majority of GHGs
By not regng, EPA contributing to problem + harming s

What level of causation needed for standing?
In environl cases, Cts use precautionary principle where accept lower

causation cnxn b/c of significance (size, danger, timeliness) of injury
o
OR . . . just wanted to find for MA and want to overturn Lujan
3. Redressability: Must be likely speculative that decision will resolve injury
Lujan
Injunction unlikely to stop the projects endangering the animals, since American
aid consists of such small % of total project cost
Mass v. EPA
s only need to allege their harms caused by global harming would be reduced,
not completely eliminated, by enforcemt.
Prudential Standing Doctrine (may be overridden by statuteBennet v. Spear)
1. No Third Parties (vs. Usturia: something is wrong with YOUR injury)
Exception: Craig v. Boren (1976)Seller of beer challenged sex discn law

for small beer on behalf of men; buyer + seller have interchangeable econc
interests
2. No Generalized Grievances ( abstract questns of wide pub. sig.)
Raines v. Byrd (Line Item Veto Act)
US v. Richardson (Accounts Clause case)
Schleisinger v. Reservists (Incompatibility Clause case)

3. Zone of Interest
Penned Sheep Case: Sheep had to be penned for disease-avoidance purposes

but sued when sheep died b/c they fell overboard in a storm; what statute
designed to address, so sue based on it
Common Standing Issues
Congressional Conferral of Standing

o
Cong may create new injuries sufficient for standing, BUT SUE W/O ACTUAL
STANDING
Kennedy LujanCong candefine injuries + articulate chain of causation

giving rise to C/C where exist before, but Cong must ID the injury it
seeks to vindicate
o
Qui Tam Act private Attny Genl stands in as US govt for any case meeting
Art III reqt
Standing of Organizations
o
May sue for injury to organization itself or members IF:
Injury in-fact to members that would give them standing; AND
Injury related to orgs purpose; AND
Neither nature of claim, nor relief reqd, reqs participation of the individl
members in lawsuit
Taxpayer Standing to say law unconstlNo standing UNLESS (1) brought
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
SCOTUS held that past/present members of armed forces Reserves lacked

standing to challenge membership of certain members of Congress in the
Reserves as violating Incompatibility Clause ( hold Execv + Legiv office at
same time)
Interests too generalized; hurts everyone in country

Formal/Function
SOP
under Estabmt Cl AND (2) Appropriation ( tax credit) enacted by Cong

under tax/spend pwr
Flast: exceptn to ban on taxpayer standing b/c appropn + under

establishmt clause exception (carved out generzd grievances for
establishment clause)
Hein: ltd Flast, only applicable to Congl appropn exec choice
AZ Christian Sch: standing b/c it was a tax credit appropn; semantic arg
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
JUSTICIABILITY: THE WHATPOLITICAL QUESTION

Questions, in their nature political, or which are, by the
Constn and laws, submitted to the execv can never be
made in this Ct. (Marbury)
Two forks:
1. Inapprop. to attribute finality to axn of pltcl depts.,
OR
Would the courts decision to hear case step on
toes of legv or execv branch?
2. There is a lack of judicially manageable standards to
resolve/enforce issue by judl process
Whether the court is designed to handle the
issue, or if the political process is better suited to
resolve issue?
o Often involves the Republican question, or
the electoral process
o See Art. IV Guaranty Clause: The US shall
guarantee to every State in this Union a
Republican Form of Govt
Deemed entirely nonjusticiable!
The Baker Test (ultimately SOP issue)
Baker v. Carr (1962, Brennan)
TN voters claimed deprived of eq. protxn b/c their
votes count < other districts votes because
update in voting district since 1901.
SCOTUS said nonjusticiable: just b/c suit seeks
proxn of political rt does not mean it presents a
political question. Deemed eq. protxn issue b/c
one person, one vote
1. Constn expressly committed to altv branch
2. judly manageable standard for resolution
3. Impossty of deciding w/o initial policy determination
(by necly nonjudl discretion)
4. Unusual need to adhere to political decision already
made
5. Impossty of cts undertaking ind. resolution w/o
expressing lack of respect due coord. branches of
Republican form of govt (Guarantee Cl.) = nonjusticiable ALWAYS

Luther v. Borden (1849)Civil War RI charter question. SCOTUS
said this was a nonjusticiable political question. What constts
Republican form of govt is a philosl question
Congress must necly decide what govt is estd in the state
before it can determine whether it is Repub. or not. If you
dont know what Repub. govt is, you cant say whether
guaranteed.
Reasoning: (1) If negate a govt, by default you are negating
all laws enacted until that point chaos; (2) judiciarys
responsibility to settle issue of state govl authority; (3)
Fedsm/state sovereignty must follow state courts decisions
unless Constl ground for overturning; (4) Judiciary authd to
resolve Guaranty Clause issues
#1: Textually demonstrable commitment in Constn
Nixon v. US (1993)SCOTUS held challenges to impeachment
process nonjusticiable, based on Art. I 3 Senate has sole power
to decide issues of impeachment. House impeaches; Senate tries.
Powell v. McCormack (1969)Issue of what a house members
Congl quals pltcl quest, based on
Art. I 5, Cong. shall be the judge of the quals of its members
( say quals aforementioned, so the House decides whether
a member meets quals)
BUT . . .
o WHAT those quals are is an Art. I 2 justiciable quest.
#5: Disrespect coord. branches govt (step on s/os toes)
Powell v. McCormack (1969)Even if interp. may embarrass
another branch, justiciable b/c Amer govt reqs fed cts occasionally
to interp Constn s/t at variance w/ another branchs constrxn. (Is
broad Marbury sneaking back in?)
Nixon v. US (1993)If SCOTUS can review Senates impeachmt of
own members, this is fox/hen house issue why pltcl quest.
Coleman v. Miller (1939)Question of what is reasonable period of
time for state ratification of Constl amendment, under Art. V, is
nonjusticiable; Same prudential reasoning as Nixon (fox/hen
house)
Zivotofsky (Israeli passport case)Nonjusticiable, BUT this is more
of a basic SOP case, who trumps who: Exec/Legisv. Here, ab
recognition of govt but whether state dept has to print Israel or
not. Cong has Naturalizn + Immigrn Pwrs; Exec. deals with
FR/Ambassadors. Passport belongs to Sec. of State.
#6: Embarrassing when diff. branches saying diff. things
Goldwater v. Carter (1979)SCOTUS denied cert, but concurrence
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
govt (step on s/o toes)
6. Potential embarrassment from diff. branches saying
diff. things (Want govt to have one unified voice)

Formal/Function
SOP
said nonjusticiable question whether Pres can terminate a treaty,

b/c involves authority of the Pres and the conduct of US FR. If Pres
can enact the treaty, he can repeal/terminate it unilaterally.
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
FEDERAL POWERS
When Articles of Confed Constn . . .
Stronger fedl govt
Robust govt role for states
Why Fedsm?
Mutually hostile state tariff barriers prevent state
civil war
State military too weak; better centralized
State fund issues; collect taxes poor states!
o Failed to pay off war debts
States failed to enforce natl treaty obligations
Fedsm, textually:
Art. I 8 Congl powers
o Levy taxes
o Reg. interstate + foreign commerce
Art. I 8 Cl. 18 N+P Clause
o To make all laws which shall be N+P for carrying
into Execution the foregoing powers, and all other
powers vested by this Constn in the US govt, or
any Dept./officer thereof
How assuage fears of power of Centrd Govt
Federalist No. 44
o N+P clause harmless b/c all the reqd power to
execute genl pwrs would have gone to govt
anyway
10th Amendment
o Powers not delegated to Fed, nor prohibd by
Constn, reserved to states or to ppl
Federalist No. 51
o Dbl security to ppls rts by preventing
concentration of power: (1) Vertical SOP
(natl/state govts); (2) Horizontal SOP (fedl
branches)
Fedl/State govts have DISTINCT contributions to natl
welfare:
Art. I + II enumerate fedl power (affirmly) but
IMPLIED AUTHORITY OF FEDL GOVT

McCulloch v. Maryland (1819, Marshall) SCOTUS attempts to
answer where sovereignty lies in vertically divd power
Issue: Whether fedl bank can exist (yes), and whether states
may tax fedl bank (no)
Implied fedl pwrs not listed; implied state limitations
not listed. Enumd powers = enumd ends (Konto)
o If the end is legit (w/i scope of Constn), then the means (so
long as prohibd by + consistent w/ words and spirit of
Constn), then constl
BUT Cong pass laws under PRETEXT of its
powers
Problem with means/ends: (1) Theyre hard to distinguish! (2)
Textually, 8 uses a lot of means language instead of ends
language
Two holdings:
1. Cong has pwr to create the fedl bank b/c it fall under N+P
clause
Intertextual analysis: Framers knew how to write
absolutely necessary (Art. I 9) and chose not to
Necessary = convenient, useful, essential
o OR does it mean potentially helpful? (problematic)
Proper LIMITS Fed b/c limits necry
o BUT Marshall say what is improper
o Proper = proportionality?
Even if no N+P cl., we would read in the means
2. States cannot tax fedl banks; pwr to tax = pwr to , which
may defeat + render useless pwr to create
Ppl have pwr to vote, but for whole US MD taxing
fedl govt = taxation w/o representation
IMPLIED LIMITATIONS ON THE STATES
US Term Limits v. Thornton (1995, Stevens)
Facts: AK passed amendmt prohibng otherwise eligible
candidate for legr if already run for 3 House/2 Senate terms
SCOTUS says unconstl
10th Amendmt provides no basis for concluding states possess
reserved pwr to add quals to those fixed in Constn, b/c
Constn gives Fed pwr to create the quals (Art. I 3)
Expresio Unius (Art. I 3 say additl quals can be added)
BUT . . .
o Dissent says where Constn silent (ie: adding quals), states
have right to act (10th amendmt)
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
provide for spec. state immunities suggest by negv

implication that natl govt aggrandize itself @ states
expense
Art I 10 expressly limits states ( enter treaties, coin
money, grant titles of nobility); otherwise, state
power left open-ended

Formal/Function
SOP
10
BUT . . .
If states had that pwr, there would be 50 diff kinds
of state senators Disuniformity in fed (b/c these
fedl agents)
AND one state be able to change rules for a fedl
agent
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
11
COMMERCE CLAUSE 1/2

Art. I 8 cl. 3Commerce Pwr
Congress shall have Power to regulate Commerce with foreign Nations, and among
the several States, and with Indian Tribes
Art. I 8 cl. 18Necessary + Proper
To make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers and all other Powers vested by this Constn in the govt of the US,
or in any Dept. or Officer thereof
Interpd broadly to include activities that, in the aggregate, have a substl effect on
interstate comm.
Conflict b/w fedl need to regulate modern, natl market + state sovereignty @
core of fedst system, which played out in Rehnquist Cts CC jurisprudence
CC Test NOW: THIS IS HAZY GO BOTH WAYS!
I. IS THE ACTIVITY ECONOMIC OR NONECONOMIC?
II. Whether Cong can REGULATE: (Lopez):
1. Is it a channel of interstate commerce (big picture, mvmt bw states)?
2. Is it an instrumentality (facilitator: RR, radiowaves) of interstate commerce?
3. Is it a LOCAL activity w/ substl reln to interstate commerce? TENSION: how
much is substl
Economic activity in the aggregate, have a substl FX on interstate

commerce? (NLRB/Wickard/Raich)
PLUS FACTORSEconomic OR noneconomic

1. Tradly subject of state regn? (think a/b Comstock)
2. Part of a larger regn of econc activity? (Raich/Wickard)
3. Congl findings on impact?
Beefy findings of econc FX save invalid jdxnl nexus

(Morrison)
PRE-NEW DEAL
Gibbons v. Ogden (1824, Marshall)Expansive Interp. of CC (DICTA=Big M)
NY legr gave exclusive monopoly to ; operates compv steamboat service

licensed under Fedl statute; wins b/c of Supremacy Cl. + CC
Commerce = commercial intercourse more than buy/sell, incs navigation;

among several states = intermingled w/
No real 10th Am limit to plenary com. pwr Sole restraint = pltcl process
MODERN/POST-NEW DEAL COMMERCE CLAUSE
NLRB v. Jones (1937, Hughes)FX Test
SCOTUS upholds fedl act ceasing discrimn + coercion of union empees at steel
company (4th largest in US); Act real regn of commerce, but union issues w/i
zone of regn b/c immed. + catastrophic FX on commerce
Activities in rel. to prodv industry, tho look local in isolation, fall under realm of
fedl regn when regns FX is immed. + catastrophic to interstate commerce
Distinguishes Schechter + Carter, saying FX in those cases too remote

(unlike Carter, this regn would affect rates/wages in other states)
When industries org on a natl scale, making their interstate relations a major
part of activities, Cong must reg.
US v. Darby (1941, Stone)Aggregate Substl FX w/ Ratl Basis Def/In
Commerce (SOC)
SCOTUS upholds FLSA; you cant ship goods across interstate lines, when goods
made in substandard conditions or by empees making < prescribed min. wage
(overrules Hammer)
(1) Intrastate activities, in aggregate, having substl FX on interstate commerce;

(2) Ratl basis deference to legrSCOTUS eval. motive/purpose in enacting
legn (More def. than McCulloughreject pretext limitation?)
o
Even if one persons FX small + localized (+ even if Congl motive is to
control aspects of local prodxn), must consider FX after aggregation of class
MODERN/POST-NEW DEAL CONTD

Wickard v. Filburn (1942, Jackson)Outer Limit of Aggregate Substl FX
SCOTUS upheld law prevng man from exceeding wheat quota even tho using
what for himself + livestock. If he grow himself, he would have to buy it from
w/o else in aggregt, FX supply + demand interstate comm.
REHNQUIST LIMITATIONS ON CC (WHERE WE ARE NOW)
US v. Lopez (1995, Rehnquist)3 Prong Test; Substl FX + should I include 4-pt test
in Raich?
Gun-Free School Zone Act case; SCOTUS strikes as unconstl
If activity/regn is econc, aggregate test permissible; if not econc in nature, must

have direct substl FX on interst. comm.
Cong can regulate three types of activities: (1) Channels interstate commerce (big
picture); (2) Instrumentalities (facilitatOR: RR/radiowave) of interstate commerce;
(3, most imp.) Activities w/ substl rel. to interstate commerce
What happened to N+P? (McCullough was a/b means/ends; SCOTUS says that
here, end as interst. comm. is a pretext)
Concurring: Checks + Balances (Fedsm); Accountability (fed regs, states

blamed); Proceed with caution w/ CC b/c we have a big stake in it;
Dissent: EVERYTHING is interconnected in natl econy; Cong could have had ratl
basis for regn. Moral issue, like Alis BBQ/Lotry, and Cong can reg commerce +
morality stop Cong from acting
US v. Morrison (2000, Rehnquist)Affirms Lopez + est jdxnl nexus thru Congl
findings
SCOTUS struck 1994 Act providing civil remedy for victims of gender-motivated
crimes
Ratl basis test good enough when activity econc (Limits Darby: not as much
deference to Cong, even when Cong believes s/t to be econc activity, may not
be). Cong CANNOT reg non-econc activity based on aggregt substl FX test
Dissent: (1) Wants to continue substl FX b/c gender-based crimes may FX

interst. comm. in terms of mobility of empees + prodxn/consumptn of certain
goods. Should foxus on Congl data showing FX on commerce; (2) Nation too
interconnected for this NOT to be interstate commerce issue
Not overruling Heart of ATL b/c there, business a/b travel

Gonzales v. Raich (2005, Stevens)Substl Aggregate FX of Econ . . .
Personal growth/use of pot, even entering SOC, regble under Controlled

Substances Act (Facts analogous to Wickard, except opp. reasoning: we want
pot out of mrkt, whereas wanted what in mrkt) b/c there is an FX on
supply/demand FX prices in drug mrkt
Uphold Wickard rule of aggregate FX of intrastate commerce on interstate

activity; OK to reg if upholding/implementing N+P for wider regn of interstate
comm.
Growing = manufacturing ( like Lopez having a gun) commerce ( like

Sugar Trust)
Concurrence: Need N+P, not just CC to reg. under CSA; Dissent: Reduces
Morrison/Lopez to drafting guides (jdxnl nexus reqt); this is a state issue, as
other criml conduct tradly is; too much Congl deference; distinguishes
Wickard: W had > FX on commerce
Affordable Care Act (ACA)/Sebelius SCOTUS 2012
SCOTUS struck individual mandate provision under comm pwr: N+P for CC
Flipside of Lottery Case: you can ban, reg. activity; but you cannot
mandate transaxns that yet exist!
WHAT ABOUT . . .
o
Heart of ATL: Mandated commercial sales . . . within context of
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
of activity being regd

Analogize w/ ShreveportN+P to reg. s/t before it even gets to market;
substandard work conditions FX interstate commerce + strong cnxn bw in-state
rates and rates in other states (Race to the bottom!);
Critique: You can aggregate a/t + make it have substl FX
o
BUT . . . thats what ratl basis test is for: helps draw line

Formal/Function
SOP
12
preexisting transaxns
o
Ollies BBQ: business already estd, Fedl govt just prescribed a RULE
o
OSHA Rules for restaurant safety: same thing
Application of Lopez: Fed aggregate non-econc activity and reg. under

CC. Here, Fed trying to reg the aggregate inactivity, but no such thing as
aggregate inactivity having substl FX on anything
Comstock (2010)Used N+P to allow contd regulation of fedl prisoners (sex
offenders) b/c regn of fedl prisons already enumd pwr
Dissent: enumed pwr; Concurrence: Appl N+P Apply CC

heightened stand review
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
13
COMMERCE CLAUSE 2/2

PRE-NEW DEAL
1. Direct vs. Indirect Test (Formalistic)
US v. EC Knight (Sugar Trust Case) 1895, Fuller Op/Harlan Dissent NOT
GOOD LAW
SCOTUS affirmed dismissal of govt civil axn under Sherman Act to set
aside acquisition by American Sugar Refining Co. of 4 other sugar
refineries stock
Just b/c you control manufacture mean you DIRECTLY monopolize

prods commerce b/c Congs pwr to reg comm xtend to internal
police, Cong step in here (manuf comm)
Dissent: Disturbing freedom in buying/selling articles manufd to be

sold in other states DIRECTLY FX consumrs in all states
2. Substl Econc FX Testwhat is practical physl/econc FX of regd
INTRAstate activities in INTERstate comm?
Houston v. US (Shreveport Case) 1914, Hughes NOT GOOD LAW
Cong has auth. to reg. INTRAstate RR rates that discrim. against

INTERstate RR traffic, when RRs had lwr rates for hauls b/w 2 pts in TX
than rates bw pts inTX + Shreveport, LA, b/c unjustly promoting traffic
w/i TX
When inter/intrastate transaxns so related that govt of ONE involves

control of the other, Cong may step in. OTHERWISE, State>Fed (OLD
DIRECT FX TEST)
3. SOC Testwhen local activities integral to current of comm, regble
Swift v. US 1905, Homes
When comml mvmt of commodity is expected to go from one state to

another, and they do (1) typically + (2) on constantly recurring course,
Cong. can reg b/c there is a stream of commerce
Predictability!
4. Morals RegnLocally occurring but natl concern to halt objble
commodities
Champion v. Ames (Lottery Case) 1903, Harlan
SCOTUS upheld fed Act prohibng interstate transport of lottery tix
Lottery tix = subj. of traffic subjects of commerce regble
Suppression of nuisances injurious to pub. health or morality is among

the most important duties of gvot PRETEXT of Morals regn = CC
o Opposite of todayno morals under CC, yes econc
Hipolite Egg v. US 1911
SCOTUS upheld confiscation of shipmt preserved eggs b/c label

disclose a deleterious ingredient illegally xported articles may be
seized wherever found, even if at destination
Hoke v. US 1913
SCOTUS upheld Mann Act, prohibng xportatn of women in interstate

comm
If Cong can remove lotteries, then may remove women to protect them
from exploitation; CC + N+P
Hammer v. Dagenhart (Child Labor Case) 1918, Day Op/Holmes Dissent
Cong indirectly reg. state police pwrs thru bans on interstate comm.
NEW DEAL ERACong. relied on Substly FX test of Shreveport +

SOC rationale of Swift in passing legn
RR Retirement Bd v. Alton RR 1935, Roberts
SCOTUS struck down compulsory retirement/pensions for RR
workers (first test of major ND legn)
Roberts noted that pensions were related solely to socl welfare of
worker remote from regn of commerce
SCOTUS moving away from natl police pwr/regn morals/socl
context + back towards needing a direct influence/FX on comm.
Schechter Poultry Corp. v. US (Sick Chickens) 1933
SCOTUS struck Natl Industry Recovery Act 1933: (1) unconstly
delegd legv pwr, and (2) Act appld wage/hour/purchase rules to
local businesses (poultry retailers) selling interstate
Govt arg of FX interst comm too attenuated, not suffly direct
Carter v. Carter Coal 1936
SCOTUS invald Coal Conservation Act (NLRA like labor regs for
coal industry) b/c labor provisions fall upon PRODXN comm.
Cong reg b/c in CC
Prodxn may FX comm, but here, all local FX fedl authority
Distinction b/w direct + indirect FX turns, upon magnitude of
cause/FX, but upon the MANNER in which FX brought about
(relation bw activity/condition + FX)
POST-NEW DEAL COMMERCE CLAUSE + CIVIL RIGHTS
SCOTUS accepted that Cong was dealing with moral prob (Lottery)
Heart of ATL Motel 1964, Clark
Title VII of Civil Rts Act 1964 prohibd discimn anywhere that
offers to serve interstate travelers, or where a substl portion
of food it serves has moved in commerce
SCOTUS said discrimry policies @ inns impeded interstate travel
by (1) impairing travelers convenience/pleasure and (2)
discourage substl travel falls under CC, so provision valid
Katzenbach v. McClurg (Ollies BBQ) 1964, Clark
SCOTUS upheld Title VII application to BBQ place in AL prohibd
AA, b/c substl portion of food served came thru interst. comm.
o Why not just protect out-of-state AA? Overinclusive
o N+P to enforce blanket ban
COMMERCE CLAUSE + CRIME
Perez v. US 1971, Douglasouter limits of FX commerce rationale
SCOTUS upheld conviction under fedl criml prohibn on loan
sharking
Even where extortionate credit transaxns are purely intrastate in

character they directly affect interstate + foreign comm b/c
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
of harmless goods made by kids. reg. to prevent unfair

comp/inequality bw states w/ better/worse child labor lawsRace to the
bottom! (Darby overrules)
Distinguish Hipolite/Hoke/Lottery: those cases dealt w/ particular
character of particular commodities + govl scope over those particular
commods (regn = prohibitn)
Dissent: Reg of interstate comm unconstl b/c it happens to interfere
w/ domestic state policy; Congl motive shouldnt matter; Child labor =
evil should be regd/d

Formal/Function
SOP
local ops raise funds to finance natl extortion ops.
14
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
15
FEDERAL LIMITS ON COMMERCE POWER: 10TH AMENDMENT

10th Am: The powers not delegated to the US by the Constn, nor prohibd by it to the
States, are reserved to the States respectively, or to the people
These cases are a/b the limits on Cong to reg. states themselves
Concern: fedl regns overstepping boundaries of state sovereignty
o
States rights expressed but derived from structural postulates implicit in
fedl scheme + 10th/11th amendments
Placeholder for Fedsm b/c fedsm never appears in Constn. It may
be a penumbra
Tension: Supremacy Clause + 10th Am
Pro State Govt
Pro Centralized Govt
1. Idea of LOCALstates know states +
1. Control neg. externalities (air poll)
tailor to state needs
2. Public goods (mltry)
2. Vote w/ your feet state/local
3. Social insurance/aid for natl
govts cater to DIVERSITY
disasters
3. State experimentation yields new
4. Redistrib wealth among states =ly
practices
5. Prevent v competition (child labor)
4. Meaningful govt-citz relationship w/
6. Protect Rts from tyranny of local
smaller govt (participation)
majorities (thru diversity)
Coyle v. OK (1911)
SCOTUS invald conditn in fedl enabling act, admitting OK to the union, that
purported to specify the state capital
The power to locate and change its own seat of govt are essentially state pwrs
beyond Congs control
US v. CA (1936, Stone)
SCOTUS upheld penalty imposed on state RR for violating Fedl Safety Appliance
Act States sovereign pwr necly diminished to the extent of the grants of pwr
to the fedl govt in the Constn
SCOTUS also rejected CAs claim of immunity from fedl regn for activities in
which States tradly engage limitation upon plenary pwr to reg. comm.
NY v. US (1946, Frankfurter)
SCOTUS upheld appln of fedl tax to NYs sale of bottled mineral water from stateowned springs
Congs pwr to tax is like comm. pwr in terms of reach + so long as Cong.
tapping a source of revenue that is not uniquely State activity/propty, Constn
allows tax (state more like private actor here)
Natl League of Cities v. Usery 1976, Rehnquist BAD LAW
SCOTUS struck application of FLSA to states (reqd minimum wage for state +
local empees) as unconstl
States are ind. and sep. entities from fedl govt tradl state govt functions out
of fedl govts reach
Why? Fedsm! What would be left for states to reg if fedl regs
state/municipalities?
Garcia v. San Antonio MTA 1985, Blackmun OVERRULES NATL LEAGUE
SCOTUS applies FLSA to states, to protect the states generally
States sovereign interests more properly protected by procedural safeguards

inherent in structure of fedl system (ie: pltcl process) than by judly created limits
on fedl pwr
So long as fedl law unduly burden state, applble to states
REJECTS rule of state immunity from fedl regn that turns on judicial appraisal of
whether a particular govl function is integral or traditional too hard to know
what is integral/tradl
Dissent: (Powell) believe pltcl process will protect states from unduly
burdensome regs b/c legn of past 30 yrs less less repv of state/local interests;
Incentives OK; Coercion OK ( force states to pass legn)

Taxation laws generally more deferential b/c pltcl process itself
holds Cong to a higher standardmore acctble. Its more diff to
get tax passed.
ANTI-COMMANDEERINGb/w Natl League and Garcia, SCOTUS dicta
suggested Cong compel state legv process w/ fedl regs.
New York v. US (1992, OConnor)
Fedl amendmt to Low-Level Radioactive Waste Policy Act 1985 gave

incentives for states to comply w/ act, which reqd states to dispose of
waste generated w/i the state. SCOTUS upheld two provisions (monetary
state could impose surcharge on disposal of waste from another state
+ access--cost of access to disposal sites + deny access to waste gend
by states mtg fedl deadlines) and struck one (take titleif state
failed to dispose of internly gend waste, state must take title of waste
liable for harms from waste).
Cong hijack state legv process. Cong may exercise legn OVER PPL
Cong may reg commerce directly, but reg. HOW STATE REGs.
o Cong may ENCOURAGE, but a choice b/w two fedl regs choice
o ACCTBLTY: when state coerced, its not adequately repd + if s/t
went wrong, state would bear brunt of damage even tho strongarmed by fed
Distingd Garcia: There, SCOTUS said issue for judiciary but for pltcl
process to discern. Here, SCOTUS put similar question of state sovty
under 10th Am, rather than question of pltcl process
Dissent: Act was solution to natl prob that states consented to. Now,
Fed has to do s/t BIGGER + more bureaucratic, which is worse for states
Printz v. NY (1997)Ventriloquist Congress
SCOTUS invald Act reqng state + local law enforcemt to conduct

background checks on handgun purchasers
Cong. force state/local law enforcemt officers into Fedl service (s

accountability when state officers have to administer fedl law)
There is a system of dual sovty in America; Framers intend for fedl

govt to act as a central govt that acts upon + thru States. They are
SEPARATE systems exercising concurrent auth. over ppl
Dissent: Stevens args that outcome s safeguards against tyranny b/c

Cong/fedl govt would have to get BIGGER to enact fedl policy if have
state officers execute fedl law
Reno v. Condon (2000, Rehnquist)
SCOTUS upheld fedl law (Drivers Privacy Protection Act 1994) limiting
the commercial vending of personal data by the states (DMVs prohibd
from selling/disclosing personal information w/o persons consent)
Rejected SCs commandeering claim + relied on SC v. Baker: DPPA req.

states to reg. own citz, req. state officials to assist/implement fedl
statute. DPPA regs States as OWNERS OF DATABASES
Also, DPPA is genly applicable + only applicable to states (like NY

water bottle case)
IN-CLASS HYPO: No person, sheriff or not, can have weapon 3+
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
Wants to preserve demc self-govt. (OConnor) Fedsm reqs that States have
legit interests which Fedl bound to respect despite fedl law supremacy
SC v. Baker 1988, BrennanLikelihood of pltcl process breaking down = tough
arg to make
SCOTUS rejects Garcias some judicial interventn approp. to compensate for

failings in natl pltcl process when upheld fedl income tax for interest from
state-issued bonds
Nothing in Garcia or 10th Am authng SCOTUS to second-guess substv basis for

Congl legn; b/c pltcl process defective, nor leave SC isolated + pwrless, 10th
am implicated

Formal/Function
SOP
bullets
This is literal state disarmament by Fedl
First Natl Leage, then Garcia (G wins) question of Baker?

NY (92), have states change their legnincentive OK, coercion ok
16
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
17
FEDERAL LIMITS ON COMMERCE POWER: 11TH AMENDMENT

11th Am: The judl pwr of the US shall not be construed to extend to
any suit in law or equity, commenced or prosecuted against one of
the States by Citizens of another State, or by Citz or Subjs of any
Foreign State.
Adopted in response to Chisholm v. GA (1793), in which SCOTUS
took origl jdxn of suit against GA by SC creditor seeking paymt for
goods GA bought in revolution
As Art. I + 10th Am go together, Art. III + 11th Am go
together; 11th Am restricts Art. III; Art. I be used to
circumvent that restxn
Is power to sue, like power to tax, the power to destroy?
WHAT IS BARRED
WHAT IS NOT BARRED
1. Suits for damages
1. Suits for damages under 14
2. Injv/declry relief where
Am 5
state named as party
2. Injv/declry relief where
3. Suits against state officers,
state official named as party
where retroactive damages
b/c official acted o/s constl
will be paid out of State
authty
treasury, OR where axn =
3. Axns by Fedl govt or other
functional equivalent of quiet
State govt
title axn, divesting state of
4. Bankruptcy proceedings
land
5. Axns against local
4. Suits against state officers
(city/county) govts
for violating state law
(diversity jdxn)
Hans v. LA (1890)11th Am extends not only to cases w/i diversity
jdxn but also to cases w/i fedl question jdxn of fedl ctsCANT
SUE OWN STATE IN FED
Ex parte Young (1908)Fedl Ct could issue an injunction against
state officials who sought to enforce unconstl state law b/c
really the state but the official acting beyond constl authority
Edelman v. Jordan (1974)11th Am permits suits for injunctive
relief against state officers, but not suits for damages
Fitzpatrick v. Bitzer (1976)Cong. Can abrogate 11th am immunity
+ allow states to be sued directly for damages, pursuant to
Enforcemt Pwr of 14th Amendmt
SCOTUS left open issue whether Cong could do the same
under CC
PA v. Union Gas Co. (1989)SCOTUS upheld fedl environl law
allowing suits for damages against states, when pursuant to CC
Seminole Tribe of FL v. FL (1996)SCOTUS overruled PA v.
Union Gas, preventing the abrogation of immunity w/o states
consent when Cong acting under Art I 8 comm. pwr
EXTENDING IMMUNITY (Prohibd under CC + 14th Am)

FL Prepaid Post Secry Edu. Expense Brd v. Coll. Savings
Bank (1999)State entities (pub. universities) immune from
patent/TM infringement axns in fedl Ct
Kimel v. FL (2000)States immune from ADEA suits
Brd Trustees of Univ. AL v. Garrett (2001)States immune
from Title I/Disabilities suits
FEDL PWR V. FEDL REMEDIES
a/b limiting Congl reach in regn but a/b limiting remedial
MEANS by which Cong may enforce regn otherwise w/i
substv legv pwr
STILL WAYS TO ENFORCE FEDL LAW:
1. Injunctions/declarry jgmts
2. Fedl officials may enforce fedl statutes via fedl
agencies @ fedl expense
3. Cong can condition fedl spending pgms @ states
agreement to waive immunity
STATE IMMUNITY + FEDL AGENCY PROCEEDINGS
Fedl Maritime Commission v. SC State Ports Auth. (2002)
Cruiseship companys adminv complaint alleging SC
authority violated fedl shipping act by prohibng berths in
state ports for gambling vessels
Even if commission exercise US judl pwr, to avoid 11th
amendmt, adjudication of private complaint s sovn
immunityFMC adjudication is like civil litign
Dissent: FMC acting under exec. Pwrthis decision agency
flexty fairness effective law enforcemt bureaucracy
ART. I BANKRUPTCY PWR
Central VA Commty College v. Katz (2006)Art. I 8 cl. 4
Bankruptcy pwr upheld
State could be subj to creditors in fedl bankruptcy
Bankruptcy cl. Aimed to provide limd subordination of
state to fed
11th Am = placeholder for sovereign immunity

text meaningless + SCOTUS given its their
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
Alden v. ME (1999)Extended Seminole to state courts on the
grounds of Constl structure + history
Congs ability to push states into fedl cts s fedsm by
commandeer[ing] the entire pltcl machinery of the state against
its will
Majority: Doctrine that sov be sued w/o its consent was universal
in the states at the time of Constns ratification
Dissent: Rule prevents Cong from providing a fedl forum for axn
against states

Formal/Function
SOP
preferred meaning, exceptions incd
18
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
19
TAXING POWER 1/2

Art. I 8 cl. 1 grants Cong the pwr to lay taxes for the genl welfare.
Purpose: revenue generation
o BUT . . .
Ct has allowed taxes that reg activity + produce little
revenue allowing Cong to reach ends beyond their
enumd pwr. Taxes both discourage/encourage
behavior + raise revenue
Ct afforded Cong great deference in this
determination, stating cts have auth to limit exercise
of the tax pwr unless there are penalty provns
extraneous to any tax need (Kahriger)
Art. I 8 cl. 1: Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debrs and provide for the
common Defence and genl Welfare of the US; but all Duties,
Imposts and Excises shall be uniform throughout the US
Art. I 8 cl. 18 (N+P)
TAX PWR AS REGULATORY DEVICE: TAX VERSUS PENALTY
Child Labor Tax Law 19191: After Hammer, Cong. imposed 10% tax of
annual net profits on emprs of child labor in covered business (if
wanted torev, tax so )
Bailey v.. Drexel Furniture Co (Child Labor Tax Case) 1922
Regulation thru tax is permissible if it is incidental/rationally
related to the tax itself + if the regn is within Congs
authority
A tax should be enacted w/ primary purpose of taxing, to reg s/t
unrelated to the tax; Tax cannot look like a penalty
SCOTUS held that commerce pwr reg child labor tax pwr
cannot reg. it either
Reasoning: All taxes have regry FX, but regn cannot be CRUX of
tax. Here, pretext passage of McCullogh applies: goal was to
child empt
Court looked to . . .
o Veazie Bank v. Fenno (1869)d tax on circng notes of
ppl + state banks from 1%-10% upheld; Cong has auth to
provide for natl currency
o McCray v. US (1904)d tax on margarine upheld on same
grounds as Veazie; Cong has auth to reg interstate commerce.
Even though the tax was 40x regular tax, and even though
Congl motive disclosed in its selection to discourage
sale/manufacture of an article by higher tax invalidate tax
o US v. Duremus (1919)Narcotic Drug Act imposed specl
FEDERAL EXCISE + LICENSE TAX

US v. Constantine (1935) convicted of selling liquor w/o paying
specl excise tax of $1000 (imposed by Cong.), in additn to $25
business tax
SCOTUS said it was a penalty tax invadd state police pwr
Sonzinsky v. US (1937)SCOTUS sustained Natl Firearms Act 1934,
which imposed $200 annual tax license on dealers in firearms
SCOTUS said prodv of some revenue speculate as to
Congl motives nor to extent which it may operate to restrict
activities taxed
attended by an offensive regn + operates as tax by
accumng some revenue
US v. Kahriger (1953, Reed)SCOTUS upheld 1951 Revenue Act,
which taxed professional gamblers + reqd them to register w/
Collector of Internal Revenue
It is okay for Cong to have dual motivescontracts judl pwr
from Bailey
o UNLESS there are penalty provisns extraneous to any tax
need, SCOTUS have auth to limit Congs tax pwr
Just bc a tax discourages certain activities make it unconstl
A tax need not raise significant money. A tax that is
unsuccessful at raising funds can still be constl, as long as
raises some money, and here, tax raised revenues >
revenues from narcotics + firearms taxes SCOTUS upheld
Distinguish Child Labor Case ( dress up penalty as tax);
Here, penalties ok so long extraneous to tax need ( over the
top? Ratly reld)
o With child labor: imagine a tax that was higher for evening
empees?
Jackson Concurrence: Purported tax law imposed tax and
reporting obligations only on certain gamblers whose activities
in most states were illegal difficult to regard as ratl or goodfaith revenue measure
o BUT joined majority b/c dissent agree on an opinion that
impair legit use of taxing pwr
o Frankfurter Dissent: When oblique use is made of taxing
pwr, SCOTUS cannot shut its eyes to regulations designed to
control conduct the Constn left to the States just because
Cong. wrapped the legn in the verbal cellophane of a
revenue measure.
TAXING POWER POST-NEW DEAL
Asking whether tax impermissibly regulates depends on
affirmative answer to antecedent question whether an area
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
tax on manufactr, importn, sale, gift of opium/coca leaves +
compounds or derivatives. Just b/c motives beyond taxation
invalidate
Tensions: Should Cong be able to reg thru taxes no matter what, so
long as act w/i their immed. pwrs? Is that dishonest? Is that too much
Congl pwr? Is that unconstl?

Formal/Function
SOP
20
of state autonomy in which it would be impermissible for

the fedl govt to reg.
The more expansive the concept of permissible fedl regn, the
more attenuated the area of IMpermissible regry intrustion
thru taxation.
Affordable Care ActSCOTUS draw line b/w tax + penalty
(implicate that if penalty bad) although Congs pwr to tax BROADER
Congs pwr to reg commerce BUT have as great pwr to control
individs as in commerce pwr (broader deeper). BY STATUTE, TAX
> THAN THE ALTV BEHAV.
Konto says: Where is the tax going? Earmarkedlooks like tax; If not
regn?
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
21
TAXING PWR RUBRIC

Applying ACA
1. Is tax meant to make s/t illegal (primarily regry penalty invalidBailey test; if primarily revenue tax
valid)
o B/c tax is cheaper than insurance + dont want insurance just pay tax
o Konto: Incoherent to say incentivizing b/c paying penalty get anything + buy insurance you do get
something
o CA: ppl w/o insurance believe getting anything anyway ($1000 of insurance provides $250 of benefit,
$750 is penalty; break even)
Some class of ppl will choose to pay tax rather than change behavior b/c tax isnt so high (like Bailey) tax is
okay = b/c some ppl change their mind; not forcing ppl to change their minds
ACA discussion of Bailey
1. Exceedingly heavy burden on company
Can still choose not to do it
2. Only imposed on those who knowingly empld under age labors (cant have scienter reqt sounds criminal
punitive tax)
Imposed upon everyone
3. Enforced in part by DOL
IRS enforces it
When answering/approaching Tax issue on Exam:
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
22
SPENDING POWER
Art. I 8 cl. 1 provides that Cong has the pwr to spend money
in order to pay the debts and provide for common defense and
general welfare of the US. In 1936 (Butler), SCOTUS adopted
broad Hamiltonian view that Congs pwr to spend for genl
welfare is not limd to the Constns direct grants under Art. I 8
Not as many cases challenging spending pwr b/c of
standing issues with taxpayers
Purpose: provide for GENERAL (Natl concern; not local)
welfare
o But...
SCOTUS gives great deference Cong. in deciding
what is for the common benefit
Art. I 8 cl. 1: Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debrs and provide for the
common Defence and genl Welfare of the US; but all Duties,
Imposts and Excises shall be uniform throughout the US
Art. I 8 cl. 18 (N+P)
Agricultural Adjustment Act (AAA) 1933 sought to stabilize farm

prices by curtailing agro prodxn; Sec. Agr. Kd with farmers to
reduce productive acreage in xchange for benefit payments
(processing tax paid by processor upon first domestic
processing of commodity)
US v. Butler 1936, Roberts
SCOTUS invalidd Act, claiming an invalid exercise of
spending pwr b/c unconstl means to reg. agricultural
prodxn (pretext)
Cong may spend in any way believes would serve genl
welfare, so long as it doesnt violate another constl
provisn (reserved states rts)
Cong may place conditions on grants, so long as the
conditions are expressly stated and have some
relationship to the purpose of the spending power
o Adopted Hamiltons interp of taxing/spendingCong
has substv pwr to tax/appropriate, limited only by
the reqt that it shall be exercised to provide for the
genl welfare of US
o Like Child Labor Tax Case: If Cong use tax pwr as
instrument to enforce regn of state-concerned
matters (child labor), then use spending pwr to reg
same kind of state-concerned issue of agro prodxn
SPENDING PWR POST-NEW DEAL: 1937 SOCL SEC. CASES

Steward Machine v. DavisTitle IX of Socl Sec. Act imposed payroll
tax on emprs of 8+ ( earmarked tax, went to genl funds)
BUT a credit provision (allowed employer to receive up to 90%
credit of fedl tax for contributions to fedly certd state unempt
fund) sought to induce states to enact laws in compliance
SCOTUS upheld tax + credit provision; motive to encourage
behavior coercion
Distinct from Butler: Here: (1) no earmarked taxes; (2) state
approval given; (3) state can repeal law; no irrevocable K; (4) not
a means to an unconstl end
Helvering v. DavisSCOTUS upheld old age benefits provision of Titles
VIII + II of 1935 Socl Sec. Act
Provision imposed fedl taxes on covered emprs + empees to
provide for payment of fedl old age benefits; try to enlist state
legrs but involved exclusively fedl spending scheme
SCOTUS said the best place for this legn is national (national v.
local welfare)
CURRENT DEFERENTIAL APPROACH TO CONDITL SPENDING
South Dakota v. Dole 1987 RehnquistNatl Min. Age Drinking Act
conditioned hwy funds to states on states agreement to raise drinking
age + withheld 5% of fedl hwy funds payable to states from any state
who permitted purchase of alc to ppl <21yrs old
21st Am allows states exclusive pwr to reg manufacture,
transportation, consumptn of alc.
SCOTUS upheld Act; even tho Cong reg drinking age directly,
can encourage state uniformity in drinking age ( clash w/ 21st
Am)
o Since SD would only lose 5% of funds, encouragemt
coersion
Spending pwr allows Cong to attach conditions on receipt of fedl
funding objectives o/s Congs enumd pwrs can be attained thru
use of spending pwr
LIMITATIONS/4 (5) PART TEST TO VALIDATE SPENDING:
1. Genl/Natl welfare (Cts defer substly to Cong);
2. Conditioned receipt of funds must be transparent;
3. Must be reld to fedl interest in natl prgms/projects (safety?)
4. Other constl provns always limit spending pwr
o Coercion/Encouragement line + Fedsm concerns
Dissent: (1) Is this a condition on a grant, or a regn? (2) This is
an attempt to reg. the sale of liquor, which is o/s Congs pwr
ACABottom line: Medicare tax = penalty SCOTUS says unconstl. If
states accept ACA grants (fedl gives $ to expand Medicare w/ strings
attached) then lose NEW fedl funding for Medicaid funding + all
preexisting fedl Medicaid funding.
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
Pwr to confer/withhold unlmtd benefits = pwr to

coerce/destroy
Dissent (Brandeis, Cardozo): Threat of loss hope of
gain = essence of econc coercion; here it was persuasion
coercion

Formal/Function
SOP
23
Grants unconstl bc of strings attached coercion: retroactive

withholding
States acting in reliance on Medicaid fedl funding Cong
coerce activity on threat of removing that funding
Dissent: Erosion of fedsm. Fed could implement own healthcare
for poor on its own just as does for seniors inducing states to
do s/t that Cong already can do (Cong could just remove Medicaid
funding if wanted to impl own prgm)
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
24
WAR + TREATY POWERS
WAR POWER
TREATY POWER
Cong has very broad pwrs over
Legv and Execv branches share joint
treaty power under Art. II 2, which is
intl issues + foreign affairs.
part of the Supreme Law of the Land
Arts. I + II war powers, in
(Art. VI 2), but the treaty pwrs limits
conjunction with N+P
+ pwrs are unclear.
clause, give wide pwrs to
What is clear . . . (Missouri
prepare for + wage war, as well
v. Holland)
as to control after-FX of war.
o 10th Am bar exercise of
War power can be used
treaty pwr
o Treaty pwr allows fedl
to justify acts otherwise
govt to reach ends
o/s Congs authority, and
beyond its enumerated
even to undermine fundl
powers to address natl
rts, as in Korematsu
problems that req. the
Therefore, fear of abuse
states to act in
concert.
Limitations on pwrs
Art. II 2 President shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided 2/3 of the
use, without which war
Art. VI 2 All Treaties made, or which shall be made, under the Authority of the US, shall be the
pwr could be used to
Laws of any State to the Contrary notwithstanding
justify any kind of
Art. I 8 Congress shall have the Power to regulate Commerce w/ foreign Nations
intrusive regn that would
Art. I 8 cl. 18 N+P
power checks in
Missouri v. Holland (1920, Holmes)
Missouri challenged treaty b/w
Constn:
US and Br. to protect migrating
o Temporal limits
birds by prohibng killing,
o Rational
capturing, or selling of any of the
plausibility
birds incd in terms of the treaty,
o Direct/Immed.
and agreed that US + Br. would
take/propose to legrs the necry
effect of war
implementing
treaty,
Art. I 8 Congress has the power tomeasures
declarefor
war,
to raise and
except as permitted by fedl regs
support armies, to maintain a navy, compatible
to make rules
for the regn
with the Treaty terms.
of the land and naval forces, and to SCOTUS
provideupheld
for organizing,
treaty
arming, disciplining, and calling forththeState
militia
sovereignty and the
10th Am do not limit the
scope of
treaty
pwr
Art. II 2 President shall be the Commander
in the
Chief
of the
It
is
ok
to
have
treaties
a/b
Army, Navy, and the state militias when they are called into the
things
that
fall
w/i
Congs
service of the US
Art. I 8 cl. 18 (N+P)

Woods v. Cloyd W Miller Co.
(1948, Douglas)Title II of
Housing + Rent Act of 1947
controlled rent prices in an
effort to stabilize housing
pwrs, and it is permissible for

Cong to implement such a
treaty, reqng it to reg areas
beyond its enumd pwrs, but
Cong violate other Constnl
prohibitions
Rationale: (1) only way to
protect natl interest in the
birds is thru fedl regn in
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
prices after the war, when
veterans were returning to a
lower availty of housing due
to countrys prodxn focus on
war effort
SCOTUS upheld the Act.
Congress has auth to reg.
economy under its war
powers, as is N+P, even
after war hostilities end
Direct + Immed.
Consequences Test:
o As long as the war is
the direct + immed.
cause to housing
shortage, it is ok to
have rent control to
help ppl cope w
current conditions +
consequences of war.
o N+P clause,
combined w/ Art. I
war pwrs
Jackson Concurrence:
Concern a/b temporal
FX. Direct FX can last for a
really long time! How long
is too long for rent control?
There must be REAL war
FX; technical state of
war suff.
Hamilton v. KY Distilleries
(1919)SCOTUS held that
war pwr includes the pwr to
remedy the evils which
have arisen from its rise +
progress and continues
for the duration of that
emergency. Whatever may
be the consequences when
war is officially termd, the
war pwr does not necly
end w/ the cessation of
concert with Canada

(adjoining country involved)
reqd natl axn; (2)
Holmes suggests that Cong
can make treaty under N+P
as a means to carry out end
(hunting inherently local
activity)
Opinion used broad

language, but there are
limits:
o Must be a natl axn in
concert w/ another
pwr
o Must also be delegated
expressly
o Must involve important
natl interest (here
birds)
o Cannot contravene
any prohibitory words
in the Constn (interpd
as Am 1-8, SOP?)
Tension: is it ok to use treaty

pwr for things otherwise
have pwr to do? Think Lopez.
(No ex-post facto laws thru
treaty, but trans-country
issues OK)
Reid v. Covert (Plurality 1957,
Black)Congs war pwr to provide
mltry jdxn (mltry courts) over
offenses American
servicemen/their dependents
made overseas (Execv agmts bw
Amer + other nations)
Govt claimed legn N+P to

carry out US obligns under intl
agmts
SCOTUS respd: No agreement

w/ foreign nation can confer
pwr on Cong. or any other
branch of govt, that is free
from restraint of Constn; Treaty
pwr be used to suspend Bill of
Rts
Zschernig v. Miller (1968, Douglas)
SCOTUS barred OR from appln
state alien inheritance law b/c it
intruded into the field of foreign

Formal/Function
SOP
25
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
hostilities.
affairs which the Constn entrusts

to the Pres + Cong.
State law affect intl

relations (hazy rule b/c state
could FX FR in some
situatons)

Formal/Function
SOP
26
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
27
LIMITATIONS ON STATES OVERVIEW

1. Dormant Clause
Art. I 8 cl. 2: Commerce Clause (Legv)
Art. I 10: Express limits on States, incng No State
shall, w/o Congs Consent, lay any Imposts or Duties on
Imports or Exports, except what ma be absolutely
necry for executing inspxn laws
Art. IV 2: Privileges + Immunities
CC intended to ensure common mrkt among states
SCOTUS quick to strike legn discrimng against
interstate commerce, or that act to protect local
industries against compn.
Dormant CC inferred from [Constl provns above] suggest
that those types of state axns are unconstl, as well as
laws with an unduly burdensome FX on commerce,
o Even in the absence of affirmv fedl regn
o Even if state gives plausible, legit reasons for regn
2. Preemption
Art. I 8 cl. 3 Commerce Power
Art. VI 2 Supremacy Clause
When Cong has exercised the commerce pwr, the
challenge to inconsistent state axn rests on both the
exercise of the comm pwr under the CC, and the
preemptive FX of the fedl legn under the Supremacy
Clause
o Vacuum Issue: When states cannot carry out
activities/regns that are tradl police pwrs b/c they
may FX interstate commerce vacuum. Fedl govt
comes in and preempts states; that which the states
cannot do, the fedl govt must do.
o Criticism: What about the laboratory of the
states? If fedl govt shuts down state experiments
before they are fully conducted, how not
encroaching on state sov'ty?
3. Art. IV 2 Privileges + Immunities: Citizens of each
state shall be entitled to all Privileges and Immunities
of Citizens of the several States.
Art. I 8 Cl. 2s Cong shall have the pwr to reg comm

among the several states interpd to mean that SCOTUS
has judly enforceable limits on state legn when Cong
acted. If a States protxnst act inhibits competn among
other states, then it may be invalid under DCC.
Often, DCC cases use hook of police pwr for
econc regns (as CC cases hook into econc regn
to do police pwr regns)
In DCC cases, state pwr , as in CC cases Congl pwr
OLD DCC: Gibbons v. Ogden (1824)Steamboat

monopoly case
NY state law deprived a citz of a rt to which Fedl law
entitled him
State police pwrs designed to protect health, safety,
and welfare of its citz, and some powers, like
taxation can be concurrent, but there cannot be
overlapping authority regarding interst. comm.
o BUT we dont want to hurt state police pwr by
striking a local law e/t it FX s/t related to
commerce
o we also dont want local regns to be used as
a proxy for protxnst activities and goals
MODERN DCC: SCOTUS moves away from
police/commerce, indirect/direct FX, local/natl subj matter
tests Focuses on form + purpose of state laws: Pike
Balancing Test: (#s2-3 close to same)
1. Facial discrimn against out-of-state commerce
(strict scrutiny) (Phili v. NJ / ME v. Taylor)
2. Facially neutral state law w/ protxnst purpose or FX
(strict scrutiny) Since 80s, #2 used; #3 out of
favor (J Easterbrk)
3. Facially neutral, but disproportionate adverse FX on
interst. comm. (rational basis via PIKE balancing)
Balance state benefits v. FX on interstate
comm.
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
States prohibd from discrimng against non-citz with

respect to essential activities or basic rights w/o
substl reason demong that non-residents are a
peculiar source of the evil sought to be avoided +
that discrimn bears a substl relation to prob.

Formal/Function
SOP
28
o Where you put situations is important!

o Silly test b/c just allows SCOTUS to
decide what it likes/wants
If state has legit local purpose for regn + if FX
are incidental, regn upheld unless the burden
> benefit
o SCOTUS always seems to find factors
against police pwr, which is strange. If
burden so , why not #2?
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
29
LIMITATIONS ON STATES: MODERN DORMANT COMMERCE CLAUSE 1/2

PIKE BALANCING TEST ( - = SCOTUS struck; + = SCOTUS upheld)
#1 Facial discrim against o/s commerce STRICT SCRUTINY
Can be discrimry even if statute expressly say so
-Philadelphia v. NJ (1978)SCOTUS invald state law that kept landfills in NJ
exclusively for NJ by preventing importation of any waste from o/s.
Laws which facially disc. or expressly block foreign goods is per se

invalid. Exception: When a legit state concern cannot be addressed
w/o discrimn, facially dicsc. laws permissble
CA: Quarantine law to protect health/safety of citz (really just eg of

exception)
-OR Waste Systems (1994)State tax o/s simply b/c they pay local
taxes. Protxnst element: trying to lock o/s out of in-state econ
-West Lynn Creamery (1994)State subsidize in-state diary farmers while
contng to tax (+ subsidize) o/s dairy farmers. Equivalent to taxing o/s
-Camps Newfound (1997)State give property tax exemptions to in-state
companies while denying exemptions to companies that conducted
business to benefit non-residents. Same as taxing o/s.
+ME v. Taylor (1986)Exception to #1 RuleSCOTUS upheld law banning
importation of o/s baitfish. Legit environl purpose: possty of negv
ecological FX due to parasites in o/s baitfish
#s 2+3 essentially the same + many judges (Easterbrook 7th Cir)
apply #3
#2 Facly neutral law w/ protxnist purpose or FX STRICT SCR.
Discrimry purp inferred from history + laws likely FX
-Baldwin v. Gaf Seelig (1935)SCOTUS struck law prohibng NY sales of o/s
milk purchased below price for similar prods w/i NY
Cannot permit a law whose underlying purpose is to discriminate o/s

sellers interested in selling in-state. That IS protxnist!
CA: Safety of citzbuy from milk producers you know!

-HP Hood + Sons v. Du Mond (1949)SCOTUs struck law denying licenses
for new businesses unless Commissioner satisfied that issuance will not
tend to v compn in mrkt already adequately served + that issuance in
pub. interest
Cannot suppress interstate compn as a means of protecting

health/safety of citz.
-Hunt v. WA Apple (1977)SCOTUS struck regn reqng all apples to be
USDA grade, when WA has superior grading system. States cannot burden
interstate comm even if a truly good faith effort to protect citz.
+Exxon Corp v. Govr of MD (1978)SCOTUS upheld law prohibng gas
producers and refiners from opng retail stations in MD
A law regng o/s company protxnist purp when there are no i/s
companies of that type.
CA: What about burden on comm, even if non-discrimry?

+MN v. Clover Leaf Creamery Co. (1981)SCOTUS upheld law regng type
of bottle milk retailers could use (no plastic, yes pulpwood bottles)
A law is not protxnist if every companyi/s + o/ssubject to regn

=ly
CA: Only co. making pulpwood bottles is MN company (SCOTUS said
#3 Facially neutral, but disprop. adverse FX on intst commerce

RATL BASIS
If state has legit purpose + FX on int. comm. incidental, regn OK if
benefits>burden
-Kassel v. Consolidated Freightways Corp (1981)SCOTUS struck
Iowa law regng truck length, finding theharm to interst. comm. > state
benefit
Laws facially discrimry but have disprop. adverse FX on
interstate commerce are invalid (Brennan conc. calls per se
invalid + protxnist)
No ev that longer trucks < safe than regular trucks. Law substly
burdens intst. Comm by forcing trucks to avoid Iowa, or to detach
trailers + ship seply traffic safety worse better
Dissent: Law ratly reld to traffic safety SCOTUS should defer
to legr. Also, striking law forces IO to follow neighb states laws,
which do.
Critique: Is it bad that it is hard for states to impose safety
standards than other states?
-Souther Pacific Co. v. AZ (1945)SCOTUS struck law saying trains had
to be recoupled in AZ b/c creates expensive + time-consuming burden
on interst. com., and benefit to AZ is speculative.
-Bibb v. Navajo Freight Lines (1959)SCOTUS struck law reqng
certain type of mudguard on truck passing thru IL. Overly burdensome
b/c trucks would have to switch mudguards in just that state
Tension: Tyranny of the majority? 45 states req. diff. mudguard,
so SCOTUS says overly burdensome to change for just IL.
+SC State Hwy Dept. v. Barnwell Bros. (1938)SCOTUS upheld law
prohibng use on SC state hwys of trucks that exceed a certain weight
and size. Tho most natl trucks exceed these limitations, b/c regn was
about STATE hwys state issue.
NOTE THE DATE! This is no longer the case; now we balance
interests
-Dean Milk v. Madison (1951)SCOTUS struck regn barring the sale of
pasteurized milk unless processed/bottled at an approved plant w/i 5
miles of central sq of Madison (5600 dairy farms in Madisons county; 5
w/i 5 miles)
Does not matter that in-state citz also discrimd when there are
reasonable and adequate alternatives to an unduly burdensome
regn
+Black Bird Creek Marsh (1829, decided pre-Pike, but would likely
fit here if decided in diff era)SCOTUS upheld state constrxn of dam
(health/safety of citz) that obstructed interstate waterway
State regns with incidental FX on interstate comm are OK if
burden arises from legit. state police pwr
Cooley v. Board of Wardens (1851, decided pre-Pike, but MAY fit
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
burden so great)
-Bacchus (1984)SCOTUS struck law exempting from taxspirits made from
indigs plant
Any effort to confer benefit on local industry that is not granted to o/s
industry is preumptively discry invalid

Formal/Function
SOP
30
here (or #2?) if decided in diff era; See West Lynn Creamery)
SCOTUS upheld law reqng ships to use local pilots to bring ships into
the harbor + fining ships using local pilots, which goes to support
retirement fund of local pilots
State laws govng local subj matter are permissible, but unconstl
if govn natl subj matter
SCOTUS viewed CC narrowly; Grant to Cong pwr to reg int comm
preclude states from pwr to reg local waterways.
CA: What if ships come from all over the country natl subj
matter?
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
31
SKIP!!! LIMITATIONS ON STATES: MODERN DCC 2/2, P+I, PREEMPTION

MODERN DORMANT COMMERCE CLAUSE CONTD
Market Participant Exception: When govt acts as a
buyer/seller of goods/services, or engages in a prgm of subsidies
or other econc incentives to aid in-state businesses (market
participant, market regr), it may discrim. in favor of its own
residents.
-South-Ctrl Timber Devt (1984, White)SCOTUS strikes an Alaska
law that conditioned the sale of state-owned timber on the
purchasers processing the timber in-state before shipping it o/s.
The limit of the market-participant doctrine must be that it
allows a State to impose burdens on comm. w/i the market in
which it is a participant, but allows it to go no further; the
State impose conditions, whether by stat., regn, or K, that
have a substl regry FX o/s that particular mkt.
o State attach restrxns on sales subsequent to the goods
being sold
o State exert regry FX post-purchase (downstream
restrxns)
CC scrutiny must be more rigorous when . . .
1. Foreign commerce restrained
2. State selling natl resource, AND
3. State imposes restrxns on the sale
Dissent: Too formalistic. The state could have done a lot of
two/multi-step legn that would have been okay
+White v. MA Council of Construction Emprs (1983)SCOTUS
upheld govt order reqng all constrxn projects funded
wholly/partially by city funds/city-admind funds to be perfd by a
workforce at least 50% city residents
+Reeves v. Stake (1980)SCOTUS upheld SD policy of restricting
sale of cement from state-owned plant to state residents
CC limit a States refusal to deal w/ particular parties when it
is participating in the interstate mrkt in goods
+Hughes v. Alexandria Scrap (1976)SCOTUS upheld MD
bounty on MD-licensed junk cars + more stringent docn reqts
on o/s scrap processors than on in-state ones
Absent Congl axn, CC prohib state from participating in the
mrket + exercising the rt to favor its own citz over others
State Taxation of Interst. Business
Complete Auto Transit v. Brady (1977)SCOTUs estd 4-pt test for
sustaining a state tax on o/s business when:
1. Tax appld to an activity w/ substl nexus w/ taxing State
Quill Corp clarified: substl nexus reqd under CC > min.
contacts reqd for DP (no physl presence, only contacts by
PRIVILEGES + IMMUNITIES
Similar to 14th Ams eq. protxn in that it protects citz against discrimn, but on
basis of state residency. To make challenge under P+I, there must be discrimn
against o/s citz
DCC
P+I
Narrow, structural
Broad, s/w abstract
Corpns enjoy protxn

Protect Individuals
Protects interst. comm. markt

Protects fundl rts few regns
participant excptn
justifiable
Standard of review = Substl reason (like Intermed. Scrutiny):
1. Non-res are a peculiar source of the evil sought to avoid, AND
2. Discrimn bears substl rel. to that prob/state objective
o
Availty of less restrictive means (Piper)
United Bldg v. Mayor + Council of Camden (1984, Rehnquist)SCOTUS
remanded for trial a city ordinance reqng at least 40% of empees on city
projects be city residents.
City classification diff/more permissible than state classn
Opportunity to seek empt is a fundamental priv. under clause
SCOTUS employs two-step inquiry:

1. Whether ordinance burdens a privilege/immunity protected by the
clause?
o
Fundl rts or s/t bearing on vitality of the nation as a single
entity Is o/s citz interst in empt on public works K sufficient
to fall under P+Is purview?
2. Is there a substl reason for disparate treatment?
SC of NH v. Piper (1985, Powell)SCOTUS invald a NH law limiting bar
admission to i/s residents when woman living 400 yards from NH border denied
admission
Practice of law important to natl economy
substl reason for discrimn

PREEMPTION
Three types:
1. Express preemption: only issue whether a state statute falls w/i area
preempted
2. Implied occupation of regry field: SCOTUS reqs clear showing that
Cong meant to occupy a field and so displace the states from regn on
that subj matter
When Cong leg. In a field tradly occupd by states, Congs intent to

supersede state law altogether may be found from a scheme of
fedl regn so pervasive as to make reasonable the inference of
preemption, or the congl act may touch a field in which the fedl
interest is so dominant that the fedl sys will be assumed to preclude
enforcemt of state laws on the same subj, or the object sought to
be obtained by the fedl law and the character of obligations
imposed by it may reveal the same purpose. (Rice v. SF Elevator)
3. Implied preclusion of conflicting state regns: When Cong passes
legn, superior by virtue of Art. VI, states cannot pass regns in conflict
with fedl law
Where the fed govt, in the exercise of its superior authority in this
field, has enacted a complete scheme of regn . . . states cannot, in
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
common carriers or the mails insufficient)
2. Tax is fairly apportnd solely to the taxed activity
3. Tax discrim. Against interstate comm.
4. Tax is fairly related to the services provided by the state

Formal/Function
SOP
32
consistently w purp of Cong, conflict/interf./curtail/complement fedl

law (Hines)
Where compliance w both fedl and state regns is a physl

impossibility (Florida Lime + Avocado Growers)
State law on same subj as fedl law be more stringent/inflexible b/c

presents an obstacle to the accomplishmt of Congs full objectives
under fedl act (Crosby v Natl Foreign Trade Council)
Pacific Gas & Electric (PG&E) (1983, White)SCOTUS upheld CA law imposing
moratorium on certn of nuclear energy plants
States reg electricity prodxn; Fed ensures nuclear pwr is safe
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
33
SEPARATION OF POWERS
Framers aimed to create VERTICAL + HORIZONTAL SOP expressly in Constn, but thru implied structural inference
Vertical: States/Fedl
Horizontal: Three branches
Why?
Prevent tyranny in any one person/group; checks + balances
Efficiency (Cong regs comm over natl mrkt for matters involving multiple ppl + delib. tasks; Exec pwr vested in singular
Pres for matters that req. speed)
Tension
SOP seeks preclusion of arbitrary power
Ambiguity + overlap > friction + confusion
o b/c real concern is fear of large natl govt + tyranny
Art. I All legv pwrs herein granted shall be vested in a
Congress of the US
Art. II The execv pwr shall be vested in a President of the
US
Broadest Interp: no qualification plenary unitary
execv, unlike legv grants, which were enumd
Art. II Pres has pwr to report to Cong on the state of the
union + to propose legn he deems necry + expedient
Art. III The judl pwr of the US shall be vested in one
Supreme Court, and in such infer cts as Cong may from
time to time ordain + est.
Can be analyzed in two ways:
1. Functional (XYZ = exec, judl, legv in naturecontinuum + overlap)
2. Subject Matter (specific grants to branches, like taxes, raising the army, etc.)
POLICY
Congs enumd pwrs grant it substl regry auth, but fundl rts + SOP concerns prevent + limit Cong from its otherwise constl
pwrs
Ultimately, Framers cared more about checks + balances than efficiency. Inefficiency of having three sep branches + the
friction from overlap is less of a concern
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
EXECUTIVE AGGRANDIZEMENT + EXECUTIVE PRIVILEGES

WHAT IS THE EXTENT OF
INHERENT PRESL PWR?
Youngstown v Sawyer (Steel
Seizure Case) SCOTUS 1952,
BlackDuring the Korean war,
dispute b/w steel empees (unions)
+ empors ovr terms + collectv
bargng agmts Unions went on
natl strike Pres Truman directed
to take possn of + operate most
of US steel mills, concerned that
indispensabty of steel may
jeopardize natl defense immedly
Formalist (Black) v.
Functionalist (Jackson)
approach
Pres go beyond pwrs

granted to him as Chief Exec
Pres exercise lawmaking
pwr indep. of Cong to protect
natl ints.
Jackson Concurrence: 3-pt

test
1. Express or implied
authn of Cong (MAX
pwr)
All Presl pwrs + all

pwrs Cong can
delegate to him
Presl axn either

N+P, or in line w/
constl pwr
Unconstl if fed
govt as a whole
lacks the pwr
Here, Dissent said
Trumans axns
could be seen as
authd under
war/emergency
pwrsensuring
supplies for war
2. Twilight Zone/Cong
silent on issue; neither
granted nor denied
Pres the pwr
(FLEXIBLE
FUNCTIONALIST
FOREIGN RELATIONS
Generally, there is a need for a
unified voice when making foreign
dealings. Similar to Treaty Pwr in
that it typically trumps state law +
policy know whether trumps
fed but Konto says likely b/c
Senate ratify
Treaty versus Execv Agreement
Treaty: agreement b/w US +

foreign country negotd by Pres
+ effective when Senate
ratifies
Execv Agreement: agreement

b/w US + foreign country
effective when signed by Pres
+ head of the other countrys
govt. No Senate ratification
necessary; Permissible under
Supremacy Clause
Dames + Moore v. Regan (1981,
Rehnquist)SCOTUS allowed Reagan
to suspend claims against Iran
pending in US cts in xchange for
release of US hostages.
Execv agmts, like treaties,

prevail over state law +
policy
Under Youngstown test #1. .

. Presl axn was necry to
resolve major foreign policy
dispute + Cong acquiesced to
axn. Ultimately was a loose
balancing game b/c: Cong
prohib Pres from axn + had
passed similar laws allowing
similar axns; longstanding
history of settling claims thru
agmts; in foreign relns, Presl
pwr already broad anyway
If SCOTUS struck axn,

effectively would say fedl govt
lacks pwr executed by the Pres.
US v. Belmont (1937)SCOTUS
upheld execv agreement enacted w/o
ratification by Senate, saying it took
precedence over conflicting state
policy
Execv agmts, like treaties,

prevail over state law + policy
Rationale of Supremacy Clause
34
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
APPROACH)
Pres + Cong may

have concurrent
authty, or distribn
unclear
Consider how
factors are given
weight:
o Congl intent
on the matter
(inertia or
indifference
invites indep.
Presl respty)
o Necry means
to an end?
o Presl axn
PROPORTIONA
TE to need?
3. Cong explicitly or
impliedly said NO to
execv authn (MIN
pwr)
STRICT SCRUTINY
like dormant CC;
there must be a
very inherent pwr
Presl axns rely

ONLY upon his own
constl pwrs [minus]
any constl pwrs of
Cong over the
matter
Majority/Black Formalist
Approach: Presl pwr to
issue execv order must stem
from either Congl act or from
Constn itself; The Pres only
can CARRY OUT the laws, not
make them
Frankfurter Concurrence:
Pres may exercise pwrs
mentioned in Constn so long
as he violate a statute or
the Constn (here, Taft Harley
Act proscribed presl axn, but
only thru negative implication
TENSION)
o Consider: distinction
bw tension w/ legn +

Formal/Function
SOP
35
EXECV PRIVILEGES + IMMUNITIES

Art. I 6: They shall in all cases, except treason, felony + breach of the peace, be privilegd from arrest during their attendance at t
Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in
Note: This is for CONGRESS; Art II conveys such explicit Presl privs.
US v. Nixon (1974, Burger)SCOTUS
says Nixon needs a more compelling
reason for not giving over the
Watergate tapes + orders him to
submit the subpoenaed materials
Pres has absolute immunity

when it comes to matters of
natl security, but only a
qualified privilege with
other, lesser matters
Privilege is grounded in the

nature of the functn perfd, not
the actor who perfd it
SOP + need for confidentiality

alone sustain Pres immunity
from judl processneed to
show secret necry for military,
diplomatic, or sensitive natl
security secrets
immunity in criminal
proceedings; Presl need for
confidentty is general while
criml need for ev is specific +
central
Nixon v. Fitzgerald (1982, Powell)
Contractor sued Pres when fired after
testifying in court
Absolute presl immunity

from civil damages liability
for official acts (pretty
much a/t while in office), in
the absence of explicity
affimv congl axn
Presl aids have qualified

immunity; immunity unless
violate clearly estd law
Checks remain: Impeachmt (Art

II 4), Voting
White Dissent: Rule places

Pres > law
Clinton v. Jones (1997, Stevens)
Former govl staffer sued Clinton
alleging that her job changed after
rejecting his advances
No presl immunity
fromcivil damages litign
arising out of unofficial acts
prior to taking office
SOP concerns n/a b/c
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
tension w/ Cong as a
group
o CONSTITUTIONAL
GLOSS OF EXECV
PWR = systematic,
unbroken execv pwr
Douglas Concurrence: Pres
can act w/o express Art II or
Congl auth SO LONG AS
encroach on another branch
(thumb on the scale towards
Pres in Twilight Zone)
Contrast Youngstown with
Woods v. Cloyd Miller
Tension: #1 suggests that
while Cong intrude on
Execv pwr, they can it, and
#3 suggests Cong take
AWAY execv pwr IMPLIED
PROBLEM = all depends on
which category (1/2/3) court
puts the axn
encroaching on execv by
judry
Breyer Concurrence:
concerned w/ the large burden
a civil suit could place on pres
+ distract him
Art. II 4: . . . shall be removed from office on

and convxn of, treason, bribery, or other
misdemeanors
Ct always stayed out (pltcl

questn)
Floating standardlower bar
for judges than pres?

Formal/Function
SOP
36
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
37
CONGRESSIONAL VIOLATIONS OF SOP: DELEGATION

Cong has pwr to create agencies to asst in the perf of govt
funcns, but SOP limits both its ability to create those bodies + its
influence on those agencies once they become part of another
branch
ADMINV AGENCIES + THE NONDELEGATION DOCTRINE (very
weak)
Old doc: Cong delegate legv pwrs to adminv agencies
Post Schechter/Current doc: So long as Cong lays down an
intelligible principle to which the person/agency authd to act is
directed to conform + lmtd scope, such legv axn not a forbidden
delegation of legv pwr (Mistretta); Broad legn inevitable
Can be STRUCK DOWN when there is an absence of
standards for the guidance of the admins axns, b/c
ascertain whether the will of Cong has been obeyed
When Cong creates fedl adminv agencies w/ broad pwrs, it is
delegating its legv pwr to those agencies (4th branch)
EPA, FTC, FCC, FEC, etc.
Have the pwr to:
o Adopt + make regns (legv pwr)
o Utilize a civil (s/t criml) enforcemt pwr (exec pwr)
o Interp regns (judl pwr)
Essentially = 4th branch of govt
How is this permissible? [Konto says] you cant violate Arts
I, II, III separately, but if all three viold at same time, as they
are in creation of the agencies, perhaps thats when its ok
IMPORTANT TAKE-AWAYS
Clinton v. NYStatutes giving the Pres pwr to create a criml
stat problematic. Nondelegatn vigorously enforced, but there
are still some limits to Press pwrs; Pres create, amend, or
repeal laws thru his own legn + must follow constly
mandated bicameralism + presentment
Provn giving Pres pwr to insert new lang into the US code =
violation of SOP
Cong has pwr to create a commission w/ pwr to promulgate
regns w the force of law
MorrisonCong may limit the Pres pwr to remove agency
heads; Congs limitn of execv branch on pwr of removeal
weaken execv pwr + violate SOP
No detailed info a/b content of regns that 4th branch agency is
authd to promulgate nondelegn prob. Must be intelligible
standards for the guidance of an Adminrs axns
MistrettaIncongruity b/w funcns normally perfd by cts +
perfs of their duty to appt nondelegn prob
OLD STANDARD
Schechter Poultry Corp (1935)SCOTUS held violation of nondelegn
doctrine when Cong passed regn authng the Pres to approve codes of
fair competition.
Cong must set identifiable standards + tell Pres exactly what to do
when delegng legv pwr
When you give the Pres the keys, must come w instructions; cant
write him a blank check b/c laws must be made by the ppl directly
accountable to the voters
PRO-DELEGN/FLEXTY
ANTI-DELEGN/FLEXTY
Agencies quicker/experts;
Cong gives up pltcl acctbty
complex world
Hard to control agencies;
Retain control via funding,
Congl intertia, presl veto
oversight, apptmts
Inefficiency is part of the
Simply legng in broad terms
Constn
w/ intelligible principles
Expresio Unius
(Mistretta/Blackmun)
(Chadha/Burger)
If no Constl prohibn, analyze
If reqs value/policy jgmts,
under SOP/aggrandizement
should be legd ajudicd
(Chadha Dissent/White)
(Mistretta Dissent/Scalia;
If legn delegs, should be able
Chadha/Burger)
to reserve a check (Chadha
Constn give legn post-leg or
Dissent/White)
apptmt roles
Let govt try novel methods
(Bowsher/Burger)
(Clinton v NY
SOP preserves individ. Freedom
Dissent/Breyer)
due to pltcl acctbty (Morrison
Ind. Agencies good bc take pwr
Dissent/Scalia)
from overgrown exec
Pragmatist arg = slippery slope
CURRENT STANDARD
Mistretta v. US (1989, Blackmun)SCOTUS upheld participn of fedl
judges in the creation of sentencing guidelines by a specl commissn.
Permissible b/c limited in scope, in an area of the cts expertise, and
designed around specc, intelligible instrxns
Congl delegn of authty ok so long as delegn is (1) limited in
scope; (2) designed around specific + intelligible instrxns
violate SOP under Youngstown b/c carefully crafted sys of
checks + balances
o Proper for judl branch to make sentencing guidelines
CA: But sentencing guidelines are laws (legr), or
implementation of laws (execv)
CA: OK b/c uniform + predictable
o interf w/ functn of judl branchsmall interruption of
duties
Jges can wear diff hats! CA: But sitting on commissn
BECAUSE judges CA: But as administrators! CA: Well,
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
o BUT . . . much detail a/b what this entails, so maybe
permissible delegn of pwr?

Formal/Function
SOP
38
its just 3 jges . . .

threaten impartiality of jgessentencing has been a part
of what judl branch has done for a long time
CA: But now its binding on other jges . . .
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
39
CONGRESSIONAL VIOLATIONS OF SOP: VETO PWR

VETO POWER
Art I 7 gives Pres pwr to veto any act of Cong, but
Cong may override a Presl veto by 2/3 vote of BOTH
houses
LIMITING DELEGN TO ADMINV AGENCIES: ONE
HOUSE VETO
INS v. Chadha (1983, Burger)SCOTUS struck down the
one-House veto when house overturned an AGs decision
to stay a deportn allowed by fedl law
Cong may use legv veto ONLY if there is
bicameralism + presentment when bill given to Pres
to sign/veto. Cong MAY NOT employ a legv veto to
invalid decns of execv branch
Presentment: Art I 7: all legn to be presented
to Pres for approval to circumscribe pwr of Cong
Bicameralism: Art I 1: ensure that legn was
fully + carefully consideredonly exercise fedl
pwr in accordance w/ exhaustive + considered
procedure
Highly formalistic arg: Formality > function here?
Under Youngstown, this issue would fall under #3
b/c there exist clear procedl steps to pass legn.
Efficiency save unconstl.
White Dissent/Highly functional + flexible arg:
o Legv veto is PRACTICAL
o Provides important CHECK on execv/ind.
agencies in a COMPLEX REGIME
o Altv: write terribly complex statutes or abdicate
BAD
o NO CONSTL PROHIBN analyze under SOP +
aggrandizemt concerns
o Cong should be able to reserve a check on
delegd pwrs
Powell Concurrence: Cong here took on judl
funcn. Trial by legn lacks procedl safeguards
OVERDELEGN TO EXECV: LINE ITEM VETO

Clinton v. NY (1998, Stevens)SCOTUS struck down Line
Item Veto Act when Clinton used LIV to cancel a provn
that would have allowed NY to keep certain funds
otherwise had to repay to fedl govt
Pres create, amend, or repeal laws thru legn of his
own; he must follow constly mandated process
Diff b/w Art I 7 Veto + cancellation under LIVA:
cancelln is after the bill becomes a law + only a
PART of a statute
o In cancelling, the Pres rejects policy jgmt of
Cong for his own, as opposed to exercising
discretion provided w/I statute itself or tradl
authty to decline to spend appropriated funds
THIS IS LAWMAKING
o Constn silent construe as prohibn (like
Chadha)
Scalia Concurrence/Dissent: This is an
overdelegn of legv funcn to execv branch under
delegn doctrine. Act really allow a true line-item
veto, thus diff from all prev. spending discretions
Breyer Dissent: No diff b/w a contingency on
presl approval w/I statute or in an earlier
statute. No SOP issue b/c pwr conveyed by act is
execv enough (appropns) + encroach on Cong.
Ok to let govt try novel methods
Tension [Konto]: Precommitmt issue!
o Formalism: Pres rewrite the law
o Hints of nondelegn
o Ability of one Cong to precommit another;
trouble here is the law allowing Pres to UNDO
subsq laws pub policy concern. spending
designating
The Constn is a precommitmt device, so it like others;
need a supermajority to do what this act does
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
o But there was no disagmt here? (AG + Chadha
happy)
Tension: Still 100s of line item vetos, but inside
deal so no one really has standing
Konto says: this case a/b delegation of legn in the core
of the adminv state

Formal/Function
SOP
like Amendmt?
40
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
41
CONGRESSIONAL VIOLATIONS OF SOP: APPOINTMENTS + REMOVAL PWR

APPOINTMENT PWR + REMOVAL PWR
Art. II 2 cl.2: Pres shall nominate, and by and with the advice and
consent of the Senate, shall appt. ambassadors, other pub ministers +
consuls, jdges of SCOTUS, and all other officers of US, whose appts are not
herein otherwise provided for, and which shall be estd by law, but the
Cong may by law vest the appt of such inferior officers, as they
think proper, in the Pres alone, in the cts of law, or in the heads of
depts.
Pres appts superior officers w/ advice + consent of Senate
Infer. Officers apptd by Pres, dept heads, or cts of law alone
Dispute over whether admin agency is inferior or super.
Appmts clause SILENT ON REMOVAL
RULE: Pres has pwr to remove execv officials but Cong may limit the
removal pwr of quasi-executive officials (Humphries) or if it is an
office where independence from Pres would be desireable (Weiner)
Cong CANNOT completely prohib all removal
Cong CANNOT give removal pwr to itself (b/c have), EXCEPT

by impeachment
Morrison v. Olson (1988, Rehnquist)SCOTUS upheld Presl limits on
removal of Independent Counsel apptd by Ct of App; Attny Genl only able
to remove for good cause
Congs limitn of execv branch on pwr of removal weaken execv

pwr + violate SOP (unlike Bowsher)Think a/b connection to
Mistretta
While ind. csl exercises some discn in capacity as inferior officer

under Apptmts Cl, Pres need to control Indep. Cnsl constly warrant
that he be terminable at will.
Inferior b/c can be fired by s/o under pres (AG) + has lmtd
jdxn, tenure, involved in policy
inferior b/c cant be fired by Pres at will
not a case in which the pwr to remove an execv official has been
completely stripped from the Pres, thus providing means for the
Pres to ensure faithful execution of the laws
Questions to ask to determ whether inferior/Con can limit:

o Does the limitation interf too much + weaken exec?
o Does limitn pose danger of Congl usurpation of execv functn?
o Is formality/rigidity of SOP undermining countrys need to adapt
to change? Interfng w/ broader, functnl pwr?
o Is the officer/agency only empowered to perf certain duties
o Does officer/agency need independence from Pres
o Does officer/agency have limited tenure?
Dissent: Its not for the ct to determ what types of control belongs in
Execs handsConstn says he gets all the pwrs
BUT . . . Art II suggests pwr of apptmt ( pwr of removal) could

be apptd to any one of the three listed as [Cong] think[s]
proper discretion?
BUT . . . Art II reqs Senatorial consent for apptmts shouldnt
Free Enterprise Fund (2010, Roberts)SCOTUS struck two separate

removal schemes effectively neutering Press ability to control
removal (SEC could remove board members of PCAOB for good
cause; Pres could remove SEC commissrs for very high bar).
Congress effectively neuter the Pres ability to remove
quasi-executive, quasi-legv officers.
Bowsher v. Synar (1986, Burger)Comptroller Genl apptd by Pres
from list supplied by Cong; CG has an execv role even tho legv
officer b/c implements budget policy (cutting costs + firing ppl).
SCOTUS struck Act allowing Cong to remove the CG for cause as
unconstl delegatn of execv pwr to legv official.
Cong have removal pwr, only the Pres does unconstl
for Cong to delegate removal pwr to itself. Cong impeach the
officers they charge to execute their laws b/c essentially gives
Cong full reign over execn of laws (execv funcn)
BUT . . . Cong can impeach execv officers (BUT only for
treason + high crimes)
White Dissent: Cong can only remove by jt resolutn no
SOP issue; b/c no threat of encroachmt, should be oksatisfied
bicamsm + presentment
Buckley v. Valeo (1976)SCOTUS struck compositn of FEC estd by
FECA (apptd by Pres pro tempore of Senate + Speaker of the
House) b/c level pwrs of FEC should only be exercised by Officers
of the US (execv function b/c exercising sig authority pursuant to
laws of the US) as provd by Apptmt Cl.
Agencies whose majority of members named by Cong can only
exercise those pwrs Cong might delegate to one of its own
committies (investigatory + informv pwrs, execv or judry
pwrs)
Only Pres can appt those w/ Execv pwr/function
Weiner v. US (1958)Statute specify grounds for removal for War
Claims Commissn, SCOTUS held commissn to be judl in nature
Pres remove w/o Congs consent
Because office judicial in nature, important to have
independence from the Pres Pres remove w/o Congs
consent
Humphreys Executor (1935)SCOTUS upheld Congs ability to
limit the removal of a commissioner of the FTC. The Pres could fire
him only for inefficiency, neglect of duty, or malfeasance in office.
Cong can, for some officers under some circs, limit the removal
pwr. Requires good cause, which is diff. to show.
FTC duties seen as free from the control of the execv b/c
indep. agency
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
there be Senatorial consent for removals?

Analogize to HumphreysInd Csl exists to investigate +
prosecute wrongdoing in the execv branch he should be
indep. of the execv. Same prob as Nixon v. US w/ impeachmt.
Hen cant guard fox who guards the hen house
Konto says this is dumb but bc all sorts of SOP violations, SOP issue
balance

Formal/Function
SOP
42
Limits Myers to purely execv officers ( indep. agencies)

Myers v. US (1926) SCOTUS struck statute providng certain
postmasters genl cant be removed by pres w/o consent of senate.
Cong prohib Press ability to fire execv officers; Pres has exclusive
pwr to remove exec officials b/c HE has to make sure laws dutifully
executed
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
43
SKIP!!! WARTIME POWER + EXECV DISCRETION

Execv + Legv branch SHARE + OVERLAP wartime pwrs
Art. I 8: Cong has the pwr to declare war, to raise and
support armies, maintain a navy, make rules for regn of the
land + naval forces, and to provide for orgng, armng,
disciplng, and calling forth the militia
Art. II 2: Pres shall be Commander in Chief of the armed
forces.
Judicial ReluctanceChallenges to Pres use of troops in a
foreign contry often dismissed as nonjusticiable (pltcl Qs)
War Powers Resolutionenacted near end of VietnamPres
can send troops into hostilities ONLY IF . . .
1. Declaration of War
2. Specc statutory authn
3. Natl emergency created by attack upon the US, its
territories or possessns, or its armed forces
Pres must consult w/ Cong where possible before, and
must report to Cong within 48 hours after troops
introd
Pres shall withdraw troops after 60 days unless Cong
has declared war or authd 60-day xtensn
o Cong always can withdraw mltry funding
under Art I 8 end war waged by Pres w/o
Congl consent
What does hostility mean?
LIMITING WARTIME POWERS
Ex Parte Milligan (1866)US Northerner civilian indeply
aiding confed in North + tried before mltry commission +
sentenced to execn. SCOTUS overturns on habeus corpus
grounds.
Habeus suspension can opt out of Art III cts when they
are available; cant relax Constn in wartime
Mltry commissns ok for those in theater of war, or in
uniform
Tension: Art I Habeus suggests Cong would be the
branch w/ rt to suspend habeus . . .
Ex Parte Quirin (1942)SCOTUS upheld trial of German
terrorists, one of which was US citz, in mltry commissn on
Presl order, after being taken in NY/Chi by FBI for offenses
9/11 AUMFBROAD (at odds w/ specifty reqt of War Pwrs Act?),

auths Pres to use all necry + appropr force against nations,
ogrs, or persons assocd with the 9/11 terrorist attacks
Johnson v. Eisentrager (1950)OVERTURNEDSCOTUS upheld
trial + convxn of German civilians captured in Pacific theater of
war + accused of being enemy aliens were by mltry
commission in Germany
Privilege of litign xtend to aliens in mltry custody who
have no presence in any territory over which US is
sovereign, and whose offenses, capture, trial + punishmt
were beyond the territorial jdxn of any US ct
Rasul v. Bush (2004, Stevens)DISTINGUISHED/OVERTURNED
EISENTRAGERSCOTUS held that US had complete jdxn +
control over Guantanamo Bay + its prisoners
Altho US exercised plenary + exclusive jdxn but not
ultimate sovereignty, fedl habeas statute auths US cts
jdxn to entertain habeas apps by Guantanamo prisoners.
Kennedy Concurrence: Guantanamo Bay = a US territory
+ is far removed from any hostilities
Scalia Dissent: Overruling Eisentrager + overextending
habeas is bad b/c xtendnig habeas to the four corners of
the Earth
Hamdi v. Rumsfeld (2004, OConnor PLURALITY)US citz
captured in Afghanistan shortly after 9/11, held w/o charge in VA.
SCOTUS held Pres have rt to detain a US citz, even an enemy
combatant, w/o first giving him rt to judl rev.
Pres can constly detain an enemy combatant if he is
captured in a zone of active combat in a foreign theater of
conflict, BUT US citz must have the rt to challenge their
enemy combatant status before an impartial judge
Majority sees this as a Youngstown category #1 (Cong
conferred pwr to Pres explicitly with AUMF), BUT indefinite
detentn for purpose of interrogn authd + as here, status
of detainee as indisputably enemy combatant is not
undisputd
Hamdan v. Rumsfeld (2006, Stevens)Mltry commissions for
Guantanamo Bay prisoners lack pwr to proceed b/c violate UCMJ
+ Geneva Conventns, reqng commissns to adhere to Court
Martials ( protxns), when H charged w/ conspiracy, o/s UCMJ
o/s scope of trial by the commissns
AUMF + DTA expand execv auth to create commissions
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
against the law of war.
Pres may order trial of unlawful enemy combatants
(even those that are US citz) in mltry tribunal; 5th/6th,
Art. III privs for unlawful combatants
Lawful combatants, on the other hand, subj to
capture/detentn as POW by opposing mltry forces (see
Milligan)

Formal/Function
SOP
44
o/s laws of war.

When Pres + Cong disagree on use of commissns, Cong =
tie breaker.
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
45
INDIVIDUAL RIGHTS: BILL OF RIGHTS, 14TH AM PRIVS + IMMUNITIES

INDIVIDUAL RIGHTS PRE-CIVIL WAR
Limits on StatesBIG Q: Do P+I incorp Bill of Rts to States?
Art I 10: No State shall . . . impair oblign of K, pass any Bill
of Attainder [legr declare person/group guilty of some
crime + punish them w/o priv of judl trial], ex post facto
[retroactive] Law . . .
Art IV 2: Citz of each State shall be entitled to all Privs +
Immunities of Cits in the several States
Relates to rts citz have vis--vis other states
Limits on Fedl Govt
Art I 9: Privilege of . . . Habeas Corpus shall not be suspended,
no Bill of Attainder or ex post facto Law shall be passed
Art III 2: Trial of all Crimes, except in Cases of Impeachmt, shall
be by Jury
Bill of Rights: (1) Speech, religion, press, assembly (2) guns (3)
Quarter soldiers [home privacy?] (4) Search + seizure, probable
cause w/ particularity (5) double jeopardy, criminal DP, takings (6)
Speedy public trial (7) Trial by jury preserved (8) Cruel + unusual
punishmt
5th Am also incorpd 14th against Fedl
Barron v. Baltimore (1833, Marshall) sued City for ruining use of
his wharf in Bmore Harbor and argd that state axn violated 5th
Am (taking). SCOTUS upheld state axn.
Bill of rights/Constn estd to protect individs against FED the
States, so need really strong reason to further encroach state
rights
Bill of Rts, unlike Art I 10, does not expressly limit states +
state sovereignty would be impinged by applicatn of Bill of
Rts; expresio unius
o BUT . . . 5th Am says no person shall . . . No state
shall . . .
RECONSTRUCTION AMENDMENTS + INDIVIDUAL RIGHTS
14th Am: No State shall make or enforce any law which shall
abridge the P or I of citz of the US . . . w/o DP of law
Relates to fundl rts granted to ALL citz
CHANGED STATE/FEDL BALANCE BY PREVENTING
STATES FROM:
o Denying P+I from Art. IV 2
o DP under 5th Am
Slaughter House Cases (1873, Miller)SCOTUS narrowly construed

the 14th Am to sustain law allowing slaughterhouse monopolies
throughout LA, incng NOLA. Butchers challenged law, forcing them
( those facilities reqd to close) to work under fixed prices, b/c
theyre deprived of their rt to exercise their trade
Pt of 14th Am was to protect slaves, not to give citz rts against
states. P+I clause only recognizes preexisting P+I
guaranteed in Constn (natl citz rts: rt to assert claim
against fedl govt, hold office, habeas corpus, protxn on high
seas, etc.), to expand susbstv ind rts
o Prob w/ idea that 14th P+I safeguards rts from natl citz?
Rt to travel, rt to petition natl govt, etc. ALREADY
PROTECTED (IV)
14th Am P+I refer to BoR or other fundl rts to control states.
Otherwise, upset balance of pwr in fedsm (make ct arbiters
of all state legn w/ no particular guidelines)
Field Dissent: natl law arg: 14th Am affords protxn of citz
rts from STATE intrusion; why else pass the Am??
Tension/Criticism: Essentially reads out P+I from Constn
Saenz v. Roe (1999, Stevens)SCOTUS struck down CA law limiting
max welfare benefs avail to new residents to the level of the state
they moved from for at least 12mos (even tho Cong enaced law
authng state receiving fedl welfare funds to apply to a family
another states welfare prgm rules if family resided in that state
from the other state for <12mos)
Rt to interstate travel is a fundl rt protected by P+I clause,
and one aspect of that rt is to be treated the same as longerterm residents (Art IV 2, 14th); discriminate against new
residents for IMMEDLY NECRY needs
SCOTUS applies strict scrutiny (tailored fit test) but says
meet ratl basis or interm standard of revState ints: save
money; fit
Rehnquist/Thomas Dissent: SCOTUS consistently allows
discrimn based on duration of residency (divorce, in-state
tuition) should be ok here
Thomas Dissent: P+I cl of 14th likely intend to protect
every pub benefit enacted by law but rather FUNDAMENTAL rts
o But those are PORTABLE rts, majority says
Edwards v. CA (1941)SCOTUS invalidd law making misdemeanor
to knowingly bring into CA any indignant person resident.
Unanimously and found rt to travel fundl under P+I, but split
reasoning:
Byrne + 4 relied on CC
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
o Eq Protxn
Incorpd against Fedl by Fifth Am
14th Ams P+I grant should work as broad repository of
rights, but Slaughterhouse Cases limited to those P+Is that
owe their existence to the creation of the Fedl govt, its
Natl character, its Constn, or its laws.

Formal/Function
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46
Douglas +3 found the rt was incident of natl citzship + more

basic/fundl than interstate commerce
Shapiro v. Thompson (1969)SCOTUS struck down (SS) durational
residency reqt that were preconditions for receiving state benefs
(incng one that denied welfare for 1st yr of residency), but did so on
EQUAL PROTXN GROUNDS
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
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47
14TH AMENDMENT + INCORPORATION THRU DUE PROCESS CLAUSE

14th fundly changed balance of pwr b/w states + fedl govt +
SCOTUS began to apply portions of the Constn to the states thru
the 14th Ams DP clause (1, 2, 4, 5, 6, 8 3 or 7)
14th Am: nor shall any State deprive any person of life, liberty, or propty
w/o due process of law
Selective Incorporation (Konto):
Natural rts (old ases)DEFINE
Fundl rts (newer cases)
Rts aimed at the very essence of a scheme of ordered liberty (White

in Duncan)
Principles of justice so rooted in the tradns + conscience of ourppl

as to be ranked as fundl (Cardozo/Palko)
Rts implicit in the concept of ordered liberty (Cardozo in Palko)
History/tradition
Framer/origl intent
Full incorporation? (Black)
Tension:
o s fedsm, laboratory of states concern (Harlan dissent in
Duncan: straightjacket States)
o Are provns REALLY fundl if invnted in 60s (Miranda), or unique
to US (establishment cl/sepn church + state)
o Coincidence that fundl/ordered liberty = Bill of Rts
o BoR ALSO has DP clause, and then many more provns!
Palko v. CT (1937, Cardozo)Selective IncorpnSCOTUS rejected s
claim that all BoR guarantees incorpd by 14th Am to states (here: 5th at
issue, double jeopardy in criml trials). Those that are incorpd are those
of the very essence of a scheme of ordered liberty
Adamson v. CA (1947)5:4 decision adhered to Cardozo; Incorpng all
would unduly limit state autonomy in enforcemt of criml law + SCOTUs
apply self-incrimn priv 5th Am to states
Blacks Dissent: DP reqs total incorpn of BoR to curb excessivejudl

discretion
Duncan v. Louisiana (1968, White) convicted of battery + sought trial by
jury. LA only grants jury trials for capl punishmt or imprisonmt + hard
labor may be imposed denied reqt.
SCOTUS held that trial by jury in criml cases is fundl to Amer. Justice.
14th Am guarantees a rt of jury trial in all criml cases, which would
come w/i 6th am guarantee if tried in Fedl Ct
Some crimes necessitate jury trials (<6mos), but here yes.
Black Concurrence: DP be left to shifting meanings of fundl

fairness as understood by judges; gives them too much pwr. Should
tie DP to specific BoR provns
Harlan Dissent: Bench trial fundly unfair violate DP. 14th

meant to straightjacket states as to their choices (BUT . . . states
free to go beyond BoR floor)
Test for Incorporation:
1. History/Tradition (Palko/Adamson)
SECOND AMENDMENT
US v. Cruikshank (1876)SCOTUS vacated convxns of
members of a white mob for dispossessing AA of their
guns, holding 2nd Am apply except as against fedl
govt
US v. Miller (1939)SCOTUS interpd 2nd Am narrowly in
lt of preamble when upheld, under Natl Firearms Act,
convxn b/c regd weapons lacked any reasonable
relnship to the preservn or efficiency of well-regd
militia
DC v. Heller (2008, Scalia)SCOTUS first enforced 2nd
Am as matter of individ rt.
Invalidd DC law banning possessn of handguns, but
reach incorpn
Went thru linguistic + historical meaning of the rt,
concluding that 2nd Am confers individ rts
collective rts + is unconnected to militia (but rather
appld to slavery)
Stevens Dissent: a/b collective v. indiv rt but
whether 2nd am protx rt to possess/use weapons for
nonmltry purps
Breyers Dissent: DC regn would survive proper
scrutiny even if Am appld b/c of balancing of ints:
focus on presence of handguns in high-crime urban
areas Act = permissible response to serious, life
threatening problem
McDonald v. Chicago (2010)Landmark decision in
which SCOTUS held that the rt of an indiv to keep and
bear arms under the 2nd Am is incorpd by the DP cl
of 14th Am + applies to the states.
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
2. Bill of Rights (Black)
3. Fundamental Fairness (Harlan dissent Duncan)

Formal/Function
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48
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
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49
PROCEDURAL DUE PROCESS

14th Am: All persons born or naturalized in the US and subj to the
jurisdiction thereof, are citz of the US and of the State wherein they
reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citz of the US; nor
shall any state deprive any person of life, liberty, or propty,
w/o due process of law; nor deny to any person w/i its jdxn the
equal protxn of the laws.
Questions to Ask:
Has there been a deprivation of LIFE, LIBERTY, PROPTY w/o DP
of law?
One has a rt to procedural DP, but there are limits to the range
of ints protected
PROPERTY
Generally, a person must have a PROPERTY INTS WITH ECONOMIC
VALUE (Castlerock) to bring a DP claim for denial of bens from
govt
Definition of propty rts depends on STATE LAW (Loudermill,
Castlerock)
If govt retains rt to relieve of entitlement (we will take away
welfare after 2 years), then cant sue if take away after 2 yrs
Goldberg v. Kelly (1970)DP reqd that a welfare recipient be
afforded evidentiary hearing BEFORE the terminn of benefits
Benefs are a statutory entitlement
Board of Regents v. Roth (1972)Nontenured teacher hired for 1yr
@ Wisc State Univ, had constl rt to statement of reasons +
hearing before rehire denial
Cuts back on Goldberg v. Kelly
Range of ints protected by DP infinite
14th Am procedural protxn of propty=safeguard of security of
ints a person ALREADY acquired in specific benefs statute
or Univ. rule securing re-empt ints, so while teach had
abstract concern in being rehired have a propty ints
sufficient to require hearing
Perry v. Sindermann (Companion Case to Roth, 1972)
Nontenured college prof WON procedural DP claim to hearing on
sufficiency of the grounds for his nonretention b/c college had a
defacto tenure prgm under which he was tenured
Lack of formal tenure rt alone defeat claim that nonrenewal of K d DP
A persons ints in a benefit is a propty ints for DP purposes if
there are such rules or mutually explicit understandings that
support his claim of entitlement to the benef he may invoke
a hearing
Town of Caslerock v. Gonzalez (2005)CO citz have

enforceable propty ints for DP purposes in police enforcement
of a restraining order when her estranged H violated the
order, abducted + killed 3 children before being shot + killed
by police
Benefit protected entitlement, if govt officials may
grant or deny it in their discretion
SCOTUS claimed CO law make enforcemt mandatory
Entitlement is not a propty ints unless there is a
monetary value that can be assigned to it
Dissent: While neither Constn nor Fedl statute granted
individual entitlement to police protxn, the restraining
order acted like a K,a nd under K, citzs ints was a propty
ints, especially when considering COs history of
tightened procedures for enforcing restraining orders in
context of domestic reliance. Also, reliance.
LIBERTY
Paul v. Davis (1976)Police named an active shoplifter in
flyers distribd to local merchants, but SCOTUS held he didnt
suffer a deprivation of liberty from the tarnished reputation
Reputation alone is not a constly protected ints
The ints afforded constl prtxn by virtue of their being
recogd and protected by state lawprocedural
guarantees (14th) apply when state seeks to remove
that protected status
o State MAY protect against injury thru tort
PROCESS
Mathews v. Eldridge (1976)Pretermination of evidentiary
hearings reqd in contxt of disability benefits
DP is flexible, it calls for procedl protxns as situation
demands
Balancing Test:
1. Private ints that will be affected by state/official axn
2. Risk of an erroneous deprivation of such ints thru
procedures used + probable value of additl or
substitute procedural safeguards
3. Govt ints, including the function involved and the
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
Arnett v. Kennedy (1974, Kennedy)SCOTUS rejected
nonprobationary fedl civil service employees claim to a full hearing
prior to dismissal b/c governing fedl law prescribed grounds +
procedure for removal that include an adversary hearing
Bitter with the sweetThe law created constly protected
propty ints (expectation of contd empt), grant of substv rt
inextricably linked w/ limitns on procedures in determining
that rt

Formal/Function
SOP
fiscal and adminv burden that the additl or sub.

procedural reqt would entail
50
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
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51
TAKINGS + FIFTH AMENDMENT

5th Am: . . . nor shall private propty be taken for public use, without just
compensation.
N+P Eminent Domain
Requirements
Public Use
o
Broadly understoodCts allow govt to do almost whatever it wants so
long as it pays
Results in a pub benefit, govt can delegate the pwr of eminent

domain to priv companies, edul instnns, govt agencies, et.c
(Midkiff)
Necessityis it reasonably related to the end goal?
Just CompensationDetermd by fair market value

Why have Eminent Domain?
Prevent holdouts (bilateral monopoly, etc.)
Promote social utility
Compensation serves as limitationforces govt to internalize costs of its axns

+ prevent tyranny
Three Questions to Ask:
1. Is it a taking?
2. Is it for public use?
3. Just compensation paid?
PUBLIC USE
Berman v. Parker (1954)SCOTUS upheld DC law authng taking of priv propty for
purpose of redevng blighted urban areas
Judl role in determng whether eminent domain pwr is being used for pub
purpose is EXTREMELY NARROW + rts of propty owners satisfied when receive
just compensation
Hawaii Auth v. Midkiff (1984)SCOTUS upheld HAs use of eminent domain to solve
prob of concentrated land ownership
Public use reqt is coterminous w/ scope of sovereigns police pwr + exercise

of eminent domain pwr ratly reld to conceivable public purpose constl
Takings PURPOSE must pass scrutiny under takings clause, not the
mechanics (only purely priv taking pass)
Kelo v. City of New London (2005, Stevens)SCOTUS upheld citys condemnation of
non-blighted land for a devt plan
Public use = public purpose
Pub Purpose will be broadly interpd; deference to legr
Kennedy Concurrence: Rational basis rev should strike down a taking that,
by clear showing, ntended to favor a particular priv party w/ only incidental
pretextual pub. benefit (not case here)
OConnor Dissent: Majority overly expands meaning of public use to

essentially preclude constraint on eminent domain pwr
Thomas Dissent: Eminent domain pwr state police pwr; public use is
NARROWER than genl welfare
Poletown v. Detroit (MI 1981)Example of OConnor Dissent in KeloCt approved
taking of homes + sm businesses in a working class commty for xfer to GM for
automotive assembly plan under pub purpose of economy + jobs
Dissent: No homeowner will be immune from condemnatn for the benefit of

other priv ints that pur propty to higher use
Wayne v. Hathcock (MI 2004)OVERRULED POLETOWNCt struck down county
plan to acquire 46 parcels by eminent domain to build a business park that would
create jobs + tax revenue
REGULATORY TAKINGS
PA Coal v. Mahon (1922, Holmes)SCOTUS holds that the state may not
exercise its police pwr to destroy prevly existing propty + K rts w/o just
compensation
Propty may be regd but if regn goes to far, then it is a takingthis is a

question of degree
o
Balance the diminution in value + the extent of public ints
Brandeis Dissent: Every restriction abridges propty rights, here

merely prohibd from a NUISANCE
o
Future events may render this N harmless; only a tempry restrxn
pay for it
o
Reciprocity of advantage
Miller v. Schoene (1928)SCOTUS upheld VA law providing for chopping down
all red cedar trees that were/might be source of plant diseaseheld as PUBLIC
NUISANCE Regn
Keystone v. Debenedictis (1987)SCOTUS upheld PA law prohibng mining that
would cause damage or preexisting pub bldgs. (50% of coal below must stay in
place)
Restrxns in this law taking, even tho almost identical facts as Mahon
just balance priv ints, look at proxn of pub ints in health, environ, fiscal
integrity of the area
Konto says: wouldnt any environl legn be a taking under this logic?
Penn Ctrl v. NYC (1978)SCOTUS upheld NYC preservation law + estd
BALANCING TEST still used today:
1. Econc impact of regn on claimant
2. Extent to which regn interfd w/ distinct investmt-backed expectations
3. Character of govtl axn (physical invasion? Singling out?)
PER SE RULES
Loretto (1982)Permanent physical occupatn = Taking must compensate
Lucas v. SC Coastal Cnsl (1992)Regn denying all econly beneficial use =
taking must compensate
REGULATORY TAKINGS + TIMING
Tahoe-Sierra Preservn v. Taho Regl Planning (2002)SCOTUS held that
tempry devt ban should be treated on case-by-case basis under Penn Ctrl
blanancing test + categorically deemed a taking under Lucas
NO PER SE RULE when restrxn temporary b/c then may apply to

standard industry delaysUSE Penn Ctrl BALANCING + Lucas TOTAL
WIPE-OUT (Ad Hoc)
Palazzo v. RI (2001)Propty owner could challenge regns imposed prior to
acquisition of land
Future generations have a right to challenge unreasonable limitations

on use/value of land
CONDITIONS ON DEVT (EXACTIONS)
Dolan v. City of Tigard (1994)SCOTUS clarified degree of scrutiny + called it
ROUGH PROPORTIONALITY TEST
1. Essential nexus b/w legit state ints + permit conditioned?
2. If nexus exists, whether reqd degree of cnxn exists b/w exactions +
projected impact of proposed devtrough proportionality
Nollan v. CA Coastal Commn (1987)Unless permit condition serves the same
govl purpose as the devt ban, building restriction is not a valid regn but an
extortion
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
Econc benefit rational validates practically any eminent domain on behalf of

private entity

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52
Heightened Scrutiny ( know how much but more than ratl basis): Must
have an adequate nexus
Dissent: like heightened scrutiny b/c inconsistent w/ review of police
pwr for citz welfare
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

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53
CONTRACTS CLAUSE
Art. I 10: No State shall . . . pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts . . .
While the possty of this implying a fundl rt to freedomof K has been struck down under post-Lochner cases, clause has been held to mean
that states cannot completely destroy existing Ks
o However, since its incorpn to the Fedl govt thru 5th Am (reverse incorpn in Bolling v. Sharpe), it has become unclear when and
to what degree Ks can be impaired, as there were elimd via the War Power in Dames v. Moore (Iran Contra Case: Pres can impair
obligations of Ks in ints of natl welfare)
Only applies to existing Ks
Only applicable to the states
o Tho 5th Am has been held broad enough to extend same prohibn to Fed
Fletcher v. Peck (1810)K dispute from1795 grant of land from GA legr. Charges for bribery Legr annulled the grant in 1796, which SCOTUs
struck as invalid
Law was barred either by genl principles . . . common to our free instns, or by the particular provisions of the Constn
Dartmouth College v. Woodward (1819)SCOTUS struck down NHs effort to pack the College Brd of Trustees by ng its size, holding the efforts
violated 1769 charter giving the trustees pwr to fill all Board vacancies
Tension: Just b/c framers likely wrote in restrxn thinking a/b greater mischief + more frequent interfs, mean SCOTUS should limit scope to
private K
K clause be inflexible barrier to public regn
Ogden v. Saunders (1827)State insolvency laws could be validly appld to Ks made AFTER law enacted obligations do not prohib legv
changes in remedies
Bronson v. Kinzie (1843)Constl ban on impairmt of Ks obligations prohibit legv changes in remedies
Permissible scope of remedial changes depend on their reasonableness, provided no substl rt was impaired
Safeguarded against excessively broad interps of publicly granted privileges
Providence Bank v. Billings (1830)SCOTUS read implied immunity from taxation into a banks charter
Charles River Bridge v. Warren Bridge (1837)Companys charter to operate a toll bridge held NOT to prevent state from authng construction of
competing free bridge
Ambiguity must operate in favor of the public
Certain state rts inalienablelegv assurance that eminent domain be imposed cant prevent later state takings
Home Bldg + Loans Assoc v. Blaisdell (Hughes, 1934)SCOTUS held that a state may alter existint Kl obligations in order to respond to
emergency situations, during great depression when MN gave ppl more time to pay mortgages
K clause means that legn affecting Ks must be addressed to a legit end; relief afforded must be appropriate to the
emergency, and the means employed must be reasonable
Konto says:
o Underlining motive/thought was that Ks assume a govt that will enforce them
The policy of protecting Ks against impairment presupposes the maintenance of a govt by virtue of which Kl relatn are worth
while = YOU DIDNT BUILD THAT! Need to depend on society + society must regulate!
o K cl have a constituted remedy; Here, Ct is affecting credrs remedy
o Adaptability vs. restraint
Worthen Co. v. Thomas (1934)SCOTUS struck down AK law exemplifying most paymts under life insurance policies from garnishment
El Paso v. Simmons (1965)TX could eliminate purchasers of certain public lands rts to reinstate their ints in lands by payment of delinquent ints
US Trust Co v. NJ (1977)SCOTUS held that law impairing states own Kl obligations subj to greater scrutiny than legn interfng with private Ks
Impairment of state obligations may be constl if reasonable + necry to serve important public purpose, but complete legv deference
appropriate; If state reduced its own financial obligations whenever it wanted, K clause would provide protxn
Dissent: reasonable + necry standard puts K clause on its head. Majority formulates + strictly applies new standard; Remolds K clause
into potent instrument for overseeing important policy determinations of state legr
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
54
Allied Sructural Steel Co v. Spannaus (1978)SCOTUS invald appln of MNs Private Pension Benefits Protxn Act, which reqd emprs who estd an
employee pension plan + termd plan or closed MN office to pay pensioncharge if their pension funds were insufficient to finance full pensions for
all amp;ees who worked at least 10 yearsviolates K clause
temporary alteration, narrow aim discriminatory
Dissent: Clause applicable only to laws that diminished or nullifiedprivate Kl obligations
o Only relative constl limitn was DP, which violated here
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
55
SUBSTANTIVE DUE PROCESS: ECONOMIC LIBERTIES
RATIONAL
14th Am Nor shall any state deprive anyMODERN
person ofAPPROACH:
life, liberty, or
property,
BASIS!
w/o due process of law
Ends or purposes
SUBSTANTIVE DP: Certain
Is the objv legit, approp.,

regns/encroachments SO BAD
necry?
that no amt of process is
o
Or is it unreasonable,
sufficient (really P+I/fundl rts
land)
unnecry + arbitrary
We ask whether govt has

For certain kinds of
egregious legv
adequate reason for
deprivations, there needs
taking ones life, liberty,
to be a very compelling
propty
reason to allow them to
ERA
stand
Allgeyer v. LA (1897)First time
Does the law promote health,

SCOTUS invald law on substv DP
grounds when LA law prohibd
safety, welfare, morals?
obtaining insurance on LA propty
o
Look to language of
from marine insurance co comply
statute, legv record,
w/ LA law. When convicted for
statry history
mailing letter advising NY insurance
Means need to be reasonable +
co a/b shipmt of goods in accord w/
appropriate
marine policy, NY allowed to do
Is there a real + substl

business in LA.
relnshp b/w means + ends
Lochner v. NY (1905 Peckham)
FX too drastic, disparate?
SCOTUS struck down NY law
Art. I 10: No State shall pass any law impairing the obligatn of Ks
prohibng empt of bakery empees
Generally, econc liberties refer to constl rts concerning ability to enter/enforce Ks, pursue a trade/profn, and to acquire/posses
for >10hrs/day or >60hrs/wk, when
West Coast Hotel v. Parrish (1937)
convicted + fined for permitng
OVERRULED ADKINSSCOTUS
employee to work > 60hrs/wk
upheld min. wage law for women
Tension: Prescribed laissez faire
Liberty is subj to restraints of

economics for all + claimed constl
DP, and a regn reasonably
Ability to K + right to labor

reld to its subject + is
both protected by liberty ints
adopted in ints of the
must balance state ints +
commty = DP
persl ints unecry +
Exploitation of workers in
arbitrary
unequal bargaininst harms
To pass police pwr legn, act

them + burdens commty
must have . . . direct relnas
o
Rather than regns =
means to an endand end
takings, NOT regng =
itself must be approp. + legit
subsidy to
SCOTUS said no reasonable

unconscionable emprs
foundatn heretired
Dissent: Constns meaning

bakers/safe bread? Bakers can
ebb + flow w/ changing econy;
make own decns a/b work +
Law reld to employee
state ints in healthy, robust
capacity, # hrs constng days
popn could lead to extremes
work, circumstances of empt,
o
Is this really a/b putting
character of work environmt
unionized workers on
when employee + his services
equal ground w/ individ
worth the min. wage, tolls
bakers?
employer.
Harlan Dissent: Concerned

US v. Carolene ProductsSCOTUS
over unequal footing b/w
rejected DP challenge to fedl prohibn
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
empees and emprs. Wants
more legv deference. States
amenable to cts unless act
INCONSISTENT w/ Constn.
Holmes Dissent: Constn

embody a particular econc
theory; 14th Am enact
Herbert Spencers theories
Post Lochner, SCOTUS

like decision + became
synonymous w/ judl legn
SCOTUS withdrew from
econc regn scrutiny but
interventn of antiprivacy
laws
Muller v. Oregon (1908)SCOTUS
upheld OR law prohibng female
empees of laundry/factory from
working > 10hr/day b/c healthy
mothers women = object of pub
ints
Bunting v. OR (1917)SCOTUS
extended Muller + retrenched
Lochner in upholding state
lawmandating mx 10hr workday for
factory workers both male + female
Adkins v. Childrens Hosp (1923)
DISTINGUISHED
MULLER/BUNTINGSCOTUS
invalidd DC law prescribing min
wages for women b/c violated 19th
am, holding that 19th am d
womens inferiority.
Rt to K be subjd to arbitrary
exercise of legv pwr over men
or women
Holmes Dissent: If can fix

max day hrs, should fix min
wage hours. Need to show
more than 19th am to prove
diff b/w M + W, or that legr
consider those diffs in passing
legn
Nebbia v. NY (1934, Roberts)
LOCHNER ALMOST GONENY
legr fixed min/max retail prices +
set 1/4 milk for $.09; SCOTUS
upheld statute
So long as law unreasonable

or artibtrary + means tailored
to the ends, state can reg.
business in any aspected when
affected w/ public ints
of the interstate shipmt of filled

milk (skim mixed w/ nonmilk fats) as
an adulterated food whose sale
constd fraud
Challenging ratl basis would

be diff b/c ratl basis essentially
presumedregry legn
affecting ordinary comml
transaxns unconstl unless
shown to lack ratl basis
Question whether commerce in

filled milk should be left
unragd/restricted/prohibd is
DEBATABLE Cong decd
defer to Cong
Introd min ratl basis

standard that TODAY
GOVERNS DP review of
econc legn
Footnote #4: Political

Process Rationale
o
Judicial interventn more
approp the less political
processes may be trusted
to even out winners +
losers over time:
Cases warranting Defnce
Assumes that rival econc factions
(employer/employee, etc.) may fairly
compete in pltcl process w no one
faction becoming systemly disadvd
Williamson v. Lee Optical Co. (1955,

Douglas)SCOTUS upheld law that
said it was unlawful for ppl other than
eye doctors to fit glasses
(optamologists/optomotrists
distinction)
Law have to be completely

logically consistent to be
constl in ratl basis; sufficient
that there is an evil needing
corrxn that its thought that a
particular legv measure = ratl
way to correct it
VERY deferential both to means

+ ends.

Formal/Function
SOP
56
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
RATIONAL BASIS FOR ECONC

LEGISLATION
Rt to K + rt to use propty
fundal, priv. issues, but equally
fundl is the states pwr to reg
in common ints (public rt)
Here, milk is important. There
was excess prodxn + too much
competn so fixed prices so
dairy farmers go out of
business
Beginning of the end of
Lochner; significant shift
towards deference towards
legr in econc regns

Formal/Function
SOP
57
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
58
SUBSTANTIVE DUE PROCESS: PUNITIVE DAMAGES

The EXCEPTION to SCOTUS denial to invalidate any regn on econc substv DP grounds since 1937: PUNITIVE
DAMAGES
BMW of North America v. Gore (1996)SCOTUS struck down a $2million punitive award when only $4k
compensation damages awarded (500:1) in a concealed paint touch-up of a new car. SCOTUS claimed that the
punitive damages were grossly excessive + a violation of both substv + procedl DP
There can be limitations on punitive damages awards in civil cases, which is seen by SCOTUS as both procedl +
substv DP issue
o Procedl DP: reqt of fair notice to of potential legal liability
o Substv DP: Constl concern a/b basic unfairness of depriving citz of life, liberty or propty thru applicatn of
arbitrary coercion
Gore Guideposts: Balance degree of reprehensibility (negv effect), disparity b/w harm or potential harm
suffered, difference b/w award and penalty/sanctions in comparable casespunitive damages
o Liberty ints against arbitrary coercion
Dissent: 14th Am secret cache of substv guarantees against unfairness
State Farm v. Campbell (2003, Kennedy)SCOTUS appld Gore guideposts to hold punitive damages award of
$145million (when compensatory = $1million) excessive in violation of DP.
Set the disparity to single digit ratio of compensatory damages + punitive damages in order to be w/i DP limits
Phillip Morris v. Williams (2007, Breyer)SCOTUS vacated award to estate of deceased smoker of $821K in
compensatory damages + $79million in punitive damages aginst tobacco manufacturer on fraud claim, b/c trial
court allowed consideration of harms to other victims besides the in determining punitive damamges violation of
DP
Tr. Cts jury instrxn insufficient (punish misconduct + deter)
Only parties to a lawsuit relevant for determn of punitive/compensatory damages
o State use punitive damages award to punish a for injuries to nonparties
Dissent: Stevens committed to Gore safeguards, but objd to Cts imposition of novel limit on states pwr to
impose punishment
o Ct draws unworkable distinction: (1) Consider s FX to nonparties for reprehensity of conduct; (2)
use that consideratn to punish directly
Exxon v. Baker (2008, Souter)SCOTUS limited punitive damages as a matter of fedl maritime common law (1:1)
rather than a substantive DP issue, but commented on notions of proportionality derived from DP analysis.
$2.5billion jury verdict against Exxon for oil spill in 1993, causing damages to Alaska coastline + fishing grounds
o Under Fedl maritime law, punitive damages AT MOST 1:1 ratio to compensatory damages
Penalty should be reasonably predictable in its severity
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
o Bad man can look ahead + know the stakes from Holmes
Dissent: Cong should set the ratio, OR this is a specl case warranting exception from a rigid ratio
59
Tension!
Broad/Narrow Brown
Big/Little Marbury
Level of GENERALITY
Standard of Review?
Formal/Function
SOP
N+P
60
HOW ANALYZE FUNDAMENTAL RIGHTS?
Is there a fundl right?

Deeply rooted in our countrys history
Jursidprudence/case law (14th am)
SOMETIMES evolving socl norms (Lawrence)
Emerging consensus among states
Emerging consensus abroad (sometimes)
o If Yes STRICT SCRUTINY
o If no RATIONAL BASIS
With what level of generality will you view the right?
o Start with broad rights then narrow
Is the right infringed?
Is there sufficient justification for the infringement?
o ENDS OR PURPOSES
State interest must be compelling!
Health
Safety
Genl welfare
Morality
o Question answered from language of statute, legv record,
history behind statute
o Question of law for the court
Bodily integrity
o Potential life? TENSION HERE
Privacy
Morals of medical profession (Glucksberg/Gonzalez)
Buzz words?
Is the state ints really compelling, or merely substantial?
Balance the rights
o Analogize cases + fact pattern
o Use approp level of scrutiny for that right
o MEANS
Reasonable and appropriate?
Is there a real + substantial reln b/w means + ends?
Infringment must be necessary for its achievement
Are there equally good altvs?
Infringement must be narrowly drawn (not
over/underinclusive)
If ints truly compelling, and good altvs, make sure narrowly
drawn
If not narrowly tailored infringmt allowed
o EFFECT
Too drastic?
Too disparate?
CA: Constn expressly create/protect zones of privacy
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
61
SUBSTANTIVE DUE PROCESS: PRIVACY + CONTRACEPTION

14th Am protects rts that are so fundamental to the concept
of ordered liberty that they receive special protection under
the Constn
o BUT . . . these rights are not absolute, and often come into
conflict with legitimate exercise of societys ints must
strike balance
To determine whether rt is fundamental, must first look to (1)
history + tradition, (2) 14th Am jurisprudence, and (3) s/t the
evolving social consensus around an issue (Lawrence)
o Whether fundl depends on the level of generality at
which the right is analyzed
Meyer v. NB (1923)Liberty read broadly to reverse
conviction of teacher for teaching German in violation of state
statute
Teaching rts, rt to education, parental rights =
FUNDAMENTAL
Pierce v. Society of Sisters (1925)Sustained challenge by
parochial + Priv. scs to OR law reqng children to attend public
sch.
Parental rts (Meyer) + rt to education allows parents to
choose how their children are educated
IN-CLASS HYPO: Raise taxes so high + build beautiful public
schools working class families afford to send kids to
parochial schools
Social autonomy often needs MONEY
Gets us to PRIVACY rts surrounding family formation,
childrearing
. . . which takes us to
CONTRACEPTION ZONE OF PRIVACY / PERSL DECN MAKING

+ FAML RTS
Griswold v. CT (1965, Douglas)SCOTUS struck down law prohibng
use of contraceptives by married couples
Zone of Privacy language first comes about. Where from?
EVERYWHERE!
o Penumbra of rights from 1st Am, 3rd Am, 4th Am, 5th
Am, 9th Am
Marital privacy = basic fundamental rightIf the right of
privacy means anything, it is the rt of the individ, marrd or
single, to be free from unwarranted govt intrusion into
matters so fundly affecting a person as the decision whether
to bear or beget a child
Harlan Concurrence: Boldly finds this rt in 14th Am liberty
Eisenstad v. Baird (1972)SCOTUS overturned convxn under law

banning distribution of contraception when the recipient was
unmarrd
Ct avoided determng whether fundl rt recogd in Griswold
extended beyond use to distn + to single ppl; rather decided
case on Eq Protxn grounds
Brennan indirectly expanded privacy rt: Marital couple
individual entity with mind + heart of its own, but an
association of two INDIVIDUALS w/ separate intellect + emotl
makeup
Konto says: more important in a lot of ways than Griswold b/c
a/b marriage but a/b interf w/ decision to bear children
makes it about BODILY AUTONOMY
Carey v. Population Services (1977)SCOTUS struck NY prohibitn
of sale/distrn of contraceptives to minors <16
Strict Scrutiny b/c direct burden on fundl rt to make child
bearing decisions + when state burdens fundl rt, it must have
more than a bare assertion that the burden is connctd to
significant state policy
Minors have some constl rts even tho state pwr over children
> than over adults
State ints = discourage sexual activity
o sufficiently significant
Tension: It is sig enough to send ppl to jail for
statutory rape? Even when statutes sweep in minors
of same age
o met by limiting access to contraception
IN-CLASS EXERCISES: What is it a/b family planning, sex, etc.
+ privacy??
SCOTUS saying CANT reg contracepn, just need to do it the
right way
Under Carolene Products discrete + insular minorities
Who are these HERE?
marrd ppl
doctors
sexually active ppl
What is the failure of the pltcl process?
More likely nature of the behavior/act about
the nature of the class, ESPECIALLY when consider
the complaint a/b breadth
Once say marriage = legal, cant mess around with the
details?
BUT we do mess around with the details!
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
intsliberty as rational continuum incng freedom from all

substl arbitrary impositions + purposeless restraints. Wants
Strict Scrutiny
o Tension: Rt of privacy absolutehomosexuality, incest,
adultery all crimly prosecutable
White Concurrence: about 14th liberty ints, but likes strict
scrutiny + says CT law fails narrow tailoring test (State claims
statute is a/b protecting against all forms of promiscuous or
illicit relationshipsover/underinclusive)
Dissent: such thing as rt to privacyprivacy too abstract,
ambiguous concept to give Constl protxn; natural justice too
subjective; 9th am about protection against FEDL GOVT
state, so incorp to states!

Formal/Function
SOP
Bigamy
Adultery
orgies
BUT we do mess arnd w/ morals regn
Ct says impose values on married ppl!
EXCEPT homosexuality, bigamy, etc.
Direct/Indirect Burden considerationsstate CAN reg +
indirectly burden
62
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
63
SUBSTANTIVE DUE PROCESS: PRIVACY + ABORTION 1/2

Ws rt to terminate her preg has been recogd as so fundl as to be
afforded protxn under the liberty provision of 14th Ams DP
clause. It remains subj to regn that is narrowly tailored + advances
a compelling state ints, as long as that ints does not create an
undue burden on the Ws ability to exercise this fundl rt
Griswold, Eisenstadt, Carey protected rt to control
reproductive choice w/ lang a/b personal decisionmaking
particular pharml devices
Still, limited to preventing pregnancy thru contraception
Roe v. Wade (1973, Blackmun)Rt of privacy found in liberty ints of
14th DP and includes decn to terminate pregnancy
State may reg abortion procedure after the 1st trimester, but
that regn must reasonably relate to preservation + protxn
of Ws health (like, quals of physician perfng procedure,
facility where procedure happens). Until end of 1st trimester,
patient + physician ALONE free to determ whether preg may
be termd w/o state interf
States ints:
(1) Safeguarding healthmaintain Ws health + still protect
potentl life
o Tension: person unborn (but just b/c appn
prenatal mean we should OUTRULE prenatal appn
regns just affect the unliving; also, historically that
many regns on abortion b/c unsafe
(2) Maintain medl standards;
(3) Protecting POTENTIAL life
o Tension: potential life (contraception?)
o Potential life ints becomes compelling at viability
(tension is that viability still isnt a life but potential)
Stewart Concurrence (Griswold dissenter): DP protects
liberties beyond those expressly granted in the Constnsee
Eisenstad (matters so fundl as whether to bear/beget child
includes the decision whether to terminate preg)
White Dissent: Nothing in Constn to support decn; should
be left to states/legr
Rehnquist Dissent: Privacy not in Constn; Liberty DP ints
is about PROCESS
POST-ROE AFTERMATH: States leg restrictions on abortion, many
struck down by SCOTUS. Public funding restrictions (Hyde Am)
upheld as valid pub policy not at odds w/ interference w/ womens
freedom under Roe (positive v. negative rights)
H/Parental consent invalidatedParental notification w/ judl
bypass OK
Planned Parenthood of PA v. Casey (1992, OConnor/Kennedy/Souter)Liberty

under the 14th Am DP clause includes personal dignity, autonomy, rt to define
ones own concept of existence. Specific, personalized suffering + anxiety for
preg women Creates tension for rt to die cases
Stare Decisis Factors for overturning ( overturn Roe)

1. Rule intolerable in defying practical workability
2. Rule subj. to a kind of reliance leading to specl hardship/inequity in
consequences of overruling
o
Makes arg that woman rely on abortion in family planning +
intimate relns
Konto says: REALLY?! Think a/b abortion before get into

relationship? No, but maybe yes sex?
o
Economic arg: Ws ability to participate EQUALLY facilitated by
Ws ability to control repov lives
Konto says: REALLY?! W getting jobs o/w want b/c of Roe?

3. Devt of law makes rule a remanant of abandoned doctrine
4. Facts/circumstances so changed so as to make old rule insignificant
or unjustified (eg: Plessy/Brown)
Holding/Rule: Regns designed to foster the health of W seeiking

abortion valid if constitute an undue burden; Rejects rigid trimester
framework of Roe but preserves from Roe: central holding that state
proscribe abortion pre-viability + can reg or even proscribe post-viability
(w/ health of mother exception, w/ approp medl jgmt)
Undue Burden standard: pre-viability, state can reg for health of

mother or potential life, but cant place substantial obstacle (whether
purpose or effect)Ct rejects strict scrutiny for undue burden
standard but rest on ratl basis
o
Making an informed choice via information notice is OK provide
undue burden b/c medl info ab how abortion works necry to make
informed decision (Departs from Akron I + Thornburgh)
o
24hr waiting period undue burden, despite FX on travel for poor
particularly burdensome undue burden
o
Spousal notification = substl obstacle (domestic violence)
suggesting bodily autonomy arg?
o
Parental notification w/ judl bypass unduly burdensome
o
Clinic Reporting reqt substl burden (Ws ID remains confidential;
relates to health + medl research), BUT . . . it may become substl
obstacle b/c cost
Stevens Concurrence: Stare decises has controlling significance, but

like regns that are aimed to be persuasive or that impose states own
viewsdecisional autonomy concerns
Blackmun: Should use strict scrutiny undue burden standard, which

would invalidate PA laws
Rehnquist Dissent: Majoritys stare decises analysis is inconsistent

(uphold but change framework? If Roe wrong, overrule it); Abortion be
protected b/c Constn silent + long tradn of legal proscription
Scalia Dissent: Use ratl basis review to uphold all PA provisns. Roe
nationalized abortion + inflamed debatereturn it to states. Stare decisis
analysis = (1) rightly decided; (2) created settled body of law if answers
to both are no then overrule.
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
Mandatory information (to dissuade) + waiting periods

invalidated
Attending physicians best jgmt affirmed
Generally, any undue burden on Ws ability/access to abortion
invald
3rd party vetos invalid

Formal/Function
SOP
64
Tensions: Concerns of superprecedent. Is medical autonomy a fundl

rt? We limit it all the time w CC (FDA). Eq Protxn analysis makes this a
womens issueconscription of women
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
65
SUBSTANTIVE DUE PROCESS: PRIVACY + ABORTION 2/2

Stenberg v. Carhart (2000, Breyer)SCOTUS appld
Casey in striking NE law prohibng late term dilation
and extraction abortions w/o providing for exceptions
to preserve the mothers health.
Where substl medical authty supports the
proposition that banning a particular abortion
procedure could endanger womens health, Casey
requires a health exception when the procedure is
necry in appropriate medl jgmt for the preservn
of the life or health of Mw/o health exception,
undue burden
Laws have chilling FX on ppls plans to get
abortions + cant be overly broad
Stevens Concurrence: 14th liberty cl incds a
womans rt to make this persl decision state
have legit ints in reqng doctor to follow any
procedure other than the one s/he reasonably
believes will best protect the woman in her exercise
of this constl liberty
Ginsburg Concurrence: NE trying to chip away at
private choice Roe shields
OConnor Concurrence: Ban on D+X procedure
could be constl if sufficient life/health exception
Kennedy Dissent: Ct accord weight to state ints;
want medl profn to be insensitive to life
Thoma Dissent: Health exception = loophole
Ayotte v. Planned Phood of NE (2006, OConnor)
SCOTUS remanded to lwr cts for a more modest
remedy a NH abortion law that would have been
unconstl in medl emergencies b/c lacked exception for
the health of the M
State cant restrict access to abotions necessary
in appropriate medl jgmt for preservation of the life
of M
NH have to strike entire law; only some provisions
a/b parental consent were deemed unconstl; so
Gonzales v. Carhart (2007, Kennedy)SCOTUS upheld

fedl ban on partial birth abortion in 2003 as response to
Stenberg
Where it has a rational basis to act, and it does
not impose an undue burden, the state may use
its regry pwr to bar certain procedures + substitute
others, all in furtherance of its legitimate ints in
regng the medical profession in order to
promote respect for life essentially medical
ethics reasoning
Act facially impose substantial obstacle under
Casey. Very few PBAs are actually done, and Casey
health reqt doesnt allow the physns complete
discretion. State may totally bar certain procedures
to promote life b/c it is the proper role of doctors
There are other safe altvs to PBA procedure, so its
ok to regulate
Congl record goes both ways on health risks of ban
defer to the legr
An as applied challenge could be brought in
the future if health issue occurs, but facial
challenge insufficient
Ginsburg Dissent: The ban save any lives, just
bans method w/o health exception. Regular D+E
procedural could equally be called brutal +
bannable. Discussion of womens regret is
paternalism
ABORTION FUNDING
Harris v. McRae (1980)Except for cases of life threat,
rape, incest, womens rt to choose precede a constl
entitlement to financial resources
Right to choose rt to state financial resources to
avail self of full range of protected choices
Webster v. Reproductive Health Services (1989)
Uphelp state law prohibng state empees from perfng
abortions + using public facilities, even if woman paid for
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
long as faith ful to legv intent, lwr ct can order
declaratory relief or injunction against unconstl
parts

Formal/Function
SOP
66
it
affirmv rt to govt aid; might be diff if govt
provided all healthcare
Maher v. Roe (1977)Medicaid benefs for childbirth, not
for optional abortions b/c State allowed to make value
jgmt life>abortn
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
67
SUBSTANTIVE DUE PROCESS: MARRIAGE + FAMILY RELATIONS

Rt to marry long recogd as one of the vital persl rts
Belle Terre (1974, Douglas)SCOTUS upheld zoning
restriction excluding unrelated (blood/adoption)
essential to the orderly pursuit of happiness of free
groups from cohabitation
men. Thus, marr = basic civil rt, fundl to our
Economic + social legn invoked deferenctial judl
existence + survival protected under DP clause of
standard
14th Am
State ints sufficient under ratl reviewpromote

Loving v. VA (1967)SCOTUS struck VAs ban on
family, morality/genl police pwr
interracial marriage
Troxel
v. Granville (2000, OConnor)SCOTUS struck
Marriage is a rt afforded to everyone equally,
down WA law, as applied, when granparents petitioned
regardless of their race
for visitation rights over fit Ms objection
Echoed Skinner in that freedom to marry = fundl
Parental rts have 14th am DP rt to make decisions
Held on eq protxn grounds + liberty ints of DP
concerning the care, custody, control of their
Zablocki v. Redhail (1978)SCOTUS struck WI law
children
preventing marriage if pay child support
Stevens Dissent: Constn protects parental rts
Right to marry is fundl, regardless of financial
from state intrusion, but set up shield against all
status
challenges absent threshold finding of harmlook to
Held on eq protxn + liberty ints of DP grounds
childs ints
Tension: Sexual relns not yet a fundl rt o/s
Michael H. v. Gerald D. (1989, Scalia)SCOTUS
marriageis the court using marriage as a vehicle
concluded that bio Fs rights violated by CA law giving
for sexual relns?
presumption that child born to W is a child of the
Turner v. Safley (1987, OConnor)SCOTUS extended
marriage stepF had presumptive Pl rts over the bio F
Zablocki in striking regn of inmates rts to marry by
Int must be both fundl + tradly protected
conditioning it on superintendents approval for
evaluate tradition at most specific level of
compelling reasons like pregnancy, childbirth.
generality
Marriage is a fundamental rt even when imprisoned
o
No precedent upholds bio Fs rts over stepFs +
+ many important aspects of marriage remain after
Ms rts
considering limitns imposed by prison life to make
Brennan
Dissent: Wouldnt have gotten to
sufficient constl protxn in prison context:
Griswold, Roe, Eisenstadt, etc. if always analyzed
1. Express emotional support + public commitment
from most specific level of generality. Liberty
2. Religious/spiritual significance
must include the freedom not to conform.
3. MOST inmates eventually leave prison
4. Marriage as precondition to receipt of govt
benefs
Moore v. East Cleveland (1977, Powell)Struck OH
zoning ordinance that limited occupancy of a dwelling
to members of a single family + defined family in very
specific and limited terms
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
Govt intrusion on choices concerning family living

arrangements strict scrutiny (importance of govt
ints + extent to which legn serves those ints)
Relied on Belle Terre

Formal/Function
SOP
68
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
69
SUBSTANTIVE DUE PROCESS: SEXUAL AUTONOMY

General rt of sexual autonomy in Liberty under 14th
Am DP clause presumes an autonomy of self that
includes freedom of thought, belief, expression, and
certain intimate conduct
Bowers v. Hardwick (1986, White)Facial challenge to
GA sodomy law upheld as appld to gays
Homosexual sodomy fundl rt, per historical
precedent, b/c conxn b/w family, marriage,
procreation ratl basis
Morality is a sufficient basis under ratl review; its
always about morality!
Fears looking like judge-made law
Powells Concurrence: Might have been an 8th
Am issue w/ 20yr sentence, BUT such sentence on
the record valid
Blackmun Dissent: Rt is construed too narrowly by
majority. This should be about the right to be let
alone
o Protect privacy b/c this so central a part of an
individs life + sexl intimacy = sensitive, key
relationship of human existence
o In striking right to homosexual sodomy,
really striking fundamental ints in
intimate association
Stevens Dissent: Since law is selectively used on
gays, must have srict scrutiny as appld review
and ratl basis; GA statute prohibd sodomy
against ALL citz when enforce as statute is
written, its being used as a means to target a
subset of the population
Lawrence v. TX (2003, Kennedy)OVERRULES BOWERS

SCOTUS struck tx law making it a crim for two people of the
same sex to engage in intimate sexual acts deemed deviate
sexual intercourse (BJs, anal sex, penatration w/ object)
when private + consensual
Liberty protected by Constn allows homosexuals to
make the choice to engage in sexual acts
TX statute furthers no legit state ints that justifies its
intrustion on this fundl libertyState may have ints in
morality, but cannot use the club of criminal system to
enforce these views on society
o Tension/Dissent: Countless criml laws about
morality + intimacy: bigamy, prostitution, incest,
bestiality (or morality alone: drugs, obscenity)
Adult consensual sexual relns are a fundl liberty and
cannot be regd. Private intimate relns in the bedroom
cannot be regd
o Tension: But they are! Bigamy, incest, etc.
o Tension: Doesnt this reasoning sound a lot like
Lochner?
In forming decision, looks to changing societal attitudes,
foreign legal + socl devt, and American jurisprudence
(Romer)
o Dissent: Since when do we look at states
loosening/tightening their restrictions, or even at
other countries?
o Tension with idea of keeping up w/ changing socl
ints + notions of liberty needing to be
progressive/expansions + not
restrictions/contractions: Look at Casey, Gonzales
they expressly overturned SCOTUS decisions,
constricting rts
Goes through Stare Decisis analysis + discusses reliance
arg from Casey only somewhat inverted in that Bowers
caused uncertainty
Griswold line of cases shows privacy rts involving sex
just for marrd ppl
OConnor Concurrence: Sees as eq protxn issue and
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
70
alludes to Carolene Products discrete insular minorities

(politically unpopular group)Moral basis insufficient
under eq protxn
Scalia Dissent: Morals regn rational basis, period
end of story. Sees decision as judl activism. Slippery
slope
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
71
SUBSTANTIVE DUE PROCESS: DEATH RIGHTS

Cruzan v. Director MO Dept of Health (1990,
Rehnquist)SCOTUS upheld MO reqt of clear +
convincing evidence of vegetables wish to have life
support withdrawn.
State ints in protxn of life; DP clause protects liberty
ints in refusing life-sustaining medl treatment
SCOTUS name level of scrutiny fundl rt?
Constn would grant a competent person the rt to
refuse treatmt, but an incompetent person +
procedural safeguard for having s/o else refuse on
incomps behalf is clear + convincing ev.
Scalia Concurrence: SCOTUS in any position to
decide this; up to MO legr
Brennan Dissent: Rt to refuse medl treatment is
fundlrt to die with dignity, while MOs ints in
generalized life insufficient to outweight indivds
choice
OConnor Concurrence: Protected liberty ints in
refusing unwanted medl care
Commentary: Seems to be intermed scrutiny even
tho rt to refuse claimed to be fundl. Is this less
fundl than abortion? If cts arent grounded in any
real constl/legal basis, why are they any beter than
the legrs?
Tension: Conscription . . . how can conscript s/o to
live when conscript s/o to give birth + can
conscript to army?
Vacco v. Quill (1997, Rehnquist)NY prohibition on
asstd suicide while allowing refusal of lifesaving
treatment violate eq protxn
This is ab cause + intent
o Cause: When refuse treatment, die from
disease; when take lethal meds, killed by that
medn.
o Intent: When physn withdraws or honors
patients refusal to begin life sustaining
Washington v. Glucksberg (1997, Rehnquist)SCOTUS

upholds WAs assisted suicide ban (unlike refusing lifesaving treatment)
Assisted/suicide deeply rooted in our common law
not protected by 14th Am
Need to be cautious in extending Constl liberty ints
o What one person defines as a right another

person may say is objvly wrong + should be
regd (think abortion)
o When constitutionalize s/t, you take away the
nuanceimportant to keep the fedst
laboratory.
Even on a ratl basis review, state has legit,
broad genl welfare ints of preventing
suicides/protecting human life/integrity of the medl
profession that are ratly related to the ban
Stevens Concurrence: May be a particular case
where the state ints so strong
Souter Concurrence: fear of slippery slope in
individs affected if this were DP fundl rtworried
a/b protecting nonreasonable individs from this
decision
OConnor Concurrence: No legal barrier to meds
alleviate suffering that hasten death, BUT in context
of those fully competent, or whose decision to
hasten death fully voluntary, states ints
sufficiently weighty for prohibn against physn
asstd suicide
Breyer Concurrence: Rt to die with dignity > rt
to asstd suicideat the core, however, is the idea
of rt to control manner of death. need to decide
whether fundl b/c legal acquisition of drugs that
free from state inflicted pain
Tension: will suicide someday be a fundl rt as we
become further enlightened (think Roe, Lawrence,
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
treatment, he intends to respect patients
decision; when physn assts suicide, he intends
to kill the patient

Formal/Function
SOP
72
Brown)?
Tension: Unlike abortion, where we strike down
spousal notification b/c it affects a fundl rt of the
2% affected; here we strike down asstd suicide for
the 2% who may be vulnerable thus giving up fundl
rt for the 98% who are capable of making the
decisionWhich side does thumb go?
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
73
SUBSTANTIVE DUE PROCESS: CRITIQUE OF MODERN CASES (IN-CLASS)

HOMOSEXUAL SODOMY, ABORTION + ASSISTED SUICIDE
Lawrence
o
Overruled Bowers: Constl Rt NOW + during Bowers (they just got it
wrong)
o
Why? Where?
a/b sex/conduct; 14th Liberty ints is a/b RELATIONSHIPSwe

have a fundl rt to choose the nature of our relnship, so its about
the bond
BUT the ct likely wouldnt allow prohibitn of non-relationship

sexual acts (Eisenstadt)
o
Theyre optimistic?!
Sounds a lot like Griswold, but it ended up that Griswold a/b the
marriage at allrelationships so broad; over/underinclusive
o
Consider: 85% of ppl meet partners @ work
Regn of work hours is a lmitn on opportunity to make relationships

...?
Direct v. Indirect burden/regn

o
Kennedy tries to say this regn is NEW, tradition of it, but OConnors
concurring emphasizes discrete/insular minority arg (politically
unpopular group)
Maybe history of antihomosexual sodomy; NEW b/c previous

legrs just outlawed ALL sodomy (and then Griswold, Eisenstad, Roe
give COUPLESheterosa lot of rights)
New Tradition: adult rts/awareness of choice
New trend: you cant impose your beliefs upon ppl but
SCOTUS says that while imposing majoritys beliefs (+ binding
on nonparties)
12 states changed their laws (25 prohib 13, only 4 of which

enforce)
o
Is 12 a lot? A little? Only a little more than 25%?
Cuts the other way:
Democracy is working well! In 15yrs, 13 states

have changed their mindhomosexuals an
unpopular group after all!
Democracy is working well! Political process =

safeguard (important for eq protxn analysis)
dont need suspect categorization
o
Need 38 to change the Constn (supermajority . . . )
Is this a precedent for overturning Roe on its own?

37/8 state changed mind . . .
o
Compv constl law approach:
BUT out written (and unwritten) Constn is DIFFERENT from

European countries!
EU has very strict abortion rts, tho generally its rts are
broader
Picking out friends at party

o
Compare to Casey: framework in overturning Roe was reliance here,
arg is NO reliance on Bowers
But, maybe ppl moe to TX b/c of its laws? Vote with your feet!
Also, only overturn LIMITED rts b/c higher standard

for overturning cases that expand rts
But Casey itself curtailed rts prevly granted when upholding
Is this (Lawrence) a sexual autonomy case?
If yes, what a/b the OTHER sexual conduct cases?
EXPRESSIVE: society always can express values (thats why

theyre moralistic laws)
o
Symbolic
Glucksberg how much society values life
But for antiRoeers . . .

o
Research indicates . . .
People change their minds!

o
Protecting vulnerable groups from abuse
o
Is this a gay rights case?
Glucksburg
o
Liberty ints in controlling manner of death
Linked to Griswold, Roe, Lawrences dignity/bodily autonomy

traditional liberty ints, but neither were the latter
Majority persuaded here

o
Concurring: inverse of Lawrence + Griswold
Maybe this law is overinclusive, but grounds for invalidating

whole statute
o
That doesnt sound like strict scrutiny . . .
Voluntariness = slippery slope
Whereas in Griswold, Roe, Lawrence, arg was MAYBE state has valid
ints but law overinclusive work
Broad question about sex/contraception cases: How distinguish from
Lochner
o
In Lochner, ct read in one particular economic view (actually the majority
view of freemarkeet/deregulation)
o
Inconsistent w/ bad idea
Adkins held diff regn for women . . .

o
Critique of current substv DP:
Imposing sexual freedom into Constn when there
Again, laissez faire libertarianism, like Lochner
So how is this different?
THIS (sexual laissez faire) is actually fundl to liberty, whereas

econc freedom really
o
Really important v. not really important
Is that SCOTUS job?
Given most of these decisions, there was social background

conducive hard to say theyre irrational decisions (all but
CTthat was outlier state)
Carolene Products footnote 4 arg: Who are the discrete +

insular?
( many hold this view) Slughterhouse dissenters would say

these cases right + Lochner would be right too
o
Lochner + Lawrence agree on prostitution?
ALL WRONG (conservv view)

Substv DPfundl rts be curtailed/modified ARBITRARILY
o
Does it follow then that all regns are arbitrary?
o
Havent expanded much beyond sex, family, reproductive spectrum
o
nominal consn to DP clause
o
What is the liberty ints?
o
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
o
o
Roe (notification, information meant to dissuade, etc.)

Fundamental deep holding = immorality finding insufficient
But . . . but . . . but . . .

Is SCOTUS just constituting the moral mood?
When state bans/changes laws, does legr think its unconstl?

Likely not. Just LIKE them anymore

Formal/Function
SOP
Greater level of abstraction, more swept in
74
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
EQUAL PROTECTION: STANDARDS OF REVIEW

14th Am: No state shall make or enforce any law which . . . nor deny to any person within its jdxn the equal protxn of the laws
14th Am protects groups from discry govt regns. There is a natural tension b/w individual rts and discry govt regn. Here, Cong
making arg that the discn against certain groups is justified b/c . . .
Considerations:
1. Historical LEGAL discrimination
If race = paradigmatic class, nothing else will ever match up
Just dont discriminate anymore
What about income (used to not be able to hold office, now . . . )
2. Immutable characteristic
Could be anything, though. Intelligence . . .
Immutable is a good reason to discriminate b/c its REAL ( social construct)
Disabilities!?
3. Relevancy
If characteristic is irrelevant, then isnt that the reason NOT to discriminate
Most serious argument for strict scrutiny as applied for race (categorically irrelevant)
4. Political Powerless? Discrete/Insular Minority?
May also consider narrow tailoring (over/underinclusive) + arbitrariness (will fail ratl basis)
What is the appropriate level of scrutiny? THREE TIERS
(1) Strict Scrutiny: used when dealing with discrete + insular minorities, or suspect classparticularly when a prejudice tends
seriously to curtail the operation ofthose political processes ordinarily to be relied upon to protect that groupRegn must serve
compelling state ints and be essential to the ints of the particular class; More exacting scrutinyJudl intervention more
appropriate the less the political process may be trusted as a safeguard
o Race, natl origin, alienage;
o Sometimes relaxed w/ affirmv axn,
o Voting
(2) Intermediate ScrutinyThere must be important state ints + the regn must be substantially related to the ends.
o Gender
o Quasi-Suspect . . .
(3) Rational BasisRegulation must have a ratl relationship to legitimate ends
o age, disability, sexual orientation*, wealth,
o Sometimes heightened w/ voting
Does the particular govt axn meet the level of scrutiny needed? Is it justified by sufficient purpose?
Tension: Equal treatment/nondiscn clauseobviously in a country where it is not thought that every piece of legn is reviewable for
reasonableness, then equal protxn must not mean that we treat ppl equally. Laws always discng against SOMEONE
o University sports teams disc against ppl w/ disabilities
o Income tax + income bracketing
Was believed to be a response to racial discn Eq protxn really a/b race/suspect classifns
o There is a stream of ct of apps cases: class of one discn (not youre ugly, but s/o treated 100% of ppl who look LIKE YOU)
o Would be very invasive to req equal trtmt totally
o Cts worried still two-tiered system for eq protxn.
Ratl basis
Cant just say this isnt equal and get strict scrutiny
75
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
Equal for equally sitd ppl (taxes)

Strict Scrutiny requires suspect classificationpresumptively bad or illegitimate discrimination
76
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
77
EQUAL PROTECTION: RACIAL DISCRIMINATION

FACIAL DISCRIMINATION
Strauder v. WV (1880)Law for all white juries unconstl
Korematsu (1944)VACATEDUpheld racial classn under SS for reasons of
a pressing pub need to protect natl ints + safeguard against espionage +
sabotage during WWII
Plessy v. Ferguson (1896)SEPARATE BUT EQUAL SCOTUS approved
segregation in publicly regd activities as w/i equal protxn
Nature of 14th Am to abolish distinctions or enforce socl equality;
laws reqng separation necly imply inferiority of either race within
police pwrs.
o If blacks feel this way, its their fault. Our job isnt to change
how ppl think
Legv discretion so long as reasonable
Harlan Dissent: Social context matters! Cant close your eyes! Cant
use race as basis for legal distinction EVER; colorblind Constn
SCHOOLS
Brown v. Board (1954, Warren)OVERRULED PLESSYSeparate
educational facilities is inherently unequal
TWO WAYS to look at Brown:

1. Broad Brown: Adopt Harlans dissent in Plessyracial
discrimination is bad, education is SO important. Separate
equal
2. Narrow Brown: Narrowly overturns Plessyeducation can never
be equal; social import creates badge of inferiority. Must
consider social context! May still have situation where separate
= equal (affirmv axn, historically black colleges)
Swann v. Charlotte (1971)Cts have broad authority to ensure unitary
systems; including bussing
Bussing ok b/c result of decades of zoning/covenants; legit baseline,

but remedial here so ok
Milliken v. Bradley (1974)Detroit: northern city was black + suburbs were
white, but no discn issue just how the city devd.
Absent a violation, you cannot reform school district boundaries. If

there is no discn going on (de jure segregation), cannot use adjacent
districts as a reason to bus kids in or out of the city to other school
districts.
NON-DISCRIMINATORY (APPLIES TO ALL RACES EQLY) RACIAL
CLASSIFICATION
Johnson v. CA (2005, OConnor)SCOTUS struck prison program separating
prisoners by race
Separate is never equal. State justification to avoid gang violence,

but not narrowly tailored even tho violence = compelling govt ints
All racial classifications strict scrutiny (Narrow BrownRACIAL

REALITY?!)
Thomas Dissent: Majority wants dignity; state wants safety

Palmore v. Sidoti (1984, Burger)Cannot factor race of new spouse in child
custody. Even w/ compelling govt ints in kids (feeling stigma/malFX of
FACIALLY NEUTRAL LAWS W/ DISCRY PURPOSE + FX
Disparate impact alone sufficient to find a regn unconstlneeds to be

evidence of malicious intent, which is not dispositive but which shift the
burden to the . Invidious intent can be found thru an inquiry into the
circs surrounding the regnclear pattern explainable, historical
background, specc sequence of events, departures from normal
procedural sequence, legv history. (Arlington) The evidence have to be
direct (Rogers)
Yick Wo v. Hopkins (1886, Matthews)SCOTUS struck down patently discry as
appld facially neutral law of grnting permits to operate laundries under Eq
Protxn
14th Am discusses persons citz
Think Harlan dissent in PlessyConstn should be colorblind1

Griffin v. County Board of Prince Edward Co. (1964)Closing public schools
for sole purpose of race + providing incentives to attend private segregated
schools violates Eq. Protxn
Gomillion v. Lightfood (1960)Redistricting w/ blatant effect of
disenfranchising blacks struck down; inferred discry purpose
Voting is one of those rts that gets standard of scrutiny . . .

Palmer v. ThompsonSCOTUS upheld presumed discriminary purpose in closing
public pools after desegregation order b/c ascertaining motivation difficult
+ no discriminatory FX on blacks
Washington v. Davis (1976, White)Written exam for DC police upheld even tho
disproportionate FX
Disparate impact sufficient to find violation of Eq Protxninvidious

quality of law must be traced to discriminatory PURPOSE + alone,
disparate impact trigger strict scrutiny
Invids purp. neednt be express or w/i stat.Yick Wocan be smoked

out from FX
Stevens Concurrence: Law conscripting clerics be invald just b/c

atheist voted for it Gives test to distinguish discn purpose from discn
impact:
o
Discriminatory PURPOSE
Objv evidence of what actually happened
Not the subjv state of mind of actor
Actor normally assumed to intend natl consequences of his

axns
o
Discriminatory IMPACT
May be occurrence natly intended by actors
Should look to social context to determine whether impact

intended
Arlington Heights v. Metro Housing Corp. (1977)SCOTUS upheld Chi subs
refusal to rezone single family propty to multifamily propty
Reaffirmed Davis rule but elaborates on what makes a proper inquiry:

1. Impact + pattern (rarely so dramatic)
2. Fact-specific analysis of sequence of events
3. Historical background
4. [Substantive] Departures from normal procedure
5. Legisv/adminv historymtg reports/minutes
Ev of discry purp auto invalid; SHIFTS burden: same result occur w/o
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
racism)
Law cant sanction classifications even tho possible injury [emotional]

in kid
Loving v. VA (1967, Warren)Miscegenation statute has lineage in slavery +
only applble to relns w/whites (diff minorities/colors can intermarry);
equal punishment to both partners a smokescreen for white supremecy.
Even tho appld equally to blacks + whites, no ratl basis review
Equal protxn demands strict scrutiny in any racial classns, especially

in criminal offenses

Formal/Function
SOP
78
disc. purp.?
Rogers v. LodgeSCOTUS affirmd lwr ct finding of discrimination from circular
evidence of racial vote dilution in at-large election
Hunter v. UnderwoodSCOTUS struck down facially neutral law (moral
turpitude crimescriminal disenfranchisement) when plainly racial
history/context of legn + continuing disproportionate impact
SCOTUS at most vigorous in policing eq protxn violations w/ voting

McCleskeyDeath penalty; must have proof of discriminatory purpose in YOUR
OWN case; statistics are not enough.
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
79
EQUAL PROTECTION: AFFIRMATIVE ACTION + EDUCATION
Standard of Review:
Strict Scrutiny in Education, with Deference to educators
jgmt that diversity = essential (Grutter)Tension
o Flexible Standard in student selxn (Grutter)
o NO QUOTAS (Bakke)
Narrowly Tailored Test reqs:
o Serious good faith consideration of workable, race
neutral alternatives + must not unduly burden individuals
who are not members of the facial racial groups (Gratz)
Survive Strict Scrutiny if narrowly tailored to a compelling
interestno more invidious v. benign discrimn (Adarand)
Motivations:
Redress past discrimination
o STANDING (aff axn) based on unlevel playing field (Bakke)
Ensure/enhance future diversity (Tension: OConnors 25 yr
limitwhat else was time sensitive? Bussing, but that was
REMEDIAL)
Rationale:
Affirmv Axn is in line with overall purpose of 14th Am
In reality, cant just open the gates of opportunity
Grutter v. Bollinger (2003, OConnor)SCOTUS upholds race as plus

factor in UMich Law admissions
Strict scrutiny of racl classns in EDUCATION (as in Bakke), but
with deference to educators jgmt (1st Am priv for univs) that
diversity is ESSENTIAL
Use of individd flexible plus factor ok if it doesnt make race
defining feature
Narrow Tailored test reqs srs good faith considn of workable
race-neutral altvs + unduly burden individs in
minority/favored racial group
Suggests that race conscious admissions must be limited in time
25 yrs?
Scalia Dissent: Vague standards (individd, good faith, critical
mass) will lead to more confusion + litigationwants other
standards a/b race
Thomas Dissent: Blacks don need AA to achieve + SS at odds
w/ the deference to edurs. Diversity = aesthetic. Blacks
tainted with stigma b/c AAneed to adequately compete
Rehnquist Dissent: Why is a certain critical mass of students
needed for Hispanics, Native Amers? The % of admits for races
reflects strikingly similarity of % of applicants unconstl racial
balancing
Commentary/Tension: Grutter endorses Powells solo opinion in
Bakke about diversity being the goal. Remediation harder to
Gratz v. Bollinger (2003, Rehnquist)SCOTUS strikes down auto 20point bump in admissions score for race at UMich undergrad
No single characteristic should automatically count; that
violates Eq Protxn (most accomplished artist or leader only
gets 5pt bump)
Souter Dissent: No Bakke-like quota here insulating
applicants from competition b/c lots of factors given points.
Unfair to treat candor in admissions as an Achilles heal.
Ginsburg Dissent: better to be straight up than winks +
nods (% plans)
UC Davis v. Bakke (1978, Powell alone; Brennan plurality)SCOTUS
struck med schools affirmv axn prgm (placeholders) when white
kid rejected
Strikes THIS kids rejection but leaves open room for AA b/c
education is special!! SCOTUS finds legit ints in diversity
of ideas in the classroom flowing from diversity of students,
but rejects other reasons for prgm: (1) remedial; (2)
reduce historic deficit of XYZ races; (3) counter FX of socl
discn; (4) medical care + practice in minority commties.
Powell: Race subj to SS even if not discrete/insular 14th Am
framed in universal terms + AA necly benign b/c
reinforces stereotypes. W/o Constl/statry violations, govt has
no ints. Compelling ints in diversity of edul experience (1st
am). Harvard system OK
Brennan: Interm scrutiny! Whites suspect class. Remedial
purpose can serve imp govt objvs + be substly reld to those
objvs. Distinction is benign v. invidious discn. No badge of
inferiority here like in Brown.
Blackmun Dissent: Origl meaning of 14thto get beyond
racism we must first take acct of RACE! Likes remedial arg:
standing here is unqual playing field + the remediation here is
against the govt, not whites
Konto says: AA after this case is b/c this decn is NARROW +
unclear. If you like the diversity argyou probably buy the
remedialTension! If you like the remedial arg have to
be immed past discn (b/c permitted remedial decns were
about immed/concurrent discn), but what would rise to that
level? (explicit bans, segregated facilities)
Tension (Konto): 1st Am arg + university diversitybut you
cant violate the 14th Am?!
POLICY
Courts position seems more in the middleintermediate scrutiny
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
argue as time goes on. What does 25 years have to do with

diversity? Why cant priv schools provide the diversity since
theyre not covered by eq protxn? How else can we deal with
attaining diversity? Lottery, socioecon > race in plus factors,
10% plan Konto: Do we need fancy state schools?
Tension: Superintendent in Brown would say, presumably, that
mixing races in education good would SCOTUS really defer to
educators jgmt then?

Formal/Function
SOP
80
Dangerous b/c SCOTUS is in the position to decide when racial

classns okay
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
81
AFFIRMATIVE ACTION + EMPLOYMENT/CONTRACTS

Adarand Constructors v. Pena (1995, OConnor)OVERRULED FULLILOVESCOTUS struck Fedl incentives for
contractors to hire minority subKrs when lowest bidder get DOT job b/c minorities (and minority Kr got bid)
Any person of any race has the rt to deman any govt actorstate/fedto justify racial classification subjng him
to unequal treatment under strict scrutiny.
No more benign v. invidious discn test.
Strict scrutiny strict in theory fatal in factsome race-based axn could stand if narrowly tailored
Scalia Concurrence: No such thing as compelling ints in racl discn to make up for past discn in the opposite
direction. No such thing as either a creditor or debtor race.
Thomas Concurrence: Paternalism in these prgms at odds w/ principle of inherent equality. So-called benign
discn brings resentment, inferiority, entitlement as bad as invidious discn
Stevens Dissent: There is no moral/constl equivalence bw perpetuating caste system + seeking to eradicate
racial subordination. THE MAJORITY VOTED FOR IT
Ginsburg Dissent: Ongoing conscious + subconscious bias and discn Con should be able to carefully design
affirmv axn prgms like this under 14th
Konto says: How is this not fatal in fact?
Richmond v. JA Croson (1989)SCOTUS struck down city contracting quota.
Overall social bias cant justify state/city axn.
States/cities may take narrowly tailored remedial racial axn if specific evidence that their own practices are
exacerbating a pattern of prior discn
Fullilove v. Klutznick (1980, Burger)SCOTUS upheld fedl contracting prgm reqng 10% minority business
Art I pwrs + 14th 5 allow Cong to act w/o the findings normally reqd of a lwr body.
Claimed it would survive SS regardless of Constl provns
Wygant v. Jackson Board of Edu (1986, Powell)SCOTUS struck down minority preference in teacher layoffs
Strict scrutiny minority role models to remedy past socl discn compelling
Firing quotas worse than hiring quotes b/c fall to specific indivds
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
82
EQUAL PROTECTION: SUSPECT CLASSIFICATIONSGENDER

HOW TO DETERMINE IF A CLASS IS SUSPECT:
1. Is there an immutable characteristic? (Frontiero)
Can it be changed?
Can you SEE it? Is it physical, apparent?
Analogize to race for justification
CAVEAT: Are we sure the characteristic is immutable?

o You can get a sex change . . .
o Gender socially constructed?
2. Is there a history of LEGAL discrimination?
Relied on by majority for purp of stigmatization?

3. Is the characteristic relevant to govt objectives? (Frontiero)
4. Discrete + Insular? Politically Powerless? (Carolene Prods)
GENDER
Not afforded same STRICT scrutiny as race, but subject to
intermediate scrutiny, which reqs that discn servies an important
govt objv and are substantially reld to achievement of that
objective (Boren)
Traditional, loose fitting generalities a/b a genders capabilities
sufficient to justify discn
US v. VA (VMI) (1996, Ginsburg)SCOTUS struck all male state funded
military college w/ very specific + militant educational methods when the
remedial womens college (VMIL) provide comparable education or
prestige
Under interm scrutiny, justification must be genuine, not invented

post-hoc. Cant rely on overly broad gender generalizations a/b
capacity, talent, preferences, sex (bullying v. gentle environment)
Exceedingly persuasive justification needed for gender-based govt

axn
Benign justifications (diverse education) insufficient; must have state

purpose, not mere rationalization
A remedial decree must closely fit the constl violationplace the

person in position he would have been in absent the discn
Rehnquist Concurrence: Gender discn may not be the problem

bigger prob may be failure to provide adequately equal facility;
remedy req admission to VMI but it does req a VMI clone
Scalia Dissent: All-male military schools deeply rooted in tradn

should be changed via democratic process; women discrete, insular
minority. Use rational basis!
Tension/Konto:
Can separate ever be equal in education post-VMI?
What happened to deference to higher education from affv axn

cases?
Doesnt diversity supersede remediation from affv axn?
If VMI integrated but had physical fitness reqt that

disproportionally adversely affected women, it would be OK so
long as no discry purpose
MS Univ for Women v. Hogan (1982, OConnor)SCOTUS invalidated allgirls nursing school admissions policy when male applicant denied
admission on basis of gender
If the statutotry objv is to exclude or protect members of one

gender b/c they are presumed to suffer from an inherent handicap or
to be innately inferior, the objv itself is illegit
Party seeking to classify sex must show exceedingly persuasive

justificationjust b/c discd against man and not women exempt it
from Boren scrutiny.
Michael M v. Superior Ct (1981, Rehnquist)SCOTUS upheld statutory rape
law that punished only men
There is a legit diff bw sexesstatute not based on adminv

convenience or stereotypes. Girls have natl deterrent of childbirth so
criminal sanction acts as balance for men.
Tension/Konto: Criml sanctions always get higher scrutiny. How is

this reconcilable w/ VMI? Could they have used childbirth as rationale
instead of aggression? How are illegit births a valid govt purpose? No
OTHER crime allows punishment of only one participant?
Mass v. Feeney (1979, Stewart)SCOTUS upheld hiring preference for
veterans in state civil service positions even though pref adversely FX
women b/c they vets.
1. Determine whether classn is indeed neutral
2. If so, whether adverse FX reflects invidious gender-based discn
o Start w/ impact
o Purposeful discn is a constl reqt; this reqs more than intent or
awareness of consequences
Ultimately, most men are not vets either gender discn

Craig v. Boren (1976, Brennan)Different minimum age reqts for men (21)
and women (18) to buy 3.2% beer, as justification for traffic safety, held
unconstitutional
Gender classifications get interm scrutinymust serve important

govt objvs + be substly reld to achieving those objvs
Here, purpose (traffic safety) ok, but statistical disparity insufficient

for using gender as a classnprinciples of eq protxn are not
rendered inapplicable by statistically measured but loose-fitting
generalities concering traits of groups. Need more proof/better stats!
Concurrence: Women have a lower tolerance this law is

backwards + have deterrent effect: 98% men drive drunk
Commentary: Why ct decide to compare 2% to 98%? Should have

looked at comparison of women to men (.18% v 2%), which was
close! This law was about stereotyping (women drink, or will get
driven home). Look for things that pit ppl against each other
instead of against genl popn
Frontiero v. Richardson (1973, Brennan plurality)SCOTUS strikes down
law reqng female member of armed forces to prove her husbands
dependence when men have to prove anything to receive benefs
It is unfair to condition something on an immutable characteristic like
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?
Feels like STRICT scrutiny

Formal/Function
SOP
83
gender
Tension: are we sure gender is immutable, really?

Goesaert v. Cleary (1948, Frankfurter)Upheld MI bartending law denying
women licenses
Constn req. lrs to reflect sociological insight or shifting social

standards any more than it requires them to keep abreast of the latest
scientific standards
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
84
EQUAL PROTECTION: SUSPECT CLASSIFICATIONSDIS/ABILITY, AGE, POVERTY

Disabled individuals are technically subject to rational basis review, but precedent demonstrates
that the scrutiny can often be a higher rational basis with a bite.
o Stevens says in Cleburne: characteristics of disabled groups sometimes genuinely relevant and
sometimes not to a given public purpose
Cleburne v. Cleburne Living Center, Inc. (1985, White)TX city denied special use permit for the operation of a
group home for the mentally retarded, acting pursuant toa municipal zoning ordinance reqng permits for such
homes. SCOTUS found the ordinance unconstitutional as applied.
Where individs in the group affected by a law have distinguishing characteristics relevant to ints the state has
the authority to implement, the courts have been very reluctant to closely scrutinize legv choices as to whether,
how, and to what extent those ints should be pursued. rational basis
Mental retardation quasi-suspect class
1. Undeniably mentally retarded are different + have ability to cope and function in everyday world. Their
immutable trait is relevant to states ints in dealing with and providing for them.
2. National + State law addresses their needs + challenges they are need more judicial protection (Fedl
govt has outlawed discn against them in fedly funded programs, and they receive special treatment) +
cant presume theyre disfavored
want legr to stop addressing their needs; SS would possibly deter
Tension: What about all the other groups on the special list (race/sex)? Could look at race and say
no more SS b/c of all of the affirmative axn, etc.
3. Not politically powerlessreceive plenty of attention from lawmakers + public support
4. Such a large and amorphous class ( discrete/insular) too hard to distinguish them from the aging,
disabled, mentally ill, and the infirm none are quasi-suspect
Just b/c not quasi-suspect, doesnt leave them unprotected from invidious discn
o Even though rational review is appropriate, SCOTUS says citys ints (#people living in home, attitudes of
propty owners, elderly/kids nearby, safety) are illegit
Tension: Weird that attitudes of property owners matters; thats a huge reason for zoning in the first
place this is the problem with rational review (bars, shopping centers)
o problem with other kinds of group homes (frat houses)
Must be that neighbs just dont like mental retardd ppl, has to be a/b prejudice
o BUT would we really see the inverse arg if need permit for mental homes + did for frat
houses? Its RATIONAL BASIS, its ok to disc sometimes.
Stevens: Gender, alienage, age, illegitimacy, etc. s/t ok and s/t not, but not b/c of intermed scrutiny, but b/c
sometimes not relevant + sometimes genuinely relevant to given public purpose
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
Marshall Concurrence/Dissent: Ratl basis supposedly used by majority deferential. Should use intermed
scrutiny for the classification due to the ints at stake + history of discn
85
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
86
EQUAL PROTECTION: ALIENAGE

14th Am: All persons born or naturalized in the United States, and subject to the jurisdictionthereof, are citizens of the United States and
of the State wherein they reside
Congress may discriminate, but States subject to SS for discrimination
o UNLESS, States dealing with matters firmly within the states prerogatives Rational basis (Foley)
Think about alienage under the four prongs:
1. Not immutablevery often changes, quite temporaryeither get citzship or return to homeland
2. OTOH, minority + politically disadvantaged
o Cant vote
Since voting = fundamental ints SS aliens should vote! But this isnt what happens so really SS? Or do we want them
just to have benefs?
3. Legal status/construct validated by Constn (Fedl govt can make laws about naturalization + immigration)
4. Relevance?
o Ambach thinks so (school teachers)
Graham v. Richardson (1971, Blackmun)SCOTUS held that states could not deny welfare benefs to noncitz.
Classifications based on alienage, like race or nationality,, are inherently suspect subject to close judicial scrutiny
Prime example of Carolene Prods discrete + insular
In re Griffiths (1973, Powell)Invalidated CTs exclusion of resident aliens from law practice
Sugarman v. Dougall (1973, Blackmun)SCOTUS invalidated NYs law providing only American citz could hold permanent positions in the
competitive classified civil service
State barrier did not cover all high policy making positions but a number of menial ones, so state ints of having employees of
undivided loyalty little relation to law
Staty may in an appropriately defined class of positions req. citzship as a qualification for office.
Hampton v. Mow Sun Wong (1976, Stevens)Invalidd Civil Service Commission (CSC) regn barring resident alients from employment in
the federal competitive civil service.
Ovverriding natl ints may provide a justification for citzship reqt in the federal service, but identical reqt cant be enforced in the
states
Matthews v. Diaz (1976, Stevens)Cong may condition an aliens eligibility for participation in a fedl Medicare prgm on (a) admission for
permanent residence and (b) continuous residence in US for five years
Deferential standardof review b/c of broad naturalization and immigration powers of Congress
Disparate treatment of citz + aliens does not demonstrate invidiousness
Foley v. Connelie (1978, Burger)SCOTUS held that NY could bar empt of aliens as state troopers
Didnt want to destroy the distinction b/w alien and citzship and therefore depreciate the historic values of citzship
Court emphasized the functionality of police + the state
o Tension: National League of Citites/Garcia Fedl cant regulate state qua state (water bottles okay, but not essential
govt function core function as unworkable determination in Garcia
Ambach v. Norwick (1979, Powell)Applied public function exception to hold that state may refuse to employ as
elementary/secondary school teachers aliens who are eligible for citzship but who refuse to seek naturalization
Less demanding scrutiny reqd when aliens excluded from state functions . . . bound up with the operation of the State as a govt
entity
o Tension: Similar tension as Foley in terms of public function exception
o Doesnt this cut the other way? Better for diversity if aliens = teachers? What about the composition of the class being aliens?
Tension!
Broad/Narrow Brown
Big/Little Marbury
Standard of Review?

Formal/Function
SOP
87
Toll v. Moreno (1982, Brennan)Struck alienage restriction on federalism-related grounds rather than equal protxn when Univ of MD policy
granting preferential tuition and fees treatment to students with in-state status making nonimmigrant aliens ineligible even if domiciled
in MD.
Congs explicity decision not to bar aliens from acquiring domicile States decision to deny in-state status soley on acct of federal
immigration status = ancillary burden not contemplated by Congress
Bernal v. Fainter (1984, Marshall)Limited public function exception and struck TX barrier to aliens becoming notaries public
EQUAL PROTECTION: SEXUAL ORIENTATION

Sexual orientation, while not a protected class, seems to have received more than the requisite
rational basis test afforded to most unprotected classes.
Romer v. Evans (1996) CO Constitutional amendment passed via referendum prohibiting state and local
governmental bodies from passing or enforcing any laws that afford legal protection against discrimination
of homosexuals
a. Majority (Kennedy)The amendment fails rational basis review; by a single trait it denies across the
board protection. The rationale for the amendment was born of animosity, an illegitimate govt
interest. Reasons put forth by the state (freedom of association for business owners & conserving state
resources for other anti-discrimination work) are far removed from the wide breadth of the amendment. It
doesnt merely remove special rights for gays; it takes away safeguards that others may seek without
restraint.
Bill of attainder (declares s/o guilty of crime w/o trial) analogy
b. Dissent: Scalia leave this to democratic means; animosity toward homosexuality not necessarily a
bad thing. Generally applicable laws against arbitrary discrimination will still protect gays.
c. Konto:i. Like in VMI, they seem to be using a higher standard of review than what they're actually
claiming here (rat basis). It's the 'animus' motive that seems to set this case apart for the Court from
the age/disability cases. SCOTUS doesnt want to precommit anyone out but doesnt seem to
mind as much precommitting in
If take them off list, need Constl am to get back on.

Fedsm issue: in USA overall, never get a vote like this, but in a state, the people voted for this
o Without fedsm, how protect this group in CO?
FUNDAMENTAL INTERESTS: VOTING
Some classifications, such as wealth, which normally receive rational basis review require closer scrutiny when they bear upon other
fundamental rights, such as voting or access to the judiciary.Procreation (Skinner v. OK sterilization); Voting; Access to appeals,
transcripts, etc.
Harper v. VA Board of Elections (1966) Challenge to VAs poll Taxes
Majority Douglas Conditioning voting on affluence of a payment of a fee is unconstl
State violates E.P. by making affluence of voter or payment of fee an electoral requirement; voter qualifications have no relevance to wealth; its
capricious and irrelevant. Political franchise of voting is a fundamental political right.
The E.P. clause is not shackled to the political theory of a particular era... we have never been confined to historic notions of equality, any more than
we have restricted due process to a fixed catalogue of what was at a given time deemed to be the limits of fundamental rights. Where fundamental
rights / liberties are asserted under E.P., classifications which might invade or constrain them must be closely scrutinized and carefully confined
o Tension: Lochner? Overruled . . .
Dissents
o Black dissent Poll tax can be rationally related to legit state policies (revenue, ensuring voters care about states welfare). Maj is using the
old natural law due process formula.
o Harlan dissent Poll taxes a traditional part of political structure. It rationally promotes civic responsibility. Those with property probably
more responsible, educated, deeper stake in community affairs. Its wrong for the court to adopt current trendy popular politics and declare all
others irrational and invidious.
Konto: EVERYTHING is more difficult when you're poor, thus this rule could reach extreme results re: justice system, voting, etc.
Kramer v. Union Free School District (1969) - in certain NY school districts, residents may only vote in school district election if own or lease w/in district or
are parents/have custody of kids enrolled in schools
Majority Warren - Any unjustified discrimination in participation in political affairs/voting undermines legitimacy of representative govt. Must serve
compelling state interest. Even if NY does have a compelling int in limiting elections to those primarily interested in school affairs; this isnt
narrowly tailored. Includes people who dont care and excludes people who do.
Cant discriminate against votes based on geography / whether live in district
Dissent Stewart So long as a classification is rationally related to permissible legislative end, there's no E.P. denial in voting cases.
Konto: Although the school board need not be democratically, the Court seems to state principal that if you're going to hold democratic elections,
they have to be REALLY, FULLY democratic
Crawford v Marion Co (2008) - IN law requiring govt issued ID in order to vote.
Majority: Stevens: Conditioning voting on free things is permissible
No strict scrutiny needed. Balance interests of state (integrity of process, prevent fraud), burden on voter (not much - ID cards are free,
inconvenience of getting one not a substantial burden; can cast provisional ballot without ID if w/i 10 days complete an affidavit).
Fact that all Repubs supported and all Dems opposed law irrelevant; if nondiscriminatory law is supported by valid neutral justifications, those
justifications shouldnt be disregarded just because partisan interests may be one motive for individual legislators.
Concur: Scalia 14th doesnt treat neutral laws as invidious, especially when those disparately impacted arent even a protected class (in this case,
the disabled/elderly).
Dissent: Souter This law poses serious burdens for poor, old, disabled who likely dont drive; there's little public transportation in IN; fees for the
various docs one needs to produce to get the ID (birth cert, passport, etc.) Because of these burdens on substantial # of voters, law must withstand
rigorous assessment. Absolutely no actual cases of voter fraud in IN to justify law.
Breyer: this is like the poll tax in Harper.

Reynolds v. Sims (1964) AL laws were drawn based on 1900 census, thus discriminating against voters in growth counties
Majority Warren - Any infringement on right to vote must be carefully/meticulously scrutinized. Right of voters to elect legislators is bedrock of our
political system.
Weighting votes of citizens differently merely because of where they live hardly seems justifiable. E.P. guarantees opportunity for equal participation
by all voters in election of state legislators.
Dissent: Political matters like this; denial of constitutionally protected rights demands judicial protection. E.P. requires seats in both houses of a
bicameral state legislature must be apportioned as nearly equal of population as practicable.
o Analogy to fed Senate inappropriate because it reflects a compromise required for establishment of U.S.
Harlan legislative intent of 14th wasnt to limit states' ability to apportion districts.
Stewart representative govt is a process of accommodating group interests. Apportionment should be designed to insure effective
representation of the various groups and interests in the electorate. As long as plan reasonably achieves effective and balanced
representation of all substantial interests, without sacrificing majority rule, the plan cannot be considered irrational.
Davis v. Bandemer (1986) Indiana districts, drawn by GOP, understated Dem voting strength (GERRYMANDERING)
Majority White - When legislatures redistrict, they likely intend the political result (to make it safe for their party). Inherent in winner-take-all districtbased elections is possibility that narrow preferences for either party can lead to overwhelming legislative majorities.
That apportionment makes it harder for a group in a district to elect the rep of its choice doesnt violate E.P. The elected rep still has to represent
the interests of all its voters.
Unconstitutional discrimination only when system arranged in manner that will consistently degrade a voters or groups influence on the political
process as a whole; must be supported by evidence of continued frustration of will of majority of voters or effective denial of minority of a fair chance
to influence the process. A single election does not meet this burden.
Held political gerrymandering cases are justiciable under E.P. but threshold showing of discriminatory vote dilution required.
Concur OConnor: Gerrymandering a non-justiciable P.Q. No judicially manageable standards.
Dissent Powell Appropriate judicial standards can/should be developed to identify unconstitutional gerrymandering where boundaries of districts
are deliberately distorted arbitrarily to achieve illegitimate ends.
Vietch v. Jubelirer (Scalia, 2004)Plurality opinion declaring political gerrymandering unjusticiable b/c no judicially manageable standards for adjudicating
such claims exist. Would have overruled Davis entirely, but KENNEDY rejected the challenge as applied and said that he would not foreclose all
possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the constn in some redistricting cases
must rest on conclusion that classifications, though generally permissible, were applied in an INVIDIOUS MANNER OR IN A WAY UNRELATED TO ANY LEGIT
LEGV OBJECTIVE
Griffin v. IL (1956) State required appellants in criminal proceedings to pay for transcripts to furnish to appellate court
Majority Black - A state must provide a trial transcript to indigent crim defendant appealing a conviction. DP and EP both require crim
procedures not to allow invidious disc; state cant discriminate on poverty; ability to pay has no rat relationship to guilt/innocence. State
neednt grant appellate review, but if does, cant discriminate based on poverty.
Dissent Harlan How is it E.P. to give to free to some what others must pay for?
Konto: DP and EP diverge due process is served by the trial, but equal protection requires free transcripts
MLB v SLJ (1996) - MLB lost her parental rights, Miss. required several $ thousand in fees to appeal the ruling.
Majority Ginsburg - There's a narrow category of civil cases where state must provide access w/o regard to ability to pay (divorce, because marriage
a fund int, need state to dissolve it). For appeals, more an E.P. issue than D.P., because D.P. doesnt independently require a right to appeal. Loss of
parental rights irretrievably destructive; states interest in recouping costs in this narrow category of cases unpersuasive.
General rule states need for revenue to offset cost is rational. Exceptions right to be a voter or candidate cant be limited to those who can pay,
nor may access to judicial processes in crim or quasi-crim (such as this) cases turn on ability to pay.
Dissent Thomas had D.P., a full trial-level proceeding, counsel, etc. The Griffin line of cases was overruled by Wash v Davis (no such thing as disp
impact under E.P. without discriminatory purpose). Framers didnt envision an equalizing notion of 14th. The adverse impact here is not at all the
state's fault (can't help that some people are poor).
San Antonio v. Rodriguez (1973) - Statewide disparities in tax $ spent per kid in public schools in various districts due to varying prop tax revenues per
district.
Majority Powell - Neither a suspect class or a fund interest here. Poorest people not concentrated in poorest districts. No absolute deprivation of
education. E.P. doesnt require absolute equality or equal advantages. As far as district-as- a-class, no history of unequal treatment, political
powerlessness in certain districts.
Judiciarycantguaranteemosteffectivespeech/mostinformedvotingthrough best education (even though ed is necessary to doing these things.) Unlike
where strict scrutiny applied where fund rts/liberties impinged upon or deprived, here the state is affirmatively providing something; thus no need to
find a least restrictive alternative. Cts not in position to be experts on tax/ed policy.
Marshall Dissent Whether an interest is fundamental for E.P. isnt always explicitly/implicitly in constitution. (see procreation, voting, appeals). Task
should be to see what constitutionally guaranteed rights are dependent on interests not mentioned in the constitution. As nexus between specific
constitutional guarantee and non-constitutional interest gets closer, it becomes more fundamental and deserves more scrutiny when discriminatorily
infringed on. Education, 1st amendment, political participation intrinsically linked.

Judicial Review and Justiciability Limits

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Tension!

N+P Level of GENERALITY

Judl rev as BYPRODUCT of

Unclear why SCOTUS interps

REVIEW ACTS OF CONGRESS: Combine cases + controversies

N+P Level of GENERALITY

lmtd to facts of a single case; obligate decs of other

N+P Level of GENERALITY

LIMITATIONS ON SCOTUS: POLICY + SUMMARY

Who: StandingSCOTUS will not hear constl challenge unless

N+P Level of GENERALITY

Reasonable expectation that same will be subj. to same axn

N+P Level of GENERALITY

JUSTICIABILITY: THE WHOSTANDING

Specifically: physical bodily injury, financial harm;

Broadly: Vote dilution, loss of opp to participate in racially neutral procedure

On the other hand . . .

Compared to Lujan, where s directly harmed + show imminent harm

Where harm is concrete, tho widely shared, Ct finds injury in-fact.

Senators suing Pres to strike down Line Item Veto Act

No standing b/c injury wholly abstract and widely dispersed

Concurring: political issue for SCOTUS

s interest is non-differentiated, has no bigger interest than anyone else

Think Lujan counter-args here . . .

Broad Marbury likely like, What!?

2. Causation: s burden to show harm fairly traceable to s axn

s asking for relief that solve problem

EPA dispute causation DESPITE . . .

By not regng, EPA contributing to problem + harming s

In environl cases, Cts use precautionary principle where accept lower

Exception: Craig v. Boren (1976)Seller of beer challenged sex discn law

Raines v. Byrd (Line Item Veto Act)

US v. Richardson (Accounts Clause case)

Schleisinger v. Reservists (Incompatibility Clause case)

Penned Sheep Case: Sheep had to be penned for disease-avoidance purposes

Congressional Conferral of Standing

Kennedy LujanCong candefine injuries + articulate chain of causation

Injury in-fact to members that would give them standing; AND

Injury related to orgs purpose; AND

Taxpayer Standing to say law unconstlNo standing UNLESS (1) brought

SCOTUS held that past/present members of armed forces Reserves lacked

N+P Level of GENERALITY

under Estabmt Cl AND (2) Appropriation ( tax credit) enacted by Cong

Flast: exceptn to ban on taxpayer standing b/c appropn + under

Hein: ltd Flast, only applicable to Congl appropn exec choice

N+P Level of GENERALITY

JUSTICIABILITY: THE WHATPOLITICAL QUESTION

Republican form of govt (Guarantee Cl.) = nonjusticiable ALWAYS

N+P Level of GENERALITY

said nonjusticiable question whether Pres can terminate a treaty,

N+P Level of GENERALITY

IMPLIED AUTHORITY OF FEDL GOVT

provide for spec. state immunities suggest by negv

N+P Level of GENERALITY

N+P Level of GENERALITY

COMMERCE CLAUSE 1/2

Economic activity in the aggregate, have a substl FX on interstate

PLUS FACTORSEconomic OR noneconomic

Beefy findings of econc FX save invalid jdxnl nexus

NY legr gave exclusive monopoly to ; operates compv steamboat service

Commerce = commercial intercourse more than buy/sell, incs navigation;

Distinguishes Schechter + Carter, saying FX in those cases too remote